President Obama is considering an executive order that would force government contractors to disclose their donations to groups that participate in political activities. . .The "Democracy is Strengthened by Casting Light on Spending in Elections Act" (H.R. 5171) was the bill:
White House press secretary Jay Carney told reporters that the administration has a draft proposal and would not offer details. But he said Obama thinks it is crucial to allow taxpayers to learn more about contractors who seek federal funds.
The provision is similar to one in a bill that Democrats pushed before the midterm elections called the Disclose Act.
introduced last year by Sen. Chuck Schumer and Rep. Chris Van Hollen to overturn the Supreme Court’s decision in Citizens United v. FEC. The bill had onerous requirements that were duplicative of existing law and burdensome to political speech. It never passed Congress because of principled opposition to its unfair, one-side requirements that benefited labor unions at the expense of corporations. Democratic commissioners at the Federal Election Commission then tried to implement portions of the bill in new regulations. Fortunately, those regulations were not adopted because of the united opposition of the Republican commissioners.The recent draft executive order would require government contractors to disclose all "contributions or expenditures to or on behalf of federal candidates, parties or party committees" over $5,000 annually per recipient. Yet, Federal contractors, or companies negotiating for Federal contracts, already are barred from contributing "to any political party, committee, or candidate for public office or to any person for any political purpose or use." 2 U.S.C. § 441c(a)(1). Obama's draft also covers the officers and directors of corporate contractors. Yet campaign and party committees already are required to report all contributions greater than de minimis amounts. 2 U.S.C. § 434. So half the proposal would be redundant of existing law at best; its only possible rationale, as lawyer David Martson and law prof John Yoo observe, is "to dangle the specter of retaliation" by political opponents of the Federal contractor. Or, as reader Doug J. quips, "Nice contract ya got there; be a shame if anything happened to it."
But wait; there's more. The scary provisions of Obama's draft executive order cover contractor contributions to third parties expected "to make independent expenditures or electioneering communications." This is an attempt to address the Citizens United ruling recognizing the First Amendment protection of such activities. Note that Citizens United, and the draft executive order, cover speech, not campaign contributions. No law or action of the President could overturn the Supreme Court's interpretation of the Constitution.
So instead, President Obama is contemplating limiting the effectiveness of Citizens United via disclosure. Sounds harmless enough, right?
Wrong. As I addressed previously, forced disclosure of funds spent on speech about issues or elections, as opposed to reporting contributions to candidates, violates First Amendment freedom of association. This isn't about increased transparency, as liberals and the White House claim. Rather, it's about privacy, a right progressives otherwise cherish.
Don't believe me? Well, would you believe a unanimous Supreme Court decision blocking compelled disclosure of the NAACP's membership list?:
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. . . Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. . .NAACP v. Alabama, 357 U.S. 449, 462-63 (1958).
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
Conventional civil libertarians haven't complained about the President's plan--perhaps because the draft executive order covers corporations, not unions. Yet, it's a slippery slope, as Martson and Yoo observe:
Imagine the outcry we'll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.Meanwhile, a group of liberals called "Priorities USA" will be funneling undisclosed contributions into Obama's re-election campaign. Another example of lefties abandoning neutral principles for political advantage.
(via readers Doug J., Warren)