Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger
Earlier this month, President Barack Obama announced that he was considering an Executive Order that would mandate that all contractors who receive Federal money must disclose their political contributions. Since I am not a big fan of Executive Orders and since President Obama was not a big fan of Executive Orders when he was a candidate, I was not especially enthralled about the possibility of another Executive Order. However, once I read what the proposed Executive Order was going to do, I have to admit that I embraced it with open arms.
“President Obama is considering an executive order that would force government contractors to disclose their donations to groups that participate in political activities, a move Republicans slammed Wednesday as an attempt to restrict political speech. 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. “ Washington Post It is not surprising that Republicans have cried foul over what they consider an improper end run by the President that would have the effect of bringing politics into the process of hiring Federal contractors. ‘“The draft order says it is necessary to ensure that politics are not allowed to impair the integrity of the procurement process,” said Stan Soloway, the group’s president. “But by force-feeding irrelevant information to government contracting officers, who would otherwise never consider such factors in a source selection, the rule would actually do precisely what it is intended to stop: inject politics into the source selection process.”’ Mr. Soloway is the head of a lobbying group, The Professional Services Group that represents companies that are looking to do work for the Federal Government.
I have to admit that I chuckled a bit when Mr. Soloway says he is worried about politics being brought into the contractor selection process. However, that moment of hilarity was quickly forgotten when I came across one of our old friends who came out against the proposed Executive Order in an Op-Ed in the Wall Street Journal. John Yoo of the infamous Torture Memos fame, joined in with David Marston to suggest that First Amendment rights would be violated if the proposed Executive Order was allowed to proceed.
“There was no bipartisanship, but there was certainly a forceful response. Democrats proposed the Disclose Act, which would have muzzled political speech by prohibiting federal contractors from making contributions to federal candidates or parties. Though the act failed to overcome a filibuster last year in the Senate, its supporters remain undeterred.Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. But before the administration barrels through with this attempt to suppress corporate political activity, it would do well to revisit NAACP v. Alabama. The court declared that the privacy of group membership and political activity were critical to the “effective advocacy of both public and private points of view, particularly controversial ones.” Privacy can be critical for free speech. “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,” Justice John Marshall Harlan wrote for a unanimous court. “ Wall Street Journal
Mr. Yoo and his co-author are horrified at what they consider a blatant abuse of the Executive Order process and that the result would be a violation of the First Amendment rights of the poor contractors who are receiving Federal funds. Yoo and Marston also complain that forcing contractors to disclose who they are contributing to and how much they are contributing would be a violation of their First Amendment rights. I guess Yoo and Marston agree with the Citizen United majority viewpoint that political speech is good and since contributing to campaigns and candidates would create more money which would create more speech, therefore restricting spending in any way violates Free Speech protections. (see Harvard Law and Policy Review, Vol 5, No. 1, “First Amendment Fault Lines and the Citizens United Decision”, Monica Youn)
Does anyone else find it hilarious that the same attorney who argued that the President of the United States could crush the testicles of a detainee under the President’s Commander in Chief powers, now argues that the President of the United States cannot require that the campaign donations of Federal contractors cannot be disclosed to the American public whose tax money is paying that contractor? According to Yoo and Marston, it is ok for individual citizens to be required to disclose their personal contributions, but it is a violation of the First Amendment rights of Federal contractors to do the same. Why don’t individuals have the same protections as Federal contractors? What do you think?
Additional source: FireDogLake
Respectfully submitted by Lawrence Rafferty Guest Blogger