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
You all remember Johnny Carson do you not?
One Yoo, never ceases to amaze me. I feel like I am watching Carson.
erykah,
Oliver North is a good match for Yoo.
Thanks, AY.
Goose Gander is all I can say….Good post Sir Rafflaw….
It’s that I’m above the law mentality. I am sure that he and Oliver North are good friends.
No problem Bdaman.
Interesting idea Pete…?
can we mandate waterboarding for federal contractors, that way it wouldn’t violate their first amendment rights.
I think they call it leveling the playing field Raff.
How ya doin today after a head spinning day yesterday.
Raff you do know that they tried to portray me as fingering you but I did no such thing. I hope no hard feelings.
Blouise,
I think it would easy to keep track off the contributions because the Republicans would merely use some other secret way of hiding the fact that corporations from around the world are funneling money into our elections.
Elaine,
You are probably right that the corporatists might find disclosure more painful than Mr. Yoo’s favorite example.
Bdaman,
if your opponent is going to use secret corporate financing, you have no choice but to play in the same ball park.
The organization will not live up to the same campaign finance standards by which Obama has pledged to run its campaign. They will take unregulated donations that do not require disclosure; Obama and Capitol Hill Democrats have railed against Crossroads and other Republican groups that do the same thing. The organizers said the 2010 Supreme Court decision in Citizens United, opening the door to unlimited corporate contributions, left them no choice.
A spokesman for Crossroads, the conservative independent fundraising behemoth, immediately accused President Obama of “brazen hypocrisy.” The president’s “own political operatives are launching the very type of groupes they demagogued as ‘shadowy threats to democracy,'” Crossroads spokesman Jonathan Collegio said in a statement.
http://nationaljournal.com/politics/democrats-make-it-official-they-ll-take-undisclosed-donations-too-20110429
“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. ”
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So today I saw a pt. who was a waitress at IHOP all her ife…and managed to save enough to pay cash for a house here in Florida. She bought a tiny condo (and I mean tiny) for 180,000 a number of years back…through a realtor. It is now valued at 40,000….her condo fees take almost ALL of her monthly check and she cant afford her medications without assistance….
I’m sorry, why is the judge unhappy?
“does anyone else find it terrifying how utterly commonplace it is for republicans to call out their opponents on the very issues which they themselves are culpable and vulnerable to attack? perhaps i’m too young to realize this has been going on for generations”
jack kough,
I’m 66 and it seems to me that this heightened hypocrisy was ushered in in the late 60’s. However, bear in mind that that could just be the musings of an old radical fart, who shares your horror at the current range of political discourse.
Yoo is a tool and a disgrace to the legal profession. The Scotus
decision fiving corporations first amendment rights and calling campaign donations free speech was wrong on so many levels, yet its dicta is currently in effect. In my opinion free speech does not guarantee anonymity of ones’ speech, however, defined. In fact it seems the opposite is true, otherwise anonymous libel and slander would also be protected. The public has every right to know where campaign contributions and other emoluments to politicians come from and so the order seems a good one. What of course may be at issue is does the President have authority to in effect make law. Since Executive Orders now deny habeas corpus, allow torture and give the President the power to order murders, it would be the height of hypocrisy to challenge this one. That is why if issued it would be challenged. The Plutocracy and the Politicians can’t have their little “tete a tete” threatened.
Good lord raff, they’ll have to create an entire department to vet the information coming from all these contractors. Then they’ll have to create laws to deal with erroneous information or failure to disclose in order to give the order teeth.
Although I like the thought of such an order, I suspect it is more of an election ploy than anything else. Perhaps I’m too cynical.
yes, i too find it hilarious, except for when i find it nauseating.
does anyone else find it terrifying how utterly commonplace it is for republicans to call out their opponents on the very issues which they themselves are culpable and vulnerable to attack? perhaps i’m too young to realize this has been going on for generations, but in my short time on the planet this shameless, galling hypocrisy has become the norm. it just seems so dangerous to me that truth and history can be so malleable.
I wonder why activists simply haven’t gone through the process of going after his license. California seems to have reached the point where the big issue is whether or not to outlaw circumcision, rather than some thing more important.
rafflaw,
This is the first that I’ve heard about this story. For a federal contractor to have to disclose his campaign contributions would be, by far, more painful than having his testicles crushed. It would be political torture, doncha know!
Good point Rich. I wonder why the DOJ hasn’t prosecuted him and the rest of the torture crowd.
I understand why he still has a job at UC. I don’t understand why he still has a license to practice law.