(Tina Korbe/The Foundry) – A group of senators is urging President Obama to reconsider a draft executive order to require would-be government contractors to disclose political contributions.
Sen. Susan Collins (R-ME), ranking member on the Committee on Homeland Security and Governmental Affairs, and Republican Leader Mitch McConnell (KY) yesterday sent a letter signed by 25 of their Republican colleagues to the president to ask him to keep politics out of federal contracting.
“We urge you not to issue the draft EO,” the letter states. “To ensure that taxpayers receive the best value for federal contracts, government procurements must be conducted in a manner that ensures a fair process. Your proposed EO does not appear to advance that goal.”
The senators are joined in their disapproval of the order by the U.S. Chamber of Commerce. Executive Vice President Bruce L. Josten said he worries the draft order has attracted enough attention to make it probable the president will, in fact, issue the order.
“There’s been too much visibility not to proceed,” Josten said, speaking at The Bloggers Briefing, hosted this week by the U.S. Chamber. “They’ve now created an expectation of this.”
But Josten says the U.S. Chamber plans to work to reverse it if the president does issue it.
The as-yet-unannounced executive order would require private contractors to reveal contributions to political action committees, trade associations and donations to independent organizations that engage in grassroots lobbying just to be eligible to compete for federal contracts. The draft order was first obtained and made public by Heritage senior legal fellow Hans von Spakovsky.
Josten says such requirements would politicize what should be a straightforward process. The government should contract with whatever company offers the highest value for the lowest price — period. What political donations those companies have made in the past should be irrelevant.
“Disclosure laws like this actually can and do create opportunities for discrimination and retaliation,” Josten said.
Supporters of the executive order, on the other hand, defend it as a means to promote transparency.
“What the president is committed to is transparency,” the president’s spokesman said, according to the New York Times. “He certainly thinks that the American taxpayer should know where his or her money is going.”
But as Josten points out, contractors can’t use taxpayer dollars to make political contributions in the first place.
“They already have laws on the books that prevent contractors from using any money from the contract for lobbying or political purposes, so this is completely unnecessary,” he said.
Furthermore, many of the reporting requirements are duplicative. Information about political action money, for example, is already publicly available. The administration could easily access it without burdening businesses to report the information again.
“It becomes a repetitive, redundant reporting requirement — from a president who said he wants to reorganize government, make it more efficient and reduce paperwork,” Josten said.
Ultimately, of course, the executive order pertains to the prerogative of corporations to engage in free speech in the form of political donations. But on that, the courts have already ruled. In Citizens United v. Federal Election Commission, the Supreme Court upheld the right of corporations to engage in political speech — including the funding of independent political broadcasts in candidate elections.
Congress has weighed in on the issue, as well, failing last year to pass the DISCLOSE Act, which would have reversed the Citizens United decision.
If President Obama decides to issue the executive order, he’ll be acting unilaterally. Heritage’s von Spakovsky put it this way: “It really is amazing — they lost in the Supreme Court, they lost in Congress, they lost at the FEC, so now the president is just going to do it by edict.”
The 27 senators who publicly oppose the executive order expressed dismay at the president’s end-run as well.
“Given similarities between the draft EO and some provisions of the DISCLOSE Act, which was rejected by the Senate in its current form, we are also concerned that the EO may be an effort to circumvent Congress,” their letter states.
Josten thinks the executive order strikes at privacy issues. The draft applies not only to corporations as entities: It also applies to the directors and officers of private contractors. Josten said this invades the privacy of those individuals, who he says should be able to make political donations as individuals, rather than as representatives of their businesses.
A Supreme Court case — which Josten cited — exists for that aspect. In 1958, in NAACP v. the State of Alabama, the Supreme Court ruled the privacy of group membership is critical to the advocacy of both public and private points of view, particularly controversial ones.
“Privacy can be important to free speech,” Josten said. “What we have here is a political order that dangles the specter of potential political retaliation or harassment.”