An impeccable source has provided me with a copy of a draft Executive Order that the White House is apparently circulating for comments from several government agencies. Titled “Disclosure of Political Spending By Government Contractors,” it appears to be an attempt by the Obama administration to implement — by executive fiat — portions of the DISCLOSE Act.
This was the bill 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.
As my source says:
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 draft Executive Order says it is intended to “increase transparency and accountability,” an interesting claim given the fact that federal contractors are already completely barred by 2 U.S.C. § 441c from making:
Any contribution of money or other things of value, or to promise expressly or impliedly to make any such contribution to any political party, committee, or candidate for public office or to any person for any political purpose or use.
Yet this proposed Executive Order would require government contractors to disclose:
(a) All contributions or expenditures to or on behalf of federal candidates, parties or party committees made by the bidding entity, its directors or officers, or any affiliates or subsidiaries within its control.
(b) Any contributions made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.
The problem is that this will require companies to delve into the personal political activities of their officers and directors — and require them to report political contributions those employees have made, not out of corporate funds (which is illegal), but out of their personal funds.
And note that these disclosure requirements will only apply to companies that make bids on government contracts. Federal employee unions that negotiate contracts for their members worth many times the value of some government contracts are not affected by this order. Neither are the recipients of hundreds of millions of dollars of federal grants.