Even though the DISCLOSE Act was defeated in Congress and an attempt to jam it through by fiat at the FEC has so far failed, the Obama Administration appears to be attempting to resurrect it again. At Pajamas Media, Hans von Spakovsky dissects a leaked draft of an Executive Order, which would enforce entire chunks of the Disclose Act against government contractors.
But not, of course, for government worker’s unions:
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.
Clearly, this administration is not interested in increasing “transparency and accountability” when it comes to forcing union leaders or the heads of liberal advocacy organizations such as Planned Parenthood from disclosing the personal political contributions they make to candidates running for federal office.
The draft order also tries to interfere with the First Amendment rights of contractors. It requires them to disclose independent expenditures that can be made legally on everything from politics to grassroots lobbying on issues. This is clearly intended to deter charitable and other contributions to third-party organizations, since the contractors will have to report any such contributions made with the “reasonable expectation” that the money will be used for First Amendment-protected activities.
“Reasonable expectation” is the kind of broad, nebulous legal term that can cover almost any situation that the government – and government prosecutors – want it to cover. This makes it almost impossible for contractors to know what the acceptable legal standard is for engaging in First Amendment activity.
Read the draft EO here.
