Wertheimer testimony on EO: intentionally misleading, or just ignorant?

May 13, 2011   •  By Brad Smith
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In his written testimony submitted yesterday to two House committees about the President’s draft Executive Order requiring companies bidding on government contracts to include with their bids extensive data on their political spending and that of their officers and directors, Fred Wertheimer, aka Democracy 21, states:

“The Supreme Court clearly and unequivocally found in Citizens United that campaign finance disclosure laws were constitutional and necessary for the new campaign finance activities permitted by the Court’s decision. The draft Executive Order would provide such information to citizens and taxpayers whose funds are being spent on government contracts and who have a basic right to know this information.”

While it is true that the Supreme Court has upheld some campaign finance disclosure laws, and did so in Citizens United, we suspect that Wertheimer knows that it did not uphold the disclosure required in the draft EO, and never has. Not anything and everything labeled “disclosure” is constitutional.  The Court has never upheld disclosure for organizations that are not political committees, unless the disclosure meets a compelling government interest, is narrowly drawn, and avoids vagueness problems.

Among the Supreme Court cases striking down mandatory disclosure laws:

  • Thomas v. Collins, holding that labor union organizers can do their work anonymously;
  • Talley v. California, holding that organizers of picketing and boycotts (such as those recently aimed at Target or the Koch brothers) may do so anonymously;
  • Watchtower Bible & Tract Society v. Village of Stratton, holding that people going door to door – such as representatives of the President’s campaign organization, Organizing for America – can do their work anonymously;
  • McIntyre v. Ohio Elections Commission, holding that individuals may engage in at least low levels of political spending anonymously (which the proposed EO would possibly violate by requiring officers of contractors to report low level independent political spending to the government);
  • Buckley v. Valeo, holding that non-political committees could not be required to report spending “relative to a candidate” (perhaps similar to the vague requirement of the draft EO that would require donations to groups to be reported if “reasonably expected” to be used for independent political actvity);
  • NAACP v. Alabama, holding that the state could not require an organization to disclose it funders and members, at least where they faced the possibility of significant official or private harassment, which is what contractors critical of the proposed EO claim.

We don’t know how the Supreme Court would rule on this EO, but we’re quite sure it will be challenged in court, and it poses serious constitutional issues whose results are not dictated by existing precedent.

So is Wertheimer ignorant of all these decisions, or intentionally misleading? 

Brad Smith

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