Will Obama End-Run Around Congress and the Courts: Executive Orders

President Obama Signing Previous Orders

Today in Washington, D.C. - April 20, 2011:
Yesterday, we reported on former FEC commissioner Hans von Spakovsky identified the Obama administration’s latest attempt at an end-run around Congress. He said, “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.”

Spakovsky even gave a refresher on the DISCLOSE legislation. “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.’”

A liberal source, The Huffington Post, confirms this is what the Obama administration is up to: “After exhausting normal legislative avenues, the Obama administration has prepared a draft executive order that would enact some campaign finance reform provisions. The administration was unable to secure the changes to donation disclosures it wanted in the last Congress. Several Democratic sources confirmed a document being circulated by the administration would require government contractors to disclose campaign contributions made by directors, officers, affiliates or subsidiaries to federal candidates, political party committees and ‘third party entities’ involved in electioneering. . . . Another plugged in Democratic aide said administration officials had been exploring a wide range of executive actions to pursue in light of lawmakers’ failure to push legislation. The toughest component of the talks, the aide said, was figuring out what would withstand legal challenges.”

Spakovsky explained, “[T]his 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,” Spakovsky writes,  “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.”

Fred Wertheimer, founder of Democracy 21, a group that pushes restrictive campaign finance reforms, was explicit about what the aim of the proposed executive order, telling The Huffington Post about the intrusive and political speech-chilling disclosure rules, “It is becoming a condition of doing business with the government.”

So once again, it appears the Obama administration is turning to executive orders and regulations to implement controversial legislation that Congress has rejected. Just as the administration is allowing the EPA to attempt to regulate greenhouse gases despite the repeated failure in Congress of cap-and-trade schemes, the administration is now taking parts of the failed partisan DISCLOSE Act and attempting to impose them by executive order.

Today , U.S. Senate Republican Leader Mitch McConnell addressed the unprecedented executive order allowing the administration to review company’s political donations before deciding whether to award them a federal contract:

“Just last year the Senate rejected a cynical effort to muzzle critics of this administration and its allies in Congress. Now, under the guise of ‘transparency,’ the Obama administration reportedly wants to know the political leanings of any company or small business, including those of their officers and directors, before the government decides if they’ll award them federal contracts. Let me be clear: No White House should be able to review your political party affiliation before deciding if you’re worthy of a government contract. And no one should have to worry about whether their political support will determine their ability to get or keep a federal contract or keep their job.

“Democracy is compromised when individuals and small businesses fear reprisal, or expect favor from the federal government as a result of their political associations. So recent press reports about an unprecedented draft Executive Order raise troubling concerns about an effort to silence or intimidate political adversaries’ speech through the government contracting system. If true, the proposed effort would represent an outrageous and anti-Democratic abuse of executive branch authority. No administration should use the federal contracting system for campaign purposes.

“It is my sincere hope that recent reports of a draft Executive Order were simply the work of a partisan within the Obama administration and not the position taken by the President himself. But he should make that clear.”

Will President Obama attempt an end-run around Congress and the Courts using Executive Orders? It appears that at least people in his administration or political campaign team are willing to encourage such action.

Update: Americans for Limited Government (ALG) President Bill Wilson today condemned a draft executive order by the White House to compel companies to disclose donations to non-profit groups that might make independent expenditures during an election cycle:

"The White House cannot arbitrarily amend federal contractor requirements without a vote in Congress.  This is an end-run around the constitutional process, with the Obama Administration once again attempting to implement administratively what it cannot achieve legislatively.

In this case, the White House could not get the DISCLOSE Act passed, and so the draft executive order compels federal contractors to publicize donations to third parties that make independent expenditures in election cycles that are otherwise shielded from public scrutiny under federal law. It's nothing more than a cynical gag order issued by executive decree with no basis in the duly enacted laws of the land. As part of the contract-awarding process, the White House wants to know who is giving to whom and will surely make decisions based on that knowledge. . . .

There is no question that individuals' speech is stifled by excessive disclosure requirements on independent expenditures. The Obama Administration is once again attempting to shame and intimidate certain corporations, groups, and individuals from saying anything about elections. Free speech is now an executive order away from being abolished.  It is outrageous that Obama is making political contributions a criterion for getting a contract with the federal government. This is corrupt Chicago-style politics at its worse."

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