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Posted at 01:53 PM ET, 04/27/2011

Obama defies the Supreme Court and chills speech

The Post reports:

Republican senators are asking President Obama to drop plans to sign an executive order forcing government contractors to disclose donations to groups participating in political activities, saying the White House shouldn’t use a company’s political history to determine if they’re eligible for government work.

A draft proposal on the issue is under review and White House Press Secretary Jay Carney said last week that Obama believes taxpayers deserve to know how contractors are spending money they’ve earned from the government.

“His goal is transparency and accountability,” Carney said. ”That’s the responsible thing to do when you’re handling taxpayer dollars.”

Many Republicans however believe that the move could allow the White House to muzzle political critics. And now they want to know exactly how Obama would go about reviewing a contractor’s political history.

You’d think the ACLU would be all over this one. Imagine if the Bush administration demanded to know contractors’ political affiliations as a condition of doing business with the government. Sen. Susan Collins (R-Maine) got it exactly right in a letter signed by two dozen of her colleagues:

Political activity would obviously be chilled if prospective contractors have to fear that their livelihood could be threatened if the causes they support are disfavored by the Administration.

No White House should be able to review your political party affiliation or the causes you support before deciding if you are worthy of a government contract,” the senators write in a letter set for delivery [Wednesday]. “And no Americans should have to worry about whether their political activities or support will affect their ability to get or keep a federal contract or their job.

This move is noxious in two respects. First, from the crowd that decried Bush administration executive overreach and a propensity to “shred the Constitution,” the administration’s use of an executive order as an end-around the Supreme Court’s ruling in the Citizens United case is pretty slimy stuff. David Marston and John Yoo explain in a column for the Wall Street Journal:

Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. . .

It shouldn’t matter here that disclosure would be the price for doing business with the government. In Boy Scouts of America v. Dale (2000), the Supreme Court made it clear that a group did not have to give up its right to associate in exchange for some government benefit.

The right at issue here, is, of course, the First Amendment.

And that’s the real problem with Obama’s approach. He’s trying to bully businesses, forcing them to disclose their political activities. What’s next, a form that asks “Are you now or have you ever been a dues-paying member of or contributor to Right to Life? Of MoveOn.org?” Marston and Yoo explain:

In NAACP v. Alabama (1958), the court barred Alabama from forcing the NAACP to disclose its members. Those justices would have struck down a similar effort to force the release of the NAACP’s financial supporters. They would have rightly viewed it as an infringement of the constitutional right to free association and free speech.

Today President Obama is ignoring the lessons of the civil rights era he claims to revere. According to a draft executive order leaked last week, Mr. Obama plans to require any company seeking a federal contract to disclose its executives’ political contributions over $5,000 — not just to candidates, but to any group that might make “independent expenditure” or “electioneering communication” advertisements.

If a small businesswoman wants to sell paper clips to the Defense Department, Mr. Obama would force her to reveal contributions to groups such as Planned Parenthood or the National Rifle Association. These donations are obviously irrelevant to whether she made the most reliable bid at the lowest price. The only purpose of the executive order is to dangle the specter of retaliation (by losing her contracts) and harassment (from political opponents).

Gosh, you’d think all those law school deans out there (the ones who decried the government’s ability to push them around and extend recruiting access to the military before the repeal of Don’t Ask/Don’t Tell) would be livid. But no. The authors underline that point: “Imagine the outcry we’ll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.”

The disregard for the rule of law is rather stunning, even for this crowd. But the lack of foresight is even more mind-boggling. Do liberals trust a future Republican administration to implement this edict?

By  |  01:53 PM ET, 04/27/2011

Categories:  law

 
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