Question.: I heard President Obama may make contractors disclose their political contributions in applications for government contracts. Does he have legal authority to do that?
Answer.: Obama has no general lawmaking authority under the Constitution. But after decades of tolerance by Congress and the electorate, executive orders are now commonplace, and largely accepted.
President Obama proposes forcing government contractors, in bidding for federal contracts, to reveal their political contributions to candidates, committees and even third-party entities they expect will make political expenditures. His draft executive order is a blatant end run around both other branches of government, and not surprisingly applies to businesses, and not unions. Oh, and it flies in the face of the Constitution and its celebrated separation of powers.
In Citizens United v. Federal Election Commission, the U.S. Supreme Court overturned the provision of the McCain-Feingold campaign finance law under which Citizens United was barred from advertising its documentary film about Hillary Clinton. The decision allowed corporation and unions to pay for political ads made independently of candidate campaigns, and of accompanying donor disclosure laws.
To counter Citizens United, the White House and Democrats tried to pass legislation called the Disclose Act that would have required outside groups to reveal their donors, but that effort stalled in the Senate.
Proponents of the Disclose Act, and now this executive order argue it would protect taxpayers from pay-to-play efforts by donors influencing contracting decisions, or obtaining earmarks by members of Congress for government contracts. Minority Leader Nancy Pelosi (D Ca.) says the executive order is to target endless, undisclosed money going into campaigns, and salutes Obama for his efforts.
Opponents dubbed it more Chicago hardball politics, and a way to punish contractors who dare support causes the administration opposes. Tim Pawlenty, potential presidential candidate, called the draft order political arrogance and hypocrisy. Mitch McConnell (R Ky.) called it blatant intimidation. It seems hard to even argue with the opponents. But in this upside down world of PC and unending spin, proponents say with a straight face ‚Äì and some support in numbers ‚Äì that It is all about protecting taxpayers. If you buy that argument, you may be just the government contractor Obama is looking for.
And as for Obama authority to do by executive order what the U.S. Supreme Court and our elected representatives refused to do, the answer should be self-evident. The Constitution says up front, right in Article 1, Sec. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The legislature alone was given the power to make laws. We The People are not supposed to be bound by any federal law our representatives in Congress did not approve.
But now, all too familiar are the myriad ways both the courts and the President have usurped that lawmaking power; the Supreme Court makes new law in the guise of interpreting old ones, and since the early 1900s, our presidents proclaim laws through executive orders that bind us all.
Executive orders were originally few, perhaps 30 per term, and applied to executive branch staff. Teddy Roosevelt abused his power by issuing 1,006 executive orders of all kinds, and the failure of Congress to de-fund or overturn those orders with contrary legislation brings us to today.
This development, when viewed in the context that the far left agenda is progressing (yes, pun intended), requires action on the part of liberty-minded people everywhere. It is evident there is a well-funded, well-organized coalition opposed to free market principles and individual liberty.
This is not a random development. It started in Colorado by the creation and funding of a single coordinating group. That group coordinates a web of IRS (c)(4) social welfare organizations, IRC ¬ß527 political organizations, and to a limited degree IRS (c)(3) educational and research organizations, all to advance a far left agenda. The key to the success of this plan is the coordination among these various groups by the single organization, while at the same time being careful not to coordinate with campaigns and candidates.
These very same tools are available to liberty groups, and must be put to use to advance freedom and limited government. Note, however, the IRS has recently begun investigating donations to IRS (c)(4) social welfare organizations under the theory that gift taxes might apply to the donors‚Äô contributions. The IRS denies it was pressured to look into the specific organizations, but it is noteworthy that a couple of the organizations under investigation have a center-right orientation. Despite this recent development, liberty groups should not shy away from developing the same nexus of organizations, using social welfare, political and to the extent allowable, educational organizations to educate, persuade, and involve the citizenry in preserving the founding principles of this country.
501(c)(3) have donor disclosure requirements through their annual filings. However, currently, there are no disclosure requirements for 501(c)(4) and 527 (except for electioneering communications.) And, thanks to the holding in Citizens United, individuals and corporations can contribute to both 501(c)4 and 527 organizations without disclosures.
So let stand up, get organized and make our voices heard. If the people do not stop Obama proposed executive order, and any similar measures proposed nationally or in Colorado, who will?
Gary and Linda Hoover are licensed attorneys who also are active in and dedicated to the pro-liberty efforts in Colorado. The Hoovers select legal question regarding Tea Party, 9/12 Project and other liberty group or event issues to answer for our readers. Submit questions for the Hoovers as comments to this column.