Disclosure ‘as a political hammer’

During his 2010 State of the Union address, President Obama looked toward the Supreme Court justices sitting in the audience and derided their decision in Citizens United v. FEC.

In that case, provisions of the McCain-Feingold Act that restricted companies and unions from spending money on political campaigns and issues were rejected as an unconstitutional violation of the First Amendment.

The president urged Congress to correct the court through legislation. Sen. Chuck Schumer, D-N.Y., and other Democrats introduced just the bill the president sought, dubbed Democracy Is Strengthened by Casting Light On Spending in Elections Act, or The DISCLOSE Act. It would have required companies, but not unions, to disclose donations to political causes. The bill failed.

But now the president is poised to make an end run on the court and the Congress. A recently leaked draft of a presidential executive order would require every federal department and agency that awards any contract to require bidders to disclose all contributions to politicians, political parties, committees and third party entities by the company and its executives that exceeded $5,000 a year for the past two years. Disclosed contributions would be available on a publicly accessible website.

Contributions to candidates already must be disclosed, but this executive order would require for the first time revealing donations to third parties such as Crossroads GPS, the U.S. Chamber of Commerce and assorted tea-party affiliated groups, which for the first time in 2010 outspent comparable liberal groups such as MoveOn.org. Purely coincidental, we are sure.

House Committee on Oversight and Government Reform Chairman Darrell Issa, R-Calif., called the draft a "purely political act."

"The administration is again attempting to achieve through regulation what they could not accomplish through legislation," Rep. Issa railed in a statement. "This sleight of hand cannot continue. ... Transparency and disclosure are serious issues that are essential to restoring Americans' faith in their government. The president, here, is using them as a political hammer to strike at his opponents."

Transparency is a two-edged sword, as those who contributed to an anti-gay-marriage initiative in California found out when they became the targets of threats and had maps to their homes posted on the Internet. As Target Corp. discovered when it contributed to an independent group later accused of being anti-gay, resulting in boycott threats.

In a partial dissent in Citizens United, Justice Clarence Thomas argued the First Amendment protects all speech, including anonymous speech. "I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection," Justice Thomas wrote.

We encourage the president to resist the temptation to sign this executive order. It would be an opening salvo in the 2012 election and an abuse of the powers of the office.