In its Citizens United ruling, the Supreme Court held that Americans do not forfeit their First Amendment rights when they join together to form businesses. This hardly remarkable conclusion produced howls of indignation among Democrats, who summarily denounced both the justices and the “corporations,” about which they are inclined to whisper darkly. Now the president is contemplating the imposition of free-speech restrictions through executive fiat.
Democrats’ main response to Citizens United was the DISCLOSE Act (if you must know and can stomach it, that’s the Democracy Is Strengthened by Casting Light On Spending in Elections Act) which, among other things, would have encumbered private, individual political donations made by employees of firms that bid on federal contracts. Unhappily for Sen. Chuck Schumer and Rep. Chris Van Hollen, the DISCLOSE Act’s sponsors, their campaign to chill Americans’ political speech did not fare well in Congress, and the bill foundered. Democrats sought to impose similar restrictions through the Federal Election Commission, again with no success. Having been defeated both in the democratic forum and in court, Pres. Barack Obama has had drafted a diktat to simply impose DISCLOSE limitations by White House decree. You might wonder: Upon what constitutional authority might the president issue a directive abridging Americans’ First Amendment rights, recently reconfirmed by the Supreme Court? We wonder, too, and suspect that President Obama is getting a little big for his constitutional britches.
Federal contractors, it bears noting, already face disclosure rules. What the new restrictions would do is require Big Business to play Big Brother and keep tabs on employees’ private political activities. Which is to say, the same Democrats who decry the political influence of corporations want to empower — to require – those same corporations to spy on their workers in the name of political transparency. The political uses of a list of the political activities of a firm’s employees are obvious, and obnoxious.
Individuals making campaign donations already face disclosure rules, and the new restrictions the president contemplates would not shed any new light on the operations of American campaign finance. What they would do is have a chilling effect on the private political activities of a particular class of Americans, based simply on where they work, and provide the president with a handy device for aggregating his critics for future political retaliation. In short, this is Barack Obama forcing those he regards as his enemies to compile his enemies list for him.
Agreements with private firms for goods and services are not the only sort of contracts the federal government negotiates. The contracts it negotiates with its unions, for example, dwarf in financial scale the typical business contract. Those public-sector unions, as you may have heard, are rather lopsidedly Democratic in their political sympathies. No surprise, then, that they are to be exempt from these restrictions. Likewise, organizations receiving grants and other support from the federal government — public dependents that unsurprisingly tend to favor a large public sector and, consequently, Democrats — remain immune.
We are generally in favor of disclosure, as opposed to outright restriction, as the main tool for achieving openness and transparency in campaign finance, and it is reasonable that some scrutiny be given to the political activities of parties negotiating contracts with the government. We already have sufficient standards and rules in place — in fact, we have too many of them, thanks in no small part to the tirelessly wrongheaded efforts of John McCain. Worse still, the decree Obama is considering would place similar restrictions on non-campaign expenditures, such as donations to issue-advocacy groups and nonprofit organizations. The case for having politicians police political campaigns is weak enough; having them police private, non-campaign endeavors that intersect with public affairs is a deep and grievous violation of Americans liberties. For the president to simply command that it be so, having lost in Congress and in the Court, would be more troubling still.