Bench Memos

Sen. McCaskill Opposes Obama’s New Attack on Political Speech

Senator Claire McCaskill (D., Mo.) has an op-ed in yesterday’s St. Louis Post Dispatch slamming the Obama administration’s draft executive order that would require companies seeking federal contracts to disclose their political contributions. (The same draft EO that the Wall Street Journal compared to the Nixon administration’s “enemies list.”)  According to McCaskill:

The proposed order unnecessarily injects politics into the contracting process. If contractors are required to disclose their political contributions every time they submit a bid for a contract, it will be impossible to believe that that information won’t be used to evaluate their offer. Even if those who review contracts are completely insulated from this type of information, companies and the public will assume that contracts are being steered toward those who support the party controlling the White House, or businesses are losing contract opportunities because they contributed to the party that does not.    

The senator deserves credit for getting that right. Unfortunately, she used the first three paragraphs of her op-ed to repeat tired talking points about the Supreme Court’s Citizens United decision and the DISCLOSE Act. She characterized the decision as a “brazen act of judicial activism” that “allowed corporations to give unlimited, anonymous contributions to political campaigns.”   

First: Senator McCaskill didn’t even get the facts right. As former chairman of the Federal Election Commission Brad Smith has explained, “Even prior to Citizens United, 28 states, representing roughly 60 percent of the U.S. population, already allowed corporations and unions to make expenditures promoting or opposing candidates for office in state elections; in 26 states, such corporate and union expenditures were unlimited.”

Second: Senator McCaskill is wrong to attack the majority’s ruling. The term “judicial activism” is imperfect, but it does have a public meaning that can be effectively applied in the context of judicial decisions. Roughly speaking, judicial activism occurs when judges decide cases on the basis of something other than the law or text and original meaning of the Constitution, such as personal preferences or political views. In Citizens United, it was the liberal judicial activists in the minority who agreed with the Obama administration’s argument that political books, pamphlets, and movies can be outlawed — a position that is clearly inconsistent with the First Amendment’s guarantee of free speech.  

Senator McCaskill is right that “requiring businesses to disclose their political activity when applying for contracts will only hurt.” But I wish she had gone a step further and agreed that the Constitution required the Supreme Court justices in Citizens United to reject the government’s attempt to censor political views.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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