Reporting for Pajamas Media, former FEC commissioner Hans von Spakovsky writes about the Obama administration’s latest attempt at an end-run around Congress: “An impeccable source has provided me with a copy of a draft Executive Order that the White House is apparently circulating for comments from several government agencies. Titled ‘Disclosure of Political Spending By Government Contractors,’ it appears to be an attempt by the Obama administration to implement — by executive fiat — portions of the DISCLOSE Act.”

Spakovsky gives a refresher on the DISCLOSE legislation. “This was the bill introduced last year by Sen. Chuck Schumer and Rep. Chris Van Hollen to overturn the Supreme Court’s decision in Citizens United v. FEC. The bill had onerous requirements that were duplicative of existing law and burdensome to political speech. It never passed Congress because of principled opposition to its unfair, one-side requirements that benefited labor unions at the expense of corporations. Democratic commissioners at the Federal Election Commission then tried to implement portions of the bill in new regulations.  Fortunately, those regulations were not adopted because of the united opposition of the Republican commissioners. As my source says: ‘It really is amazing — they lost in the Supreme Court, they lost in Congress, they lost at the FEC, so now the president is just going to do it by edict.’”

A report in The Huffington Post confirms this is what the Obama administration is up to: “After exhausting normal legislative avenues, the Obama administration has prepared a draft executive order that would enact some campaign finance reform provisions. The administration was unable to secure the changes to donation disclosures it wanted in the last Congress. Several Democratic sources confirmed a document being circulated by the administration would require government contractors to disclose campaign contributions made by directors, officers, affiliates or subsidiaries to federal candidates, political party committees and ‘third party entities’ involved in electioneering. . . . Another plugged in Democratic aide said administration officials had been exploring a wide range of executive actions to pursue in light of lawmakers’ failure to push legislation. The toughest component of the talks, the aide said, was figuring out what would withstand legal challenges.”

Spakovsky explains, “[T]his proposed Executive Order would require government contractors to disclose:

‘(a) All contributions or expenditures to or on behalf of federal candidates, parties or party committees made by the bidding entity, its directors or officers, or any affiliates or subsidiaries within its control.

(b) Any contributions made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.’”

“The problem,” Spakovsky writes,  “is that this will require companies to delve into the personal political activities of their officers and directors — and require them to report political contributions those employees have made, not out of corporate funds (which is illegal), but out of their personal funds. And note that these disclosure requirements will only apply to companies that make bids on government contracts. Federal employee unions that negotiate contracts for their members worth many times the value of some government contracts are not affected by this order. Neither are the recipients of hundreds of millions of dollars of federal grants.”

Fred Wertheimer, founder of Democracy 21, a group that pushes restrictive campaign finance reforms, was explicit about what the aim of the proposed executive order, telling The Huffington Post about the intrusive and political speech-chilling disclosure rules, “It is becoming a condition of doing business with the government.”

So once again, it appears the Obama administration is turning to executive orders and regulations to implement controversial legislation that Congress has rejected. Just as the administration is allowing the EPA to attempt to regulate greenhouse gases despite the repeated failure in Congress of cap-and-trade schemes, the administration is now taking parts of the failed partisan DISCLOSE Act and attempting to impose them by executive order.

Senate Republican Leader Mitch McConnell had harsh words for the regulation of political speech embodied in the DISCLOSE Act the last time Democrats tried to push it through: “Here’s a bill that was drafted behind closed doors without hearings, without testimony, and without any markups. A bill that picks and chooses who gets the right to engage in the political process and who doesn’t. A bill that seeks, in other words, to achieve an unlevel playing field.”

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