President’s Draft Order Politicizes, Damages Federal Contracting

The National Association of Manufacturers joined 87 other business groups and trade associations in a letter to President Obama on Monday night, raises numerous objections to a draft executive order that would require disclosures of campaign contributions by select parties involved in federal contracting.

The draft order is an attack on the First Amendment, as the letter states, suffers from severe legal and policy defects that would, if signed, immediately damage the federal contracting process.

From the letter:

The executive order would make every company that tries to contract with the federal government disclose spending that is confidential and used to fund core, First Amendment-protected political speech. Also troubling is the executive order’s reach beyond companies to their individual officers and directors, who would be forced by the executive order to disclose personal political spending undertaken with their own assets. This aspect of the order will both impair individuals’ First Amendment freedoms and interfere with the relationships between companies and their employees.

The political spending covered by the draft executive order is protected by the First Amendment and may not be interfered with absent an important governmental interest. It is quite clear, however, that despite perfunctory language to the contrary, the draft executive order is not motivated by a desire to improve the federal procurement system or any other potentially legitimate governmental interest. Indeed, the federal procurement system already has several built-in safeguards that work quite well to ensure that contract awards are based on the merits of the bid proposal.

Rather than strengthening these existing safeguards, the draft executive order would politicize the procurement process. The proposed order will either encourage covered speakers to refrain from exercising their constitutional speech rights so as to avoid jeopardizing their competitiveness for federal contracts, or it will encourage speakers to alter their political messages in ways perceived to increase their chances of being awarded federal contracts. Either effect is a problem under the First Amendment.

Thanks to the U.S. Chamber’s blog, the Chamber Post, for highlighting the letter.

And here’s a good summary of the issues from Heritage’s Hans von Spakosvky in The Examiner, “DISCLOSE executive order would politicize federal contracting.” Hans is a former member of the Federal Election Commission.

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