OPINION:
If anyone wants one more example of why Washington can’t seem to solve the real problems facing the nation today, he need look no further than the current debate over requiring corporations to disclose political contributions when seeking government contracts.
On its face, it seems straight forward and a desirable initiative. A leaked draft executive order requiring the disclosure has been the basis for much recent discussion. Interest groups that seek to limit corporate political speech under the guise of transparency are demanding that the president issue it forthwith. Groups representing government contractors and corporations in general, such as the U.S. Chamber of Commerce, are denouncing the order. Both sides have been active on Capitol Hill, where opponents of the order successfully passed a provision that, if enacted, would block it from taking effect.
More recently, a group that represents lobbyists has weighed in. As well-intentioned as it may be, this is not their fight, and involvement by a group of professionals who have been so maligned by the administration can do nothing but further encourage its assault. Apparently, there are those who believe the American public has no greater concern than the activities of lobbyists. Or perhaps they hope to deflect concern from the real problems that are facing the country. In any event, professionals who assist individuals and entities exercise their First Amendment right to petition their government about legislation and other policy matters do not deserve being cast as scapegoats for political benefit.
Let’s all be clear about one thing: The motivation behind the order is not transparency. Most of the information that would be disclosed under the order is already available publicly. Corporations may not make contributions to candidates in federal elections, so we must assume that the administration is talking about a corporation’s political action committee (PAC). All of those contributions are reported regularly and are available online. Contributions by corporate directors and officers, similarly, must be reported by the recipient and can be searched easily by the name of the employer on any number of free and publicly available websites. Contributions made to third parties with the intention or reasonable expectation that the funds would be used to make independent expenditures or electioneering communications if made to so-called “super PACs” or independent expenditure committees must also be reported and are publicly available.
It is critical to note that federal contractors already are prohibited from making contributions in federal elections from the time they begin to seek an award until the time the contract is completed. Recently, the chairman of the Federal Election Commission - a Democrat - told Congress that government contractors are similarly prohibited from making independent expenditures. If she is correct, there would be nothing to report.
So, if transparency isn’t the goal, what is? The frustration of the interest community that seeks to limit corporate speech has continued since the Supreme Court’s Citizens United ruling and the failed efforts to overturn it through passage of the DISCLOSE Act. The Republican-led House is unlikely to do them any favors. That frustration is heightened by the fact that liberal-leaning groups, often allies, are preparing to match - if not outdo - the fundraising efforts of those groups that have benefited from corporate contributions. At the same time, the 2012 presidential election campaigns are under way. Fundraising has begun, and as in each prior election in recent history, the amount of money raised will likely break all records.
Given these facts, requiring entities that seek government contracts to disclose political contributions has nothing to do with contracting integrity but, regrettably, is an indirect attempt to chill corporate political speech. What possible influence could a campaign contribution to Congressman X have on the ability of an executive-branch bureaucrat to objectively analyze a bid? If that is a real concern, there should be an immediate and comprehensive review of the government procurement process. The administration needs a constitutional hook to do unilaterally what a majority in Congress was unwilling to do, and the contracting process is an avenue that is available to it.
It’s no wonder that so many have lost faith in Washington. Government too often is used to achieve political ends while real problems are left unresolved.
Thomas J. Spulak is a King & Spalding partner and chairman of the firm’s Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules and as general counsel to the House.
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