Obama May Issue Order Exposing Big Corporate Political Spenders in Citizens United Era

A executive order requiring that federal contractors disclose their electoral spending—by top officers and as corporations—is being reconsidered by the White House despite stiff opposition from the business lobby after it was first proposed last spring, according to civil rights attorneys working on the issue.

By Steven Rosenfeld

“There’s a lot of movement at the White House,” said Craig Holman, government affairs lobbyist for Public Citizen. “I just had a meeting at the White House counsel’s office, trying to encourage them to move forward with the executive order. They have the perfect window of opportunity to get the executive order done.”

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-Calif., who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

The order, if issued, would likely be the only campaign finance initiative to emerge from Washington this year as nothing is expected from Congress. It would take effect after the Federal Acquisition Regulatory Council adopts new disclosure rules. That could come as the 2012 election season moves beyond the primaries and it would offer a new way to see who is behind the newest independent groups spending millions on political attack ads.

“Most of the major corporate players are also government contractors,” Holman said. “So if we get this executive order approved, we will get a comprehensive picture of how corporations are spending money in elections.”

Spending on federal contracts was $541 billion in 2010, which was about 4 percent of the gross domestic product, according to the Congressional Research Service, and almost 15 percent of the federal budget. The top 100 contractors are some of America’s biggest firms, and include support services for the military overseas, weapons makers, computer companies, telecommunication firms and other service providers. Companies that could fall under the disclosure order employ about 22 percent of the domestic workforce, CRS said.

The proposed executive order emerged last April, where it swiftly drew condemnation from some of Washington’s biggest business lobbies, including the Professional Services Council, the Aerospace Industries Association and the U.S. Chamber of Commerce. Almost immediately, Republicans in the House and Senate began adding amendments to appropriations bills prohibiting federal agencies from collecting the political contribution information as part of the procurement process.

Rep. Eshoo led the Democrats' response by making floor speeches and introducing short amendments to spending bills requiring the contractor disclosure.

“I rise to call for transparency and disclosure in our system and throughout our government,” Eshoo said, in a typical speech. “In 2002, when we voted to pass the historic McCain-Feingold campaign finance bill, most Republicans voted no, saying we needed disclosure….They said we needed to put spending out in the open and let the voters assess it. Today, when the president proposes requiring contractors to disclose their spending and not to limit it, Republicans are up in arms. They say it will politicize the contracting process. But when contractors can spend money in elections, the contracting process is already politicized.”

In July 2011, Eshoo sent a letter, signed by 62 other House Democrats, urging President Obama to issue the executive order. That letter noted that a handful of states ban forms of political spending by contractors, citing Connecticut, New Jersey, West Virginia and Hawaii. It also noted that since 1994, the Securities and Exchange Commission has barred brokers and securities dealers and their PACs from making campaign contributions to bond-issuing officials. The SEC rule was upheld in court.

“Political expenditures are already well-known to those that make them and to the officials who benefit,” she concluded in the letter urging the administration to action.

However, the White House took no further action after last summer. Meanwhile, every time Eshoo offered a disclosure amendment it prompted a counter measure from House Republicans. The stalemate ended in December, when a compromise was reached. The GOP’s stated objections concerned disclosing political contributions before contracts were awarded—in the bidding stage. The House Republicans withdrew their objection once Eshoo and Democratic leaders agreed to limit disclosure to after federal contracts had been awarded.

The most recent spending bill to pass the House removed those barriers, Eshoo said last month. “Today's compromise omnibus spending bill leaves the president free to require disclosure from any company receiving taxpayer dollars,” she said, alluding to the new window for the White House to move ahead with an executive order.

“Now we have the perfect window to get it done,” Holman said. “The [Republicans' legislative] riders have been removed.”

Neither Eshoo’s office nor Public Citizen’s Holman have seen newer drafts of the executive order since it circulated in April. That initial draft would report contributions to third-party groups, including the super PACs that spent millions on television ads before the Iowa caucuses—supposedly independent of candidates.

Should the executive order be signed, it would not stop the deluge of campaign cash into all flavors of political committees. However, lawyers for the super PACs have sought to delay reporting their contributions and expenditures until after the earliest presidential primaries. Thus, if adopted, it would force additional transparency on some of this political season’s stealthiest operators and might give some pause before acting.

Holman hoped the White House would issue the order before the upcoming State of the Union address. In the meantime, he said the White House’s lawyers were “attentive, polite and noncommittal” during their most recent meeting.

“With the two-year anniversary of Citizens United upon us, President Obama should seize the opportunity to address voter frustration and anger by putting in place meaningful transparency and disclosure,” Eshoo said.

Story of Citizens United v. FEC

See Story of Citizens United v. FEC for overview of what Walker and the Koch brothers have in mind.

Dworkin: GOP Court Decision Is "Devastating"

Is Sen Russ Feingold's Republican opponent in the general election this November really going defend the outrageous decision in Citizens United? A Republican won't be able to get elected U.S. Senate nominee in Wisconsin without addressing the issue.

By Ronald Dworkin in The New York Review of Books—Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court overruled established precedents and declared dozens of national and state statutes unconstitutional, including the McCain-Feingold Act, which forbade corporate or union television advertising that endorses or opposes a particular candidate.

This appalling decision, in Citizens United v. Federal Election Commission, was quickly denounced by President Obama as “devastating”; he said that it “strikes at our democracy itself.” In his State of the Union speech of January 27, he said, “Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” He is right: the decision will further weaken the quality and fairness of our politics. ...

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other justices who voted with the majority ignored that constraint in their haste to declare the McCain-Feingold Act unconstitutional in time for the coming midterm elections.

White House Hits Back at GOP Justice Alito

Corporate and foreign control of government v. American People controlling government.

President Obama is lining up behind the people and the rightwing is being the rightwing. This is a debate Sen. Russ Feingold and President Obama have dreamed about.

From the journal, Politico: White House: Obama is right about Supreme Court:

A senior administration official told POLITICO on Thursday morning: ‘There is a loophole that we need to address and are working with Congress to address. There are U.S. subsidiaries of foreign-controlled corporations that could influence our elections because of this ruling.’

The issue was raised by Justice John Paul Stevens in his dissent in the case, Citizens United v. Federal Election Commission: ‘It would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.’

Stevens continued: ‘The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at preventing foreign individuals or associations from influencing our Nation’s political process. … Such measures have been a part of U.S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers.’

And on Page 75, Stevens wrote: ‘Unlike voters in U.S. elections, corporations may be foreign controlled.’

See also Obama Slams Court, Hails Russ Feingold's Work.

Obama Slams Court, Hails Russ Feingold's Work

Update: See also Justice Alito's conduct and the Court's credibility (Greenwald).

Reflecting the anger of the American people towards huge-moneyed special interests, President Obama assumed a populist tone in his State of the Union Address last night, using a derivation of the word "bank" and "lobbyist" in a negative fashion some 20 times, and defending Wisconsin Senator Russ Feingold's signature legislative achievement against the recent Republican-led Court decision widely blasted as ultra-activist and intellectually dishonest.

Obama singled out the Supreme Court's decision in Citizens United v. Federal Election Commission (08-205) that eviscerated the effect and policy rationale of the McCain-Feingold campaign finance reform law (Bipartisan Campaign Reform Act of 2002 (BCRA)) by allowing unlimited general treasury funds of for-profit corporations to be directed to corporations' chosen candidates for political office in political ads. Said Obama:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Supreme Court Justice Samual Alito visibly disparaged Obama's criticism of the Court's decision, Citizens United.

Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas of the Republican Court majority in Citizens United had previously joined an opinion issued by Chief Justice William H. Rehnquist in Timmons v. Twin Cities Area New Party (951608) (1997), reading in part: ''Ballots serve primarily to elect candidates, not as fora for political expression," contradicting their supposed advocacy of First Amendment rights in election law in the case Obama alluded to in his address.

Obama to Declare War on Corporate Enemy in SOTU

Update II: Alito disparages Obama's Supreme Court criticism of Citizens United

Update: See Dave Lindorff's The Supreme Court's Right-Wing Clique has Given Us a Great Opportunity.

If he has the brains I think he has, President Obama will make a hard political charge against the titanic moneyed interests that dominate our country as the bubble-shaped storm clouds gather again.

Consider the political Supreme Court case of the last 15 years, its hypocrisy and its catering to big money.

''Ballots serve primarily to elect candidates, not as fora for political expression.''
- Chief Justice William H. Rehnquist in Timmons v. Twin Cities Area New Party (951608) (1997), joined by Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

"Because the FEC’s 'business is to censor, there inheres the danger that [it] may well be less responsive than a court ... to the constitutionally protected interests in free expression.'" ...

"The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it." McConnell, supra, at 341 (opinion of KENNEDY, J.)."
- Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and two Bush appointees in Citizens United v. Federal Election Commission (08-205).

One step is to announce legislative initiatives to mitigate the effects of the U.S. Supreme Court decision, Citizens United v. Federal Election Commission (08-205), that effectively vitiated [without striking down] the specific campaign finance reforms (Bipartisan Campaign Reform Act of 2002 (BCRA)) championed for years by Sen. Russ Feingold (D-WI), joined by an ethically challenged Sen. John McCain (R-AZ) out to rehabilitate his name.

The exercise in hypocrisy and partisan favoritism in Citizens United is revealed by examining another landmark election law case animated by First Amendment claims used in the fight against colossal wealth dominating the political process, Timmons v. Twin Cities Area New Party (95-1608) (1997).

The stakes are high. President Obama's populist initiatives outlined tonight will define his presidency and our country for decades to come because the American people will be watching.

In Citizens United the GOP has now been caught, finally, on the wrong side of financial reform; look for much more of this branding of Republicans in the weeks to come.

- via mal contends

Brennan Center: Citizens United Bigger than Bush v.Gore

Update II: Statement of U.S. Senator Russ Feingold in Response to the Supreme Court's Decision in Citizens United v. FEC

"It is important to note that the decision does not affect McCain-Feingold’s soft money ban, which will continue to prevent corporate contributions to the political parties from corrupting the political process. But this decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century's worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible."

Update: AP: Obama promises 'forceful response' to Supreme Court ruling on campaign finance.

Brennan Center for Justice:

The Supreme Court's decision [pdf] on the issues of 'corporate personhood' and campaign dollars presented in Citizens United v. FEC hands unprecedented power to big business, and may provoke the most drastic shift in American politics in more than a decade.

Free the Speech

Hillary the Movie is pretty funny.

Last year’s film is mostly Ken Starr-inspired and other discredited news headlines with Ann Coulter, Dick Morris, Newt Gingrich and other rightwingers saying they do not like Hillary and Bill, with dark overtones reminiscent of Jerry Falwell’s The Clinton Chronicles (1998).

What’s not funny is that in Citizens United v. Federal Election Commission (Docket No. 08-205) before the U.S. Supreme Court, the court will decide if the McCain-Feingold Act (the Bipartisan Campaign Reform Act of 2002 ("BCRA") that became law because of valid political corruption concerns about big money dominating the electoral system) mandates an oppressive and unconstitutional infringement of free speech of those behind Hillary The Movie because the film would need to be regulated as electioneering under the reporting and disclaimer requirements of McCain-Feingold.

Hillary the Movie was “advertised on the Internet, sold on DVD and shown in a few theaters (Jesse Holland, AP).” But because Hillary was running for president last year this film and others like it need to be regulated, say defenders of McCain-Feingold.

Absurd. Strike down McCain-Feingold now.

In the Wall Street Journal blog last week, the writer quotes Justice Scalia during oral arguments "admitt(ing) to feeling a little 'disoriented.' 'We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?' he asked" of Deputy Solicitor General Malcolm L. Stewart, of the Obama's administration's DOJ.

Yes. Citizens United v. Federal Election Commission (Docket No. 08-205) does deal with a constitutional provision in the First Amendment, one that protects this, my and the readers' blogs, for example.

Myself, I spent a lot of time trashing Hillary and promoting Obama during the 2008 Democratic primary, so do I have to register, report and disclaim my blog here?

The smart money is that free speech will prevail in the case but the only Wisconsin voice that I have read on this case defending the First Amendment is from David Blaska.