Posted on May 20, 2011 by Stefan Passantino

Pay-to-Play Disclosure For Government Contractors - UPDATE Strong Reactions and a Not-Too Transparent White House

Our last post focused on the trial balloon being floated by the White House to impose corporate political disclosure obligations on government contractors.  At the time of that post, all we had was a White House press secretary description.  Subsequently, draft orders have been floating around the internet including here.
 
If I do say so myself, I thought our firm’s government contracts department provided a pretty comprehensive analysis of the issue for our clients in a recent client alert.

 Notably, that alert observed:

 
The proposed executive order would require every federal contracting department and agency to require all entities submitting offers for federal contracts to disclose certain political contributions and expenditures made within two years of the submission date of the offer.  The disclosures would include all contributions to or on behalf of federal candidates, parties or party committees by the bidding entity, its directors or officers, or by any affiliates or subsidiaries.  Any contributions to third party entities (such as trade associations or industry groups) made with the expectation or intention that the parties would use those contributions to make independent expenditures or electioneering communications would have to be disclosed.  The FAR Council would be directed to adopt rules and regulations that would, among other things, require bidders to certify that the accuracy of the information disclosed as a condition of award.
 
Reaction from all ends of the political spectrum has been immediate and prolific with objections to the proposal being found from Senator Collins in today’s Washington Post,others in the Senate, and the US Chamber of Commerce.  Most concerns surrounding the proposed executive order track those raised by the Chamber (and, of course, this blog which raised them first - wink) in observing that the order is of dubious constitutionality and a relatively clear effort to circumvent political challenges in getting Congress to pass the DISCLOSE ACT in the wake of Citizens United v. FEC:
 
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.
 
On the other hand, public interest groups such as Democracy21 rose in defense of the proposed order and against the Chamber’s efforts to stifle it.  Groups like Care2 have pointed out:
 
Its [sic] easy to see why the Chamber of Commerce would want to stop the order; it would effect a large number of their big business clients. Corporations often want to keep their political spending quiet, hoping to avoid the negative press and boycotts like the one Target was hit with after their donation to an openly anti-gay candidate was leaked to the public.
 
From a process standpoint, there is a delicious irony in the fact that the White House is currently unwilling to discuss publicly its internal discussions concerning the need for an Executive Order imposing political transparency on government contractors.  The nature of trial balloons in politics is that one does not want one’s fingerprints on something until one is willing to take ownership of it.  This political phenomenon resulted in the following exchange during a May 12 joint Oversight and Small Business Committee hearing on the proposed Order:
 
"Does it strike you at all as being ironic to invoke confidentiality and not answering questions when we're having a hearing about transparency?" – Rep. Trey Gowdy (R-SC)
 
"It does not, sir. I think there are discussions, even about transparency and developing rules about transparency that we need to be able to have quietly and behind closed doors." – Hon. Daniel Gordon, Administrator of the Office of Federal Procurement Policy, Office of Management and Budget, Executive Office of the President
 
Let’s go to the videotape!
 
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Posted on April 21, 2011 by Stefan Passantino

President Obama (Again) Looks to Impose a Form of Federal Pay-to-Play Disclosure on Federal Contractors

Last year, we reported here and here that certain elements of the Executive Branch have been looking into ways to impose federal pay-to-play restrictions and disclosure requirements on those doing business with the federal government. Today, the White House confirmed that President Obama is strongly contemplating issuing an executive order designed to impose pay-to-play disclosures on federal contractors in a big way.

As announced by the White House, the President is examining an order that would mandate that all federal contractors disclose any and all contributions to groups that engage in political activities. This is contemplated, the White House says, in direct response to the Supreme Court’s opinion in Citizens United v. FEC (discussed here) and Congress’ failure to enact the DISCLOSE Act (discussed here).

To learn more about what, exactly, the President has in mind, one needed to be on board Air Force One (headed to California on a Presidential and DNC fundraising swing, ironically enough) to hear White House Press Secretary Jay Carney say the following:

Q Jay, there was -- there were reports this morning that the administration is considering an executive order requiring companies seeking government contracts to disclose their contributions to groups that under current law would be secret. Is that correct?

MR. CARNEY: Well, what I can tell you is there is a draft -- there’s a process, and it’s in the -- it’s part of a process. There’s a draft, and the particular specifics of that executive order could change over time, so I can’t talk about the specifics. What I can tell you is the President is committed to improving our federal contracting system, making it more transparent and more accountable. He believes that American taxpayers deserve that, and that's what he intends to pursue through this executive order.

Q Is there any political goals behind this?

MR. CARNEY: Quite the contrary. He believes very strongly that taxpayers deserve to know whether or not the contractors that their money is going to is being used -- how they're spending their money, and how -- whether they're -- how they're spending in terms of political campaigns. And his goal is transparency and accountability. That's the responsible thing to do when you’re handling taxpayer dollars.

Q Is he likely to go ahead with the executive order? Or is there another way to accomplish it?

MR. CARNEY: I can’t -- there’s an executive order in the draft process. I can’t give you any specifics on it because the specifics could change. That's the nature of the process.

Q Jay, on a trip like this that combines presidential events with campaign events, can you talk about how it’s funded? For example, there are no presidential events in Los Angeles. Is that entire part of the trip funded through the campaign?

MR. CARNEY: Ari, you know the -- when there is travel like this that involves official travel and also political travel, this administration very diligently follows all the same rules that the Bush administration did. And as far as the specifics on how that breaks down, I’ll have to get back to you. I don't have that. But we’re very careful about making sure that all those rules are followed.

“Diligently [following] all the same rules that the Bush administration did” and breaking substantial new ground all at the same time. That’s a pretty impressive two-step.

One immediate challenge comes to mind: if all federal contractors and bidders are required to disclose their contributions to groups of any kind that engage in political or issue advocacy, how does one prevent federal contract officers from demonstrating bias against bidders supporting unpopular views or the party out of power? This is a decent enough effort at transparency that strikes me as having the potential to trod all over our constitutional rights to free expression and freedom of association. To quote David Wenhold, immediate past president of the American League of Lobbyists, “Sunlight is good, but sometimes too much sunshine can cause cancer.”

This is definitely one to stay tuned to.
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