[EL] Federal Contractor Disclosure -- An illegal order?

[Brian Landsberg]

The Obama Administration would most likely argue that Section 735(a) only applies to submission of an offer, not to those to whom contracts have been awarded.

Brian K. Landsberg
Professor Emeritus
University of the Pacific, McGeorge School of Law
3200 Fifth Ave., Sacramento, CA 95817
Phone:  916.739.7103 | Email: blandsberg at pacific.edu<mailto:blandsberg at pacific.edu>
mcgeorge.edu<http://www.mcgeorge.edu/>

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Wednesday, January 20, 2016 2:18 PM
To: law-election at uci.edu
Subject: Re: [EL] Federal Contractor Disclosure -- An illegal order?

President Obama<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> is seriously considering an executive order that would require companies doing business with the federal government to disclose their political contributions,

Section 735(a) of the budget omnibus, signed by President Obama last month:
Sec. 735. (a) None of the funds made available in this or any other Act may be used to recommend or require any entity submitting an offer for a Federal contract to disclose any of the following information as a condition of submitting the offer:

(1) Any payment consisting of a contribution, expenditure, independent expenditure, or disbursement for an electioneering communication that is made by the entity, its officers or directors, or any of its affiliates or subsidiaries to a candidate for election for Federal office or to a political committee, or that is otherwise made with respect to any election for Federal office.
(2) Any disbursement of funds (other than a payment described in paragraph (1)) made by the entity, its officers or directors, or any of its affiliates or subsidiaries to any person with the intent or the reasonable expectation that the person will use the funds to make a payment described in paragraph (1).
(b) In this section, each of the terms “contribution”, “expenditure”, “independent expenditure”, “electioneering communication”, “candidate”, “election”, and “Federal office” has the meaning given such term in the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.<http://uscode.house.gov/quicksearch/get.plx?title=2&section=431>).

Not quite sure how you square the law with the proposed executive order.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, January 20, 2016 1:35 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 1/20/16

“New Wrinkle in Wis. Campaign Finance Probe”<http://electionlawblog.org/?p=79164>
Posted on January 20, 2016 10:33 am<http://electionlawblog.org/?p=79164> by Rick Hasen<http://electionlawblog.org/?author=3>

Courthouse News Service:<http://www.courthousenews.com/2016/01/20/new-wrinkle-in-wis-campaign-finance-probe.htm>

      MADISON, Wis. (CN) – Two targets of a secret campaign-finance probe hamstrung by the Wisconsin Supreme Court say the recently ousted investigator made misrepresentations about his searches and subpoenas.

     Named pseudonymously in the filing, Unnamed Movants 6 and 7 say former special prosecutor Francis Schmitz failed to comply with a court order to return property and disclose all search activity.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
“A Landmark Decision Turns 40: A Conversation on Buckley v. Valeo”<http://electionlawblog.org/?p=79162>
Posted on January 20, 2016 10:27 am<http://electionlawblog.org/?p=79162> by Rick Hasen<http://electionlawblog.org/?author=3>

Wow<https://www.brooklaw.edu/newsandevents/events/2016/01-26-2016> this looks like a great event at Brooklyn Law Jan. 26, featuring Judge Buckley!
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79162&title=%26%238220%3BA%20Landmark%20Decision%20Turns%2040%3A%20A%20Conversation%20on%20Buckley%20v.%20Valeo%26%238221%3B&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Common Cause Backs Student Suit to Force Election Day Registration”<http://electionlawblog.org/?p=79160>
Posted on January 20, 2016 10:26 am<http://electionlawblog.org/?p=79160> by Rick Hasen<http://electionlawblog.org/?author=3>

See this press release<http://www.commoncause.org/press/press-releases/common-cause-backs-student-voter-suit.html>.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79160&title=%26%238220%3BCommon%20Cause%20Backs%20Student%20Suit%20to%20Force%20Election%20Day%20Registration%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>
“Citizens United Consequences: Super Rich Empowered, Ordinary Americans Undermined, Democracy Subverted”<http://electionlawblog.org/?p=79158>
Posted on January 20, 2016 10:04 am<http://electionlawblog.org/?p=79158> by Rick Hasen<http://electionlawblog.org/?author=3>

Fred Wertheimer blog <http://www.huffingtonpost.com/fred-wertheimer/citizens-united-consequen_b_9029038.html> on Citizens United.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79158&title=%26%238220%3BCitizens%20United%20Consequences%3A%20Super%20Rich%20Empowered%2C%20Ordinary%20Americans%20Undermined%2C%20Democracy%20Subverted%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“What is political ‘dark money’ — and is it bad?”<http://electionlawblog.org/?p=79156>
Posted on January 20, 2016 10:01 am<http://electionlawblog.org/?p=79156> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI primer.<http://www.publicintegrity.org/2016/01/20/19156/what-political-dark-money-and-it-bad>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79156&title=%26%238220%3BWhat%20is%20political%20%26%238216%3Bdark%20money%26%238217%3B%20%E2%80%94%20and%20is%20it%20bad%3F%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“A New Threat to the Viability of Contribution Limits”<http://electionlawblog.org/?p=79154>
Posted on January 20, 2016 9:54 am<http://electionlawblog.org/?p=79154> by Rick Hasen<http://electionlawblog.org/?author=3>

Brent Ferguson has posted this draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2718975> on SSRN (forthcoming, Emory Law Journal Online).  Here is the abstract:

In July, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups like super PACs if the groups’ ads do not expressly advocate the election or defeat of a candidate. The decision is erroneous under federal precedent and fundamentally misunderstands the Supreme Court’s holdings distinguishing between independent spending and spending coordinated with a candidate. Wisconsin’s regulatory scheme will be largely inoperable for the time being: Contribution limits will be fairly meaningless, at least for sophisticated actors who seek to circumvent them. And the logic of the decision leads to the conclusion that candidates have the constitutional right to set up campaign accounts that may accept unlimited contributions, so long as that money is not used for express advocacy.

Because the Court’s reasoning lacked a coherent basis or a foundation in federal case law, it may not be overly optimistic to think that other state or federal courts will reject its reasoning. Yet there are indications that at least some regulators and courts may share the Wisconsin Court’s view, and there is little doubt that the issue will arise in other states. This article will review the law of coordination, as well as recent Supreme Court case law relied upon by the Wisconsin Court, to demonstrate the Court’s error. It will also address some of the effects the decision will have in Wisconsin and elsewhere if other courts similarly depart from longstanding precedent.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79154&title=%26%238220%3BA%20New%20Threat%20to%20the%20Viability%20of%20Contribution%20Limits%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Illinois election board to decide fate of three St. Clair County judges”<http://electionlawblog.org/?p=79152>
Posted on January 20, 2016 9:49 am<http://electionlawblog.org/?p=79152> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting<http://www.stltoday.com/news/local/govt-and-politics/illinois-election-board-to-decide-fate-of-three-st-clair/article_23969e59-b665-534d-bff6-e0435433f84d.html>:

Is a judge acting unethically if he maneuvers to keep his job by choosing to run in a partisan election, thus avoiding the higher vote threshold required for retention in a nonpartisan vote?

A small band of sign-waving protesters who marched outside the St. Clair County Building here Tuesday morning made that complaint.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79152&title=%26%238220%3BIllinois%20election%20board%20to%20decide%20fate%20of%20three%20St.%20Clair%20County%20judges%26%238221%3B&description=>
Posted in judicial elections<http://electionlawblog.org/?cat=19>
Richard Painter with the Conservative Case for Campaign Finance Reform<http://electionlawblog.org/?p=79150>
Posted on January 20, 2016 9:47 am<http://electionlawblog.org/?p=79150> by Rick Hasen<http://electionlawblog.org/?author=3>

Can’t wait to read this.  Release:

Take Back Our Republic Publishes Book by former President George W. Bush White House Aide:

“Taxation Only with Representation:  The Conservative Conscience and Campaign Finance Reform” by Richard W. Painter



Author Richard Painter was President George W. Bush’s chief White House ethics lawyer, and he is now a law professor at the University of Minnesota.  He wrote the book throughout 2014 and 2015 with the financial support of a full year residential fellowship from Harvard University’s Safra Center for Ethics.

Painter’s book discusses in detail:
·         How the current system of campaign finance undermines the system of participatory democracy envisioned by the original Tea Party and the founding fathers of our Country.
·         The fact that conservative political thinkers from Edmund Burke to Barry Goldwater have warned against the corrupting influence of costly elections.
·         Campaign money is driving the growth of excessive government spending and regulation and encourages the growth of inefficient and corrupt government sponsored enterprises (GSEs).
·         Campaign money is silencing the voice of social conservatives and faith-based voters on virtually every issue, ranging from protection of human life and religious freedom to school choice, drugs, pornography and gambling.
·         Campaign money is increasingly likely to originate outside the United States, giving sovereign wealth funds, foreign governments and even terrorist organizations ample opportunity to influence our government and undermine our national security and independence.



The principal solution Painter proposes is to allow ordinary voters to participate in funding political campaigns out of their tax dollars.   His proposed “Taxation only with Representation” amendment or statute can be enacted at the national or state level and does not run afoul of any existing first amendment rights in the Constitution.  It provides:

Neither the government of the United States nor any state or subdivision thereof shall levy an income tax, sales tax, property tax, inheritance tax or any other tax upon any natural person over 18 years of age who is a citizen of the United States or upon his or her estate unless the United States government or the state levying said taxes pays an amount totaling at least two hundred dollars within the same calendar year or within the immediately following calendar year to the campaign of one or more candidates for elected federal or state or local office chosen by such citizen for whom such citizen is also eligible to vote or running for office in the state in which the citizen resides.  A citizen’s right to designate taxpayer funded political contributions pursuant to this amendment is waived in any year in which the citizen fails to designate a recipient of such payment or dies before designating a recipient of such payment. Every five years after adoption of this amendment, Congress shall by statute or, in the event Congress shall not enact such a statute, the United States Treasury shall by regulation, adjust the taxpayer funded political contribution amount to be more or less than two hundred dollars to reflect changes in the purchasing power of the United States dollar within the preceding five years.

Painter proposes that the private sector develop innovative solutions to bring more small donors into the fray.  For example, a “Democracy Dollars” program in which retailers would, in place of making their own contributions to PACs, allow customers to give money to candidates of their choice based on customer loyalty points.  Painter urges that when the private sector tries to help citizens solve the campaign finance problem, government must not be allowed to stand in the way.

Take Back Our Republic has printed 5,000 copies in the first printing, more than 1,000 of which will be distributed in New Hampshire and Iowa in late January and early February.

The book can be found on Amazon.com<http://www.amazon.com/Taxation-Only-Representation-Richard-Painter/dp/1939324122/ref=sr_1_1?ie=UTF8&qid=1453239273&sr=8-1&keywords=taxation+only+with+representation> or at or by contacting Take Back Our Republic at 334-329-7258<tel:334-329-7258>.  A complimentary PDF version is attached as well.


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79150&title=Richard%20Painter%20with%20the%20Conservative%20Case%20for%20Campaign%20Finance%20Reform&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Political Self-Interest II: The Boundaries of “Ingratiation and Access””<http://electionlawblog.org/?p=79148>
Posted on January 20, 2016 9:43 am<http://electionlawblog.org/?p=79148> by Rick Hasen<http://electionlawblog.org/?author=3>

More Bauer<http://www.moresoftmoneyhardlaw.com/2016/01/political-self-interest-ii-boundaries-ingratiation-access/> on McDonnell.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79148&title=%26%238220%3BPolitical%20Self-Interest%20II%3A%20The%20Boundaries%20of%20%E2%80%9CIngratiation%20and%20Access%E2%80%9D%26%238221%3B&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>
“The Nine Presidential Candidates Who Don’t Want Your Support”<http://electionlawblog.org/?p=79146>
Posted on January 20, 2016 9:30 am<http://electionlawblog.org/?p=79146> by Rick Hasen<http://electionlawblog.org/?author=3>

That is<http://youthrights.org/2016/01/19/the-nine-presidential-candidates-who-dont-want-your-support/>, if you are under 18.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79146&title=%26%238220%3BThe%20Nine%20Presidential%20Candidates%20Who%20Don%26%238217%3Bt%20Want%20Your%20Support%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“President Obama May Require Federal Contractors to List Campaign Gifts”<http://electionlawblog.org/?p=79143>
Posted on January 20, 2016 9:27 am<http://electionlawblog.org/?p=79143> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2016/01/20/us/president-obama-may-require-federal-contractors-to-list-campaign-gifts.html?_r=0>:

President Obama<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> is seriously considering an executive order that would require companies doing business with the federal government to disclose their political contributions, White House officials said on Tuesday, a step long awaited by activists to reduce the influence of secretive corporate donations in elections.
The directive, known as the “dark money” executive order, would mandate that government contractors publicly report their contributions to groups that spend money to influence campaigns. Advocates inside and outside the White House believe the executive order would prompt some companies to spend less, by exposing their donations to public scrutiny.
That last sentence is very telling. As I argue in Plutocrats United<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>, I believe many of those who push for greater shareholder transparency are less interested in protecting shareholders than in deterring corporate spending.


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79143&title=%26%238220%3BPresident%20Obama%20May%20Require%20Federal%20Contractors%20to%20List%20Campaign%20Gifts%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“What Kind of Man Spends Millions to Elect Ted Cruz?”<http://electionlawblog.org/?p=79141>
Posted on January 20, 2016 9:22 am<http://electionlawblog.org/?p=79141> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting Bloomberg report.<http://www.bloomberg.com/politics/features/2016-01-20/what-kind-of-man-spends-millions-to-elect-ted-cruz-?cmpid=BBD012016_POL>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79141&title=%26%238220%3BWhat%20Kind%20of%20Man%20Spends%20Millions%20to%20Elect%20Ted%20Cruz%3F%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
DC Plutocrats United Event POSTPONED Due to Expected Blizzard<http://electionlawblog.org/?p=79136>
Posted on January 20, 2016 8:58 am<http://electionlawblog.org/?p=79136> by Rick Hasen<http://electionlawblog.org/?author=3>

With a blizzard watch <https://www.washingtonpost.com/news/capital-weather-gang/wp/2016/01/20/blizzard-watch-severe-snowstorm-likely-friday-through-sunday/> now posted for DC, and talk of a possible historic storm, I’m afraid the Plutocrats United event with Trevor Potter in DC, set for Friday, is being postponed.  I hope we will announce a new date soon.

The New York events with the Brennan Center<http://electionlawblog.org/?p=78230> for tomorrow are STILL ON.  Hope to see you there.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79136&title=DC%20Plutocrats%20United%20Event%20POSTPONED%20Due%20to%20Expected%20Blizzard&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“The Wait Is Over for Ex-Lawmakers Ready to Lobby”<http://electionlawblog.org/?p=79134>
Posted on January 19, 2016 9:01 pm<http://electionlawblog.org/?p=79134> by Rick Hasen<http://electionlawblog.org/?author=3>

Roll Call reports.<http://www.rollcall.com/news/The-Wait-Is-Over-for-Ex-Lawmakers-Ready-to-Lobby-245502-1.html>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79134&title=%26%238220%3BThe%20Wait%20Is%20Over%20for%20Ex-Lawmakers%20Ready%20to%20Lobby%26%238221%3B&description=>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, lobbying<http://electionlawblog.org/?cat=28>
“Decoding the Maze Part 2: Wisconsin Overhauls Campaign Finance Laws”<http://electionlawblog.org/?p=79132>
Posted on January 19, 2016 8:57 pm<http://electionlawblog.org/?p=79132> by Rick Hasen<http://electionlawblog.org/?author=3>

Mike Wittenwyler and Jodi Jensen have written this analysis<http://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=8&Issue=2&ArticleID=24570> for the Wisconsin Bar Journal.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79132&title=%26%238220%3BDecoding%20the%20Maze%20Part%202%3A%20Wisconsin%20Overhauls%20Campaign%20Finance%20Laws%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Huckabee supports campaign finance reforms”<http://electionlawblog.org/?p=79130>
Posted on January 19, 2016 8:51 pm<http://electionlawblog.org/?p=79130> by Rick Hasen<http://electionlawblog.org/?author=3>

Unlimited contributions<http://www.desmoinesregister.com/story/news/elections/presidential/caucus/2016/01/19/huckabee-campaign-finance-iowa-caucus/79001022/> to candidates with full disclosure.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Unlikely Advocates Push To Give 16-Year-Olds A Vote — And A Voice”<http://electionlawblog.org/?p=79128>
Posted on January 19, 2016 8:47 pm<http://electionlawblog.org/?p=79128> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR reports.<http://www.npr.org/2016/01/18/463489043/unlikely-advocates-push-to-give-16-year-olds-a-vote-and-a-voice>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79128&title=%26%238220%3BUnlikely%20Advocates%20Push%20To%20Give%2016-Year-Olds%20A%20Vote%20%E2%80%94%20And%20A%20Voice%26%238221%3B&description=>
Posted in voting<http://electionlawblog.org/?cat=31>
“The GOP debates have become like Super Bowl parties for top donors”<http://electionlawblog.org/?p=79126>
Posted on January 19, 2016 9:27 am<http://electionlawblog.org/?p=79126> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold<https://www.washingtonpost.com/politics/the-gop-debates-have-become-like-super-bowl-parties-for-top-donors/2016/01/18/9f578660-b95e-11e5-b682-4bb4dd403c7d_story.html> at Wapo on what is literally plutocrats united.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79126&title=%26%238220%3BThe%20GOP%20debates%20have%20become%20like%20Super%20Bowl%20parties%20for%20top%20donors%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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