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

Wed Jan 20 23:41:42 PST 2016

If a federal contractor must disclose, just because it is currently a contractor, then that information will be available to the government when the contractor puts in its next bid. I imagine that most federal contractors have multiple contracts (concurrently or sequentially) and put in multiple bids. They are mostly "repeat players," right? So the executive order would accomplish for the most part the result that Congress sought to prevent: at the time of bid submission the government would have forced the bidder to disclose the information, which could be used wrongfully in the contract award process.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Jan 20, 2016, at 5:06 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

I don’t think so, Joe. Here is the bill. https://www.congress.gov/bill/114th-congress/house-bill/2029/text. Page 239 of the pdf, Section 735(a).

I’m not sure how that would matter in any case. Say what you will, the bill pretty clearly states that you can’t require this as a condition of bidding. Again, unless the president can unilaterally, through executive order, change the terms of contracts with the government, I think Lisa’s claim doesn’t scowl. Brian’s argument (it only applies to bidders, not to those who get the contracts) is a clever lawyers’ argument that I don’t think would hold up either.

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: Joseph E. Sandler [mailto:sandler at sandlerreiff.com]
Sent: Wednesday, January 20, 2016 5:50 PM
To: Lisa Gilbert; Schultz, David A.; Smith, Brad
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: [EL] Federal Contractor Disclosure -- An illegal order?

Also, Brad has the wrong bill—this language (section 735) was in the “Cromnibus” for FY 2015 (ending Sept 30 2015) which was signed in December 2014—NOT last month

Joseph E. Sandler
Sandler, Reiff, Lamb, Rosenstein & Birkenstock PC
1025 Vermont Ave., N.W.  Suite 300
Washington, D.C. 20005
Telephone: 202 479 -1111
Fax: 202-479-1115
Cell:  202 607 0700

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 Lisa Gilbert
Sent: Wednesday, January 20, 2016 5:33 PM
To: Schultz, David A. <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>; Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Federal Contractor Disclosure -- An illegal order?

Any executive order would be focused on those that are already federal contractors. This language in the budget simply prevents disclosure from being a prerequisite for getting a new contract . This language wasn’t new in this budget, but has been around for several years.

Lisa

_____________________________________________
Lisa Gilbert
Director-Public Citizen's Congress Watch
215 Pennsylvania Ave., SE | Washington, D.C. 20003
T: (202) 454-5188 | C: (551) 404-5200
follow me at Lisa_PubCitizen

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 Schultz, David A.
Sent: Wednesday, January 20, 2016 5:28 PM
To: Smith, Brad
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Federal Contractor Disclosure -- An illegal order?

Rarely do I agree with Brad but I too am stumped on this, I thought the budget deal mooted this,  What have I missed?

On Wed, Jan 20, 2016 at 4:18 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
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<tel:%28614%29%20236-6317>
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp
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