Are Yoo Kidding Me?
Last week, President Obama announced his intention to issue an executive order that would force government contractors to disclose their donations to groups that participate in political activities. The President is initiating this effort in response to the Supreme Court's 2010 case Citizens United v. FEC, which, in overturning 63 years of precedent, allows corporations to spend unlimited sums of money on campaign advertisements. It is also a response to the failure of Congress to pass the DISCLOSE Act, which would have legislatively enacted similar policies to those the President intends to impose through executive order.
In a Wall Street Journal op-ed written by Bush Justice Department official John Yoo (who wrote legal memos that served as the Bush Administration's justification for torturing detainees at Guantanamo Bay) and David Marston, the authors characterize the pending executive order as suppression of political association akin to the attempt by Alabama to suppress civil rights activity in the state by forcing the NAACP to disclose its members, which the Supreme Court ruled unconstitutional in NAACP v. Alabama (1958). In that decision, Justice Harlan argued, "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Yoo and Marston suggest that "the only purpose of the executive order is to dangle the specter of retaliation (by losing [their] contracts) and harassment (from political opponents)."
A quick read of the Supreme Court's unanimous decision in NAACP v. Alabama reveals that the case is far more easily distinguishable from the pending executive order than Yoo and Marston would have us believe. As in all due process cases involving the First Amendment, the Court in NAACP v. Alabama needed to balance the burdens that Alabama's request placed on the First Amendment rights of the NAACP members against the compelling interest that Alabama asserted as its justification for requesting the information. Alabama claimed that the membership information was necessary to determine whether or not the NAACP was conducting intrastate business in violation of the Alabama foreign corporation registration statute.
The Court dismissed this as a sufficiently compelling state interest to justify the burdens the request placed on free association. Justice Harlan wrote, "Without intimating the slightest view upon the merits of these issues, we are unable to perceive that the disclosure of the names of petitioner's rank-and-file members has a substantial bearing on either of them." I, however, will not hesitate to intimate that Alabama's true interest had little to do with regulating intrastate commerce and everything to do with suppressing civil rights activity in the state.
President Obama, in issuing his executive order, is acting in order to fulfill a very different state interest, and one that has been repeatedly recognized by the Supreme Court--the prevention of corruption or the appearance of corruption. Since the landmark campaign finance reform case Buckley v. Valeo (1976) equated money with speech, campaign finance regulation has received sanction or prohibition from the Supreme Court largely according to the metric of whether or not it is narrowly tailored to keep corruption out of our political system or bolster public confidence that no corruption is occurring.
The Reform Movement advocates for campaign finance reform based on similar principles. The Talmud warns of the corrupting influence gifts can have over elected officials, saying, "[A]s soon as a man receives a gift from another he becomes so well disposed towards him that he becomes like his own person, and no man sees himself in the wrong." When unlimited amounts of money are being spent on behalf of elected officials, there is a real danger that they will not be able to help acting in the interest of their corporate sponsors, and the public has a right to know what interests are mobilizing resources in competition with the financially impotent general will of the people.
Moreover, in Citizens United v. FEC, eight Justices agreed that the very type of disclosure requirements the executive order would establish are an acceptable means for the government combat corruption. In fact, the Court invited Congress to pass disclosure requirements for corporate political spending. Eight Justices on the Citizens United Court did not find the risk of retaliation or harassment a credible reason to forbid disclosure, explaining, "Citizens United, however, has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation."
If, under the executive order, corporations voluntarily forego access to government contracts in favor of a shroud of political anonymity, kol hakavod, but that does make not make their "plight" analogous to the threat that civil rights activists endured every day under the unrestrained and undemocratic police power of the Jim Crow South. If corporations wish to muster their financial might to engage in political activity, for better or worse, that is their Constitutional right under the current Court's interpretation of the First Amendment. But the public has the right to know who is spending money and wielding influence. How should the public render judgment on whether or not it is being well-represented if we have no way of determining if our elected officials are responding to their constituents needs or those of anonymous donors? The President should be commended for reestablishing sensible minimum safeguards in this Wild West of corporate spending.