The draft order also tries to interfere with the First Amendment rights of contractors. It requires them to disclose independent expenditures that can be made legally on everything from politics to grassroots lobbying on issues. This is clearly intended to deter charitable and other contributions to third-party organizations, since the contractors will have to report any such contributions made with the “reasonable expectation” that the money will be used for First Amendment-protected activities.
“Reasonable expectation” is the kind of broad, nebulous legal term that can cover almost any situation that the government — and government prosecutors — want it to cover. This makes it almost impossible for contractors to know what the acceptable legal standard is for engaging in First Amendment activity.
This administration completely mischaracterized the Supreme Court’s decision in Citizens United, especially when President Obama attacked the Court in his State of the Union speech. It misrepresented the intended effects and requirements of the DISCLOSE Act, which former FEC Chairman Brad Smith correctly observed should really have been called the “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections Now” Act.
With this proposed Executive Order, the administration is engaging in a back-door maneuver that promotes transparency only in the form of transparent political gamesmanship. It’s an alarming proposal that should raise great concern among members of Congress and the American public.