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by
Hans A. von Spakovsky

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April 26, 2011 - 3:20 pm

PJ Media broke the story last week about the draft Executive Order being circulated by the White House that would implement portions of the DISCLOSE Act on federal contractors.  Now Sen. Susan Collins (who oversees federal contracting as the ranking minority member of the Homeland Security and Governmental Affairs Committee) and Minority Leader Mitch McConnell, along with 25 other Republican senators, have sent a letter to President Obama expressing their concerns over the draft EO.

They point out that requiring government contractors to disclose information about campaign contributions and other political expenditures “would have a chilling effect on the First Amendment rights of individuals to contribute to the political causes or candidates of their choice.”  Prospective contractors would obviously “fear that their livelihood could be threatened if the causes they support are disfavored by the Administration.”  The fact that the White House would require such information to be submitted to the contracting agencies before those agencies award federal contracts would give “at the very least, the appearance that contract award decisions could be predicated on – or influenced by – political contributions or considerations.”

As the letter correctly points out, in the name of keeping politics out of the federal contracting process, the draft EO would actually “make political considerations a part of every federal contract offer.”   It then asks President Obama to answer a series of six questions, ranging from how the political contribution information would be used to whether the “Administration intend[s] to extend these requirements to unions…”  It will be interesting to see what, if any, response is made by the White House to the very serious legal, constitutional, and public policy concerns raised by these senators.

Click on ‘more’ to read the senators’ press release. And here is their letter to President Obama. And uploaded to Scribd.

WASHINGTON, D.C. – U.S. Senator Susan Collins and Republican Leader Mitch McConnell have sent a letter to President Obama, signed by 25 of their Republican colleagues, which is critical of  a prospective  Executive Order (EO) requiring federal agencies to collect information about the campaign contributions and other political expenditures of potential contractors before awarding any federal contract.   Senator Collins is the Ranking Republican on the Committee on Homeland Security and Governmental Affairs which oversees federal contracting.

The letter contends that in the name of keeping politics out of the contracting process, the proposed White House policy draft would apparently make information about political contributions a part of every federal contract offer.   It emphasizes that taxpayers should receive the best value for federal contracts and thus government procurements must be conducted in a manner that ensures a fair process, free from politics.

The letter states:  “We are concerned that the requirement to provide such information to every contracting agency as part of every contract proposal could have a chilling effect on the First Amendment rights of individuals to contribute to the political causes or candidates of their choice.  Political activity would obviously be chilled if prospective contractors have to fear that their livelihood could be threatened if the causes they support are disfavored by the Administration.”

The Senators go on to write that “the fact that the EO would require such information to be submitted directly to contracting agencies creates, at the very least, the appearance that contract award decisions could be predicated on—or influenced by—political contributions or considerations.”

The Senators ask the President to explain how information regarding political contributions of potential federal contractors would be used in making decisions about who wins a federal contract?   The letter also requests any legal or other analysis the Administration has conducted to determine that requiring two years’ worth of information about political contributions from potential contractors prior to awarding contracts would not chill the First Amendment rights of these contractors.

In addition to Senators McConnell and Collins, a complete list of the signers to the letter to the President is below.

Orrin G. Hatch

Charles Grassley

Kay Bailey Hutchison

Olympia Snowe

Jon Kyl

Pat Roberts

Jeff Sessions

Mike Enzi

Saxby Chambliss

Lamar Alexander

John Cornyn

Tom Coburn

John Thune

David Vitter

John Barrasso

Roger Wicker

Mike Johanns

Scott P. Brown

Dan Coats

Roy Blunt

Rob Portman

Marco Rubio

Ron Johnson

Mike Lee

Kelly Ayotte

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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