‘Audacious Executive Action’

 White House Looking to Force Political Test for Federal Contracts In Spite Of Explicit Ban On Such Action By Congress


WHITE HOUSE CHIEF OF STAFF DENIS McDONOUGH: “We’ll do audacious executive action throughout the course of the year — I’m confident about that.” (“President Obama May Require Federal Contractors to List Campaign Gifts,” The New York Times, 1/19/2016)

SEN. McCONNELL:Apparently, President Obama is again considering imposing his Enemies List regulation by executive order — just weeks after Congress voted overwhelmingly to pass, and the President signed into law, legislation prohibiting him from doing that very thing.” (Sen. McConnell, Floor Remarks, 1/20/2016)


Reports: Obama ‘Weighing’ Executive Action

“President Obama is weighing whether to invoke his executive authority to force federal contractors to disclose political contributions they make to independent groups, according to individuals briefed on the matter.” (“Obama Weighs Whether To Force Federal Contractors To Reveal Political Spending,” The Washington Post, 1/20/2016)


Law ‘Bans President Obama From Issuing An Executive Order Requiring Government Contractors To Disclose Their Political Spending’

“Another rider attached to the budget bans President Obama from issuing an executive order requiring government contractors to disclose their political spending, including donations to nonprofit groups engaged in elections, as a condition of submitting a bid. As HuffPost has previously reported, this does keep alive the prospect of an executive order mandating disclosure from contractors after they have secured their contract.” (“Congress Is About To Make Citizens United Even Worse,” The Huffington Post, 12/16/2015)

“To forestall another proposal along these lines by the Obama administration, which first surfaced in 2011, the omnibus (Sec. 735) also prevents federal funds from being used to force any entity making a bid on a government contract to disclose contributions ‘to a candidate for election for Federal office or to a political committee’ made by the bidding entity or its officers or directors.” (Hans von Spakovsky, “Congress Thwarted Part of Obama’s Assault on First Amendment in Wasteful Omnibus Spending Bill,” CNS News, 1/06/2016)

“Congress took steps to keep the public in the dark by approving the Omnibus Appropriations Act earlier this month. The act bars the Internal Revenue Service from imposing further regulations on campaign operations that masquerade as nonprofit social welfare organizations. The bill seeks to bar the federal government from insisting companies with federal contracts disclose political donations, and limits the Securities and Exchange Commission’s ability to require publicly traded corporations to list their campaign donations.” (Editorial, “Ann Ravel Gets Points For Trying To Force The Federal Election Commission Into Action,” The Sacramento Bee, 12/26/2015)


This Prohibition Has Been Included In Appropriations Legislation For Years

“In 2011, President Obama drafted an order that put some limits on political donations by federal contractors — such as during the negotiation process of a contract or while a contractor is actively working on one — and proposed to increase the transparency of giving by companies attempting to secure federal deals. . . . Then, in 2014, Congress approved a provision in a spending bill that effectively killed the intent behind the draft executive order. The language, which sets forth that campaign contribution disclosure could not be required for companies bidding for federal contracts, has been reauthorized in every appropriations bill since.” (“Obama Urged To Impose Rules On Campaign Spending Disclosure,” The Hill, 3/03/2015)


The Facts Of The Law President Obama Signed

President Obama Signed Into Law H.R. 2029, The Consolidated Appropriations Act, 2016, On Dec. 18, 2015. (“Signed Legislation,” The White House, Accessed 1/20/2016)

Text of Public Law 114-113, Division E: “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.” (PL 114-113, Division E, Sec. 735, 12/18/2015)


Key Democrats: ‘Serious Questions’ About ‘Injecting Politics Into The Contracting Process'

REP. STENY HOYER (D-MD): “The issue of contracting ought to be on the merits of the contractor's application and bid and capabilities… There are some serious questions as to what implications there are if somehow we consider political contributions in the context of awarding contracts. … I'm not in agreement with the administration on that issue.” (“Hoyer Opposes Obama's Political Contribution Disclosure Plan,” The Hill, 5/10/11)

SENS. CLAIRE MCCASKILL (D-MO), ROB PORTMAN (R-OH), SUSAN COLLINS (R-ME) and Former SEN. JOE LIEBERMAN (ID-CT): “… we are concerned that requiring businesses to disclose their political activity when making an offer risks injecting politics into the contracting process.  Federal contracting law already precludes the consideration of political activity in evaluating contract offers.  Under the Federal Acquisition Regulation, the award of contract must be based on the evaluation of quality, price, past performance, compliance with solicitation requirements, technical excellence and other considerations related to the merits of an offer.  The requirement that businesses disclose political expenditures as part of the offer process creates the appearance that this type of information could become a factor in the award of federal contracts.” (Sens. Portman, Lieberman, Collins & McCaskill, Letter To President Obama, 5/12/11)



Related Issues: Executive Orders, First Amendment