In Wednesday’s Wall Street Journal, David Marston and John Yoo argue against disclosure of political expenditures by government contractors — in anticipation of an Executive Order that would require this transparency. They argue that a case from the 1950s, NAACP v. Alabama, forecloses this type of disclosure. The only problem with this argument is that the Supreme Court has already said the disclosure of money in politics is perfectly constitutional.
The authors accuse the president of trying to undo Citizens United, but this is a rhetorical sleight of hand because this case stands for disclosure of political money. In Citizens United, the plaintiffs tried unsuccessfully to hide behind the NAACP fig leaf. Citizens United argued to the Court that disclosure requirements would chill donations to their organization “by exposing donors to retaliation.” The Supreme Court did not find the risk of harassment plausible or a credible reason to excuse the organization from FEC disclosure. In fact, the Supreme Court rejected this argument 8–1. As the Court explained, “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.”
Marston and Yoo also use the California Prop. 8 case as an example of why political speech should be anonymous. But back in the real world, in the actual Prop. 8 case, the district judge ruled in favor of transparency in rejecting the application of NAACP to a group called Protect Marriage. The district court found that a group supporting heterosexual marriage was not “vulnerable to the same threats as were … the NAACP.”
Furthermore, the district court in the Prop 8. case was unpersuaded that an injunction of the California disclosure law should issue because the harassment that had been alleged was properly a matter for the criminal authorities. Rather, this court found that the plaintiffs in Protect Marriage were trying to shield themselves from any response: “Plaintiffs’ exemption argument appears to be premised . . . on the concept that individuals should be free from even legal consequences of their speech. That is simply not the nature of their right.” So while transparency opponents like to trot out Prop. 8 as a boogey man, the judge who had all of the evidence in front of him rejected the NAACP argument full stop.
At the Supreme Court, eight of nine Justices are for the disclosure of political spending. The one hold out is Justice Clarence Thomas who is alone in thinking there is an absolute right to spend on politics anonymously. John Yoo clerked for Thomas. Is it a coincidence that Yoo would parrot his old boss’s view? Perhaps not. But it is worth remembering that the other eight justices have rejected Yoo’s premise decisively.
The authors are wrong on the law and they are wrong on the policy. Government contractors can’t give directly under the Hatch Act, but they can funnel money through opaque intermediaries like the U.S. Chamber of Commerce. If this is the tactic, it should be done in the light of day where we can see if the political spending lines up with large federal contracts—especially the ones that are no-bid.