By John Yoo and David Marston, The Wall Street Journal
Suppose that during the civil rights movement segregationist governors ordered all state contractors to disclose their political donations in an attempt to expose civil rights supporters to harassment and retaliation. The Supreme Court would have had none of it.
In NAACP v. Alabama (1958), the court barred Alabama from forcing the NAACP to disclose its members. Those justices would have struck down a similar effort to force the release of the NAACP’s financial supporters. They would have rightly viewed it as an infringement of the constitutional right to free association and free speech.
Today President Obama is ignoring the lessons of the civil rights era he claims to revere. According to a draft executive order leaked last week, Mr. Obama plans to require any company seeking a federal contract to disclose its executives’ political contributions over $5,000—not just to candidates, but to any group that might make “independent expenditure” or “electioneering communication” advertisements.
If a small businesswoman wants to sell paper clips to the Defense Department, Mr. Obama would force her to reveal contributions to groups such as Planned Parenthood or the National Rifle Association. These donations are obviously irrelevant to whether she made the most reliable bid at the lowest price. The only purpose of the executive order is to dangle the specter of retaliation (by losing her contracts) and harassment (from political opponents).
It would be comforting if this order had been some aberration produced from somewhere deep in the bowels of the federal bureaucracy. Unfortunately, it was not. This order represents the latest salvo in the Obama administration’s war on the First Amendment rights of its political opponents.
The conflict goes back to January 2010, with the Supreme Court’s decision in Citizens United v. Federal Election Commission. The court held as unconstitutional the McCain-Feingold Act’s limits on the political spending of corporations, unions and other groups. Mr. Obama struck back, claiming that the decision “strikes at our democracy itself.” He trotted out the usual suspects—”big oil, Wall Street banks, health-insurance companies and other powerful interests”—as the winners. He promised that the White House would “talk with bipartisan congressional leaders to develop a forceful response to this decision.”
There was no bipartisanship, but there was certainly a forceful response. Democrats proposed the Disclose Act, which would have muzzled political speech by prohibiting federal contractors from making contributions to federal candidates or parties. Though the act failed to overcome a filibuster last year in the Senate, its supporters remain undeterred.
Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. But before the administration barrels through with this attempt to suppress corporate political activity, it would do well to revisit NAACP v. Alabama.
The court declared that the privacy of group membership and political activity were critical to the “effective advocacy of both public and private points of view, particularly controversial ones.” Privacy can be critical for free speech. “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,” Justice John Marshall Harlan wrote for a unanimous court.
The court went on to recite a litany of potential retaliation—”economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility”—that could deter people from publicly supporting the NAACP. It did not matter, the justices observed, that the harassment would likely come from “private community pressures.” What mattered is that such pressure would be prompted by “the initial exertion of state power.”
Our era of instant mass communication exponentially multiplies this threat. Supporters of California’s Proposition 8, which bars gay marriage, have faced relentless harassment after a federal court refused to bar the disclosure of their identities in 2009. Opponents promptly created a website that used the Prop 8 list to create a map of donors’ homes. Widespread intimidation followed: Some Prop 8 supporters were fired from their jobs, and several of their businesses were boycotted.
Mr. Obama’s executive order threatens to replicate the Prop 8 experience on a nationwide scale. In fact, it requires the release of contractors’ political contributions in a publicly available electronic database to be posted online as soon as possible. It shouldn’t matter here that disclosure would be the price for doing business with the government. In Boy Scouts of America v. Dale (2000), the Supreme Court made it clear that a group did not have to give up its right to associate in exchange for some government benefit.
Civil libertarians and liberals have so far been mum in the face of Mr. Obama’s executive order. They’re likely justifying their silence on the basis that businesses—not unions—will suffer. But if the president succeeds in reducing the free-speech rights of business today, it will be far easier to limit the same rights of other Americans tomorrow.
Imagine the outcry we’ll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.