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HOERSTING: Potholes in ‘Pennsylvania Avenue Project’

President’s draft order would politicize federal contract bidding process

- The Washington Times - Friday, May 20, 2011

When, early last decade, Republicans were persuaded to accept the entitlement state as a permanent fixture, they abandoned plans to reduce government's role and harnessed it for their own purposes.

House Majority Leader Tom DeLay implemented the infamous "K Street Project," which compiled lists from Federal Election Commission databases of political contributions made by the political action committees of America's largest trade associations. Hundreds of association lobbyists were invited to Mr. DeLay's office and shown their place in a "friendly" or "unfriendly" column. When questioned about the nature of the project, Mr. DeLay replied, "If you want to play in our revolution, you have to live by our rules."

The K Street Project was designed to ensure long-term Republican dominance, but voters sent the GOP packing in 2006 and 2008.

Even with the benefit of Republicans' error, the Obama administration seems bent on an initiative all its own. Call it the "Pennsylvania Avenue Project." By executive order, President Obama would compel corporations bidding on federal contracts to disclose any payments to trade associations or advocacy organizations expected to speak out in the coming election, and all political contributions made personally by the corporation's executives. This comes despite the fact that all corporate or contractor contributions to federal candidates have long been illegal.

On Thursday, House Oversight Committee Chairman Darrell Issa, California Republican, called White House Office of Management and Budget Director Jack Lew to testify about the nature of the draft executive order. The White House would not produce Mr. Lew but instead sent its administrator for federal procurement policy, Daniel Gordon.

With Mr. Lew unable or unwilling to speak about the draft order's origins, Mr. Issa quickly pivoted to ask Mr. Gordon if he could think of any reason why a procurement officer would need to know whether a bidding company or any of its directors had "given to National Right to Life?" Mr. Gordon had no answer.

Speech restrictions shouldn't be implemented by executive fiat. But even if the Obama initiative were enacted by legislation, it still would contain problems.

If the administration aims to combat corruption in federal contracting, the order would do the opposite by adding detailed political information to the sterile practice of finding the lowest bidder.

If it aims to combat corruption in campaign spending, its order cannot do so. Indeed, the draft executive order would import the concept of corruption to independent communications, which is at odds with Supreme Court rulings. Only communications coordinated with candidates can corrupt because they are better viewed as indirect contributions and have long been held to contribution limits of $5,000. The administration's draft order would not limit disclosure to coordinated communications.

If the administration is trying to increase "information" to voters - something the court has blessed in other contexts - this function is covered by the Federal Election Campaign Act. Congress oversees any amendments.

Congress isn't warming to the administration's initiative on contractor disclosure. To the contrary, Democratic Reps. Gerald E. Connolly of Virginia and Steny H. Hoyer of Maryland, are urging the administration to pop this trial balloon. Sen. Claire McCaskill, Missouri Democrat, and Sen. Joe Lieberman, Connecticut independent, have written a letter expressing their concern "that requiring businesses to disclose their political activity when making an offer risks injecting politics into the contracting process."

Members of Congress instinctively understand that any list pairing contracts and campaign contributions can burn elected officials at the very time it chills contributors.

This is something this administration should understand well. Before becoming White House counsel to President Obama, Robert F. Bauer commented on a proposed Lobbying Transparency and Accountability Act of 2005, sponsored at the time by Sen. John McCain. Mr. Bauer noted that under such a law, executives "would have to pause before making and raising contributions, rightly concerned that the filing of their reports not raise the sort of questions that often harden into allegations, then into investigations."

Mr. Bauer has written that the "aim of the sponsors" of political disclosure is as often to halt political activity as bring it to light. This is as true for contributors subject to a transparency law as it was for trade associations found in the "unfriendly" column at the K Street Project.

If the Obama administration initiates its Pennsylvania Avenue Project under the guise of contracting "reform," courts would do well to understand what Mr. Obama's White House counsel understood five years ago: "Disclosure, the hoary 'disinfectant,' is tendered as the most benign of curatives, but it is the means, not the true end, of this new reform initiative."

Stephen M. Hoersting is co-founder of the Center for Competitive Politics.

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