Federal Politics

Published — June 17, 2011 Updated — May 19, 2014 at 12:19 pm ET

Requiring federal contractors to disclose political donations could raise legal challenges

Introduction

The Obama administration is considering an executive order would require government contractors to disclose political contributions and expenditures. In the draft, President Obama cited his constitutional authority and the Federal Property and Administrative Services Act of 1949 (FPASA) to authorize policies to promote efficiency in federal contracting. But the measure has come under harsh criticism from both sides of the aisle, and now the Congressional Research Service is raising some legal cautions.

Contractor-related executive orders historically have been issued based upon the president’s powers under Article II of the Constitution or by FPASA. But if President Obama relies on Constitutional authority alone, rather than the FPASA, he may face challenges regarding separation of powers.

Sens. Joe Lieberman, I-Conn., and Claire McCaskill, D-Mo., have joined Republican criticism against the order. Sen. Mitch McConnell, R-Ky., describes it as “an outrageous and anti-Democratic abuse of executive branch authority.”

The draft executive order is similar to the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress failed to pass.

While federal contractors are currently required to disclose political contributions to candidates, the executive order under consideration requires disclosure of any donation.

The executive branch’s authority to place requirements on federal contractors has been challenged for a number of situations: encouraging the use of project labor agreements (when the government will only offer contracts to unionized firms), requiring contractors to post notices telling employees they are not required to join unions or pay mandatory dues, and using E-Verify to check to citizenship status of employees.

“Presidents from Franklin D. Roosevelt through Barack Obama have issued orders that seek to leverage the government’s procurement spending to promote socio-economic policies that some commentators would characterize as extraneous to contractors’ provision of goods or services to the government,” the Congressional Research Service noted. CRS reviewed 12 cases regarding presidential authority on federal contracting practices.

Executive orders on federal contracting relying on authority other than FPASA might be found invalid due to the ruling of Youngstown Sheet & Tube Company v. Sawyer. In Youngstown, the Supreme Court struck down President Truman’s executive order directing the seizure of the steel mills during the Korean War. But in AFL-CIO v. Allbaugh in 2002, an executive order regarding the use of project labor agreements in federal contracting was upheld due to the president’s constitutional authority on federal procurement requirements.

“Presidents have broad authority under FPASA to impose requirements upon federal contractors. However, this authority is not unlimited, and particular applications of presidential authority under FPASA have been found to be beyond what Congress contemplated when it granted the President authority to prescribe policies and directives that promote economy and efficiency in federal procurement,” the Congressional Research Service said.

FAST FACT: In 2010, federal contracts cost the government $541.1 billion, or about 4 percent of U.S. gross domestic product. About 22 percent of U.S. workers are employed by organizations subject to federal contractors and subcontractors requirements.

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SOUTH JERSEYTed SiroisMark SullivanTom LarkinAnonymous Recent comment authors
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Mark Sullivan
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Mark Sullivan

Trump needs to conduct these activities because the entire MSM media, excluding Fox, is campaigning against him 24/7/365.

Didn’t Monica’s boyfriend’s wife and various criminal enterprises outspend Trump by almost 2-1?

CapitalistRoader
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CapitalistRoader

Why wouldn’t he get an early start on fund raising? Hillary outspent him two-to-one in 2016. The Dem’s are the party of big money. The President knows this and is attempting to get a jump on it. Of course the Dem candidate will outspend him in 2020 so it’s only rational that he starts fund raising now.

George Young
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George Young

Oh brother. We just 8 years of the Campaigner – in – Chief. Where was this journalistic rectal thermometer then. Just another article about 2000 words too long that merely takes another slap at Trump for something he far from initiated.

j stevenson
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j stevenson

The big difference between Trump and all the rest is his refusing to accept funds from lobbyists, so they don’t have the White House access they are used to. These are the donors who buy the presidency and are as pixxed off that he won the election as are the media and the Dems. Lobbyists have never been shut out of the WH and Trump has told them he is not for sale.

Anonymous
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Anonymous

Trump needs to be impeached and tossed in prison. Then have the key thrown away so he will never be free. Then he can see how it feels not to have freedom.

Mark Sullivan
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Mark Sullivan

Thank you for the usual insightful leftist low IQ Snowflake response.

barney
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hes not imprisoning them hes sending them back to their country chill tf out

SOUTH JERSEY
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SOUTH JERSEY

WHY DONT YOU HAVE FREEDOM?

Tom Larkin
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Tom Larkin

First, something positive. I was happy to learn of empirical information in article. BUT, the article was so slanted against President Trump as to be deemed fake news (“Perhaps Trump just lied.” (Two different issues)). The article mentions that President Trump raised over $67 million, but ended 2018 with $19 million. President Trump spent over $40 million 2016 and 2017. President Trump conducted 57 political rallies. The article notes the hats and T-shirts sold, but NEVER MENTIONS THE INCREASE IN THE NUMBER OF REPUBLICAN SENATORS during a mid-term election that lost the House and the number of political rallies in… Read more »

Ted Sirois
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Ted Sirois

At least Trump is getting donations from willing donors. Fresh from his first election, Obama used billions of our children’s tax dollars to save thousands of union jobs in the car industry and bailed out the banks and many Wall Street businesses. This secured his source of reelection funds for his reelection four years later.

South Jersey
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South Jersey

TRUMP 2020; IS AN AMAZINGLY SMART MAN! VERY ORIGINAL & CREATIVE. I AM HAPPY TO HAVE HIS AS POTUS.

SOUTH JERSEY
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SOUTH JERSEY

THIS ARTICLE WAS OBVIOUSLY WRITTEN BY, A TRUMP-HATE-GROUP. THAT FEELS; IT IS NOT NORMAL TO BE SUCCESSFUL WITH YOUR OWN BRAND NAME. WHEN, IF FACT, IT IS NORMAL! >>>>> THIS IS >>> FAKE NEWS!!! <<<< ie: A PACK-OF-LIES; SPUN INTO; DEFAMATION OF CHARACTER. FOR A SINISTER-AGENDA OF; FASCIST DEMOCRATIC SOCIALIST, COUP D'ETAT

David
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David

Are you on some kind of drugs? Writing in caps makes me think that you are grumpy old fart or a uneducated hillbilly.