Last week, the US Court for the District of Columbia rejected a challenge to a longstanding federal law that bans federal contractors from contributing directly to candidates in federal elections. The decision by the court recognizes the constitutionality of imposing restrictions on political contributions in order to prevent corruption and the appearance of corruption. It should embolden legislative and executive branch efforts towards greater transparency, specifically disclosure of dark money contributions by federal contractors.
As the law currently stands, federal contractors who are prohibited from giving directly to candidates may use the wide-open back door provided by Super PACs and 501(c) groups to funnel unlimited contributions to elections. Because there is no disclosure in place, we don’t know how much of the $1 billion of outside money in this election came from federal contractors or what those contractors might expect in return for their investment.
There are two avenues to achieve disclosure of dark money by federal contractors. The first is legislation, like the DISCLOSE Act. If courts are willing to uphold legislatively created bans on contributions from contractors as constitutional, the much more minimally invasive approach of disclosure would also be upheld.
The second option for disclosure of dark money contributions by federal contractors is a presidential executive order requiring anyone who receives a government contract, grant or loan to disclose political contributions to third parties engaged in electioneering communications. A draft executive order requiring such disclosure has been languishing on the President’s desk for too long. To demonstrate his commitment to transparency in his second term, President Obama should issue that order immediately.
The receipt of taxpayer dollars in the form of a federal contract always comes with conditions, including reporting requirements. Disclosure of dark money contributions is a minimally intrusive yet critical tool to provide an additional layer of accountability in the contracting process.