On April 13, the administration issued a draft executive order ". . . to increase transparency and accountability to ensure an efficient and economical procurement process," mandating that all bidders on federal contracts must disclose political contributions made within the prior two years.
Nixon aide Dean, who proposed a modest enemies list of "not more than 10" to start, would have been blown away. Federal contractors number in the millions, and their business totals more than half a trillion dollars a year - unlimited opportunities there. The best part: Obama's rationale is to "increase transparency and accountability." Who could object to that?
The Founding Fathers, for starters.
Anonymous political speech is as American as Publius, the nom de plume used by Alexander Hamilton, John Jay, and James Madison for their anonymous newspaper articles, now known as the Federalist Papers. Indeed, one of the seminal events that led to the Framers' understanding of freedom of speech and the press - the libel trial of John Peter Zenger - involved the British prosecution of a colonial printer who refused to identify the author of attacks on New York's royal governor.
Not surprisingly, the Supreme Court has consistently protected political speakers from government compulsion. Anonymous political speech, in the words of the court, enjoys "an honorable tradition of advocacy and of dissent," and anonymity serves as "a shield from the tyranny of the majority."
The landmark decision, NAACP v. Alabama, established the importance of anonymity for the protection of civil rights advocates. In numerous subsequent decisions, the court has steadfastly protected political speakers from forced government disclosure of their identities, consistently opting for anonymity over "transparency" in First Amendment cases.
In Buckley v. Valeo, the first major federal campaign-law decision, the court struck down Congress' efforts to impose spending caps on individuals, and subsequent decisions led inexorably to Citizens United. In these cases, the court has stated: "The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."
Contrary to Obama's assertions in his 2010 State of the Union speech, Citizens United did not change existing federal law that prohibits foreign corporations from making direct or indirect donations, expenditures, or electioneering communications in federal, state, or local elections. Indeed, Citizens United reaffirmed the mainstream of First Amendment cases recognizing the importance of unfettered speech during elections.
But the president seized on Citizens United as a pretext for an all-out assault on the rights of political opponents. His first attempt to sharply limit constitutionally protected speech came with the clunky misdirection of old Soviet propaganda, the DISCLOSE Act (Democracy Is Strengthened by Casting Light On Spending in Elections). It died in the Senate.
Having failed with legislation, the administration now seeks to reverse Citizens United by naked presidential fiat. His proposed order requiring disclosure by government contractors also would mandate disclosure of individual political giving by their officers and directors. Most audacious, it would require disclosure of contributions to "third-party entities" - the Sierra Club or the National Rifle Association, for example - drastically muzzling their speech rights.
But the executive order has a fundamental flaw: The president has no unilateral constitutional power to impose rules on the political system. The proposed order is a blatantly unconstitutional attempt to leverage the executive's limited power over federal purchasing into unlimited power to control First Amendment speech.
The administration's unprecedented assault on First Amendment political speech rights - thinly masked as good government "disclosure" or "transparency" - is indefensible. Anonymous political speech was a cornerstone of American democracy even prior to ratification of the Constitution in 1788. It remains inviolable today. Any president who seeks to undo this basic American right should reflect on the ultimate outcome when Richard Nixon and John Dean tried, using their infamous enemies list, to accomplish that precise objective.
David W. Marston, a partner in the Philadelphia law office of Gibbons P.C., is the former U.S. attorney for the Eastern District of Pennsylvania. John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute; he was an official in the Justice Department from 2001 to 2003. For more on the topic, visit http://www.aei.org/outlook/101066.