May 6, 2011

McCarthy to Obama: Speech is Constitutionally Protected

Washington, D.C. – House Majority Whip Kevin McCarthy (R-CA) is calling on President Barack Obama not to issue an Executive Order designed to limit the speech of organizations that oppose the Obama Administration’s policies. McCarthy is joined by 20 co-signers on the letter, including the Chairmen of 19 House Committees.

“Much like the DISLCOSE Act, which failed to garner enough support to pass during the 111th Congress, this proposed EO seems like a blatant attempt to intimidate, and potentially silence, certain speakers who are engaged in their constitutionally protected right to free speech,” McCarthy said in a letter to the President.

Additional signers of the letter include Majority Leader Eric Cantor, Agriculture Committee Chairman Frank Lucas, Appropriations Committee Chairman Hal Rogers, Armed Services Committee Chairman Buck McKeon, Budget Committee Chairman Paul Ryan, Education and the Workforce Committee Chairman John Kline, Energy and Commerce Committee Chairman Fred Upton, Financial Services Committee Chairman Spencer Bachus, Foreign Affairs Committee Chairman Ileana Ros-Lehtinen, Homeland Security Committee Chairman Peter King, House Administration Committee Chairman Dan Lungren, Judiciary Committee Chairman Lamar Smith, Natural Resources Committee Chairman Doc Hastings, Oversight and Government Reform Committee Chairman Darrell Issa, Rules Committee Chairman David Dreier, Science, Space and Technology Committee Chairman Ralph Hall, Small Business Committee Chairman Sam Graves, Transportation and Infrastructure Committee Chairman John Mica, Veterans’ Affairs Committee Chairman Jeff Miller and Ways and Means Committee Chairman Dave Camp.

The text of the letter is below.

May 6, 2011
President Barack Obama
The White House
Washington, D.C. 20500

Dear President Obama:
It has come to our attention that you are considering an Executive Order (EO) that would require federal agencies to collect information from prospective federal contractors regarding their campaign contributions and donations to organizations that may engage in political speech. Much like the DISLCOSE Act, which failed to garner enough support to pass during the 111th Congress, this proposed EO seems like a blatant attempt to intimidate, and potentially silence, certain speakers who are engaged in their constitutionally protected right to free speech.

This draft EO would require business owners, who are bidding on work that is funded by their own tax dollars, to provide federal contracting officers with details regarding political expenditures made by that prospective contractor, as well as that company’s directors, officers, affiliates, and subsidiaries. This reporting would not be limited to campaign contributions directed towards candidates for office, but would also include contributions to third party groups that may use those funds for independent expenditures.

Given that the Federal Election Campaign Act currently regulates the funding and reporting of political speech in federal campaigns, and existing statutes and regulations govern the performance and business practices of federal contractors, it is very difficult for us to find any compelling justification for the new reporting requirements that would be required by this proposed EO.

In addition to the grave constitutional concerns we have, while this proposed EO is touted as a means of keeping the contracting process “free from the undue influence of factors extraneous to the underlying merits of contracting decision making, such as political activity or political favoritism,” if implemented, the opposite could occur. Currently, contribution and expenditure information is not required for the contracting process, thus ensuring that such information does not bias the timely and merit-based award of Federal contracts. By requiring such information to be disclosed to federal agencies prior to the award of a contact, the proposed EO feeds into the notion that the granting or the denial of an award may have been based on whether the Administration viewed the applicant as a political supporter or a political enemy, further driving the cynicism Americans have in their government.

We are very concerned that the net effect of this proposed EO would be stifled political speech, as potential and current federal contractors decide to limit their political speech in order to protect their livelihoods. While we may often disagree on policy matters, we can surely agree that an open and free political process works best for all.

In the interest of free speech and the liberties protected by the First Amendment, we strongly encourage your administration not to issue this proposed Executive Order.

Sincerely,

Majority Whip Kevin McCarthy