consultants are sandburs

Sunday, December 13, 2015

Campaign contribution bans imposed upon those who contract with the government, or at least regulations differentiating such a class, and then what if specific licensees are constrained while others are not?

One thing went under Crabgrass radar earlier, but some things are better recognized late than never.

Notice was via encountering a Hamline University professor's op-ed online at TPM, "A Federal Court Just Threatened Citizens United, by David Schultz Published July 8, 2015, 9:00 AM EDT," stating in part:

Yesterday, the U.S. Court of Appeals in Washington ruled 11-0 that a ban on federal campaign contributions by individuals who contract with the government is constitutional. After a wave of controversial decisions by Supreme Court that have unleashed a flood of big money into politics, this appeals court decision sends a clear message: Sometimes, more money in politics can be a very bad thing.

Americans agree. According to a poll from the New York Times, some 85 percent of the American people believe that the way political campaigns are funded needs either "fundamental changes" (39 percent) or "a complete rebuild" (46 percent).

Money has become central to American politics. Spending in the 2016 presidential election alone could top $4 billion, with the winning candidate having to raise $1.5 billion.

[... Supreme Court "money speaks" precedent reviewed, read it in the original] So can anything be done?

Actually, yes. All hope is not lost. And yesterday’s court decision is a step in the right direction. America need not wait for Congress or the Supreme Court to come around. The president and various federal agencies have the power to make several small but important reforms. Here are four:

1) The president could issue an executive order to require federal contractors to disclose all political contributions they make and to bar contractors from bidding on federal contracts for two years if they spend too much to influence a federal race or a member of Congress.Yesterday’s ruling upholds a ban on individual “pay to play” contributions to prevent conflicts of interest or undue influence. A new order could build on that ruling.

2) The Securities and Exchange Commission could make a rule requiring publicly traded companies to disclose all expenditures of money for political purposes and to obtain shareholder assent to use money for these purposes.

Additional very sensible reform steps follow the first two, and concluding content in the online item is worth reader attention.

The item omitted a citation to the actual opinion the DC en banc appellate court issued, re case facts and court rationale.

That led to this websearch, showing the case gained substantial media attention so that missing it when current a few months ago is a surprise.

The case is Wagner v. FEC, with the 2015 en banc slip opinion online here. Google Scholar search return links of interest, here, here and here, presenting respectively online the earlier appellate case per curium panel opinion (717 F.3d 1007 (2013)), the GS "how cited" page, and a trial court summary judgment opinion on a separate issue, Holmes v. FEC, subsequent to the Wagner panel opinion and citing it, but prior to the release of the Wagner en banc opinion.

Whether the en banc opinion has been officially published was not determined from the extent of link following done, so no Federal Reporter 3d citation is given here, and there may not be one.

Press and related links of interest, N.Y. Times, 2012, on "The Wall Between Contractors and Politics;" a PublicCitizen 2012 memo, "Pay-to-Play Laws in Government Contracting and the Scandals that Created Them;" and related to a Crabgrass post from yesterday, "Illinois Cannabis: Whatever Happened to Free Speech? - By Tyler Anthony on November 24, 2015;" see also, e.g., here, here, here, and here.

The Illinois Cannabis item is interesting because only a very narrow and specific class of contractor (licensee) persons have their "speech rights" curbed; whereas other licensee classes such as regular pharmacists, or lawyers or physicians are not equally barred and curtailed. Growing opportunity to cash in big time is a different thing from established long-standing learned professions; that is a distinction, but is it one with a true substantive difference? Innovative entrepreneurs in high tech areas are not equally constrained, despite innovation there at the right time having grown Apple and Microsoft billionaire innovator status - but in open market situations not involving limited licenses. With the item dated last month, recency cuts against having any definitive view of the question presented.

Omitted by error in the above, a hat-tip link to, this link, for linking to the TPM item; see also, here and here.

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