The Executive Action Obama Could Take to Restore a Shred of Democracy to Our Politics

Has President Obama given up on using executive action to try to spotlight and rein in some of the corrupt ways money, power and influence work in Washington?

After the U.S. Supreme Court issued its Citizens United ruling in 2010, freeing corporations to contribute to non-candidate political committees (the same outfits that today are getting multi-millions from billionaires and flouting the law by openly supporting presidential picks like Ted Cruz and Marco Rubio), Obama criticized the Supreme Court’s right-wing majority during his nationwide State of the Union speech. Five years later, in 2015’s State of the Union, President Obama called for better rules governing campaigns, saying, “A better politics is one where we spend less time drowning in dark [anonymous] money for ads that pull us into the gutter.”

But appealing to better angels has not exactly advanced democracy reform or many other issues in Washington. If there’s one thing congressional Republicans fear and also reluctantly respect—even as they draft bills to thwart it or file suits in federal court—it's Obama’s power to issue executive orders dictating how the federal government works.

Obama could issue an executive order requiring the federal contractors who received close to half a trillion dollars annually in taxpayer funds to publicly report their political donations in federal campaigns. This is not a ban on political giving. This is not a ban on lobbying. This simply would require firms doing business with the federal government to publicly state who they are supporting. That step, at least theoretically, might expose or slightly curtail Washington’s culture of trading campaign cash for follow-up contracts. Corporate America might not like it, but there are longstanding legal precedents that allow a president to issue executive orders to safeguard taxpayer expenditures.

“There are few forms of corporate electioneering expenditures that citizens and taxpayers might more likely view as having a potentially corrupting influence than those by businesses that generate their income by obtaining taxpayer-funded government contracts,” said a March 2015 report by Public Citizen. “In recent years, the Obama administration has contemplated issuing an executive order that would require businesses receiving substantial federal contracts (and the top executives of those businesses) to publicly disclose their political contributions.” 

Public Citizen found that 11 of the 15 biggest federal contractors did not fully disclose their donations to the kinds of political committees unleashed by Citizens United and subsequent federal court rulings. They were defense, health and insurance giants Lockheed-Martin, Raytheon, General Dynamics, Northrop Grumman, McKesson, Humana, Hewlett-Packard, General Electric, Honeywell International, Merck, and United Healthgroup. 

In 2011, progressive campaign reformers almost got Obama to issue that order. But the blowback from corporate lobbyists like the U.S. Chamber of Commerce and its puppets in Congress was so intense that the president who sent Navy Seals after Osama bin Laden backed down. It is worth revisiting what happened, because it reveals that an essentially innocuous measure is seen as deeply threatening to corporate America. One of the advocates pushing the White House recapped events in an e-mail:

“Obama was about to issue the transparency executive order in 2011. Following protocol, he distributed the draft EO to agency personnel for feedback before formalizing the order. Somehow, [GOP voter fraud propagandist] Hans von Spakovsky got a hold of it and released it to the congressional Republicans, who immediately rallied to stop the EO. They passed riders to appropriations bills, led by [Oklahoma Republican Tom] Cole, that would prohibit Obama from requiring political spending disclosures from government contractors "as a condition of" applying for a government contract. The Republicans showed their propensity of believing in some vast Obama conspiracy to use the government to reward friends and punish enemies, and thus passed legislation to prevent such disclosures during contract negotiations.

“The reform community then appealed to Obama to issue a transparency EO for government contractors after they received a contract in order to get around the riders. But Obama never again brought the issue forward.

“[Republican Maine] Sen. [Susan] Collins responded to our new requests by pressing for legislation that would prevent such disclosures via EO at any time, but since Obama quit pushing the measure, Collins’ legislation never went anywhere… In 2014 and 2015, the reform community once again has been pushing for the transparency EO after government contracts are awarded, but Obama has again remained silent on the issue up to this point in time.”

How far would an executive order go in changing Washington’s legal but corrupt culture of money, power and influence? It might not vastly change how taxpayer funds are spent or who wins contracts very much. But it would peel back a big layer of secrecy that now surrounds institutional corruption in Washington, whereby insiders who can afford to contribute to political campaigns reap the profits by winning contracts from victors.

It’s worth asking this question because the agenda pushed by seasoned pro-democracy reformers these days seems to be shrinking when compared to the ever-brazen abuses that have arisen in the 2016 presidential race—such as super PACs amassing eight- and nine-figure sums, openly coordinating with candidate campaigns and not disclosing donors. These reformers are not the idealists who are fraudulently claiming Citizens United  will soon be overturned with an about-to-be-passed U.S. constitutional amendment, but the groups that this week touted electoral victories in Maine and Seattle that expanded public financing options, such as Demos, the Brennan Center, Common Cause, Every Voice and others, that Thursday called on new House Speaker Paul Ryan to curtail privately funded overseas trips for members.

Obviously, the president has to be smart about what fights he picks, because—as was the case with his executive orders on immigration—it’s likely he will face blowback from the GOP. But if these progressive campaign reformers believe that the victories in Maine and Seattle are an indication that the public is fed up with top-down, insider-driven political corruption, then they should urge a president who has long expressed frustration with the campaign finance status quo to use his executive powers and act.  

Even Larry Lessig, the Harvard law professor-turned-anti-corruption crusader who this week suspended his 2016 Democratic presidential campaign that was centered on a single issue—getting Congress to regulate how political money is raised and spent as the critical antidote to institutional political corruption—could urge his more than 50,000 donors to pressure Obama.        

Right now, however, it appears Obama is not willing to issue that order because it will provoke a political fight, and he purportedly has other priorities for executive action in his final 14 months in office. But maybe public pressure from reformers and the private realization that the Republican 2016 candidates supported by super PACs are a threat to his legacy will push him to change his mind.