Obama's Proposal Violates the Right to Free and Discreet Association
I've got a piece in the WSJ today criticizing Obama's proposal to require all those who want to do business with the the federal government to disclose their giving not just to candidates and political parties, but to any group that engages in political speech. I claim that this violates the rights of individuals to free association, which the Supreme Court says is an important component of the First Amendment. I am certain that if business were not the target, Democrats and civil libertarians would be jumping up and down in protest against this infringement of individual rights. Suppose professors has to disclose their political giving to get a research grant, or students had to do the same to get a federal scholarship, or candidates had to disclose to get a civil service job?
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Aug '10
Re: Obama's Proposal Violates the Right to Free and Discreet Association
Professor Yoo,
How does the case law reconcile the right to discreet association in NAACP v Alabama as compared to the consistent finding (eg, Barenblatt) that Communists who pleaded the first (as compared to the fifth) were in contempt of court/Congress?
Edited on Apr 27, 2011 at 9:57amFeb '11
Re: Obama's Proposal Violates the Right to Free and Discreet Association
I’m starting to take these arguments from conservatives less seriously. — Not that I don’t want to. I’m just not clear in what sense the old rule of law is still capable of effecting anything. If conservatives and liberals cannot even agree on whether the Constitution provides any meaningful limitation to state power, then it becomes nothing more than a political tool, a weapon with which one side hits the other. But in that case, it loses all authority. Now, when I hear: “what the president is doing is blatantly unconstitutional,” I think, “Of course it is. So what? Should I be heartened?”
May '10
Re: Obama's Proposal Violates the Right to Free and Discreet Association
Suppose Presidential Candidates had to disclose their thesis?
Mar '11
Re: Obama's Proposal Violates the Right to Free and Discreet Association
John Yoo: Suppose professors has to disclose their political giving to get a research grant...
I just assumed they were already doing this.
Obama couldn't really mean it. It must be rhetoric to appease the loony left and also perhaps an unsubtle hint to his "donors" that it's time to dig deep again.
Apr '11
Re: Obama's Proposal Violates the Right to Free and Discreet Association
I agree with Prof. Yoo's argument in the WSJ and talking with Prof. Epstein on this week's podcast, but it reminded me of a thought I had during the efforts by Republicans in Congress to defund ACORN and Planned Parenthood. When it comes to grants, instead of contracting for real goods or services, the issue of quid pro quo seems to me a lot greater. I always believe the onus is on the government or politicians to restrict their behavior, not the speaker/donor, but shouldn't there be a way for groups like these (or their conservative counterparts, should they exist) to be prevented from effectively buying millions of dollars of taxpayer support with thousands of dollars in contributions?
Jul '10
Re: Obama's Proposal Violates the Right to Free and Discreet Association
A patient's campaign contributions would be useful for the Obamacare death panels.
Re: Obama's Proposal Violates the Right to Free and Discreet Association
anon_academic: Professor Yoo,
How does the case law reconcile the right to discreet association in NAACP v Alabama as compared to the consistent finding (eg, Barenblatt) that Communists who pleaded the first (as compared to the fifth) were in contempt of court/Congress? ·
I've always been troubled by Barenblatt, but my view is that this is a case that is peculiar to the concerns about the Communist Party. If Congress had been asking a witness about their membership/associations with the National Rifle Association or Planned Parenthood, I am confident the Court would have upheld some right to association as a significant bar to answering questions. But the Court in Barenblatt held that this right, the same one in my view in NAACP v. Alabama, applies differently because of the Communist Party's advocacy of the violent overthrow of the government.
The way I think of this is that of course every right might have to give way before a compelling government purposes. Free speech, for example, does not protect conspiracy or fraud. Similarly, the right to association, in my view, does not protect terrorist groups or criminal gangs. The problem with Obama's executive order is that there is no real compelling interest at stake here that might even be balanced against the right to association -- this information is simply not relevant to deciding on awarding government contracts. Instead, the interest here is political and unrelated to the government programs.
Edited on Apr 27, 2011 at 2:48pmAug '10
Re: Obama's Proposal Violates the Right to Free and Discreet Association
John Yoo
...
The way I think of this is that of course every right might have to give way before a compelling government purposes. ... The problem with Obama's executive order is that there is no real compelling interest at stake here that might even be balanced against the right to association ...
Thanks, your answer was very helpful and I particularly appreciate your explanation of why NAACP v Alabama is the more relevant precedent for this issue.