John Yoo Makes Tortured Defense Of Corporations Secretly Buying Elections

In an essay published by the conservative American Enterprise Institute, torture memo author John Yoo brings his unsurpassed ability to pretend the Constitution says whatever conservatives wish that it said to the subject of whether President Obama can issue an executive order requiring government contractors to disclose their political donations:

The proposed executive order making disclosure of political giving history a condition to being awarded a federal contract makes some of the Nixon-era “dirty tricks” look almost quaint by comparison. […] As the Supreme Court has made clear, anonymous political speech enjoys “an honorable tradition of advocacy and of dissent,” and anonymity serves as a shield “against the tyranny of the majority.” Any president who seeks to undo this centuries-old American constitutional right by the fiat of an executive order would be prudent to reflect on the ultimate outcome when Richard Nixon and John Dean tried, using their infamous enemies list, to accomplish that precise objective.

If there is anyone in the universe who should think twice before criticizing a government lawyer for enabling a president to break the law, it is John Yoo. And while Yoo certainly spares no adjective in arguing that preserving the integrity of American democracy is an impeachable offense, he might also want to consider actually reading what the Supreme Court has to say about disclosure laws before drafting articles of impeachment against President Obama.

In an obscure case called Citizens United v. FEC, the Supreme Court held that “disclosure could be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” President Obama’s proposed executive order provides the electorate with information about the sources of election-related spending. So Yoo’s entire argument can be rebutted in exactly two sentences.


Elsewhere in his essay, Yoo comes to the defense of poor, innocent corporations that may lose their ability to deceive their customers and investors:

After disclosure of a contribution by the retailer Target to MN Forward, a conservative Minnesota political group that supported a gubernatorial candidate who was opposed to gay marriage, proponents demanded that Target also support pro-gay candidates. Target refused. MoveOn organized a widespread boycott and flash mobs appeared at Target stores; the retailer countered by suing protesters. In the seconds it took for a Facebook video of the boycott to go viral, Target’s established reputation as a gay-friendly company was shredded. After institutional investors protested the “misalignment” between Target’s Minnesota political spending and its professed corporate values, Target announced that future political contributions would require the approval of an internal policy committee.

In other words, Target misled the public by calling itself a gay-friendly corporation, when it actually was secretly funding an anti-gay effort. Yet, because of disclosure, it was no longer able to maintain this charade and forced to end its two-faced practices. In Yoo’s twisted understanding of the world, this is a great tragedy and not a compelling argument for why disclosure laws are necessary.

Given Yoo’s role in the Bush administration’s torture policy, asking him to express a legal opinion is a bit like asking Don Draper for advice on marital fidelity. Even so, Yoo’s defense of corporate America’s power to secretly buy elections is weak even by his own tragically incompetent standards.