it please the court the fundamental problem with section four forty one see whether view through the prism of the first amendment or the equal protection clause is it a complete lack of fit between the insert purpose of the very statute and the means by which it is carried out the purpose of the statute is to avoid the appearance of impropriety and the possibility of corruption and this fit simply is not there are you  supreme court hasn't use equal protection analysis thought right had a chance to do so and davis and didn't why would we then sure where they well refuse you're out of they did use it in austin course austin was overrule the merits but in austin the court first considered whether the statute at issue they set it is you michigan there was under inclusive and over inclusive it rejected that and then went on to analyze the equal protection claim that unincorporated association were treated unfair were treated better than that corporations so it did reach that the city did reach the merits and on the equal protection claim and treated them separately so we have some history as far as whether one is more sweeping the other on rights votes it depends on how you look at it in one sense if we prevail on our first amendment argument then if corporations are allowed to make contributions at all which of course they're not under for forty one b at this time they would they would also be for bid and be permitted to make contributions as as  contractor's on the other hand if we prevail on equal protection the question of whether four forty one c could be amended to protect clued individuals or corporations from making contributions would be left for another day so i guess it depends on how you view the question of whether one is more sweeping than the other this remorse and i have a you know i have a sort of a general perspective question for you about the field as i read these recent occurred to me this case is actually quite different from other contribution can there's you know there's no risk here that congress is trying to accomplish some of the theories purpose like leveling the playing field or limiting the amount of money in politics or even protecting incumbents this law is focused on government corruption not even general corruption but corruption just in the procurement process and it's focused and it only applies to people participating in the process and only while they're participating so it seems that the theme is actually quite snug and it doesn't raise all these concerns that lurk behind the other c wondering whether you think that's a fear description of what we've got or well i would first agree with your honor that this statute is different from all the rest because it's an absolute ban every other statute that the call that wasn't my question know what an absolute but i'm curious to your reaction about the context i tried to put the case where your are different from other cases it is because of this but i think it's different in another way and that is if you go back to the legislative history of this the reason this was put in in one nine hundred forty it was put in at a time when we had holmes's view that the government could forbid anyone from becoming a good if you want to become a policeman you were essentially a second class citizen and the theory at the time was that if you were a government employee or for or in this case a government contractor congress could for biju from making contributions as a condition of you becoming a government contractor that is no longer the law it's clear that accepting money from the federal government as an employee as a contractor or i agree with that and right ok if we're talking about some sort of suspect motive that's the suspect motive but i don't think we have to show suspect motive i think we just have to show that it's either under inclusive and under inclusive and over inclusive under the under the first amendment pick up on judge hills question while the holmes view is not the current view it is still the case that the government has authority to regulate its own workforce more fully than it could regulate private citizens i agree there's a tradition of ethics rules on government employees and contractors that are much more stringent why isn't this case better viewed as a is really a government ethics case than a than the kind of campaign finance case that we've seen in recent years if the analogy is to federal employees of course federal employees are not limited in contributions i understand that  priest from the f e c who are sitting here at my left are entitled to make contributions in any amount except to members of congress there's a different package of ethics rules on government employees as you well know and different package on contractors but the basic point is that in terms of government ethics regulation government employees traditionally this is not some novel or outlier law traditionally have been subject to much more stringent ethics regulation and so to contractors to some degree as well and that that history seems to be something that we should pay particular attention to i agree that government employees and federal contractors can in appropriate cases be subject to more strict regulation we would apply to ordinary citizens as cases like n t e u show there are plainly limits on what federal employees can can be made to do or not permitted to do and the question here is is the fit close enough and i suggest you that it's not morrison you're looking at ten or maybe eleven government employees who cannot make a contribution of any kind to any federal employee to any any federal candidate or campaign committee is the code of conduct which bars each one of us from making difference no i didn't say that your honor i guess i would have to ask a quick question i would say that the that the appearance of giving money to federal candidates or persons before whom you may appear is it is there's no corruption issue there is no chance that anybody we give money to is going to help with the corruption since we all have lifetime appointments so the real purpose behind the ban on our own giving is one such kavanagh just mentioned which is the importance of judiciary and likewise the civil service to appear nonpartisan and to not be appearing to be contributing to a campaign so isn't that yet on top of the norm in addition all the things that judge which makes this case different from the usual case this is also different from the usual questions about whether bans on campaign contributions are first amendment problems in that they imply it's cavanaugh said also to government employees so we have not only the concern about quid pro quo corruption and the appearance there of but also the concern about the neutrality of the civil service i agree your honor that the neutrality of the civil service and the judicia very important it would sustain it congress has made a decision with respect to the trial of the federal service that banning contributions is not an essential element well it has done other things which may be more strict with respect to federal employees as you know under the hatch act so there's a better different kind of balancing here and it's given them the protection of the merit system protection board which is not available to the independent contractors so there's congress is if you're saying th congress has made this determination and we should defer to it then you're pretty much talk yourself out of court having well your honor if if congress had actually sat down with the federal election campaign act in mine with it's the very many changes in  the federal contracting process that have taken place from one nine hundred forty and it actually sat down and said this is the ballots we're striking at as it did with the hatch act both in one nine hundred thirty nine and again in one nine hundred ninety three when changes were made we might have a different situation they didn't think this law was precipitated by skin in the forty's yes or in congress the end all contributions by contractors and since then the only major change is that the government contracting has become a far larger percentage of government work communicate anything it's of much greater concern isn't today than it was many years ago where you are i would i would point out two things first there was a funded by the corporations who are contractors and those pacs can make the identical contributions that my clients cannot make in addition corporate officers can make contributions corporate shareholders mr armstrong you should that could be that could be a problem under supreme court precedent on strict scrutiny under the first amendment but i want your honor that the most recent case in the kitchen case while not directly on point demonstrates clearly that the closely drawn standard has great and as you know that has been discussed this is a particular type of regulation of individuals who are in close working relationship with the government working for the government under contracts and it applies only during the time they try to acquire to hire that contract or are serving under that contract and so what i'm trying to figure out is how do cases like board of county commissioners resume their building on the pickering standard for regulating employees speech factor into they influence the closely drawn scrutiny in a way that would give greater deference to the government or should we be applying those standards in a closely drawn the more balance inside you know how do those two lines of authority interact in this context which is very different than the factual context of mccutcheon i agree with your honor that there are many strands of supreme court jurisprudence that are at issue in this case and this court requires this case requires the court to deal with the intersection i think that in the campaign finance area because it's first amendment and as we say also equal protection that the court is being as been very solicitous of the right to make any contributions at all and so as the court s while we don't apply strict scrutiny we will look at the nature of the activity being regulated here a ban we'll see how broadly it's we will look at other alternatives and valmont the corporate pac could make the contributions here but when have they been solicitous of contributions by individuals either working for the government or under a contract with the government anymore so beyond the balance struck in america i agree with your honor that the court has not faced that question because under the  employees are concerned they are permitted to make contributions there with contractors i know of no case in which the first amendment on a contract is the nasa case which we cited in our brief the court said with respect to background investigations since contractors  employees are like we should treat them similarly and that's what we're asking for here treat them the same as the employees yes there are differences yes the merit system protection board protects employees but there are provisions in the government contracting laws that give contractors who think they have been treated unfairly the right to go to court to make protest and they're not exactly the same because they aren't the same much as i do since you are citizens united which is obviously a pro free speech decision specifically carves out from your perspective scars out letter carriers as the as a precedent that it's approved proving of and letter carriers of course was a case that said federal service is different in the line quote it is federal service should depend on meritorious performance rather than political service that seems to be exactly what the government is relying on here and that side with approval in citizens you know but of course there was no ban on employees making contributions in letter carriers and the i don't disagree that there is authority for the congress to regulate the activities of contractors and employees differently from what they would regulate the activities of ordinary citizens do you think congress could be in federal employees from all contributions i do not believe so your honor because i don't think that the justification is there for it of for if we're talking about low level federal employees somebody who works as a custody and or a secretary to make contributions seems to be that that would be excessive under the first amendment it would be overly broad and of course we would also look to see whether it's under inclusive as well examinations that this court and the supreme court has it's just that upon argument is that it makes no sense to draw the line in the way the statute does because it includes contractors but it doesn't include the officers of corporate contractors and also their political committees which are required to bear the same name and so forth so i guess one question i had about that though is there is something a little bit about a doctrine that says that this is a violation of the first amendment or the first amendment views through the equal protection clause because it doesn't restrict  i looked at the green party decision which i know the parties are both familiar with from the second circuit and that involved a contribution ban that did extend to corporate officers and what was interesting about the analysis in that case is the court sustains it but barely and they say it's it seems like it's almost over  broad in order to sweep within this corporate officers but we're going to hold our nose and we're going to sustain it now seems kind of strange to say well that was barely constitutional but it turns out it was actually constitutionally compelled the green party cases i read it your honor stands in part for the proposition that it was a stain of will because they close the loophole that the green party said it would make no sense the court said to allow to ban corporations from making the contributions but to allow the owner of the corporation who has the same name as the company i didn't read the decision that way i thought what they said was that it it might well make sense we are very troubled by the extension of a lot to cover corporate officers as well because it restricts more speech but because the legislature gets substantial leeway in this area we're going to stay in it but the flip side of that it seems to me is that the legislature should have freedom to decide that it doesn't want to restrict more speech by extending the law to corporate officers course there is a another distinction and that case and that is that the law at issue there was in response to a series of scandals the legislature sat down and consciously drew careful lines precisely the kind of considered legislative judgment that we don't find here bill doesn't go to the question of inclusiveness the classic statement of the closely drawn rule test which comes from buckley and his repeated in his mccutcheon says this may be sustained if the state demonstrates sufficiently important interest in employees means closely drawn to avoid unnecessary abridgement of association all freedoms to the extent that the statute is leaky and allows more first amendment freedoms does not appear to be that inconsistent with the test that the courts employed for closely drawn and when blount we specifically said that under inclusiveness counts only of essential ie doesn't serve the purpose at all well of course the quote you have for both buckley and from a caution are not cases in which anybody was making an argument that there was under under inclusion of persons who are similarly situated such as we have here with grantees right and they were trying to get  ambassadorships yes but the cases that talk about what you're essentially raising as an equal protection argument are all as far as i can tell ones in which there is a concern about what the court repeatedly says is quote invidious discrimination that is discrimination where you have some reason to be suspicious that that congress is favoring incumbents over non incumbents you don't actually think that what's really going on here is that congress is trying to benefit corporations over individual contractors there's absolutely no evidence of that kind of invidious discrimination may be a mistake it may be a leaking this but it's not invidious discrimination i would agree with your honor that in that sense there's not invid discrimination but i think the first amendment and equal protection clause require more that if it's discriminatory in fact or if it's vastly under and over inclusive in fact that that's enough that in the area we're dealing with first amendment restrictions why doesn't a statute that just doesn't yet include those restrictions is not a better statute from the first amendment point of view the under inclusive issue rider is there to as a check to be sure that the legislature has carefully considered the question and is and is not doing things inadvertently to be sure that the asserted purpose is actually being carried out and i ask you one hundred one case that wasn't mentioned a lot in the briefing but seems that seems to bear on it as broaddrick and broaddrick which was the state law variant of the hatch act as you know it was the decision came down contemporaneously with letter carriers there was an equal protection claim in that case that said that that the state hatch act provisions were under inclusive because they only encompass classified employees and didn't encompass unclassified and employees as well and the supreme court just dispensed with that in a footnote and basically said there's this equal protection claim but a the legislature has to have substantial leeway in dealing with it and b it would seem strange to restrict even more speech and the legislature should be given freedom not to go the extra mile and restrict any more speech than necessary which there's some now you have a supreme court decision that addresses an equal protection under inclusiveness crain claim in an analogous cont and i'm just wondering what might be the distinction between the mode of analysis of the court applied in that case and what you would want to do there i don't make the argument that the under inclusiveness aspect of this is more is as significant as the over inclusive of the fact that  statute is overly broad i also recognize that of course in broderick there was no ban on the activity which we're dealing with here which is the making of contributions furthermore of course at that time the statute had been recently and that began on a lot of things and yes yes but most of them had to do with activities being conducted by civil servants while they were on the job this activity we're trying to do here is off the job the irony of this is that the f e c says well you know you're first a matter of rights are completely restricted what you can do is you can hold a fundraiser at your house your can have the fundraiser you can invite anybody you want you could have them raise hundreds of thousands of dollars the people can be bundlers they're seeking to get ambassadorships and you could spend a thousand dollars of your own money on invitations food and it doesn't even have to be reported that seems to be to be to give lie to the notion that this statute is really all about appearances or you think it what do you think you think they're secretly something going on here i do appreciate the role of strict scrutiny in ferreting out the true motives of congress what do you think they're true you don't think their true motives however imperfectly they have attempted to resolve it is preventing corruption and the purists i agree that that's what they were trying to do what the the method was a blunderbuss that's not the same thing as saying closely join your order you keep saying they're putative motive their stated motive as if you don't believe that that was really what their motive was you don't actually think there's a suspicious invidious motive here do you know i agree that they were trying to stamp out corruption the question is whether the first amendment allows them to do this in this manner and i say to you that the closely drawn standard certainly does not permit it as the supreme court has interpreted in them in all of its recent cases let me ask you related under inclusiveness argument and it's about  conked an individual contractor concrete right yes and spin then spend as much money as he or she wants let me take the answer is if the contractor was a person like wendy wagner who was essentially a part time consultant for a government agency or was an expert witness or someone like that could create an l l c the person's like mr miller and mr brown  almost certainly could not have done this through the l l c or if they had done it through an l l c if the agency would have allowed them they would have had a substantial sacrifice that is as individuals they have the agency paying the employer share of their federal few tax fica tax and social and medicare in addition they get vacation benefits and sick leave which obviously a corporation could not take so care to me has to mars and shoes me because if creating an l l c is not a realistic option for employees and you know then that that doesn't undermine the legitimacy of the government's proffered interest here you don't have a lot of government contractors creating elsie's and going ahead and making political contributions you don't have that kind of under cousens i agree you're out of it that the that the inability of individuals who are centrally working as employees to be l law the for example that the president case from the four circuit they upheld the ban on lobbyist contributions but there was an out they could make contributions to a political committee those are obviously  examples but there are other examples of over breath for example minor parties candidates for the green party or new parties that have no chance of getting elected at all there well that's is that's a slightly separate question but this i have of the think term committee ha been consistently interpreted to refer only to groups that have the major purpose of electing a candidate yes you sort of throw another wrench in the works that makes that seem like it has a very different so when i want to be clear about that your honor there are two kinds of committees that might come into play one are the independent committees that make only independent expenditure sometimes known as super pacs or less so when they're smaller those are not an issue here none of my clients wants to make a contribution to them or anything like them but there are other committees that the n r a for example has a pac it is not a corporate packets and it's not a contractor pac the n r a committee makes contributions to it in elections that is the kind of committee to which my clients might want to make contributions and it is banned x is that a super pac you know i'm not i believe the term super pac it's not defined in the statute my understanding is that those are pacs that make independent expenditures and can do so without limits based on citizens united but i only ask because in the district court district court said that you explicitly said your clients didn't want to make contributions to super pacs that is independent expenditures they neither want to make independent expenditures themselves they don't want to take out ads in newspapers and they don't want to give money to organizations they're taking it out as want to be able to what exactly they want to do that relates to independent committee they want to make contributions to candidates political parties and about committees they have said that they may wish to do that they have not done so well on may wish to look to me like from what was said in the district court in your brief the issue isn't before us ividual politicians what there may have been have some miscommunication between us and the district court on that my clients did not express any indicate they wanted to make a contribution to an organization like a right to life committee or the n r a or planned parenthood that makes direct contributions that is a political committee that's covered by four forty one c mr miller who is the only surviving plaintiff here does not mention committees the other two who are who now appear to be moot and who's standing are not really defending you mentioned committees miller just as i would like to provide financial support for candidates federal offices and or their political parties saw i understand that you have an argument that there is not a way of relieving the over inclusiveness by giving to a  issue pac and then contribute but i don't understand that you have standing or that your your employer your clients have argued that they have any intention of contributing to the kind of things you're talking about emily's list and are a sierra club whatever you're talking about which then would contribute to candidates is that right that is correct your honor but we believe first that there is an over breath argument that we're entitled almost always the trigger word for us saying no standing and mr morris it's interesting i mean i know that that he would be out of the case but you really put a lot of emphasis on the analogy between contractors and employees but it seems that in fact some of your clients illustrate exactly one of the big differences which is that contractors tend to be in and out in and out of service and that is really it it exacerbates the risk of pay to play just the kind of qui pro quo corruption that is really at the heart of what this provision is about so somebody who's has a short term contract and then turns around and needs work again you know that's the dynamic that's at the heart of this and with respect to not because of anything they did politically they were hired because their employer knew who they were appreciated their work and one of them brought back on the job professor wagner was hired not because she put in a bid but because the administrative conference united states went out  percent would you would you acknowledge that the that the band is a better fit when it comes to contributions to candidates than it might be for contributions to political parties well of course it depends which candidates we're talking about if we're talking about a minor party candidate who has no chance of being elected to office if we're talking about incumbents sitting on the armed services committee that would be a better fit but the problem here is unlike this court's decision  against blowout where the f c c carefully fit the pieces together and made a considered judgment as to whether real dangers were and where they were not this statute doesn't come close to satisfy the court's testified to be a substantial matching of the goals and the means chosen to effectuate them bring other questions from the bench ok thank you ms from what mr chief judge and may it please the court government contractors pose an acute danger of corruption and partisan disruption of efficient government functioning could you start with the standard as compared to strict scrutiny so that the court is do you agree you accepting then you're not arguing that we are to do something other than the standard set forth in mccutcheon that's correct it's narrowly drawn scrutiny which the court has indicated is a lesser degree of scrutiny than strict scrutiny and to which courts are to defer to legislative judgments but not only in your judgment what what what does that leave us free to do that we could not do under purposes beyond corruption and appearance of corruption i mean you're arguing that there are other purposes at play here you know the merit based selection at cetera but can we really consider that under governing supreme court precedent yes judge wilkins in it is true that the supreme court has said a number of occasions that went when implementing a campaign contribution limits that the appearance of corruption and corruption are the only interest that can be served but those were addressing generally a political contribution limits across the board here where despite discrete class of people are targeted and there's a particular purpose for imposing contribution limits on that discrete class that other important interest of america based workforce is appropriate and as jeff cavanagh indicated in citizens united which was one of those cases where the supreme court indicated that generally when restricting campaign interests is that is that where you also rest your case or are not so much you know i think i think the closely drawn scrutiny is comparable to the bear approach so closely drawn scrutiny as we saw in mccutcheon there does have to be important government interests and congress does have to employ them in a means that permits some expression of the employee just like in the eye their approach for contractors and pickering for employees there does have to be that congress does have to take into account the rights of employees and they have to have some ability of expression so i think the closely drawn scrutiny i think the court can easily harmonize the closely drawn evidence that parties and committees are somehow involved in the awarding of contracts in the award of contracts there's there's extensive evidence that they can be involved in quid pro quos for example the the very scandal that led to the passage of what our first to a section four forty one see even though it's been we codified involved the democratic national committee in one nine hundred thirty elections party agents went around the country armed with lists of contractors how do you respond to the mccutcheon argument there and that is that things have changed since one thousand nine hundred that we have a completely new regulatory landscape that affects that in a significant way what's your response to that but this isn't a case where intervening changes in the law have made it so the function of section four forty one c is no longer being served in any meaningful way so there have been some congress has paid a lot of attention to this and there have been some measures to make sure that contracting in some instances is done through competitive bidding and by professional contracting officers but a large portion of the contracting workforce does not occur through those competitive processes and the incidence of contract a growing phenomenon so the danger overall is that the one nine hundred forty scandal do you have any other examples where perhaps parties and committees have been implicated in the award contracts yes your honor so there's been exposed extensive experience this with in the states and states have responded so for example in connecticut governor rowland who was in the federal level i mean you know the the argument that the states are differently situated that that the contract officers there are more political than at the federal level i'm talking at the federal level  federal experience where parties and committees political committees are involved in the wording of contracts well there is less evidence at the federal level is there any beyond the one thousand there is but as you point out in congress and the court has instructed the should be taken into account the the ban has been in effect since one thousand nine hundred so the same kind of evidence we would not expect it to happen at the federal level so at the federal level it has to happen in more indirect ways and it has for example  one of the most notorious scandals with involving jack off and congressman ney one of the one aspect of that was a foreign government again a contract to install the wireless service in the united states house of representatives and that money was funded through a contribution to a charity run by jack abel mof and then use the one that a corporate contractor they want talking about an individual contractor that is the plaintiffs we have a fourth it was but the same is the danger can happen in in either case so it's not the case that the congress absence didn't happen but i'm asking has it happened it was certainly at the at the state level for example but not the federal at the federal well it has not necessarily the actual contractor because they're allowed to but persons associated with the contractor have for example congressman randy duke cunningham another one of the most and tory scandals money was funded by him to several candidate committees i mean by the defense contractor mitchell wade and other individuals to both randy duke cunningham and other candidates and party committees so you're not going to find example of the act person who is the actual contractor at the federal level having given a contribution to a party committee or a non candidate committee but again at the state level governor rowland some of the money that was used to get him to awar government contract went not only to his candidate committee but also to political party committees do you think congress could be in federal employees from making contributions consistent with the first moment i do and  director and why and there are lots of mismatch questions here and i don't know that that dooms your case but for example the contractors the individual contractors are still allowed to raise money and bundle money and you know and i know the people who bundle and raise money are much more valuable to the parties and the candidates than one individual contribution what do we do about that seeming gaping hole in the in the statute how do we how do we approach that well i think i think congress attacked forcefully the most direct danger and that is money coming from the person who is actually receiving the contract being used to make a campaign contribution so it is true that other means of expression were allowed including raising money for for candidates without spending extensive money to do so but that is consistent with congress's charge here which which is to make it closely drawn and not go beyond further protection argument the f t c said setting up an l l c is not onerous so under the law all of these government individual government contractors could set up l l he's and then go and make all the political contributions they want those of that raise some serious questions about what this plan is actually doing i don't i don't think so just a little and and it is true that perhaps congress could go further and that wasn't my question my question is what so your argument is the commission's argument is we need to prevent congress goal here is to prevent government contractors from making political contributions well according to your theory in the record of this case introduced by the commission any independent contractor can willy nilly make any contribution he or she wants simply by setting up an l l c and and the record also shows that agencies are indifferent to whether or not they're contracting with the individual or the l l c and so doesn't that it's ray some serious questions about  of this claim if it can be if it can be enron did so easily i don't think so the that notion challenges the the very  status of separate corporate personhood so while it does permit a person to set up a separate and the and have that entity enter into the contract that means that there  are some consequences for that so that entity then is the one that has to pay taxes and if you're on what you say it's relatively it's not onerous to do this that's your record that's your evidence the other side said it's difficult yes in  in their equal protection claim they said it's expensive you didn't say that commission said it's easy it's easy but there there are some consequences that so congress has attacked the the most dangerous possible exchange and that is the legal person who actually is getting the money from the government cannot make the contract and by permitting persons to set up elsie's that permits so that at least the person is actually could be offering the legal person who actually could be offering the quid in exchange for the quo can't make the contribution and i would say just i think appellants have a right fine if i'm a contractor i can set up the david yes so but that doesn't mean that congress the then the congress put in place is not serving any purpose at all no it just makes you wonder if it's easy to escape it with the being as accomplished well as i said it does attack the the most dangerous exchanges have a problem of the statute i think is that it doesn't just attack those most dangerous situations it's a very broad categorical ban on donation even a nickel to even the n r a committee your right to life committee or any of those types of organizations and so on the one level you have congress coming in saying there's a real problem here a real risk of bad appearances and so we have to come in full bore with a comprehensive ban but it's easy to get out of and so that's what's hard to reconcile you can't of the one hand say they were getting the worst thing when in fact they got an awful lot more than the worst thing and then go it's ok to have this technical distinction that's a hard very hard thing for me to reconcile how do i deal with that under closely drawn scrutiny like they articulated in a mccutcheon so it so congress attacked one part of the problem very forcefully but left the scope of the statute approach that in a very measured way so in the buckley case in the blunt case of this court this under inclusive analysis but make clear that congress doesn't have to go as far as it could so provisions addressing people who own the corporate contractors or have shareholders or substantial owners legislatures have included provisions the green party case for example the blunt case did include some of those provisions pressed in be legal lobbyist case included some family members and those were upheld so congress could have gone that far but it was supposed that suppose the congress says we think these two situations raise the same problem with respect to the appearance of impropriety the two situations being the stuff that we're covering contractors and the layer around contractor say officers of corporate contractors we think they raise the same issue with  but nonetheless we're going to cover the first one and there is no explanation or even attempted explanation or even after the fact explanation by the lawyers seeking to defend the law as to how you could draw that line is your position that it's still down if the provision as the court said in blunt cannot be fairly said to advance any genuinely substantial government interest and i don't think we're at that point i mean we probably wouldn't all be here right if the individual contractors here if it was that easy and appellants have refined their their position at argument today in fact some contractors can't just set up l l c they're expert at deposition does that make it better or worse right you have one you have a subset now can't do el but everyone just like them who can do l c s is golden under the statute and we'll just pretend that there's really no no there's no real problem if the donation to congressman so and so on the armed services committee comes from patricia mallette l l c rather than contractor well like all these questions when there is both an overbroad challenge and an under inclusive analysis it's always going to cut one way or another right but those doctrines are not some sort of so encouraged this that congress is going to bump up against one or the other it has a reasonable birth to set reasonable restriction i understand but when you have something doesn't go to the question of whether it's closely drawn in other words if you can if you could work your way around i simply being in the corporate form why do you need a complete the legal person that is actually making the contribution does raise a parent's concerns but the fact that there are mean the notion that ability to set up l l c is completely undoes the regulation i mean that would be an attack on the very notion of corporate personhood i mean that once you set up a separate entity the individual is no longer liable for all the misconduct there are rules you know the taxes are paid by the l  c the the there isn't really a difference in this context that would make it that separate legal personhood so unique here that it means the government is not serving any substantial government purpose whatsoever  under inclusiveness that's a little concerning which is that you know in one form of quid pro quo you give of and then you get your contract and that's not covered right because you're only covered if you're already negotiating you the contractor only occurred if you're already negotiating for or under a contract isn't that a kind of under inclusiveness that also really undercuts the congressional interest in combating corruption you mean if that contract occurred at some previous point in time you know if i'm a want to be contractor and i think well you know who's in power who has some influence i'm going to give to that that office holder or give give give and then why application goes then and i call the you know constituent services sake he put in a good word for me and i get the contract if i wasn't under negotiation for that contract  i'm not covered right so it's only once you're under negotiation or actually contract yes i think it's true that setting up the limit so that there was been provisions like that and they've been upheld but as with all these interest the further you go the congress is most severe danger is being struck down for over breath so is the further you go the more risk you potentially run of found finding that it's not substantial that it's not substantial fit because it covers too much but doesn't the fact that there's so much under inclusiveness essentially fatally any argument that this is really directed at actual corruption because there are so many so many exceptions like the one the judge co just mention that don't apply that that would not prevent actual corruption the only thing that the statute we could really consider it to be is the appearance of corruption isn't that really where we are i don't think so that this this pr continues to serve an interest in preventing quid pro quos maybe that what is the record here on these l l c there's a limited record on the question i think both parties agreed the band could easily be avoided through l l c so that there was deviousness to congress's action i personally have found that in th that that's f e c that's your regulations interpret ing it as not covering elsie's isn't that right i'm glad it's we don't have a specific regulation on that but we do we have a definition of person so i chooses to focus on one danger quid pro quo rather than every conceivable instance doesn't render its rationale a challenge to the credulous so if the fact that there is some means fo separate legal persons to engage in this to vittie does not mean that the the purpose isn't being further in some sense and and again that the corporate ban that they don't have that same opportunity to just set up an l l c l l c so part of the equal protection claim here is that individual contractors are worse off but that's not really clear there in some ways that they're they are better off in some ways that they're worse off when one thing the challengers say is if the problem is in the contracting process the solution is to more tightly regulate the awarding of contracts before you take the step of infringing on speech how do you respond to that argument well i think congress is permitted to edge address the danger of corruption and the interest in selecting a merit based workforce on multiple fronts and the multiple flanks so i think congress has done both and it's permitted to do both but there's not evidence that those provisions have completely made the interest in the congress asserted no longer serving any purpose whatsoever for example in new jersey a state contractor had made a number of contributions to try to win business to renovate the motor vehicle system it was awarded on a competitive contract is four hundred million dollars they use their contributions and their access to distort the awarding of the system through the competitive process they didn't complete the contract well it was over two hundred million dollars over budget and had to be it broke down had to be scrapped with within weeks and that was a situation where the actual contract or the corporation had delivered a thousand dollar check to state senate leader the day after they had submitted their proposal they had their government relations person introduce their corporate representative in that way this is so and so from the parsons company they just submitted their bid in response to the request for proposals a check from the actual contributor so even though in that situation the formalities of contracting had been set up to try to prevent that sort of corruption there was a way around it there's there's not evidence that those sorts of formalities make the interest in fighting quid pro quo option and effective government functions completely no longer being served by the contribution ban and new jersey changed the rules after that just like in the last ten years a number of states have new jersey ohio connecticut why because of exactly those kind of problems even though many of those states do have processes for trying to make bidding and i asked one real world practical question here are a series of them how many individual federal contractors are there roughly and so the question is someone's been a federal employee and it's contributed in then becomes a contractor and keeps contributing without knowing the law so this is just a tangential to this case but real world implications does the government warn contractors that they're now subject to a ban on contributing because i imagine if not i imagine there are a lot of unintentional violations out  persons as well there's not i don't think there's clear evidence on that in the record but i believe there is there are measures taken to help contractors comply and then and the mens rea i would miss not knowing the law this probably outside your belly work and more justice department issue but is not knowing the law do you think a defense to the felony charge if you don't know the law as a contractor you've been a former federal employee and you cut one hundred dollars check to your local member of congress certainly for you say i didn't know the law prohibited that is still a felony or not no your honor so under section four forty one see in order to be a criminal violation it would have to be a knowing and w all the supreme court said well full requires as a general proposition knowledge of the law in the in the future context knowing willful is held to be correct you have to actually know right i just wanted to clarify that that would not be drawn into this and not the words unknowing completely unknown as i imagine maybe i'm wrong but just thinking about this and there's not a record in this case that we normally have but thinking about this one concern was completely unknown violations of this and whether that w they couldn't otherwise make that count as indirectly but i don't think so because the it's a different person making the country how does indirect work without going through somebody else isn't that what indirect means you know when there's somebody else else well it could be through someone else but it would if you had actually gone to the trouble of setting up a separate legal person i don't think that's what the statute was addressing  fiction hasn't turned contribution in that situation would be direct right it would be from the individual directly to the member of congress right i'm sorry it wouldn't be indirect at all if you set up an else see and then and then the so that may mean the statue's unconstitutional but the federal regulation that your interpretation about l l c is is inconsistent with the statute i mean the statute does and even the regulation that the plane of site which is section one fifteen point six talks about individual members of associations and corporations but says talks about them in the plural are there any if you see rulings on elsie's or  are we are we playing with the shadow here i think there aren't any rulings in this specific context of the government contracting context i'm not sure about other kind of ruling with respect to a statute that says a person can't make a contribution that's in which the f e c has ruled that an individual who is the sole member of the of an l l c can make a i think there may be i'm not sure we can submit something on that if you'd like i think there may be some some indications of that in past commission histories maybe in an advisory opinion context but i'm not one hundred percent sure but we  and i assume what you both are talking about is that elsie's can contract with the government and the individual in the yellow sea can make contributions and that's all correct isn't the the individual who has set up that up the l c wants it set up in contract with the government the the individuals in free to make political contributions is that what you're debate is about on the equal protection side of this case that's that's part that's part of the debate yes i think the l c answer is the l cs are subsets of corporations they are a type of corporation it's the most poignant example because there is no difference between the l l c and the individual jonathan team at that declaration page seventy six of the joint appendix when i answer that the second point i want to make is with judge kevin all they've been unable to determine how many federal contractors there are i tried as hard as i could on but there are there are lots of them  individuals and corporate contractors as far as the democratic national committee or is it clear that that is a relatively recent development of having a large number of personal services contractors yes your honor and i think it's partially responsive to congress's and the executive branch is unwilling just to have more employees so they go out and hire contractors who are doing the same things as my to do of my clients are here they're doing the same things they did before sitting next to supervising employees as far as the scandal in one nine hundred forty s concerned that scandal could happen today because and what happened today because instead of the owner of the business itself making the contributions the business owner would make the contributions that is exactly what this is allowed and that's what most of the scandals are about the thousand dollars in new jersey anyone who's got a business with a big contract surely could afford a thousand dollars if you're concerned about them being very much similar to employees is certainly the case that in the states political parties have tried to figure out subtly made clear that low level political employees have to give money to the party if they want to keep their job right that's coercion your honor that's been by federal law that is the subtlety or none subtlety the federal law already forbids that it might it's always a quid pro quo for been by federal law so what we're really looking for and supreme court has said that doesn't matter that's not enough to make a limits on contributions inappropriate so we have to look for something close because we're not likely to find as the screen court said the exact corrupt bargain and isn't that very similar being from the great state of illinois suddenly made sure that only employees who made contributions to the democratic party could be hired by the sheriff that was in one thousand nine hundred six and then in route ten the republican party did exactly the same thing fifteen years later and for the state government  always show that parties have an incentive to try to make money even in small amounts from large numbers of employees by looking at who contributes and who doesn't and if that's the case if we take this cap off if we take this limit off why should we think it won't apply at the federal happen at the federal level as well well first your honor we're dealing with parties and employees and these are parties and contractors second is i know they're always good employees are already permitted to make the very same contributions my clients are not permitted and here is a whole new as you said growing group of people available to get contributions to political parties and if we take the cap off for them what makes us think that the parties won't take advantage of that well i'm sure that the parties would solicit government contractors they were not going to get a lot of money from contractors like my clients  but they can solicit them from much bigger contractors now and if i may the last thing i want to say is can just read for one second from the government's brief page thirty two most americans lack for mayor r t with the complex city of federal contracting and they could easily view any contributions by contractors with suspicion that's the reason that the political pacs of corporate contractors the officers of corporate contractors the chief procurement officers of the major shareholders of contractors analyses that's what's wrong with this that that there is no explanation as to why the other protections in the federal election campaign act are not sufficient to take care of those interests and given the substantial mismatch we have here we asked the court to declare the statute unconstitutional as applied to these individuals but it would take the matter under submission