No. 15-428

In the Supreme Court of the United States

JAN MILLER, PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DANIEL A. PETALAS

Acting General Counsel

LISA J. STEVENSON

Deputy General Counsel

KEVIN DEELEY

Acting Associate General 

Counsel 

HARRY J. SUMMERS

Assistant General Counsel

SETH NESIN

Attorney

Federal Election

Commission

Washington, D.C. 20463

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the court of appeals correctly rejected 

petitioner’s constitutional challenges to 52 U.S.C. 

30119, which prohibits federal contractors from 

making political contributions during the time period 

when they are negotiating and performing federal 

contracts. 
(III)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction.................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 13

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), 

cert. denied, 517 U.S. 1119 (1996) ..................................... 25

Board of Cnty. Comm’rs v. Umbehr, 518 U.S. 668 

(1996)...................................................................................... 8

Board of Trs. of State Univ. of N.Y. v. Fox, 

492 U.S. 469 (1989).............................................................. 21

Buckley v. Valeo, 424 U.S. 1 (1976).................... 14, 15, 20, 22

California Med. Ass’n v. FEC, 453 U.S. 182 (1981)........... 14

City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41 (1986) ............................................................... 18

Curtis, Ex parte, 106 U.S. 371 (1882).................................... 2

Dickerson v. United States, 530 U.S. 428 (2000)................ 16

FEC v. Beaumont, 539 U.S. 146 (2003)..........8, 14, 15, 16, 19

FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001)............................................... 14

Green Party of Conn. v. Garfield:

616 F.3d 189 (2d Cir. 2010)............................................. 16

616 F.3d 213 (2d Cir. 2010), cert. denied, 

131 S. Ct. 3090 (2011) ............................................... 24

Hill v. City of Scranton, 411 F.3d 118 

(3d Cir. 2005)....................................................................... 17

McConnell v. FEC, 540 U.S. 93 (2003), overruled in 

part by 558 U.S. 310 (2010).......................................... 14, 15
IV

Cases—Continued: Page

McCutcheon v. FEC, 134 S. Ct. 1434 

(2014).................................................................... 7, 14, 17, 18

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000).................................................................................... 14

Ognibene v. Parkes, 671 F.3d 174 (2d Cir.), 

cert. denied, 133 S. Ct. 28 (2012)....................................... 24

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011)................... 24

Randall v. Sorrell, 548 U.S. 230 (2006) ............................... 14

United States Civil Serv. Comm’n v. National Ass’n 

of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973)............ 2

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 

(2015).................................................................. 12, 13, 21, 22

Yamada v. Snipes, 786 F.3d 1182 (9th Cir.), cert. 

denied, No. 15-215 (Nov. 30, 2015).................................... 24

Constitution, statutes and regulations:

U.S. Const.:

Amend. I........................................................... 7, 13, 17, 20

Amend. V (Equal Protection Clause)........................ 7, 13

Act of July 19, 1940, ch. 640, § 5(a), 54 Stat. 772 .................. 3

Civil Service Reform Act of 1978, 5 U.S.C. 1501 

et seq............................................................................... 12, 23

Federal Election Campaign Act of 1971, 52 U.S.C. 

30101 et seq. ........................................................................... 4

52 U.S.C. 30101(11) ........................................................... 5

52 U.S.C. 30101(8)(A)(i).................................................... 5

52 U.S.C. 30106(b)(1) ........................................................ 6

52 U.S.C. 30107(a)(8)......................................................... 6

52 U.S.C. 30108.................................................................. 6

52 U.S.C. 30109.................................................................. 6

52 U.S.C. 30110.................................................................. 7
V

Statutes and regulations—Continued: Page

52 U.S.C. 30111(a)(8)......................................................... 6

52 U.S.C. 30118................................................................ 15

52 U.S.C. 30118(a) ............................................................. 5

52 U.S.C. 30118(b)(2)(C)................................................... 5

52 U.S.C. 30119....................................................... passim

52 U.S.C. 30119(a) ............................................................. 5

52 U.S.C. 30119(a)(1)......................................................... 5

52 U.S.C. 30119(b)............................................................. 5

Hatch Political Activity Act, 5 U.S.C. 7321 et seq. ....... 12, 23

28 U.S.C. 1331 .......................................................................... 7

11 C.F.R.:

Section 115.2(a).................................................................. 5

Section 115.5 ...................................................................... 5

Miscellaneous:

84 Cong. Rec. 9598-9599 (1939).............................................. 2

86 Cong. Rec. 2982 (1940)....................................................... 3

Final Report of the Senate Select Comm. on 

Presidential Campaign Activities, S. Rep. No. 981, 

93d Cong., 2d Sess (1974)..................................................... 3

3 Ronald D. Rotunda & John E. Nowak, Treatise on 

Constitutional Law: Substance and Procedure

(3d ed. 1999)......................................................................... 17
(1)

In the Supreme Court of the United States

No. 15-428

JAN MILLER, PETITIONER

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. 

App. 1-75) is reported at 793 F.3d 1. The certification 

order of the district court (Pet. App. 76-93) is unreported.

JURISDICTION

The judgment of the court of appeals was entered 

on July 7, 2015. The petition for a writ of certiorari 

was filed on October 2, 2015. The jurisdiction of this 

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Federal law prohibits individuals and firms from 

making campaign contributions in connection with 

federal elections during the time period when they are 

negotiating and performing federal contracts. 52 

U.S.C. 30119. Section 30119 is the current manifesta-
2

tion of Congress’s longstanding efforts to ensure merit-based, corruption-free government administration.

1. For more than a century, Congress has enacted 

legislation to establish a merit-based government 

workface, insulated from coercive political activity. 

See generally United States Civil Serv. Comm’n v. 

National Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 

548, 557-563 (1973). Beginning in the 1870s, Congress 

barred certain federal employees from making campaign contributions in order “to promote efficiency

and integrity in the discharge of official duties” and to 

protect federal workers “from being compelled to 

make contributions for [political] purposes through 

fear of dismissal if they refused.” Ex parte Curtis, 

106 U.S. 371, 373-374 (1882). In 1883, Congress made 

it a crime for Members to solicit political contributions 

from federal workers, including “the various government contractors of the era.” Pet. App. 19 n.9. Congress also steadily expanded the civil service system,

“imposing limitations on political activity by employees and implementing merit-based hiring rules.” Id.

at 20.

Despite those early reforms, “notorious abuses” involving government contractors “occurred during the 

1936 and 1938 election campaigns.” Pet. App. 20. In 

the “Democratic campaign book scandal,” Democratic 

National Committee representatives visited government contractors and coerced them into purchasing 

souvenir convention books at an exorbitant price “in 

proportion to [each contractor’s] amount of [g]overnment business.” Id. at 22 (internal quotation marks 

omitted) (quoting 84 Cong. Rec. 9598-9599 (1939) 

(statement of Rep. Taylor)). Larger contractors were 

also solicited to buy advertising in the campaign book, 
3

with the threat of being blacklisted from future government business if they resisted. Id. at 22-23 & n.11; 

Gov’t C.A. Br. 8. 

In 1940, Congress addressed the exploitation of 

government contractors by prohibiting any “person or 

firm entering into any contract with the United States 

* * * if payment * * * is to be made in whole or in 

part from funds appropriated by the Congress” from 

making any “contribution[] to a[] political party, committee, or candidate for public office or to any person 

for any political purpose or use.” Act of July 19, 1940, 

ch. 640, § 5(a), 54 Stat. 772. As Senator Harry Byrd 

explained in support of the provision, “those who are 

making money out of governmental contracts” should 

not be allowed to make campaign contributions because such contributions “may be considered in some 

instances as bribery in order to secure governmental 

contracts.” 86 Cong. Rec. 2982 (1940). 

Congress strengthened the contractor contribution 

ban in the 1970s after evidence surfaced that pay-toplay corruption in government contracting persisted. 

In 1974, the Senate Watergate Committee issued a 

report chronicling “disturbing examples” of “efforts to 

channel government contracts to President Nixon’s 

political supporters and to exact contributions from 

existing contractors.” Pet. App. 24 (citing Final Report of the Senate Select Comm. on Presidential 

Campaign Activities, S. Rep. No. 981, 93d Cong., 2d 

Sess. 368 (1974)). The report summarized “evidence 

of quid pro quos for the contracts from four cabinet 

departments and six agencies,” and “evidence that 

campaign officials were participating in the selection 

process for the awards of [General Services Administration] architectural and engineering design con-
4

tracts.” Id. at 24-25 (citation and internal quotation 

marks omitted). In response to those scandals, Congress increased the fines for violating the contractor 

contribution ban, moved the ban with minor modifications to the Federal Election Campaign Act of 1971

(FECA), 52 U.S.C. 30101 et seq., and authorized the 

Federal Election Commission (FEC or Commission)

to initiate civil enforcement of the provision. See Pet. 

App. 26.

Although the contractor contribution ban has 

helped to prevent “large-scale quid pro quo corruption 

or coercion” in the contracting context, recent examples of pay-to-play corruption schemes demonstrate 

that “individuals and firms continue to test the limits 

of the current laws.” Pet. App. 28-29 (brackets, citation, and internal quotation marks omitted). In 2005, 

for example, Representative Randy Cunningham 

pleaded guilty to taking bribes from contractors in 

exchange for influencing contracts awarded by the 

Department of Defense. Id. at 30 (observing that the 

defense contractor who bribed Representative Cunningham admitted that he had made illegal contributions to other Members of Congress in hopes that they 

would request appropriations funding to benefit his 

firm). Similarly in 2006, Representative Robert Ney 

pleaded guilty to criminal charges after he influenced 

the award of a multi-million dollar contract to a client 

of lobbyist Jack Abramoff in a quid pro quo scheme. 

Ibid.; see Gov’t C.A. Br. 15 (summarizing additional 

examples).

The contractor contribution ban, which is currently 

codified at 52 U.S.C. 30119, has “retained its essential 

features since” Congress first enacted the provision in 

1940. Pet. App. 23. The statute prohibits “any per-
5

son” who “enters into any contract with the United 

States or any department or agency thereof” from 

making a contribution to any political party, political 

committee, or candidate for federal office. 52 U.S.C. 

30119(a). “[P]erson” is defined in FECA to include 

“an individual, partnership, committee, association, 

corporation, labor organization, or any other organization or group of persons” other than the federal government. 52 U.S.C. 30101(11). FECA defines “contribution” as “any gift, subscription, loan, advance, or 

deposit of money or anything of value made * * * for 

the purpose of influencing any election for Federal 

office.” 52 U.S.C. 30101(8)(A)(i). 

Section 30119’s contribution ban applies during the 

time “between the commencement of negotiations for 

and the later of (A) the completion of performance 

under; or (B) the termination of negotiations for” a 

federal contract. 52 U.S.C. 30119(a)(1). Although 

Section 30119 bars the entity or individual who enters 

into a federal contract from making campaign contributions during the pendency of the contracting relationship, the prohibition does not apply to spouses of 

federal contractors if they make contributions in their 

own names. 11 C.F.R. 115.5. Federal law also does 

not prohibit corporations from establishing separate 

segregated funds (commonly referred to as political 

action committees or PACs), which may make contributions with money voluntarily contributed by persons affiliated with the corporation. 52 U.S.C. 

30118(a) and (b)(2)(C), 30119(b). Section 30119 “does 

not apply to contributions or expenditures in connection with State or local elections.” 11 C.F.R. 115.2(a). 

2. The FEC is vested with exclusive statutory authority over the administration, interpretation, and 
6

civil enforcement of FECA and other federal campaign-finance statutes. The Commission is empowered to “formulate policy” with respect to FECA, 52 

U.S.C. 30106(b)(1); “to make, amend, and repeal such 

rules * * * as are necessary to carry out the provisions of [FECA],” 52 U.S.C. 30107(a)(8), 30111(a)(8); 

to issue advisory opinions concerning the application 

of FECA and the Commission’s regulations to proposed transactions or activities, 52 U.S.C. 30108; and 

to civilly enforce FECA, 52 U.S.C. 30109. 

3. Petitioner is an individual who retired from fulltime employment in 2003 and has subsequently 

worked on and off for the United States Agency for 

International Development (USAID) pursuant to 

personal-services consulting contracts. Pet. App. 3; 

id. at 84. From June 2010 to June 2015, petitioner 

worked part-time for USAID pursuant to a contract 

with a budgeted value of $884,151. Id. at 84. 1

 Petitioner’s current contract with USAID will expire in 

June 2017. Pet. 8.

4. a. Petitioner filed this lawsuit in district court 

against the FEC, asserting that he wishes to make 

contributions to federal candidates and their political 

parties but is barred from doing so by 52 U.S.C. 

30119. Pet. App. 6.2

 Petitioner alleged that Section 

 1

 The district court’s certification order erroneously stated that 

the contract would end in June 2016. Pet. App. 84. The contract 

lists June 26, 2015 as the estimated completion date. 11-cv-01841 

Docket entry No. 25-3 (Mar. 1, 2012). 2

 The complaint was filed on behalf of three individual contractors, but two of the plaintiffs subsequently completed their contracts. Pet. App. 5. Because those individuals are “once again free 

to make campaign contributions,” the court of appeals held that 

their claims were moot. Ibid. Those plaintiffs have not challenged 

the court’s mootness holding.
7

30119 violates the free speech guarantee of the First 

Amendment and the equal protection guarantee of the 

Fifth Amendment as applied to individual contractors 

who wish to make contributions to a federal candidate 

or political party. Id. at 6-7. 

b. Pursuant to 52 U.S.C. 30110, the district court 

made factual findings and certified to the en banc 

court of appeals the question whether Section 30119 

violates the First or Fifth Amendment. Pet. App. 76-

93. 3

c. The en banc court of appeals unanimously rejected petitioner’s First and Fifth Amendment challenges to 52 U.S.C. 30119. Pet. App. 1-75. 

The court of appeals observed that laws that regulate campaign contributions are subject to “closely 

drawn” scrutiny to determine whether a challenged 

law serves a “sufficiently important interest” and is 

“closely drawn to avoid unnecessary abridgment of 

associational freedoms.” Pet. App. 8 (emphasis omitted) (quoting McCutcheon v. FEC, 134 S. Ct. 1434, 

1444 (2014) (plurality opinion)).

4

 The court rejected 

 3 The district court initially concluded that it had federalquestion jurisdiction under 28 U.S.C. 1331 to decide the merits of 

the case, and it granted summary judgment to the FEC. Pet. App. 

4; see Wagner v. FEC, 901 F. Supp. 2d 101 (D.D.C. 2012). On 

appeal, a three-judge panel of the court of appeals held that 52 

U.S.C. 30110 “grants exclusive merits jurisdiction to the en banc

court of appeals” to resolve constitutional challenges to provisions 

of FECA brought by individual voters. Wagner v. FEC, 717 F.3d 

1007, 1011 (D.C. Cir. 2013). The court of appeals accordingly vacated the district court’s summary-judgment ruling and remanded 

the case for findings of fact and certification of constitutional 

questions pursuant to Section 30110. Id. at 1017. 

4 Because “Section 30119 is a restriction on First Amendment 

activity aimed only at those who choose to work for the federal 
8

petitioner’s argument that Section 30119 should instead be subject to strict scrutiny because it “does not 

merely limit contributions, but bans them entirely.” 

Id. at 9. That argument, the court explained, was “expressly rejected” in FEC v. Beaumont, 539 U.S. 146, 

161-163 (2003), which held that “both limits and bans 

on contributions are subject to the same ‘closely 

drawn’ standard.” Pet. App. 9.

Applying the first prong of “closely drawn” scrutiny, the court of appeals identified two important 

governmental interests underlying Section 30119: 

“(1) protection against quid pro quo corruption and 

its appearance, and (2) protection against interference 

with merit-based public administration.” Pet. App. 

13-14. In light of the historical evidence of contractorrelated government corruption, the court concluded 

that Congress was “motivated by concerns over corruption and merit protection” when it enacted the 

contribution ban. Id. at 28. The court further found 

that contractor corruption and coercion remain a 

threat today. Id. at 29 (emphasizing that “the government’s fear of the consequences of removing the 

current ban is not unwarranted”). The court described many recent examples of pay-to-play con-

 

government,” the court of appeals noted that the provision arguably should be subject to a more deferential standard of review. 

Pet. App. 10-11. The court explained that this Court “has ‘consistently given greater deference to government predictions of harm 

used to justify restriction of employee speech than to predictions 

of harm used to justify restrictions on the speech of the public at 

large.’” Ibid. (quoting Board of Cnty. Comm’rs v. Umbehr, 518 

U.S. 668, 676 (1996)). The court found it unnecessary to analyze 

Section 30119 under a more deferential standard, however, because it concluded that the provision survives “closely drawn” 

scrutiny. Id. at 12-13, 75. 
9

tracting scandals at both the federal and state level, 

which demonstrated that “the risk of quid pro quo 

corruption and its appearance, and of interference 

with merit-based administration, has not dissipated.” 

Id. at 37. The court concluded that “the interests 

supporting the contractor contribution statute are 

legally sufficient, and the dangers it seeks to combat 

are real and supported by the historical and factual 

record.” Id. at 44.

Turning to the second prong of the constitutional 

inquiry, the court of appeals held that Section 30119 is 

closely drawn to the important governmental interests

that underlie the statute. The court recognized that 

“the total ban on federal contributions by contractors 

is a significant restriction,” but it found a ban, as 

opposed to a limit, justified by the “contracting context,” which “greatly sharpens” both “the risk of corruption and its appearance” and “the risk of interference with merit-based public administration.” Pet. 

App. 46-48. The court explained that, “[u]nlike the 

corruption risk when a contribution is made by a 

member of the general public, in the case of contracting there is a very specific quo for which the contribution may serve as the quid: the grant or retention of 

the contract.” Id. at 47. “[I]f there is an area that can 

be described as the ‘heartland’ of such concerns,” the 

court stated, “the contracting process is it.” Ibid. The 

court further explained that, “because of that sharpened focus, the appearance problem is also greater: a 

contribution made while negotiating or performing a 

contract looks like a quid pro quo, whether or not it 

truly is.” Id. at 48. The court also observed that, 

“[b]ecause a contractor’s need for government contracts is generally more focused than a member of the 
10

general public’s need for other official acts,” a contractor’s “susceptibility to coercion is concomitantly 

greater,” to the detriment of merit-based government 

administration. Ibid. Based on those features of the 

contracting context, the court concluded that “a flat 

prohibition is closely drawn to the important goals 

that § 30119 serves.” Id. at 49.

In reaching that conclusion, the court of appeals 

emphasized “how much the statute leaves untouched.” 

Pet. App. 54. The court observed that federal contractors “are free to volunteer for candidates, parties, or 

political committees; to speak in their favor; and to 

host fundraisers and solicit contributions from others.” Ibid. The court further explained that “even the 

contribution ban itself is limited to the period between 

commencement of negotiations and completion of 

contract performance.” Id. at 55. Accordingly, the 

court found that Section 30119 “avoids unnecessary 

abridgment of First Amendment rights.” Id. at 54

(internal quotation marks omitted).

The court of appeals rejected petitioner’s arguments that Section 30119 is overinclusive. The court 

analyzed the various ways in which petitioner alleged 

that the statute could be made less restrictive, but it 

found that each proposal would undermine the important goals furthered by the contribution ban. Pet. 

App. 45-54. The court observed, for example, that if

contributions by federal contractors were limited

rather than barred, such contributions could still give 

rise to the appearance of corruption, and that “coercing a contractor to contribute, even if limited by a 

contribution ceiling, is still coercion.” Id. at 48-49. 

The court likewise found that Congress was not required to restrict the ban to high-value contracts
11

given the historical record demonstrating “that corrupt and coercive patronage regimes can take root 

even when relatively small amounts of money are at 

stake.” Id. at 53. The court also rejected petitioner’s 

claim that Section 30119 should not apply to solesource contracts awarded outside the competitive 

bidding process, noting that the argument was contrary to petitioner’s claim “that it is the rise of competitive bidding—not the private placement of sole-source 

contracts—that has eliminated the risk of pay-toplay.” Id. at 51-52. The court concluded that, “[a]lthough Congress could have narrowed its aim even 

further,” Section 30119 is closely drawn because “[i]t 

strikes at the dangers Congress most feared while 

preserving contractors’ freedom to engage in many 

other forms of political expression.” Id. at 56.

The court of appeals also rejected petitioner’s claim 

that Section 30119 is impermissibly underinclusive 

because it does not bar contributions by three categories of individuals and entities that petitioner claimed 

could also be tempted to engage in quid pro quo corruption. Pet. App. 57-70. 5

 First, the court concluded 

that Congress was not required to bar contributions 

by all “entities and individuals associated with corporations that have government contracts.” Id. at 62. 

The court observed that, like individual contractors, 

corporations that contract with the federal government are subject to Section 30119’s prohibition. Ibid. 

Congress was not required to prohibit contributions 

 5 The court of appeals observed that underinclusiveness arguments are generally made to demonstrate that a law was not 

actually motivated by, or does not in fact serve, a proffered state 

interest. Pet. App. 59-62. Petitioner, however, did “not challenge 

§ 30119 on these grounds.” Id. at 60. 
12

by a corporate contractor’s PAC, the court explained, 

because a PAC “is a separate legal entity” and contributions made by it may “present markedly different 

appearances to the public.” Id. at 63-64 (quoting 

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1669 

(2015)). The court also noted that Congress could 

reasonably have concluded that prohibiting contributions by “all those associated with corporate contractors would go too far at too great a First Amendment 

cost.” Id. at 65. 

The court of appeals rejected petitioner’s contention that government employees are similarly situated 

to contractors and should be subject to a contribution 

ban. Pet. App. 67-68. The court observed that employee contributions “carr[y] less risk of corruption or 

its appearance” because “regular employees do not 

generally need new contracts or renewals with the 

frequency required by outside contractors.” Id. at 68. 

The court further explained that federal employees 

“are subject to other restrictions” pursuant to the 

Hatch Political Activity Act (Hatch Act), 5 U.S.C. 7321 

et seq., “and enjoy other protections * * * that do 

not apply to contractors” pursuant to the Civil Service 

Reform Act of 1978, 5 U.S.C. 1501 et seq. Pet. App. 

67. Thus, “Congress could reasonably have thought 

that the difference in status of the two kinds of workers warrants this difference in treatment.” Id. at 67-

68.

The court of appeals also rejected petitioner’s reliance on a comparison between contractors and “other 

individuals who seek government benefits or positions,” such as those who seek federal grants or ambassadorships. Pet. App. 69. The court emphasized 

that Section 30119 “‘aims squarely at the conduct 
13

most likely to undermine’ the important interests that 

underlie it,” and it declined to “punish [Congress] for 

leaving open more, rather than fewer, avenues of 

expression, especially when there is no indication that 

the selective restriction of speech reflects a pretextual 

motive.” Id. at 70 (brackets in original) (quoting 

Williams-Yulee, 135 S. Ct. at 1668-1669).

Finally, the court of appeals rejected petitioner’s 

equal protection claim, which was premised on the 

same allegations of underinclusiveness. Pet. App. 70-

74. The court declined petitioner’s request that it 

apply strict scrutiny to evaluate the equal protection 

challenge, characterizing the argument for strict scrutiny as a “doctrinal gambit” designed to avoid the

First Amendment “closely drawn” standard of review. 

Id. at 71 (internal quotation marks omitted). The 

court concluded that, “in a case like this one, in which 

there is no doubt that the interests invoked in support 

of the challenged legislative classification are legitimate, and no doubt that the classification was designed to vindicate those interests rather than disfavor a particular speaker or viewpoint,” petitioner 

could “fare no better under the Equal Protection 

Clause than under the First Amendment itself.” Id. at 

73 (citation omitted). The court accordingly applied 

“closely drawn” scrutiny and rejected the equal protection challenge “[f]or the [same] reasons” the First 

Amendment claim failed. Id. at 74.

ARGUMENT

The en banc court of appeals correctly rejected petitioner’s First and Fifth Amendment challenges to 52 

U.S.C. 30119. The court’s unanimous decision reflects 

a straightforward application of this Court’s precedents, and it is consistent with the decisions of all 
14

courts of appeals that have considered similar constitutional challenges to state and municipal restrictions 

on contributions by government contractors. Further 

review is not warranted.

1. For 75 years, the prohibition on campaign contributions by federal contractors has deterred corruption and its appearance, and it has limited the patronage and coercive political activity that had previously 

tainted federal contracting. The court of appeals 

correctly held that Section 30119 does not violate the 

Constitution because it serves “a sufficiently important [government] interest” and is “closely drawn 

to avoid unnecessary abridgment of associational 

freedoms.” Buckley v. Valeo, 424 U.S. 1, 25 (1976) 

(per curiam). Petitioner’s objections to the court’s 

analysis lack merit.

a. Petitioner contends (Pet. 25-29) that strict scrutiny should apply to the contractor contribution ban. 

That contention is unfounded. Since Buckley, this 

Court has consistently held that laws that restrict 

contributions are subject to “closely drawn” scrutiny 

rather than strict scrutiny “because contributions lie 

closer to the edges than to the core of political expression.” FEC v. Beaumont, 539 U.S. 146, 161 (2003); 

see, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1446-

1462 (2014) (plurality opinion); Randall v. Sorrell, 548 

U.S. 230, 246-263 (2006) (plurality opinion); McConnell v. FEC, 540 U.S. 93, 231-232 (2003), overruled in 

part by Citizens United v. FEC, 558 U.S. 310 (2010); 

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431, 456-465 (2001); Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 386-395 (2000); California 

Med. Ass’n v. FEC, 453 U.S. 182, 196-199 (1981) (plurality opinion). As the Court in Buckley explained, 
15

“[w]hile contributions may result in political expression if spent by a candidate or an association[,] * * * 

the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U.S. at 21. Thus, compared to activities 

such as speaking or volunteering on a candidate’s 

behalf, the expressive value of a contribution—which 

funds someone else’s speech—is limited. See, e.g., 

McConnell, 540 U.S. at 135.

Petitioner maintains (Pet. 25-26) that strict scrutiny is appropriate because Section 30119 bans, rather 

than limits, contributions during the time period when 

it applies. But this Court in Beaumont rejected a 

distinction between contribution limits and contribution bans, reasoning that such a distinction “overlooks 

the basic premise” that, “in setting First Amendment 

standards for reviewing political financial restrictions[,] * * * the level of scrutiny is based on 

the importance of the political activity at issue to 

effective speech or political association.” 539 U.S. at 

161 (citation and internal quotation marks omitted)

(applying closely drawn scrutiny to uphold what is 

now 52 U.S.C. 30118, which bans contributions by 

corporations and unions); see McConnell, 540 U.S. at 

231-232 (applying closely drawn scrutiny to a law 

banning contributions by minors).

6

 Thus, while “the 

 6 Petitioner suggests (Pet. 25-26) that bans on contributions by 

individuals could be subject to more demanding scrutiny than bans 

on contributions by corporations. That argument ignores the established principle that the “degree of scrutiny turns on the nature 

of the activity regulated,” Beaumont, 539 U.S. at 162, rather than 

on the identity of the regulated party. Petitioner’s argument is also inconsistent with this Court’s decision in McConnell, which applied “closely drawn” scrutiny to a ban on contributions by individuals. See 540 U.S. at 231-232.
16

difference between a ban and a limit” should not “be 

ignored,” “the time to consider [the difference] is 

when applying scrutiny at the level selected, not in 

selecting the standard of review itself.” Beaumont, 

539 U.S. at 162.

7

 Petitioner offers no special justification to overrule Beaumont’s holding that contribution 

bans are subject to “closely drawn” scrutiny. See 

Dickerson v. United States, 530 U.S. 428, 443 (2000) 

(observing that, although “stare decisis is not an inexorable command, * * * even in constitutional cases, 

the doctrine carries such persuasive force that [the 

Court has] always required a departure from precedent to be supported by some special justification”) 

(citations and internal quotation marks omitted).

Petitioner also suggests (Pet. 27) that this Court 

could consider “eliminat[ing] * * * the distinction 

created in Buckley between contributions and expenditures, so that strict scrutiny would apply to restrictions on both.” But in the four decades since Buckley

was decided, this Court has consistently reaffirmed 

 7

 Petitioner expresses confusion (Pet. 26-27) about how to analyze a contribution ban under “closely drawn” scrutiny. But courts 

have had no trouble taking the nature of a ban into account when 

assessing a law’s constitutionality. The court of appeals in this 

case, for example, recognized that “the total ban on federal contributions by contractors is a significant restriction,” but it found that 

Congress’s decision to impose a ban rather than a limit is closely 

drawn because “the contracting context greatly sharpens the risk 

of corruption and its appearance” and “also greatly sharpens the 

risk of interference with merit-based public administration.” Pet. 

App. 46-48; see, e.g., Green Party of Conn. v. Garfield, 616 F.3d 

189, 204-205 (2d Cir. 2010) (emphasizing the need to carefully 

review a law banning contractor contributions, but ultimately 

holding that the law survived “closely drawn” scrutiny because it 

responded to “incidents that have created a strong appearance of 

corruption with respect to all contractor contributions”).
17

the foundational distinction between laws that restrict 

expenditures and laws that restrict contributions. 

See, e.g., McCutcheon, 134 S. Ct. at 1444-1445 (discussing the history of the distinction and its consistent 

application over time). The rationale for that distinction is as sound now as it was when Buckley was decided. And overruling Buckley now would severely 

disrupt the considerable reliance interests that have 

accrued over the past forty years, casting a number of 

this Court’s campaign-finance precedents into doubt. 

Petitioner identifies no justification for such massive 

upheaval in this important area of law.

Petitioner also argues (Pet. 28) that his equal protection challenge to Section 30119 should trigger strict 

scrutiny because, he asserts, “the right to make contributions is a fundamental right protected by the 

First Amendment.” As the court of appeals recognized, however, it would be anomalous to apply a 

higher level of scrutiny under the equal protection 

guarantee than would apply under the First Amendment itself, given that petitioner seeks to vindicate a 

First Amendment right. Pet. App. 71 (rejecting petitioner’s argument as a “doctrinal gambit, which would 

require strict scrutiny notwithstanding the Supreme 

Court’s determination that the ‘closely drawn’ standard is the appropriate one under the First Amendment”); see, e.g., Hill v. City of Scranton, 411 F.3d 

118, 126 (3d Cir. 2005) (“It is generally unnecessary to 

analyze laws which burden the exercise of First 

Amendment rights by a class of persons under the 

equal protection guarantee, because the substantive 

guarantees of the Amendment serve as the strongest 

protection against the limitation of these rights.”)

(brackets omitted) (quoting 3 Ronald D. Rotunda & 
18

John E. Nowak, Treatise on Constitutional Law: 

Substance and Procedure § 18.40, at 796 (3d ed. 

1999)). Indeed, petitioner acknowledged below that 

he knew of “no case in any court in which an equalprotection challenge to contribution limits succeeded 

where a First Amendment one did not.” Pet. App. 72

(citation and internal quotation marks omitted). The 

court of appeals correctly held that petitioner’s challenge to Section 30119 could “fare no better under the 

Equal Protection Clause than under the First 

Amendment itself.” Id. at 73 (quoting City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 55 n.4 (1986)).

b. Petitioner contends (Pet. 29-37) that Section 

30119 cannot survive “closely drawn” scrutiny. That 

argument is unavailing.

Petitioner does not seriously dispute that the governmental interests furthered by Section 30119—

prevention of quid pro quo corruption and its appearance, and protection against interference with meritbased government administration—are “sufficiently 

important” to justify restrictions on contractor contributions. See, e.g., McCutcheon, 134 S. Ct. at 1445 

(observing that an effort to limit quid pro quo corruption and its appearance is not only a sufficiently important governmental interest, but may also “properly 

be labeled ‘compelling’”). Petitioner states (Pet. 30) 

that “federal elected officials have no direct decisionmaking role in the award” of federal contracts and 

that federal law is “designed to protect against improper influences.” As the court of appeals observed, 

however, recent examples of corruption in the contracting context “speak for themselves” and show 

that, even today, the award of government contracts is 

not “immune from political interference.” Pet. App. 
19

38; see id. at 36-37 (concluding based on an extensive

review of the evidence that, “if the dam barring contributions were broken, more money in exchange for 

contracts would flow through the same channels already on display”).8

 

Petitioner principally argues (Pet. 30-37) that Section 30119 is not “closely drawn” to the important 

interests that underlie it because, in petitioner’s view, 

the law could be less restrictive.

9

 Although petitioner 

faults the court of appeals for analyzing his proposed 

alternatives “one by one” and concluding that none 

demonstrates a lack of fit between Section 30119 and 

its objectives, Pet. 30, petitioner does not identify any 

specific error in the court’s substantive analysis of his 

claims. The court gave due consideration to petitioner’s arguments that Section 30119 could be narrowed 

by excluding certain contracts (e.g., low-value con-

 8

 The record thus refutes petitioner’s suggestion (Pet. 36-37) that 

“massive changes in the laws governing both campaign contributions and government contracting” have rendered Section 30119 

unnecessary. Although petitioner derides Congress for failing to 

alter “the scope of the ban since its enactment,” Pet. 36, “[j]udicial 

deference is particularly warranted where, as here, [the Court] 

deal[s] with a congressional judgment that has remained essentially unchanged throughout a century of careful legislative adjustment.” Beaumont, 539 U.S. at 162 n.9 (citation and internal quotation marks omitted).

9

 Petitioner contends (Pet. 32) that “the clearest example of the 

overinclusiveness of [S]ection 30119 is that it applies to contributions to independent political committees, which by definition are 

unconnected to any candidate or party.” But the court of appeals 

held that petitioner lacked standing to challenge the statute on 

that basis because he wishes to contribute only to candidates and 

their political parties. Pet. App. 52; see id. at 6. Any argument 

that Section 30119 should exclude contributions made to PACs 

therefore is not properly before this Court. 
20

tracts), certain individuals (e.g., former employees or 

those hired through sole-source contracts), or certain 

contributions (e.g., small contributions). Pet. App. 45-

54. But the court found that each of petitioner’s proposed limitations on Section 30119’s scope could hinder the achievement of Congress’s objectives. Ibid. 

The court emphasized that the contracting context 

“greatly sharpens” the risk of corruption and coercion 

because “there is a very specific quo for which the 

contribution may serve as the quid,” and because “a 

contractor’s need for government contracts is generally more focused than a member of the general public’s 

need for other official acts.” Id. at 47-48. Those risks, 

the court concluded, justified Section 30119’s “significant restriction.” Id. at 46. 

Petitioner’s argument further ignores the limitations that Congress built into Section 30119 to prevent 

unnecessary restriction of First Amendment activity. 

Section 30119 “is limited to the period between commencement of negotiations and completion of contract 

performance.” Pet. App. 55. 10 And even during the 

time the ban applies, Section 30119 leaves open “other 

forms of political engagement,” such as speaking

about candidates, volunteering for campaigns, and 

raising funds for candidates or parties. Id. at 54-55; 

see Buckley, 424 U.S. at 28 (finding contribution re-

 10 Two of the three original plaintiffs in this case no longer have 

contracts with the government and so are once again free to make 

campaign contributions. Pet. App. 5; see note 2, supra. Beginning 

in 2017, petitioner likewise will be able to make contributions 

unless he enters (or negotiates to enter) into a new contract with 

the government. Section 30119’s temporal limitation makes the 

statute less restrictive than laws or ethical rules prohibiting campaign contributions by certain other classes of individuals, such as 

foreign nationals and federal judges. Pet. App. 46.
21

striction closely drawn in part because it left “persons 

free to engage in independent political expression” 

and “to associate actively through volunteering their 

services”). Section 30119 focuses narrowly on the 

activity that Congress deemed most likely to lead to 

coercion and corruption, while leaving contractors a 

broad range of alternative means of political expression. Considering the statutory scheme as a whole, 

the court of appeals correctly found that Section 

30119’s “scope is in proportion to the interest[s] 

served.” Board of Trs. of State Univ. of N.Y. v. Fox, 

492 U.S. 469, 480 (1989) (citation and internal quotation marks omitted).

c. Petitioner also contends (Pet. 18-25) that Section 

30119 is impermissibly underinclusive because it does 

not bar contributions made by three groups: (1) entities and individuals affiliated with corporate contractors; (2) federal employees; and (3) individuals who 

seek government benefits, such as grants, loans, or 

ambassadorships. That claim lacks merit.

“It is always somewhat counterintuitive to argue 

that a law violates the First Amendment by abridging 

too little speech.” Williams-Yulee v. Florida Bar, 135 

S. Ct. 1656, 1668 (2015). Although “underinclusiveness can raise doubts about whether the government 

is in fact pursuing the interests it invokes, rather than 

disfavoring a particular speaker or viewpoint,” ibid.

(citation and internal quotation marks omitted), petitioner conceded below that Section 30119 was genuinely motivated by and intended to advance the government’s anti-corruption and anti-coercion interests. 

See Pet. App. 60. Petitioner’s argument that Section 

30119 should nevertheless sweep more broadly runs 

counter to this Court’s recognition that “policymakers 
22

may focus on their most pressing concerns” without 

“address[ing] all aspects of a problem in one fell 

swoop.” Williams-Yulee, 135 S. Ct. at 1668 (noting 

that, even when strict scrutiny applies, the Court has 

upheld laws “that conceivably could have restricted 

even greater amounts of speech in service of their 

stated interests”); see, e.g., Buckley, 424 U.S. at 105 

(rejecting a claim of invidious discrimination by invoking “the familiar principles that a statute is not invalid 

under the Constitution because it might have gone 

further than it did [and] that a legislature need not 

strike at all evils at the same time”) (citations and 

internal quotation marks omitted). 

In any event, the court of appeals correctly recognized that federal contractors are not similarly situated to the other groups petitioner identifies. Petitioner 

suggests (Pet. 19-21) that Section 30119 should prohibit contributions by a corporate contractor’s PAC, 

officers, and shareholders. But those entities and 

individuals are not the actual contracting party and 

have a separate legal identity from the corporation 

with which they are affiliated. See Pet. App. 62-65. 

Congress could reasonably determine that contributions by persons other than the contractor are less 

likely to cause the harms at which Section 30119 is 

directed, and that a ban on contributions by such 

persons would trench unduly on political activity. See 

Williams-Yulee, 135 S. Ct. at 1669 (rejecting underinclusiveness argument because, “[h]owever similar the 

two solicitations may be in substance, a State may 

conclude that they present markedly different appearances to the public”); Pet. App. 65 (“Congress 

could reasonably have concluded that banning contributions by all those associated with corporate contrac-
23

tors would go too far at too great a First Amendment 

cost.”).

There is likewise no sound basis for petitioner’s 

contention (Pet. 22-24) that Congress’s failure to ban

contributions by federal employees renders Section 

30119 unconstitutional. Because “employees do not 

generally need new contracts or renewals with the 

frequency required by outside contractors,” “permitting them to make contributions carries less risk of

corruption or its appearance.” Pet. App. 68. And 

while Section 30119 does not apply to federal employees, Congress has enacted other measures to further 

its anti-corruption and anti-coercion objectives in this 

distinct sphere, by subjecting employees to the restrictions of the Hatch Act and by affording them the

protections of the Civil Service Reform Act. Id. at 67-

68. Petitioner offers no reason to “overturn[] Congress’ decision about how to calibrate these different 

restrictions.” Id. at 68.

Petitioner likewise cannot show (Pet. 21-22) that 

Section 30119 is constitutionally infirm because it fails 

to cover other individuals who receive government 

benefits, such as recipients of federal grants and 

loans. Petitioner cites no history of corruption and

coercion in that context that is comparable to the 

history of contractor corruption and coercion that 

prompted Congress to enact Section 30119. As the 

court of appeals observed, moreover, “there is no 

basis for a claim that Congress invidiously discriminated against contractors and in favor of others,” and 

no “reason to believe that permitting contributions by 

these other individuals defeats § 30119’s purpose of 

protecting against corruption and interference with 

merit-based administration.” Pet. App. 69. “Congress 
24

is surely not prohibited from fighting such problems 

in one sector unless it fights them in all.” Ibid.

Petitioner contends (Pet. 19) that, to “decide whether parties are similarly situated,” the court of appeals was required to “examin[e] the asserted rationale for the ban as applied to individual contractors 

and ask[] whether that rationale also applies to the 

other groups that are free to make contributions.” 

But as the foregoing discussion demonstrates, the 

court followed exactly that approach and concluded 

that Congress could reasonably distinguish between

contractors and the other groups that petitioner has 

identified. Based on that analysis, the court correctly 

rejected petitioner’s claim that Section 30119’s alleged 

underinclusiveness causes it to violate the Constitution’s free speech and equal protection guarantees.

2. “At least seventeen [S]tates now limit or prohibit campaign contributions from some or all state contractors or licensees.” Pet. App. 32-33 & n.18. Many 

of those state laws have been challenged based on

constitutional theories similar to those asserted here, 

and the courts of appeals have uniformly upheld the 

laws. See Yamada v. Snipes, 786 F.3d 1182, 1205 (9th 

Cir.) (upholding Hawaii’s prohibition on campaign 

contributions by state contractors), cert. denied, No. 

15-215 (Nov. 30, 2015); Ognibene v. Parkes, 671 F.3d 

174, 189-190 & n.15 (2d Cir.) (upholding New York 

City’s restrictions on campaign contributions by those 

doing business with the City), cert. denied, 133 S. Ct. 

28 (2012); Green Party of Conn. v. Garfield, 616 F.3d 

213, 219 (2d Cir. 2010) (upholding Connecticut’s ban 

on campaign contributions by government contractors), cert. denied, 131 S. Ct. 3090 (2011); see also

Preston v. Leake, 660 F.3d 726, 735 (4th Cir. 2011) 
25

(upholding North Carolina law prohibiting contributions from registered lobbyists); Blount v. SEC, 61 

F.3d 938, 944-948 (D.C. Cir. 1995) (upholding regulation barring contributions by finance professionals to 

state officials with whom they do business), cert. denied, 517 U.S. 1119 (1996). Given the absence of any 

division of authority concerning the constitutionality 

of government-contractor contribution restrictions, 

this Court’s review is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. 

DANIEL A. PETALAS

Acting General Counsel

LISA J. STEVENSON

Deputy General Counsel

KEVIN DEELEY

Acting Associate General 

Counsel 

HARRY J. SUMMERS

Assistant General Counsel

SETH NESIN

Attorney

Federal Election

Commission

DONALD B. VERRILLI, JR. Solicitor General

DECEMBER 2015