No. 15-428

IN THE

Supreme Court of the United States 

JAN MILLER,

PETITIONER,

v.

FEDERAL ELECTION COMMISSION,

RESPONDENT.

On Petition for a Writ of Certiorari to the 

United States Court of Appeals for the 

District of Columbia Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

December 22, 2015

ALAN B. MORRISON

(COUNSEL OF RECORD)

THE GEORGE WASHINGTON 

UNIVERSITY LAW SCHOOL 

2000 H STREET NW

Washington, DC 20052

(202) 994-7120

(202) 994 5157 (Fax)

abmorrison@law.gwu.edu

Counsel for Petitioner
1

The fundamental flaw in respondent’s 

opposition is its failure to recognize that this case 

is not about whether there are potentials for 

corruption or the appearance of corruption when 

federal contractors make political contributions. 

Rather, the question is whether there is a 

“substantial mismatch” between the ban in 52 

U.S.C. § 30119 applicable to petitioner and other 

individual contractors, and the absence of any 

restriction on campaign contributions by the 

political committees of corporate contractors and 

by others who are similarly situated to petitioner. 

It is the mismatch finding that this Court made in 

McCutcheon v. FEC, 134 S. Ct. 1434, 1446 (2014),

that was the basis of its holding that a limit of 

$123,300 on the total amount that an individual 

could lawfully contribute in a federal election cycle 

was unconstitutional. Although respondent cited 

McCutcheon four times in its opposition, it never 

quoted the “substantial mismatch” test, let alone 

attempted to explain how Mr. McCutcheon could 

not be barred from giving more than $3 million, but 

petitioner cannot write a check for even $3.

The substantial mismatch in this case is 

most striking with respect to the differing 

treatment of individual federal contractors and 

their corporate counterparts. To be sure, the ban

in section 30119 applies to corporate contractors,

as well as individuals like the three plaintiffs in 

this case. However, in subsection 30119(b), 

Congress expressly authorized a corporate 

contractor to establish, administer, and pay for the 
2

solicitation of contributions to its own political 

committee, which must bear the corporation’s

name. As a result, a corporate contractor can 

effectively nullify the ban and make the same 

political contributions that the law allows every 

other corporate political committee to make. And 

corporate contractors take advantage of this 

opportunity. For example, in the 2016 election 

cycle, which has barely begun, eleven defense 

contractors have already contributed $6,993,200, 

www.opensecrets.org/pacs/sector.php?txt=D01&cy

cle=2016 (last visited December 18, 2015), while 

petitioner is subject to a complete ban. In addition, 

all of the shareholders and officers of corporate 

contractors, including those who negotiate directly 

with federal agencies for contracts, are free from 

the ban.

Others who have incentives to curry favor 

from federal elected officers and their political 

parties are also excluded from the ban. The main 

groups in this category are would-be grantees, for 

whom the annual total amount now equals or 

exceeds that for contractors, and bundlers whose 

interest in raising money for candidates for federal 

office and their political parties is often fueled by 

their desire for a high level appointment in 

Government. And while federal employees may 

not have the identical financial motivations as do 

individual contractors, they have incentives to 

please their superiors, yet the ban does not apply 

to them. Moreover, for the thousands of retired 

federal employees like petitioner who were 

requested by their agency to return to their former 

jobs as contractors, the notion that any 
3

contribution that they might make while in that job

might bear on their contract renewal, is far-fetched 

at best.

There are other aspects of the mismatch that 

are almost as significant. The only federal elected 

officials are the President and Members of 

Congress, but under current procurement law, they

have no direct responsibilities regarding federal 

contracts, which are all awarded at the agency 

level. Petitioner does not claim that it is impossible 

for elected federal officials or even political parties 

to have some influence over some contracts, but 

that the connection between a contribution by an 

individual contractor to any of them is so remote 

that it falls well below the connection necessary to 

avoid being a substantial mismatch. In addition, 

the ban in section 30119 extends to contributions 

to independent political committees, like those 

sponsored by the Right to Life Committees and 

Planned Parenthood, who have no conceivable 

authority over federal contracts. 

The zero tolerance in this ban is also far 

broader than can be justified. Even assuming that 

individuals like petitioner pose some special 

danger of creating the appearance of corruption, 

there is no reason why there could not be a lower 

contribution limit for them, as is found in other 

laws. Indeed, federal law requires the public 

reporting of contributions as one means to expose 

potential corruption, but it expressly excludes a 

contribution of $200 or less, which would seem like 

a much more reasonable number than zero. Or 

small dollar contracts, like the one for $12,500 that 
4

plaintiff Wagner was recruited by the 

Administrative Conference of the United States to 

perform, could also be excluded, as could those 

applicable to retires, such as FBI agents, returning 

to help out their former employer. And, unlike the 

law upheld in Williams-Yulee v. The Florida Bar, 

135 S. Ct. 1656 (2015), which allowed judicial 

candidates to form a committee to solicit campaign 

contributions for their elections, there is no similar 

outlet for contractors like petitioner, whom the 

FEC has ruled cannot even spend their own, noncontract derived money to make contributions. 11 

C.F.R. § 115.5. 

Contrary to respondent’s suggestion, these 

mismatches are not the result of Congress taking 

one step at a time and not yet getting around to 

fixing them. Section 30119 was originally enacted 

in 1940, and the ban has remained unchanged 

since then – except for the creation of the political 

committee loophole in 1976. In the interim, the 

worlds of campaign finance and government 

contracting have undergone radical changes, but 

Congress has never examined these anomalies and 

the unique and unjustifiable burden that the ban 

in section 30119 places on petitioner and other 

individual contractors. As McCutcheon, 134 S. Ct. 

at 1446, makes clear, a law’s constitutionality must 

be assessed in light of the other laws currently in 

effect, not just those when it was enacted.

From the outset, petitioner has argued this 

case under both the First Amendment and the 

Equal Protection guarantee of the Fifth 

Amendment. Under each he has urged the 
5

application of strict scrutiny, but after McCutcheon 

it should have been clear to the Court of Appeals 

and to respondent that the “closely drawn” 

standard, on which the “substantial mismatch” test 

is based, has more than enough teeth to set aside 

section 30119 as applied to individual contractors 

like petitioner.

CONCLUSION

For the foregoing reasons and those set forth 

in the petition, the writ of certiorari should be 

granted.

Respectfully submitted,

Alan B. Morrison

(Counsel of Record)

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

abmorrison@law.gwu.edu

Counsel for Petitioner

December 22, 2015