ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 30, 2013 _____________________

No. 13-5162 _____________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________

WENDY E. WAGNER, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant. _____________________

On Certification from the 

United States District Court

For the District of Columbia

No. 1:11-cv-08841 (JEB) _____________________

REPLY BRIEF FOR PLAINTIFFS _____________________

Alan B. Morrison

George Washington University Law School

2000 H Street, N.W.

Washington, D.C. 20052

(202) 994-7120

abmorrison@law.gwu.edu

Arthur B. Spitzer

American Civil Liberties Union 

 of the Nation’s Capital

4301 Connecticut Ave, N.W., Suite 434

Washington, D.C. 20008

(202) 457-0800

artspitzer@aclu-nca.org

Counsel for Plaintiffs

August 23, 2013

USCA Case #13-5162 Document #1453165 Filed: 08/23/2013 Page 1 of 37
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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................ ii

TABLE OF AUTHORITIES.........................................................................iii

SUMMARY OF ARGUMENT...................................................................... 1

ARGUMENT.................................................................................................. 4

I. WHAT PLAINTIFFS ARE NOT ARGUING,

AND WHAT THEY ARE ARGUING INSTEAD. ................................. 4

A. The Problem with Section 441c Is Not the Absence of the

Possibility of Corruption in Contracting, but Its Lack of Fit. .............. 4

B. The Experience of the States Is of Limited Relevance. ....................... 7

C. The Courts Must Act in Light of the Deficiencies in Section 441c

That Congress Has Failed to Correct. ................................................ 10

D. Based on the Purposes That Allegedly Support Section 441c, 

Corporate Contractor PACS Are Legally Indistinguishable

From their Corporate Sponsors. ......................................................... 15

II. A NUMBER OF THE FEC’S ARGUMENTS

UNDERMINE ITS DEFENSE OF SECTION 441C............................ 21

III. PLAINTIFFS’ EQUAL PROTECTION CLAIMS

ARE NOT REPACKAGED VERSIONS OF THEIR

FIRST AMENDMENT CLAIM........................................................... 25

IV. THERE ARE NO REASONABLE ALTERNATIVES

 TO THE BAN IN SECTION 441C THAT CAN SAVE IT. ............... 28

CONCLUSION............................................................................................. 31

CERTIFICATE OF COMPLIANCE................................................................

CERTIFICATE OF SERVICE.........................................................................

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TABLE OF AUTHORITIES

Cases

*Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995). ........................................... 12

*Buckley v. Valeo, 424 U.S. 1 (1976).................................... 7, 11, 21, 24, 25

Camreta v. Greene, 131 S. Ct. 2020 (2011). .................................................. 3

Citizens United v. FEC, 558 U.S. 310 (2010).................................. 18, 20, 29

Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers, 

413 U.S. 548 (1973). ................................................................................. 21

Craig v. Boren, 429 U.S. 190 (1976)............................................................ 15

FEC v. Beaumont, 539 U.S. 146 (2003)......................................................... 4

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). ............. 18, 20

*Green Party v. Garfield, 616 F.3d 189 (2nd Cir. 2010)................ 8, 9, 17, 31

Lyng v. Int’l Union, 485 U.S. 360 (1988). ............................................. 24, 25

*McConnell v. FEC, 540 U.S. 93 (2003)................................................. 7, 25

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

cert. denied, 133 S. Ct. 28 (2012) ............................................................... 9

Randall v. Sorrell, 548 U.S. 230 (2006)....................................................... 30

Reed v. Reed, 404 U.S. 71 (1971). ............................................................... 15

*Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)..................................... 5, 7, 15

Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 

468 U.S. 841 (1984). ................................................................................. 24

Texas v. Johnson, 491 U.S. 397 (1989)........................................................ 29

United States v. Grace, 461 U.S. 171 (1983). .............................................. 29

Wyman v. James, 400 U.S. 309 (1971). ....................................................... 24

*Authorities principally relied upon are marked with an asterisk.

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Statutes

2 U.S.C. § 431........................................................................................... 8, 28

2 U.S.C. § 431 (13)(A) ................................................................................. 19

2 U.S.C. § 431(8)(B)..................................................................................... 28

2 U.S.C. § 432(e)(5)...................................................................................... 17

2 U.S.C. § 434(b)(3)(A)................................................................................ 19

2 U.S.C. § 441b(b)(2)(C).............................................................................. 17

2 U.S.C. § 441c............................................................. 2-4, 7, 9-24, 26, 28-30

18 U.S.C. § 601............................................................................................. 21

18 U.S.C. § 603............................................................................................. 21

18 U.S.C. § 606............................................................................................. 21

18 U.S.C. § 610............................................................................................. 21

S. C. Code Ann. § 8-13-1342 (2012).............................................................. 8

Regulations

11 C.F.R. §§ 100.74-100.77 ......................................................................... 28

Other Authorities

Jack Maskell, “Political” Activities of Private Recipients of Federal Grants 

or Contracts, Cong. Research Serv., RL 34725, Oct. 21, 2008. ............... 12

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No. 13-5162

___________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________

WENDY E. WAGNER, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

___________________________

REPLY BRIEF FOR PLAINTIFFS

___________________________

SUMMARY OF ARGUMENT

Despite plaintiffs’ best efforts to be clear in their Opening Brief, the 

FEC and its amici persist in suggesting that plaintiffs are taking a variety of 

positions that they have never urged. In Point I, we respond to those 

mistaken claims regarding (A) whether there is any possibility that improper 

influences may be used by some would-be contractors (of course there is, 

but that is not the proper question); (B) whether the state experiences with 

contracting abuses and their solutions are irrelevant (of course they are not, 

but their relevance is quite limited); (C) whether Congress is required to 

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2

respond all at once to all of the ways in which campaign contributions may 

influence decision-makers (of course not, but that does not mean that it can 

do nothing regarding individual contractors and section 441c for 70 years, 

despite massive changes in federal contracting and in the regulation of 

campaign financing in federal elections); and (D) whether there are 

differences between a corporation and its political committee, and between a 

corporation and its officers and major shareholders (of course there are, but 

the proper question is whether those differences are relevant in analyzing the 

constitutionality of section 441c, and they are not).

Point II analyzes a series of arguments contained in the FEC’s brief 

that undermine other positions that it is taking and/or demonstrate the 

weakness of those other positions. These include the contention that the 

Court should apply the more relaxed “rational basis” standard of scrutiny to 

plaintiffs’ Equal Protection claim, rather than even an intermediate standard, 

resembling the more rigorous “closely drawn” standard that would apply 

even if there were no preferential treatment of corporate contractors, their 

affiliates, and federal employees. 

In Point III we demonstrate that, while First Amendment and Equal 

Protection challenges are similar in some situations, that is not the case here. 

The reason is that here the principal difference in treatment – between 

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individual and corporate contractors – does not result from a complex 

interrelation among various operative provisions of a larger law. Rather, 

because the preference for corporate PACs is embedded in section 441c, it is 

eminently sensible to view that discrimination under an Equal Protection 

analysis. 

Finally, in Point IV, we show that, despite the FEC’s grandiose claims 

about how contractors have a “broad range” of “numerous” alternatives to 

making political contributions, there is really only one: contractors may 

engage in fundraising on behalf of a candidate or political party. But that 

option, which allows a contractor to spend up to $1000 and to raise 

unlimited amounts of money for the candidates or parties of the contractor’s 

choice, undermines the theory on which section 441c is defended since it 

permits contractors to accumulate far larger amounts of political 

indebtedness from elected officials than direct contributions that are subject 

to the statutory limits.1

 

 1

 Note 13 of the FEC’s brief (p. 40) questions plaintiff Wagner’s continued 

standing. The Court need not decide whether she still has standing: as long 

as one plaintiff has standing, the standing of the others need not be 

considered. See e.g. Camreta v. Greene, 131 S. Ct. 2020, 2034 n.9 (2011).

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ARGUMENT

I. WHAT PLAINTIFFS ARE NOT ARGUING,

AND WHAT THEY ARE ARGUING INSTEAD.

A. The Problem with Section 441c Is Not the Absence of the

 Possibility of Corruption in Contracting, but its Lack of Fit.

The theme of much of the briefs of the FEC and its amici is that 

plaintiffs are arguing that there was no need for Congress to take any steps 

to guard against those interested in obtaining federal contracts from using 

political contributions, as well as gifts, bribes, and other means, to gain an 

undue advantage in the process. That is not plaintiffs’ position. Plaintiffs 

recognize that there is a danger that the process may be corrupted, or may 

have the appearance of corruption. Their argument is that section 441c as 

applied to them is so ill-fitting that it cannot meet the First Amendment 

standard that at least requires section 441c to be “closely drawn” to address 

the problem.2

As plaintiffs argued in their Opening Brief, the first question, to which 

the FEC still has no answer, is why a total ban is needed and why the 

contribution limits applicable to everyone else do not suffice to prevent 

 2 The FEC agrees that section 441c must be closely drawn, while plaintiffs 

urge the Court to apply strict scrutiny to this absolute ban on contributions 

by individuals (Pls. Br. 24-28). The decision applying the closely drawn 

standard to a ban, FEC v. Beaumont, 539 U.S. 146 (2003), involved a 

corporation, and should not be extended to registered voters like plaintiffs.

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abuses by federal contractors. That question is not limited to a comparison 

of contributions by ordinary citizens who have no special business before the 

federal government. It includes federal grantees, who are more numerous 

than contractors and who are in precisely the same position in terms of 

seeking advantages as are plaintiffs, but are not covered. The same question

applies to those who not only give “large contributions” (FEC Br. 35), but 

also bundle many thousands more in the hopes of gaining ambassadorships 

and other high positions in the executive or legislative branches. Moreover, 

there is full public disclosure of all contributions in excess of $200, which 

raises the further unanswered question of why a $100 donation is not 

important enough to be disclosed, but a $100 contribution from a federal 

contractor is a felony. And while it is correct that those who attend the 

military academies have to serve their country after doing so (just as 

contractors have to perform their contracts), the need for a specific 

nomination from an elected federal official may suggest to some parents a 

special need to make a contribution to support that official’s re-election. 

Although the FEC has argued that claims of under-inclusion are 

irrelevant, this Court, sitting en banc in Sanjour v. EPA, 56 F.3d 85 (D.C. 

Cir. 1995), struck down a ban on outside reimbursement of certain travel 

expenses of federal employees. It did so because of “the obvious lack of 

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‘fit’ between the government’s purported interest and the sweep of its 

restrictions. There is a patent incongruity between the two that features both 

an ‘underinclusive’ and an ‘overinclusive’ component [with the] most 

troubling feature” being under-inclusiveness.” Id. at 95. Federal employees 

were permitted to receive reimbursement if their agency approved the 

presentation; the problem was that “the benefit accruing to an employee 

from a week relaxing in four-star hotels and regaling on five-course feasts at 

the expense of a private party is in no way diminished by first obtaining 

agency approval.” Id. As in this case, the government had “not even 

attempted to regulate a broad category of behavior”– there, not banning 

reimbursement for approved employee appearances, and here, not banning 

contributions by others with an economic stake in government decisions. 

The Court explained that, because the exclusion gave rise to “precisely the 

harm that supposedly motivated it to adopt the regulations, we have trouble 

taking the government’s avowed interest to heart.” Id.

The Court also found that “the regulations are nearly as troublingly 

overinclusive as they are underinclusive.” Id. at 97. The problem was that if 

“the government has a substantial interest with respect to only a subcategory 

of the restricted speech, then its interest will not readily outweigh the burden 

imposed on the larger category of speech subject to regulation.” The same 

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over-inclusion problem exists here, where the ban applies to many situations 

in which the government has little if any interest in banning contributions, 

such as small contributions, small contracts, and contributions to 

independent political committees and minor parties and candidates, to 

mention only the most obvious. Although the Court in Sanjour applied a 

slightly different First Amendment test than the closely drawn one 

applicable to political contributions, both tests require a significant fit 

between ends and means, and section 441c cannot satisfy that requirement 

because it too is both under- and over-inclusive.3

B. The Experience of the States Is of Limited Relevance.

The FEC and its amici devote much of their briefs to showing that 

problems of corruption arise in state and local contracting. From that they 

seek to establish that the remedies used by states and localities, some of 

which have been upheld by the courts, support section 441c. Plaintiffs do 

not contend that the state experience is wholly irrelevant, but instead argue 

that decisions upholding state laws are not good guides because of four 

 3 The FEC continues to rely heavily on Buckley v. Valeo, 424 U.S. 1 (1976), 

and McConnell v. FEC, 540 U.S. 93 (2003), even though the contribution 

laws upheld in those cases were contribution limits, not bans. Moreover, the 

ban on contributions by those under age 18 in McConnell was stricken as 

being overly broad, id. at 231-32, the same contention that plaintiffs make 

here.

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significant differences between the federal system and those found in the 

states. 

First, the contracting systems are very different, with many states 

assigning specific roles to their governors and legislatures for different 

contracts, as evidenced by Connecticut’s ban which is “branch specific.” 

Green Party v. Garfield, 616 F.3d 189, 194 (2nd Cir. 2010). In the South 

Carolina law cited by amici (Br. 6, n.10), the ban applies only to an “official 

[who] was in a position to act on the contract’s award.” S.C. Code Ann. § 8-

13-1342 (also excluding “contracts awarded through competitive bidding 

practices”). In contrast, the federal system is quite decentralized and is 

governed by a number of statutes that have produced a complex and highly 

regulated process. See Pls. Br. 11-13.4

Second, a state comparison is significant only if the existing state 

system of regulating of campaign finance is comparable to that under the 

Federal Election Campaign Act, 2 U.S.C. §§ 431 et seq (“FECA”). That 

includes modest contribution limits applicable to everyone, full disclosure, 

 4 The FEC (Br.10-12) relies on the deposition of Professor Steven Schooner,

who teaches government contracts and has worked on government contracts 

from inside the government and been a federal contractor himself. His 

deposition, read as a whole, paints a very different picture from the one 

suggested by the FEC; in his view the process is carefully regulated, and in 

most cases reaches decisions on the merits and without outside influence, 

although he sensibly acknowledges that no contracting system can be

perfect. JA 208 (pp. 98-99); 213 (p. 117).

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and an agency with powers to issue rules and take enforcement actions. In 

addition, federal elections are only for President and Congress, whereas 

states generally elect many other officeholders who have various contracting 

responsibilities. 

Third, there is also no indication in any of the decided cases that any 

of the state laws actually cover individuals like plaintiffs Brown and Miller, 

who function as employees, even though they are technically contractors. 

Indeed, there is no indication that states or localities routinely hire back 

retirees as contractors, instead of as part-time employees, as USAID, the 

FBI, and other federal agencies do. Moreover, as far we have been able to 

determine, states do not have a significant number of individuals hired as 

contractors to perform functions like those that plaintiff Wagner performed 

on a part-time basis, or that are carried out by the many other individuals 

who are hired as federal contractors for other positions that are covered by 

section 441c. See JA 106.

Fourth, state and local laws on contractor contributions have generally 

been instituted after lesser measures have failed and scandals resulted. 

Green Party, 616 F.3d at 193; Ognibene v. Parkes, 671 F. 3d 174, 178-80 

(2nd Cir.), cert. denied, 133 S. Ct. 28 (2012). Indeed, in Green Party, the 

court struck down a similar ban on contributions by lobbyists because there 

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had been no scandals involving them, as there had been with contractors. 

616 F. 3d at 205-07. By contrast, section 441c was enacted before the 

intricate and well-developed federal systems regulating contracts and 

campaign finance were in place, and it has not changed since then. 

Plaintiffs do not suggest that the experience in the states is irrelevant, 

or that the opinions in cases challenging state laws should be disregarded 

entirely. Rather, unless the four factors discussed above line up with those 

in the federal system – and they do not – the lessons to be learned from state 

systems and cases challenging them are quite limited. Plaintiffs’ Opening 

Brief also pointed out distinguishing features of the other laws relied on by 

the FEC, such as exemptions and exclusions that are not found in section 

441c, and they will not be repeated here. For these four reasons, the Court 

should proceed with great caution before relying on what other courts have 

ruled in cases involving systems that are quite different from the one at issue 

here. 

C. The Courts Must Act in Light of the Deficiencies in Section 441c

That Congress Has Failed to Correct.

The FEC and its amici respond in two ways to plaintiffs’ argument 

that the Court must step in because Congress has failed to remedy the 

deficiencies that plaintiffs have identified regarding the ban on individual 

contractor contributions. First, the FEC quoted the District Court, which 

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concluded that “Congress need not solve every problem at once.” Br. 16, 

quoting JA 238. Its amici accuse plaintiffs of insisting, contrary to Buckley, 

424 U.S. at 105, that Congress not be allowed to “take one step at a time” 

(Br. 30). Second, the FEC suggests that plaintiffs contend that Congress can 

save section 441c only by addressing “Every Potential Avenue for 

Corruption” (Br. 42, boldface in original heading). Neither response 

accurately characterizes plaintiffs’ position.

As to the one-step-at-a-time argument, it is not plaintiffs’ position that 

Congress must solve all of the problems at once. But the one-step-at-a-time 

doctrine does not trump the constitutional requirement that a statute banning 

political contributions must be narrowly tailored to serve a compelling 

interest, or at least closely drawn to address a sufficiently important interest. 

And the appropriate standard must be applied to the statute that exists today 

and the world in which it operates today, not the statute as it was enacted 

seventy years ago and the federal contracting world of 1940. Since section 

441c was enacted, the only change Congress has made has been to add a 

provision enabling corporate contractors to avoid its impact, thus creating a 

statute that can no longer be viewed as closely drawn (if it ever was) because 

it fails to address what is undoubtedly a major part of the problem it is said 

to address.

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Nor can section 441c be viewed as closely drawn today in light of the 

major changes in federal contracting law and the massive increase in the use 

of federal grants that have taken place since its enactment. It is not the “first 

step” with which plaintiffs find fault (although they doubt that there was a 

justification for a total ban even in 1940). Instead it is the failure of 

Congress to make any changes – except a major retrogressive change – in 

section 441c in light of the significant changes in the relevant facts since that 

first step was taken, that precludes a finding that section 441c is closely 

drawn.5

Congress’ action and inaction are particularly noteworthy following 

this Court’s approval of the quite different and much more tailored system 

that the SEC created for dealing with the appearance that multi-million 

dollar municipal bond contracts were being influenced by campaign 

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

features are exceptions for small donations; its application only to 

contributions to individuals who are part of the bond contracting process; 

and its focus on the contracting side rather than the contribution side, by 

 5 The FEC (Br. 42) cites Jack Maskell, “Political” Activities of Private 

Recipients of Federal Grants or Contracts, Cong. Research Serv.,

RL 34725, Oct. 21, 2008, for the proposition that federal grant recipients are 

also subject to restrictions. But none of those restrictions include bans on 

political contributions by grantees, and all of them apply only to the use of 

grant money and not to other funds of the recipient. Id. at 23-25.

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forbidding those who made contributions from receiving a contract for a 

period after the contribution was made, rather than banning contributions by 

those who already have contracts and may not seek another. It also banned 

contributions by a corporate PAC and other individuals directly involving in 

the municipal bond business for the would-be underwriter. 

The SEC rule shows how a carefully crafted solution can address the 

corruption or appearance of corruption problem used to justify section 441c

in a way that can be upheld by the courts, while also protecting the First 

Amendment rights of contractors. Although the FEC contends that the 

statutory lines between the permitted and the forbidden are part of “a 

reasonable legislative judgment” to which this Court should defer (FEC Br. 

24-25), there is not the slightest evidence that Congress has ever looked at 

section 441c with contemporary circumstances in mind. The FEC also 

argues (Br. 36) that “Congress is better equipped to make empirical 

judgments about which alternatives are best to achieve its objectives,” but 

that argument rests on the false assumption that Congress has made an 

empirical judgment about the world of today; Congress cannot simply rest 

on what it did in the very different world of 1940 and expect the courts today 

to defer to what it did then. Thus, contrary to the FEC’s claim (FEC Br. 59), 

this is not a case of a “delicate balancing of interests [as part of] a legislative

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judgment to which courts defer.” Instead, there are 70 years of 

congressional neglect in solving these problems, while adding subsection 

441c(b) that created the PAC loophole for contractor corporations, thereby 

making the situation comparatively worse for individual contractors like 

plaintiffs. This history confirms that section 441c is not closely drawn now, 

if it ever was.

As for the contention that plaintiffs are insisting that section 441c is 

unconstitutional unless it includes all of the features found in other laws that 

reduce their harsh impact, that is also not plaintiffs’ position. Rather, it is 

the failure to include any of them, either to bring equality to plaintiffs in 

comparison with corporate contractors and federal grantees (among others), 

or to create exclusions for small contracts, small donations, donations to 

minor parties, or donations to independent political committees, or to fix to 

any of the other obvious defects in the law, that makes it unconstitutional 

under the First Amendment and the Equal Protection guarantee of the Fifth 

Amendment. 

Nonetheless, the FEC and its amici contend that plaintiffs’ objections 

about the sufficiency of the tailoring of section 441c should be addressed to 

Congress, not the courts. The same could be said of any First Amendment 

case in which insufficient tailoring is asserted, yet that has never sufficed to 

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prevent this Court from stepping in where the government has acted 

unconstitutionally. See, e.g., Sanjour, supra. The same is true for Equal 

Protection: Congress can always redraw the lines to eliminate inequality, 

but that does not preclude courts from protecting those who have been 

afforded second class treatment by the legislative branch. See, e.g., Craig v. 

Boren, 429 U.S. 190 (1976) (striking down law treating women and men 

under age 21 differently in terms of their ability to purchase alcoholic 

beverages); Reed v. Reed, 404 U.S. 71 (1971) (striking down law treating 

women and men differently in terms of their ability to administer the estate 

of an intestate decedent). Thus, whether a statute like section 441c satisfies 

the relevant constitutional standard is for the courts to judge and not just for 

the legislature to repair. Given the history of section 441c and Congress’ 

failure to correct its obvious and long-standing problems of both over- and 

under-inclusion, this is decidedly not a “regulatory structure that Congress 

has crafted in a quintessential exercise of legislative line-drawing.” FEC Br. 

20. 

D. Based on the Purposes that Allegedly Support Section 441c, 

Corporate Contractor PACS Are Legally Indistinguishable

From their Corporate Sponsors.

The FEC defends the exclusion of corporate contractors’ PACs from 

section 441c on the ground that a corporation and its PAC are legally 

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distinguishable entities, and hence individual and corporate contractors are 

in fact being treated equally. Plaintiffs do not argue that corporate PACs, 

established by federal contractors to make political contributions, are legally 

indistinguishable in all respects from the corporations that establish them. 

They recognize that there are many ways in which those entities are properly 

accorded different treatment under the law, ranging from which entity is the 

employer of an individual, to which forms it has to file with the IRS and the 

FEC, to which entity is responsible for which debts, to name just a few. But 

the question for this case is whether that difference matters in the context of 

this constitutional challenge. 

This case involves a law that is intended to prevent contributions that 

give the appearance of providing a contributor an advantage in obtaining 

federal contracts. The question is whether that purpose is served or 

disserved by treating a contribution from the Boeing PAC as if it had no 

connection to its sponsor and major federal contractor, Boeing Co. In our 

view, the FEC has provided the most succinct explanation of why it is 

wholly illogical to treat the PAC of a corporate contractor as not covered by 

section 441c: “Most Americans lack familiarity with the complexities of 

federal contracting, and they could easily view any contributions by 

contractors with suspicion.” (FEC Br. 32) (emphasis in original). By the

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same token, most Americans lack familiarity with FECA, and they would 

naturally view political contributions from Boeing PAC as contributions 

from Boeing Co. The fact that corporate sponsors use corporate treasury 

funds to pay the costs of establishing, administering, and soliciting for their

PACs, see 2 U.S.C. § 441b(b)(2)(C), and that PACs must bear the name of 

their corporate sponsors, 2 U.S.C. § 432(e)(5), further supports the 

correctness of this natural perception. In analyzing a law that is all about 

perceptions, perceptions that are obviously reasonable cannot be ignored. 

The FEC then goes on to suggest that Congress has drawn this line 

with care, along with the other lines under challenge in this case. There is, 

however, no evidence that Congress has given the question the slightest 

thought, or that the American public would agree that the distinction 

between contributions from a corporate contractor and those from its PAC 

eliminates the kind of appearance of corruption on which the 

constitutionality of section 441c depends to survive plaintiffs’ Equal 

Protection challenge. Indeed, the SEC Rule and the Connecticut law at issue 

in Green Party, as well as the laws in other states, include in their coverage 

of contractor contributions, those of its PAC, its principal officers, and 

significant shareholders.

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The FEC correctly observes that the Supreme Court has refused to 

equate corporate PACs and their sponsors in other campaign finance cases, 

and argues that this Court should follow that path here. But in those cases –

Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Massachusetts 

Citizens for Life, 479 U.S. 238 (1986) (“MCFL”) – the FEC argued that the 

availability of a PAC permitted Congress to treat the corporation less 

favorably and deny it the right to make independent expenditures. By 

contrast, under section 441c, the existence of a corporate PAC is being used

to deny third parties – plaintiffs and other individual contractors – the right 

to make contributions that the contractor PAC could make. In short, the 

FEC’s argument turns this aspect of Citizens United and MCFL on their 

heads. 

The FEC similarly argues, and plaintiffs agree, that for most purposes 

the law properly treats a corporation’s officers, directors, and shareholders 

as separate from the corporation itself. But the issue here is whether, in 

assessing plaintiffs’ Equal Protection challenge, that separate treatment 

makes sense for all officers and shareholders for all corporate contractors, 

given the appearance of corruption justification that supports section 441c. 

It does not make sense, we submit, because in appearance, if not reality, 

political contributions by corporate officers and directors will often be made 

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for the interest of the contractor. Thus, at least a contribution from the CEO 

of Boeing or its chief federal contracting official, whose compensation and 

even job retention are heavily dependent on the performance of Boeing in 

the federal contracting market, would sensibly be seen as a contribution for 

the benefit of Boeing the federal contractor. This inference is reinforced 

because the law requires contributors to identify their employers with every 

reportable contribution. See 2 U.S.C. §§ 434(b)(3)(A) & 431(13)(A). 

Plaintiffs do not contend that every contribution by every shareholder 

or even every officer of a federal contractor will be attributed to the 

corporation in the public eye. But such attribution is especially likely, and 

entirely proper, when the corporation is an LLC, like that of plaintiffs’ 

declarant, Jonathan Tiemann, whose LLC has an expert witness contract 

with the Department of Labor, under which he will do all the work, and the 

sole shareholders are Mr. Tiemann and his wife. JA 78, ¶ 5. Whatever 

appearance of corruption a contribution by such an LLC may engender, it is 

not lessened one iota if it comes from a PAC that the LLC has or from its 

shareholder-officer personally. Yet, under section 441c, the legality of the 

contribution turns on whether the federal contract is with the individual who 

will do the work – in which case it will be a felony – or with the LLC, in 

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20

which case it will be legal as long as the check is not drawn on the LLC’s 

own account.6

Moreover, under the rationale of section 441c, it is not just what the 

public thinks, but also what those who are making the contracting decisions 

think. Thus, if making contributions could help Jonathan Tiemann or 

Wendy Wagner obtain contracts for themselves, those same contributions 

could be of equal assistance if the contracts were given to Jonathan Tiemann 

LLC or to an LLC that plaintiff Wagner might create. While the connection 

may be less direct when the contribution comes from some corporate 

officers or shareholders of public companies, that cannot be said if the 

contributor is the sole owner of an LLC with a federal contract. 

Accordingly, even if the distinction between a corporate contractor on 

the one hand, and its PAC, officers, directors and major shareholders on the 

other, may make sense in other contexts, the question in this case is whether 

it makes sense in the context of plaintiffs’ constitutional challenge to section 

441c, given the purposes of that statute. It does not. 

 6

The costs of establishing and maintaining a PAC were found to be a 

constitutionally impermissible barrier to requiring that independent 

expenditures be made by a PAC instead of a corporation itself in both 

Citizens United and MCFL. Yet here, the FEC’s brief (at 54-55) fails to note 

the not-insignificant expenses to an individual contractor of establishing and 

maintaining an LLC, which could then establish a PAC (JA 76-77, ¶ 3).

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21

II. A NUMBER OF THE FEC’S ARGUMENTS

 UNDERMINE ITS DEFENSE OF SECTION 441C.

• The FEC contends that one of the goals of the Hatch Act, and

section 441c that followed it, is to prevent workers (and contractors) from 

being coerced into making political contributions. FEC Br. 8. It also cites 

the pre-Buckley decision in Civil Service Comm’n v. Nat’l Ass’n of Letter 

Carriers, 413 U.S. 548 (1973), as a basis for upholding the ban here. The 

problem is that federal employees are not, and have never been, subject to 

the contribution ban in section 441c or any comparably broad restriction 

under the Hatch Act or any other provision of federal law. The anti-coercion 

protections that are available to them are contained in 18 U.S.C. §§ 601, 

603, 606, & 610, all of which either protect federal contractors from 

exploitation or could easily be amended to do so. If coercion is a 

justification, the ban in section 441c is plainly not closely drawn in light of 

these alternatives. 

• Despite the fact that section 441c applies to elections for officials who 

have no official role in federal contracting, the FEC tries to justify it by 

pointing to the fact that political appointees of the elected President do have 

such roles (albeit constrained by statutes and regulations from politicizing 

the contracting process). The irony of this assertion is that many of those 

political appointees obtained their jobs by making the kinds of “large 

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22

contributions” (FEC Br. 35) that the FEC decries when made by contractors, 

not to mention the frequent roles of would-be appointees as bundlers of large 

contributions from others. If Congress were serious about preventing 

contributions from those who “have a direct economic stake in a 

governmental action” (FEC Br. 24), it would have applied the principal of 

section 441c to individuals who seek appointment to government positions, 

as well as to individuals who have a similar stake in receiving federal grants 

or other economic benefits from the government. Once again, there is no fit 

between the stated rationale and the vast under-inclusiveness of section 

441c.

• The FEC also continues to try to justify the ban on contributions by 

plaintiffs on the ground that they have “freely chosen” to become federal 

contractors (FEC Br. 40). That argument appears to have been the 

constitutional justification for enacting section 441c in 1940 (Pls. Br. 7-8). 

But if “choice” alone were a proper basis for upholding a ban, it would also 

apply to any occupational choices that involve the receipt of some 

government benefit (such as federal employees, political appointees, and 

federal grantees) without any need whatsoever for a policy justification. 

Accepting the FEC’s theory would also mean that the PACs of corporate 

contractors could be eliminated tomorrow because corporations “choose” to 

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23

become federal contractors and thereby surrender the right, applicable to 

non-contractor corporations under 2 U.S.C. § 441b(b), to make political 

contributions through a PAC. But as plaintiffs explained in their Opening 

Brief, whatever constitutional significance a person’s choice in accepting 

government benefits may once have had, it is no longer the law that 

choosing to work for the government is automatically determinative. See, 

e.g., United States v. National Treasury Employees Union, 513 U.S. 454

(1995) (striking down an Act of Congress restricting federal employees’ 

First Amendment rights). “Even though respondents work for the 

Government, they have not relinquished the First Amendment rights they 

would otherwise enjoy as citizens.” Id. at 465 (internal quotation marks 

omitted). 

There are also significant distinctions between this case and the more 

recent “choice” cases cited by the FEC (Br. 41): if plaintiffs fail to comply 

with section 441c, they can go to jail, whereas the plaintiffs in the FEC’s 

cases only lost financial benefits, such as financial aid, food stamps, or 

welfare payments. Those losses may be significant to those plaintiffs, but 

they are not equivalent of being a convicted felon. More important, in each 

of those cases, the Court sustained the law on the basis of an independent 

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24

valid congressional purpose served by the provision being challenged and 

never hinted, let alone held, that “choice” alone controlled the outcome.7

• The FEC urges this Court to apply the rational basis test to plaintiffs’ 

Equal Protection claims (FEC Br. 48-52), although it admits that the test 

under the First Amendment is whether the law is closely drawn, a standard 

that the FEC characterizes as “intermediate” (FEC Br. 52). Thus, according 

to the FEC, section 441c is less vulnerable to an Equal Protection challenge 

than to a First Amendment challenge, even though since 1976 section 441c 

has explicitly treated corporate contractors more favorably than individual 

contractors, by allowing only corporate contractors to establish PACs. Even 

if plaintiffs’ Equal Protection claim is not entitled to strict scrutiny, although 

 7 In Buckley, 424 U.S. at 57 n.65 & 93-96 the limit of spending by 

candidates who accepted federal funding was essential to support the goals

of eliminating private sources of influence and controlling expenditures. In

Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 

849-50 (1984), the requirement that male students seeking financial aid had 

to affirm that they had complied with the draft registration requirement was 

designed to advance the valid purpose of encouraging compliance with that 

law. In Lyng v. Int’l Union, 485 U.S. 360, 372 (1988), the law preventing 

strikers from obtaining food stamps was designed to assure that the federal 

government maintained labor neutrality. And in Wyman v. James, 400 U.S. 

309, 314, 318 (1971), the requirement that an AFDC beneficiary consent to 

home visits was upheld because it was needed to assure protection of 

children covered by the benefits and to determine whether there had been 

changes in the family situation that affected those benefits. Those 

justifications were challenged on various grounds, but the fact that the Court 

found them to be valid is what is essential to the analysis here under the First 

Amendment closely drawn test.

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25

they believe it is, there is no conceivable basis on which their claim of 

discriminatory treatment regarding the First Amendment protected activity 

of making political contributions is entitled to a less searching review than a 

claim in which all those subject to the law are treated the same and that must 

be examined under the intermediate or closely drawn standard. 

III. PLAINTIFFS’ EQUAL PROTECTION CLAIMS

 ARE NOT REPACKAGED VERSIONS OF THEIR

FIRST AMENDMENT CLAIM.

The FEC argues that plaintiffs’ Equal Protection claim is nothing 

more than a “repackaging” of their First Amendment claim under a different 

label (FEC Br. 52), and that the Court’s decision on the First Amendment 

claim should therefore control the outcome on the Equal Protection claim. 

Some courts have treated some Equal Protection claims in that manner and 

in some instances there would be no change in the outcome. Thus, the ban 

on contributions by persons under the age of 18 that was struck down in 

McConnell as a First Amendment violation could also have been viewed as 

an Equal Protection case of discrimination against minors, and would have 

fared no differently. But there is no rule that discrimination in an expressive 

context must be analyzed only under the First Amendment. Indeed, in 

Buckley, 424 U.S. at 93, and Lyng, 485 U.S. at 363-64, both cited by the 

FEC, the Court analyzed the challenged law under both First Amendment 

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26

and Equal Protection principles, and their ruling on the First Amendment 

claim did not render their Equal Protection claim redundant, as the FEC 

argues.

In this case, plaintiffs could have emphasized the more favorable 

treatment of corporate contractors, through their PACs and corporate 

officers, as part of the First Amendment claim that section 441c was 

underinclusive, just as they argued that FECA was underinclusive by 

omitting grantees, bundlers seeking appointed positions, and others who 

stand to benefit by supporting winning candidates or political parties. But 

that does not mean that their Equal Protection claim is nothing more than a 

re-packaged version of the First Amendment claim. Thus, if Congress 

applied section 441c to grantees and campaign bundlers, and allowed for 

small contributions and fixed many of the other defects identified by 

plaintiffs, plaintiffs might no longer have a First Amendment claim. But if 

section 441c still treated corporate contractors more favorably than

individual contractors, plaintiffs would still have an Equal Protection claim. 

Moreover, when the unequal treatment of two similarly situated groups is 

explicit on the face of the statute at issue – whether there originally or added 

subsequently – Equal Protection is the most sensible and obvious way to 

challenge that discrimination. 

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27

It is equally sensible to consider the discrimination in favor of 

corporate officers and shareholders as compared to individual contractors, as 

well as that favoring federal employees over individual contractors, under an 

Equal Protection analysis. Once again, the fact that these discriminations 

can be seen as further evidence of the lack of the fit required by the First 

Amendment is irrelevant: there is no law forbidding courts from also 

examining them as claimed Equal Protection violations. In the case of the 

corporate officers and shareholders, especially with respect to LLCs and the 

top officers of major contractors, it is just as artificial to treat them 

separately from their corporation as it is to treat a corporate sponsored PAC 

that way. 

As for the comparison with federal employees, both plaintiffs Miller 

and Brown were federal employees in the same agency in which they are 

now contractors and they have always worked interchangeably with federal 

employees, both as co-workers and as sometimes supervisors and sometimes 

supervisees. JA 64-66, ¶¶ 3-6; 54-55, ¶¶ 3-6. Indeed, plaintiff Brown asked 

the FEC for a ruling that he could make political contributions precisely 

because he considered that he was not being treated equally with the federal 

employees with whom he worked. JA 57-59. As for plaintiff Wagner, 

former ACUS research director Jeffrey Lubbers testified that the decision on 

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28

whether a project of the kind that she did was to be done in-house or by a 

contractor was determined by factors that have nothing to do with why 

contractors, but not federal employees are subject to the ban in section 441c. 

JA 70, ¶ 6. 

Plaintiffs do not agree with the FEC’s “either/or” position, but if it 

were correct, then the case that section 441c as applied to plaintiffs does not 

fit the closely drawn standard under the First Amendment would be further 

strengthened by the inequalities that form the Equal Protection claim.8

IV. THERE ARE NO REASONABLE ALTERNATIVES

 TO THE BAN IN SECTION 441C THAT CAN SAVE IT.

The FEC’s brief promises that, despite the ban in section 441c, the 

law “allows many other forms of political activity, many more expressive 

than financial transfers” and claims that plaintiffs may “engage in numerous 

other activities in which they can express their views of candidates or public 

issues. See 2 U.S.C. § 431(8)(B); 11 C.F.R. §§ 100.74-100.77. . . . leaving 

contractors a very broad range of alternative means of political expression.” 

FEC Br. 20, 38. Plaintiffs assume that the FEC has provided those 

assurances because it believes that meaningful alternatives to the ban in 

 8 The FEC correctly notes that employees (but not political appointees) have 

the protections of the Merit Systems Protection Board, but that contractors 

such as plaintiffs do not (Br. 56-57). That overlooks the fact that contractors 

have other judicial remedies (JA 217-19, pp. 136-42). 

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29

section 441c would help sustain it. It is that proposition with which 

plaintiffs first take issue.9

The basic flaw in the FEC’s position is that it is inconsistent with the 

principle that, in the realm of political speech, it is the right of the individual, 

not the government, to select which method of speaking will be most 

effective and efficient for that individual. Texas v. Johnson, 491 U.S. 397, 

399 (1989) (upholding Johnson’s choice of burning an American flag, 

although there were many other ways in which he could have “protest[ed] 

the policies of the Reagan administration”). To be sure, various methods of 

expression may be subject to reasonable restrictions of time, place, and 

manner, but those do not include a total ban. See United States v. Grace, 

461 U.S. 171, 182 (1983).

Even if reasonable alternatives were relevant, there are none that 

remotely fit that description. Thus, if one examines the FEC’s brief, all that 

plaintiffs can do is (i) volunteer their time or (ii) hold a fundraiser for a 

candidate, party, or political committee of their choice. There is nothing else 

in the cited provisions that applies to individuals such as plaintiffs. As for 

volunteering their time, if that were a constitutionally adequate alternative, it 

 9 The FEC does not mention making independent expenditures, which 

plaintiffs have no desire to do. But if they did, the FEC has stated that they 

would also be banned by section 441c, despite Citizens United. See Pls. Br. 

at 40-41, n. 5.

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30

would be a green light for banning all contributions by everyone, or at least 

making all contribution limits automatically constitutional, which they are 

not. Randall v. Sorrell, 548 U.S. 230 (2006). 

The problem with the fundraiser exception is not that it is 

meaningless, but that its existence seriously undermines the rationale for 

section 441c: to avoid the appearance of pay-to-play. We will not revisit 

what we said in our Opening Brief on this subject (Pls Br. 60), except to 

retract our assumption that the FEC had backed off from relying on the 

fundraiser exception, which it has now re-embraced (FEC Br. 38, n.11). We 

were mistaken, it appears, to think that the FEC had reconsidered the import

of its argument, which is that a contractor can spend $1000 to support a 

fundraising event for a candidate at which many others may contribute up to 

$2600 each (or one for a political party at which attendees could contribute 

up to $32,400 each), and that this would not create even the appearance of 

pay-to-play, but that if a contractor wrote a check to a candidate or a party 

for $100, it would create such an appearance. If the FEC is correct about the 

right of plaintiffs to hold fundraisers, it is further confirmation that section 

441c is seriously underinclusive, in addition to its other defects that establish 

that it is so ill-fitting that it cannot meet even the closely drawn standard 

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31

under the First Amendment.10 

CONCLUSION

For the foregoing reasons and those set forth in plaintiffs’ Opening 

Brief, judgment should be entered for plaintiffs.

Respectfully submitted,

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

(202) 994 5157 (Fax)

abmorrison@law.gwu.edu

Arthur B. Spitzer

American Civil Liberties Union 

 of the Nation’s Capital

4301 Connecticut Ave, N.W., Suite 434

Washington, D.C. 20008

(202) 457 0800

(202) 457 0805 (fax)

artspitzer@aclu-nca.org

Counsel for Plaintiffs

August 23, 2013

 10 There was a solicitation ban applicable to contractors in Green Party that 

was set aside, not because the court of appeals did not recognize that 

solicitation presented the same kind of problems as did making 

contributions, especially as applied to bundlers, but that the form of the 

solicitation ban was too broad to be sustained. 616 F. 3d at 195-96, 207-10.

USCA Case #13-5162 Document #1453165 Filed: 08/23/2013 Page 35 of 37
No. 13-5162

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Civil Procedure 32(a)(7)(C), I hereby 

certify this 23rd day of August 2013 that the foregoing Reply Brief of 

Plaintiffs, has a typeface of 14 points and, as calculated by my wordprocessing software (Microsoft Word), contains 6970 words.

/s/ Alan B. Morrison

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

USCA Case #13-5162 Document #1453165 Filed: 08/23/2013 Page 36 of 37
No. 13-5162

CERTIFICATE OF SERVICE

I hereby certify that I served and filed the Reply Brief of the Plaintiffs 

this 23rd day of August 2013 with the Clerk of the Court of United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through the CM/ECF system:

Seth Nesin J. Gerald Hebert

Federal Election Commission The Campaign Legal Center

999 E Street, NW 215 E. Street, NE

Washington, DC 20463 Washington DC 20002

Counsel for the FEC Counsel for Amici

Allen Dickerson

Center for Competitive Politics

124 S. West St., Suite 201

Alexandria, VA 22314

Counsel for Amici

Copies of the Reply Brief were also served by first class mail on 

Counsel for the FEC and Amici on this date.

/s/ Alan B. Morrison

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

USCA Case #13-5162 Document #1453165 Filed: 08/23/2013 Page 37 of 37