ORAL ARGUMENT NOT YET SCHEDULED _____________________ 

No. 12-5365 _____________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________ 

WENDY E. WAGNER, et al., 

 Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. _____________________ 

On Appeal from the 

United States District Court 

For the District of Columbia 

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

BRIEF FOR PLAINTIFFS-APPELLANTS _____________________ 

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-Appellants 

 

January 16, 2013 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 1 of 77
i 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

 Parties and Amici: Wendy E. Wagner, Lawrence M. E. Brown, and Jan W. 

Miller were the plaintiffs in the District Court and are the appellants in this Court. 

The Federal Election Commission was the defendant in the district court and is the 

appellee in this Court. The Campaign Legal Center and Democracy 21 appeared 

as amici curiae in the district court, and they have indicated that they intend to file 

an amicus brief in this Court, together with Public Citizen. 

Rulings Under Review: This appeal is from the November 2, 2012, final 

order of the United States District Court for the District of Columbia (James E. 

Boasberg, J.) granting the FEC’s motion for summary judgment. That order 

incorporated by reference the District Court’s earlier order of April 16, 2012, 

denying plaintiffs’ motion for a preliminary injunction. The district court’s 

opinions are published at Wagner v. FEC, 854 F. Supp. 2d 83 (D.D.C. 2012) and 

Wagner v. FEC, 2012 WL 5378224 (D.D.C. Nov. 2, 2012). 

 Related Cases: Appellants are not aware of any related cases. 

/s/ Alan B. Morrison 

 Alan B. Morrison 

 George Washington University Law School 

 2000 H Street NW 

 Washington D. C. 20052 

 (202) 994 7120 

 abmorrison@law.gwu.edu 

 Counsel for Plaintiffs-Appellants 

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ii 

TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i

TABLE OF AUTHORITIES ................................................................................... iv

GLOSSARY ........................................................................................................... viii

INTRODUCTION ..................................................................................................... 1

STATEMENT OF JURISDICTION.......................................................................... 3

ISSUES PRESENTED ............................................................................................... 4

RELEVANT STATUTES AND REGULATIONS ................................................... 4

STATEMENT OF FACTS ........................................................................................ 4

A. THE STATUTORY SCHEMES ...................................................................... 4

B. THE PLAINTIFFS ......................................................................................... 13

C. PROCEEDINGS BELOW .............................................................................. 19

SUMMARY OF ARGUMENT ............................................................................... 21

ARGUMENT ........................................................................................................... 23

STANDARD OF REVIEW .................................................................................. 24

I. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL 

ELECTIONS, WHILE ALLOWING OTHERS WHO ARE SIMILARLY 

SITUATED TO MAKE SUCH CONTRIBUTIONS, VIOLATES 

EQUAL PROTECTION. ........................................................................... 25

A. The Court Should Apply Strict Scrutiny, or at Least Heightened Scrutiny, 

to Plaintiffs’ Equal Protection Claim. ........................................................ 25

B. Contracting Corporations and Related Persons Are Similarly Situated to 

Plaintiffs. .................................................................................................... 28

C. Federal Employees Are Similarly Situated to Plaintiffs. ........................... 33

II. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL 

ELECTIONS VIOLATES THE FIRST AMENDMENT. ........................ 38

A. As a Complete Ban on Fundamental First Amendment Activity, Section 

441c Should Be Subject to Strict Scrutiny. ............................................... 38

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iii 

B. The Contribution-Contract Connection Is Too Attenuated to Survive Any 

Heightened Scrutiny. ................................................................................. 40

C. Section 441c Is Over-Inclusive. ................................................................. 46

D. Section 441c Is Under-Inclusive. ............................................................... 51

E. The Other Arguments in Support of Section 441c Are Unavailing. ......... 55

CONCLUSION ........................................................................................................ 59

CERTIFICATE OF COMPLIANCE ....................................................................... 60

CERTIFICATE OF SERVICE ................................................................................ 61

STATUTORY ADDENDUM ................................................................................... i

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iv 

Authorities upon which we chiefly rely 

 are marked with asterisks. 

TABLE OF AUTHORITIES 

CASES

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

 131 S. Ct. 2806 (2011) ......................................................................................... 38 

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012). ........................................ 41 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). ....................... 51 

*Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995). ........................ 27, 44, 45, 48, 50, 56 

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) .......................... 8 

*Buckley v. Valeo, 424 U.S. 1 (1976). ..................................... 26, 38, 39, 40, 46, 47 

Bush v. Gore, 531 U.S. 98 (2000). ........................................................................... 27 

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009). ..................................... 44 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). .......................... 48 

*Citizens United v. FEC, 130 S. Ct. 876 (2010). ........................... 29, 32, 39, 47, 51 

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). ........................ 29 

City of Ladue v. Gilleo, 512 U.S. 43 (1994). .......................................................... 51 

Dallman v. Ritter, 225 P.3d 610 (Col. 2010). ............................................. 26, 48, 49 

Edenfield v. Fane, 507 U.S. 761 (1993). ................................................................. 44 

Ex Parte Curtis, 106 U.S. 371 (1882) ........................................................................ 7 

FEC v. Beaumont, 539 U.S. 146 (2003) ........................................ 19, 25, 30, 39, 40 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ......................... 25, 33 

FEC v. National Right to Work Committee, 459 U.S. 197 (1982). ....................... 58 

Filarsky v. Delia, 132 S. Ct. 1657 (2012). ............................................................... 35 

Green Party v. Garfield, 616 F.3d 189 (2d. Cir. 2010). .............................. 31, 45, 46 

*Kramer v. Union Free School District, 395 U.S. 621 (1969). ........................ 26, 36 

Lavin v. Husted, 689 F.3d 543 (6th Cir. 2012). ................................................ 40, 46 

Lawrence v. Texas, 539 U.S. 558 (2003). ........................................................ 15, 24 

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). ........................ 26

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McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892) .................................. 7

McConnell v. FEC, 540 U.S. 93 (2003). .............................................. 26, 38, 44, 47 

Miller v. Alabama, 132 S. Ct. 2455 (2012). ............................. 17, 18, 35, 36, 49, 57 

NAACP v. Button, 371 U.S. 415 (1963). ................................................................ 52 

NASA v. Nelson, 131 S. Ct. 746 (2011). ................................................................. 34 

Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). .................................. 46 

Ognibene v. Parkes, 671 F. 3d 174 (2d. Cir), cert. denied, 133 S. Ct. 28 (2012). ....... 

 ................................................................................................................. 48, 49, 53 

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). ............................. 43 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011). .............................................. 39, 50 

Randall v. Sorrell, 548 U.S. 230 (2006). .................................................... 22, 40, 56 

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). .............. 26 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). ........................................ 41 

Texas v. Johnson, 491 U.S. 397 (1989). .................................................................. 56 

United States v. National Treasury Employees Union, 513 U.S. 454 (1995). ........ 58 

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amend. I ............ 2, 3, 4, 21, 22, 23, 24, 28, 44, 46, 47, 50, 56, 62 

U.S. Constitution, Amend. V ..................................................................................... 2 

STATUTES

2 U.S.C. § 431 ........................................................................................................4, 8 

2 U.S.C. § 431(8) ..................................................................................................... 55 

2 U.S.C. § 431(13) ............................................................................................ 31, 50 

2 U.S.C. § 432(e)(5) ................................................................................................... 8 

2 U.S.C. § 434(b)(3)(A) .................................................................................... 31, 50 

2 U.S.C. § 437g(d)(1)(A) ........................................................................................... 6 

2 U.S.C. § 441a(a)(1) ................................................................................................. 4 

*2 U.S.C. § 441b ............................................................................................. 5, 8, 26 

*2 U.S.C. § 441c .......................................................................................................... 

 ..... 1, 2, 4-6, 8-11, 13-6, 18, 19, 21, 23, 27, 28-32, 35, 37, 39-47, 49, 52-5, 57, 58 

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2 U.S.C. § 431(13) ............................................................................................ 31, 50 

10 U.S.C. § 1091(c) ................................................................................................. 15 

10 U.S.C. § 2302 ...................................................................................................... 11 

10 U.S.C. § 2304(a)(1) ............................................................................................. 12 

10 U.S.C. § 2305(a)(1)(B) ....................................................................................... 12 

10 U.S.C. § 2305(b)(1)............................................................................................. 12 

10 U.S.C. § 6954(a). ................................................................................................ 54 

*18 U.S.C. § 601 ................................................................................................. 9, 42 

*18 U.S.C. § 603 ............................................................................................. 7, 9, 34 

18 U.S.C. § 606 ........................................................................................................ 42 

18 U.S.C. § 610 .......................................................................................................... 9 

26 U.S.C. § 9002 (7) ................................................................................................ 47 

26 U.S.C. § 9002 (8). ............................................................................................... 47 

28 U.S.C. § 1291 ........................................................................................................ 3 

28 U.S.C. § 1331 ........................................................................................................ 3 

Public Law 93-400 (1974). ...................................................................................... 12 

Public Law 98-369 (1984). ...................................................................................... 12 

Public Law 103-355 (1994). .................................................................................... 12 

Public Law 104-106 (1996). .................................................................................... 12 

Regulations

*2 C.F.R. § 180.970 .......................................................................................... 52, 53 

*5 C.F.R. § 734.208(a) ............................................................................................. 33 

5 C.F.R. § 734.208(b)(4)(ii) ..................................................................................... 34 

5 C.F.R. § 734.302(b)(3) .......................................................................................... 34 

5 C.F.R. § 734.303(d) .............................................................................................. 34 

5 C.F.R. § 734.401 ................................................................................................... 33 

*5 C.F.R. § 734.404(a)(4) ........................................................................................ 33 

11 C.F.R. § 115.2 ..................................................................................................... 39 

11 C.F.R. § 115.2 (a) .................................................................................................. 6 

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11 C.F.R. § 115.5 ....................................................................................................... 9 

*11 C.F.R. § 115.6 .............................................................................................. 8, 32 

*48 C.F.R. §1.601(a) ......................................................................................... 11, 42 

48 C.F.R. §1.603-2 ................................................................................................... 11 

OTHER AUTHORITIES

86 Cong. Rec. 2563 (1940) ........................................................................................ 7 

86 Cong. Rec. 2623 (1940) ........................................................................................ 7 

86 Cong. Rec. 9495-97 (1940) ................................................................................... 6 

FEC News Release October 5, 2011, available at 

http://fec.gov.press2011/20111006postcarey.shtml ............................................. 39 

http://www.brookings.edu/~/media/research/files/articles/2003/9/05politics%20lig

ht/light20030905.pdf ............................................................................................ 53 

http://www.propublica.org/article/pardon-attorney-torpedoes-plea-for-presidentialmercy .................................................................................................................... 54 

http://www.propublica.org/article/the-shadow-of-marc-rich .................................. 54 

Lobbying Law in the Spotlight: Challenges and Proposed Improvements, 63 

Admin L. Rev. 428, 450-55 (2011) ...................................................................... 56 

Mark Landler, “Obama Rewarded ’08 Fundraisers,” New York Times, July 25, 

2012, A14 ............................................................................................................. 55 

T.W. Farnam, “Obama Gives Administration Jobs to Some Big Fundraisers,” 

Washington Post, March 8, 2012, A15 ................................................................ 55 

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viii 

GLOSSARY 

ACUS Administrative Conference of the United States 

FECA Federal Election Campaign Act 

LLC Limited Liability Company 

PAC Political Action Committee 

 

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No. 12-5365 

___________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

___________________________ 

WENDY E. WAGNER, et al., 

 Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. 

___________________________ 

BRIEF FOR PLAINTIFFS-APPELLANTS 

___________________________ 

 

INTRODUCTION 

 Under the Federal Election Campaign Act, all federal contractors are 

forbidden by 2 U.S.C. § 441c (“section 441c”) from making contributions in 

federal elections. This case challenges the constitutionality of section 441c, but 

only as it applies to plaintiffs and other individual contractors. One of the 

plaintiffs is a law professor who has a contact to do a study for the Administrative 

Conference of the United States; the other two are retired federal employees who 

continue to work for their former agency on a contract basis. Unlike every other 

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U.S. citizen who does not have a federal contract, they are forbidden by section 

441c from making a contribution of even $1 to any federal candidate, political 

party, or political committee. 

 As applied to individuals such as plaintiffs, section 441c violates both the 

Equal Protection Clause of the Fifth Amendment and the First Amendment. The 

Equal Protection violation is based on the fact that two groups of similarly situated 

persons are not subject to the ban that applies to plaintiffs. The first group consists 

of persons closely connected to corporations that have federal contracts. Although 

section 441c applies to such corporations, they are permitted to establish political 

committees that are not subject to the ban, even though the principal rationale for 

the ban – the avoidance of the appearance that a contract was awarded in return for 

a contribution, known as “pay-to-play” – applies equally to those committees. The 

ban is also inapplicable to the officers, directors, shareholders, and employees of 

corporate contractors, although the pay-to-play rationale applies to them at least as 

much as to plaintiffs. The second group consists of individuals who are federal 

employees; they work with, for, or supervise contractors such as plaintiffs, yet they 

may freely make campaign contributions that plaintiffs may not. 

Section 441c also violates the First Amendment, because the absolute ban on 

all contributions in connection with federal elections by eligible voters is not 

narrowly tailored to serve a compelling government interest, or even closely drawn 

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to serve an important interest. The connection between any contributions that 

plaintiffs might make and the awarding of federal contracts is too attenuated to 

pass First Amendment scrutiny, and the law is both over- and under-inclusive. 

There is no reason why contribution limits would not suffice to avoid any 

appearance that a contribution may have influenced the award of a contract or why 

smaller contracts are not excluded from the ban, as other similar laws provide. Nor 

is there any basis for extending the ban to entities that have no connection with the 

awarding of federal contracts, such as minor parties and candidates, and 

independent political committees with no ties to any officeholder. Moreover, the 

ban fails to reach recipients of billions of dollars of federal grants and other federal 

benefits, whose contributions raise appearance concerns no different from any that 

might result from contributions plaintiffs might make. 

STATEMENT OF JURISDICTION 

 Jurisdiction in the District Court was based on 28 U.S.C. § 1331. Final 

judgment was entered on November 2, 2012, and a notice of appeal was filed on 

November 8, 2012. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

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ISSUES PRESENTED 

Does 2 U.S.C. § 441c, as applied to individuals such as plaintiffs, but not to 

others similarly situated, violate the Equal Protection component of the Fifth 

Amendment to the Constitution? 

Does 2 U.S.C. § 441c, as applied to individuals such as plaintiffs, violate the 

First Amendment to the Constitution? 

RELEVANT STATUTES AND REGULATIONS 

 The relevant statutes and regulation are set forth in the Addendum. 

STATEMENT OF FACTS 

A. THE STATUTORY SCHEMES 

 The Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431 et seq.

(“FECA”) is a complex statute that regulates the use of money in elections for 

federal office. Unlike states and localities that have many elected officials, 

including many that have significant roles in governmental contracting, the only 

elected federal offices are the President, the Vice President, Senators, and 

Representatives (including non-voting Delegates and Resident Commissioners). 

FECA has numerous provisions relating to political contributions and 

expenditures, but for the purposes of this lawsuit, only a few are relevant. 

 First, 2 U.S.C. § 441a(a)(1) places limits on the amount of money that any 

person may contribute to candidates, political parties, and political committees, as 

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well as imposing overall total limits on what an individual may contribute to all 

such persons in a given period. Some of those limits are indexed for inflation, and 

for the 2011-12 election cycle, they were $2500 (per candidate); $30,800 (political 

parties, per calendar year); $5000 (political committees, per calendar year); and 

$117,000 (overall per election cycle). 

http://www.fec.gov/pages/brochures/contriblimits.shtml. If plaintiffs prevail in 

this lawsuit, they would still be subject to all those limitations. 

 Second, section 441b forbids all corporations from making contributions in 

federal elections, but subsection 441b(b)(2)(C) specifically allows them to finance 

“the establishment, administration, and solicitation of contributions to a separate 

segregated fund to be utilized for political purposes” that may make contributions 

the corporation itself is prohibited from making. Contributions to such a fund may 

be solicited only from the corporation’s “stockholders and their families and its 

executive or administrative personnel and their families.” Subsection 

441b(b)(4)(A)(i). 

Third, in relevant part, section 441c makes it unlawful for any person 

who enters into any contract with the United States . . . if payment . . . 

is . . . from funds appropriated by the Congress . . . between the 

commencement of negotiations . . . and . . . the completion of 

performance . . . directly or indirectly to make any contribution . . . to 

any political party, committee, or candidate for public office or to any 

person for any political purpose or use. 

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Or, in plain English, in addition to the laws forbidding bribery, it is a crime for 

either an individual or a corporation that has a contract with the federal 

government to make a contribution in a federal election while negotiating for, or 

performing, that contract. The ban is not limited to contributions to persons who 

have a role in awarding federal contracts, but extends to all political parties and 

even independent ideological committees such as those formed by the NRA, Right 

to Life organizations, Emily’s List, and the Sierra Club. Violation of section 441c 

is a felony and, depending on the amount of the unlawful contribution, can result in 

imprisonment of up to five years, or a fine under Title 18, or both. 2 U.S.C. § 

437g(d)(1)(A). Read literally, these prohibitions apply to state, local, and federal 

elections, but the FEC has construed section 441c to apply only to federal 

elections. 11 C.F.R. § 115.2 (a). 

 The contractor provision was enacted as part of a law that mainly expanded 

the 1939 Hatch Act, which had imposed significant restrictions on the political 

activities of most federal workers, to include state employees paid by federal 

funds. The contractor provision was contained in section 19 of the bill, S. 3046. 86 

Cong. Rec. 9495-97 (1940). Beyond Congress’ desire to keep politics and 

government contracting separate, there is no explanation of why the Act imposed a 

contribution ban on contractors that it did not impose on government employees. 

Moreover, to the extent that Congress was concerned about coercion of 

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contractors, there was no explanation of why it did not extend to contractors the 

approach taken in the predecessor of what is now 18 U.S.C. § 603, upheld in Ex 

Parte Curtis, 106 U.S. 371 (1882), which prohibits an employee’s employer from 

receiving contributions. Equally significant, section 13 of S. 3046 imposed $5000 

limits on all contributions in connection with federal elections, 86 Cong. Rec. 

9496, but again, there is no indication why Congress did not simply apply those 

proposed limits to federal contractors, or why in 1971 it did not make the new 

general limits applicable to individual contractors. 

Part of the explanation for the ban appears to be that the prevailing 

constitutional doctrine in 1940 allowed Congress to impose whatever restrictions it 

chose on those who accepted federal money, or as the FEC put it in its opposition 

to a preliminary injunction (Docket No. 25 at 8, 25, 37), on plaintiffs who 

“voluntarily” chose to become federal contractors. Thus, Senator Hatch quoted the 

famous observation of Justice Oliver Wendell Holmes that “[t]here is nothing in 

the Constitution or the statute to prevent the city from attaching obedience to [a] 

rule as a condition to the office of policeman and making it part of the good 

conduct required. The petitioner may have a constitutional right to talk

politics, but he has no constitutional right to be a policeman.” 86 Cong. Rec. 

2563 (1940) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 

(1892)); see also id. at 2623 (1940) (any curtailment of employee speech is 

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constitutional because there is a “waiver of his rights when he accepts the 

conditions attached to his employment.” That view is no longer good law, 

see Board of County Commissioners v. Umbehr, 518 U.S. 668, 674 (1996), but it 

appears to have persuaded Congress that any conditions it imposed were 

constitutional. 

In 1971, FECA added what is now section 441b(b)(2)(C), which expressly 

permits corporations to establish “separate segregated funds” (known as “PACs”) 

that can be used to make contributions from funds solicited from the corporation’s 

officers, directors, and shareholders. Then in 1976, it added subsection 441c (b), 

to enable corporate contractors, like all other corporations, to establish such PACs. 

As a result, while large government contractors like Boeing or IBM are barred 

from making contributions for use in federal elections, their PACs, which, under 2 

U.S.C. § 432(e)(5), must “include the name of its connected organization” (i.e., 

Boeing PAC or IBM PAC), are free to make contributions for that purpose. In 

addition to the PAC exclusion, the FEC has construed section 441c not to apply to 

shareholders, directors, officers, or employees of federal contractors. 11 C.F.R. 

§115.6. These exclusions apply to all corporations, large or small. Thus, 

Boeing’s CEO and its chief contracting officer are not subject to the ban of section 

441c, nor is someone who is the sole owner, officer, and employee of a limited 

liability company (LLC) that has a personal services contract with a federal 

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agency. No similar alternative exists for individual contractors, even if they want 

to establish a fund using only money obtained from sources other than a federal 

contract. The FEC has made it clear that section 441c applies to any contribution 

whether “from their business, personal, or other funds under their dominion or 

control individuals.” 11 C.F.R. § 115.5; JA 62 (response of FEC to plaintiff 

Brown’s request for advisory opinion). 

 There is also no contribution ban applicable to individuals who are 

employed by the federal government. As noted above, 18 U.S.C. § 603 restricts 

who may “receive” contributions from federal employees, but its narrow scope 

underscores the contrast with the ban in section 441c. Similar anti-coercion laws 

include 18 U.S.C. § 601, which makes it a crime for anyone to “cause[] or 

attempt[] to cause any person to make a contribution . . . for the benefit of any 

candidate or any political party, by means of the denial or deprivation, or the threat 

of the denial or deprivation, of . . . employment, position, work, compensation, 

payment, or benefit” from the federal government, and 18 U.S.C. § 610, which 

criminalizes attempts to coerce federal employees to engage in political activities. 

In addition, there are a few rules that impose additional restrictions on employees 

of designated sensitive agencies, such as the FEC, FBI, and CIA, but none of them 

includes a ban on all contributions, or applies to contributions to political parties or 

independent committees, as does 441c. See infra at 36-37. 

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 Finally, section 441c does not apply to other similar financial transactions 

through which the Government makes substantial payments to individuals who 

might believe that making a political contribution would enhance their chances of 

obtaining such a payment. Thus, section 441c excludes federal grants, loans, 

guarantees and similar financial benefits. Nor does any law forbid major campaign 

donors and fundraisers from seeking high level federal employment (such as 

ambassadorships) in gratitude for their help in winning an election, despite the 

obvious potential for pay-to-play or its appearance. 

The most significant point about the scheme as it evolved is that Congress 

never focused on the vastly different treatment that it had created for individuals 

with federal contracts, on the one hand, and corporate contractors (through their 

PACs, officers, directors, shareholders, and employees), as well as federal 

employees, on the other. Whether a court might gave any deference to this 

haphazard scheme if Congress had actually shown its awareness of the 

consequences is a question that this Court need not address, because there is no 

doubt that this scheme grew to its present form by accident, not design. 

 Section 441c appears designed to prevent would-be contractors from 

making contributions to federal officials who award federal contracts. But the only 

federal officials covered by section 441c are the President, Vice President, and 

Members of Congress, none of whom has any formal role in contracting. Pursuant 

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to 48 C.F.R. §1.601(a), the heads of federal agencies are vested with contracting 

authority, which they may, and generally do, delegate to others. And the 

unrebutted evidence before the District Court established that appointed agency 

officials, not elected officeholders, actually made the relevant contract 

determinations for these plaintiffs. See infra at 46-47. Moreover, as explored at 

length by the FEC in its deposition of Professor Steven Schooner, the federal 

procurement system is designed to be apolitical so that all decisions are made on 

the merits by appointed, not elected officials (JA 196-97, pp. 51-54). As Prof. 

Schooner further explained, in the vast majority of cases, the current system is 

immune from political interference by elected officials and their political parties. 

Id. In part, this is due to the role played by contracting officers, whose selection 

process is based on their knowledge and experience in federal contracting. JA 21, 

pp. 133-36; see 48 C.F.R. §1.603-2. 

 One other point is significant about the relation between section 441c and 

the federal procurement system today: section 441c as applied to individuals is 

unchanged since 1940, but the contracting system has undergone massive changes. 

The enormous increase in the use of federal contractors for a multitude of purposes 

caused Congress to enact major legislation to manage the procurement process. 

Statutes governing the modern federal procurement system were enacted for 

military agencies in 1948 (the Armed Services Procurement Act, 10 U.S.C. § 2302 

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12 

et seq.), and for civilian agencies in 1949 (the Federal Property and Administrative 

Services Act, Pub. L. 103-355, Title X. Those statutes, in turn, have been 

significantly modified over the years, most notably by the Office of Federal 

Procurement Policy Act of 1974, Pub. L. 93-400; the Competition in Contracting 

Act of 1984, Pub. L. 98-369, Title VII; the Federal Acquisition Streamlining Act of 

1994, Pub. L. 103-355; and the Clinger-Cohen Act of 1996, Pub. L. 104-106, 

Divisions D & E. Included in those laws (as amended from time to time) are 

various specific protections against the kind of pay-to-play abuse that section 441c 

is supposed to prevent. See, e.g., 10 U.S.C. § 2304(a)(1) (agencies must award 

contracts after full and open competition, unless exception applies); 10 U.S.C. § 

2305(a)(1)(B)(agencies must use specifications that do not unduly restrict 

competition); 10 U.S.C. § 2305(b)(1) (agencies must evaluate offers based only on 

the specifications and evaluation criteria set out in the solicitations, and bidders 

who contend that the agency deviated from those specifications and evaluation 

criteria – such as by favoring a firm that made political contributions – can file a 

bid protest at GAO or the Court of Federal Claims). Thus, even if a pay-to-play 

rationale might have made section 441c defensible in 1940, the vast changes in 

federal procurement since then have made it indefensible on that basis today. 

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B. THE PLAINTIFFS 

 The three plaintiffs currently serve as consultants to federal agencies under 

contracts that make them subject to the ban in section 441c. Each was eligible to 

vote in the 2012 federal elections. JA 123, ¶ 3. Prior to becoming a consultant, 

each made contributions to candidates for federal offices and/or to political parties 

and political committees, either in their own names or jointly with their spouses. 

Id. ¶ 2. Each would like to make federal contributions, id, but section 441c would 

subject them to criminal prosecution if they did so. 

Plaintiff Wendy Wagner is a professor at the University of Texas Law 

School. Her principal area of scholarship is the law-science interface in 

environmental law. JA 50, ¶ 3. She currently has a contract with the 

Administrative Conference of the United States (“ACUS”) under which she is 

being paid $12,000 to prepare a report and recommendations on potential 

improvements in the use of science by administrative agencies in rulemaking, 

adjudication, and/or other agency functions. Id. ACUS regularly hires academics, 

primarily law professors, to do studies in connection with the preparation of draft 

recommendations that ACUS will debate and vote on. JA 69, ¶ 4 (Declaration of 

Jeffrey Lubbers, former research director for ACUS). As with most ACUS 

consultants, the agency staff identified Professor Wagner based on her expertise 

and the scope of the proposed project, and approached her to determine her interest 

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14 

and availability. JA 50, ¶ 3. The agency’s choice of consultants, as well as the 

amounts to be paid and other terms of the contract, are determined by the 

Chairman and the staff, none of whom is an elected federal officer. The choice 

between using staff and outside consultants for a project is affected by timing, 

budget, and the availability and expertise of ACUS employees. JA 69-70, ¶¶ 4, 6. 

Plaintiff Wagner is registered to vote in Texas. She wanted to make political 

contributions for the 2012 federal elections, but the ban in section 441c precluded 

her from doing so. Although her contract with ACUS is expected to conclude this 

June, she expects to have future agency contracts that will subject her to section 

441c. JA 80-82.

The applicability of section 441c to Wagner is hardly unique; it extends to 

all individuals who contract in all of the following circumstances, among many 

others: (a) the individual is hired by an agency, such as the Department of Justice, 

or by a federal court, to be an expert witness in either administrative or court 

litigation; (b) the individual is an attorney hired to represent the United States, a 

federal agency, officer, or employee, where the Department of Justice may have a 

conflict of interest; (c) the individual is hired by the Judicial Conference or another 

entity within the Judicial Branch to be a reporter for one of the Rules Committees 

or to provide training to judges; (d) the individual is hired to provide expert advice 

in law, medicine, the hard or social sciences, or any other area where the 

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government lacks the necessary expertise among its officers or employees; and (e) 

the individual is hired to provide translation or interpretation services in federal 

court or before a federal agency. JA 106 (Request for Admission # 4). It also 

reaches personal services contracts made by the Defense Department to obtain 

needed physicians and other health professionals, whose hiring is subject to 

specific procedures designed to avoid political or other irrelevant considerations. 

10 U.S.C. § 1091(c). 

There is another important aspect regarding the hiring of Wagner and many 

(although not all) of the individual contractors who are subject to section 441c. 

For most large government contracts, there is an open process by which interested 

persons can apply and their applications are assessed according to the terms of the 

proposal. However, contractors like Wagner and Professor Schooner, who has 

served as an expert witness, mediator, and special investigator (JA 191, pp. 29-30), 

typically do not apply for a contract or even know that there is a contract to be let 

(JA 190, p.32; JA 216, pp. 130-132). Instead, they are initially approached by an 

agency because the agency has concluded that they are able to fill a particular 

need. For them, the pay-to-play rationale is even more inapplicable than it is for 

contracts let out for bids. 

Plaintiff Lawrence Brown was for many years a full-time employee of 

USAID and its predecessor agency. After he retired, he worked in the private 

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sector until he entered a contract with USAID to become a Senior Human 

Resources Advisor. In that capacity he supervises three civil service employees 

and one contract employee and works with civil service employees and other 

advisors under contracts similar to his, under the overall supervision of agency 

officials. JA 55, ¶ 4. There is no functional distinction between the work 

performed by employees and contractor-advisors. Id. 

Brown’s current contract began in October 2011, and lasts two years, 

renewable at the option of USAID for three additional years. Like all of his 

contracts with USAID, he negotiated it with agency officials, none of whom is an 

elected officeholder. He earns sick leave and vacation pay like regular employees. 

Federal taxes are withheld from his paycheck, and the agency pays the employer’s 

share of Social Security and Medicare taxes. Id., ¶ 5. 

Before Brown became a contractor, he was unaware of the ban in section 

441c. Because of the ban, he has made no contributions in connection with federal 

elections although he previously did so. Id., ¶ 6. Because everyone at USAID 

treats him the same as a regular employee, he considers it only fair that he be 

allowed to make contributions. Accordingly, in August 2008, he submitted a 

request for an Advisory Opinion to the FEC asking that he be allowed to make 

political contributions, subject to the same limitations applicable to employees. JA 

56, ¶ 7. The FEC rejected his request in Advisory Opinion 2008-11. JA 60. 

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Brown is registered to vote in Maryland; he wanted to make contributions in 2012, 

but was prohibited from doing so by section 441c. JA 56, ¶ 8; JA 83. 

Plaintiff Jan Miller is a lawyer who spent his career working for the federal 

government, mainly for the Office of General Counsel at USAID and its 

predecessor. After he retired, he continued to work for the agency in an employee 

status as a reemployed annuitant-consultant. He also began to provide legal advice 

to the Peace Corps, where he continues to work as an employee and accrues annual 

and sick leave. JA 64-65, ¶¶ 2-4. 

 Currently, Miller has a contract that runs until 2016 with Office of 

HIV/AIDS in the Global Health Bureau of USAID, where he provides policy 

advice. He earns vacation and sick leave, as he did when he was an employee, and 

the agency continues to treat him as an employee for federal tax purposes, paying 

the employer’s share of Social Security and Medicare. Id., ¶ 5. It is Miller’s 

understanding that USAID currently has approximately 700 individuals under 

personal services contracts, which are generally similar to his, with approximately 

one-third of those individuals working in Washington and two-thirds at USAID 

missions overseas. Id. 

All of the contacts that Miller has had in negotiating and/or implementing 

his contracts with USAID were with agency contracting officers, none of whom 

was an elected officeholder. Id., ¶ 6. His selection in each case was, he believes, 

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18 

based on the agency’s knowledge of his work and because agency officials 

concluded that he had the necessary skills, experience, and familiarity with its 

work that he could step in and do what was needed. Id. In each of the situations in 

which he has been a contractor-consultant, and in many of the positions in which 

he was an employee, he worked side by side with employees on the one hand, and 

contractor-consultants on the other, and the nature of the work performed by an 

individual rarely varied depending on whether the person was an employee or a 

contractor; sometimes the supervisor was an employee or officer, and in other 

cases, the supervisor was a contractor-consultant. Id. 

Miller currently works in the mornings for USAID as a contractor, subject to 

section 441c, and in the afternoons for the Peace Corps, as an employee, not 

subject to section 441c. JA 66, ¶ 7. Miller has not made any federal contributions 

since he became a contractor, but wanted to provide financial support in 2012 for 

candidates for federal offices and/or their political parties, and be on record as 

giving money to those that he believes would best represent him and his views and 

values. Id. 

 Plaintiffs Brown and Miller are retired federal employees who have 

returned to their agency under contracts of several years duration to work 

alongside regular federal employees. They are, for all practical purposes, federal 

employees. Among the many others in the same category are retired FBI agents 

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who are regularly hired in place of active duty agents to do background checks on 

those applying for federal employment or those who need a security clearance. JA 

200, pp. 65-66; JA 205, p. 88.

C. PROCEEDINGS BELOW 

 This lawsuit was filed in October 2011. Because plaintiffs wanted to make 

political contributions in 2012, they moved for a preliminary injunction, which was 

denied in April 2012 on the ground that they were not likely to succeed on the 

merits. JA 24. On their First Amendment claim, the District Court held that 

section 441c should be assessed under the “closely drawn” standard of FEC v. 

Beaumont, 539 U.S. 146, 161-63 (2003). JA 28-30. Although it recognized that 

the ban applied to contributions to entities that had no legal authority to award 

contracts to plaintiffs, it nonetheless found that the potential for an appearance that 

plaintiffs had been awarded their contracts based on what they had contributed or 

might contribute sufficed to satisfy the First Amendment. In doing so, it relied on 

cases involving very different laws, none of which involved a total ban or covered 

contractors who were the functional equivalent of employees. 

 On plaintiffs’ Equal Protection claim, the District Court rejected both the 

FEC’s contention that only rational basis review was applicable, and plaintiffs’ 

argument that strict scrutiny was required because the right to make a political 

contribution is fundamental under the First Amendment. Finding no controlling 

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20 

authority, the Court stated that it was applying an intermediate level of scrutiny 

(JA 40-45), although in fact it gave substantial deference to what it assumed were 

the judgments of Congress to treat individuals with federal contracts less favorably 

than corporate contractors, their PACs, their officers and shareholders, and 

government employees. JA 46-49. 

With respect to both comparisons, the Court essentially concluded that the 

parties were not similarly situated. For corporations, it focused on the fact that a 

corporate PAC is a separate legal entity from its contractor-sponsor, JA 48, 

although that distinction has no bearing on the principal rationale for the ban, 

which is to prevent the appearance of pay-to-play. JA 32. On the employee 

comparison, it correctly observed that civil servants have job protections not 

available to contractors, but that also has nothing to do with pay-to-play, and does 

not explain why the anti-coercion laws that protect employees either were not, or 

could not, be made applicable to individual contractors. Moreover, having rejected 

plaintiffs’ First Amendment claim, the trial judge essentially treated their Equal 

Protection argument as simply another version of that claim, without recognizing 

that a selective ban on contributions by some citizens raises quite different issues 

than does a ban applicable to everyone. 

 Thereafter, the parties concluded discovery and filed cross-motions for 

summary judgment, including Statements of Material Facts which the District 

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21 

Court used as the basis for its final ruling. In its opinion of November 2, 2012, the 

Court reaffirmed its prior decision and upheld section 441c. JA 224-242. As with 

its prior opinion, it focused mainly on the First Amendment claim, devoting less 

than two pages to Equal Protection. JA 241-42.1

SUMMARY OF ARGUMENT 

In upholding section 441c as applied to individual contractors, the District 

Court made two significant errors. First, although plaintiffs’ principal claim was 

that section 441c violates Equal Protection, the court ruled on the First Amendment 

issue first and then treated the Equal Protection claim as if it were simply another 

version of the First Amendment argument. But the Equal Protection argument 

stands on its own feet, as we demonstrate below. 

Second, although purporting to apply a form of heightened scrutiny to both 

claims, the District Court applied that scrutiny in name only. In reality, it gave 

substantial deference to Congress, almost as if section 441c were subject to rational 

basis review, and as if Congress had actually focused on the issues raised by the 

ban and made a conscious decision that its goals could be accomplished only in 

this manner and that the ban need not be extended to others who are similarly 

situated. Because section 441c imposes a total ban on contributions in federal 

 

1

 The FEC submitted a 53 page, 151-item Statement of Facts to which the plaintiffs 

objected, mainly because most of its alleged “facts” were not in the record. The 

Court ordered items 14 to 151 to be treated as a supplementary legal submission, 

but not as factual material to which plaintiffs were required to respond. JA 222. 

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elections by plaintiffs and other individual federal contractors, and thus seriously 

impedes their ability to express their views in federal elections, the Court should 

have viewed the purported justifications for the ban with considerable skepticism, 

but it did not. Even in Randall v. Sorrell, 548 U.S. 230, 253 (2006), where the 

contribution law being challenged applied equally to everyone and imposed limits, 

not a ban, the Court set them aside as unreasonably low. Similarly, on the Equal 

Protection claim, the Court seized on certain differences between plaintiffs and 

those not subject to section 441c, without asking whether those differences were 

relevant to the stated rationale for the ban. A proper Equal Protection analysis 

would focus on the similarities between plaintiffs and the other groups, which are 

far more relevant to the purpose of the challenged statute. 

The principal justification for section 441c is that a ban is needed to avoid 

the appearance that federal contractors are using contributions to obtain contracts, 

known as pay-to-play. But that rationale also applies to those not subject to the 

ban: the political committees of corporate contractors and the corporation’s 

officers, directors, and shareholders, all of whom are subject only to the generally 

applicable limits on contributions. The same rationale applies to federal 

employees, who are indistinguishable in all relevant respects from individual 

contractors like plaintiffs, but not subject to the ban. This discrimination against 

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plaintiffs in the exercise of the First Amendment right to make political 

contributions cannot survive Equal Protection scrutiny. 

 Even if section 441c were non-discriminatory, it would still fall under the 

First Amendment for three reasons. First, the connection between the would-be 

recipients of plaintiffs’ contributions and the awarding of federal contracts is far 

too remote to satisfy the applicable standard that the law at least be closely drawn 

to sustain its asserted goal, in this case avoiding the appearance of pay-to-play. 

Second, section 441c is far broader than necessary, both because it covers 

contributions that have no connection with the contracting process, and because it 

fails to exclude contributions that no reasonable person would contend raise the 

appearance of pay-to-play. Third, the law is vastly under-inclusive, failing to 

cover transactions, such as the billions of dollars spent yearly on federal grants that 

are at least as susceptible to the pay-to-play perception as plaintiffs’ very modest 

contracts. Whatever the law may tolerate for purely economic regulation, the First 

Amendment does not permit such imprecision. 

ARGUMENT 

Throughout this case, plaintiffs have sought to have their Equal Protection 

claims decided first, for several reasons: (1) Section 441c applies to corporations as 

well as individuals, and a First Amendment ruling would call into question its 

continued viability for corporate contractors, whereas an Equal Protection decision 

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24 

would leave that issue for another day. (2) An Equal Protection ruling would give 

Congress greater flexibility since it could either extend the ban (or something 

comparable) to others, or relax it as to plaintiffs; a First Amendment decision 

would leave Congress with no such choice. (3) Equal Protection rulings are by 

definition more narrow, as illustrated by Justice O’Connor’s concurring opinion in 

Lawrence v. Texas, 539 U.S. 558, 579-85 (2003), which would have invalidated 

Texas’ ban on sodomy because it applied only to same-sex conduct, whereas the 

majority struck down the law on Due Process grounds, which overturned all antisodomy laws, even those that treated same-sex and opposite-sex conduct alike. 

For these reasons, we urged the District Court to consider the Equal Protection 

claims first, but it did not do so. We urge this Court to do so now. 

STANDARD OF REVIEW 

 The case was decided on cross-motions for summary judgment and is 

therefore subject to de novo review by this Court. The applicable level of scrutiny 

for each of plaintiffs’ claims is set forth in the discussion of that claim. 

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I. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL ELECTIONS, 

WHILE ALLOWING OTHERS WHO ARE SIMILARLY SITUATED TO 

MAKE SUCH CONTRIBUTIONS, VIOLATES EQUAL PROTECTION. 

There are two groups of persons who are similarly situated to plaintiffs but 

who are allowed to make federal campaign contributions. The first is comprised of 

three sub-groups, each of which involves a corporation that has a federal contract: 

(i) the corporation itself, because it may establish a PAC that may make federal 

contributions; (ii) its officers, directors, employees, and shareholders; and (iii) the 

individuals who control LLCs that contract with the federal government. The 

second group includes individuals who work for federal agencies as employees 

rather than contractors. Because the comparisons and justifications are different 

for the two groups, it is important to consider them separately, although the FEC 

and the District Court did not always do so below. 

A. The Court Should Apply Strict Scrutiny, or at Least Heightened 

Scrutiny, to Plaintiffs’ Equal Protection Claim. 

Although the Supreme Court has well-established standards for assessing 

Equal Protection claims in many contexts, its cases involving bans on contributions 

have not been analyzed under the Equal Protection Clause. In Beaumont, 539 U.S. 

146, there was a lurking Equal Protection contribution question: whether certain 

non-profit corporations should be treated like individuals – as the Court had done 

in allowing them to make unlimited independent expenditures, FEC v. 

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Massachusetts Citizens for Life, 479 U.S. 238 (1986) – or like for-profit 

corporations that are prohibited by section 441b from making any contributions in 

federal elections. Similarly, in McConnell v. FEC, 540 U.S. 93, 231-32 (2003), the 

contribution ban at issue applied only to individuals under the age of 18, which 

could have been treated as an Equal Protection claim. However, neither case was 

decided under Equal Protection law, with the Court sustaining the law in Beaumont

and striking it down in McConnell.2

 

The basic principle is set forth in San Antonio Independent School Dist. v. 

Rodriguez, 411 U.S. 1, 17 (1973): strict scrutiny is required when a law “operates 

to the disadvantage of some suspect class or impinges upon a fundamental right 

explicitly or implicitly protected by the Constitution.” Under Buckley v. Valeo, 

424 U.S. 1 (1976), the right to make a political contribution is a fundamental right 

protected by the First Amendment; see also Massachusetts Bd. of Retirement v. 

Murgia, 427 U.S. 307, 312 & n.3 (1976) (pointing to	“rights guaranteed by the 

First Amendment” as an example of fundamental rights requiring strict scrutiny). 

Moreover, the Court in Kramer v. Union Free School District, 395 U.S. 621, 626 

(1969), gave a restriction on voting “a close and exacting examination” because the 

law allegedly created an “unjustified discrimination in determining who may 

 

2

 In Dallman v. Ritter, 225 P.3d 610, 634-35 (Col. 2010), the court found the 

differing treatment of union contractors and corporate contractors violated Equal 

Protection, applying the “narrow tailoring” standard. 

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27 

participate in political affairs . . . .” Similarly, in Bush v. Gore, 531 U.S. 98, 104-

05 (2000), without specifying the level of scrutiny, the Court gave no deference to 

Florida’s method of conducting a recount, which it found amounted to “arbitrary 

and disparate treatment” by valuing “one person’s vote over that of another,” 

which is essentially what section 441c does by denying plaintiffs the same right to 

make political contributions that all other citizens enjoy. Strict scrutiny therefore 

applies to plaintiffs’ Equal Protection claim, and the ban should be set aside unless 

defendant can show that section 441c is “necessary” to serve a “compelling state 

interest” as applied to individuals such as plaintiffs and is “narrowly tailored” to 

achieve that end. Kramer, 395 U.S. at 630-33. 

The FEC is correct that this Court in Blount v. SEC, 61 F.3d 938 (D.C. 

Cir. 1995), rejected an Equal Protection challenge to one aspect of an SEC rule that 

restricted the ability of municipal securities dealers to contribute to the political 

campaigns of state officials from whom they obtained business. That rule (unlike 

section 441c) reached dealers’ officers, but the challengers contended that it 

violated Equal Protection because it did not extend to officers of a dealer’s parent 

corporation and the parent’s political committees. This Court rejected the claim of 

under-inclusion, recognizing that the SEC could sensibly stop somewhere and, 

with little analysis, applied rational basis to that line-drawing. Id. at 946, n.4. 

Given the overall thrust of the rule, that outcome is hardly problematic since its 

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principal impact was on the economics of the municipal securities industry, a 

matter well within the special competence of the SEC. There is also a question as 

to whether the opponents of the rule raised this issue before the SEC, so that the 

agency had an opportunity to respond. See id. at 940-41. For these and other 

reasons discussed above, the District Court was correct in refusing to apply rational 

basis as the FEC urged, and properly determined that heightened scrutiny applied. 

B. Contracting Corporations and Related Persons Are Similarly 

Situated to Plaintiffs. 

1. Corporations. The first similarly situated group consists of corporations 

that contract with federal agencies. Like plaintiffs, they cannot make contributions 

in federal elections. But, like all other corporations, they can establish PACs that 

can make contributions, and the corporate sponsor is specifically allowed to 

administer the fund, including paying for the solicitation of money to be used to 

make contributions. Section 441b(b). Plaintiffs do not have that option. The ban 

in section 441c does not simply forbid an individual from using money received 

under a government contract from making a contribution. It is absolute and not 

tied in any way to the source of the money, see 11 C.F. R. § 115.5; see also JA 62 

(FEC advisory opinion). Thus, if an individual inherited $10,000 and placed it in a 

separate segregated fund before becoming a government contractor, section 441c 

would still bar the use of those funds to make contributions in federal elections, 

while a corporation can use “outside” (non-treasury) money to fund its PAC 

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(including money paid to stockholders or executives out of income from the 

corporation’s government contracts – even if government contracts are the sole 

source of the corporation’s income). 

The asserted purpose of section 441c is to eliminate the appearance of a quid 

pro quo for government contracts. It does that by banning contracting parties from 

making contributions to persons who, in least in theory, are in a position to 

influence the award or terms of such contracts. But permitting contracting 

corporations to create PACs to make identical donations thoroughly undermines 

that rationale and actually places corporations in a better position to influence the 

award of government contracts than individual contractors like plaintiffs. 

The District Court rejected this argument because a corporation and its PAC 

are separate legal entities. JA 48, 241. But that fact has no relevance because the 

comparisons between plaintiffs and contractor PACs must be judged in light of 

“the purpose that the challenged laws purportedly intended to serve.” City of 

Cleburne v. Cleburne Living Center, 473 U.S. 432, 454 (1985) (Stevens, J. 

concurring). The asserted purpose of section 441c is to prevent the appearance of 

pay-to-play, but the same appearance exists if Boeing PAC makes a contribution as 

if Boeing does. Indeed, to eliminate any question about the connection between a 

corporation and its PAC, section 432(e)(5) requires that the PAC’s name “shall 

include the name of its connected organization.” In Citizens United v. FEC, 130 S. 

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Ct. 876 (2010), the FEC defended a law that favored individuals over corporations 

and lost. We know of other no law in the field of campaign finance that favors 

corporations over individuals, let alone one that has been sustained. Because 

section 441c prefers corporations over individuals, it cannot stand. 

The notion that corporations should have greater rights than individual 

voters is impossible to square with Beaumont, where the Court upheld the ban on 

corporate contributions. As the Court observed, “Within the realm of contributions 

generally, corporate contributions are furthest from the core of political expression, 

since corporations’ First Amendment speech and association interests are derived 

largely from those of their members and of the public in receiving information. A 

ban on direct corporate contributions leaves individual members of corporations 

free to make their own contributions, and deprives the public of little or no material 

information.” 539 U.S. at 161 n.8 (citations omitted). Yet under section 441c, 

these individual contractors are not free to make their own contributions – even 

with money not derived from their federal contracts – while corporate contractors 

are at liberty to use even funds derived from their federal contracts to support their 

identically-named PACs. 

2. Corporate Directors, Officers, Employees and Shareholders. 

Not only may corporations use their named PACs to make contributions, but 

individuals closely affiliated with corporate contractors are outside the ban. Thus, 

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31 

the CEO of Boeing, its largest shareholders, the Chairman of its Board, its chief 

contract negotiator with the Department of Defense, its congressional lobbyists, 

and its employees in charge of implementing a DOD contract, may all make 

contributions in federal elections. If the supposed concern about the appearance of 

a quid pro quo for a federal contract would not exist in that situation, even though 

the identities and employers of contributors are matters of public record, see 2 

U.S.C. §§ 431(13); 434(b)(3)(A), it is impossible to explain why plaintiffs who 

have individual contracts with federal agencies should be forbidden from making 

similar contributions. Indeed, the FEC cited as evidence of the potential for 

corruption examples from New Mexico, Hawaii, the District of Columbia, and 

New York City where officers of government contractors were the lavish 

contributors (JA 152-58 ¶¶ 62-64 67-71 & 77) – precisely what section 441c 

allows. See also JA 234 (District Court Opinion citing similar examples). Indeed, 

Green Party v. Garfield, 616 F.3d 189, 202 & n.10 (2d Cir. 2010), cited by the 

FEC and the District Court, makes this very point. It upheld a Connecticut ban on 

contractor contributions that applied to the contractor’s officers and their 

dependent children, as well as to its PAC, because making the law applicable to 

“principals” of contractors is “particularly important.” 

3. Individual LLCs. The discrimination against individual contractors 

does not end there. As shown by the declaration of Jonathan Tiemann, who has an 

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32 

expert witness contract with the Department of Labor, some individuals who 

perform personal services contracts for the federal government choose to 

incorporate and establish LLCs. JA ¶5. In his case, and in most others (see

Lubbers and Schooner declarations JA 71, ¶8; JA 74, ¶8), the agency does not care 

whether the contract is with the individual personally or with an LLC. In most 

contracts with LLCs, the person performing the services is the sole shareholder, 

officer, and employee; agencies contract with such LLCs on the understanding that 

the individual who owns and runs the corporation will perform the services. For 

operational purposes, it makes no difference to the agency whether an individual 

has formed an LLC or enters a contract with the agency directly. But it does 

matter under section 441c because the FEC has ruled that the ban on contractor 

contributions applies only to the entity that is the contracting party, not to its 

shareholders, directors, officers, or employees. 11 C.F.R. § 115.6. 

Thus, if plaintiff Wagner were willing to go to the trouble and expense of 

setting up and maintaining an LLC and contracting in its name (see Tiemann 

Declaration, JA 76, ¶ 3), she could make all the contributions federal law would 

allow, and section 441c would be no barrier even if the sole source of her 

contributions was her earnings under her government contract. But the idea that 

she should have to create an LLC to avoid section 441c is foreclosed by the 

rationale of Citizens United, which rejected as unduly burdensome a claim that 

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33 

even large for-profit corporations could be required to establish PACs as an 

alternative to making expenditures from their treasuries, without any showing of 

the specific burdens of doing so. 130 S. Ct. at 897-98; see also FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238, 253-56 (1986) (rejecting similar 

claim as applied to non-profit corporations and explaining the burden of operating 

such funds). It follows that an individual who wishes to make otherwise lawful 

political contributions may not be required to spend the time and money to 

establish and maintain an LLC just to avoid section 441c. 

C. Federal Employees Are Similarly Situated to Plaintiffs.

 

No law prohibits federal employees from making contributions in federal 

elections. Indeed, the applicable regulation expressly provides just the opposite: 

“An employee may make a political contribution to a political party, political 

group, campaign committee of a candidate for public office in a partisan election 

and multicandidate political committee of a Federal labor or Federal employee 

organization.” 5 C.F.R. § 734.208(a). There are special rules in 5 C.F.R. § 

734.401 for employees of seventeen sensitive agencies, such as the defendant FEC, 

the FBI, and the CIA, but 5 C.F.R. § 734.404(a)(4) specifically allows even those 

employees to do what plaintiffs may not: “Make a financial contribution to a 

political party, partisan political group, or to the campaign committee of a 

candidate for partisan political office.” 

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34 

As noted above, 18 U.S.C. § 603 contains a very modest restriction for 

federal employees: the contributor cannot work for the person “receiving” the 

contribution. But making a contribution directly to a presidential election 

committee, or to a political party or a political committee, is not barred. Far from 

being a limit on what federal employees may contribute, section 603 is principally 

aimed at protecting federal employees from being solicited by their supervisors, 

whose requests they may feel unable to decline. 3

In almost all respects, federal employees are similarly situated to individuals 

such as plaintiffs who have personal services contracts with federal agencies. Both 

are paid by funds appropriated by Congress, and both perform work under the 

direction of the heads of federal agencies and those who work for them. As the 

declarations in this case demonstrate, plaintiffs and federal employees work 

literally side by side and perform many of the same duties – and do so 

interchangeably in many circumstances. See JA 124, ¶ 3; see also NASA v. Nelson,

131 S. Ct. 746, 751 (2011) (upholding background checks for individual 

contractors with access to federal facilities because “their duties are functionally 

equivalent to those performed by civil servants” who undergo such checks); 

 

3

 The concern with supervisors soliciting subordinates is confirmed by specific 

federal rules prohibiting such conduct. 5 C.F.R. § 734.208(b)(4)(ii); 5 C.F.R. § 

734.303(d); & 5 C.F.R. § 734.302(b)(3). In addition, 5 C.F.R. § 734.306 contains 

time, place, and manner prohibitions on participation by federal employees in 

political activities generally, but none of them would prevent an employee from 

making a contribution except in those specific circumstances. 

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35 

Filarsky v. Delia, 132 S. Ct. 1657, 1665-66 (2012) (citing need for governments to 

employ part-time personnel to fill special needs). Plaintiffs Brown and Miller are 

retired employees from the same agency where they now are contractual 

consultants and do much the same work they previously did. But when they were 

employees, they could make federal contributions, and now they would be felons if 

they did so. Section 441c extends not only to part-time consultants like plaintiff 

Wagner and to contractor-employees like plaintiffs Miller and Brown, but, as the 

FEC has admitted, section 441c applies to anyone who has a contract with any 

federal government entity, including individuals hired as expert witnesses, 

mediators for the Department of Justice, advisers in medicine, science, and 

economics, and law professors who serve as reporters to the various rules 

committees established by the Judicial Conference. JA 106.

According to the FEC, section 441c is intended to prevent the actuality or 

appearance of corruption that would arise if individual contractors were to make 

contributions. Because employees do not need new contracts or renewals, the FEC 

argues, they would have nothing to gain from making contributions or to lose from 

not making them, which makes the situations not comparable. This argument 

overlooks the fact that federal employees are not in a static situation. All of them 

would like to receive pay raises, promotions, and excellent annual evaluations from 

their superiors. There are also some locations that are more desirable than others, 

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36 

and, within a given office, there are better and worse jobs, in terms of quality of 

work, the hours when the employee must be present, the identity of the supervisor, 

and the ability to enhance one’s experience as a means of advancing in the future. 

And in contrast to contractors like plaintiff Wagner, for whom the ACUS work is 

only part time and for a limited duration, or like plaintiffs Miller and Brown, who 

are retired employees for whom their contract work supplements their retirement, 

full time federal employees have a great deal to gain or lose even if their 

“contracts” cannot readily be terminated. Thus, because they too have incentives 

to please (or not displease) their supervisors by making “appropriate” political 

contributions, they are like individual contractors, especially those like plaintiffs 

Brown and Miller who literally work along side of, supervise, or are supervised by 

federal employees. We do not argue that the situations are identical, but under the 

heightened standard of review that applies to this Equal Protection challenge, they 

are sufficiently close that the FEC must supply a far greater justification than it has 

to date to explain why the Constitution permits Congress to forbid plaintiffs from 

making contributions in federal elections, but does not apply a similar ban to 

federal employees. 

* * * 

Kramer v. Union Free School District, supra, strongly supports plaintiffs’ 

Equal Protection claims. There is no express constitutional provision granting the 

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37 

right to vote for government officials. However, the Court in Kramer held that 

allowing some individuals to vote for elected officials, while denying others that 

opportunity, presented Equal Protection claims that would be evaluated under strict 

scrutiny. The election in Kramer was for a local school board, but only those who 

owned or leased property in the school district, or who had children (whether in the 

public schools or not) could vote. The plaintiff was a childless stockbroker who 

lived with his parents, but was otherwise eligible to vote. Relying on the Equal 

Protection Clause, the Court found the voting exclusion unconstitutional because 

there were no relevant differences between those who were allowed to vote and 

Mr. Kramer. Because the right to vote and the right to make contributions to 

candidates for elected office are both integral parts of the political process, Kramer

strongly supports plaintiffs’ Equal Protection claims here. Preferring federal 

employees over individual consultants, or preferring the PACs, stockholders, 

directors, officers, and employees of contracting corporations over individuals such 

as plaintiffs, violates Equal Protection. The combination of both makes section 

441c doubly unconstitutional as applied to individuals who have contracts with 

federal agencies. 

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38 

II. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL 

ELECTIONS VIOLATES THE FIRST AMENDMENT. 

A. As a Complete Ban on Fundamental First Amendment Activity, 

Section 441c Should Be Subject to Strict Scrutiny. 

The First Amendment is a general limit on all laws regulating political 

contributions and expenditures. Buckley, 424 U.S. at 14-23. In every case in the 

campaign finance area, the Supreme Court has applied some form of heightened 

scrutiny, with bans or limits on expenditures subject to the highest level of 

scrutiny, and limits on contributions subject to a somewhat lesser degree of 

scrutiny. Id. at 19-23; see, e.g., Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (“after finding that the restriction at 

issue was ‘closely drawn’ to serve a ‘sufficiently important interest,’ . . . we have 

upheld government-imposed limits on contributions to candidates”) (citations 

omitted). Section 441c is a ban, not just a limit, and it is applicable to individuals 

with federal contracts, almost all of whom, like plaintiffs, are citizens eligible to 

vote in federal elections. It therefore strikes directly at plaintiffs’ ability to express 

their political preferences by contributing to candidates, parties, and independent 

political committees that support candidates and/or policies that they support. The 

closest case is McConnell v. FEC, 540 U.S. at 231-32, where, without deciding the 

level of scrutiny, the Court struck down a ban on all contributions by persons under 

the age of 18. 

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39 

A complete ban on contributions by any group of voters should be subject to 

strict scrutiny because it abridges a fundamental right. Plaintiffs recognize that 

Beaumont applied the less demanding “closely drawn” standard to the ban at issue 

there, 539 U.S. at 161-63, and that Preston v. Leake, 660 F.3d 726, 735 (4th Cir. 

2011), following Beaumont, applied that standard to a near-total ban on 

contributions by registered lobbyists. However, Citizens United, which applied 

strict scrutiny to the ban on for-profit corporate independent expenditures, 130 S. 

Ct. at 898, casts doubt on the continued viability of Beaumont, at least, as here, 

where the ban is directed at eligible voters. Moreover, the Beaumont plaintiff was 

a non-profit corporation, not an individual voter, and, unlike plaintiffs, it was also 

permitted to have a PAC and make unlimited independent expenditures. Compare

539 U.S. at 162-63, with section 441c (b) (excluding individuals from establishing 

PACs) and 11 C.F.R. § 115.2 (interpreting section 441c to prohibit independent 

expenditures).4

Furthermore, the reasons why the Buckley Court was willing to apply less 

than strict scrutiny to contribution limits strongly suggest a different treatment 

here. Buckley observed that a limit “entails only a marginal restriction upon the 

 

4

 Section 441c refers only to contributions, not expenditures, but the FEC construes 

it to extend to independent expenditures. See FEC News Release October 5, 2011, 

note 1, available at http://fec.gov.press2011/20111006postcarey.shtml. Plaintiffs 

have no interest in making independent expenditures, but if pay-to-play concerns 

are sufficient to support a contribution ban, the FEC’s theory would support a ban 

on independent expenditures, despite Citizens United. 

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40 

contributor’s ability to engage in free communication” which plainly cannot be 

said about a ban. 424 U.S. at 20. According to the Court, the essence of a 

contribution is the “symbolic act of contributing,” with the size of the contribution 

providing only “a very rough index of the intensity of the contributor’s support for 

the candidate.” Id. at 20-21. In subjecting limitations to lesser scrutiny, the Court 

further noted that limits still permit “the symbolic expression of support evidenced 

by a contribution,” id. at 21, a rationale that is plainly inapplicable to section 441c. 

For these reasons, a complete ban on contributions by individual voters 

should be subject to strict scrutiny. But regardless of whether the somewhat more 

relaxed version of heightened scrutiny employed by the Court in Buckley

(upholding contribution limits), and in Randall v. Sorrell, 548 U.S. at 253 (setting 

aside limits as too low), or even the “closely drawn” standard in Beaumont, is 

applicable, the ban in section 441c cannot stand. That is because, as the Sixth 

Circuit recently held in setting aside a ban on contributions from Medicaid 

providers, “a state must do more than merely recite a general interest in preventing 

corruption. What Buckley requires is a demonstration, not a recitation.” Lavin v. 

Husted, 689 F.3d 543, 547 (6th Cir. 2012). 

B. The Contribution-Contract Connection Is Too Attenuated to 

Survive Any Heightened Scrutiny. 

Section 441c is not an economic regulation, such as one disallowing political 

contributions in a utility’s rate base, or a law allocating property tax burdens. Cf. 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 49 of 77
41 

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) (allowing rough justice in 

tax matters). Rather, the right to make a political contribution is squarely protected 

by the First Amendment. Unlike most other contribution laws applicable to 

individuals, section 441c does not limit, but absolutely prohibits plaintiffs from 

making contributions for federal elections as long as they have contracts with the 

federal government. Since Congress apparently believes the limits applicable to all 

contributors are sufficient to avoid the appearance of corruption for everybody 

else, defendant has a heavy burden to explain why those limits are not also 

sufficient as applied to plaintiffs. And in judging whether defendant has sustained 

that burden, the “Supreme Court has recognized only one interest sufficiently 

important to outweigh the First Amendment interests implicated by contributions 

for political speech: preventing corruption or the appearance of corruption.” 

SpeechNow.org v. FEC, 599 F.3d 686, 692 (D.C. Cir. 2010) (en banc). 

Accordingly, there must be at least a substantial reason why a complete ban is 

needed and why the otherwise applicable limits do not suffice to avoid the 

appearance of pay-to-play, the asserted rationale for section 441c. The District 

Court never answered the question of why those limits did not suffice, and for that 

reason its decision cannot be sustained.5

 

5

 The FEC also defended section 441c on an anti-coercion rationale, but the 

District Court did not rely on it. JA 229-30. Even assuming that paternalism has a 

place in First Amendment analysis, and even disregarding the fact that (cont’d) 

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42 

Plaintiffs do not argue that the First Amendment prohibits all special 

restrictions on government contractors. Nor does the Court need to go nearly that 

far to rule for plaintiffs. That is because the lack of fit between the manner in 

which contracts with the federal government are awarded – by agency officials 

who are appointed, not elected – and the breadth of persons under section 441c that 

may not receive contributions from contractors – most of whom have no role in 

federal contracting – dooms section 441c under the First Amendment. 

The starting point for federal contracting is 48 C.F.R. §1.601(a), which 

provides that federal contracts are awarded at the agency level, with no role for any 

elected official to whom contributions might be made. Although agencies are 

headed by persons appointed by the President with the advice and consent of the 

Senate, there is a separation of functions such that agency heads, as well as most 

other political appointees, have nothing to do with most federal contracts. 

Moreover, the established procedures for awarding contracts preclude improper 

interference, such as rewarding contributors with preferences. Thus, the plaintiffs 

each explained how their contracts were awarded in a non-political way. For 

 

(cont’d) section 441c forbids contributions to independent committees that have no 

power to coerce any contractor, limiting speech should be a last resort, not the first 

one. In this context, that means forbidding those with power over the awarding of 

contracts from using that power to coerce contributions. Indeed, there are a 

number of criminal statutes, such as 18 U.S.C. §§ 601, 603, 606, & 610, that either 

already protect contractors as well as federal employees, or could be amended to 

do so. There is no basis to believe that direct regulation of improper conduct will 

not succeed, at least until it has been tried and found wanting. 

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43 

example, plaintiff Brown showed that the process by which contracts are awarded 

to individuals at USAID is designed to preclude improper outside influence. JA 93 

(response to Interrogatory No. 2). Similarly, Professor Schooner confirmed that 

the special qualifications and the independence of the contracting officers at all 

agencies are vital parts of the contracting process. See JA 126 (Plaintiffs’ 

Statement of Undisputed Material Facts ¶ 14, citing to Schooner deposition). 

To be sure, it is possible that, despite the laws and procedures that take 

politics out of contracting, some individuals may break the rules, and perhaps, if 

section 441c were a form of economic regulation and did not impinge on plaintiffs’ 

First Amendment rights, it might be sustained on that possibility. But the 

connection between contributions to persons who have no proper role in awarding 

federal contracts and the ban in section 441c is simply too attenuated to satisfy the 

First Amendment. Laws abridging First Amendment rights cannot be based on 

speculation alone: “it has long been established that the government cannot limit 

speech protected by the First Amendment without bearing the burden of showing 

that its restriction is justified.” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 

767, 777 (1986). Even regarding the more permissive regulation of commercial 

speech, the Court has held that the “burden is not satisfied by mere speculation or 

conjecture; rather a governmental body seeking to sustain a restriction on 

commercial speech must demonstrate that the harms it recites are real and that its 

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44 

restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 

U.S. 761, 770-71 (1993). 

 In this respect section 441c is like the ban on contributions by minors set 

aside in McConnell: even if some parents might use their children as unlawful 

conduits for excess contributions, a total ban on all contributions by minors failed 

the closely drawn test applied there: “The States have adopted a variety of more 

tailored approaches – e.g., counting contributions by minors against the total 

permitted for a parent or family unit, imposing a lower cap on contributions by 

minors, and prohibiting contributions by very young children. Without deciding 

whether any of these alternatives is sufficiently tailored, we hold that the provision 

here sweeps too broadly.” 540 U.S. at 232. Perhaps a prohibition on making a 

contribution to an official who is the decision-maker on a government contract for 

which the contributor is currently bidding could be justified as a means of avoiding 

the appearance of corruption. However, section 441c is not such a law.6

 

 

6

 Even that kind of a law might be struck down because there is a less restrictive 

alternative: impose a temporal ban on bidding for a contract by a person who has 

made a contribution to the official who decides who will be awarded that contract. 

That kind of law would operate like a recusal statute not a ban on speech. 

Compare Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009) (Due Process 

recusal of judge based mainly on very large independent expenditures that could 

not be constitutionally limited). That is how the rule upheld in Blount operated: 

municipal securities brokers were prohibited from engaging in that business for 

two years after (cont’d) contributing more than $250 to officials from whom they 

were seeking that business. 61 F.3d at 939-40. 

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45 

The FEC and the District Court relied in part on decisions sustaining state 

and local laws on contributions by contractors, but those cases are readily 

distinguishable because the connection between the contract award and the 

contribution was much closer than it is in the federal system. In the federal system, 

only Members of Congress and the President and Vice President are elected, and 

they have no direct role in awarding contracts. By contrast, many more state and 

local officials are elected, and many of those officials have important roles in 

awarding contracts. Indeed, in most of the litigated cases, the ban applied only to 

contributions to officials actually involved in the contracting process. Thus, in

Blount v. SEC, the rule was limited to contributions to specific officials of the 

issuer (i.e., the persons who decide who gets the business) and in that respect was 

even more narrowly tailored than the “branch specific” law in Green Party, 616 F. 

3d at 194. Even that law was sustained largely because it was enacted after a series 

of contractor-based scandals, id. at 193. It is true that section 441c has been in 

effect since 1940, and so recent evidence of the kind supporting the ban in Green 

Party is unlikely to exist, but the absence of any examples of even attempted payto-play involving federal contracts – by elected officials or anyone one else 

covered by section 441c – strongly suggests that the existing rules on federal 

procurement already protect the federal interest in avoiding the appearance of 

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46 

corruption. See Green Party, 616 F.3d at 206-07 (rejecting ban on contributions by 

lobbyists because of absence of evidence of improper influences). 

Finally, even if section 441c was defensible when it was enacted, it cannot 

withstand this First Amendment challenge today. Not only has the Holmesian 

view of what the Government may demand of those who work for it been rejected, 

supra at 8, but in 1976 the Court in Buckley first applied the First Amendment to 

political contributions. Moreover, the sea-changes in federal procurement law and 

practice described supra at 11-13, have so fundamentally altered that process that 

whatever dangers there may have been that contributions would influence the 

awarding of federal contracts in 1940 have been so diminished that section 441c 

can no longer be sustained as a means of avoiding even the appearance of pay-toplay. In short, as Justice Brandeis observed, “A statute valid when enacted may 

become invalid by change in the conditions to which it is applied.” Nashville, C. & 

St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935). 

C. Section 441c Is Over-Inclusive. 

Another reason why section 441c cannot withstand First Amendment 

scrutiny is that it reaches both contractors and contributions for which there is no 

significant risk of even the appearance of pay-to-play. See Lavin v. Husted, 689 

F.3d at 548 (setting aside contribution ban as “vastly more restrictive than 

necessary to achieve its stated goal”). The District Court rejected this overUSCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 55 of 77
47 

inclusiveness argument, relying on Buckley (which upheld only limits, not bans, on 

contributions) for the proposition that Congress has flexibility in this area. JA 235. 

The court noted plaintiffs’ examples of over-inclusiveness, but concluded that 

adopting them would still leave some danger of the appearance of corruption. JA 

235-38. That approach might be justified if section 441c were ordinary economic 

regulation, but it does not suffice to uphold a ban on First Amendment activities. 

See Citizens United, 131 S.Ct. at 911 (relying on both under- and overinclusiveness in rejecting shareholder protection rationale as grounds for a ban on 

independent expenditures). Under either strict scrutiny or the closely drawn 

standard, courts may not disregard obvious, modest, and less restrictive alternatives 

that would significantly reduce the harm to plaintiffs, while not undermining the 

asserted pay-to-play rationale. See, e.g., McConnell, 540 U. S. at 232. There are 

several obvious ways in which section 441c could be made less restrictive without 

undermining its purpose. 

For example, section 441c unnecessarily bans contributions to entities that 

have no possible role in federal contracting today. It applies not only to the 

President and Members of Congress – as well as challengers who have no current 

power even in theory – but also to all political parties (including minor and new 

parties and their candidates, as defined by 26 U.S.C. § 9002 (7) & (8)), and to 

ideological political committees, such as those formed by environmental groups, 

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48 

Planned Parenthood, the NRA, and the various Right to Life organizations, who, 

like corporate PACs, plainly have no ability to affect any award of any contract, let 

alone those of plaintiffs. Cf. Citizens Against Rent Control v. Berkeley, 454 U.S. 

290, 296-99 (1981) (distinguishing contributions to a candidate from contributions 

to a ballot initiative committee because committee has no power to make decisions 

unlike contributions given to current and potential office holders); Blount, 

61 F.3d at 947 (prohibition applies only to “officials who might influence the 

award of negotiated municipal bond underwriting contracts”). Similarly, in 

Dallman, 225 P.3d at 627, a law that reached contributions to political parties and 

to all candidates for office, regardless of their connection to the contributor’s actual 

or potential contract, was set aside because it incorrectly assumed that “a small 

contribution to a candidate for the general assembly automatically leads to a public 

perception that the donor will receive some quid pro quo benefit from a city or 

special district with which the donor holds a sole source contract.” 

 Section 441c also omits ameliorating features included in other statutes 

aimed at preventing pay-to-play. For example, the New York City law upheld in 

Ognibene v. Parkes, 671 F. 3d 174 (2d Cir.), cert. denied, 133 S. Ct. 28 (2012), 

relied on by the FEC and the lower court, has a number of less restrictive features 

absent from section 441c. First, the law does not ban, but only limits, 

contributions by certain contractors. Id. at 179-80. Second, the law applies only to 

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49 

contracts worth more than $100,000, which would have excluded plaintiff Wagner. 

Id. at 180. The law does not appear to apply to contractors like plaintiffs Brown 

and Miller (although that is not entirely clear since no one in their position was a 

plaintiff). Moreover, the challenged law was the result of a series of incremental 

changes, backed by studies and reports that followed on the heels of local scandals, 

id. at 178, and was carefully crafted to avoid the problems of over- and underinclusion found in section 441c. Plaintiffs take no position on whether Ognibene

was correctly decided or whether a law like that, at the federal level, would be 

constitutional. But its vastly reduced reach further demonstrates why section 441c 

is not closely drawn. 

Similarly, the Colorado law in Dallman had a much narrower scope than 

does section 441c: it applied only to contracts for which no more than three bids 

were received, and it covered only contracts above $100,000 (indexed for 

inflation). 225 P.3d at 618. Even then, the law did not survive closely drawn 

scrutiny because it applied to contracts in rural areas where the product or service 

could sometimes be obtained from only one company. Id. at 626-27.7

 

 

7

 Excluding sole source contracts is sensible because the requirements to enter 

them are sufficiently rigorous that they provide reasonable assurances of 

eliminating the possibility of the kind of favoritism that pay-to-play might 

undermine, especially because in many such cases the government initiates the 

contact. JA 218-19, pp. 139-41. The individual may be an expert (like plaintiff 

Wagner or Jonathan Tiemann), a mediator (where a private party must also consent 

and pay, JA 216, p. 132), or an investigator for the agency, and the (cont’d) 

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Even Preston, supra, which upheld a near-total ban on contributions by 

registered lobbyists in North Carolina, does not help the FEC. The decision turned 

on recent findings by the North Carolina legislature as to the potential for the 

appearance of corruption by lobbyists on the legislative process. 660 F.3d at 729-

30. That rationale is inapplicable here because plaintiffs are essentially 

government employees who have no means to influence Congress or the President 

through campaign contributions to candidates, parties, and political committees 

that have nothing to do with their contracts, or otherwise to affect public policy the 

way lobbyists can. But most significant for the over-inclusiveness argument is 

that, unlike under section 441c, lobbyists in North Carolina are entitled to 

contribute to PACs (up to $4000 under N.C. Stat. 163-278.13(a)) and to 

recommend which candidates should receive their contributions. Id. at 740. 

Finally, the rule in Blount v. SEC contained express exclusions for contracts 

where there was open competitive bidding and for contributions up to $250. 61 

F.3d at 940 & n.1. The concept of small contribution exclusions is already a 

feature of FECA because only contributions totaling more than $200 to a candidate 

in an election cycle must be reported to the FEC and the name of the contributor 

publicly disclosed. 2 U.S.C. §§ 431(13); 434(b)(3)(A). That exclusion strongly 

 

(cont’d) individual does not even know that there is a possible contract under 

consideration. In such cases the notion that a political contribution to a candidate 

for President, let alone to independent political committees, would influence the 

selection of a contractor is beyond fanciful. 

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51 

supports the conclusion that no reasonable person would believe that a contribution 

of $200 or less could influence the award of a federal contract, even assuming that 

the identity of the contributor were made known to the recipient. Because section 

441c contains none of the exceptions found in these other statutes, and because it 

bans contributions to entities having no connection with federal contracting, it is 

vastly over-inclusive and cannot stand under the First Amendment. 

D. Section 441c Is Under-Inclusive. 

Section 441c also runs afoul of the First Amendment because it is 

significantly under-inclusive by failing to include large categories of persons for 

whom the pay-to-play rationale is at least as great as it is for individual contractors 

such as plaintiffs. The District Court rejected the under-inclusiveness argument on 

the ground that expanding section 441c would be more offensive to the First 

Amendment. JA 39, 238. However, the Supreme Court has recognized the 

legitimacy of an under-inclusiveness inquiry in a First Amendment challenge, see

Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 665-666 (1990), 

overruled on other grounds, Citizens United, supra, although ultimately finding 

that there were significant differences between the included and excluded entities. 

See also City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994) (striking down ban on 

signs outside a home in part because it was under-inclusive based on the 

ordinance’s asserted rationale). In other words, in First Amendment cases, where 

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52 

“precision of regulation must be the touchstone,” NAACP v. Button, 371 U.S. 415, 

438 (1963), it is not a defense to a claim of under-inclusion that a broader law 

would be more restrictive of speech where that broader law would be more 

consistent with the stated rationale than the law being challenged. 

Procurement contracts are only one of the important ways the Government 

spends congressionally appropriated funds, which is the lynchpin of section 441c. 

In 2 C.F.R. § 180.970, the Office of Management and Budget provides examples 

of other uses of such funds; among the most prominent examples are grants, which 

are indistinguishable from contracts with regard to the concern that animates 

section 441c – preventing undue influence on decisions about who receives federal 

funding. In both situations, the Government has agreed to pay what may be a 

substantial sum of money to a person outside the Government to undertake certain 

activities the Government wants performed. To be sure, the agency awarding a 

grant will not receive personal services, goods, or materials as it would under a 

contract, but the grant will advance a governmental purpose, and one or more 

human beings will use the money to carry out the activity that the Government 

wants performed. 

Applying the theory of section 441c, a person seeking a grant might believe 

that the chance of obtaining it would be enhanced by making a contribution in a 

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53 

federal election. But grants are not covered by section 441c or any similar law.8 A 

2003 study found nearly 3 million individuals providing services under federal 

grants. 

http://www.brookings.edu/~/media/research/files/articles/2003/9/05politics%20lig

ht/light20030905.pdf. Professor Schooner testified that the Government gives 

away more money in grants in most years than it expends for contracts (JA 193, 

pp. 38-39), yet only the latter is covered by section 441c. He also explained that 

the protections against improper influence under federal contracting law are 

inapplicable to federal grants. JA 193-94, pp. 38-42. Other federal financial 

benefits such as loans, loan guarantees, subsidies, and “payments for specified 

uses,” 2 C.F.R. § 180.970, likewise have no effect on recipients’ ability to make 

campaign contributions despite their potential for the reality or appearance of a 

quid pro quo. Loans and guarantees include those made for homes by the VA or 

FHA, as well as for “small businesses” and “economic injury disasters,” both of 

which can be as much as $2 million. http://www.govloans.gov/loans/loandetails/1497; http://www.govloans.gov/loans/loan-details/1504. Also included are 

 

8

 The New York City law at issue in Ognibene applied to grants in excess of 

$100,000. 671 F.3d at 180. In fact, plaintiff Wagner is also a co-grantee from the 

National Science Foundation under a federal grant in the amount of $45,721, JA 

51, ¶ 4, but that grant does not preclude her from making political contributions. 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 62 of 77
54 

“business and industrial loans” that can be as large as $40 million. 

http://www.govloans.gov/loans/loan-details/4735. 

Other opportunities for pay-to-play include admission to one of the tuitionfree military academies. See, e.g. 10 U.S.C. § 6954(a); United States Naval 

Academy, http://www.usna.edu/Admissions/steps4.htm. Among those persons 

who can make the required nominations are Members of Congress and the 

President and Vice President, to whom contributions can actually be made (unlike 

the agency officials that hired plaintiffs). The failure to include them, even though 

they have similar pay-to-play potentials as government contracts, further suggests 

that the rationale offered to defend section 441c is not sufficiently tailored to 

sustain its constitutionality against this First Amendment challenge.9

 

There is also the well known practice by which individuals who hope to be 

rewarded with government positions, including coveted ambassadorships, make 

large contributions to support a presidential candidate or assist the campaign by 

bundling contributions from others. See T.W. Farnam, “Obama Gives 

 

9

 A similar opportunity for contributions to influence discretionary decisions 

involves Presidential pardons for which letters from Members of Congress can be 

persuasive. See, e.g., http://www.propublica.org/article/pardon-attorneytorpedoes-plea-for-presidential-mercy (citing support of Senator Dick Durbin to 

obtain only Obama commutation). And, as the case of Marc Rich illustrates, 

although there are real incentives for individuals seeking pardons to make generous 

contributions, see http://www.propublica.org/article/the-shadow-of-marc-rich, no 

ban like 441c applies in that situation. 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 63 of 77
55 

Administration Jobs to Some Big Fundraisers,” Washington Post, March 8, 2012, 

A15; Mark Landler, “Obama Rewarded ’08 Fundraisers,” New York Times, July 

25, 2012, A14 (80% of bundlers of $500,000 or more appointed to Administration 

positions). These practices are a much more serious example of pay-to-play than 

contributions by individuals like plaintiffs, yet they are perfectly legal. 

E. The Other Arguments in Support of Section 441c Are Unavailing. 

The FEC attempted to downplay the impact of the ban by suggesting that 

plaintiffs can express their preferences in federal elections by holding fundraisers 

and soliciting contributions for them, as well as providing other valuable services. 

JA 180, ¶¶ 138-141. It is true that under FECA, spending up to $1000 on food and 

the like for a fundraiser, or on travel expenses on behalf of a candidate, is not a 

“contribution” to anyone. 2 U.S.C. §§ 431 (8)(B)(ii) & (iv). But the FEC has 

never explained why the pay-to-play concerns that it uses to defend section 441c 

do not apply to such expenditures if made by plaintiffs, while section 441c would 

make plaintiffs felons if they gave just $10 to a candidate or even an independent 

political committee. The notion that plaintiffs could hold candidate fundraisers, 

where very large contributors would be invited and solicited, without raising the 

pay-to-play specter, but that sending a $100 check to the same candidate would 

create the appearance of improper influence, has it precisely backwards. Indeed, 

the SEC rule in Blount addressed this very problem and expressly forbade covered 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 64 of 77
56 

persons from engaging in solicitation, recognizing that fundraisers can be at least 

as beneficial to the candidate as contributions. 61 F.3d at 940. The FEC’s 

suggestion that plaintiffs engage in presumably unlimited fundraising as an 

alternative to making even a modest contribution is hardly consonant with a desire 

to eliminate pay-to-play shenanigans.10 

More fundamentally, the answer to the FEC’s argument is that the 

Government does not have the right to determine in what manner and by what 

means individuals will exercise their First Amendment rights. That is the 

dispositive lesson of Texas v. Johnson, 491 U.S. 397 (1989), where the defendant 

had an almost infinite number of ways to express his displeasure with the 

Government besides burning an American flag, yet the Court struck down the law 

forbidding him from choosing that method of making his views known. Moreover, 

if alternatives to making contributions were a defense to a claim that the First 

Amendment was violated by a limit on contributions, many Supreme Court cases 

would have been much shorter, and some, such as Randall v. Sorrell, supra, would 

have come out the opposite way. Indeed, under the FEC’s theory, no limit or even 

 10 The American Bar Association Section of Administrative Law recently 

convened a task force on federal lobbying laws, in which it concluded that 

applying lower limits to contributions by lobbyists would raise First Amendment 

problems, but the ability of lobbyists (including those for federal contractors) to 

engage in bundling and other forms of fundraising is much more problematic and 

limits on that activity would be constitutional. Lobbying Law in the Spotlight: 

Challenges and Proposed Improvements, 63 Admin L. Rev. 428, 450-55 (2011). 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 65 of 77
57 

ban on contributions would ever be struck down because there are always 

alternative ways to support a candidate, party, or cause. 

Finally, the District Court suggested that Congress had made a “reasonable 

legislative judgment” that the contribution limits applicable to all individuals, 

including federal employees, were not adequate to protect the federal interest 

allegedly advanced by applying the ban in section 441c to individual federal 

contractors. JA 46. The main difficulty with that assertion is that all legislative 

judgments are subordinate to the Constitution. Moreover, the District Court 

assumed that Congress actually considered the issue, but there is nothing to support 

that hypothesis. Congress imposed the ban on contractor contributions in 1940, 

and the only changes to that provision since then made it easier for corporations to 

make contributions, through their PACs. Even when Congress implemented the 

current contribution system in 1971, and imposed contributions limits on all 

individuals, it never considered making those limits applicable to individual 

contractors. And when it loosened restrictions in the Hatch Act after 1940, it never 

considered loosening or eliminating the ban in section 441c applicable to plaintiffs 

and others. JA 143-44, ¶¶ 34-35. Cf. Miller v. Alabama, 132 S. Ct. 2455, 2472 

(2012) (mandatory sentences of life without parole for juveniles resulting from the 

interaction of separate statutes enacted at different times make it “impossible to say 

whether a legislature had endorsed a given penalty for children (or would do so if 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 66 of 77
58 

presented with the choice)”). The continued adherence to an absolute ban for 

individuals under section 441c is in marked contrast to the “careful adjustment of 

the federal electoral laws” upheld in FEC v. National Right to Work Committee, 

459 U.S. 197, 209 (1982). 

In sum, even if a considered legislative judgment could overcome the kind 

of constitutional problems that exist here, the special ban imposed on individual 

contractors is entirely one of happenstance that has never been considered, let 

alone reconsidered in light of other directly relevant changes in campaign finance 

and federal procurement law since the ban was enacted in 1940. The First 

Amendment does not dictate any single change, or even a combination of changes, 

that are needed to save section 441c, but the failure to include any ameliorating 

features, or to include within in its reach other federal programs with comparable 

pay-to-play potential, demonstrates why the law is not closely enough drawn to be 

upheld. As the Supreme Court observed in a related context in United States v. 

National Treasury Employees Union, 513 U.S. 454, 477 (1995): “The speculative 

benefits the honoraria ban may provide the Government are not sufficient to justify 

this crudely crafted burden on respondents’ freedom to engage in expressive 

activities.” 

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59 

CONCLUSION 

For the foregoing reasons, the judgment of the District Court should be 

reversed, and judgment 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-Appellants 

January 16, 2013 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 68 of 77
60 

No. 12-5365 

___________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

___________________________ 

WENDY E. WAGNER, et al., 

 Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. 

___________________________ 

CERTIFICATE OF COMPLIANCE 

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

16th day of January 2013 that the foregoing Brief of Plaintiffs-Appellants, has a 

type face of 14 points and, as calculated by my word-processing software 

(Microsoft Word), contains 13, 938 words. 

 /s/ Alan B. Morrison 

Alan B. Morrison 

 George Washington University 

 Law School 

 2000 H Street NW 

 Washington D. C. 20052 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 69 of 77
61 

No. 12-5365 

CERTIFICATE OF SERVICE 

I hereby certify that I served and filed the Joint Appendix and Brief of the 

Plaintiffs-Appellants this 16th day of January 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 

Copies of the Brief and Joint Appendix were also served by hand on the 

FEC and by first class on Counsel for Amici on this date. 

 /s/ Alan B. Morrison 

Alan B. Morrison 

 George Washington University 

 Law School 

 2000 H Street NW 

 Washington D. C. 20052

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 70 of 77
i 

STATUTORY ADDENDUM 

2 U.S.C. § 441c, Contributions by government contractors 

(a) Prohibition 

It shall be unlawful for any person-- 

(1) who enters into any contract with the United States or any department or 

agency thereof either for the rendition of personal services or furnishing any 

material, supplies, or equipment to the United States or any department or agency 

thereof or for selling any land or building to the United States or any department or 

agency thereof, if payment for the performance of such contract or payment for 

such material, supplies, equipment, land, or building is to be made in whole or in 

part from funds appropriated by the Congress, at any time between the 

commencement of negotiations for and the later of (A) the completion of 

performance under; or (B) the termination of negotiations for, such contract or 

furnishing of material, supplies, equipment, land, or buildings, directly or 

indirectly to make any contribution of money or other things of value, or to 

promise expressly or impliedly to make any such contribution to any political 

party, committee, or candidate for public office or to any person for any political 

purpose or use; or 

(2) knowingly to solicit any such contribution from any such person for any such 

purpose during any such period. 

(b) Separate segregated funds 

This section does not prohibit or make unlawful the establishment or 

administration of, or the solicitation of contributions to, any separate segregated 

fund by any corporation, labor organization, membership organization, 

cooperative, or corporation without capital stock for the purpose of influencing the 

nomination for election, or election, of any person to Federal office, unless the 

provisions of section 441b of this title prohibit or make unlawful the establishment 

or administration of, or the solicitation of contributions to, such fund. Each specific 

prohibition, allowance, and duty applicable to a corporation, labor organization, or 

separate segregated fund under section 441b of this title applies to a corporation, 

labor organization, or separate segregated fund to which this subsection applies. 

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ii 

(c) “Labor organization” defined 

For purposes of this section, the term “labor organization” has the meaning given it 

by section 441b(b)(1) of this title. 

2 U.S.C. § 441b, Contributions or expenditures by national banks, 

corporations, or labor organizations 

(a) In general 

It is unlawful for any national bank, or any corporation organized by authority of 

any law of Congress, to make a contribution or expenditure in connection with any 

election to any political office, or in connection with any primary election or 

political convention or caucus held to select candidates for any political office, or 

for any corporation whatever, or any labor organization, to make a contribution or 

expenditure in connection with any election at which presidential and vice 

presidential electors or a Senator or Representative in, or a Delegate or Resident 

Commissioner to, Congress are to be voted for, or in connection with any primary 

election or political convention or caucus held to select candidates for any of the 

foregoing offices, or for any candidate, political committee, or other person 

knowingly to accept or receive any contribution prohibited by this section, or any 

officer or any director of any corporation or any national bank or any officer of any 

labor organization to consent to any contribution or expenditure by the corporation, 

national bank, or labor organization, as the case may be, prohibited by this section. 

(b) Definitions; particular activities prohibited or allowed 

(1) For the purposes of this section the term “labor organization” means any 

organization of any kind, or any agency or employee representation committee or 

plan, in which employees participate and which exists for the purpose, in whole or 

in part, of dealing with employers concerning grievances, labor disputes, wages, 

rates of pay, hours of employment, or conditions of work. 

(2) For purposes of this section and section 79l(h) of Title 15, the term 

“contribution or expenditure” includes a contribution or expenditure, as those 

terms are defined in section 431 of this title, and also includes any direct or indirect 

payment, distribution, loan, advance, deposit, or gift of money, or any services, or 

anything of value (except a loan of money by a national or State bank made in 

accordance with the applicable banking laws and regulations and in the ordinary 

course of business) to any candidate, campaign committee, or political party or 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 72 of 77
iii 

organization, in connection with any election to any of the offices referred to in 

this section or for any applicable electioneering communication, but shall not 

include (A) communications by a corporation to its stockholders and executive or 

administrative personnel and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and getout-the-vote campaigns by a corporation aimed at its stockholders and executive or 

administrative personnel and their families, or by a labor organization aimed at its 

members and their families; and (C) the establishment, administration, and 

solicitation of contributions to a separate segregated fund to be utilized for political 

purposes by a corporation, labor organization, membership organization, 

cooperative, or corporation without capital stock. 

(3) It shall be unlawful-- 

(A) for such a fund to make a contribution or expenditure by utilizing money or 

anything of value secured by physical force, job discrimination, financial reprisals, 

or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or 

other moneys required as a condition of membership in a labor organization or as a 

condition of employment, or by moneys obtained in any commercial transaction; 

(B) for any person soliciting an employee for a contribution to such a fund to fail 

to inform such employee of the political purposes of such fund at the time of such 

solicitation; and 

(C) for any person soliciting an employee for a contribution to such a fund to fail 

to inform such employee, at the time of such solicitation, of his right to refuse to so 

contribute without any reprisal. 

(4)(A) Except as provided in subparagraphs (B), (C), and (D), it shall be unlawful-- 

(i) for a corporation, or a separate segregated fund established by a corporation, to 

solicit contributions to such a fund from any person other than its stockholders and 

their families and its executive or administrative personnel and their families, and 

(ii) for a labor organization, or a separate segregated fund established by a labor 

organization, to solicit contributions to such a fund from any person other than its 

members and their families. 

(B) It shall not be unlawful under this section for a corporation, a labor 

organization, or a separate segregated fund established by such corporation or such 

USCA Case #12-5365 Document #1415422 Filed: 01/16/2013 Page 73 of 77
iv 

labor organization, to make 2 written solicitations for contributions during the 

calendar year from any stockholder, executive or administrative personnel, or 

employee of a corporation or the families of such persons. A solicitation under this 

subparagraph may be made only by mail addressed to stockholders, executive or 

administrative personnel, or employees at their residence and shall be so designed 

that the corporation, labor organization, or separate segregated fund conducting 

such solicitation cannot determine who makes a contribution of $50 or less as a 

result of such solicitation and who does not make such a contribution. 

(C) This paragraph shall not prevent a membership organization, cooperative, or 

corporation without capital stock, or a separate segregated fund established by a 

membership organization, cooperative, or corporation without capital stock, from 

soliciting contributions to such a fund from members of such organization, 

cooperative, or corporation without capital stock. 

(D) This paragraph shall not prevent a trade association or a separate segregated 

fund established by a trade association from soliciting contributions from the 

stockholders and executive or administrative personnel of the member corporations 

of such trade association and the families of such stockholders or personnel to the 

extent that such solicitation of such stockholders and personnel, and their families, 

has been separately and specifically approved by the member corporation involved, 

and such member corporation does not approve any such solicitation by more than 

one such trade association in any calendar year. 

(5) Notwithstanding any other law, any method of soliciting voluntary 

contributions or of facilitating the making of voluntary contributions to a separate 

segregated fund established by a corporation, permitted by law to corporations 

with regard to stockholders and executive or administrative personnel, shall also be 

permitted to labor organizations with regard to their members. 

(6) Any corporation, including its subsidiaries, branches, divisions, and affiliates, 

that utilizes a method of soliciting voluntary contributions or facilitating the 

making of voluntary contributions, shall make available such method, on written 

request and at a cost sufficient only to reimburse the corporation for the expenses 

incurred thereby, to a labor organization representing any members working for 

such corporation, its subsidiaries, branches, divisions, and affiliates. 

(7) For purposes of this section, the term “executive or administrative personnel” 

means individuals employed by a corporation who are paid on a salary, rather than 

hourly, basis and who have policymaking, managerial, professional, or supervisory 

responsibilities. 

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v 

(c) Rules relating to electioneering communications [omitted] 

2 U.S.C. § 432(e) (5) 

The name of any separate segregated fund established pursuant to section 441b(b) 

of this title shall include the name of its connected organization. 

18 U.S.C. § 601. Deprivation of employment or other benefit for political 

contribution 

(a) Whoever, directly or indirectly, knowingly causes or attempts to cause any 

person to make a contribution of a thing of value (including services) for the 

benefit of any candidate or any political party, by means of the denial or 

deprivation, or the threat of the denial or deprivation, of-- 

(1) any employment, position, or work in or for any agency or other entity of the 

Government of the United States, a State, or a political subdivision of a State, or 

any compensation or benefit of such employment, position, or work; or 

(2) any payment or benefit of a program of the United States, a State, or a political 

subdivision of a State; 

if such employment, position, work, compensation, payment, or benefit is provided 

for or made possible in whole or in part by an Act of Congress, shall be fined 

under this title, or imprisoned not more than one year, or both. 

18 U.S.C. § 603. Making political contributions 

(a) It shall be unlawful for an officer or employee of the United States or any 

department or agency thereof, or a person receiving any salary or compensation for 

services from money derived from the Treasury of the United States, to make any 

contribution within the meaning of section 301(8) of the Federal Election 

Campaign Act of 1971 to any other such officer, employee or person or to any 

Senator or Representative in, or Delegate or Resident Commissioner to, the 

Congress, if the person receiving such contribution is the employer or employing 

authority of the person making the contribution. Any person who violates this 

section shall be fined under this title or imprisoned not more than three years, or 

both. 

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vi 

18 U.S.C. § 606. Intimidation to secure political contributions 

Whoever, being one of the officers or employees of the United States mentioned in 

section 602 of this title, discharges, or promotes, or degrades, or in any manner 

changes the official rank or compensation of any other officer or employee, or 

promises or threatens so to do, for giving or withholding or neglecting to make any 

contribution of money or other valuable thing for any political purpose, shall be 

fined under this title or imprisoned not more than three years, or both. 

18 U.S.C. § 610. Coercion of political activity 

It shall be unlawful for any person to intimidate, threaten, command, or coerce, or 

attempt to intimidate, threaten, command, or coerce, any employee of the Federal 

Government as defined in section 7322(1) of title 5, United States Code, to engage 

in, or not to engage in, any political activity, including, but not limited to, voting or 

refusing to vote for any candidate or measure in any election, making or refusing to 

make any political contribution, or working or refusing to work on behalf of any 

candidate. Any person who violates this section shall be fined under this title or 

imprisoned not more than three years, or both. 

48 C.F.R. 1.601 General. 

(a) Unless specifically prohibited by another provision of law, authority and 

responsibility to contract for authorized supplies and services are vested in the 

agency head. The agency head may establish contracting activities and delegate 

broad authority to manage the agency's contracting functions to heads of such 

contracting activities. Contracts may be entered into and signed on behalf of the 

Government only by contracting officers. In some agencies, a relatively small 

number of high level officials are designated contracting officers solely by virtue 

of their positions. Contracting officers below the level of a head of a contracting 

activity shall be selected and appointed under 1.603. 

48 1.603–1 General. 

Subsection 414(4) of title 41, United States Code, requires agency heads to 

establish and maintain a procurement career management program and a system 

for the selection, appointment, and termination of appointment of contracting 

officers. Agency heads or their designees may select and appoint contracting 

officers and terminate their appointments. These selections and appointments shall 

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vii 

be consistent with Office of Federal Procurement Policy's (OFPP) standards for 

skill-based training in performing contracting and purchasing duties as published 

in OFPP Policy Letter No. 05–01, Developing and Managing the Acquisition 

Workforce, April 15, 2005. 

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