ORAL ARGUMENT NOT YET SCHEDULED 

No. 12-5365 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

WENDY E. WAGNER, et al.,

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Anthony Herman 

General Counsel 

 

Lisa J. Stevenson 

Deputy General Counsel - Law 

David Kolker 

Associate General Counsel 

 

 Harry J. Summers 

 Assistant General Counsel 

 Holly J. Baker 

 Seth Nesin 

 Attorneys 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

February 20, 2013 (202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

 Pursuant to D.C. Cir. R. 28(a)(1), the Federal Election Commission 

(“Commission”) submits its Certificate as to Parties, Rulings, and Related Cases. 

(A) 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 Commission was the defendant in the district court and is the appellee in this 

Court. Campaign Legal Center and Democracy 21 filed a joint amicus 

memorandum in the district court, and they have indicated that they intend to file 

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

(B) Rulings Under Review. Plaintiffs appeal the November 2, 2012, final order 

of the United States District Court for the District of Columbia (Boasberg, J.) 

granting the Commission’s motion for summary judgment. That order 

incorporates by reference the district court’s earlier order denying plaintiffs’ 

motion for a preliminary injunction (Boasberg, J.), which was entered on April 16, 

2012. The district court’s opinions are available 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), and the opinions are reproduced at pages 24-49 and 224-242 of the 

appendix. 

 (C) Related Cases. The Commission knows of no “related cases” as that phrase 

is defined in D.C. Cir. R. 28(a)(1)(C). 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF ISSUES PRESENTED .............................. 1 

APPLICABLE STATUTES ....................................................................... 1 

COUNTERSTATEMENT OF THE CASE ................................................ 1 

COUNTERSTATEMENT OF THE FACTS ............................................. 2 

I. BACKGROUND .............................................................................. 2 

A. The Parties .............................................................................. 2 

B. Relevant Statutory and Regulatory Provisions ...................... 4 

II. MEASURES TO COMBAT CORRUPTION IN 

GOVERNMENT CONTRACTING ................................................ 6 

A. History of the Ban on Political Contributions in the 

Federal Workforce .................................................................. 6 

B. Recent Changes in Government Contracting and 

Anti-Corruption Measures ...................................................... 9 

 

C. The Continuing Potential for Corruption and Its 

Appearance in Government Contracting .............................. 12 

III. PROCEEDINGS IN THE DISTRICT COURT ............................. 16 

SUMMARY OF ARGUMENT ................................................................ 19 

 

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ARGUMENT ............................................................................................ 21 

I. STANDARD OF REVIEW ............................................................ 21 

II. SECTION 441c SATISFIES THE FIRST AMENDMENT 

BECAUSE IT IS CLOSELY DRAWN TO SERVE 

IMPORTANT GOVERNMENT INTERESTS .............................. 21 

A. Section 441c Is a Contribution Limit That Must Be 

Upheld If It Is Closely Drawn to Match a Sufficiently 

Important Interest ................................................................. 22 

B. The Government Has Important Interests Not Only in 

Preventing Corruption and Its Appearance But Also in 

Promoting a Merit-Based Federal Workforce ...................... 25 

C. Section 441c Is Closely Drawn to Match Important 

Interests Because It Addresses Continuing Threats of 

Corruption, Allows Ample Alternatives for Political 

Expression, and Applies Only Temporarily to Those 

Who Choose to Benefit from Government Contracts .......... 29 

1. The Threats of Corruption and the Politicization 

of Federal Contracting Persist Today ........................ 31 

 2. Section 441c Is Closely Drawn Because It Allows 

Contractors to Engage in Many Other Forms of 

Political Expression ................................................... 39 

3. Section 441c Is Closely Drawn Because It Applies 

Only Temporarily to Those Who Have Chosen to 

Receive the Benefits of Government Contracts ......... 41 

 

D. Section 441c Is Constitutional Even Though It Does Not 

Address Every Potential Avenue for Corruption ................. 42 

E. The Constitutionality of the Contractor Contribution 

Ban Has Not Eroded Over Time .......................................... 44 

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III. SECTION 441C SATISFIES THE EQUAL PROTECTION 

GUARANTEE OF THE FIFTH AMENDMENT .......................... 48 

A. The Court Should Employ Rational Basis Review ............. 48 

B. Equal Protection Is Not Violated by Any Differential 

Treatment Between Individual Contractors and Corporate 

Entities or Persons Associated with Those Entities ............. 53 

C. Equal Protection Is Not Violated by Any Differential 

Treatment Between Individual Contractors and Federal 

Employees ............................................................................ 57 

CONCLUSION ......................................................................................... 60 

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TABLE OF AUTHORITIES 

 Page 

Cases 

Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) ..................... 52 

Agostini v. Felton, 521 U.S. 203 (1997) ................................................... 24 

Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151 

(D.C. Cir. 1979) .............................................................................. 19 

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................... 19 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ........... 44 

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740 (D.C. Cir. 2000) .......... 21 

Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 

668 (1996) ....................................................................................... 26 

*Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ....................... 40, 41, 43, 51 

Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) ............................... 28 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......................................... 51 

*Buckley v. Valeo, 424 U.S. 1 (1976) ........ 5, 17, 22, 23, 25, 29, 30, 32, 34, 

38, 39, 41-42, 50, 53-54, 57 

Burson v. Freeman, 504 U.S. 191 (1992) ................................................. 30 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1982).............................. 53, 59, 60 

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ............................................. 44 

*Cases and Authorities chiefly relied upon are marked with an asterisk. 

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Citizens United v. FEC, 558 U.S. 310, 

130 S. Ct. 876 (2010) .............................................. 22, 24, 30, 44, 55 

Connick v. Myers, 461 U.S. 138 (1983) .................................................... 25 

DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997) ............. 22 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................... 49 

*FEC v. Beaumont, 539 U.S. 146 (2003) .............. 23, 24, 25, 32, 50, 54-55 

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001).................................................................. 30, 36 

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985)........................................................................ 38 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982)................................................. 33, 38, 42-43, 53 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) .............................. 19 

Friends of the Earth v. Reilly, 966 F.2d 690 (D.C. Cir. 1992) ................. 19 

*Green Party of Conn. v. Garfield, 

616 F.3d 123 (2d Cir. 2010), 

cert. denied, 131 S. Ct. 3090 (2011) ........................ 13, 24, 32, 34-35 

Heller v. Doe, 509 U.S. 312 (1993) .......................................................... 49 

Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771 

(D.C. Cir. 2002) .............................................................................. 21 

Lyng v. Int’l Union, 485 U.S. 360 (1988) ................................................. 42 

McConnell v. FEC, 540 U.S. 93 (2003) .................................. 19, 23, 32, 39 

McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001) ........................................ 50 

Mills v. Habluetzel, 456 U.S. 91 (1982) ................................................... 52 

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Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ............... 49 

Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ........................... 52 

Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) ...................... 45

Nat’l Fed’n of Fed. Employees v. Greenberg, 983 F.2d 286 

(D.C. Cir. 1993) .............................................................................. 29 

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)................ 47 

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000)........................................... 23, 25, 31-32, 33-34 

N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ............. 33 

*Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2012) ........... 14, 17, 33, 37-38 

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,Will Cty., Ill., 

391 U.S. 563 (1968)........................................................................ 25 

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) ........................... 50 

*Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ............. 24, 33, 35, 41, 42 

Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir. 2003) .................................... 43 

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ......... 49, 50 

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

841 (1984) ....................................................................................... 42 

Tate v. District of Columbia, 627 F.3d 904 (D.C. Cir. 2010) ................... 21 

United Public Workers of Am. v. Mitchell, 330 U.S. 75 (1947) ............... 29 

United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012), 

petition for cert. filed, 2012 WL 5451444 (U.S. Nov. 8, 2012) ..... 24

United States v. Fausto, 484 U.S. 439 (1988) .......................................... 48 

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*U.S. Civil Service Comm’n v. Nat’l Assoc. of Letter Carriers, 

413 U.S. 548 (1973)......................................................... 7, 26-28, 41

Vance v. Bradley, 440 U.S. 93 (1979) ................................................ 49, 51 

Wagner v. FEC, 854 F. Supp. 2d 83 (D.D.C. 2012) ........................... 16, 18 

Wagner v. FEC, 2012 WL 5378224 (D.D.C.) .......................................... 16 

Waters v. Churchill, 511 U.S. 661 (1994) .......................................... 25, 26 

Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) ............................... 47 

Wyman v. James, 400 U.S. 309 (1971) ..................................................... 42 

Statutes and Regulations 

Amendments to the Hatch Act of 1939, 1940 Ed., § 61m-l 

(July 19, 1940, c. 640, § 5, 54 Stat. 772), 

codified at 18 U.S.C. § 611 ............................................................. 6 

Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 

116 Stat. 81 (2002) ................................................................... 10, 37 

Civil Service Act of 1883, 47 Cong. Ch. 27, 

22 Stat. 403 (Mar. 6, 1882); S. Rep. 101-165. ................................. 7 

Federal Corrupt Practices Act, c. 368, § 312, 43 Stat. 1053, 1073 

(codified at 18 U.S.C. § 602) ........................................................... 7 

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 

§§ 431-57 ...................................................................................... 1, 2 

2 U.S.C. § 431(8)(A)(i) ............................................................................... 5 

2 U.S.C. § 431(8)(B) ................................................................................. 39 

2 U.S.C. § 431(11) ...................................................................................... 5 

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

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2 U.S.C. § 441b ......................................................................................... 24 

2 U.S.C. § 441b(a) ................................................................................ 4, 54 

2 U.S.C. § 441b(b) .................................................................................... 59 

2 U.S.C. § 441b(b)(2)(C) ............................................................................ 4 

2 U.S.C. § 441b(b)(4)(A)(i) ...................................................................... 54 

*2 U.S.C. § 441c ............................................... 1, 2, 6, 9, 17-19, 21, 25, 29, 

30, 31, 38, 39, 42, 46, 54-56, 58

2 U.S.C. § 441c(a) ................................................................................... 5, 6 

2 U.S.C. § 441c(a)(2) .................................................................................. 5 

2 U.S.C. § 441c(b) .................................................................................... 54 

2 U.S.C. § 441e ......................................................................................... 28 

2 U.S.C. § 441i .......................................................................................... 37 

5 U.S.C. §§ 1201-1209 ......................................................................... 4, 57 

5 U.S.C. §§ 1214-15.................................................................................. 57 

5 U.S.C. §§ 2301(b)(1)-(2) ....................................................................... 57 

5 U.S.C. §§ 2301(b)(2).............................................................................. 58 

5 U.S.C. §§ 2301(b)(8)(A) ........................................................................ 58 

5 U.S.C. § 7323 ..................................................................................... 9, 58 

5 U.S.C. § 7323(b)(1)................................................................................ 58 

18 U.S.C. § 208 (former) ............................................................................ 7 

18 U.S.C. § 602 ........................................................................................... 7 

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18 U.S.C. § 611 ........................................................................................... 6 

5 C.F.R. § 733.122 .................................................................................... 27 

5 C.F.R. § 734.303 .................................................................................... 58 

5 C.F.R. §§ 734.408-12 ............................................................................. 58 

11 C.F.R. §§ 100.74-100.77 ...................................................................... 39 

11 C.F.R. § 115.2 ........................................................................................ 5 

11 C.F.R. § 115.5 ..................................................................................... 5-6 

48 C.F.R. § 1.601(a) .................................................................................. 36 

Miscellaneous 

Dep’t of Defense, The Encyclopedia of Ethical Failure, 

(updated July 2012), www.dod.mil/dodgc/defense_ethics/ 

resource_library/guidance.htm ....................................................... 15 

Explanation and Justification, Part 115 Federal Contractors, 1977; 

41 Fed. Reg. 35,963 (Aug. 25, 1976) ............................................... 6 

FEC, FEC Announces 2013-2014 Campaign Cycle Contribution 

limits, http://www.fec.gov/press/press2013/ 

20133001_2013-14ContributionLimits.shtml. ................................. 4 

U.S. Senate, Committee on Homeland Security 

and Government Affairs, S. Prt. 110-36, 

Policy and Supporting Positions (2008) (“Plum Book”) ............... 14 

Morton Rosenberg and Jack Maskell, Congressional Intervention in the 

Administrative Process: Legal and Ethical Considerations, 

Congressional Research Service, Sept. 25, 2003,

http://www.fas.org/sgp/crs/misc/RL32113.pdf .............................. 35 

86 Cong. Rec. 2563 (March 8, 1940) (remarks of Senator Hatch) ........... 46 

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GLOSSARY 

ACUS Administrative Conference of the United States 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

LLC Limited Liability Corporation 

MSPB Merit Systems Protection Board 

PAC Political Action Committee 

SSF Separate Segregated Fund 

USAID United States Agency for International Development 

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COUNTERSTATEMENT OF ISSUES PRESENTED

 Whether the district court correctly held that the ban on federal campaign 

contributions by all federal contractors in 2 U.S.C. § 441c satisfies the First 

Amendment as applied to contractors who are individuals. 

 Whether the district court correctly held that 2 U.S.C. § 441c as applied to 

individual federal contractors satisfies the equal protection guarantee of the Fifth 

Amendment. 

APPLICABLE STATUTES

 Relevant statutory provisions are included in an Addendum bound with this 

brief. 

COUNTERSTATEMENT OF THE CASE 

This case challenges the constitutionality of a statutory ban on campaign 

contributions by federal contractors that has been in effect for more than 70 years. 

Enacted originally as an amendment to the Hatch Act of 1939 to prevent “pay-toplay” arrangements and protect federal contractors from political coercion, the 

provision was incorporated into the Federal Election Campaign Act (“FECA”) in 

1972 and codified at 2 U.S.C. § 441c. Appellants (“the contractors”) allege that 

the provision violates the First Amendment and the equal protection guarantee of 

the Fifth Amendment as applied to contractors who are individuals. 

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 On November 2, 2012, the district court granted summary judgment to the 

Commission. The court first upheld section 441c against the First Amendment 

challenge, concluding that the statute was closely drawn to serve the important 

government interests in avoiding corruption and its appearance. The court found 

sufficient evidence of contractor corruption in the scandals that led to the passage 

of the ban in 1940 as well as in relevant recent experience in the states. The court 

also concluded that the statute is neither over- nor under-inclusive, noting that its 

fit need not be perfect or even narrowly tailored. In rejecting the contractors’ Fifth 

Amendment claim, the court applied intermediate scrutiny and found no equal 

protection violation. The contractors timely appealed. 

COUNTERSTATEMENT OF THE FACTS 

I. BACKGROUND 

A. The Parties 

 The Federal Election Commission (“Commission” or “FEC”) is the 

independent agency of the United States government with exclusive jurisdiction to 

administer, interpret, and civilly enforce the Federal Election Campaign Act of 

1971, as amended, 2 U.S.C. §§ 431-57. 

 The contractors are three individuals who have chosen to enter into contracts 

with the federal government. Wendy Wagner is a law professor who agreed to 

write a report on the intersection of science and regulation for the Administrative 

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Conference of the United States (“ACUS”). (Joint Appendix (“JA”) 131 ¶ 2.) 

That type of task-specific contract can also be entered into with a limited liability 

corporation (“LLC”) for which one of the LLC principals would carry out the 

specific task. (JA 132-33 ¶¶ 6, 9.) During the process of negotiating and 

performing her contract with ACUS, Wagner has interacted with at least one 

political appointee, Chairman Paul Verkuil, who was appointed by President 

Obama and confirmed by the Senate. (JA 131, 133-34 ¶¶ 3, 10, 12.) Wagner’s 

contract specifies that she will be paid $12,000 plus $4,000 for travel and research 

expenses. (JA 131-32 ¶ 3.) 

 Lawrence Brown is a former federal employee who, after retiring and while 

collecting a federal government pension, entered into a two-year personal services 

contract, with three one-year renewal options, as a human resources adviser with 

the United States Agency for International Development (“USAID”). That 

contract has a total estimated value of $865,698. Brown has held personal services 

contracts with USAID since October 2006. (JA 132 ¶ 4.) 

 Jan Miller is an attorney who, after retiring from USAID in 2003 and while 

collecting a government pension, has signed contracts to work as an annuitantconsultant with USAID. Most recently, in 2010, Miller executed a five-year 

personal services consulting contract with USAID. (JA 132 ¶ 5.) The total 

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budgeted value of his contract is $884,151, although he works only part-time for 

USAID. (Id.) 

 Brown and Miller are retired annuitants whose federal agencies have special 

authority to hire them back under a personal services contract, a type of 

government contract whereby an agency may hire an individual to perform specific 

services on a regular basis. (JA 132-33 ¶ 7; see JA 146-49 ¶¶ 42-50.) But 

Brown’s and Miller’s contracts specify that they are not afforded the statutory 

protections of the Merit Systems Protection Board (“MSPB”), 5 U.S.C. §§ 1201-

1209, which protects federal employees. (JA 133 ¶ 8.) While performing their 

contracts, Brown and Miller have each had interactions with at least one political 

appointee. (JA 134 ¶ 13.) 

B. Relevant Statutory and Regulatory Provisions 

FECA restricts how much individuals can contribute to federal candidates, 

political parties, and other political committees. See 2 U.S.C. § 441a(a).1

 FECA 

also prohibits corporations and labor organizations from making contributions, 

except through their separate segregated funds (also known as political action 

committees or PACs). Id. §§ 441b(a), (b)(2)(C). FECA defines “contribution” as 

 

1

 Currently, individuals may contribute $2,600 per election to a federal 

candidate, $32,400 annually to a national party committee, and a total of 

$123,200 per two-year election cycle — with no more than $74,600 going to all 

PACs and parties per cycle. See 2 U.S.C. § 441a(a); FEC Announces 2013-2014 

Campaign Cycle Contribution limits, 

http://www.fec.gov/press/press2013/20133001_2013-14ContributionLimits.shtml. 

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“any gift, subscription, loan, advance, or deposit of money or anything of value 

made ... for the purpose of influencing any election for Federal office.” 2 U.S.C. 

§ 431(8)(A)(i). In 1976, the Supreme Court generally upheld FECA’s contribution 

limits against a facial challenge. See Buckley v. Valeo, 424 U.S. 1, 23-38 (1976) 

(per curiam). 

 FECA prohibits any person who is negotiating or performing a contract with 

the United States government or its agencies from making a contribution to any 

political party, political committee, or federal candidate. See 2 U.S.C. § 441c(a). 

FECA defines “person” to include “an individual, partnership, committee, 

association, corporation, labor organization, or any other organization or group of 

persons” other than the federal government. 2 U.S.C. § 431(11). The contribution 

ban only applies to the individual or entity that enters into the government contract 

— an individual can use a corporate form such as an LLC to enter into contracts 

with the government and remain free to make individual contributions. (JA 181-82 

¶¶ 143-46.) 

Section 441c(a)(2) prohibits any person from soliciting a contribution from a 

federal contractor during the period of the contract. The Commission has 

interpreted section 441c to apply only to contributions made in connection with 

federal elections, not state or local elections, 11 C.F.R. § 115.2, and to allow 

spouses of federal contractors to make contributions in their own names, 11 C.F.R. 

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§ 115.5. See Explanation and Justification, Part 115 Federal Contractors, 1977; 41 

Fed. Reg. 35,963 (Aug. 25, 1976). 

The contractor contribution ban now codified at 2 U.S.C. § 441(c) was first 

enacted as part of the 1940 amendments to the Hatch Act of 1939, and later 

incorporated in 1972, with minor modifications, into the Federal Election 

Campaign Act of 1971.2

 The statutory language of section 441c(a) is based on 

former 18 U.S.C. § 611. (JA 135 ¶ 14.) The predecessor of the current section 

441c was amended in 1976 to include subsections (b) and (c), and the whole was 

re-designated as section 441c. (See Addendum for full text of section 441c.) 

II. MEASURES TO COMBAT CORRUPTION IN GOVERNMENT 

CONTRACTING 

A. History of the Ban on Political Contributions in the Federal 

Workforce 

Efforts to establish a merit-based government workforce, insulated from 

coercive political activity, date back nearly to the founding of the nation. For 

example, in 1801 President Thomas Jefferson issued an executive order to the 

heads of federal departments stating that while it was the right of an officer to vote 

at elections, “it is expected that he will not attempt to influence the votes of others 

nor take part in the business of electioneering, that being deemed inconsistent with 

the spirit of the Constitution and his duties to it.” (JA 135 ¶ 15.) See generally

 

2

 Amendments to the Hatch Act of 1939, 1940 Ed., § 61m-l (July 19, 1940, c. 

640, § 5, 54 Stat. 772), codified at 18 U.S.C. § 611 (originally 18 U.S.C. § 61m-l). 

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U.S. Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO (“Letter 

Carriers”), 413 U.S. 548, 557-63 (1973) (discussing early background of Hatch 

Act). 

Following the Civil War, a civil service reform movement further sought to 

substitute merit for party allegiance in government hiring. (JA 135-36 ¶¶ 16, 17.) 

These efforts culminated in the Civil Service Act of 1883, which banned coercing 

public servants to make political contributions. (JA 136 ¶ 18; see also JA 136-37 

¶¶ 19-20.) In 1925, Congress passed the Federal Corrupt Practices Act, c. 368, § 

312, 43 Stat. 1053, 1073 (formerly codified at 18 U.S.C. § 208; now 18 U.S.C. § 

602), prohibiting any promise of employment in return for political support or 

opposition. (JA 137 ¶ 21.) Members of Congress, federal employees, and officers 

whose salaries came from the United States Treasury were prohibited from 

soliciting or receiving contributions from each other. (Id.) 

Despite such early reform efforts, most federal agencies continued to hire 

staff through political patronage. (JA 137-38 ¶ 22.) To further curb the spoils 

system, Senator Carl Hatch in 1939 introduced a bill — titled “An Act to Prevent 

Pernicious Political Activities” but commonly known as the Hatch Act — which 

extended earlier restrictions to the entire federal service. (JA 138 ¶ 23.) In 

particular, Congress sought to eliminate the political use of participants in federal 

work relief programs, such as the exploitation that occurred in the 1936 and 1938 

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elections. (JA 138-39 ¶ 24.) These abuses included requiring “destitute women on 

sewing projects ... to disgorge” part of their wages as political tribute or be fired, 

and requiring WPA workers to make political contributions by depositing $3-$5 

from their $30 monthly pay under the Democratic donkey paperweight on the 

supervisor’s desk. (Id.) Of particular prominence in congressional debates 

regarding the Hatch Act was the Democratic “campaign-book racket,” in which a 

government contractor was required to buy campaign books — “the number 

varying in proportion to the amount of Government business he had enjoyed” — at 

exorbitant prices in order to assure future opportunities for government business. 

(JA 140-41 ¶¶ 28, 29.) The scheme also coerced government contractors to buy 

advertising space: “[I]t was either take the space or be blacklisted.” (JA 141 ¶ 29.) 

An integral part of Congress’s efforts to create a merit-based workforce 

through the Hatch Act of 1939 and its 1940 amendments was regulation of federal 

contractors. (JA 139-40 ¶¶ 25-27.) Federal contractors were viewed as similar to 

federal employees in that both benefited from government employment; both, 

some argued, should be prohibited from making contributions. (JA 141-42 ¶ 30.) 

Senator Brown observed that “the Government clerk, if he is not under the civil 

service, is interested in keeping in power the party that is in power and that gave 

him a job, .... I can apply the same principle to the tariff ... to quotas ... to loans ... 

to contractors who are doing business with the government of the United States.” 

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(Id. (emphasis added).) Responding to detractors, Senator Brown further 

explained: “The requirement of the amendment is that if a man’s profits depend 

upon Government tariffs, if he desires to continue a contract he has with the 

Government or to borrow from it, he may not, by pernicious political activity, 

attempt to influence the Government.” (Id. (emphasis added).)3

 

Congress ultimately passed an amendment barring “any person or firm 

entering into a contract with the United States ... or performing any work or 

services for the United States ... if payment is to be made in whole or part from 

funds appropriated by Congress ... to make such contribution to a political party, 

committee or candidate for public office or to any person for any political purpose 

or use.” (Id.) That provision was the predecessor of 2 U.S.C. § 441c. 

B. Recent Changes in Government Contracting and 

Anti-Corruption Measures 

Congress amended the Hatch Act in 1966 and extensively revised it in 1993. 

(JA 142-43 ¶¶ 31-32.) Following the 1993 amendments, which relaxed certain 

restrictions, most federal employees are permitted to make contributions but 

remain subject to other limits on their political activity. See 5 U.S.C. § 7323 (see

Addendum); JA 142-43, 181 ¶¶ 31-33, 142. However, Congress did not amend the 

 

3

 Similarly, during House debates of the 1939 statute, Congressman 

Ramspeck emphasized the grave threat to the nation posed by “political corruption, 

based upon traffic in jobs and in contracts, by political parties and factions in 

power.” (JA 139-40 ¶ 27 (emphasis added).) 

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10 

contractor contribution ban in the 1993 Hatch Act amendments or in the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (2002), 

which extensively amended FECA. (JA 143-44 ¶¶ 34-35.) 

To help minimize political influence in federal contracting, the awarding of 

contracts is generally handled by contracting officers trained to act independently. 

(JA 146-47 ¶ 43.) However, the contracting process is not uniform across all 

federal agencies and types of contracts, the typical procedures have many 

exceptions, and not every contracting decision is equally insulated from political 

pressure. (JA 147 ¶¶ 44-46 (testimony of contractors’ witness Steven Schooner).) 

For example, many personal service contracts “are not covered by the Federal 

Acquisition Regulation[;] [i]n other words, they would not be subject to full and 

open competition and the full range of rights and responsibilities that follow that,” 

and so “the award and performance of those types of contracts is not being 

evaluated by a contracting officer.” (JA 148 ¶ 49 (testimony of Steven Schooner).) 

In general, personal services contracts are prohibited unless there is specific 

statutory authority for them, but as Professor Schooner noted, “many of the 

personal services prohibitions today are dead letter[;] [t]here is no effort to enforce 

the personal services prohibition and most agency officials acknowledge that 

agencies frequently play fast and loose with the distinction.” (JA 147-48 ¶ 47.) 

“In the last 20 years the growth of personal services contracts explicitly and 

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11 

implicitly has been one of the most dramatic changes in how the government 

operates today.” (JA 148 ¶ 48.) 

In addition, the full competitive procedures may be bypassed for a wide 

variety of other types of contracts, including contracts for expert witnesses and 

alternative dispute resolution mediators, and contracts like appellant Wagner’s. 

(JA 147, 148-49 ¶¶ 46, 50.) For contracts less than $150,000, “there are 

streamlined competitions, where the government can call two or three people on 

the phone and operate in a very informal manner.” (JA 148-49 ¶ 50.) 

Concern about federal government contracting has intensified as the use of 

contractors and the privatization of the federal workforce has expanded in the last 

two decades. (JA 144 ¶ 36.) In March 2009, President Obama issued an Executive 

Order directing the Office of Management and Budget to develop guidance on the 

use of government contracts. The Executive Order stated that the line between 

inherently governmental functions performed by government employees and 

private contractors’ functions had been “blurred,” that the amount spent on 

government contracts had grown to $500 billion annually by 2008, and that 

agencies had placed “excessive reliance” on contracts. (JA 144-45 ¶ 38.) Also, 

Congress has held hearings on the balance between government employees and 

contractors in the federal workplace. (JA 145 ¶ 39.) During hearings in 2010, one 

Senator expressed frustration that the Oversight Committee could not even 

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12 

determine the size of the federal contractor workforce because the use of federal 

contractors had become so ubiquitous and complex. (JA 145-46 ¶ 40.) 

C. The Continuing Potential for Corruption and Its Appearance in 

Government Contracting 

Although the prohibition on federal contractor contributions has been in 

place for more than 70 years, recent experience from individual states illustrates 

the continuing risk of political influence from contractor contributions. In 

addition, the potential influence of federal officeholders and political appointees 

over government contracts, as well as numerous reports of legal and ethical 

violations by federal employees in awarding contracts, show an ongoing potential 

for corruption. 

Many states and municipalities have passed statutes limiting or banning 

contractor contributions, and many have done so in the wake of pay-to-play 

scandals. (JA 149-63 ¶¶ 52, 57-90 (outlining scandals from New Mexico, Hawaii, 

District of Columbia, New York, Illinois, New Jersey, Connecticut, Ohio, and 

California).) For example, a state senator from Ohio, commenting in 2005 on a 

scheme to use campaign contributions to obtain the right to invest government 

funds, reportedly said: “It is one thing to have pay-to-play. I think they are at a 

point that they don’t even know it’s wrong anymore.” (JA 150 ¶ 55.) And one 

government contractor for Wayne County, Michigan, stated: “‘You wonder what 

in the heck would happen if I didn’t give.’” (JA 150 ¶ 54.) Even relatively small 

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13 

contributions can fuel corruption. For example, in 2004, the Executive Director of 

the Ohio School Facilities Commission was charged with state ethics violations for 

awarding millions of dollars in contracts after accepting $1,289 from six 

companies seeking those contracts. (JA 149-50 ¶ 53.) 

One highly publicized recent scandal involved Governor Rod Blagojevich of 

Illinois. Blagojevich had reportedly received 235 checks for $25,000 each between 

2000 and 2008, and about 75% of such contributions “came from companies or 

interest groups who got something — from lucrative state contracts to coveted 

appointments to favorable policy and regulatory actions.” (JA 159 ¶ 78.) 

Blagojevich explained that “it was easier for governors to solicit campaign 

contributions because of their ability to award contracts and give legal work, 

consulting work, and investment banking work to campaign contributors.” (Id.) 

Similarly, Connecticut passed a contractor contribution ban in 2005 in the 

wake of a major pay-to-play scandal involving Governor John Rowland’s directing 

$76,000 from a state contractor to his reelection campaigns and Republican 

organizations in return for influencing the award of more than $100 million in state 

contracts. See Green Party of Conn. v. Garfield, 616 F.3d 213, 219 (2d Cir. 2010), 

cert. denied, 131 S. Ct. 3090 (2011); JA 160-61 ¶¶ 83-84. A Connecticut public 

opinion poll showed that 76% of voters believed that the campaign contributions 

influenced the Governor’s awarding of government contracts. (JA 161 ¶ 85.) 

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Although New York City had restricted since 1988 campaign contributions 

from those doing business with the City, in 2007 voters approved a referendum 

with further restrictions after pay-to-play scandals. (JA 156-58 ¶¶ 73-76.) A City 

Council report stated that the new law aimed to “eradicate this perception” that 

contributors doing business with the City “have a higher level of access to the 

City’s elected officials” and to “reduce the appearance of undue influence 

associated with the contributions from individuals doing business with the City.” 

(JA 157 ¶ 74.) In upholding the law, the Second Circuit found that “there is direct 

evidence of a public perception of corruption.” Ognibene v. Parkes, 671 F.3d 174, 

189-90 & n.15 (2d Cir. 2012), cert. denied, 133 S. Ct. 28 (2012); JA 157 ¶ 75. 

Despite statutes and rules designed to protect the integrity of federal 

contracting, federal officeholders and political appointees have influenced the 

selection of corporate and individual federal contractors, sometimes in exchange 

for payments or other financial favors. (JA 167, 171-76 ¶¶ 100-03, 115-24.)4

 As 

part of the Abscam government sting, for example, Senator Harrison Williams of 

New Jersey was convicted in 1981 of bribery for offering to use his influence to 

obtain government contracts for operatives posing as Arab sheiks in return for 

financing for a titanium mine in which Williams held an interest. (JA 171-73 

 

4

 Numerous political appointees may be able to influence federal contracting; 

the 2008 edition of the Government Printing Office’s “Plum Book” listed about 

8,000 political positions in the executive and legislative branches. (JA 166 ¶ 99.) 

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15 

¶¶ 116-18.) In 2005, Representative Randy Cunningham pled guilty to taking 

bribes from contractors, including a defense contractor who bought Cunningham’s 

house for an inflated price in exchange for Cunningham’s pressing the Pentagon to 

award contracts to the defense contractor. (JA 175 ¶ 123.) In 2006, Representative 

Robert Ney of Ohio pled guilty to various criminal charges related to lobbyist Jack 

Abramoff’s activities on Capitol Hill. Ney had used his influence to ensure the 

award of a multimillion-dollar contract in 2002 to Abramoff client Foxcom 

Wireless to install part of a wireless system in the House of Representatives. 

(JA 171 ¶ 115.) In exchange, Foxcom had reportedly donated $50,000 to one of 

Abramoff’s charities. Another bidder reportedly complained to Ney about the 

“highly politicized selection process.” (Id.) 

Criminal and ethical violations persist in federal contracting. In The 

Encyclopedia of Ethical Failure, a training handbook developed by the Department 

of Defense, examples include the Sergeant-at-Arms of the United States Senate, 

the body’s chief purchasing agent, recommending the purchase of an AT&T 

telephone system for the Capitol Police in exchange for a round-trip ticket to 

Hawaii, and a Department of the Treasury employee’s funneling of training 

contracts valued at more than $139,000 to companies owned by her husband. (JA 

167-69 ¶¶ 105, 107, 109.) The record in this case contains numerous additional 

examples of actual and apparent corruption in the government contracting process. 

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(JA 167-70, ¶¶ 104-14.) 

III. PROCEEDINGS IN THE DISTRICT COURT 

On January 31, 2012, the contractors filed an Amended Complaint alleging 

that the ban on federal contractor contributions at 2 U.S.C. § 441c violated the First 

Amendment and the equal protection guarantee of the Fifth Amendment as applied 

to individual contractors. (JA 8-17.) Soon thereafter, the contractors filed a 

motion for a preliminary injunction, which the district court denied on April 16, 

2012. Wagner v. FEC (“Wagner I”), 854 F. Supp. 2d 83 (D.D.C. 2012); JA 24-49. 

After limited discovery, the parties filed cross-motions for summary judgment. 

The court granted summary judgment to the Commission on November 2, 2012. 

Wagner v. FEC (“Wagner II”), No. Civ. 11-1841, 2012 WL 5378224 (D.D.C. Nov. 

2, 2012); JA 224-42. 

The district court first noted that contribution bans like 2 U.S.C. § 441c 

satisfy the First Amendment if they are “closely drawn to match a sufficiently 

important interest.” (JA 228.) The court held that the government’s interest in 

avoiding corruption and its appearance is sufficiently important to sustain the ban 

on contractor contributions, including contributions to parties and other groups 

permitted to coordinate expenditures with candidates. (JA 229-32.) 

The district court also concluded that the contractor contribution ban is 

closely drawn to serve the government’s anticorruption interest. (JA 232-40.) The 

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17 

court noted that the statute was passed in 1940 in response to corruption scandals 

involving contractors. (JA 232-33.) Thus, the court noted, there had been no 

recent experience of legal contractor contributions at the federal level; however, 

the court concluded that the recent experiences of the states “substantiate the 

corruption worries that attend contributions by government contractors,” citing 

scandals from Connecticut, New York, and Illinois. (JA 233-34.) The court 

explained that “Congress need not roll back its longstanding ban and wait for a 

scandal to arise in order to provide evidence that § 441c prevents corruption: 

‘There is no reason to require the legislature to experience the very problem it fears 

before taking appropriate prophylactic measures.’” (JA 234-35 (quoting Ognibene, 

671 F.3d at 188).) 

The district court also rejected the contractors’ over-inclusiveness 

arguments, acknowledging the claim that other rules also guard against corruption 

but observing that Congress has “the flexibility to attack corruption from multiple 

flanks,” citing Buckley, 424 U.S. at 23-38. (JA 235-36). The court also stated that 

the contractors had raised hypothetical scenarios in which corruption was unlikely, 

but “Section 441c need not be a perfect fit [] or even narrowly tailored ... [to be] 

‘closely drawn’ to the anticorruption interests it furthers.” (JA 236). And the court 

rejected the contractors’ claim that section 441c is underinclusive because it does 

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not cover others who receive government funds or benefits, explaining that 

“Congress need not solve every problem at once.” (JA 238.) 

Turning to the contractors’ claim that section 441c violates the Equal 

Protection Clause, the court applied the same intermediate scrutiny it had applied 

to the First Amendment claims and upheld the statute. (JA 239-42.) The court 

noted that the contractors had conceded that they knew of no case in which an 

equal protection challenge to contribution limits had succeeded where a First 

Amendment claim had not. (Id.) The court rejected the claim that individual 

contractors are treated worse than corporate contractors because corporate PACs, 

officers, employees, and shareholders may make legal contributions; the court 

explained that “individual contractors are not similarly situated under the law to 

corporate contractors’ PACs or their officials” because they have distinct legal 

identities. (JA 241.) The court also rejected the contractors’ claim that individual 

contractors are treated worse than federal employees and concluded that the 

restrictions on contractors “are different from those on federal employees, but not 

necessarily more severe.” (JA 242 (quoting Wagner I, 854 Supp. 2d at 98).) And 

the “dissimilar roles of contractors and employees [] justify the distinct regulatory 

schemes that the Government has fashioned.” (Id.)

5

 

 

5

 The FEC’s Statement of Material Facts (JA 128-83) includes many 

legislative facts, and the contractors filed a motion to strike paragraphs 14-151 of 

those facts (JA 222). The district court directed that the disputed facts be regarded 

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SUMMARY OF ARGUMENT 

 For more than 70 years, the prohibition on campaign contributions by 

federal contractors has deterred corruption and its appearance, as well as limited 

patronage and coercive political activity that had previously tainted federal 

contracting. Congress’s efforts to protect its work force from political influence 

and pressure through the Hatch Act of 1939 and other statutes have greatly reduced 

the practice and perception of pay-to-play in the federal system. 

 The contractors in this case, who have chosen to reap the benefits of 

contracting with the federal government, now seek to topple one of the longstanding pillars supporting this important regulatory structure. They argue that the 

contractor contribution ban at 2 U.S.C. § 441c violates both the First Amendment 

and the equal protection guarantee of the Fifth Amendment as applied to 

 

as a “supplement” to the FEC’s summary judgment brief. (Id.) In any event, the 

court may take judicial notice of these legislative facts, which are “general facts 

which help the tribunal decide questions of law and policy.” Friends of the Earth 

v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992) (internal quotation marks and citation 

omitted); accord Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1161-62 

(D.C. Cir. 1979). The Supreme Court has relied on legislative facts based on 

materials such as academic studies, news articles, and polling data. See, e.g., FEC 

v. Wis. Right to Life, Inc., 551 U.S. 449, 470 n.6 (2007) (relying on a national 

survey for the legislative fact that most citizens could name their congressional 

candidates); McConnell v. FEC, 540 U.S. 93, 129-32, 145-52 (2003) (relying 

extensively on legislative facts detailing how national party committees solicit 

“soft-money” donations); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002). 

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contractors who are individuals. But as the district court held, section 441c is 

constitutional. 

The federal contractor contribution ban satisfies the First Amendment 

because it is closely drawn to serve the important government interests in reducing 

political coercion of federal contractors and combating corruption and its 

appearance. Recent pay-to-play scandals in various states confirm the continuing 

risks of contractor corruption. And although there have been a limited number of 

similar recent scandals involving campaign contributions at the federal level — 

with the contribution ban in place — the potential influence of federal 

officeholders and political appointees on contracts, as well as ongoing ethical 

failures in federal contracting, show that the danger of corruption persists. 

 The contractor contribution ban also satisfies the guarantee of equal 

protection because it is a rational measure that involves no fundamental right or 

suspect class. The contractors complain that they are treated worse than corporate 

contractors (and persons associated with such corporations) and federal employees. 

But corporate contractors are subject to the same ban that individual contractors 

are, and the individual contractors here are not situated similarly to the other 

persons they name. The different roles and features of those who deal with the 

federal government justify the regulatory structure that Congress has crafted in a 

quintessential exercise of legislative line-drawing. 

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The Court should affirm the district court’s grant of summary judgment to 

the FEC. 

ARGUMENT 

I. STANDARD OF REVIEW 

 “This Court reviews the district court’s grant of summary judgment de 

novo.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 774 (D.C. Cir. 

2002). The district court’s findings of fact, however, “may not be set aside unless 

clearly erroneous,” even if they are “based on documentary evidence or inferences 

from other facts.” Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740, 743 (D.C. Cir. 

2000). Summary judgment is appropriate where “there is no genuine issue as to 

any material fact and ... the movant is entitled to judgment as a matter of law.” 

Tate v. District of Columbia, 627 F.3d 904, 908 (D.C. Cir. 2010), cert. denied, 131 

S. Ct. 2886 (2011) (citations and internal quotation marks omitted). 

II. SECTION 441c SATISFIES THE FIRST AMENDMENT BECAUSE 

IT IS CLOSELY DRAWN TO SERVE IMPORTANT GOVERNMENT 

INTERESTS 

The contractor contribution ban at 2 U.S.C. § 441c survives First 

Amendment scrutiny because it is a temporary restriction that is closely drawn to 

serve important government interests while leaving contractors ample alternative 

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22 

means to engage in political activity.6 The ban helps prevent “corruption and the 

appearance of corruption spawned by the real or imagined coercive influence of 

large financial contributions on candidates’ positions and on their actions if elected 

to office.” Buckley, 424 U.S. at 25. The statute also helps ensure that federal 

contractors are not coerced into political participation and that government 

contracts are awarded based on merit and carried out free of political bias. 

A. Section 441c Is a Contribution Limit That Must Be Upheld If It Is 

Closely Drawn to Match a Sufficiently Important Interest 

Laws that limit campaign contributions, like section 441c, are reviewed 

under a more deferential standard than laws that restrict campaign-related 

expenditures. See, e.g., Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 

908-09 (2010) (discussing the two different standards of review); Buckley, 424 

U.S. at 23 (same). The Supreme Court has explicitly rejected the contractors’ view 

 

6

 The contractors urge this Court to consider their equal protection claim first, 

thereby potentially allowing the Court to avoid the First Amendment claim. (Brief 

for Plaintiffs-Appellants (“App. Br.”) at 23-24.) The contractors argue that 

striking down section 441c on equal protection grounds would be “narrower” than 

striking it down for violating the First Amendment. To the contrary, because the 

Supreme Court has long analyzed campaign finance restrictions primarily through 

the lens of the First Amendment, the contractors’ equal protection analysis is in 

tension with longstanding jurisprudence and, if successful, could have far-reaching 

consequences. (See infra p. 53.) We therefore address the First Amendment 

question first, as the district court did; indeed, a decision on that claim may largely 

resolve the equal protection claim. See DLS, Inc. v. City of Chattanooga, 107 F.3d 

403, 411 n.7 (6th Cir. 1997) (“In cases such as this [challenging a law regulating 

adult establishments], the Equal Protection Clause adds nothing to the First 

Amendment analysis ....”) (citations omitted). 

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23 

that “strict scrutiny” is applicable here. (See Brief for Plaintiffs-Appellants (“App. 

Br.”) at 38-40.) To the contrary, laws limiting campaign contributions receive a 

“relatively complaisant review under the First Amendment.” FEC v. Beaumont, 

539 U.S. 146, 161 (2003). The Court applies this more lenient standard because 

giving money to a political committee “lie[s] closer to the edges than to the core of 

political expression,” in contrast to laws limiting campaign expenditures, which 

“impose significantly more severe restrictions on protected freedoms of political 

expression and association... .” Buckley, 424 U.S. at 23. 

Thus, a contribution limit or ban “passes muster if it satisfies the lesser 

demand of being closely drawn to match a sufficiently important interest,” and it 

need not satisfy the “narrowly tailored” requirement of strict scrutiny. Id. at 162 

(quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88 (2000)) 

(internal quotation marks omitted); McConnell, 540 U.S. at 138 n.40 (applying 

“closely drawn” standard to contribution limit). The Supreme Court has expressly 

held that this lower standard applies not only to contribution limits, but also to 

complete bans on contributions: 

[The would-be contributor] argues that application of the ban on its 

contributions should be subject to a strict level of scrutiny, on the 

ground that § 441b does not merely limit contributions, but bans 

them on the basis of their source.... [I]nstead of requiring 

contribution regulations to be narrowly tailored to serve a 

compelling governmental interest, a contribution limit involving 

significant interference with associational rights passes muster if it 

satisfies the lesser demand of being closely drawn to match a 

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24 

sufficiently important interest.... It is not that the difference 

between a ban and a limit is to be ignored; it is just that the time to 

consider it is when applying scrutiny at the level selected, not in 

selecting the standard of review itself. 

Beaumont, 539 U.S. 161-62 (internal quotation marks and citations omitted; 

emphasis added) (reviewing 2 U.S.C. § 441b, which bans contributions by 

corporations and unions); see also Preston v. Leake, 660 F.3d 726, 735 (4th Cir. 

2011) (applying “closely drawn” standard to review state ban on lobbyist 

contributions). 

 The contractors concede that their position that strict scrutiny applies is 

contrary to Beaumont (App. Br. 39), but they argue that Citizens United “casts 

doubt on the continued viability of Beaumont... .” (Id.) However, only the 

Supreme Court can overturn its own decisions, Agostini v. Felton, 521 U.S. 203, 

237 (1997), and nothing in Citizens United suggests that Beaumont’s scrutiny of 

contribution limits has been overturned. Indeed, the Fourth Circuit recently 

rejected a similar argument that Citizens United had implicitly overruled 

Beaumont’s analysis of contribution limits. United States v. Danielczyk, 683 F.3d 

611, 618-19 (4th Cir. 2012), petition for cert. filed, 2012 WL 5451444 (U.S. Nov. 

8, 2012); see also Green Party, 616 F.3d at 199 (“Beaumont ... remain[s] good 

law. Indeed, in the recent Citizens United case, the Court ... explicitly declined to 

reconsider its precedents involving campaign contributions by corporations to 

candidates for elected office.”). 

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B. The Government Has Important Interests Not Only in Preventing 

Corruption and Its Appearance But Also in Promoting a MeritBased Federal Workforce 

The Supreme Court has long upheld contribution limits against First 

Amendment challenges as permissible measures to prevent corruption and the 

appearance of corruption in our system of democratic governance. See, e.g., 

Buckley, 424 U.S. at 23-28; Shrink Missouri, 528 U.S at 387-88; Beaumont, 539 

U.S. at 162. Section 441c not only furthers these goals but also promotes a meritbased workforce and helps prevent government contractors from being coerced to 

engage in political activity against their principles. Regarding these latter interests, 

the government’s authority to manage those it hires as employees or contractors 

exceeds its authority to manage ordinary citizens. See Connick v. Myers, 461 U.S. 

138, 151 (1983); Waters v. Churchill, 511 U.S. 661, 668 (1994) (quoting Connick, 

461 U.S. at 142, and Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,Will 

Cnty., Ill., 391 U.S. 563, 568 (1968) (“[a government] employee’s interest in 

expressing herself ... must not be outweighed by any injury the speech could cause 

to ‘the interest of the State, as an employer, in promoting the efficiency of the 

public services it performs....’”)). In conducting this careful balancing of interests, 

the Supreme Court has “consistently given greater deference to government 

predictions of harm used to justify restriction of employee speech than to 

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26 

predictions of harm used to justify restrictions on the speech of the public at large.” 

Waters, 511 U.S. at 673. 

Because government contractors are similar to government employees in 

many (but not all) respects, the Court has extended this deference to review of 

speech restrictions on government contractors. See Bd. of Cnty. Comm’rs, 

Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 684-85 (1996) (applying 

deferential review of municipal action against trash hauling contractor because 

“[i]ndependent government contractors are similar in most relevant respects to 

government employees.... [T]he same form of balancing analysis should apply to 

each.”). 

Consistent with these principles, the Supreme Court in Letter Carriers 

rejected a First Amendment challenge to the Hatch Act’s prohibition on “active 

participation in political management or political campaigns” by federal employees 

in the executive branch. 413 U.S. at 551. At that time, those employees were 

prohibited from, among other things: “[o]rganizing or reorganizing a political 

party organization or political club”; “soliciting ... contributions, or other funds for 

a partisan political purpose”; “[e]ndorsing or opposing a partisan candidate for 

public office or political party office in a political advertisement”; “[a]ddressing a 

convention, caucus, rally, or similar gathering of a political party in support of or 

in opposition to a partisan candidate for public office or political party office”; and 

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“[i]nitiating or circulating a partisan nominating petition.” Id. at 576 n.21 (quoting 

5 C.F.R. § 733.122). 

The Court upheld the law based on several “obviously important interests.” 

413 U.S. at 564. The Court found that the Hatch Act’s restrictions combated 

corruption and bias, noting that employees should act “without bias or favoritism 

for or against any political party or group or the members thereof” and that “the 

rapidly expanding Government work force should not be employed to build a 

powerful, invincible, and perhaps corrupt political machine.” Id. at 565. The 

Court determined that the statute also served the related but distinct interest of 

avoiding even the appearance of corruption and bias, because federal employees 

must “appear to the public to be avoiding [practicing political justice], if 

confidence in the system of representative Government is not to be eroded to a 

disastrous extent.” Id. And a third interest “as important as any other” was 

ensuring that civil service jobs were obtained and kept based on merit, not politics. 

Id. at 566. The Court explained that the restrictions were necessary to “make sure 

that Government employees would be free from pressure and from express or tacit 

invitation to vote in a certain way or perform political chores in order to curry 

favor with their superiors rather than to act out their own beliefs,” adding that 

“federal service should depend upon meritorious performance rather than political 

service, and that the political influence of federal employees on others and on the 

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electoral process should be limited.” Id. at 566, 557. The Court found it 

significant that, although certain political expression was restricted, the employee 

“retains the right to vote as he chooses and to express his opinion on political 

subjects and candidates.” Id. at 575-76. 

The contractor contribution ban in section 441c serves the same “sufficiently 

important interests” that the Court identified in Letter Carriers — helping to assure 

that contractors are not pressured to make campaign contributions to obtain or keep 

their government contracts — and section 441c similarly allows for alternative 

means of political expression. (See infra pp. 39-41). In fact, the restrictions on 

federal employees’ political expression at the time of Letter Carriers were 

arguably more burdensome than those that section 441c now places on contractors. 

Thus, Letter Carriers demonstrates that the contractors are wrong to assert that 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.” (App. Br. 41 

(citation omitted).)7

 Although the district court in this case cited Letter Carriers

 

7

 Indeed, the Supreme Court recently affirmed a holding that protecting the 

integrity of the federal government from improper outside influence is an adequate 

basis, by itself, to justify a complete ban on contributions by certain individuals. 

See Bluman v. FEC, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (three-judge court) 

(upholding ban on foreign national contributions and expenditures in 2 U.S.C. 

§ 441e), aff’d, 132 S. Ct. 1087 (2012). 

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29 

repeatedly in its two opinions (JA 30, 229, 239, 242), the contractors here make no 

attempt to distinguish it.8

C. Section 441c Is Closely Drawn to Match Important Interests 

Because It Addresses Continuing Threats of Corruption, Allows 

Ample Alternatives for Political Expression, and Applies Only 

Temporarily to Those Who Choose to Benefit from Government 

Contracts 

Section 441c is a viewpoint-neutral financing restriction that bars 

contributions by those who choose to enter into federal contracts, while leaving 

many alternative means of political expression. When examining contribution 

limits, the Supreme Court has been willing to assume that most contributors do not 

seek improper influence, but has nevertheless generally upheld such limits, both 

because it is “difficult to isolate suspect contributions” and because “Congress was 

justified in concluding that the interest in safeguarding against the appearance of 

impropriety requires that the opportunity for abuse ... be eliminated.” Buckley, 

424 U.S. at 29-30; see also United Public Workers of Am. v. Mitchell, 330 U.S. 75, 

101 (1947) (upholding Hatch Act restrictions on political activity by a plaintiff 

whose job was unlikely to cause corruption due to the “cumulative effect on 

 

8

 The contractors also suggest that this Court should not even consider the 

merit-based workforce rationale for section 441c because “the District Court did 

not rely on it.” (App. Br. 41 n.5.) But the district court did not reject this interest; 

rather, it stated that it need not consider it because other governmental interests 

sufficed to sustain the law. (JA 229-30.) In any event, the Commission can defend 

its victory on any ground it raised below, even if not decided by the district court. 

Nat’l Fed’n of Fed. Employees v. Greenberg, 983 F.2d 286, 289 (D.C. Cir. 1993). 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 41 of 81
30 

employee morale of political activity by all employees who could be induced to 

participate actively.”). 

Moreover, because federal contractors have been barred from making 

contributions for more than 70 years, there exists no direct evidence of the kind of 

corruption that would have occurred in the absence of section 441c. “Since there is 

no recent experience with [contractor contributions], the question is whether 

experience under the present law confirms a serious threat of abuse. ... It clearly 

does.” FEC v. Colo. Republican Fed. Campaign Comm. (“Colorado 

Republican”), 533 U.S. 431, 457 (2001) (upholding restrictions on political 

parties’ coordinated spending, which had been limited for many years) (citing 

Burson v. Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) (noting 

difficulty of mustering evidence to support long-enforced statutes)); see also 

Citizens United, 130 S. Ct. at 908 (contribution limits are preventative because the 

scope of quid pro quo corruption “‘can never be reliably ascertained’” (quoting 

Buckley, 424 U.S. at 27)). The contractors in this case concede as much. (App. Br. 

45 (“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.”).) 

Nevertheless, the corruption associated with federal contracting before the 

contractor contribution ban, the recent experience of states and municipalities with 

pay-to-play scandals, and the continuing vulnerability of the federal contracting 

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31 

process to corrupting influences clearly show the critical problems that section 

441c continues to address. Because the ban restricts contractors only while they 

are negotiating or performing a contract, and even then permits contractors to 

engage in a wide range of other political activity, it is closely drawn to match those 

important interests. 

1. The Threats of Corruption and the Politicization of 

Federal Contracting Persist Today 

The danger that politics can infect the federal contracting process remains 

real and immediate, even if elected officeholders do not formally approve most 

government contracts. The contractors’ primary First Amendment argument is that 

the threats that section 441c is intended to address are now “attenuated,” based on 

“speculation,” or sufficiently addressed by other laws (App. Br. 40-46); however, 

the contractors concede “it is possible that, despite the laws and procedures that 

take politics out of contracting, some individuals may break the rules” (App. 

Br. 43). 

In fact, there is ample evidence that officeholders intervene in federal 

contracting and that the process remains susceptible to corruption. (See JA 171-76 

¶¶ 115-24; JA 236 (rejecting the suggestion that “the People’s elected [federal] 

representatives are impotent in the contracting process”).) Experience in the states 

also shows that corruption, the appearance of corruption, and the coercion of 

contractors remain genuine dangers. See JA 149-66 ¶¶ 51-97; Shrink Missouri, 

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32 

528 U.S. at 395 (upholding Missouri’s reliance on other jurisdictions’ experience 

for evidence of corruption to justify contribution limits). As the district court 

found, recent state pay-to-play scandals, along with the pre-Hatch Act Democratic 

campaign-book racket, are sufficient to show that “corruption worries” persist. 

(JA 232-34.) 

Recent federal appellate decisions upholding state laws that limit contractor 

contributions have relied on the government’s continuing interest in combating 

corruption and its appearance. In Green Party, 616 F.3d at 189, the Second Circuit 

upheld a ban on campaign contributions by Connecticut government contractors. 

The court found that the law was “designed to combat both actual corruption and 

the appearance of corruption caused by contractor contributions” in response to a 

series of scandals in which “contractors illegally offered bribes, ‘kick-backs,’ and 

campaign contributions to state officials in exchange for contracts with the state.” 

Id. at 200. Noting that the Supreme Court had repeatedly recognized that “laws 

limiting campaign contributions can be justified by the government’s interest in 

addressing both the ‘actuality’ and the ‘appearance’ of corruption,” id. (citing 

Buckley, 424 U.S. at 26, and McConnell, 540 U.S. at 143), the Second Circuit 

concluded that the state’s ban on contractor contributions “furthers ‘sufficiently 

important’ government interests,” id. (quoting Beaumont, 539 U.S. at 162). 

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33 

Similarly, in Preston, 660 F.3d at 726, the Fourth Circuit upheld a North 

Carolina law prohibiting contributions from registered lobbyists, who, like 

contractors, have direct economic interests in their dealings with the government. 

The court pointed to the “rational judgment” that the law was needed “as a 

prophylactic to prevent not only actual corruption but also the appearance of 

corruption in future state political campaigns.” Id. at 736. The court explained 

that “‘[c]ourts simply are not in the position to second-guess’ [legislative 

judgments] especially ‘where corruption is the evil feared.’” Id. (quoting N.C. 

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 716 (4th Cir. 1999), and FEC v. Nat’l 

Right to Work Comm., 459 U.S. 197, 210 (1982)). 

Likewise, in Ognibene, the Second Circuit addressed a law, passed in the 

wake of a series of scandals, that imposed more restrictive limits on political 

contributions from individuals who were “doing business” with New York City. 

671 F.3d at 179. The court reiterated that “eliminating corruption or the 

appearance thereof is a sufficiently important governmental interest to justify the 

use of closely drawn restrictions on campaign contributions.” Id. at 186. 

The governmental interest in addressing the appearance of corruption is also 

essential, separate and apart from the interest in combating actual corruption. 

Shrink Missouri, 528 U.S. at 390 (“Leave the perception of impropriety 

unanswered, and the cynical assumption that large donors call the tune could 

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34 

jeopardize the willingness of voters to take part in democratic governance.”); 

Buckley, 424 U.S. at 30. Most Americans lack familiarity with the complexities of 

federal contracting, and they could easily view any contributions by contractors 

with suspicion. It is Congress’s role to decide how best to prevent corruption and 

its appearance, even when the risk is relatively small. See Buckley, 424 U.S. at 53 

n.59 (upholding limit on contributions to candidates from family members because 

“[a]lthough the risk of improper influence is somewhat diminished in the case of 

large contributions from immediate family members, we cannot say that the danger 

is sufficiently reduced to bar Congress from subjecting family members to the 

same limitations as nonfamily contributors.”). 

Similarly, the decision in Green Party explained that a statute banning 

contractor contributions — even small ones — could be upheld as an effort to 

combat the appearance of corruption even if the law could not be justified as a 

direct anti-corruption measure: 

Even if small contractor contributions would have been unlikely to 

influence state officials, those contributions could have still given 

rise to the appearance that contractors are able to exert improper 

influence on state officials.... [The statute’s] ban on contractor 

contributions ... unequivocally addresses the perception of 

corruption brought about by Connecticut’s recent scandals. By 

totally shutting off the flow of money from contractors to state 

officials, it eliminates any notion that contractors can influence 

state officials by donating to their campaigns. 

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35 

Green Party, 616 F.3d at 205. As the district court here recognized, the 

contractor’s role is “‘especially susceptible to public suspicion of corruption. Any 

payment made by’ a contractor ‘to a public official, whether a campaign 

contribution or simply a gift, calls into question the propriety of the relationship.’” 

(JA 234 (quoting Preston, 660 F.3d at 737 (emphasis in Preston)).) 

The contractors assert that these cases “are readily distinguishable because 

the connection between the contract award and the contribution was much closer 

than it is in the federal system.” (App. Br. 45.) But even contributions made to 

officeholders without a direct role in the contracting process can breed corruption 

and its appearance. Federal elected officials are not prohibited by law from 

suggesting or recommending contractors to an agency, and some do. See Morton 

Rosenberg and Jack Maskell, Congressional Intervention in the Administrative 

Process: Legal and Ethical Considerations, Congressional Research Service, Sept. 

25, 2003, http://www.fas.org/sgp/crs/misc/RL32113.pdf, at 80. Recent scandals 

involving figures including Jack Abramoff, Randy Cunningham, and others show 

that federal officeholders are hardly immune from the temptation to intervene in 

federal contract decisions on behalf of financial supporters. (JA 171-76 

¶¶ 115-24.) 

Indeed, the danger of bias and coercion exists throughout the government 

because political appointees are ubiquitous. The majority of agency officials who 

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36 

oversee the awarding of contracts pursuant to 48 C.F.R. § 1.601(a) are political 

appointees who owe their own jobs to the current Administration; many were 

previously employed as campaign operatives. There are about 8,000 such political 

appointee positions in the executive and legislative branches. (See supra p. 14 

n.4.) A political appointee seeking to reward political loyalty could be tempted to 

award or renew contracts only for those who make contributions to a favored 

candidate or party. 

Moreover, the Supreme Court has recognized the history of political parties’ 

role as go-betweens for donors who seek to influence government decisions: 

 Parties thus perform functions more complex than simply electing 

candidates; whether they like it or not, they act as agents for spending on 

behalf of those who seek to produce obligated officeholders. It is this 

party role, which functionally unites parties with other self-interested 

political actors .... 

Colorado Republican, 533 U.S. at 452. Thus, the potential for contractors to make 

large contributions to political parties poses a special danger of corruption because 

the national party committees are “inextricably intertwined” with their 

officeholders and candidates. (JA 176 ¶ 125.) The history of “soft money” 

exemplifies this phenomenon. Prior to 2002, it was lawful to make donations to 

national parties that were not subject to the source and amount prohibitions of 

FECA (“soft money”). The trading of soft money for access to and influence over 

federal candidates and officeholders was rampant. (JA 177 ¶ 129.) As a former 

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37 

Senator explained: “Who, after all, can seriously contend that a $100,000 donation 

does not alter the way one thinks about ... an issue?” (JA 178 ¶ 133.) In 2002, 

Congress passed BCRA, which prohibited national party committees from 

soliciting, receiving, directing, or spending any soft money. See 2 U.S.C. § 441i; 

JA 177 ¶ 127. But BCRA also increased FECA’s “hard-money” contribution 

limits, so an individual may now give contributions totaling $123,200 per two-year 

election cycle, including a total of $74,600 to the national committees of a political 

party (but no more than $32,400 to any one national party committee in a single 

year). (See supra p. 4 n.1.)

These dangers may be especially great for the many federal contracts, 

including those awarded to the contractors in this case, that are awarded through 

streamlined processes that dispense with open formal bidding procedures. (App. 

Br. 15 (describing Wagner as being “initially approached by an agency because the 

agency has concluded that [she was] able to fill a particular need”); App. Br. 16-18 

(Miller was awarded personal service contract not through formal bidding, but 

“based on the agency’s knowledge of his work”) App. Br. 49-50 n.7 (describing 

sole-source contracts in which the contractor “does not even know there is a 

possible contract under consideration”).) Congress is not required to wait until 

corruption occurs before taking appropriate prophylactic measures to prevent it. 

Ognibene, 671 F.3d at 188 (“Appellants essentially propose giving every corruptor 

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38 

at least one chance to corrupt before anything can be done, but this dog is not 

entitled to a bite.”); JA 234-35 (same). 

The contractors suggest that section 441c could be rewritten as a “less 

restrictive alternative” (App. Br. 44 n.6; see also id. at 44 (“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.”)), but the 

appropriate standard of review here is not whether a less restrictive alternative is 

available; it is whether the law is closely drawn to a sufficient government interest. 

Congress is better equipped to make empirical judgments about which alternatives 

are best to achieve its objectives. See FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480, 500 (1985); Nat’l Right to Work Comm., 459 U.S. at 210; 

Buckley, 424 U.S. at 30. In light of the continuing risks of corruption and coercion 

in the federal contracting system, Congress’s choices here are permissible. Indeed, 

as the district court observed, the contractors’ proposals to rewrite the statute are 

inadequate; all of the contractors’ proposed “menu of ways to narrow § 441c’s ban 

[] still present the danger of corruption.” (JA 237.) 

Finally, the contractors assert that the prohibition on contractor contributions 

is unnecessary because of other procedural safeguards that have been or could be 

enacted (App. Br. 42-44), but virtually the same argument failed in Buckley. The 

Court rejected the suggestion that FECA’s contribution limits were 

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39 

unconstitutional because the government’s interest in preventing corruption was 

adequately addressed by bribery and disclosure laws. Buckley, 424 U.S. at 27. 

The Court recognized that “laws making criminal the giving and taking of bribes 

deal with only the most blatant and specific attempts of those with money to 

influence governmental action,” id. at 27-28; as the district court here noted, 

Congress has “the flexibility to attack corruption from multiple flanks,” JA 235. 

 2. Section 441c Is Closely Drawn Because It Allows 

Contractors to Engage in Many Other Forms of 

Political Expression 

Section 441c allows ample alternative forms of political activity for persons 

who choose to become federal contractors. Federal contractors remain free to 

speak about candidates, volunteer for campaigns, raise funds for candidates or 

parties, and engage in numerous other activities in which they can express their 

views of candidates or public issues. See 2 U.S.C. § 431(8)(B); 11 C.F.R. 

§§ 100.74-100.77. By focusing on contractor contributions, Congress has carefully 

drawn section 441c to address the activity it deems most likely to be used by 

contractors to “pay” to “play” — and most likely to be used by officeholders and 

political appointees to coerce contractors — leaving contractors a very broad range 

of alternative means of political expression. See McConnell, 540 U.S. at 138 

(holding that contribution limits “have only a marginal impact on the ability of 

contributors ... to engage in effective political speech”). 

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40 

The contractors argue that the ban infringes on their rights because, for 

example, at least one of them wants to “be on record as giving money to those that 

he believes would best represent him and his views and values” (App. Br. 18), but 

in light of their alternatives, the contractors have countless ways to “be on record” 

as supporters of a particular candidate or party. Indeed, the alternatives available 

to the contractors are far more expressive than the largely symbolic act of making a 

contribution. 

Courts have relied heavily on the availability of such expressive alternatives 

in upholding contribution bans under the “closely drawn” standard. See, e.g., 

Blount v. SEC, 61 F.3d 938, 944-48 (D.C. Cir. 1995) (regulation barring 

contributions by finance professionals to state officials with whom they do 

business is “closely drawn” because “the rule restricts a narrow range of their 

activities for a relatively short period of time.... [M]unicipal finance professionals 

are not in any way restricted from engaging in the vast majority of political 

activities.”); Preston, 660 F.3d at 740 (ban on lobbyist contributions is closely 

drawn because lobbyists can still “volunteer with campaigns, ... display[] signs or 

literature ... engage in door-to-door canvassing and contribute other time to get the 

vote out ... attend a fund raiser on behalf of a candidate, ... host a fund raiser ...”). 

The contractors argue that “the Government does not have the right to determine in 

what manner and by what means individuals will exercise their First Amendment 

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41 

rights” (App. Br. 56), but Letter Carriers and Buckley held that the availability of 

alternatives bears upon the constitutionality of comparable restrictions on political 

activity. 

3. Section 441c Is Closely Drawn Because It Applies Only 

Temporarily to Those Who Have Chosen to Receive the 

Benefits of Government Contracts 

Section 441c is a modest burden on political expression because it applies 

only to those who have freely chosen to work for the federal government as 

contractors, and only during the period of time that they are performing or 

negotiating the contract. For example, if contractor Wagner wishes to make 

campaign contributions in future elections, she can easily do so by not entering 

into additional contracts with the federal government after her current contract 

expires this June. (App. Br. 14.) Contractor Brown’s contract is also set to expire 

later this year, and contractor Miller’s contract will expire in 2016. (App. Br. 16-

17.) As the district court noted, “Plaintiffs voluntarily chose to become federal 

contractors and are only subject to the ban for as long as they continue to make that 

choice.” JA 38 (citing Preston, 660 F.3d at 740); see Blount, 61 F.3d at 944-48 

(approving contribution ban in part because it applied only “for a relatively short 

period of time”). 

Similarly, in Buckley the Supreme Court ruled that the campaign expenditure 

limitations for presidential candidates receiving public funding did not violate the 

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42 

First Amendment because the candidates could choose to decline public funding 

and thereby avoid the otherwise unconstitutional expenditure restrictions. 424 U.S. 

at 57 n.65; cf. Preston, 660 F.3d at 740 (upholding lobbyist ban in part because 

“[plaintiff] freely chose to become a registered lobbyist, and in doing so agreed to 

abide by a high level of regulatory and ethical requirements focusing on the 

relationship of lobbyist and public official”). See also Selective Serv. Sys. v. Minn. 

Pub. Interest Research Group, 468 U.S. 841, 856-57 (1984) (Fifth Amendment 

rights of college students who had not registered for the draft were not infringed by 

financial aid form questions asking their draft status because students could simply 

choose not to apply for financial aid); Lyng v. Int’l Union, 485 U.S. 360 (1988) 

(First Amendment rights of striking workers were not infringed by law exempting 

strikers from obtaining food stamps, because they were not compelled to apply for 

food stamps); Wyman v. James, 400 U.S. 309, 317-18, 324 (1971) (Fourth 

Amendment rights of welfare recipients were not infringed by required home visits 

by social workers, because recipients were not required to continue receiving aid). 

Thus, the contribution restriction in section 441c is closely drawn because it 

is temporary and easily avoided. 

D. Section 441c Is Constitutional Even Though It Does Not Address 

Every Potential Avenue for Corruption 

Congress may address the problems it perceives as the most egregious and 

“need not solve every problem at once.” (JA 238; see also Nat’l Right to Work 

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43 

Comm., 459 U.S. at 209 (“This careful legislative adjustment of the federal 

electoral laws, in a ‘cautious advance, step by step,’ ... warrants considerable 

deference ....” (internal citation omitted)).) Thus, the contractors’ argument that 

section 441c is underinclusive because it bars contributions by federal contractors 

but not by recipients of grants, loans, ambassadorships, or admission to military 

academies (App. Br. 51-55) is wrong. 

This Court rejected a similar underinclusiveness argument in Blount. In that 

challenge to a statute barring municipal securities professionals from contributing 

to the campaigns of state officials with whom they did business, the plaintiff 

argued that the provision did not prevent “all possible methods by which 

underwriters may curry favor” nor apply to “chief executive officers of banks with 

municipal securities departments or subsidiaries.” 61 F.3d at 946. The Court held: 

[A] regulation is not fatally underinclusive simply because an 

alternative regulation, which would restrict more speech or the 

speech of more people, could be more effective. The First 

Amendment does not require the government to curtail as much 

speech as may conceivably serve its goals.... [W]ith regard to 

First Amendment underinclusiveness analysis, neither a perfect nor 

even the best available fit between means and ends is required. 

Id. (citations and internal quotation marks omitted); see also Ruggiero v. FCC, 317 

F.3d 239, 246 (D.C. Cir. 2003) (rejecting argument that FCC regulation was 

underinclusive because it prohibited only some criminals from receiving FCC 

licenses). 

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44 

The contractors rely on two Supreme Court decisions that suggest that courts 

may in limited circumstances consider underinclusiveness in evaluating whether a 

law violates the First Amendment, but in both cases the Court considered 

underinclusiveness merely to assess whether the purported justification for the law 

was credible. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 665 

(1990) (“excluding from the statute’s coverage unincorporated entities that also 

have the capacity to accumulate wealth does not undermine its justification for 

regulating corporations”) (internal quotation marks omitted), overruled on other 

grounds by Citizens United, 558 U.S. 310; City of Ladue v. Gilleo, 512 U.S. 43, 52 

(1994) (“Exemptions from an otherwise legitimate regulation of a medium of 

speech may be noteworthy [because]... [t]hey may diminish the credibility of the 

government’s rationale for restricting speech in the first place.”). Even the 

contractors acknowledge that the contribution ban at issue here was based on 

“Congress’ desire to keep politics and government contracting separate” (App. Br. 

6), and this motive is no less credible simply because Congress did not extend the 

ban to other recipients of government benefits. 

E. The Constitutionality of the Contractor Contribution Ban Has 

Not Eroded Over Time 

The contractors make the novel argument that “even if section 441c was 

defensible when it was enacted, it cannot withstand this First Amendment 

challenge today” (App. Br. 46), relying on a 1935 Supreme Court case stating that 

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45 

“[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). But the legislative purpose behind the statute at issue in that case (which 

imposed construction costs on railroads to promote motor vehicles as a new form 

of transportation) had been completely eradicated by technological advances. Id.

at 416. The Court therefore remanded the case to the Tennessee Supreme Court to 

determine whether, in light of these changes, the state highway commission had 

deprived a railroad of property without due process of law in violation of the 

Fourteenth Amendment when it required the railroad to pay half the cost of 

constructing an underpass for a new highway. Id. at 426-28. 

The government plainly continues to have an interest in preventing 

corruption, the appearance of corruption, and political patronage. The contractors 

claim that changes in federal procurement law 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-to-play.” (App. Br. 46.) To the contrary, the dangers associated 

with federal contracting have grown considerably since 1940. Federal spending 

has increased dramatically, the government relies heavily on contractors, and 

agencies spend more on contracting than ever before. (See supra pp. 11-12.) 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 57 of 81
46 

In fact, the record in this case contains considerable evidence of the 

continuing risks to the integrity of federal contracting (JA 166-70 ¶¶ 98-114), but 

to the extent that scandals involving contributions by federal contractors are 

relatively infrequent, that suggests that Congress’s efforts to depoliticize the 

government contracting process have been largely effective. Any time a statute 

modifies behavior and helps make compliance the norm — whether it is a 

reduction in race or gender discrimination, increase in seatbelt use, or decrease in 

corruption in federal contracting — a cultural shift in social expectations is likely 

to work in tandem with the law to create a virtuous cycle of increasing compliance. 

But that cycle could turn vicious if the law that started the improvements in the 

first place were suddenly overturned. Plaintiffs’ attempt to strike down a provision 

that has served the nation well for more than 70 years amounts to little more than 

the untenable claim that the provision has worked so well that it is no longer 

needed and the conclusory assertion that other safeguards have made federal 

procurement impervious to corruption. 

The contractors also argue that section 441c is unconstitutional based upon 

statements of Senator Hatch in 1940 that suggest he may have relied on a flawed 

constitutional analysis when he expressed support for the law prior to its passage. 

(App. Br. 7 (quoting Remarks of Senator Hatch, 86 Cong. Rec. 2563 (March 8, 

1940).) Legislative history is relevant in certain circumstances, but as the district 

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47 

court noted (JA 239), it makes no difference whether Congress was wrong about 

why a particular law is constitutional. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 

132 S. Ct. 2566, 2598 (2012) (upholding the Affordable Care Act on a 

constitutional basis other than the one relied upon by Congress because “[t]he 

‘question of the constitutionality of action taken by Congress does not depend on 

recitals of the power which it undertakes to exercise’” (quoting Woods v. Cloyd W. 

Miller Co., 333 U.S. 138, 144 (1948))). 

 Lastly, the contractors appear to suggest that the federal contractor 

contribution ban is unconstitutional because Congress has forgotten it exists. They 

characterize the ban as “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.” (App. Br. 58.) 

But no constitutional doctrine requires Congress to periodically reaffirm every 

statute, nor is it the courts’ role to examine whether Congress has done so — a 

principle of constitutional review that would be unworkable and raise serious 

separation of power concerns. The contractors themselves list seven times since 

1948 that Congress has passed or amended laws to insulate the federal 

procurement process, undercutting their own claims of congressional inattention to 

contractor regulation. (App. Br. 11-12.) Both the Hatch Act and FECA have also 

been amended multiple times since 1940. (See supra pp. 6-10.) Congress’s 

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48 

decision to amend these other provisions — while leaving the contractor 

contribution ban intact — indicates that Congress believes that the provision 

continues to serve important interests. Cf. United States v. Fausto, 484 U.S. 439, 

453 (1988) (“[I]t can be strongly presumed that Congress will specifically address 

language on the statute books that it wishes to change.”) 

III. SECTION 441C SATISFIES THE EQUAL PROTECTION 

GUARANTEE OF THE FIFTH AMENDMENT 

Although the Court should review the contractors’ equal protection 

challenge under the “rational basis” standard, section 441c satisfies review under 

both that standard and intermediate scrutiny, the standard applied by the district 

court. Section 441c regulates no suspect class or fundamental right, and it reflects 

a careful legislative judgment about how to regulate the political activity of 

government contractors and other categories of persons in light of their respective 

roles. 

A. The Court Should Employ Rational Basis Review 

Courts use at least three different standards when reviewing claims that 

legislation violates the Constitution’s guarantee of equal protection: rational basis 

review, intermediate scrutiny, and strict scrutiny. The appropriate standard here is 

rational basis review, not strict scrutiny as the contractors advocate, because the 

contractors’ desire to make campaign contributions involves neither a fundamental 

right nor a suspect class. 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 60 of 81
49 

Rational basis review is the default standard for reviewing equal protection 

challenges. See, e.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-15 (1993); 

Heller v. Doe, 509 U.S. 312, 320 (1993); Minnesota v. Clover Leaf Creamery Co., 

449 U.S. 456, 461 (1981). Under this highly deferential standard, a court should 

not judge the “wisdom, fairness, or logic of legislative choices.” Beach 

Commc’ns, 508 U.S. at 313. Instead, “those challenging the legislative judgment 

must convince the court that the legislative facts on which the classification is 

apparently based could not reasonably be conceived to be true by the governmental 

decisionmaker.” Clover Leaf Creamery, 449 U.S. at 464 (quoting Vance v. 

Bradley, 440 U.S. 93, 111 (1979)). An individual seeking to strike down a law 

under rational-basis review has the burden “to negative every conceivable basis 

which might support it.” Beach Commc’ns, 508 U.S. at 315 (citation and quotation 

marks omitted); see also Heller, 509 U.S. at 321 (“[C]ourts are compelled under 

rational-basis review to accept a legislature’s generalizations even when there is an 

imperfect fit between means and ends.”). 

Strict scrutiny is appropriate only if a law “operates to the disadvantage of 

some suspect class or impinges upon a fundamental right explicitly or implicitly 

protected by the Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 

411 U.S. 1, 17 (1973). The contractors do not assert that they are part of a suspect 

class, and the ability to make campaign contributions is not a fundamental right for 

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50 

purposes of equal protection analysis. Indeed, the contractors cite no precedent 

holding that individuals have a “fundamental right” to make campaign 

contributions; rather, such financial transfers “lie closer to the edges than to the 

core of political expression,” Beaumont, 539 U.S. at 161. Moreover, the Supreme 

Court has refused to extend the narrow category of “fundamental rights,” even to 

important interests that are related to specific rights enumerated in the 

Constitution. See San Antonio Indep. Sch. Dist., 411 U.S. at 17 (employing 

rational basis review regarding law providing unequal education funding). 

Although campaign contributions include a symbolic speech component, 

there is no “fundamental right” to make such contributions for purposes of equal 

protection analysis; rather, a contribution limit is only a “marginal restriction upon 

the contributor’s ability to engage in free communication,” Buckley, 424 U.S. 

at 20. More generally, speech restrictions that are viewpoint neutral, like section 

441c, receive rational basis review when challenged on equal protection grounds. 

See McGuire v. Reilly, 260 F.3d 36, 49-50 (1st Cir. 2001) (upholding restriction on 

speech outside abortion clinics against equal protection challenge under rational 

basis review); cf. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 102 (1972) 

(applying higher level of scrutiny to statute that prohibited all protests except labor 

picketing near a school because “the discrimination among pickets is based on the 

content of their expression”). 

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51 

This Court and the Supreme Court have declined to apply strict scrutiny in 

challenges similar to the contractors’ equal protection claims. In Blount, this Court 

considered a law prohibiting contributions from municipal securities professionals 

to political campaigns of certain state officials. The petitioner argued that the law 

“violate[d] ... the due process clause of the Fifth Amendment” with its “disparate 

treatment” because it applied to municipal securities professionals but not to “bank 

officers and bank-controlled political action committees.” 61 F.3d at 946 n.4. The 

Court found it “unnecessary to evaluate this contention” because the “Fifth 

Amendment requires only that the government have a rational basis for its 

distinction ... and rational-basis review requires, if anything, less ‘mathematical 

nicety’ than the First Amendment requires.” Id. (quoting Vance, 440 U.S. at 109) 

(emphasis added). And in Broadrick v. Oklahoma, 413 U.S. 601 (1973), claimants 

argued that a state law restricting political activity by state employees violated the 

Equal Protection Clause “by singling out classified service employees for 

restrictions on partisan political expression while leaving unclassified personnel 

free from such restrictions.” Id. at 607 n.5. The Supreme Court rejected the 

argument and explained that “the legislature must have some leeway in 

determining which of its employment positions require restrictions on partisan 

political activities and which may be left unregulated.” Id. The Court’s cursory 

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treatment of the claim forecloses any credible suggestion that it applied strict 

scrutiny. 

The Supreme Court has sometimes employed an intermediate level of 

scrutiny in equal protection cases involving quasi-suspect classes, rather than 

actual suspect classes. See, e.g., Adarand Constructors, Inc. v. Slater, 528 U.S. 

216, 219 (2000) (noting the existence of intermediate scrutiny for “cases involving 

classifications on a basis other than race”); Miss. Univ. for Women v. Hogan, 458 

U.S. 718, 724 (1982) (gender); Mills v. Habluetzel, 456 U.S. 91, 98 (1982) 

(illegitimate children). The contractors do not, and cannot, argue that they are part 

of any quasi-suspect class. Although the Supreme Court appears to have limited 

its use of intermediate scrutiny in equal protection cases only to those involving 

quasi-suspect classes, the court below evaluated the contractors’ equal protection 

claim with the same intermediate level of scrutiny it employed under the First 

Amendment — “closely drawn to match a sufficiently important interest.” 

(JA 228, 240.) Even though the district court erred by applying intermediate 

scrutiny in its equal protection analysis, the court correctly held that section 441c 

can satisfy such scrutiny. 

In any event, strict scrutiny for the contractors’ equal protection claim would 

be entirely unprecedented and would run counter to decades of Supreme Court 

jurisprudence regarding campaign finance statutes. Buckley and its progeny have 

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53 

reviewed FECA primarily under the First Amendment — subjecting contribution 

limits and disclosure provisions to intermediate scrutiny, and expenditure limits to 

strict scrutiny. That longstanding precedent could be jeopardized if litigants could 

gain strict scrutiny by repackaging their claims as equal protection challenges by, 

for example, characterizing FECA’s different limits for contributions to candidates, 

political parties, and PACs as unconstitutional differential treatment. This Court 

should follow Blount, reject the contractors’ invitation to revisit well-established 

precedent, and apply rational basis review to their equal protection claims. As 

explained below, however, and as the district court found, even under intermediate 

scrutiny section 441c is constitutional. 

B. Equal Protection Is Not Violated by Any Differential Treatment 

Between Individual Contractors and Corporate Entities or 

Persons Associated with Those Entities 

The Supreme Court has long acknowledged that “the ‘differing structures 

and purposes’ of different entities ‘may require different forms of regulation in 

order to protect the integrity of the electoral process.’” Nat’l Right to Work 

Comm., 459 U.S. at 210 (quoting Cal. Med. Ass’n v. FEC, 453 U.S. 182, 201 

(1982))). “The governmental interest in preventing both actual corruption and the 

appearance of corruption” may be “accomplished by treating unions, corporations, 

and similar organizations differently from individuals.” Id. at 210-11 (citations 

omitted). As Buckley noted in discussing FECA’s disparate treatment of major and 

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54 

minor parties, “[s]ometimes the grossest discrimination can lie in treating things 

that are different as though they were exactly alike... .” 424 U.S. at 97-98 

(internal quotation marks and citation omitted). 

The contractors erroneously argue that Section 441c violates the equal 

protection clause because individual contractors purportedly are treated less 

favorably than (1) corporate contractors; (2) their “directors, officers, employees 

and shareholders”; and (3) “individual LLCs.” (App. Br. 28-33.) Contrary to the 

contractors’ argument, however, corporate contractors and individual contractors 

are treated almost identically under section 441c. Both corporate and individual 

contractors are prohibited from making contributions. 2 U.S.C. §§ 441b(a), 441c. 

The contractors nonetheless assert (App. Br. 28) that they are treated less 

favorably than corporate contractors because only a corporation may establish a 

“separate segregated fund” (“SSF,” also known as a PAC) and solicit money from 

the corporation’s “stockholders and their families and its executive or 

administrative personnel and their families” for the purpose of making 

contributions. See 2 U.S.C. §§ 441b(b)(4)(A)(i); 441c(b). But SSFs exist to 

ensure that the corporation is not the entity making the contribution, as the terms 

“separate” and “segregated” make abundantly clear. The Supreme Court has 

upheld the requirement that corporations establish an SSF to make contributions, 

rather than making them from their corporate treasuries. See Beaumont, 539 U.S. 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 66 of 81
55 

at 147-49. And as the district court noted (JA 241), the holding in Citizens United

rested in part on the Court’s determination that “[a] PAC is a separate association 

from the corporation.” 130 S. Ct. at 897. The Court held that a PAC’s ability to 

make independent expenditures was insufficient to alleviate the First Amendment 

burdens on corporations because the PAC option still “does not allow corporations 

to speak.” Id. 

Moreover, the contractors’ argument (App. Br. 28) that individual 

contractors “do not have [the] option” to establish an SSF, though accurate, ignores 

similar options that are available to individual contractors. A contractor can 

establish and use a corporate form, such as an LLC; the LLC may enter into 

contracts with the government; and the individual would remain free to make 

contributions. (See supra p. 5; App. Br. 32 (“[T]he agency does not care whether 

the contract is with the individual personally or with an LLC.”).) Moreover, as the 

district court noted (JA 241), section 441c does not bar contributions by spouses or 

other close relatives of individual contractors. 

The contractors also claim (App. Br. 30-31) that they are being unfairly 

treated in comparison to corporate directors, officers, employees and shareholders, 

but as a matter of law, a corporation is a separate legal entity from the individuals 

who operate and own it. Corporate officers, directors, employees, and 

shareholders, for example, cannot in ordinary circumstances be held accountable 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 67 of 81
56 

for the debts or misconduct of the corporation. 1 William Meade Fletcher, 

Cyclopedia of the Law of Corporations § 25 (rev. ed. 2012). The contractors in 

this case are being treated differently from individuals associated with corporate 

contractors because the latter individuals do not have contracts with the 

government. 

Thus, as the district court held, “individual contractors are not similarly 

situated under the law to corporate contractors’ PACs or their officials.” (JA 241.) 

Congress might have rationally concluded that there is a lower risk of corruption or 

its appearance when the person receiving the government contract is different from 

the person making the contribution. Congress might have concluded that there is a 

lower risk of corruption when an employee or shareholder of a major federal 

contractor such as Boeing makes a contribution to a federal candidate as compared 

to an individual who is actually a party to the contract. And Congress might have 

concluded that individual personal service contracts are small enough that their 

award might be influenced by an individual’s contribution, but that it is unlikely 

that a corporate contract totaling millions of dollars would be steered in a particular 

direction merely because an employee or stockholder of that company made an 

individual contribution. Thus, section 441c’s focus on the individual or entity 

actually contracting with the government satisfies the equal protection requirement 

of the Fifth Amendment. 

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57 

C. Equal Protection Is Not Violated by Any Differential Treatment 

Between Individual Contractors and Federal Employees 

Federal employees and federal contractors are not the same and therefore are 

justifiably treated differently in numerous ways. The contractors “do not argue 

that the situations [of federal contractors and federal employees] are identical,” but 

that the two groups are “sufficiently close” that the different treatment of 

contractors violates equal protection. (App. Br. 36.) Especially in light of the 

many different occupations and functions of workers within the two categories 

(federal employees versus federal contractors), the contractors’ conclusory 

assertion cannot override Congress’s discretion. Indeed, the Hatch Act establishes 

different restrictions even among federal employees of different agencies. (See 

infra pp. 58-59.) It is Congress’s role to draw lines in these complex and difficult 

areas; the courts have “no scalpel to probe” with such specificity. Buckley, 424 

U.S. at 30. 

One critical distinction between federal employees and contractors is that 

only the former are protected by the MSPB, which has the power to hear and 

decide complaints when an agency is alleged to have violated Merit System 

Principles governing federal employment. See 5 U.S.C. §§ 1201-1209, 1214-15, 

2301(b)(1)-(2). Two such Merit System Principles are that “[a]ll employees and 

applicants for employment should receive fair and equitable treatment in all 

aspects of personnel management without regard to political affiliation” and that 

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58 

“[e]mployees should be ... protected against ... coercion for partisan political 

purposes ....” 5 U.S.C. §§ 2301(b)(2), (b)(8)(A). No institution comparable to the 

MSPB protects federal contractors. Congress could have concluded that the 

important government interests section 441c promotes, including protecting 

workers from coercion, were already being served adequately with respect to 

federal employees, but that a ban on contributions was necessary to protect 

contractors. 

More fundamentally, the contractors cannot demonstrate that, overall, 

federal employees receive more favorable treatment. (See JA 242.) In some ways, 

federal employees are subject to more severe restrictions than federal contractors. 

Unlike federal contractors, for example, federal employees are generally not

permitted to solicit campaign donations or invite people to political fundraisers. 

See 5 U.S.C. § 7323; 5 C.F.R. § 734.303. And federal employees who work at 

“further restricted” agencies (other than those appointed by the President and 

confirmed by the Senate) are prohibited from other political speech, including 

addressing political party conventions or campaign rallies, endorsing candidates in 

political advertisements, or circulating partisan nominating petitions. 5 U.S.C. 

§ 7323; 5 C.F.R. §§ 734.408-12. In addition to the above restrictions, most FEC 

employees are prohibited from making campaign contributions to many federal 

campaigns. 5 U.S.C. § 7323(b)(1). 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 70 of 81
59 

As the district court recognized in rejecting this portion of the contractors’ 

equal protection challenge (JA 242), the Supreme Court has made clear that in 

evaluating claims of disparate treatment, a court must look at the totality of 

circumstances and not just one provision in isolation. In California Medical 

Association, the Supreme Court took that approach in reviewing an equal 

protection claim against a different provision of FECA. An unincorporated 

association challenged the limits on the contributions it could make to political 

committees. The plaintiffs argued that corporations were treated more favorably 

due to the corporations’ ability to spend unlimited sums for the administrative and 

solicitation expenses of their SSFs. 453 U.S. at 200; see also 2 U.S.C. § 441b(b). 

After concluding that there was no First Amendment violation, the Court also 

rejected the equal protection claim: “Appellants’ claim of unfair treatment ignores 

the plain fact that the statute as a whole imposes far fewer restrictions on 

individuals and unincorporated associations than it does on corporations and 

unions.” Cal Med. Ass’n, 453 U.S. at 200 (first emphasis added). The Court then 

described other parts of the statute that favored the plaintiffs’ interests over those 

of corporations and noted that “differing restrictions placed on individuals and 

unincorporated associations, on the one hand, and on unions and corporations, on 

the other, reflect a judgment by Congress that these entities have differing 

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60 

structures and purposes, and that they therefore may require different forms of 

regulation in order to protect the integrity of the electoral process.” Id. at 201. 

Likewise, the “dissimilar roles of contractors and employees ... justify the 

distinct regulatory schemes that the Government has fashioned” regarding political 

activity. (JA 242.) Congress has chosen to place somewhat different limits on the 

political activity of contractors and others who interact with the government. That 

delicate balancing of interests is a legislative judgment to which the courts defer. 

Section 441c does not violate the equal protection guarantee of the Fifth 

Amendment. 

CONCLUSION 

 For the reasons stated above, this Court should affirm the district court’s 

grant of summary judgment to the Commission. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

aherman@fec.gov 

Lisa J. Stevenson 

Deputy General Counsel - Law 

lstevenson@fec.gov 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 72 of 81
February 20, 2013 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

Seth Nesin 

Attorney 

snesin@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

61 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 73 of 81
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 13,977 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

Seth Nesin 

Attorney 

Federal Election Commission 

62 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 74 of 81
CERTIFICATE OF SERVICE 

I hereby certify that on this 20th day ofFebruary 2013, I caused the Federal 

Election Commission's brief in Wagner v. FEC, No. 12-5365, to be filed with the 

Clerk of the Court by the electronic CM/ECF System, thereby effectuating service 

on the following: 

Alan B. Morrison 

George Washington University Law School 

2000 H Street, N.W. 

Washington, DC 20052 

abmorrison@law .gwu. edu 

Arthur B. Spitzer 

ACLU of the Nation's Capital 

4301 Connecticut Ave., N.W., Suite 434 

Washington, DC 20008 

artspitzer@aclu-nca.org 

J. Gerald Hebert 

The Campaign Legal Center 

215 E. Street, N.E. 

Washington, DC 20002 

ghebert@campaignlegalcenter .org 

Fred Wertheimer 

Democracy 21 

2000 Massachusetts A venue, N. W. 

Washington, DC 20036 

fwertheimer@democracy2l.org 

Scott Nelson 

Public Citizen 

1600 20th Street N.W. 

Washington, DC 20009 

snelson@citizen.org 

63 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 75 of 81
I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

February 20, 2013 

64 

_£.£~ 

Seth Nesin 

Attorney 

Federal Election Commission 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 76 of 81
ADDENDUM TABLE OF CONTENTS 

 Page 

2 U.S.C. § 441c, Contributions by government contractors ........................ i 

5 U.S.C. § 7323, Political activity authorized; prohibited .......................... ii 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 77 of 81
i

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. 

(c) “Labor organization” defined 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 78 of 81
ii

For purposes of this section, the term “labor organization” has the meaning given it 

by section 441b(b)(1) of this title. 

5 U.S.C. § 7323, Political activity authorized; prohibited 

(a) Subject to the provisions of subsection (b), an employee may take an active part 

in political management or in political campaigns, except an employee may not-- 

(1) use his official authority or influence for the purpose of interfering with or 

affecting the result of an election; 

(2) knowingly solicit, accept, or receive a political contribution from any person, 

unless such person is-- 

(A) a member of the same Federal labor organization as defined under section 

7103(4) of this title or a Federal employee organization which as of the date of 

enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate 

political committee (as defined under section 315(a)(4) of the Federal Election 

Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); 

(B) not a subordinate employee; and 

(C) the solicitation is for a contribution to the multicandidate political committee 

(as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 

(2 U.S.C. 441a(a)(4))) of such Federal labor organization as defined under section 

7103(4) of this title or a Federal employee organization which as of the date of the 

enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate 

political committee (as defined under section 315(a)(4) of the Federal Election 

Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); or 

(3) run for the nomination or as a candidate for election to a partisan political 

office; or 

(4) knowingly solicit or discourage the participation in any political activity of any 

person who-- 

(A) has an application for any compensation, grant, contract, ruling, license, 

permit, or certificate pending before the employing office of such employee; or 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 79 of 81
iii

(B) is the subject of or a participant in an ongoing audit, investigation, or 

enforcement action being carried out by the employing office of such employee. 

(b)(1) An employee of the Federal Election Commission (except one appointed by 

the President, by and with the advice and consent of the Senate), may not request 

or receive from, or give to, an employee, a Member of Congress, or an officer of a 

uniformed service a political contribution. 

(2)(A) No employee described under subparagraph (B) (except one appointed by 

the President, by and with the advice and consent of the Senate), may take an 

active part in political management or political campaigns. 

(B) The provisions of subparagraph (A) shall apply to-- 

(i) an employee of-- 

(I) the Federal Election Commission or the Election Assistance Commission; 

(II) the Federal Bureau of Investigation; 

(III) the Secret Service; 

(IV) the Central Intelligence Agency; 

(V) the National Security Council; 

(VI) the National Security Agency; 

(VII) the Defense Intelligence Agency; 

(VIII) the Merit Systems Protection Board; 

(IX) the Office of Special Counsel; 

(X) the Office of Criminal Investigation of the Internal Revenue Service; 

(XI) the Office of Investigative Programs of the United States Customs Service; 

(XII) the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and 

Firearms; 

USCA Case #12-5365 Document #1421508 Filed: 02/20/2013 Page 80 of 81
iv

(XIII) the National Geospatial-Intelligence Agency; or 

(XIV) the Office of the Director of National Intelligence; or 

(ii) a person employed in a position described under section 3132(a)(4), 5372, 

5372a, or 5372b of title 5, United States Code. 

(3) No employee of the Criminal Division or National Security Division of the 

Department of Justice (except one appointed by the President, by and with the 

advice and consent of the Senate), may take an active part in political management 

or political campaigns. 

(4) For purposes of this subsection, the term “active part in political management 

or in a political campaign” means those acts of political management or political 

campaigning which were prohibited for employees of the competitive service 

before July 19, 1940, by determinations of the Civil Service Commission under the 

rules prescribed by the President. 

(c) An employee retains the right to vote as he chooses and to express his opinion 

on political subjects and candidates. 

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