UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

WENDY E. WAGNER, et al., 

 

 Plaintiffs, 

) 

) 

) 

) 

) 

) 

Civil Action No. 11-cv-1841-JEB 

 v. ) 

) 

) OPPOSITION 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

_________________________________________ 

) 

) 

) 

) 

) 

 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

March 1, 2012 Fax: (202) 219-0260 

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TABLE OF CONTENTS 

BACKGROUND .............................................................................................................................1 

A. The Parties ...............................................................................................................1 

B. Relevant Statutory and Regulatory Provisions ........................................................2 

C. History of the Ban on Political Contributions by Federal Contractors ....................4 

ARGUMENT .................................................................................................................................10 

I. PLAINTIFFS CANNOT CARRY THEIR HEAVY BURDEN OF 

SHOWING THAT THEY ARE ENTITLED TO A PRELIMINARY 

INJUNCTION ....................................................................................................................10 

A. The Requirements for a Preliminary Injunction ....................................................10 

B. Plaintiffs Are Unlikely to Succeed on the Merits of Their 

First Amendment Claim .........................................................................................12 

1. Courts Review Contribution Restrictions Under a “Relatively 

Complaisant” Standard That Requires Only That They Be 

Closely Drawn to Serve Important Government Interests ...............................12 

2. The Government’s Interest in Protecting the Integrity and 

Effectiveness of Its Workforce and Contractors Justifies 

Section 441c’s Ban on Contributions by Those Who Choose 

Contractor Status ..............................................................................................15 

3. Recent Experience at the State and Local Level Has 

Reinforced the Government Interest in Combating Corruption 

and Its Appearance in Connection with Government Contracts ......................18 

4. Section 441c Is Closely Drawn ........................................................................21 

a. Section 441c Allows Federal Contractors to Engage in 

Numerous Other Forms of Political Expression ........................................23 

b. Federal Contractors Have Voluntarily Chosen the 

Benefits of Their Contracts, and They Can Easily Avoid 

Section 441c by Not Accepting Federal Funds..........................................25 

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c. Section 441c Is Not Underinclusive ..........................................................26 

 

C. Plaintiffs Are Unlikely to Succeed on the Merits of Their Equal 

Protection Claim ....................................................................................................27 

1. Plaintiffs’ Claim Is Subject to Highly Deferential Equal 

Protection Review Under the Rational Basis Standard ..............................28 

2. The Line Congress Drew is Rational — the Court Should 

Defer to Congress Regarding the Precise Restrictions 

Appropriate for Those Who Perform Government Work ..........................31 

3. The Government Has a Rational Basis for Treating Federal 

Contractors Differently from Federal Employees ......................................32 

4. The Government Has a Rational Basis for Treating 

Corporate Contractors Differently from Individual 

Contractors .................................................................................................34 

D. Plaintiffs Fail to Demonstrate Irreparable Harm .................................................. 36 

1. Plaintiffs Voluntarily Became Federal Contractors, Control 

 the Timing of That Status, and Delayed Seeking Emergency 

 Relief .........................................................................................................37 

2. Plaintiffs Have Alternative Avenues to Express Their 

Electoral Views ..........................................................................................38 

3. The Preliminary Injunction Plaintiffs Seek Would Not 

Prevent Any Irreparable Harm and Would Provide at Most 

an Illusory Remedy ....................................................................................38 

E. The Balance of Harms Weighs in Favor of the Commission 

and the Public ........................................................................................................ 42 

II. CONCLUSION ..................................................................................................................45

 

 

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TABLE OF AUTHORITIES 

Cases 

Alpha Capital Anstalt v. Ness Energy Int’l, Inc., No. 10-1218-D, 2011 WL 232393 

(W.D. Ok. Jan. 24, 2011) ...................................................................................................40 

Anderson v. FEC, 634 F.2d 3 (1st Cir. 1980) ................................................................................38 

Arnett v. Kennedy, 416 U.S. 134 (1974) ........................................................................................14 

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ....................................................................23, 27, 29 

Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 132 S. Ct. 1087 (2012) ....................18 

Bd. of Cnty. Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668 (1996) .....................14 

 

Bowen v. Kendrick, 483 U.S. 1304 (1987) ....................................................................................42 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .........................................................................29, 30 

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ............................................................... passim

Burson v. Freeman, 504 U.S. 191 (1992) ......................................................................................22 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1982) ...............................................................................34 

Casino Ass’n of La. v. State, 820 So.2d 494 (La. 2002) ................................................................24 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ........................36 

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004) .........................38 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 

919 F.2d 148, 149-50 (D.C. Cir. 1990) ..............................................................................36 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ..................................................................12, 22, 36 

Connick v. Myers, 461 U.S. 138 (1983) .........................................................................................14 

Crowley Cutlery Co. v. U.S., 849 F.2d 273 (7th Cir. 1988)...........................................................40 

Dallman v. Ritter, 225 P.3d 610 (Col. 2010) .................................................................................24 

Dandridge v. Williams, 397 U.S. 471 (1970) ................................................................................28 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 4 of 55
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DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997) ...................................................31 

Donaldson v. U.S. Dep’t of Labor, 930 F.2d 339 (4th Cir. 1991) .................................................41 

Edgar v. MITE Corp., 457 U.S. 624 (1982) ..................................................................................41 

Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................36 

Ex parte Curtis, 106 U.S. 371 (1882) ..............................................................................................5 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ..............................................................28, 33 

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

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ................................ 21-22 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ............................................................29

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...................................23 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) ................................................19, 23, 34 

FEC v. Weinsten and Winfield Mfg. Co., 462 F. Supp. 243 (S.D.N.Y. 1978) .................................9 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) .................................................................39

*Green Party of Conn. v. Garfield, 

616 F.3d 189 (2d Cir. 2010) ..........................................................13, 14, 19, 20, 21, 27, 29 

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) .....................................................40, 41 

Heller v. Doe, 509 U.S. 312 (1993) ...............................................................................................28 

Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................................25, 44 

In re UAL Corp., 412 F.3d 775 (7th Cir. 2005) .............................................................................41 

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) ...................................................40 

Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) .................................................................30 

Lyng v. Int’l Union, 485 U.S. 360 (1988) ......................................................................................26 

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

McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001) .............................................................................31 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 5 of 55
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Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) .....................................................11 

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ....................................................28 

Mylan Pharm., Inc. v. Shalala, 81 F. Supp.2d 30 (D.D.C. 2000) ..................................................42 

N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ..................................................19 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................42 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ..............................................13, 20, 22 

*Ognibene v. Parkes, 09-994; 09-1432, 

2012 WL 89358 (2d. Cir. Jan. 12, 2012) ............................................................... 19-22, 29 

Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 

 391 U.S. 563 (1968) ..........................................................................................................14 

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) ............................................................... 31 

*Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ...................................................13, 19, 24, 26, 29 

Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75 (4th Cir. 1989) .............. 37-38 

Randall v. Sorrell, 548 U.S. 230 (2006) ......................................................................13, 23, 29, 31 

Real Truth About Obama v. FEC, No. 3:08-CV-483, 

2008 WL 4416282 (E.D. Va. 2008), aff’d, 575 F.3d 342 (4th Cir. 2009), 

vacated and remanded on other grounds, 130 S. Ct. 2371 (2010) ....................................43 

Regan v. Taxation Without Representation of Wash., 461 U.S. 540 (1983) ........................... 24-25 

Reynolds v. Sims, 377 U.S. 533 (1964) ..........................................................................................30 

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) .................................25 

Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir. 2003) (en banc) ....................................................25, 27 

Rust v. Sullivan, 500 U.S. 173 (1991) ............................................................................................24 

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ..............................................28, 30 

*Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841 (1984) .....................26 

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ...................................................................... 11

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Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998) ..........................................................................41 

Tenacre Foundation v. INS, 78 F.3d 693 (D.C. Cir. 1996) ...........................................................38 

United Public Workers of Am. v. Mitchell, 330 U.S. 75 (1947) .............................................. 22-23 

United States v. Oakland Cannabis Buyer’s Co-op., 532 U.S. 483 (2001) ...................................42 

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

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

 

*Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ..................................................................11, 45 

Vance v. Bradley, 440 U.S. 93 (1979) .....................................................................................28, 29 

Virginia R. Co. v. Railway Emps., 300 U.S. 515 (1937)................................................................42 

Virginians Against a Corrupt Congress v. Moran, 805 F. Supp. 75 (D.D.C. 1992) .....................42 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ..........................................42 

Waters v. Churchill, 511 U.S. 661 (1994) .....................................................................................14 

Winter v. Natural Res. Def. Council, Inc.. 555 U.S. 7 (2008) .................................................11, 36 

Wyman v. James, 400 U.S. 309 (1971) ..........................................................................................26 

Statutes and Regulations 

Amendments to Hatch Act of 1939, 1940 Ed., § 61m-1 (July 19, 1940, c. 640, § 5, 

54 Stat. 772), codified at 18 U.S.C. § 611 (originally 18 U.S.C. § 61m-1) ........................4 

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-57 ....................................2 

2 U.S.C. § 431(8)(A)(i) ....................................................................................................................3 

2 U.S.C. § 431(8)(B) ................................................................................................................23, 38 

2 U.S.C. § 437c(b)(1) .......................................................................................................................2 

2 U.S.C. § 437d(a)(7) .......................................................................................................................2 

2 U.S.C. § 437d(a)(8) .......................................................................................................................2 

2 U.S.C. § 437f ...............................................................................................................................2 

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2 U.S.C. § 437g ................................................................................................................................2 

2 U.S.C. §§ 437g(a)(4)-(6) .............................................................................................................39 

2 U.S.C. § 441a(a)............................................................................................................................3 

2 U.S.C. § 441(b) ...........................................................................................................................13 

2 U.S.C. § 441b(a) .....................................................................................................................3, 34 

2 U.S.C. § 441b(b)(2)(C) .................................................................................................................3 

2 U.S.C. § 441b(b)(4)(A)(i) ...........................................................................................................34 

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

2 U.S.C. § 441c(a)..................................................................................................................3, 4, 40 

2 U.S.C. § 441c(a)(1) .......................................................................................................................3 

2 U.S.C. § 441c(a)(2) .......................................................................................................................3 

2 U.S.C. § 441c(b) .........................................................................................................................34 

2 U.S.C. § 441e ..............................................................................................................................18 

5 U.S.C. §§ 1201-1209 ..................................................................................................................33 

5 U.S.C. § 1214 ..............................................................................................................................33 

5 U.S.C. § 1215 ..............................................................................................................................33 

5 U.S.C. § 2302(b)(1) ....................................................................................................................33 

5 U.S.C. § 2302(b)(2) ....................................................................................................................33

5 U.S.C. § 2302(b)(8)(A) ...............................................................................................................33 

5 U.S.C. § 7323(b)(2)(B) ...............................................................................................................32 

18 U.S.C. § 61m-1 ...........................................................................................................................4 

18 U.S.C. § 600 (Hatch Act of 1939) (53 Stat. 1147 § 3) (Pub. L. 76-252) ....................................7 

18 U.S.C. § 611 ................................................................................................................................4 

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5 C.F.R. § 734.303 .........................................................................................................................33 

5 C.F.R. § 734.401 .........................................................................................................................32 

5 C.F.R. §§ 734.408-12 ..................................................................................................................33 

5 C.F.R. § 734.413 ...................................................................................................................32, 33 

11 C.F.R. §§ 100.74-77 ............................................................................................................23, 38 

11 C.F.R. §115.2 ..............................................................................................................................3 

11 C.F.R. § 115.5 .............................................................................................................................3 

48 C.F.R. § 1.601(a).......................................................................................................................18 

Legislative Materials 

H.R. Rep., No. 76-3 (June 4, 1940) ................................................................................................9 

Pub. L. 94-283 (1976), 90 Stat. 475 .................................................................................................4 

S. Hrg. 110-275, The Perils of Politics in Government: A Review of the 

Scope and Enforcement of the Hatch Act, Hearing before the Oversight of 

Government Management, the Federal Workforce, and the District of 

Columbia Subcommittee of the Committee on Homeland Security and 

Governmental Affairs, United States Senate, October 18, 2007 at 

http://www.access.gpo.gov/congress/senate ........................................................................6 

S. Hrg. 111-626, Balancing Act: Efforts to Right-Size the Federal 

Employe[e]-to-Contractor Mix, , Hearing Before the Oversight of 

Government Management, the Federal Workforce, and the District 

of Columbia Subcommittee of the Committee on Homeland Security 

and Governmental Affairs, United States Senate, May 20, 2010, 

http://www.gpoaccess.gov/congress/index.html. ........................................................... 9-10 

S. Rep. 101-165, 1989 WL 222486 (1990) ..................................................................................5, 6 

U.S. Senate, Committee on Homeland Security and Government Affairs, 

S. Prt. 110-36, Policy and Supporting Positions (2008) ...................................................18 

22 Stat. 404 ......................................................................................................................................5 

84 Cong. Rec. (1939) ...................................................................................................................6, 7 

86 Cong. Rec. (1940) ...........................................................................................................4, 6, 7, 8 

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Miscellaneous 

Department of Justice Inspector General/Office of Professional Responsibility 

Report on An Investigation of Allegations of Politicized Hiring by Monica 

Goodling and Other Staff in the Office of the Attorney General, 

http://www.justice.gov/oig/special/s0807/final.pdf ...........................................................17 

Explanation and Justification, Part 115 Federal Contractors, 1977; 

 41 Fed. Reg. 35,963 (Aug. 25, 1976)............................................................................... 3-4 

FEC Advisory Opinion 2008-11, 

http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=2787 ......................................37 

Federal Election Commission, Contribution Limits for 2011-2012, 

http://www.fec.gov/info/contriblimits1112.pdf ...................................................................3 

Fed. R. Civ. P. 65(a)(2) ..................................................................................................................45 

1 William Meade Fletcher, Cyclopedia of the Law of Corporations § 25 

(rev. ed. 2012) ...................................................................................................................35 

Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118 

(Nov. 2010) ..........................................................................................................................7 

Md. State Dep’t of Assessments and Taxation, Articles of Organization for LLC 

 form and instructions, http://www.dat.state.md.us/sdatweb/artorgan.pdf ........................36 

Memorandum [from President Obama] for the Heads of Executive Departments 

and Agencies — Subject: Government Contracting, Mar. 4, 2009, 

http://www.whitehouse.gov/the-press-office/memorandum-headsexecutive-departments-and-agencies-subject-government-contracting. ..............................9 

Lois Romano, The Plum Book: Washington’s Hottest Read, Washington Post, 

Nov. 7, 2008 .......................................................................................................................18 

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 ..................................................................17 

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 Plaintiffs cannot justify the extraordinary remedy of a preliminary injunction to halt 

enforcement of a vital measure that Congress put in place more than 70 years ago to protect the 

integrity of the federal government and of federal elections. First, plaintiffs are unlikely to 

succeed on the merits of their constitutional challenge to the longstanding ban on contractors’ 

contributions in 2 U.S.C. § 441c, because that provision is closely drawn to serve important 

government interests in deterring corruption and ensuring an effective and unbiased federal 

workforce. And since section 441c narrowly targets only campaign contributions — not 

contractors’ other political activity or their fundamental rights, or the rights of any suspect class 

— it satisfies both the First Amendment and equal protection review. 

Second, plaintiffs fail to demonstrate irreparable harm — which, by itself, defeats their 

effort to obtain preliminary injunctive relief. Plaintiffs freely chose their status as federal 

contractors in order to receive federal funds, and that status is not only voluntary but also 

temporary. Indeed, in less than two weeks after the hearing on this motion, the lead plaintiff’s 

consulting contract will end — and section 441c will no longer restrict her contributions. The 

other two plaintiffs, who elected to enter into multi-year service contracts valued at more than 

$800,000 each, have been federal contractors subject to section 441c for years, belying any claim 

of an urgent need for relief. 

Third, the relief plaintiffs seek would harm the public interest. Plaintiffs’ effort to upset 

the status quo in the months leading up to a presidential election — because plaintiffs wish to set 

aside a condition of their status as federal contractors that they voluntarily assumed — should be 

rejected. Plaintiffs’ motion should be denied. 

BACKGROUND 

A. The Parties 

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

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of the United States government with exclusive jurisdiction to administer, interpret, and civilly 

enforce the Federal Election Campaign Act of 1971, as amended (“FECA” or “Act”), 2 U.S.C. 

§§ 431-57. The Commission is specifically empowered to “formulate policy” with respect to the 

Act, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry 

out the provisions of [the] Act,” 2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the 

Act, 2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce the Act, 2 U.S.C. § 437g. 

 Plaintiffs are three individuals who have chosen to enter into contracts with the federal 

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

Administrative Conference of the United States (“ACUS”), beginning in March 2011 and ending 

on April 2, 2012, under which she will earn $12,000 to prepare a report and recommendations on 

the use of science by administrative agencies. (Plaintiffs’ Amended Complaint (“Am. Compl.”) 

¶ 5 (Doc. No. 17); FEC Exhibit (“Exh.”) 1; Plaintiffs’ Statement of Points and Authorities in 

Support of Their Motion for Preliminary Injunction (“Pls’ PI Br.”) at 10-11 (Doc. No. 18-4).) 

Lawrence M.E. Brown entered into a two-year personal services contract, with three one-year 

option periods, as a human resources adviser with the United States Agency for International 

Development (“USAID”). That contract began in October 2011 and has a total estimated 

contract cost of $865,698. Brown has held personal services contracts with USAID since 

October 2006. (Am. Compl. ¶ 6; FEC Exh. 2 at 1, 6; Pls’ PI Br. at 11-12.) Jan W. Miller is an 

attorney who executed a five-year personal services consulting contract with USAID that began 

in June 2010 and will end in June 2015; the total budgeted value of his contract is $884,151, 

although he works only part-time for USAID and also works part-time as an employee of the 

Peace Corps. (Am. Compl. ¶ 8; FEC Exh. 3; Pls’ PI Br. at 12-13.) 

B. Relevant Statutory and Regulatory Provisions 

 FECA restricts how much individuals can contribute to federal candidates, political 

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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 “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 any of its agencies from making a contribution to any political party, 

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

 Section 441c(a)(2) prohibits 

any person from soliciting a contribution from a federal contractor during the period of the 

contract. See also 11 C.F.R. §115.2. 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. § 115.5. See Explanation and Justification (“E&J”) Part 115 Federal Contractors, 

 

1

 Currently, individuals may contribute $2,500 per election to each federal candidate, 

$30,800 annually to a national party committee, and an aggregate of $117,000 to all federal 

political committees in each two-year election cycle. See id.; Federal Election Commission, 

Contribution Limits for 2011-2012, http://www.fec.gov/info/contriblimits1112.pdf. 

2

 2 U.S.C. § 441c(a)(1) provides: 

“(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 . . . , if payment for the performance of 

such contract or payment for such material, supplies, equipment . . . to be made in whole or in 

part from funds appropriated by the Congress, at any time between the commencement of 

negotiations for the later of (A) the completion of performance under; or (B) the termination of 

negotiations for, such contract or furnishing of material, supplies, equipment . . . , 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[.]” 

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1977; 41 Fed. Reg. 35,963 (Aug. 25, 1976). 

C. History of the Ban on Political Contributions by Federal Contractors 

The prohibition on contributions by federal contractors has deep roots in our nation’s 

history. Congress enacted the particular ban at issue here as part of the 1940 amendments to the 

Hatch Act of 1939, and it was codified originally at 18 U.S.C. § 61m-1 and later at 18 U.S.C. 

§ 611 (“Contributions by Government Contractors”).3 The Hatch Act sought to ensure a meritbased federal workforce free of coercion or other improper political influence, following many 

decades of pernicious patronage and inadequate reform efforts. In 1972, the language of former 

18 U.S.C. § 611 was incorporated, with minor modifications, into the Federal Election Campaign 

Act of 1971. The FECA provision was in turn amended in 1976 to include subsections (b) and 

(c), and the provision in its entirety was redesignated section 441c. See Section 322, Pub. L. 

94-283 (1976), 90 Stat. 475. The language of the current 2 U.S.C. § 441c(a) is based closely on 

former 18 U.S.C. § 611. 

The origins of the Hatch Act can be traced back to the beginning of the 19th century, and 

to efforts to establish a merit-based government workforce insulated from political influence. In 

1801, President Jefferson issued an executive order stating that while it was the right of a federal 

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.” See 86 Cong. Rec. 2434 (March 6, 1940) (statement of 

Sen. Hatch). See also generally U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers

(“Letter Carriers”), 413 U.S. 548, 557-563 (1973). 

In the aftermath of the Civil War, a civil service reform movement emerged and made 

 

3

 Amendments to Hatch Act of 1939, 1940 Ed., § 61m-1 (July 19, 1940, c. 640, § 5, 54 

Stat. 772), codified at 18 U.S.C. § 611 (originally 18 U.S.C. § 61m-1).

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further efforts to substitute merit for party allegiance in government hiring. See S. Rep. 101-165, 

1989 WL 222486, at *2 (1990); Letter Carriers, 413 U.S. at 557-58. In 1882, the Supreme 

Court upheld an 1876 statute making it illegal “to request [from], give to, or receive from, any 

other officer or employe[e] of the government any money, or property, or other thing of value, 

for political purposes.” Ex parte Curtis, 106 U.S. 371, 372 (1882) (Bradley, J., dissenting). The 

majority opinion explained that this provision was similar to one “that passed in 1868, 

prohibiting members of [C]ongress from being interested in contracts with the United States.” 

Id. at 373 (emphasis added). “The evident purpose of [C]ongress in all this class of enactments 

has been to promote efficiency and integrity in the discharge of official duties, and to maintain 

proper discipline in the public service.” Id. 

These post-Civil War efforts culminated in the Civil Service Act of 1883. See Letter 

Carriers, 413 U.S. at 558. Civil Service Rule I, one part of that Act, provided that “no person in 

the public service is for that reason under any obligations to contribute to any political funds, or 

to render any right to use his official authority or influence to coerce the political action of any 

person or body.” 22 Stat. 404; S. Rep. 101-165 at *17. In 1907, President Roosevelt expanded 

the Civil Service Act’s prohibition in an executive order, stating that “persons who by the 

provisions of these rules are in the competitive classified service, while retaining the right to vote 

as they please and to express privately their opinions on all political subjects, shall take no active 

part in political management or in political campaigns.” S. Rep. 101-165 at *2; Letter Carriers, 

413 U.S. at 558-59. And in 1925, the Corrupt Practices Act barred federal candidates from 

making any promise of employment in return for political support. 84 Cong. Rec. 9616. 

Despite these early reform efforts, the goal of a nonpartisan merit-based federal 

workforce proved elusive. By 1934, for example, although the number of federal agencies had 

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6 

increased to 60, only five of those agencies had been placed under the Civil Service 

Commission. S. Rep. 101-165 at *2. Instead, most agencies continued to be staffed through 

political patronage and the spoils system. Id.4 

In 1939 Senator Carl Hatch introduced S. 1871, officially titled “An Act to Prevent 

Pernicious Political Activities,” commonly referred to as the Hatch Act. S. Rep. 101-165 at *18; 

Letter Carriers at 560; 84 Cong. Rec. 9597-9600. The Hatch Act of 1939 adopted the language 

of both Civil Service Rule I and the Corrupt Practices Act, and expanded coverage to the entire 

federal service. See 86 Cong. Rec. at 2338, 2342 (statement of Sen. Hatch); 84 Cong. Rec., 

9595, 9607, 9616. In particular, Congress sought to eliminate the aggressive political use of 

participants in federal work relief programs, including to promote the election of Democratic 

candidates in recent elections. See Letter Carriers, 413 U.S. at 565; 84 Cong. Rec. 9598, 9603-

04, 9606, 9610; 86 Cong. Rec. 2625, 2582. These abuses included requiring “destitute women 

on sewing projects . . . to disgorge” part of their wages as political tribute or be fired (84 Cong. 

Rec. 9598), and requiring WPA workers to make contributions by depositing $3-$5 of their $30 

monthly pay under the Democratic donkey paperweight on the supervisor’s desk (id. at 9598). 

The Hatch Act of 1939 and its 1940 amendments had two main purposes: to protect the 

federal workforce from being coerced into political activity and to establish a merit-based system 

rather than one based on political fealty. Thus, the amended Act barred government employees 

and contractors from making political contributions and also barred the solicitation of such 

contributions, protecting the employees and contractors from coercion. 84 Cong. Rec. 4191-92; 

 

4

 See S. Hrg. 110-275 at 41, The Perils of Politics in Government: A Review of the Scope 

and Enforcement of the Hatch Act, Hearing Before the Oversight of Government Management, 

the Federal Workforce, and the District of Columbia Subcommittee of the Committee on 

Homeland Security and Governmental Affairs, United States Senate, October 18, 2007, 

http://www.access.gpo.gov/congress/senate. 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 16 of 55
7 

86 Cong. Rec. 9496-97. The Hatch Act also prohibited offering any job or contract as a reward 

for political activity. 18 U.S.C. § 600 (Hatch Act of 1939) (53 Stat. 1147 § 3) (Pub. L. 76-252). 

Concerns about federal contractors played a salient role in the Hatch Act’s passage. 

Although the Senate passed the Hatch Act of 1939 unanimously, 84 Cong. Rec. 9610, 9613, the 

bill was hotly debated in the House, id. at 9594-9639, where bill supporter Congressman 

Ramspeck warned that what “is going to destroy this Nation, if it is destroyed, is political 

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

power.” 84 Cong. Rec. 9616 (July 20, 1939) (statement of Rep. Ramspeck) (emphasis added). 

See Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 138 (Nov. 2010) (just as 

public employees have a dual hold on public policy as both voters and government employees, 

“contractors engage the decision-making processes of elected officials in dual fashion, both as 

voters in the political arena and as entities having special relationships to the same government 

officials outside the electoral process”). 

The House debates were animated by the notorious “Democratic campaign book” scandal 

involving federal contractors, powerfully illustrating the need to protect individual government 

contractors from coercion. 84 Cong. Rec. 9598 (statement of Rep. Taylor). Representative 

Taylor explained (id. at 9599) that the “campaign-book racket” required contractors to buy books 

at inflated prices to assure that they would continue to receive government business: 

Thousands of books were printed and were supposed to have been autographed 

by . . . our present Chief Executive. Agents skilled in the art of high-pressure 

salesmanship were . . . . supplied with data as to the amount of business each 

material and equipment dealer and contractor had received, and the number of 

books each was expected to purchase was based on the amount of business he 

had enjoyed. Of course, this information was supplied by the heads of 

Government agencies.... [Each contractor was] reminded of the business he 

had received from the Government and the prospect of future favors was 

dangled before him. He was then shown the Democratic campaign book . . . 

and told that he was expected to purchase. The victim immediately expressed 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 17 of 55
8 

a willingness to buy a book, thinking, of course, that the price would certainly 

be nominal; but when he was told that he was expected to buy several books, 

the number varying in proportion to the amount of Government business he 

had enjoyed, and that the price of the book was only a measly $250 per copy, 

the victim’s enthusiasm was greatly dampened. . . . It was just a subterfuge to 

levy cold-blooded blackmail, and the victims knew it, but there was no 

alternative if they expected to continue to get Government business. 

Likewise, during debate on the 1940 amendments, federal contractors were viewed as 

similar to federal employees, and so both, some members of Congress argued, should be prohibited from making contributions and from active participation in politics. 86 Cong. Rec. 2575. 

Senator Brown, for example, went so far as to propose that stockholders and officers of corporations with contracts with any government entity should also be prohibited from making contributions. Id. Senator Brown summarized the partisan political concerns that would naturally 

motivate patronage workers and business entities seeking tax advantages, adding that he could 

“apply the same principle . . . to contractors who are doing business with the government of the 

United States.” 86 Cong. Rec. 2580 (statement of Sen. Brown) (emphasis added). Senator 

Brown noted that government contractors voluntarily choose that status and that his amendment 

does not prohibit anyone from political activity, or from making political 

contributions, or from engaging in political management. Every man has the 

right so to conduct himself that he may be excepted from the provisions of the 

amendment by divesting himself of interest in a governmental financial benefit, 

just as every Government employee, if he desires to resign, may except himself 

from the provisions of the Hatch Act. 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. 

86 Cong. Rec. 2616 (March 11, 1940) (statement of Sen. Brown) (emphasis added). Senator 

Brown’s amendment was rejected after much debate, 86 Cong. Rec. 2627, but a similar version 

was reported out of the Judiciary Committee prohibiting “any person or firm entering into a 

contract with the United States . . . or performing any work or services for the Unites States . . . if 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 18 of 55
9 

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.” See H.R. Rep., No. 76-3, vol. 3, p. 12 (June 4, 1940), FEC Exh. 4. 

That provision became the predecessor of section 441c (see supra p. 4) and was upheld in Letter 

Carriers, 413 U.S. at 564.5

 

Concerns about the influence of contractors in the federal workforce and the potential for 

“pay-to-play” arrangements remain, especially as the use of contractors and the privatization of 

the federal workforce has expanded in the last two decades. In March 2009, President Obama 

issued an Executive Order directing the Office of Management and Budget (“OMB”) to develop 

government-wide guidance on the use of government contracts: The Executive Order noted that 

the line between inherently governmental functions performed by government employees and 

private sector contractor functions had been “blurred,” the amount spent on government 

contracts had grown to $500 billion per year by 2008, and agencies had placed “excessive 

reliance” on contracts.6

 Similarly, Congress has held hearings on concerns about the balance 

between government employees and contractors.7 One Senator expressed frustration that the 

 

5

 In 1978, a court upheld section 441c against a First Amendment challenge by a corporate 

contractor. See FEC v. Weinsten and Winfield Mfg. Co., 462 F. Supp. 243, 249 (S.D.N.Y. 1978). 

The court relied primarily on its analysis of a challenge to the broader corporate contribution ban 

in section 441b, but also noted that “there is a greater likelihood that the public will perceive 

corrupt relationships between elected officials and corporations when those corporations have 

previously received Government contracts.” Id. at 249 n.8 (emphasis added). 

6

 See Memorandum [from President Obama] for the Heads of Executive Departments and 

Agencies — Subject: Government Contracting, Mar. 4, 2009, http://www.whitehouse.gov/thepress-office/memorandum-heads-executive-departments-and-agencies-subject-governmentcontracting. 

7

 See S. Hrg. 111-626, Balancing Act: Efforts to Right-Size the Federal Employe[e]-toContractor Mix, , Hearing Before the Oversight of Government Management, the Federal 

Workforce, and the District of Columbia Subcommittee of the Committee on Homeland Security 

and Governmental Affairs, United States Senate, May 20, 2010, 

http://www.gpoaccess.gov/congress/index.html. 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 19 of 55
10 

Committee could not even determine how large the federal contractor workforce had become, id.

at 11-12, and witnesses testified that at some agencies more persons worked as or for government contractors than as federal employees, citing the Department of Homeland Security with 

approximately 188,000 civilian employees and 200,000 contractors, id. at 28,8

 and the United 

States Marshals Services with approximately 5,000 federal employees and 8,000 contractors, id.

at 89.9

 As part of the 2010 Senate hearing, the Government Accountability Office commented: 

Inherently governmental functions require discretion in applying government 

authority or value judgments in making decisions for the government, and as 

such they should be performed by government employees, not private 

contractors. The closer contractor services come to supporting inherently 

governmental functions, the greater this risk of influencing the government’s 

control over and accountability for decisions that may be based, in part, on 

contractor work. 

 

S. Hrg. 111-626 at 60 (footnote omitted).

In sum, Congress and the Executive Branch have long considered regulation of both 

federal employees and contractors necessary to establishing a merit-based workforce free from 

political favoritism and coercion. A ban on contractors making federal campaign contributions is 

at the very core of the Congressional concern with integrity implemented in the provision 

challenged here in section 441c.

ARGUMENT 

I. PLAINTIFFS CANNOT CARRY THEIR HEAVY BURDEN OF SHOWING 

THAT THEY ARE ENTITLED TO A PRELIMINARY INJUNCTION 

A. The Requirements for a Preliminary Injunction 

 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 

 

8

 In another estimate, DHS had approximately 230,000 federal employees and 210,000 

contractors. S. Rep. 111-626 at 122. 

9

 These figures appear not to distinguish between individuals who have direct contracts 

with the government and individuals who work for corporations or other entities that are 

government contractors. 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 20 of 55
11 

clear showing that the plaintiff is entitled to such relief. . . . [It is] never awarded as of right.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008) (citations omitted). “A 

plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, 

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 

equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations 

omitted). See also Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009). Not 

only must a plaintiff make a “clear showing” that the extraordinary remedy is necessary, but it is 

not enough to show “only a possibility of irreparable harm.” Winter, 555 U.S. at 22 (citation 

omitted). Moreover, the D.C. Circuit has read the Supreme Court’s decision in Winter “to 

suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement 

for a preliminary injunction,’” regardless of whether a “sliding-scale analysis” is used to weigh 

the four factors. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (citation omitted). 

 Plaintiffs here shoulder a particularly heavy burden because their request is at odds with 

the purpose of a preliminary injunction, which “is merely to preserve the relative positions of the 

parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981). Rather than seeking to preserve the status quo, plaintiffs seek to “upend” it by asking 

this Court to prevent the Commission from enforcing a statutory provision that has been in place 

for more than 70 years. See Sherley, 644 F.3d at 398. In fact, plaintiffs themselves, by virtue of 

their decisions to become federal contractors, appear to have been subject to the contribution ban 

for one or more years. As demonstrated below, plaintiffs have not met their heavy burden on 

any of the factors necessary for the Court to issue a preliminary injunction to stop the 

enforcement of 2 U.S.C. § 441c. 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 21 of 55
12 

B. Plaintiffs Are Unlikely to Succeed on the Merits of Their First 

Amendment Claim 

The contractor contribution ban in 2 U.S.C. § 441c survives First Amendment scrutiny 

because it is closely drawn to serve important government interests. First, like other limits on 

campaign contributions, it 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. Second, like other 

restrictions on people who work for the government, it helps ensure that federal contracts are 

awarded on merit and that federal contractors are not coerced into political participation. These 

important government interests justify the relatively modest and temporary burden on the 

political expression of federal contractors, who have voluntarily chosen to seek federal funds and 

can engage in many other forms of political expression. 

1. Courts Review Contribution Restrictions Under a “Relatively 

Complaisant” Standard That Requires Only That They Be Closely 

Drawn to Serve Important Government Interests 

 

Statutory provisions like section 441c that merely restrict campaign contributions are 

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

expenditures for speech. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 908-09 (2010)

(discussing the two different standards of review for campaign finance restrictions); Buckley, 424 

U.S. at 23 (same). The Supreme Court has flatly rejected the suggestion that plaintiffs make here 

(Pls’ PI Br. at 16-18): that “strict scrutiny” applies to a provision like section 441c because it 

prohibits all contributions by contractors. 

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 candidate or a candidate’s political 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 22 of 55
13 

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 than do” laws limiting campaign 

contributions. Id.; Buckley, 424 U.S. at 23. Thus, a contribution limit or ban need not satisfy the 

“narrowly tailored” requirement of strict scrutiny, but instead “passes muster if it satisfies the 

lesser demand of being closely drawn to match a sufficiently important interest.” Beaumont, 539 

U.S. at 162 (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88 (2000)) 

(internal quotation marks omitted); see also Randall v. Sorrell, 548 U.S. 230, 253 (2006) 

(plurality opinion) (applying “closely drawn” standard to contribution limit); McConnell v. FEC, 

540 U.S. 93, 138 n.40 (2003) (same). 

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 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). 

 Courts of appeals have recently applied this same relatively relaxed standard in reviewing 

state and local bans on contributions by contractors and lobbyists. See Preston v. Leake, 660 

F.3d 726, 734-35 (4th Cir. 2011) (reviewing ban on contributions by lobbyists); Green Party of 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 23 of 55
14 

Conn. v. Garfield, 616 F.3d 189, 199 (2d Cir. 2010) (reviewing bans on contributions by 

contractors and lobbyists). 

Section 441c is entitled to particular deference because it applies to individuals (and 

entities) who have freely chosen to work for the federal government as contractors. See Connick 

v. Myers, 461 U.S. 138, 151 (1983) (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) 

(“‘[T]he Government, as an employer, must have wide discretion and control over the 

management of its personnel and internal affairs.’”) (Powell, J., concurring)); 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 Cty., 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 through its employees.’”)). 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 predictions of harm used to justify 

restrictions on the speech of the public at large.” Waters, 511 U.S. at 673. 

As plaintiffs stress, many government contractors are similar to government employees in 

important respects (Pls’ PI Br. at 11, 12, 13-14, 21-22, 35 (“plaintiffs are, in essence, little more 

than government employees”)). In recognition of this fact, 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.”). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 24 of 55
15 

2. The Government’s Interest in Protecting the Integrity and 

Effectiveness of Its Workforce and Contractors Justifies Section 

441c’s Ban on Contributions by Those Who Choose Contractor Status 

Section 441c plainly serves “sufficiently important” government interests. Beaumont, 

539 U.S. at 162. As discussed supra pp. 4-9, section 441c was originally part of the 1940 

amendments to the Hatch Act, which was enacted to regulate political activity by federal 

employees after rampant patronage and corruption had undermined trust in the government’s 

workforce and led to the coercive use of that workforce in electoral politics. In Letter Carriers, 

the Supreme Court rejected a 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, and that statute had greater restrictions on political activity than the “marginal” 

burden on speech caused by a contribution limit, McConnell, 540 U.S. at 138.10 

In upholding these Hatch Act restrictions, Letter Carriers identified several “obviously 

important interests” that section 441c also advances. 413 U.S. at 564. The Court found that the 

Act’s restrictions combat 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 found that the statute 

also served the distinct interest in avoiding even the appearance of corruption and bias, since 

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

 

10 Under the Hatch Act, federal employees in the executive branch 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 “[i]nitiating or circulating a partisan nominating petition.” Letter Carriers, 413 U.S. at 576 

n. 21 (quoting 5 C.F.R. § 733.122). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 25 of 55
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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 electoral process should be 

limited.” Id. at 566, 557. The Court found it significant that, although certain activities were 

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. 

 Section 441c serves all of the important interests identified in Letter Carriers, and 

similarly preserves alternative means of political expression for contractors (see infra pp. 23-25). 

Just as federal employees should not be hired for reasons other than merit or subjected to 

political pressure from elected or politically appointed officials, so too should individuals with 

government contracts be insulated from political patronage or coercion. The risks are clear. In 

recent decades, contractors have played an increasingly important role in our federal system. See 

supra pp. 9-10. As plaintiffs emphasize (Pls’ PI Br. at 11, 12, 13-14, 21-22, 35), individual 

contractors may work side-by-side with federal employees and, to a casual observer, may seem 

indistinguishable. Many personal service contracts with the government are quite lucrative — 

the contracts of two of the three plaintiffs in this case, for example, are multi-year contracts 

whose total potential value appears to exceed $800,000 each. See supra p. 2. And such 

contracts should be awarded based on merit. 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 26 of 55
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The government also has an interest in assuring that federal contractors do not feel 

pressure, either explicit or implicit, to contribute to a particular candidate or political party to 

obtain or renew a contract. A deserving federal contractor should not be passed over for lack of 

a contribution or for contributing to the “wrong” party or candidate. By prohibiting all 

contractor contributions, section 441c advances this interest and prevents even the appearance 

that such political coercion or decision-making is taking place.11

Contrary to plaintiffs’ claims (Pls’ PI Br. 29-30), the concern that politics can infect the 

federal contracting process is well-founded, even when elected officeholders do not formally 

approve government contracts. Elected officials are not prohibited by law from suggesting or 

recommending contractors to an agency, and some do.12 Even plaintiffs concede (id. at 30) that 

for “some large or important contracts” the “President or Members of Congress may have a role 

 

11 In recent years, analogous concerns have arisen with respect to whether some federal 

employees may have been hired based on political beliefs rather than merit. See, e.g., 

Department of Justice Inspector General/Office of Professional Responsibility Report on An 

Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the 

Office of the Attorney General, http://www.justice.gov/oig/special/s0807/final.pdf (investigating 

pervasive politicization of hiring in the Department of Justice). The danger of such politicization 

may be more serious for potential federal contractors than federal employees because of 

additional civil service protections available to federal employees. 

12 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 (“Depending on the nature 

of communications ... the intervention of a congressional office in a procurement procedure to 

attempt to ‘influence’ the letting of a contract by a federal agency based on terms or factors other 

than those which the agency may properly consider may involve conduct contrary to proper 

federal contracting principles and administration, as well as general ethical precepts. If a 

Member of Congress does wish to communicate with an agency on behalf of a business or 

individual in his or her district or State, it is sometimes the practice to provide a letter of 

introduction for the constituent business entity or individual, to ask for fair and prompt 

consideration in the award of the contract or contracts, to request to be kept informed of the 

process and, if the Member or the Member’s staff knows or has experience with the individuals 

involved in the business personally, the office may also choose to vouch for the character and 

reputation of the business in the community. In some cases it may be appropriate to arrange for 

interviews or appointments with officials of a federal agency.”) (citations omitted). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 27 of 55
18 

in the procurement process,” yet they offer no principled alternative to the line Congress has 

drawn to eliminate political considerations in government contracting decisions. 

Moreover, even when elected officeholders have no direct involvement in federal 

contracting, the danger of bias and coercion exists because political appointees are ubiquitous in 

government. The majority of agency officials who award and oversee contracts pursuant to 48 

C.F.R. § 1.601(a) are political appointees who owe their own jobs to the Administration; many 

were previously employed as campaign operatives.13 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. Cf., e.g., McConnell, 540 U.S. at 146-47 & n.46 

(describing how indirect influence on a variety of government decision-makers was gained by 

making “soft money” donations to political parties); id. at 148 n.47 (describing how political 

opponents used FEC reports to pressure donors to give to both major parties).14

In sum, several important government interests are well-served by section 441c’s modest 

restriction on federal contractors’ political activity. 

3. Recent Experience at the State and Local Level Has Reinforced the 

Government Interest in Combating Corruption and Its Appearance in 

Connection with Government Contracts 

Recent federal appellate decisions have relied on the government’s interest in combating 

 

13 The 2008 edition of the Government Printing Office’s “Plum Book” listing political 

positions contained about 8,000 such positions in the executive and legislative branches. U.S. 

Senate, Committee on Homeland Security and Government Affairs, S. Prt. 110-36, Policy and 

Supporting Positions (2008); see Lois Romano, The Plum Book: Washington’s Hottest Read, 

Washington Post, Nov. 7, 2008. 

14 Contrary to the plaintiffs’ suggestion that only concerns about corruption or its 

appearance can justify FECA restrictions (Pls’ PI Br. at 28-29), protecting the integrity of the 

federal government from improper outside influence has been deemed 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) (upholding ban on foreign national contributions in 2 U.S.C. 

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

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 28 of 55
19 

corruption and bias in upholding state laws that, like section 441c, limit contributions from 

contractors and lobbyists. In Green Party, 616 F.3d at 189, the Second Circuit upheld a recently 

enacted 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). 

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

contributions from registered lobbyists in North Carolina. 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)). The Fourth Circuit recognized that “[o]ne can hardly imagine another interest more 

important to protecting the legitimacy of democratic government.” Id. 

And in Ognibene v. Parkes, Nos. 09-994; 09-1432, 2012 WL 89358 (2d. Cir. Jan. 12, 

2012), the Second Circuit addressed a law, passed in the wake of a series of scandals, that 

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20 

imposed more restrictive limits on political contributions from individuals who were “doing 

business” with New York City. Id. at *3. 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 *8. 

The important governmental interest in addressing the appearance of corruption is 

distinct and exists even where the risk of actual corruption is low, because that perception 

threatens the public’s faith in democracy. See Shrink Missouri, 528 U.S. at 390 (“Leave the 

perception of impropriety unanswered, and the cynical assumption that large donors call the tune 

could jeopardize the willingness of voters to take part in democratic governance.”); Buckley, 424 

U.S. at 26-27. 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 an 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. 

Green Party, 616 F.3d at 205.15 

Ognibene also noted that it is “not necessary to produce evidence of actual corruption to 

 

15 Plaintiffs wrongly argue (Pls’ PI Br. at 32-33) that section 441c is more akin to the ban 

on contributions by minors struck down in McConnell than the statute at issue in Green Party. 

The Court in McConnell explained, however, that there was “scant evidence” that parents had 

used their minor children as conduits to circumvent the Act’s contribution limits (540 U.S. at 

231-32), and the government did not argue that contributions from children had created a serious 

risk of the appearance of corruption. The government interest in protecting the integrity of its 

workforce and contracting expenditures is strongly supported by the history of the Hatch Act and 

wholly different in kind from the danger of corruption presented by minors’ contributions. 

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demonstrate the sufficiently important interest in preventing the appearance of corruption.” 2012 

WL 89358, at *6 (citing McConnell, 540 U.S. at 150). “[I]f every case of apparent corruption 

required a showing of actual corruption, then the former would simply be a subset of the latter, 

and the prevention of actual corruption would be the only legitimate state interest for 

contribution limits.” Id. at *10; see also McConnell, 540 U.S. at 153.16

4. Section 441c Is Closely Drawn 

Section 441c is closely drawn to serve important government interests. It is a viewpointneutral financing restriction that simply bars contributions by those who choose to enter into 

federal contracts, while leaving them many alternative means of political expression. Plaintiffs 

concede that a ban on contractor contributions might be appropriate in some situations (Pls’ PI 

Br. at 29-30), but they contend that section 441c is not closely drawn because the government’s 

interests are not served by a ban applied to plaintiffs or other individuals. The standard of judicial review for contribution restrictions like section 441c, however, affords substantial deference 

to legislative judgment and does not require Congress to use the least restrictive means available. 

To demonstrate that section 441c is closely drawn, the government need not show that 

the provision has actually prevented actual corruption or that every individual affected by the 

provision would likely cause corruption. See Buckley, 424 U.S. at 29. Such a standard would be 

nearly impossible to meet. Federal contractors have been prohibited from making contributions 

for more than 70 years, so recent proof of its effectiveness may be difficult to find. See FEC v. 

Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001) (“Since there is no recent 

 

16 Plaintiffs argue (Pls’ PI Br. at 30-31) that the law reviewed in Green Party was upheld 

only because of the history of corruption in Connecticut, but that view of the case was 

specifically rejected by the same appellate court just two years later. Ognibene, 2012 WL 89358, 

at *10 (“to require evidence of actual scandals for contribution limits would conflate the interest 

in preventing actual corruption with the separate interest in preventing apparent corruption”). In 

any event, section 441c originated in Hatch Act restrictions designed to combat a long history of 

federal corruption. See supra pp. 4-9. 

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experience with [certain unlawful campaign] spending, the question is whether experience under 

the present law confirms a serious threat of abuse [if the activity were made lawful.] It clearly 

does. Despite years of enforcement of the challenged limits, substantial evidence demonstrates 

how candidates, donors, and parties test the limits of the current law. . .”) (citing Burson v. 

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

evidence to support long-enforced statues); 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)). 

Congress is not required to wait until corruption occurs and becomes detectable before 

taking appropriate prophylactic measures to prevent it. Ognibene, 2012 WL 89358, at *10 

(“Appellants essentially propose giving every corruptor at least one chance to corrupt before 

anything can be done, but this dog is not entitled to a bite.”). And this Court may look to 

Connecticut and elsewhere in evaluating whether section 441c promotes government interests. 

See Shrink Missouri, 528 U.S. at 395 (state can look to other jurisdictions for evidence of 

potential corruption). 

The comparable set of restrictions placed on federal employees is again instructive. In 

United Public Workers of Am. v. Mitchell, 330 U.S. 75, 101 (1947), the Supreme Court 

considered a challenge to the Hatch Act restrictions on political activity from a plaintiff who 

worked as a “roller in the Mint,” a job that “does not involve contact with the public.” The 

plaintiff argued that he should not be restricted because his particular job seemed unlikely to 

corrupt, but the Court rejected the argument (id.) (emphasis added): 

For regulation of employees it is not necessary that the act regulated be 

anything more than an act reasonably deemed by Congress to interfere with 

the efficiency of the public service. There are hundreds of thousands of United 

States employees with positions no more influential upon policy 

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23 

determination than that of [the plaintiff]. Evidently what Congress feared was 

the cumulative effect on employee morale of political activity by all 

employees who could be induced to participate actively. It does not seem to 

us an unconstitutional basis for legislation. 

Plaintiffs also suggest (Pls’ PI Br. at 38) that the contribution limits that generally apply 

to individuals would be sufficient to serve section 441c’s purposes, but the situation of 

government contractors is plainly unlike that of the public at large, and the precise restriction 

needed is for Congress to determine, not the judiciary. See Randall, 548 U.S. at 248 (“[W]e have 

no scalpel to probe each possible contribution level. We cannot determine with any degree of 

exactitude the precise restriction necessary to carry out the statute’s legitimate objectives. ... 

Thus ordinarily we have deferred to the legislature’s determination of such matters.” (internal 

citations and quotation marks omitted)); 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. 

a. Section 441c Allows Federal Contractors to Engage in 

Numerous Other Forms of Political Expression 

Section 441c allows ample alternative forms of political expression for persons who elect 

to become federal contractors. Federal contractors are not prohibited from speaking about 

candidates, volunteering for campaigns, raising funds for candidates or parties, or engaging 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. Plaintiffs acknowledge that the purpose 

of this lawsuit is to enable them to “use their contributions to make public statements of support 

in this crucial election year” (Pls’ PI Br. at 38), but plaintiffs retain the right to make “public 

statements of support” in many other ways, a fact that courts have considered critical in 

upholding contribution bans. 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 

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24 

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 ... make 

speeches, telephone calls, and arrange meetings between the candidate and third parties for 

purposes of fundraising”); Casino Ass’n of La. v. State, 820 So. 2d 494, 509 (La. 2002) (state 

statute barring campaign contributions by those in casino industry was “closely drawn” because 

it “focus[ed] precisely on the problem of campaign contributions by the gaming industry”).17 

When the Supreme Court has reviewed various restrictions on those seeking government 

funds, it has found it critical whether they have other ways to achieve their goals. See Rust v. 

Sullivan, 500 U.S. 173, 196 (1991) (upholding law barring use of public funds for abortions 

because grantee “can continue to perform abortions, provide abortion-related services, and 

engage in abortion advocacy; it simply is required to conduct those activities through programs 

that are separate and independent from the project that receives Title X funds.”); Regan v. 

Taxation Without Representation of Wash., 461 U.S. 540, 545-46 (1983) (upholding law 

excluding lobbying organizations from certain tax-exempt status because they remained free “to 

receive deductible contributions to support ... nonlobbying activit[ies]. ... Congress has not 

 

17 Plaintiffs rely (Pls’ PI Br. at 31-32) on Dallman v. Ritter, 225 P.3d 610 (Colo. 2010), to 

argue that section 441c is not closely drawn, but the Colorado statute at issue there involved a 

prohibition on contributions to state and local officials of “over three thousand special districts 

within the state” and thus applied to thousands of elected officials such as school board members 

and county commissioners. Id. at 627. The Supreme Court of Colorado itself distinguished 

2 U.S.C. § 441c as applying “only to members of Congress, the President, and the Vice 

President, thus tailoring its restrictions to individuals with oversight responsibility.” Id. at 628. 

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infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply 

chosen not to pay for [appellee’s] lobbying.”). 

By regulating only contributions, Congress has carefully drawn section 441c to address 

the financial activity it deemed most likely to influence officeholders, 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” but limit contributors’ ability “to influence federal 

elections, federal candidates, and federal officeholders”). Indeed, the alternatives available to 

plaintiffs are far more expressive than the largely symbolic act of making a contribution.18

b. Federal Contractors Have Voluntarily Chosen the Benefits of 

Their Contracts, and They Can Easily Avoid Section 441c by 

Not Accepting Federal Funds 

Section 441c is also closely drawn because it does not compel any individual to become a 

federal contractor or to forego making contributions. When persons who wish to receive 

government funds have an alternative to complying with a regulation, then the decision to 

comply is not an act compelled by the government, even if their constitutional rights might have 

been infringed if compliance had been mandatory. In Buckley, the Supreme Court ruled that the 

campaign expenditure limitations for presidential candidates receiving public funding did not 

 

18 Section 441c is also consistent with the First Amendment because it is viewpoint neutral. 

“The government must abstain from regulating speech when the specific motivating ideology or 

the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. 

Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Section 441c applies no 

differently to any viewpoint; rather, it simply prohibits all contributions by contractors. See Hill 

v. Colorado, 530 U.S. 703. 723-25 (2000) (holding that statute limiting protests at abortion 

facilities drew no distinctions between types of speech and so was viewpoint neutral); Ruggiero 

v. FCC, 317 F.3d 239, 244 (D.C. Cir. 2003) (en banc) (rejecting argument that regulation 

applying only to unlicensed broadcasters was viewpoint discrimination: “[T]he [regulation] 

applies equally to all unlicensed broadcasters regardless of the motivation for, or the message 

disseminated by, their illegal broadcasting.”). 

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violate the First Amendment because the candidates could choose to decline public funding 

altogether 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”). 

Similarly, the Supreme Court has held that the 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 at all. Selective 

Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 856-57 (1984); see also 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). 

Plaintiffs and other individuals can easily avoid the restriction in section 441c. They 

need only choose not to seek federal funds through federal contracts. 

c. Section 441c Is Not Underinclusive 

Plaintiffs argue that the prohibition in 441c is underinclusive and therefore not “closely 

drawn” because it prohibits contributions from federal contractors but does not similarly restrict 

contributions from recipients of grants, loans, or admission to military academies. (Pls’ PI Br. at 

36-37.) But Congress is not required to address every conceivable issue. Rather, it is permitted 

to address the problems it perceives as the most egregious. 

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The D.C. Circuit rejected a similar argument in Blount. In a 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 rejected this 

argument and explained: 

[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, 317 F.3d at 246 (rejecting 

argument that FCC regulation was underinclusive because it only prohibited “broadcast pirates,” 

but not other criminals, from receiving FCC licenses).19

C. Plaintiffs Are Unlikely to Succeed on the Merits of Their Equal 

Protection Claim 

Contrary to plaintiffs’ contention, section 441c satisfies the Equal Protection guarantee of 

the Fifth Amendment. The Court reviews plaintiffs’ equal protection challenge under the 

“rational basis” standard because section 441c concerns no fundamental rights. Section 441c 

satisfies that review because it involves complex legislative judgments about how to regulate 

government contractors and treats them rationally in light of their role in carrying out 

government functions. 

 

19 Plaintiffs also suggest that the additional restriction on spouses of contractors making 

contributions in the law reviewed in Green Party was “a help, not a hindrance, to upholding the 

law because it supported the stated purpose of the statute, rather than undermining it.” (Pls’ PI 

Br. at 31.) The Green Party opinion says no such thing. See 616 F.3d at 203-04 (upholding ban 

on spousal contributions without any suggestion that the statute would not be upheld without it). 

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1. Plaintiffs’ Equal Protection Claim Is Subject to Highly Deferential 

Review Under the Rational Basis Standard 

In the absence of a fundamental right or a suspect class, courts use the deferential 

“rational basis” standard in reviewing claims that legislation violates the Constitution’s 

guarantee of equal protection, whether made under the Equal Protection Clause of the Fourteenth 

Amendment or the Due Process Clause of the Fifth Amendment. 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 is not to 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)). Plaintiffs attacking a legislative classification on rational-basis review have 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. A classification does not fail rational-basis 

review because it ‘is not made with mathematical nicety or because in practice it results in some 

inequality.’” (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970))). 

A statute challenged for violating equal protection is analyzed under strict scrutiny only if 

the 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). Plaintiffs do not argue here, nor could they, that federal 

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contractors make up a “suspect class” akin to a racial minority. Their argument for strict 

scrutiny therefore hinges on whether making campaign contributions constitutes a “fundamental 

right.” It does not. Giving money to a candidate or political committee is plainly not such a 

right, and no court has ever held otherwise. Plaintiffs themselves repeatedly acknowledge that 

the cases upon which they rely did not even contemplate equal protection arguments.20 

In two cases that are on point, courts not only declined to apply strict scrutiny, but 

rejected equal protection arguments — disposing of them in footnotes. In Blount, the D.C. 

Circuit considered a law prohibiting contributions from municipal securities professionals to 

political campaigns of certain state officials. The petitioner argued, among other claims, that the 

law “violates ... 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 bankcontrolled 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 

 

20 See, e.g., Pls’ PI Br. at 18 (“Although the Supreme Court has had several cases 

challenging limits on campaign contributions, it has not analyzed them under the Equal 

Protection Clause.”); id. at 19 (“But in none of these cases [Buckley, Randall, Beaumont, FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238 (1986), and McConnell] did the Court discuss the 

issue in terms of the appropriate Equal Protection standard of review.”); id. at 26 n.6 (re Green 

Party); id. at 34 (re Ognibene); id. at 35 (re Preston). Buckley addressed one equal protection 

argument — that the presidential public financing scheme discriminated against “minor parties” 

by providing them with less funding than major parties — but the Court rejected the argument, 

applying less than “exacting scrutiny.” 424 U.S. at 93-94. 

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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 treatment of the claim 

forecloses any credible suggestion that it applied strict scrutiny.21

Moreover, the Supreme Court has identified only a small group of “fundamental rights” 

whose regulation requires strict scrutiny in equal protection analysis. For example, the Court has 

applied strict scrutiny to statutes that discriminate in voting, because the right to vote “is 

preservative of other basic civil and political rights.” See Kramer v. Union Free Sch. Dist., 395 

U.S. 621, 626 (1969); see also Reynolds v. Sims, 377 U.S. 533, 562 (1964) (applying higher level 

of scrutiny in striking down Alabama apportionment scheme that gave voters in rural areas more 

representatives per capita than urban voters). 

Plaintiffs argue that contributing to candidates and their political committees should be 

treated similarly to voting (Pls’ PI Br. at 27), but such contributions “lie closer to the edges than 

to the core of political expression,” Beaumont, 539 U.S. at 161, and thus cannot amount to a 

fundamental right protected by the Constitution. 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. For example, in San Antonio Independent 

School District, 411 U.S. at 17, the Court upheld under rational basis review a Texas law that 

provided unequal resources to different school districts, rejecting the claim that education 

constituted a fundamental right because of its importance and relationship with other rights, such 

 

21 Plaintiffs argue that the “closest factual case” to theirs (Pls’ PI Br. at 19) is the portion of 

McConnell that struck down a prohibition on contributions by minors, 540 U.S. at 232, but as 

plaintiffs themselves acknowledge (id.), that ruling was based on the First Amendment. See

supra p. 20 n.15. 

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as the right to vote.22 

In short, plaintiffs’ contention that Congress’s decision to ban federal campaign 

contributions by persons who elect to accept federal funds as contractors offends the Equal 

Protection Clause is subject to rational basis review. It can only be struck down if plaintiffs can 

demonstrate to the Court that Congress’s judgment was not reasonable.23

2. The Line Congress Drew Is Rational — the Court Should Defer to 

Congress Regarding the Precise Restrictions Appropriate for Those 

Who Perform Government Work 

The Supreme Court has noted that it has “no scalpel to probe” specific limits on 

contributions. Buckley, 424 U.S. at 30; see also Randall, 548 U.S. at 248 (“We cannot determine 

with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate 

objectives.”). The Court has recognized that “the legislature is better equipped to make such 

empirical judgments ... .” Randall, 548 U.S. at 248. Such deference is particularly appropriate 

here, where, under equal protection analysis, Congress’s complex judgment about the varying 

restrictions appropriate for those who perform federal government work is subject to only 

 

22 The mere fact that campaign contributions include a symbolic speech component does 

not mean making them is a “fundamental right” for purposes of equal protection analysis. 

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”). 

23 Plaintiffs suggest that the Court can rule on a “more narrow ground” by relying on the 

Equal Protection Clause rather than the First Amendment. (See Pls’ PI Br. at 18.) But plaintiffs 

do not explain how such reliance would be narrower. See DLS, Inc. v. City of Chattanooga, 107 

F.3d 403, 411 n.7 (6th Cir. 1997) (“In cases such as this [law regulating adult establishments], 

the Equal Protection Clause adds nothing to the First Amendment analysis; if a sufficient 

rationale exists for the ordinance under the First Amendment, then the City has demonstrated a 

rational basis for the alleged disparate treatment under the Equal Protection Clause.”) (citations 

omitted). 

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rational basis review. 

As explained supra pp. 4-9, the precise restrictions on the political activities of 

government employees and contractors have evolved over more than a century, as Congress has 

reacted to recurring incidents of corruption and changes in the roles of government employees 

and contractors. 

Plaintiffs argue that their work is similar to that of federal employees, who themselves 

perform a wide range of jobs and abide by different sets of Hatch Act restrictions, depending 

upon the agency they work for and how they were appointed. For example, currently 17 federal 

agencies are designated as “further restricted” under the Hatch Act.24 An FEC lawyer who 

civilly enforces the FECA is subject to greater political restrictions (including contribution 

restrictions) than a Department of Justice lawyer who criminally enforces the statute, who in turn 

has greater restrictions than a lawyer in the Office of the Solicitor General, which defends FECA 

before the Supreme Court. 5 C.F.R. §§ 734.401, 734.413. These nuanced lines entail exactly the 

kind of legislative judgments that the courts have no “scalpel” to probe. Buckley, 424 U.S. at 30. 

3. The Government Has a Rational Basis for Treating Federal 

Contractors Differently from Federal Employees 

Plaintiffs argue that federal employees “are more favorably treated than are the plaintiffs 

regarding the making of contributions in federal elections” (Pls’ PI Br. at 19), but making 

contributions is only one, largely symbolic form of political activity regulated by federal law. 

And plaintiffs do not demonstrate that, overall, federal employees are “more favorably treated.” 

In fact, in some cases, federal employees are subject to more severe restrictions than federal 

 

24 Those agencies or agency divisions include, for example, the Federal Election 

Commission, Federal Bureau of Investigation, Central Intelligence Agency, Merit Systems 

Protection Board, Office of Special Counsel, and the Criminal Division of the Department of 

Justice. 5 U.S.C. § 7323(b)(2)(B). 

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contractors. 

 Unlike federal contractors, for example, federal employees are not permitted to solicit 

campaign donations or invite people to political fundraisers. See 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 C.F.R. §§ 734.408-12. In 

addition to the above restrictions, FEC employees are prohibited from making certain campaign 

contributions. 5 C.F.R. § 734.413. 

But even if campaign contributions are viewed in isolation, plaintiffs have not met their 

burden “to negative every conceivable basis which might support” treating federal contractors 

differently from federal employees. See Beach Commc’ns, 508 U.S. at 315 (citation omitted). 

Congress could have rationally concluded that the important government interests section 441c 

promotes (see supra pp. 15-18), including protecting workers from coercion, were already being 

served adequately with respect to federal employees, but that a ban on contributions was needed 

for contractors. Unlike federal contractors, federal employees are protected by the Merit 

Systems Protection Board (“MSPB”), an independent, quasi-judicial agency in the executive 

branch. See 5 U.S.C. §§ 1201-1209.25 No similar agency is tasked with enforcing merit-based 

federal contracting. 

 

25 The MSPB has the power to hear and decide complaints when an agency is alleged to 

have violated the Merit System Principles articulated in the U.S. Code. 5 U.S.C. §§ 1214, 1215, 

2301(b)(1)-(2). The law specifies 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 “[e]mployees should be ... protected against ... coercion for 

partisan political purposes ... .” 5 U.S.C. §§ 2301(b)(2), (b)(8)(A). 

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34 

4. The Government Has a Rational Basis for Treating Corporate 

Contractors Differently From Individual Contractors 

Plaintiffs also argue that section 441c is unconstitutional because corporations, 

individuals associated with those corporations, and individuals who control LLCs with federal 

contracts all “are more favorably treated than are the plaintiffs regarding the making of 

contributions in federal elections.” (Pls’ PI Br. at 19.) Plaintiffs’ argument is doubly flawed. 

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 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 (citation omitted). 

But in this case, corporate contractors and individual contractors are treated almost 

identically. Both are prohibited from making campaign contributions. See 2 U.S.C. §§ 441b(a), 

441c. If a corporation wishes to help support a candidate, it may establish a separate segregated 

fund and solicit money from its “stockholders and their families and its executive or 

administrative personnel and their families” for the purpose of making contributions. 2 U.S.C. 

§§ 441b(b)(4)(A)(i); 441c(b). Similarly, if an individual contractor wishes to help a candidate, 

she can solicit eligible persons to make direct contributions to that candidate. And, in any event, 

plaintiffs have not alleged that they would have an interest in creating a separate segregated fund 

to pool resources with other individuals. Rather, plaintiffs’ stated desire is to contribute their 

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35 

own money, which corporations — like government contractors — are also barred from doing. 

Plaintiffs also argue that section 441c is unconstitutional because the “officers, directors, 

employees, and stockholders” of corporations with federal contracts are permitted to make 

campaign contributions. (Pls’ PI Br. at 22.) Plaintiffs’ argument runs counter to settled 

principles of corporate jurisprudence. It is beyond dispute that, 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 for the debts or misconduct of the corporation. 1 William Meade Fletcher, 

Cyclopedia of the Law of Corporations § 25 (rev. ed. 2012). 

Congress could have come to the reasonable conclusion that, for example, there is a 

lesser appearance of corruption when the entity receiving the government contract is different 

from the individual making the contribution. Congress easily could have concluded that there is 

a lesser risk of corruption, or appearance of corruption, when an employee or shareholder of a 

major federal contractor such as Boeing makes a contribution to a federal candidate compared to 

an individual who freely enters into a federal contract. Congress might have reached the 

conclusion 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. 

Finally, plaintiffs argue (Pls’ PI Br. at 25-26) that section 441c violates the Equal 

Protection Clause because individuals can create a limited liability corporation (“LLC”), have 

the LLC contract with the government, and thereby avoid the prohibition on making individual 

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36 

contributions.26 Given this alternative way to structure one’s contracting business, it is difficult 

to see how section 441c creates an unconstitutional burden. Establishing an LLC is not 

particularly onerous. For example, Maryland requires only a one-page form and payment of 

$141. See Md. State Dep’t of Assessments and Taxation, Articles of Organization for LLC form 

and instructions, http://www.dat.state.md.us/sdatweb/artorgan.pdf.27 

D. Plaintiffs Fail to Demonstrate Irreparable Harm 

Plaintiffs utterly fail to meet their burden of demonstrating that they will likely suffer 

irreparable harm without the requested injunctive relief. See Winter, 555 U.S. at 22. Plaintiffs 

devote only one paragraph of their brief to allegations of irreparable harm, arguing that they 

wish to make contributions “in this crucial election year.” (Pls’ PI Br. at 38.) But a mere 

allegation of harm is insufficient for entry of a preliminary injunction, even in the First Amendment context. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion); Christian Knights of 

the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 

1990) (explaining that irreparable injury was caused when “First Amendment rights were totally 

denied by the disputed Government action”). Moreover, the presumption that irreparable harm 

occurs when a challenged regulation “directly limits speech,” Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006), does not apply here, because the 

 

26 The facts underlying this claim are confusing. Plaintiffs argue that they are similarly 

situated to the LLC owners because it “makes no difference to the agency whether an individual 

has formed an LLC or enters a contract with the agency directly.” (Pls’ PI Br. at 25.) But 

plaintiffs also acknowledge that “[i]n all likelihood,” USAID would not approve a contract with 

LLCs created by plaintiffs Miller or Brown, if they had them. (Id. at 26 n.7.) 

27 Plaintiffs argue that Citizens United foreclosed the argument that plaintiffs’ rights are not 

infringed by having to establish an LLC to make contributions, because that decision stated that 

permitting corporations to use separate segregated funds was inadequate to protect their right to 

make expenditures. (See Pls’ PI Br. at 26-27.) But Citizens United did not concern 

contributions, and FECA had prohibited corporations from using any money from their general 

treasuries for expenditures. Corporations that wish to make contributions must still establish 

PACs for that purpose. See Beaumont, 539 U.S. at 147-48. 

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37 

challenged restrictions merely limit how much money plaintiffs can give, not their ability to 

speak. 

1. Plaintiffs Voluntarily Became Federal Contractors, Control the 

Timing of That Status, and Delayed Seeking Emergency Relief 

Plaintiffs’ purported irreparable harm arises from their own choice to become federal 

contractors, not from coercive governmental action. Plaintiffs are experienced professionals who 

voluntarily chose to receive the benefits of doing business with the federal government and 

entered into contracts of limited duration. They are not irreparably harmed by accepting the 

consequences of their own financial choices. See supra pp. 25-26.

The ban on making contributions persists only as long as plaintiffs’ contracts, so the 

restriction is temporary and completely within plaintiffs’ control. The claim of irreparable harm 

falls particularly short for plaintiff Wagner, whose contract will shortly end on April 2, 2012. 

Wagner alleges that she “expect[s]” to be “offered other similar opportunities in the future” 

(Wagner Decl. ¶ 4 (Doc. No. 10-2)), but admits having “no short-term plans to seek another one 

from ACUS” (Pls’ PI Br. at 39). The other two plaintiffs have chosen to work as federal 

contractors for years, but delayed filing suit until November 2011.28 

When “an application for [a] preliminary injunction is based upon an urgent need for the 

protection of [a] Plaintiff’s rights, a long delay in seeking relief indicates that speedy action is 

not required,” Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 

 

28 Plaintiffs provided evidence that the instant lawsuit has been in development since at 

least 2010. Declaration of Jonathan Tiemann ¶ 6 (Doc. No. 10-6). Plaintiff Brown has been 

aware of the federal contractor ban in section 441c since at least 2008, when he received an 

advisory opinion from the Commission explaining that the prohibition applied to his conduct. 

See FEC Advisory Opinion 2008-11, 

http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=2787. Brown nonetheless signed 

another contract with USAID on September 30, 2011, shortly before filing this suit. See FEC 

Exh. 2. 

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38 

1989) (internal quotation marks omitted), even when First Amendment rights allegedly are at 

issue. See, e.g., Anderson v. FEC, 634 F.2d 3, 5 (1st Cir. 1980) (denying preliminary injunction 

when “[p]laintiffs did not commence this action until late in the campaign”); Charlesbank Equity 

Fund II v. Blinds To Go, Inc., 370 F.3d 151, 163 (1st Cir. 2004) (plaintiff’s “cries of urgency are 

sharply undercut by its own rather leisurely approach to the question of preliminary injunctive 

relief”); Tenacre Foundation v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) (finding preliminary 

injunction unwarranted when seven months elapsed in seeking the injunction). 

2. Plaintiffs Have Alternative Avenues to Express Their Electoral Views 

As explained supra pp. 23-25, section 441c leaves plaintiffs ample alternative ways to 

express their political views even while they are federal contractors. Besides being able to vote 

for the candidates of their choice, federal contractors may volunteer in a variety of ways to help 

candidates’ campaigns, political parties, and other political committees. For example, they can 

directly participate in volunteer campaign activity for candidates of their choice, send emails and 

make phone calls expressing their views of candidates and political parties, discuss their political 

views with anyone they wish, put bumper stickers on their vehicles, wear campaign logo 

T-shirts, and erect yard signs. See 2 U.S.C. § 431(8)(B); 11 C.F.R. §§ 100.74-100.77. 

 3. The Preliminary Injunction Plaintiffs Seek Would Not Prevent Any 

Irreparable Harm and Would Provide at Most an Illusory Remedy 

Although the gist of plaintiffs’ complaint is that they seek a court order permanently 

declaring it lawful for them to make contributions, the preliminary relief they seek in the pending 

motion would not provide declaratory relief, even temporarily. Plaintiffs seek only an injunction 

against the Commission. Moreover, as explained below, even if they were to seek temporary 

declaratory relief, the Court cannot provide a preliminary ruling that would forever legalize 

contributions that plaintiffs might make before a final judgment in this case. 

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39 

In their proposed order, plaintiffs merely seek to enjoin the Commission “pending a final 

judgment in this case . . . from enforcing 2 U.S.C. § 441c against the plaintiffs in this action, 

including referring any matter involving 2 U.S.C. § 441c and plaintiffs to the Department of 

Justice or any other agency of the United States for enforcement.” ([Proposed] Order Granting 

Plaintiffs’ Motion for a Preliminary Injunction) (Doc. No. 18-5 at 2)). But plaintiffs do not 

present any evidence that would support such relief. They do not allege, for example, that 

anyone has filed a complaint against them with the Commission, or that the Commission has 

taken any enforcement action against them or sent a referral to another agency. Nor do plaintiffs 

allege that any such action is imminent. 

Even if the Commission were to begin an investigation or other enforcement action, such 

steps would not cause plaintiffs irreparable harm, and they have made no allegations to the 

contrary. Any potential expense associated with a prospective FEC enforcement proceeding 

would not constitute irreparable harm. The courts have long held that “the expense and 

annoyance” of agency proceedings do “not constitute irreparable injury,” but are merely “part of 

the social burden of living under government.” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 

244 (1980) (internal citations and quotation marks omitted).29 Thus, there is no factual or legal 

basis for granting the specific relief plaintiffs now seek. 

The relief requested in plaintiffs’ complaint, unlike the proposed order accompanying 

their pending motion, goes much further. Each plaintiff states that he or she would like to make 

federal campaign contributions but is “unwilling to make any such contribution absent a court 

order authorizing [him or her] to do so” (Am. Compl. ¶¶ 5, 7, 8), and the prayer for relief asks 

 

29 Moreover, if enforcement litigation were someday commenced against plaintiffs, they 

would then have a full opportunity to present their constitutional argument de novo to a federal 

court before they could be subject to any penalties. See 2 U.S.C. §§ 437g(a)(4)-(6). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 49 of 55
40 

that the Court “[d]eclare that 2 U.S.C. § 441c as applied to plaintiffs violates the Fifth and First 

Amendments to the Constitution” (Id. at 9 ¶ B). To the extent that plaintiffs are implicitly 

requesting such relief as the predicate for the injunction they now seek, the Court cannot provide 

it. At this stage, even if the Court were to decide that plaintiffs are likely to succeed on the 

merits, it could not permanently “authorize” the legality of any contributions plaintiffs might 

make during the pendency of a preliminary injunction. Any “preliminary declaratory relief” (if 

such relief even exists) concerning section 441c(a)’s constitutionality as applied to plaintiffs 

would thus be illusory. See Alpha Capital Anstalt v. Ness Energy Int’l, Inc., No. 10-1218-D, 

2011 WL 232393, at *12 (W.D. Okla. Jan. 24, 2011) (citing cases noting skepticism about 

whether “preliminary declaratory relief” is ever available); Crowley Cutlery Co. v. U.S., 849 

F.2d 273, 279 (7th Cir. 1988) (“The plaintiff in a declaratory-judgment action is not seeking 

immediate relief, and judges ought to be alert to the possibility that he may be trying to enlist 

them in a tactical maneuver undeserving of the expenditure of federal judicial resources.”) 

If the Commission eventually prevails on the merits before this Court or a higher court — 

or if a preliminary injunction were simply reversed on appeal — under the retroactivity doctrine 

the courts must treat any action taken by plaintiffs during the pendency of the preliminary 

injunction as governed by the law as determined in the final decision of the case. See James B. 

Beam Distilling Co. v. Georgia, 501 U.S. 529, 532 (1991); Harper v. Virginia Dep’t of Taxation, 

509 U.S. 86, 97-98 (1993). Under that doctrine, if upon further review a court determines that a 

legislative enactment was in fact constitutional, it is applied as if it had always been in effect. 

“[A]n opinion announcing a rule of federal law ... ‘appl[ies] retroactively to the litigants then 

before the Court.’” Harper, 509 U.S. at 97-98 (quoting Beam, 501 U.S. at 539 (opinion of 

Souter, J.)). Moreover, “when th[e] Court applies a rule of federal law to the parties before it, 

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41 

that rule is the controlling interpretation of federal law and must be given full retroactive effect 

in all cases still open on direct review and as to all events, regardless of whether such events 

predate or postdate our announcement of the rule.” Harper, 509 U.S. at 97. 

Because a preliminary injunction is by its very nature a temporary remedy meant to 

preserve the status quo, it does not create a permanent or appeal-proof blanket of immunity for 

actions taken during the period in which it is in effect. “Neither the terms of the preliminary 

injunction nor prior equity practice provides any support for an interpretation of the District 

Court’s order as a grant of total immunity from future prosecution. More fundamentally, federal 

judges have no power to grant such blanket dispensation from the requirements of valid 

legislative enactments.” Edgar v. MITE Corp., 457 U.S. 624, 648-49 (1982) (Stevens, J. 

concurring).30 See also In re UAL Corp., 412 F.3d 775, 779-80 (7th Cir. 2005) (discussing 

various fact patterns that required the courts, upon reversing an incorrect injunction, to restore 

the correct state of affairs “which had been valid all along”); Suster v. Marshall, 149 F.3d 523, 

527 (6th Cir. 1998) (citing Justice Stevens’ concurrence in MITE); Donaldson v. U.S. Dep’t of 

Labor, 930 F.2d 339, 346 (4th Cir. 1991) (parties’ action during the period of the preliminary 

injunction “was taken under the manifest legal and practical risk that their underlying claim 

might ultimately fail on the merits, thereby exposing them to whatever remedy, other than the 

preventive one they had forestalled, might then be available”) (footnote omitted). 

In sum, plaintiffs have neither alleged nor demonstrated any irreparable harm from any 

hypothetical Commission enforcement action against them, and because “declaratory judgments 

 

30 Although Justice Stevens’ concurrence was not joined by any other Justice, only Justices 

Marshall and Brennan, in dissent, expressed the view that the “injunction would have barred the 

Secretary from seeking either civil or criminal penalties for violations of the Act that occurred 

during [the] period” the preliminary injunction was in effect. MITE Corp., 457 U.S. at 656 

(Marshall, J. dissenting). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 51 of 55
42 

should . . . be denied when they would serve no useful and proper purpose,” Virginians Against a 

Corrupt Congress v. Moran, 805 F. Supp. 75, 78 (D.D.C. 1992) (citation omitted), the Court 

should deny plaintiffs’ implicit request to declare preliminarily that section 441c(a) is 

unconstitutional as applied to contributions they might make before a final judgment. 

E. The Balance of Harms Weighs in Favor of the Commission and the Public 

Enjoining the Commission from enforcing the federal contractor restriction in 2 U.S.C. 

§ 441c would substantially injure the Commission and the public. Plaintiffs concede that the 

interests of the Commission and the public coincide, but they claim that an injunction would 

harm neither interest. (See Pls’ PI Br. at 38.) However, “any time a State is enjoined by a court 

from effectuating statutes enacted by representatives of its people, it suffers . . . injury.” New 

Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in 

chambers); see also Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000) (“It is in 

the public interest for courts to carry out the will of Congress and for an agency to implement 

properly the statute it administers.”). 

Moreover, the “presumption of constitutionality [that] attaches to every Act of Congress” 

is “an equity to be considered in favor of [the government] in balancing hardships.” Walters v. 

Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). 

That presumption “‘is not merely a factor to be considered in evaluating success on the merits, 

but an equity to be considered in favor of [the government] in balancing hardships.’” Bowen v. 

Kendrick, 483 U.S. 1304 (1987) (Rehnquist, C.J., in chambers) (quoting Walters, 468 U.S. at 

1324; bracketed words added). “[A] court sitting in equity cannot ‘ignore the judgment of 

Congress, deliberately expressed in legislation.’” U.S. v. Oakland Cannabis Buyer’s Co-op., 532 

U.S. 483, 497 (2001) (quoting Virginia R. Co. v. Railway Emps., 300 U.S. 515, 551 (1937)). 

Case 1:11-cv-01841-JEB Document 25 Filed 03/01/12 Page 52 of 55
43 

The imminent harm to the public if the Commission cannot enforce the statutory ban 

against federal contractor contributions far outweighs plaintiffs’ self-selected and temporary 

inability to make contributions. In these key months leading up to the presidential election, a 

lifting of the challenged statutory provision could undermine the public’s confidence in the 

integrity of both the federal campaign finance system and the federal contracting process. The 

statutory provision at issue has been in effect for more than 70 years, reflecting Congress’s 

judgment that it continues to serve vital government interests. The settled nature of regulatory 

activity involving section 441c counsels against halting enforcement of the provision without 

the benefit of plenary review. “Should this Court enter the injunction, the next [few] months of 

election law and enforcement would likely become a ‘wild west’ of . . . contributions without 

the challenged regulations in place.” Real Truth About Obama v. FEC, No. 3:08-CV-483, 2008 

WL 4416282, at *16 (E.D. Va. 2008) (denying motion for preliminary injunction) aff’d, 575 

F.3d 342 (4th Cir. 2009), vacated and remanded on other grounds, 130 S. Ct. 2371 (2010).

Plaintiffs suggest (Pls’ PI Br. at 38-39) that the only thing at stake here is the impact of 

contributions from three individuals in 2012, but that argument ignores both the power of 

precedent and the nature of the provision at issue. It is also at odds with their own complaint, 

which alleges that section 441c is unconstitutional not only as applied to plaintiffs, but also as 

applied to “other individuals who have contracts with the federal government.” (Am. Compl. 

¶ 19; see also Pls’ PI Br. at 15, 22, 28.) A preliminary injunction here could set a precedent 

equally applicable to the hundreds of other personal service contractors plaintiffs allege work at 

USAID (see PI Br. at 13), not to mention thousands of contractors at other agencies. Plaintiffs 

offer no principled way to distinguish their own situations from those of other individual 

contractors. Even an injunction purportedly limited to the three plaintiffs could create significant 

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44 

confusion and uncertainty as to the state of the law. 

Moreover, plaintiffs’ myopic view that isolated violations of federal statutes would cause 

no real harm would undermine FECA — and most other laws. Like other important prophylactic 

rules, section 441c would unravel if individuals could obtain as-applied exemptions by 

professing good intentions or noting that their exemptions, in isolation, might not appear to do 

much harm. The Supreme Court has rejected just such arguments. In Buckley, for example, the 

Court “assumed” that “most large contributors do not seek improper influence over a candidate’s 

position or an officeholder’s action.” 424 U.S. at 29. The Court held, however, that the 

difficulty of isolating suspect contributions and Congress’s interest in guarding against the 

inherent appearance of abuse justified universal application of the then-$1,000 individual 

contribution limit. Id. at 29-30. 

More generally, the operation of prophylactic statutory rules cannot depend upon an 

in-depth analysis of the extent to which the interests underlying them are served in each 

particular situation. In Hill v. Colorado, 530 U.S. at 729, for example, the statute banned 

“unwelcome demonstrators” from coming closer than eight feet to people entering health care 

facilities. The Court recognized that the statute’s “prophylactic approach . . . will sometimes 

inhibit a demonstrator whose approach in fact would have proved harmless.” Id. The Court 

nonetheless upheld the statute, explaining that the very exercise of engaging in a case-by-case 

factual analysis would thwart the rule’s effectiveness and limit free expression. Id. 

Thus, the Commission need not show that plaintiffs’ particular political contributions 

would lead to corruption or its appearance. Congress has adopted a bright-line rule, prohibiting 

contributions by all federal contractors because they undermine a government system based on 

merit and value, not political loyalty and coercion. Preventing enforcement of that rule is not in 

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45 

the public interest.31

II. CONCLUSION 

 Plaintiffs cannot meet their heavy burden to justify a preliminary injunction. They have 

not shown that they are likely to prevail on the merits. Nor have they shown that the 

contribution ban — which applies to them because they freely elected to become federal 

contractors — will result in irreparable harm in the absence of a preliminary injunction. Finally, 

halting the Congressional ban on contributions by federal contractors offends the interests of the 

public and the Federal Election Commission. The Court should deny the motion. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly J. Baker 

Attorney 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

March 1, 2012 Fax: (202) 219-0260 

 

31 Plaintiffs have indicated that they may ask this Court to exercise its authority under 

Fed. R. Civ. P. 65(a)(2) to consolidate the hearing on the preliminary injunction with the trial on 

the merits. (See Pls’ PI Br. at 15.) The Commission would oppose that approach because it 

would deprive the FEC of a chance to develop a factual record to support its theory of the case. 

Because a party is “not required to prove his case in full at a preliminary-injunction hearing ...[,] 

... it is generally inappropriate for a federal court at the preliminary-injunction stage to give a 

final judgment on the merits.” Camenisch, 451 U.S. at 395 (citations omitted). 

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