No. 15-

IN THE

Supreme Court of the United States 

 

JAN MILLER,

PETITIONER,

v.

FEDERAL ELECTION COMMISSION,

RESPONDENT.

On Petition for a Writ of Certiorari to the 

United States Court of Appeals for the 

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

October 2, 2015

ALAN B. MORRISON

(COUNSEL OF RECORD)

THE GEORGE WASHINGTON 

UNIVERSITY LAW SCHOOL 

2000 H STREET NW

Washington, DC 20052

(202) 994-7120

(202) 994 5157 (Fax)

abmorrison@law.gwu.edu

Counsel for Petitioner
i

QUESTION PRESENTED

52 U.S.C. § 30119 forbids any person seeking 

or holding any contract with the federal 

government from making a contribution in any 

amount to any candidate, political party, or 

political committee in connection with a federal 

election. The principal justification for the 

contribution ban is that it prevents quid pro quo 

corruption or its appearance. However, section 

30119 expressly allows corporate contractors to

create captive political committees to make 

contributions within the limits prescribed by law 

that the corporation cannot make. The law also 

permits a corporate contractor’s officers and 

shareholders to make such contributions. In 

addition, individuals seeking or holding 

government grants are not subject to this ban, nor 

are federal employees or individuals who raise vast 

sums of money in the hope of obtaining high-level 

federal jobs. The question presented is:

Is the ban on contributions in 52 U.S.C. § 

30119, as applied to individuals such as petitioner 

and the other plaintiffs, sufficiently tailored to 

meet the requirements of the Equal Protection 

component of the Fifth Amendment and the First 

Amendment to the Constitution?
ii

PARTIES BELOW

In addition to the petitioner Jan Miller, 

Wendy Wagner and Lawrence Brown were 

plaintiffs in the courts below. Both Wagner and 

Brown held federal contracts when the case was 

filed, but they had completed their contracts before 

the court of appeals rendered its decision. The 

respondent Federal Election Commission was the 

defendant below and is the only other party in the 

case.
iii

TABLE OF CONTENTS

QUESTION PRESENTED ..................................... i

PARTIES BELOW .................................................ii

TABLE OF AUTHORITIES.............................vi

OPINIONS BELOW .............................................. 1

JURISDICTION..................................................... 1

STATUTE INVOLVED.......................................... 1

INTRODUCTION .................................................. 2

STATEMENT OF THE CASE............................... 4

1. The Applicable Law....................................... 4

2. The Plaintiffs ................................................. 7

3. Proceedings Below....................................... 10

REASONS FOR GRANTING THE WRIT .......... 16

1. Claims of Denial of Equal Protection Must Be 

Judged in Light of the Purposes of the Law Being 

Challenged............................................................ 18

2. Strict Scrutiny Should Apply to the Ban 

Imposed by Section 30119.................................... 25

3. The Closely Drawn Standard Requires Careful 

Examination of Less Sweeping Alternatives. ...... 29

CONCLUSION..................................................... 38
iv

APPENDIX

OPINION OF THE COURT OF APPEALS App. 1

CERTIFICATION ORDER OF THE 

 DISTRICT COURT ...........................App. 76

STATUTE INVOLVED...........................App. 94
v

TABLE OF AUTHORITIES

Cases

Agency for Intern. Development v. Alliance for 

Open Society Intern., Inc., 133 S. Ct. 2321 

(2013) ................................................................ 32

Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990) ................................................. 28

Blount v. SEC, 61 F.3d 938 

(D.C. Cir. 1995)..................................... 14, 31, 32

Buckley v. Valeo, 424 U.S. 1 

(1976) .......................................... 5, 15, 26, 27, 28

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

(2010) ................................................ 7, 21, 27, 28

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) .......................................... 19

Ex Parte Curtis, 106 U.S. 371 (1882) .................. 25

FEC v. Beaumont, 539 U.S. 146 

(2003) .............................................. 12, 25, 26, 27

Kramer v. Union Free School District, 395 U.S. 

621 (1969) ......................................................... 28

McAuliffe v. Mayor of New Bedford, 

155 Mass. 216 (1892).......................................... 4

McConnell v. FEC, 540 U.S. 93 

(2003) .............................................. 12, 25, 26, 36

McCutcheon v. FEC, 134 S. Ct. 1434 

(2014) ....3, 9, 13, 15-17, 24, 26, 27, 29, 30, 36, 37

Ognibene v. Parkes, 671 F.3d 174 

(2d Cir. 2012).................................................... 33

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011)... 32

Randall v. Sorrell, 548 U.S. 230 (2006) .............. 31
vi

Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015) .......................................................... 20, 22

San Antonio Independent School Dist. v. 

Rodriguez, 411 U.S. 1 (1973)............................ 28

Shelby County, Ala. v. Holder, 133 S. Ct. 2612 

(2013) ................................................................ 37

United States Civil Service Comm’n v. Nat’l Ass’n 

of Letter Carriers, 413 U.S. 548 (1973)............ 15

United States v. Danielczyk, 682 F.3d 611 (4th Cir. 

2012), cert denied, 131 S. Ct. 1459 (2013) ....... 27

Williams-Yulee v. The Florida Bar, 135 S. Ct. 

1656 (2015) ....................................................... 34

Constitutional Provisions

Fifth Amendment, 

 Equal Protection Component.................Passim

First Amendment...................................Passim

Statutes

2 U.S.C. § 437(h) .............................................. 1, 10

2 U.S.C. § 441c ....................................................... 1

10 U.S.C. § 2302..................................................... 5

18 U.S.C. § 601..................................................... 25

18 U.S.C. § 603................................................. 6, 25

18 U.S.C. § 606..................................................... 25

18 U.S.C. § 610..................................................... 25

28 U.S.C. § 1254(1) ................................................ 1

28 U.S.C. § 1331..................................................... 1

52 U.S.C. § 30102(e)............................................. 14

52 U.S.C. § 30110............................................. 1, 10

52 U.S.C. § 30118................................................... 4

52 U.S.C. § 30119..........................................passim
vii

52 U.S.C. § 30119(a)(2) ........................................ 25

52 U.S.C. § 30119(b) .............................................. 5

Public Law 103-355 (1994) .................................... 5

Public Law 93-400 (1974) ...................................... 5

Regulations

2 C.F.R. § 180.970 ................................................ 21

5 C.F.R. § 734.208(b)(4)(ii)..................................... 6

5 C.F.R. § 734.302(b)(3) ......................................... 6

5 C.F.R. § 734.303(d).............................................. 6

5 C.F.R. § 734.306 .................................................. 6

5 C.F.R. § 734.401 .................................................. 6

5 C.F.R. § 734.404(a)(4) ......................................... 6

11 C.F.R § 104.8(a)................................................. 7

11 C.F.R. § 115.5 .................................................... 8

11 C.F.R. § 115.6 .............................................. 6, 21

48 C.F.R. § 1.601(a)................................................ 5

Other Authorities

Code of Judicial Conduct, Canon 5(A)(3) ............ 35

FEC News Release October 5, 2011 ...................... 7
1

OPINIONS BELOW

The en banc opinion of the court of appeals 

in Wagner v. Federal Election Commission, was 

issued on July 7, 2015 (App.1-75) and is reported at

793 F.3d 1. The decisions of the district court 

denying plaintiffs’ motion for a preliminary 

injunction and granting defendant’s motion for 

summary judgment are reported at 854 F. Supp.2d 

83 (D. D.C. 2012) and 901 F. Supp.2d 101 (D. D.C. 

2012). On appeal, a panel of the court of appeals 

vacated both decisions, finding that the district 

court lacked jurisdiction. 717 F.3d 1007 (D. C. Cir. 

2013). On remand from the order vacating the 

prior decisions, the district court certified finding 

of facts and proposed constitutional questions for 

the en banc court of appeals to decide. That order 

is not reported, but is set forth at App.76-93. 

JURISDICTION

The original complaint in this action based 

jurisdiction on 2 U.S.C. § 437(h), now 52 U.S.C. § 

30110, and 28 U.S.C. § 1331. The panel of the court 

of appeals that initially heard this case concluded 

that section 437(h) provided the exclusive basis for 

subject matter jurisdiction over the constitutional 

claims in this case. This Court has jurisdiction 

under 28 U.S.C. § 1254(1). 

STATUTE INVOLVED

52 U.S.C. § 30119, formerly codified at 2 

U.S.C. § 441c, is set forth in full in the Appendix to 
2

this petition. App.94-95. The relevant portion is as 

follows:

(a) It shall be unlawful for any person--

(1) who enters into any contract with the 

United States or any department or agency 

thereof . . . if payment for the performance of 

such contract . . . is to be made in whole or in 

part from funds appropriated by the 

Congress, . . . directly or indirectly to make 

any contribution of money or other things of 

value . . . to any political party, committee, 

or candidate for public office or to any person 

for any political purpose or use; or

(2) knowingly to solicit any such 

contribution from any such person for any 

such purpose during any such period.

(b) Separate segregated funds

This section does not prohibit or make 

unlawful the establishment or 

administration of, or the solicitation of 

contributions to, any separate segregated 

fund by any corporation. . . for the purpose 

of influencing the nomination for election, or 

election, of any person to Federal office. . . 

INTRODUCTION

Petitioner is a retired federal employee who 

now works part-time as an individual contractor 

for his former federal agency. It is a crime for him

to contribute even $1 to any federal candidate, 

party, or committee. The same ban applies to any
3

individual who has a contract with any branch of 

the federal government.

The bulk of the opinion below was devoted to 

establishing that Congress was rightly concerned

that, if federal contractors were permitted to make 

political contributions, that might give the 

appearance of an improper quid pro quo, and they 

might be coerced into making such contributions. 

Plaintiffs have never asserted that those interests 

are not legitimate nor that the asserted concerns 

are not realistic. Rather, they have argued that the 

fit between ends and means was constitutionally 

inadequate under the “closely drawn” standard 

that the court of appeals applied to this total ban. 

The lack of fit is most dramatic with respect to the

political committees of major corporate contractors, 

as well as their officers and shareholders, each of 

whom is free to contribute up to $3.6 million each 

to federal candidates and parties in every election 

cycle. See McCutcheon v. FEC, 134 S. Ct. 1434, 

1473 (2014) (Breyer, J., dissenting). Similar 

disparities exist with respect to federal employees

who often do the same kind of work as federal 

contractors in the same office, but are free to make 

whatever contributions they can afford, as can 

individuals holding federal grants and those who 

bundle contributions in the hope of being rewarded 

with a high federal position. Even if the “closely 

drawn” standard is applicable to this case, these

egregious disparities, as applied to petitioner’s 

right to make federal political contributions, are 

invalid under Equal Protection and the First 

Amendment.
4

STATEMENT OF THE CASE

1. The Applicable Law

In 1940, Congress heard evidence that 

federal contractors were making political 

contributions to secure federal contracts, in some 

cases prompted by forceful requests from those in 

charge of awarding the contract. In response, it 

enacted the predecessor of 52 U.S.C. § 30119

(section 30119), under which any person who holds, 

or is negotiating to obtain, a federal contract is 

barred from making any contribution in connection 

with a federal election. As applied to corporate 

contractors, the ban was redundant since 

corporations had been forbidden since 1906 from 

making contributions in federal elections by what 

is now 52 U.S.C. § 30118. The bill also placed a 

general limit of $5000 on all federal campaign 

contributions, but there was no accompanying 

enforcement mechanism. As authority for the ban, 

a leading supporter of the bill quoted the famous, 

but no longer valid, observation of Justice Oliver 

Wendell Holmes that “[t]here is nothing in the 

Constitution or the statute to prevent the city 

from attaching obedience to [a] rule as a

condition to the office of policeman. . .” 86 Cong. 

Rec. 2563 (1940) (quoting McAuliffe v. Mayor of 

New Bedford, 155 Mass. 216, 220 (1892)).

With one important exception discussed 

below, the contribution ban has remained 

unchanged. In terms of federal contracts, the 

numbers, dollar amounts, and uses of federal 

contractors have exploded, App.40, and after World 

War II the entire process was revamped and made 
5

much more regular and generally based on 

competitive bidding.

1 To be sure, undue influence 

and outright criminality can never be eliminated 

entirely from federal contracting, but the record 

and the laws establish that the federal system is 

now merit-based. App.90-91, ¶¶23-24 and sources 

cited. And most significantly for section 30119, 

decisions on most contracts are made by agency 

personnel (as they were for plaintiffs), not by 

elected officials who might receive campaign 

contributions, or even by agency heads appointed 

by the President, let alone by political parties and 

independent committees that are also covered by

the ban. See 48 C.F.R. § 1.601(a).

The first comprehensive federal campaign 

finance law was enacted in the early 1970s. Once 

the main challenges to the law were resolved in 

Buckley v. Valeo, 424 U.S. 1 (1976), its major 

components included contribution limits applicable 

to everyone, public reporting of contributions and 

expenditures, no limits on candidate spending or 

on independent expenditures by individuals, and 

an agency – respondent Federal Election 

Commission – to enforce the law. However, a very 

significant change was made to section 30119 in 

1976, by adding subsection (b), which permits

corporate contractors to create “separate 

segregated funds” (PACs), that are entitled to 

make contributions like the PACs of noncontractors. Thus, the PACs of large federal 

 

1 See, e.g., Armed Services Procurement Act, 10 U.S.C. § 2302

et seq; Federal Property and Administrative Services Act, 

Pub. L. 103-355, Title X; Office of Federal Procurement Policy 

Act of 1974, Pub. L. 93-400.
6

contractors like Boeing and IBM, which are 

controlled by officials of the contracting 

corporation, may make contributions to members 

of the relevant congressional committees and 

candidates for President within the limits of the 

law, as can their shareholders and officers,

including those who negotiate and implement 

federal contracts. See 11 C.F.R. § 115.6. This 

change, which is at the heart of plaintiffs’ case, was 

disregarded by the court of appeals (App.23, 

“essential features” of law unchanged since 1940 & 

App.27, ban left in place, “without change”) until it 

first recognized those exceptions in Part V of its 

opinion. App.62-63.

Other individuals in comparable situations 

to individual federal contractors regarding their 

desire to obtain financial and other benefits from 

the federal government, have never been subject to 

the ban. For example, since 1939, the Hatch Act 

has limited the political activities of many federal 

officers and employees, mainly to assure that their 

conduct appears to be apolitical. However, 

Congress has never prohibited them from making 

contributions, although there are some restrictions 

that are mainly of the time, place and manner 

variety or that are designed to assure that 

contributions are freely made.

2 In addition, 

although today the federal government spends 

 

2 See 18 U.S.C. 603; 5 C.F.R. § 734.208(b)(4)(ii); 5 C.F.R. § 

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

There are special rules in 5 C.F.R. § 734.401 for employees of 

seventeen sensitive agencies, such as the FEC, the FBI, and 

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

those employees to make contributions. 
7

more money on federal grants than on federal

contracts (App.85, ¶21), there is no contribution 

ban that applies to federal grantees. Nor does a 

ban or any other special rule apply to “bundlers” 

who raise large sums of money for candidates and 

in the hope of being suitably rewarded with an 

Ambassadorship or other high position for their 

efforts.

The FEC takes the position that section 

30119 also forbids contractors from making 

independent expenditures, even after Citizens 

United, v. FEC, 558 U.S. 310 (2010). See FEC News 

Release October 5, 2011, note 1, 

http://www.fec.gov/press/press2011/20111006postc

arey.shtml. Because none of the plaintiffs wished 

to make such expenditures, the legality of the 

FEC’s position on that issue was not addressed 

below. 

2. The Plaintiffs

The three plaintiffs who filed this case are

all eligible to vote in Presidential elections and are 

examples of the thousands of individuals who are 

subject to the contribution ban. They seek to make 

contributions in connections with federal elections, 

subject to the same limits as any other individual, 

including the requirement that all contributions 

exceeding $200 be publicly disclosed. 11 C.F.R. § 

104.8(a). 

Lawrence Brown worked for many years at 

USAID, and when he retired, he returned to the 

agency as a contractor. In most respects, his work 

life was unchanged, except that he could no longer 
8

make contributions for federal elections as he had 

in the past. He wrote to the FEC, asking for a 

ruling that, since he was essentially still an

employee, he should be allowed to continue to make 

contributions, subject to the same restrictions as 

everyone else. The FEC rejected his request, and 

also informed him that he could not use funds 

obtained from sources other than his contract to 

make a contribution. See 11 C.F.R. § 115.5. Brown’s

contract has expired, and he is now a temporary 

USAID employee, free to make contributions—

although he may become a contractor again, if that 

is what the agency wishes.

Petitioner Jan Miller is also a retired USAID 

employee, who has a current part-time contract 

through June 2017, under which he performs 

somewhat different duties than he did when he was 

an employee. He also works part-time for the 

Peace Corps, but there he is an employee. If his 

only federal position were with the Peace Corps, he 

would not be subject to section 30119. Both Brown 

and Miller were hired as contractors under the 

agency’s standard contracting procedures, and no 

elected official or presidential appointee had any 

role in the decision to hire them or in supervising 

their work once hired. Other retirees who return 

in significant numbers as individual contractors 

include former FBI agents who continue to perform 

background investigations. App.85, ¶11.

Plaintiff Wendy Wagner is a professor of law 

at the University of Texas Law School. She 

specializes in the relation between science and 

administrative agency decisions. Because of her 
9

expertise, she was approached by the staff of the 

Administrative Conference of the United States to 

prepare a report and assist with a recommendation 

on that subject. For her 144-page report she was 

paid $12,000, plus expenses, which made her 

subject to the contribution ban for the two plus 

years of her project. ACUS uses both outside 

consultants like Professor Wagner and its own staff 

to prepare reports. Paul Verkuil, ACUS’s chair, 

was not involved in her hiring, although she did 

interact with him in carrying out her project. 

Professor Wagner also held a federal grant for 

$475,721 while she had her ACUS contract, 

App.89, ¶21, but that did not preclude her from 

making federal contributions. Professor Wagner 

has no current federal contract, but there are 

thousands of other individuals who are similarly 

situated and cannot make even a $10 contribution

to a federal candidate, party, or committee. These 

include expert witnesses in court and agency cases; 

translators and interpreters; academics with 

special expertise in all areas in which the federal 

government operates; and the reporters for all the 

Rules Advisory Committees under the Judicial 

Conference.

Individual federal contractors can support 

federal candidates or political parties by 

volunteering for them or by speaking out on their 

behalf. But see McCutcheon 134 S. Ct. at 1449

(rejecting such as options as not meaningful for 

most individuals). More significantly, although the 

main purpose of the ban is to remove the 

appearance that a contractor obtained a contract 

by contributing to a candidate or a party, the law 
10

expressly excludes from the definition of a 

contribution the holding of a fundraiser for a 

federal candidate or party, at which large 

contributions (within the limits of the law) can be 

collected by the host for the candidate or party. 52 

U.S.C. § 30101(8)(B)(ii). That provision also allows 

the host to spend up to $1000 for food, invitations,

etc., while section 30119 forbids him or her from 

writing a check for even $10. 

3. Proceedings Below

The complaint was filed in October 2011, 

with subject matter jurisdiction based on 28 U.S.C. 

§ 1331 and 2 U.S.C. § 437(h), now 52 U.S.C. § 

30110. The complaint alleged that section 30119

violated both the Equal Protection component of 

the Fifth Amendment and the First Amendment as 

applied to individual contractors. The parties

subsequently agreed that the case could be decided 

as a federal question case by the district court, with 

review by a panel of the court of appeals. Plaintiffs 

unsuccessfully sought a preliminary injunction, 

after which there was limited discovery. The 

parties cross-moved for summary judgment, 

largely based on an agreed set of facts, and the 

district court upheld the statute.

Plaintiffs appealed, but the court of appeals 

held that 52 U.S.C. § 30110 provided the exclusive 

method by which a challenge such as this could be 

brought and dismissed the appeal, remanding the 

matter to the district court to make the appropriate 

findings. The case was set for en banc argument in 

September 2013, but the court postponed 
11

argument pending this Court’s decision in 

McCutcheon supra.

 After McCutcheon was decided, the parties 

filed supplemental briefs, and the case was re-set 

for en banc argument. However, in the interim,

plaintiffs Wagner and Brown completed their 

contracts.

On July 7, 2015, the court of appeals 

unanimously upheld section 30119 in an opinion by 

Chief Judge Garland. Much of the opinion was 

devoted to showing that avoiding corruption and its 

appearance was the principal purpose of the ban 

and that the anti-corruption concern is still valid. 

Very little attention was given to the lack of 

connection between recipients of federal 

contributions and the contracting process, in which 

elected officials have no formal involvement, or to 

the protections now afforded under federal 

contracting law that were not available in 1940. 

Nor did the court discuss the relevance of the 

advent of a major new system of campaign finance 

regulation in the 1970s to the ban that had been 

enacted more than 30 years before. The opinion 

also supported the law by pointing to the need to 

prevent contractors from being coerced into 

contributing (App. 16, 42, 44,) even though coercion 

of political contributions generally, and solicitation 

of federal contractors specifically, are already 

prohibited by law. See infra, at 24-25. Moreover, 

this Court’s decision in McCutcheon, 134 S. Ct. at

1450, which the opinion below cited more than a 

dozen times, specifically stated that it “has 

identified only one legitimate governmental 
12

interest for restricting campaign finances: 

preventing corruption or the appearance of 

corruption.” 3

Because they were challenging a ban, not a 

contribution limit, plaintiffs asked the court to 

apply strict scrutiny, but the court of appeals

rejected that request, relying on FEC v. Beaumont, 

539 U.S. 146 (2003). The Beaumont Court applied 

the closely drawn standard in holding that a nonprofit corporation, which had a PAC and could 

make independent expenditures, could be 

precluded from making contributions. The court 

also disagreed with plaintiffs’ reliance on the 

portion of this Court’s opinion in McConnell v. 

FEC, 540 U.S. 93, 231-32 (2003), in which it struck 

down a ban on contributions by individuals under 

the age of 18, even though, unlike plaintiffs here, 

those plaintiffs (and the corporation in Beaumont) 

were not eligible to vote. 

The court of appeals did note that Beaumont

stated that “[i]t 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.” Id. at 162. There is, however, no 

evidence that the court carried out that mandate,

 

3 As justification for the ban, the court also cited “merit-based 

public administration,” which it described as including 

assuring efficiency in government. App.15. Efficiency seems 

directed at an individual’s job performance, but the ban 

mainly applies off the job. To the extent that efficiency 

assures that contracts are not affected by contributions, that 

interest merges with the corruption justification and will not 

be discussed further.
13

nor is it clear how that kind of adjustment would 

fit within the existing “closely drawn” standard 

that the court did apply. And when the court did 

apply that standard, it cited McCutcheon, even 

though this Court had rejected aggregate limits on 

contributions because of a lack of a close fit, 

thereby permitting the plaintiff in McCutcheon to 

make over $3 million in annual contributions, 

while plaintiffs here can make none.

On the question of whether the ban was 

closely drawn, plaintiffs offered many examples of 

more closely drawn limits on contributions by 

federal contractors, some taken from the very SEC 

rule and state laws that the court of appeals relied 

on to sustain the ban. These included excluding 

small dollar contracts, allowing smaller 

contributions only, limiting bans to contributions 

to officials with power to enter into contracts, 

excluding contractors who function like employees, 

and allowing contributions to independent political 

committees and/or minor parties and candidates

who have no possible connection to the contracting 

process. All of these exceptions have one feature in 

common: they leave in place the law as applied to 

situations for which its rationale is strongest, while 

at the same time excluding from the ban 

contributions that cannot reasonably be thought to 

raise even the specter of corruption. 

To the extent that the court below dealt with 

them, it did so mainly by finding fault with each as 

an alternative, without examining whether their 

use could significantly lessen the impact of the ban 

with little loss of its goals. In particular, the
14

plaintiffs had pointed to the SEC’s nuanced 

regulation, sustained in Blount v. SEC, 61 F.3d 938 

(D.C. Cir. 1995), dealing with the same problem as 

applied to contracts to sell municipal securities, as 

an example of a much more finely tuned approach 

(and also one that did not contain the 

PAC/shareholder loophole). Plaintiffs recognize 

that the First Amendment’s closely drawn 

standard does not require that a law be perfectly 

tailored, but the court of appeals found the fit to be 

sufficient, relying in part on the SEC rule upheld 

in Blount.

Plaintiffs had focused much of their case on 

the ability of corporate contractors to create the 

same reality or appearance of corruption that the 

contractor ban is supposed to avoid, through the 

use of corporate PACs, which by law must bear the 

corporation’s name. 52 U.S.C. § 30102(e) That 

loophole is magnified by the right of the 

corporation’s shareholders and officers – including 

individuals who will be negotiating for the contract 

and carrying it out – to make contributions that 

plaintiffs are barred from making. In plaintiffs’ 

view, these exclusions demonstrated that the ban 

violated their right to Equal Protection and was 

significantly underinclusive in violation of the 

First Amendment. As to the PAC exclusion, the 

court of appeals observed that the PAC and the 

contractor were legally separate entities, but failed 

to explain why that formality was dispositive given 

the close connection between the corporate 

contractor and its PAC. Moreover, it never sought 

to justify treating contractors and their PACs as

unrelated in light of the asserted purpose of section 
15

30119, which is to avoid even the appearance of 

undue favoritism to contractors. The court 

employed a similarly formalistic approach in 

rejecting plaintiffs’ efforts to show why officers and 

shareholders of corporate contractors are similarly 

situated to individual contractors. And it also

rejected plaintiffs’ claims regarding federal 

grantees, bundlers, and employees, in each case by 

pointing to factual distinctions that have no 

apparent connection to the rationale for the ban

and by stating that Congress need not address all 

evils at once, even though Congress has made no 

changes in section 30119 since it was enacted in 

1940, except to create the PAC exclusion.

4

Overall, although the opinion purported to 

use the “closely drawn” standard as most recently 

applied in McCutcheon, it reads much more like a 

decision reviewing an agency rule under the 

arbitrary and capricious standard of the 

Administrative Procedure Act or a constitutional 

review under the rational basis test.

 

4 The court also relied on the pre-Buckley decision in United 

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

413 U.S. 548 (1973), upholding various restrictions on the 

political activities of federal employees. Because Congress 

has never banned federal employees from making political 

contributions, and because the on-the-job rules applicable to 

employees do not apply to plaintiffs, that decision does not 

undermine plaintiffs’ Equal Protection claim.
16

REASONS FOR GRANTING THE WRIT

There is no right more basic in 

our democracy than the right to 

participate in electing our political 

leaders. Citizens can exercise that 

right in a variety of ways: They can run 

for office themselves, vote, urge others 

to vote for a particular candidate, 

volunteer to work on a campaign, and 

contribute to a candidate’s campaign. 

This case is about the last of those 

options. McCutcheon, 134 S. Ct. at 

1440-41.

From the filing of the complaint, through 

their briefing to the en banc court of appeals, 

plaintiffs’ principal objection to section 30119 was

based on Equal Protection: similarly situated 

PACs, officers, and shareholders of corporate 

contractors, as well as federal employees with 

whom plaintiffs worked, were not subject to the 

ban on the “no more basic right” to contribute to 

federal political campaigns, that is applicable to 

them. The court of appeals, however, re-cast that 

claim as primarily one of under-inclusion –

plaintiffs wanted to curtail more speech (App.57-

58) – when the remedy that plaintiffs sought was 

to increase speech by allowing them to make like 

contributions within the limits allowed by law. 

Instead of focusing on what was Point I of 

plaintiffs’ brief, the court treated their Equal 

Protection claim as an after-thought to their First 
17

Amendment under-inclusiveness argument. 

App.71. But simply because other campaign 

finance cases have not been decided based on 

discrimination among similarly situated 

individuals did not justify the court of appeals in 

devoting most of its opinion to plaintiff’s secondary 

claim and then rejecting it as a re-dressed version 

of their First Amendment argument.

Although this petition is brought by only one 

individual, its resolution is of great importance to 

the thousands of former federal employees now 

working as federal contractors and the countless 

other individuals who have service contracts with 

the federal government who are barred from 

making any federal campaign contributions. App. 

40 & n. 22. No other law forbids citizens who can 

vote in federal elections from making any

contributions to support the candidate, party, or 

political cause of their choice, let alone doing so 

while allowing others who are similarly situated to 

contribute. In addition, while the holding below is 

not inconsistent with the holding in McCutcheon

because McCutcheon was not a federal contractor, 

the outcomes – the individual plaintiff there can 

contribute millions of dollars in federal elections, 

but these plaintiffs cannot contribute a dollar – are 

very difficult to reconcile under most basic notions 

of fairness.

There are three important subsidiary 

questions within the question presented by the 

petition that have not been, but should be, decided 

by this Court.
18

 When a campaign finance law is 

alleged to deny Equal Protection, and 

the primary defense is that other 

persons not subject to the law are not 

similarly situated to the challengers, 

must the question of comparability be 

determined by focusing on the 

asserted purpose of the law and the 

connection between each group and 

the law?

 When Congress forbids individual

citizen-voters from making any 

contributions in federal elections, 

should “strict scrutiny” rather than 

the “closely drawn” standard apply?

 Even if the closely drawn standard 

applies, what is the proper means of 

assessing the fit of the ban, where 

contractor restrictions in other laws 

are much less sweeping and are 

limited to contracts that raise 

concerns that form the core of the 

reason for the law?

1. Claims of Denial of Equal Protection Must Be 

Judged in Light of the Purposes of the Law Being 

Challenged.

Section 30119 was primarily challenged on 

the ground that it fails to cover others who are 

similarly situated, in this case, principally the 

PACs of corporate contractors and the contractor’s 

officers and shareholders. The court of appeals 
19

considered this claim as one of under-inclusion in 

its First Amendment analysis, not as one of 

discriminatory treatment in violation of Equal 

Protection. It then rejected that claim because it 

concluded that individual contractors are similarly 

situated only to corporations that have federal 

contracts. App.62-64. That conclusion requires this 

Court’s review because it may seriously reduce the 

protections against unequal treatment for 

similarly situated individuals.

The precise question on which there is 

disagreement is, on what basis should courts 

decide whether parties are similarly situated?

Plaintiffs argued below that the answer must be 

determined in this case by examining the asserted 

rationale for the ban as applied to individual 

contractors and asking whether that rationale also 

applies to the other groups that are free to make 

contributions within otherwise-applicable dollar 

limits. City of Cleburne v. Cleburne Living 

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

concurring) (comparisons must be made in light of 

“the purpose that the challenged laws purportedly 

intended to serve”). In this case, the principal 

rationale is avoiding the reality or appearance of 

corruption, and that rationale applies not just to 

corporate contractors (who are doubly barred by 

the ban on all contributions by any corporation), 

but also to their PACs and their officers and 

shareholders. The court of appeals rejected these 

comparisons on the ground that PACs and 

corporate officers and shareholders are different 

legal entities from the corporation that holds a 

contract. App.63.
20

No one disputes that a corporation is a 

separate legal entity from its PAC and its officers 

and shareholders, but that cannot be a sufficient 

justification for this discrimination. Just this past 

Term, in Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015), the Town had different rules for the sizes of 

different public signs and for the time periods they 

could remain displayed. Those differences were 

based on the messages that the signs conveyed, and 

this Court unanimously held that the differences 

violated the First Amendment. As Justice Thomas 

put it for the majority, focusing on the justifications 

of “aesthetic appeal and traffic safety,” the 

“distinctions fall as hopelessly underinclusive.” Id. 

at 2231. The Court treated the law in Reed as one 

that made content-based distinctions, because the 

Town preferred some categories of messages over 

others, a claim that plaintiffs do not make. 

However, the key point from Reed for this case, 

which the court below did not appreciate, is that 

any distinctions in treatment can be justified only 

based on the rationale for the rule being 

challenged, not on other unrelated facts. The 

content-based nature of the distinction may affect 

how closely the differences in treatment must be 

scrutinized, but the comparison must be based on 

what the challenged law seeks to achieve and how 

each of the groups fits into that goal. 

Because the court below failed to understand 

how to analyze the question of whether different 

groups are similarly situated for Equal Protection 

purposes, this Court should grant review to 

address the issue. It is directly raised in this case 

because the PACs, officers and shareholders of 
21

corporate contractors may make contributions that

individual contractors may not. Indeed, the result 

upheld below turns upside down this Court’s 

refusal in Citizens United to treat a corporate PAC 

as the equivalent of the corporation – there as a 

reason to deny the corporation the ability to make 

independent expenditures (558 U.S. at 337) –

whereas here plaintiffs sought only to have the 

court of appeals recognize that a corporate 

contractor’s PAC is similarly situated to individual 

contractors in determining whether they must be 

given equal rights to make campaign contributions. 

The corporate PAC comparison with 

individual contractors is most clear because the 

distinction on the right to make political 

contributions is found in the same section that 

imposes the contribution ban on plaintiffs. But the 

officer/shareholder comparison is not far behind 

because it rests on the FEC’s interpretation of that 

statute. 11 C.F.R. §115.6. Other appropriate 

comparisons, also rejected by the court of appeals, 

do not involve persons who are involved in federal 

contracting, but they still raise the same issue of 

whether excluding them is consistent with the 

appearance of corruption justification for the ban 

applicable to plaintiffs. These include individuals 

who receive federal grants and stand to reap at 

least as much financial benefit from making 

federal contributions as do contractors, but the ban 

does not cover them. The same federal law that 

treats contracts and grants alike also includes the 

recipients of federal guarantees, loans, and loan 

guarantees, 2 C.F.R. § 180.970, all of whom are as 
22

likely as contractors to benefit from making 

contributions in federal elections. 

Then there are the bundlers who have the 

most to gain personally from collecting large 

amounts of money for Presidential candidates, 

often with the specific goal (stated or not) of being 

rewarded with a high federal position. Indeed, the 

FEC contends that plaintiffs could lawfully become 

bundlers and raise tens of thousands – even 

millions – of dollars for candidates or political 

parties by hosting fundraising events because such 

activities, which would also allow the plaintiffs to 

spend up to $1000 on food and invitations, etc., are 

excluded by the statute from the definition of a 

contribution. 52 U.S.C. § 30101(8)(B)(ii). As in 

Reed, and judged by its asserted justifications, the 

law is “hopelessly underinclusive” in criminalizing 

plaintiffs for writing a check for $10, while allowing 

them to host a fundraiser where they can deliver 

checks worth $10,000 or more. 

Then there are individuals like plaintiffs 

Miller and Brown who were formerly employees of 

the agency with which they have a federal contract. 

As employees, they were allowed to make 

contributions, but even if virtually every other 

aspect of their jobs is unchanged, they can no 

longer do so. The court of appeals rejected this 

comparison because there are different personnel 

rules applicable to employees and contractors, with 

employees having some restrictions and benefits 

not applicable to individual contractors and 

because contracts have finite terms whereas 

federal employees have more-or-less permanent 
23

jobs. App.67-68. Under the court’s theory, 

plaintiffs might make a contribution to obtain a 

renewal of their employment contract, whereas 

federal employees would have no need to do that. 

To be sure, federal employees do not generally have 

to worry about contract renewals, but they may, on 

the same rationale, decide to contribute in order to 

curry favor for other reasons, such as to obtain 

promotions, pay increases, or better job 

opportunities. 

There is one other aspect of the employee vs 

contractor comparison that makes the differing 

treatment for campaign contributions indefensible. 

There are no rules that instruct agencies when a 

job will be handled by an employee or a contractor. 

Plaintiff Brown was an employee until he retired, 

then became a contractor, is now an employee, and 

may become a contractor again – if that is what 

USAID wants. Petitioner Miller is now a part-time 

contractor with USAID and a part-time employee 

with the Peace Corps, with no apparent reason for 

the difference that might bear on campaign 

contributions. At ACUS, where plaintiff Wagner 

was a contractor, the choice between contractors 

and staff employees is based on factors such as 

budget and expertise, which have nothing to do 

with the rationale for section 30119. Again, the 

court below rejected the comparison, without 

asking whether allowing employees to make 

contributions, while banning individuals like 

Miller and Brown from doing so, can be justified 

under Equal Protection or the closely drawn First 

Amendment standard. That comparative 

justification is particularly important given the 
24

remote connection between a contribution to, for 

example, a presidential candidate and an increase 

in the chances of renewing a contract or gaining a 

promotion at ACUS or USAID. The court’s 

rejection of the comparison confirms that the court 

did not understand on what basis courts should 

decide whether a given comparison is relevant, 

which is by looking to the rationale for the law 

being challenged and not by focusing on unrelated 

factual distinctions.

The court of appeals also defended section 

30119 on an anti-coercion rationale. App.16.

Ironically, that rationale is equally applicable to all 

PACs, officers and shareholders of corporate 

contractors who are not banned from making 

contributions. In many of the examples of potential 

or actual corruption cited by the FEC and the court 

below, the contributor was not the contractor but 

an officer or shareholder. App.30-31. It makes no 

sense to assert that individual contractors like 

plaintiff Wagner, who have full time jobs, are

subject to coercion to make a federal contribution, 

but the head of procurement or the largest 

shareholder of a major defense contractor is 

immune. The same potential for coercion applies to 

potential grantees and bundlers, as well as others 

seeking federal benefits, often in amounts far 

larger than individual contractors’ contracts, yet 

section 30119 does not apply to them. 

Moreover, even if this Court in McCutcheon

had not repeated its frequent admonition – that 

there is “only one legitimate governmental interest 

for restricting campaign finances: preventing 
25

corruption or the appearance of corruption,” 134 S. 

Ct. at 1450 – the proper response to coercion is to 

prohibit federal officials from soliciting money from 

persons in potentially vulnerable positions. That is 

exactly what the prohibitions currently in 18 

U.S.C. §§ 601, 603, 606 & 610 already do. Those 

rules, which date back more than 130 years to the 

law upheld in Ex Parte Curtis, 106 U.S. 371 (1882),

recognize that when First Amendment rights are 

at stake, the proper remedy is to ban the coercive 

conduct and not to silence the speaker. In addition, 

52 U.S.C. § 30119(a)(2) already prohibits any 

person from soliciting federal contractors (but not 

their PACs, officers, and shareholders), which is a 

broader restriction than a prohibition on coercion. 

Finally, no theory of coercion can support the ban 

as applied to contributions to independent political 

committees that have no power to reward or punish 

any would-be contributor.

2. Strict Scrutiny Should Apply to the Ban 

Imposed by Section 30119.

The court of appeals applied this Court’s 

ruling in Beaumont that the closely drawn 

standard, not strict scrutiny, applied to bans on 

contributions as well as contribution limits. 

Beaumont involved a corporation which had its 

own PAC that could make contributions and that 

had officers and employees who could contribute,

neither of which apply to individual contractors 

such as plaintiffs. The closer decision to this is the 

ruling in McConnell v. FEC, supra, 540 U.S. at 231-

32, striking down, under the closely drawn 

standard, the ban on individuals under 18 from 
26

making any contributions, where the ban was 

found to be vastly over-inclusive. Although the 

plaintiffs in neither McConnell nor Beaumont could 

vote, the fact that plaintiffs (and most individual 

contractors) can vote makes section 30119 a 

greater affront to the democratic process. 

This Court in McCutcheon expressed a 

particular concern over a law that was technically 

a limitation, not a ban. That law allowed all 

individuals to contribute $123,200 in an election 

cycle, but after plaintiff had “maxed out” by giving

to 47 candidates, he could give nothing to other 

candidates he wished to support. The Court 

treated that limitation as “an outright ban on 

further contributions to any other candidate” (id. 

at 1448), not simply a contribution limit, and for 

that reason, among others, it applied greater 

scrutiny and struck down the aggregate limit.

Related to this aspect of the question 

presented is the application of this Court’s 

statement in Beaumont that, although a ban did 

not change the standard of review, it must be taken 

into account at the merits, or balancing, stage. 539 

U.S. at 162. This Court has never explained how 

that is supposed to work: does that make the 

standard “closely drawn plus,” or is it a thumb on 

the scale that may alter the balance in some 

undetermined way? The court of appeals did not 

appear to factor it in at all, and it may be that, upon 

further consideration, the Court will conclude that

there is no appropriate way to apply that part of 

the Beaumont opinion. Unlike contribution limits, 

which Buckley teaches are permissible because 
27

they still allow speech through contributions, a ban 

forecloses such speech, which makes the Beaumont

admonition confusing or difficult to apply. It also 

supports the conclusion that the better approach is 

to apply strict scrutiny to bans on contributions 

applicable to individual citizen-voters. 

There are two other related issues that 

suggest the advisability of this Court considering

the appropriate First Amendment standard of 

review for contribution bans. First, in Citizens 

United, 558 U.S. at 359, the Court expressly 

declined to consider whether the ban on corporate 

contributions must be considered under the strict 

scrutiny standard that the Court applied to 

corporate independent expenditures. That precise 

question, which the Court has declined to hear 

since Citizens United,

5 is an important one, 

although it need not be definitively answered in 

this case because plaintiffs are entitled to vote and 

corporations are not. But the fact that the Court 

expressly left the question open in Citizens United

signals that the status of bans generally needs 

further consideration by this Court.

Second, several members of this Court have 

advocated the elimination of the distinction created 

in Buckley between contributions and 

expenditures, so that strict scrutiny would apply to 

restrictions on both. See McCutcheon v. FEC, 

supra, at 1462 et seq and cases cited therein 

(Thomas, J., concurring in judgment); id. at 1445-

46, declining to revisit distinction. Again, the 

 

5 See United States v. Danielczyk, 682 F.3d 611 (4th Cir. 

2012), cert denied, 131 S. Ct. 1459 (2013).
28

Court need not resolve that question in this case to 

conclude that at least total contribution bans on 

individual voters must be treated like expenditure 

limits and subjected to strict scrutiny.

Throughout the case, plaintiffs have 

asserted Equal Protection and First Amendment 

claims, but the court below rejected plaintiffs’ 

argument that strict scrutiny applied to their 

Equal Protection claim on the ground that it had 

already rejected that argument as applied to their 

First Amendment claim. App.70-71. However,

when this Court has been asked to declare a 

campaign finance law unconstitutional on both 

First Amendment and Equal Protection grounds, it 

has dealt with each on its merits. Thus, in Austin 

v. Michigan Chamber of Commerce, 494 U.S. 652,

666 (1990), the Court rejected the First 

Amendment defense later accepted in Citizens 

United, and then went on to reject related Equal 

Protection claims. 

The case for applying strict scrutiny to

plaintiffs’ Equal Protection claim is particularly 

strong because, under Buckley, the right to make 

contributions is a fundamental right protected by 

the First Amendment. Thus, pursuant to San 

Antonio Independent School Dist. v. Rodriguez, 411 

U.S. 1, 17 (1973), strict scrutiny is required when a 

law “impinges upon a fundamental right explicitly 

or implicitly protected by the Constitution.” See 

also Kramer v. Union Free School District, 395 U.S. 

621, 626 (1969), where this Court gave a ban on 

voting for the school board for those who did not 

meet the statutory requirements “a close and 
29

exacting examination” because the law allegedly 

created an “unjustified discrimination in 

determining who may participate in political 

affairs,” precisely what section 30119 does to 

plaintiffs. Accordingly, the proper standard of 

scrutiny for Equal Protection claims involving bans 

on campaign contributions is another basis for 

review by this Court.

 3. The Closely Drawn Standard Requires 

Careful Examination of Less Sweeping

Alternatives.

If the closely drawn standard is appropriate, 

the question is, how should it be applied in cases 

such as this, in which there is a claim that the ban 

is substantially overbroad and that there are many 

ways in which it could be narrowed while 

protecting its core goal? The answer is found in 

McCutcheon, to which the court of appeals paid lip 

service, but disregarded its basic message that “[i]n 

the First Amendment context, fit matters.” 134 S. 

Ct. at 1456. The aggregate limit statute there was

overturned because it was “poorly tailored to the 

Government’s interest in preventing 

circumvention of the base limits [and]

impermissibly restricts participation in the 

political process.” Id. at 1457. As the Second 

Circuit observed in striking down a ban on 

contributions by lobbyists, “if a contribution limit 

would suffice where a ban has been enacted, the 

ban is not closely drawn to the state’s interests.” 

Green Party of Connecticut v. Garfield, 616 F.3d, 

189, 206, n. 14 (2010). 
30

The principal basis for the ban in section 

30119 is that it avoids the appearance that those 

with federal contracts have obtained them by 

making contributions in connection with federal 

elections. Two related points about the connection 

between contributions in federal elections and 

federal contracting are significant. The only 

elections for federal officials are for President, VicePresident, and Members of Congress, and none of 

those officials has any formal role in federal 

contracting today. Under current federal 

contracting law, there is an elaborate system, 

designed to protect against improper influence and 

to assure that the government receives high 

quality goods and services at fair prices, with 

specific contracting decisions made at the agency 

level. See infra at 4-5. Thus, unlike many state and 

local contracting systems, federal elected officials 

have no direct decision-making role in the award of 

even major contracts, let alone modest contracts of 

the kind that the plaintiffs and many other

individual contractors have.

Plaintiffs cited a number of examples of 

other laws relating to contributions by contractors 

with narrower bans that still fully achieved their 

goals, precisely the process that this Court utilized 

in rejecting the aggregate limits in McCutcheon.

134 S. Ct. at 1458-59. However, the court below 

took them on one by one, found each to be 

insufficient to do the whole job, and then rejected 

the over-inclusiveness claim. App.51-53. But even

under the closely drawn standard, when a limit 

rather than an absolute ban was at issue, this 

Court has found the fit to be wanting. See Randall 
31

v. Sorrell, 548 U.S. 230 (2006). If some contribution 

limits, which inevitably involve line drawing, can 

be found to be not closely drawn, then an absolute 

ban on contributions should rarely, if ever, satisfy

that test.

In their en banc brief, plaintiffs cited the 

regulation upheld in Blount v. SEC as an example 

of a carefully drawn set of rules dealing with 

contributions to elected state and local officials by 

those interested in selling the government’s bonds. 

Among its features were (a) only contributions for 

the election of a person with actual responsibility 

for selecting the bond-seller were covered, not 

contributions to the official’s political party; (b)

contributions up to $250 were allowed to 

candidates for whom the individual could vote; (c) 

the rule applied prospectively so that the donor was 

not forbidden from making contributions, but was 

barred from obtaining future business from the 

recipient’s agency for two years after the 

contribution was made; and (d) contracts subject to 

open competitive bidding were excluded. 61 F.3d at 

940 & n.1, 944. Unlike Congress, which has left the 

ban applicable to plaintiffs untouched since 1940, 

the SEC took into account current laws and 

practices regarding pay-to-play at the state and 

local levels and carefully examined when its rule 

needed to apply and where there was room for a 

restriction less absolute than a ban. Although 

plaintiffs had relied on Blount as an example of a 

much more carefully drawn law, the court of 

appeals saw it simply as proof that there was a 

need for limits on the political contributions of 

government contractors. Plaintiffs never denied 
32

that general proposition, but contended that the fit 

in section 30119 was not even reasonably close, 

unlike that in Blount. 

Perhaps the clearest example of the overinclusiveness of section 30119 is that it applies to 

contributions to independent political committees, 

which by definition are unconnected to any 

candidate or party. These include such entities as 

EMILY’s List, the NRA Political Victory Fund, the 

Sierra Club Political Committee, the Planned 

Parenthood Action Fund, and the various Right to 

Life Committees. None of them has any role or 

influence over the award of federal contracts, yet 

plaintiffs are barred from contributing to any of 

them, as well as any other independent 

committee.

6

Other examples were cited, but found 

insufficient. North Carolina banned lobbyist 

contributions to candidates for the legislature, but 

allowed contributions and recommendations to 

political committees, Preston v. Leake, 660 F.3d 726, 

729-31, 740 (4th Cir. 2011), whereas section 30119 

bans all PAC contributions as well. New York 

City’s rules did not apply to small contracts,

allowed modest contributions, and if they were 

 

6 To the extent that the ban might be defended on the ground 

that Congress was concerned that money from government 

contracts could be seen as being used for political purposes, 

the FEC’s letter to plaintiff Brown told him that he could not 

even use money from other sources to make a contribution. 

See also Agency for Intern. Development v. Alliance for Open 

Society Intern., Inc., 133 S. Ct. 2321 (2013), setting aside a 

law that limited the use of non-government funds by a federal 

grantee.
33

exceeded, penalized the candidate rather than the 

donor. Ognibene v. Parkes, 671 F.3d 174, 179-80 

(2d Cir. 2012). Those rules also do not appear to 

apply to former employees like Brown and Miller

who became contractors. Connecticut has similar 

exceptions and also applied its ban only to 

candidates for the branch of government that 

approved the contract, Green Party, supra, 616 

F.3d at 194, in contrast to the federal ban that 

applies regardless of whether the recipient of the 

contribution has any connection to the donor’s 

contract.

Plaintiffs also cited various aspects of 

federal contracting regulations that suggested

other ways of reducing the adverse impact of the 

ban, but the court found them all wanting. For 

example, most federal contracts are subject to 

competitive bidding, both to protect the federal fisc 

and to make the process transparent and fair. 

Where those rationales do not apply, or where they 

apply with less force, Congress and the agencies 

have created exceptions, such as for small 

contracts, with certain protections included. 

App.90-91, ¶24. Including such exceptions in 

section 30119 would help satisfy the closely drawn 

standard, but the court was unpersuaded that any 

of them was necessary.

Plaintiffs also noted that in many cases, like 

plaintiff Wagner’s, the agency approached her with 

a proposed contract that she would perform, rather 

than her seeking out the work. No person with 

even the most minimal knowledge of those facts 

would think that any contribution she made while 
34

carrying out the contract was either a thank you or 

a down payment on a future contract. Similarly, an 

exception is surely warranted for former employees 

who retire and then are asked to become 

contractors – like plaintiffs Miller and Brown and 

the FBI agents who do background checks –

because their agencies knew the quality of their 

work and their knowledge of the agency, and not 

because of any contributions that they had made or 

might make in the future. A closely drawn statute 

would have included some if not most of these 

exceptions, but the court below sustained section 

30119 even though it imposes a total prohibition on 

all contributions by individual contractors in 

federal elections.

A recent example of the Court approving a 

speech restriction after finding that there was a 

proper fit between the goal of the law and the 

means to achieve it is Williams-Yulee v. The 

Florida Bar, 135 S. Ct. 1656 (2015). There a 

candidate for judicial office was censured for 

personally sending a mass mailing seeking funds 

for her election race. This Court, applying strict 

scrutiny, rejected her First Amendment defense 

and upheld the prohibition against judicial 

candidates personally soliciting contributions. 

Although her chosen method of soliciting funds was 

precluded, she had a campaign committee that 

could lawfully raise money for her campaign, and 

no one suggested that it could not do the job for her.

The court below cited Williams-Yulee more than a 

dozen times without recognizing that the ruling 

had no practical impact on the ability of future 

judicial candidates to raise money through their 
35

official committees. By contrast, under section 

30119 individual contractors will not be able to 

make contributions for candidates, political 

parties, or political committees by any means, not 

just by a means that is at most marginally inferior.7

The cause of the lack of fit between the 

stated goal of section 30119 and the expansive 

manner in which it operates is that Congress never 

focused, in 1940 or at any time thereafter, on why 

a total ban was necessary. Similarly, the court 

below focused on the appearance of corruption for 

contractor contributions, but never asked why the 

limits applicable to every other individual (or some 

lower limit) did not suffice. Instead, it approached 

the case as if the plaintiffs had the burden of 

establishing their right to make contributions, 

instead of the other way around. Having picked off 

each of the alternatives found in other similar laws, 

one at a time, the court of appeals never asked

whether section 30119 was far more expansive 

than needed to achieve its stated objectives, let 

 

7 The court also cited the ethical rule against federal judges 

making political contributions as support for section 30119. 

App.46. The provision, which is part of a broader set of rules 

applicable to judges’ political activities, 

http://www.uscourts.gov/judges-judgeships/code-conductunited-states-judges#f, is intended to assure the judge’s 

continued neutrality, with the contribution ban as only one 

part. Moreover, Canon 5(A)(3) of the Code of Conduct

expressly precludes judges from holding fundraising events, 

whereas the FEC defends the ban in section 30119 by arguing 

that plaintiffs are nonetheless permitted to holding 

fundraisers and solicit contribution from others, thereby 

confirming the substantial differences between the two sets 

of rules.
36

alone did it follow this Court’s conclusion concluded 

in McCutcheon that the Government is required to 

use other available alternatives, even if their 

efficacy and validity are uncertain. 134 S. Ct. at 

1458-59. For example, allowing individual 

contractors like plaintiffs to make contributions to 

a national party or candidate for President in a 

modest amount – such as $200, which never has to 

be publicly disclosed – would surely not create an 

appearance of corruption in the mind of any 

reasonable person, while at the same time 

eliminating the sting of an absolute ban.

The blanket prohibition in section 30119 is 

like the ban on contributions by those younger than 

18 that was struck down in McConnell v. FEC, 

supra. The problem that Congress sought to 

remedy there was that parents were giving their 

minor children money to “make their own” 

contributions, when the parents had maxed out. 

Like section 30119, that law was inartfully drawn,

and it covered contributions beyond the lawavoiding examples that prompted its enactment. So 

here, the goal of preventing would-be contractors 

from using campaign contributions to influence 

those who award those contracts is a proper one, 

but sweeps far too broadly by banning small 

contributions and those given to persons with no 

connection to the contracting process.

The cause here, of what this Court referred 

to in McCutcheon as a “substantial mismatch” (134 

S. Ct. at 1446), is that Congress has never reviewed 

the scope of the ban since its enactment, despite 

massive changes in the laws governing both 
37

campaign contributions and government 

contracting. See Shelby County, Ala. v. Holder, 133 

S. Ct. 2612, 2625-28 (2013) (striking down portion 

of Voting Rights Act because of significant changes 

in minority voter registration, turnout, and elected 

officials since its enactment); McCutcheon, 134 S. 

Ct. at 1446, justifying re-visiting the ban on 

aggregate limits upheld in 1976 because “BCRA is 

a different statutory regime, and the aggregate 

limits it imposes operate against a distinct legal 

backdrop”; id. at 1447 focusing on regulations 

“currently in place.” Accordingly, this Court should 

grant review so that the lower courts can be reinformed on how to conduct the over-inclusiveness

inquiry when the law at issue extends far beyond 

the areas needed to achieve its stated goals. In 

contrast to the decision below, such an inquiry 

would support, rather than undermine, First 

Amendment rights.

* * * 

Because section 30119 imposes a ban on the 

ability of eligible voters to make any contributions 

in federal elections, strict scrutiny should apply to 

this ban. Moreover, even examined under the 

“closely drawn” standard applicable to First 

Amendment challenges to limitations imposed by 

campaign finance laws, section 30119 cannot 

stand. The failure of the court of appeals to follow 

the teachings of this Court with respect to the three 

subsidiary questions outlined above was 

compounded by its failure to ask the overall 

question of why a total ban was needed and why a 

similar ban was not applied to others in similar 
38

situations. Section 30119 extends to many 

contributions and contributors that no reasonable 

person could think would affect the awarding of 

federal contracts, while at the same time allowing 

the political committees of major corporate 

contractors, along with their officers and 

shareholders, as well as federal grantees and 

campaign bundlers, to make (or bundle) 

contributions that in the aggregate could exceed $3 

million per contributor per election. Because the 

court below did not appreciate these important 

aspects of the operation of these laws, this Court 

should grant review and apply the proper 

standards under the Equal Protection and First 

Amendment to section 50119.

CONCLUSION

For the foregoing reasons, the writ of 

certiorari should be granted.

Respectfully submitted,

Alan B. Morrison

(Counsel of Record)

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

abmorrison@law.gwu.edu

Counsel for Petitioner

October 2, 2015