United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc September 30, 2014 Decided July 7, 2015

No. 13-5162

WENDY E. WAGNER, ET AL.,

PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION,

DEFENDANT

On Certification of Constitutional Questions 

from the United States District Court

for the District of Columbia

(No. 1:11-cv-01841)

Alan B. Morrison argued the cause for plaintiffs. With him

on the briefs was Arthur B. Spitzer.

Ilya Shapiro and Allen J. Dickerson were on the brief for

amici curiae Center for Competitive Politics, et al. in support of

plaintiffs.

Kevin Deeley, Acting Associate General Counsel, Federal

Election Commission, argued the cause for defendant. With him

on the briefs were Harry J. Summers, Assistant General

Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.

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J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and

Donald J. Simon were on the brief for amici curiae Campaign

Legal Center, et al. in support of defendant.

Before:GARLAND, Chief Judge, and HENDERSON,ROGERS,

TATEL,BROWN,GRIFFITH,KAVANAUGH,SRINIVASAN,MILLETT,

PILLARD, and WILKINS, Circuit Judges. 

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Seventy-five years ago, Congress

barred individuals and firms from making federal campaign

contributions while they negotiate or perform federal contracts. 

The plaintiffs, who are individual government contractors,

contend that this statute violates their First Amendment and

equal protection rights. Because the concerns that spurred the

original bar remain as important today as when the statute was

enacted, and because the statute is closely drawn to avoid

unnecessary abridgment of associational freedoms, we reject the

plaintiffs’ challenge.

I

The statute at issue, 52 U.S.C. § 30119(a)(1), makes it

unlawful for any person “who enters into any contract with the

United States . . . directly or indirectly to make any contribution

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

office or to any person for any political purpose.” This

prohibition applies “between the commencement of negotiations

. . . and . . . the completion of performance” of the contract. Id. 

The Federal Election Commission (FEC) has construed the

section not to apply “in connection with State or local

elections.” 11 C.F.R. § 115.2(a).

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The plaintiffs are three individuals who hold or have held

federal contracts. The first two, Lawrence Brown and Jan

Miller, spent much of their careers as full-time employees of the

U.S. Agency for International Development (USAID). Each

went back to work at USAID under a personal services contract

after retirement. The third plaintiff, Wendy Wagner, is a law

professor. In 2011, the Administrative Conference of the United

States (ACUS) hired Wagner under a consulting contract to

prepare a report about science and regulation.

All three plaintiffs wanted to make campaign contributions

during the 2012 federal elections, but each was barred from

doing so by § 30119. On October 19, 2011, they filed suit

against the FEC in the United States District Court for the

District of Columbia, challenging the statute’s constitutionality. 

The plaintiffs contend that § 30119 violates their rights under

both the First Amendment and the equal protection component

of the Fifth Amendment’s Due Process Clause. 

The plaintiffs have been careful to frame their challenge

narrowly. First, they challenge the constitutionality of § 30119

“only as it applies to plaintiffs and other individual contractors,”

not as it applies to contractors that are corporations or other

kinds of entities. Pls. Br. 1. Second, they do not challenge the

statute as the FEC might seek to apply it to a contractor’s

independent expenditures on electoral advocacy, as opposed to

his or her contributions to candidates, parties, or political action

committees (PACs). Id. at 40 n.5 (stating that the “[p]laintiffs

have no interest in making independent expenditures”); Oral

Arg. Recording 26:59-27:06 (same). Nor do they challenge the

law as the Commission might seek to apply it to donations to

PACs that themselves make only independent expenditures,

commonly known as “Super PACs.” Oral Arg. Recording

25:59-26:33 (“Super PACs . . . . are not at issue here; none of

my clients wants to make a contribution to them or anything like

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them.”); id. 26:59-27:06 (same). In short, the plaintiffs

challenge § 30119 only insofar as it bans campaign

contributions by individual contractors to candidates, parties, or

traditional PACs that make contributions to candidates and

parties.

After considering the merits of this challenge, the district

court granted summary judgment in favor of the FEC. Wagner

v. FEC, 901 F. Supp. 2d 101, 113 (D.D.C. 2012). On appeal, a

panel of this court held, sua sponte, that the district court lacked

jurisdiction to reach the merits of the constitutional claims

because the special judicial review provision of the Federal

Election Campaign Act (FECA) “grants exclusive merits

jurisdiction to the en banc court of appeals.” Wagner v. FEC,

717 F.3d 1007, 1011 (D.C. Cir. 2013) (citing 2 U.S.C. § 437h,

now codified at 52 U.S.C. § 30110). The panel therefore

remanded the case to the district court to make appropriate

findings of fact, and then to certify those facts and the relevant

constitutional questions to this court sitting en banc. Id. at 1017.

The case has now returned to us. But time does not stand

still, and some important facts have shifted in the years since

this litigation began. The plaintiffs advise us that both Wagner

and Brown have now completed their federal contracts and

hence are once again free to make campaign contributions. See

Brown Supp. Mootness Decl. ¶ 3; Second Wagner Supp. Decl.

¶ 2. Brown, at least, has already done so. See Brown Supp.

Mootness Decl. ¶ 3. Accordingly, Wagner’s and Brown’s

claims are moot. See, e.g., Arizonans for Official English v.

Arizona, 520 U.S. 43, 67-72 (1997) (holding that the plaintiff’s

departure from her position as a state employee mooted her First

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Amendment challenge to a law regulating the speech of state

employees).1

Miller’s contract is ongoing, however, and his constitutional

claims therefore remain alive. But the mootness of the other

plaintiffs’ claims matters because Miller’s injury is notably

narrower than theirs. Whereas Wagner and Brown alleged that

they wanted to support a variety of political “causes,” and that

they had given to “PACs” or “political committees” in the past,

Miller tells us only that he wants to contribute to “candidates

running for federal offices and/or their political parties.” 

Compare Wagner Decl. ¶ 6, and Brown Decl. ¶¶ 6, 8, with

Miller Decl. ¶ 7. Miller thus has standing to challenge the

statute only as it applies to contributions to candidates and

parties. See Davis v. FEC, 554 U.S. 724, 734 (2008)

(“[S]tanding is not dispensed in gross. Rather, a plaintiff must

demonstrate standing for each claim he seeks to press . . . .”

(citation and internal quotation marks omitted)).

1

Although Wagner’s ACUS contract is her first, she says that she

“expect[s]” to “be offered other similar opportunities in the future”

because her area of expertise “is a very important topic for federal

regulatory agencies.” Wagner Decl. ¶ 4. Brown also plans to seek

future work with the federal government, “either as an employee or as

a contractor,” and therefore “may or may not be subject to” § 30119

at some future point. Brown Supp. Mootness Decl. ¶ 4. These

possibilities are too speculative to sustain a concrete interest in this

litigation. See Munsell v. Dep’t of Agric., 509 F.3d 572, 582-83 (D.C.

Cir. 2007) (holding “that a live controversy is not maintained by

speculation that claimant might reenter a business that it has left”

(citing City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278,

283-84 (2001))). Neither Brown nor Wagner has argued that his or

her injury, though capable of repetition, will evade review unless we

make an exception to the ordinary rule of mootness. Cf. Spencer v.

Kemna, 523 U.S. 1, 17 (1998) (explaining the situations in which that

exception applies).

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Our limited jurisdiction therefore narrows the plaintiffs’

already-narrow challenge even further: the only issue properly

before us is the application of § 30119 to contributions by an

individual contractor to a federal candidate or political party. In

Parts II through V, we address the plaintiffs’ First Amendment

arguments. In Part VI, we consider their equal protection

arguments.2

II

Since Buckley v. Valeo, the Supreme Court has instructed us

to review different kinds of campaign finance regulations with

different degrees of scrutiny. 424 U.S. 1, 19-25, 44-45 (1976);

see McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014) (plurality

opinion); McConnell v. FEC, 540 U.S. 93, 134-38 (2003),

overruled in part on other grounds by Citizens United v. FEC,

558 U.S. 310 (2010). Laws that limit a person’s independent

expenditures on electoral advocacy are subject to strict scrutiny. 

McCutcheon, 134 S. Ct. at 1444 (citing Buckley, 424 U.S. at 44-

45). Under that standard, “the Government may regulate

protected speech only if such regulation promotes a compelling

interest and is the least restrictive means to further the

articulated interest.” Id.; see, e.g., Citizens United, 558 U.S. at

339-41.

Laws that regulate campaign contributions, however, are

subject to “a lesser but still ‘rigorous standard of review,’”

McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at

29), because “contributions lie closer to the edges than to the

core of political expression,” FEC v. Beaumont, 539 U.S. 146,

2

We continue to describe the arguments as those of the

“plaintiffs,” notwithstanding that only a single plaintiff’s arguments

remain alive, because the plaintiffs presented their arguments

collectively in a single set of briefs and oral arguments.

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161 (2003). “Under that standard, ‘[e]ven a significant

interference with protected rights of political association may be

sustained if the State demonstrates a sufficiently important

interest and employs means closely drawn to avoid unnecessary

abridgment of associational freedoms.’” McCutcheon, 134 S.

Ct. at 1444 (emphasis added) (quoting Buckley, 424 U.S. at 25);

see Beaumont, 539 U.S. at 161-62; SpeechNow.org v. FEC, 599

F.3d 686, 692 (D.C. Cir. 2010) (en banc).

The Supreme Court has repeatedly applied this “closely

drawn” standard to challenges to campaign contribution

restrictions.3 And it has repeatedly (and recently) declined

invitations “to revisit Buckley’s distinction between contributions

and expenditures and the corollary distinction in the applicable

standards of review,” McCutcheon, 134 S. Ct. at 1445.4 So, too,

have we. See, e.g., SpeechNow.org, 599 F.3d at 696.

3

See, e.g., McCutcheon, 134 S. Ct. at 1446-62 (aggregate

contribution limits); Randall v. Sorrell, 548 U.S. 230, 246-63 (2006)

(plurality opinion) (state contribution limits); McConnell, 540 U.S. at

231-32 (2003) (ban on contributions by minors); Beaumont, 539 U.S.

at 161-63 (2003) (ban on corporate contributions); FEC v. Colo.

Republican Fed. Campaign Comm., 533 U.S. 431, 456-65 (2001)

(limits on party expenditures that are coordinated with candidates);

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386-95 (2000) (state

contribution limits); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 196-99

(1981) (plurality opinion) (limits on contributions to multicandidate

committees).

4

See, e.g., Shrink Mo. Gov’t PAC, 528 U.S. at 406-10 (Kennedy,

J., dissenting); Colo. Republican Fed. Campaign Comm. v. FEC, 518

U.S. 604, 635-640 (1996) (Thomas, J., concurring in the judgment and

dissenting in part); see also SpeechNow.org, 599 F.3d at 696 (noting

that the “Citizens United Court avoided ‘reconsider[ing] whether

contribution limits should be subjected to rigorous First Amendment

scrutiny’” (quoting Citizens United, 558 U.S. at 359)).

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The plaintiffs argue that we should nonetheless apply strict

scrutiny here because § 30119 does not merely limit

contributions, but bans them entirely. As the plaintiffs

recognize, however, the Supreme Court expressly rejected this

argument in FEC v. Beaumont, concluding that both limits and

bans on contributions are subject to the same “closely drawn”

standard. 539 U.S. at 161-63. “This argument,” the Court said,

“overlooks the basic premise we have followed in setting First

Amendment standards for reviewing political financial

restrictions: the level of scrutiny is based on the importance of

the ‘political activity at issue’ to effective speech or political

association.” Id. at 161 (quoting FEC v. Mass. Citizens for Life,

Inc., 479 U.S. 238, 259 (1986)). “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.” Id. at 162. Indeed,

although the plaintiffs insist that “[t]he closest case” to this one

is McConnell v. FEC, which struck down a ban on contributions

by persons under the age of eighteen, Pls. Br. 39, McConnell

itself applied the “closely drawn” test, citing Beaumont. See

McConnell, 540 U.S. at 231-32.

The plaintiffs further maintain that Citizens United v. FEC

“casts doubt” on Beaumont. Pls. Br. 40. We do not see the

basis for that claim. The plaintiffs correctly note that Citizens

United “applied strict scrutiny to the ban on for-profit corporate

independent expenditures.” Id. But the reason for applying

strict scrutiny was not that the case involved a ban, but that it

involved independent expenditures rather than contributions. 

See 558 U.S. at 359. Accordingly, the “closely drawn” standard

remains the appropriate one for review of a ban on campaign

contributions. See Republican Nat’l Comm. v. FEC, 698 F.

Supp. 2d 150, 156 (D.D.C.), summ. aff’d, 561 U.S. 1040 (2010);

Yamada v. Snipes, No. 12-17845, 2015 WL 2384944, at *19 &

n.17 (9th Cir. May 20, 2015); Preston v. Leake, 660 F.3d 726,

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734-35 (4th Cir. 2011); Green Party of Conn. v. Garfield, 616

F.3d 189, 199 (2d Cir. 2010).

There is one respect, however, in which the “closely drawn”

standard may not be a perfect fit for this case. But that

consideration would cut in favor of a more, rather than less,

deferential standard of review. Section 30119 is a restriction on

First Amendment activity aimed only at those who choose to

work for the federal government. To be sure, citizens do not

check their First Amendment rights at the agency door.5

Nonetheless, the 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.” Bd. of Cnty.

Comm’rs v. Umbehr, 518 U.S. 668, 676 (1996) (internal

quotation marks omitted); see, e.g., U.S. Civil Serv. Comm’n v.

Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 566-67 (1973);

United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947). 

In so doing, the Court has held that the government may

“maintain a statutory restriction on employee speech” if it is

“able to satisfy a balancing test of the Pickering form.” United

States v. Nat’l Treasury Emps. Union (NTEU), 513 U.S. 454,

467 (1995) (referring to Pickering v. Bd. of Educ. of Twp. High

Sch. Dist. 205, 391 U.S. 563, 568 (1968)).6

5

See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996)

(noting that the Court’s “precedents have long since rejected Justice

Holmes’ famous dictum, that a policeman ‘may have a constitutional

right to talk politics, but he has no constitutional right to be a

policeman’” (quoting McAuliffe v. Mayor of New Bedford, 29 N.E.

517, 517 (Mass. 1892))).

6

Under the Pickering test, a court must “‘arrive at a balance

between the interests of the [employee], as a citizen, in commenting

upon matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it

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Although the plaintiffs are contractors rather than

employees, they acknowledge that their positions are often

indistinguishable from those of employees. Pls. Br. 17, 19; see

Miller Decl. ¶¶ 6-7 (stating that “the nature of the work

performed by an individual rarely varied depending on whether

the person was an employee or a contractor,” and that “in almost

every respect” his relationship to his agency and supervisor is

“identical” to that of an employee); see also District Court

Findings of Fact ¶ 13 [hereinafter D. Ct. Findings]. In fact, two

of the plaintiffs “are retired employees from the same agency

where they [were hired as] contractual consultants [to] do much

the same work they previously did.” Pls. Br. 35-36. The

plaintiffs further acknowledge, in light of the case law described

above, that Congress has greater latitude to restrict the

expression of both employees and government contractors than

it does with respect to the general public. See Oral Arg.

Recording 6:00-08, 14:21-33. Indeed, the Court has expressly

extended the Pickering balancing test to cases involving

government contractors. See Umbehr, 518 U.S. at 684-85

(holding that there is no “difference of constitutional magnitude

between independent contractors and employees” in the context

of a speech-retaliation claim, and “that the same form of

[Pickering] balancing analysis should apply to each” (internal

quotation marks and citation omitted)); see also O’Hare Truck

Serv., Inc. v. City of Northlake, 518 U.S. 712, 719-20 (1996).

To resolve this case, we need not precisely parse the way in

which the “closely drawn” standard intersects with or differs

from the Pickering balancing test. It will suffice for us to

proceed under the rubric of the former, since it is -- if anything

-- the less deferential standard. In doing so, however, we will

take into account the considerations that the Supreme Court has

performs through its employees.’” NTEU, 513 U.S. at 465-66

(quoting Pickering, 391 U.S. at 568).

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indicated are particularly relevant in evaluating restrictions the

government imposes in its role as employer. We therefore now

proceed to examine whether, with respect to § 30119, the

government has “‘demonstrate[d] a sufficiently important

interest and employ[ed] means closely drawn to avoid

unnecessary abridgment of associational freedoms.’” 

McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at

25).

III

Our initial responsibility under the “closely drawn” standard

is to determine whether the government has advanced a

“sufficiently important interest” in support of § 30119. The

FEC argues that there are two such interests, each of which has

been accepted by the Supreme Court as sufficient to warrant

appropriate restrictions on First Amendment rights. We briefly

address the sufficiency of each of those interests in the abstract,

before turning to whether they are properly invoked in light of

the particular problems that § 30119 addresses.

A

The two interests asserted by the government are: (1)

protection against quid pro quo corruption and its appearance,

and (2) protection against interference with merit-based public

administration.

The first interest is the most significant, as the Supreme

Court has repeatedly held that “the Government’s interest in

preventing quid pro quo corruption or its appearance [is]

‘sufficiently important’” to justify the regulation of campaign

contributions. McCutcheon, 134 S. Ct. at 1445 (quoting

Buckley, 424 U.S. at 26-27). In fact, the Court has “stated that

the same interest may properly be labeled ‘compelling,’ so that

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the interest would satisfy even strict scrutiny.” Id. at 1445

(citing FEC v. Nat’l Conservative Political Action Comm., 470

U.S. 480, 496-97 (1985)). As the Court has explained, “[t]hat

Latin phrase captures the notion of a direct exchange of an

official act for money,” id. at 1441, and such exchanges

undermine “the integrity of our system of representative

democracy,” Buckley, 424 U.S. at 26-27. “Of almost equal

concern [is] . . . the appearance of corruption,” which threatens

“‘confidence in the system of representative Government.’” Id.

at 27 (quoting Letter Carriers, 413 U.S. at 565). Therefore, if

the FEC shows that § 30119 furthers the interest in combating

quid pro quo corruption or its appearance, that will suffice to

clear the “closely drawn” standard’s first hurdle.7

The second interest is also significant, and in combination

with the first makes this case even stronger for the FEC. 

Although the Supreme Court has identified no congressional

objective beyond protection against quid pro quo corruption and

its appearance that warrants imposing campaign finance

restrictions on the citizenry at large, see McCutcheon, 134 S. Ct.

at 1450; Citizens United, 558 U.S. at 359, it has “upheld a

narrow class of speech restrictions that operate to the

disadvantage of certain persons, . . . . based on an interest in

allowing governmental entities to perform their functions,”

Citizens United, 558 U.S. at 341 (citing, inter alia, Letter

Carriers, 413 U.S. at 557). That narrow class of approved

speech restrictions includes the Hatch Act’s limits on political

activities by federal employees, which, as the Court put it in

Citizens United, rest on the principle that “‘[f]ederal service

should depend upon meritorious performance rather than

political service.’” 558 U.S. at 341 (quoting Letter Carriers,

413 U.S. at 557). 

7

Throughout this opinion, when we use the terms “corruption” or

its “appearance,” we refer to the quid pro quo variety.

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The Court’s cases indicate that this interest in protecting

merit-based public administration has two distinct but mutually

reinforcing components. The first is that the Government

“operate effectively and fairly,” Letter Carriers, 413 U.S. at

564, which in turn comprises a series of interrelated concerns. 

The “‘interest of the [government], as an employer, in

promoting the efficiency of the public services it performs

through its employees,’” id. (emphasis added) (quoting

Pickering, 391 U.S. at 568), is perhaps best captured by the

Court’s rationale for upholding the original 1876 employee

contribution ban: “If . . . a refusal [to make political

contributions] may lead to putting good men out of the service,

liberal payments may be made the ground for keeping poor ones

in.” Ex parte Curtis, 106 U.S. 371, 375 (1882). The related

interest in operating fairly is the “great end of Government -- the

impartial execution of the laws.” Letter Carriers, 413 U.S. at

565. “It seems fundamental,” the Court has said, that “those

working for [Government] agencies, should administer the law

in accordance with the will of Congress, rather than in

accordance with their own or the will of a political party.” Id.

at 564-65. In this regard, “it is not only important that the

Government and its employees in fact avoid practicing political

justice, but it is also critical that they appear to the public to be

avoiding it, if confidence in the system of representative

Government is not to be eroded to a disastrous extent.” Id. at

565.

The flip side of the interest in governmental efficiency and

fairness is the employees’ interest in being “sufficiently free

from improper influence” or coercion, which the government

may also vindicate on their behalf. Id. As the Court has

explained, it upheld the Hatch Act’s restrictions on “political

campaigning” by federal employees in part because, in the

Court’s “judgment[,] . . . congressional subordination of those

activities was permissible to safeguard the core interests of

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individual belief and association.” Elrod v. Burns, 427 U.S.

347, 371 (1976). See NTEU, 513 U.S. at 471 (explaining that

“the Hatch Act aimed to protect employees’ rights, notably their

right to free expression, rather than to restrict those rights”);

Letter Carriers, 413 U.S. at 566 (identifying an interest, “as

important as any other,” in “mak[ing] sure that Government

employees would be free from pressure and from express or tacit

invitation to . . . perform political chores in order to curry favor

with their superiors”); Ex parte Curtis, 106 U.S. at 374

(identifying “the protection of those in the public service against

unjust exactions” as an independently sufficient basis for

upholding the 1876 statute restricting contributions by federal

employees). 

The Supreme Court has repeatedly credited these

“obviously important interests sought to be served by . . . 

limitations on partisan political activities,” Letter Carriers, 413

U.S. at 564, for over a century.8

 And there is no reason why

they should not be heard in support of restrictions on contractors

as well as regular employees. Cf. NASA v. Nelson, 562 U.S.

134, 150 (2011) (rejecting the respondents’ argument that,

“because they are contract employees and not civil servants, the

Government’s broad authority in managing its affairs should

apply with diminished force”); Umbehr, 518 U.S. at 676-79

(noting that, under the Pickering balancing test, “‘[t]he

government’s interest in achieving its goals as effectively and

efficiently as possible is elevated . . . to a significant one when

it acts as employer,’” and holding that Pickering applies to

claims by independent contractors that they were terminated for

8

See, e.g., Citizens United, 558 U.S. at 341; NTEU, 513 U.S. at

471; Elrod, 427 U.S. at 370; Buckley, 424 U.S. at 27; Letter Carriers,

413 U.S. at 557; Mitchell, 330 U.S. at 98; Ex parte Curtis, 106 U.S. at

374-75.

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their speech (quoting Waters v. Churchill, 511 U.S. 661, 675

(1994) (plurality opinion))).

We now proceed to examine whether these two Courtapproved justifications for limitations on campaign activities --

to protect against quid pro quo corruption and its appearance,

and to protect merit-based administration -- are furthered by the

contractor contribution statute.

B

We begin with the historical pedigree of § 30119, which

stretches back to the 1870s. That history demonstrates that

Congress did indeed aim to protect the two interests articulated

by the FEC, and that its concerns on both fronts were well

warranted.

1. Congress began to tackle problems related to the political

activity of those who work for the government in the late 19th

century. See generally Letter Carriers, 413 U.S. at 555-60. It

started by prohibiting most federal employees “from requesting,

giving to, or receiving from, any other . . . employee of the

Government, any money or property . . . for political purposes.” 

Act of Aug. 15, 1876, ch. 287, § 6, 19 Stat. 143, 169. In

upholding that early statute as “within the just scope of

legislative power,” the Supreme Court declared that its “evident

purpose” was “to promote efficiency and integrity in the

discharge of official duties” and “to protect the classes of . . .

employees provided for from being compelled to make

contributions for [political] purposes through fear of dismissal

if they refused.” Ex parte Curtis, 106 U.S. at 373-74.

The 1876 statute was limited to employees of the Executive

Branch. In the 1883 Pendleton Act, Congress took the next step,

making it a crime for its own members, among others, to “solicit

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or receive” political contributions from federal workers, ch. 27,

§ 11, 22 Stat. 403, 406, and for those workers to “give or hand

over” such contributions, id. § 14, 22 Stat. at 407.9

 The

Pendleton Act further declared that “no person in the public

service is for that reason under any obligations to contribute to

any political fund.” Id. § 2, 22 Stat. at 404. And it “authorized

the President to promulgate rules to carry the Act into effect and

created the Civil Service Commission as the agency or

administrator of the Act.” Letter Carriers, 413 U.S. at 558.

In 1925, Congress broadened the ban to include solicitation

and receipt by congressional challengers as well as incumbents,

while continuing to tweak the range of forbidden donors. See

Federal Corrupt Practices Act, 1925, ch. 368, sec. 312, § 118, 43

Stat. 1070, 1073. When Congressman Harry Wurzbach was

subsequently indicted for receiving contributions from federal

employees, the Supreme Court again upheld the statute as a

proper exercise of Congress’ powers. United States v.

Wurzbach, 280 U.S. 396 (1930); see Mitchell, 330 U.S. at 98.

Alongside these early bans on campaign contributions,

Congress and the Executive Branch incrementally expanded the

scope of the nascent civil service system, imposing limitations

on political activity by employees and implementing meritbased hiring rules. See Letter Carriers, 413 U.S. at 557-60. 

9

 Because the Pendleton Act prohibited accepting contributions

from “any person receiving any salary or compensation from moneys

derived from the Treasury of the United States,” id. § 11, 22 Stat. at

406, it textually encompassed contributions from the various

government contractors of the era -- ranging from experts hired to

survey Indian lands, see Contract for Surveying Public Lands, 10 Op.

Att’y Gen. 261, 261 (1862), to a contractor hired to make copies of

patent drawings for the Commissioner of Patents, see Letting

Contracts--Advertisement, 15 Op. Att’y Gen. 538 (1876).

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Those efforts culminated in the Hatch Act of 1939, which aimed

to consolidate civil service reforms and “to combat

demonstrated ill effects of Government employees’ partisan

political activities.” NTEU, 513 U.S. at 471. As the Court has

explained, Congress’ purpose was to protect merit-based

administration, including ensuring governmental efficiency and

fairness and shielding government personnel from political

coercion. See Letter Carriers, 413 U.S. at 564-66.

The Hatch Act was particularly aimed at certain notorious

abuses that occurred during the 1936 and 1938 election

campaigns. See id. at 559-60. Responding to reports that

workers paid by the Works Progress Administration (WPA) had

been coerced to contribute to the Democratic Party, for

example,10 the Hatch Act criminalized accepting political

contributions from anyone known to be receiving

“compensation, employment, or other benefit” from work relief

funds. Hatch Act, ch. 410, §§ 5, 8, 53 Stat. 1147, 1148.

The Act imposed other restrictions on political activity by

government employees as well, including barring them from

“tak[ing] any active part in political management or in political

campaigns.” Id. § 9(a), 53 Stat. at 1148. In subsequently

upholding those restrictions against a First Amendment

challenge, the Supreme Court noted that they were “not

dissimilar in purpose from the statutes against political

10See, e.g., 84 CONG. REC. 9598 (1939) (statement of Rep.

Taylor) (reporting that WPA workers had been required to place $3 to

$5 out of their $30 monthly pay under a Democratic donkey

paperweight on their supervisor’s desk); see also REPORT OF THE

SPECIAL COMM. TO INVESTIGATE SENATORIAL CAMPAIGN

EXPENDITURES AND USE OF GOVERNMENTAL FUNDS IN 1938, S. REP.

NO. 76-1, pt. 1, at 8-33, 39 (1939) (recounting WPA abuses and

recommending reforms).

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contributions of money.” Mitchell, 330 U.S. at 98. Congress,

the Court said, “recognizes danger to the [civil] service in that

political rather than official effort may earn advancement and to

the public in that governmental favor may be channeled through

political connections.” Id. Twenty-six years later, the Court

again rejected a First Amendment challenge to the same

restrictions. See Letter Carriers, 413 U.S. at 551.

Although the 1939 Hatch Act focused on public employees

and recipients of work relief, exploitation of government

contractors drew congressional interest as well. Arguing that the

original bill “does not go far enough,” Congressman J. Will

Taylor pointed to the coercion of contractors in the “‘celebrated’

Democratic campaign book” scandal as a prime example of

“political immorality and skullduggery that should not be

tolerated.” 84 CONG. REC. 9598-99 (1939). Representative

Taylor recounted that, at the behest of the Democratic National

Committee, party representatives paid visits to government

contractors, reminding each one “of the business he had received

from the Government” and explaining that the contractor was

expected to buy a number of the party’s souvenir convention

books -- at $250 each -- “in proportion to the amount of

Government business he had enjoyed.” Id. In addition, “large

concerns, which directly or indirectly, benefitted from

Government business, were . . . by sinister methods, convinced

of the importance of taking advertising space in the book.” Id.;

see also 81 CONG. REC. 6429-30 (1937) (statement of Rep.

Taylor) (citing newspaper report regarding solicitation of

contractors in Tennessee). Taylor urged that the bill “should be

amended to include rackets of this character.” 84 CONG. REC.

9599 (1939).

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The next year, as the scandal surrounding the campaign

books persisted,11 Congress took up that task in a package of

amendments to the Hatch Act. Denouncing contracting abuses

as “[t]he greatest source of corruption in American politics

today,” Senator Harry Byrd argued for a broad amendment that

would “prevent those who are making money out of

governmental contracts from making contributions to any

political party,” and thereby “prevent them from making

contributions which may be considered in some instances as

bribery in order to secure governmental contracts for

themselves.” 86 CONG.REC. 2982 (1940). Thus, in addition to

specifically banning the purchase of goods (such as the

campaign books) from political parties, see Act of July 19, 1940,

ch. 640, sec. 4, § 13(c), 54 Stat. 767, 770-71, Congress enacted

the general contractor contribution ban that is now before us, id.

§ 5(a), 54 Stat. at 772.

The statute that Congress passed in 1940 has retained its

essential features since that time. Then, as now, it barred any

person or firm negotiating or performing a federal contract from

contributing “to any political party, committee, or candidate for

public office or to any person for any political purpose or use.” 

Id. (codified as amended at 52 U.S.C. § 30119(a)(1)). 

2. Just as the Hatch Act was spurred by outrage over

misconduct in the 1936 and 1938 elections, “deeply disturbing

examples” of corruption “surfacing after the 1972 election” led

to the Federal Election Campaign Act (FECA) Amendments of

11See, e.g., 86 CONG. REC. 9362 (1940) (statement of Rep.

Knutson) (recounting advertising rates for the 1940 Democratic

campaign book and speculating that “all of this space will be taken by

Government contractors,” who would be “solicit[ed] . . . at the point

of a gun”); see also Editorial, That Convention Book, N.Y. TIMES,

Mar. 13, 1940, at 22. 

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1974. Buckley, 424 U.S. at 27 & n.28 (citing Buckley v. Valeo,

519 F.2d 821, 839-840 & nn. 36-38 (D.C. Cir. 1975) (en banc)). 

Particularly important for our purposes, those “disturbing

examples” included a variety of efforts to channel government

contracts to President Nixon’s political supporters and to exact

contributions from existing contractors, both of which figured

prominently in the Senate Watergate Committee’s report. See,

e.g., FINAL REPORT OF THE SELECT COMM. ON PRESIDENTIAL

CAMPAIGN ACTIVITIES, S. REP. NO. 93-981, at 368 (1974)

[hereinafter WATERGATE REPORT] (describing the so-called

“Responsiveness Program,” pursuant to which agencies were to

ensure that “[t]he letting of Government grants, contracts, and

loans” was directed at “meet[ing] reelection needs”); id. at 412

(recounting evidence that “campaign officials were participating

in the selection process for the awards of GSA architectural and

engineering design contracts”); id. at 1210 & n.85 (separate

views of Sen. Weicker) (recounting “evidence of quid pro quos

for the contracts from” four cabinet departments and six

agencies).12

As the Watergate Committee recognized, much of the

conduct that it exposed squarely implicated the contractor

contribution statute (then 18 U.S.C. § 611). See WATERGATE

REPORT at 440. The Committee reported that the 1972 election

12See also WATERGATE REPORT at 440 (“There is evidence that

plans were laid for Government officials and others to solicit

campaign contributions from minority recipients of Federal grants,

loans, and contracts. Moreover, the committee has obtained evidence

that these plans were in part consummated.”); id. at 384-85

(recounting testimony that a contract was awarded to a Nixon

fundraiser “based solely on political motivations” and “‘rammed down

the throats’ of Department officials”). In the passage of our Buckley

opinion later relied upon by the Supreme Court, this court leaned

heavily on the Watergate Report. See 519 F.2d at 839 nn.35-36, 38.

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gave rise to the first indictments of contributors under that

statute, resulting in guilty pleas and then-maximum fines. Id. at

486-89. “In view of the abuses discovered,” it recommended

that Congress take care not to “lessen the penalties” or otherwise

“weaken[] . . . the law in this area.” Id. at 444. The Committee

further concluded that the statutory scheme was “deficient in

failing to provide a civil penalty,” which made it difficult to

address “nonflagrant cases,” and recommended that the new

Federal Election Commission be given primary civil

enforcement jurisdiction with respect to, inter alia, the

contractor contribution statute. Id. at 566-67.

A few months after the Watergate Committee made its

recommendations, Congress increased the maximum fine for

violations of the contractor contribution statute from $5,000 to

$25,000, see FECA Amendments of 1974, Pub. L. No. 93-443,

§ 101(e)(2), 88 Stat. 1263, 1267, and authorized the

Commission to initiate civil enforcement actions for violations

of that provision, see id. sec. 208(a), § 314(a)(7), 88 Stat. at

1285.13 It also strengthened enforcement of the longstanding

bans on campaign contributions by corporations and labor

unions. See id. § 101(e)(1), 88 Stat. at 1267; see also Beaumont,

539 U.S. at 152-53 (recounting the history of those bans). And,

as is well known, the 1974 amendments also imposed generally

applicable ceilings on campaign contributions. See

McCutcheon, 134 S. Ct. at 1445; Buckley, 424 U.S. at 7. 

FECA’s “primary purpose,” the Court has said, “was to limit

quid pro quo corruption and its appearance.” McCutcheon, 134

S. Ct. at 1444 (citing Buckley, 424 U.S. at 26-27).

13That monetary penalty has since been superseded by FECA’s

own penalty scheme. See 52 U.S.C. § 30109(a)(5)-(6) (civil

penalties); id. § 30109(d) (criminal penalties).

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Finally, in 1976, Congress incorporated the contractor

contribution ban into FECA itself. See FECA Amendments of

1976, Pub. L. No. 94-283, sec. 112(2), § 322, 90 Stat. 475,

492-93. Over the subsequent decades, both FECA and the civil

service laws have been further amended. Those amendments

lifted most restrictions on campaign contributions by federal

employees.14 At the same time, however, they retained some of

the more direct limits on government employees’ political

activities, including barring most federal employees from

soliciting or accepting political contributions, running for office

in partisan elections, and hosting political fundraisers. See 5

U.S.C. §§ 7323(a), 7324(a). The Civil Service Reform Act of

1978 also afforded federal employees protection against

“prohibited personnel practices,” 5 U.S.C. § 2302, including

discrimination on the basis of political affiliation and coercion

to make political contributions, id. § 2302(b)(1)(E), (b)(3), and

allowed them to seek redress through the Office of Special

Counsel and the Merit Systems Protection Board, 5 U.S.C.

§§ 1214-15, 1221. Congress has left the contractor contribution

ban in place, however, without change. See 52 U.S.C. § 30119.

3. As we have recounted, Congress enacted § 30119 in the

aftermath of a national scandal involving a pay-to-play scheme

for federal contracts. The statute was itself the outgrowth of a

decades-long congressional effort to prevent corruption and

ensure the merit-based administration of the national

government. And it was followed by subsequent scandals that

led to further legislative refinements, again motivated by

concerns over corruption and merit protection.

14See, e.g., Hatch Act Reform Amendments of 1993, Pub. L. No.

103-94, sec. 2(a), § 7323, 107 Stat. 1001, 1002 (1993) (codified at 5

U.S.C. § 7323); id. § 4(b), 107 Stat. at 1005 (codified at 18 U.S.C.

§ 603(c)). 

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This historical pedigree is significant. As the Court said in

Beaumont, “[j]udicial deference is particularly warranted where,

as here, we deal with a congressional judgment that has

remained essentially unchanged throughout a century of ‘careful

legislative adjustment.’” 539 U.S. at 162 n.9 (quoting FEC v.

Nat’l Right to Work Comm., 459 U.S. 197, 209 (1982)). 

Moreover, as we discuss in Part V below, the lineage of the

statute makes clear that its objects are the legitimate and

important purposes that the Commission claims they are. 

C

More recent evidence confirms that human nature has not

changed since corrupt quid pro quos and other attacks on meritbased administration first spurred the development of the present

legislative scheme. Of course, we would not expect to find --

and we cannot demand -- continuing evidence of large-scale

quid pro quo corruption or coercion involving federal contractor

contributions because such contributions have been banned

since 1940. As the Supreme Court has recognized, “no data can

be marshaled to capture perfectly the counterfactual world in

which” an existing campaign finance restriction “do[es] not

exist.” McCutcheon, 134 S. Ct. at 1457.15 Instead, “‘the

question is whether experience under the present law confirms

a serious threat of abuse.’” Id. (quoting FEC v. Colo.

Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)). 

15See Burson v. Freeman, 504 U.S. 191, 208 (1992) (plurality

opinion) (“The fact that these laws have been in effect for a long

period of time also makes it difficult for the States to put on witnesses

who can testify as to what would happen without them.”); FEC v.

Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)

(noting the “difficulty of mustering evidence to support long-enforced

statutes” because “there is no recent experience” without them). 

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The experience of states with and without similar laws is also

relevant. See id. at 1451 n.7; Citizens United, 558 U.S. at 357.

Unfortunately, as was the case with the coordinated

expenditure limits at issue in Colorado Republican, “[d]espite

years of enforcement of the challenged” contractor contribution

ban, “substantial evidence demonstrates” that individuals and

firms continue to “test the limits of the current law[s],” 533 U.S.

at 457 -- at both the federal and state levels. This experience

readily confirms that the government’s fear of the consequences

of removing the current ban is not unwarranted.

1. We begin with Congress itself, where a number of

corruption scandals point to the danger that contributions from

government contractors would pose. Indeed, although the

plaintiffs contend that Members of Congress are insulated from

the contracting process, see infra Part III.D.1, many significant

congressional corruption cases involve quid pro quo agreements

regarding contracts. In 2005, for example, Representative

Randy “Duke” Cunningham pled guilty to accepting millions of

dollars in bribes in exchange for influencing Defense

Department contract awards. See Plea Agreement at 4-6, ECF

No. 40 ex. 2, United States v. Cunningham, No. 3:05-cr-2137

(S.D. Cal. Nov. 28, 2005). Mitchell Wade, the defense

contractor who pled guilty to bribing Cunningham, admitted to

making illegal “straw” contributions to two other Members of

Congress as well, both of whom he targeted for their perceived

“ability to request appropriations funding that would benefit” his

company. Statement of Offenses at 12, United States v. Wade,

No. 1:06-cr-49 (D.D.C. Feb. 24, 2006).16

16Wade and the contracting corporation later agreed to pay a $1

million civil penalty for violating, inter alia, § 30119 (then 2 U.S.C.

§ 441c). Conciliation Agreement at 6-7, In re MZM, Inc. and Mitchell

Wade, Matter Under Review 5666 (FEC, Oct. 30, 2007).

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In 2006, Representative Bob Ney similarly pled guilty to a

series of quid pro quos with the lobbyist Jack Abramoff,

including steering a “multi-million dollar” contract for a House

of Representatives infrastructure project to one of Abramoff’s

clients. See Factual Basis for Plea at 6, United States v. Ney,

No. 1:06-cr-272 (D.D.C. Sept. 15, 2006). And in 1981, Senator

Harrison Williams was convicted on bribery and corruption

charges for crimes exposed in the FBI’s Abscam investigation. 

Williams “agreed to use his position as a United States Senator

to obtain government contracts” for titanium to be produced by

a mine financed by fictional Arab businessmen. United States

v. Williams, 529 F. Supp. 1085, 1091 (E.D.N.Y. 1981), aff’d,

705 F.2d 603 (2d Cir. 1983).

One might argue from this record that the general ban on

contractor contributions is unnecessary prophylaxis: after all,

congressmen who enter into quid pro quo agreements go to jail

anyway. But as the Supreme Court has explained, “laws making

criminal the giving and taking of bribes deal with only the most

blatant and specific attempts of those with money to influence

governmental action.” Buckley, 424 U.S. at 27-28. Although

the criminal cases certainly confirm the appetite for corruption

in contracting -- and the availability of channels for carrying it

out -- corruption and its appearance are no doubt more

widespread in the contracting process than our criminal dockets

reflect.

The Executive Branch is also an obvious site of potential

corruption in the contracting process, since its agencies are the

ones that ultimately award contracts. This was a key focus of

congressional concern during the Watergate hearings. See supra

Part III.B.2; see also, e.g., WATERGATE REPORT at 409

(describing a consultant who “was made to feel that his

continued success in obtaining Government contracts would, in

significant degree, be dependent on his contributing to the

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26

President’s reelection”).17 Many more recent instances of

corruption or its appearance in the agency contracting process

are collected in the Defense Department’s aptly named

Encyclopedia of Ethical Failure. See generally DEP’T OF

DEFENSE, OFFICE OF GEN. COUNSEL, ENCYCLOPEDIA OF

ETHICAL FAILURE 4-58, 77-78, 82, 84-88, 132-46 (updated

2014).

2. Further evidence comes from the states, many of which

have enacted pay-to-play laws in response to their own recent

experiences. At least seventeen states now limit or prohibit

campaign contributions from some or all state contractors or

licensees.18 The fact that many states have such laws shows that

17Another notorious pay-to-play contracting scheme of the

Watergate era involved Vice President Spiro Agnew. In 1973, a

federal investigation uncovered evidence that Agnew had accepted

bribes (including campaign contributions) in exchange for

infrastructure contracts while serving as Baltimore County Executive

and Governor of Maryland -- and that he had continued to request

payments from contractors as Vice President, “stat[ing] expressly that

he hoped to be able to be helpful . . . with respect to the awarding of

Federal engineering contracts.” Exposition of the Evidence at 3-4,

United States v. Agnew, No. 73-0535 (D. Md. Oct. 10, 1973),

reprinted in FBI Records: Spiro Agnew, Part 16, at 130,

http://vault.fbi.gov/Spiro%20Agnew. The Attorney General agreed

that Agnew could plead nolo contendere to a single count of tax

evasion if he resigned his office, which he did. See Transcript of Plea

Hearing at 7-8, United States v. Agnew, No. 73-0535 (D. Md. Oct. 10,

1973), available at http://research.archives.gov/description/279170.

18The laws of Hawaii and West Virginia most closely track the

text and design of § 30119. See HAW. REV. STAT. § 11-355; W. VA.

CODE § 3-8-12(d). Other states have tailored their restrictions

differently -- often more broadly than the federal model in some

respects, such as by sweeping in the individual principals of

contracting firms, and more narrowly in others, such as by targeting

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the federal statute is no outlier. Moreover, the corruption

scandals that prompted the adoption of those laws further

demonstrate the dangers that § 30119 helps stave off at the

federal level.19

New Jersey’s law, for example, was enacted in the

aftermath of a state investigation finding that a $392 million

contract for a failed project went to a firm that had made

extensive campaign contributions to state candidates and

political committees. See STATE OF N.J. COMM’N OF

INVESTIGATION, N.J. ENHANCED MOTOR VEHICLE INSPECTION

CONTRACT 1-2, 62-65 (2002). Similarly, Illinois’ law was

passed after former Governor George Ryan was convicted of

racketeering charges based on his efforts, as Secretary of State,

to steer state contracts to friendly firms in exchange for financial

support for his gubernatorial campaign. United States v.

particular industries or imposing ceilings on contract or contribution

size. See CAL. GOV’T CODE § 84308(d); CONN. GEN. STAT.

§ 9-612(f)(1)-(2); 30 ILL. COMP. STAT. 500/50-37; IND. CODE

§§ 4-30-3-19.5 to -19.7; KY. REV. STAT. ANN. § 121.330; LA. REV.

STAT. ANN. §§ 18:1505.2(L), 27:261(D); MICH. COMP. LAWS

§ 432.207b; NEB. REV. STAT. §§ 9-803, 49-1476.01; N.J. STAT. ANN.

§ 19:44A-20.13 to -20.14; N.M. STAT. ANN. § 13-1-191.1(E)-(F);

OHIO REV. CODE ANN. § 3517.13(I)-(Z), invalidated in part on other

grounds, United Auto Workers, Local Union 1112 v. Brunner, 911

N.E.2d 327 (Ohio Ct. App. 2009); 53 PA.CON.STAT. § 895.704-A(a);

S.C. CODE ANN. § 8-13-1342; VT. STAT. ANN. tit. 32, § 109(b); VA.

CODE ANN. § 2.2-3104.01.

19Further evidence also comes from the Securities and Exchange

Commission, which in 1994 approved a pay-to-play rule for municipal

financing in response to concern that brokers and dealers were making

political contributions to state and local officials to influence the

choice of underwriters. This court upheld that rule against First

Amendment challenge in Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995).

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Warner, 498 F.3d 666, 675 (7th Cir. 2007); see Ray Long,

Illinois Senate Overrides Blagojevich’s Veto, Enacts ‘Pay-toPlay’ Ethics Law, CHI. TRIB., Sept. 23, 2008, at 1. The law’s

passage prompted Ryan’s successor, Governor Rod Blagojevich,

to redouble his efforts to solicit contributions from state

contractors before the new rules took effect. See Mike McIntire

& Jeff Zeleny, Obama’s Intervention for Ethics Bill Indirectly

Led to Case Against Governor, N.Y. TIMES, Dec. 10, 2008, at

A32. Those efforts in turn drew the interest of federal

prosecutors, and Blagojevich was ultimately convicted of

various forms of pay-to-play corruption, including attempting to

extort campaign contributions from the chief executive of a

hospital in exchange for raising Medicaid reimbursement rates,

as well as offenses in connection with his effort to sell a U.S.

Senate seat. See Jury Verdict, United States v. Blagojevich, No.

1:08-cr-888 (N.D. Ill. June 27, 2011).

In 2005, Connecticut passed a Campaign Finance Reform

Act that prohibited “campaign contributions by state contractors,

lobbyists, and their families.” Green Party, 616 F.3d at 192. In

upholding the contractor contribution ban, the Second Circuit

noted that it was passed “in response to several corruption

scandals in Connecticut,” which together had “helped earn the

state the nickname ‘Corrupticut.’” Id. at 193 (quoting Green

Party of Conn. v. Garfield, 616 F.3d 213, 218-19 (2d Cir. 2010))

(internal quotation marks omitted). As the court detailed:

The most widely publicized of the scandals involved

Connecticut’s former governor, John Rowland. In

2004, Rowland was accused of accepting over

$100,000 worth of gifts and services from state

contractors . . . . Rowland accepted the gifts, it was

alleged, in exchange for assisting the contractors in

securing lucrative state contracts. Rowland resigned

amidst the allegations, and in 2005 pleaded guilty --

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along with two aides and several contractors -- to

federal charges in connection with the scandal.

Id. (quoting Green Party, 616 F.3d at 218-19). In light of that

experience, the court found “sufficient evidence” of “actual

corruption stemming from contractor contributions,” as well as

“a manifest need to curtail the appearance of corruption created

by contractor contributions.” Id. at 200.

Later, the Second Circuit also upheld New York City’s law

limiting contributions by entities “doing business with” the City. 

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011). In so doing,

the court noted that there were “actual pay-to-play scandals in

New York City in the 1980s,” id. at 188-89, and that there were

“several recent scandals . . . specifically involv[ing] pay-to-play

campaign donations” in New York State, id. at 190 n.15.20

We could go on. The FEC has assembled an impressive, if

dismaying, account of pay-to-play contracting scandals, not only

in the above states, but also in New Mexico, Hawaii, Ohio,

California, and elsewhere. See FEC’s Proposed Findings of

20The plaintiffs point out that, in Lavin v. Husted, the Sixth

Circuit overturned an Ohio statute that made it a crime for candidates

for attorney general or county prosecutor to accept contributions from

Medicaid providers. 689 F.3d 543 (6th Cir. 2012). The court did so

because, inter alia, the defendant Secretary of State “concede[d] that

he ha[d] no evidence at all in support of his theory that [the statute]

prevent[ed] actual or perceived corruption among prosecutors in

Ohio.” Id. at 547 (emphasis added). As we discuss in the text, that is

emphatically not the situation here. See also id. (distinguishing Green

Party on the ground that there the state did have evidence “to

demonstrate how its ban on contributions from contractors would help

bring such scandals to an end”).

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Fact, J.A. 298-313.21 But we think that the evidence canvassed

21See also, e.g., Yamada, 2015 WL 2384944, at *20 (upholding

Hawaii contractor contribution ban “in light of past ‘pay to play’

scandals and the widespread appearance of corruption that existed at

the time” the ban was passed in 2005); United States v. Dimora, 750

F.3d 619, 623 (6th Cir. 2014) (affirming conviction of Ohio county

official who “influenced Cleveland decision-makers and steered public

contracts in return for approximately 100 bribes worth more than

$250,000”); Plea Agreement at 3, United States v. Montoya, No. 1:05-

cr-2050 (D.N.M. Nov. 8, 2005) (guilty plea of New Mexico State

Treasurer, who explained that “it was quite easy to get bribes from

people who wanted to keep or obtain business,” including individual

investment and financial advisors); James Drew & Steve Eder, Petro:

Noe Stole Millions, TOLEDO BLADE, July 22, 2005 (reporting on an

Ohio scandal in which state workers’ compensation funds were

invested with a major political contributor who was ultimately

convicted of both corruption and theft from the funds, see State v.

Noe, 2009 WL 5174163 (Ohio Ct. App. 2009)); Carl Ingram, Former

Davis Aide Faces Charges in Oracle Probe, L.A.TIMES, Mar. 3, 2004

(recounting incident in which a corporate lobbyist delivered a $25,000

contribution to the Governor of California’s reelection campaign, via

his policy director, days after the state signed a $95 million contract

with the company; the contribution was ultimately returned and the

contract rescinded); Bruce Dunford, Jail Time, Fines Are Levied in

Hawaii Election Probe, BOSTON GLOBE, Jan. 12, 2004, at A3

(detailing “a scandal in which respected architects and engineers

illegally made political donations in the names of their employees,

wives, and children, allegedly to win government contracts” in

Honolulu); United States v. Troutman, 814 F.2d 1428, 1433-36 (10th

Cir. 1987) (affirming the extortion conviction of New Mexico’s State

Investment Officer for demanding that a bank make political

contributions in order to obtain a state contract); cf. Patrick Madden,

The Cost of D.C. Council’s Power Over Contracts, WAMU (Oct. 14,

2014), http://wamu.org/projects/paytoplay/#/story (reporting on an

investigation that “identified more than $5 million in political

contributions from more than 300 firms with [D.C.] Council-approved

contracts from 2005 to 2014,” and that revealed that “[r]oughly half

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31

thus far suffices to show that, in government contracting, the

risk of quid pro quo corruption and its appearance, and of

interference with merit-based administration, has not dissipated. 

Taken together, the record offers every reason to believe that, if

the dam barring contributions were broken, more money in

exchange for contracts would flow through the same channels

already on display.

D

Notwithstanding the above, the plaintiffs argue that the

interests asserted by the Commission are not furthered by

§ 30119 for two reasons. 

1. The plaintiffs contend that changes in government

contracting practices since the 1940s -- especially the advent of

formalized competitive bidding -- render the current system

“immune from political interference” in the majority of cases. 

Pls. Br. 11. Thus, they maintain, “even if a pay-to-play rationale

might have made [the statute] defensible in 1940, the vast

changes in federal procurement since then have made it

indefensible on that basis today.” Id. at 13. We are

unpersuaded. 

First, the facts that we have recounted above speak for

themselves. See supra Part III.C.1. If contracting were truly

immune from political interference, for example, Rep.

Cunningham could not have “pressure[d] and influence[d]

United States Department of Defense personnel to award and

execute government contracts.” Plea Agreement at 6, United

of the contractors’ campaign cash was donated to lawmakers within

a year of their contracts getting approved,” often “months and weeks

ahead of when the contracts were voted on” or even the same day as

the vote).

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States v. Cunningham, No. 3:05-cr-2137 (S.D. Cal. Nov. 28,

2005). Nor would the myriad of other instances of corruption

and self-dealing in the contract bidding process have occurred. 

See generally DEP’T OF DEFENSE, ENCYCLOPEDIA OF ETHICAL

FAILURE 4-58, 77-78, 82, 84-88, 132-46. Moreover, those facts

are hardly surprising. Although agencies do rely on specialized

contracting officers to help ensure independence, contracting

officers in turn rely on information about needs and objectives

provided by the “customer” agency, which may include input

from political appointees. See D. Ct. Findings ¶ 23 (citing

Schooner Dep. 110-16). And Members of Congress have many

opportunities of their own to intercede on behalf of their

constituents. See, e.g., MORTON ROSENBERG & JACK H.

MASKELL, CONG. RESEARCH SERV., CONGRESSIONAL

INTERVENTION IN THE ADMINISTRATIVE PROCESS: LEGAL AND

ETHICAL CONSIDERATIONS 80 (2003); H.R. REP. NO. 113-666,

at 4 (2014).

Second, most contracts held by individuals to provide

personal services on a regular basis, such as those held by

plaintiffs Brown and Miller, “‘are not . . . . subject to full and

open competition and the full range of rights and responsibilities

that follow.’” D. Ct. Findings ¶ 24 (quoting Schooner Dep. 89);

see 48 C.F.R. § 13.003(d). Nor is full-blown competitive

bidding required for contracts with values below the “simplified

acquisition threshold” -- set at $150,000 in most cases, 48

C.F.R. § 2.101. See 41 U.S.C. § 1901; 48 C.F.R. § 13.003(a). 

Instead, “‘the government can call two or three people on the

phone and operate in a very informal manner.’” D. Ct. Findings

¶ 24 (quoting Schooner Dep. 107-08). Wagner’s contract, for

example, was arranged under the simplified acquisition

procedures. Id. She was proactively approached by a staff

member at ACUS, and then discussed the arrangement with

ACUS’s Chairman, who is appointed by the President and

confirmed by the Senate. Wagner Decl. ¶ 3. In short, because

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the plaintiffs challenge § 30119 as it applies to individual

contractors, the competitive bidding regime does little to help

their case.

Finally, perhaps the most relevant change in government

contracting over the past several decades has been the enormous

increase in the government’s reliance on contractors to do work

previously performed by employees. See Schooner Dep. 35-36,

cited in D. Ct. Findings ¶ 22.22 If anything, that shift has only

strengthened the original rationales for the contractor

contribution ban by increasing the number of potential targets of

corruption and coercion -- targets who do not have the merit

system protections available to government employees. See 5

U.S.C. §§ 1214-15, 2301(b)(1)-(2); infra Part V.B.23

22See also Test. of John K. Needham, Director, Acquisition &

Sourcing Management, Gov’t Accountability Office, S. Hrg. 111-626,

at 3 (2010) (“[I]t is now commonplace for agencies to use contractors

to perform activities historically performed by government

employees.”); Presidential Memorandum for the Heads of Executive

Departments and Agencies on Government Contracting, Mar. 4, 2009

(noting that spending on government contracts had more than doubled

since 2001 and that the line between traditional public functions and

contracting functions “has been blurred and inadequately defined”);

PAUL C. LIGHT, RESEARCH BRIEF: THE NEW TRUE SIZE OF

GOVERNMENT 1 (2006) (noting that the Bush Administration “has

overseen the most significant increase in recent history in the largely

hidden workforce of contractors and grantees who work for the federal

government”).

23Increased reliance on individual contractors -- particularly

retirees such as Brown and Miller -- also raises a concern that some

former federal employees may unwittingly violate § 30119 because

they are unaware that they have become subject to a different set of

restrictions as contractors. However, as FEC counsel advised the

court, there is no criminal violation unless the individual knows his or

her conduct violates the law. Oral Arg. Recording 1:01:19-1:02:19; 

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2. The plaintiffs also question whether there is sufficient

evidence of corruption or coercion specifically with respect to

individual contractors, as compared to those organized as

corporations or other kinds of firms. It is true that most of the

examples set forth in Parts III.B and III.C above involve firms.24

We see no reason, however, to believe that the motivations for

corruption and coercion exhibited in those examples are

inapplicable in the case of individual contractors. Consider Sam

Harris, a consultant who told the Watergate Committee that “he

was made to feel that his continued success in obtaining

Government contracts would, in significant degree, be

dependent on his contributing to the President’s reelection.”

WATERGATE REPORT at 409. There is no basis for thinking that

Harris would have been less vulnerable to such coercion if,

instead of doing business as Sam Harris & Associates, id., he

had contracted with the government in his personal capacity. 

We are also mindful that less direct evidence is required when,

as here, the government acts to prevent offenses that “are

successful precisely because they are difficult to detect.” 

Burson, 504 U.S. at 208 (upholding restriction of campaign

see 52 U.S.C. § 30109(d)(1)(A) (imposing criminal penalties on those

who “knowingly and willfully” violate FECA); Bryan v. United

States, 524 U.S. 184, 191-92 (1998) (“[I]n order to establish a ‘willful’

violation of a statute, the Government must prove that the defendant

acted with knowledge that his conduct was unlawful.” (internal

quotation marks omitted)).

24But see, e.g., 84 CONG. REC. 9598, 9610 (1939) (statements of

Reps. Taylor and Michener) (detailing the coercion of WPA-paid

workers to contribute to the Democratic Party that led to passage of

the Hatch Act); WATERGATE REPORT at 413 (describing how federal

employees were pressured to help meet a “management objective” by

contributing to a Republican Party fundraiser); id. 429 (describing

evidence that contributions were solicited from Veterans’

Administration employees).

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speech near voting places as warranted to prevent “[v]oter

intimidation and election fraud,” notwithstanding limited record

evidence). “[N]o smoking gun is needed where . . . the conflict

of interest is apparent, the likelihood of stealth great, and the

legislative purpose prophylactic.” Blount v. SEC, 61 F.3d 938,

945 (D.C. Cir. 1995).

Moreover, the trend we identified above, toward a larger

federal workforce outside the protection of the civil service

system, necessarily poses an increased threat of both corruption

and coercion. If anything, past experience suggests that such

workers are particularly vulnerable to tacit (or not so tacit)

demands for political tributes. See, e.g., Rutan v. Republican

Party of Ill., 497 U.S. 62, 66 (1990) (describing state

government promotion decisions predicated on “whether the

applicant has provided financial or other support to the

Republican Party and its candidates”); Elrod, 427 U.S. at 355

(describing Cook County patronage system in which, “[i]n order

to maintain their jobs, respondents were required to . . . 

contribute a portion of their wages to the [Democratic] Party”);

see also Umbehr, 518 U.S. at 671 (describing an individual

whose contract for hauling trash allegedly was terminated in

retaliation for political criticism). A coercive patronage system

can thrive on even small contributions from a large group of

workers beholden to those in power -- which is what the

growing ranks of individual contractors staffing federal agencies

offer. As the Court explained in Elrod v. Burns, “[a]s

government employment . . . becomes more pervasive, the

greater the dependence on it becomes, and therefore the greater

becomes the power to starve political opposition by

commanding partisan support, financial and otherwise.” 427

U.S. at 356; see Letter Carriers, 413 U.S. at 565-66 (explaining

that “perhaps the immediate occasion for enactment of the Hatch

Act in 1939 . . . was the conviction that the rapidly expanding

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Government work force should not be employed to build a

powerful, invincible, and perhaps corrupt political machine”). 

E

Our historical review makes clear that the two Courtapproved justifications for limitations on campaign activities --

to protect against quid pro quo corruption and its appearance,

and to protect merit-based public administration -- were the

justifications that lay behind the contractor contribution statute. 

Likewise, our national experience supports Congress’ fear that

political contributions by government contractors can corrupt

and interfere with merit-based administration.

The Supreme Court has instructed that the “quantum of

empirical evidence needed to satisfy heightened judicial scrutiny

of legislative judgments will vary up or down with the novelty

and plausibility of the justification raised.” Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377, 391 (2000). There is nothing novel

or implausible about the notion that contractors may make

political contributions as a quid pro quo for government

contracts, that officials may steer government contracts in return

for such contributions, and that the making of contributions and

the awarding of contracts to contributors fosters the appearance

of such quid pro quo corruption. Nor is there anything novel or

implausible about the idea that contractors may be coerced to

make contributions to play in that game, or that more qualified

contractors may decline to play at all if the game is rigged. To

the contrary, the empirical record is more than sufficient to

satisfy the heightened judicial scrutiny appropriate for review of

the legislative judgments that support § 30119.

In sum, the interests supporting the contractor contribution

statute are legally sufficient, and the dangers it seeks to combat

are real and supported by the historical and factual record. 

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Accordingly, we now turn to the remainder of the “closely

drawn” test.

IV

Even if a contribution ban serves sufficiently important

interests, to satisfy the First Amendment it still must employ

“‘means closely drawn to avoid unnecessary abridgment of

associational freedoms.’” McCutcheon, 134 S. Ct. at 1444

(quoting Buckley, 424 U.S. at 25). Clearing this hurdle

“require[s] ‘a fit that is not necessarily perfect, but reasonable;

that represents not necessarily the single best disposition but one

whose scope is in proportion to the interest served[;] . . . that

employs not necessarily the least restrictive means but . . . a

means narrowly tailored to achieve the desired objective.’” Id.

at 1456-57 (quoting Bd. of Trs. v. Fox, 492 U.S. 469, 480

(1989)). The plaintiffs contend that § 30119 fails this test

because it is overinclusive in several respects, which we

consider in turn.

A

The plaintiffs first maintain that the statute is overinclusive

because Congress banned their contributions entirely, rather than

simply resting on the contribution limits generally applicable to

all citizens, see 52 U.S.C. § 30116(a), or on some more modest

limits. Such a contribution ban, applicable to a particular

category of persons, is not unique. Federal law has long

prohibited all federal campaign contributions by corporations

and labor unions. See 52 U.S.C. § 30118(a); Beaumont, 539

U.S. at 161-63. Several states have their own bans on certain

contributions by classes of individuals or firms that do business

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with the government.25 And every judge on this court -- indeed,

on every lower federal court -- is likewise banned from making

political contributions. See CODE OF CONDUCT FOR UNITED

STATES JUDGES,Canon 5(A)(3). So, too, are judicial employees. 

See CODE OF CONDUCT FOR JUDICIAL EMPLOYEES § 310.10(a);

id. § 320, Canon 5(A). See also Bluman v. FEC, 800 F. Supp.

2d 281 (D.D.C. 2011) (three-judge court) (upholding ban on

contributions by foreign nationals, 52 U.S.C. § 30121(a)), summ.

aff’d, 132 S. Ct. 1087 (2012).

We do not dispute that the total ban on federal contributions

by contractors is a significant restriction. But the point of the

“closely drawn” test is that “‘[e]ven a significant interference

with protected rights of political association may be sustained if

the State demonstrates a sufficiently important interest and

employs means closely drawn to avoid unnecessary abridgment

of associational freedoms.’” McCutcheon, 134 S. Ct. at 1444

(quoting Buckley, 424 U.S. at 25). And we conclude that the

ban at issue here is permissible in the circumstances that we

address in this opinion: a regulation that bars only campaign

contributions and that is imposed only on government

contractors. As we have discussed, the Court has held that

campaign contributions constitute a form of expressive activity

less central to the First Amendment than other kinds of political

activity and expenditures. See, e.g., id. at 1444; Beaumont, 539

U.S. at 161; Buckley, 424 U.S. at 25. And as we have also

discussed, we owe “‘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.’” Umbehr, 518 U.S. at 676

25See, e.g., CONN.GEN.STAT. § 9-612(f)(1)-(2); HAW.REV.STAT.

§ 11-355; 30 ILL.COMP. STAT. 500/50-37; IND.CODE §§ 4-30-3-19.7;

LA.REV.STAT.ANN.§ 18:1505.2(L); MICH.COMP.LAWS § 432.207b;

W. VA. CODE § 3-8-12(d).

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(quoting Waters, 511 U.S. at 673); see Letter Carriers, 413 U.S.

at 566-67; Pickering, 391 U.S. at 568. Under these

circumstances, we conclude that Congress’ decision to impose

a contribution ban during the period of contract negotiation and

performance is closely drawn for two reasons.

First, the contracting context greatly sharpens the risk of

corruption and its appearance. Unlike the corruption risk when

a contribution is made by a member of the general public, in the

case of contracting there is a very specific quo for which the

contribution may serve as the quid: the grant or retention of the

contract. Indeed, if there is an area that can be described as the

“heartland” of such concerns, the contracting process is it. Cf.

Green Party, 616 F.3d at 202 (explaining that Connecticut’s ban

on contractor contributions “is, without question, ‘closely

drawn’ to meet the state’s interest in combating corruption and

the appearance of corruption” because such contributions “lie at

the heart of the corruption problem in Connecticut”); see also

Yamada, 2015 WL 2384944, at *20. The long historical

experience described in Parts III.B and III.C makes clear that

this is not just a question of risk, but of reality.

Moreover, because of that sharpened focus, the appearance

problem is also greater: a contribution made while negotiating

or performing a contract looks like a quid pro quo, whether or

not it truly is. As the sponsor of the 1940 contractor

contribution ban explained to his Senate colleagues, the ban was

needed because contractor contributions “may be considered in

some instances as bribery in order to secure governmental

contracts,” 86 CONG. REC. 2982 (1940) (statement of Sen.

Byrd). See Green Party, 616 F.3d at 205 (upholding

Connecticut’s ban because, inter alia, “[e]ven 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

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on state officials”); cf. Preston, 660 F.3d at 736 (upholding

North Carolina’s ban on lobbyists’ contributions because it

rested on “a legitimate legislative judgment” that “a complete

ban was necessary as a prophylactic to prevent not only actual

corruption but also the appearance of corruption in future state

political campaigns”).

Second, the contracting context also greatly sharpens the

risk of interference with merit-based public administration. 

Because a contractor’s need for government contracts is

generally more focused than a member of the general public’s

need for other official acts, his or her susceptibility to coercion

is concomitantly greater. And coercing a contractor to

contribute, even if limited by a contribution ceiling, is still

coercion.

In sum, we conclude that a flat prohibition is closely drawn

to the important goals that § 30119 serves. Cf. Williams-Yulee

v. Fla. Bar, 135 S. Ct. 1656, 1672 (2015) (“Although the Court

has held that contribution limits advance the interest in

preventing quid pro quo corruption and its appearance in

political elections, we have never held that adopting contribution

limits precludes a State from pursuing its compelling interests

through additional means.”).

B

The plaintiffs also argue that § 30119 is overinclusive

because it bans contributions not only to candidates for

President and Congress, but also to political parties, which,

“[u]nlike elected officials who might have the theoretical power

to influence a contract, . . . plainly have no ability to affect the

award of any contract.” Pls. Br. 51. But the Democratic

campaign book scandal of the 1930s gave Congress sufficient

reason to target contributions to parties: it was the Democratic

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National Committee whose agents reportedly told government

contractors that the continuation of their contracts hinged on

their financial support of the party. See 84 CONG.REC. 9598-99

(1939). Indeed, the 1876 law concerning federal employees was

also “aimed at the suppression of the practice which has

prevailed among party organizations of soliciting contributions

for party purposes from their office-holding members, or

exacting them by a moral coercion.” United States v. Curtis, 12

F. 824, 838 (C.C.S.D.N.Y. 1882) (emphasis added). Likewise

the Watergate Committee’s report on the 1972 election included

evidence that federal employees were pressured to contribute to

the Republican Party. WATERGATE REPORT at 413. Nor did the

role of contributions to political parties in influencing

government employment wane as the 20th century progressed. 

See, e.g., Elrod, 427 U.S. at 351-52 (1976); Branti v. Finkel, 445

U.S. 507, 510-11 (1980); Rutan, 497 U.S. at 66 (1990).

More recently, in upholding FECA’s restrictions on softmoney contributions to political parties, the Supreme Court

noted that “‘[t]here is no meaningful separation between the

national party committees and the public officials who control

them.’” McConnell, 540 U.S. at 155 (quoting expert report cited

in McConnell v. FEC, 251 F. Supp. 2d 176, 468-69 (D.D.C.

2003)). As a three-judge court in this district noted, “the

[McConnell] Court suggested that federal officeholders and

candidates may value contributions to their national parties --

regardless of how those contributions ultimately may be used --

in much the same way they value contributions to their own

campaigns.” Republican Nat’l Comm., 698 F. Supp. 2d at 159,

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summ. aff’d, 561 U.S. 1040 (2010).26 Congress did not sweep

too broadly by designing § 30119 to address that fact.

C

In addition to those we have just considered, the plaintiffs

propose a miscellany of further ways in which Congress could

make § 30119 less restrictive. We address only the more

substantial of these.

First, the plaintiffs propose that the ban should at least

exclude sole-source contracts for experts like plaintiff Wagner,

particularly when it is the government that initiates the contact,

“because the requirements to enter them are sufficiently

rigorous” to address the risk of corruption. Pls. Br. 53 n.9. But

the plaintiffs do not explain what those requirements are, or why

they provide the requisite assurances. Cf. KATE M. MANUEL,

CONG. RESEARCH SERV., COMPETITION IN FEDERAL

CONTRACTING: AN OVERVIEW OF THE LEGAL REQUIREMENTS 1

(2011) (noting “high-profile incidents of alleged misconduct by

contractors or agency officials involving noncompetitive

contracts”). Moreover, this argument appears contrary to the

plaintiffs’ principal contention, that it is the rise of competitive

bidding -- not the private placement of sole-source contracts --

that has eliminated the risk of pay-to-play. See supra Part

III.D.1. In any event, because Wagner’s claims are moot, this

argument need not detain us.

26See McConnell, 540 U.S. at 155 (explaining that the “close

connection and alignment of interests” between parties and federal

officeholders are likely to create the risk of “actual or apparent”

corruption); Emily’s List v. FEC, 581 F.3d 1, 6 (D.C. Cir. 2009).

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Second, the plaintiffs argue that § 30119 unnecessarily bars

contractors from contributing to ideological PACs that, in turn,

contribute to candidates. Whether or not this argument has

merit,27 it suffers from a similar problem: the one plaintiff

whose claim is not moot lacks standing to challenge limitations

on contributions to PACs. See supra Part I.

Third, the plaintiffs suggest that the statute would be more

closely drawn if it applied only to large contracts, pointing out

that Colorado and New York City enacted pay-to-play laws

limited to contracts worth more than $100,000. See Pls. Br.

52-53. Although such a dollar limit would of course reduce the

number of covered contractors, the plaintiffs do not explain why

§ 30119 is not closely drawn to the interests it serves in the

absence of such a limit, or why a dollar limit would draw it more

closely to those interests. Perhaps quid pro quos and coercion

are more likely when larger contracts are involved because,

since more money is at stake, the parties are more willing to risk

detection and prosecution. Or perhaps such abuses are just as

likely when smaller contracts are involved because the relative

value to the small contractor is high and the risk of detection is

comparatively low. Because the plaintiffs have advanced no

argument on this point, there is no need for us to speculate

further. We do note, however, that the historical record provides

support for legislative concern that corrupt and coercive

patronage regimes can take root even when relatively small

amounts of money are at stake. See supra Parts III.B.1-2,

III.D.2., IV.A. And we also note again that a contribution ban

need not be a perfect fit to be constitutional, see McCutcheon,

27The Supreme Court has upheld restrictions on contributions to

multicandidate committees as a necessary means to avoid

circumvention of other limits. Cal. Med. Ass’n, 453 U.S. at 197-99

(plurality opinion); see id. at 203 (Blackmun, J., concurring in part and

concurring in the judgment); Emily’s List, 581 F.3d at 11-12.

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134 S. Ct. at 1456-57, and that courts give substantial deference

to the government’s predictions of harm concerning its own

employees and contractors, see Umbehr, 518 U.S. at 676. 

Finally, the plaintiffs maintain that Congress should have

rested on the criminal statutes that directly ban quid pro quos

and coercion,28 rather than also banning political contributions. 

But the Supreme Court has repeatedly dispatched this argument. 

As McConnell explained, “[i]n Buckley, we expressly rejected

the argument that antibribery laws provided a less restrictive

alternative to FECA’s contribution limits, noting that such laws

‘deal[t] with only the most blatant and specific attempts of those

with money to influence governmental action.’” 540 U.S. at 143

(quoting Buckley, 424 U.S. at 28); see Citizens United, 558 U.S.

at 356-57 (noting that, although quid pro quo arrangements

“would be covered by bribery laws” if proven, the Court has

viewed “restrictions on direct contributions a[s] preventative”

and has sustained them “in order to ensure against the reality or

appearance of corruption”). And what is true of the antibribery

laws is equally true of the anticoercion provisions. See Letter

Carriers, 413 U.S. at 566 (“It may be urged that prohibitions

against coercion are sufficient protection; but for many years the

joint judgment of the Executive and Congress has been that to

protect the rights of federal employees with respect to their jobs

and their political acts and beliefs it is not enough merely to

forbid one employee to attempt to influence or coerce

another.”).

28See, e.g., 18 U.S.C. § 201 (proscribing bribes and gratuities); id.

§ 601 (proscribing causing or attempting to cause persons to make

political contributions by denying or threatening to deny them work

in or for the federal government).

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D

Because the operative question in the plaintiffs’

overinclusiveness challenge is whether § 30119 avoids

“unnecessary abridgment” of First Amendment rights, it is also

important to consider how much the statute leaves untouched. 

Campaign contributions are banned, but other forms of political

engagement are left entirely unrestricted. The plaintiffs are free

to volunteer for candidates, parties, or political committees; to

speak in their favor; and to host fundraisers and solicit

contributions from others. See 52 U.S.C. § 30101(8)(B)

(enumerating activities to which the term “contribution” does

not extend). And even the contribution ban itself is limited to

the period between commencement of negotiations and

completion of contract performance. Id. § 30119(a)(1).

The plaintiffs insist that the fact that the statute preserves

other avenues of political communication is irrelevant to First

Amendment analysis. Pls. Br. 61. But that argument is

incorrect. As the Court recognized in McCutcheon v. FEC, “in

the context of [upholding the] base contribution limits, Buckley

observed that a supporter could vindicate his associational

interests by personally volunteering his time and energy on

behalf of a candidate.” McCutcheon, 134 S. Ct. at 1449 (citing

Buckley, 424 U.S. at 22, 28).29 The availability of other avenues

29See Buckley, 424 U.S. at 22 (noting that FECA’s contribution

ceilings “limit one important means of associating with a candidate or

committee, but leave the contributor free to become a member of any

political association and to assist personally in the association’s efforts

on behalf of candidates”); see also Williams-Yulee, 135 S. Ct. at 1670

(upholding Florida’s ban on solicitation of campaign funds by judicial

candidates, emphasizing that the ban restricts only “a narrow slice of

speech” because it “leaves judicial candidates free to discuss any issue

with any person at any time”).

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of political communication can thus be relevant, although it is of

course not dispositive.

In Blount v. SEC, for example, this court upheld a rule

restricting political contributions by municipal finance

professionals to state and local officials from whom they hoped

to secure underwriting contracts. 61 F.3d 938. We found the

rule to be “closely drawn,” in part because it “restrict[ed] a

narrow range of their activities for a relatively short period of

time,” and those subject to the rule were “not in any way

restricted from engaging in the vast majority of political

activities.” Id. at 947-48. Similarly, the Fourth Circuit upheld

a lobbyist contribution ban in part because it “serve[d] only as

a channeling device, cutting off the avenue of association and

expression that is most likely to lead to corruption but allowing

numerous other avenues of association and expression.” 

Preston, 660 F.3d at 734. So, too, here.

E

We conclude that the ban on contractor contributions is

closely drawn to the government’s interests in preventing

corruption and its appearance, and in protecting against

interference with merit-based administration. It strikes at the

dangers Congress most feared while preserving contractors’

freedom to engage in many other forms of political expression. 

We do not discount the possibility that Congress could have

narrowed its aim even further, targeting only certain specific

kinds of government contracting or doing so only during

specific periods. But as the Court has made clear, “most

problems arise in greater and lesser gradations, and the First

Amendment does not confine a State to addressing evils in their

most acute form.” Williams-Yulee, 135 S. Ct. at 1671.

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V

What we have said thus far establishes that § 30119’s ban

on contractor contributions serves sufficiently important

interests and employs means closely drawn to avoid unnecessary

abridgment of protected expression. The plaintiffs make one

further First Amendment argument: not only is § 30119

overinclusive because it restricts too much speech, but it is also

underinclusive because it permits too much speech. That is, it

fails to ban contributions by three categories of individuals or

entities that might implicate the same interests. 

The first category proffered for comparison by the plaintiffs

consists of entities and individuals associated with firms that

have government contracts: PACs established by contracting

corporations; officers, employees, and shareholders of

contracting corporations; and individuals who control limited

liability companies (LLCs) that contract with the federal

government. The second category is composed of federal

employees. The final category comprises individuals who seek

other government benefits or positions, particularly grants and

loans, admission to the military academies, and

ambassadorships.30

We begin with some general principles relevant to

evaluating a claim that a statute violates the First Amendment

because it is “underinclusive.” To put it most bluntly: “The First

30The plaintiffs’ opening brief proffers only the third category as

an example of First Amendment underinclusiveness, discussing the

first two as part of their equal protection challenge. Pls. Br. 23, 55-59. 

In their reply brief, the plaintiffs identify all three categories as

supporting their First Amendment argument. Reply Br. 26-28. 

Because the issues are intertwined, see infra Part VI, we consider all

three categories here.

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Amendment does not require the government to curtail as much

speech as may conceivably serve its goals.” Blount, 61 F.3d at

946. Or, as the Supreme Court recently said in Williams-Yulee

v. Florida Bar, in which it upheld, under strict scrutiny,

Florida’s ban on solicitation of campaign funds by judicial

candidates:

[T]he First Amendment imposes no freestanding

“underinclusiveness limitation.” A State need not

address all aspects of a problem in one fell swoop;

policymakers may focus on their most pressing

concerns. We have accordingly upheld laws -- even

under strict scrutiny -- that conceivably could have

restricted even greater amounts of speech in service of

their stated interests.

135 S. Ct. at 1668 (quoting R.A.V. v. St. Paul, 505 U.S. 377, 387

(1992)). Of course, in the instant case we do not apply strict

scrutiny, but rather the more forgiving “closely drawn” standard. 

And a statute that does not go as far as it might to cut off

campaign contributions can hardly be said to constitute an

“unnecessary abridgment” of the freedom to make such

contributions, McCutcheon, 134 S. Ct. at 1444. 

This is not to say that underinclusiveness plays no role in

First Amendment analysis. As the Court explained in WilliamsYulee, a law’s underinclusiveness raises “a red flag” that may

indicate a different kind of problem. 135 S. Ct. at 1668. For

example, it may raise “‘doubts about whether the government is

in fact pursuing the interest it invokes, rather than disfavoring a

particular speaker or viewpoint.’” Id. (quoting Brown v. Entm’t

Merchants Ass’n, 131 S. Ct. 2729, 2740 (2011)). The “textbook

illustration of that principle,” the Court explained, is the Lukumi

Babalu Aye case, in which it struck down a city’s ban on ritual

animal sacrifices because the city’s failure to ban secular

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killings indicated that the ban’s object was not (as it asserted)

animal welfare but rather the suppression of particular religious

beliefs. Williams-Yulee, 135 S. Ct. at 1668 (citing Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 543-47

(1993)).31 Indeed, underinclusiveness may call into question

whether “the proffered state interest actually underlies the law,”

Blount, 61 F.3d at 938 (internal quotation marks omitted), even

when the true interest is not invidious. See Republican Party of

Minn. v. White, 536 U.S. 765, 780 (2002) (finding a restriction

on speech by judicial candidates “so woefully underinclusive as

to render belief in [its asserted] purpose a challenge to the

credulous”).32

31See also City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (noting

that “a regulation of speech may be impermissibly underinclusive” if

it represents an attempt “to give one side of a debatable public

question an advantage in expressing its views to the people,” or “to

select the permissible subjects for public debate and thereby to control

. . . the search for political truth” (internal quotation marks omitted));

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 793 (1978) (finding

an underinclusiveness problem where “[t]he fact that a particular kind

of ballot question [was] singled out for special treatment . . .

suggest[ed] . . . that the legislature may have been concerned with

silencing corporations on a particular subject”).

32See also Citizens United, 558 U.S. at 362 (concluding that, “if

Congress had been seeking to protect dissenting shareholders” as the

government claimed, it would not have banned corporate speech “in

only certain media” for only a specific period before an election);

Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (invalidating statute

barring publication of victims’ identities in part because its “facial

underinclusiveness . . . raises serious doubts about whether Florida is,

in fact, serving, with this statute, the significant interests which [it]

invokes in support of affirmance”).

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But the plaintiffs do not challenge § 30119 on these

grounds. They do not contend, for example, that Congress’ true

interest was to favor corporate affiliates, federal employees, or

government grantees over individual contractors, see Oral Arg.

Recording 18:20-19:03, which would require us to undertake

closer analysis of the basis for such disparate treatment. To the

contrary, they agree that the interests that motivated and have

sustained § 30119 are the anticorruption goals the government

invokes today. See id. 22:05-45. Moreover, it is plain that the

statute “applies evenhandedly to all [government contractors],

regardless of their viewpoint,” Williams-Yulee, 135 S. Ct. at

1668, and regardless of their form of organization, see 52 U.S.C.

§ 30119(a)(1) (barring the “person” who enters into the contract

from making the contribution); id. § 30101(11) (defining

“person” to “include[] an individual, partnership, committee,

association, corporation, labor organization, or any other

organization or group of persons”). And nothing in the statute’s

history even hints at any purpose to disfavor individual

contractors as against the categories proffered by the plaintiffs.

In Williams-Yulee, the Court noted that

“[u]nderinclusiveness can also reveal that a law does not

actually advance a compelling interest.” 135 S. Ct. at 1668. See

also Blount, 61 F.3d at 946 (noting that a rule may be “struck for

underinclusiveness . . . if it cannot ‘fairly be said to advance any

genuinely substantial governmental interest’” (quoting FCC v.

League of Women Voters, 468 U.S. 364, 396 (1984))). As an

example of that kind of case, the Court cited the facts of Smith

v. Daily Mail, where the Court struck down a state statute

banning newspapers from disclosing the names of juvenile

defendants because, inter alia, the statutory purpose -- protecting

the anonymity of juvenile offenders -- was entirely vitiated by

the statute’s failure to bar electronic media from making the

same disclosures. Williams-Yulee, 135 S. Ct. at 1668 (citing

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Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-105 (1979)).33

But here, the record reflects that § 30119 does advance, albeit

imperfectly, the government’s important interests in protecting

against quid pro quo corruption and its appearance, and in

protecting merit-based public administration.

With these general principles in mind, we now briefly

examine each of the categories of underinclusiveness to which

the plaintiffs draw our attention.

A

The plaintiffs’ first category includes entities and

individuals associated with corporations that have government

contracts. Like the plaintiffs, corporations that contract with

federal agencies cannot make contributions in federal elections. 

See 52 U.S.C. §§ 30119(a), 30101(11).34 At the same time, it is

true that corporate contractors (like other corporations) are

permitted to form PACs -- separate segregated funds that can

33Cf. Reed v. Town of Gilbert, No. 13-502, 2015 WL 2473374, at

*11 (U.S. June 18, 2015) (holding that a town’s content-based sign

regulation failed strict scrutiny because “[t]he Town cannot claim that

placing strict limits on temporary directional signs is necessary to

beautify the Town while at the same time allowing unlimited numbers

of other types of signs that create the same problem”); Sanjour v. EPA,

56 F.3d 85, 95 (D.C. Cir. 1995) (en banc) (“Because the government

has . . . not even attempted to regulate a broad category of behavior

. . . giving rise to precisely the harm that supposedly motivated it to

adopt the [challenged] regulations, we have trouble taking the

government’s avowed interest to heart.”).

34The ban on corporate contractor contributions is a consequence

not only of § 30119, but also of 52 U.S.C. § 30118, which bans

contributions by any corporation in a federal election. See Beaumont,

539 U.S. 146 (upholding the ban on corporate contributions).

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make campaign contributions with non-treasury funds solicited

from shareholders, certain personnel, and their families. See 52

U.S.C. § 30119(b); id. § 30118(b). Officers, employees, and

shareholders of corporate contractors are also free to make direct

contributions “from their personal assets.” 11 C.F.R. § 115.6. 

And it may be that individuals who control LLCs that contract

with the federal government can make contributions as well. 

But none of these allowances fatally undermines the statutory

regime.

1. A corporation is a separate legal entity from a PAC. See

Citizens United, 558 U.S. at 337; Mass. Citizens for Life, 479

U.S. at 252-56. As a consequence, the Supreme Court has said

that the political expression of a PAC is not equivalent to that of

its associated corporation. See Citizens United, 558 U.S. at 337

(“A PAC is a separate association from the corporation. So the

PAC exemption from [FECA’s] expenditure ban does not allow

corporations to speak.” (citation omitted)). Congress’ decision

to permit contributions by PACs associated with contracting

corporations is therefore not inconsistent with its decision to

prohibit contributions by contractors themselves.

In Williams-Yulee, the Court considered a similar

underinclusiveness challenge to Florida’s ban on personal

solicitation of campaign funds by judicial candidates. That ban

“allow[ed] a judge’s campaign committee to solicit money,”

which the petitioner argued “reduces public confidence in the

integrity of the judiciary just as much as a judge’s personal

solicitation.” 135 S. Ct. at 1668. The Court was not moved. 

“However similar the two solicitations may be in substance,” the

Court said, “a State may conclude that they present markedly

different appearances to the public. Florida’s choice to allow

solicitation by campaign committees does not undermine its

decision to ban solicitation by judges.” Id. at 1669. The same

can be said of Congress’ choice to permit contributions by

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political committees associated with corporate contractors, while

banning contributions by contractors themselves.

2. Respecting the corporate form, and therefore according

separate treatment to shareholders and other individuals

associated with corporations, is also constitutional. In Blount,

we considered and rejected a similar underinclusiveness

challenge to the SEC’s pay-to-play rule, which, while restricting

contributions by municipal securities professionals, did not

extend the restriction to the chief executives of banks with

municipal securities departments. “[A] regulation is not fatally

underinclusive,” we said, “simply because an alternative

regulation, which would restrict more speech or the speech of

more people, could be more effective.” Blount, 61 F.3d at 946.

In upholding the SEC’s rule, Blount also noted the SEC’s

explanation that this “loophole,” like others in the rule, reflected

the Commission’s sensitivity to First Amendment concerns

about overinclusiveness. Id. at 947. Here, too, Congress could

reasonably have concluded that banning contributions by all

those associated with corporate contractors would go too far at

too great a First Amendment cost.

3. The plaintiffs further argue that, while they contract

directly with the federal government for their services and so are

barred from making contributions, they or other individuals

could instead establish an LLC to formally contract with the

government and receive payment for their work. Then, because

the FEC has ruled that the contractor contribution ban does not

apply to an entity’s “employees, officers, or members,” 11

C.F.R. § 115.6, the plaintiffs maintain that such individuals

would remain free to make contributions. The availability of

this LLC loophole, they say, vitiates the statutory purpose.

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Although the FEC’s briefs accepted the plaintiffs’

description of the regulatory treatment of individuals who

establish LLCs, the agency submitted a post-argument letter

clarifying that the Commission itself “has not addressed the

application of FECA’s contractor contribution prohibition to

contributions made by an individual who is the sole member of

an LLC that is a federal contractor.” FEC Post-Argument Letter

at 6 (Nov. 24, 2014) (emphasis omitted).35 Perhaps for that

reason, there is no evidence in the record that anyone has ever

used an LLC as a loophole to permit him or her to make an

individual campaign contribution.36

The plaintiffs’ own evidence highlights the not insignificant

costs involved in both establishing and operating as an LLC. 

See Tiemann Decl. ¶ 3, cited in D. Ct. Findings ¶ 19. Moreover,

at oral argument, plaintiffs’ counsel acknowledged that “persons

like Mr. Miller and Mr. Brown almost certainly could not have

[contracted] through [an] LLC” -- both because the agency may

not have allowed it, and because of the “substantial sacrifice”

they would have incurred by forgoing various benefits that come

with employment-like contracts. Oral Arg. Recording 23:13-58. 

In short, in the absence of any evidence of circumvention-byLLC, the failure to plug this speculative loophole is hardly a

35The statute, of course, does not mention LLCs, which first

emerged in the late 1970s. See Treatment of Limited Liability

Companies Under the Federal Election Campaign Act, 64 Fed. Reg.

37397, 37398 (July 12, 1999).

36One witness opined that, at least with respect to consulting-type

contracts, client agencies are indifferent between contracting with an

LLC and contracting with an individual. See Schooner Decl. ¶ 8, cited

in D. Ct. Findings ¶ 20. The witness did not say how many such

arrangements there are, or that any individuals using LLCs had

actually made campaign contributions. Id.; see also Lubbers Decl. ¶ 8,

cited in D. Ct. Findings ¶ 20.

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basis for invalidating the statute. Cf. Williams-Yulee, 135 S. Ct.

at 1670 (“Even under strict scrutiny, ‘[t]he First Amendment

does not require States to regulate for problems that do not

exist.’” (quoting Burson, 504 U.S. at 207)).

B

The second category proffered by the plaintiffs as evidence

of § 30119’s underinclusiveness is composed of federal

employees who, unlike federal contractors, are generally not

barred from making campaign contributions. See 5 C.F.R.

§ 734.208(a). As with the other categories, there is no ground

for concluding that Congress chose to invidiously discriminate

against contractors in favor of employees. And while federal

employees are permitted to make contributions, they are subject

to other restrictions (pursuant to the Hatch Act) and enjoy other

protections (pursuant to the Civil Service Reform Act) that do

not apply to contractors.37 

37The Hatch Act bars most federal employees from, inter alia,

soliciting or accepting political contributions, running for office in a

partisan election, hosting a political fundraiser, or engaging in political

activity while on duty or in a federal building. See 5 U.S.C.

§§ 7323(a), 7324(a); 5 C.F.R. §§ 734.302-.306. Employees of more

than a dozen specific agencies, as well as others who hold certain

senior or adjudicative positions, are more broadly prohibited from

“tak[ing] an active part in . . . political campaigns.” 5 U.S.C.

§ 7323(b)(2)(A). Under the Civil Service Reform Act, covered

employees are protected against “prohibited personnel practices,”

including discrimination on the basis of political affiliation and

coercion to make political contributions. 5 U.S.C. § 2302(a)(1),

(b)(1)(E), (b)(3). Aggrieved employees who have been subjected to 

such practices can seek redress through the Office of Special Counsel

and the Merit Systems Protection Board. 5 U.S.C. §§ 1214-15, 1221.

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Congress could reasonably have thought that the difference

in status of the two kinds of workers warrants this difference in

treatment. Because regular employees do not generally need

new contracts or renewals with the frequency required by

outside contractors, permitting them to make contributions

carries less risk of corruption or its appearance: employees have

less to gain from making contributions and less to lose from not

making them.38 It is true, as the plaintiffs note, that employees

have other concerns that could make them susceptible to

coercion, including the desire for promotion or the fear of

termination. But Congress has provided them with merit system

protections that guard against that risk. See supra note 37. We

see no basis for overturning Congress’ decision about how to

calibrate these different restrictions.39

C 

Finally, the plaintiffs’ comparison of contractors to a

miscellany of other individuals who seek government benefits

or positions -- particularly grants and loans, admission to the

military academies, and ambassadorships -- is equally

38Cf. 86 CONG. REC. 2580 (1940) (statement of Sen. Brown)

(“[T]he Government clerk, if he is not under civil service, is interested

in keeping in power the party that is in power and that gave him a job.

. . . I can apply the same principle . . . . to contractors who are doing

business with the Government of the United States.” (emphasis

added)).

39Cf. Broadrick v. Oklahoma, 413 U.S. 601, 607 n.5 (1973)

(rejecting equal protection challenge to Oklahoma statute “singling out

classified service employees for restrictions on partisan political

expression while leaving unclassified personnel free from such

restrictions” because “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”).

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unavailing. Once again, there is no basis for a claim that

Congress invidiously discriminated against contractors and in

favor of others. Nor is there any reason to believe that

permitting contributions by these other individuals defeats

§ 30119’s purpose of protecting against corruption and

interference with merit-based administration. Congress is surely

not prohibited from fighting such problems in one sector unless

it fights them in all. As the Supreme Court has said, “‘a

legislature need not strike at all evils at the same time.’” 

Buckley, 424 U.S. at 105 (quoting Katzenbach v. Morgan, 384

U.S. 641, 657 (1966)). Rather, “reform may take one step at a

time, addressing itself to the phase of the problem which seems

most acute to the legislative mind.” Id. (internal quotation

marks and citations omitted); see Williams-Yulee, 135 S. Ct. at

1668.

D

We conclude that the contractor contribution ban is not

fatally underinclusive. There is no doubt that “the proffered

state interest actually underlies the law,” and that it can “fairly

be said” that the statute “advance[s] a[] genuinely substantial

governmental interest.” Blount, 61 F.3d at 946 (citations and

internal quotation marks omitted). The plaintiffs may well be

right that the ban would be even more effective if it swept in

more potential contributors. But § 30119 “aims squarely at the

conduct most likely to undermine” the important interests that

underlie it, and “[w]e will not punish [Congress] for leaving

open more, rather than fewer, avenues of expression, especially

when there is no indication that the selective restriction of

speech reflects a pretextual motive.” Williams-Yulee, 135 S. Ct.

at 1668-70.

Accordingly, and in light of the analysis of the preceding

Parts, we reject the plaintiffs’ First Amendment challenge.

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VI

In addition to their First Amendment claim, the plaintiffs

challenge § 30119 under the equal protection component of the

Fifth Amendment. Equal protection is violated, they maintain,

because the statute subjects individual contractors like

themselves to a ban that it does not apply to two categories of

similarly situated persons: (1) entities and individuals associated

with firms that have government contracts (i.e., PACs of

contracting corporations; officers, employees, and shareholders

of contracting corporations; and individuals who control

contracting LLCs); and (2) individuals who are regular

employees rather than contractors.

If this argument sounds familiar, it should. It is the same

argument that we have just considered, and rejected, when

clothed in the garb of a First Amendment claim that § 30119 is

too underinclusive to satisfy the “closely drawn” standard.40

Now dressing their argument as an equal protection claim, the

plaintiffs insist that we must evaluate it under strict scrutiny. 

That is so, they say, because “the right to make a political

contribution is a fundamental right protected by the First

Amendment,” and because “strict scrutiny is required when a

law . . . ‘impinges upon a fundamental right explicitly or

implicitly protected by the Constitution.’” Pls. Br. 25 (quoting

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17

(1973)).

We reject this doctrinal gambit, which would require strict

scrutiny notwithstanding the Supreme Court’s determination that

the “closely drawn” standard is the appropriate one under the

40As noted above, the plaintiffs’ underinclusiveness argument

included a third category as well: individuals seeking a miscellany of

other government benefits or positions. See supra note 30.

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First Amendment. Although the Court has on occasion applied

strict scrutiny in examining equal protection challenges in cases

involving First Amendment rights, it has done so only when a

First Amendment analysis would itself have required such

scrutiny.41 There is consequently no case in which the Supreme

Court has employed strict scrutiny to analyze a contribution

restriction under equal protection principles. Indeed, the

plaintiffs acknowledge that they know of no case in any court

“in which an equal-protection challenge to contribution limits

succeeded where a First Amendment one did not.” Wagner, 901

F. Supp. 2d at 112. This will not be the first.

As we explained in Ruggiero v. FCC, “[a]lthough equal

protection analysis focuses upon the validity of the classification

rather than the speech restriction, ‘the critical questions asked

are the same.’ We believe that the same level of scrutiny . . . is

therefore appropriate in both contexts.” 317 F.3d 239, 247 (D.C.

Cir. 2003) (en banc) (quoting Cmty.-Serv. Broad. of Mid-Am.,

Inc. v. FCC, 593 F.2d 1102 (D.C. Cir. 1978) (en banc)).42 That

has been this court’s consistent view. See, e.g., Int’l Ass’n of

Machinists v. FEC, 678 F.2d 1092, 1106 (D.C. Cir. 1982) (en

banc) (observing that “the nature and quality of the legislative

action at issue determine the intensity of judicial review of

intertwined equal protection, First Amendment claims”); see

41See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 655,

666 (1990) (applying strict scrutiny in determining whether

restrictions on independent expenditures by corporations but not

unincorporated associations passed muster under the Equal Protection

Clause), overruled on other grounds by Citizens United, 558 U.S. at

365.

42In Ruggiero, that level of scrutiny was “heightened rational

basis.” 317 F.3d at 247.

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also Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t

of Elections, 174 F.3d 305, 314 (3d Cir. 1999) (en banc).

It is certainly true that the Court “has occasionally fused the

First Amendment into the Equal Protection Clause” in

concluding that “content-based discrimination” is not a

legitimate government interest because it “violates the First

Amendment.” R.A.V., 505 U.S. at 384 n.4.43 And it is likewise

true that the Court has sometimes examined campaign finance

classifications to determine whether they are invidious in the

context of a First Amendment analysis, see Williams-Yulee, 135

S. Ct. at 1668-70, and sometimes in the context of an equal

protection analysis, see Buckley, 424 U.S. at 31-33, 105 &

n.143. But in a case like this one, in which there is no doubt that

the interests invoked in support of the challenged legislative

classification are legitimate, and no doubt that the classification

was designed to vindicate those interests rather than disfavor a

particular speaker or viewpoint, the challengers “can fare no

better under the Equal Protection Clause than under the First

Amendment itself.” City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 55 n.4 (1986).44 For the reasons discussed in the

43See City of Ladue, 512 U.S. at 51 n.9 (observing that regulatory

distinctions based on the content of speech “may fall afoul of the

Equal Protection Clause”); Police Dep’t of Chi. v. Mosley, 408 U.S.

92, 95 (1972) (observing that “the equal protection claim . . . is closely

intertwined with First Amendment interests” when a classification

discriminates on the basis of the content of speech); see also Carey v.

Brown, 447 U.S. 455, 463 n.7 (1980) (describing Mosley as a

“pronouncement that the First and Fourteenth Amendments forbid

discrimination in the regulation of expression on the basis of the

content of that expression” (emphasis added)).

44Cf. Blount, 61 F.3d at 946 & n.4 (concluding that the invalidity

of an equal protection challenge to the SEC’s pay-to-play rule

followed a fortiori from the court’s rejection of the claim that the rule

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preceding Parts, when we apply the same degree of scrutiny to

the plaintiffs’ equal protection challenge, we find it wanting.

VII

As should by now be clear, this is a somewhat unusual

campaign finance case in at least two respects. First, there is no

dispute regarding the legitimacy or importance of the interests

that support the contractor contribution ban. In § 30119,

Congress was plainly not attempting “to reduce the amount of

money in politics, or to restrict the political participation of

some in order to enhance the relative influence of others.” 

McCutcheon, 134 S. Ct. at 1441 (citing, e.g., Ariz. Free Enter.

Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825-26

(2011)). Nor did it create a mechanism “to level the playing

field, or to level electoral opportunities, or to equaliz[e] the

financial resources of candidates.” Id. at 1450 (internal

quotation marks omitted). Nor did it “‘disfavor[] a particular

speaker or viewpoint,’” Williams-Yulee, 135 S. Ct. at 1668

(quoting Brown, 131 S. Ct. at 2740), or favor incumbents over

challengers, cf. Randall v. Sorrell, 548 U.S. 230, 249, 253

(2006) (plurality opinion). To the contrary, the interests

supporting the statute are ones that the Supreme Court has long

approved -- indeed, endorsed -- as legitimate and important

grounds for restricting campaign contributions and certain

related associational freedoms.

Second, the contractor contribution ban rests on not one but

two such interests. The ban is not only supported by the

“compelling” interest in protecting against quid pro quo

corruption and its appearance, McCutcheon, 134 S. Ct. at 1444-

45, commonly at issue in campaign finance cases. It is also

supported by the “obviously important interest[]” in protecting

violated the First Amendment as impermissibly underinclusive).

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merit-based public administration, Letter Carriers, 413 U.S. at

564, commonly at issue in cases involving limits on partisan

activities by government employees.

The long historical experience recounted in Part III further

makes clear that these important concerns supporting § 30119

are neither theoretical nor antiquated, but rather are grounded in

unhappy experience stretching to the present day. And for the

reasons set forth in Parts IV through VI, we also conclude that

the statute employs means closely drawn to avoid unnecessary

abridgement of associational freedoms, and does not deprive the

plaintiffs of equal protection of the laws. Accordingly, we

uphold the statute against all of the plaintiffs’ constitutional

challenges.

So ordered.

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