UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

WENDY WAGNER, et al, 

Plaintiffs,

vs. No. 11-cv-1841(JEB)

FEDERAL ELECTION COMMISSION,

Defendant.

PLAINTIFFS’ MEMORANDUM 

IN RESPONSE TO MEMORANDUM OF AMICI 

CAMPAIGN LEGAL CENTER & DEMOCRACY 21

This memorandum is submitted in response to the 32-page memorandum 

submitted by amici Campaign Legal Center and Democracy 21 on August 22, 2012, as 

authorized by this Court’s Order dated August 23, 2012. It does not respond to the filings 

by the defendant Federal Election Commission on August 15, 2012. Because many of 

the arguments made by amici have been previously made in this litigation, this 

memorandum will make only four points.

1. This is a First Amendment case, not an economic regulation case. Amici 

pay lip service to that fact, but then proceed to argue as if the case were governed by a 

rational basis standard, in which the legislature is granted substantial deference. This is 

most clear when amici respond to plaintiffs’ arguments that section 441c cannot be 

sustained because of the numerous ways in which it is both under- and over-inclusive. 

According to amici, that is a claim that should be addressed to Congress, not the federal 

courts. But because this is a First Amendment case, in which Congress has imposed a 

complete ban on individuals such as plaintiffs from making any political contributions in 

connection with federal elections, Congress is required to assure that all limitations, 

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especially bans, are “closely drawn” to achieve the purpose behind the restriction. For all 

the reasons set forth in plaintiffs’ memorandum in support of summary judgment, section 

441c does not come close to meeting that test, and amici’s suggestion that plaintiffs take

their claim to Congress is seriously misplaced.

2. Amici’s memorandum contains citations to a wide range of statutes 

enacted by state and local governments that they contend support section 441c. If offered 

to show that there is some basis for some kinds of laws that place some limits on the 

political contributions of some government contractors, plaintiffs would agree with the 

broad proposition that some regulation of contributions by some government contractors 

may be warranted to avoid the reality or appearance of pay-to-play. However, amici seek 

to make more of those other laws than that, and in doing so, they overstate the 

significance of those laws to this case for several reasons.

First, unless a statute has been upheld in court, it is of no significance beyond the 

fact that some legislators thought they saw a problem and decided to pass a law directed 

to it. Second, unless the procurement system on which those laws operate is similar to 

the federal system as applied to individuals such as plaintiffs, those laws are largely 

irrelevant. As plaintiffs have previously explained regarding how section 441c applies to 

them, most if not all of those laws do not apply to persons at the state level who function 

like employees. We know of no case in which the claims like those of plaintiffs Miller 

and Brown have been rejected in a First Amendment, let alone an Equal Protection,

challenge. Although there are some statutes that do reach persons in plaintiff’s Wagner’s 

situations, we know of no case in which a total ban as applied to those persons has been 

upheld. Moreover, as our prior submissions show, in no case was a contractor law upheld 

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that did not include an exemption of some kind that allowed every individual to make 

some contribution to someone in connection with an election. It is the absence of any 

safe harbor of any kind in section 441c for individuals like plaintiffs that makes it 

different from every other law that has been upheld in court. 

3. On page 25, amici suggest that there are two alternatives for plaintiffs to 

express their electoral preferences, but neither can save section 441c as applied to 

plaintiffs. First, amici suggest that plaintiffs can make independent expenditures because 

section 441c does not mention them. However, the FEC’s rules make clear its view that 

independent expenditures are also prohibited by section 441c. See 11 CFR §115.2 

(prohibiting contractors from making “either directly or indirectly, any contribution or 

expenditure of money or any other thing of value” (emphasis added)); see also 11 CFR §

115.6 (including expenditures as well as contributions in the ban, regardless of the source 

of the funds).

These FEC rules have not been tested in court. But even if the FEC is mistaken in 

its interpretation of the statute, and individual contractors may spend unlimited amounts 

of money on independent expenditures supporting candidates, including those who have

influence over their government contracts, that would not save the ban in section 441c 

from this First Amendment challenge. While the D.C. Circuit has recognized that the 

Supreme Court has held “as a matter of law that independent expenditures do not corrupt 

or create the appearance of quid pro quo corruption,” SpeechNow.org v. FEC, 599 F.3d 

686, 694 (D.C. Cir. 2010) (en banc), there is no Supreme Court decision, or that of any 

other court of which plaintiffs are aware, that has upheld a law allowing an individual 

voter to make unlimited independent expenditures, but not allowing that individual to 

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make a contribution of any amount to any candidate or political committee. Sustaining 

such a law here would be particularly bizarre where the asserted purpose of section 441c 

is to prevent the appearance of pay-to-play. Under the “closely drawn” First Amendment 

standard applicable here, the notion that a $10 contribution by an individual federal 

contractor to a candidate for Congress would present the appearance of paying to play, 

while the purchase of $10,000 or even $10 million in television ads by the same 

contractor to support that same candidate would not present such an appearance, defies 

all logic. And the fact that the ban on contributions applies even to contributions to 

political committees that make only independent expenditures underscores just how overinclusive section 441c is.

Second, amici also suggest that plaintiffs could host fund-raisers for candidates 

for Congress or the President as an alternative to making a contribution. Leaving aside 

the issue of whether it is reasonable in terms of the burden on the plaintiffs to compare 

writing a check (or clicking on a website and inserting credit card information), with 

making all the arrangements and taking the time to host such an event, amici overlook 

that section 431(8)(B) excludes the value provided by hosting an event, but only within 

limits. Thus, subparagraph (ii) excludes out of pocket costs only “to the extent that the 

cumulative value of such invitations, food, and beverages provided by such individual on 

behalf of any single candidate does not exceed $1,000 with respect to any single election, 

and on behalf of all political committees of a political party does not exceed $2,000 in 

any calendar year.” This exception is relevant to this challenge for two reasons: (A) If 

the object of section 441c is to prevent the appearance of pay-to-play, it would appear to 

most observers that having a fund-raiser at one’s home would be at least as inappropriate 

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for a federal contractor as making a modest contribution, especially if the other guests 

end up being major contributors. Stated another way, what is the rationale of permitting 

the greater, while banning the lesser? (B) If it is reasonable to allow fund-raisers, but with

a limit on the costs that contractors and others can spend on them, it suggests that 

banning all contributions, and not just placing some limits on them – even limits lower 

than those generally applicable to others – is inconsistent with the “closely drawn” 

requirement applicable here. How is it even rational to allow these plaintiffs to spend 

$1,000 to host a fundraiser for a favored politician’s campaign – at which the politician 

may appear and thank the host for his efforts – but send them to jail for contributing $25 

to the same politician’s campaign?

4. Although amici state that their memorandum does not separately analyze 

plaintiffs’ Equal Protection claim (p.1), it contains a number of references to the impact 

of section 441c on corporations, which is relevant mainly to that claim. For example, 

amici contend that plaintiffs have effectively conceded that, because both individuals and 

corporations that are government contractors are forbidden from making contributions, 

they are treated equally (p. 23). However, contractor corporations can establish and pay 

for separate segregated funds (PACs) that must use the name of the contractor-sponsor

when making contributions. And those contributions can be made to any candidate, even 

one that might be in a position to influence the award of the contract, which creates the 

same appearance of pay-to-play as if the sponsor itself made the contribution. The fact 

that the entities are legally separate and that the Supreme Court has ruled that a 

corporation has a right to make independent expenditures, even if it has a PAC, is 

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irrelevant in the context of pay-to-play, where the justification for the ban is to avoid the 

appearance, as well as the reality, of pay-to-play. 

Moreover, individuals such as plaintiffs cannot set up PACs because the 

exception does extend to individuals. Perhaps equality could be achieved in an analogous 

way if individuals were allowed to use funds from sources other than their government 

contracts, such as plaintiff Wagner’s earnings as a law professor, the pensions of 

plaintiffs Brown and Miller, or money that any of them had from savings, gifts, or 

inheritances. But section 441c bans all contributions, regardless of the source of the 

funds. See 11 CFR § 115.6 (ban extends to contractor “contributions or expenditures 

from their personal assets”). To many, allowing an individual to set up a separate fund to

avoid section 441c might seem quite artificial, but it is no more artificial than is allowing 

a corporate PAC to make otherwise prohibited contributions, or using an LLC as the 

official contractor, but having all the income go to the sole shareholder, officer, and 

director who is the contributor and who has performed all of the services under the 

government contract. Whether considered as an Equal Protection violation, or as an 

example of the under-inclusiveness of section 441c as applied to corporations and their 

PACs in a First Amendment analysis, the ban on contributions by plaintiffs cannot stand.

For all of these reasons, as well as those set forth in plaintiffs’ prior submissions, 

section 441c falls far short of being “closely drawn” to support its stated objective or to 

sustain the distinction between the total ban on contributions in federal elections that is 

applicable to plaintiffs and what it allows others who are similarly situated to do.

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Respectfully submitted,

/s/ Alan B. Morrison

Alan B. Morrison

D. C. Bar No 073114

George Washington Law School

2000 H Street NW

Washington D.C. 20052

(202) 994 7120

(202) 994 5157 (fax)

abmorrison@law.gwu.edu

/s/ Arthur B. Spitzer

Arthur B. Spitzer

D.C. Bar No 235960

American Civil Liberties Union of 

 the Nation's Capital

4301 Connecticut Ave, N.W., 

 Suite 434

Washington, D.C. 20008

(202) 457 0800

(202) 452-1868 (fax)

artspitzer@aclu-nca.org

Dated: August 30, 2012

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