UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WENDY E. WAGNER, et al, 

Plaintiffs,

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

FEDERAL ELECTION COMMISSION,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF 

PLAINTIFFS’ MOTION TO CERTIFY FACTS

This action challenges the constitutionality of 2 U.S.C. § 441c (“section 441c”) as 

applied to individuals such as the three plaintiffs in this action who have contracts with 

agencies of the federal government under which they provide services to the government. 

The defendant Federal Election Commission (“FEC”) is the primary agency responsible 

for the enforcement of the Federal Election Campaign Act generally and section 441c in 

particular. 

Section 441c is an absolute bar to all contributions by any person who has a 

contract with a federal agency. As government contractors, these plaintiffs are forbidden 

from making contributions to a candidate for any federal office or to a political party or a 

political committee for use in connection with a federal election, including the election 

for President to be held in 2012, in which they are all eligible to vote. They desire to 

make contributions in connection with federal elections in 2012, subject to the same 

limits as every other individual. However, if they were to make such contributions, they 

would be guilty of a crime. Because they are unwilling to subject themselves to 

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 1 of 7
2

prosecution and potentially up to five years in prison, they ask this Court to declare 

section 441c unconstitutional as applied to them. 

Plaintiffs make two separate claims of unconstitutionality. First, they rely on the 

Equal Protection Clause of the Constitution because they are forbidden from making 

contributions that three other categories of similarly situated persons are permitted to 

make. One such category is federal employees to whom the ban does not apply, even 

though plaintiffs work with, and in some cases literally along side of, those employees. 

In all relevant respects, the situations of employees with respect to making political 

contributions in federal elections are identical with those of plaintiffs and other 

individuals who have similar federal government contracts. 

The second group is composed of corporations that, like plaintiffs, have contracts 

with federal agencies. Those corporations are also barred from making contributions 

directly, but are expressly authorized by subsections (b) and (c) of section 441c to 

establish and utilize separate segregated funds to make contributions in connection with 

federal elections, whereas individuals such as plaintiffs do not have that option.

The third group consists of directors, officers, employees, and shareholders of 

corporations that have contracts with federal agencies to whom the ban is also 

inapplicable. This group includes individuals who form corporations such as Limited 

Liability Companies (“LLCs”), which can have one individual as the sole shareholder, 

director, officer, and employee. However, that person is permitted to make contributions 

otherwise permitted by law, even though plaintiffs, who are identically situated from an 

economic perspective, may not make any contributions in connection with elections for 

federal office. This third group also includes the officers, directors, employees, and 

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 2 of 7
3

shareholders of large corporations with enormous government contracts, such as 

Halliburton, Boeing or Lockheed, even when those individuals are directly involved in 

contract negotiations and implementation and stand to benefit economically from their 

company’s government contracts.

Plaintiffs’ second claim is based on section 441c’s complete denial of their ability 

to make contributions in connection with federal elections, a right that is protected by the 

First Amendment. Because section 441c is a ban on a form of speech, it is subject to 

strict or at least heightened scrutiny, and under either standard it cannot stand. There is, 

however, no connection between the contribution ban and plaintiffs’ status as individual 

contractors because the only offices that are elected in the federal government – and for 

which contributions might be made – are President and Vice President, Members of the 

United States House of Representatives, and United States Senators, and none of those 

individuals has any role in the awarding or implementing of plaintiffs’ contracts with 

federal agencies. Even if a law banning contributions to candidates who might have a 

role in awarding a person a government contract were constitutional, this law is far too 

broad and not nearly narrowly enough tailored to satisfy the First Amendment.

THE MOTION TO CERTIFY SHOULD BE GRANTED.

Congress enacted the predecessor of section 441c in 1940, and it was codified in 

1972 (with minor modifications) as 2 U.S.C. § 611 of the Federal Election Campaign Act 

(“FECA”). It was subsequently amended in 1976 by the addition of subsections (b) and 

(c), at which time the three subsections were re-designated as section 441c by section 322 

of Public Law 94-283 (1976). It was not further amended by the Bipartisan Campaign 

Reform Act of 2002, Pub. L. 107-155 (“BCRA”). It is also not listed in subsection 

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 3 of 7
4

403(a) of BCRA, set forth in the note to 2 U.S.C.A. § 431, and therefore the three judge 

court jurisdictional provisions of section 403 of BCRA do not apply to this challenge. 

Because section 441c is part of FECA, and because each of the plaintiffs is eligible to 

vote for President of the United States, this challenge to the constitutionality of section 

441c must be determined under 2 U.S.C. § 437h.

Under section 437h, this Court has a very limited role: it must “immediately” 

certify the relevant facts to the Court of Appeals for this Circuit, which is directed to 

determine the constitutionality of the challenged provisions en banc. See Buckley v. 

Valeo, 424 U.S. 1, 8-9 & n.4 (1976) (describing this procedure). Plaintiffs have 

submitted with this motion their Proposed Certified Facts, together with the declarations 

of each of the plaintiffs, as well as three additional individuals with relevant knowledge 

of the manner in which contracts between individuals and federal agencies are carried 

out. For each of the facts, there are citations to the relevant supporting paragraphs in the 

declarations. In order to make the Proposed Certified Facts easier to follow, they include 

certain statements of law that plaintiffs believe are not in dispute. Plaintiffs reserve the 

right to refer in their briefing in the Court of Appeals and the Supreme Court to other 

facts supported by their declarations or other proper evidence and agree that defendant 

has a similar right with respect to facts on which it wishes to rely that are similarly 

supported.

Plaintiffs recognize that if the claims set forth in a complaint challenging a 

provision of FECA were frivolous or plainly foreclosed by prior decisions of the 

Supreme Court, this Court would not be required to certify the case to the Court of 

Appeals. There is no case of which we are aware involving a challenge to the 

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 4 of 7
5

constitutionality of section 441c, and the facts surrounding the Equal Protection and First 

Amendment claims set forth above show that the claims are plainly not frivolous.

In informal conversations with counsel for the plaintiffs, counsel for the FEC 

stated that the FEC has in the past moved to deny certification under what may be a more 

lenient standard than the one set forth in the prior paragraph. Regardless of what the 

standard is, plaintiffs submit that there is no basis for such a motion in this case. There is 

no Supreme Court or D.C. Circuit decision upholding any law that completely forbids 

persons who are eligible to vote for President of the United States from making any 

contributions in connection with any federal election. That alone is a basis on which any 

claim that this case does not raise significant constitutional questions should be rejected.

In the case most factually similar to this one, involving a ban on contributions in 

federal elections by individuals under the age of 18, the Supreme Court – in a rare 

moment of unanimity in this area, which is often beset by 5-4 rulings – found the statute 

violated the First Amendment. McConnell v. Federal Election Commission, 540 U.S. 93, 

231-32 (2003) (striking down 2 U.S.C. § 441k). There are no First Amendment cases 

challenging section 441c, or any other comparable provision of federal law, let alone any 

that reject a challenge like this brought by individuals with contracts providing quite 

modest payments, under which they provide services to federal agencies, whose heads are 

not elected federal officials.

 In our view, the McConnell Court could also have decided the challenge to 

section 441k on Equal Protection grounds, on the theory, similar plaintiffs’ claim here, 

that there are no relevant distinctions between individuals over the age of 18, and those 

under age 18, for purposes of making contributions in federal elections. The line between 

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 5 of 7
6

an Equal Protection claim and a claim based on a specific protection in the Constitution is 

not always clear. For example, in Boddie v. Connecticut, 401 U.S. 371 (1971), the Court 

struck down a law requiring the payment of a filing fee of $50 to obtain a divorce by 

persons unable to afford the fee, relying on both Due Process and Equal Protection. In 

other cases where both sets of claims are made, some members of the Court have relied 

on Equal Protection as a more narrow ground for decision. See, e.g., Lawrence v. Texas,

539 U.S. 558, 579-85 (2003) (O’Connor, J., concurring on Equal Protection grounds to 

majority decision on Due Process basis). Therefore, under either of plaintiffs’ legal 

theories, section 441c raises serious constitutional questions. 

CONCLUSION

For the foregoing reasons, this Court should grant plaintiffs’ motion, certify their 

proposed facts, and immediately certify this case to the Court of Appeals for this Circuit 

for it to decide the constitutional questions presented.

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.

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 6 of 7
7

/s/ Arthur B. Spitzer

Arthur B. Spitzer

D.C. Bar No. 235960

American Civil Liberties Union of 

 the Nation's Capital

1400 20th Street, N.W., Suite 119

Washington, D.C. 20036

(202) 457 0800

(202) 452-1868 (fax)

artspitzer@gmail.com

November 17, 2011

Case 1:11-cv-01841-JEB Document 10-8 Filed 11/17/11 Page 7 of 7