UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WENDY WAGNER, et al, 

Plaintiffs,

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

FEDERAL ELECTION COMMISSION,

Defendant.

REPLY STATEMENT OF POINTS AND AUTHORITIES

 IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

In its opposition to plaintiffs’ motion for a preliminary injunction, the Federal 

Election Commission has four themes that it frequently repeats and that form the basis for 

its conclusion that plaintiffs will not prevail on the merits. Because they are so pervasive, 

plaintiffs will respond to them before turning to their First Amendment and Equal 

Protection claims and to the reasons why both preliminary and permanent relief are 

appropriate at this time.

OVERALL RESPONSE TO FEC OPPOSITION

First, the FEC persists in referring to the prohibition on making contributions in 

section 441c as a “restriction” or a “limit,”1 and then relying on cases in which the courts 

were faced with a ceiling on what the plaintiff could contribute. While it may be 

linguistically correct to say that the absolute ban on contributions in section 441c is a 

kind of “restriction” or “limitation,” there is a world of difference in plaintiffs’ being 

limited in how much they can contribute and in being denied the right to contribute at all. 

 1 E.g., Opposition (“Opp”) at 12, all describing section 441c as “like other limits on 

campaign contributions”; “like other restrictions”; and “merely restricts campaign 

contributions.” Opp. at 18: “section 441c’s modest restriction”; Opp. at 21: “contribution 

restrictions like section 441c.”

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As the Court observed in Buckley v. Valeo, 424 U.S. 1, 21 (1976), making contributions 

is in part a form of symbolic speech, and for that reason the amount of that speech is less 

significant than the fact that it is made at all. But section 441c denies plaintiffs the right 

to make even a symbolic statement by contributing as little as $1 to the federal candidate 

or party of their choice, something that no case involving the Federal Election Campaign 

Act has upheld for individuals eligible to vote for federal offices, as well as some citizens 

who were not eligible because they were too young. McConnell v. Federal Election 

Commission, 540 U.S. 93, 231-32 (2003). 

The impact of this mischaracterization of section 441c is most evident in the 

FEC’s citation of cases in which the issue was whether the contribution limit was too 

low, such as Randall v. Sorrell, 548 U.S. 230 (2006). Yet even there, where there was no 

absolute ban and hence everyone could make at least a symbolic contribution, the Court 

struck down the limits as too low, belying the FEC’s contention that a relatively relaxed 

standard of review applies in this case. Moreover, in FEC v. Beaumont, 539 U.S. 146, 

161-62 (2003), the one case in which the Court upheld a total ban on contributions – by 

corporations, not individuals eligible to vote – the Court declined to apply strict scrutiny 

to the ban, but ruled that the fact that a ban was being challenged was relevant in 

determining whether the justifications offered were sufficient. Thus, the fact that this 

challenge is to a flat prohibition on making contributions, rather than on the amount that 

can be contributed, is highly relevant to both of plaintiffs’ constitutional arguments. 

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Second, the opposition seeks to characterize the reason why plaintiffs are subject 

to section 441c as their own fault, by their oft-repeated use of the terms “voluntarily”

2

and “chosen”3, as well as similar phrases (Opp. at 11 – “by virtue of their decisions to 

become federal contractors”) to describe how they came to be government contractors 

and hence subject to section 441c. It is true that plaintiffs were not conscripted into 

serving as government contractors, and in that sense their decision to sign their contracts 

and be subject to section 441c was “voluntary.” But the notion that individuals who 

become federal contractors thereby surrender their constitutional rights cannot be 

sustained because the Supreme 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,’ McAuliffe v. Mayor of New Bedford,

155 Mass. 216, 220, 29 N.E. 517 (1892).” Board of County Commissioners v. Umbehr, 

518 U.S. 668, 674 (1996). 

Moreover, a moment’s reflection would have demonstrated that the terms 

“voluntary” and “chosen” could equally describe how federal employees become civil 

servants, so that plaintiffs’ Equal Protection claim cannot be defeated on that ground. 

The same can also be said for individuals who choose to form a corporation, as in 

Beaumont, or for non-profit corporations that “voluntarily” accept money from for-profit 

corporations, as in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 887 

(2010). But if voluntariness were the key, the Beaumont opinion would have been much 

 2 E.g., Opp. at 8 “voluntarily” (italics in original); id. at 37 plaintiffs “voluntarily chose to 

receive the benefits of doing business with the federal government.” 

3 E.g., Opp. at 2, 14 italicized in Opp.; id. at 21:“bars contributions by those who choose 

to enter federal contracts;” id. at 25 “Voluntarily Chosen” (bold in heading); id. at 37 

“harm arises from their own choice to become federal contractors.”

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shorter, as would Civil Service Commission v. National Ass’n of Letter Carriers, AFLCIO, 413 U.S. 548 (1973). Moreover, on that basis, Citizens United would have come 

out the other way, as would Davis v. FEC, 554 U.S. 724 (2008), where the plaintiff 

“voluntarily” chose to spend more of his own money than the law permitted without 

triggering matching funds from the government.

Third, the FEC contends that Congress enacted section 441c, which applies to 

multi-billion dollar contractors such as Boeing and IBM, as well as individuals such as 

plaintiffs, to prevent them from being “coerced” into making contributions.4 We leave 

aside the issue of whether that kind of paternalism could be sustained in the face of the 

First Amendment right of individual voters to make contributions. We also put aside the 

fact that the ban applies to contributions to persons and entities that have no power to 

coerce anyone: candidates who are not incumbents, political parties, and all political 

committees, even those like the Right to Life organizations and EMILY’s List, that are 

ideological and have nothing to do with federal contracts. Congress has already 

addressed this very problem in 18 U.S.C. § 603, with respect to federal employees, who 

are identically situated as far as the potential for coercion is concerned. The FEC never 

mentions section 603 although plaintiffs relied on it in support of their motion. That 

provision goes back to the 19th Century, see Ex Parte Curtis, 106 U.S. 371 (1882), and 

only forbids the making or receiving of contributions where “the person receiving such 

contribution is the employer or employing authority of the person making the 

 4

 Opp. at 6 “protecting employees and contractors from coercion;” id. at 7 “protect 

individual government contractors from coercion”; id. at 16 contractors should be 

“insulated from political patronage or coercion.”

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contribution.” If coercion of contractors is a problem, there is a ready-made solution in 

section 603.

On page 18 of the Opposition, the FEC suggests that, although elected officials do 

not control plaintiffs’ contracts, high ranking appointees, who may be cognizant of the 

making or failure to make political contributions, do have such control, and thus section 

441c is a means of protecting individual contractors. That contention overlooks the fact 

that 18 U.S.C. § 601 makes it a crime for anyone who “causes or attempts to cause any 

person to make a contribution of a thing of value . . . for the benefit of any candidate or 

any political party, by means of the denial or deprivation, or the threat of the denial or 

deprivation, of . . . employment, position, work, compensation, payment, or benefit” from 

the federal government That provision is also directly responsive to the “campaign-bookracket” which is the one example from the legislative history cited by the FEC (Opp. 7-

8). See also 18 U.S.C. § 610 (criminalizing attempts to coerce federal employees, but not 

others, to engage in political activities). In addition, the regulations set forth on pages 20-

21 of Plaintiffs’ Statement of Points & Authorities (Pls Memo), while limiting some 

activities of some government employees (especially those who work for sensitive 

agencies), generally allow all of them to make political contributions, which is all 

plaintiffs seek to do. If preventing coercion were the justification for this broad ban, the 

approach of section 603 is an obvious and far less restrictive way of achieving that goal, 

and hence section 441c cannot be upheld on the ground that it is needed to prevent 

individual contractors from being coerced into making federal contributions.

Fourth, the final recurring theme in the FEC’s opposition is that even though 

plaintiffs cannot make contributions, they have many other ways to make their views 

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known. Opp. at 23-25, 38. The conclusive answer to that contention is that the 

government does not have the right to determine in what manner and by what means 

individuals will exercise their First Amendment rights, which includes the right to make 

contributions. That is the dispositive lesson of Texas v. Johnson, 491 U.S. 397 (1989), 

where the defendant had an almost infinite number of ways to express his displeasure 

with the government besides burning an American flag, yet the Court struck down the 

law forbidding him from choosing that method of making his views known. Moreover, if 

alternatives to making contributions were a defense to a claim that the First Amendment 

was violated by a limit on contributions, many Supreme Court cases would have been 

much shorter and some, such as Randall v. Sorrell, supra, would have come out the 

opposite way. Indeed, under the FEC’s theory, no limit on contributions would ever be 

struck down. 

THE PRELIMINARY INJUNCTION HEARING

SHOULD BE CONSOLIDATED WITH THE MERITS.

Despite the FEC’s insistence that the case is not in a proper position to be decided 

on the merits (note 31, p. 45), it fails to offer a reason to support its conclusion beyond 

the statement that it is “generally inappropriate” to exercise the specific authority granted 

by Rule 65(a)(2) to effect such a consolidation. This case has been on file for over four 

months, the FEC has not served any discovery on plaintiffs, and it has submitted no 

exhibits with its opposition, other than plaintiff’s contracts and a single House Report. 

Plaintiffs filed a Statement of Material Facts Not in Dispute in their earlier effort to have 

those facts certified and as part of their current motion, and nowhere in their 45 page 

Opposition has the FEC challenged any of those facts or suggested that there are any 

other facts that might be relevant to the legal issues presented. If this were a motion for 

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summary judgment, which we recognize it is not, Rules 56(e)(2) and 56(f) would require 

the FEC to put forth evidence supporting material facts that it wishes to contest or offer in 

support of its position, or at least explain why it cannot do so at this time. Surely, the 

FEC, which is the agency that enforces the law being challenged and routinely defends 

against constitutional challenges to its statutes, ought to be able to explain why it needs 

more time and what additional record it thinks needs to be developed in order for this 

Court to be able to decide the case on the merits. Absent some good reason for delay, the 

FEC’s resistance to having the Court reach the merits will unnecessarily burden plaintiffs 

and the Court with another round of briefing and argument on the same record as is now 

presented.

Furthermore, the FEC’s position on the equitable issues on the preliminary 

injunction motion provides another basis for hearing the merits now. One of the FEC’s 

reasons for opposing the motion is, in effect, that a preliminary injunction may be a 

meaningless remedy for plaintiffs because if this or a higher Court ultimately ruled for 

the FEC on the merits, the preliminary injunction would not protect plaintiffs from being 

subject to enforcement action – presumably including criminal penalties – for having 

done what the preliminary injunction expressly permitted them to do. To the extent that 

the FEC is observing a possible defect in the form of the order that plaintiffs have 

submitted, we are submitting a revised proposed preliminary injunction with this Reply, 

making clear that if plaintiffs make otherwise lawful contributions while the preliminary 

injunction is in effect, the FEC would be barred from taking enforcement actions against 

them, even if the order were eventually overturned, by this Court or on appeal. But if the 

FEC is making a different point – that preliminary injunctions can never provide 

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protection except against actions taken during the time that they are in effect – that is a 

further reason why the Court should reach the merits. We explain in Point III why the 

FEC’s argument should not be accepted as applied to any orders of this Court, but to the 

extent that the FEC believes its understanding of the effect of a preliminary injunction is 

even arguable, that is another very significant reason why its opposition to consolidation 

with the merits should be rejected.

ARGUMENT

I. SECTION 441C VIOLATES THE FIRST AMENDMENT

AS APPLIED TO PLAINTIFFS.

Plaintiffs have two claims on the merits, and in their motion they argued the more

narrow Equal Protection claim first, and at greater length, followed by the First 

Amendment claim. The FEC’s opposition reversed that order, although for what reason is 

unstated. In this Reply, plaintiffs will respond in the order of the FEC’s opposition, even 

though prevailing on that claim would call into serious question the applicability of 

section 441c to corporations as well as to individuals, which is not true of the Equal 

Protection claim.

The FEC relies on the decision in Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), 

which involved an SEC regulation addressing contributions by municipal securities 

brokers and dealers to the state officials from whom they obtain business. However, on 

close inspection, the regulation at issue there contains all the features of careful tailoring 

that section 441c excludes. First, the rule applies to contributions by “municipal finance 

professionals” – the officials of the dealers – and to any PAC established by the dealer. 

Id. at 946. Thus, the rule assures that it actually reduces the appearance that contracts are 

based on “pay-to-play,” unlike section 441c, which allows contributions by officers and 

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PACs, but not individuals like plaintiffs. Second, the rule does not forbid anyone from 

making a political contribution, but operates more like a recusal law, by forbidding those 

who make contributions from bidding on municipal securities offerings for a period of 

two years. Id. Third, it does not apply once a contract has been obtained, except as a 

possible bar to future bids, a feature that is especially important for individuals like 

plaintiffs Miller and Brown who have long-term contracts. 

Fourth, it is expressly inapplicable to business in which there is open competitive 

bidding. Id. at 940, n1. Fifth, it is limited to contributions to specific officials of the issuer 

(i.e., the persons who decide who gets the business) and thus is even more narrowly 

tailored than the branch specific law in Green Party of Connecticut v. Garfield, 616 F. 3d 

189, 194 (2d Cir. 2010). Sixth, the SEC rule expressly forbids covered persons from 

engaging in solicitation, recognizing that fundraisers can be at least as beneficial to the 

candidate as contributors, yet the FEC argues that plaintiffs should engage in solicitation 

of contributions, even if they cannot make them on their own. Opp. at 23, suggesting 

“raising funds for candidates or parties.” And last, and perhaps most significant, there is 

a $250 “safe harbor” that allows covered persons to contribute up to that amount to those 

officials for whom larger contributions would trigger the ban. Id. at 948. Far from 

supporting section 441c, the SEC rule in Blount has all the attributes of a carefully crafted 

law that section 441c lacks and that the First Amendment requires.

The other non-FECA cases relied on by the FEC provide no more help. In Green 

Party of Connecticut the court upheld the branch-specific ban on contractor 

contributions: a contract involving the executive branch only triggered a ban on 

contributions for officials in that branch, with similar rules for legislative branch 

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contributions. If section 441c were branch-specific, plaintiffs could contribute to 

campaigns for Congress, as well as give to political parties and political committees, 

none of which they can now do. Moreover, the law in Green Party sensibly extended to 

“a political committee established or controlled by an individual described in this 

subparagraph or the business entity or nonprofit organization that is the state contractor 

or prospective state contractor.” C.G.S.A. § 9-612(g)(1)(F)(vi). By contrast, section 

441c permits further undermining of the supposed purpose of preventing the appearance 

of corruption by allowing corporate PACs of a contractor to make contributions, in the 

face of a FECA requirement in 2 U.S.C. § 432(e)(5) that demands that all corporate PACs 

include the name of the sponsor so that there is no doubt as to the contribution’s origins. 

The Connecticut law also applies to individuals who have positions of responsibility or 

have substantial ownership in corporate contractors, C.G.S.A. § 9-612(g)(1)(F), because, 

as the court observed, “many state contractors are likely artificial entities, so the 

provisions making the law applicable to ‘principals’ of contractors are particularly 

important.” 616 F.3d at 202 n.10. But unlike the Connecticut law, which reaches 

corporate officers and thereby prevents evasion of the purposes of the law, section 441c 

allows all corporate officers, even those at one-person LLCs, to make contributions.5 

Perhaps the most relevant part of Green Party is the court’s conclusion that a 

similar ban on lobbyists, which was not branch-specific, was unconstitutional, in large 

part because there was no evidence that the corruption scandals extended to lobbyists. Id. 

 5

 The Connecticut law also contains an exception for contracts under $50,000, or a series 

of contracts under $100,000 in a given year, which would exclude contractors like 

plaintiff Wagner. C.G.S.A. § 9-612(g)(1)(C). There is no indication that the Connecticut 

government has employee-contractors like plaintiffs Brown and Miller, or if it does, that 

they are covered by the law.

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at 206. Similarly, there is no evidence that contributions from would-be contractors have 

ever influenced federal contracting decisions, any more than they have influenced 

employment decisions regarding federal employees for whom the ban of section 441c is 

inapplicable. These comparisons not only strongly support plaintiffs’ Equal Protection 

claim, but also demonstrate that section 441c is not narrowly tailored to meet its 

supposed purposes, and therefore cannot be sustained under the First Amendment 

because laws abridging First Amendment rights cannot be based on speculation alone:

“[I]t has long been established that the government cannot limit speech protected by the 

First Amendment without bearing the burden of showing that its restriction is justified,” 

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986). Even regarding the 

more permissive regulation of commercial speech, the Court has held that “t]his burden is 

not satisfied by mere speculation or conjecture; rather a governmental body seeking to 

sustain a restriction on . . . speech must demonstrate that the harms it recites are real and 

that its restriction will in fact alleviate them to a material degree.” Edenfeld v. Fane, 507 

U.S. 761, 770-71 (1993).

The FEC’s attempt to find support in Ognibene v. Parkes, 2012 WL 89358 (2d 

Cir. Jan 12, 2012), is unavailing because it fails to respond to the many differences 

pointed out at pages 33-35 in Pls Memo Similarly, assuming Preston v. Leake, 660 F.3d 

726 (4th Cir. 2011), was correctly decided, the FEC conveniently omits the fact that even 

the lobbyist-plaintiff there, whose challenge was only on as-applied basis, could still 

contribute up to $4000 to a political committee of her choosing and designate her 

preference on where the money should go. Pls Memo at 35. In sum, there is no court has 

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ever upheld a law remotely like section 441c in the face of a First Amendment challenge, 

and this Court should not be the first to do so.

The FEC suggests (Opp. at 17 n.12) that section 441c can be justified because, 

according to a Congressional Research Service Report, elected representatives sometimes 

suggest a company or individual for a contract. Leaving aside whether there is any 

evidence of that practice for these kinds of contracts, or whether such a suggestion might 

come before the time that the ban in section 441c comes into play, there is a much 

simpler remedy that does not infringe the First Amendment rights of plaintiffs and other 

would-be contributors: forbid recipients of contributions from recommending the 

contributor for a federal contract for a period of time after receipt of the money. That is 

the method used by the SEC and approved in Blount, and it would be much more closely 

drawn than section 441c. The same approach could be used vis-à-vis political 

appointees, a concern noted by the FEC on page 18, but which overlooks the criminal 

prohibition on coercing contributions that already exists in 18 U.S.C. § 601. Given the 

size of the Plum Book (note 13), the well-known practice of awarding high level 

positions to high level donors or fund-raisers, see Washington Post, March 8, 2012 (A15),”Obama Gives Administration Jobs to Some Big Fundraisers,” is a much more 

serious problem than is forbidding all contributions by individuals like plaintiffs, and yet 

Congress has done nothing to address that problem.

Although section 441c is a total ban and not a limitation, plaintiffs do not dispute 

in this Court that the appropriate standard of review is that provided in Beaumont: the law 

must be “closely drawn to match a sufficiently important interest.” 539 U.S. at 162. As 

the Court stated, “It is not that the difference between a ban and a limit is to be ignored; it 

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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. The Court went on to uphold the prohibition 

on using treasury funds of the corporation in Beaumont, in part because it declined to 

treat the prohibition as a ban where the corporation could use its PAC to make 

contributions. Id. That avenue is not available to plaintiffs, and for this reason as well, 

the Court should find that the ban as applied to plaintiffs is not “closely drawn” and thus 

section 441c violates the First Amendment.

II. SECTION 441C VIOLATES EQUAL PROTECTION

AS APPLIED TO PLAINTIFFS.

The most noteworthy aspect of the FEC’s opposition on the Equal Protection 

claim is that its defense is premised on the proposition that the distinctions raised by 

plaintiffs need only be defended under the “Highly Deferential Review Under the 

Rational Basis Standard” (Opp. at 28, heading 1). There is no effort to defend the 

discriminations in favor of federal employees, corporate contractors, or individuals who 

are officers, directors, stockholders, and employees of federal contractors on anything but 

the lowest level of judicial review. Accordingly, if, as we now show, some form of 

heightened review is required, plaintiffs must prevail on their Equal Protection claim.

As the FEC recognizes, heightened scrutiny applies when dealing with 

discrimination that involves “a fundamental right or a suspect class.” (Opp. at 28). 

Plaintiffs do not claim that they are members of a suspect class, but they do claim that the 

right to make political contributions, which is the right abridged by section 441c, is a 

fundamental right protected by the First Amendment to the Constitution. There can be no 

doubt after Buckley that the right to make contributions is protected by the First 

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Amendment, and that the right can be restricted only if the restriction survives some form 

of heightened scrutiny, even if not strict scrutiny. See supra, at 1-2. Because the basic 

right to contribute is subject to heightened scrutiny when applied equally to all would-be 

contributors, plaintiffs are a fortiori entitled to at least that much protection when others 

who are similarly situated can exercise the right and plaintiffs cannot. Indeed, the Equal 

Protection argument is effectively an argument in addition to the First Amendment, and 

so it defies logic that it should be subject to a reduced form of judicial scrutiny.

The FEC cites no case, post-Buckley, supporting rational basis review in the First 

Amendment context, let alone as applied to campaign contributions. Almost all of the 

rational basis cases cited by the FEC involve economic regulation, including cases in 

which the government has declined to subsidize certain activities which were arguably 

protected by the First Amendment. As we pointed out previously (Pls Memo at 17), the 

closest case in the campaign finance area in terms of factual similarity is the portion of 

McConnell v. Federal Election Commission, 540 U.S. 93, 231-32 (2003), striking down 

the prohibition on all contributions by persons under the age of 18. To be sure, that claim 

was decided under the First Amendment, but it could just as properly be viewed through 

an Equal Protection lens. Thus, the hypothetical justifications put forth by the FEC there 

– just like those put forth here – do not support the discriminatory treatment of those 

under age 18 as compared with the laws applicable to adults, even though only the latter 

can vote in federal elections. 

Similarly in FEC v. Beaumont, 539 U.S. 146 (2003), the Court considered the 

differing treatment of corporations and individuals in making contributions in federal 

elections under a heightened standard of First Amendment review. But it could also have 

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viewed the case as one involving Equal Protection, in which the standard of review 

would surely be no less, since the right at issue was a fundamental one entitled to 

heightened scrutiny. The fact that a corporation cannot vote and that plaintiffs can, 

should affect the outcome of the review, but it does not alter the applicable standard. 

Finally, Kramer v. Union Free School District, 395 U.S. 621 (1969), applied strict 

scrutiny to an Equal Protection claim involving the right to vote, to which the right to 

make a political contribution in connection with an election in which plaintiffs will vote 

is closely related. Kramer supports application of strict scrutiny (a point that we reserve 

for appeal), but at the very least it argues against any notion that rational basis review is 

applicable to plaintiffs’ Equal Protection claim here. See also FEC v. Weinsten, 462 F. 

Supp. 243, 249 (S.D. N. Y. 1978) (“In this court's view, the making of a political 

contribution by an individual is a means of self-expression which is directly linked to that 

individual's right to vote”).

Plaintiffs recognize that a few of the cases cited by the FEC suggest a lower 

standard of review, but in our view those statements are distinguishable because they deal 

with situations other than restrictions (let alone bans) on making contributions, are dicta 

(generally quite brief), and/or fail to consider Buckley and other relevant authority. 

Broadrick v. Oklahoma, 413 U.S. 601 (1973), is a pre-Buckley state Hatch Act case 

upholding limits on conduct (not on making contributions) by state civil service 

employees. At page 607 n.5, the Court rejected an Equal Protection claim that the law 

should also have covered non-civil service employees, after it had already rejected the 

same claims under the First Amendment, and concluded only that the state should have 

“some leeway” in this area, a proposition with which we do not disagree,

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In Buckley, after upholding contribution limits under heightened scrutiny, the 

Court rejected an Equal Protection challenge by minor political parties to the system of 

matching funds for Presidential elections. 424 U.S. at 93-94. Their claim did not involve 

a ban of any kind, but rather an objection that the amount of money that they had to raise 

to be eligible for a taxpayer subsidy was too high. In finding against those plaintiffs, the 

Court observed that their problem was caused not by the Government, but by the 

plaintiffs’ inability to raise the money needed to obtain a match. The Court concluded 

that the minor and major parties were not actually similarly situated, because public 

financing “does not enhance the major parties’ ability to campaign; it substitutes public 

funding for what the parties would raise privately,” whereas with a minor party that 

“cannot raise funds privately, there are legitimate reasons not to provide public funding, 

which would effectively facilitate hopeless candidacies.” 424 U.S. at 95 & n.129. That 

fact-bound reasoning has no relevance here.

Also cited by the FEC is McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001), in which 

the court denied a First Amendment claim challenging a buffer zone around abortion 

clinics, and then responded very briefly and with minimum attention to an Equal 

Protection claim. Applying intermediate scrutiny to a First Amendment challenge, it 

sustained the statute which affected “only areas immediately adjacent to [abortion 

providers]; prohibit[ed] only nonconsensual approaches within six feet; and applie[d]

only within a clearly marked eighteen-foot radius from clinic entrances and exits.” Id. at 

48, 49. It then summarily rejected the Equal Protection argument on the ground that 

“where the state shows a satisfactory rationale for a content-neutral time, place, and 

manner regulation, that regulation necessarily passes the rational basis test employed 

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under the Equal Protection Clause.” Id. at 49-50. That an Equal Protection challenge to 

a content-neutral time, place, and manner regulation is subject only to rational basis 

review has nothing to do with the discrimination at issue in this case.

Finally, the FEC is correct that the D.C. Circuit in Blount rejected an Equal 

Protection challenge to one aspect of the SEC’s rule at issue there. That rule (unlike 

section 441c) reached officers of the securities dealer, but the challengers contended that 

it violated Equal Protection because it also did not extend to officers of the parent 

corporation of the dealer and the parent’s political committees. The court in note 4 on 

page 946 rejected the claim of under-inclusion, recognizing that the SEC could sensibly 

stop somewhere and, with little analysis, applied rational basis to that line-drawing. 

Given the overall thrust of the rule, that outcome is hardly problematic since the principal 

impact of the law was on the economics of the municipal securities industry, a matter 

well within the special competence of the SEC.

To the extent that the FEC engages on the reasons for these discriminations, it 

does no more than chip away at the edges. It states the obvious: that employees and 

contractors are not the same (although judged by what these plaintiffs actually do, it is 

hard to tell the difference). Even that assertion simply states the question and does not 

answer it. The FEC suggests, without actually arguing the point, that employees and 

contractors are not similarly situated, which is inconsistent with its quotation on page 14 

of its Opposition from Board of County Commissioners v. Umbehr, 518 U.S. 668, 684-

685 (1996), where the Court stated that “[i]ndependent government contractors are 

similar in most relevant respects to government employees.” Moreover, the statement 

from Senator Brown from the legislative history of the predecessor of section 441c, 

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quoted on page 8 of the Opposition, asserted that Congress was purporting to “apply the 

same principle . . . to contractors” as applied to federal employees, but that is not the law 

since only contractors, and not employees, are barred from making contributions. 

Plaintiffs agree that the civil service rules cited on page 33 of the Opposition, which 

distinguish among federal employees in terms of what employees of different agencies 

should be allowed to do, are “nuanced” (Opp. at 32) However, that surely cannot be said 

for the rule that allows all federal employees to make contributions just like everyone else 

– e.g., up to $2,500 per candidate, per election – but denies individual federal contractors 

like plaintiffs the ability to contribute even $100 to their favorite candidate, party, or 

political committee.

The FEC’s main responses to the employee vs contractor discrimination are that 

plaintiffs cannot object because they are volunteers and because contractors are more 

likely to be coerced, points to which we responded in the opening section of this Reply. 

The Opposition also makes the point that the LLC option is only available for the 

plaintiff Wagner (and for all other true consultants and experts), but that is because of the 

way that USAID hires its contractors, and not because of anything in section 441c. It 

further observes that at least in Maryland some kinds of LLCs can be easily established, 

but does not respond to the Tiemann declaration as to the continuing costs of keeping 

them in good standing and paying for the additional expenses of preparing a corporate tax 

return. And since the right to speak by corporations, such as those in Citizens United and 

FEC v. Wisconsin Right to Life Committee, 551 U.S. 449 (2007), is not lost even where 

they have a PAC, let alone where they might create one, there is simply no basis on 

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which any individual contractor should be forced to establish and pay for an LLC simply 

to be able to make a contribution in a federal election.

The FEC further argues that individual and corporate contractors are both 

forbidden from making contributions, and thus the two groups are “treated almost 

identically” (Opp. at 34). But that is incorrect because all corporations, not just 

government contractors, are forbidden from making contributions, and even government 

contractor corporations can establish separated segregated funds, but individual 

contractors like plaintiffs cannot. The FEC then points out that the money for corporate 

PACs cannot come from the corporation itself, but from other sources (forgetting for the 

moment that the corporation can pay for the costs in establishing an administering them, 

which includes solicitation of funds). That is true, but the more accurate analogy would 

be if plaintiffs could use funds not obtained from their government contracts (which may 

have been what Congress originally intended, see Opp. at 8-9). However, the FEC was 

explicit in its Opinion Letter to plaintiff Brown and in its regulations that, for individuals, 

it does not matter what the source of the money is: no contributions can be made while 

the person is negotiating for or holds a government contract. 

The notion that corporations should have greater rights than individual voters is 

impossible to square with the decision in Beaumont, where the Court held that the ban on 

corporation contributions, there by a non-profit, was constitutional. In reaching that 

conclusion, the Court observed at 161 n.8: “Within the realm of contributions generally, 

corporate contributions are furthest from the core of political expression, since 

corporations' First Amendment speech and association interests are derived largely from 

those of their members, see, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 

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458-459 (1958), and of the public in receiving information, see, e.g., First Nat. Bank of 

Boston v. Bellotti, 435 U.S. 765, 777 (1978). A ban on direct corporate contributions 

leaves individual members of corporations free to make their own contributions, and 

deprives the public of little or no material information.” Yet under section 441c, it is 

these individual contractors who are not free to make their own contributions – even with 

money not derived from their federal contracts - but corporate PACs, officers, directors, 

and shareholders – even a sole shareholder and officer of an LLC – are at liberty to do 

exactly that and more, since they can even contribute from funds derived from their 

federal contracts. 

III. THE BALANCE OF EQUITIES

 DECIDEDLY FAVORS PLAINTIFFS.

The Opposition correctly observes that plaintiffs did not extensively argue the 

factors other than the merits in seeking a preliminary injunction. There were two 

reasons: the equities in favor of three individuals seeking very modest relief under the 

First Amendment and Equal Protection provisions of the Constitution seemed quite 

strong when viewed in the context of entire 2012 federal election, and they had no idea 

what the FEC would argue in opposition. Now that the opposition has surfaced, plaintiffs 

will respond and demonstrate that, as on the merits, the FEC’s position cannot be 

sustained.

The FEC argues that, in effect, granting preliminary relief is pointless because, if 

a preliminary injunction were later overturned, either by this Court or on appeal, 

plaintiffs could still be subject to enforcement proceedings – including being charged 

with felonies – for making a contribution that was specifically permitted by the

preliminary injunction (Opp. 38-42). If the FEC only means that the order that plaintiffs 

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have submitted did not provide protection in the event that it was later overruled, 

plaintiffs are submitting with this Reply a Revised Proposed Order, whose third ordering 

paragraph makes it clear that if plaintiffs make contributions while the preliminary 

injunction is in effect, the FEC is precluded from going back later, if the order should be 

reversed, and bringing any kind of enforcement proceeding against plaintiffs for conduct 

during that “safe harbor” time frame.6 We are unaware of any case in which the federal 

government has sought to prosecute a person for acts taken under the protection of a 

federal court injunction (either preliminary or permanent) that was in effect at the time of 

those acts but was later vacated. We also do not believe that the FEC would seek any 

such enforcement action, nor that a judge or jury would convict on such facts. And to the 

extent that the FEC persists in this position, that provides another reason for the Court to 

decide the merits of this case at this time.

The FEC also attempts to downplay the significance of even the temporary relief 

sought, by suggesting that plaintiff Wagner will be able to contribute starting in early 

April. In fact, as she points out in her Second Supplemental Declaration, which is limited 

to this issue, her contract requires her to work on the project for ACUS until it is 

concluded, which will not be before mid-June 2012. Given the extraordinary depth of her 

report, extending to over 120 pages, and the far-reaching nature of its recommendations, 

it is far from certain that the project will end in June. But even if her work is concluded 

then, that is at least three more months before she can express views by making political 

contributions in this year’s elections for federal office. The FEC is simply wrong to 

 6

 ORDERED that the injunction granted in the preceding paragraph shall continue 

to apply, even if this Court or a higher Court overturns the injunction, with respect to any 

contribution that plaintiffs may make while this order is in effect.

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discount the importance of that denial of her First Amendment rights for that period of 

time. As for plaintiffs Miller and Brown, their contracts extend well beyond this election 

cycle, during which they will be silenced if preliminary relief is not accorded them.

The FEC also suggests that plaintiffs sat on their rights before seeking what it 

calls “emergency relief” (Opp. at 37), a phrase typically invoked when a temporary 

restraining order is sought. There is no suggestion that plaintiffs purposefully delayed 

filing to place the FEC at a disadvantage, and they initially filed this case, seeking 

immediate review in the D.C. Circuit under 2 U.S.C. §437h. They only sought a 

preliminary injunction when it became apparent that the FEC would not agree to have 

this case decided on even a moderately expedited basis. Furthermore, the contract of 

plaintiff Brown, who had sought an opinion from the FEC allowing to make contributions 

despite section 441c, was to expire on September 30, 2011, and he could not be a plaintiff 

unless his contract were renewed. This case was filed less than three weeks after that 

occurred. The FEC has not claimed any prejudice from any delay, nor could it, given its 

posture on moving the case ahead.

The FEC also argues (Opp. at 42) that there is a government interest in continuing 

its programs and laws and that courts should not lightly enter injunctions (either 

preliminary or permanent) against federal agencies. Plaintiffs do not disagree. But that 

does not mean that no preliminary injunction should ever issue enjoining enforcement of 

a federal statute. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 

546 U.S. 418 (2006) (affirming preliminary injunction against enforcement of federal 

controlled substances statute as applied to plaintiffs). In other words, caution does not 

equal never or even almost never. It all depends.

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The FEC observes that a decision favoring plaintiffs, even on a preliminary 

injunction, “could set a precedent” (Opp. at 43), but this Court knows that its decisions 

need not be followed by any other judge, even in this district. Of course, an opinion by 

this Court may be persuasive, but that is hardly a reason not to decide the pending motion 

in accordance with law and equity. It is possible that others will decide to sue, but that is 

always the case. If suits are brought, the FEC can be expected to resist as it has resisted 

here. These cases involve complicated legal issues, and most lawyers will be unwilling 

to sue when they can free ride on this case. Moreover, because there is no basis for 

statutory attorneys’ fees against the FEC, any case would probably have to be brought by 

pro bono counsel, further decreasing the likelihood that there will any, let alone a 

significant number of, cases filed based on the granting of a preliminary injunction. 

Therefore, to the extent that there might be actual, as opposed to theoretical, harm from 

the granting of a preliminary injunction, it will be limited to that resulting from the 

contributions of these three individuals, all of whom must continue to abide by the laws 

limiting everyone’s contributions.

Finally, plaintiffs do not contend, as the FEC suggests on page 44, that, because 

their contributions will be small and cannot effect the election, for that reason section 

441c should not apply to them, as the plaintiff was arguing in Preston, supra. Their claim 

is more fundamental, and they recognize that, if they ultimately prevail, all individual 

contractors like them will be freed of section 441c’s ban. Their point now is that a 

preliminary injunction will only free these three individuals, and that fact is relevant in 

balancing the equities on that motion. Of course, if a permanent injunction is granted and 

sustained on appeal, the relief will not be so limited, but the court will not have to 

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balance the equities as it does on a motion for a preliminary injunction. As for the FEC’s 

contention that campaign finance will become the “wild west” if preliminary relief is 

awarded here (Opp. 43), we note that in the decision from which that quote was taken -

Real Truth About Obama, Inc. v. FEC, 2008 WL 4416282 (E.D.Va. 2008), vacated based 

on Citizens United, 130 S.Ct. 2371 (2010) – there were four claims of unconstitutionality 

and the court found it “unlikely” plaintiffs would succeed on any of them. Id. at * 15. In 

addition, plaintiffs were seeking to enjoin the FEC from enforcing its regulations not just 

against plaintiff, “but also to all other entities similarly situated.” Id. at * 3 (internal 

quotation marks and citation to record omitted). Like many of the cases cited in the 

FEC’s Opposition, Real Truth has almost nothing to do with the issues and facts in this 

case. 

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CONCLUSION

For the foregoing reasons, the Court should (A) grant plaintiffs’ request to 

consolidate their motion for a preliminary injunction with a hearing on the merits, grant 

their motion for a permanent injunction, and sign the permanent injunction order 

submitted with this Reply, or (B) in the alternative grant plaintiffs’ motion for a 

preliminary injunction and enter the revised proposed order submitted with this Reply. 

Respectfully submitted,

/s/ Alan B. Morrison /s/ Arthur B. Spitzer

Alan B. Morrison Arthur B. Spitzer

D. C. Bar No. 073114 D.C. Bar No. 235960

George Washington Law School American Civil Liberties Union of 

2000 H Street NW the Nation’s Capital

Washington D.C. 20052 4301 Connecticut Ave, N.W., 

(202) 994 7120 Suite 434

(202) 994 5157 (fax) Washington, D.C. 20008

abmorrison@law.gwu.edu (202) 457 0800

(202) 452-1868 (fax)

artspitzer@gmail.com

March 12, 2012

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