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. 

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 

Pursuant to the schedule agreed upon by the parties, plaintiffs hereby move this 

Court for an order granting them a preliminary injunction. In support of the motion, 

plaintiffs rely on (1) the previously submitted Declarations of the plaintiffs Wendy E. 

Wagner, Lawrence M. E. Brown, and Jan W. Miller and of Jeffrey S. Lubbers, Jonathan 

Tiemann, and Steven L. Schooner; (2) the supplemental Declarations of plaintiff Wendy 

Wagner and Lawrence M. E. Brown; (3) a Statement of Points and Authorities in Support 

of the Motion; and (4) a Statement of Undisputed Material Facts. A proposed order is 

also submitted herewith. 

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 18 Filed 01/31/12 Page 1 of 2
 /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@gmail.com

January 31, 2012 

Case 1:11-cv-01841-JEB Document 18 Filed 01/31/12 Page 2 of 2
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’ STATEMENT OF POINTS AND AUTHORITIES 

 IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

 This case challenges the constitutionality of the portion of 2 U.S.C. § 441c 

(“section 441c”) that makes it unlawful for an individual who has a contract with a 

federal agency to make a contribution – in any amount – to a candidate for federal office, 

to a political party, or to a political committee for use in connection with any federal 

election. The defendant Federal Election Commission (“FEC”) is the federal agency 

responsible for the enforcement of the Federal Election Campaign Act, 2 U.S.C. §§ 431 

et seq (“FECA”), which includes section 441c. This Court has jurisdiction pursuant to 28 

U.S.C. § 1331. 

 Each of the plaintiffs is currently a paid consultant to a federal agency, and each 

of them is also an individual eligible to vote in the 2012 federal elections. Plaintiffs 

believe that there are no material facts at issue in this case, and they have submitted with 

this motion a Statement of Undisputed Material Facts, with references to the short 

declarations that they have submitted that support those facts. For that reason those 

references will not be repeated herein. The FEC believes that discovery is necessary, but 

rather than litigate that question, the parties have agreed upon a schedule for discovery 

Case 1:11-cv-01841-JEB Document 18-4 Filed 01/31/12 Page 1 of 40
2

and briefing on the merits and for plaintiffs to make this motion for a preliminary 

injunction. 

Preliminary relief is essential for plaintiffs because this is a presidential election 

year in which plaintiffs wish to support the candidates and parties of their choosing, 

which they cannot do under the schedule that the FEC claimed it needs for discovery and 

briefing on the merits. Plaintiffs set forth below the standards for granting a preliminary 

injunction and for assessing the constitutionality of section 441c, and they demonstrate 

that they can satisfy those requirements. At this time, they wish to emphasize two points: 

(1) the relief sought will apply only to these three plaintiffs and not to any of the many 

other individuals with government contracts who are also subject to section 441c; and (2) 

any contributions that they make will be limited in the same manner and amounts as 

those of any other individual who is not subject to this or some other ban. 

 The challenge set forth in plaintiffs’ amended complaint dated January 31, 2012 

has two separate claims, either of which is sufficient to set aside the ban on contributions 

by individuals who perform services under contracts with federal agencies. The first is 

an equal protection claim based on the fact that there are several sets of persons who are 

similarly situated to plaintiffs, to whom the absolute ban in section 441c does not apply. 

These include two distinct groups: (I) individual officers and employees of almost all 

federal agencies, including the very agencies for which plaintiffs work; and (II) (a) 

political committees of contracting corporations that can be established and administered 

by such corporations; (b) officers, directors, employees, and stockholders of contracting 

corporations; and (c) individuals who have incorporated their personal services 

businesses and have their corporation as the contracting entity. As explained more fully 

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3

below, plaintiffs contend that the ban is subject to strict scrutiny under the Equal 

Protection Clause, but it cannot be justified no matter what level of scrutiny is applied. 

That is because section 441c imposes an absolute ban on plaintiffs’ First Amendment 

protected activity of making a political contribution to a candidate for an elected federal 

office or to a political committee or political party for use in connection with a federal 

election, while placing no such restrictions on others who are similarly situated. That is 

indefensible under any standard of review. 

 Plaintiffs’ second claim is a First Amendment challenge to the absolute ban on 

contributions in section 441c. The Supreme Court has never upheld a total ban on 

contributions by a category of individuals who are eligible to vote in federal elections, 

and this Court should not do so either. The only arguable justification for this ban is that 

the making of a political contribution can be perceived, in some situations, as an 

improper inducement to award or to steer a contract to the person making the 

contribution. That theoretical justification cannot apply here because the only persons to 

whom a federal contribution can be made are either candidates for federal office who 

have no role in the awarding of the contracts of plaintiffs (and almost all other individual 

who have federal personal services contracts) or entities such a political parties or 

political committees that have no authority whatsoever to award any federal contract. 

The total mismatch between the absolute ban on contributions by individual contractors 

and any potential for influencing the persons who award their contracts dooms this law, 

no matter what level of scrutiny is applied. 

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4

THE STATUTORY SCHEME 

 FECA is a complex statute that regulates the use of money in elections for federal 

office. Unlike states and localities that have many elected positions, including many that 

have significant roles in governmental contracting, the only elected federal offices are 

President, Vice President, Members of the House of Representative, United States 

Senators, and (non-voting) Delegates and Resident Commissioners. FECA has numerous 

provisions relating to the making of contributions and expenditures, but for the purposes 

of this lawsuit, there are only a few of relevance. 

 First, 2 U.S.C. §441a (a)(1) places limits on the amount of money that an 

individual may contribute to candidates, political parties, and political committees, as 

well as imposing overall total limits on what that individual may contribute to all such 

persons in a given election cycle. Some of those limits are indexed for inflation, and for 

the 2011-12 election cycle, they are $2500 (candidates, per election); $30,800 (political 

parties, per calendar year); $5000 (political committees, per calendar year); and $117,000 

(total per 2 year election cycle). http://www.fec.gov/pages/brochures/contriblimits.shtml. 

If plaintiffs prevail in this lawsuit, they would still be subject to all those limitations, as 

well as any others in FECA. 

 Second, under section 441b, all corporations are forbidden from making 

contributions to candidates for federal office, as well as to political parties and political 

committees that support such candidates. However, subsection 441b(b)(2)(C) 

specifically allows corporations to expend money to be used for “the establishment, 

administration, and solicitation of contributions to a separate segregated fund to be 

utilized for political purposes,” from which the fund may make contributions that the 

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5

corporation itself would be prohibited from making. Contributions to such a fund, which 

is a type of political committee, can be solicited only from the corporation’s 

“stockholders and their families and its executive or administrative personnel and their 

families.” Subsection 441b(b)(4)(A)(i). That exception also modifies the otherwise 

absolute ban on contributions by labor unions. However, because unions do not 

ordinarily have contracts with federal agencies, they will not be referred to further herein. 

 Third, there is section 441c, which is being challenged in this action as it applies 

to individuals, but not to corporations. 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 

FECA. It was amended in 1976 by the addition of subsections (b) and (c), and the three 

subsections were designated section 441c by section 322 of Public Law 94-283 (1976). 

The full text of subsection 441c(a) is set forth in the note below.1

 As it relates to this 

case, the essence of section 441c is that it makes it 

 

1

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

(1) who enters into any contract with the United States or any department or agency 

thereof either for the rendition of personal services or furnishing any material, supplies, 

or equipment to the United States or any department or agency thereof or for selling any 

land or building to the United States or any department or agency thereof, if payment for 

the performance of such contract or payment for such material, supplies, equipment, land, 

or building is to be made in whole or in part from funds appropriated by the Congress, at 

any time between the commencement of negotiations for and the later of (A) the 

completion of performance under; or (B) the termination of negotiations for, such 

contract or furnishing of material, supplies, equipment, land, or buildings, directly or 

indirectly to make any contribution of money or other things of value, or to promise 

expressly or impliedly to make any such contribution to any political party, committee, or 

candidate for public office or to any person for any political purpose or use; or 

(2) knowingly to solicit any such contribution from any such person for any such purpose 

during any such period. 

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unlawful for any person . . . who enters into any contract with the United States 

or any department or agency thereof . . . for the rendition of personal services . . . 

if payment . . . is to be made . . . from funds appropriated by the Congress, at any 

time between the commencement of negotiations . . . and . . . the completion of 

performance, . . . to make any contribution . . . to any political party, committee, 

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

Or, in plain English, in addition to the laws forbidding bribery, it is a crime for a person – 

either an individual or a corporation – that has a contract with the federal government to 

make a contribution in connection with a federal election while negotiating for, or 

performing under, that contract. Violation of section 441c is a felony and, depending on 

the amount of the unlawful contribution, can result in the imposition of a sentence of up 

to five years in prison, or a fine under Title 18, or both. 2 U.S.C. § 437g(d)(1)(A). Read 

literally, these prohibitions apply to state, local, and federal elections, but the FEC has 

construed section 441c to apply only to federal elections. 11 C.F.R. § 115.2(a). 

 Several other aspects of the seemingly absolute ban in section 441c are of 

significance. Subsection (b), enacted in 1976, re-enacts the separate segregated fund 

exception in section 441b(b)(2), to make it clear that it creates an exception to the ban in 

section 441c, as well as that in section 441b. Thus, for example, even though large 

government contractors like The Boeing Company or IBM are barred from attempting to 

obtain a government contract by making contributions for use in federal elections, Boeing 

PAC or IBM PAC can make such contributions from a separate fund if the corporation 

has one. In order that there is no uncertainty about the connection between such separate 

funds and the entity that sponsors them, Congress has provided in 2 U.S.C. § 432(e)(5) 

that “[t]he name of any separate segregated fund established pursuant to section 441b(b) 

of this title shall include the name of its connected organization,” i.e. ,Boeing or IBM. 

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7

 In addition to the exclusion of separate segregated funds from the ban on 

corporate contributions by government contractors, the FEC has, properly in our view, 

construed section 441c in 11 C.F.R. § 115.6, not to apply to stockholders, directors, 

officers, or employees of a federal contractor. There is no limitation on the kind of 

corporation to which this exclusion applies. Thus, the President of Boeing would not be 

subject to the ban of section 441c, nor would someone who is the sole owner, officer, and 

employee of a limited liability company (LLC) that enters a personal services contract 

with a federal agency. 

 Finally, there is no ban under current law generally applicable to individuals who 

work for the federal government as either officers or employees. There is one general 

limitation not found in Title 2, but in 18 U.S.C. § 603, which is part of the Hatch Act, but 

its narrow scope underscores the contrast with the ban in section 441c. Section 603 

forbids contributions where “the person receiving such contribution is the employer or 

employing authority of the person making the contribution.” That quite limited 

prohibition appears designed mainly to guard against overreaching by the person 

soliciting the contribution – by forbidding such contributions entirely, rather than by 

trying to define what kinds of requests go too far. It still leaves federal workers free to 

make contributions to any candidate by whom they are not currently employed, which 

mainly precludes contributions to a sitting member of Congress by his or her immediate 

staff, or to the campaign of the President by someone who works directly for the 

President. But it does not limit in any way a federal employee’s ability to make a 

contribution to a political party or a political committee, such as Emily’s List or any of 

the various Right to Life Committees that have been so active in federal elections and in 

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8

challenging various campaign finance laws. As the declarations of plaintiffs spell out, 

these federal officers and employees often work side by side with plaintiffs and other 

individuals who perform under personal services contracts with federal agencies, with 

much of the work being performed interchangeably between contractors and full time 

employees. Infra, at 10-14. In addition, there are a few rules (at 20-21) that impose 

additional restrictions on employees of designated sensitive agencies, such as the FEC, 

the FBI, and the CIA, but none of them come close to applying to the kind of work that 

plaintiffs perform. 

 There is another aspect of federal contract law that bears on the First Amendment 

claim in this case. Pursuant to 48 C.F.R. §1.601(a), the heads of all federal agencies are 

vested with contracting authority, which they may, and generally do, delegate to others. 

What is important for this challenge is that the heads of federal agencies are not elected, 

like the President and Members of Congress, but are appointed by the President, with the 

advice and consent of the Senate, as “Heads of Departments” pursuant to Article II, 

section 2, clause 2. Not only does the law state who shall award contracts and assure 

their proper performance, the plaintiffs’ declarations show that appointed agency 

officials, not elected officers, actually made the relevant contract determinations for 

them. Moreover, the declaration of Steven L. Schooner attests that it is unelected agency 

officials, not the President, Vice President or Members of Congress who ordinarily make 

the decisions regarding contracts that individuals have with federal agencies.2

 

2

 Congress has the power to direct the President and/or agency heads to enter into specific 

contracts, by enacting a law to that effect. In that situation, a law directed at forbidding 

the influencing of legislative decisions on government contracts by making a contribution 

to obtain a contract would present a different case, but section 441c is not such a law. 

Moreover, although Congress may from time to time legislate in a manner (continued) 

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 Finally, section 441c applies only to contracts with the federal government, but 

not to other similar financial transactions through which the Government makes 

substantial payments to individuals, who might believe that making a political 

contribution would enhance their chances of obtaining such a payment. Thus, section 

441c excludes grants, as well as other financial transactions, not to mention other benefits 

that the Government conveys on others. For that reason, it is under-inclusive, as well as 

over-inclusive, both of which seriously undermine any claim that section 441c is 

designed to curb the appearance of corruption through “pay-to-play” schemes involving 

political contributions. 

THE PLAINTIFFS 

 The three plaintiffs currently serve as consultants to federal agencies under 

contracts that make them subject to the ban in section 441c. Each of them is eligible to 

vote in the 2012 federal elections. Each of the plaintiffs has, prior to becoming a 

consultant, and hence becoming subject to section 441c, made contributions to candidates 

for election to federal offices and/or to political parties and political committees, in some 

cases in their own names and in some cases jointly with their spouses. Each of the 

plaintiffs would like to make such contributions now, but section 441c prohibits them 

from doing so and would subject them to criminal prosecution if they made a contribution 

to a candidate for federal office or to a political committee or political party that supports 

candidates for federal office. 

 

(continued) that may affect the award of major defense or aerospace contracts to large 

corporations, we are unaware of any such legislation involving individual personal 

services contracts, let alone any situation in which an individual allegedly made a 

political contribution in order to obtain such a contract. 

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Plaintiff Wagner is a professor of law at the University of Texas Law School. 

Her principal area of scholarship is the law-science interface in environmental law. She is 

currently performing under a contract under which she is being paid $12,000 by the 

Administrative Conference of the United States (“ACUS”), an agency of the United 

States. Under her contract, which was approved by ACUS officials, none of whom is 

elected, she is obligated to prepare a report and recommendations on potential 

improvements in the use of science by administrative agencies in rulemaking, 

adjudication, and/or other agency functions. As shown by the affidavit of Jeffrey S. 

Lubbers, former research director for ACUS and now a consultant to it, ACUS regularly 

hires academics, primarily law professors, to prepare studies in connection with the 

preparation of draft recommendations that ACUS will debate and vote on. As is the case 

for most ACUS consultants, and was true for plaintiff Wagner, the staff identifies 

potential consultants, based on their areas of expertise and the scope of the proposed 

project, and approaches the individual to determine his or her interest and availability. 

Consultant fees at ACUS generally range from $5,000 to $12,000 per project. For 

ACUS, the choice of consultants, and the amount to be paid to them, is determined by the 

Chairman and the staff, none of whom is an elected federal officer. 

A consultant’s work is reviewed by ACUS staff and then discussed by the 

relevant committee of ACUS members before going to the ACUS Council, which is in 

effect its governing board, and then to the membership for a vote. In many cases, the 

original recommendation will undergo substantial changes before it is presented to the 

full ACUS membership, which then discusses and often further amends the 

recommendation. In some cases, ACUS uses its own staff to do the same type of work 

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11

being done by plaintiff Wagner and other outside consultants. The choice between staff 

and outside consultants is affected by considerations such as budget, availability of staff 

to undertake the project, the timing of the project, and the expertise available from the 

staff. 

Wagner has recently moved her domicile from Ohio to Texas and is now 

registered to vote there. She wishes to be able to make political contributions in 

connection with the 2012 federal elections, but the ban in section 441c precludes her 

from doing so. 

Plaintiff Brown was for many years a full-time employee of USAID and its 

predecessor agency in the United States and abroad. After he retired in February 2003, 

he worked for about three and a half years in the private sector until he became a paid 

advisor under contract with USAID in Washington as a Senior Human Resources 

Advisor. In that capacity he supervised three civil service employees and one contract 

employee and worked with civil service employees and other advisors under contracts 

similar to his, under the overall supervision of agency officials. In this work, there was 

no functional distinction in terms of the work performed between employees on the one 

hand and contractor-advisors on the other. 

Brown’s current contract became effective on October 1, 2011, and under it he is 

doing essentially the same types of work as he did previously. Like all of his contracts 

with USAID, he negotiated it with agency officials, none of whom is an elected official 

of the United States. He is paid at the rate of $598.08 per day ($74.76 an hour), and the 

term of his contract is two years, renewable at the option of USAID for three additional 

years. He earns sick leave and vacation pay as do regular employees. Federal taxes are 

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12

withheld from his paycheck, and the agency pays the employer’s share of Social Security 

and Medicare taxes applicable to him. 

Before Brown became a contractor, he was unaware of the ban in section 441c. 

Because of the ban, he has made no contributions in connection with federal elections 

although he previously did so. Because everyone with whom he works at USAID treats 

him no differently than those who are regular employees, he considers it only fair that he 

be allowed to make contributions as he had done before he became a government 

contractor and as others with whom he works can do. 

 Accordingly, in August 2008, he submitted a request for an Advisory Opinion to 

the FEC asking that he be allowed to make contributions, subject to the limitations in the 

laws applicable to individuals who are employees, not government contractors. A copy 

of that request (less attachments) is attached to his declaration as Exhibit A. By letter 

dated October 14, 2008, the FEC replied in an Advisory Opinion 2008-11, which rejected 

his request (Exhibit B to his declaration). Brown is registered to vote in Maryland. He 

would like to make federal political contributions in 2012, but is prohibited from doing so 

because of section 441c. 

Plaintiff Miller is a licensed attorney who spent his entire career working for the 

federal government, mainly for the Office of General Counsel at USAID and its 

predecessor, until he retired in 2003. After he retired, he continued to work for the agency 

as a reemployed annuitant-consultant. For the first two years, he did essentially the same 

kind of work that he had done as an employee in the General Counsel’s Office. Also at 

the same time in 2003, he began to provide legal advice to the Peace Corps, another 

federal agency funded by Congress, where he continues to do work as a part-time 

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employee. His position there is as a reemployed annuitant-consultant, which means that 

he accrues annual and sick leave and is paid at the GS-15 step 10 rate. 

 In 2005, Miller entered a contract with a different office within USAID, the 

Office of HIV/AIDS in the Global Health Bureau, where he has worked since then as a 

personal service contractor, on a part-time basis, providing policy advice. His current 

contract runs until June 26, 2016, and pays him at a rate of $596 per day. He earns 

vacation and sick leave, as he did when he was an employee, and the agency continues to 

treat him as an employee for federal tax purposes, paying the employer’s share of Social 

Security and Medicare. It also withholds his share of income, Social Security, and 

Medicare taxes, just as it did when he was a regular employee. It is Miller’s 

understanding that USAID currently has approximately 700 individuals under personal 

services contracts, which are generally similar to his, with approximately one-third of 

those individuals working in Washington and two-thirds at USAID missions overseas. 

In each of the contracts that Miller signed with the Peace Corps and USAID, all of 

the contacts that he had in negotiating and/or implementing those contracts were with 

contracting officers, all of whom were agency officials, and none of whom was an elected 

federal officer or even an official appointed by the President. His selection in each case 

was, he believes, based on the agency’s knowledge of his work and because agency 

officials thought that he had the necessary skills, experience, and familiarity with its work 

that he could step in and do what needed to be done. In each of the situations in which he 

has been a contractor-consultant, and in many of the positions in which he was an 

employee, he worked side by side with employees on the one hand, and contractualconsultants on the other, and the nature of the work performed by an individual rarely 

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varied depending on whether the person was an employee or a contractor. In addition, 

sometimes the supervisor was an employee or officer, and in other cases, the supervisor 

was a contractor-consultant. 

Miller currently works in the mornings for USAID as a contractor, subject to 

section 441c, and in the afternoons for the Peace Corps, as an employee, not subject to 

section 441c. Like the other plaintiffs, Miller has not made any contributions in 

connection with federal elections since he became a contractor, but would like to provide 

financial support for candidates running for federal offices and/or their political parties, 

and be on record as giving money in the 2012 elections to the candidates that he believes 

would best represent him and his views and values in Congress and in the White House. 

ARGUMENT 

BECAUSE THE BAN IN SECTION 441C VIOLATES PLAINTIFFS’ 

CONSTITUTIONAL RIGHTS, AND BECAUSE THE OTHER RELEVANT 

FACTORS FAVOR PLAINTIFFS, THE COURT SHOULD GRANT 

PLAINTIFFS A PRELIMINARY INJUNCTION. 

I. PRELIMINARY MATTERS 

 A. The Standard for Issuing a Preliminary Injunction 

 The court of appeals for this Circuit in Sherley v. Sebelius, 644 F.3d 388, 392 

(D.C. Cir. 2011), recently restated its test for the granting of a preliminary injunction. As 

the court stated, granting preliminary relief is “an extraordinary remedy that may only be 

awarded upon a clear showing that the plaintiff is entitled to such relief.” To obtain such 

an order, the plaintiff “must establish [1] that he is likely to succeed on the merits, [2] 

that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the 

balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id.

(quoting Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008) (brackets 

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added by court of appeals). The court discussed whether a strong showing on one factor, 

such as irreparable harm, could outweigh a lesser showing on probability of success, but 

declined to decide that question because the plaintiff there could not prevail even under 

the less-demanding standard. 644 F. 3d at 393. 

As we demonstrate below (Points II A & B), plaintiffs have a very strong case on 

the merits; indeed, depending on what response the FEC interposes, they may ask the 

Court to exercise its authority under Rule 65(a)(2) to consolidate a hearing on the 

preliminary injunction with a hearing on the merits. Moreover, they readily satisfy the 

other three factors (Point III: they will suffer irreparable harm if they are not permitted to 

exercise their First Amendment rights during the 2012 election year; there will be no 

harm to the government because the contributions of these three plaintiffs will be subject 

to the same limits and restrictions as apply to every other individual who wishes to 

contribute to a federal election and thus cannot possibly have any effect on the outcome 

of any federal election or undermine any purpose behind section 441c; and supporting 

First Amendment activity is always considered by the courts to be on the side of granting 

preliminary relief. 

B. The Legal Standards Applicable to the Constitutional Questions 

 The complaint raises two separate, but related, challenges to the constitutionality 

of the absolute ban in section 441c on the making of contributions in connection with 

federal elections by plaintiffs and other individuals who contract with federal agencies. 

Although the Supreme Court has well-established standards for assessing Equal 

Protection claims in many contexts, it has not ruled specifically on such challenges in the 

area of campaign finance. Under Buckley v. Valeo, 424 U.S. 1 (1976), the right to make a 

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political contribution is protected by the First Amendment, and under Kramer v. Union 

Free School District No. 15, 395 U.S. 621, 626 (1969), the Court gave a restriction on 

voting “a close and exacting examination” because the law allegedly created an 

“unjustified discrimination in determining who may participate in political affairs. . . .” 

As the Supreme Court ruled in San Antonio Independent School Dist. v. Rodriguez, 411 

U.S. 1, 17 (1973), strict scrutiny is required when a law “operates to the disadvantage of 

some suspect class or impinges upon a fundamental right explicitly or implicitly 

protected by the Constitution.” For these reasons, strict scrutiny should be applied to 

plaintiffs’ Equal Protection claim, and the ban set aside unless defendant can show that 

section 441c serves a compelling governmental interest as applied to individuals such as 

plaintiffs and is narrowly tailored to achieve that end. Kramer, 395 U.S. at 633. 

 In ruling on First Amendment challenges in the campaign finance area, the 

Supreme Court has applied some form of heightened scrutiny to all restrictions on 

campaign spending, with bans or limits on expenditures subject to the highest level of 

scrutiny, and limits on contributions subject to a somewhat lesser degree of scrutiny. 

Buckley, 424 U.S. at 19-23. See, e.g., Arizona Free Enterprise Club’s Freedom Club 

PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (“after finding that the restriction at issue 

was ‘closely drawn’ to serve a ‘sufficiently important interest,’ . . . we have upheld 

government-imposed limits on contributions to candidates”). Section 441c is not a limit 

but a ban, applicable to only a small subset of potential contributors. Examining the 

reasons why the Buckley Court applied less than strict scrutiny to the limits there strongly 

suggests that a higher degree of scrutiny should apply to the ban here: 

“a limitation upon the amount that any one person or group may contribute to a 

candidate or political committee entails only a marginal restriction upon the 

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contributor’s ability to engage in free communication. A contribution serves as a 

general expression of support for the candidate and his views, but does not 

communicate the underlying basis for the support. The quantity of communication 

by the contributor does not increase perceptibly with the size of his contribution, 

since the expression rests solely on the undifferentiated, symbolic act of 

contributing. At most, the size of the contribution provides a very rough index of 

the intensity of the contributor’s support for the candidate. A limitation on the 

amount of money a person may give to a candidate or campaign organization thus 

involves little direct restraint on his political communication, for it permits the 

symbolic expression of support evidenced by a contribution but does not in any 

way infringe the contributor’s freedom to discuss candidates and issues.” 424 

U.S. at 20-21 (footnote omitted). 

We recognize that the Court has held that a ban on contributions by non-profit 

ideological organizations is not subject to strict scrutiny. Federal Election Commission v. 

Beaumont, 539 U.S. 146, 161-63 (2003) (applying “closely drawn” standard). However, 

the Court in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 898 (2010), 

applied strict scrutiny to the ban on corporate independent expenditures, and it has never 

directly ruled on the standard governing a ban on contributions that is applicable only to 

some individuals. Moreover, in McConnell v. Federal Election Commission, 540 U.S. 

93, 231-32 (2003), without deciding the level of scrutiny, the Court relied on the First 

Amendment to strike down a ban on all contributions by persons under the age of 18. 

However, when the Fourth Circuit was recently confronted with the question of whether a 

near-total ban on contributions by registered lobbyists was subject to strict scrutiny or the 

“closely-drawn” standard, it applied the latter. Preston v. Leake, 660 F.3d 726, 735 (4th

Cir. 2011). In our view, there is a strong argument that can be made that all bans 

applicable to individuals should be subject to strict scrutiny. But regardless of whether 

the somewhat more relaxed version of heightened scrutiny employed by the Court in 

Buckley (upholding contribution limits), and in Randall v. Sorrell, 548 U.S. 230, 253 

(2006) (setting aside limits as too low), or even the “closely drawn” standard in 

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Beaumont, is applicable, the ban in section 441c as applied to individuals such as 

plaintiffs cannot stand. 

 Finally, we note that in some cases the line between an Equal Protection claim 

and a claim based on another specific protection in the Constitution may not be clear. 

For example, in Boddie v. Connecticut, 401 U.S. 371 (1971), the Court struck down on 

Due Process grounds a law requiring the payment of a filing fee of $50 to obtain a 

divorce by persons unable to afford the fee, with Justice Douglas concurring on the basis 

of Equal Protection. Id. at 390. 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. 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). Accordingly, 

because Equal Protection analysis requires strict scrutiny, we present that claim first, 

followed by the First Amendment claim, recognizing that, because the case involves First 

Amendment protected activities, there is considerable overlap between the two claims. 

II. PLAINTIFFS HAVE A STRONG LIKELIHOOD OF PREVAILING ON 

THE MERITS OF THEIR CONSTITUTIONAL CLAIMS. 

A. SECTION 441C VIOLATES EQUAL PROTECTION.

Although the Supreme Court has had several cases challenging limits on 

campaign contributions, it has not analyzed them under the Equal Protection Clause. In 

many cases the limits applied to everyone (Buckley and Randall), and hence there was no 

basis for an Equal Protection challenge. In others, such as Beaumont, there was an Equal 

Protection question of sorts: whether non-profit corporations should be treated like 

individuals – as the Court had done for independent expenditures, Federal Election 

Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) – or whether they 

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should be treated like for-profit corporations that are prohibited by section 441b from 

making any contributions in federal elections. 

The closest factual case is the portion of McConnell, supra, striking down the ban 

on contributions by persons under the age of 18. The Court, in theory, could have 

analyzed the law under Equal Protection and asked whether there is a basis for 

distinguishing between those over the age of 18 from those under that age. However, it 

decided the case solely under the First Amendment, finding the ban to be vastly overinclusive and striking it down. 540 U.S. at 232 (suggesting, but not approving, 

alternatives such as “counting contributions by minors against the total permitted for a 

parent or family unit, imposing a lower cap on contributions by minors, and prohibiting 

contributions by very young children”). But in none of these cases did the Court discuss 

the issue in terms of the appropriate Equal Protection standard of review. 

In the case of section 441c, the comparisons between plaintiffs and others 

similarly situated are readily apparent. There are, in fact, two groups of similarly situated 

persons who are more favorably treated than are the plaintiffs regarding the making of 

contributions in federal elections. The first includes (a) those individuals who work for 

federal agencies as employees rather than consultants. The second (b) is comprised of 

three sub-groups, each of which involves a corporation that, like plaintiffs, has a federal 

contract: (i) the corporations themselves because they, but not individuals, can establish 

political committees in their own name that can contribute to federal elections; (ii) the 

officers, directors, employees and stockholders of those corporations; and (iii) the 

individuals who control LLCs who contract with the federal government and who are, in 

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all meaningful respects, like plaintiffs, except that they are outside the reach of section 

441c. We analyze those two groups in turn. 

(a) Federal Employees. There is no law that prohibits federal employees from 

making contributions in connection with federal elections. Indeed, the applicable federal 

regulation expressly provides just the opposite: “An employee may make a political 

contribution to a political party, political group, campaign committee of a candidate for 

public office in a partisan election and multicandidate political committee of a Federal 

labor or Federal employee organization.” 5 C.F.R. § 734.208(a). See also 5 C.F.R. 

§ 734.202: “Employees may take an active part in political activities, including political 

management and political campaigns, to the extent not expressly prohibited by law and 

this part.” There are also special rules for employees of seventeen sensitive agencies, 

such as the defendant FEC, the Federal Bureau of Investigation, and the Central 

Intelligence Agency, which are listed in 5 C.F.R. § 734.401. However, 5 C.F.R. § 

734.404(a)(4) specifically allows even those employees to do what plaintiffs may not: 

“Make a financial contribution to a political party, partisan political group, or to the 

campaign committee of a candidate for partisan political office.”3

Section 603 of Title 18 contains a very limited restriction, not on whether a 

contribution can be made, and not on what candidates or entities may benefit from such a 

 

3

 Employees of the FEC are subject to a further restriction: they “may not request or 

receive from, or give to, an employee, a Member of Congress, or an officer of a 

uniformed service a political contribution.” 5 U.S.C. § 7323(b)(1); 5 C.F.R. § 734.413(a). 

Like section 603, this appears to allow even FEC employees to contribute to a 

presidential candidate, a political party, or political committee for use in a federal 

election, as long as the person giving or receiving the contribution does not fall in a 

prohibited category. The FEC also acknowledges that it cannot further limit the right of 

its employees to make political contributions. See 

http://www.fec.gov/pages/fecrecord/december2011/standardsofconduct2011.shtml. 

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contribution, but only on who may solicit and/or receive such a contribution. Thus, the 

prohibition applies only where “the person receiving such contribution is the employer or 

employing authority of the person making the contribution.” The precise scope of that 

limitation is not of significance. What is clear is that it applies only where there is an 

employment relationship involving the contributor and the person “receiving” the 

contribution. Thus, if a supervisor of a federal employee accepted a contribution from 

the employee to support a candidate for President, that would be a violation of section 

603.4

 But making a contribution directly to a presidential election committee, or to a 

political party or a political committee, would not be barred. Far from being a limit on 

what federal employees may contribute, this provision appears to be principally aimed at 

protecting federal employees from being solicited by their supervisors, whose requests 

they may feel unable to decline. And it is surely unrelated to the usual goal of 

contribution limits or bans, which is to protect against the appearance of corruption. 

Citizens United at 908-10.5

There can also be no doubt that federal employees are similarly situated to 

individuals such as plaintiffs who have personal services contracts with federal agencies. 

Both are paid by funds appropriated by Congress, and both perform work under the 

 

4

 The concern with supervisors soliciting subordinates is confirmed by specific federal 

rules prohibiting such conduct. 5 C.F.R. § 734.208(b)(4)(ii); 5 C.F.R. § 734.303(d) & 

5 C.F.R. § 734.302(b)(3). In addition, 5 C.F.R. § 734.306 contains a series of time, place, 

and manner prohibitions on participation by federal officers and employees in political 

activities generally, but none of them would prevent an employee from making a 

contribution except in those specific circumstances. 

5

Section 603 applies only when the person receiving the contribution is currently 

employed by the federal government, whereas section 441c bans contributions to any 

candidate for federal office, including, for example, those who are challenging an 

incumbent in a primary or to independent ideological political committees like Emily’s 

List or the National Right to Life Committee. 

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direction of the heads of federal agencies and those who work for them. As the 

declarations in this case demonstrate, plaintiffs and federal employees work literally side 

by side and perform many of the same duties – and do so interchangeably in many 

circumstances. See NASA v. Nelson, 131 S. Ct. 746, 751 (2011) (in upholding 

requirement of a background check for individuals working under long-term government 

contracts who have access to federal facilities, the Court noted that their “duties . . . are 

functionally equivalent to those performed by civil servants” who already undergo such 

checks). Plaintiffs Brown and Miller are retired employees from the same agency where 

they now are contractual consultants and are doing many of the same kinds of work that 

they did in their former work lives. But when they were employees, Brown and Miller 

could make political contributions for federal elections, and now they would be felons if 

they did so. Section 441c extends not only to part-time consultants like the plaintiff 

Wagner and to contractor-employees like plaintiffs Miller and Brown, but, as we read 

section 441c and understand its scope, to anyone who has a contract with any federal 

government entity, including individuals hired as expert witnesses (like Jonathan 

Tiemann), mediators for the Department of Justice, advisers in medicine, science, and 

economics, and law professors who serve as reporters to the various rules committees 

established by the Judicial Conference. But, because plaintiff Miller’s status with the 

Peace Corps is that of an employee, not a contractor, section 441c does not apply to him 

in that capacity. 

(b) Contracting Corporations and Those Who Work for Them. The other 

comparison – with corporations that contract with federal agencies and their officers, 

directors, employees, and stockholders – is slightly more complex and also discriminates 

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against plaintiffs and other individuals with government contracts. Although 

corporations with government contracts cannot make contributions in connection with 

federal elections, neither can corporations that do not have such contracts. Subsection 

441b(a). But both may establish separate segregated funds that can make contributions in 

connection with federal elections, and the law allows the corporate sponsor to administer 

the fund, including paying for the solicitation of money to be used by the fund to make 

those contributions. However, the provision authorizing the establishment of those funds 

for contractors, subsection 441c(b), applies only to a “corporation, labor organization, 

membership organization, cooperative, or corporation without capital stock” and not to 

an individual. Thus, although corporations cannot make contributions from their 

treasuries, they can spend their treasury money to establish and administer their separate 

funds, which can make those contributions. Section 441b(b). Individuals do not have 

that same outlet. Indeed, the ban in section 441c does not simply forbid an individual 

using money received under a government contract from making a contribution. The ban 

is absolute and is not tied in any way to the source of the money, as the FEC made clear 

in its response to plaintiff Brown’s request for an advisory opinion (Exhibit B to Brown 

declaration). Thus, if an individual had inherited $10,000 from a parent and placed it in a 

separate account even before becoming a government contractor, section 441c would bar 

the use of those funds to make political contributions for federal elections, whereas a 

corporation can use “outside” (non-treasury) money to fund its PAC. 

As discussed in the First Amendment argument, infra, the apparent purpose of 

section 441c is to supplement bribery laws and eliminate the appearance of any possible 

quid pro quo in the award, administration, and oversight of government contracts. It does 

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that by banning contracting parties from making contributions to persons who, in least in 

theory, are in a position to influence the award, performance, or payment under such 

contracts. But permitting contracting corporations to set up separate funds to make 

identical donations significantly undermines that rationale and, relevant to this Equal 

Protection claim, actually places corporations in a better position to influence the award, 

performance, and payment for government contracts than individual contractors like 

plaintiffs who cannot establish such funds. 

To the extent that section 441c is aimed at preventing the appearance of undue 

influence in the government contracting process, another provision of FECA makes the 

ability of a corporation but not an individual to create a separate fund even more 

irrational. In order that there is no uncertainty about the connection between such 

separate funds and the entity that sponsors them, Congress provided in 2 U.S.C. § 

432(e)(5) that “[t]he name of any separate segregated fund established pursuant to section 

441b(b) of this title shall include the name of its connected organization.” Thus, for 

example, while subsection 441c(a) would prevent The Boeing Company – one of the 

largest federal government contractors – from making a contribution, subsection 441c(b) 

would permit the same contribution to be made by Boeing’s separate segregated fund, as 

long as the fund properly identified The Boeing Company as its sponsor. In Citizens 

United, the FEC defended a law that favored individuals over corporations and lost. We 

know of other no law in the field of campaign finance that favors corporations over 

individuals, let alone one that has been sustained. Because section 441c prefers 

corporations over individuals, it cannot stand. 

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Not only may corporations use their named PACs to make contributions, but 

individuals who work for federal corporate contractors are outside the ban. Thus, the 

President of Boeing, its chief contract negotiator with the Department of Defense 

(“DOD”), and/or those individuals in charge of implementing the contract with DOD, can 

all make contributions in connection with federal elections, just like any other individual. 

If the supposed concern about the appearance of a quid pro quo for the contract would 

not exist in that situation under section 441c, even though the identify and occupation of 

the contributor are matters of public record, it is impossible to explain why plaintiffs who 

have individual contracts with federal agencies should nonetheless be forbidden from 

making similar contributions. 

 The discrimination against plaintiffs and other individual contractors does not end 

there. As shown by the declaration of Jonathan Tiemann, who has an expert witness 

contract with the Department of Labor, some individuals who perform personal services 

contracts for the federal government choose to incorporate and establish limited liability 

companies (LLC) or whatever the equivalent is under the laws of the state where they 

live. In his case, and in most others (see declarations of Jeffrey S. Lubbers and Steven L. 

Schooner), the agency does not care whether the contract is with the individual personally 

or with his LLC. In most cases involving LLCs, the person who is performing those 

services is the sole stockholder, officer, and/or employee. Federal agencies contract with 

such personal services corporations on the understanding that the individual who owns 

and runs the corporation will perform the services. Thus, for operational purposes, it 

makes no difference to the agency whether an individual has formed an LLC or enters a 

contract with the agency directly. But it does matter for purposes of section 441c because 

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the FEC has ruled – correctly in our view – that the ban on contractor contributions 

applies only to the entity that is the contracting party, but not to its stockholders, 

directors, officers, or employees. 11 C.F.R. § 115.6.6

If plaintiff Wagner were willing to go to the not inconsiderable trouble and 

expense of setting up and maintaining an LLC and contracting in its name (see Tiemann 

declaration), she could make all the contributions federal law would allow, and section 

441c would be no barrier even if the sole source of her contributions was her earnings 

under her government contract. That is because, as noted above, the ban is not a ban on 

the source of funds, but on whether the person making the contribution is the same person 

who holds the government contract. AO 2008-11, p. 3 (ban applies to plaintiff Brown 

whether contribution is made “from his business or personal funds,” citing 11 C.F. R. § 

115.5: ban applicable to individuals applies to contributions made “from their business, 

personal, or other funds under their dominion or control”).7

 

Nor can it be argued that plaintiffs should have to create personal services 

corporations to avoid section 441c. That argument is foreclosed by the decision in 

Citizens United, which rejected as unduly burdensome a claim that large for-profit 

 

6

 Connecticut avoided this particular Equal Protection problem by extending its ban on 

contractor contributions to certain high ranking officers of the contractor as well as their 

close family members (also not included under section 441c, see 11 C.F.R. § 115.5). See

Green Party v. Garfield, 616 F.3d 189, 202 (2nd Cir. 2010). There is no mention in the 

opinion of state employees, perhaps because the state does not make extensive use of 

individual contractors to perform state functions, and no Equal Protection claim appears 

to have been raised there. 

7

 In all likelihood, because plaintiffs Miller and Brown provide services to their agencies 

on an ongoing basis, their agency would not approve a contract with an LLC of theirs, if 

they had one. But that has nothing to do with any possible rationale behind section 441c 

and the other discriminations that it fosters, all of which make it unconstitutional as 

applied to plaintiffs Miller and Brown. 

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corporations could be required to establish separate segregated funds as an alternative to 

making expenditures from their treasury, without any showing of the specific costs 

involved. 130 S. Ct. at 897-98; see also Federal Election Commission v. Massachusetts 

Citizens for Life, 479 U.S. 238, 253-56 (1986) (rejecting similar claim as applied to nonprofit corporations and explaining the burden of operating such funds). Surely, no 

individual who wishes to perform personal services for a federal agency should have to 

spend the time and money to establish and maintain an LLC just to avoid section 441c. 

Kramer v. Union Free School District, 395 U.S. 621 (1969), presents analogous 

Equal Protection issues involving the right to vote. There is no express provision in the 

Constitution conferring on any person the right to vote for government officials. 

However, the Court in Kramer held that allowing some individuals to vote for a 

particular office, while denying others that opportunity, presented Equal Protection 

claims that would be evaluated under strict scrutiny, at least with respect to elections for 

general governmental bodies, which surely would include the President and Members of 

Congress, who are covered by section 441c. In Kramer, the election was for a local 

school board, and only persons who owned or leased property in the school district, or 

who had children (whether in the public schools or not) could vote in that election. The 

plaintiff in Kramer was a 31 year-old childless stockbroker who lived with his parents in 

the district and was otherwise eligible to vote. Relying on the Equal Protection Clause, 

the Court found the restriction on voting in school district elections to be unconstitutional 

where there were no relevant differences between those who were allowed to vote and 

Mr. Kramer. Because the right to vote and the right to make contributions to candidates 

for elected office are both integral parts of the political process, Kramer strongly supports 

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plaintiffs’ Equal Protection claims here. Preferring either federal employees over 

individual consultants in the making of contributions in federal elections, or preferring 

the stockholders, directors, officers, and employees of contracting corporations over 

individuals such as plaintiffs is a violation of Equal Protection. The combination of both 

makes section 441c doubly unconstitutional as applied to individuals who have contracts 

with federal agencies. 

B. THE BAN IN SECTION 441C, AS APPLIED TO INDIVIDUALS, 

VIOLATES THE FIRST AMENDMENT. 

Even if section 441c did not discriminate invidiously against plaintiffs and other 

individuals who hold government contracts, the total ban on their making of contributions 

in connection with federal elections would be unconstitutional under the First 

Amendment, which is a general limit on all laws regulating political contributions and 

expenditures. Buckley, 424 U.S. 14-23. That is because the burdens that section 441c 

imposes are not narrowly tailored to serve any public purpose addressed by the law. 

Unlike most other campaign contribution laws applicable to individuals, section 441c is 

not a limitation, but is an absolute prohibition on the making of any contributions for 

federal election purposes as long as the plaintiffs have contracts with the federal 

government. Given the other limits applicable to everyone who wishes to contribute to 

federal elections – which Congress apparently believed were sufficient to avoid any 

appearance of corruption for everybody else – defendant has a heavy burden to explain 

why those generally applicable limits are not also sufficient as applied to plaintiffs. And 

in seeking to sustain that burden, the “Supreme Court has recognized only one interest 

sufficiently important to outweigh the First Amendment interests implicated by 

contributions for political speech: preventing corruption or the appearance of corruption.” 

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SpeechNow.org v. Federal Election Commission, 599 F.3d 686, 692 (D.C. Cir. 2010) (en 

banc). 

 Three recent decisions, involving laws in Colorado, Connecticut, and New York 

City, discuss the rationale for statutes such as section 441c. Green Party v. Garfield, 616 

F.3d 189 (2d Cir. 2010); Dallman v. Ritter, 225 P.3d 610 (Col. 2010); and Ognibene v. 

Parkes, 2012 WL 89358 (2d Cir. Jan 12, 2012), superseding 2011 WL 6382451. 

Especially at the state and local level, many elected officials have a significant and often 

highly discretionary role to play in influencing who is awarded government contracts, 

some of which are quite lucrative. One way that potential government contractors 

devised to increase their chances of success was to make contributions to the campaigns 

of the elected officials who influence the awarding of government contracts. Plaintiffs 

agree that a prohibition on making a contribution to a candidate who may be involved in 

the decision-making for a government contract, for which the contributor is currently 

bidding or performing, might, if properly drawn, be justified as a means of avoiding 

corruption or the appearance of corruption. However, section 441c is not such a law.8

 The principal reason that section 441c cannot be saved under that rationale is that 

there is no nexus between the persons or entities to whom contributions might be made – 

candidates for President/Vice President and Members of Congress, political parties and 

 

8

 Even that kind of a law might be struck down because there is a less restrictive 

alternative: impose a ban on entering a contract with anyone who has made a contribution 

to a candidate who is elected to an office that has a role in deciding who is to receive that 

contract. In that form, the law would operate more like a recusal statute and not a ban on 

speech. Compare Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009) (Due Process 

recusal of judge based mainly on very large independent expenditures that could not be 

constitutionally limited). See also Blount v. Securities & Exchange Commission, 61 F.3d 

938 (D.C. Cir. 1995) (upholding SEC rule prohibiting municipal securities brokers from 

engaging in municipal securities business for two years after contributing more than $250 

to election of officials from whom they seek to obtain business). 

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political committees – and the persons making decisions on government contracts, both 

generally and for the specific contracts under which plaintiffs are currently serving 

federal agencies. Almost all federal government contracts are entered into at the agency 

level, and pursuant to 48 C.F.R. §1.601(a), designated agency officials have the authority 

to approve a contract, oversee its implementation, and determine payments. There is 

simply no role envisioned for the President or Members of Congress in the awarding of 

personal services contracts, and they had no role in the approval of the contracts of these 

plaintiffs. It is possible that some large or important contracts, in an agency such as 

DOD, may be so significant that the President or some Members of Congress may have a 

role in the procurement process, even if the formal approval is made by the agency. But 

small-dollar personal services contracts with individuals such as these plaintiffs do not 

fall into that category. And, of course, section 441c is not limited to the very large 

contracts that attract political attention, and therefore at least fails the “closely drawn” 

standard in Beaumont and other Supreme Court decisions. 

The Connecticut law upheld in Garfield is an example of a much more narrowly 

tailored provision. First, there was a sordid recent history in that State of contractors 

making very generous campaign contributions (and sometimes other gifts that might have 

constituted bribes) to officials charged with the award of state government contracts, and 

receiving benefits in return, with state officials, including the Governor, going to prison. 

616 F.3d at 193. Indeed, it was the lack of a similar history that was cited by the court in 

setting aside a similar ban on lobbyists to the one it upheld for contractors. Id. at 205-07. 

Second, the law was, with some exceptions, “branch specific”: if a contract was let by the 

Governor or others in the executive branch, then the contribution ban applied only to 

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executive branch officials. The same was true for contracts requiring legislative 

approval. Id. at 194. Third, although upholding the entirety of the contractor ban, the 

court viewed the ban applicable to principals of a corporate contractor as “bordering on 

overbroad,” id. at 203, but, in light of this recent history of massive corruption involving 

state contracts, gave the legislature leeway in dealing with the problem. Similarly, it 

upheld the ban as applied to spouses and dependent children based on the rationale of 

preventing circumvention: the contracting spouse could otherwise give money to the 

other spouse – often with the same last name – and have the contribution made in the 

other spouse’s name. Id. at 203-04. Thus, broader coverage was a help, not a hindrance, 

to upholding the law because it supported the stated purpose of the statute, rather than 

undermining it. 

Here, by contrast, the ban in section 441c applies to contributions to candidates 

who will never have any power to approve any contract (let alone of the kind that the 

particular plaintiff has or will be seeking), as well as to political parties and political 

committees that are not government actors, and so by definition cannot approve 

government contracts. Cf. Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296-

97 (1981) (distinguishing contributions to a candidate from contributions to a ballot 

initiative committee for First Amendment purposes because committee has no power to 

make decisions whereas states may properly conclude that “large contributions are given 

to secure a political quid pro quo from current and potential office holders”). 

 The rather different Colorado law, by contrast, was struck down because it was 

not “closely drawn” to meet the goal of avoiding the appearance of corruption which the 

court said was legitimate. In one respect, it was quite narrow as it applied only to “sole 

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source” contracts, above $100,000 (indexed for inflation), which included only those for 

which no more than three bids were received. 225 P.3d at 618. But the law applied to 

local “sole source” contracts, which created problems because in rural areas there was 

often only one bidder, and in some cases, the product or service could be obtained from 

only one company. Id. at 626-27. For that reason, the court found the law to be not 

closely drawn to avoid the appearance of corruption, as required by Buckley. Id. It also 

found overbreadth because the law applied, as does section 441c, to contributions to 

political parties and to all candidates for office, regardless of their connection to the 

contributor’s actual or potential contract. While accepting the notion that some 

contributions can lead to the appearance of corruption, the court found that this law swept 

much too broadly because it incorrectly assumed that “a small contribution to a candidate 

for the general assembly automatically leads to a public perception that the donor will 

receive some quid pro quo benefit from a city or special district with which the donor 

holds a sole source contract.” Id. 9

 Compared to the Connecticut and Colorado statutes, section 441c is much more 

like the vastly over-inclusive ban on contributions by persons under the age of 18 struck 

 

9

 The State defended its law by relying on section 441c, but the court rejected that 

defense. Id. at 628. The court suggested that section 441c was saved because of the 

option of the separate segregated fund, id., but that would not save the application of 

section 441c to individuals such as plaintiffs. The Colorado law appears to cover 

individuals as well as corporations, but since the court found it overbroad on other 

grounds, it did not have to reach its viability as applied to individuals, even those with 

sole source contracts over $100,000. The court also suggested, without citation or 

explanation, that section 441c “addresses only a limited number of contracts and applies 

only to members of Congress, the President, and the Vice President, thus tailoring its 

restrictions to individuals with oversight responsibility.” Id. Aside from this serious 

mischaracterization of federal law, a state court’s view on the constitutionality of a 

federal statute is not entitled to any deference by this Court. Moreover, Dallman did not 

raise an Equal Protection claim as have plaintiffs here. 

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down under the First Amendment in McConnell. The reason for that law was that some 

parents, after reaching their contribution limits, would make gifts to their children, who 

would then make contributions in their own names, using their parents’ money. The 

Court agreed that Congress could legitimately act to prevent that kind of conduct, but set 

aside the law because of the serious mismatch between it and the problem. 540 U.S. at 

231-32. Like section 441c, it was an absolute ban so that a child who saved her 

allowance or held a part-time job was forbidden from giving even $1 to a favorite 

candidate for President. Similarly, small contributions are not a source of corruption or 

even the appearance of corruption, but there was no amount that any person under the age 

of 18 could give. Furthermore, it might be reasonable to assume that a toddler was not 

making an independent decision to make a $2000 contribution, but a teenager who gave 

$25 would be in a different situation. In short, the mismatch was too great to overcome a 

First Amendment challenge. The same is true for section 441c. 

Nor is the Second Circuit’s decision in Ognibene of any assistance to the FEC 

here. For purposes of this case, and without including all of its nuances, the New York 

City law at issue there has two features that the FEC may argue are relevant: those 

individuals who are “doing business” with the City are subject to lower limits on 

campaign contributions (but not a ban like section 441c), and their contributions are not 

eligible for the 6 to 1 match that is available for up to $175 in contributions to 

participating candidates. 2012 WL 89358 *3. Lobbyists are not subject to the lower 

limits, but their contributions are also ineligible for a match. In order to fall within the 

“doing business” category, a person, which includes firms and individuals, must have had 

more than $100,000 worth of business within a certain period of time, with certain 

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exclusions. Id. Corporations are forbidden from making contributions, there is no 

provision for PACs to make contributions, and the limits and bans at issue in Ognibene 

apply to certain individuals (and their spouses or domestic partners) in positions of power 

and responsibility in the “doing business” firms and for lobbying organizations. Id. The 

law does not appear to be applicable to contractors like plaintiffs Brown and Miller, 

although that is not entirely clear since no one in their position was a plaintiff. A person 

in the position of plaintiff Wagner would appear to be potentially covered by the law, but 

because her contract is for only $12,000, she would be excluded from the definition of 

“doing business” with New York City. 

Ognibene does not support the application of section 441c to these individual 

plaintiffs for several reasons. First, unlike section 441c, there was no absolute ban on 

contributions. Anyone covered by the law could still make a contribution, although in a 

substantially diminished amount and without it being eligible for matching. Those are 

serious restrictions, but they are not a total ban. Second, there was no Equal Protection 

claim made in Ognibene, probably because the law did not create the kinds of anomalies 

discussed above; it probably did not cover persons like plaintiffs Miller and Brown (if 

they exist in the New York City government); and the threshold of $100,000 would 

exclude most consultant-contractors like plaintiff Wagner. Third, the law being 

challenged was the result of a series of incremental changes, backed by studies and 

reports that followed on the heels of local scandals, id. *1-2, and was carefully crafted to 

avoid the problems of over- and under- inclusion found in section 441c. Plaintiffs take 

no position on whether Ognibene was correctly decided or whether a law like that, at the 

federal level, would be constitutional. Whatever the answer is to those questions, section 

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441c is so different from the New York City law in Ognibene that it cannot support the 

FEC here. 

 The FEC may also rely on Preston v. Leake, 660 F.3d 726 (4th Cir. 2011), which 

upheld against a First Amendment, but not Equal Protection, challenge a near-total ban 

on contributions by registered lobbyists in North Carolina, but not by government 

contractors such as these plaintiffs. The decision turned on recent findings by the North 

Carolina legislature as to the potential for corruption and the appearance of corruption by 

lobbyists on the legislative process. Id. at 729. There are no such findings here, but even 

if there were, it would not save section 441c as applied to individuals such as plaintiffs. 

The lobbyists in North Carolina were seen to have the potential to influence the State’s 

public policy to favor their clients. By contrast, plaintiffs are, in essence, little more than 

government employees who have no means to influence Congress or the President 

through campaign contributions to candidates, parties, and political committees that have 

nothing to do with their contracts, or otherwise affect public policy in the way that 

lobbyists can. Indeed, the plaintiff in Preston agreed that the rationales offered by the 

state were sufficient to sustain the general application of the law (a concession that 

plaintiffs do not make here), but argued that there should be an exception for small 

contributions of the kind that she wished to make. Id. at 735-36. Finally, the ban in 

Preston was not complete since, unlike under section 441c, lobbyists were entitled to 

contribute to PACs (up to $4000 under N.C. Stat. 163-278.13(a)) and to make 

recommendations as to the candidates to which their contributions should be made, 

without violating the law. Id. at 740. 

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 There is yet another important respect in which section 441c is under-inclusive, 

beyond the Equal Protection claims that plaintiffs have raised. Procurement contracts are 

only one of the important ways that the Government dispenses money to persons outside 

the Government, but contracts are the only one covered by section 441c or any other ban 

on political contributions. This is the case even though other payments are also, in the 

language of section 441c(a), “made in whole or in part from funds appropriated by the 

Congress.” In 2 C.F.R. § 180.970, the Office of Management and Budget has issued 

guidelines for non-procurement transactions that distinguish them from procurement 

contracts. That section defines non-procurement transactions to include “grants”, which 

would appear indistinguishable from contracts with regard to the concern that allegedly 

animates section 441c – preventing undue influence on decisions about who receives 

federal funding. In both situations, the Government has agreed to pay what may be a 

substantial sum of money to a person outside the Government to undertake certain 

activities that the Government wants performed. To be sure, the agency awarding a grant 

will not receive personal services, goods, or materials as it would under a contract, but 

the grant will advance a governmental purpose, and one or more human beings will use 

the money to carry out the activity that the Government wants performed. It does not 

take much imagination, under the approach taken in section 441c, to understand why a 

person seeking a grant might believe that his or her chances of obtaining it are enhanced 

by making a contribution in a federal election, but grants are not covered by section 

441c.10

 

10 The New York City law at issue in Ognibene applied to grants in excess of $100,000. 

2012 WL 89358 *3. In fact, plaintiff Wagner is also a co-grantee from the National 

Science Foundation under a federal grant in the amount of $45,721. 

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Similarly excluded, with similar potentials for the appearance of quid pro quo, 

and also treated like grants under section 180.970, are such financial benefits as loans, 

loan guarantees, subsidies, and “payments for specified uses.” Moreover, although not 

specifically mentioned among the excluded transactions, but for which there is a 

significant possibility that a campaign contribution would actually matter, is admission to 

one of the tuition-free military academies. See e.g. 10 U.S.C. §§ 6954(a); United States 

Naval Academy, http://www.usna.edu/Admissions/steps4.htm. Among those persons who 

can make nominations are Members of Congress and the President and Vice President, to 

whom contributions can actually be made (unlike the heads of the agencies that hired 

plaintiffs). Except perhaps for the service academy nominations, these other transactions 

would, if included under section 441c, raise similar mismatch issues as do the individual 

contract claims made in this case. But the failure to include them, even though they have 

similar pay-to-play potentials as government contracts, further suggests that the rationale 

offered to defend section 441c is not sufficiently tailored to sustain its constitutionality 

against this First Amendment challenge. As this Court observed in a related context in 

United States v. National Treasury Employees Union, 513 U.S. 454, 477 (1995): “The 

speculative benefits the honoraria ban may provide the Government are not sufficient to 

justify this crudely crafted burden on respondents’ freedom to engage in expressive 

activities. Section 501(b) violates the First Amendment.” 

III. THE FACTORS OTHER THAN LIKELIHOOD OF 

SUCCESS ON THE MERITS ALL SUPPORT PLAINTIFFS’ MOTION. 

As noted above, in order to obtain a preliminary injunction, the plaintiff “must 

establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer 

irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips 

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in his favor, and [4] that an injunction is in the public interest.” Sherley, 644 F. 3d at 392. 

As we now show, these non-merits factors also point decidedly in plaintiffs’ favor. 

Even if section 441c is not technically a prior restraint on speech, it has the clear 

effect of forbidding plaintiffs from making a contribution of as little as $1 until the law is 

enjoined, because they are unwilling to risk being indicted as felons for exercising what 

the Supreme Court has recognized at least since Buckley is a right of free speech. And 

because a preliminary injunction is the only way that plaintiffs will be allowed to make a 

contribution in connection with the 2012 elections for President and Congress, denying 

them that right creates a harm that cannot be remedied after November 2012. It is not 

that plaintiffs expect that their contributions will alone influence the outcome of the 2012 

elections that makes them wish to contribute; rather they wish to use their contributions 

to make public statements of support in this crucial election year. Thus, factor [2] weighs 

heavily in plaintiffs’ favor. 

In this case factors [3] and [4] meld into one because the defendant FEC has no 

independent interest in enforcing the law beyond the public interest that the law is 

intended to advance. Regarding these factors, it is important to note that this is not a 

class action, and that any preliminary relief will not extend to anyone other than these 

three plaintiffs. Moreover, plaintiffs will still remain subject to all of the other rules and 

limits under FECA applicable to all other voters and others who are eligible to contribute, 

so that there is no possibility that plaintiffs’ individual contributions will have any impact 

on a political campaign in which billions of dollars are likely to be spent. Furthermore, 

plaintiffs Miller and Brown have contracts that last for several years, and it is 

inconceivable that a contribution made by them now could increase their chances of 

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having their contracts renewed in the future, especially where the persons at their agency 

with the power to approve their contracts are not the direct or even indirect beneficiary of 

any such contribution (assuming that they even became aware of them). And while 

plaintiff Wagner’s contract will conclude sometime in 2012, she has no short-term plans 

to seek another one from ACUS, nor is it remotely possible that anyone at that obviously 

non-political agency would pay any attention to a law professor’s political contribution in 

deciding to whom a contract of no more than $12,000 should be awarded. Moreover, as 

we explained above, all of the major corporations that hold federal government contracts 

are able to make contributions to federal elections by using their sponsored PACs and by 

having their officers, directors, and stockholders contribute, and it is only individuals 

such as plaintiffs who are subject to the ban in section 441c. 

Finally, in weighing the public interest at stake in this motion for a preliminary 

injunction, the court of appeals has made clear that where First Amendment interests are 

in the balance, that tips the scales in favor of granting the relief. O’Donnell Construction 

Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992) (“issuance of a 

preliminary injunction would serve the public’s interest in maintaining a system of laws 

free of unconstitutional [restrictions]”). See also People for the Ethical Treatment of 

Animals v. Gittens, 215 F. Supp. 2d 120, 134 (D.D.C. 2002): “the public interest favors a 

preliminary injunction whenever First Amendment rights have been violated;” Stewart v. 

District of Columbia Armory Bd., 789 F. Supp. 402, 406 (D.D.C. 1992) (“Whatever 

public interest there may be [on the other side], the public clearly has an interest in free 

speech. The public interest in this case will be served by ensuring that plaintiffs’ First 

Amendment rights are not infringed before the constitutionality of the regulation has been 

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definitively determined.”). As Chief Justice Roberts stated in Federal Election 

Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 474 (2007), a case involving 

restrictions on campaign spending, “Where the First Amendment is implicated, the tie 

goes to the speaker, not the censor.” 

++++++++++++++++++++ 

 Because plaintiffs have shown a strong likelihood of success on each of their legal 

claims, and because the continued application of section 441c would irreparably deny 

plaintiffs the ability to make contributions to the candidates and parties of their choosing 

during this election year, without in any appreciable way harming any legitimate public 

interest, plaintiffs have met the test for a preliminary injunction. 

CONCLUSION 

 For the foregoing reasons, the Court should grant plaintiffs’ motion for a 

preliminary injunction and enter the proposed order submitted with this motion. 

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

 

January 31, 2012 

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