ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 30, 2013 _____________________

No. 13-5162 _____________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________

WENDY E. WAGNER, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant. _____________________

On Certification from the 

United States District Court

For the District of Columbia

No. 1:11-cv-08841 (JEB) _____________________

BRIEF FOR PLAINTIFFS _____________________

Alan B. Morrison

George Washington University Law School

2000 H Street, N.W.

Washington, D.C. 20052

(202) 994-7120

abmorrison@law.gwu.edu

Arthur B. Spitzer

American Civil Liberties Union 

 of the Nation’s Capital

4301 Connecticut Ave, N.W., Suite 434

Washington, D.C. 20008

(202) 457-0800

artspitzer@aclu-nca.org

Counsel for Plaintiffs

July 3, 2013

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i

No. 13-5162

CERTIFICATE AS TO PARTIES AND RULINGS

Parties & Amici: Wendy E. Wagner, Lawrence M. E. Brown, and 

Jan W. Miller are the plaintiffs, and the Federal Election Commission is the 

defendant. The Campaign Legal Center and Democracy 21 appeared as 

amici curiae below in support of the defendant, and, along with Public 

Citizen, they have expressed their intention to appear in that capacity in this 

Court. 

Rulings under Review: This case is before this Court for en banc 

hearing pursuant to 2 U.S.C. § 437h, based on the unreported certification 

order of United States District Judge James E. Boasberg that was entered on 

June 5, 2013. It is included in the Joint Appendix (JA) at 345-357.

Related Cases: This case was before this Court in No. 12-5365. 

On May 31, 2013, the Court vacated the rulings below and remanded the 

case to be certified pursuant to 2 U.S.C. § 437h. JA 243-262, 2013 WL 

2361005. There are no other related cases in this or any other Court.

/s/ Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

abmorrison@law.gwu.edu

Counsel for the Plaintiffs

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES AND RULINGS...................................... i

TABLE OF CONTENTS................................................................................ ii

TABLE OF AUTHORITIES......................................................................... iv

GLOSSARY .................................................................................................. ix

INTRODUCTION .......................................................................................... 1

STATEMENT OF JURISDICTION .............................................................. 3

ISSUES PRESENTED ................................................................................... 4

RELEVANT STATUTES AND REGULATIONS ....................................... 4

STATEMENT OF FACTS............................................................................. 4

A. THE STATUTORY SCHEMES........................................................... 4

B. THE PLAINTIFFS .............................................................................. 13

C. PROCEEDINGS BELOW ................................................................. 20

SUMMARY OF ARGUMENT.................................................................... 21

ARGUMENT................................................................................................ 22

STANDARD OF REVIEW ...................................................................... 23

I. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL 

ELECTIONS, WHILE ALLOWING OTHERS WHO ARE 

SIMILARLY SITUATED TO MAKE SUCH CONTRIBUTIONS, 

VIOLATES EQUAL PROTECTION. ........................................... 23

A. The Court Should Apply Strict Scrutiny, or at Least Heightened 

Scrutiny, to Plaintiffs’ Equal Protection Claim............................. 24

B. Corporate Contractors and Related Persons Are Similarly Situated to 

Plaintiffs. ....................................................................................... 28

1. Corporations. ............................................................................. 28

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2. Corporate Officers, Employees and Shareholders. ................... 31

3. Individual LLCs. ....................................................................... 32

C. Federal Employees Are Similarly Situated to Plaintiffs. .............. 34

II. BARRING INDIVIDUALS HOLDING FEDERAL CONTRACTS 

FROM MAKING ANY CONTRIBUTIONS FOR FEDERAL 

ELECTIONS VIOLATES THE FIRST AMENDMENT.............. 39

A. As a Complete Ban on Fundamental First Amendment Activity, 

Section 441c Should Be Subject to Strict Scrutiny....................... 39

B. The Contribution-Contract Connection Is Too Attenuated to 

Survive Any Heightened Scrutiny. ............................................... 42

C. Section 441c Is Over-Inclusive. .................................................... 50

D. Section 441c Is Under-Inclusive. .................................................. 55

E. The Other Arguments in Support of Section 441c

Are Unavailing. ............................................................................. 60

CONCLUSION............................................................................................. 63

CERTIFICATE OF COMPLIANCE................................................................

CERTIFICATE OF SERVICE.........................................................................

STATUTORY ADDENDUM ..........................................................................

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TABLE OF AUTHORITIES

CASES

Agency for Intern. Development v. Alliance for Open Society Intern., Inc., 

133 S. Ct. 2321 (2013) .............................................................................. 55

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806 (2011) .............................................................................. 39

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012).............................. 42

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)........ 49, 56

*Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ........ 26, 27, 46, 47, 51, 54, 60

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) .............. 8

Bush v. Gore, 531 U.S. 98 (2000) ................................................................ 26

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009)........................... 46

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981)................ 51

*Citizens United v. FEC, 558 U.S. 310 (2010).. 25, 27, 31, 33, 40, 41, 50, 56

City of Cleburne. v. Cleburne Living Center, 473 U.S. 432 (1985). ..... 24, 29

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ................................................ 56

Clark v. Jeter, 486 U.S. 456 (1988). ............................................................ 28

Dallman v. Ritter, 225 P.3d 610 (Col. 2010).................................... 25, 52, 53

Edenfield v. Fane, 507 U.S. 761 (1993)....................................................... 45

Ex Parte Curtis, 106 U.S. 371 (1882)............................................................. 7

*FEC v. Beaumont, 539 U.S. 146 (2003)............................. 24, 25, 30, 40, 41

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) .............. 24, 33

FEC v. National Right to Work Committee, 459 U.S. 197 (1982) ............. 62

Filarsky v. Delia, 132 S. Ct. 1657 (2012)..................................................... 35

Green Party v. Garfield, 616 F.3d 189 (2nd Cir. 2010).................... 32, 43, 47

*Authorities principally relied on are marked with asterisks.

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*Kramer v. Union Free School District, 395 U.S. 621 (1969)......... 25, 26, 37

Lavin v. Husted, 689 F.3d 543 (6th Cir. 2012) ...................................... 42, 50

Lawrence v. Texas, 539 U.S. 558 (2003)............................................... 16, 22

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).............. 25

McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892) ...................... 8

*McConnell v. FEC, 540 U.S. 93 (2003)............................. 24, 25, 39, 46, 51

McCutcheon v. FEC, No. 12-536, probable jurisdiction noted, Feb. 19, 2013

................................................................................................................... 48

Miller v. Alabama, 132 S. Ct. 2455 (2012).................................................. 62

NAACP v. Button, 371 U.S. 415 (1963)...................................................... 56

NASA v. Nelson, 131 S. Ct. 746 (2011) ...................................................... 35

Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) ........................ 48

Northwest Austin Municipal Util. Dist. No. One v. Holder, 

557 U.S. 193 (2009).................................................................................. 49

Ognibene v. Parkes, 671 F. 3d 174 (2d Cir.), 

cert. denied, 133 S. Ct. 28 (2012) ....................................................... 52, 57

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) .................. 45

Randall v. Sorrell, 548 U.S. 230 (2006)................................................. 41, 61

Republican Party of Minnesota v. White, 536 U.S. 765 (2002)................... 59

Romer v. Evans, 517 U.S. 620 (1996).......................................................... 50

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973).... 25

*Shelby County, Ala. v. Holder, No. 12-96, 2013 WL 3184629 

(U.S. June 25, 2013)............................................................................ 48, 49

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).............................. 43

Texas v. Johnson, 491 U.S. 397 (1989)........................................................ 61

United States v. National Treasury Employees Union, 

513 U.S. 454 (1995).................................................................................. 63

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United States v. Windsor, No. 12-307, 2013 WL 3196928 

(U.S. June 26, 2013).................................................................................. 27

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amend. I.............................2, 4, 21, 22, 25, 30, 39, 42

...........................................................43, 45, 48-50, 55, 59, 61, 63

U.S. Constitution, Amend. V.........................2, 4, 21, 22, 24-7, 37, 38, 49

STATUTES

2 U.S.C. § 431........................................................................................... 4, 54

2 U.S.C. § 431(13)........................................................................................ 31

2 U.S.C. § 431(8)(B)(ii)................................................................................ 60

2 U.S.C. § 431(8)(B)(iv)............................................................................... 60

*2 U.S.C. § 432(e)(5)................................................................................ 8, 29

2 U.S.C. § 434(b)(3)(A).......................................................................... 31, 54

2 U.S.C. § 437g(d)(1)(A)................................................................................ 6

2 U.S.C. § 437h......................................................................................... 3, 20

2 U.S.C. § 441b............................................................................... 5, 8, 24, 28

2 U.S.C. § 441b(b)(2)(C)................................................................................ 5

2 U.S.C. § 441a(a)(1)...................................................................................... 5

*2 U.S.C. § 441(c).........................1, 2, 4-6, 8-22, 26-34, 36, 38-58, 61-3 

10 U.S.C. § 1091(c) ...................................................................................... 16

10 U.S.C. § 2302........................................................................................... 12

10 U.S.C. § 2304(a)(1).................................................................................. 12

10 U.S.C. § 2305(a)(1)(B)............................................................................ 12

10 U.S.C. § 2305(b)(1) ................................................................................. 13

10 U.S.C. § 6954(a) ...................................................................................... 58

18 U.S.C. § 601......................................................................................... 9, 42

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*18 U.S.C. § 603............................................................................. 7, 9, 34, 42

18 U.S.C. § 606............................................................................................. 42

18 U.S.C. § 610......................................................................................... 9, 42

26 U.S.C. § 9002(7)...................................................................................... 51

26 U.S.C. § 9002(8)...................................................................................... 51

28 U.S.C. § 1331........................................................................................... 20

Public Law 93-400 (1974)............................................................................ 12

Public Law 98-369 (1984)............................................................................ 12

Public Law 103-355 (1994).......................................................................... 12

Public Law 104-106 (1996).......................................................................... 12

REGULATIONS

2 C.F.R. § 180.970.................................................................................. 56, 58

*5 C.F.R. § 734.208(a) ................................................................................. 34

5 C.F.R. § 734.208(b)(4)(ii).......................................................................... 35

5 C.F.R. § 734.302(b)(3)............................................................................... 35

5 C.F.R. § 734.303(d) ................................................................................... 35

5 C.F.R. § 734.306........................................................................................ 35

5 C.F.R. § 734.401........................................................................................ 34

5 C.F.R. § 734.404(a)(4)............................................................................... 34

11 C.F. R. § 115.5............................................................................... 9, 28, 55

11 C.F.R. § 115.2...................................................................................... 6, 40

11 C.F.R. § 115.2(a) ....................................................................................... 6

11 C.F.R. § 115.6...................................................................................... 8, 33

48 C.F. R. §1.603-2....................................................................................... 11

48 C.F.R. §1.601(a) ................................................................................ 11, 44

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OTHER AUTHORITIES

86 Cong. Rec. 2563 (1940)............................................................................. 7

86 Cong. Rec. 9495-97 (1940) ....................................................................... 6

86 Cong. Rec. 9496 (1940)............................................................................. 7

Amicus Brief for the United States in Hollingsworth v. Perry, No. 12-144 

(filed Feb. 28, 2013).................................................................................. 30

FEC News Release October 5, 2011, available at 

http://fec.gov.press2011/20111006postcarey.shtml.................................. 41

Federal Election Commission Advisory Opinion 2008-11 .......................... 17

http://www.propublica.org/article/pardon-attorney-torpedoes-plea-forpresidential-mercy..................................................................................... 59

http://www.propublica.org/article/the-shadow-of-marc-rich ....................... 59

Mark Landler, “Obama Rewarded ’08 Fundraisers,” New York Times, 

July 25, 2012, A14 .................................................................................... 59

T.W. Farnam, “Obama Gives Administration Jobs to Some Big 

Fundraisers,” Washington Post, March 8, 2012, A15............................... 59

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GLOSSARY

ACUS Administrative Conference of the United States

FECA Federal Election Campaign Act

LLC Limited Liability Company

PAC Political Action Committee 

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No. 13-5162

___________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________

WENDY E. WAGNER, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

___________________________

BRIEF FOR PLAINTIFFS

___________________________

INTRODUCTION

Under the Federal Election Campaign Act, all federal contractors are 

forbidden by 2 U.S.C. § 441c (“section 441c”) from making contributions in 

federal elections. This case challenges the constitutionality of section 441c, 

but only as it applies to plaintiffs and other individual contractors. One of 

the plaintiffs is a law professor who had a contact to do a study for the 

Administrative Conference of the United States; the other two are retired 

federal employees who continue to work for their former agency on a 

contract basis. Unlike every other U.S. citizen who does not have a federal 

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contract, they are forbidden by section 441c from making a contribution of 

even $1 to any federal candidate, political party, or political committee.

As applied to individuals such as plaintiffs, section 441c violates both 

the Equal Protection component of the Fifth Amendment and the First 

Amendment. The Equal Protection violation is based on the fact that two 

groups of similarly situated persons are not subject to the ban that applies to 

plaintiffs. The first group consists of persons closely connected to 

corporations that have federal contracts. Although section 441c applies to 

such corporations, they are permitted to establish political committees that 

are not subject to the ban, even though the principal rationale for the ban –

the avoidance of the appearance that a contract was awarded in return for a 

contribution, known as “pay-to-play” – applies equally to those committees. 

The ban is also inapplicable to the officers, shareholders, and employees of 

corporate contractors, although the pay-to-play rationale applies to them at 

least as much as to plaintiffs. The second group consists of individuals who 

are federal employees; they work with, for, or supervise contractors such as 

plaintiffs, yet they may freely make campaign contributions that plaintiffs 

may not. 

Section 441c also violates the First Amendment, because the absolute 

ban on all contributions in connection with federal elections by eligible 

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voters is not narrowly tailored to serve a compelling government interest, or 

even closely drawn to serve an important interest. The connection between 

any contributions that plaintiffs might make and the awarding of federal 

contracts is too remote to pass First Amendment scrutiny, and the law is 

both over- and under-inclusive. There is no reason why contribution limits 

applicable to every other U. S. citizen would not suffice to avoid any 

appearance that a contribution may have influenced the award of a contract,

or why smaller contracts are not excluded from the ban, as other similar laws 

provide. Nor is there any basis for extending the ban to entities that have no 

connection with the awarding of federal contracts, such as minor parties and 

candidates, and independent political committees with no ties to any 

officeholder. Moreover, the ban fails to reach recipients of billions of 

dollars of federal grants whose contributions raise appearance concerns no 

different from any that might result from contributions plaintiffs might 

make.

STATEMENT OF JURISDICTION

As discussed more fully below, jurisdiction in the District Court was 

based on 2 U.S.C. § 437h. The District Court’s Certification Order was 

entered on June 5, 2013.

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ISSUES PRESENTED

Does 2 U.S.C. § 441c, as applied to individuals such as plaintiffs, but 

not to others similarly situated, violate the Equal Protection component of 

the Fifth Amendment to the Constitution?

Does 2 U.S.C. § 441c, as applied to individuals such as plaintiffs, 

violate the First Amendment to the Constitution? 

RELEVANT STATUTES AND REGULATIONS

The relevant statutes and regulations are set forth in the Addendum. 

STATEMENT OF FACTS

A. THE STATUTORY SCHEMES

The Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431 et seq.

(“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 the President, the Vice 

President, Senators, and Representatives (including non-voting Delegates 

and Resident Commissioners). FECA has numerous provisions relating to 

political contributions and expenditures, but only a few are relevant to this 

lawsuit.

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

any person may contribute to candidates, political parties, and political 

committees, as well as imposing overall limits on what an individual may 

contribute to all such persons in a given period. Some of those limits are 

indexed for inflation, and for the 2011-12 election cycle, they were $2500 

(per candidate); $30,800 (political parties, per calendar year); $5000 

(political committees, per calendar year); and $117,000 (overall per election 

cycle). http://www.fec.gov/pages/brochures/contriblimits.shtml. If plaintiffs 

prevail in this lawsuit, they would still be subject to those limitations.

Second, section 441b forbids all corporations from making 

contributions in federal elections, but subsection 441b(b)(2)(C) specifically 

allows them to finance “the establishment, administration, and solicitation of 

contributions to a separate segregated fund” that may make contributions the 

corporation itself is prohibited from making. 

Third, in relevant part, section 441c makes it unlawful for any person

who enters into any contract with the United States . . . if payment . . . 

is . . . from funds appropriated by the Congress . . . between the 

commencement of negotiations . . . and . . . the completion of 

performance. . . directly or indirectly to make any contribution . . . to 

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

person for any political purpose or use.

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

for either an individual or a corporation that has a contract with the federal 

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government to make a contribution in a federal election while negotiating 

for, or performing, that contract. The ban is not limited to contributions to 

persons who have a role in awarding federal contracts, but extends to all 

political parties and even independent ideological committees such as those 

formed by the NRA, Right to Life organizations, Emily’s List, and the Sierra 

Club. Violation of section 441c is a felony and, depending on the amount of 

the unlawful contribution, can result in imprisonment of up to five years, 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). 

The contractor provision was first enacted as part of a bill that mainly 

expanded the 1939 Hatch Act, which had imposed significant restrictions on 

the political activities of most federal workers, to include state employees 

paid by federal funds. The contractor provision was contained in section 19

in the final version of the bill, S. 3046. 86 Cong. Rec. 9495-97 (1940). 

Beyond Congress’ desire to keep politics and government contracting 

separate, there is almost no explanation of why the approach taken in the 

Hatch Act, which never included bans or even limits on contributions by 

government employees, was not sufficient for contractors. Moreover, to the 

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extent that Congress was concerned about coercion of contractors, there was 

no explanation of why it did not extend to contractors the approach taken in 

the predecessor of what is now 18 U.S.C. § 603, upheld in Ex Parte Curtis, 

106 U.S. 371 (1882), which prohibits an individual’s employer (supervisor) 

from receiving contributions. Equally significant, section 13 of S. 3046 

imposed $5000 limits on all contributions in connection with federal 

elections. 86 Cong. Rec. 9496. Again, there is no indication why Congress 

did not simply apply that limit to federal contractors, or why in 1971 it did 

not apply FECA’s general limits to individual contractors. 

Part of the explanation for the ban appears to be that the prevailing 

constitutional doctrine in 1940 allowed Congress to impose whatever 

restrictions it wanted on those who accepted federal money, or as the FEC 

put it, on plaintiffs who “have chosen” to become federal contractors. JA 

131, ¶ 2. Thus, Senator Hatch quoted the famous observation of Justice 

Oliver Wendell Holmes that “[t]here is nothing in the Constitution or the 

statute to prevent the city from attaching obedience to [a] rule as a

condition to the office of policeman and making it part of the good

conduct required. The petitioner may have a constitutional right to 

talk politics, but he has no constitutional right to be a policeman.” 86 

Cong. Rec. 2563 (1940) (quoting McAuliffe v. Mayor of New Bedford, 155 

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Mass. 216, 220 (1892)); see also id. at 2623 (1940) (any curtailment of 

employee speech is constitutional because there is a “waiver of his 

rights when he accepts the conditions attached to his employment.” 

That view is no longer good law, see Board of County Commissioners v. 

Umbehr, 518 U.S. 668, 674 (1996), but it appears to have persuaded 

Congress that any conditions it imposed were constitutional. 

In 1971, FECA added what is now section 441b(b)(2)(C), which 

expressly permits corporations to establish “separate segregated funds” 

(“PACs”) that can be used to make contributions from funds solicited from 

the corporation’s officers and shareholders. Then in 1976, it added 

subsection 441c(b), to enable corporate contractors, like all other 

corporations, to establish such PACs. As a result, while large government 

contractors like Boeing or IBM are barred from making contributions for 

use in federal elections, their PACs, which, under 2 U.S.C. § 432(e)(5), 

must “include the name of its connected organization” (i.e., Boeing PAC), 

are free to make contributions for that purpose. In addition to the PAC 

exclusion, the FEC has construed section 441c not to apply to shareholders, 

officers, or employees of federal contractors. 11 C.F.R. §115.6. These 

exclusions apply to all corporations, large or small. Thus, Boeing’s CEO 

and its chief contracting officer are not subject to the ban of section 441c, 

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nor is someone who is the sole owner, officer, and employee of a limited 

liability company (LLC) that has a personal services contract with a federal 

agency. No similar alternative exists for individual contractors, even if they 

want to establish a political fund using only money obtained from sources 

other than a federal contract. The FEC has made it clear that section 441c

applies to any contribution whether “from their business, personal, or other 

funds under their dominion or control.” 11 C.F.R. § 115.5; JA 62 (response 

of FEC to plaintiff Brown’s request for advisory opinion). 

The contribution ban, moreover, is inapplicable to individuals whose 

contract with the federal government is one of employment. As noted 

above, 18 U.S.C. § 603 restricts who may “receive” contributions from 

federal employees, but its narrow scope underscores the contrast with the 

ban in section 441c. Similar anti-coercion laws include 18 U.S.C. § 601, 

which makes it a crime for anyone “to cause any person to make a 

contribution . . . 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, and 18 U.S.C. § 610, which criminalizes attempts to 

coerce federal employees to engage in political activities. In addition, there 

are a few rules that impose additional restrictions on employees of 

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designated sensitive agencies, such as the FEC, FBI, and CIA, but none of 

them includes a ban on all contributions, or applies to contributions to 

political parties or independent committees, as does 441c. See infra at 34-35.

Finally, section 441c does not apply 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. Most significantly, 

section 441c excludes federal grantees, who receive more total annual 

federal dollars than do contractors (JA 193, p. 38), as well as recipients of 

loans, guarantees and similar financial benefits. Nor does any law forbid 

major campaign donors and fundraisers from seeking high level federal 

employment (such as ambassadorships) in gratitude for their help in winning 

an election, despite the obvious potential for pay-to-play or its appearance. 

The most significant point about section 441c is that Congress never 

focused on the vastly different treatment that it had created for individuals 

with federal contracts, on the one hand, and corporate contractors (through 

their PACs, officers, shareholders, and employees), as well as federal 

employees, on the other. Whether a court might owe any deference to this 

haphazard scheme if Congress had actually shown its awareness of the 

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11

consequences is a question that this Court need not address, because there is 

no doubt that this scheme grew to its present form by accident, not design.

Section 441c appears intended to prevent would-be contractors from 

making contributions to officials who award federal contracts. But the only 

federal officials covered by section 441c are the President, Vice President, 

and Members of Congress, none of whom has any formal role in contracting. 

Pursuant to 48 C.F.R. §1.601(a), the heads of federal agencies are vested 

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

others. And the unrebutted evidence in this case is that appointed agency 

officials, not elected officeholders, actually made the relevant contract 

determinations for these plaintiffs. See infra at 44-45. Moreover, as 

explored at great length by the FEC in its deposition of Professor Steven 

Schooner, the federal procurement system is designed to be apolitical, so 

that all decisions are made on the merits by appointed, not elected officials 

(JA 196-97, pp. 51-54). As Prof. Schooner further explained, in the vast 

majority of cases, the current system is immune from political interference 

by elected officials and their political parties. Id. In part, this is due to the 

role played by contracting officers, whose selection process is based on their 

knowledge and experience in federal contracting. JA 217, pp. 133-36; see 48 

C.F. R. §1.603-2.

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One other point is significant about the relation between section 441c

and the federal procurement system today: section 441c as applied to 

individuals is unaltered since 1940, but the contracting system has 

undergone massive changes. The enormous increase in the use of federal 

contractors for a multitude of purposes caused Congress to enact major 

legislation to manage the procurement process. Statutes governing the 

modern federal procurement system were enacted for military agencies in 

1948 (the Armed Services Procurement Act, 10 U.S.C. § 2302 et seq.), and 

for civilian agencies in 1949 (the Federal Property and Administrative 

Services Act, Pub. L. 103-355, Title X). Those statutes, in turn, have been 

significantly modified over the years, most notably by the Office of Federal 

Procurement Policy Act of 1974, Pub. L. 93-400; the Competition in 

Contracting Act of 1984, Pub. L. 98-369; the Federal Acquisition 

Streamlining Act of 1994, Pub. L. 103-355; and the Clinger-Cohen Act of 

1996, Pub. L. 104-106, Divisions D & E. Included in those laws (as 

amended from time to time) are various specific protections against the kind 

of pay-to-play abuse that section 441c is supposed to prevent. See, e.g., 10 

U.S.C. § 2304(a)(1) (agencies must award contracts after full and open 

competition, unless exception applies); 10 U.S.C. § 2305(a)(1)(B)(agencies 

must use specifications that do not unduly restrict competition); 10 U.S.C. § 

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2305(b)(1) (agencies must evaluate offers based only on the specifications 

and evaluation criteria set out in the solicitations, and bidders who contend 

that the agency deviated from those specifications and evaluation criteria –

such as by favoring a firm whose PAC made political contributions – may 

file a bid protest at GAO or in the Court of Federal Claims). Thus, even if a 

pay-to-play rationale might have made section 441c defensible in 1940, the 

vast changes in federal procurement since then have made it indefensible on 

that basis today.

B. THE PLAINTIFFS

When this case was in the District Court, the three plaintiffs served as 

consultants to federal agencies under contracts that made them subject to the 

ban in section 441c. Each was eligible to vote in the 2012 federal elections. 

JA 349, ¶ 3. Prior to becoming a consultant, each made contributions to 

candidates for federal offices and/or to political parties and political 

committees, either in their own names or jointly with their spouses. Id. ¶ 2. 

Each wished to make federal contributions in 2012, id, but section 441c 

would subject them to criminal prosecution if they did so.

Plaintiff Wendy Wagner is a professor at the University of Texas 

Law School. Her principal area of scholarship is the law-science interface in 

environmental law. JA 349, ¶ 5. She had a contract with the Administrative 

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Conference of the United States (“ACUS”) under which she was paid 

$12,000 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. Id. ¶¶ 5-6. ACUS 

regularly hires academics, primarily law professors, to do studies in 

connection with the preparation of draft recommendations on which ACUS 

will debate and vote. JA 69, ¶ 4 (Declaration of Jeffrey Lubbers, former 

Research Director for ACUS). As with most ACUS consultants, the agency 

staff identified Professor Wagner based on her expertise and the scope of the 

proposed project, and approached her to determine her interest and 

availability. JA 50, ¶ 3. The agency’s choice of consultants, as well as the 

amounts to be paid and other terms of the contract, are determined by the 

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

choice between using staff and outside consultants for a project is affected 

by timing, budget, and the availability and expertise of ACUS employees. 

JA 69-70, ¶¶ 4, 6.

Plaintiff Wagner is registered to vote in Texas. She wanted to make 

political contributions for the 2012 federal elections, but the ban in section 

441c precluded her from doing so. Although her contract with ACUS has 

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concluded, she expects to have future agency contracts that will subject her 

to section 441c. JA 350, ¶ 5.1

The applicability of section 441c to Wagner is hardly unique; it 

extends to all individuals who contract in all of the following circumstances: 

(a) the individual is hired by an agency, such as the Department of Justice, 

or by a federal court, to be an expert witness in either administrative or court 

litigation; (b) the individual is an attorney hired to represent the United 

States, a federal agency, officer, or employee, where the Department may 

have a conflict of interest; (c) the individual is hired by the Judicial 

Conference or another entity within the Judicial Branch to be a reporter for 

one of the Rules Committees or to provide training to judges; (d) the 

individual is hired to provide advice in law, medicine, the hard or social 

sciences, or any other area where the government lacks the necessary 

expertise among its officers or employees; and (e) the individual is hired to 

provide translation or interpretation services in federal court or before a 

federal agency. JA 106 (Request for Admission # 4). It also reaches 

 1 On June 14, 2013, ACUS approved the recommendation based on

Professor Wagner’s Final Report. 

http://www.acus.gov/recommendation/science-administrative-process. Her 

report of 159 pages, for which she was paid about 75 cents a page, plus 

appendices of another 246 pages, is available at 

http://acus.gov/sites/default/files/documents/Science%20in%20Regulation_

Final%20Report_2_18_13_0.pdf.

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personal services contracts made by the Defense Department to obtain 

needed physicians and other health professionals, whose hiring is subject to 

specific procedures designed to avoid political or other irrelevant 

considerations. 10 U.S.C. § 1091(c).

There is another important aspect regarding the hiring of Wagner and 

many (although not all) of the individual contractors who are subject to 

section 441c. For most large government contracts, there is an open process 

by which interested persons can apply and their applications are assessed 

according to the terms of the proposal. However, contractors like Wagner 

and Professor Schooner, who has served as an expert witness, mediator, and 

special investigator (JA 191, pp. 29-30), typically do not apply for a contract 

or even know that there is a contract to be let (id., p. 32; JA 216, pp. 130-

132). Instead, they are initially approached by an agency because the 

agency has concluded that they are able to fill a particular need. For them, 

the pay-to-play rationale is even more inapplicable than it is for contracts let 

out for bids.

Plaintiff Lawrence Brown was for many years a full-time employee 

of USAID and its predecessor agency. After he retired, he worked in the 

private sector until he entered a contract with USAID to become a Senior 

Human Resources Advisor. JA 350, ¶ 7. In that capacity he supervises 

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three civil service employees and one contract employee and works with 

civil service employees and other advisors under contracts similar to his, 

under the overall supervision of agency officials. JA 55, ¶ 4. There is no 

functional distinction between the work performed by employees and 

contractor-advisors. Id.

Brown’s current contract began in October 2011, and lasts two years, 

renewable at the option of USAID for three additional years. Like all of his 

contracts with USAID, he negotiated it with agency officials, none of whom 

is an elected officeholder. He earns sick leave and vacation pay like regular 

employees. Federal taxes are withheld from his paycheck, and the agency 

pays the employer’s share of Social Security and Medicare taxes. Id., ¶ 5.

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. Id., ¶ 6. 

Because everyone at USAID treats him the same as a regular employee, he 

considers it only fair that he be allowed to make contributions. Accordingly, 

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

asking that he be allowed to make political contributions, subject to the same 

limitations applicable to employees. JA 56, ¶ 7. The FEC rejected his 

request in Advisory Opinion 2008-11. JA 60. Brown is registered to vote 

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in Maryland; he wanted to make contributions in 2012, but was prohibited 

from doing so by section 441c. JA 56, ¶ 8; JA 83.

Plaintiff Jan Miller is a lawyer who spent his career working for the 

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

its predecessor. After he retired, he continued to work for the agency in an 

employee status as a reemployed annuitant-consultant. JA 350, ¶ 8. He also 

began to provide legal advice to the Peace Corps, where he continues to 

work as an employee and accrues annual and sick leave. JA 64-65, ¶¶ 2-4.

Miller has a contract that runs until 2016 with the Office of 

HIV/AIDS in the Global Health Bureau of USAID, where he provides 

policy advice. 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. 

Id., ¶ 5. It is Miller’s understanding that USAID currently has 

approximately 700 individuals under personal services contracts, which are 

generally similar to his, with one-third of those individuals working in 

Washington and two-thirds at USAID missions overseas. Id. 

All of the contacts that Miller has had in negotiating and/or 

implementing his contracts with USAID were with agency contracting 

officers, none of whom was an elected officeholder. Id., ¶ 6. His selection in 

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each case was, he believes, based on the agency’s knowledge of his work 

and because agency officials concluded that he had the necessary skills, 

experience, and familiarity with its work so that he could step in and do what 

was needed. Id. In each of the situations in which he has been a contractorconsultant, and in many of the positions in which he was an employee, he 

worked side-by-side with employees and contractual-consultants. The 

nature of the work performed by such individuals rarely varied depending on 

whether the person was an employee or a contractor; sometimes the 

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

was a contractor-consultant. Id.

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. JA 66, ¶ 7. Miller has not made any 

federal contributions since he became a contractor, but wanted to provide 

financial support in 2012 for candidates for federal offices and/or their 

political parties, and be on record as giving money to those that he believes 

would best represent him and his views and values. Id.

Plaintiffs Brown and Miller are, for all practical purposes, federal 

employees. Among the many others in the same category are retired FBI 

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agents who are hired to do background checks on those applying for federal 

employment or who need a security clearance. JA 351-52, ¶ 11. 

C. PROCEEDINGS BELOW

This lawsuit was filed in October 2011 under 2 U.S.C. § 437h, under 

which the District Court would have certified the facts and the questions 

presented, but all rulings on the merits would have been made by this Court 

sitting en banc. Because plaintiffs wanted to make political contributions in 

2012, and because they and the FEC believed that jurisdiction was also 

proper under 28 U.S.C. § 1331, they filed an amended complaint (JA 8) and 

moved for a preliminary injunction, which was denied in April 2012. JA 24-

49. Thereafter, the parties concluded discovery and filed cross-motions for 

summary judgment. In its opinion of November 2, 2012, the Court upheld 

section 441c. JA 224-242. 

Plaintiffs appealed, and a panel of this Court ruled that jurisdiction 

under section 437h was exclusive (JA 243-61) and remanded so that the 

District Court could make the required certifications, which it did on June 5, 

2013. JA 345-57.2

 2 On remand, the FEC submitted 54 pages of proposed findings of fact, JA 

276-329, of which the final 113 items were “legislative facts.” The District 

Court limited its findings to facts about the plaintiffs and some background 

on the federal contracting process, but recognized that the FEC may cite 

public documents noted in those legislative facts in its brief. JA 348. The 

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SUMMARY OF ARGUMENT

The principal justification for section 441c is that a ban is needed to 

avoid the appearance that federal contractors are using contributions to 

obtain contracts, known as pay-to-play. But that rationale also applies to 

those not subject to the ban: the political committees of corporate contractors 

and the corporation’s officers and shareholders, who are subject only to the 

generally applicable limits on contributions. The same rationale applies to 

federal employees, who are indistinguishable in all relevant respects from 

individual contractors like plaintiffs, but not subject to the ban. This 

discrimination against plaintiffs in the exercise of the First Amendment right 

to make political contributions cannot survive Equal Protection scrutiny.

Even if section 441c were non-discriminatory, it would still fall under 

the First Amendment, for three reasons. First, the connection between the 

would-be recipients of plaintiffs’ contributions and the awarding of federal 

contracts is far too remote to satisfy the applicable standard that the law be 

at least “closely drawn” to sustain its asserted goal, in this case avoiding the 

appearance of pay-to-play. Second, section 441c is far broader than 

necessary, both because it covers contributions to independent political 

 

parties have agreed that they will not object to citations to other portions of 

the record below, including the opinions of the District Court that have been 

vacated.

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committees and minor parties that have no connection with the contracting 

process, and because it fails to exclude small contributions that no 

reasonable person would believe raise the appearance of pay-to-play. Third, 

the law is vastly under-inclusive, failing to cover transactions, such as the 

billions of dollars spent yearly on federal grants, that are at least as 

susceptible to the pay-to-play perception as plaintiffs’ very modest contracts. 

Whatever the law may tolerate for purely economic regulation, the First 

Amendment does not permit such imprecision. 

ARGUMENT

Plaintiffs urge this Court to consider their Equal Protection claims 

first for several reasons: (1) Section 441c applies to corporations as well as 

individuals, and a First Amendment ruling would call into question its 

continued viability for corporate contractors, whereas an Equal Protection 

decision would leave that issue for another day. (2) An Equal Protection 

ruling would give Congress greater flexibility since it could either extend the 

ban (or something comparable) to others, or relax it as to plaintiffs; a First 

Amendment decision would leave Congress with no such choice. (3) Equal 

Protection rulings are by definition more narrow, as illustrated by Justice 

O’Connor’s concurring opinion in Lawrence v. Texas, 539 U.S. 558, 579-85 

(2003), which would have invalidated Texas’ ban on sodomy because it 

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applied only to same-sex conduct, whereas the majority struck down the law 

on Due Process grounds, which overturned all anti-sodomy laws, even those 

that treated same-sex and opposite-sex conduct alike. 

Standard of Review

This case is before the Court for an initial determination based on 

certified facts, as to which there is no dispute. The applicable level of 

scrutiny for plaintiffs’ claims is set forth in the discussion of each claim. 

I. BARRING INDIVIDUALS HOLDING FEDERAL 

CONTRACTS FROM MAKING ANY CONTRIBUTIONS FOR 

FEDERAL ELECTIONS, WHILE ALLOWING OTHERS WHO ARE 

SIMILARLY SITUATED TO MAKE SUCH CONTRIBUTIONS, 

VIOLATES EQUAL PROTECTION.

There are two groups of persons who are similarly situated to 

plaintiffs but who are allowed to make federal campaign contributions. The 

first is comprised of three sub-groups, each of which involves a corporation 

that has a federal contract: (i) the corporation itself, because it may establish 

a PAC that may make federal contributions; (ii) its officers, employees and 

shareholders; and (iii) the individuals who control LLCs that contract with 

the federal government. The second group includes individuals who work 

for federal agencies as employees rather than contractors. Because the

comparisons and justifications are different for the two groups, it is 

important to consider them separately.

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A. The Court Should Apply Strict Scrutiny,

or at Least Heightened Scrutiny, to

Plaintiffs’ Equal Protection Claim.

Although the Supreme Court has well-established standards for 

assessing Equal Protection claims in many contexts, its cases involving bans 

on contributions have not been analyzed under the Equal Protection Clause, 

under which “all persons similarly situated should be treated alike.” City of 

Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (striking 

down law under rational basis standard). In FEC v. Beaumont, 539 U.S. 146 

(2003), there was a lurking Equal Protection contribution question: whether 

certain non-profit corporations should be treated like individuals – as the 

Court had done in allowing them to make unlimited independent 

expenditures, FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) –

or like for-profit corporations, which are prohibited by section 441b from 

making any contributions in federal elections. Similarly, in McConnell v. 

FEC, 540 U.S. 93, 231-32 (2003), the contribution ban at issue applied only 

to individuals under the age of 18, which could have been treated as an 

Equal Protection violation. However, neither case was decided under Equal

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Protection law, with the Court sustaining the law in Beaumont and striking it 

down in McConnell.

3

Pursuant to 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.” Under Buckley v.

Valeo, 424 U.S. 1 (1976), the right to make a political contribution is a 

fundamental right protected by the First Amendment; see also

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 & n.3 (1976)

(pointing to “rights guaranteed by the First Amendment” as an example of 

fundamental rights requiring strict scrutiny). And while the Court in Citizens 

United v. FEC, 558 U.S. 310 (2010), did not decide the level of scrutiny 

applicable to contributions, its broad embrace of strict scrutiny as applied to 

political spending further supports applying strict scrutiny to laws that allow 

some persons to contribute, while banning others from doing so. 

Similarly, the Court in Kramer v. Union Free School District, 395 

U.S. 621, 626 (1969), gave a restriction on voting “a close and exacting 

examination” because the law allegedly created an “unjustified 

 3 In Dallman v. Ritter, 225 P.3d 610, 634-35 (Col. 2010), the Court found 

the differing treatment of union contractors and corporate contractors 

violated Equal Protection, applying the “narrow tailoring” standard.

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

And, in Bush v. Gore, 531 U.S. 98, 104-05 (2000), without specifying the 

level of scrutiny, the Court gave no deference to Florida’s method of 

conducting a recount, which it found amounted to “arbitrary and disparate 

treatment” by valuing “one person’s vote over that of another,” which is 

essentially what section 441c does by denying plaintiffs the same right to 

make political contributions that all other citizens enjoy. Strict scrutiny 

therefore applies to plaintiffs’ Equal Protection claim, and the ban should be 

set aside unless defendant can show that section 441c is “necessary” to serve 

a “compelling state interest” as applied to individuals such as plaintiffs and 

is “narrowly tailored” to achieve that end. Kramer, 395 U.S. at 630-33. 

In Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), this Court rejected an 

Equal Protection challenge to one aspect of an SEC rule that restricted the 

ability of municipal securities dealers to contribute to the political 

campaigns of state officials from whom they obtained business. That rule 

(unlike section 441c) reached dealers’ corporate officers, but the challengers 

contended that it violated Equal Protection because it did not also extend to 

the officers of a dealer’s parent corporation and the parent’s political 

committees. This Court rejected the claim of under-inclusion, recognizing 

that the SEC could sensibly stop somewhere and, with little analysis, applied 

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rational basis to that line-drawing. Id. at 946, n.4. Given the overall thrust 

of the rule, that outcome is hardly problematic since its principal impact was 

on the economics of the municipal securities industry, a matter well within 

the special competence of the SEC. There is also a question as to whether 

the opponents of the rule raised this issue before the SEC, so that the agency 

had an opportunity to respond. See id. at 940-41. For these reasons, Blount

is inapplicable here.

Although declining to specify the applicable level of scrutiny, the 

Court in United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. 

June 26, 2013), stated that “careful consideration” was required of the claim 

that treating same-sex married couples less favorably than opposite-sex 

married couples violated Equal Protection because of the “unusual” nature 

of the differing treatment of marriage. Id. at *14. That rationale surely 

applies here where section 441c treats the PACs of corporate contractors 

more favorably than individual voter-contractors like plaintiffs, which 

essentially turns the arguments made by the FEC in Citizens United on their 

head. Accordingly, the Court should decline to apply rational basis as the 

FEC urged and instead utilize strict scrutiny, or at least heightened scrutiny,

under which the “statutory classification must be substantially related to an 

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important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 

(1988). 

B. Corporate Contractors and Related Persons Are

Similarly Situated to Plaintiffs. 

1. Corporations. 

The first similarly situated group consists of corporations that contract 

with federal agencies. Like plaintiffs, they cannot make contributions in 

federal elections. But, like other corporations, they can establish PACs that 

can make contributions, and the corporate sponsor is specifically allowed to 

administer the fund, including paying for the solicitation of money to be 

used to make contributions. Section 441b(b). Plaintiffs do not have that 

option. The ban in section 441c does not simply forbid an individual from 

using money received under a government contract from making a 

contribution. It is absolute and not tied in any way to the source of the 

money, see 11 C.F. R. § 115.5; see also JA 62 (FEC advisory opinion). 

Thus, if an individual inherited $10,000 and placed it in a separate 

segregated fund before becoming a government contractor, section 441c

would still bar the use of those funds to make contributions in federal 

elections, while a corporation can use “outside” (non-treasury) money to 

fund its PAC (including money paid to stockholders or executives out of 

profits on the corporation’s government contracts).

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The asserted purpose of section 441c is to eliminate the appearance of 

a quid pro quo for government contracts. It does that by banning contracting 

parties from making contributions to persons who, in least in theory, are in a 

position to influence the award or terms of such contracts. But permitting 

contracting corporations to create PACs to make identical donations 

thoroughly undermines that rationale and actually places corporations in a 

better position to influence the award of government contracts than 

individual contractors like plaintiffs. 

To be sure, a corporation and its PAC are separate legal entities. But 

that fact has no relevance because the comparisons between plaintiffs and 

contractor PACs must be judged in light of “the purpose that the challenged 

laws purportedly intended to serve.” City of Cleburne, 473 U.S. at 454 

(Stevens, J. concurring). The asserted purpose of section 441c is to prevent 

the reality or appearance of pay-to-play, but that same reality or appearance 

exists if the Boeing PAC makes a contribution. Indeed, to eliminate any 

question about the connection between a corporation and its PAC, section 

432(e)(5) requires that a PAC’s name “shall include the name of its 

connected organization.” As the United States recently observed, “Under 

heightened scrutiny, however, a court evaluates the fit between a proffered 

interest and the challenged classification not in isolation or in the abstract, 

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but in the context of the regulatory regime as it actually exists. ... Petitioners 

cite no precedent requiring (or even permitting) a court to shut its eyes to the 

actual operation and effect of the law in context.” Brief for the United States 

in Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 

2013), at 23 (citations omitted).

The notion that corporations should have greater rights than individual 

voters is impossible to square with Beaumont, where the Court upheld the 

ban on corporate contributions. As the Court observed, “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 and of 

the public in receiving information. 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.” 

539 U.S. at 161 n.8 (citations omitted). Yet under section 441c, these 

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

with money not derived from their federal contracts – while corporate 

officers and shareholders are at liberty to use even funds derived from their 

federal contracts to support their corporations’ PACs. 

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In Citizens United v. FEC, supra, the FEC defended a law that 

favored individuals over corporations and lost. We know of no other 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.

2. Corporate Officers, Employees and Shareholders. 

Not only may corporations use their namesake PACs to make 

contributions, but individuals closely affiliated with corporate contractors 

are outside the ban. Thus, the CEO of Boeing, its largest shareholders, its 

chief contract negotiator with the Department of Defense, its congressional 

lobbyists, and its employees in charge of implementing a DOD contract, 

may all make contributions in federal elections. If the supposed concern 

about the appearance of a quid pro quo for a federal contract would not exist 

in that situation, even though the identities and employers of contributors are 

matters of public record, see 2 U.S.C. §§ 431(13); 434(b)(3)(A), it is 

impossible to explain why plaintiffs who have individual contracts with 

federal agencies should be forbidden from making similar contributions. 

Indeed, the FEC cites as evidence of the potential for corruption examples 

from New Mexico, Hawaii, the District of Columbia, and New York City 

where officers of government contractors were the lavish contributors (JA 

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299-307, ¶¶ 37-53), precisely what section 441c allows. See also JA 234

(District Court Opinion citing similar examples). Indeed, Green Party v. 

Garfield, 616 F.3d 189, 202 & n.10 (2nd Cir. 2010), cited by the FEC (JA 

310, ¶ 60), makes this very point in upholding a ban on contractor 

contributions that covered the contractor’s officers and their dependent 

children, as well as its PAC, because making the law applicable to 

“principals” of contractors is “particularly important.”

3. Individual LLCs. 

The discrimination against 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 LLCs. JA 78, ¶ 5. In his case, and in most others -

see Lubbers and Schooner declarations JA 71, ¶ 8; JA 74, ¶ 8 - the agency 

does not care whether the contract is with the individual personally or with 

an LLC. In most contracts with LLCs, the person performing the services is 

the sole shareholder, officer, and employee; agencies contract with such 

LLCs on the understanding that the individual who owns and runs the 

corporation will perform the services. For operational purposes, it makes no 

difference to the agency whether an individual has formed an LLC or enters 

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a contract with the agency directly. But it does matter under section 441c

because the FEC has ruled that the ban on contractor contributions applies 

only to the entity that is the contracting party, not to its shareholders, 

officers, or employees. 11 C.F.R. § 115.6. 

Thus, if plaintiff Wagner were willing to go to the trouble and 

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

(see Tiemann declaration, JA 76, ¶ 3), 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. But the idea that she should have to create an LLC to avoid section 

441c is foreclosed by the rationale of Citizens United, which rejected as 

unduly burdensome a claim that even large for-profit corporations could be 

required to establish PACs as an alternative to making expenditures from 

their treasuries, without any showing of the specific burdens of doing so. 

558 U.S. at 337-39; see also FEC v. Massachusetts Citizens for Life, 479 

U.S. 238, 253-56 (1986) (rejecting similar claim as applied to non-profit 

corporations and explaining the burden of operating such funds). It follows 

that an individual who wishes to make otherwise lawful political 

contributions may not be required to spend the time and money to establish 

and maintain an LLC just to avoid section 441c.

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C. Federal Employees Are Similarly Situated to Plaintiffs.

No law prohibits federal employees from making contributions in 

federal elections. Indeed, the applicable 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). There are 

special rules in 5 C.F.R. § 734.401 for employees of seventeen sensitive 

agencies, such as the FEC, the FBI, and the CIA, but 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.”

As noted above, 18 U.S.C. § 603 contains a very modest restriction 

for federal employees: the contributor cannot work for the person 

“receiving” the contribution. But making a contribution directly to a 

presidential election committee, a political party, or a political committee, is 

not barred. Far from being a limit on what federal employees may 

contribute, section 603 is principally aimed at protecting federal employees 

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35

from being solicited by their supervisors, whose requests they may feel 

unable to decline. 4

In almost all respects, 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 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 JA

124, ¶ 3; see also NASA v. Nelson, 131 S. Ct. 746, 751 (2011) (upholding 

background checks for individual contractors with access to federal facilities 

because “their duties are functionally equivalent to those performed by civil 

servants” who undergo such checks); Filarsky v. Delia, 132 S. Ct. 1657, 

1665-66 (2012) (citing need for governments to hire part-time personnel to 

fill special needs). Plaintiffs Brown and Miller are retired employees from 

the same agency where they now are contractual consultants and do much 

 4 The concern with supervisors soliciting subordinates is confirmed by 

specific federal rules prohibiting such conduct. See 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 time, place, and manner prohibitions 

on participation by federal employees in political activities generally, but 

none of them would prevent an employee from making a contribution except 

in those specific circumstances.

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36

the same work they previously did. But when they were employees, they 

could make federal contributions, and now they would be felons if they did 

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

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

as the FEC has admitted, section 441c applies to anyone who has a contract 

with any federal government entity, including individuals hired as expert 

witnesses, 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. JA 106.

According to the FEC, section 441c is intended to prevent the 

actuality or appearance of corruption that would arise if individual 

contractors made political contributions because such contributions might 

appear to influence the award or renewal of their contracts. It could be 

argued that, because employees do not need new contracts or renewals, they 

have nothing to gain from making contributions or to lose from not making 

them, which would make the situations not comparable. But that argument 

ignores the fact that federal employees are not in a static situation. 

Employees desire pay raises, promotions, and excellent annual evaluations 

from their superiors. They prefer some work locations to others. Moreover, 

within a given office, there are better and worse jobs, in terms of the quality 

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of work, the hours when employees must be present, the identity of their

supervisor, and their ability to gain particular experience as a means of 

advancing in the future. And in contrast to contractors like plaintiff Wagner, 

for whom the ACUS work is only part time and for a limited duration, or 

like plaintiffs Miller and Brown, who are retired employees for whom their 

contract work supplements their retirement, full-time federal employees 

have a great deal to gain or lose even if their “contracts” cannot readily be 

terminated. Thus, because they too have incentives to please (or not 

displease) their supervisors by making “appropriate” political contributions, 

federal employees are like individual contractors, especially those like 

plaintiffs Brown and Miller who literally work along side of, supervise, or 

are supervised by them. We do not argue that the situations are identical, 

but under the strict or at least heightened scrutiny that applies to this Equal 

Protection challenge, they are sufficiently close that the FEC must supply a 

far greater justification than it has to date to explain why the Constitution 

permits Congress to forbid plaintiffs from making contributions in federal 

elections, but does not apply a similar ban to federal employees.

* * *

Kramer v. Union Free School District, supra, strongly supports 

plaintiffs’ Equal Protection claims. Although there is no express 

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38

constitutional provision granting the right to vote for government officials, 

the Kramer Court held that allowing some individuals to vote for elected 

officials, while denying others that opportunity, had to satisfy strict scrutiny. 

The election in Kramer was for a local school board, but only those who 

owned or leased property in the school district, or who had children (whether 

in the public schools or not) could vote. The plaintiff was a childless 

stockbroker who lived with his parents, but was otherwise eligible to vote. 

The Court found the voting exclusion violated Equal Protection because 

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 plaintiffs’ Equal Protection 

claims here. Preferring federal employees over individual consultants, or 

preferring the PACs, stockholders, officers, and employees of contracting 

corporations over individuals such as plaintiffs, violates Equal Protection. 

The combination of both makes section 441c doubly unconstitutional as 

applied to individuals who have contracts with federal agencies.

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II. BARRING INDIVIDUALS HOLDING FEDERAL 

CONTRACTS FROM MAKING ANY CONTRIBUTIONS FOR 

FEDERAL ELECTIONS VIOLATES THE FIRST AMENDMENT.

A. As a Complete Ban on Fundamental First Amendment

Activity, Section 441c Should Be Subject to Strict Scrutiny.

The First Amendment is a general limit on all laws regulating political 

contributions and expenditures. Buckley, 424 U.S. at 14-23. In every case 

in the campaign finance area, the Supreme Court has applied some form of 

heightened scrutiny, 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. Id. 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”) (citations omitted). Section 441c is a 

ban, not just a limit, and it is applicable to individuals with federal contracts, 

almost all of whom, like plaintiffs, are citizens eligible to vote in federal 

elections. It therefore strikes directly at plaintiffs’ ability to express their 

political preferences by contributing to candidates, parties, and independent 

political committees that support candidates and/or policies that they 

support. The closest case is McConnell v. FEC, 540 U.S. at 231-32, where, 

applying heightened scrutiny, the Court struck down a ban on all 

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contributions by persons under the age of 18, which was likewise defended 

as a prophylactic measure to prevent corruption or the appearance of 

corruption in the form of evasion of contribution limits.

A complete ban on contributions by any group of voters should be 

subject to strict scrutiny because it abridges fundamental First Amendment 

rights. Plaintiffs recognize that Beaumont applied the less demanding 

“closely drawn” standard to the ban at issue there, 539 U.S. at 161-63, and 

that Preston v. Leake, 660 F.3d 726, 735 (4th Cir. 2011), applied that 

standard to a near-total ban on contributions by registered lobbyists. 

However, Citizens United, which applied strict scrutiny to the ban on forprofit corporate independent expenditures, 558 U.S. at 340, casts doubt on 

the continued viability of Beaumont, at least, as here, where the ban is 

directed at eligible voters. The Beaumont plaintiff was a non-profit 

corporation, not an individual voter, and, unlike plaintiffs, it was also 

permitted to have a PAC and to make unlimited independent expenditures. 

Compare 539 U.S. at 162-63, with section 441c(b) (excluding individuals 

from establishing PACs) and 11 C.F.R. § 115.2 (interpreting section 441c to 

prohibit independent expenditures).5

 5 Section 441c refers only to contributions, not expenditures, but the FEC 

construes it to extend to independent expenditures. See FEC News Release 

October 5, 2011, note 1, available at 

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Furthermore, the reasons why the Buckley Court was willing to apply 

less than strict scrutiny to contribution limits strongly suggest a different 

treatment here. Buckley observed that a limit “entails only a marginal 

restriction upon the contributor’s ability to engage in free communication,” 

424 U.S. at 20, which plainly cannot be said about a ban. The essence of a 

contribution, said the Court, is the “symbolic act of contributing,” with the 

size of the contribution providing only “a very rough index of the intensity 

of the contributor’s support for the candidate.” Id. at 20-21. In subjecting 

limitations to lesser scrutiny, the Court further noted that limits still permit 

“the symbolic expression of support evidenced by a contribution,” id. at 21, 

a rationale that is plainly inapplicable to section 441c. 

For these reasons, a complete ban on contributions by individual 

voters 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 Beaumont, is applicable, the ban in section 441c

 

http://fec.gov.press2011/20111006postcarey.shtml. Plaintiffs have no 

interest in making independent expenditures, but if pay-to-play concerns are 

sufficient to support a contribution ban, as the FEC contends, those concerns 

would also be sufficient to support a ban on independent expenditures by 

contractors. But Citizens United would clearly foreclose that outcome. 

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cannot stand. That is because, as the Sixth Circuit recently held in setting 

aside a ban on contributions from Medicaid providers, “a state must do more 

than merely recite a general interest in preventing corruption. What Buckley

requires is a demonstration, not a recitation.” Lavin v. Husted, 689 F.3d 543, 

547 (6th Cir. 2012).

6

B. The Contribution-Contract Connection Is

 Too Attenuated to Survive Any Heightened Scrutiny.

Section 441c is not an economic regulation, such as one disallowing 

political contributions in a utility’s rate base, or a law allocating property tax 

burdens. Cf. Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012)

(allowing rough justice in tax matters). Rather, the right to make a political 

contribution is squarely protected by the First Amendment. Unlike most 

other contribution laws applicable to individuals, section 441c does not 

limit, but absolutely prohibits plaintiffs from making contributions for 

 6 The FEC also defends section 441c on an anti-coercion rationale. JA 289, 

¶ 11. Even assuming that paternalism has a place in First Amendment

analysis, and even disregarding the fact that section 441c forbids 

contributions to independent committees that have no power to coerce any 

contractor, prohibiting speech should be a last resort, not the first one. In 

this context, that means forbidding those with power to award contracts from 

using that power to coerce contributions. Indeed, there are a number of 

criminal statutes, such as 18 U.S.C. §§ 601, 603, 606, & 610, that either 

already protect contractors as well as federal employees, or could be 

amended to do so. There is no basis to believe that direct regulation of 

improper conduct will not succeed, at least until it has been tried and found 

wanting.

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federal elections as long as they have contracts with the federal government. 

Since Congress apparently believes the limits applicable to all contributors 

are sufficient to avoid the reality or appearance of corruption for everybody 

else, defendant has a heavy burden to explain why those limits are not also 

sufficient as applied to plaintiffs. As the Second Circuit observed in striking 

down a ban on contributions by lobbyists, “if a contribution limit would 

suffice where a ban has been enacted, the ban is not closely drawn to the 

state’s interests.” Green Party, 616 F.3d at 206, n. 14. And in judging 

whether defendant has sustained 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.” SpeechNow.org v. 

FEC, 599 F.3d 686, 692 (D.C. Cir. 2010) (en banc). Accordingly, there 

must be at least a substantial reason why a complete ban is needed and why 

the otherwise applicable limits do not suffice to avoid the appearance of payto-play, the asserted rationale for section 441c. The FEC has simply never 

answered the question of why those limits do not suffice.

Plaintiffs do not argue that the First Amendment prohibits all 

restrictions on government contractors. Nor does the Court need to go 

nearly that far to rule for plaintiffs. That is because the lack of fit between 

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section 441c and both the manner in which contracts with the federal 

government are awarded – by agency officials who are appointed, not 

elected – and the breadth of persons under section 441c that may not receive 

contributions from contractors – most of whom have no role in federal 

contracting – doom section 441c under the First Amendment. 

The starting point for federal contracting is 48 C.F.R. § 1.601 (a), 

which provides that federal contracts are awarded at the agency level, with 

no role for any elected official to whom contributions might be made. 

Although agencies are headed by persons appointed by the President with 

the advice and consent of the Senate, there is a separation of functions such 

that agency heads, as well as most other political appointees, have nothing to 

do with most federal contracts. Moreover, the established procedures for 

awarding contracts preclude improper interference, such as rewarding 

contributors with preferences. Thus, the plaintiffs each explained how their 

contracts were awarded in a non-political way. For example, plaintiff 

Brown showed that the process by which contracts are awarded to 

individuals at USAID is designed to preclude improper outside influence. 

JA 93 (response to Interrogatory No. 2). Similarly, Professor Schooner 

confirmed that the special qualifications and the independence of the 

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contracting officers at all agencies are vital parts of the contracting process. 

See JA 355, ¶ 23, citing to Schooner deposition. 

To be sure, it is possible that despite the laws and procedures that take 

politics out of contracting, some individuals may break the rules, and 

perhaps, if section 441c were a form of economic regulation and did not 

impinge on plaintiffs’ First Amendment rights, it might be sustained on that 

possibility. But the connection between contributions to persons who have 

no proper role in awarding federal contracts and the ban in section 441c is 

simply too attenuated to satisfy the First Amendment. Laws abridging First 

Amendment rights cannot be based on speculation alone: “it 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 the “burden is not satisfied by mere 

speculation or conjecture; rather a governmental body seeking to sustain a 

restriction on commercial speech must demonstrate that the harms it recites 

are real and that its restriction will in fact alleviate them to a material 

degree.” Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). 

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In this respect section 441c is like the ban on contributions by minors 

set aside in McConnell: even if some parents might use their children as 

unlawful conduits for excess contributions, a total ban on all contributions 

by minors failed the closely drawn test applied there: “The States have 

adopted a variety of more tailored approaches – e.g., 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. Without deciding whether any of these alternatives is 

sufficiently tailored, we hold that the provision here sweeps too broadly.” 

540 U.S. at 232. Perhaps a prohibition on making a contribution to an 

official who is the decision-maker on a government contract that the 

contributor is currently seeking, or has recently obtained, would be justified 

as a means of avoiding the appearance of corruption. However, section 441c

is not such a law.7

 

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

restrictive alternative: impose a temporal ban on entering a contract with 

anyone who has made a contribution to someone who has a role in deciding 

who is to be awarded that contract. That kind of law would operate like a 

recusal statute, 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 constitutionally be 

limited). That is how the rule upheld in Blount operated: municipal 

securities brokers were prohibited from engaging in that business for two

years after contributing more than $250 to officials from whom they were 

seeking that business. 61 F.3d at 939-40.

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The FEC also relies on decisions sustaining state and local laws 

banning contributions by contractors, see JA 303-10, ¶¶ 46, 51, 58. 

However, those cases are readily distinguishable because the connection 

between the contract award and the contribution is much closer than it is in 

the federal system. In the federal system, only Members of Congress and 

the President and Vice President are elected, and they have no direct role in 

awarding contracts. By contrast, many more state and local officials are 

elected, and many of those officials have important roles in awarding 

contracts. Indeed, in most of the litigated cases, the ban applied only to 

persons actually involved in the contracting process. Thus, in Blount v. 

SEC, the rule was limited to contributions to specific officials of the issuer 

(i.e., the persons who decide who gets the business), and in that respect it 

was even more narrowly tailored than the “branch specific” law in Green 

Party that was enacted only after a series of contractor-based scandals. 616 

F. 3d at 193-94. It is true that section 441c has been in effect since 1940, 

and so recent evidence of the kind supporting the ban in Green Party is 

unlikely to exist. However, the absence of any examples of even attempted 

pay-to-play involving otherwise lawful contributions made to obtain federal 

contracts strongly suggests that the existing rules on federal procurement 

already protect the federal interest in avoiding the appearance of corruption. 

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See Green Party, 616 F.3d at 206-07 (rejecting ban on contributions by 

lobbyists because of absence of evidence of improper influences).

Finally, even if section 441c was defensible when it was enacted, it 

cannot withstand this First Amendment challenge today. Not only has the 

Holmesian view of what the Government may demand of those who work 

for it been rejected, see supra at 7-8, but in 1976 the Court in Buckley first 

applied the First Amendment to political contributions. Moreover, the seachanges in federal procurement law and practice described supra at 12-13, 

have so fundamentally altered that process that whatever dangers there may 

have been that contributions would influence the awarding of federal 

contracts in 1940 have been so diminished that section 441c can no longer 

be sustained as a means of avoiding even the appearance of pay-to-play. In 

short, as Justice Brandeis observed, “A statute valid when enacted may 

become invalid by change in the conditions to which it is applied.” 

Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935).

8

The most recent example of this principle is Shelby County, Ala. v. 

Holder, No. 12-96, 2013 WL 3184629 (U.S. June 25, 2013). The formula 

 8 The Supreme Court noted probable jurisdiction in McCutcheon v. FEC, 

No. 12-536, on February 19, 2013. The principal claim there is that certain 

overall contribution limits that had been upheld in 1976 in Buckley were 

now unconstitutional because of subsequent changes in FECA that 

undermined the asserted rationales for those limits. 

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for covered jurisdictions in section 4 of the Voting Rights Act, which had 

been sustained on three prior occasions, and which had remained largely 

unchanged since 1965, was overturned because times had changed and the 

formula had not. As the Court explained, the Act imposes “‘current 

burdens’ [that] must be justified by ‘current needs.’” Id. at *14 (quoting 

Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 

203-204 (2009)).

Moreover, unlike section 441c, the Voting Rights Act had been the 

subject of extensive congressional hearings and fact finding as recently as 

2006, but that still was not enough to overcome the failure to update the 

formula. In addition, there is a “bailout” provision under the Voting Rights 

Act, but there is nothing like that for section 441c, such as exclusions for 

small contracts or small contributions. Finally, as the dissent pointed out, 

the Act was passed pursuant to Congress’ express and admittedly broad 

powers under the Fifteenth Amendment, id. at *24-25, and there is no 

similar express grant of power to regulate political speech. To the contrary, 

the First Amendment expressly limits Congress’ authority to do that. 

Shelby County was not an Equal Protection case, but the majority 

opinion has equal protection overtones in its discussion of both how some 

covered jurisdictions are no longer serious offenders and how some 

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uncovered jurisdictions have been found to violate the Act. See Romer v. 

Evans, 517 U.S. 620, 633 (1996) (applying rational basis review to set aside 

provision “at once too narrow and too broad”). In that respect it resonates 

with plaintiffs’ arguments that section 441c is both over- and underinclusive, to which we now turn. See Citizens United, 558 U.S. at 362

(relying on both under- and over-inclusiveness in rejecting shareholder 

protection rationale as grounds for a ban on independent expenditures). 

C. Section 441c Is Over-Inclusive.

Another reason why section 441c cannot withstand First Amendment

scrutiny is that it reaches both contractors and contributions for which there 

is no significant risk of even the appearance of pay-to-play. See Lavin v. 

Husted, 689 F.3d at 548 (setting aside contribution ban as “vastly more 

restrictive than necessary to achieve its stated goal”). The statement in

Buckley (which upheld only limits, not bans, on contributions) that Congress 

may proceed “one step at a time,” 424 U.S. at 105, does not mean that the

steps Congress took when it amended section 441c in 1976 to add 

subsections 441c(b) & (c) regarding contractor PACs, and made major 

changes in government procurement laws beginning in 1948, can be ignored 

by the courts. The FEC’s approach might be justified if section 441c were 

ordinary economic regulation, but it does not suffice to uphold a ban on First 

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Amendment activities. Under either strict scrutiny or the closely drawn 

standard, courts may not disregard obvious, modest, and less restrictive 

alternatives that would significantly reduce the harm to plaintiffs, while not 

undermining the asserted pay-to-play rationale. See, e.g., McConnell, 540 

U. S. at 232. There are several obvious ways in which section 441c could be 

made less restrictive without undermining its purpose.

For example, section 441c unnecessarily bans contributions to entities 

that have no possible role in federal contracting today. It applies not only to 

the President and Members of Congress – as well as challengers who have 

no current power even in theory – but also to all political parties (including 

minor and new parties and their candidates, as defined by 26 U.S.C. § 9002 

(7) & (8)), and to ideological political committees, such as those formed by 

environmental groups, Planned Parenthood, the NRA, and the various Right 

to Life organizations. Unlike elected officials who might have the theoretical 

power to influence a contract, officials of those entities plainly have no 

ability to affect the award of any contract, let alone those of plaintiffs. Cf. 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296-99 (1981)

(distinguishing contributions to a candidate from contributions to ballotmeasure committees because such committees have no power to make

governmental decisions); Blount 61 F.3d at 947 (prohibition applies only to 

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“officials who might influence the award of negotiated municipal bond 

underwriting contracts”). Similarly, in Dallman, 225 P.3d at 627, a law that 

reached contributions to political parties and to all candidates for office, 

regardless of their connection to the contributor’s actual or potential 

contract, was set aside 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.” 

Section 441c also lacks ameliorating provisions included in other 

statutes aimed at preventing pay-to-play. For example, the New York City 

law upheld in Ognibene v. Parkes, 671 F. 3d 174 (2nd Cir.), cert. denied,

133 S. Ct. 28 (2012), has a number of less restrictive features absent from 

section 441c. First, the law does not ban, but only limits, contributions by 

certain contractors. Id. at 179-80. Second, the law applies only to contracts 

worth more than $100,000, which would have excluded plaintiff Wagner. 

Id. at 180. The law does not appear to apply to contractors like plaintiffs 

Brown and Miller (although that is not entirely clear since no one in their 

position was a plaintiff). Moreover, the challenged law was the result of a 

series of incremental changes, backed by studies and reports that followed 

on the heels of local scandals, id. at 178, and was carefully crafted to avoid 

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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. But its vastlyreduced reach further demonstrates why section 441c is not closely drawn.

Similarly, the Colorado law in Dallman had a much narrower scope 

than does section 441c: it applied only to contracts for which no more than 

three bids were received, and it covered only contracts above $100,000 

(indexed for inflation). 225 P.3d at 618. Even then, the law did not survive 

closely drawn scrutiny because it applied to contracts in rural areas where 

the product or service could sometimes be obtained from only one company. 

Id. at 626-27.9

Even Preston, supra, which upheld a near-total ban on contributions 

by registered lobbyists in North Carolina, does not help the FEC. The 

decision turned on a series of recent campaign finance scandals involving 

 9 Excluding sole-source contracts is sensible because the requirements to 

enter them are sufficiently rigorous that they provide reasonable assurances 

of eliminating the possibility of the kind of favoritism that pay-to-play might 

undermine and because in many such cases the government initiates the 

contact. JA 218-19, pp. 139-41. The individual may be an expert (like 

plaintiff Wagner or Jonathan Tiemann), a mediator (where a private party 

must also consent and pay, JA 216, p. 132), or an investigator for the 

agency, and the individual does not even know that there is a possible 

contract under consideration. In such cases the notion that a political 

contribution even to a candidate for President, let alone to independent 

political committees, would influence the selection of a contractor is beyond 

fanciful.

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elected state officials and lobbyists who sought to influence them. 660 F.3d

at 729-30. That rationale is inapplicable here because plaintiffs are 

essentially government employees who have no means to influence their 

contracts by making contributions to any of the prohibited entities within the 

limits applicable to everyone. But most significant for the overinclusiveness argument is that, unlike under section 441c, lobbyists in North 

Carolina are entitled to contribute to PACs (up to $4000 under N.C. Stat. 

163-278.13(a)) and to recommend which candidates should receive their 

contributions. 660 F.3d at 740. 

Another example is the rule in Blount v. SEC that excluded contracts 

where there was open competitive bidding and did not count contributions 

up to $250. 61 F.3d at 940 & n.1. The concept of distinguishing small 

contributions is already a feature of FECA because only contributions 

totaling more than $200 in an election cycle must be reported to the FEC and 

the name of the contributor publicly disclosed. 2 U.S.C. §§ 431(13); 

434(b)(3)(A). That exclusion strongly supports the conclusion that no 

reasonable person would believe that a contribution of $200 or less could 

influence the award of a federal contract, even assuming that the identity of 

the contributor were made known to the recipient. Because section 441c

contains none of the exceptions found in these other statutes, and because it 

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bans contributions to entities having no connection with federal contracting, 

it is vastly over-inclusive and cannot stand under the First Amendment.

Finally, section 441c applies no matter what the source of funds is for 

the contribution. 11 C.F.R. § 115.5. In that respect it is like the condition 

struck down by the Court on First Amendment grounds in Agency for Intern.

Development v. Alliance for Open Society Intern., Inc., 133 S. Ct. 2321 

(2013), that applied not to funds received from the government, but to funds 

from any source. That decision also undermines the FEC’s theory that the 

ban is constitutional because plaintiffs “have chosen” to become government 

contractors (JA 131, ¶ 2), since the plaintiffs in Alliance had equally chosen 

to accept Government funding and did not thereby lose their First 

Amendment rights to spend their own funds as those chose.

D. Section 441c Is Under-Inclusive.

Section 441c also runs afoul of the First Amendment because it is 

significantly under-inclusive by failing to include large categories of persons 

for whom the pay-to-play rationale is at least as strong as it is for individual 

contractors such as plaintiffs. An under-inclusiveness argument does not fail 

here simply because expanding section 441c would restrict more speech. 

The Supreme Court has recognized the legitimacy of an under-inclusiveness 

inquiry in a First Amendment challenge, see Austin v. Michigan Chamber of 

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Commerce, 494 U.S. 652, 665-666 (1990), overruled on other grounds by

Citizens United, supra, although ultimately finding that there were 

significant differences between the included and excluded entities. See also 

City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994) (striking down ban on 

signs outside a home in part because it was under-inclusive based on the 

ordinance’s asserted rationale). In other words, in First Amendment cases, 

where “precision of regulation must be the touchstone,” NAACP v. Button, 

371 U.S. 415, 438 (1963), it is not a defense to a claim of under-inclusion 

that a broader law would be more restrictive of speech where that broader 

law would be more consistent with the stated rationale than the law being 

challenged. 

Procurement contracts are only one of the important ways the 

Government spends congressionally appropriated funds, which is the 

lynchpin of section 441c. In 2 C.F.R. § 180.970, the Office of Management 

and Budget provides examples of other uses of such funds; among the most 

prominent examples are grants, which are indistinguishable from contracts 

with regard to the concern that 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 

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57

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. 

Applying the theory of section 441c, a person seeking a grant might 

believe that the chance of obtaining it would be enhanced by making a 

contribution in a federal election. But grants are not covered by section 

441c or any similar law even though a 2003 study found nearly 3 million 

individuals providing services under federal grants. 

http://www.brookings.edu/~/media/research/files/articles/2003/9/05politics

%20light/light20030905.pdf. Professor Schooner testified that the 

Government gives away more money in grants in most years than it expends 

for contracts (JA 193, pp. 38-39), yet only the latter are covered by section 

441c. He also explained that the protections against improper influence 

under federal contracting law are inapplicable to federal grants. JA 193-94, 

pp. 38-42.

10 

 10 The New York City law at issue in Ognibene applied to grants in excess of 

$100,000. 671 F.3d at 180. Plaintiff Wagner is also a co-grantee from the 

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

JA 51, ¶ 4, but that does not preclude her from making political 

contributions. 

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58

Other federal financial benefits such as loans, loan guarantees, 

subsidies, and “payments for specified uses,” 2 C.F.R. § 180.970, likewise 

have no effect on recipients’ ability to make campaign contributions despite 

their potential for the reality or appearance of a quid pro quo. Loans and 

guarantees include those made for home purchases by the VA or FHA, as 

well as for “small businesses” and “economic injury disasters,” both of 

which can be as much as $2 million. http://www.govloans.gov/loans/loandetails/1497; http://www.govloans.gov/loans/loan-details/1504. Also 

included are “business and industrial loans” that can be as large as $40 

million. http://www.govloans.gov/loans/loan-details/4735. 

Pay-to-play possibilities also include admission to one of the tuitionfree military academies. See, e.g. 10 U.S.C. § 6954(a); United States Naval 

Academy, http://www.usna.edu/Admissions/steps4.htm. Among the persons 

who can make the required nominations are Members of Congress and the 

President and Vice President, to whom contributions can actually be made 

(unlike the agency officials that hired plaintiffs). 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 

 

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59

not sufficiently tailored to sustain its constitutionality against this First 

Amendment challenge.11 

There is also the well-known practice by which individuals, who hope 

to be rewarded with government positions, including coveted 

ambassadorships, make large contributions to support a presidential 

candidate or assist the campaign by bundling contributions from others. See

T.W. Farnam, “Obama Gives Administration Jobs to Some Big 

Fundraisers,” Washington Post, March 8, 2012, A15; Mark Landler, 

“Obama Rewarded ’08 Fundraisers,” New York Times, July 25, 2012, A14

(80% of bundlers of $500,000 or more appointed to Administration 

positions). These practices are much more serious examples of pay-to-play 

than contributions by individuals like plaintiffs, yet they are perfectly legal. 

Therefore, like the ban at issue in Republican Party of Minnesota v. White, 

536 U.S. 765, 780 (2002), the ban here is “so woefully underinclusive as to 

render belief in that purpose a challenge to the credulous.”

 11 Contributions can also influence discretionary decisions involving

presidential pardons for which letters from Members of Congress can be 

persuasive. See, e.g., http://www.propublica.org/article/pardon-attorneytorpedoes-plea-for-presidential-mercy (citing support of Senator Dick 

Durbin to obtain only Obama commutation). And, as the case of Marc Rich 

illustrates, although there are real incentives for individuals seeking pardons 

to make generous contributions, see http://www.propublica.org/article/theshadow-of-marc-rich, no ban like 441c applies to them, even if they are 

convicted felons who cannot vote. 

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E. The Other Arguments in Support of Section 441c

Are Unavailing.

In earlier filings, the FEC attempted to downplay the impact of the 

ban by suggesting that plaintiffs can express their preferences in federal 

elections by hosting fundraisers for candidates and soliciting contributions 

for them, as well as providing other valuable services pursuant to 2 U.S.C. 

§§ 431(8)(B)(ii) & (iv). JA 180, ¶¶ 138-141. But on remand, its proposed 

findings omit those paragraphs from their prior place in Section IX. See JA 

329. Even though the FEC has apparently changed its mind since its earlier 

filings, the law remains unchanged. It remains true today that plaintiffs can 

host fundraisers at which millions of dollars are raised, but may not 

contribute $100 themselves. It is understandable that the FEC would now 

omit this alternative because the argument that plaintiffs can host

fundraisers, where very large contributors can be invited and solicited, 

without raising the pay-to-play specter, but that contributing $10 to the same

candidate would create the appearance of improper influence, has it 

precisely backwards. This does not show why contributions can be banned; 

it shows why the ban cannot survive meaningful scrutiny.12

 12 The SEC rule in Blount addressed this very problem and expressly forbade 

covered persons from engaging in fundraising, recognizing that fundraisers 

can be at least as beneficial to the candidate as contributions. 61 F.3d at 

940. 

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More fundamentally, the answer to the FEC’s argument 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. 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 or even ban on 

contributions would ever be struck down because there are always 

alternative ways to support a candidate, party, or cause.

Finally, it might be argued that Congress has made a “reasonable 

legislative judgment” that the contribution limits applicable to all individuals

were not adequate to protect the federal interest allegedly advanced by 

applying the ban in section 441c to individual federal contractors. The main 

difficulty with that assertion is that all legislative judgments are subordinate 

to the Constitution. Moreover, that argument assumes that Congress 

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62

actually considered the issue, but there is nothing to support that hypothesis. 

Congress imposed the ban on contractor contributions in 1940, and the only 

changes to that provision since then have made it easier for corporations to 

make contributions, through their PACs. Even when Congress implemented 

the current contribution system in 1971, and imposed contribution limits on 

all individuals, it never considered making those limits applicable to 

individual contractors. And when it loosened restrictions in the Hatch Act 

after 1940, it never considered loosening or eliminating the ban in section 

441c applicable to plaintiffs and others. JA 143-44, ¶¶ 34-35. Cf. Miller v. 

Alabama, 132 S. Ct. 2455, 2472 (2012) (mandatory sentences of life without 

parole for juveniles resulting from the interaction of separate statutes 

enacted at different times make it “impossible to say whether a legislature 

had endorsed a given penalty for children (or would do so if presented with 

the choice)”). The continued adherence to an absolute ban for individuals 

under section 441c is in marked contrast to the “careful adjustment of the 

federal electoral laws” upheld in FEC v. National Right to Work Committee, 

459 U.S. 197, 209 (1982).

In sum, even if a considered legislative judgment could overcome the 

kind of constitutional problems that exist here, the special ban imposed on 

individual contractors is entirely one of happenstance that has never been 

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63

considered, let alone reconsidered in light of other directly relevant changes 

in campaign finance and federal procurement law since the ban was enacted 

in 1940. The First Amendment does not dictate any single change, or even a 

combination of changes, that are needed to save section 441c, but the failure 

to include any ameliorating features, or to include within its reach other 

federal programs with comparable pay-to-play potential, demonstrates why 

the law is not closely enough drawn to be upheld. As the Supreme 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.”

CONCLUSION

For the foregoing reasons, judgment should be entered for plaintiffs.

Respectfully submitted,

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

(202) 994 5157 (Fax)

abmorrison@law.gwu.edu

USCA Case #13-5162 Document #1445083 Filed: 07/03/2013 Page 73 of 83
64

Arthur B. Spitzer

American Civil Liberties Union 

 of the Nation’s Capital

4301 Connecticut Ave, N.W., Suite 434

Washington, D.C. 20008

(202) 457 0800

(202) 457 0805 (fax)

artspitzer@aclu-nca.org

Counsel for Plaintiffs

July 3, 2013

USCA Case #13-5162 Document #1445083 Filed: 07/03/2013 Page 74 of 83
No. 13-5162

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Civil Procedure 32(a)(7)(C), I hereby 

certify this 3rd day of July 2013 that the foregoing Brief of PlaintiffsAppellants, has a typeface of 14 points and, as calculated by my wordprocessing software (Microsoft Word), contains 13,943 words.

/s/ Alan B. Morrison

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

USCA Case #13-5162 Document #1445083 Filed: 07/03/2013 Page 75 of 83
No. 13-5162

CERTIFICATE OF SERVICE

I hereby certify that I served and filed the Joint Appendix and Brief of 

the Plaintiffs this 3rd day of July 2013 with the Clerk of the Court of United 

States Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF 

system. Service was made on the following through the CM/ECF system:

Seth Nesin J. Gerald Hebert

Federal Election Commission The Campaign Legal Center

999 E Street, NW 215 E. Street, NE

Washington, DC 20463 Washington DC 20002

Counsel for the FEC Counsel for Amici

Copies of the Brief and Joint Appendix were also served by first class 

mail on Counsel for the FEC and Amici on this date.

/s/ Alan B. Morrison

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

USCA Case #13-5162 Document #1445083 Filed: 07/03/2013 Page 76 of 83
i

STATUTORY ADDENDUM

2 U.S.C. § 441c, Contributions by government contractors

(a) Prohibition

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. 

(b) Separate segregated funds

This section does not prohibit or make unlawful the establishment or 

administration of, or the solicitation of contributions to, any separate 

segregated fund by any corporation, labor organization, membership 

organization, cooperative, or corporation without capital stock for the 

purpose of influencing the nomination for election, or election, of any person 

to Federal office, unless the provisions of section 441b of this title prohibit 

or make unlawful the establishment or administration of, or the solicitation 

of contributions to, such fund. Each specific prohibition, allowance, and 

duty applicable to a corporation, labor organization, or separate segregated 

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ii

fund under section 441b of this title applies to a corporation, labor 

organization, or separate segregated fund to which this subsection applies.

(c) “Labor organization” defined

For purposes of this section, the term “labor organization” has the meaning 

given it by section 441b(b)(1) of this title.

2 U.S.C. § 441b, Contributions or expenditures by national banks, 

corporations, or labor organizations

(a) In general

It is unlawful for any national bank, or any corporation organized by 

authority of any law of Congress, to make a contribution or expenditure in 

connection with any election to any political office, or in connection with 

any primary election or political convention or caucus held to select 

candidates for any political office, or for any corporation whatever, or any 

labor organization, to make a contribution or expenditure in connection with 

any election at which presidential and vice presidential electors or a Senator 

or Representative in, or a Delegate or Resident Commissioner to, Congress 

are to be voted for, or in connection with any primary election or political 

convention or caucus held to select candidates for any of the foregoing 

offices, or for any candidate, political committee, or other person knowingly 

to accept or receive any contribution prohibited by this section, or any 

officer or any director of any corporation or any national bank or any officer 

of any labor organization to consent to any contribution or expenditure by 

the corporation, national bank, or labor organization, as the case may be, 

prohibited by this section.

(b) Definitions; particular activities prohibited or allowed

(1) For the purposes of this section the term “labor organization” means any 

organization of any kind, or any agency or employee representation 

committee or plan, in which employees participate and which exists for the 

purpose, in whole or in part, of dealing with employers concerning 

grievances, labor disputes, wages, rates of pay, hours of employment, or 

conditions of work.

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iii

(2) For purposes of this section and section 79l(h) of Title 15, the term 

“contribution or expenditure” includes a contribution or expenditure, as 

those terms are defined in section 431 of this title, and also includes any 

direct or indirect payment, distribution, loan, advance, deposit, or gift of 

money, or any services, or anything of value (except a loan of money by a 

national or State bank made in accordance with the applicable banking laws 

and regulations and in the ordinary course of business) to any candidate, 

campaign committee, or political party or organization, in connection with 

any election to any of the offices referred to in this section or for any 

applicable electioneering communication, but shall not include (A) 

communications by a corporation to its stockholders and executive or 

administrative personnel and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and 

get-out-the-vote campaigns by a corporation aimed at its stockholders and 

executive or administrative personnel and their families, or by a labor 

organization aimed at its members and their families; and (C) the 

establishment, administration, and solicitation of contributions to a separate 

segregated fund to be utilized for political purposes by a corporation, labor 

organization, membership organization, cooperative, or corporation without 

capital stock.

(3) It shall be unlawful--

(A) for such a fund to make a contribution or expenditure by utilizing money 

or anything of value secured by physical force, job discrimination, financial 

reprisals, or the threat of force, job discrimination, or financial reprisal; or by 

dues, fees, or other moneys required as a condition of membership in a labor 

organization or as a condition of employment, or by moneys obtained in any 

commercial transaction; 

(B) for any person soliciting an employee for a contribution to such a fund to 

fail to inform such employee of the political purposes of such fund at the 

time of such solicitation; and 

(C) for any person soliciting an employee for a contribution to such a fund to 

fail to inform such employee, at the time of such solicitation, of his right to 

refuse to so contribute without any reprisal. 

(4)(A) Except as provided in subparagraphs (B), (C), and (D), it shall be 

unlawful--

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iv

(i) for a corporation, or a separate segregated fund established by a 

corporation, to solicit contributions to such a fund from any person other 

than its stockholders and their families and its executive or administrative 

personnel and their families, and 

(ii) for a labor organization, or a separate segregated fund established by a 

labor organization, to solicit contributions to such a fund from any person 

other than its members and their families. 

(B) It shall not be unlawful under this section for a corporation, a labor 

organization, or a separate segregated fund established by such corporation 

or such labor organization, to make 2 written solicitations for contributions 

during the calendar year from any stockholder, executive or administrative 

personnel, or employee of a corporation or the families of such persons. A 

solicitation under this subparagraph may be made only by mail addressed to 

stockholders, executive or administrative personnel, or employees at their 

residence and shall be so designed that the corporation, labor organization, 

or separate segregated fund conducting such solicitation cannot determine 

who makes a contribution of $50 or less as a result of such solicitation and 

who does not make such a contribution.

(C) This paragraph shall not prevent a membership organization, 

cooperative, or corporation without capital stock, or a separate segregated 

fund established by a membership organization, cooperative, or corporation 

without capital stock, from soliciting contributions to such a fund from 

members of such organization, cooperative, or corporation without capital 

stock.

(D) This paragraph shall not prevent a trade association or a separate 

segregated fund established by a trade association from soliciting 

contributions from the stockholders and executive or administrative 

personnel of the member corporations of such trade association and the 

families of such stockholders or personnel to the extent that such solicitation 

of such stockholders and personnel, and their families, has been separately 

and specifically approved by the member corporation involved, and such 

member corporation does not approve any such solicitation by more than 

one such trade association in any calendar year.

(5) Notwithstanding any other law, any method of soliciting voluntary 

contributions or of facilitating the making of voluntary contributions to a 

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v

separate segregated fund established by a corporation, permitted by law to 

corporations with regard to stockholders and executive or administrative 

personnel, shall also be permitted to labor organizations with regard to their 

members.

(6) Any corporation, including its subsidiaries, branches, divisions, and 

affiliates, that utilizes a method of soliciting voluntary contributions or 

facilitating the making of voluntary contributions, shall make available such 

method, on written request and at a cost sufficient only to reimburse the 

corporation for the expenses incurred thereby, to a labor organization 

representing any members working for such corporation, its subsidiaries, 

branches, divisions, and affiliates.

(7) For purposes of this section, the term “executive or administrative 

personnel” means individuals employed by a corporation who are paid on a 

salary, rather than hourly, basis and who have policymaking, managerial, 

professional, or supervisory responsibilities.

(c) Rules relating to electioneering communications [omitted]

2 U.S.C. § 432(e) (5) 

The name of any separate segregated fund established pursuant to section 

441b(b) of this title shall include the name of its connected organization.

18 U.S.C. § 601. Deprivation of employment or other benefit for political 

contribution

(a) Whoever, directly or indirectly, knowingly causes or attempts to cause 

any person to make a contribution of a thing of value (including services) 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--

(1) any employment, position, or work in or for any agency or other entity of 

the Government of the United States, a State, or a political subdivision of a 

State, or any compensation or benefit of such employment, position, or 

work; or 

(2) any payment or benefit of a program of the United States, a State, or a 

political subdivision of a State; 

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vi

if such employment, position, work, compensation, payment, or benefit is 

provided for or made possible in whole or in part by an Act of Congress, 

shall be fined under this title, or imprisoned not more than one year, or both.

18 U.S.C. § 603. Making political contributions

(a) It shall be unlawful for an officer or employee of the United States or any 

department or agency thereof, or a person receiving any salary or 

compensation for services from money derived from the Treasury of the 

United States, to make any contribution within the meaning of section 

301(8) of the Federal Election Campaign Act of 1971 to any other such 

officer, employee or person or to any Senator or Representative in, or 

Delegate or Resident Commissioner to, the Congress, if the person receiving 

such contribution is the employer or employing authority of the person 

making the contribution. Any person who violates this section shall be fined 

under this title or imprisoned not more than three years, or both.

18 U.S.C. § 606. Intimidation to secure political contributions

Whoever, being one of the officers or employees of the United States 

mentioned in section 602 of this title, discharges, or promotes, or degrades, 

or in any manner changes the official rank or compensation of any other 

officer or employee, or promises or threatens so to do, for giving or 

withholding or neglecting to make any contribution of money or other 

valuable thing for any political purpose, shall be fined under this title or 

imprisoned not more than three years, or both.

18 U.S.C. § 610. Coercion of political activity

It shall be unlawful for any person to intimidate, threaten, command, or 

coerce, or attempt to intimidate, threaten, command, or coerce, any 

employee of the Federal Government as defined in section 7322(1) of title 5, 

United States Code, to engage in, or not to engage in, any political activity, 

including, but not limited to, voting or refusing to vote for any candidate or 

measure in any election, making or refusing to make any political 

contribution, or working or refusing to work on behalf of any candidate. Any 

person who violates this section shall be fined under this title or imprisoned 

not more than three years, or both.

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vii

5 C.F.R. § 734.208(a). 

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.

48 C.F.R. 1.601 General.

(a) Unless specifically prohibited by another provision of law, authority and 

responsibility to contract for authorized supplies and services are vested in 

the agency head. The agency head may establish contracting activities and 

delegate broad authority to manage the agency's contracting functions to 

heads of such contracting activities. Contracts may be entered into and 

signed on behalf of the Government only by contracting officers. In some 

agencies, a relatively small number of high level officials are designated 

contracting officers solely by virtue of their positions. Contracting officers 

below the level of a head of a contracting activity shall be selected and 

appointed under 1.603.

48 C.F.R. 1.603–1 General.

Subsection 414(4) of title 41, United States Code, requires agency heads to 

establish and maintain a procurement career management program and a 

system for the selection, appointment, and termination of appointment of 

contracting officers. Agency heads or their designees may select and appoint 

contracting officers and terminate their appointments. These selections and 

appointments shall be consistent with Office of Federal Procurement 

Policy's (OFPP) standards for skill-based training in performing contracting 

and purchasing duties as published in OFPP Policy Letter No. 05–01, 

Developing and Managing the Acquisition Workforce, April 15, 2005.

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