ORAL ARGUMENT SCHEDULED SEPTEMBER 30, 2013

No. 13-5162

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, Case No. 1:11-cv08841 JEB

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL CENTER, 

DEMOCRACY 21 AND PUBLIC CITIZEN

IN SUPPORT OF DEFENDANT

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

(202) 682-0240

Counsel for Amici Curiae

 

J. Gerald Hebert

Tara Malloy

Paul S. Ryan

Megan McAllen

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

Scott L. Nelson

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Amici Curiae

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

(A) Parties and Amici. Wendy E. Wagner, Lawrence M. E. Brown, and Jan 

W. Miller are the plaintiffs in this Court. The Federal Election Commission (FEC) 

is the defendant in this Court. 

The Campaign Legal Center and Democracy 21 filed a brief as amici curiae

in the district court; the Campaign Legal Center and Democracy 21, joined by 

Public Citizen, are now filing a brief as amici curiae in this Court supporting the 

defendant. In addition, the Cato Institute and the Center for Competitive Politics 

have filed a brief as amici curiae in support of the plaintiffs in this Court.

(B) 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 (J.A.) at 345-357.

(C) 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. J.A. 243-262, 2013 WL 2361005. The 

amici are aware of no “related cases” as defined in D.C. Cir. R. 28(a)(1)(C).

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

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CORPORATE DISCLOSURE STATEMENT OF 

AMICI CURIAE CAMPAIGN LEGAL CENTER, DEMOCRACY 21 AND 

PUBLIC CITIZEN

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae

Campaign Legal Center, Democracy 21 and Public Citizen make the following 

disclosure regarding their corporate status:

The Campaign Legal Center (CLC) is a nonprofit, nonpartisan corporation 

working in the areas of campaign finance reform, voting rights and media law. 

The CLC has no parent corporation and no publicly held corporation has any form 

of ownership interest in the CLC. 

Democracy 21 is a nonprofit, nonpartisan corporation dedicated to making 

democracy work for all Americans, including promoting campaign finance reform 

and other political reforms to accomplish these goals. Democracy 21 has no parent 

corporation and no publicly held corporation has any form of ownership interest in 

Democracy 21.

Public Citizen, Inc. is a nonprofit corporation dedicated to openness in 

government and the protection of individuals against overreaching by government 

and corporate entities alike. Public Citizen has no parent corporation and no 

publicly held corporation has any form of ownership interest in it.

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/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.........i

CORPORATE DISCLOSURE STATEMENT.................................................... ii

TABLE OF AUTHORITIES .................................................................................vi

STATEMENT OF INTEREST...............................................................................1

INTRODUCTION & SUMMARY OF ARGUMENT .........................................1

ARGUMENT............................................................................................................4

I. A Review of State and Local Laws Demonstrates That Legislatures 

Nationwide Have Recognized the Potential for Corruption Posed by 

Campaign Contributions by Government Contractors...............................4

A. State and Local Laws Limiting Government Contractor 

Contributions Reflect a Shared Interest in Safeguarding the 

Integrity of Government Contracting...............................................4

B. Enactment of State Contractor Contribution Regulations Is 

Often Prompted by Instances of Quid Pro Quo Corruption in 

Contracting.......................................................................................7

C. Courts Have Widely Held That Restricting Government 

Contractor Contributions Is an Appropriate Defense Against

Actual and Apparent Corruption......................................................9

II. The Federal Contractor Contribution Ban is Constitutional ....................13

A. Strict Scrutiny Does Not Apply. ....................................................13

B. Section 441c Advances the Important Government Interest in

Preventing Actual and Apparent Corruption in Federal 

Contracting.....................................................................................15

C. Section 441c Is Closely Drawn to Advance the Government’s 

Anti-Corruption Interest.................................................................18

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1. Section 441c’s Application to Contributions to Federal 

Candidates, Party Committees and Political Action 

Committees Serves Important Anti-Corruption 

Interests................................................................................19

2. Section 441c Applies to the Contracting Entity Only..........23

3. Section 441c Is a Prohibition Targeted at a Particular 

Risk.......................................................................................25

D. Section 441c Is Not Underinclusive...............................................28

CONCLUSION.......................................................................................................30

CERTIFICATE OF COMPLIANCE ..................................................................32

CERTIFICATE OF SERVICE ............................................................................33

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TABLE OF AUTHORITIES

*Cases and authorities chiefly relied upon are marked with an asterisk.

Cases:

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ....................................................17, 28

*Buckley v. Valeo, 424 U.S. 1 (1976)..............................................14, 17, 28, 29, 30

Casino Ass’n of La. v. State ex rel. Foster, 820 So.2d 494 (La. 2002) ...................11

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981).........................................................22

Citizens United v. FEC, 558 U.S. 310 (2010)......................................................1, 24

Dallman v. Ritter, 225 P.3d 610 (Colo. 2010).........................................................12

DePaul v. Commonwealth, 969 A.2d 536 (Pa. 2009)..............................................13

FEC v. Beaumont, 539 U.S. 146 (2003)............................................................13, 14

FCC v. League of Women Voters, 468 U.S. 364 (1984)..........................................28

FEC v. Weinstein, 462 F. Supp. 243 (D.C. Cir. 1978) ...................................... 15-16

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001)................16

Green Party of Connecticut v. Garfield, 616 F.3d 189 

(2d Cir. 2010)........................................................................................... 9-10, 18, 26

Ill. Liberty PAC v. Madigan, 902 F. Supp. 2d 1113, 1126 (N.D. Ill. 2012)..............2

In Re Earle Asphalt Co., 950 A.2d 918 (N.J. Super. App. Div. 2008), aff’d, 

966 A.2d 460 (N.J. 2009) (per curiam)....................................................................11

Lavin v. Husted, 684 F.3d 543 (6th Cir. 2012)........................................................13

*McConnell v. FEC, 540 U.S. 93 (2003)..................................... 1, 14, 17, 22, 26-27

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000)......................................3

Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011)...............................10, 17, 21, 30

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011).......................................................18

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Schiller Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61 (Ill. 1976)........................12

Shelby County v. Holder, 133 S. Ct. 2612 (2013) ............................................. 16-17

Soto v. New Jersey, 565 A.2d 1088 (N.J. 1989)......................................................11

United Auto Workers, Local Union 1112 v. Brunner, 911 N.E. 2d 327 (Ohio 

Ct. App. 2009)..........................................................................................................13

United States v. Warner, 498 F.3d 666 (7th Cir. 2007).............................................7

United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012), cert. denied, 133 

S. Ct. 1459 (Feb. 25, 2013)......................................................................................13

*Yamada v. Weaver, 872 F. Supp. 2d 1023 (D. Haw. 2012), appeal 

docketed, No. 12-15913 (9th Cir. Apr. 20, 2012)..................... 10, 11, 15, 20, 21, 26

Statutes and Regulations:

2 U.S.C. § 441c ........................................................................................................15

2 U.S.C. § 441a(a)(4)...............................................................................................22

2 U.S.C. § 441a(d) ...................................................................................................22

2 U.S.C. § 441b(b)(4)...............................................................................................24

2 U.S.C. § 441f.........................................................................................................27

Cal. Gov’t Code § 84308. ...................................................................................... 4-6

Conn. Gen. Stat. § 9-612(f)(1) ..............................................................................4, 6

Conn. Gen. Stat. § 9-612(f)(2) ..............................................................................4, 6

Conn. Gen. Stat. § 9-612(f)(1)(C)..............................................................................6

Conn. Gen. Stat. § 9-612(f)(1)(C)-(E).......................................................................6

Conn. Gen. Stat. § 9-612(f)(1)(D) ...........................................................................21

Conn. Gen. Stat. § 9-612(f)(1)(F)............................................................................21

Haw. Rev. Stat. § 11-355 .................................................................................4, 6, 11

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30 Ill. Comp. Stat. 500/50-37.....................................................................................4

30 Ill. Comp. Stat. 500/50-37(a)................................................................................6

Ind. Code § 4-30-3-19.5.........................................................................................4, 6

Ind. Code § 4-30-3-19.7.........................................................................................4, 6

Ind. Code § 4-30-3-19.7(e) ........................................................................................6

Ind. Code § 4-30-3-19.7(f).........................................................................................6

Ind. Code § 4-30-3-19.7(j).........................................................................................6

Ky. Rev. Stat. Ann. § 121.330 ...............................................................................4, 6

Ky. Rev. Stat. Ann. § 121.330(2) ..............................................................................6

L.A., Cal., City Charter § 470(c)(12).........................................................................5

La. Rev. Stat. Ann. § 18:1505.2(L)............................................................................4

La. Rev. Stat. Ann. § 27:261..................................................................................4, 6

Md. Code, Elec. Law § 14-101-108...........................................................................5

Mich. Comp. Laws § 432.207b..................................................................................4

Neb. Rev. Stat. § 9-803..............................................................................................4

Neb. Rev. Stat. § 9-835..............................................................................................6

Neb. Rev. Stat. § 49-1476.01.....................................................................................4

Neb. Rev. Stat. § 49-1476.01(1) ................................................................................6

N.J. Stat. Ann. § 19:44A-20.13, et seq. .................................................................4, 6

N.J. Stat. Ann. § 19:44A-20.14..................................................................................6

N.M. Stat. Ann. § 13-1-191.1 ....................................................................................6

N.M. Stat. Ann. § 13-1-191.1(E)...............................................................................4

N.M. Stat. Ann. § 13-1-191.1(F) ...............................................................................4

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N.Y.C. Admin. Code § 3-702(18)..............................................................................5

N.Y.C. Admin. Code § 3-703(1-a) ........................................................................5, 6

N.Y.C. Admin. Code § 3-703(1-b)............................................................................5

Ohio Rev. Code Ann. § 3517.13(I)-(Z) .....................................................................5

Ohio Rev. Code Ann. § 3517.093(A)(4) ...................................................................6

R.I. Gen. Laws § 17-27-2...........................................................................................5

R.I. Gen. Laws § 17-27-3...........................................................................................5

S.C. Code Ann. § 8-13-1342..................................................................................5, 6

Vt. Stat. Ann. tit. 32, § 109 ........................................................................................5

Va. Code Ann. § 2.2-3104.01 ................................................................................5, 6

W. Va. Code Ann. § 3-8-12 .......................................................................................6

W. Va. Code Ann. § 3-8-12(d) ..............................................................................5, 6

2008 Ill. Pub. Act No. 95-971 (Sept. 28, 2008).........................................................7

N. J. Pub. L. 2005, c. 51.............................................................................................8

Administrative Rules and Materials:

11 C.F.R. § 110.3(c).................................................................................................22

11 C.F.R. § 110.4(b) ................................................................................................27

11 C.F.R. § 114.5 .....................................................................................................24

5 C.F.R. § 734.303 ...................................................................................................29

5 C.F.R. §§ 734.401, et seq......................................................................................29

Mun. Sec. Rulemaking Bd. rule G-37 .......................................................................6

N.J. Admin. Code § 19:25-24.1 .................................................................................6

N.J. Admin. Code § 19:25-24.2 .................................................................................6

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Less Restricted Employees—Political Restrictions and Prohibited Activities, 

U.S. Office of Special Counsel, 

http://www.osc.gov/haFederalLessRestrisctionandActivities.htm..........................29

N.J. Comm’n of Investigation, N.J. Enhanced Motor Vehicle Inspection 

Contract, at 1-2 (2002), http://www.state.nj.us/sci/pdf/mvinspect.pdf ................. 8-9

Miscellaneous Resources:

Jack Maskell, Cong. Research Serv., RL 34725, Political Activities of 

Private Recipients of Federal Grants or Contracts (Oct. 21, 2008).......................29

Mike McIntire & Jeff Zeleny, Obama’s Effort on Ethics Bill Had Role in 

Governor’s Fall, N.Y. Times, Dec. 9, 2008, 

http://www.nytimes.com/2008/12/10/us/politics/10chicago.html?pagewanted

=all.......................................................................................................................... 7-8

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STATEMENT OF INTEREST1

Amici curiae Campaign Legal Center, Democracy 21 and Public Citizen are 

nonprofit organizations that work to strengthen the laws governing campaign 

finance. Amici have participated in several of the Supreme Court cases underlying 

the claims herein, including McConnell v. FEC, 540 U.S. 93 (2003), and Citizens 

United v. FEC, 558 U.S. 310 (2010). Amici have a demonstrated interest in the 

issues raised here. 

All parties have consented to amici’s participation in this case.

INTRODUCTION & SUMMARY OF ARGUMENT

In 1940, Congress enacted a restriction on campaign contributions from 

persons and entities contracting with the federal government in response to

corruption in federal contracting, most notably the “Democratic campaign book” 

scandal. See, e.g., J.A. 232. Plaintiffs Wagner, et al. (the “Wagner contractors”) 

make no arguments that would justify the invalidation of this 70-year old statute. 

The Wagner contractors object that Section 441c is unsupported by any 

current evidence of corruption in federal contracting, that it is both overbroad and 

underinclusive, and that it violates principles of equal protection. In this Brief, 

 

1 No party or party’s counsel authored this brief in whole or in part, and no 

person, other than the amici curiae, contributed money intended to fund the 

preparation or submission of this brief.

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amici curiae will focus on the Wagner contractors’ arguments about the evidence 

of corruption and the statute’s tailoring. 

Amici will not separately analyze the equal protection argument because it

duplicates plaintiffs’ First Amendment argument, and as plaintiffs admitted below,

they “kn[o]w of no case in which an equal-protection challenge to contribution 

limits succeeded where a First Amendment one did not.” J.A. 240. See also Ill.

Liberty PAC v. Madigan, 902 F. Supp. 2d 1113, 1126 (N.D. Ill. 2012) (noting that 

“it makes no difference whether a challenge to the disparate treatment of speakers 

or speech is framed under the First Amendment or the Equal Protection Clause”) 

(collecting cases). Indeed, the only apparent reason for the inclusion of an equal 

protection claim is the Wagner contractors’ desire for the application of a higher 

level of scrutiny than the “closely drawn” review that has been consistently applied 

in challenges to contribution limits. But “[i]f that goal could be accomplished 

simply by switching [their] analysis from the First Amendment to the Equal 

Protection Clause,” surely this “course” would have been accepted in past 

campaign finance challenges. Id. at 1125. 

In support of their First Amendment challenge, plaintiffs assert that there is 

no current evidence of federal officeholders steering government contracts to their 

contributors, suggesting that the record of corruption here is inferior to the 

evidence that led to the enactment of recent state contractor contribution 

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restrictions. Brief for Plaintiffs (“Wagner Br.”) 47-48. But their complaint rings 

hollow, because this allegedly “[in]defensible” absence of evidence is proof of the 

statute’s success, not its infirmity. Given that the federal ban has been in place for 

over 70 years, it has effectively prevented the very corruption that the Wagner 

contractors claim is lacking—a point they concede. Id. at 47. Moreover, insofar as 

instances of recent corruption would aid the consideration of this challenge, this 

Court can look to the experience of numerous states and municipalities that have 

enacted pay-to-play laws. See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 

391 (2000) (sustaining state contribution limits in part based on the record of 

apparent corruption in federal elections that led to enactment of federal limits). A 

survey of state law illustrates the ubiquity of contracting scandals at all levels of 

government and confirms that the corruption concerns that attend contributions by 

government contractors are well-founded. 

Second, the Wagner contractors devote much of their argument to 

challenging the tailoring of section 441c, listing various defects that supposedly 

render the law both overbroad and underinclusive, and attacking details from the 

law’s coverage of “sole source” contracts to its exclusion of military academy 

students. Wagner Br. 50-60. Indeed, the Wagner contractors’ brief reads more 

like a policy paper than a constitutional argument. Their objections to the minutiae 

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of the statute, however, are more appropriately directed to Congress than to a

court.

For these reasons, amici urge this court to find in favor of the FEC on all 

certified questions raised in this en banc proceeding.

ARGUMENT

I. A Review of State and Local Laws Demonstrates That Legislatures 

Nationwide Have Recognized the Potential for Corruption Posed by 

Campaign Contributions by Government Contractors. 

The prevalence of state and municipal pay-to-play laws, many passed in 

direct response to scandals involving quid pro quo exchanges, demonstrates that 

campaign activity by contractors and prospective contractors is widely and 

reasonably perceived to pose a threat of political corruption.

A. State and Local Laws Limiting Government Contractor 

Contributions Reflect a Shared Interest in Safeguarding the 

Integrity of Government Contracting.

In recent years, a growing number of states and localities have taken steps to 

limit the role of political contributions in government contracting. At least 

seventeen states have enacted limits or prohibitions on campaign contributions 

from prospective and/or current government contractors or licensees.2 A number 

 

2

 Cal. Gov’t Code § 84308(d); Conn. Gen. Stat. § 9-612(f)(1)-(2); Haw. Rev. 

Stat. § 11-355; 30 Ill. Comp. Stat. 500/50-37; Ind. Code §§ 4-30-3-19.5 to -19.7; 

Ky. Rev. Stat. Ann. § 121.330; La. Rev. Stat. Ann. §§ 18:1505.2(L), 27:261(D); 

Mich. Comp. Laws § 432.207b; Neb. Rev. Stat. §§ 9-803, 49-1476.01; N.J. Stat. 

Ann. § 19:44A-20.13 to -20.14; N.M. Stat. Ann. § 13-1-191.1(E)-(F); Ohio Rev. 

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of municipalities, including New York City and Los Angeles, have followed suit.3 

Two more states, Maryland and Rhode Island, have political disclosure 

requirements specific to contractors.

4

 

Pay-to-play laws vary greatly from one jurisdiction to the next. Some 

statutes apply to a broad range of contracts and cover grants, licenses and other 

individualized state benefits,5 while others are targeted to particular types of 

contracts. States variously define the subject class of contracts as, inter alia, 

 

Code § 3517.13(I) to (Z); 53 Pa. Cons. Stat. § 895.704-A(a); S.C. Code Ann. § 8-

13-1342; Vt. Stat. Ann. tit. 32, § 109(B); Va. Code Ann. § 2.2-3104.01 (amended 

by Va. Acts 2013, Ch. 583 (eff. July 1, 2014)); W. Va. Code § 3-8-12(d).

3

 N.Y.C. Admin. Code §§ 3-702(18), 3-703(1-a) to (1-b); L.A., Cal., City 

Charter § 470(c)(12). 

4

 See Md. Code, Elec. Law §§ 14-101 to 14-108 (amended by 2013 Md.

Laws, Ch. 419 (eff. Jan. 1, 2015)); R.I. Gen. Laws §§ 17-27-2 to -3. Several of the 

states that restrict contractor campaign contributions also require contractors to file 

disclosure reports. See, e.g., 25 Pa. Cons. Stat. § 3260a(a).

5

See, e.g., N.Y.C. Admin. Code § 3-702(18) (defining “business dealings 

with the city” to include contracts, real property transactions with the City,

franchises, concessions, grants, pension fund investment contracts, economic 

development agreements, and land use actions); Cal. Gov’t Code § 84308(a)(5) 

(defining covered entitlements as “business, professional, trade and land use 

licenses and permits and all other entitlements for use, . . . and all franchises”).

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industry-specific contracts,6contracts not subject to competitive bidding,

7

or both 

competitive and no-bid contracts.8 

Many states’ laws cover contracts for personal services, such as the 

consulting contracts of appellants Brown and Miller, although there is some 

variation: a few state statutes regulate specific subgroups of contracts or licenses 

that do not include contracts for personal services,9but most either define 

“contracts” broadly enough to include service contracts,10 or explicitly cover 

contracts for “services” or “personal services.”11 

 

6

See, e.g., Ind. Code §§ 4-30-3-19.5 to -19.7 (state lottery contracts); La. Rev. 

Stat. Ann. § 27:261 (casino licensees); Neb. Rev. Stat. §§ 9-835, 49-1476.01(1) 

(state lottery contracts).

7

See, e.g., Cal. Gov’t Code § 84308(a)(5); Ky. Rev. Stat. Ann. § 121.330; 

S.C. Code Ann. § 8-13-1342; Va. Code Ann. § 2.2-3104.01. See also Mun. Sec. 

Rulemaking Bd. rule G-37.

8

See, e.g., Conn. Gen. Stat. § 9-612(f)(1)(C); Haw. Rev. Stat. § 11-355(a); 30 

Ill. Comp. Stat. 500/50-37(a) (excluding highway projects eligible for federal 

funds); N.J. Stat. Ann. § 19:44A-20.13, et seq. (excluding federal highway projects 

and those involving eminent domain); N.M. Stat. Ann. § 13-1-191.1; Ohio Rev. 

Code Ann. § 3517.093(A)(4); W. Va. Code Ann. § 3-8-12.

9

See, e.g., Cal. Gov’t Code § 84308(a)(5).

10 See, e.g., Ky. Rev. Stat. Ann. § 121.330(2); S.C. Code Ann. § 8-13-1342.

11 See Conn. Gen. Stat. § 9-612(f)(1)(C)-(E), (f)(2); Haw. Rev. Stat. § 11-

355(a); Ind. Code § 4-30-3-19.7(e), (f), (j); N.J. Stat. Ann. § 19:44A-20.14; see 

also N.J. Admin. Code §§ 19:25-24.1 to -24.2; W.Va. Code Ann. § 3-8-12(d). See 

also N.Y.C. Admin. Code §§ 3-702(18), 3-703(1-a).

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B. Enactment of State Contractor Contribution Regulations Is Often 

Prompted by Instances of Quid Pro Quo Corruption in 

Contracting.

As was true of section 441c when it was enacted in 1940, state and 

municipal pay-to-play laws have frequently been enacted in response to scandals 

involving attempts by contractors to purchase influence over procurement 

processes by making or soliciting campaign contributions. 

For instance, Illinois’ government-contractor contribution ban was enacted 

in the wake of repeated pay-to-play scandals. While serving as Illinois’ Secretary 

of State in the 1990s, Governor George Ryan steered leases and contracts to 

businesses controlled by an associate in exchange for kickbacks, including 

financial support for Ryan’s successful 1998 gubernatorial campaign. United 

States v. Warner, 498 F.3d 666, 675 (7th Cir. 2007). He was ultimately convicted 

of 18 felony charges including racketeering and fraud. Id. In the wake of Ryan’s 

conviction and other pay-to-play abuses, Illinois legislators enacted a statecontractor contribution ban, see 2008 Ill. Pub. Act No. 95-971 (Sept. 28, 2008), 

over the fervent opposition of Ryan’s successor, then-Governor Rod Blagojevich. 

According to testimony at Blagojevich’s first trial, after his veto failed, 

Blagojevich sought to raise as much money from state contractors as possible 

before the law’s January 1, 2009 effective date. Mike McIntire & Jeff Zeleny, 

Obama’s Effort on Ethics Bill Had Role in Governor’s Fall, N.Y. Times, Dec. 9, 

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2008, 

http://www.nytimes.com/2008/12/10/us/politics/10chicago.html?pagewanted=all. 

Federal agents were tipped off to the Governor’s redoubled fundraising efforts, and 

their ensuing wiretap recorded his most spectacular feat of “pay-to-play”—his 

attempt to sell the U.S. Senate seat being vacated by President-elect Obama. Id.

Passage of New Jersey’s contractor contribution ban in 2005 also followed 

contractor corruption scandals. See N.J. Pub. L. 2005, c. 51. One of the largest 

involved the award of an almost $400 million contract to Parsons Infrastructure & 

Technology Group to privatize automobile inspections. Although the contract was 

required to be awarded through a competitive bidding process, Parsons was the 

sole bidder. See N.J. Comm’n of Investigation, N.J. Enhanced Motor Vehicle 

Inspection Contract, at 1-2 (2002), http://www.state.nj.us/sci/pdf/mvinspect.pdf. 

The system broke down weeks after its launch—with cost overruns exceeding 

$200 million—prompting an investigation that revealed how Parsons had used a 

“political strategy,” including lobbying and campaign support, to obtain the 

contract. Id. This “political strategy” enabled Parsons to receive exclusive 

information from senior officials prior to the publication of the state’s Request for 

Proposals, giving it “a head start on the deployment of corporate resources for a 

bid submission.” Id. at 3-4. The investigation concluded that the bidding process 

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had been “tainted at key intervals by political considerations and by the granting of 

favored treatment.” Id. at 3. 

These examples represent only a fraction of the pay-to-play scandals that 

have arisen in government contracting, as also documented by the FEC. See J.A. 

149-163. And arguments that the contracting systems in Illinois, New Jersey and 

other states are different from the federal system, see, e.g., Wagner Br. 47, miss the 

point. Although state and federal procurement processes undoubtedly differ, the 

prevalence of quid pro quo schemes at the state and local levels demonstrates that 

concerns about the corruptive potential of campaign activity by government 

contractors are legitimate and grounded in experience. In light of abundant 

examples of pay-to-play behavior, “[i]t in no way stretches the imagination to 

envision that individuals might make campaign contributions to curry political 

favor,” as the district court concluded when the parties initially presented the 

merits of this case to it for decision. J.A. 35. 

C. Courts Have Widely Held That Restricting Government 

Contractor Contributions Is an Appropriate Defense Against 

Actual and Apparent Corruption. 

Given the ubiquity of pay-to-play practices, it is unsurprising that the courts 

have generally approved state restrictions on contractor contributions. 

In Green Party of Connecticut v. Garfield, 616 F.3d 189 (2d Cir. 2010), the 

Second Circuit upheld a Connecticut law banning contributions from state 

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10

contractors. Unlike section 441c, the law applied not just to the contracting 

individual or entity, but also to certain “principals” and immediate family members 

of contractors. Id. at 202. Observing that the federal law is more limited in scope, 

the court nevertheless found that Connecticut had a valid anti-corruption interest in 

its expansive ban: “[T]he dangers of corruption associated with contractor 

contributions are so significant . . . that the General Assembly should be afforded 

leeway in its efforts to curb contractors’ influence on state lawmakers.” Id. at 203. 

A subsequent Second Circuit decision also recognized that special 

restrictions on state contractors were justified by the government interest in 

preventing the actuality and appearance of corruption. In Ognibene v. Parkes, 671 

F.3d 174 (2nd Cir. 2011), the Court upheld a New York City provision imposing 

additional limitations on campaign contributions by entities “doing business” with 

the City. Noting the series of pay-to-play scandals in New York City preceding 

enactment of the law, the Court found that there was “no doubt that [contractor] 

contributions have a negative impact on the public because they promote the 

perception that one must ‘pay to play.’” Id. at 179. 

Similarly, a district court in Hawaii recently upheld that state’s broad ban on 

contractor contributions. Yamada v. Weaver, 872 F. Supp. 2d 1023 (D. Haw. 

2012), appeal docketed, No. 12-15913 (9th Cir. Apr. 20, 2012). The Hawaii law 

prohibits all contractors, regardless of the amount of their contracts, from making 

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contributions to candidate and non-candidate committees. Haw. Rev. Stat. § 11-

355. The court upheld the ban based on the government’s interest in preventing 

corruption, finding that “[t]he legislative history of [the law] confirms that 

Hawaii’s Legislature passed the government contractor contribution ban in large 

part precisely because of these concerns—prevention of both actual corruption and 

its appearance.” 872 F. Supp. at 1049; see also id. at n.27 (recounting corruption 

scandals that preceded law). 

State courts have likewise sustained strict contractor contribution limits. See 

In Re Earle Asphalt Co., 950 A.2d 918, 325 (N.J. Super. App. Div. 2008) (“In sum, 

the State’s interest in insulating the negotiation and award of State contracts from 

political contributions that pose the risk of improper influence, . . . or the 

appearance thereof, is a sufficiently important interest to justify a [$300] limitation 

upon political contributions.”) (internal citations and quotations omitted), aff’d, 

966 A.2d 460 (N.J. 2009) (per curiam). Relatedly, state courts have also upheld a 

range of contribution restrictions applicable to certain highly regulated industries 

deemed to pose a heightened threat of political corruption. See, e.g., Casino Ass’n 

of La. v. State ex rel. Foster, 820 So.2d 494 (La. 2002) (upholding state law 

prohibiting any political contributions from officers, directors, and certain 

employees in the casino industry, and their spouses); Soto v. New Jersey, 565 A.2d 

1088 (N.J. 1989) (upholding prohibition on casino-industry contributions); Schiller 

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12

Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61 (Ill. 1976) (upholding law 

prohibiting political contributions from any officer, associate, agent, 

representative, or employee of a liquor licensee).

The Wagner contractors’ reliance on Dallman v. Ritter, 225 P.3d 610 (Colo. 

2010), is misplaced. See Wagner Br. 52-53. That decision, which invalidated a 

Colorado law banning contractor contributions, is readily distinguishable from this 

case. Indeed, the Colorado Supreme Court specifically distinguished the federal 

ban as far less burdensome than the state restriction, because the state law applied 

to the contracting entity as well as to a broadly defined class of family members;

12

remained in effect from the beginning of negotiations until two years after the 

contract’s completion; and imposed harsh penalties for violations. 225 P.3d at 617

(noting that violators were ineligible to hold state office or state contracts for three 

years). While the Wagner contractors correctly point out that the Colorado law 

only applied to sole-source contracts valued above a $100,000 threshold, see

Wagner Br. 53, that fact hardly renders it less restrictive than section 441c. Given 

 

12 The Colorado law defined “immediate family member” as “any spouse, 

child, spouse’s child, son-in-law, daughter-in-law, parent, sibling, grandparent, 

grandchild, stepbrother, stepsister, stepparent, parent-in-law, brother-in-law, sisterin-law, aunt, niece, nephew, guardian, or domestic partner.” Dallman, 225 P.3d at 

618. 

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the expansive scope of the Colorado law, Dallman provides scant support for the 

Wagner contractors’ constitutional arguments.13 

II. The Federal Contractor Contribution Ban Is Constitutional.

A. Strict Scrutiny Does Not Apply. 

“Closely drawn” scrutiny, rather than strict scrutiny, applies to the Wagner 

contractors’ First Amendment claims. J.A. 29-30, 228. The Supreme Court held 

in FEC v. Beaumont, 539 U.S. 146, 162 (2003), that a law regulating contributions 

is subject to “closely drawn” scrutiny, regardless of whether it takes the form of a 

limit or a ban. And all lower courts to have considered this issue following 

Citizens United have rejected the Wagner contractors’ contention that Citizens 

United cast doubt on Beaumont’s analysis of the scrutiny applicable to a 

contribution ban. See, e.g., United States v. Danielczyk, 683 F.3d 611, 618-19 (4th 

Cir. 2012), cert. denied, 133 S. Ct. 1459 (Feb. 25, 2013). 

 

13 Only a handful of other cases have invalidated pay-to-play laws, and they 

were decided on grounds not relevant to this case. See, e.g., Lavin v. Husted, 684 

F.3d 543, 547-48 (6th Cir. 2012) (striking down law criminalizing contributions 

from state Medicaid providers to Attorney General and county prosecutor 

candidates, after state conceded a lack of evidence from Ohio or elsewhere linking 

campaign contributions to abuse of prosecutorial discretion); DePaul v. 

Commonwealth, 969 A.2d 536 (Pa. 2009) (invalidating restriction on gaming 

licensee contributions under Pennsylvania Constitution, but finding that state 

Constitution “provides broader protections of expression than the related First 

Amendment guarantee”); United Auto Workers, Local Union 1112 v. Brunner, 911 

N.E. 2d 327 (Ohio Ct. App. 2009) (invalidating amendments to Ohio contractor 

contribution limits on the basis of a procedural deficiency with the law’s 

enactment, and not under the First Amendment). 

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In addition to their demand for strict scrutiny, plaintiffs argue that judicial 

deference to Congress’ judgment in matters of campaign finance is incompatible

with even a more relaxed standard of scrutiny. See Wagner Br. 10-11. But they

are wrong. In applying “closely drawn” scrutiny, the Supreme Court has 

consistently given deference to Congress’ expertise in regulating political 

contributions. McConnell, 540 U.S. at 137 (“The less rigorous standard of review 

we have applied to contribution limits (Buckley’s ‘closely drawn’ scrutiny) shows 

proper deference to Congress’ ability to weigh competing constitutional interests in 

an area in which it enjoys particular expertise.”); Beaumont, 539 U.S. at 155 

(“[W]e have understood that such deference to legislative choice is warranted 

particularly when Congress regulates campaign contributions . . .”); Buckley v. 

Valeo, 424 U.S. 1, 30 (1976) (noting that “a court has no scalpel to probe” details 

of contribution limits formulated by Congress). 

Indeed, the nature of the Wagner contractors’ attack on section 441c 

underscores the appropriateness of according deference to the legislature. To 

support their overbreadth claim, the Wagner contractors suggest a laundry list of 

revisions to section 441c that they believe will narrow the law without

undermining its pay-to-play rationale. See Wagner Br. 51-55; see also J.A. 236-

38. They recommend, inter alia, that Congress should exempt both “sole source” 

and competitively bid contracts, Wagner Br. 53 n.9, establish a minimum amount 

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for regulated contracts, id. at 52, and substitute a contribution restriction with a 

disqualification protocol, id. at 46 n.7. But their list of proposed reforms simply 

underscores that the details of formulating contribution restrictions are best left to 

Congress. “[Q]uestions such as whether to apply the ban only to non-bid 

contractors or only large contractors, whether to allow small contributions or allow 

no contributions, or whether principals of contractors may contribute, are all 

legislative choices.” Yamada, 872 F. Supp. 2d. at 1062. A court need not apply 

“rational basis review” to recognize that politicians might have a particular 

expertise in matters of political fundraising. “Closely drawn scrutiny” is consistent 

with deference to Congress’ judgment regarding campaign contributions. 

B. Section 441c Advances the Important Government Interest in 

Preventing Actual and Apparent Corruption in Federal 

Contracting.

In its submissions to the district court, see, e.g., J.A. 139-143, the FEC 

documented that the ban now found at 2 U.S.C. § 441c was enacted more than 70 

years ago to respond to corruption in the federal contracting process, specifically 

the Democratic “campaign book scandal.” As the district court aptly stated in its 

now-vacated summary judgment ruling, the prohibition on contributions from 

federal contractors serves the important state interest in “protect[ing] the integrity 

of the electoral system by ensuring that federal contracts [are] awarded based on 

merit.” J.A. 31; see also FEC v. Weinstein, 462 F. Supp. 243, 248 (D.C.N.Y. 

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1978) (approving section 441c and noting that “the importance of the 

governmental interest” in preventing electoral corruption “through the creation of 

political debts” had “never been doubted”). 

The Wagner contractors do not deny that the government’s interest in 

preventing actual and apparent corruption in contracting is compelling, nor do they 

deny that current evidence of such corruption at the federal level “is unlikely to 

exist” given that contractors have been barred from making contributions for more 

than 70 years. Wagner Br. 47. Still, appellants maintain that the lack of recent 

scandals involving “otherwise lawful contributions” made in exchange for federal 

contracts proves that section 441c is unnecessary today. Id. But the state and 

municipal experience demonstrates that evidence of modern-day corruption in 

contracting is plentiful and concerns about pay-to-play politics have not 

diminished the federal ban was enacted. And as the Supreme Court recognized in 

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 457

(2001), the “difficulty of mustering evidence to support long-enforced statutes”

does not render those statutes obsolete or invalid.

14

 The limited record of recent 

 

14 To support their claim that section 441c has been rendered obsolete by “seachanges” in federal contracting, plaintiffs’ attempt to draw a parallel between this 

case and the Supreme Court’s recent decision in Shelby County v. Holder, 133 S. 

Ct. 2612 (2013). Wagner Br. 48-50. Their efforts to import federal voting rights 

law into the unrelated realm of campaign finance, however, are unavailing. In 

Shelby County, the Court found that the Voting Rights Act’s preclearance formula 

imposed “federalism costs” that outweighed the scope of congressional power 

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corruption involving federal contractors thus does not suggest that the contribution 

ban is unnecessary, but rather that the ban is working.

Even if political quid pro quos were to occur only occasionally in 

contracting, however, the Supreme Court has allowed legislatures to take a 

prophylactic approach when political corruption is “neither easily detected nor 

practical to criminalize.” McConnell, 540 U.S. at 153. In light of contractor 

scandals across the country and the enactment of pay-to-play statutes in at least 20 

states and municipalities, “the suggestion that those seeking federal contracts might 

‘pay to play’ is hardly novel or implausible,” J.A. 35 (citing Shrink Missouri, 528 

U.S. at 391), and a prophylactic approach is thus permissible here. See also Blount 

v. SEC, 61 F.3d 938, 945 (D.C. Cir. 1995) (“[N]o smoking gun is needed where, as 

here, the conflict of interest is apparent, the likelihood of stealth great, and the 

legislative purpose prophylactic.”).

Furthermore, at least as important as preventing actual corruption connected 

to federal contracting is avoiding the appearance of corruption. See Buckley, 424 

U.S. at 27. Recognizing the importance of this interest, the Second Circuit 

observed in Ognibene that recurrent pay-to-play scandals had “created a climate of 

distrust that feeds the already-established public perception of corruption.” 671 

 

under the Fifteenth Amendment. 133 S. Ct. at 2621, 2629. Appellants do not 

explain how the equal sovereignty and Fifteenth Amendment considerations at 

issue in Shelby County are at all applicable to the validity of section 441c, a federal 

law targeting federal-level corruption.

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F.3d at 191 n.15. It was therefore “not necessary to produce evidence of actual 

corruption to demonstrate the sufficiently important interest in preventing the 

appearance of corruption.” Id. at 183 (emphasis added). Similarly, as the Second 

Circuit emphasized in Garfield, “widespread media coverage of Connecticut’s 

recent corruption scandals” created a “manifest need to curtail the appearance of 

corruption created by contractor contributions.” 616 F.3d at 200 (emphasis added). 

Thus, multiple courts have reiterated that limiting contractor contributions also

combats the public perception that public business is for sale to private interests. 

C. Section 441c Is Closely Drawn to Advance the Government’s 

Anti-Corruption Interest. 

By confining its limitations to a particular group of individuals and entities 

with a heightened financial interest in government contracting, while leaving open 

other forms of political expression, the federal ban is tailored to restrict the 

campaign contributions that Congress deemed likeliest to engender actual or 

apparent corruption. Far from being fatally overbroad, section 441c is merely a 

“channeling device, cutting off the avenue of association and expression that is 

most likely to lead to corruption but allowing numerous other avenues of 

association and expression.” Preston v. Leake, 660 F.3d 726, 734 (4th Cir. 2011).

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1. Section 441c’s Application to Contributions to Federal 

Candidates, Party Committees and Political Action Committees 

Serves Important Anti-Corruption Interests.

Despite acknowledging that “agencies are headed by persons appointed by 

the President with the advice and consent of the Senate,” the Wagner contractors

assert that “there is no role [in awarding federal contracts] for any elected official 

to whom contributions might be made.” Wagner Br. 44. Consequently, they 

conclude that “the connection between any contributions that plaintiffs might make 

and the awarding of federal contracts is too remote to pass First Amendment 

scrutiny.” Wagner Br. 3.

But there is no impermeable boundary between agencies, on the one hand, 

and elected officeholders and presidential appointees, on the other. Agency 

officials are enormously dependent on legislators and presidential appointees, 

whether for appropriations, favorable appointments, employment benefits or other 

less tangible rewards. See, e.g., J.A. 356-57 ¶ 25 (describing how contracting 

decisions can be susceptible to political pressure despite the formal precautions 

meant to insulate the process from such influence). 

Elected officeholders and executive branch officials operate in a political 

culture with significant professional and social overlap, so even identifying all 

persons who have the political capital to influence a contract’s award or oversight 

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is beyond a court’s expertise. The Yamada court explained some of the many ways 

that elected officials may affect the contracting process:

The Legislature routinely holds informational and 

oversight hearings. Legislators . . . represent constituents 

and the public in an appropriate role overseeing 

administration of State contracts and utilization of 

appropriated funds—they might criticize, scrutinize, or 

support contractor performance. . . . Legislators make 

decisions and hold power over large infrastructure 

projects, sometimes involving hundreds of millions of 

dollars, where government contractors stand to benefit. 

And Legislators may have power over, or close 

friendships with, the government employees or others 

who do award or manage [state] contracts. 

872 F. Supp. 2d at 1061. Yamada went on to note that it would not make sense for 

the court to narrow Hawaii’s broad ban on contractor contributions because the 

court lacked knowledge as to “which Legislators have ‘control’ over all types of 

contractual matters (whether large or small, be they for general electrical work or 

for a non-bid research study of a particular issue).” Id. at 1062. The Yamada court 

rightly recognized that determining which officials have influence over the 

contracting process lies in the expertise of the legislature, and that attempting to 

answer this question is fundamentally unsuited to the judicial role. 

The Wagner contractors claim that “in most of the litigated [state law] 

cases,” the contractor contribution ban applied only “to persons actually involved 

in the contracting process,” pointing to the Connecticut law upheld in Garfield. 

Wagner Br. 47. But most of the statutes upheld in recent case law were not so 

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limited. See, e.g., Ognibene, 671 F.3d at 179-80 (noting that pay-to-play 

restrictions applied to candidates for all City offices); Yamada, 872 F. Supp. 2d at 

1035 (Hawaii contractor restriction applied to contributions to any “candidate 

committee or noncandidate committee”). Further, although the Connecticut ban is 

“branch-specific”—i.e., it bans only contributions to officials in the government 

branch with oversight authority over a particular contract—it is hardly targeted at 

only those public officials with direct oversight over contracting, as plaintiffs 

demand. The Connecticut law is substantially broader than the federal law in other 

key respects: (1) it applies not only to the contractor himself, but also to 

“principals” and immediate family members of the contracting entity (board 

members, officers, managers and individuals holding at least a 5% interest in the 

business), see Conn. Gen. Stat. § 9-612(f)(1)(F); and (2) its temporal coverage can 

extend for nearly a year after a contract’s termination, see id. § 9-612(f)(1)(D). As 

a whole, Connecticut’s statute is more expansive than section 441c. 

The Wagner contractors also argue that section 441c is overbroad because it 

covers contributions to party committees and “challenger” candidates “who have 

no current power.” Wagner Br. 51. First, plaintiffs are shortsighted in 

characterizing “challengers” as powerless: contractors have an interest in gaining

influence over not only current officeholders, but also their likely successors in 

office, many of whom will be “challengers.” Further, in claiming that parties and 

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challengers have no influence over contracting, the Wagner contractors fail to take 

into account the possibility of transfers between candidates, and between parties 

and candidates. Federal law allows for unrestricted transfers of funds between, 

inter alia, national and state party committees of the same party; affiliated 

committees; and from candidate committees to national party committees. See 2 

U.S.C. § 441a(a)(4); 11 C.F.R. § 110.3(c). And the law allows significant 

coordinated spending and unlimited independent spending by party committees in 

support of their nominees. 2 U.S.C. § 441a(d). Consequently, contributions from 

a contractor to party committees or “challengers” can easily be transferred and

spent to benefit officeholders with influence over the relevant contracting process, 

such as congressional committee chairmen. Indeed, the Supreme Court has 

recognized the unique capacity of parties in particular to serve as “effective 

conduits for donors desiring to corrupt federal candidates and officeholders.” 

McConnell, 540 U.S. at 156 n.51. Given the “special relationship and unity of 

interest” between parties and federal officeholders, as well as the transferability of 

contributions, contractor contributions to party committees pose a clear threat of 

corruption. See id. at 145.15

 

15 Contractor contributions to unconnected political committees could also be 

routed to the campaign coffers of officials with oversight over contracting. The 

Supreme Court has recognized that political committees are vehicles for 

“circumvention of the other contribution limitations embodied in the Act.” Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 199 n.20 (1981). 

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2. Section 441c Applies to the Contracting Entity Only.

The federal contractor ban encompasses only the contracting entity itself. It 

is thus narrower than many of the pay-to-play laws in place at the state level, as it 

does not reach political committees controlled by the contractor, nor individuals 

associated with or employed by the contractor.

The Wagner contractors contend that, by regulating only the contracting 

entity, section 441c impermissibly favors corporations over individuals because it 

allows a corporation to contribute through a PAC or through the individual 

donations of its officers, directors and employees, whereas individual contractors 

do not have a comparable option. But as the district court recognized, and the 

Wagner contractors concede, section 441c applies equally to corporate and 

individual contractors, and a corporation is legally distinct from its officers, 

directors, and shareholders, as well as from its PAC. See Wagner Br. 28-29. 

The Wagner contractors therefore must resort to arguing that a direct 

contribution from a corporate contractor would be the functional equivalent of a 

contribution from its PAC because both would be perceived as equally corrupt. Id.

at 29. But this claim is at odds with settled principles of Supreme Court 

jurisprudence. As the Supreme Court has held, because a PAC is a “separate 

association from the corporation,” with separate legal rights and obligations and 

the ability to raise funds only from individuals, a corporate PAC “does not allow 

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corporations to speak.” Citizens United, 558 U.S. at 337 (emphasis added). 

Citizens United thus directly refutes the Wagner contractors’ theory that corporate 

contributions and corporate PAC contributions are equivalent. The Wagner 

contractors attempt to dismiss the legal independence of corporations and 

corporate PACs as having “no relevance,” but they ignore the many regulations 

that separate corporate PACs from their corporate sponsors. Wagner Br. 29. Most 

significantly, the corporation cannot fund the corporate PAC’s political activity 

with its treasury funds,16 but instead must solicit voluntary and limited 

contributions from the corporation’s administrative and executive personnel and 

shareholders for this purpose. 2 U.S.C. § 441b(b)(4); 11 C.F.R. § 114.5. Thus, the 

sponsoring corporation can neither fund the PAC’s political activities nor control 

its receipt of political contributions. This regulatory system means that the direct 

beneficiary of a government contract—i.e., the corporation—is prevented from 

funding the very contributions that could influence the grant of federal contracts, 

thereby reducing in a very practical sense the potential for corruption. Given these 

barriers between a corporation and its PAC’s funding, plaintiffs have no grounds 

for speculating that outside observers would perceive corporate PAC contributions 

as equivalent to direct corporate contributions. 

 

16 Citizens United struck down restrictions on corporate independent 

expenditures, but did not alter the ban on corporate contributions, including the 

restriction on the sources of funds used for candidate and party contributions by 

corporate PACs. 558 U.S. at 357-58. 

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Similarly, there is no reason to think that there is an identity of interest 

between a corporation and its officers, employees and shareholders with respect to 

contracting, as there is when the contractor and the individual are one and the 

same. Few in the class of officers, employees and shareholders have direct 

involvement in, or knowledge of, the procurement of their corporation’s federal 

contracts. It is implausible that the majority of a large corporation’s shareholders, 

for instance, are even aware of the details of the corporation’s government 

contracts, much less so invested in the procurement process than they are willing to 

make quid pro quo contributions. Furthermore, any resultant benefit from a 

government contract to the class of officers, employees and shareholders is likely 

to be diffuse. An individual shareholder of the government contractor is unlikely 

to experience more than a negligible rise in the value of his investment due to a 

single contract, and it seems equally unlikely that a contract would result in a 

material change in the terms of employment for most of the contractor’s 

employees. The Wagner contractors offer no reason why the contributions of a 

corporation’s officers, employees and shareholders should be equated with those of 

a corporate contractor for the purpose of the contractor contribution ban. 

3. Section 441c Is a Prohibition Targeted at a Particular Risk. 

The Wagner contractors also complain that 441c is a ban, not a limit, on 

contributions. Wagner Br. 54-55. But multiple courts have upheld state “bans” on 

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contributions from contractors, lobbyists and other groups that raise a particular 

risk of corruption. See Section I.C. supra. And as the district court in Yamada

explained, the choice of a ban instead of a limit suggests proper tailoring, not 

overbreadth:

A choice to completely ban direct government contractor 

contributions indicates, at some level, the strength of the Legislature’s 

intended message combating a perception that government contracts 

are awarded to friends based on corruption (i.e., indicative of the 

tailoring of the restriction to the government interest). That a ban is 

total, that it has no dollar exceptions, might “eliminate[ ] any notion 

that contractors can influence state officials by donating to their 

campaigns,” and in that sense indicates closer tailoring to the 

important government interest than if contributions to certain types of 

Legislators were excepted.

872 F. Supp. 2d at 1062 (internal citations and footnotes omitted) (quoting 

Garfield, 616 F.3d at 205). 

The Wagner contractors also attempt to analogize section 441c to the ban on 

contributions from minors that was invalidated in McConnell. See Wagner Br. 46. 

But the under-18 restriction barred a vast portion of the population from making 

political contributions not because the regulated class itself posed a heightened risk 

of corruption, but because parents might circumvent individual contribution limits 

by contributing in the names of their children. 540 U.S. at 231-32. The 

McConnell Court did not strike down the ban because it was a ban, as plaintiffs

allege, but because there was “scant evidence” of such circumvention, and the anticircumvention interest was fully addressed by a provision barring contributions 

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made “in the name of another.” Id. at 232; see also 2 U.S.C. § 441f; 11 C.F.R. § 

110.4(b). Section 441c, by contrast, does not rely on an anti-circumvention 

interest, but rather targets federal contractors as a class because of their heightened 

incentive to purchase influence over candidates and officeholders. Otherwise put, 

the concern animating section 441c is not that others will use contractors as 

conduits for circumventing contribution limits, but rather that contractors 

themselves, because of their financial interests, pose a greater risk of direct 

corruption than do other donors. And in contrast to the under-18 contribution ban, 

the government’s anti-corruption interest here cannot be adequately addressed by 

other measures: generally applicable contribution limits alone have not prevented 

contracting scandals at the state and local levels. 

Finally, although section 441c bans federal contractors from making 

political contributions, contractors are free to pursue other forms of political 

expression. Individual contractors may express their political views in a variety of 

ways, which the district count pointed out are often “more expressive than the act 

of making a political contribution.” J.A. 38. Contractors are permitted to 

volunteer their time on a behalf of a candidate or party committee, solicit 

contributions, and hold fundraisers. As a practical matter, it is difficult to see how 

the maximum individual contribution of $2,600 is more expressive than, for 

instance, canvassing for a candidate. The mere fact that the Wagner contractors

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have elected not to exercise these other forms of political expression in no way 

demonstrates that section 441c is improperly tailored.

D. Section 441c Is Not Underinclusive.

The Wagner contractors also contend that the federal contractor contribution 

ban is unconstitutionally underinclusive because it fails to capture all situations 

that may lead to corruption or its appearance. Wagner Br. 55-59. But a statute is 

not “invalid under the Constitution because it might have gone farther than it did

. . . . ” Buckley, 424 U.S. at 105. In Blount, this Court confirmed that “a regulation 

is not fatally underinclusive simply because an alternative regulation, which would 

restrict more speech or the speech of more people, could be more effective.” 61 

F.3d at 946. 

Only when a regulation cannot “fairly be said to advance any genuinely 

substantial governmental interest” because it provides only “ineffective or remote” 

support for the asserted goals will it be deemed underinclusive. FCC v. League of 

Women Voters, 468 U.S. 364, 396 (1984). The Wagner contractors point to groups 

that do not fall within the strictures of section 441c, such as federal grant and loan 

recipients and military academy students, whom they allege are similarly situated 

to federal contractors. See Wagner Br. 56-59. But the Wagner contractors fail to 

explain why Congress’ decision not to include these disparate groups—for 

instance, military academy students who generally are obligated to serve in the 

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armed forces in exchange for their free education—renders the federal contractor 

ban so ineffective as to advance no “substantial governmental interest.” Most 

states and municipalities with pay-to-play statutes have made similar 

determinations, as very few state laws cover grants or loans, and several state laws 

cover only limited varieties of contracts. See Section I.A supra. Congress was 

plainly not alone in its judgment that campaign activity by government contractors

was “the phase of the problem which seems most acute.” Buckley, 424 U.S. at 

105.17

The Wagner contractors complain in particular that federal employees are 

not subject to restrictions on political giving comparable to section 441c. Wagner 

Br. 34-37. But political activity of federal employees—like that of federal 

contractors—is subject to significant restrictions and prohibitions. Some of those 

limitations are more severe than section 441c: for instance, federal employees are 

generally prohibited from holding political fundraisers, 5 C.F.R. § 734.303, and 

many are also prohibited from engaging in certain volunteer activities for a 

campaign, such as distributing campaign materials. Id. § 734.401, et seq.; see also 

Less Restricted Employees—Political Restrictions and Prohibited Activities, U.S. 

Office of Special Counsel, 

 

17 In addition, many federal grantees and loan recipients are subject to different 

limitations on their political activities. See generally Jack Maskell, Cong. 

Research Serv., RL 34725, Political Activities of Private Recipients of Federal 

Grants or Contracts (Oct. 21, 2008). 

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 40 of 45
30

http://www.osc.gov/haFederalLessRestrisctionandActivities.htm. It is thus far 

from clear that treating contractors like employees would have the speechenhancing effect plaintiffs seek. If the Wagner contractors were regulated as if 

they were employees, they would be subject to more campaign restrictions, not 

fewer. 

Given Congress’ stated goal of preventing corruption and its appearance, the 

decision to ban contributions from federal contractors, but not contributions from 

other federally subsidized groups, reflects a permissible legislative judgment that 

the risk of improper influence is greatest for contractors. See also Ognibene, 671 

F.3d at 191 (“The fact that the City has chosen to focus on one aspect of quid pro 

quo corruption, rather than every conceivable instance, does not render its rationale 

a ‘challenge to the credulous.’”). As the Supreme Court has long maintained, 

“[r]eform may take one step at a time.” Buckley, 424 U.S. at 105.

CONCLUSION

For the foregoing reasons, this Court should find in favor of the FEC on all 

certified questions raised in this proceeding.

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 41 of 45
31

Respectfully submitted,

/s/ J. Gerald Hebert

J. GERALD HEBERT

 ghebert@campaignlegalcenter.org

(D.C. Bar No. 447676)

Tara Malloy

Paul S. Ryan

Megan McAllen

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

Fred Wertheimer 

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP

1425 K Street, NW

Suite 600

Washington, DC 20005

(202) 682-0240

Scott L. Nelson

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Amici Curiae

Dated: August 9, 2013

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 42 of 45
32

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,972 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Office 

Word 2007 in Times New Roman 14 point font.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

Dated: August 9, 2013

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 43 of 45
33

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of August 2013, I caused the foregoing 

BRIEF AMICI CURIAE to be filed electronically using this Court’s CM/ECF 

System and sent via the ECF electronic notification system to the following

CM/ECF registered counsel of record:

Attorneys Representing Plaintiffs Wagner, et al.:

Alan B. Morrison

 abmorrison@law.gwu.edu

George Washington University Law School

2000 H Street, NW

Washington, DC 20052

(202) 994-7463

Arthur B. Spitzer

 artspitzer@gmail.com

American Civil Liberties Union of the National Capital Area

4301 Connecticut Avenue, NW

Suite 434

Washington, DC 20008-2368

(202) 457-0800

Attorneys Representing Defendant Federal Election Commission:

Seth Nesin

 snesin@fec.gov

Federal Election Commission

999 E Street, NW

Washington, DC 20463

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 44 of 45
34

(202) 694-1528

Attorneys Representing Amicus Curiae Center for Competitive Politics:

Allen Joseph Dickerson

adickerson@campaignfreedom.org

Center for Competitive Politics

124 West Street, South

Alexandria, VA 22314

(703) 894-6800

Attorneys Representing Amicus Curiae The Cato Institute:

Ilya Shapiro

 ishapiro@cato.org

The Cato Institute

1000 Massachusetts Avenue, NW

Washington, DC 20001

(202) 218-4600

Courtesy copies of the BRIEF AMICI CURIAE were sent to the counsel of 

record via email (where email addresses are available and known).

I further certify that I also caused the requisite number of paper copies of the 

brief to be filed with the Clerk on August 9, 2013.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

(202) 736-2200

USCA Case #13-5162 Document #1450927 Filed: 08/09/2013 Page 45 of 45