UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

) 

WAGNER, et al., ) 

) 

Plaintiffs, ) 

) Case No. 11-CV-01841-JEB 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendants. ) 

_________________________________________ ) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

AS AMICUS CURIAE IN OPPOSITION 

TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Fred Wertheimer 

(DC Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, DC 20036 

Tel.: (202) 429-2008 

Donald J. Simon 

(DC Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, DC 20005 

Tel.: (202) 682-0240 

Counsel for Amici Curiae

 

J. Gerald Hebert 

(VA Bar No. 38432) 

Tara Malloy 

(DC Bar No. 988280) 

Paul S. Ryan 

(DC Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

Counsel for Amici Curiae 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 1 of 40
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....................................................................................................... ii 

INTRODUCTION AND SUMMARY OF ARGUMENT ......................................................... 1 

ARGUMENT ................................................................................................................................. 3 

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

Across the Country Have Recognized the Potential for Corruption Posed 

by Campaign Contributions by Governmental Contractors. ......................................... 3 

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. ............... 8 

C. Courts Have Widely Held That Restricting Government Contractor 

Contributions is an Appropriate Defense Against Actual and 

Apparent Corruption. ...................................................................................... 13 

II. The Federal Contractor Contribution Ban is Constitutional. ...................................... 16 

A. Section 441c Constitutionally Advances the Important Government 

Interest of Preventing Actual and Apparent Corruption in Federal 

Contracting. ..................................................................................................... 16 

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

Anti-Corruption Interest. ................................................................................. 19 

1. Section 441c Applies to Contributions to Federal 

Candidates, Party Committees and Political Action 

Committees. ......................................................................................... 19 

2. Section 441c Applies to Contracting Entity Only. .............................. 22 

3. Section 441c Applies Through Completion of Contract...................... 24 

4. Section 441c Is a Prohibition on Certain Contributions..................... 25 

C. The Court Should Defer To Congress on Questions of Policy. ...................... 27 

D. Section 441c is Not Underinclusive. ............................................................... 32 

CONCLUSION. ........................................................................................................................... 32 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 2 of 40
ii

TABLE OF AUTHORITIES 

Cases: 

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) .............................................................. 13, 18, 30, 31

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................. 17, 24, 30

Casino Ass’n of La. v. State ex rel. Foster, 820 So.2d 494 (La. 2002) .................................... 14-15

Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................................. 23

Dallman v. Ritter, 225 P.3d 610 (Colo. 2010) ........................................................................ 15, 16

DePaul v. Commonwealth, 969 A.2d 536 (Pa. 2009) ................................................................... 16

FCC v. League of Women Voters, 468 U.S. 364 (1984) ............................................................... 31 

FEC v. Weinstein, 462 F. Supp. 243 (D.C. Cir. 1978) .................................................................. 13

Green Party of Conn. v. Garfield, 590 F. Supp. 2d 288 (D. Conn. 2008), rev’d in 

part, 616 F.3d 189 (2d Cir. 2010) ............................................................................................... 8, 9 

Green Party of Conn. v. Garfield, 616 F.3d 189 (2d Cir. 2010) ............................. 3, 13, 18, 26, 27

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) .......................................................................................... 14, 29 

Institute of Governmental Advocates v. Fair Political Practices Comm’n, 164 F. 

Supp. 2d 1183 (E.D. Cal. 2001) .................................................................................................... 15 

Kimbell v. Hooper, 665 A.2d 41 (Vt. 1995) .................................................................................. 15 

Lavin v. Husted, No. 11-3908, 2012 WL 3140909 (6th Cir. Aug. 3, 2012) ................................. 16

McConnell v. FEC, 540 U.S. 93 (2003) ............................................................. 3, 17, 22, 24-25, 26

Nixon v. Shrink Missouri, 528 U.S. 377 (2000) ....................................................................... 2, 17 

N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ................................................. 15 

Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011) .......................................................... 13, 18, 32 

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ...................................................................... 15, 19

Randall v. Sorrell, 548 U.S. 230 (2006).................................................................................... 3, 28

Schiller Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61 (Ill. 1976) ............................................. 15

Soto v. New Jersey, 565 A.2d 1088 (N.J. 1989) ............................................................................ 14

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 3 of 40
iii

State v. Alaska Civil Liberties Union, 978 P.2d 587 (Alaska 1999) ............................................. 15 

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

App. 2009) ..................................................................................................................................... 16

United States v. Warner, 498 F.3d 666 (7th Cir. 2007) .................................................................. 8 

Yamada v. Weaver, No. 10-cv-00497, 2012 WL 983559 (D. Haw. Mar. 21 2012), 

appeal docketed, No. 12-15913 (9th Cir. Apr. 20, 2012). .......................................... 14, 21, 27, 31

Wagner v. FEC, 2012 WL 1255145 (D.D.C. Apr. 16, 2012) ................................................ passim

Statutes and Regulations: 

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

2 U.S.C. § 441a(a)(3)(A) ............................................................................................................... 26

2 U.S.C. § 441a(a)(3)(B) ............................................................................................................... 26 

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

2 U.S.C. § 441f .............................................................................................................................. 26

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

Conn. Gen. Stat.§ 9-601(1)–(2) ..................................................................................................... 20 

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

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

Conn. Gen. Stat. § 9-612(g)(1)(D) .......................................................................................... 20, 24 

Conn. Gen. Stat. § 9-612(g)(1)(F) ............................................................................................. 7, 20 

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

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

30 Ill. Comp. Stat. 500/50-37(a) ................................................................................................. 6, 7 

30 Ill. Comp. Stat. 500/50-37(b) ............................................................................................... 7, 24 

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 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 4 of 40
iv

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

Ind. Code § 4-30-3-19.7(i) .............................................................................................................. 7 

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

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

Ky. Rev. Stat. Ann. § 121.330(a) .................................................................................................... 7 

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, 5 

Md. Code, Elec. Law § 14-101, et seq.... ........................................................................................ 5 

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

Neb. Rev. Stat. § 9-835. .................................................................................................................. 5 

Neb. Rev. Stat. § 9-835(2)............................................................................................................... 6 

Neb. Rev. Stat. § 49-1476.01. ................................................................................................... 4, 24 

Neb. Rev. Stat. § 49-1476.01(1). .................................................................................................... 5 

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

N.J. Stat. Ann. § 19:44A-20.14 ....................................................................................................... 4 

N.J. Stat. Ann. § 19:44A-20.17 ....................................................................................................... 7 

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

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

N.Y.C. Admin. Code § 3-702(18) ............................................................................................... 5, 6 

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(A)(4) ........................................................................................... 6 

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

25 Pa. Cons. Stat. § 3620a. .............................................................................................................. 5 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 5 of 40
v

53 Pa. Cons. Stat. § 895.705A......................................................................................................... 5 

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(d). ....................................................................................................... 6 

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

2008 Ill. Legis. Serv. Pub. Act 95-971 ............................................................................................ 9 

N. J. Pub. L. 2005, c. 51 ................................................................................................................ 11 

Administrative Rules and Materials: 

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

11 C.F.R. § 110.4(b) ...................................................................................................................... 26 

11 C.F.R § 115.2(a). ...................................................................................................................... 19 

5 C.F.R. § 734.303. ....................................................................................................................... 19 

5 C.F.R. § 734.408-12. .................................................................................................................. 19 

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

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

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

Office of Special Counsel, 

http://www.osc.gov/haFederalLessRestrisctionandActivities.htm. .............................................. 30 

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

at 1–2 (2002), available at http://www.state.nj.us/sci/pdf/mvinspect.pdf .............................. 11. 12 

Superseding Indictment, United States v. Blagojevich, et al. (N.D. Ill. Apr. 2, 

2009) (No. 08 CR 888), available at

http://www.usdoj.gov/usao/iln/pr/chicago/2009/pr0402_01a.pdf................................................. 10 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 6 of 40
vi

Miscellaneous Resources: 

Eliza Newlin Carney, Rules of the Game: Congress Should Heed Scandals In The 

States, Nat’l J. (last updated Feb. 16, 2011), 

http://www.nationaljournal.com/columns/rules-of-the-game/congress-shouldheed-scandals-in-the-states-20090803. ........................................................................................... 8 

Monica Davey, Ex-Governor of Illinois Gets 61⁄2 Years in Prison, N.Y. Times, 

Sept. 7, 2006, available at

http://www.nytimes.com/2006/09/07/us/07ryan.html?_r=1&ref=georgeryan .......................... 9-10 

Monica Davey, Blagojevich Sentenced to 14 Years in Prison, N.Y. Times, Dec. 7, 

2011, available at http://www.nytimes.com/2011/12/08/us/blagojevich-expressesremorse-in-courtroom-speech.html ............................................................................................... 10 

Mark Guarino, Blagojevich indictment outlines more pay-to-play schemes, 

Christian Science Monitor, Apr. 2, 2009, available at

http://www.csmonitor.com/USA/Politics/2009/0402/blagojevich-indictmentoutlines-more-pay-to-play-schemes/ ............................................................................................. 10 

Jeffrey M. Jones, Americans Want Next President to Prioritize Jobs, Corruption, 

Gallup Politics (July 30, 2012), http://www.gallup.com/poll/156347/AmericansNext-President-Prioritize-Jobs-Corruption.aspx.. ......................................................................... 18 

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

Recipients of Federal Grants or Contracts (Oct. 21, 2008).......................................................... 32 

Mike McIntire and 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 ............... 10, 11 

John O'Neil and Avi Salzman, Ex-Governor of Connecticut Pleads Guilty to 

Corruption, N.Y. Times, Dec. 23, 2004, available at

http://www.nytimes.com/2004/12/23/nyregion/23cnd-rowl.html?oref=login ................................ 8 

Mike Robinson and Michael Tarm, Alonzo Monk: Obama Stopped Blagojevich 

Senate Deal with Emil Jones, Huffington Post (June 10, 2010, 9:15 PM), 

http://www.huffingtonpost.com/2010/06/10/alonzo-monk-obama-phonec_n_608220.html ........................................................................................................................... 11 

Timeline of the Blagojevich investigation, Chi. Trib., 

http://www.chicagotribune.com/news/chi-investigation-timeline1208,0,2680294.story .................................................................................................................... 10 

Paul von Zielbauer, The Nutmeg State Battles the Stigma of Corrupticut, N.Y. 

Times, Mar. 28, 2003 ...................................................................................................................... 9 

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INTRODUCTION & SUMMARY OF ARGUMENT 

 In 1940, Congress enacted a restriction on campaign contributions from persons and 

entities contracting with the federal government to address corruption in federal contracting, 

most notably the “Democratic campaign book” scandal. See 2 U.S.C. § 441c. As this Court 

correctly found in denying plaintiffs’ motion for preliminary injunction: “It is thus clear that, in 

passing the ban, Congress wished to prevent corruption and the appearance thereof and, in so 

doing, to protect the integrity of the electoral system by ensuring that federal contracts were 

awarded based on merit.” Wagner v. FEC, No. 11-cv-01841, 2012 WL 1255145, at *5 (D.D.C. 

Apr. 16, 2012). 

 Plaintiffs offer no evidence or argument in support of its motion for summary judgment 

that would justify a reversal of this Court’s decision to deny preliminary relief. 

Plaintiffs put forward several arguments against section 441c, including that it is 

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

and underinclusive, and that it violates principles of equal protection. In the memorandum that 

follows, amici curiae will focus on plaintiffs’ arguments pertaining to the evidence of corruption 

and the tailoring of the statute. Amici will not separately analyze the equal protection arguments 

at length as even plaintiffs concede that “there is considerable overlap” between its First 

Amendment and equal protection claims. Pls.’ Stmt. of Pts. and Authorities in Support of Mot. 

for Prelim. Inj., at 18 (Jan. 31, 2012) (“Pls.’ PI Br.”). Amici agree, however, with the position of 

the Federal Election Commission (FEC) on this claim, see FEC Mot. for Summ. J. 13-21 (Aug. 

15, 2012). 

First, plaintiffs argue that there is no current evidence that federal officeholders seek to 

award contracts or influence the award of contracts to reward contributors, indicating that the 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 8 of 40
2

record of corruption in this case is inferior to the evidence of corruption that led to the enactment 

of recent state contractor contribution restrictions. Wagner, 2012 WL 1255145, at *7; Pls.’ Stmt. 

of Pts. and Authorities in Support of Mot. for Summ. J., at 7 (July 12, 2012) (“Pls.’ SJ Br.”); 

Pls.’ PI Br. at 30, 35. This position ignores that the federal contractor contribution ban has been 

on the books for over 70 years, and thus has prevented the types of corruption that plaintiffs now 

suggest are necessary to sustain the ban. 2012 WL 1255145, at *4. But insofar as instances of 

recent corruption would aid the consideration of plaintiffs’ challenge, this Court can look to the 

experience of a number of states and municipalities that have enacted pay-to-play laws. See 

Nixon v. Shrink Missouri, 528 U.S. 377, 391 (2000) (discussing federal contribution limits and 

finding that state can look to other jurisdictions for evidence of potential corruption). A survey 

of state law illustrates both the ubiquity of contracting scandals at the state and local levels and 

the need to pay deference to legislative expertise in matters of procurement and campaign 

financing. 

Second, plaintiffs devote much of their papers to challenging the tailoring of section 

441c, setting forth a laundry list of reasons why the law is both overbroad and underinclusive, 

and criticizing every policy detail from the law’s coverage of “sole source” contracts to its 

exclusion of “military academy students” and federal loan recipients. See Pls.’ SJ Br. at 5–16. 

But few of these objections directly relate to the class of contractors at issue here—i.e., 

individuals with personal service contracts—and rarely in their argument do plaintiffs even 

attempt to explain why a personal service contract is somehow less susceptible to political 

manipulation than any other type of contract. Indeed, plaintiffs’ brief supporting summary 

judgment reads more like a policy paper than a constitutional argument: in essence, they ask this 

Court to overstep its judicial role and tinker with section 441c as if it were a legislature, not a 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 9 of 40
3

court. But as the Second Circuit recognized in upholding Connecticut’s ban on contractor 

contributions, “we, as judges, cannot consider each possible permutation of a law limiting 

contributions, and thus we ‘cannot determine with any degree of exactitude the precise restriction 

necessary to carry out the statute’s legitimate objectives.’” Green Party of Conn. v. Garfield, 616 

F.3d 189, 203 (2d Cir. 2010) (quoting Randall v. Sorrell, 548 U.S. 230, 248 (2006)). 

For all these reasons, the plaintiffs’ motion for summary judgment should be denied, and 

this Court should instead grant summary judgment in favor of the FEC. 

ARGUMENT 

I. A Review of State and Municipal Laws Demonstrates That Legislatures Across the 

Country Have Recognized the Potential for Corruption Posed By Campaign 

Contributions by Governmental Contractors. 

A survey of state and municipal law illustrates both the pervasiveness of corruption in the 

contracting process and the need to grant legislators wide discretion to tailor play-to-play 

measures to address the particular concerns and needs of their jurisdiction. 

First, the popularity of pay-to-play laws at the state and municipal levels demonstrates 

that campaign activity by contractors and potential contractors is widely perceived to pose a 

threat of political corruption. Such fears are well-founded. Many state and municipal laws were 

passed in direct response to scandals involving quid pro quo exchanges of campaign 

contributions for state contracts, or broader schemes by contractors to bribe or otherwise 

influence officeholders to secure contracts and other individualized state benefits. 

Second, there is a wide diversity of pay-to-play laws at the federal, state and local levels, 

highlighting the importance in paying deference to legislative expertise in matters related to 

procurement and the financing of elections. As noted in Randall, “[i]n practice, the legislature is 

better equipped to make such empirical judgments, as legislators have particular expertise in 

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4

matters related to the costs and nature of running for office.” 548 U.S. at 248 (quoting 

McConnell v. FEC, 540 U.S. 93, 137 (2003)). 

Finally, the lower courts have reached a near-consensus that so-called pay-to-play 

restrictions are constitutional. The weight of the case law has both recognized the pervasiveness 

of corruption in the contracting process and accorded discretion to legislatures to tailor measures 

appropriate for the unique circumstances of each jurisdiction. 

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 governmental 

contractors or licensees.1

 A number of municipalities, including New York City and Los 

 

1

 Cal. Gov’t Code § 84308(d) (prohibiting parties to proceeding relating to licenses, permits, 

contracts or other entitlements for use from making contributions of over $250 to any officer of the 

presiding agency); Conn. Gen. Stat. §§ 9-612(g)(1), (2) (prohibiting contributions from state contractor, 

prospective state contractor, or their principals to candidates for any state office or to party committees); 

Haw. Rev. Stat. § 11-355 (prohibiting contributions from state contractors to any candidate committee or 

non-candidate committee, or to any person for any political purpose or use); 30 Ill. Comp. Stat. 500/50-37 

(prohibiting contributions from any business entity who contracts with State and any affiliated persons to 

any political committees for candidates for the office that has responsibility for awarding the contracts); 

Ind. Code §§ 4-30-3-19.5, -19.7 (prohibiting any contributions from individual or organization with a 

contract with State Lottery Commission to any candidate committees, party committees or legislative 

caucus committees); Ky. Rev. Stat. Ann. §121.330 (prohibiting award of any non-bid contract to an 

entity if the entity or its officers, employees or officers’ and employees’ spouses made contributions

exceeding $5,000 or conducted fundraising exceeding $30,000 on behalf of official with responsibility for 

contract); La. Rev. Stat. Ann. § 18:1505.2(L) (prohibiting contributions from any person or entity holding 

gaming licenses to any candidate, or to any other political committee which supports or opposes any 

candidate), id. § 27:261(D) (prohibiting contributions from entity holding a casino operating contract); 

Mich. Comp. Laws § 432.207b (prohibiting contributions from holder of a casino license or a supplier’s

license to candidates for state or local elective office, political party committees, independent committees 

and legislative caucus committees); Neb. Rev. Stat. §§ 9-803, 49-1476.01 (prohibiting contributions from 

any person awarded major procurement by Lottery Division to candidates for state elective office); N.J. 

Stat. Ann. §§ 19:44A-20.13, -.14 (prohibiting award of contract of over $17,500 if person or entity or its 

principals, subsidiaries or political organizations made a contribution to any candidate for Governor or 

Lieutenant Governor, or to any state or county political party committee); N.M. Stat. Ann. § 13-1-

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5

Angeles, have followed suit.2

 An additional two states, Maryland and Rhode Island, require 

contractors to disclose their campaign contributions.

3

 

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,4

 while 

others are targeted to particular types of contracts. States variously define the subject class of 

 

191.1(E) (prohibiting contributions from prospective contractor, family member, or representative to a

public official during the negotiation period for a sole source or small purchase contract); Ohio Rev. Code 

§ 3517.13(I)-(Z) (prohibiting contributions from recipients of non-competitively bid government 

contractors to state and local officials responsible for awarding the contract or appointing administrators 

who award the contract); 53 Pa. Cons. Stat. § 895.704-A(a) (prohibiting award of professional services

contracts with municipal pension system if applicant or its agent, officers or employee has made a 

contribution to any municipal official or candidate for municipal office or to their political party); S.C. 

Code Ann. § 8-13-1342 (prohibiting contributions from recipients of contracts that were not 

competitively bid to public officials who were in a position to act on the contract’s award); Vt. Stat. Ann. 

tit. 32, § 109(B) (prohibiting firm that provides investment services that has a contract with the state 

treasurer from making or soliciting contributions on behalf of a candidate for the office of treasurer); Va. 

Code Ann. § 2.2-3104.01 (prohibiting Governor and Governor’s Secretaries from accepting a contribution

of over $50 from an applicant for certain state contracts); W. Va. Code § 3-8-12(d) (prohibiting any 

contractor or prospective contractor from making contributions to any political party, committee, or 

candidate for public office or to any person for political purposes). 

2

 N.Y.C. Admin. Code §§ 3-702(18), 3-703(1-a), (1-b) (imposing lower limits on contributions 

from individuals and organizations having business dealings with the city to any candidate for municipal 

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

3

 See Md. Code, Elec. Law § 14-101, et seq.; R.I. Gen. Laws § 17-27-2, -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) (requiring businesses awarded non-bid contracts to report all 

contributions made by their officers, directors, associates, partners, limited partners, owners, or 

employees, or their immediate family members, aggregating more than $1,000 annually). 

4

 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, including all entitlements for land use, all contracts (other than 

competitively bid, labor, or personal employment contracts), and all franchises”). 

Case 1:11-cv-01841-JEB Document 36 Filed 08/23/12 Page 12 of 40
6

contracts as, inter alia, industry-specific contracts,5

 contracts not subject to competitive bidding,6

or both competitive and no-bid contracts.7

 

There is no support for plaintiffs’ suggestion, however, that state laws do not cover 

contracts for personal services, such as the consulting contracts for plaintiffs Brown and Miller. 

Pls.’ SJ. Br. at 10. A few statutes regulate specific subgroups of contracts or licenses that do not 

include contracts for personal services.8

 But most state statutes are simply silent as to whether 

personal service contracts are covered,9

 or alternatively, explicitly cover contracts for “services” 

or “personal services.”10

 

The state laws also vary in terms of temporal scope. Pay-to-play laws impose 

contribution restrictions before, during and after a contract’s term, or some combination of these 

time periods. Indiana and Nebraska, for instance, prohibit the award of state lottery contracts to 

 

5

 See, e.g., Ind. Code §§ 4-30-3-19.5, 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). 

6

 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. 

7

 See, e.g., Conn. Gen. Stat. § 9-612(g)(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. § 3517.13(A)(4); W. Va. Code Ann. § 3-8-12. 

8

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

9

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

10

 See Conn. Gen. Stat. § 9-612(g)(1)(C)–(E), (g)(2) (prohibiting contributions from any “person, 

business entity or non-profit organization” that has entered into or applied for a state contract for, inter 

alia, “the rendition of services”); Haw. Rev. Stat. § 11-355(a) (prohibiting contributions from any person 

who “enters into any contract with the State” for, inter alia, “the rendition of personal services”); Ind. 

Code § 4-30-3-19.7(e), (f), (j) (prohibiting certain contributions from “persons” with contracts with the 

lottery commission for, inter alia, “consultation services”); N.J. Stat. Ann. § 19:44A-20.14 (prohibiting 

state from entering into a contract for, inter alia, “services,” with persons who made certain campaign 

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

(prohibiting certain campaign contributions from persons entering into a state contract for, inter alia, the 

“rendition of personal services”). See also N.Y.C. Admin. Code §§ 3-702(18), 3-703(1-a) (prohibiting 

contributions from, inter alia, “natural persons” with any contract for the procurement of “services” with 

the City). 

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7

anyone who has contributed to a candidate for elective office within three years preceding the 

contract’s award. See Ind. Code § 4-30-3-19.7(i); Neb. Rev. Stat. § 9-835(2). Illinois limits 

contributions from contractors either two years beyond the contract’s termination or upon 

completion of the elected official’s term of office, whichever is later. 30 Ill. Comp. Stat. 500/50-

37(b). 

Additionally, the extent to which state contribution restrictions apply to persons 

associated with the contracting entities varies significantly, and often sweep more broadly than 

the federal law. Among states that limit contractor contributions from businesses, many cover 

various “principals” of the contracting entity and their family members as well. For example, 

Connecticut’s ban covers the contracting entity’s board members, officers, managers, and those 

with a 5% ownership stake, as well as their immediate family members (spouses and dependent 

adult children). Conn. Gen. Stat. § 9-612(g)(1)(F). See also, e.g., 30 Ill. Comp. Stat. 500/50-

37(a) (covering those with 7.5% controlling interest; officers, subsidiaries and associated 

nonprofits; and their spouses and minor children); Ky. Rev. Stat. Ann. § 121.330(a) (covering 

entity’s officers and employees and their spouses); N.J. Stat. Ann. § 19:44A-20.17 (covering 

those with 10% ownership interest, subsidiaries and any “section 527” organizations controlled 

by the business entity, and the immediate family of individual contractors). By contrast, the 

federal law prohibits contributions only from the contracting entity itself. 

In short, state pay-to-play laws are wide-ranging and widely used; while their prevalence 

indicates a shared appreciation for their value as anti-corruption measures, their diversity 

underscores the importance of granting legislatures the discretion to tailor pay-to-play laws 

according to the needs, experience and goals of the relevant jurisdictions. 

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B. Enactment of State Contractor Contribution Regulations Is Often Prompted 

by Instances of Quid Pro Quo Corruption in Contracting. 

Pay-to-play laws are frequently enacted at the state and municipal level in response to a 

scandal involving attempts by contractors to purchase influence over the procurement process by 

making or soliciting campaign contributions or by directly bribing candidates and 

officeholders.11 A review of the state experiences in Connecticut, Illinois and New Jersey 

illustrates the pervasiveness of pay-to-play practices in contracting and validates concerns that 

campaign activities by contractors and prospective contractors pose a heightened threat for 

political corruption. 

1. Connecticut 

 The impetus to enact far-reaching pay-to-play legislation in Connecticut came from a 

series of high-profile scandals involving state officials and state contracting. 

On June 21, 2004, then-Governor John Rowland announced his resignation after being 

accused of accepting $107,000 worth of free vacations, construction work on his cottage and 

other favors from state contractors in return for facilitating the award of several contracts. Green 

Party of Conn. v. Garfield, 590 F. Supp. 2d 288, 305 (D. Conn. 2008), rev’d in part, 616 F.3d 

189 (2d Cir. 2010). See also John O'Neil and Avi Salzman, Ex-Governor of Connecticut Pleads 

Guilty to Corruption, N.Y. Times, Dec. 23, 2004, available at

http://www.nytimes.com/2004/12/23/nyregion/23cnd-rowl.html?oref=login. After pleading 

guilty, he was sentenced to a term of imprisonment of one year and a day. 

The Rowland prosecution was preceded by a corruption scandal involving State 

Treasurer Paul Silvester. In 1999, Silvester pled guilty to charges arising from his participation 

 

11

 See, e.g., Eliza Newlin Carney, Rules of the Game: Congress Should Heed Scandals In The 

States, Nat’l J. (last updated Feb. 16, 2011), http://www.nationaljournal.com/columns/rules-of-thegame/congress-should-heed-scandals-in-the-states-20090803. 

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in a kickback scheme wherein he invested over $500 million of the state’s pension funds with 

certain financial institutions in exchange for millions of dollars in “finder’s fees,” some of which 

were ultimately laundered through his campaign fund. Green Party, 590 F. Supp. 2d at 305. 

Additional pay-to-play scandals at both the state and municipal level in Connecticut led 

to the press coining the moniker “Corrupticut” for the state. Id. at 306, citing, e.g., Paul von 

Zielbauer, The Nutmeg State Battles the Stigma of Corrupticut, N.Y. Times, Mar. 28, 2003 

(“Nowadays, from Storrs to Stamford, there are jokes about living in Corrupticut, Connectionicut or, the new favorite, Criminalicut”). And the repeated instances of corruption in state 

elections and contracting predictably resulted in the loss of public trust, with one poll showing 

that 78% of likely Connecticut voters agreed that the way political campaigns are financed in 

Connecticut encourages candidates to grant special favors and preferential treatment to their 

contributors. Green Party, 590 F. Supp. 2d at 307. 

2. Illinois 

Illinois’ government contractor contribution ban was also enacted in the wake of a series 

of pay-to-play scandals. See 2008 Ill. Legis. Serv. Pub. Act 95-971. Governor George Ryan, in 

office from 1998 to 2002, was convicted of trading government contracts for gifts and campaign 

contributions. While serving as Illinois’s Secretary of State in the 1990s, Ryan was alleged to 

have steered leases and contracts to businesses controlled by an associate, Lawrence E. Warner, 

in exchange for kickbacks, including financial support for Ryan’s successful 1998 campaign for 

Governor. United States v. Warner, 498 F.3d 666, 675 (7th Cir. 2007). Ryan was convicted of 

18 felony charges, including racketeering and fraud, and sentenced to six and a half years in 

federal prison. Monica Davey, Ex-Governor of Illinois Gets 61⁄2 Years in Prison, N.Y. Times, 

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Sept. 7, 2006, available at

http://www.nytimes.com/2006/09/07/us/07ryan.html?_r=1&ref=georgeryan. 

Ryan’s successor, former Governor Rod Blagojevich, was impeached and convicted for 

play-to-play offenses, namely numerous charges relating to the exchange of state contracts and 

appointments for millions of dollars in contributions to his campaign committee, Friends of 

Blagojevich, as well as for gifts given directly to Blagojevich and his family members. 

Superseding Indictment, United States v. Blagojevich, et al. (N.D. Ill. Apr. 2, 2009) (No. 08 CR 

888), available at http://www.usdoj.gov/usao/iln/pr/chicago/2009/pr0402_01a.pdf. Blagojevich 

was ultimately sentenced to 14 years imprisonment. See Monica Davey, Blagojevich Sentenced 

to 14 Years in Prison, N.Y. Times, Dec. 7, 2011, available at

http://www.nytimes.com/2011/12/08/us/blagojevich-expresses-remorse-in-courtroomspeech.html. Several schemes involved directing state business relating to state pensions in 

exchange for substantial campaign contributions to Friends of Blagojevich and kickbacks to the 

Governor and his associates. Superseding Indictment, Blagojevich, at 11–13; see also Mark 

Guarino, Blagojevich indictment outlines more pay-to-play schemes, Christian Science Monitor, 

Apr. 2, 2009, available at http://www.csmonitor.com/USA/Politics/2009/0402/blagojevichindictment-outlines-more-pay-to-play-schemes/. 

Ironically, even though his administration had been under federal investigation since 

2003, Blagojevich attempted to block passage of the state contractor ban that had been motivated 

by the string of pay-to-play scandals. Timeline of the Blagojevich investigation, Chi. Trib., 

http://www.chicagotribune.com/news/chi-investigation-timeline-1208,0,2680294.story. The 

Illinois legislature ultimately voted in September 2008 to override Blagojevich’s veto and pass 

the ban. Mike McIntire and Jeff Zeleny, Obama’s Effort on Ethics Bill Had Role in Governor’s

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Fall, N.Y. Times, Dec. 9, 2008, available at http://www.nytimes.com/2008/12/10/us 

/politics/10chicago.html?pagewanted=all. According to testimony at his 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 Robinson and Michael Tarm, Alonzo Monk: Obama 

Stopped Blagojevich Senate Deal with Emil Jones, Huffington Post (June 10, 2010, 9:15 PM), 

http://www.huffingtonpost.com/2010/06/10/alonzo-monk-obama-phone-c_n_608220.html. 

Federal agents were tipped off to Blagojevich’s redoubled efforts, and obtained a wire tap for the 

Governor’s phone. See McIntire and Zeleny, supra. In a fitting twist of fate, the wiretap in turn 

recorded his most spectacular feat of “pay-to-play,” namely his attempt to sell the U.S. Senate 

seat being vacated by then President-elect Obama. Id. 

3. New Jersey 

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

corruption scandals. 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 emerged as the sole bidder. The project ultimately had cost overruns 

exceeding $200 million and the system broke down weeks after its launch. N.J. Comm’n of 

Investigation, N.J. Enhanced Motor Vehicle Inspection Contract, at 1–2 (2002), available at

http://www.state.nj.us/sci/pdf/mvinspect.pdf. 

These irregularities prompted an investigation of the incident, which discovered that 

Parsons had developed a “political strategy” including lobbying and campaign support to obtain 

the contract. Id. This “political strategy” paid off for Parsons, as it was able to meet privately 

with senior state officials to discuss the state’s Request for Proposals (RFP) and received 

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exclusive information prior to the RFP becoming public that gave it “a head start on the 

deployment of corporate resources for a bid submission.” Id. at 3–4. The investigation further 

found that during the four years bracketing the contract award, entities associated with Parsons 

made over $500,000 in contributions to candidates and political committees affiliated with the 

Republican Party, which raised “serious concerns about the integrity of the state contract 

procurement process that go well beyond the events and circumstances surrounding the specific 

[Parsons contract].” Id. at 4; see also id. at 62. The investigation concluded that the bidding 

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

favored treatment.” Id. at 3. 

The foregoing examples from Connecticut, Illinois and New Jersey represent only a small 

sample of the pay to play scandals that arise in government contracting. To be sure, plaintiffs 

may attempt to distinguish these cases by arguing that that the state contracting process is 

different than the federal system, or that some scandals involved bribes and kickbacks as well as 

campaign contributions. See, e.g., Pls.’ PI Br. at 29. But this argument misses the point. 

Although there may be differences between state and federal contracting, the prevalence of quid 

pro quo schemes at the state and local levels demonstrates that concerns about the corruptive 

potential of campaign activity by contractors are legitimate and grounded in fact. As this Court 

already noted, 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.” Wagner, 2012 WL 1255145, at *7. 

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C. Courts Have Widely Held That Restricting Government Contractor 

Contributions Is an Appropriate Defense Against Actual and Apparent 

Corruption. 

In light of the ubiquity of pay-to-play practices and need for legislative flexibility in 

crafting solutions, it is unsurprising that the courts have generally viewed state restrictions on 

contractor contributions with approval.12 In sustaining the constitutionality of pay-to-play 

restrictions, courts have emphasized both the importance of the anti-corruption interests served 

by such limits and the legislature’s discretion to define the contours of such limits. 

In Green Party, the Second Circuit Court of Appeals upheld a Connecticut provision 

banning contributions from state contractors. Unlike section 441c, the law considered in Green 

Party applied not just to the contracting individual or entity, but also to certain “principals” and 

immediate family members of contractors. 616 F.3d 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 banning contributions from principals and immediate family members. Id. at 203 

(reasoning that “the 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”). 

A subsequent decision in the Second Circuit also recognized that heightened restrictions 

on state contractors were justified by the governmental interest in preventing the actuality and 

appearance of corruption. In Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011), the Court 

 

12 The D.C. Circuit Court of Appeals has twice upheld federal laws restricting campaign 

contributions from contractors. In FEC v. Weinstein, 462 F. Supp. 243 (D.C. Cir. 1978), the Court 

approved section 441c, noting that “the importance of the governmental interest” in preventing electoral 

corruption “through the creation of political debts” had “never been doubted.” Id. at 248. See also Blount 

v. SEC, 61 F.3d 938, 944–45 (D.C. Cir. 1995) (upholding MSRB Rule G-37, which restricted campaign 

contributions by participants in municipal bond industry, on ground that government interest was “selfevident,” “obvious and substantial”). 

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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, No. 10-cv-00497, 2012 WL 983559 (D. Haw., Mar. 21 2012), 

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

contractors, regardless of the amount of the contract, from making contributions to any candidate 

committees or non-candidate committees. Haw. Rev. Stat. § 11–355. The Court upheld the ban 

based on the government’s interest in preventing actual and apparent 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.” Id. at *30; see also id. at n.27 (recounting chain of 

corruption scandals that preceded law). 

State courts have likewise sustained contractor contribution limits. See, e.g., 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 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 

contributions limits applicable to certain highly-regulated industries that are deemed to pose a 

greater threat of political corruption. See, e.g., Casino Ass’n of La. v. State ex rel. Foster, 820 

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So.2d 494 (La. 2002) (rejecting arguments that a state law prohibiting any political contributions 

from any officer, director, or certain employees in the casino industry, or the spouse of any of the 

foregoing was unconstitutionally broad); Soto v. New Jersey, 565 A.2d 1088 (N.J. 1989) 

(upholding similar prohibition on casino-industry contributions); Schiller Park Colonial Inn, Inc. 

v. Berz, 349 N.E.2d 61 (Ill. 1976) (rejecting arguments that a state law prohibiting any political 

contributions from any officer, associate, agent, representative, or employee of a liquor licensee 

was unconstitutionally broad).13

Plaintiff cite Dallman v. Ritter, 225 P.3d 610 (Colo. 2010) as a case reaching a contrary 

result, but their reliance is misplaced. 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 provision, 

which applied to the contracting entity as well as a broadly defined class of family members14

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

 

13 A somewhat different, though related, line of decisions has approved campaign finance 

restrictions targeting another group that poses a particular risk of corruption, namely, lobbyists. Most 

recently, the Fourth Circuit Court of Appeal upheld a North Carolina statute that imposed a complete ban 

on campaign contributions from lobbyists. See Preston v. Leake, 660 F.3d 726, 737 (4th Cir. 2011) 

(upholding contribution ban on lobbyists because role of a lobbyist “by its very nature . . . is prone to 

corruption and therefore especially susceptible to public suspicion of corruption”). This decision 

followed a number of rulings that had upheld somewhat narrower restrictions on contributions from 

lobbyists. Institute of Governmental Advocates v. Fair Political Practices Comm’n, 164 F. Supp. 2d 1183 

(E.D. Cal. 2001) (upholding California lobbyist contribution restriction); N.C. Right to Life, Inc. v. 

Bartlett, 168 F.3d 705, 718 (4th Cir. 1999) (upholding ban on lobbyist contributions during legislative 

sessions); State v. Alaska Civil Liberties Union, 978 P.2d 597, 619-20 (Alaska 1999) (upholding 

prohibition on contributions from lobbyist to legislative candidates in districts outside the district in 

which the lobbyist can vote); Kimbell v. Hooper, 665 A.2d 41, 51 (Vt. 1995) (upholding ban on lobbyist 

contributions during legislative sessions). 

14 The Colorado law broadly defined immediate family member to include “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, sister-in-law, aunt, niece, nephew, guardian, or 

domestic partner.” Ritter, 225 P.3d at 618. 

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contract’s completion; and imposed harsh penalties for violations.15 Id. at 617. Finally, the Act 

expansively defined its reach to include all political subdivisions of the state, including not only 

local governing bodies but also school districts, special districts, and quasi-public bodies 

receiving state funding. Id. at 618. While Plaintiffs correctly point out that the Colorado law 

only applied to sole source contracts valued above a $100,000 threshold, that fact hardly renders 

it less restrictive than section 441c. See Pls.’ PI Br. at 31–32. Given the expansive scope of the 

Colorado law, the Ritter decision provides scant support for plaintiffs’ constitutional 

arguments.16

 

II. The Federal Contractor Contribution Ban is Constitutional.

A. Section 441c Constitutionally Advances The Important Government Interest 

in Preventing Actual And Apparent Corruption In Federal Contracting. 

The ban now found at 2 U.S.C. § 441c was originally enacted more than 70 years ago to 

prevent both actual and apparent corruption in the award of federal contracts. As the FEC has 

exhaustively documented in its brief, and this Court has already found, the ban was originally 

enacted based on concerns regarding corruption in federal contracting process, specifically the 

“Democratic campaign book scandal.” See Wagner, 2012 WL 1255145, at *6; FEC Opp. to Pls’ 

Mot. for a Prelim. Inj. 4-10 (Mar. 1, 2012). There can be no doubt that the prohibition on 

 

15 Contractors who violated the Act’s provisions were ineligible to hold state office or any state 

contracts for three years. Additionally, government officials who knowingly violated the Act were 

punishable by removal from office and disqualification from future office. Ritter, 225 P.3d at 617. 

16 Only a handful of other cases have invalidated local pay-to-play laws, and were generally decided 

on alternative grounds. See, e.g., 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); Lavin v. Husted, No. 11-3908, 2012 WL 3140909, at *3 

(6th Cir. Aug. 3, 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). None of these decisions 

casts any doubt on the constitutionality of the federal ban. 

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

integrity of the electoral system by ensuring that federal contracts were awarded based on merit.” 

Wagner, 2012 WL 1255145, at *5. 

As the review of the state and municipal experience demonstrates, evidence of corruption 

in contracting is still plentiful and concerns about pay-to-play politics have not diminished in the 

period since the enactment of the federal ban. Plaintiffs suggest that the FEC has offered no 

evidence of recent scandals in federal contracting. Id. at *7; Pls.’ SJ Br. at 7 (asserting that FEC 

failed to provide evidence that federal officeholders had “tr[ied] to influence some federal 

contracts based on making, or failing to make, a political contribution”). The seeming absence 

of recent corruption involving federal contractors, however, hardly suggests that the contribution 

ban is unnecessary; instead, as this Court already noted, it suggests that the ban is working. 

Wagner, 2012 WL 1255145, at *7. 

But even if political quid pro quos were to “occur only occasionally” in contracting, 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 

(noting that “[t]he best means of prevention is to identify and remove the temptation”). As the 

Supreme Court stated in Shrink Missouri, “[t]he quantum of empirical evidence needed to satisfy 

heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and 

plausibility of the justification raised.” 528 U.S. at 391. Here, 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.” Wagner, 2012 WL 1255145, at *7. Therefore, even if the evidence of 

corruption were less abundant than it is here, a prophylactic approach would still be permissible. 

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See also Blount v. SEC, 61 F.3d 938, 945 (D.C. Cir. 1995) (“Although the record contains only 

allegations, no 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 the need to prevent instances of actual corruption in 

federal contracting is the need to avoid the appearance of corruption. See Buckley v. Valeo, 424 

U.S. 1, 27 (1976) (“Congress could legitimately conclude that the avoidance of the appearance of 

improper influence ‘is also critical . . . if confidence in the system of representative Government 

is not to be eroded to a disastrous extent.’”) (citation omitted). Recognizing the importance of 

this interest, the Second Circuit observed in upholding New York City’s “doing business” law 

that recurrent pay-to-play scandals had “created a climate of distrust that feeds the alreadyestablished public perception of corruption.” Ognibene, 671 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 Green Party, “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, as multiple 

courts have found, limiting contractor contributions is a key measure to combat the public 

perception that public business is for sale to private interests. 

Concerns about federal government corruption are widespread. According to a recent 

USA Today/Gallup poll, reducing corruption in the federal government was the second-highest 

priority for respondents of both political parties, trailing only job creation.17 Furthermore, the 

recurrent corruption scandals at the state and local level create an appearance of impropriety that 

 

17 Jeffrey M. Jones, Americans Want Next President to Prioritize Jobs, Corruption, Gallup Politics 

(July 30, 2012), http://www.gallup.com/poll/156347/Americans-Next-President-Prioritize-JobsCorruption.aspx. 

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affects public confidence in the integrity of federal contracting processes. Clearly, high-profile 

state corruption scandals have repercussions beyond state borders, as the national outrage stirred 

by the Blagojevich scandal attests. By preventing the appearance of corruption in federal 

contracting, section 441c preserves the trust in electoral and government integrity that is critical 

to democratic self-government. 

B. Section 441c Is Closely Drawn to Advance the Government’s AntiCorruption Interest. 

The prohibition on contractor contributions is designed to prevent corruption and the 

appearance of corruption and to ensure a merit-based system of federal contracts; its scope is 

limited in accordance with those goals. Far from being fatally overbroad, section 441c is what 

the Fourth Circuit would label a mere “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). 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 cabin the campaign activity that Congress deemed likeliest to engender actual 

or apparent corruption. 

1. Section 441c Applies to Contributions to Federal Candidates, Party 

Committees and Political Action Committees. 

The FEC has interpreted section 441c to apply only to federal elections, i.e., elections for 

the Presidency, Vice Presidency, U.S. House of Representatives, U.S. Senate, and Delegate or 

Resident Commissioner. See 11 C.F.R. § 115.2(a). However, because most contracts are 

awarded at the agency level, plaintiffs argue that the possibility that the President, a presidential 

appointee, or a Member of Congress might attempt to influence the contracting process is “so 

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remote that it cannot satisfy the First Amendment.” See Pls.’ SJ Br. at 8. But there is no 

impermeable boundary between agencies and elected officials. Indeed, agency officials often 

depend on the solicitude of legislators and presidential appointees, whether for appropriations, 

favorable appointments, or other and less tangible rewards. 

Plaintiffs identify the Connecticut ban upheld in Green Party, as less restrictive than 

section 441c because it is “branch-specific”—i.e., it only bans contributions to officials in the 

government branch with oversight authority over a particular contract. See Pls.’ SJ Br. at 8–9. 

However, the Connecticut pay-to-play law is substantially broader than the federal law in other 

key respects: 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(g)(1)(F); it prohibits 

all state contractors from making contributions to state and town party committees, see id. § 9-

601(1)–(2); and its temporal coverage extends for as much as one year after a contract’s 

termination, see id. § 9-612(g)(1)(D) (entities deemed “state contractors” until December 31 of 

the year in which contract terminates). Plaintiffs’ assertion that Green Party involved a less 

stringent law than section 441c is thus undercut by the comparative expansiveness of the 

Connecticut statute. 

Plaintiffs also suggest that the ban could carve out contributions to members of Congress 

who are not “in a leadership position” or on a committee with appropriations authority. This 

suggestion ignores the dynamics of political fundraising. Federal officeholders operate in a 

political culture with significant professional and social overlap, so identifying the particular 

officials who have sufficient political capital to influence a contract’s award or oversight is not 

as simple as identifying officeholders with explicit statutory authority. See, e.g., FEC Mem. 

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Supp. Summ. J. 8 (describing how political appointees can “steer contracts to those who make 

contributions to a favored candidate or party”). Indeed, given the dynamic nature of legislative 

committee membership—and the complexity of federal procurement processes—knowing the 

source of authority for the award of any given contract is not necessarily straightforward. Even 

in the comparatively small jurisdiction of Hawaii, a federal district court recognized as much in 

upholding the state’s contractor contribution ban: 

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. 

Yamada, 2012 WL 983559, at *31. The Hawaii court went on to note that, under the plaintiff’s 

logic, analyzing the constitutionality of a contractor contribution limit would require courts “to 

know 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 *32. The Yamada court rightly recognized that the kind of line-drawing urged by plaintiffs 

here would be unpredictable, burdensome and fundamentally unsuited to the judicial role. 

Furthermore, in arguing that the law is overbroad because it covers contributions to party 

committees18 and candidates running for offices without direct authority over contracting, 

plaintiffs fail to take into account the possibility of transfers between candidates, and between 

parties and candidates. Federal law allows for unrestricted transfers between, inter alia, national 

 

18 Contractor contributions to unconnected political committees could also be routed to the 

campaign coffers of officials with oversight over contracting. The Supreme Court has already 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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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). 

Consequently, contributions from a contractor to party committees can easily be aggregated and 

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

the Supreme Court has already recognized the unique capacity of parties to serve as “effective 

conduits for donors desiring to corrupt federal candidates and officeholders.” McConnell, 540 

U.S. at 156 n.51. Because of the “close affiliation” between parties and elected officials, parties 

are placed “in a unique position, ‘whether they like it or not,’ to serve ‘as agents for spending on 

behalf of those who seek to produce obligated officeholders.’” Id. at 145 (quoting FEC v. Colo. 

Republican Fed. Campaign Comm., 533 U.S. 431, 452 (2001)). Thus 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. 

2. Section 441c Applies to 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 section 441c does not 

reach individuals associated with or employed by federal contractors, nor political committees 

controlled by the contractor. Instead, section 441c targets the specific class of persons and 

entities Congress deemed uniquely positioned to exert improper influence through campaign 

contributions—or to fall victim to coercion to give such contributions. 

Plaintiffs contend that, by regulating only the contracting entity, section 441c 

impermissibly favors corporations over individuals because the ban allows a corporation to 

contribute through a PAC or through the individual donations of its officers, directors and 

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employees, whereas individual contractors have no option to make campaign contributions. But, 

this Court has recognized, and plaintiffs concede, that 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 Pls.’ SJ Br. at 19; Wagner, 2012 WL 1255145, at 

*14. Plaintiff must therefore resort to arguing that (1) direct contributions from corporations are 

the “functional equivalent” of contributions from corporate PACs or (2) corporations and their 

PACs would be perceived as equivalent by any person “with knowledge of the facts.” See Pls.’ 

SJ Br. at 19. Both claims are at odds with settled principles of corporate jurisprudence and 

cannot succeed. 

First, as the Supreme Court has confirmed, a PAC is a “separate association from the 

corporation,” see Citizens United v. FEC, 130 S. Ct. 876, 897 (2010), with separate legal rights 

and obligations, and Congress may regulate them as separate entities. Indeed, the Citizens 

United Court specifically found that a corporate PAC “does not allow corporations to speak,” id. 

(emphasis added), directly refuting plaintiffs’ theory that corporate contributions and corporate 

PAC contributions are functionally equivalent. Second, plaintiffs have no grounds for their 

assertion that someone “with knowledge of the facts” would perceive corporate PAC 

contributions as equivalent to direct corporate contributions. This is sheer speculation. 

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

corporation and its officers, employees and shareholders. Few in this class have any input into 

whether a corporation becomes a federal contractor—indeed, in the case of a large corporation, 

one can safely assume that many are likely ignorant of the corporation’s specific contracts. 

Furthermore, any resultant benefit to the class is likely to be diffuse. Plaintiffs offer no reason 

why the contributions of a corporation’s officers, employees and shareholders should be 

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necessarily equated with those of the corporation for the purpose of the contractor contribution 

ban. 

3. Section 441c Applies Through Completion of Contract. 

The federal law is also temporally tailored, applying only to individuals and businesses 

actively bidding for, or performing under, contracts with the federal government. Because 

section 441c targets corruption and favoritism until a federal contract is completed, plaintiffs 

argue that it is overbroad. Pls.’ SJ Br. at 11. But the potential for corruption and the appearance 

of corruption does not vanish once a contract is awarded. For example, unforeseen costs late in 

performance of a contract might require an additional appropriation of funds; permitting 

contractors to make campaign contributions before securing such additional funds could easily 

give rise to impropriety, or at least the appearance of impropriety. Furthermore, a contractor is 

just as likely—if not more likely—to give post hoc contributions to thank helpful officeholders 

once a contract is secured as it is to give contributions in the negotiation stage when the outcome 

of the contracting process is still uncertain. 

In recognition of this, most state contribution restrictions apply throughout the 

performance of a contract, see supra Section I.A., and indeed some laws prohibit contributions 

even following completion of the contract. See, e.g., Conn. Gen. Stat. § 9-612(g)(1)(D) (ban 

applies through Dec. 31 in year contract terminates); 30 Ill. Comp. Stat. 500/50-37(b) (2 years or 

duration of awarding officeholder’s term, whichever is longer); Ind. Code § 4-30-3-19.5(j) (three 

years after termination); Neb. Rev. Stat. § 49-1476.01 (three years from award of contract). 

Thus, if anything, the temporal scope of the federal restriction is narrower than that of many of 

its state counterparts, making it more, not less, tailored to its anti-corruption objectives. See, 

e.g., McConnell, 540 U.S. at 167 (upholding certain soft money regulations on grounds that they 

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are “reasonably tailored, with various temporal . . . limitations designed to focus the regulations 

on the important anticorruption interests to be served”). 

4. Section 441c Is a Prohibition on Certain Contributions. 

Although section 441c bans federal contractors from making political contributions, 

contractors are free to pursue other forms of political expression. As this Court has already 

noted, individual federal contractors may still express their political views in a variety of ways, 

many of which are “more expressive than the act of making a political contribution.” Wagner, 

2012 WL 1255145, at *9 (citing Buckley, 424 U.S. at 21). While contractors are barred from 

making political contributions, they are permitted to volunteer their time on a behalf of a 

candidate or party committee, and most importantly, to engage in independent spending without 

restriction. Buckley, 424 U.S. at 28 (noting that contribution limit “leav[es] persons free to 

engage in independent political expression” and “to associate actively through volunteering their 

services”). The mere fact that plaintiffs have elected not to exercise these other forms of 

political expression in no way demonstrates that section 441c is unconstitutional. 

Despite the ample avenues for political expression left open by section 441c, plaintiffs 

argue that the law is overbroad because it does not allow for small contributions. See Pls.’ SJ Br. 

at 10–12. As a practical matter, it is difficult to fathom how a contractor’s nominal contribution 

of $200 would be more expressive than, for instance, offering to host a fundraiser at her home. 

But plaintiffs also ignore that a limit, as opposed to a ban, would allow a single contractor to give 

“nominal” contributions to potentially hundreds of candidates, party committees and PACs, and 

would thereby allow large aggregate sums to be donated. Indeed, if a contractor gave just $100 

to the candidates of one party in each of the 468 federal congressional elections in a cycle, its 

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giving would exceed the $46,200 aggregate limit on contributions to federal candidates.19

 

Because of liberal transfer rules, this money could be quickly routed back to a single party 

committee, which could disburse these funds in such a way as to maximize the contributor’s 

influence over those officeholders with direct or indirect authority over the relevant contracts. 

Finally, as the Second Circuit acknowledged in Green Party, even small contributions can create 

an appearance of corruption. 616 F.3d at 205 (“Even if small contractor contributions would 

have been unlikely to influence state officials, those contributions could have still given rise to 

the appearance that contractors are able to exert improper influence on state officials.”). 

At base, plaintiffs’ fundamental objection to the law appears to be simply that section 

441c operates as a ban, not a limit. On this basis, plaintiffs attempt to analogize section 441c to 

the ban on contribution from minors that was struck down in McConnell. See Pls.’ SJ Br. at 5–6. 

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 

rather because parents could circumvent individual contribution limits by contributing in the 

names of their minor children. 540 U.S. at 231–32. The McConnell Court struck down the 

minor contribution ban not because it was a ban, as plaintiffs allege, but because there was “scant 

evidence” of such circumvention, and in any event the asserted anti-circumvention interest was 

already addressed by a provision barring contributions 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 because this class, by virtue 

of its heightened incentive to purchase influence over candidates and officeholders, has been 

 

19 Plaintiffs would presumably still be subject to the generally-applicable federal biennial limits. 

All contributions by an individual to federal candidates are capped at an aggregate of $46,200 on a 

biennial basis (“$46,200 aggregate limit”), 2 U.S.C. § 441a(a)(3)(A), and all contributions by an 

individual to non-candidate political committees (including party committees) are capped at $70,800 

biennially (“$70,800 aggregate limit”), id. § 441a(a)(3)(B). 

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deemed to pose a greater risk of direct corruption than an ordinary donor. Further, as the 

evidence of corruption at the state level demonstrates, concerns about pay-to-play are not merely 

conjectural. And in contrast to the under-18 contribution restriction, the government’s anticorruption interest here cannot be adequately addressed by other measures: clearly, generallyapplicable contribution limits have not prevented contracting scandals at the state and local 

levels. 

Finally, multiple courts have upheld state “bans” on 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 does not 

necessarily suggest a law is overbroad, but in fact can indicate that a law is properly tailored: 

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. The wisdom of these 

particular choices (the scope of the ban or any exceptions) is not for courts to 

decide; courts decide whether the choices are closely tailored to sufficiently 

important government interests. And this court upholds Hawaii’s choice. 

2012 WL 983559 at *32 (internal citations and footnotes omitted) (quoting Green Party, 

616 F.3d at 205). 

C. The Court Should Defer to Congress on Questions of Policy. 

To support their assertion of overbreadth, plaintiffs also propose a variety of ways that 

section 441c could be narrowed without losing “meaningful protection against the appearance of 

improper ‘pay-to-play.’” Pls.’ SJ Br. at 10–13. But their three-page list of proposed reforms that 

would “relax” the ban does not demonstrate that the law is overbroad; to the contrary, it 

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underscores that the minutiae of policy is best left to Congress. Indeed, plaintiffs in this section 

are not so much making constitutional arguments, as expressing their opinions on issues that are 

essentially legislative, suggesting, inter alia, that Congress should exempt “sole source” 

contracts, establish a minimum amount for regulated contracts, and substitute a contribution 

restriction with a disqualification protocol. In short, plaintiffs are effectively requesting that this 

Court replace the judgment of a democratically-elected legislature with plaintiffs’ own 

legislative preferences. But the courts “have no scalpel to probe” complex legislative 

enactments, see Randall, 548 U.S. at 248, and this Court should reject plaintiffs’ invitation to do 

so. 

First, plaintiffs highlight that the federal ban does not specify a threshold contract 

amount, and argue that the inclusion of a minimum amount in, for instance, the Connecticut 

contribution ban, demonstrates that the federal ban is overbroad. But the presence or absence of 

such a threshold must be considered in the context of the law’s overall tailoring. While the 

Connecticut law indeed established a threshold contract amount of $50,000, its coverage sweeps 

substantially more broadly than the federal ban overall.20 Moreover, plaintiffs are selectively 

blind in this comparison, and conveniently ignore that several states laws also do not include 

minimum contract amounts as a threshold for regulation.21 Furthermore, it is not necessarily true 

that “[n]o reasonable person would believe that anyone would make a contribution of any 

amount in order to obtain a contract” of the size of plaintiffs’ contracts, as plaintiffs maintain. 

Pls.’ SJ Br. at 10. This is pure speculation on plaintiffs’ part. Indeed, Congress may have 

determined that the award of lower-value individual personal service contracts is more likely to 

 

20

 See supra Section II.B.1, discussing the scope of Connecticut’s law. 

21

 See supra Section I.A. 

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be influenced by political contributions than is the award of high-profile million- or billion-dollar 

procurement contracts subject to greater public scrutiny. 

Plaintiffs also urge this Court to exclude competitive and sole source contracts from the 

requirements of section 441c. While open and competitive bidding processes might be less 

susceptible to improper influence, they do not obviate the risk of corruption. Even when 

contracts are competitively bid, government officials still exercise discretion in myriad ways. 

For example, officials usually have discretionary authority in determining whether bids conform 

to contract specifications; whether to reject bids for exceeding the estimated cost; and whether to 

approve change orders once a contract is granted. See In Re Earle Asphalt, 950 A.2d at 323–24. 

As the Parsons scandal in New Jersey illustrates, oftentimes contractors contribute precisely so 

that an officeholder will manipulate contract specifications or shape the RFP to favor the 

contractor in a “competitive” bidding situation. See Section I.B. supra. The fact that so many 

states that have enacted some form of pay-to-play restrictions apply them to both no-bid and 

competitive-bid contracts makes clear that many legislatures have determined that both processes 

give rise to corruption and the appearance of corruption.22

 

Plaintiffs also suggest a number of changes to section 441c that would not clearly make it 

less restrictive than the current ban. For example, plaintiffs urge the creation of a carve-out for 

individual contractors who are the “functional equivalent of federal employees.” Pls.’ SJ Br. at 

10. As an initial matter, distinguishing between contractors who are and are not “functionally 

equivalent to federal employees” is far more complex than plaintiffs acknowledge. Certainly 

plaintiffs offer no particular criteria for making this determination, and it is unclear why certain 

attributes of plaintiffs’ work experience highlighted in the brief, i.e., that a federal agency issues

their paychecks and handles their tax withdrawals, have any bearing on the corruptive potential 

 

22

 See supra notes 2–8. 

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of their campaign activity. See Pls.’ SJ Br. at 3. Even beyond the inherent definitional problems 

associated with such a test, however, the 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 prohibited 

from holding political fundraisers, or engaging in many volunteer activities for a campaign, such 

as distributing campaign materials or performing campaign related chores. See 5 C.F.R. §§ 

734.303, 734.408-12; see also Less Restricted Employees—Political Restrictions and Prohibited 

Activities, U.S. Office of Special Counsel, 

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

treating contractors like employees would even have speech-enhancing effect plaintiffs seek. If 

indeed plaintiffs were regulated as if they were the functional equivalent of employees, they 

would be subject to a greater number of campaign restrictions, not fewer. 

Plaintiffs also propose addressing pay-to-play “from the contract side,” as does the 

MSRB rule upheld in Blount, 61 F.3d at 944–45, instead of restricting contributions during a 

contract’s negotiation and performance. See Pls.’ SJ Br. at 11. Under this regime, a campaign

contributor would be disqualified from bidding on a federal contract for two years after making a 

contribution. However, substituting a two-year disqualification period is not necessarily less 

restrictive than a contribution ban covering only the duration of a contract. The MSRB rule 

applies to a narrow and relatively sophisticated class of investors in a single, highly-regulated 

market. Other federal agencies seeking personal service contractors, on the other hand, draw 

from a wide-ranging pool of professions. Accordingly, if section 441c were to be replaced with 

an ex ante rule, it would be difficult to provide adequate notice to all potential contractors that 

certain political donations could disqualify them from future contracts. Addressing pay-to-play 

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“from the contract side,” in light of the attendant notice and enforcement problems, is simply not 

a feasible alternative to the current ban—nor is it even a more “relaxed” alternative. 

In short, this Court should reject plaintiffs’ attempts to invalidate a duly-enacted federal 

law as overbroad based purely upon policy disagreements. As noted in Yamada, “[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.” 2012 WL 983559, at *32. 

D. Section 441c Is Not Underinclusive. 

Plaintiffs also contend that the federal contractor contribution ban is unconstitutionally 

underinclusive because it fails to capture all situations that plaintiffs claim might lead to 

corruption or its appearance. Pls.’ SJ Br. 12–16. But it is well established that a statute is not 

“invalid under the Constitution because it might have gone farther than it did . . . .” Buckley, 424 

U.S. at 105. “Reform may take one step at a time, addressing itself to the phase of the problem 

which seems most acute to the legislative mind.” Id. (internal citations and quotations omitted). 

In Blount, the D.C. Circuit reiterated 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. As the Court there recognized, Congress need 

not address all aspects of a problem at once, particularly in the context of First Amendment 

speech. See id. 

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). In support of their underinclusiveness claim, plaintiffs point to certain groups that do not 

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fall within the strictures of section 441c, such as federal grant recipients, federal loan recipients 

and prospective military academy students, whom they allege are similarly situated to federal 

contractors. See Pls.’ SJ Br. at 13–15. But plaintiffs fail to explain why Congress’ decision not 

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

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

ineffective as to advance no “substantial governmental interest.” Furthermore, most of the states 

and municipalities with pay-to-play statutes made similar determinations as to the regulated 

class, as very few state laws cover grants or loans, and indeed, several state laws cover only 

limited varieties of contracts. See Section I.A supra. Congress was thus hardly alone in its 

judgment that campaign activity by governmental contractors was “the phase of the problem 

which seems most acute.”23 Given Congress’ stated goal of preventing corruption and its 

appearance, the decision to ban contributions from federal contractors and not 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 (stating that “[t]he 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’”). 

CONCLUSION 

For the foregoing reasons, the challenged law, see 2 U.S.C. § 441c, does not violate the 

First Amendment. Accordingly, this Court should deny plaintiffs’ motion for summary 

judgment, and grant summary judgment in favor of the FEC. 

 

 

23 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). 

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Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

Tara Malloy 

(D.C. Bar No. 988280) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

(202) 736-2200 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, DC 20036 

(202) 429-2008 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON 

& PERRY, LLP 

1425 K Street, NW 

Suite 600 

Washington, DC 20005 

(202) 682-0240 

Counsel for Amici Curiae 

Dated: August 22, 2012 

 

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