UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

INGA L. PARSONS, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1265 (JEB) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION 

 ) 

 Defendant. ) 

_______________________________________) 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO PLAINTIFFS’ MOTION 

FOR CERTIFICATION ORDER PURSUANT TO 2 U.S.C. § 437h 

Plaintiffs’ motion to certify constitutional issues in this case challenging the prohibition 

on contributions by federal contractors should be denied because it is plainly premature. Filing 

their motion on the same day as their complaint, plaintiffs seek to rush this case to the en banc

Court of Appeals, bypassing this Court’s well-established role under 2 U.S.C. § 437h of making 

threshold determinations and building a record sufficient for appellate review. In particular, 

granting the motion now would deny the Federal Election Commission (“FEC” or 

“Commission”) a fair opportunity to consider whether to file a motion to dismiss or develop 

evidence regarding the novel question of whether the contribution ban in 2 U.S.C. § 441c even 

applies to Criminal Justice Act (“CJA”) attorneys, as well as to conduct discovery into the nature 

of plaintiffs’ financial relationships with the government. 

The Commission may move to dismiss on the grounds that plaintiffs lack standing. The 

Commission has not directly addressed the extent to which 2 U.S.C. § 441c applies to CJA panel 

lawyers like the plaintiffs, who do not appear to have written contracts with the government. 

Section 441c thus may not prevent plaintiffs from making contributions, in which case plaintiffs 

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would not have standing to bring this lawsuit. Before certifying any questions under section 

437h to a court of appeals, district courts have an obligation to determine whether the plaintiffs 

“have [Article III] standing to raise the constitutional claim.” Cal. Med. Ass’n v. FEC, 453 U.S. 

182, 192 n.14 (1981) (citations omitted); see also id. (“Furthermore, § 437h cannot properly be 

used to compel federal courts to decide constitutional challenges in cases where the resolution of 

unsettled questions of statutory interpretation may remove the need for constitutional 

adjudication.”) The Federal Rules of Civil Procedure explicitly grant agencies of the United 

States 60 days following service to file responsive pleadings. Fed. R. Civ. P. 12 (a)(2). The 

Commission requires that period to evaluate and determine whether to file a motion to dismiss 

due to lack of jurisdiction, including whether there is currently an adequate factual basis to assess 

plaintiffs’ standing or whether jurisdictional discovery is necessary. 

If the Commission chooses not to file a motion to dismiss, discovery into plaintiffs’ 

particular circumstances will be necessary before the Court addresses certification and just as 

critical as it was in Wagner v. FEC, Civ. No. 11-1841 (D.D.C.), the case that plaintiffs claim is a 

“companion” of this one. (Mem. in Support of Mot. for Certification Order Pursuant to 2 U.S.C. 

§ 437h (“Pls.’ Mem.”) at 1 (Doc. No. 2-1).) The Supreme Court has made clear that certification 

should occur only after the district court has compiled a “fully developed factual record” to allow 

for proper adjudication in the court of appeals. See Cal. Med. Ass’n., 453 U.S. at 192 n.14. 

Plaintiffs argue that there is no need for record development here because “[t]his Court’s 

Certification Order of June 5, 2013, in Wagner v. FEC contains most of the facts that bear on the 

constitutional claims at issue in this case.” (Pls.’ Mem. at 2.) But this Court in Wagner, at the 

request of the plaintiffs in that case, specifically limited its findings to “facts about Plaintiffs, 

their particular circumstances, and some background about the federal contracting process.” See 

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Wagner, 11-cv-1841 (D.D.C.), Certification Order (Doc. No. 51) at 4. Few broadly applicable 

facts about the history of and potential for corruption in federal contracting generally were 

included. As a result, virtually none of the specific findings of fact in Wagner are applicable to 

this case, which has different plaintiffs with different types of economic arrangements with the 

government and no apparent connection to the federal contracting processes considered in 

Wagner. Indeed, the party-specific Wagner findings actually underline the need for similar 

factual development here regarding the current case plaintiffs. Moreover, the potential that 

Wagner may become moot is no reason to rush this case to the en banc court. On the contrary, 

because plaintiffs may some day be the only ones challenging 2 U.S.C. § 441c, building a factual 

record about them is just as critical as if they were the only current challengers. 

Plaintiffs’ motion to certify questions should therefore be denied without prejudice to refiling after the Commission has been given the time it is allowed under the Federal Rules to 

determine whether to file a motion to dismiss, and if it does not, after an adequate opportunity 

for discovery and the creation of a record sufficient for any appellate review. 

I. CERTIFICATION IS PREMATURE UNTIL THE COMMISSION HAS BEEN 

GIVEN AN OPPORTUNITY TO FILE A MOTION TO DISMISS FOR LACK OF 

JURISDICTION, AND POTENTIALLY PROVIDE THE COURT WITH A 

RECORD FOR ITS THRESHOLD DETERMINATIONS 

Plaintiffs may lack standing to bring their claims, and if they do, those claims should be 

dismissed and no certification of questions should occur. See Cal. Med. Ass’n, 453 U.S. at 192 

n.14. The Commission appears not to have directly addressed the extent to which CJA attorneys 

may be prohibited from making campaign contributions pursuant to 2 U.S.C. § 441c in previous 

matters. The statute bars a person “who enters into any contract with the United States or any 

department or agency thereof” from making contributions only from the time contract 

negotiations start until performance is complete or the negotiations end. 2 U.S.C. § 441c. The 

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Commission has, however, addressed the scope of section 441c on several occasions. The 

Commission is considering whether to file a motion to dismiss on the grounds that section 441c 

does not apply to plaintiffs, and whether to take some limited discovery about plaintiffs’ 

particular situations for the Court’s consideration during the factfinding phase should the 

Commission not file a motion to dismiss. 

Plaintiffs allege that they have been appointed to panels of attorneys who represent 

federal criminal defendants pursuant to CJA, 18 U.S.C. § 3006A, and that they have received 

federal funds to perform that work. (Pls.’ Mem. at 2.) However, neither of the plaintiffs’ 

declarations indicates that that plaintiff has a written contract with the government. The 

plaintiffs have also not made clear whether they consider themselves to be negotiating or 

performing a contract with the government simply by accepting an appointment and having the 

status of a panel attorney, or if they believe that they are subject to the contribution prohibition 

only during the specific periods of time in which they are representing a defendant. The 

information provided by plaintiffs does indicate that CJA attorneys are not compensated merely 

for being on a panel. See Decl. of Inga L. Parsons ¶ 5; (Doc. No. 2-2) Decl. of Stephen C. 

Leckar ¶ 4 (Doc. No. 2-3); 18 U.S.C. § 3006A(d). The Commission is considering whether 

further information is needed regarding plaintiffs’ specific arrangements to determine the reach 

of section 441c. 

There have been prior FEC determinations regarding the scope of 2 U.S.C. § 441c. The 

lack of a written contract does not rule out the possibility that plaintiffs are subject to section 

441c; the circumstances of the particular arrangement must be examined to determine whether it 

is “otherwise authorized.” FEC Advisory Op. 1999-32 (Tohono O’odham Nation), 

http://saos.fec.gov/aodocs/1999-32.pdf (quoting 11 C.F.R. § 115.1(c)(2)). Not every recipient of 

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government funds is deemed to have entered into a contract that triggers the prohibition in 2 

U.S.C. § 441c. For example, the Commission has determined that a law firm partner who served 

as an appointed member of a government council, and received compensation for doing so, was 

not a federal contractor under section 441c. See FEC Advisory Op. 1987-33 (Lawyers For Better 

Government Fund - Federal), http://saos.fec.gov/aodocs/1987-33.pdf. The Commission has also 

determined that private physicians who are compensated for services rendered to patients 

enrolled in programs such as Medicare and Medicaid are not considered federal contractors 

under section 441c. See FEC Advisory Op. 2012-13 (Physician Hospitals of America), 

http://saos.fec.gov/saos/searchao?AONUMBER=2012-13. These advisory opinions have relied 

on careful analyses of the factual circumstances presented, including whether the individual in 

question negotiated a contract or was merely subject to the terms of a statutory appointment, and 

whether the nature of the person’s relationship with the government was more akin to a grant 

with a public purpose rather than a contractual one with a more private commercial purpose. 

Indeed, rather than filing suit, the plaintiffs here could have first asked the Commission for an 

advisory opinion about the extent to which they were prohibited from making contributions, as 

one of the Wagner plaintiffs did. See FEC Advisory Op. 2008-11 (Lawrence Brown), 

http://saos.fec.gov/saos/searchao?AONUMBER=2008-11. The Commission must issue an 

advisory opinion within 60 days of receiving a complete request, absent an extension from the 

person requesting the opinion. 2 U.S.C. § 437f(a)(1). 

Given this background authority and the fact that plaintiffs just filed their complaint, the 

Commission is now considering whether a Federal Rule of Civil Procedure 12(b)(1) motion to 

dismiss is appropriate on the grounds that the plaintiffs in this case are not prohibited from 

making contributions due to section 441c. The agency needs the reasonable time to make that 

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determination explicitly called for by Rule 12(a)(2). Moreover, the agency is relying upon the 

factual information provided by plaintiffs in their declarations. If the Commission determines 

that some additional information is needed to aid in the Court’s assessment of the jurisdictional 

determination, the Commission may choose to file an answer as its responsive pleading, take 

some limited discovery for that information during this Court’s factfinding phase, and provide it 

to the Court during the post-factfinding certification/summary judgment briefing. The 

Commission’s responsive pleading is not due until September 23, 2014, and the procedures of 

section 437h provide no reason to disturb the carefully delineated deadlines in the Federal Rules. 

II. IF THIS CASE IS NOT RESOLVED BY PRELIMINARY MOTION, A FULL 

FACTUAL RECORD MUST BE DEVELOPED AS TO PLAINTIFFS’ SPECIFIC 

CIRCUMSTANCES TO ENABLE ADJUDICATION OF THIS 

CONSTITUTIONAL CHALLENGE 

Even if this case is not resolved through a Rule 12(b)(1) motion on the grounds that 

plaintiffs lack standing, an adequate record regarding their specific circumstances is critical to 

inform any eventual review by the Court of Appeals. A district court in cases brought under 2 

U.S.C. § 437h should “perform three functions.” Wagner v. FEC, 717 F.3d 1007, 1009 (D.C. 

Cir. 2013). It must “[1] develop a record for appellate review by making findings of fact[;] [2] 

determine whether the constitutional challenges are frivolous or involve settled legal questions[; 

and] [3] immediately certify the record and all non-frivolous constitutional questions to the en 

banc court of appeals.” Id. Plaintiffs supply some factual information in the declarations 

attached to their motion, but that unilateral submission is clearly inadequate for the constitutional 

adjudication in this case. Because plaintiffs’ motion would deny the Commission any 

opportunity to test these declarations or to develop further information through discovery 

regarding the potential for corruption and its appearance in the context of plaintiffs’ specific 

financial relations with the government, the motion should be denied for this independent reason. 

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The need for the district court to develop a factual record under section 437h has been 

settled for more than 30 years. See, e.g., Bread Political Action Comm. v. FEC, 455 U.S. 577, 

580 (1982) (district court is required to make findings of fact before certifying constitutional 

question to en banc court of appeals); Cal. Med. Ass’n, 453 U.S. at 192 n.14 (certification 

“would be improper in cases where the resolution of such questions required a fully developed 

factual record”); Mariani v. United States, 212 F.3d 761, 767 (3d Cir. 2000) (en banc); 

Khachaturian v. FEC, 980 F.2d 330, 331-32 (5th Cir. 1992) (en banc); Buckley v. Valeo, 519 

F.2d at 901-904 (D.C. Cir. 1975) (Appendix B). In cases construing FECA and its predecessors, 

federal courts have long recognized the need for a “concrete factual setting that sharpens the 

deliberative process especially demanded for constitutional decision.” United States v. Int’l 

Union United Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 567, 591 (1957). In 

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 624-25 (1996), for 

example, Justice Breyer pointed out the importance of record evidence in reviewing the 

constitutionality of FECA. On remand, the Tenth Circuit in turn remanded the case to the district 

court and further explained the need for factual development: 

[T]he issues are too important to be resolved in haste. It seems inevitable that not 

only this court but the Supreme Court itself will have to address these issues. We 

will both benefit by the parties fleshing out the record with any evidence they and 

the district court deem relevant to the issues’ resolution and by the district court’s 

resolution of the legal issues in the first instance. 

FEC v. Colo. Republican Fed. Campaign Comm., 96 F.3d 471, 473 (10th Cir. 1996). When the 

case reached the Supreme Court a second time, the Court made ample use of the factual record 

that had been developed on remand. See generally FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 457-60 (2001). 

Here, a full factual record is important both to “sharpen[] the deliberative process,” Int’l 

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Union United Auto., 352 U.S. at 591, and to avoid any prejudice to the Commission. The 

Commission does not disagree with plaintiffs that this case has many factual and legal issues in 

common with Wagner, and therefore the Commission does not seek a discovery period 

comparable to the nearly eight months of discovery in Wagner, which involved substantial 

factfinding about general issues of government procurement and corruption. Nonetheless, some 

discovery is needed to explore and build a record regarding the new plaintiffs’ two claims. 

Plaintiffs’ first claim is that they are deprived of their rights under the Equal Protection 

Clause because they are “not treated equally with individuals and corporations who are similarly 

situated ... .” (Compl. ¶ 14 (Doc. No. 1).) To prevail on the merits of this claim, plaintiffs will 

have to show that Congress unconstitutionally distinguished among various individuals and 

groups, and in particular, prohibited federal contributions by these plaintiffs while allowing 

contributions by others who are similarly situated. The Wagner plaintiffs made an identical 

claim, so the FEC propounded written discovery to those plaintiffs and deposed one of their 

witnesses to develop information on how those plaintiffs’ circumstances compared with other 

individuals and entities that are permitted to make contributions. Evidence resulting from that 

discovery ultimately informed most of this Court’s Findings of Fact. See Wagner, 11-cv-1841 

(D.D.C.), Certification Order (Doc. No. 51) ¶¶ 7, 8, 10, 11, 15, 16, 20-28 (relying upon 

plaintiffs’ responses to written discovery and deposition testimony of Professor Steven L. 

Schooner). The new plaintiffs may believe that the only relevant facts are contained in the short, 

untested declarations they have attached to their motion, but the Commission is entitled to 

develop facts to support its own legal arguments and theories, just as it did in Wagner. 

One example of a factual issue related to the equal protection analysis that is absent from 

the record in this case is whether CJA attorneys are permitted to receive payment from the 

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government through an LLC or other corporate entity. The plaintiffs in Wagner have argued that 

the contractor contribution ban is not rational as applied to them because they could avoid it 

merely by incorporating as an LLC and having that corporate entity contract with the 

government. See, e.g., Wagner v. FEC, 854 F. Supp. 2d 83, 99 (D.D.C. 2012) (“Plaintiffs 

complain that the ban on contributions by individual federal contractors violates equal protection 

because ‘individuals who establish a single-person corporation and contract with the government 

through that entity’ are permitted to make financial contributions in connection with federal 

elections.”), vacated on other grounds, 717 F.3d 1007 (D.C. Cir. 2013). As a result, this Court in 

Wagner made findings of fact about whether it was difficult for plaintiffs to set up an LLC and 

whether the federal agencies involved in that case were willing to contract with LLCs. Wagner, 

11-cv-1841 (JEB), Certification Order (Doc. No. 51) ¶¶ 19-20. But there is no evidence about 

whether the plaintiffs in this new case can receive payment for their CJA representation through 

a corporate form. 

Plaintiffs’ second claim is that 2 U.S.C. § 441c infringes on the First Amendment rights 

of either (i) all individual government contractors, because FECA’s general limits on 

contributions by individuals are allegedly sufficient to achieve the statute’s anti-corruption goals; 

or (ii) some subset of government contractors, because the statute is allegedly not narrowly 

tailored as to them. (Compl. ¶¶ 15-17 (Doc. No. 1).) To prevail on their First Amendment 

claim, plaintiffs must show that applying section 441c to them does not sufficiently advance the 

government’s interests.1

 

 

1

 The plaintiffs’ assertion that the law must be “narrowly tailored” misstates the 

applicable standard for reviewing restrictions on campaign contributions. See 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444-45 (2014) (plurality) (confirming that such 

laws are subject to the more deferential standard of “closely drawn” to match “a 

sufficiently important interest”). 

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An example of a factual issue related to the First Amendment analysis that is 

insufficiently developed at this time is precisely how CJA lawyers are chosen for appointments 

to panels and how they are later selected to represent specific defendants and thus to receive 

government funding. The plaintiffs in Wagner have argued that the contractor contribution ban 

violates the First Amendment because federal procurement processes, including the reliance on 

specially trained contracting officers, have been designed to insulate contracting decisions from 

politics. See, e.g., Wagner v. FEC, 13-5162 (D.C. Cir.), Br. For Pls. at 44-45 (Doc. No. 

1445083) (“[T]he established procedures for awarding contracts preclude improper 

interference . . . . Thus, the plaintiffs each explained how their contracts were awarded in a nonpolitical way. . . . [T]he special qualifications and the independence of the contracting officers at 

all agencies are vital parts of the contracting process.”). This Court therefore included findings 

of fact about the possibility of political influence in the federal procurement process, the role of 

contracting officers, and different types of competitive bidding procedures. Wagner, 11-cv-1841 

(D.D.C.), Certification Order (Doc. No. 51) ¶¶ 23-25. The Court also included detailed 

information about the positions and political nature of the specific agency personnel that one of 

the Wagner plaintiffs interacted with in the course of obtaining her contract. See id. ¶ 6. But the 

declarations of the plaintiffs in this case suggest that their interactions with the government have 

not involved any of the procurement processes discussed in Wagner and that contracting officers 

have played no role in their appointments. The Commission must therefore explore how these

plaintiffs were appointed to the CJA attorney panels, how they are selected to represent 

defendants, and how that representation proceeds, including which government officials are 

involved and the nature of their involvement, just as the Commission was able to do in Wagner. 

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Federal contractors have been prohibited from making political contributions for more 

than 74 years and individual voters have had the ability to bring cases pursuant to 2 U.S.C. § 

437h for 40 years. See Hatch Act Amendments of 1940, 54 Stat. 767, 772 § 5(a) (July 19, 1940); 

FECA Amendments of 1974, Pub. L. No. 93-443, § 208(a), 88 Stat. 1263, 1285-1286 (1974). 

Both plaintiffs in this case allege that they have been prohibited by 2 U.S.C. § 441c from making 

contributions for several years. (See Decl. of Inga L. Parsons ¶ 20, at p. 11 (Doc. No. 2-2) 

(indicating panel appointment for the past five years in 2012 Panel Application); Decl. of 

Stephen C. Leckar ¶ 3 (Doc. No. 2-3) (twenty years). There exists no urgency in this case, other 

than plaintiffs’ attempt to save the Wagner v. FEC case from being mooted or delayed. Plaintiffs 

in the two cases do have the same counsel, but this is a separate case, not merely a “supplement 

to Wagner” ([Plaintiffs’ Proposed] Certification Order at 2 (Doc. No. 2-4)) or a “companion 

case” to Wagner (Pls.’ Mem. at 1). The new case must stand or fall on its own merits. Whether 

the Wagner case becomes moot and this case becomes the sole remaining challenge to section 

441c is beside the point. 

Thus, in accord with the well-established procedures of 2 U.S.C. § 437h, the proper 

course is not to rush constitutional adjudication on a sparse record but to allow the development 

of a full factual record prior to any certification to the en banc Court of Appeals. 

III. CONCLUSION 

 Because plaintiffs’ request to certify questions under 2 U.S.C. § 437h is premature, this 

Court should deny plaintiffs’ motion, subject to reconsideration at the proper time. First, the 

Court should allow the Commission its ordinary time to determine whether to file a motion to 

dismiss due to a lack of standing or file an answer to the complaint. If the latter, the parties 

should then confer under Rule 16 and the Court should set a reasonable discovery schedule to 

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enable the development of a record on any factual issues related to plaintiffs’ standing and the 

factual issues not addressed in Wagner, to be followed by the submission of proposed findings of 

fact and briefing as to any factual disputes and potential questions to be certified. In this fashion, 

this Court can perform its proper gatekeeper role prior to any consideration of the matter by the 

en banc Court of Appeals. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

August 8, 2014 Fax: (202) 219-0260 

 

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