Wendy Wagner v. Federal Election Commission , 793 F.3d 1 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc September 30, 2014 Decided July 7, 2015
No. 13-5162
WENDY E. WAGNER, ET AL.,
PLAINTIFFS
v.
FEDERAL ELECTION COMMISSION,
DEFENDANT
On Certification of Constitutional Questions
from the United States District Court
for the District of Columbia
(No. 1:11-cv-01841)
Alan B. Morrison argued the cause for plaintiffs. With him
on the briefs was Arthur B. Spitzer.
Ilya Shapiro and Allen J. Dickerson were on the brief for
amici curiae Center for Competitive Politics, et al. in support of
plaintiffs.
Kevin Deeley, Acting Associate General Counsel, Federal
Election Commission, argued the cause for defendant. With him
on the briefs were Harry J. Summers, Assistant General
Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
2
J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and
Donald J. Simon were on the brief for amici curiae Campaign
Legal Center, et al. in support of defendant.
Before: GARLAND, Chief Judge, and HENDERSON, ROGERS,
TATEL, BROWN, GRIFFITH, KAVANAUGH, SRINIVASAN, MILLETT,
PILLARD, and WILKINS, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Seventy-five years ago, Congress
barred individuals and firms from making federal campaign
contributions while they negotiate or perform federal contracts.
The plaintiffs, who are individual government contractors,
contend that this statute violates their First Amendment and
equal protection rights. Because the concerns that spurred the
original bar remain as important today as when the statute was
enacted, and because the statute is closely drawn to avoid
unnecessary abridgment of associational freedoms, we reject the
plaintiffs’ challenge.
I
The statute at issue, 52 U.S.C. § 30119(a)(1), makes it
unlawful for any person “who enters into any contract with the
United States . . . directly or indirectly to make any contribution
. . . to any political party, committee, or candidate for public
office or to any person for any political purpose.” This
prohibition applies “between the commencement of negotiations
. . . and . . . the completion of performance” of the contract. Id.The Federal Election Commission (FEC) has construed the
section not to apply “in connection with State or local
elections.” 11 C.F.R. § 115.2(a).
3
The plaintiffs are three individuals who hold or have held
federal contracts. The first two, Lawrence Brown and Jan
Miller, spent much of their careers as full-time employees of the
U.S. Agency for International Development (USAID). Each
went back to work at USAID under a personal services contract
after retirement. The third plaintiff, Wendy Wagner, is a law
professor. In 2011, the Administrative Conference of the United
States (ACUS) hired Wagner under a consulting contract to
prepare a report about science and regulation.
All three plaintiffs wanted to make campaign contributions
during the 2012 federal elections, but each was barred from
doing so by § 30119. On October 19, 2011, they filed suit
against the FEC in the United States District Court for the
District of Columbia, challenging the statute’s constitutionality.
The plaintiffs contend that § 30119 violates their rights under
both the First Amendment and the equal protection component
of the Fifth Amendment’s Due Process Clause.
The plaintiffs have been careful to frame their challenge
narrowly. First, they challenge the constitutionality of § 30119
“only as it applies to plaintiffs and other individual contractors,”
not as it applies to contractors that are corporations or other
kinds of entities. Pls. Br. 1. Second, they do not challenge the
statute as the FEC might seek to apply it to a contractor’s
independent expenditures on electoral advocacy, as opposed to
his or her contributions to candidates, parties, or political action
committees (PACs). Id. at 40 n.5 (stating that the “[p]laintiffs
have no interest in making independent expenditures”); Oral
Arg. Recording 26:59-27:06 (same). Nor do they challenge the
law as the Commission might seek to apply it to donations to
PACs that themselves make only independent expenditures,
commonly known as “Super PACs.” Oral Arg. Recording
25:59-26:33 (“Super PACs . . . . are not at issue here; none of
my clients wants to make a contribution to them or anything like
4
them.”); id. 26:59-27:06 (same). In short, the plaintiffs
challenge § 30119 only insofar as it bans campaign
contributions by individual contractors to candidates, parties, or
traditional PACs that make contributions to candidates and
parties.
After considering the merits of this challenge, the district
court granted summary judgment in favor of the FEC. Wagner
v. FEC, 901 F. Supp. 2d 101, 113 (D.D.C. 2012). On appeal, a
panel of this court held, sua sponte, that the district court lacked
jurisdiction to reach the merits of the constitutional claims
because the special judicial review provision of the Federal
Election Campaign Act (FECA) “grants exclusive merits
jurisdiction to the en banc court of appeals.” Wagner v. FEC,
717 F.3d 1007, 1011 (D.C. Cir. 2013) (citing 2 U.S.C. § 437h,
now codified at 52 U.S.C. § 30110). The panel therefore
remanded the case to the district court to make appropriate
findings of fact, and then to certify those facts and the relevant
constitutional questions to this court sitting en banc. Id. at 1017.
The case has now returned to us. But time does not stand
still, and some important facts have shifted in the years since
this litigation began. The plaintiffs advise us that both Wagner
and Brown have now completed their federal contracts and
hence are once again free to make campaign contributions. See
Brown Supp. Mootness Decl. ¶ 3; Second Wagner Supp. Decl.
¶ 2. Brown, at least, has already done so. See Brown Supp.
Mootness Decl. ¶ 3. Accordingly, Wagner’s and Brown’s
claims are moot. See, e.g., Arizonans for Official English v.
Arizona, 520 U.S. 43, 67-72 (1997) (holding that the plaintiff’s
departure from her position as a state employee mooted her First
5
Amendment challenge to a law regulating the speech of state
employees).1
Miller’s contract is ongoing, however, and his constitutional
claims therefore remain alive. But the mootness of the other
plaintiffs’ claims matters because Miller’s injury is notably
narrower than theirs. Whereas Wagner and Brown alleged that
they wanted to support a variety of political “causes,” and that
they had given to “PACs” or “political committees” in the past,
Miller tells us only that he wants to contribute to “candidates
running for federal offices and/or their political parties.”
Compare Wagner Decl. ¶ 6, and Brown Decl. ¶¶ 6, 8, with
Miller Decl. ¶ 7. Miller thus has standing to challenge the
statute only as it applies to contributions to candidates and
parties. See Davis v. FEC, 554 U.S. 724, 734 (2008)
(“[S]tanding is not dispensed in gross. Rather, a plaintiff must
demonstrate standing for each claim he seeks to press . . . .”
(citation and internal quotation marks omitted)).
1
Although Wagner’s ACUS contract is her first, she says that she
“expect[s]” to “be offered other similar opportunities in the future”
because her area of expertise “is a very important topic for federal
regulatory agencies.” Wagner Decl. ¶ 4. Brown also plans to seek
future work with the federal government, “either as an employee or as
a contractor,” and therefore “may or may not be subject to” § 30119
at some future point. Brown Supp. Mootness Decl. ¶ 4. These
possibilities are too speculative to sustain a concrete interest in this
litigation. See Munsell v. Dep’t of Agric., 509 F.3d 572, 582-83 (D.C.
Cir. 2007) (holding “that a live controversy is not maintained by
speculation that claimant might reenter a business that it has left”
(citing City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278,
283-84 (2001))). Neither Brown nor Wagner has argued that his or
her injury, though capable of repetition, will evade review unless we
make an exception to the ordinary rule of mootness. Cf. Spencer v.
Kemna, 523 U.S. 1, 17 (1998) (explaining the situations in which that
exception applies).
6
Our limited jurisdiction therefore narrows the plaintiffs’
already-narrow challenge even further: the only issue properly
before us is the application of § 30119 to contributions by an
individual contractor to a federal candidate or political party. In
Parts II through V, we address the plaintiffs’ First Amendment
arguments. In Part VI, we consider their equal protection
arguments.2
II
Since Buckley v. Valeo, the Supreme Court has instructed us
to review different kinds of campaign finance regulations with
different degrees of scrutiny. 424 U.S. 1, 19-25, 44-45 (1976);
see McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014) (plurality
opinion); McConnell v. FEC, 540 U.S. 93, 134-38 (2003),
overruled in part on other grounds by Citizens United v. FEC,
558 U.S. 310 (2010). Laws that limit a person’s independent
expenditures on electoral advocacy are subject to strict scrutiny.
McCutcheon, 134 S. Ct. at 1444 (citing Buckley, 424 U.S. at 44-
45). Under that standard, “the Government may regulate
protected speech only if such regulation promotes a compelling
interest and is the least restrictive means to further the
articulated interest.” Id.; see, e.g., Citizens United, 558 U.S. at
339-41.
Laws that regulate campaign contributions, however, are
subject to “a lesser but still ‘rigorous standard of review,’”
McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at
29), because “contributions lie closer to the edges than to the
core of political expression,” FEC v. Beaumont, 539 U.S. 146,
2
We continue to describe the arguments as those of the
“plaintiffs,” notwithstanding that only a single plaintiff’s arguments
remain alive, because the plaintiffs presented their arguments
collectively in a single set of briefs and oral arguments.
7
161 (2003). “Under that standard, ‘[e]ven a significant
interference with protected rights of political association may be
sustained if the State demonstrates a sufficiently important
interest and employs means closely drawn to avoid unnecessary
abridgment of associational freedoms.’” McCutcheon, 134 S.
Ct. at 1444 (emphasis added) (quoting Buckley, 424 U.S. at 25);
see Beaumont, 539 U.S. at 161-62; SpeechNow.org v. FEC, 599
F.3d 686, 692 (D.C. Cir. 2010) (en banc).
The Supreme Court has repeatedly applied this “closely
drawn” standard to challenges to campaign contribution
restrictions.3 And it has repeatedly (and recently) declined
invitations “to revisit Buckley’s distinction between contributions
and expenditures and the corollary distinction in the applicable
standards of review,” McCutcheon, 134 S. Ct. at 1445.4 So, too,
have we. See, e.g., SpeechNow.org, 599 F.3d at 696.
3
See, e.g., McCutcheon, 134 S. Ct. at 1446-62 (aggregate
contribution limits); Randall v. Sorrell, 548 U.S. 230, 246-63 (2006)
(plurality opinion) (state contribution limits); McConnell, 540 U.S. at
231-32 (2003) (ban on contributions by minors); Beaumont, 539 U.S.
at 161-63 (2003) (ban on corporate contributions); FEC v. Colo.
Republican Fed. Campaign Comm., 533 U.S. 431, 456-65 (2001)
(limits on party expenditures that are coordinated with candidates);
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386-95 (2000) (state
contribution limits); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 196-99
(1981) (plurality opinion) (limits on contributions to multicandidate
committees).
4
See, e.g., Shrink Mo. Gov’t PAC, 528 U.S. at 406-10 (Kennedy,
J., dissenting); Colo. Republican Fed. Campaign Comm. v. FEC, 518
U.S. 604, 635-640 (1996) (Thomas, J., concurring in the judgment and
dissenting in part); see also SpeechNow.org, 599 F.3d at 696 (noting
that the “Citizens United Court avoided ‘reconsider[ing] whether
contribution limits should be subjected to rigorous First Amendment
scrutiny’” (quoting Citizens United, 558 U.S. at 359)).
8
The plaintiffs argue that we should nonetheless apply strict
scrutiny here because § 30119 does not merely limit
contributions, but bans them entirely. As the plaintiffs
recognize, however, the Supreme Court expressly rejected this
argument in FEC v. Beaumont, concluding that both limits and
bans on contributions are subject to the same “closely drawn”
standard. 539 U.S. at 161-63. “This argument,” the Court said,
“overlooks the basic premise we have followed in setting First
Amendment standards for reviewing political financial
restrictions: the level of scrutiny is based on the importance of
the ‘political activity at issue’ to effective speech or political
association.” Id. at 161 (quoting FEC v. Mass. Citizens for Life,
Inc., 479 U.S. 238, 259 (1986)). “It is not that the difference
between a ban and a limit is to be ignored; it is just that the time
to consider it is when applying scrutiny at the level selected, not
in selecting the standard of review itself.” Id. at 162. Indeed,
although the plaintiffs insist that “[t]he closest case” to this one
is McConnell v. FEC, which struck down a ban on contributions
by persons under the age of eighteen, Pls. Br. 39, McConnell
itself applied the “closely drawn” test, citing Beaumont. See
McConnell, 540 U.S. at 231-32.
The plaintiffs further maintain that Citizens United v. FEC
“casts doubt” on Beaumont. Pls. Br. 40. We do not see the
basis for that claim. The plaintiffs correctly note that Citizens
United “applied strict scrutiny to the ban on for-profit corporate
independent expenditures.” Id. But the reason for applying
strict scrutiny was not that the case involved a ban, but that it
involved independent expenditures rather than contributions.
See 558 U.S. at 359. Accordingly, the “closely drawn” standard
remains the appropriate one for review of a ban on campaign
contributions. See Republican Nat’l Comm. v. FEC, 698 F.
Supp. 2d 150, 156 (D.D.C.), summ. aff’d, 561 U.S. 1040 (2010);
Yamada v. Snipes, No. 12-17845, 2015 WL 2384944, at *19 &
n.17 (9th Cir. May 20, 2015); Preston v. Leake, 660 F.3d 726,
9
734-35 (4th Cir. 2011); Green Party of Conn. v. Garfield, 616
F.3d 189, 199 (2d Cir. 2010).
There is one respect, however, in which the “closely drawn”
standard may not be a perfect fit for this case. But that
consideration would cut in favor of a more, rather than less,
deferential standard of review. Section 30119 is a restriction on
First Amendment activity aimed only at those who choose to
work for the federal government. To be sure, citizens do not
check their First Amendment rights at the agency door.5
Nonetheless, the Court has “consistently given greater deference
to government predictions of harm used to justify restriction of
employee speech than to predictions of harm used to justify
restrictions on the speech of the public at large.” Bd. of Cnty.
Comm’rs v. Umbehr, 518 U.S. 668, 676 (1996) (internal
quotation marks omitted); see, e.g., U.S. Civil Serv. Comm’n v.
Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 566-67 (1973);
United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947).
In so doing, the Court has held that the government may
“maintain a statutory restriction on employee speech” if it is
“able to satisfy a balancing test of the Pickering form.” United
States v. Nat’l Treasury Emps. Union (NTEU), 513 U.S. 454,
467 (1995) (referring to Pickering v. Bd. of Educ. of Twp. High
Sch. Dist. 205, 391 U.S. 563, 568 (1968)).6
5
See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996)
(noting that the Court’s “precedents have long since rejected Justice
Holmes’ famous dictum, that a policeman ‘may have a constitutional
right to talk politics, but he has no constitutional right to be a
policeman’” (quoting McAuliffe v. Mayor of New Bedford, 29 N.E.
517, 517 (Mass. 1892))).
6
Under the Pickering test, a court must “‘arrive at a balance
between the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
10
Although the plaintiffs are contractors rather than
employees, they acknowledge that their positions are often
indistinguishable from those of employees. Pls. Br. 17, 19; see
Miller Decl. ¶¶ 6-7 (stating that “the nature of the work
performed by an individual rarely varied depending on whether
the person was an employee or a contractor,” and that “in almost
every respect” his relationship to his agency and supervisor is
“identical” to that of an employee); see also District Court
Findings of Fact ¶ 13 [hereinafter D. Ct. Findings]. In fact, two
of the plaintiffs “are retired employees from the same agency
where they [were hired as] contractual consultants [to] do much
the same work they previously did.” Pls. Br. 35-36. The
plaintiffs further acknowledge, in light of the case law described
above, that Congress has greater latitude to restrict the
expression of both employees and government contractors than
it does with respect to the general public. See Oral Arg.
Recording 6:00-08, 14:21-33. Indeed, the Court has expressly
extended the Pickering balancing test to cases involving
government contractors. See Umbehr, 518 U.S. at 684-85(holding that there is no “difference of constitutional magnitude
between independent contractors and employees” in the context
of a speech-retaliation claim, and “that the same form of
[Pickering] balancing analysis should apply to each” (internal
quotation marks and citation omitted)); see also O’Hare Truck
Serv., Inc. v. City of Northlake, 518 U.S. 712, 719-20 (1996).
To resolve this case, we need not precisely parse the way in
which the “closely drawn” standard intersects with or differs
from the Pickering balancing test. It will suffice for us to
proceed under the rubric of the former, since it is -- if anything
-- the less deferential standard. In doing so, however, we will
take into account the considerations that the Supreme Court has
performs through its employees.’” NTEU, 513 U.S. at 465-66(quoting Pickering, 391 U.S. at 568).
11
indicated are particularly relevant in evaluating restrictions the
government imposes in its role as employer. We therefore now
proceed to examine whether, with respect to § 30119, the
government has “‘demonstrate[d] a sufficiently important
interest and employ[ed] means closely drawn to avoid
unnecessary abridgment of associational freedoms.’”
McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at
25).
III
Our initial responsibility under the “closely drawn” standard
is to determine whether the government has advanced a
“sufficiently important interest” in support of § 30119. The
FEC argues that there are two such interests, each of which has
been accepted by the Supreme Court as sufficient to warrant
appropriate restrictions on First Amendment rights. We briefly
address the sufficiency of each of those interests in the abstract,
before turning to whether they are properly invoked in light of
the particular problems that § 30119 addresses.
A
The two interests asserted by the government are: (1)
protection against quid pro quo corruption and its appearance,
and (2) protection against interference with merit-based public
administration.
The first interest is the most significant, as the Supreme
Court has repeatedly held that “the Government’s interest in
preventing quid pro quo corruption or its appearance [is]
‘sufficiently important’” to justify the regulation of campaign
contributions. McCutcheon, 134 S. Ct. at 1445 (quoting
Buckley, 424 U.S. at 26-27). In fact, the Court has “stated that
the same interest may properly be labeled ‘compelling,’ so that
12
the interest would satisfy even strict scrutiny.” Id. at 1445
(citing FEC v. Nat’l Conservative Political Action Comm., 470
U.S. 480, 496-97 (1985)). As the Court has explained, “[t]hat
Latin phrase captures the notion of a direct exchange of an
official act for money,” id. at 1441, and such exchanges
undermine “the integrity of our system of representative
democracy,” Buckley, 424 U.S. at 26-27. “Of almost equal
concern [is] . . . the appearance of corruption,” which threatens
“‘confidence in the system of representative Government.’” Id.
at 27 (quoting Letter Carriers, 413 U.S. at 565). Therefore, if
the FEC shows that § 30119 furthers the interest in combating
quid pro quo corruption or its appearance, that will suffice to
clear the “closely drawn” standard’s first hurdle.7
The second interest is also significant, and in combination
with the first makes this case even stronger for the FEC.
Although the Supreme Court has identified no congressional
objective beyond protection against quid pro quo corruption and
its appearance that warrants imposing campaign finance
restrictions on the citizenry at large, see McCutcheon, 134 S. Ct.
at 1450; Citizens United, 558 U.S. at 359, it has “upheld a
narrow class of speech restrictions that operate to the
disadvantage of certain persons, . . . . based on an interest in
allowing governmental entities to perform their functions,”
Citizens United, 558 U.S. at 341 (citing, inter alia, Letter
Carriers, 413 U.S. at 557). That narrow class of approved
speech restrictions includes the Hatch Act’s limits on political
activities by federal employees, which, as the Court put it in
Citizens United, rest on the principle that “‘[f]ederal service
should depend upon meritorious performance rather than
political service.’” 558 U.S. at 341 (quoting Letter Carriers,
413 U.S. at 557).
7
Throughout this opinion, when we use the terms “corruption” or
its “appearance,” we refer to the quid pro quo variety.
13
The Court’s cases indicate that this interest in protecting
merit-based public administration has two distinct but mutually
reinforcing components. The first is that the Government
“operate effectively and fairly,” Letter Carriers, 413 U.S. at
564, which in turn comprises a series of interrelated concerns.
The “‘interest of the [government], as an employer, in
promoting the efficiency of the public services it performs
through its employees,’” id. (emphasis added) (quoting
Pickering, 391 U.S. at 568), is perhaps best captured by the
Court’s rationale for upholding the original 1876 employee
contribution ban: “If . . . a refusal [to make political
contributions] may lead to putting good men out of the service,
liberal payments may be made the ground for keeping poor ones
in.” Ex parte Curtis, 106 U.S. 371, 375 (1882). The related
interest in operating fairly is the “great end of Government -- the
impartial execution of the laws.” Letter Carriers, 413 U.S. at
565. “It seems fundamental,” the Court has said, that “those
working for [Government] agencies, should administer the law
in accordance with the will of Congress, rather than in
accordance with their own or the will of a political party.” Id.
at 564-65. In this regard, “it is not only important that the
Government and its employees in fact avoid practicing political
justice, but it is also critical that they appear to the public to be
avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent.” Id. at
565.
The flip side of the interest in governmental efficiency and
fairness is the employees’ interest in being “sufficiently free
from improper influence” or coercion, which the government
may also vindicate on their behalf. Id. As the Court has
explained, it upheld the Hatch Act’s restrictions on “political
campaigning” by federal employees in part because, in the
Court’s “judgment[,] . . . congressional subordination of those
activities was permissible to safeguard the core interests of
14
individual belief and association.” Elrod v. Burns, 427 U.S.
347, 371 (1976). See NTEU, 513 U.S. at 471 (explaining that
“the Hatch Act aimed to protect employees’ rights, notably their
right to free expression, rather than to restrict those rights”);
Letter Carriers, 413 U.S. at 566 (identifying an interest, “as
important as any other,” in “mak[ing] sure that Government
employees would be free from pressure and from express or tacit
invitation to . . . perform political chores in order to curry favor
with their superiors”); Ex parte Curtis, 106 U.S. at 374(identifying “the protection of those in the public service against
unjust exactions” as an independently sufficient basis for
upholding the 1876 statute restricting contributions by federal
employees).
The Supreme Court has repeatedly credited these
“obviously important interests sought to be served by . . .
limitations on partisan political activities,” Letter Carriers, 413
U.S. at 564, for over a century.8 And there is no reason why
they should not be heard in support of restrictions on contractors
as well as regular employees. Cf. NASA v. Nelson, 562 U.S.
134, 150 (2011) (rejecting the respondents’ argument that,
“because they are contract employees and not civil servants, the
Government’s broad authority in managing its affairs should
apply with diminished force”); Umbehr, 518 U.S. at 676-79(noting that, under the Pickering balancing test, “‘[t]he
government’s interest in achieving its goals as effectively and
efficiently as possible is elevated . . . to a significant one when
it acts as employer,’” and holding that Pickering applies to
claims by independent contractors that they were terminated for
8
See, e.g., Citizens United, 558 U.S. at 341; NTEU, 513 U.S. at
471; Elrod, 427 U.S. at 370; Buckley, 424 U.S. at 27; Letter Carriers,
413 U.S. at 557; Mitchell, 330 U.S. at 98; Ex parte Curtis, 106 U.S. at
374-75.
15
their speech (quoting Waters v. Churchill, 511 U.S. 661, 675
(1994) (plurality opinion))).
We now proceed to examine whether these two Court-
approved justifications for limitations on campaign activities --
to protect against quid pro quo corruption and its appearance,
and to protect merit-based administration -- are furthered by the
contractor contribution statute.
B
We begin with the historical pedigree of § 30119, which
stretches back to the 1870s. That history demonstrates that
Congress did indeed aim to protect the two interests articulated
by the FEC, and that its concerns on both fronts were well
warranted.
1. Congress began to tackle problems related to the political
activity of those who work for the government in the late 19th
century. See generally Letter Carriers, 413 U.S. at 555-60. It
started by prohibiting most federal employees “from requesting,
giving to, or receiving from, any other . . . employee of the
Government, any money or property . . . for political purposes.”
Act of Aug. 15, 1876, ch. 287, § 6, 19 Stat. 143, 169. In
upholding that early statute as “within the just scope of
legislative power,” the Supreme Court declared that its “evident
purpose” was “to promote efficiency and integrity in the
discharge of official duties” and “to protect the classes of . . .
employees provided for from being compelled to make
contributions for [political] purposes through fear of dismissal
if they refused.” Ex parte Curtis, 106 U.S. at 373-74.
The 1876 statute was limited to employees of the Executive
Branch. In the 1883 Pendleton Act, Congress took the next step,
making it a crime for its own members, among others, to “solicit
16
or receive” political contributions from federal workers, ch. 27,
§ 11, 22 Stat. 403, 406, and for those workers to “give or hand
over” such contributions, id. § 14, 22 Stat. at 407.9 The
Pendleton Act further declared that “no person in the public
service is for that reason under any obligations to contribute to
any political fund.” Id. § 2, 22 Stat. at 404. And it “authorized
the President to promulgate rules to carry the Act into effect and
created the Civil Service Commission as the agency or
administrator of the Act.” Letter Carriers, 413 U.S. at 558.
In 1925, Congress broadened the ban to include solicitation
and receipt by congressional challengers as well as incumbents,
while continuing to tweak the range of forbidden donors. See
Federal Corrupt Practices Act, 1925, ch. 368, sec. 312, § 118, 43
Stat. 1070, 1073. When Congressman Harry Wurzbach was
subsequently indicted for receiving contributions from federal
employees, the Supreme Court again upheld the statute as a
proper exercise of Congress’ powers. United States v.
Wurzbach, 280 U.S. 396 (1930); see Mitchell, 330 U.S. at 98.
Alongside these early bans on campaign contributions,
Congress and the Executive Branch incrementally expanded the
scope of the nascent civil service system, imposing limitations
on political activity by employees and implementing merit-
based hiring rules. See Letter Carriers, 413 U.S. at 557-60.
9
Because the Pendleton Act prohibited accepting contributions
from “any person receiving any salary or compensation from moneys
derived from the Treasury of the United States,” id. § 11, 22 Stat. at
406, it textually encompassed contributions from the various
government contractors of the era -- ranging from experts hired to
survey Indian lands, see Contract for Surveying Public Lands, 10 Op.
Att’y Gen. 261, 261 (1862), to a contractor hired to make copies of
patent drawings for the Commissioner of Patents, see Letting
Contracts--Advertisement, 15 Op. Att’y Gen. 538 (1876).
17
Those efforts culminated in the Hatch Act of 1939, which aimed
to consolidate civil service reforms and “to combat
demonstrated ill effects of Government employees’ partisan
political activities.” NTEU, 513 U.S. at 471. As the Court has
explained, Congress’ purpose was to protect merit-based
administration, including ensuring governmental efficiency and
fairness and shielding government personnel from political
coercion. See Letter Carriers, 413 U.S. at 564-66.
The Hatch Act was particularly aimed at certain notorious
abuses that occurred during the 1936 and 1938 election
campaigns. See id. at 559-60. Responding to reports that
workers paid by the Works Progress Administration (WPA) had
been coerced to contribute to the Democratic Party, for
example,10 the Hatch Act criminalized accepting political
contributions from anyone known to be receiving
“compensation, employment, or other benefit” from work relief
funds. Hatch Act, ch. 410, §§ 5, 8, 53 Stat. 1147, 1148.
The Act imposed other restrictions on political activity by
government employees as well, including barring them from
“tak[ing] any active part in political management or in political
campaigns.” Id. § 9(a), 53 Stat. at 1148. In subsequently
upholding those restrictions against a First Amendment
challenge, the Supreme Court noted that they were “not
dissimilar in purpose from the statutes against political
10
See, e.g., 84 CONG. REC. 9598 (1939) (statement of Rep.
Taylor) (reporting that WPA workers had been required to place $3 to
$5 out of their $30 monthly pay under a Democratic donkey
paperweight on their supervisor’s desk); see also REPORT OF THE
SPECIAL COMM. TO INVESTIGATE SENATORIAL CAMPAIGN
EXPENDITURES AND USE OF GOVERNMENTAL FUNDS IN 1938, S. REP.
NO. 76-1, pt. 1, at 8-33, 39 (1939) (recounting WPA abuses and
recommending reforms).
18
contributions of money.” Mitchell, 330 U.S. at 98. Congress,
the Court said, “recognizes danger to the [civil] service in that
political rather than official effort may earn advancement and to
the public in that governmental favor may be channeled through
political connections.” Id. Twenty-six years later, the Court
again rejected a First Amendment challenge to the same
restrictions. See Letter Carriers, 413 U.S. at 551.
Although the 1939 Hatch Act focused on public employees
and recipients of work relief, exploitation of government
contractors drew congressional interest as well. Arguing that the
original bill “does not go far enough,” Congressman J. Will
Taylor pointed to the coercion of contractors in the “‘celebrated’
Democratic campaign book” scandal as a prime example of
“political immorality and skullduggery that should not be
tolerated.” 84 CONG. REC. 9598-99 (1939). Representative
Taylor recounted that, at the behest of the Democratic National
Committee, party representatives paid visits to government
contractors, reminding each one “of the business he had received
from the Government” and explaining that the contractor was
expected to buy a number of the party’s souvenir convention
books -- at $250 each -- “in proportion to the amount of
Government business he had enjoyed.” Id. In addition, “large
concerns, which directly or indirectly, benefitted from
Government business, were . . . by sinister methods, convinced
of the importance of taking advertising space in the book.” Id.;
see also 81 CONG. REC. 6429-30 (1937) (statement of Rep.
Taylor) (citing newspaper report regarding solicitation of
contractors in Tennessee). Taylor urged that the bill “should be
amended to include rackets of this character.” 84 CONG. REC.
9599 (1939).
19
The next year, as the scandal surrounding the campaign
books persisted,11 Congress took up that task in a package of
amendments to the Hatch Act. Denouncing contracting abuses
as “[t]he greatest source of corruption in American politics
today,” Senator Harry Byrd argued for a broad amendment that
would “prevent those who are making money out of
governmental contracts from making contributions to any
political party,” and thereby “prevent them from making
contributions which may be considered in some instances as
bribery in order to secure governmental contracts for
themselves.” 86 CONG. REC. 2982 (1940). Thus, in addition to
specifically banning the purchase of goods (such as the
campaign books) from political parties, see Act of July 19, 1940,
ch. 640, sec. 4, § 13(c), 54 Stat. 767, 770-71, Congress enacted
the general contractor contribution ban that is now before us, id.§ 5(a), 54 Stat. at 772.
The statute that Congress passed in 1940 has retained its
essential features since that time. Then, as now, it barred any
person or firm negotiating or performing a federal contract from
contributing “to any political party, committee, or candidate for
public office or to any person for any political purpose or use.”
Id. (codified as amended at 52 U.S.C. § 30119(a)(1)).
2. Just as the Hatch Act was spurred by outrage over
misconduct in the 1936 and 1938 elections, “deeply disturbing
examples” of corruption “surfacing after the 1972 election” led
to the Federal Election Campaign Act (FECA) Amendments of
11
See, e.g., 86 CONG. REC. 9362 (1940) (statement of Rep.
Knutson) (recounting advertising rates for the 1940 Democratic
campaign book and speculating that “all of this space will be taken by
Government contractors,” who would be “solicit[ed] . . . at the point
of a gun”); see also Editorial, That Convention Book, N.Y. TIMES,
Mar. 13, 1940, at 22.
20
1974. Buckley, 424 U.S. at 27 & n.28 (citing Buckley v. Valeo,
519 F.2d 821, 839-840 & nn. 36-38 (D.C. Cir. 1975) (en banc)).
Particularly important for our purposes, those “disturbing
examples” included a variety of efforts to channel government
contracts to President Nixon’s political supporters and to exact
contributions from existing contractors, both of which figured
prominently in the Senate Watergate Committee’s report. See,
e.g., FINAL REPORT OF THE SELECT COMM. ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, S. REP. NO. 93-981, at 368 (1974)
[hereinafter WATERGATE REPORT] (describing the so-called
“Responsiveness Program,” pursuant to which agencies were to
ensure that “[t]he letting of Government grants, contracts, and
loans” was directed at “meet[ing] reelection needs”); id. at 412
(recounting evidence that “campaign officials were participating
in the selection process for the awards of GSA architectural and
engineering design contracts”); id. at 1210 & n.85 (separate
views of Sen. Weicker) (recounting “evidence of quid pro quos
for the contracts from” four cabinet departments and six
agencies).12
As the Watergate Committee recognized, much of the
conduct that it exposed squarely implicated the contractor
contribution statute (then 18 U.S.C. § 611). See WATERGATE
REPORT at 440. The Committee reported that the 1972 election
12
See also WATERGATE REPORT at 440 (“There is evidence that
plans were laid for Government officials and others to solicit
campaign contributions from minority recipients of Federal grants,
loans, and contracts. Moreover, the committee has obtained evidence
that these plans were in part consummated.”); id. at 384-85(recounting testimony that a contract was awarded to a Nixon
fundraiser “based solely on political motivations” and “‘rammed down
the throats’ of Department officials”). In the passage of our Buckley
opinion later relied upon by the Supreme Court, this court leaned
heavily on the Watergate Report. See 519 F.2d at 839 nn.35-36, 38.
21
gave rise to the first indictments of contributors under that
statute, resulting in guilty pleas and then-maximum fines. Id. at
486-89. “In view of the abuses discovered,” it recommended
that Congress take care not to “lessen the penalties” or otherwise
“weaken[] . . . the law in this area.” Id. at 444. The Committee
further concluded that the statutory scheme was “deficient in
failing to provide a civil penalty,” which made it difficult to
address “nonflagrant cases,” and recommended that the new
Federal Election Commission be given primary civil
enforcement jurisdiction with respect to, inter alia, the
contractor contribution statute. Id. at 566-67.
A few months after the Watergate Committee made its
recommendations, Congress increased the maximum fine for
violations of the contractor contribution statute from $5,000 to
$25,000, see FECA Amendments of 1974, Pub. L. No. 93-443,
§ 101(e)(2), 88 Stat. 1263, 1267, and authorized the
Commission to initiate civil enforcement actions for violations
of that provision, see id. sec. 208(a), § 314(a)(7), 88 Stat. at
1285.13 It also strengthened enforcement of the longstanding
bans on campaign contributions by corporations and labor
unions. See id. § 101(e)(1), 88 Stat. at 1267; see also Beaumont,
539 U.S. at 152-53 (recounting the history of those bans). And,
as is well known, the 1974 amendments also imposed generally
applicable ceilings on campaign contributions. See
McCutcheon, 134 S. Ct. at 1445; Buckley, 424 U.S. at 7.
FECA’s “primary purpose,” the Court has said, “was to limit
quid pro quo corruption and its appearance.” McCutcheon, 134
S. Ct. at 1444 (citing Buckley, 424 U.S. at 26-27).
13
That monetary penalty has since been superseded by FECA’s
own penalty scheme. See 52 U.S.C. § 30109(a)(5)-(6) (civil
penalties); id. § 30109(d) (criminal penalties).
22
Finally, in 1976, Congress incorporated the contractor
contribution ban into FECA itself. See FECA Amendments of
1976, Pub. L. No. 94-283, sec. 112(2), § 322, 90 Stat. 475,
492-93. Over the subsequent decades, both FECA and the civil
service laws have been further amended. Those amendments
lifted most restrictions on campaign contributions by federal
employees.14 At the same time, however, they retained some of
the more direct limits on government employees’ political
activities, including barring most federal employees from
soliciting or accepting political contributions, running for office
in partisan elections, and hosting political fundraisers. See 5
U.S.C. §§ 7323(a), 7324(a). The Civil Service Reform Act of
1978 also afforded federal employees protection against
“prohibited personnel practices,” 5 U.S.C. § 2302, including
discrimination on the basis of political affiliation and coercion
to make political contributions, id. § 2302(b)(1)(E), (b)(3), and
allowed them to seek redress through the Office of Special
Counsel and the Merit Systems Protection Board, 5 U.S.C.
§§ 1214-15, 1221. Congress has left the contractor contribution
ban in place, however, without change. See 52 U.S.C. § 30119.
3. As we have recounted, Congress enacted § 30119 in the
aftermath of a national scandal involving a pay-to-play scheme
for federal contracts. The statute was itself the outgrowth of a
decades-long congressional effort to prevent corruption and
ensure the merit-based administration of the national
government. And it was followed by subsequent scandals that
led to further legislative refinements, again motivated by
concerns over corruption and merit protection.
14
See, e.g., Hatch Act Reform Amendments of 1993, Pub. L. No.
103-94, sec. 2(a), § 7323, 107 Stat. 1001, 1002 (1993) (codified at 5
U.S.C. § 7323); id. § 4(b), 107 Stat. at 1005 (codified at 18 U.S.C.
§ 603(c)).
23
This historical pedigree is significant. As the Court said in
Beaumont, “[j]udicial deference is particularly warranted where,
as here, we deal with a congressional judgment that has
remained essentially unchanged throughout a century of ‘careful
legislative adjustment.’” 539 U.S. at 162 n.9 (quoting FEC v.
Nat’l Right to Work Comm., 459 U.S. 197, 209 (1982)).
Moreover, as we discuss in Part V below, the lineage of the
statute makes clear that its objects are the legitimate and
important purposes that the Commission claims they are.
C
More recent evidence confirms that human nature has not
changed since corrupt quid pro quos and other attacks on merit-
based administration first spurred the development of the present
legislative scheme. Of course, we would not expect to find --
and we cannot demand -- continuing evidence of large-scale
quid pro quo corruption or coercion involving federal contractor
contributions because such contributions have been banned
since 1940. As the Supreme Court has recognized, “no data can
be marshaled to capture perfectly the counterfactual world in
which” an existing campaign finance restriction “do[es] not
exist.” McCutcheon, 134 S. Ct. at 1457.15 Instead, “‘the
question is whether experience under the present law confirms
a serious threat of abuse.’” Id. (quoting FEC v. Colo.
Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)).
15
See Burson v. Freeman, 504 U.S. 191, 208 (1992) (plurality
opinion) (“The fact that these laws have been in effect for a long
period of time also makes it difficult for the States to put on witnesses
who can testify as to what would happen without them.”); FEC v.
Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)
(noting the “difficulty of mustering evidence to support long-enforced
statutes” because “there is no recent experience” without them).
24
The experience of states with and without similar laws is also
relevant. See id. at 1451 n.7; Citizens United, 558 U.S. at 357.
Unfortunately, as was the case with the coordinated
expenditure limits at issue in Colorado Republican, “[d]espite
years of enforcement of the challenged” contractor contribution
ban, “substantial evidence demonstrates” that individuals and
firms continue to “test the limits of the current law[s],” 533 U.S.
at 457 -- at both the federal and state levels. This experience
readily confirms that the government’s fear of the consequences
of removing the current ban is not unwarranted.
1. We begin with Congress itself, where a number of
corruption scandals point to the danger that contributions from
government contractors would pose. Indeed, although the
plaintiffs contend that Members of Congress are insulated from
the contracting process, see infra Part III.D.1, many significant
congressional corruption cases involve quid pro quo agreements
regarding contracts. In 2005, for example, Representative
Randy “Duke” Cunningham pled guilty to accepting millions of
dollars in bribes in exchange for influencing Defense
Department contract awards. See Plea Agreement at 4-6, ECF
No. 40 ex. 2, United States v. Cunningham, No. 3:05-cr-2137
(S.D. Cal. Nov. 28, 2005). Mitchell Wade, the defense
contractor who pled guilty to bribing Cunningham, admitted to
making illegal “straw” contributions to two other Members of
Congress as well, both of whom he targeted for their perceived
“ability to request appropriations funding that would benefit” his
company. Statement of Offenses at 12, United States v. Wade,
No. 1:06-cr-49 (D.D.C. Feb. 24, 2006).16
16
Wade and the contracting corporation later agreed to pay a $1
million civil penalty for violating, inter alia, § 30119 (then 2 U.S.C.
§ 441c). Conciliation Agreement at 6-7, In re MZM, Inc. and Mitchell
Wade, Matter Under Review 5666 (FEC, Oct. 30, 2007).
25
In 2006, Representative Bob Ney similarly pled guilty to a
series of quid pro quos with the lobbyist Jack Abramoff,
including steering a “multi-million dollar” contract for a House
of Representatives infrastructure project to one of Abramoff’s
clients. See Factual Basis for Plea at 6, United States v. Ney,
No. 1:06-cr-272 (D.D.C. Sept. 15, 2006). And in 1981, Senator
Harrison Williams was convicted on bribery and corruption
charges for crimes exposed in the FBI’s Abscam investigation.
Williams “agreed to use his position as a United States Senator
to obtain government contracts” for titanium to be produced by
a mine financed by fictional Arab businessmen. United States
v. Williams, 529 F. Supp. 1085, 1091 (E.D.N.Y. 1981), aff’d,
705 F.2d 603 (2d Cir. 1983).
One might argue from this record that the general ban on
contractor contributions is unnecessary prophylaxis: after all,
congressmen who enter into quid pro quo agreements go to jail
anyway. But as the Supreme Court has explained, “laws making
criminal the giving and taking of bribes deal with only the most
blatant and specific attempts of those with money to influence
governmental action.” Buckley, 424 U.S. at 27-28. Although
the criminal cases certainly confirm the appetite for corruption
in contracting -- and the availability of channels for carrying it
out -- corruption and its appearance are no doubt more
widespread in the contracting process than our criminal dockets
reflect.
The Executive Branch is also an obvious site of potential
corruption in the contracting process, since its agencies are the
ones that ultimately award contracts. This was a key focus of
congressional concern during the Watergate hearings. See supra
Part III.B.2; see also, e.g., WATERGATE REPORT at 409
(describing a consultant who “was made to feel that his
continued success in obtaining Government contracts would, in
significant degree, be dependent on his contributing to the
26
President’s reelection”).17 Many more recent instances of
corruption or its appearance in the agency contracting process
are collected in the Defense Department’s aptly named
Encyclopedia of Ethical Failure. See generally DEP’T OF
DEFENSE, OFFICE OF GEN. COUNSEL, ENCYCLOPEDIA OF
ETHICAL FAILURE 4-58, 77-78, 82, 84-88, 132-46 (updated
2014).
2. Further evidence comes from the states, many of which
have enacted pay-to-play laws in response to their own recent
experiences. At least seventeen states now limit or prohibit
campaign contributions from some or all state contractors or
licensees.18 The fact that many states have such laws shows that
17
Another notorious pay-to-play contracting scheme of the
Watergate era involved Vice President Spiro Agnew. In 1973, a
federal investigation uncovered evidence that Agnew had accepted
bribes (including campaign contributions) in exchange for
infrastructure contracts while serving as Baltimore County Executive
and Governor of Maryland -- and that he had continued to request
payments from contractors as Vice President, “stat[ing] expressly that
he hoped to be able to be helpful . . . with respect to the awarding of
Federal engineering contracts.” Exposition of the Evidence at 3-4,
United States v. Agnew, No. 73-0535 (D. Md. Oct. 10, 1973),
reprinted in FBI Records: Spiro Agnew, Part 16, at 130,
http://vault.fbi.gov/Spiro%20Agnew. The Attorney General agreed
that Agnew could plead nolo contendere to a single count of tax
evasion if he resigned his office, which he did. See Transcript of Plea
Hearing at 7-8, United States v. Agnew, No. 73-0535 (D. Md. Oct. 10,
1973), available at http://research.archives.gov/description/279170.
18
The laws of Hawaii and West Virginia most closely track the
text and design of § 30119. See HAW. REV. STAT. § 11-355; W. VA.
CODE § 3-8-12(d). Other states have tailored their restrictions
differently -- often more broadly than the federal model in some
respects, such as by sweeping in the individual principals of
contracting firms, and more narrowly in others, such as by targeting
27
the federal statute is no outlier. Moreover, the corruption
scandals that prompted the adoption of those laws further
demonstrate the dangers that § 30119 helps stave off at the
federal level.19
New Jersey’s law, for example, was enacted in the
aftermath of a state investigation finding that a $392 million
contract for a failed project went to a firm that had made
extensive campaign contributions to state candidates and
political committees. See STATE OF N.J. COMM’N OF
INVESTIGATION, N.J. ENHANCED MOTOR VEHICLE INSPECTION
CONTRACT 1-2, 62-65 (2002). Similarly, Illinois’ law was
passed after former Governor George Ryan was convicted of
racketeering charges based on his efforts, as Secretary of State,
to steer state contracts to friendly firms in exchange for financial
support for his gubernatorial campaign. United States v.
particular industries or imposing ceilings on contract or contribution
size. See CAL. GOV’T CODE § 84308(d); CONN. GEN. STAT.
§ 9-612(f)(1)-(2); 30 ILL. COMP. STAT. 500/50-37; IND. CODE
§§ 4-30-3-19.5 to -19.7; KY. REV. STAT. ANN. § 121.330; LA. REV.
STAT. ANN. §§ 18:1505.2(L), 27:261(D); MICH. COMP. LAWS
§ 432.207b; NEB. REV. STAT. §§ 9-803, 49-1476.01; N.J. STAT. ANN.
§ 19:44A-20.13 to -20.14; N.M. STAT. ANN. § 13-1-191.1(E)-(F);
OHIO REV. CODE ANN. § 3517.13(I)-(Z), invalidated in part on other
grounds, United Auto Workers, Local Union 1112 v. Brunner, 911
N.E.2d 327 (Ohio Ct. App. 2009); 53 PA. CON. STAT. § 895.704-A(a);
S.C. CODE ANN. § 8-13-1342; VT. STAT. ANN. tit. 32, § 109(b); VA.
CODE ANN. § 2.2-3104.01.
19
Further evidence also comes from the Securities and Exchange
Commission, which in 1994 approved a pay-to-play rule for municipal
financing in response to concern that brokers and dealers were making
political contributions to state and local officials to influence the
choice of underwriters. This court upheld that rule against First
Amendment challenge in Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995).
28
Warner, 498 F.3d 666, 675 (7th Cir. 2007); see Ray Long,
Illinois Senate Overrides Blagojevich’s Veto, Enacts ‘Pay-to-
Play’ Ethics Law, CHI. TRIB., Sept. 23, 2008, at 1. The law’s
passage prompted Ryan’s successor, Governor Rod Blagojevich,
to redouble his efforts to solicit contributions from state
contractors before the new rules took effect. See Mike McIntire
& Jeff Zeleny, Obama’s Intervention for Ethics Bill Indirectly
Led to Case Against Governor, N.Y. TIMES, Dec. 10, 2008, at
A32. Those efforts in turn drew the interest of federal
prosecutors, and Blagojevich was ultimately convicted of
various forms of pay-to-play corruption, including attempting to
extort campaign contributions from the chief executive of a
hospital in exchange for raising Medicaid reimbursement rates,
as well as offenses in connection with his effort to sell a U.S.
Senate seat. See Jury Verdict, United States v. Blagojevich, No.
1:08-cr-888 (N.D. Ill. June 27, 2011).
In 2005, Connecticut passed a Campaign Finance Reform
Act that prohibited “campaign contributions by state contractors,
lobbyists, and their families.” Green Party, 616 F.3d at 192. In
upholding the contractor contribution ban, the Second Circuit
noted that it was passed “in response to several corruption
scandals in Connecticut,” which together had “helped earn the
state the nickname ‘Corrupticut.’” Id. at 193 (quoting Green
Party of Conn. v. Garfield, 616 F.3d 213, 218-19 (2d Cir. 2010))
(internal quotation marks omitted). As the court detailed:
The most widely publicized of the scandals involved
Connecticut’s former governor, John Rowland. In
2004, Rowland was accused of accepting over
$100,000 worth of gifts and services from state
contractors . . . . Rowland accepted the gifts, it was
alleged, in exchange for assisting the contractors in
securing lucrative state contracts. Rowland resigned
amidst the allegations, and in 2005 pleaded guilty --
29
along with two aides and several contractors -- to
federal charges in connection with the scandal.
Id. (quoting Green Party, 616 F.3d at 218-19). In light of that
experience, the court found “sufficient evidence” of “actual
corruption stemming from contractor contributions,” as well as
“a manifest need to curtail the appearance of corruption created
by contractor contributions.” Id. at 200.
Later, the Second Circuit also upheld New York City’s law
limiting contributions by entities “doing business with” the City.
Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011). In so doing,
the court noted that there were “actual pay-to-play scandals in
New York City in the 1980s,” id. at 188-89, and that there were
“several recent scandals . . . specifically involv[ing] pay-to-play
campaign donations” in New York State, id. at 190 n.15.20
We could go on. The FEC has assembled an impressive, if
dismaying, account of pay-to-play contracting scandals, not only
in the above states, but also in New Mexico, Hawaii, Ohio,
California, and elsewhere. See FEC’s Proposed Findings of
20
The plaintiffs point out that, in Lavin v. Husted, the Sixth
Circuit overturned an Ohio statute that made it a crime for candidates
for attorney general or county prosecutor to accept contributions from
Medicaid providers. 689 F.3d 543 (6th Cir. 2012). The court did so
because, inter alia, the defendant Secretary of State “concede[d] that
he ha[d] no evidence at all in support of his theory that [the statute]
prevent[ed] actual or perceived corruption among prosecutors in
Ohio.” Id. at 547 (emphasis added). As we discuss in the text, that is
emphatically not the situation here. See also id. (distinguishing Green
Party on the ground that there the state did have evidence “to
demonstrate how its ban on contributions from contractors would help
bring such scandals to an end”).
30
Fact, J.A. 298-313.21 But we think that the evidence canvassed
21
See also, e.g., Yamada, 2015 WL 2384944, at *20 (upholding
Hawaii contractor contribution ban “in light of past ‘pay to play’
scandals and the widespread appearance of corruption that existed at
the time” the ban was passed in 2005); United States v. Dimora, 750
F.3d 619, 623 (6th Cir. 2014) (affirming conviction of Ohio county
official who “influenced Cleveland decision-makers and steered public
contracts in return for approximately 100 bribes worth more than
$250,000”); Plea Agreement at 3, United States v. Montoya, No. 1:05-
cr-2050 (D.N.M. Nov. 8, 2005) (guilty plea of New Mexico State
Treasurer, who explained that “it was quite easy to get bribes from
people who wanted to keep or obtain business,” including individual
investment and financial advisors); James Drew & Steve Eder, Petro:
Noe Stole Millions, TOLEDO BLADE, July 22, 2005 (reporting on an
Ohio scandal in which state workers’ compensation funds were
invested with a major political contributor who was ultimately
convicted of both corruption and theft from the funds, see State v.
Noe, 2009 WL 5174163 (Ohio Ct. App. 2009)); Carl Ingram, Former
Davis Aide Faces Charges in Oracle Probe, L.A. TIMES, Mar. 3, 2004
(recounting incident in which a corporate lobbyist delivered a $25,000
contribution to the Governor of California’s reelection campaign, via
his policy director, days after the state signed a $95 million contract
with the company; the contribution was ultimately returned and the
contract rescinded); Bruce Dunford, Jail Time, Fines Are Levied in
Hawaii Election Probe, BOSTON GLOBE, Jan. 12, 2004, at A3
(detailing “a scandal in which respected architects and engineers
illegally made political donations in the names of their employees,
wives, and children, allegedly to win government contracts” in
Honolulu); United States v. Troutman, 814 F.2d 1428, 1433-36 (10th
Cir. 1987) (affirming the extortion conviction of New Mexico’s State
Investment Officer for demanding that a bank make political
contributions in order to obtain a state contract); cf. Patrick Madden,
The Cost of D.C. Council’s Power Over Contracts, WAMU (Oct. 14,
2014), http://wamu.org/projects/paytoplay/#/story (reporting on an
investigation that “identified more than $5 million in political
contributions from more than 300 firms with [D.C.] Council-approved
contracts from 2005 to 2014,” and that revealed that “[r]oughly half
31
thus far suffices to show that, in government contracting, the
risk of quid pro quo corruption and its appearance, and of
interference with merit-based administration, has not dissipated.
Taken together, the record offers every reason to believe that, if
the dam barring contributions were broken, more money in
exchange for contracts would flow through the same channels
already on display.
D
Notwithstanding the above, the plaintiffs argue that the
interests asserted by the Commission are not furthered by
§ 30119 for two reasons.
1. The plaintiffs contend that changes in government
contracting practices since the 1940s -- especially the advent of
formalized competitive bidding -- render the current system
“immune from political interference” in the majority of cases.
Pls. Br. 11. Thus, they maintain, “even if a pay-to-play rationale
might have made [the statute] defensible in 1940, the vast
changes in federal procurement since then have made it
indefensible on that basis today.” Id. at 13. We are
unpersuaded.
First, the facts that we have recounted above speak for
themselves. See supra Part III.C.1. If contracting were truly
immune from political interference, for example, Rep.
Cunningham could not have “pressure[d] and influence[d]
United States Department of Defense personnel to award and
execute government contracts.” Plea Agreement at 6, United
of the contractors’ campaign cash was donated to lawmakers within
a year of their contracts getting approved,” often “months and weeks
ahead of when the contracts were voted on” or even the same day as
the vote).
32
States v. Cunningham, No. 3:05-cr-2137 (S.D. Cal. Nov. 28,
2005). Nor would the myriad of other instances of corruption
and self-dealing in the contract bidding process have occurred.
See generally DEP’T OF DEFENSE, ENCYCLOPEDIA OF ETHICAL
FAILURE 4-58, 77-78, 82, 84-88, 132-46. Moreover, those facts
are hardly surprising. Although agencies do rely on specialized
contracting officers to help ensure independence, contracting
officers in turn rely on information about needs and objectives
provided by the “customer” agency, which may include input
from political appointees. See D. Ct. Findings ¶ 23 (citing
Schooner Dep. 110-16). And Members of Congress have many
opportunities of their own to intercede on behalf of their
constituents. See, e.g., MORTON ROSENBERG & JACK H.
MASKELL, CONG . RESEARCH SERV ., CONGRESSIONAL
INTERVENTION IN THE ADMINISTRATIVE PROCESS: LEGAL AND
ETHICAL CONSIDERATIONS 80 (2003); H.R. REP. NO. 113-666,
at 4 (2014).
Second, most contracts held by individuals to provide
personal services on a regular basis, such as those held by
plaintiffs Brown and Miller, “‘are not . . . . subject to full and
open competition and the full range of rights and responsibilities
that follow.’” D. Ct. Findings ¶ 24 (quoting Schooner Dep. 89);
see 48 C.F.R. § 13.003(d). Nor is full-blown competitive
bidding required for contracts with values below the “simplified
acquisition threshold” -- set at $150,000 in most cases, 48
C.F.R. § 2.101. See 41 U.S.C. § 1901; 48 C.F.R. § 13.003(a).
Instead, “‘the government can call two or three people on the
phone and operate in a very informal manner.’” D. Ct. Findings
¶ 24 (quoting Schooner Dep. 107-08). Wagner’s contract, for
example, was arranged under the simplified acquisition
procedures. Id. She was proactively approached by a staff
member at ACUS, and then discussed the arrangement with
ACUS’s Chairman, who is appointed by the President and
confirmed by the Senate. Wagner Decl. ¶ 3. In short, because
33
the plaintiffs challenge § 30119 as it applies to individual
contractors, the competitive bidding regime does little to help
their case.
Finally, perhaps the most relevant change in government
contracting over the past several decades has been the enormous
increase in the government’s reliance on contractors to do work
previously performed by employees. See Schooner Dep. 35-36,
cited in D. Ct. Findings ¶ 22.22 If anything, that shift has only
strengthened the original rationales for the contractor
contribution ban by increasing the number of potential targets of
corruption and coercion -- targets who do not have the merit
system protections available to government employees. See 5
U.S.C. §§ 1214-15, 2301(b)(1)-(2); infra Part V.B.23
22
See also Test. of John K. Needham, Director, Acquisition &
Sourcing Management, Gov’t Accountability Office, S. Hrg. 111-626,
at 3 (2010) (“[I]t is now commonplace for agencies to use contractors
to perform activities historically performed by government
employees.”); Presidential Memorandum for the Heads of Executive
Departments and Agencies on Government Contracting, Mar. 4, 2009
(noting that spending on government contracts had more than doubled
since 2001 and that the line between traditional public functions and
contracting functions “has been blurred and inadequately defined”);
PAUL C. LIGHT, RESEARCH BRIEF: THE NEW TRUE SIZE OF
GOVERNMENT 1 (2006) (noting that the Bush Administration “has
overseen the most significant increase in recent history in the largely
hidden workforce of contractors and grantees who work for the federal
government”).
23
Increased reliance on individual contractors -- particularly
retirees such as Brown and Miller -- also raises a concern that some
former federal employees may unwittingly violate § 30119 because
they are unaware that they have become subject to a different set of
restrictions as contractors. However, as FEC counsel advised the
court, there is no criminal violation unless the individual knows his or
her conduct violates the law. Oral Arg. Recording 1:01:19-1:02:19;
34
2. The plaintiffs also question whether there is sufficient
evidence of corruption or coercion specifically with respect to
individual contractors, as compared to those organized as
corporations or other kinds of firms. It is true that most of the
examples set forth in Parts III.B and III.C above involve firms.24
We see no reason, however, to believe that the motivations for
corruption and coercion exhibited in those examples are
inapplicable in the case of individual contractors. Consider Sam
Harris, a consultant who told the Watergate Committee that “he
was made to feel that his continued success in obtaining
Government contracts would, in significant degree, be
dependent on his contributing to the President’s reelection.”
WATERGATE REPORT at 409. There is no basis for thinking that
Harris would have been less vulnerable to such coercion if,
instead of doing business as Sam Harris & Associates, id., he
had contracted with the government in his personal capacity.
We are also mindful that less direct evidence is required when,
as here, the government acts to prevent offenses that “are
successful precisely because they are difficult to detect.”
Burson, 504 U.S. at 208 (upholding restriction of campaign
see 52 U.S.C. § 30109(d)(1)(A) (imposing criminal penalties on those
who “knowingly and willfully” violate FECA); Bryan v. United
States, 524 U.S. 184, 191-92 (1998) (“[I]n order to establish a ‘willful’
violation of a statute, the Government must prove that the defendant
acted with knowledge that his conduct was unlawful.” (internal
quotation marks omitted)).
24
But see, e.g., 84 CONG. REC. 9598, 9610 (1939) (statements of
Reps. Taylor and Michener) (detailing the coercion of WPA-paid
workers to contribute to the Democratic Party that led to passage of
the Hatch Act); WATERGATE REPORT at 413 (describing how federal
employees were pressured to help meet a “management objective” by
contributing to a Republican Party fundraiser); id. 429 (describing
evidence that contributions were solicited from Veterans’
Administration employees).
35
speech near voting places as warranted to prevent “[v]oter
intimidation and election fraud,” notwithstanding limited record
evidence). “[N]o smoking gun is needed where . . . the conflict
of interest is apparent, the likelihood of stealth great, and the
legislative purpose prophylactic.” Blount v. SEC, 61 F.3d 938,
945 (D.C. Cir. 1995).
Moreover, the trend we identified above, toward a larger
federal workforce outside the protection of the civil service
system, necessarily poses an increased threat of both corruption
and coercion. If anything, past experience suggests that such
workers are particularly vulnerable to tacit (or not so tacit)
demands for political tributes. See, e.g., Rutan v. Republican
Party of Ill., 497 U.S. 62, 66 (1990) (describing state
government promotion decisions predicated on “whether the
applicant has provided financial or other support to the
Republican Party and its candidates”); Elrod, 427 U.S. at 355(describing Cook County patronage system in which, “[i]n order
to maintain their jobs, respondents were required to . . .
contribute a portion of their wages to the [Democratic] Party”);
see also Umbehr, 518 U.S. at 671 (describing an individual
whose contract for hauling trash allegedly was terminated in
retaliation for political criticism). A coercive patronage system
can thrive on even small contributions from a large group of
workers beholden to those in power -- which is what the
growing ranks of individual contractors staffing federal agencies
offer. As the Court explained in Elrod v. Burns, “[a]s
government employment . . . becomes more pervasive, the
greater the dependence on it becomes, and therefore the greater
becomes the power to starve political opposition by
commanding partisan support, financial and otherwise.” 427
U.S. at 356; see Letter Carriers, 413 U.S. at 565-66 (explaining
that “perhaps the immediate occasion for enactment of the Hatch
Act in 1939 . . . was the conviction that the rapidly expanding
36
Government work force should not be employed to build a
powerful, invincible, and perhaps corrupt political machine”).
E
Our historical review makes clear that the two Court-
approved justifications for limitations on campaign activities --
to protect against quid pro quo corruption and its appearance,
and to protect merit-based public administration -- were the
justifications that lay behind the contractor contribution statute.
Likewise, our national experience supports Congress’ fear that
political contributions by government contractors can corrupt
and interfere with merit-based administration.
The Supreme Court has instructed that the “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.” Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 391 (2000). There is nothing novel
or implausible about the notion that contractors may make
political contributions as a quid pro quo for government
contracts, that officials may steer government contracts in return
for such contributions, and that the making of contributions and
the awarding of contracts to contributors fosters the appearance
of such quid pro quo corruption. Nor is there anything novel or
implausible about the idea that contractors may be coerced to
make contributions to play in that game, or that more qualified
contractors may decline to play at all if the game is rigged. To
the contrary, the empirical record is more than sufficient to
satisfy the heightened judicial scrutiny appropriate for review of
the legislative judgments that support § 30119.
In sum, the interests supporting the contractor contribution
statute are legally sufficient, and the dangers it seeks to combat
are real and supported by the historical and factual record.
37
Accordingly, we now turn to the remainder of the “closely
drawn” test.
IV
Even if a contribution ban serves sufficiently important
interests, to satisfy the First Amendment it still must employ
“‘means closely drawn to avoid unnecessary abridgment of
associational freedoms.’” McCutcheon, 134 S. Ct. at 1444(quoting Buckley, 424 U.S. at 25). Clearing this hurdle
“require[s] ‘a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served[;] . . . that
employs not necessarily the least restrictive means but . . . a
means narrowly tailored to achieve the desired objective.’” Id.
at 1456-57 (quoting Bd. of Trs. v. Fox, 492 U.S. 469, 480
(1989)). The plaintiffs contend that § 30119 fails this test
because it is overinclusive in several respects, which we
consider in turn.
A
The plaintiffs first maintain that the statute is overinclusive
because Congress banned their contributions entirely, rather than
simply resting on the contribution limits generally applicable to
all citizens, see 52 U.S.C. § 30116(a), or on some more modest
limits. Such a contribution ban, applicable to a particular
category of persons, is not unique. Federal law has long
prohibited all federal campaign contributions by corporations
and labor unions. See 52 U.S.C. § 30118(a); Beaumont, 539
U.S. at 161-63. Several states have their own bans on certain
contributions by classes of individuals or firms that do business
38
with the government.25 And every judge on this court -- indeed,
on every lower federal court -- is likewise banned from making
political contributions. See CODE OF CONDUCT FOR UNITED
STATES JUDGES, Canon 5(A)(3). So, too, are judicial employees.
See CODE OF CONDUCT FOR JUDICIAL EMPLOYEES § 310.10(a);
id. § 320, Canon 5(A). See also Bluman v. FEC, 800 F. Supp.
2d 281 (D.D.C. 2011) (three-judge court) (upholding ban on
contributions by foreign nationals, 52 U.S.C. § 30121(a)), summ.
aff’d, 132 S. Ct. 1087 (2012).
We do not dispute that the total ban on federal contributions
by contractors is a significant restriction. But the point of the
“closely drawn” test is that “‘[e]ven a significant interference
with protected rights of political association may be sustained if
the State demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary abridgment
of associational freedoms.’” McCutcheon, 134 S. Ct. at 1444(quoting Buckley, 424 U.S. at 25). And we conclude that the
ban at issue here is permissible in the circumstances that we
address in this opinion: a regulation that bars only campaign
contributions and that is imposed only on government
contractors. As we have discussed, the Court has held that
campaign contributions constitute a form of expressive activity
less central to the First Amendment than other kinds of political
activity and expenditures. See, e.g., id. at 1444; Beaumont, 539
U.S. at 161; Buckley, 424 U.S. at 25. And as we have also
discussed, we owe “‘greater deference to government
predictions of harm used to justify restriction of employee
speech than to predictions of harm used to justify restrictions on
the speech of the public at large.’” Umbehr, 518 U.S. at 676
25
See, e.g., CONN. GEN. STAT. § 9-612(f)(1)-(2); HAW. REV. STAT.
§ 11-355; 30 ILL. COMP. STAT. 500/50-37; IND. CODE §§ 4-30-3-19.7;
LA. REV. STAT. ANN. § 18:1505.2(L); MICH. COMP. LAWS § 432.207b;
W. VA. CODE § 3-8-12(d).
39
(quoting Waters, 511 U.S. at 673); see Letter Carriers, 413 U.S.
at 566-67; Pickering, 391 U.S. at 568. Under these
circumstances, we conclude that Congress’ decision to impose
a contribution ban during the period of contract negotiation and
performance is closely drawn for two reasons.
First, the contracting context greatly sharpens the risk of
corruption and its appearance. Unlike the corruption risk when
a contribution is made by a member of the general public, in the
case of contracting there is a very specific quo for which the
contribution may serve as the quid: the grant or retention of the
contract. Indeed, if there is an area that can be described as the
“heartland” of such concerns, the contracting process is it. Cf.
Green Party, 616 F.3d at 202 (explaining that Connecticut’s ban
on contractor contributions “is, without question, ‘closely
drawn’ to meet the state’s interest in combating corruption and
the appearance of corruption” because such contributions “lie at
the heart of the corruption problem in Connecticut”); see also
Yamada, 2015 WL 2384944, at *20. The long historical
experience described in Parts III.B and III.C makes clear that
this is not just a question of risk, but of reality.
Moreover, because of that sharpened focus, the appearance
problem is also greater: a contribution made while negotiating
or performing a contract looks like a quid pro quo, whether or
not it truly is. As the sponsor of the 1940 contractor
contribution ban explained to his Senate colleagues, the ban was
needed because contractor contributions “may be considered in
some instances as bribery in order to secure governmental
contracts,” 86 CONG. REC. 2982 (1940) (statement of Sen.
Byrd). See Green Party, 616 F.3d at 205 (upholding
Connecticut’s ban because, inter alia, “[e]ven 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
40
on state officials”); cf. Preston, 660 F.3d at 736 (upholding
North Carolina’s ban on lobbyists’ contributions because it
rested on “a legitimate legislative judgment” that “a complete
ban was necessary as a prophylactic to prevent not only actual
corruption but also the appearance of corruption in future state
political campaigns”).
Second, the contracting context also greatly sharpens the
risk of interference with merit-based public administration.
Because a contractor’s need for government contracts is
generally more focused than a member of the general public’s
need for other official acts, his or her susceptibility to coercion
is concomitantly greater. And coercing a contractor to
contribute, even if limited by a contribution ceiling, is still
coercion.
In sum, we conclude that a flat prohibition is closely drawn
to the important goals that § 30119 serves. Cf. Williams-Yulee
v. Fla. Bar, 135 S. Ct. 1656, 1672 (2015) (“Although the Court
has held that contribution limits advance the interest in
preventing quid pro quo corruption and its appearance in
political elections, we have never held that adopting contribution
limits precludes a State from pursuing its compelling interests
through additional means.”).
B
The plaintiffs also argue that § 30119 is overinclusive
because it bans contributions not only to candidates for
President and Congress, but also to political parties, which,
“[u]nlike elected officials who might have the theoretical power
to influence a contract, . . . plainly have no ability to affect the
award of any contract.” Pls. Br. 51. But the Democratic
campaign book scandal of the 1930s gave Congress sufficient
reason to target contributions to parties: it was the Democratic
41
National Committee whose agents reportedly told government
contractors that the continuation of their contracts hinged on
their financial support of the party. See 84 CONG. REC. 9598-99
(1939). Indeed, the 1876 law concerning federal employees was
also “aimed at the suppression of the practice which has
prevailed among party organizations of soliciting contributions
for party purposes from their office-holding members, or
exacting them by a moral coercion.” United States v. Curtis, 12
F. 824, 838 (C.C.S.D.N.Y. 1882) (emphasis added). Likewise
the Watergate Committee’s report on the 1972 election included
evidence that federal employees were pressured to contribute to
the Republican Party. WATERGATE REPORT at 413. Nor did the
role of contributions to political parties in influencing
government employment wane as the 20th century progressed.
See, e.g., Elrod, 427 U.S. at 351-52 (1976); Branti v. Finkel, 445
U.S. 507, 510-11 (1980); Rutan, 497 U.S. at 66 (1990).
More recently, in upholding FECA’s restrictions on soft-
money contributions to political parties, the Supreme Court
noted that “‘[t]here is no meaningful separation between the
national party committees and the public officials who control
them.’” McConnell, 540 U.S. at 155 (quoting expert report cited
in McConnell v. FEC, 251 F. Supp. 2d 176, 468-69 (D.D.C.
2003)). As a three-judge court in this district noted, “the
[McConnell] Court suggested that federal officeholders and
candidates may value contributions to their national parties --
regardless of how those contributions ultimately may be used --
in much the same way they value contributions to their own
campaigns.” Republican Nat’l Comm., 698 F. Supp. 2d at 159,
42
summ. aff’d, 561 U.S. 1040 (2010).26 Congress did not sweep
too broadly by designing § 30119 to address that fact.
C
In addition to those we have just considered, the plaintiffs
propose a miscellany of further ways in which Congress could
make § 30119 less restrictive. We address only the more
substantial of these.
First, the plaintiffs propose that the ban should at least
exclude sole-source contracts for experts like plaintiff Wagner,
particularly when it is the government that initiates the contact,
“because the requirements to enter them are sufficiently
rigorous” to address the risk of corruption. Pls. Br. 53 n.9. But
the plaintiffs do not explain what those requirements are, or why
they provide the requisite assurances. Cf. KATE M. MANUEL,
CONG . R ESEARCH SERV ., COMPETITION IN FEDERAL
CONTRACTING: AN OVERVIEW OF THE LEGAL REQUIREMENTS 1
(2011) (noting “high-profile incidents of alleged misconduct by
contractors or agency officials involving noncompetitive
contracts”). Moreover, this argument appears contrary to the
plaintiffs’ principal contention, that it is the rise of competitive
bidding -- not the private placement of sole-source contracts --
that has eliminated the risk of pay-to-play. See supra Part
III.D.1. In any event, because Wagner’s claims are moot, this
argument need not detain us.
26
See McConnell, 540 U.S. at 155 (explaining that the “close
connection and alignment of interests” between parties and federal
officeholders are likely to create the risk of “actual or apparent”
corruption); Emily’s List v. FEC, 581 F.3d 1, 6 (D.C. Cir. 2009).
43
Second, the plaintiffs argue that § 30119 unnecessarily bars
contractors from contributing to ideological PACs that, in turn,
contribute to candidates. Whether or not this argument has
merit,27 it suffers from a similar problem: the one plaintiff
whose claim is not moot lacks standing to challenge limitations
on contributions to PACs. See supra Part I.
Third, the plaintiffs suggest that the statute would be more
closely drawn if it applied only to large contracts, pointing out
that Colorado and New York City enacted pay-to-play laws
limited to contracts worth more than $100,000. See Pls. Br.
52-53. Although such a dollar limit would of course reduce the
number of covered contractors, the plaintiffs do not explain why
§ 30119 is not closely drawn to the interests it serves in the
absence of such a limit, or why a dollar limit would draw it more
closely to those interests. Perhaps quid pro quos and coercion
are more likely when larger contracts are involved because,
since more money is at stake, the parties are more willing to risk
detection and prosecution. Or perhaps such abuses are just as
likely when smaller contracts are involved because the relative
value to the small contractor is high and the risk of detection is
comparatively low. Because the plaintiffs have advanced no
argument on this point, there is no need for us to speculate
further. We do note, however, that the historical record provides
support for legislative concern that corrupt and coercive
patronage regimes can take root even when relatively small
amounts of money are at stake. See supra Parts III.B.1-2,
III.D.2., IV.A. And we also note again that a contribution ban
need not be a perfect fit to be constitutional, see McCutcheon,
27
The Supreme Court has upheld restrictions on contributions to
multicandidate committees as a necessary means to avoid
circumvention of other limits. Cal. Med. Ass’n, 453 U.S. at 197-99(plurality opinion); see id. at 203 (Blackmun, J., concurring in part and
concurring in the judgment); Emily’s List, 581 F.3d at 11-12.
44
134 S. Ct. at 1456-57, and that courts give substantial deference
to the government’s predictions of harm concerning its own
employees and contractors, see Umbehr, 518 U.S. at 676.
Finally, the plaintiffs maintain that Congress should have
rested on the criminal statutes that directly ban quid pro quos
and coercion,28 rather than also banning political contributions.
But the Supreme Court has repeatedly dispatched this argument.
As McConnell explained, “[i]n Buckley, we expressly rejected
the argument that antibribery laws provided a less restrictive
alternative to FECA’s contribution limits, noting that such laws
‘deal[t] with only the most blatant and specific attempts of those
with money to influence governmental action.’” 540 U.S. at 143(quoting Buckley, 424 U.S. at 28); see Citizens United, 558 U.S.
at 356-57 (noting that, although quid pro quo arrangements
“would be covered by bribery laws” if proven, the Court has
viewed “restrictions on direct contributions a[s] preventative”
and has sustained them “in order to ensure against the reality or
appearance of corruption”). And what is true of the antibribery
laws is equally true of the anticoercion provisions. See Letter
Carriers, 413 U.S. at 566 (“It may be urged that prohibitions
against coercion are sufficient protection; but for many years the
joint judgment of the Executive and Congress has been that to
protect the rights of federal employees with respect to their jobs
and their political acts and beliefs it is not enough merely to
forbid one employee to attempt to influence or coerce
another.”).
28
See, e.g., 18 U.S.C. § 201 (proscribing bribes and gratuities); id.§ 601 (proscribing causing or attempting to cause persons to make
political contributions by denying or threatening to deny them work
in or for the federal government).
45
D
Because the operative question in the plaintiffs’
overinclusiveness challenge is whether § 30119 avoids
“unnecessary abridgment” of First Amendment rights, it is also
important to consider how much the statute leaves untouched.
Campaign contributions are banned, but other forms of political
engagement are left entirely unrestricted. The plaintiffs are free
to volunteer for candidates, parties, or political committees; to
speak in their favor; and to host fundraisers and solicit
contributions from others. See 52 U.S.C. § 30101(8)(B)
(enumerating activities to which the term “contribution” does
not extend). And even the contribution ban itself is limited to
the period between commencement of negotiations and
completion of contract performance. Id. § 30119(a)(1).
The plaintiffs insist that the fact that the statute preserves
other avenues of political communication is irrelevant to First
Amendment analysis. Pls. Br. 61. But that argument is
incorrect. As the Court recognized in McCutcheon v. FEC, “in
the context of [upholding the] base contribution limits, Buckley
observed that a supporter could vindicate his associational
interests by personally volunteering his time and energy on
behalf of a candidate.” McCutcheon, 134 S. Ct. at 1449 (citing
Buckley, 424 U.S. at 22, 28).29 The availability of other avenues
29
See Buckley, 424 U.S. at 22 (noting that FECA’s contribution
ceilings “limit one important means of associating with a candidate or
committee, but leave the contributor free to become a member of any
political association and to assist personally in the association’s efforts
on behalf of candidates”); see also Williams-Yulee, 135 S. Ct. at 1670(upholding Florida’s ban on solicitation of campaign funds by judicial
candidates, emphasizing that the ban restricts only “a narrow slice of
speech” because it “leaves judicial candidates free to discuss any issue
with any person at any time”).
46
of political communication can thus be relevant, although it is of
course not dispositive.
In Blount v. SEC, for example, this court upheld a rule
restricting political contributions by municipal finance
professionals to state and local officials from whom they hoped
to secure underwriting contracts. 61 F.3d 938. We found the
rule to be “closely drawn,” in part because it “restrict[ed] a
narrow range of their activities for a relatively short period of
time,” and those subject to the rule were “not in any way
restricted from engaging in the vast majority of political
activities.” Id. at 947-48. Similarly, the Fourth Circuit upheld
a lobbyist contribution ban in part because it “serve[d] only as
a channeling device, cutting off the avenue of association and
expression that is most likely to lead to corruption but allowing
numerous other avenues of association and expression.”
Preston, 660 F.3d at 734. So, too, here.
E
We conclude that the ban on contractor contributions is
closely drawn to the government’s interests in preventing
corruption and its appearance, and in protecting against
interference with merit-based administration. It strikes at the
dangers Congress most feared while preserving contractors’
freedom to engage in many other forms of political expression.
We do not discount the possibility that Congress could have
narrowed its aim even further, targeting only certain specific
kinds of government contracting or doing so only during
specific periods. But as the Court has made clear, “most
problems arise in greater and lesser gradations, and the First
Amendment does not confine a State to addressing evils in their
most acute form.” Williams-Yulee, 135 S. Ct. at 1671.
47
V
What we have said thus far establishes that § 30119’s ban
on contractor contributions serves sufficiently important
interests and employs means closely drawn to avoid unnecessary
abridgment of protected expression. The plaintiffs make one
further First Amendment argument: not only is § 30119
overinclusive because it restricts too much speech, but it is also
underinclusive because it permits too much speech. That is, it
fails to ban contributions by three categories of individuals or
entities that might implicate the same interests.
The first category proffered for comparison by the plaintiffs
consists of entities and individuals associated with firms that
have government contracts: PACs established by contracting
corporations; officers, employees, and shareholders of
contracting corporations; and individuals who control limited
liability companies (LLCs) that contract with the federal
government. The second category is composed of federal
employees. The final category comprises individuals who seek
other government benefits or positions, particularly grants and
loans, admission to the military academies, and
ambassadorships.30
We begin with some general principles relevant to
evaluating a claim that a statute violates the First Amendment
because it is “underinclusive.” To put it most bluntly: “The First
30
The plaintiffs’ opening brief proffers only the third category as
an example of First Amendment underinclusiveness, discussing the
first two as part of their equal protection challenge. Pls. Br. 23, 55-59.
In their reply brief, the plaintiffs identify all three categories as
supporting their First Amendment argument. Reply Br. 26-28.
Because the issues are intertwined, see infra Part VI, we consider all
three categories here.
48
Amendment does not require the government to curtail as much
speech as may conceivably serve its goals.” Blount, 61 F.3d at
946. Or, as the Supreme Court recently said in Williams-Yulee
v. Florida Bar, in which it upheld, under strict scrutiny,
Florida’s ban on solicitation of campaign funds by judicial
candidates:
[T]he First Amendment imposes no freestanding
“underinclusiveness limitation.” A State need not
address all aspects of a problem in one fell swoop;
policymakers may focus on their most pressing
concerns. We have accordingly upheld laws -- even
under strict scrutiny -- that conceivably could have
restricted even greater amounts of speech in service of
their stated interests.
135 S. Ct. at 1668 (quoting R.A.V. v. St. Paul, 505 U.S. 377, 387
(1992)). Of course, in the instant case we do not apply strict
scrutiny, but rather the more forgiving “closely drawn” standard.
And a statute that does not go as far as it might to cut off
campaign contributions can hardly be said to constitute an
“unnecessary abridgment” of the freedom to make such
contributions, McCutcheon, 134 S. Ct. at 1444.
This is not to say that underinclusiveness plays no role in
First Amendment analysis. As the Court explained in Williams-
Yulee, a law’s underinclusiveness raises “a red flag” that may
indicate a different kind of problem. 135 S. Ct. at 1668. For
example, it may raise “‘doubts about whether the government is
in fact pursuing the interest it invokes, rather than disfavoring a
particular speaker or viewpoint.’” Id. (quoting Brown v. Entm’t
Merchants Ass’n, 131 S. Ct. 2729, 2740 (2011)). The “textbook
illustration of that principle,” the Court explained, is the Lukumi
Babalu Aye case, in which it struck down a city’s ban on ritual
animal sacrifices because the city’s failure to ban secular
49
killings indicated that the ban’s object was not (as it asserted)
animal welfare but rather the suppression of particular religious
beliefs. Williams-Yulee, 135 S. Ct. at 1668 (citing Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 543-47
(1993)).31 Indeed, underinclusiveness may call into question
whether “the proffered state interest actually underlies the law,”
Blount, 61 F.3d at 938 (internal quotation marks omitted), even
when the true interest is not invidious. See Republican Party of
Minn. v. White, 536 U.S. 765, 780 (2002) (finding a restriction
on speech by judicial candidates “so woefully underinclusive as
to render belief in [its asserted] purpose a challenge to the
credulous”).32
31
See also City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (noting
that “a regulation of speech may be impermissibly underinclusive” if
it represents an attempt “to give one side of a debatable public
question an advantage in expressing its views to the people,” or “to
select the permissible subjects for public debate and thereby to control
. . . the search for political truth” (internal quotation marks omitted));
First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 793 (1978) (finding
an underinclusiveness problem where “[t]he fact that a particular kind
of ballot question [was] singled out for special treatment . . .
suggest[ed] . . . that the legislature may have been concerned with
silencing corporations on a particular subject”).
32
See also Citizens United, 558 U.S. at 362 (concluding that, “if
Congress had been seeking to protect dissenting shareholders” as the
government claimed, it would not have banned corporate speech “in
only certain media” for only a specific period before an election);
Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (invalidating statute
barring publication of victims’ identities in part because its “facial
underinclusiveness . . . raises serious doubts about whether Florida is,
in fact, serving, with this statute, the significant interests which [it]
invokes in support of affirmance”).
50
But the plaintiffs do not challenge § 30119 on these
grounds. They do not contend, for example, that Congress’ true
interest was to favor corporate affiliates, federal employees, or
government grantees over individual contractors, see Oral Arg.
Recording 18:20-19:03, which would require us to undertake
closer analysis of the basis for such disparate treatment. To the
contrary, they agree that the interests that motivated and have
sustained § 30119 are the anticorruption goals the government
invokes today. See id. 22:05-45. Moreover, it is plain that the
statute “applies evenhandedly to all [government contractors],
regardless of their viewpoint,” Williams-Yulee, 135 S. Ct. at
1668, and regardless of their form of organization, see 52 U.S.C.
§ 30119(a)(1) (barring the “person” who enters into the contract
from making the contribution); id. § 30101(11) (defining
“person” to “include[] an individual, partnership, committee,
association, corporation, labor organization, or any other
organization or group of persons”). And nothing in the statute’s
history even hints at any purpose to disfavor individual
contractors as against the categories proffered by the plaintiffs.
In Williams-Yulee, the Court noted that
“[u]nderinclusiveness can also reveal that a law does not
actually advance a compelling interest.” 135 S. Ct. at 1668. See
also Blount, 61 F.3d at 946 (noting that a rule may be “struck for
underinclusiveness . . . if it cannot ‘fairly be said to advance any
genuinely substantial governmental interest’” (quoting FCC v.
League of Women Voters, 468 U.S. 364, 396 (1984))). As an
example of that kind of case, the Court cited the facts of Smith
v. Daily Mail, where the Court struck down a state statute
banning newspapers from disclosing the names of juvenile
defendants because, inter alia, the statutory purpose -- protecting
the anonymity of juvenile offenders -- was entirely vitiated by
the statute’s failure to bar electronic media from making the
same disclosures. Williams-Yulee, 135 S. Ct. at 1668 (citing
51
Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-105 (1979)).33
But here, the record reflects that § 30119 does advance, albeit
imperfectly, the government’s important interests in protecting
against quid pro quo corruption and its appearance, and in
protecting merit-based public administration.
With these general principles in mind, we now briefly
examine each of the categories of underinclusiveness to which
the plaintiffs draw our attention.
A
The plaintiffs’ first category includes entities and
individuals associated with corporations that have government
contracts. Like the plaintiffs, corporations that contract with
federal agencies cannot make contributions in federal elections.
See 52 U.S.C. §§ 30119(a), 30101(11).34 At the same time, it is
true that corporate contractors (like other corporations) are
permitted to form PACs -- separate segregated funds that can
33
Cf. Reed v. Town of Gilbert, No. 13-502, 2015 WL 2473374, at
*11 (U.S. June 18, 2015) (holding that a town’s content-based sign
regulation failed strict scrutiny because “[t]he Town cannot claim that
placing strict limits on temporary directional signs is necessary to
beautify the Town while at the same time allowing unlimited numbers
of other types of signs that create the same problem”); Sanjour v. EPA,
56 F.3d 85, 95 (D.C. Cir. 1995) (en banc) (“Because the government
has . . . not even attempted to regulate a broad category of behavior
. . . giving rise to precisely the harm that supposedly motivated it to
adopt the [challenged] regulations, we have trouble taking the
government’s avowed interest to heart.”).
34
The ban on corporate contractor contributions is a consequence
not only of § 30119, but also of 52 U.S.C. § 30118, which bans
contributions by any corporation in a federal election. See Beaumont,
539 U.S. 146 (upholding the ban on corporate contributions).
52
make campaign contributions with non-treasury funds solicited
from shareholders, certain personnel, and their families. See 52
U.S.C. § 30119(b); id. § 30118(b). Officers, employees, and
shareholders of corporate contractors are also free to make direct
contributions “from their personal assets.” 11 C.F.R. § 115.6.
And it may be that individuals who control LLCs that contract
with the federal government can make contributions as well.
But none of these allowances fatally undermines the statutory
regime.
1. A corporation is a separate legal entity from a PAC. See
Citizens United, 558 U.S. at 337; Mass. Citizens for Life, 479
U.S. at 252-56. As a consequence, the Supreme Court has said
that the political expression of a PAC is not equivalent to that of
its associated corporation. See Citizens United, 558 U.S. at 337(“A PAC is a separate association from the corporation. So the
PAC exemption from [FECA’s] expenditure ban does not allow
corporations to speak.” (citation omitted)). Congress’ decision
to permit contributions by PACs associated with contracting
corporations is therefore not inconsistent with its decision to
prohibit contributions by contractors themselves.
In Williams-Yulee, the Court considered a similar
underinclusiveness challenge to Florida’s ban on personal
solicitation of campaign funds by judicial candidates. That ban
“allow[ed] a judge’s campaign committee to solicit money,”
which the petitioner argued “reduces public confidence in the
integrity of the judiciary just as much as a judge’s personal
solicitation.” 135 S. Ct. at 1668. The Court was not moved.
“However similar the two solicitations may be in substance,” the
Court said, “a State may conclude that they present markedly
different appearances to the public. Florida’s choice to allow
solicitation by campaign committees does not undermine its
decision to ban solicitation by judges.” Id. at 1669. The same
can be said of Congress’ choice to permit contributions by
53
political committees associated with corporate contractors, while
banning contributions by contractors themselves.
2. Respecting the corporate form, and therefore according
separate treatment to shareholders and other individuals
associated with corporations, is also constitutional. In Blount,
we considered and rejected a similar underinclusiveness
challenge to the SEC’s pay-to-play rule, which, while restricting
contributions by municipal securities professionals, did not
extend the restriction to the chief executives of banks with
municipal securities departments. “[A] regulation is not fatally
underinclusive,” we said, “simply because an alternative
regulation, which would restrict more speech or the speech of
more people, could be more effective.” Blount, 61 F.3d at 946.
In upholding the SEC’s rule, Blount also noted the SEC’s
explanation that this “loophole,” like others in the rule, reflected
the Commission’s sensitivity to First Amendment concerns
about overinclusiveness. Id. at 947. Here, too, Congress could
reasonably have concluded that banning contributions by all
those associated with corporate contractors would go too far at
too great a First Amendment cost.
3. The plaintiffs further argue that, while they contract
directly with the federal government for their services and so are
barred from making contributions, they or other individuals
could instead establish an LLC to formally contract with the
government and receive payment for their work. Then, because
the FEC has ruled that the contractor contribution ban does not
apply to an entity’s “employees, officers, or members,” 11
C.F.R. § 115.6, the plaintiffs maintain that such individuals
would remain free to make contributions. The availability of
this LLC loophole, they say, vitiates the statutory purpose.
54
Although the FEC’s briefs accepted the plaintiffs’
description of the regulatory treatment of individuals who
establish LLCs, the agency submitted a post-argument letter
clarifying that the Commission itself “has not addressed the
application of FECA’s contractor contribution prohibition to
contributions made by an individual who is the sole member of
an LLC that is a federal contractor.” FEC Post-Argument Letter
at 6 (Nov. 24, 2014) (emphasis omitted).35 Perhaps for that
reason, there is no evidence in the record that anyone has ever
used an LLC as a loophole to permit him or her to make an
individual campaign contribution.36
The plaintiffs’ own evidence highlights the not insignificant
costs involved in both establishing and operating as an LLC.
See Tiemann Decl. ¶ 3, cited in D. Ct. Findings ¶ 19. Moreover,
at oral argument, plaintiffs’ counsel acknowledged that “persons
like Mr. Miller and Mr. Brown almost certainly could not have
[contracted] through [an] LLC” -- both because the agency may
not have allowed it, and because of the “substantial sacrifice”
they would have incurred by forgoing various benefits that come
with employment-like contracts. Oral Arg. Recording 23:13-58.
In short, in the absence of any evidence of circumvention-by-
LLC, the failure to plug this speculative loophole is hardly a
35
The statute, of course, does not mention LLCs, which first
emerged in the late 1970s. See Treatment of Limited Liability
Companies Under the Federal Election Campaign Act, 64 Fed. Reg.
37397, 37398 (July 12, 1999).
36
One witness opined that, at least with respect to consulting-type
contracts, client agencies are indifferent between contracting with an
LLC and contracting with an individual. See Schooner Decl. ¶ 8, cited
in D. Ct. Findings ¶ 20. The witness did not say how many such
arrangements there are, or that any individuals using LLCs had
actually made campaign contributions. Id.; see also Lubbers Decl. ¶ 8,
cited in D. Ct. Findings ¶ 20.
55
basis for invalidating the statute. Cf. Williams-Yulee, 135 S. Ct.
at 1670 (“Even under strict scrutiny, ‘[t]he First Amendment
does not require States to regulate for problems that do not
exist.’” (quoting Burson, 504 U.S. at 207)).
B
The second category proffered by the plaintiffs as evidence
of § 30119’s underinclusiveness is composed of federal
employees who, unlike federal contractors, are generally not
barred from making campaign contributions. See 5 C.F.R.
§ 734.208(a). As with the other categories, there is no ground
for concluding that Congress chose to invidiously discriminate
against contractors in favor of employees. And while federal
employees are permitted to make contributions, they are subject
to other restrictions (pursuant to the Hatch Act) and enjoy other
protections (pursuant to the Civil Service Reform Act) that do
not apply to contractors.37
37
The Hatch Act bars most federal employees from, inter alia,
soliciting or accepting political contributions, running for office in a
partisan election, hosting a political fundraiser, or engaging in political
activity while on duty or in a federal building. See 5 U.S.C.
§§ 7323(a), 7324(a); 5 C.F.R. §§ 734.302-.306. Employees of more
than a dozen specific agencies, as well as others who hold certain
senior or adjudicative positions, are more broadly prohibited from
“tak[ing] an active part in . . . political campaigns.” 5 U.S.C.
§ 7323(b)(2)(A). Under the Civil Service Reform Act, covered
employees are protected against “prohibited personnel practices,”
including discrimination on the basis of political affiliation and
coercion to make political contributions. 5 U.S.C. § 2302(a)(1),
(b)(1)(E), (b)(3). Aggrieved employees who have been subjected to
such practices can seek redress through the Office of Special Counsel
and the Merit Systems Protection Board. 5 U.S.C. §§ 1214-15, 1221.
56
Congress could reasonably have thought that the difference
in status of the two kinds of workers warrants this difference in
treatment. Because regular employees do not generally need
new contracts or renewals with the frequency required by
outside contractors, permitting them to make contributions
carries less risk of corruption or its appearance: employees have
less to gain from making contributions and less to lose from not
making them.38 It is true, as the plaintiffs note, that employees
have other concerns that could make them susceptible to
coercion, including the desire for promotion or the fear of
termination. But Congress has provided them with merit system
protections that guard against that risk. See supra note 37. We
see no basis for overturning Congress’ decision about how to
calibrate these different restrictions.39
C
Finally, the plaintiffs’ comparison of contractors to a
miscellany of other individuals who seek government benefits
or positions -- particularly grants and loans, admission to the
military academies, and ambassadorships -- is equally
38
Cf. 86 CONG. REC. 2580 (1940) (statement of Sen. Brown)
(“[T]he Government clerk, if he is not under civil service, is interested
in keeping in power the party that is in power and that gave him a job.
. . . I can apply the same principle . . . . to contractors who are doing
business with the Government of the United States.” (emphasis
added)).
39
Cf. Broadrick v. Oklahoma, 413 U.S. 601, 607 n.5 (1973)
(rejecting equal protection challenge to Oklahoma statute “singling out
classified service employees for restrictions on partisan political
expression while leaving unclassified personnel free from such
restrictions” because “the legislature must have some leeway in
determining which of its employment positions require restrictions on
partisan political activities and which may be left unregulated”).
57
unavailing. Once again, there is no basis for a claim that
Congress invidiously discriminated against contractors and in
favor of others. Nor is there any reason to believe that
permitting contributions by these other individuals defeats
§ 30119’s purpose of protecting against corruption and
interference with merit-based administration. Congress is surely
not prohibited from fighting such problems in one sector unless
it fights them in all. As the Supreme Court has said, “‘a
legislature need not strike at all evils at the same time.’”
Buckley, 424 U.S. at 105 (quoting Katzenbach v. Morgan, 384
U.S. 641, 657 (1966)). Rather, “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 quotation
marks and citations omitted); see Williams-Yulee, 135 S. Ct. at
1668.
D
We conclude that the contractor contribution ban is not
fatally underinclusive. There is no doubt that “the proffered
state interest actually underlies the law,” and that it can “fairly
be said” that the statute “advance[s] a[] genuinely substantial
governmental interest.” Blount, 61 F.3d at 946 (citations and
internal quotation marks omitted). The plaintiffs may well be
right that the ban would be even more effective if it swept in
more potential contributors. But § 30119 “aims squarely at the
conduct most likely to undermine” the important interests that
underlie it, and “[w]e will not punish [Congress] for leaving
open more, rather than fewer, avenues of expression, especially
when there is no indication that the selective restriction of
speech reflects a pretextual motive.” Williams-Yulee, 135 S. Ct.
at 1668-70.
Accordingly, and in light of the analysis of the preceding
Parts, we reject the plaintiffs’ First Amendment challenge.
58
VI
In addition to their First Amendment claim, the plaintiffs
challenge § 30119 under the equal protection component of the
Fifth Amendment. Equal protection is violated, they maintain,
because the statute subjects individual contractors like
themselves to a ban that it does not apply to two categories of
similarly situated persons: (1) entities and individuals associated
with firms that have government contracts (i.e., PACs of
contracting corporations; officers, employees, and shareholders
of contracting corporations; and individuals who control
contracting LLCs); and (2) individuals who are regular
employees rather than contractors.
If this argument sounds familiar, it should. It is the same
argument that we have just considered, and rejected, when
clothed in the garb of a First Amendment claim that § 30119 is
too underinclusive to satisfy the “closely drawn” standard.40
Now dressing their argument as an equal protection claim, the
plaintiffs insist that we must evaluate it under strict scrutiny.
That is so, they say, because “the right to make a political
contribution is a fundamental right protected by the First
Amendment,” and because “strict scrutiny is required when a
law . . . ‘impinges upon a fundamental right explicitly or
implicitly protected by the Constitution.’” Pls. Br. 25 (quoting
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17
(1973)).
We reject this doctrinal gambit, which would require strict
scrutiny notwithstanding the Supreme Court’s determination that
the “closely drawn” standard is the appropriate one under the
40
As noted above, the plaintiffs’ underinclusiveness argument
included a third category as well: individuals seeking a miscellany of
other government benefits or positions. See supra note 30.
59
First Amendment. Although the Court has on occasion applied
strict scrutiny in examining equal protection challenges in cases
involving First Amendment rights, it has done so only when a
First Amendment analysis would itself have required such
scrutiny.41 There is consequently no case in which the Supreme
Court has employed strict scrutiny to analyze a contribution
restriction under equal protection principles. Indeed, the
plaintiffs acknowledge that they know of no case in any court
“in which an equal-protection challenge to contribution limits
succeeded where a First Amendment one did not.” Wagner, 901
F. Supp. 2d at 112. This will not be the first.
As we explained in Ruggiero v. FCC, “[a]lthough equal
protection analysis focuses upon the validity of the classification
rather than the speech restriction, ‘the critical questions asked
are the same.’ We believe that the same level of scrutiny . . . is
therefore appropriate in both contexts.” 317 F.3d 239, 247 (D.C.
Cir. 2003) (en banc) (quoting Cmty.-Serv. Broad. of Mid-Am.,
Inc. v. FCC, 593 F.2d 1102 (D.C. Cir. 1978) (en banc)).42 That
has been this court’s consistent view. See, e.g., Int’l Ass’n of
Machinists v. FEC, 678 F.2d 1092, 1106 (D.C. Cir. 1982) (en
banc) (observing that “the nature and quality of the legislative
action at issue determine the intensity of judicial review of
intertwined equal protection, First Amendment claims”); see
41
See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 655,
666 (1990) (applying strict scrutiny in determining whether
restrictions on independent expenditures by corporations but not
unincorporated associations passed muster under the Equal Protection
Clause), overruled on other grounds by Citizens United, 558 U.S. at
365.
42
In Ruggiero, that level of scrutiny was “heightened rational
basis.” 317 F.3d at 247.
60
also Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t
of Elections, 174 F.3d 305, 314 (3d Cir. 1999) (en banc).
It is certainly true that the Court “has occasionally fused the
First Amendment into the Equal Protection Clause” in
concluding that “content-based discrimination” is not a
legitimate government interest because it “violates the First
Amendment.” R.A.V., 505 U.S. at 384 n.4.43 And it is likewise
true that the Court has sometimes examined campaign finance
classifications to determine whether they are invidious in the
context of a First Amendment analysis, see Williams-Yulee, 135
S. Ct. at 1668-70, and sometimes in the context of an equal
protection analysis, see Buckley, 424 U.S. at 31-33, 105 &
n.143. But in a case like this one, in which there is no doubt that
the interests invoked in support of the challenged legislative
classification are legitimate, and no doubt that the classification
was designed to vindicate those interests rather than disfavor a
particular speaker or viewpoint, the challengers “can fare no
better under the Equal Protection Clause than under the First
Amendment itself.” City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 55 n.4 (1986).44 For the reasons discussed in the
43
See City of Ladue, 512 U.S. at 51 n.9 (observing that regulatory
distinctions based on the content of speech “may fall afoul of the
Equal Protection Clause”); Police Dep’t of Chi. v. Mosley, 408 U.S.
92, 95 (1972) (observing that “the equal protection claim . . . is closely
intertwined with First Amendment interests” when a classification
discriminates on the basis of the content of speech); see also Carey v.
Brown, 447 U.S. 455, 463 n.7 (1980) (describing Mosley as a
“pronouncement that the First and Fourteenth Amendments forbid
discrimination in the regulation of expression on the basis of the
content of that expression” (emphasis added)).
44
Cf. Blount, 61 F.3d at 946 & n.4 (concluding that the invalidity
of an equal protection challenge to the SEC’s pay-to-play rule
followed a fortiori from the court’s rejection of the claim that the rule
61
preceding Parts, when we apply the same degree of scrutiny to
the plaintiffs’ equal protection challenge, we find it wanting.
VII
As should by now be clear, this is a somewhat unusual
campaign finance case in at least two respects. First, there is no
dispute regarding the legitimacy or importance of the interests
that support the contractor contribution ban. In § 30119,
Congress was plainly not attempting “to reduce the amount of
money in politics, or to restrict the political participation of
some in order to enhance the relative influence of others.”
McCutcheon, 134 S. Ct. at 1441 (citing, e.g., Ariz. Free Enter.
Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825-26
(2011)). Nor did it create a mechanism “to level the playing
field, or to level electoral opportunities, or to equaliz[e] the
financial resources of candidates.” Id. at 1450 (internal
quotation marks omitted). Nor did it “‘disfavor[] a particular
speaker or viewpoint,’” Williams-Yulee, 135 S. Ct. at 1668(quoting Brown, 131 S. Ct. at 2740), or favor incumbents over
challengers, cf. Randall v. Sorrell, 548 U.S. 230, 249, 253
(2006) (plurality opinion). To the contrary, the interests
supporting the statute are ones that the Supreme Court has long
approved -- indeed, endorsed -- as legitimate and important
grounds for restricting campaign contributions and certain
related associational freedoms.
Second, the contractor contribution ban rests on not one but
two such interests. The ban is not only supported by the
“compelling” interest in protecting against quid pro quo
corruption and its appearance, McCutcheon, 134 S. Ct. at 1444-
45, commonly at issue in campaign finance cases. It is also
supported by the “obviously important interest[]” in protecting
violated the First Amendment as impermissibly underinclusive).
62
merit-based public administration, Letter Carriers, 413 U.S. at
564, commonly at issue in cases involving limits on partisan
activities by government employees.
The long historical experience recounted in Part III further
makes clear that these important concerns supporting § 30119
are neither theoretical nor antiquated, but rather are grounded in
unhappy experience stretching to the present day. And for the
reasons set forth in Parts IV through VI, we also conclude that
the statute employs means closely drawn to avoid unnecessary
abridgement of associational freedoms, and does not deprive the
plaintiffs of equal protection of the laws. Accordingly, we
uphold the statute against all of the plaintiffs’ constitutional
challenges.
So ordered.