Court denies federal contractors' bid to donate in elections

A Washington, D.C. court upheld current Federal Election Commission (FEC) restrictions on election contribution by federal contractors Monday.

Three federal contractors sued the FEC in October, calling unconstitutional statute 441c that prohibits federal contractors from donating to candidates, political committees and political parties in federal elections.  Monday’s ruling by the U.S. District Court for the District of Columbia blocked the plaintiffs from temporarily being allowed to contribute in elections, while awaiting a final court verdict.

“The ban on such guards against “pay-to-play” arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business. It also protects such contractors from pressure to contribute or risk losing their work,” Judge James Boasberg wrote in the court’s opinion. 

“Because Plaintiffs do not have a likelihood of success on the merits of either claim, the Court will deny their motion,” Boasberg said.

The contractors Wendy Wagner, Lawrence Brown and Jan Miller claim the statute is a violation of their First and Fifth Amendment rights and want to have the ban removed so that they can donate freely to candidates, as The Hill previously reported. 

The plaintiffs argue the law also violates their Fifth Amendment rights because “plaintiffs are not treated equally with individuals and corporations who are similarly situated with respect to their right to make contributions in connection with federal elections,” according to previous court documents.

Wagner, Brown and Miller filed for “preliminary relief” at the end of January in hopes of participating in the 2012 election cycle, according to court documents.

“Preliminary relief is essential for plaintiffs because this is a presidential election year in which plaintiffs wish to support the candidates and parties of their choosing, which they cannot do under the schedule that the FEC claimed it needs for discovery and briefing on the merits,” Alan Morrison and Arthur Spitzer wrote in the preliminary injunction request. 

Morrison and Spitzer represent the plaintiffs. Morrison works for George Washington University Law School, while Spitzer works for the American Civil Liberties Union of the Nation’s Capital.

The court disagreed with both claims on unconstitutionality – First and Fifth Amendment rights to freedom of speech and equal protection.

Current FEC law was intended to prevent corruption in the electoral system and “ensur[e] that federal contracts were awarded based on merit,” Boasberg wrote. Since the intention is to prevent corruption, the first amendment interests can be overruled, the court said.

“In fact, preventing corruption or the appearance of corruption is the only interest the Supreme Court has recognized as 'sufficiently important to outweigh the First Amendment interests implicated by contributions of speech,'” Boasberg said.

“There can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give – or the appearance that either is occurring – is sufficiently important to warrant restrictions on political contributions by federal contractors,” he said.

The court also disagreed with the argument that federal contractors be allowed the same rights as “similarly situated individuals,” including federal employees and contactor corporations and their stockholders. Contractors are in far different situations and have different stakes than federal employees do in the political election system, the court said.

“A government contract … can be worth far more than an employment position with the federal government, and specific protections in place to ensure that federal employment is awarded based on merit do not exist for federal contractors,” Boasberg wrote.

“As such,  [statute] 441c’s ban reflects a reasonable legislative judgment that contracting is particularly susceptible to quid pro quo arrangements or the appearance thereof,” Boasberg wrote.

The court also concluded that federal contractors are “not similarly situated” to corporations or individuals who own corporations that receives federal contracts.

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