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Wagner v. Federal Election Commission

United States Court of Appeals, District of Columbia Circuit

July 7, 2015


Argued En Banc September 30, 2014.

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.

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.



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, contendthat 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.


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).

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 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, 405 U.S.App.D.C. 213 (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, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (holding that the plaintiff's departure from her position as a state employee mooted her First 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, 128 S.Ct. 2759, 171 L.Ed.2d 737 (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)).

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]


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, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); see McCutcheon v. FEC, 134 S.Ct. 1434, 1444, 188 L.Ed.2d 468 (2014) (plurality opinion); McConnell v. FEC, 540 U.S. 93, 134-38, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (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, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (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; v. FEC, 599 F.3d 686, 692, 389 U.S.App.D.C. 424 (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.,, 599 F.3d at 696.

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, 107 S.Ct. 616, 93 L.Ed.2d 539 (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, 130 S.Ct. 3543, 177 L.Ed.2d 1119 (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, 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, 116 S.Ct. 2342, 135 L.Ed.2d 843 (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, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99, 67 S.Ct. 556, 91 L.Ed. 754 (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, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (referring to Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).[6]

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, 116 S.Ct. 2353, 135 L.Ed.2d 874 (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 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).


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.


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 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, 105 S.Ct. 1459, 84 L.Ed.2d 455 (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).

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, 1 S.Ct. 381, 27 L.Ed. 232 (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 individual belief and association." Elrod v. Burns, 427 U.S. 347, 371, 96 S.Ct. 2673, 49 L.Ed.2d 547 (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, 131 S.Ct. 746, 178 L.Ed.2d 667 (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 their speech (quoting Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (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.


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 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, ยง 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 ...

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