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Media Alerts - Wagner v. FEC
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July 7, 2015
  Wagner v. FEC
Headline: Sitting en banc, unanimous D.C. Circuit rejects First Amendment challenge to ban on political contributions by individual government contractors.

Area of Law: Federal Election Commissions Act; First Amendment

Issue(s) Presented: Whether a ban on federal campaign contributions by individual government contractors violates the First Amendment.

Brief Summary: Plaintiffs, three individuals who hold or had held government contracts, brought an as-applied First Amendment challenge to 52 U.S.C. § 30119(a)(1), which bans federal campaign contributions to candidates, parties, or political action committees (PACs) during the negotiation and performance of federal contracts. The United States District Court for the District of Columbia granted summary judgment to the Federal Election Commission (FEC). On appeal, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the district court lacked jurisdiction to consider the constitutional claims because the special judicial review provision of the Federal Election Commissions Act (FECA) grants exclusive jurisdiction to the en banc court of appeals. The panel remanded to the district court to make findings of fact to certify for en banc review.

On appeal, the unanimous en banc court upheld the constitutionality of the ban. As a preliminary matter, the court determined that claims brought by two of the individuals were moot, as they no longer held government contracts. The remaining plaintiff, who still worked for a government agency under contract, sought only to donate to candidates and political parties, not PACs. Therefore, the court did not address contributions to PACs.

Turning to the merits, the court rejected plaintiff's argument that strict scrutiny was appropriate since § 30119 imposed an outright ban, rather than a limit, on contributions. The court noted that contribution bans or limits were typically subject to intermediate scrutiny, under which incursions on the rights of political association are permitted only if the government demonstrates a "sufficiently important" interest and uses means "closely drawn" to effectuate its purpose. In the circumstances of this case, the court observed that even more deferential review might be appropriate, given that government contractors are difficult to distinguish from government employees, to whom the more lenient Pickering balancing test applies. Declining to pick a test, the court found that the government's asserted interests - protecting against quid pro quo corruption or its appearance and safeguarding merit-based administration - were sufficiently weighty to satisfy even the more exacting standard. Canvassing the history of the proscription and the scandals that inspired it, the court concluded that the measures were necessary and closely drawn to achieve their intended goal. In so doing, the court rejected plaintiff's various claims of over-inclusiveness and emphasized that the statute left open many other avenues of political engagement. The court likewise rejected plaintiff's claim that the statute's under-inclusiveness called into question the legitimacy of the government's interests, noting that valid reform can take one step at a time.

Finally, the court rejected plaintiff's equal protection challenge, premised on the same claimed under-inclusiveness and the different treatment accorded government contractors and employees and PACs of contracting corporations. Concluding that the equal protection claim was similar to the First Amendment claim, the court applied the same level of scrutiny and found the equal protection claim wanting based on the same significant and creditable governmental interests.

To read the opinion in its entirety, please visit

Panel (if known): En banc

Argument Date (if known): September 30, 2014

Date of Issued Opinion: July 7, 2015

Docket Number: 13-5162

Decided: Statute upheld

Case Alert Author: Elizabeth Beske

Counsel (if known): Alan B. Morrison, Arthur B. Spitzer for plaintiffs.

Kevin Deeley, Harry J. Summers, Holly J. Baker, Seth E. Nesin for defendant.

Author of Opinion: Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/07/2015 04:07 PM     DC Circuit  

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