[EL] Breaking: DC Circuit En Banc Unanimously Upholds Ban on Federal Contractor Contributions to Candidates

[Rick Hasen]

    Breaking: DC Circuit En Banc Unanimously Upholds Ban on Federal
    Contractor Contributions to Candidates
    <http://electionlawblog.org/?p=74090>

Posted onJuly 7, 2015 8:39 am 
<http://electionlawblog.org/?p=74090>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read the 62-page opinionat this link 
<http://electionlawblog.org/wp-content/uploads/wagner.dca_.pdf>. This is 
quite a big deal, especially in its unanimity. The en banc DC Circuit in 
/Wagner v. FEC /holds that the ban on contractor contributions to 
federal candidates is supported by two interests: (1) preventing 
corruption and (2) promoting sound merit-based administration of federal 
contracts.  On the first point, the court discussed the special dangers 
of corruption which occur in the contracting process. The court surveys 
various state and federal corruption scandals, many of which involve the 
procurement of government contracts. On the second interest, the court 
relies in large part on the Hatch Act cases, in particular on the 
government’s interest in somewhat curtailing the First Amendment 
activities of government employees in order to assure a merit-based 
governmental process.

Perhaps what is most important doctrinally about this ruling is the 
court’s rejection of the argument that a higher level of scrutiny should 
apply because the law imposes a /ban/, rather than merely a /limit/, on 
contractor contributions.  Relying upon the Supreme Court’s decision in 
/FEC v. Beaumont/(which upheld the ban on corporate contributions to 
candidates), the Court held the ban was still subject to the lesser 
“exacting scrutiny” which applies to contribution limits. Opponents of 
the ban have argued that /Beaumont/‘s reasoning has been undermined by 
more recent Supreme Court cases, such as /Citizens United/. But the DC 
Circuit did not accept that argument.

This question (the vitality of /Beaumont/and the constitutionality of a 
ban, rather than limit on contributions) remains the most interesting 
issue which could provide a basis for the Supreme Court to grant cert. 
in the case. It is not clear whether the Court will bite on this one, 
for reasons I will be writing about in coming days.

Also interesting is that the DC Circuit did not address whether federal 
contractors may make contributions to Super PACs. (“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 5:59-26:33 (“Super PACs . . . 
. are not at issue here; none of my clients wants to make a contribution 
to them or anything like them.”).)  If indeed contractors can make such 
contributions, then the ban won’t be all that effective in stopping 
corruption.

[This post has been updated.]

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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http://electionlawblog.org

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