Groups File Brief Supporting Challenge to Contractor Donation Ban

Center for Competitive Politics, Cato, Urge Court to Use Strict Scrutiny

For Immediate Release

July 11, 2013

Contact: Joe Trotter

210-352-0055 (Cell)

Alexandria, Va – The Center for Competitive Politics (CCP) and the Cato Institute filed a joint friend-of-the-court brief Wednesday urging that strict scrutiny be applied to a law that bans four individuals with small federal contracts from donating even a dime to any federal candidate.

The brief argues the ban on such individuals ought to only pass constitutional muster if the state can demonstrate the ban is “narrowly tailored to a compelling governmental interest.”

“The law strips individual citizens of an important constitutional right, regardless of the scale of their contact work, and regardless of whether they have any contact with elected officials,” said CCP Legal Director Allen Dickerson. “Such an approach does nothing to combat real corruption, but as this suit makes clear, creates a very real burden on these individuals’ political rights.”

“The Supreme Court has considered this type of categorical prohibition on free association before. And in that case, McConnell v. FEC, the Court found a ban on contributions by minors violated the First Amendment. The government argued that parents could use their children as conduits to bypass the nominal contribution limits, and the Court rejected that assertion. The Constitution compels the government to conduct an exhaustive inquiry for other, less restrictive, means to counter corruption before flatly banning a constitutionally-protected activity. For example, here Congress could have imposed lower contribution limits or enhanced reporting of meetings between such contractors and congressmen.”

The case is Wagner v. Federal Election Commission, and the constitutional question in the case will be heard by the full United States Court of Appeals for the District of Columbia Circuit.

Unlike contribution limits, which place a ceiling on the amount of money any individual is allowed to give to a federal candidate, the contractor ban prohibits a wide swath of citizens from making any political contribution. As a result, individuals who may have even the slightest contract with the government—contracts often awarded by independent administrative agencies that have no input or review by members of Congress —are banned from making even a penny of campaign contributions. For over forty years, the U.S. Supreme Court has found that the act of contributing to political campaigns is protected by the First Amendment right of free association, a right that rests “at the foundation of a free society.”

The CCP-Cato brief contends that even if strict scrutiny is not applied, the D.C. Circuit should still find the ban unconstitutional. As written, the ban sweeps in individual contributors who pose no risk of corrupting public officials, but still prohibits them from associating with the candidates of their choice.

“Even worse,” noted CCP Staff Attorney Anne Marie Mackin, “There is no evidence that Congress actually considered the ramifications of this ban. While courts often defer to legislative judgments, doing so here would be wholly inappropriate. It cannot be constitutional for Congress to ban First Amendment activity without bothering to explain why.”

A copy of the brief can be found here.

The Center for Competitive Politics promotes and defends the First Amendment’s protection of the political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.