Reprinted from Roll Call (March 13, 2012)
Q: I am a college professor, and I have a question about
restrictions on campaign contributions. A federal agency recently offered me a
contract to perform some fairly minor advisory services for the agency. I’d like
to accept the contract, but a conversation with another faculty member has given
me second thoughts. She says that accepting the contract means I will be
prohibited from making any federal campaign contributions of any kind. This
could be a deal breaker for me, as I consider myself politically active and I
generally like to contribute to candidates I support. Would I really be banned
from making contributions if I accepted the agency contract?
A: Believe it or not, the answer is yes — at least for the time being.
A court is currently hearing a constitutional challenge that could change this.
The Federal Election Campaign Act restricts the extent to which individuals
and organizations may contribute money to federal election campaigns. It sets
limits on the amounts of contributions by individuals and prohibits altogether
direct contributions by corporations.
One of the act’s restrictions is an outright ban on contributions by any
person who is negotiating or performing a contract with a federal agency. In
general, it covers all contracts with federal agencies where payment is to come
from funds appropriated by Congress. It applies from the time that contract
negotiations begin through the contract’s completion. During that period, the
contractor may not “make any contribution of money or other things of value, or
to promise expressly or impliedly to make any such contribution to any political
party, committee, or candidate for public office.”
Many states have similar restrictions on contributions by government
contractors to candidates for certain elected offices, which are loosely called
“pay to play” laws.
Earlier this year, three individuals with government contracts filed a
lawsuit claiming that the ban on contributions is unconstitutional, at least as
applied to them. One of the plaintiffs challenging the ban is a law professor
who has a $12,000 contract to prepare a report and recommendations for a federal
agency. The other two plaintiffs are retired government employees who continue
to do work for their former agency, but now as contractors instead of as
The plaintiffs make two arguments. First, they say, the ban violates the
Equal Protection clause because it treats plaintiffs differently from other
similarly situated parties who are permitted to make campaign contributions. One
group of similarly situated parties, the plaintiffs contend, are federal agency
employees, including the employees of the very agencies for which two of the
plaintiffs do their work. Plaintiffs say that they work side by side with these
agency employees, performing many of the same duties. Yet, the employees are
permitted to make campaign contributions while plaintiffs are not.
A second group of similarly situated parties, the plaintiffs say, are
corporations and their employees. Federal election law allows corporations to
establish political action committees, which may make campaign contributions,
even if the corporation is a government contractor. Moreover, the plaintiffs
argue, the ban does not apply to employees of corporations that contract with
the government. The president of a corporation that contracts with the
government and even the corporate employees responsible for negotiating
government contracts are all free to make political contributions, but
individuals who contract directly with the government are not.
The plaintiffs’ other argument is that the restriction violates the First
Amendment because it restricts their right to contribute to campaigns yet is not
narrowly tailored to serve any legitimate public purpose. Plaintiffs state that
the only plausible justification for the ban would be that it somehow prevents
corruption or the appearance of corruption. To serve that purpose, plaintiffs
concede that it would be justifiable to ban contributions to candidates for
positions that are actually involved in the decision-making for government
contracts from individuals who are bidding for or performing under such
Some state pay-to-play laws are designed this way. The federal contribution
ban, however, prohibits plaintiffs from making contributions to presidential
candidates for president and Members of Congress, even though the president and
Members of Congress have no role whatsoever in the awarding of personal services
contracts such as the plaintiffs’.
The Federal Election Commission, which is charged with defending the ban,
responds that the ban has “deep roots in our nation’s history” and serves two
important government interests.
First, it helps prevent corruption and the appearance of corruption. And
second, it helps ensure that government contracts are awarded on merit and that
contractors are not coerced into political participation. Politics can infect
the government contract process, the FEC says, even when elected officials do
not formally approve government contracts. Moreover, many agency employees
involved in government contract positions owe their jobs to the presidential
Responding to plaintiffs’ claims of discriminatory treatment under the Equal
Protection clause, the FEC says federal election law treats groups differently.
For example, federal employees may not solicit campaign donations, while
government contractors may. The Constitution requires strict scrutiny of laws
that discriminate between different groups when they do so on the basis of a
specially protected criterion, such as gender or race. But laws that use some
other basis for making distinctions — such as whether someone contracts with
government — are constitutional so long as Congress has a rational basis for
So, who is right? That is for the court to decide, which may happen as soon
as a hearing scheduled for later this month. In the meantime, the ban remains in
effect, which means you have a choice to make: accept the government contract or
continue being able to make contributions to federal campaigns.
© Copyright 2012, Roll Call Inc. Reprinted with permission. Widely regarded
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