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Wendy Wagner, et al v. Federal Election Commission

April 16, 2012

WENDY WAGNER, ET AL.,
PLAINTIFFS,
v.
FEDERAL ELECTION COMMISSION,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

For over seventy years, federal contractors have been barred from donating to candidates, political committees, and parties in connection with federal elections. The ban on such contributions guards against "pay-to-play" arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business. It also protects such contractors from pressure to contribute or risk losing their work.

Plaintiffs here are three individual federal contractors who have brought this suit alleging that the prohibition on political contributions violates, on its face, both the First Amendment and the equal-protection guarantee of the Fifth Amendment. They have now moved for a preliminary injunction to prevent the Federal Election Commission from enforcing the ban until a final determination has been reached in this action. Because Plaintiffs do not have a likelihood of success on the merits of either claim, the Court will deny their Motion.

I.Background

The Federal Election Campaign Act, 2 U.S.C. § 431 et seq., regulates the use of money in federal elections. Under Section 441c(a) of the Act, any person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for a federal office, and from knowingly soliciting such a contribution. Specifically, the Act reads:

(a) Prohibition

It shall be unlawful for any person--

(1) who enters into any contract with the United States or any department or agency thereof either for the rendition of personal services or furnishing any material, supplies, or equipment to the United States or any department or agency thereof or for selling any land or building to the United States or any department or agency thereof, if payment for the performance of such contract or payment for such material, supplies, equipment, land, or building is to be made in whole or in part from funds appropriated by the Congress, at any time between the commencement of negotiations for and the later of (A) the completion of performance under; or

(B) the termination of negotiations for, such contract or furnishing of material, supplies, equipment, land, or buildings, directly or indirectly to 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 or to any person for any political purpose or use; or

(2) knowingly to solicit any such contribution from any such person for any such purpose during any such period.

2 U.S.C. §§ 441c(a)(1)-(2).

While the provision does not explicitly exclude state and local elections, the FEC has interpreted it to apply exclusively to federal elections -- i.e., campaigns for President, Vice President, Member of the U.S. House of Representatives, U.S. Senator, and (non-voting) Delegate or Resident Commissioner. See 11 C.F.R. § 115.2(a); Dallman v. Ritter, 225 P.3d 610, 628 (Colo. 2010). A knowing or willful violation of § 441c(a) is a crime and, depending on the amount of money at issue, can result in a fine or imprisonment of up to five years. 2 U.S.C. § 437g(d)(1)(A).

Plaintiffs in this case are three individuals who have contracts with federal agencies and are therefore subject to § 441c's ban on political contributions. See Motion to Certify Facts, Exh. 2 (Declaration of Wendy E. Wagner), ¶ 3; Exh. 3 (Declaration of Lawrence M. E. Brown), ¶ 5; Exh. 4 (Declaration of Jan W. Miller), ¶¶ 5, 7. Each of them wishes to donate to candidates, parties, or committees in connection with federal elections in 2012, but is forbidden by law from doing so because of his or her contract. See Wagner Decl., ¶ 6; Brown Decl., ¶¶ 7-8; Miller Decl., ¶ 7.

FECA contains an unusual judicial-review provision that permits expedited en banc review of constitutional challenges to the Act by the United States Court of Appeals for the circuit involved. 2 U.S.C. § 437h. Plaintiffs initially sought such review, moving this Court to certify constitutional questions to the D.C. Circuit for its review, as required by § 437h. See Compl., ¶ 4 ("[T]his Court has jurisdiction over the case under 28 U.S.C. § 1331 and 2 U.S.C. § 437h, but only to make necessary findings of fact and then to certify the constitutional issues in the case immediately to the United States Court of Appeals for the District of Columbia Circuit to be heard by that Court en banc"); Motion to Certify Facts. The parties subsequently agreed, however, to abandon this course and decided, instead, that Plaintiffs would pursue their constitutional challenge as an ordinary case in the district court. See Motion for Preliminary Injunction at 1-2.

Plaintiffs, accordingly, filed an Amended Complaint on January 31, 2012. They allege that § 441c's ban on contributions to federal elections is facially unconstitutional as it applies to individual government contractors (as opposed to corporations). See Compl., ¶ 1. Specifically, they contend that the ban violates the First Amendment and the equal-protection guarantee of the Fifth Amendment. Id., ¶¶ 15-19. Plaintiffs now seek a preliminary injunction barring the FEC from enforcing § 441c against them during the pendency of the case. After reviewing the parties' pleadings, the Court also held a hearing on the preliminary injunction on March 22, 2012, and it now issues this Opinion.

II.Legal Standard

A preliminary injunction "is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id. at 374. Before the Supreme Court's decision in Winter, courts weighed the preliminary injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another. See Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a "more demanding burden" requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).

Whichever way Winter is read, it is clear that a failure to show a likelihood of success on the merits is alone sufficient to defeat a preliminary injunction motion. In Arkansas Dairy Co-op Ass'n, Inc. v. U.S. Dept. of Agr., 573 F.3d 815 (D.C. Cir. 2009), a case that postdates Winter, the court decided that it "need not proceed to review the other three preliminary injunction factors" because the plaintiff had "shown no likelihood of success on the merits." Id. at 832; see also Apotex, Inc. v. Food and Drug Admin., 449 F.3d 1249, 1253 (D.C. Cir. 2006) (pre-Winter case holding no need to address other preliminary injunction factors where plaintiff had little likelihood of succeeding on the merits); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006) ("[A] preliminary injunction will not issue" upon showing of irreparable harm unless plaintiffs also satisfy other three preliminary injunction factors; "Unsupported or undeveloped allegations of government establishment, for example, while sufficient to make out irreparable injury, will not withstand scrutiny concerning the movant's likelihood of success on the merits, thereby defeating a request for preliminary injunction."). It follows that, upon finding that a plaintiff has failed to show a likelihood of success on the merits, the Court may deny a motion for preliminary injunction without analyzing the remaining factors.

III.Analysis

In line with this framework, the Court looks first at Plaintiffs' likelihood of success on the merits for each claim -- First Amendment and equal protection. Because it finds Plaintiffs have failed to satisfy that prong, it does not consider the ...


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