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Wagner v. Federal Election Com'n

United States District Court, District of Columbia

November 2, 2012

Wendy WAGNER, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.

Page 102

Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, Alan B. Morrison, George Washington University Law School, Washington, DC, for Plaintiffs.

Seth E. Nesin, Anthony Herman, David Brett Kolker, Harry Jacobs Summers,

Page 103

Holly Jean Baker, Federal Election Commission, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

While foes of campaign-finance laws have repeatedly and successfully challenged limits on political expenditures, limits on political contributions have escaped relatively unscathed. Plaintiffs in this suit aim to change that trend. They seek to invalidate one of the harshest contribution restrictions in the U.S. Code: a full-blown ban on political contributions by federal contractors. See 2 U.S.C. § 441c. The Court has already denied Plaintiffs' motion for a preliminary injunction, concluding that they were unlikely to succeed on the merits of their claim. See Wagner v. FEC ( Wagner I ), 854 F.Supp.2d 83 (D.D.C.2012). The parties have now renewed their battle by filing Cross-Motions for Summary Judgment. On revisiting the previous decision, the Court reaches the same conclusion: Congress may constitutionally bar federal contractors from contributing to candidates, parties, and their committees.

I. Background

In its pervasive regulation of money in federal elections, the Federal Election Campaign Act reserves a special place for federal contractors. Under 2 U.S.C. § 441c, entitled " Contributions by government contractors," no one who contracts with the Federal Government may contribute, directly or indirectly, to any political party, committee, or candidate for public office, or to any person for any political purpose or use. Nor may anyone promise or solicit such a contribution.

In full, the statute provides:

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). " Person" is defined broadly to include " an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons" other than the Federal Government. 2 U.S.C. § 431(11). The prohibition does not apply, however, to contributions by separate segregated funds (a type of political action committee, or PAC) of contracting corporations and related entities. See 2 U.S.C. § 441c(b). The FEC interprets § 441c to prohibit only contributions in connection with federal elections. See 11 C.F.R. § 115.2(a) (" This prohibition does not apply to contributions or expenditures in connection with State or local elections." ).

Page 104

Plaintiffs are three individuals with federal contracts. One has a sole-source ( i.e., no-bid) contract for $12,000 to prepare a report on how agencies can use science more effectively for the Administrative Conference of the United States. See Decl. of Wendy E. Wagner, ¶ 3. Another Plaintiff supervises federal employees for the U.S. Agency for International Development, earning $598.08 per day— about $150,000 if he works full time. See Decl. of Lawrence M.E. Brown, ¶¶ 4-5. The last is a policy adviser for USAID, earning $596 per day. See Decl. of Jan W. Miller, ¶ 5. The two Plaintiffs who contract with USAID formerly worked for that agency as federal employees and accrue benefits in the same manner as employees.

Each Plaintiff has previously contributed to federal candidates, parties, or committees and wishes to do so again. See Wagner Decl., ¶ 6; Brown Decl., ¶ 6; Miller Decl., ¶ 7. Section 441c blocks them from making such contributions. According to Plaintiffs, § 441c thereby violates the First Amendment and the equal-protection guarantee in the Fifth Amendment Due Process Clause.

At first, Plaintiffs filed suit under 2 U.S.C. § 437h, which requires a district court to certify constitutional questions about FECA to its en banc appellate court. Plaintiffs changed their minds, however, and amended their complaint to follow the standard path of federal litigation. See Wagner I, 854 F.Supp.2d at 86. They are permitted to do so, and this Court has jurisdiction under 28 U.S.C. § 1331. See Bread PAC v. FEC, 455 U.S. 577, 585, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982) (" plaintiffs meeting the usual standing requirements can challenge provisions of the [Federal Election Campaign] Act under the federal-question jurisdiction granted the federal courts by 28 U.S.C. § 1331" ).

Plaintiffs then moved for a preliminary injunction. This Court denied their motion, concluding that they did not have a likelihood of success on the merits of their claims. See Wagner I, 854 F.Supp.2d 83. After further discovery, both parties have now filed Motions for Summary Judgment. The parties agree that these Motions supplement— rather than replace— the preliminary-injunction briefs and record. See Pls. Mot. at 1; FEC Mot. at 1 n.1. The new Motions, therefore, focus on the parties' disagreements with Wagner I. The Court also held a hearing on two specific issues: whether Plaintiffs challenge restrictions on contributions to independent-expenditure groups and what level of scrutiny applies to the equal-protection claim. See Order, Oct. 26, 2012. Like the briefs, this Opinion supplements— rather than replaces— Wagner I and focuses on the new objections.

II. Legal Standard

Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. " A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by " citing to particular parts of materials in the record" or

Page 105

" showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

When a motion for summary judgment is under consideration, " [t]he evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.Cir.2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) ( en banc ). On a motion for summary judgment, the Court must " eschew making ...


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