Sounds Like Federal Campaign Contractor Ban Could Fall, But….

according to this BLT report from today’s DC Circuit en banc hearing [update: MORE from Josh Gerstein], the reason it could fall is because it is so porous as to not accomplish its goal.  That would be a better outcome, from the point of view of salvaging what remains of contribution limits, than a holding which strikes down the ban as too restrictive of the First Amendment rights of government contractors. A snippet:

But Tatel and his colleagues raised concerns about the different ways individual contractors could circumvent the ban. Contractors were allowed to hold political fundraisers and bundle contributions, for example, or could form an LLC and then be free to give as a corporate contributor.

Tatel questioned the FEC’s lawyer—Kevin Deeley, acting associate general counsel for litigation—over whether those alternatives raised questions about what the ban was actually accomplishing.

“Congress has attacked the most dangerous exchange,” Deeley replied, referring to an individual contractor making a direct contribution.

Judge Patricia Millett said she found it hard to reconcile the government’s claim that the ban was necessary with the fact that there was “an easy way out.” Judge Cornelia Pillard raised another concern about the ban’s possible “underinclusiveness”—that would-be contractors could make contributions in anticipation of applying for a contract, since the ban only kicked in once contract negotiations began.

 

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