Breaking News: Federal Court Rejects Challenge to Ban on Contractor Contributions to Federal Candidates

You can read the 26-page decision denying the preliminary injunction at this link. (H/t Bloomberg BNA) The court held that the ban on contractor contributions was “closely drawn” to the government’s anticorruption interest, and that current evidence of a problem of corruption was unnecessary:

This same factor is at play here. When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption. As just discussed, the ban was originally passed in 1940 on the heels of the  “campaign-book racket,” in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business. 84 Cong. Rec. 9598-99 (1939). In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors. Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and “reassure[] citizens that its politicians are acting on their behalf and not on behalf of the highest bidder.” Preston, 660 F.3d at 741. Because, just as in Green Party, Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. Plaintiffs argue that there is no current evidence that individual federal contractors may corrupt the election process or be pressured to give. An absence of corruption does not necessarily mean, however, that the ban is no longer needed. It could simply be an indication that the ban is working. See Burson v. Freeman, 504 U.S. 191, 208 (1992) (noting difficulty of finding evidence to support long-enforced statutes). Nor is it possible to say that the role of money in federal campaigns has diminished; indeed, the converse is incontrovertibly true. See Wisconsin Right to Life, 551 U.S. at 507 (“If the threat … flowing from concentrations of money in politics has reached an unprecedented enormity, it has been gathering force for generations.”).
As a result, the suggestion that those seeking federal contracts might “pay to play” is hardly novel or implausible. See Shrink Missouri, 528 U.S. at 391 (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny … will vary up or down with the novelty and plausibility of the justification raised.”). It in no way stretches the imagination to envision that individuals might make campaign contributions to curry political favor. Examples of such behavior abound, as Connecticut’s recent corruption scandals demonstrate. See, e.g., Green Party, 616 F.3d 189, 193 (discussing corruption scandals in Connecticut that preceded ban); see also Ognibene v. Parkes, 671 F.3d 174, 188-89 (2d Cir. 2012) (imposition of lower contribution limits on those who do business with New York City “responded to actual pay-to-play scandals in [the city] in the 1980s”); Blount v. SEC, 61 F.3d 938, 944-45 (D.C. Cir. 1995) (specific evidence of quid pro quo corruption unnecessary because “underwriters’ campaign contributions self-evidently create a conflict of interest in state and local officials who have power over municipal securities contracts and a risk that they will award the contracts on the basis of benefit to their campaign chests rather than to the governmental entity”; “risk of corruption is obvious and substantial”). The threat of corruption addressed by the provision at issue here is thus far from “illusory,” see Ognibene, 671 F.3d at 183, but instead provides a reasonable basis for restricting political contributions by federal contractors.

It will be interesting to watch this case on its inevitable appeal to the D.C. Circuit, and potentially to the Supreme Court.


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