From The Hill (Ballot Box), By Rachel Leven – 10/28/11 05:57 PM ET -Three government contractors have filed a complaint against the Federal Election Commission (FEC) arguing a federal law that bars them from donating to political candidates is unconstitutional.
The statute, Section 441c(a), prohibits corporations and individuals who have a contract with the federal government from donating “to any political party, committee, or candidate for public office or to any person for any political purpose or use,” the complaint said.
The contractors Wendy Wagner, Lawrence Brown and Jan Miller claim the statute is a violation of their First and Fifth Amendment rights and want to have the ban enjoined against them so that they can donate freely to candidates.
“Because the ban on contributions in section 441c… is not supported by any legitimate interest, let alone a compelling one, and because the ban is not narrowly tailored to support whatever interest might support a ban, the ban violates the First Amendment rights of plaintiffs,” attorneys Alan B. Morrison and Arthur Spitzer wrote in the complaint.
The plaintiffs say the law also violates their Fifth Amendment rights because “plaintiffs are not treated equally with individuals and corporations who are similarly situated with respect to their right to make contributions in connection with federal elections.”
Corporations that have business with the government can donate to candidates through political action committees, while individual contractors cannot, the attorneys noted in the complaint. Similarly, government employees who are performing identical tasks to the plaintiffs can make federal election contributions, but the plaintiffs cannot.
Wagner currently teaches at the University of Texas Law School and holds a $12,000 per year contract to Administrative Conference of the United States. Miller is a personal services contractor with USAID and is paid $155,550 annually.
Brown works for USAID as a human resources advisor and has previously received an answer to an FEC Advisory Opinion stating “because he was not an employee, he was subject to the ban under section 441c,” according to the complaint.
While all three would like to make political donations, none is willing to break the law to do so. Violating the current statute could lead to a fine of $5,000, up to five years in jail, or both.
There is no potential conflict of interest, the lawyers stated in the complaint, as none of the plaintiffs would be donating to a direct supervisor.
“None of the contracts held by plaintiffs that subject them to section 441c were negotiated or signed by, or are being implemented by, any person who is an elected federal officer, nor is any such elected officer the employer or employing authority of any plaintiff,” Morrison and Spitzer stated.
Morrison works for George Washington University Law School, while Spitzer works for the American Civil Liberties Union of the Nation’s Capital. Both are certified lawyers under the D.C. Bar.