FAN 67 (First Amendment News) En Banc Unanimous Ruling from DC Circuit Upholds Federal Ban on Contributions by Federal Contractors

This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election CommissionDemocracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

  1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
  2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
  3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
  4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
  5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
  6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
  7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
  8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
  9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

→ Mootness: “The plaintiffs advise us that both Wagner and Brown have now completed their federal contracts and hence are once again free to make campaign contributions. Brown, at least, has already done so.  Accordingly, Wagner’s and Brown’s claims are moot,” which leaves Plaintiff Jan Miller, whose “contract is ongoing” and therefore “his constitutional claims . . . remain alive.”

→ Reliance on Williams-YuleeThe Chief Judge cited to Williams-Yulee v. Florida Bar fifteen times — e.g., “But as the [Williams-Yulee] Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”

The Lawyers & Amici

  • Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
  • Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
  • Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
  • J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny 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 federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

  1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
  2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

Newseum Releases 2015 State of the First Amendment Report

This from a press release from the Newseum Institute:

Gene Policinski of the Newseum

Gene Policinski of the Newseum Institute

The State of the First Amendment survey, conducted each year since 1997 by the Newseum Institute’s First Amendment Center, tests Americans’ knowledge of their core freedoms and samples their opinions on First Amendment issues of the day.

The 2015 survey questions covered topics including the use of Confederate flags on license plates, perceptions of news media bias, photography of police by the public, the use of police “body cams” and whether the public should have access to images from these cameras. Other topics included religious objections to providing wedding-related services to same-sex couples, the impact on religious liberty of the recent U.S. Supreme Court decision legalizing same-sex marriage nationwide, and whether cartoonists should be free to draw images of the Prophet Muhammad.

Other questions explored the extent of support for student speech when writing about school officials, public support for National Security Agency surveillance and whether individuals, corporations and unions should be able to donate as much as they wish to candidates.

The survey again found that most Americans are unable to name more than one or two of the five freedoms in the First Amendment —religion, speech, press, assembly and petition— and that one-third cannot name any of the five.

Three-quarters of Americans say it “does not go too far” in ensuring Americans’ freedom. That’s a jump from 57% last year after the Boston Marathon bombing in 2013 stirred public debate about the role of social media during a crisis and the media’s use of shocking images, according to State of the First Amendment 2015, a report by the Newseum Institute’s First Amendment Center in partnership with USA TODAY.

A year ago, 38% said the First Amendment goes too far, but the current survey shows only 19% agrees with the sentiment. The study saw a similar dive in public opinion and a subsequent recovery after the 2001 terrorist attacks, the authors noted.

“Once again there is a falloff in the number of those who say the First Amendment goes too far when we move away from a terrorist attack,” says Gene Policinski, chief operating officer of the Newseum Institute, one of the authors of the study. “We ought to be very vigilant when these attacks occur” and not hastily pass laws that limit freedoms. “The law are permanent, the emotions that surround these events are not.”

The nationwide sampling was done by telephone between May 14 and 23, and reached 1,002 adults age 18 or older.

The full report can be found here.

→ Video interview with Gene Policinski here.

Strossen Speaks at ACS on 2014-2015 Term 

Professor Nadine Strossen

Professor Nadine Strossen

On July 1, 2015 New York Law Professor Nadine Strossen spoke at the American Constitution Society’s 2014-2015 Supreme Court Review conference. She was one of five speakers on a panel (moderated by Tom Goldstein) discussing the past Court Term. Her remarks focused on the Court’s First Amendment free speech decisions rendered during the past Term.

Professor Strossen’s comments centered on Walker v. Sons of Confederate Veterans and Reed v. Town of Gilbert

 In the course of her comments, Professor Strossen quoted Robert Corn-Revere:”The Walker opinion began with the eight scariest words in First Amendment law: ‘Justice Breyer delivered the opinion of the Court.'”

Heritage Foundation to Host Conference

Tomorrow, July 9th, the Heritage Foundation will host its Scholars & Scribes Review the Rulings: The Supreme Court’s 2014-2015 Term.

Panel I (11:00 a.m. to 12:00 p.m.)

Moderator: John Malcolm, The Heritage Foundation

  1. Michael Carvin, Jones Day; Oral advocate in King v. Burwell
  2. John Elwood, Vinson & Elkins; Oral advocate in Elonis v. United States
  3. Andrew Pincus, Mayer Brown; Oral advocate in Williams-Yulee v. The Florida Bar

Panel II (12:00 p.m. to 1:00 p.m.)

Moderator: James Swanson, The Heritage Foundation

  1. Jess Bravin, The Wall Street Journal
  2. Adam Liptak, The New York Times
  3. Mark Sherman, Associated Press

To attend, go here.

UCI Law School to Host Conference

On July 13th the University of California at Irvine Law School will host its 5th Annual Supreme Court Term in Review  conference.


Moderator: Rick Hasen, UCI Law

  1. Erwin Chemerinsky, UCI Law
  2. Linda Greenhouse, Yale Law School/The New York Times
  3. Song Richardson, UCI Law
  4. Kannon K. Shanmugam, Williams & Connolly LLP
  5. Hon. Jeffrey S. Sutton, U.S. Court of Appeals for the Sixth Circuit

The event will also be webcast, with viewers able to submit questions via Twitter (@UCILaw or @rickhasen), using the hash tag #ucilawscotus at the end of your question.

This event is approved for 1.5 hours of Minimum Continuing Legal Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.

Journalist to Receive First Amendment Award

Mike Donoghue

Mike Donoghue

The Burlington Free Press reports that “longtime journalist and educator Mike Donoghue of South Burlington has been selected to receive the Matthew Lyon Award for his lifetime commitment to the First Amendment and the public’s right to know the truth in Vermont.”

“The Vermont Press Association, which represents the interests of 11 daily and about four dozen non-daily newspapers circulating in Vermont, will honor Donoghue at its annual meeting and awards banquet at noon Thursday, July 16 at the Capitol Plaza in Montpelier.”

“Donoghue, an award-winning veteran news and sports writer for the Burlington Free Press, is being recognized for efforts in his spare time working as an adjunct professor of journalism at St. Michael’s College, as a longtime officer with the Vermont Press Association and his volunteer efforts with various groups including New England First Amendment Coalition, New England Newspaper and Press Association and the Society for Professional Journalists. . . .”

“The Lyon Award is named for a former Vermont congressman who was jailed in 1798 under the Alien and Sedition Act for sending a letter to the editor, criticizing President John Adams. While Lyon was serving his federal sentence in a Vergennes jail, Vermonters re-elected him to the U.S. House of Representatives. Lyon is credited with ousting Adams when he cast the deciding vote in favor of Thomas Jefferson when the 1800 presidential race went to Congress for a final determination.”

Forthcoming Books 

  1. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Critical University Studies, Jan. 2016)
  2.  Edoardo Tortarolo, The Invention of Free Press: Writers and Censorship in Eighteenth Century Europe (Springer, November 2, 2015)
  3.  Bernard Williams, editor, Obscenity and Film Censorship: An Abridgement of the Williams Report Cambridge Philosophy Classics, Oct. 31, 2015)
  4. Mickey Huff & Andy Lee Roth, editors, Censored 2016: The Top Censored Stories and Media Analysis of 2014-15 (Seven Stories Press, Oct. 6, 2015)

New & Forthcoming Scholarly Articles 

  1. Michal Buchhandler-Raphael, “Overcriminalizing Speech,” Cardozo Law Review (June 2015)
  2. Erika Manderscheid, “We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment,” Boston College Law Review (forthcoming 2015)
  3. Bruce M. Owen, “Umping the Political Game” (The Problem of Systemic Political Corruption), SSRN (June 30, 2015)

New & Notable Blog Posts

  1. Ruthann Robson, “Anti-Masking Laws, the Ku Klux Klan, and the First Amendment,Constitutional Law Prof Blog, July 1, 2015
  2. Eugene Volokh, “No speech that ‘degrade[s] or call[s] into question the integrity’ of judges on courthouse sidewalks,” Volokh Conspiracy, July 3, 2015

News, Op-eds, & Commentaries 

  1. A.J. Higgins, “Lawyers question LePage’s First Amendment defense,” BDN Politics, July 8, 2015
  2. Gene Lyons, “Why the GOP has the First Amendment upside-down,” NorthWest Herald, July 6, 2015
  3. Donald Trump and the First Amendment in his $500 million lawsuit,The National Constitution Center, July 1, 2015

The 2014 Term: The Roberts Court & the First Amendment 

The 2014 Term is now over and with it comes our respective takes on it. Here are a few of my observations as I first set them out in a post on SCOTUSblog:

Voting record

UnknownWilliams-Yulee was the Chief Justice’s thirteenth First Amendment free-expression opinion (majority or plurality) for the Court. He leads in the tallies for the Roberts Court, with Justices Kennedy and Scalia trailing with five opinions apiece followed by Justices Alito and Breyer. (Alito’s last was in 2014 in Harris v. Quinn and Breyer’s last in 2009 in Locke v. Karass.)

The unanimous vote in Reed was the thirteenth such vote rendered by the Roberts Court in a First Amendment free-expression case. This was only the third time that the Court vindicated a rights claim by way of a unanimous vote. The last one was in McCullen v. Coakley (2014).

Unusual twists: Cases decided 

There were some unusual twists this Term. For example, Justice Clarence Thomas broke ranks and voted with the Court’s liberal bloc in the Walker case. It was also noteworthy that Justices Thomas and Scalia were on different sides. One of the last times that occurred in a First Amendment free-expression case was in Virginia v. Black (2003), in which Justice Thomas dissented while Justice Antonin Scalia joined the majority.

While it is rare, this Term the Chief Justice was on the losing side in a First Amendment free-expression case (Walker). This is the second such case in which this has occurred, the only other being Christian Legal Society v. Martinez (2010).

Equally unusual, in denying the First Amendment claim in Williams-Yulee, Chief Justice Roberts revealed, yet again, that strict scrutiny is not always fatal in fact. The last time that occurred was in Holder v. Humanitarian Law Project (2010), another case in which Roberts wrote for the Court. It is ironic that the Chief Justice, who is one of the Court’s strongest First Amendment stalwarts, was the one who authored the two opinions in which a law survived strict scrutiny analysis. Moreover, in light of the Williams-Yulee ruling and the debate over strict scrutiny review between Justices Thomas and Kagan in Reed, this Term’s cases may signal the beginning of some rethinking concerning standards of review in First Amendment cases.

In another unusual twist, the Williams-Yulee majority denied a First Amendment claim in a campaign-finance case. It is the first case out of the seven in which opinions were handed down during the Roberts Court era. It was also the first time that the Chief Justice denied a First Amendment claim in a campaign-finance case.

→ There is more and you can read it at the SCOTUSblog  post.

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-30-15 — what remains on the docket will be resolved in late September when the Court has a “long conference.”]

Cases Decided 

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Vacated and Remanded

  1. Berger v. American Civil Liberties Union of North Carolina 
  2. Thayer v. City of Worcester 
  3. Central Radio Co., Inc. v. City of Norfolk

Review Granted for Next Term

  1. Friedrichs v. California Teachers Association, et al. 

Pending Petitions*

  1. Center for Competitive Politics v. Harris

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it. 

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