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FEC Record: Litigation

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Wagner v. FEC

Wendy Wagner, Lawrence Brown and Jan Miller (together, plaintiffs) filed suit against the Commission in the U.S. District Court for the District of Columbia challenging the section of the Federal Election Campaign Act (the Act) that prohibits federal government contractors from making contributions to candidates, party committees or political action committees in connection with federal elections. The plaintiffs’ action challenges 2 U.S.C. §441c as violating the First Amendment and the Equal Protection guarantee of the Fifth Amendment.

Background

The Act’s ban on contributions by federal government contractors is codified at 2 U.S.C. §441c, which states that any person who has a contract with the United States or any agency or department thereof, including contracts for personal services, is prohibited from making any contribution “to any political party, committee, or candidate for public office or to any person for any political purpose or use.” The Commission has previously construed this prohibition to apply only to federal elections.

The plaintiffs are individuals who state that they are eligible to vote in the 2012 elections. Each plaintiff alleges that he or she is currently under contract with the United States and would like to be able to make contributions in connection with federal elections. However, because of the federal contractor prohibition, the plaintiffs assert an unwillingness to make any such contributions absent a court order authorizing them to do so.

Constitutional Challenge

Plaintiffs allege that 2 U.S.C. §441c violates the Equal Protection guarantee of the Fifth Amendment because the plaintiffs purportedly 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. The Commission’s regulations state that contributions by officers, employees and/or stockholders of corporations with federal contracts may be made using personal funds. 11 CFR 115.6.

The plaintiffs also claim that Section 441c violates the First Amendment because it prohibits individuals with government contracts from making contributions to federal candidates and committees. Since the plaintiffs are prohibited from contributing to candidates who have no connection with the contracts that the plaintiffs have with federal agencies, the plaintiffs allege that the ban on federal government contractor contributions is not sufficiently narrowly tailored.

The plaintiffs ask the court to declare that 2 U.S.C. §441c as applied to the plaintiffs violates the First and Fifth Amendments to the Constitution, enjoin the Commission from enforcing Section 441c against the plaintiffs and award plaintiffs costs and attorneys fees for their action, together with any other relief to which they may be entitled.

(Posted 1/27/12; By: Myles Martin)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Amy Kort, Asst. Director; Myles Martin, Editor