Tue | Nov 30, 2021

Court upholds ban on contractor political contributions

Published:Tuesday | July 7, 2015 | 12:00 AM

A federal appeals court on Tuesday upheld a ban on government contractors donating money to federal candidates or political parties, a prohibition that has been on the books for 70 years.

The US Court of Appeals for the District of Columbia Circuit ruled that the ban is justified because it addresses the government's

interest in preventing corruption.

Congress outlawed political contributions by federal contractors largely in response to a New Deal-era scandal involving Democratic Party operatives and contractors.

The ban applies only to individual contractors and not to the political action committees of corporate contractors, or to a corporation's officers and shareholders.

The appeals court ruled against a university law professor who holds a $12,000 federal contract and two retirees working for the US Agency for International Development as contractors. They argued the ban is unconstitutional because it interferes with their free-speech rights and treats them differently from similarly situated groups.

Writing for the full court, Judge Merrick Garland said recent corruption scandals involving members of Congress point to the continuing danger of "quid pro quo" corruption - a direct exchange of money for political favours. He said it also protects the integrity of merit-based government contracting.

Garland cited the scandal involving former California Congressman Randy 'Duke' Cunningham, who plead guilty in 2005 to fraud and other charges for taking bribes from defence contractors in return for funnelling contracts to certain companies.

"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," Garland said.

The court also rejected the challengers' argument that elected officials don't decide who gets government contracts and that those decisions are made by career government bureaucrats.

Garland said the complete ban was reasonable because it not only reduces the possibility of corruption, it eliminates its appearance.

"A contribution made while negotiating or performing a contract looks like a quid pro quo, whether or not it truly is," the court said.

'underinclusive' ban

The challengers also complained that the law allows the president of a corporation with a multibillion-dollar defence contract to make contributions, directly or through his company's PAC, but bans someone with a $12,000 federal contract from doing the same. They say the different treatment violates the equal protection clause of the Constitution because similarly situated groups of people are not subject to the ban.

But Garland said the ban is not invalid simply because it is "underinclusive".

"Congress could reasonably have concluded that banning contributions by all those associated with corporate contractors would go too far at too great a First Amendment cost," Garland said.

Federal contractors include people such as translators or interpreters, those hired by executive branch agencies to give advice, retired FBI agents who do background investigations and people who are hired as expert witnesses for the government in court cases.

The ban carries a five-year prison term.