At D.C. Circuit, Contractor Case Merits Take Backseat

Lawyers for the Federal Election Commission and government contractors on Thursday argued in the U.S. Court of Appeals for the D.C. Circuit over a law that forbids the contract holders from making federal campaign donations. The merits of the case, however, took a backseat.

The panel—Senior Judge Douglas Ginsburg and judges Thomas Griffith and Karen Henderson—focused most of their time on the court's jurisdiction to even hear the dispute.

The judges questioned, for example, whether the full appeals court has exclusive original jurisdiction to hear a constitutional challenge to the Federal Election Campaign Act. The government contractors brought their case against the donations prohibition to the U.S. District Court for the District Columbia, where a trial judge upheld the ban in November. The contract holders appealed.

FEC Assistant General Counsel Harry Summers and George Wshington University Law School professor Alan Morrison, who is representing the contractors, argued that the contract holders could bring their challenge to the Federal Election Campaign Act in district court, despite a provision of the law that allows an en banc appellate court to have original jurisdiction.

"The exclusivity runs through multiple courts," Morrison told the D.C. Circuit judges.

The challengers in the case are Wendy Wagner of the University of Texas School of Law, who has a research contract with the Administrative Conference of the United States, and Lawrence Brown and Jan Miller, both of whom have long-term contracts with the U.S. Agency for International Development.

Morrison and co-counsel Arthur Spitzer of the American Civil Liberties Union contend the donations ban implicates First Amendment issues and the equal protection clause of the Fifth Amendment.

The plaintiffs, their lawyers have argued, work with federal employees who are not subject to the ban or any similar prohibition. The statute also treats corporations with government contracts more favorably than it does individual contractors, the lawyers said in court papers. Corporations can set up political action committees to make contributions, but individuals cannot.

U.S. District Judge James Boasberg wrote in his opinion affirming the ban that individual contractors aren't treated worse than either federal employees or corporate contractors.

But Morrison today likened the 73-year-old prohibition to an "ill-fitting suit," saying the ban inappropriately covers contractors, especially with today's PACs and government contracting.

"It's surely not fitting today," he said.