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Contractors Barred From Giving to Campaigns

Q: I am a college professor, and I have a question about restrictions on campaign contributions. A federal agency recently offered me a contract to perform some fairly minor advisory services for the agency. I’d like to accept the contract, but a conversation with another faculty member has given me second thoughts. She says that accepting the contract means I will be prohibited from making any federal campaign contributions of any kind. This could be a deal breaker for me, as I consider myself politically active and I generally like to contribute to candidates I support. Would I really be banned from making contributions if I accepted the agency contract?

A: Believe it or not, the answer is yes — at least for the time being. A court is currently hearing a constitutional challenge that could change this.

The Federal Election Campaign Act restricts the extent to which individuals and organizations may contribute money to federal election campaigns. It sets limits on the amounts of contributions by individuals and prohibits altogether direct contributions by corporations.

One of the act’s restrictions is an outright ban on contributions by any person who is negotiating or performing a contract with a federal agency. In general, it covers all contracts with federal agencies where payment is to come from funds appropriated by Congress. It applies from the time that contract negotiations begin through the contract’s completion. During that period, the contractor may not “make any contribution of money or other things of value, or to promise expressly or impliedly to make any such contribution to any political party, committee, or candidate for public office.”

Many states have similar restrictions on contributions by government contractors to candidates for certain elected offices, which are loosely called “pay to play” laws.

Earlier this year, three individuals with government contracts filed a lawsuit claiming that the ban on contributions is unconstitutional, at least as applied to them. One of the plaintiffs challenging the ban is a law professor who has a $12,000 contract to prepare a report and recommendations for a federal agency. The other two plaintiffs are retired government employees who continue to do work for their former agency, but now as contractors instead of as employees.

The plaintiffs make two arguments. First, they say, the ban violates the Equal Protection clause because it treats plaintiffs differently from other similarly situated parties who are permitted to make campaign contributions. One group of similarly situated parties, the plaintiffs contend, are federal agency employees, including the employees of the very agencies for which two of the plaintiffs do their work. Plaintiffs say that they work side by side with these agency employees, performing many of the same duties. Yet, the employees are permitted to make campaign contributions while plaintiffs are not.

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