Feb. 7, 2016 SIGN IN | REGISTER

Courts Settle Bribery, Contribution Questions

The contractors’ other argument was that the ban violates the First Amendment because it is not narrowly tailored to serve any legitimate public purpose. The problem with the ban, the contractors argued, is that it prohibits them from making contributions to candidates for president and Congress, even though the president and Members of Congress usually have no role in the awarding of federal contracts.

The government responded that the ban is a legitimate act of Congress that serves important government interests. Specifically, it minimizes the appearance of corruption and ensures that government contracts are awarded on merit, not political participation. Even though the president and Members may not directly award government contracts, they can still influence the contracting process.

As to the contractors’ claim that the ban violates the Equal Protection Clause, the government responded that federal laws treat groups differently all the time. That differing treatment does not violate the Constitution unless it improperly discriminates on the basis of some specially protected criterion, such as race or gender.

In a decision earlier this month, a U.S. District Court judge sided with the government. The judge said the ban does not violate the First Amendment because it is “closely drawn” to protect the integrity of the electoral system by ensuring that federal contracts are awarded on merit. “[T]here is a connection between federal elected officeholders and the awarding of contracts, albeit indirect,” the judge wrote, “that supports a finding that the ban is closely drawn.”

The judge rejected the Equal Protection Clause challenge as well, concluding that there is nothing unconstitutional about permitting contributions by federal agency employees but forbidding contributions by contracting employees. This distinction, the judge said, reflects a reasonable legislative judgment that contracting is particularly susceptible to quid pro quo arrangements, or at least the appearance of such arrangements.

In both cases, then, the biggest thing that the government may have had on its side was time. Jefferson, the Fourth Circuit noted, was challenging Supreme Court case law that had been on the books, unscathed, for decades. Meanwhile, the ban on contributions by government contractors, the District Court judge found, had been good law for 70 years. These obstacles proved too difficult to overcome.

C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.

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