ACLU Challenge To Small Piece Of Campaign Finance Law May Lead To A Slippery Slope

A Slippery Slope To Direct Corporate Contributions?

WASHINGTON -- The American Civil Liberties Union on Wednesday filed a court challenge to a campaign finance law banning individual government contractors from contributing to federal political campaigns.

The ACLU case, brought on behalf of three individuals holding contracts with the government, targets a provision of the Federal Election Campaign Act of 1972 (FECA) that banned individuals who have direct contracts with the federal government from contributing to candidates running for federal office. This ban excludes employees of corporations that hold contracts with the government as well as political action committees created by corporations with government contracts. The case has been fast-tracked under a special statute in the FECA that requires an expedited hearing for campaign finance challenges.

"Not only does this law discriminate against contractors as compared to federal employees who are doing identical work," Arthur Spitzer, ACLU legal director of the National Capital Area, said in a statement in the group's press release, "but it is the only campaign finance law that actually favors corporations, which cannot vote, over citizens, who can."

By challenging the law as "not narrowly enough tailored to achieve" a governmental interest in combating corruption or pay-to-play politics, the ACLU is asking the courts to review the law under strict scrutiny -- the toughest level of review that the Supreme Court can apply to a law. It would require the law to be narrowly tailored to achieve a compelling government interest in the least restrictive way possible.

The challenge appears straightforward enough, but as Rick Hasen, an election law professor at University of California-Irvine, told The Huffington Post, the case could create a slippery slope for how the courts approach issues related to campaign contribution bans.

"If you got the Supreme Court to strike down this contractor ban under strict scrutiny, it would open up a lot of breathing room for the Court to strike down the corporate contribution ban," Hasen said.

Corporations are currently banned from making direct contributions to candidates running for federal office. There are a number of challenges to this ban winding their way through the courts. The U.S. Court of Appeals for the 9th Circuit upheld a ban on corporate contributions by the City of San Diego in June, joining the 2nd and 8th Circuits. A federal district judge in Virginia, however, found that the ban on corporate contributions to candidates was unconstitutional.

The current justification from the Supreme Court for the direct corporate contribution ban came in the FEC v. Beaumont case, which upheld the ban on direct corporate contributions by nonprofit corporations. The Beaumont case was cited by all of the circuit courts that upheld the direct corporate contribution bans, but neglected by the district court in Virginia that deemed the ban unconstitutional.

"The Court could use this sort of a case to establish precedent that strict scrutiny should apply to contribution bans," said Adam Skaggs, senior counsel at the Brennan Center for Justice. "Thereby the next case could be a direct challenge to Beaumont."

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