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D.C. Circuit Upholds Ban on Contractor Contributions; SCOTUS Approves Independent Redistricting Commissions

July 9, 2015

In a unanimous opinion released on July 7th, the U.S. Court of Appeals for the D.C. Circuit upheld a long-standing ban on political campaign contributions from federal government contractors, reasoning that the corruption concerns that originally spurred the ban remain as important now as when it was initially enacted. The law at issue prevents all contractor contributions to candidates, certain types of political committees, and parties between the beginning of negotiations for a contract and the completion of performance on that contract. In the instant case, the law was initially challenged by two personal services contractors and a part-time government consultant who were prevented from making contributions during the 2012 federal election cycle.

Although the opinion noted that the plaintiffs limited their claim to individual contractors rather than corporations at large, the D.C. Circuit ultimately held that the government's interest in preventing the appearance of impropriety is based upon the same rationale as the 1939 Hatch Act, which prevents certain government employees from engaging in political campaign activity. In coming to this conclusion, the court also held that total bans on political contributions should be held to the same level of scrutiny as mere limits on such contributions. Such a contention raises a potential issue for future litigation, should the plaintiffs choose to petition the U.S. Supreme Court. Furthermore, the D.C. Circuit did not choose to address government contractor contributions to independent expenditure committees (otherwise known as super PACs).

Although the D.C. Circuit ruling affirms the prohibition on direct campaign contributions from federal contractors, contractors are still able to contribute to candidates and committees via separate segregated funds, or corporate PACs. Clark Hill's political law team is highly experienced in PAC organization, strategy, and compliance. For additional information regarding our services, please contact your Clark Hill political law attorney.




On June 29th, the U.S. Supreme Court upheld Arizona's exclusive use of an independent redistricting commission to redraw its federal congressional maps, leaving the state's current districts intact for the 2016 election cycle. The case was initially brought against the state's independent redistricting commission by the Arizona legislature, which argued that congressional redistricting should be the sole responsibility of legislators.

In a 5-4 decision, the opinion (penned by Justice Ruth Bader Ginsburg) held that the redistricting commission falls under the definition of "legislature" in the federal Constitution's Elections Clause – in other words, if a state permits voter referendums to play a role in the lawmaking process, then these referendums are considered part of the lawmaking process as it relates to redistricting. Thus, the Constitution allows Arizona to use its referendum-created redistricting commission to redraw congressional district boundaries. In contrast, the Arizona state legislators had claimed that preventing the state legislature from participating in the redistricting process violates the Elections Clause. Dissenters to the Court's holding argued that the independent commission usurps clearly-stated legislative powers.

Arizona's independent redistricting commission was created in 2000 after voters passed Proposition 106, an amendment to the state constitution that granted congressional line-drawing responsibilities to an independent, five-member commission. The map that the commission drew in 2011 led to Democrats winning five of the state's nine House seats in the 2012 election. Republicans were able to recover one seat in the 2014 election.

The Court's decision on Monday is bound to have a ripple effect beyond Arizona, and will likely reaffirm congressional maps drawn in other states through similar methods. Like Arizona, California also has an independent redistricting commission that was created via a voter-passed ballot initiative. Five other states – Hawaii, Idaho, Montana, New Jersey and Washington – use independent commissions to draw their lines, with some involvement from state legislatures (Montana has only one congressional district, given its current population). Looking forward, in Illinois, an initiative to create an independent commission may appear on the 2016 ballot. Additionally, in Maryland, Republican Governor Larry Hogan has expressed interest in creating an independent redistricting commission. Several Midwestern states, such as Ohio and Wisconsin, are in the early stages of efforts to create independent redistricting commissions, and still more states employ advisory commissions that play some role in the redistricting process.

This decision is sure to have an impact on candidates and parties in states that use independent redistricting commissions, as well as in states where these commissions are in the nascent stages of development. Ultimately, independent commissions may have a wide-ranging effect on the political composition of state congressional delegations, as well as the laws and regulations that Congress at large may pass.

Clark Hill's Political Law team has a wealth of experience working with candidates for state and federal office. We encourage you to contact us for further information regarding the topics discussed in this political law alert.

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