Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
United. The majority in Citizens United found such interests were insufficient to justify a ban on campaign expenditures and electioneering by all corporations,134 a conclusion which it reached after considering the various “types” of corporations affected by such prohibitions. Commentators have alleged other interests that the government could potentially assert in targeting government contracts, such as safeguarding the integrity of the procurement process136 and protecting contractors from being required to “pay for play.”137 However, no court appears to have recognized these interests as compelling governmental interests justifying restrictions on First Amendment rights, and courts may find that such interests are insufficient to justify across- the-board restrictions given the wide variety of “types” of government contractors and means by which they into enter contracts with the government. 135 138
Such alleged interests might more plausibly be asserted with narrower restrictions targeting specific types of contractors. For example, the appearance of quid pro quo corruption of the sort that the majority in Citizens United recognized as sufficient to uphold limitations on campaign contributions is arguably stronger with contracts that are “earmarked” for certain entities as part of the congressional appropriations process than with other contracts.139 Contractors performing “functions approaching inherently governmental,” “critical functions,” or “mission essential functions,” could perhaps be similarly targeted on an analogy to the Hatch Act, which bars federal employees from express endorsements,140 although any such legislation could raise constitutional concerns about vagueness141 given recent disputes over whether particular functions qualify as such.142 “Personal service contracts,” or contracts that, by their express terms or as administered, make contractor personnel appear to be government employees, could perhaps also be targeted based on this analogy. 143
Citizens United, slip op., at 32-45.
Id. at 38.
136 Testimony of Donald J. Simon, Partner, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Before the House Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Feb. 3, 2010, available at http://judiciary.house.gov/hearings/pdf/Simon100203.pdf.
137 Testimony of Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard University Law School, Before the House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Civil Liberties, Feb. 3, 2010, available at http://judiciary.house.gov/hearings/pdf/Tribe100203.pdf.
138 While Ackerman and Ayres, supra note 145, point out that “almost three-quarters of the largest 100 publicly traded firms are federal contractors,” such companies are arguably not representative of all government contractors. See, e.g., U.S. Small Bus. Admin., FY2008 Government-wide Scorecard, available at http://www.sba.gov/idc/groups/public/ documents/sba_homepage/goals_08_gov_wide.pdf (noting that small businesses receive over 20% of federal contract and subcontract dollars); Grant Thornton, 15th Annual Government Contractor Industry Highlights Book 4, 6 (2010) (reporting that 81% of responding contractors were privately held and that 71% had profit rates below 10%). Moreover, their contracts result from the government’s exercise of various source selection methods, ranging from the Federal Supply Schedules, which are catalog-like listings of goods and services whose prices are set based upon the price that the contractor gives its best private-sector customer, to negotiated procurements, which can involve protracted discussions between the government and contractor. See 48 C.F.R. Parts 13-18.
This presumes that earmarked contracts are not competitively awarded. The 111th Congress has, however, subjected earmarks for for-profit entities to competition requirements. See, e.g., Department of Defense Appropriations Act, 2010, P.L. 111-118, § 8211,—Stat.—(Dec. 19, 2009). 139
Cf. Ackerman & Ayres, supra note 145.
141 See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (noting that when laws are vague people “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”).
142 See generally CRS Report R40641, Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress, by John R. Luckey, Valerie Bailey Grasso, and Kate M. Manuel.
143 48 C.F.R. § 2.101. Government agencies may not award personal services contracts unless specifically authorized (continued...)
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