Stat. § 31-51q); Illinois (820 ILCS 40/9) (only prohibits employers from keeping a record of an employee’s political associations, activities, publications, or communications); Louisiana (La. Rev. Stat. §§ 23:961, 23:962); Michigan (Mich. Comp. Laws § 423.508); Nevada (Nev. Rev. Stat. § 613.040); New York (N.Y. Lab. Law § 201-d); North Dakota (N.D. Cent. Code §§ 14-02.4-01, 14-02.4-03); South Carolina (S.C. Code § 16-17-560); and Utah (Utah Code § 34A-5-112).2Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), superseded by statute (a statute which was subsequently held unconstitutional); Ross v. Indep. Living Res. of Contra Costa Cnty., No. C08-00854 TEH, 2010 WL 1266497 (N.D. Cal. Apr. 1, 2010) (holding plaintiff’s participation in advocacy for the disabled was political as it was “espousing the cause of equal access for individuals with disabilities”).3 Conn. Gen. Stat. § 31-51q.4 18 U.S.C. § 594.5 18 U.S.C. § 597.6See, e.g., Mich. Comp. Laws 423.501.7See 52 U.S.C. § 30119; 11 C.F.R. § 115.2 (noting that “[t]his prohibition does not apply to contributions or expenditures in connection with State or local elections.”).8Eastex, Inc. v. NLRB, 437 U.S. 556, 564-65 (1978).9American Federation for Children, Inc., 372 NLRB No. 137 (2023).10 NLRB Acting GC Memorandum 21-03, Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines (Mar. 31, 2021).11 29 U.S.C. §158(c); Babcock v. Wilcox Co., 77 NLRB 577 (1948).12 NLRB GC Memorandum 22-04, The Right to Refrain from Captive Audiences and other Mandatory Meetings (Apr. 7, 2022).13 Maine: 26 M.R.S. § 600-B.14Id.15See, e.g., Colorado (Colo. Rev. Stat. § 8-2-108); Louisiana (La. Rev. Stat. §§ 23:961, 23:962).16See Stericycle, Inc., 372 NLRB No. 113 (2023).

years, the Federal Election Commission (FEC or Commission) has significantly stepped up enforcement of one provision of federal campaign finance laws, commonly referred to as the "Federal Contractor Ban." To understand the reasons behind this trend, as well as the factors that influence the outcome of particular enforcement matters, the Holland & Knight political law team undertook a comprehensive review of recent FEC decisions involving the Ban.All told, we reviewed a total of 17 enforcement matters resolved over the past five years involving credible allegations that respondents violated the Federal Contractor Ban. Of these, 12 of the matters were resolved in 2022 alone, underscoring the recent surge in Federal Contractor Ban matters.Background: A Longstanding Prohibition Comes into New FocusThe Federal Contractor Ban dates back to 1940, when Congress passed a series of reforms intended to address the exploitation of government contractors by political party bosses. Now codified at 52 U.S.C. Section 30119, the Federal Contractor Ban broadly prohibits federal government contractors from making contributions or expenditures in connection with federal elections. Specifically, the Ban applies to contributions made by a corporation or partnership with a government contract, an individual under contract with the federal government and sole proprietors with government contracts.During most of the modern era of campaign finance regulation, the Federal Contractor Ban was primarily relevant to individuals or sole proprietors who contracted with the federal government. This is due to the fact that the Ban applies only to the specific person or entity that enters into a covered contract. Corporations were already prohibited by other provisions of the Federal Election Campaign Act (FECA) from making contributions or expenditures in connection with federal elections. Because the general corporate ban was broader and applied to a much larger set of corporate political activities, the Federal Contract

Although the statutory language suggests the prohibition applies only after the company has “entered into” a contract, the statute goes on to apply the prohibition upon “commencement of negotiations” for a federal contract continuing until either negotiations terminate or contract performance is completed. 52 U.S.C. § 30119(a)(1). Commission regulations expand the time period further than the statutory period to cover even the time after “requests for proposals are sent out” by the government, if that occurs before negotiations.

The Federal Election Campaign Act prohibits federal government contractors from making contributions to influence federal elections. 52 U.S.C. § 30119(a). The prohibition applies to contributions to federal candidates, political parties, political action committees (PACs), Super PACs and other political committees.

The unanimous en banc decision was joined by the entire 11-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The campaign contribution ban, codified at 52 U.S.C. § 30119, prohibits any “person” who enters into a federal contract from making any political contributions from the beginning of negotiations of a federal contract to the completion of the contract (or to termination of negotiations). A group of individual contractors challenged the ban as a violation of their First Amendment and equal protection rights.

The case, Wagner et al. v. Federal Election Commission, was brought by three individuals who, at the time, held personal services or consulting contracts with federal agencies. Under 52 U.S.C. §30119(a)(1), none of the three were permitted to contribute to candidates for federal office, and all three sought to make contributions in connection with the 2012 elections. The plaintiffs challenged the statute, which was first enacted in 1940, on both First Amendment and equal protection grounds.

However, since 1940, any individual or company performing a contract with the United States has been precluded from making campaign contributions “directly or indirectly…to any political party, committee, or candidate for public office or to any person for any political purpose.” See 52 U.S.C. § 30119(a)(1). The court’s decision in Wagner maintains this prohibition and clearly limits direct contractor contributions to political candidates.

The court did not address the ban on federal contributions by corporate federal contractors or whether federal government contractors may make independent expenditures or contributions to Super PACs.Brief Overview The Federal Election Campaign Act of 1971, as amended, prohibits federal government contractors from making contributions or expenditures, either directly or indirectly, to any federal political party, committee or candidate for federal office. 52 U.S.C. § 30119(a)(1). In Wagner v. FEC, three federal contractors, all individuals, challenged § 30119(a)(1) as violating the First Amendment and the Equal Protection guarantee of the Fifth Amendment.The D.C. Circuit’s Decision The U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld the ban on individual federal contractor contributions to federal candidates and political parties.