Emily's List v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2009 Decided September 18, 2009

No. 08-5422

EMILY’S LIST,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00049-CKK)

Robert F. Bauer argued the cause for appellant. With

him on the briefs were Ezra W. Reese and Brian G. Svoboda.

David Kolker, Associate General Counsel, Federal

Election Commission, argued the cause for appellee. With

him on the brief were Thomasenia P. Duncan, General

Counsel, Harry J. Summers, Assistant General Counsel, and

Vivien Clair, Attorney. Gregory J. Mueller, Attorney, entered

an appearance.

Donald J. Simon, Fred Wertheimer, J. Gerald Hebert,

Trevor Potter, and Paul S. Ryan were on the brief for amici

2

curiae Campaign Legal Center and Democracy 21 in support

of appellee.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge

KAVANAUGH, with whom Circuit Judge HENDERSON joins,

and with whom Circuit Judge BROWN joins as to Part IV

except footnotes 17, 18, and 20.

Opinion concurring in part filed by Circuit Judge

BROWN.

KAVANAUGH, Circuit Judge: A non-profit group known

as EMILY’s List promotes abortion rights and supports pro-

choice Democratic women candidates. It challenges several

new Federal Election Commission regulations that restrict

how non-profits may spend and raise money to advance their

preferred policy positions and candidates. EMILY’s List

argues that the regulations violate the First Amendment.

The First Amendment, as interpreted by the Supreme

Court, protects the right of individual citizens to spend

unlimited amounts to express their views about policy issues

and candidates for public office. Similarly, the First

Amendment, as the Court has construed it, safeguards the

right of citizens to band together and pool their resources as

an unincorporated group or non-profit organization in order to

express their views about policy issues and candidates for

public office. We agree with EMILY’s List that the new FEC

regulations contravene those principles and violate the First

Amendment. We reverse the judgment of the District Court

and direct it to enter judgment for EMILY’s List and to vacate

the challenged regulations.

3

I

In the wake of the 2002 Bipartisan Campaign Reform Act

and the Supreme Court’s 2003 decision in McConnell v. FEC,

the election season of 2004 erupted with bitter accusations

about the activities of certain non-profit entities. The

controversy was popularly known by a single term – “527s” –

that refers to the section of the tax code applicable to non-

profits engaged in political activities. The debate arose after

wealthy individuals contributed huge sums of money to non-

profits ranging from America Coming Together to

MoveOn.org to Swift Boat Veterans for Truth in order to

support advertisements, get-out-the-vote efforts, and voter

registration drives. In total during the 2004 campaign, these

groups reportedly spent several hundred million dollars.

As the campaign unfolded, many in both major parties –

including President Bush and Senator Kerry – questioned the

activities of certain non-profits. Some encouraged the FEC to

ban large donations to non-profit entities in the same way that

Congress in BCRA had banned large contributions to political

parties. Proponents of additional regulation reasoned that

non-profits had replaced political parties as the soft-money

“loophole” in the campaign finance system. See Edward B.

Foley & Donald Tobin, The New Loophole?: 527s, Political

Committees, and McCain-Feingold, BNA MONEY & POL.

REP., Jan. 7, 2004.

In response, the FEC did not ban non-profits from

receiving and spending large donations, as some had urged.

But the FEC did limit how much non-profits such as

EMILY’s List could raise and spend. The FEC achieved this

objective by dictating that covered non-profits pay for a large

percentage of election-related activities out of their hard-

4

money accounts. See 11 C.F.R. §§ 106.6(c), (f).1 Because

donations to those hard-money accounts are capped at $5000

annually for individual contributors, the FEC’s allocation

regulations substantially restrict the ability of non-profits to

spend money for election-related activities such as

advertisements, get-out-the-vote efforts, and voter registration

drives. The regulations separately require that donations to

non-profits be considered hard money subject to the $5000

cap if the corresponding solicitation indicated that donations

would be used to support the election or defeat of a federal

candidate. See id. § 100.57.

In early 2005, EMILY’s List filed suit, arguing that the

new regulations violated the First Amendment and the Federal

Election Campaign Act. In 2008, the District Court upheld

the regulations in their entirety.

II

To assess the constitutionality of the new FEC

regulations, we initially must address at some length the

relevant First Amendment principles set forth by the Supreme

Court.

A

Ratified in 1791, the First Amendment provides that

“Congress shall make no law . . . abridging the freedom of

speech.” U.S. CONST. amend. I. This guarantee “has its

fullest and most urgent application precisely to the conduct of

1

A hard-money account is subject to source and amount

limitations. For example, under the statute, EMILY’s List cannot

accept donations of more than $5000 annually into its hard-money

account from any single contributor. 2 U.S.C. § 441a(a)(1)(C). A

soft-money account may receive unlimited donations.

5

campaigns for political office.” Buckley v. Valeo, 424 U.S. 1,

15 (1976) (internal quotation marks omitted). The

Amendment “protects political association as well as political

expression.” Id.; see also NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958).

In analyzing the interaction of the First Amendment and

campaign finance laws, the Court has articulated several

overarching principles of relevance here.

First, the Court has held that campaign contributions and

expenditures constitute “speech” within the protection of the

First Amendment. In Buckley, the foundational case, the

Court definitively ruled that “contribution and expenditure

limitations operate in an area of the most fundamental First

Amendment activities.” 424 U.S. at 14. The Court has never

strayed from that cardinal tenet, notwithstanding some

passionate objections. See, e.g., Nixon v. Shrink Mo. Gov’t

PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring)

(“Money is property; it is not speech.”); J. Skelly Wright,

Politics and the Constitution: Is Money Speech?, 85 YALE

L.J. 1001 (1976).

Second, the Court has ruled that the Government cannot

limit campaign contributions and expenditures to achieve

“equalization” – that is, it cannot restrict the speech of some

so that others might have equal voice or influence in the

electoral process. In perhaps the most important sentence in

the Court’s entire campaign finance jurisprudence, Buckley

stated: “[T]he concept that government may restrict the

speech of some elements of our society in order to enhance

the relative voice of others is wholly foreign to the First

Amendment.” 424 U.S. at 48-49. The Court added that the

Government’s interest in “equalizing the relative ability of

6

individuals and groups to influence the outcome of elections”

does not justify regulation. Id. at 48.

In Davis v. FEC, the Court strongly reiterated that

“equalization” is not a “legitimate government objective.”

128 S. Ct. 2759, 2773 (2008). The Davis Court approvingly

quoted Justice Kennedy’s observation in Austin v. Michigan

State Chamber of Commerce that “the notion that the

government has a legitimate interest in restricting the quantity

of speech to equalize the relative influence of speakers on

elections” is “antithetical to the First Amendment.” Id.

(citation and internal quotation marks omitted); see also

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652,

684 (1990) (Scalia, J., dissenting) (“This illiberal free-speech

principle of ‘one man, one minute’ was proposed and soundly

rejected in Buckley”).2

Third, the Court has recognized a strong governmental

interest in combating corruption and the appearance thereof.

See Buckley, 424 U.S. at 26-27, 45-48; see also McConnell v.

FEC, 540 U.S. 93, 154 (2003). This, indeed, is the only

interest the Court thus far has recognized as justifying

campaign finance regulation. Davis, 128 S. Ct. at 2773

(“Preventing corruption or the appearance of corruption are

2

The Court’s rejection of the equalization argument is

consistent with its broader First Amendment jurisprudence: “As a

general matter, the American First Amendment tradition requires

that the financial, political, or rhetorical imbalance between the

proponents of competing arguments is insufficient to justify

government intervention to correct that imbalance.” Frederick

Schauer & Richard H. Pildes, Electoral Exceptionalism and the

First Amendment, 77 TEX. L. REV. 1803, 1825 (1999); see

generally Lillian R. BeVier, Money and Politics: A Perspective on

the First Amendment and Campaign Finance Reform, 73 CAL. L.

REV. 1045 (1985).

7

the only legitimate and compelling government interests thus

far identified for restricting campaign finances.”) (citation and

internal quotation marks omitted). Importantly, the Court has

emphasized that the anti-corruption rationale is not boundless.

The core corruption that Government may permissibly target

with campaign finance regulation “is the financial quid pro

quo: dollars for political favors.” FEC v. Nat’l Conservative

PAC (NCPAC), 470 U.S. 480, 497 (1985). This anti-

corruption interest is implicated by contributions to

candidates: “To the extent that large contributions are given

to secure a political quid pro quo from current and potential

office holders, the integrity of our system of representative

democracy is undermined.” Buckley, 424 U.S. at 26-27; see

also Citizens Against Rent Control v. City of Berkeley, 454

U.S. 290, 296-97 (1981) (“Buckley identified a single narrow

exception to the rule that limits on political activity were

contrary to the First Amendment”; the exception relates “to

the perception of undue influence of large contributors to a

candidate”). Based on the close relationship between

candidates and parties and record evidence demonstrating that

political parties sold access to candidates in exchange for

contributions, the Court has held that the anti-corruption

interest also justifies limits on contributions to parties. See

McConnell, 540 U.S. at 154; see also Buckley, 424 U.S. at

38.3

Fourth, in applying the anti-corruption rationale, the

Court has afforded stronger protection to expenditures by

citizens and groups (for example, for advertisements, get-out-

the-vote efforts, and voter registration activities) than it has

3

Contributions include coordinated expenditures – that is,

expenditures coordinated with a candidate or party. See

McConnell, 540 U.S. at 121; FEC v. Colo. Republican Fed.

Campaign Comm., 533 U.S. 431, 443 (2001); see also 2 U.S.C. §

441a(a)(7)(B).

8

provided to their contributions to candidates or parties. The

Court has explained that contributions to a candidate or party

pose a greater risk of quid pro quo corruption than do

expenditures. See Buckley, 424 U.S. at 46-47. At the same

time, the Court has stated that limits on contributions to

candidates or parties pose only a “marginal restriction upon

the contributor’s ability to engage in free communication.”

Id. at 20-21. By contrast, expenditure restrictions limit

“political expression at the core of our electoral process and

of the First Amendment freedoms.” Id. at 39 (internal

quotation marks omitted). A “restriction on the amount of

money a person or group can spend on political

communication during a campaign necessarily reduces the

quantity of expression by restricting the number of issues

discussed, the depth of their exploration, and the size of the

audience reached.” Id. at 19. The Court’s jurisprudence, in

short, reflects a “fundamental constitutional difference

between money spent to advertise one’s views independently

of the candidate’s campaign and money contributed to the

candidate to be spent on his campaign.” NCPAC, 470 U.S. at

497 (emphases added); see also Randall v. Sorrell, 548 U.S.

230, 241-42 (2006).4

4

Many have criticized the distinction between contributions

and expenditures because, in their view, they are “two sides of the

same First Amendment coin.” Buckley, 424 U.S. at 241 (opinion of

Burger, C.J.). Some contend that limits on contributions and

expenditures are both suspect under the First Amendment. See id.;

id. at 290 (opinion of Blackmun, J); see also Shrink Mo. Gov’t

PAC, 528 U.S. at 410 (Thomas, J., dissenting). Others argue that

the interest in limiting contributions similarly justifies restricting

expenditures. See Buckley, 424 U.S. at 260-62 (opinion of White,

J.). The Court thus far has rebuffed both critiques and adhered to

the Buckley divide. See Randall, 548 U.S. at 242 (“Over the last 30

years, in considering the constitutionality of a host of different

9

In maintaining this line between (i) contributions to

candidates or parties and (ii) expenditures, the Court has

acknowledged that a citizen’s or group’s large expenditure –

for example, in financing advertisements or get-out-the-vote

activities – may confer some benefit on a candidate and

thereby give influence to the spender. But the Court

nonetheless has consistently dismissed the notion that

expenditures implicate the anti-corruption interest. See

Buckley, 424 U.S. at 47 (expenditures not “a quid pro quo for

improper commitments from the candidate”); see also

McConnell, 540 U.S. at 153 (“mere political favoritism or

opportunity for influence alone is insufficient to justify

regulation”); id. at 156-57 n.51 (Congress could not regulate

talk show hosts or newspaper editors “on the sole basis that

their activities conferred a benefit on the candidate”);

NCPAC, 470 U.S. at 498 (“exchange of political favors for

uncoordinated expenditures remains a hypothetical possibility

and nothing more”).

Fifth, the Court has been somewhat more tolerant of

regulation of for-profit corporations and labor unions. The

Court has permitted statutory limits on contributions that for-

profit corporations and unions make from their general

treasuries to candidates and parties.5 More controversially,

the Court has carved out a significant exception to Buckley’s

holding on expenditures: The Court has upheld laws that

prohibit for-profit corporations and unions from making

expenditures for activities expressly advocating the election

campaign finance statutes, this Court has repeatedly adhered to

Buckley’s constraints, including those on expenditure limits.”).

5

The Court also has ruled that the Government may bar

certain non-profit as well as for-profit corporations from making

direct contributions to candidates or parties. See FEC v. Beaumont,

539 U.S. 146, 159-60 (2003).

10

or defeat of a federal candidate. The Court has permitted

those expenditure limits on the ground that they restrain the

“corrosive and distorting effects of immense aggregations of

wealth that are accumulated with the help of the corporate

form and that have little or no correlation to the public’s

support for the corporation’s political ideas.” Austin, 494

U.S. at 660; see also McConnell, 540 U.S. at 204-05; but see

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77

(1978); Buckley, 424 U.S. at 48-49.6

To sum up so far: In reconciling the competing interests,

the Supreme Court has generally approved statutory limits on

contributions to candidates and political parties as consistent

with the First Amendment. The Court has rejected

expenditure limits on individuals, groups, candidates, and

parties, even though expenditures may confer benefits on

candidates. And the Court has upheld limits on for-profit

corporations’ and unions’ use of their general treasury funds

to make campaign contributions to candidates or political

parties or to make expenditures for activities expressly

advocating the election or defeat of federal candidates.

B

This case does not involve regulation of candidates,

parties, or for-profit corporations. Rather, this case concerns

6

The Supreme Court is presently considering whether to

overrule Austin (and McConnell’s reliance on it) to the extent

Austin permitted the Government to limit for-profit corporations’

and unions’ expenditures. See Citizens United v. FEC, No. 08-205

(S. Ct. reargued Sept. 9, 2009); cf. Austin, 494 U.S. at 702

(Kennedy, J., dissenting) (“Today’s decision abandons [Buckley’s]

distinction and threatens once-protected political speech.”). The

regulations at issue here violate the First Amendment with or

without Austin on the books. See infra note 11.

11

the FEC’s regulation of non-profit entities that are not

connected to a candidate, party, or for-profit corporation. We

thus must consider how the constitutional principles outlined

above apply to non-profits – and in particular to three

different kinds of non-profits: (i) those that only make

expenditures; (ii) those that only make contributions to

candidates or parties; and (iii) those that do both. For

purposes of the First Amendment analysis, the central issue

turns out to be whether independent non-profits are treated

like individual citizens (who under Buckley have the right to

spend unlimited money to support their preferred candidates)

or like political parties (which under McConnell do not have

the right to raise and spend unlimited soft money).7

1

The first relevant category of non-profit entities consists

of those that only make expenditures for political activities

such as advertisements, get-out-the-vote efforts, and voter

7

In referring to non-profit entities, we mean non-connected

non-profit corporations (usually advocacy or ideological or

politically oriented non-profits) that engage in election-related

activities and register with the Internal Revenue Service under 26

U.S.C. § 527 or § 501(c), as well as unincorporated non-profit

groups. “Non-connected” means that the non-profit is not a

candidate committee, a party committee, or a committee established

by a corporation or labor union. See 11 C.F.R. § 106.6(a). “Non-

connected” for purposes of this opinion also excludes so-called

leadership PACs.

Some non-profits register with the FEC as political

committees; others do not. Our constitutional analysis of donations

to and spending by non-connected non-profits applies regardless

whether a non-profit has registered as a political committee with the

FEC. See infra note 15.

12

registration drives. Non-profits in this category make no

contributions to federal candidates or parties.

The Supreme Court’s case law establishes that those non-

profit entities, like individual citizens, are constitutionally

entitled to raise and spend unlimited money in support of

candidates for elected office – with the narrow exception that,

under Austin, the Government may restrict to some degree

how non-profits spend donations received from the general

treasuries of for-profit corporations or unions. See Cal. Med.

Ass’n v. FEC, 453 U.S. 182, 202-03 (1981) (opinion of

Blackmun, J.); see also FEC v. Mass. Citizens for Life, Inc.

(MCFL), 479 U.S. 238, 259-65 (1986); NCPAC, 470 U.S. at

501; Citizens Against Rent Control, 454 U.S. at 296-99;

Buckley, 424 U.S. at 47; N.C. Right to Life, Inc. v. Leake, 525

F.3d 274, 292-93 (4th Cir. 2008).

Those principles were initially articulated in Cal-Med.

There, Justice Blackmun determined that “contributions to

political committees can be limited only if those contributions

implicate the governmental interest in preventing actual or

potential corruption, and if the limitation is no broader than

necessary to achieve that interest.” Cal-Med, 453 U.S. at 203

(opinion of Blackmun, J.). Applying that standard, he found

that “contributions to a committee that makes only

independent expenditures pose no such threat” of “actual or

potential corruption.” Id. “By pooling their resources,

adherents of an association amplify their own voices; the

association is but the medium through which its individual

members seek to make more effective the expression of their

own views.” Id. (citation and internal quotation marks

omitted). Justice Blackmun thus concluded that Government

13

may not limit contributions to a non-profit that only makes

expenditures.8

The Court reinforced those principles a year later in

Citizens Against Rent Control. There, the Court struck down

limits on donations to a non-profit committee seeking to

defeat a ballot measure. See Citizens Against Rent Control,

454 U.S. at 296-99. Building on the established right of

individuals to make unlimited expenditures, the Court stated

that there are “of course, some activities, legal if engaged in

by one, yet illegal if performed in concert with others, but

political expression is not one of them.” Id. at 296. The

Court further reasoned: “Placing limits on contributions

which in turn limit expenditures plainly impairs freedom of

expression.” Id. at 299. In the Court’s words, to place “a

Spartan limit – or indeed any limit – on individuals wishing to

band together to advance their views on a ballot measure,

while placing none on individuals acting alone, is clearly a

restraint on the right of association.” Id. at 296.

8

In Cal-Med, there was no majority opinion on the First

Amendment issue. Under the Marks principle, Justice Blackmun’s

opinion in Cal-Med appears to be controlling. See Marks v. United

States, 430 U.S. 188, 193 (1977); cf., e.g., Regents of Univ. of Cal.

v. Bakke, 438 U.S. 265, 269-320 (1978) (opinion of Powell, J.).

Even if Justice Blackmun’s opinion were not binding under the

Marks principle or even if his discussion of expenditure-only non-

profits were considered dicta, his opinion’s principles have been

followed in subsequent decisions such as Citizens Against Rent

Control. In that regard, we note that Justice Marshall’s opinion in

Cal-Med did not decide how the First Amendment applies to

contributions to a non-profit that only makes expenditures. See

Cal-Med, 453 U.S. at 197 n.17 (opinion of Marshall, J.) (“American

Civil Liberties Union suggests that § 441a(a)(1)(C) would violate

the First Amendment if construed to limit the amount individuals

could jointly expend to express their political views. We need not

consider this hypothetical application . . . .”).

14

In NCPAC, the Court reiterated that the Government may

not limit the spending of non-profits. The Court invalidated a

law that restricted a group’s expenditures in support of a

candidate who had accepted public financing. See NCPAC,

470 U.S. at 501. The Court stated that citizens’ “collective

action in pooling their resources to amplify their voices” is

“entitled to full First Amendment protection . . . .” Id. at 495.

In MCFL, the Court again underscored that non-profit

advocacy groups are generally entitled to raise and spend

unlimited money on elections. The Court invalidated an

expenditure limit imposed on a non-profit corporation that

had distributed a newsletter promoting pro-life candidates.

The Court noted that individuals “contribute to a political

organization in part because they regard such a contribution

as a more effective means of advocacy than spending the

money under their own personal direction.” MCFL, 479 U.S.

at 261. The Court added that “[v]oluntary political

associations do not suddenly present the specter of corruption

merely by assuming the corporate form.” Id. at 263; see also

Austin, 494 U.S. at 701 (Kennedy, J., dissenting) (MCFL held

that “a nonprofit corporation engaged in political discussion

of candidates and elections has the full protection of the First

Amendment”). Adhering to MCFL, the McConnell Court

ruled that BCRA’s ban on certain electioneering

communications could not validly be applied to non-profit

corporations. See McConnell, 540 U.S. at 210-11.

The principles set forth in Cal-Med, Citizens Against

Rent Control, NCPAC, and MCFL are rooted in the Court’s

consistent holdings beginning with Buckley that individual

citizens may spend money without limit (apart from the limit

on their own contributions to candidates or parties) in support

of the election of particular candidates. After all, if one

15

person is constitutionally entitled to spend $1 million to run

advertisements supporting a candidate (as Buckley held), it

logically follows that 100 people are constitutionally entitled

to donate $10,000 each to a non-profit group that will run

advertisements supporting a candidate.9 Put another way: “If

the First Amendment prohibits any limitation on how much

money an independent political committee can spend on an

independent-expenditure campaign, how can it permit limits

on donations to committees that make only independent

expenditures?” Richard Briffault, The 527 Problem and the

Buckley Problem, 73 GEO. WASH. L. REV. 949, 982 (2005);

see also Edward B. Foley, The “Major Purpose” Test:

Distinguishing Between Election-Focused and Issue-Focused

Groups, 31 N. KY. L. REV. 341, 343 (2004) (stating “baseline

proposition that it would be unconstitutional to limit the

contributions that individuals may give to ideological groups

to be used for electoral purposes”); Note, The

Unconstitutionality of Limitations on Contributions to

Political Committees in the 1976 Federal Election Campaign

Act Amendments, 86 YALE L.J. 953 (1977).

These Supreme Court decisions reflect, moreover, the

commonsense proposition that regulation of non-profits does

not fit within the anti-corruption rationale, which constitutes

9

To be sure, some cases suggest that the First Amendment

interest in donating to someone else for speech, while important, is

less weighty than the First Amendment interest in speaking oneself.

But those cases involve contributions to candidates or parties. See

Buckley, 424 U.S. at 21. With respect to donations to groups other

than candidates or political parties, the Court has said that there are

“of course, some activities, legal if engaged in by one, yet illegal if

performed in concert with others, but political expression is not one

of them.” Citizens Against Rent Control, 454 U.S. at 296; see also

MCFL, 479 U.S. at 261; NCPAC, 470 U.S. at 495; Cal-Med, 453

U.S. at 203 (opinion of Blackmun, J.); NAACP, 357 U.S.at 460.

16

the sole basis for regulating campaign contributions and

expenditures. See Davis, 128 S. Ct. at 2773. As the Court has

explained the anti-corruption principle, mere donations to

non-profit groups cannot corrupt candidates and

officeholders. In the words of the Fourth Circuit, it is

“implausible that contributions to independent expenditure

political committees are corrupting.” N.C. Right to Life, 525

F.3d at 293 (internal quotation marks omitted). And to the

extent a non-profit then spends its donations on activities such

as advertisements, get-out-the-vote efforts, and voter

registration drives, those expenditures are not considered

corrupting, even though they may generate gratitude from and

influence with officeholders and candidates. Rather, under

Buckley, those expenditures are constitutionally protected.

Therefore, limiting donations to and spending by non-profits

in order to prevent corruption of candidates and officeholders

represents a kind of “prophylaxis-upon-prophylaxis”

regulation to which the Supreme Court has emphatically

stated, “Enough is enough.” FEC v. Wis. Right to Life, Inc.

(WRTL), 551 U.S. 449, 478-79 (2007) (controlling opinion of

Roberts, C.J.).

Writing for the Fourth Circuit, Judge Wilkinson recently

summarized the relevant Supreme Court precedents,

concluding that “the Court has never held that it is

constitutional to apply contribution limits to political

committees that make solely independent expenditures.” N.C.

Right to Life, 525 F.3d at 292. Those non-profit groups

receive full First Amendment protection and are entitled to

receive donations and make expenditures because they “offer

an opportunity for ordinary citizens to band together to speak

on the issue or issues most important to them.” Id. at 295.

We agree with Judge Wilkinson’s assessment of the state of

the law.

17

2

The second relevant category of non-profits consists of

those that only make contributions to federal candidates or

political parties and make no expenditures. Given the

constitutionally permissible caps on an individual donor’s

contributions to candidates or parties, the Supreme Court has

acknowledged the risk that individuals might use non-profits

to evade those limits. In order to prevent circumvention of

limits on an individual donor’s contributions to candidates

and parties, the Court has held that non-profit entities can be

required to make their own contributions to candidates and

parties, as well as pay associated administrative expenses, out

of a hard-money account that is subject to source and amount

restrictions. See Cal-Med, 453 U.S. at 198-99 (opinion of

Marshall, J.); id. at 203-04 (opinion of Blackmun, J.). As a

majority of the Court pointed out in Cal-Med, doing so

prevents non-profits from being used as “conduits” for illegal

contributions to parties and candidates and thus prevents

“evasion of the limitations on contributions” to a candidate.

Id. at 203 (opinion of Blackmun, J.); see also id. at 198

(opinion of Marshall, J.) (limit on donations to non-profit

prevents evasion of “$1,000 limit on contributions to

candidates . . . by channeling funds” through the non-profit);

Cal. Med. Ass’n v. FEC, 641 F.2d 619, 625 (9th Cir. 1980)

(Kennedy, J.) (non-profit committee is “natural conduit for

candidate contributions and . . . the essential purpose of the

provision here in question is to limit those contributions, not

to limit expenditures for any other type of political

advocacy”) (emphasis added).10

10

The requirement that certain administrative expenses be

funded in part with hard money prevents a contributor from

essentially taking control of a non-profit and thereby circumventing

limits on individual contributions to candidates. See Cal-Med, 453

U.S. at 198-99 n.19 (opinion of Marshall, J.); id. at 203 (opinion of

18

Consistent with Cal-Med’s ruling, FECA limits

contributors to donating a maximum of $5000 per year to a

non-profit’s hard-money account. A non-profit in turn may

contribute to a candidate or party only from that hard-money

account. See 2 U.S.C. § 441a(a)(1)(C). And an individual’s

contribution to a non-profit’s hard-money account may count

against the individual’s aggregate annual contribution limits.

See 2 U.S.C. § 441a(a)(3).

3

What about a non-profit entity that falls into both

categories – in other words, a non-profit that makes

expenditures and makes contributions to candidates or

parties? EMILY’s List is a good example of such a hybrid

non-profit: It makes expenditures for advertisements, get-out-

the-vote efforts, and voter registration drives; it also makes

direct contributions to candidates and parties. In all of its

activities, its mission is to promote and safeguard abortion

rights and to support the election of pro-choice Democratic

women to federal, state, and local offices nationwide.

The constitutional principles that govern such a hybrid

non-profit entity follow ineluctably from the well-established

principles governing the other two categories of non-profits.

To prevent circumvention of contribution limits by individual

donors, non-profit entities may be required to make their own

contributions to federal candidates and parties out of a hard-

money account – that is, an account subject to source and

Blackmun, J.). But as discussed above, the Cal-Med Court never

stated that non-profits could be required to use hard money for

advertisements, get-out-the-vote activities, and voter registration

drives; indeed, Justice Blackmun’s opinion stated the opposite.

19

amount limitations ($5000 annually per contributor).

Similarly, non-profits also may be compelled to use their

hard-money accounts to pay an appropriately tailored share of

administrative expenses associated with their contributions.

See Cal-Med, 453 U.S. at 198-99 n.19 (opinion of Marshall,

J.). But non-profit entities are entitled to make their

expenditures – such as advertisements, get-out-the-vote

efforts, and voter registration drives – out of a soft-money or

general treasury account that is not subject to source and

amount limits. Stated another way: A non-profit that makes

expenditures to support federal candidates does not suddenly

forfeit its First Amendment rights when it decides also to

make direct contributions to parties or candidates. Rather, it

simply must ensure, to avoid circumvention of individual

contribution limits by its donors, that its contributions to

parties or candidates come from a hard-money account.11

11

One additional wrinkle: To the extent a non-profit receives

donations from for-profit corporations or unions, those donations

cannot be placed in the non-profit’s hard-money account (because

for-profit corporate or union donations cannot be the source of

contributions to parties or candidates). Moreover, under Austin, the

soft-money account into which such donations are deposited cannot

be used to fund express-advocacy election activities that for-profit

corporations and unions are themselves banned from conducting.

Cf. WRTL, 551 U.S. at 476-77; MCFL, 479 U.S. at 259-64; FEC v.

NRA, 254 F.3d 173, 191-92 (D.C. Cir. 2001). Justice Souter

recently summarized these points: A “nonprofit may use its general

treasury to pay for clearly electioneering communications so long

as it declines to serve as a conduit for money from business

corporations and unions (and thus qualifies for the MCFL

exception).” WRTL, 551 U.S. at 521 (Souter, J., dissenting)

(internal quotation marks omitted). If Austin were overruled, then

non-profits would be able to make unlimited express-advocacy

expenditures from their soft-money accounts even if they accepted

donations from for-profit corporations or unions to those accounts.

20

C

How does McConnell affect the above principles

governing non-profits? McConnell upheld congressionally

imposed limits on political parties receiving or spending soft

money. Some have argued that the Government can similarly

restrict soft-money contributions to and spending by non-

profits. In this case, the District Court accepted that reasoning

in ruling for the FEC; it found non-profits similarly situated to

political parties for purposes of the First Amendment analysis.

In our judgment, however, McConnell does not support

such regulation of non-profits. McConnell affirmed BCRA’s

limits on contributions to political parties because of the close

ties between candidates and parties and the extensive record

evidence of what it deemed a threat of actual or apparent

corruption – specifically, the access to federal officials and

candidates that large soft-money contributors to political

parties received in exchange for their contributions. The

Court said that it was “not unwarranted for Congress to

conclude that the selling of access gives rise to the appearance

of corruption.” McConnell, 540 U.S. at 154. The Court

expressly based its conclusion on the “close relationship

between federal officeholders and the national parties, as well

as the means by which parties have traded on that relationship

. . . .” Id.12

12

See generally McConnell, 540 U.S. at 130 (“both parties

promised and provided special access to candidates and senior

Government officials in exchange for large soft-money

contributions”); id. at 145 (“special relationship and unity of

interest” that candidates and officeholders share with parties); id. at

146 (“The evidence in the record shows that candidates and donors

alike have in fact exploited the soft-money loophole, the former to

increase their prospects of election and the latter to create debt on

the part of officeholders, with the national parties serving as willing

21

Unlike the political parties examined in McConnell, there

is no record evidence that non-profit entities have sold access

to federal candidates and officeholders in exchange for large

contributions. See also Craig Holman, The Bipartisan

Campaign Reform Act: Limits and Opportunities for Non-

intermediaries.”); id. at 150 (“The record in the present cases is

replete with similar examples of national party committees peddling

access to federal candidates and officeholders in exchange for large

soft-money donations.”); id. at 151 (“So pervasive is this practice

that the six national party committees actually furnish their own

menus of opportunities for access to would-be soft-money donors,

with increased prices reflecting an increased level of access.”); id.

at 152 (“close ties that candidates and officeholders have with their

parties”); id. at 153-54 (“As the record demonstrates, it is the

manner in which parties have sold access to federal candidates and

officeholders that has given rise to the appearance of undue

influence.”); id. at 155 (“no meaningful separation between the

national party committees and the public officials who control

them”) (internal quotation marks omitted); id. (“Given this close

connection and alignment of interests, large soft-money

contributions to national parties are likely to create actual or

apparent indebtedness on the part of federal officeholders”); id.

(“This close affiliation has also placed national parties in a position

to sell access to federal officeholders in exchange for soft-money

contributions”); id. (“Access to federal officeholders is the most

valuable favor the national party committees are able to give in

exchange for large donations.”); id. at 156 n.51 (“[T]he record

demonstrates close ties between federal officeholders and the state

and local committees of their parties. That close relationship makes

state and local parties effective conduits for donors desiring to

corrupt federal candidates and officeholders. Thus, in upholding

§§ 323(b), (d), and (f), we rely not only on the fact that they

regulate contributions used to fund activities influencing federal

elections, but also that they regulate contributions to, or at the

behest of, entities uniquely positioned to serve as conduits for

corruption.”).

22

Profit Groups in Federal Elections, 31 N. KY. L. REV. 243,

280 (2004) (“Today’s electioneering non-profit groups . . .

can make no such promises of access in exchange for a soft

money contribution.”).

More fundamentally, non-profit groups do not have the

same inherent relationship with federal candidates and

officeholders that political parties do. The McConnell Court

identified numerous “real-world differences between political

parties and interest groups.” 540 U.S. at 188. “Interest

groups do not select slates of candidates for elections.

Interest groups do not determine who will serve on legislative

committees, elect congressional leadership, or organize

legislative caucuses. Political parties have influence and

power in the Legislature that vastly exceeds that of any

interest group. As a result, it is hardly surprising that party

affiliation is the primary way by which voters identify

candidates, or that parties in turn have special access to and

relationships with federal officeholders.” Id. As noted in

McConnell, Congress recognized these differences and

enacted a statutory scheme under which “[i]nterest groups . . .

remain free to raise soft money to fund voter registration,

GOTV activities, mailings,” and advertising. Id. at 187.

In sum, it will not work to simply transport McConnell’s

holding from the political party context to the non-profit

setting. On this question as well, we agree with Judge

Wilkinson: “It is . . . not an exaggeration to say that

McConnell views political parties as different in kind than

independent expenditure committees.” N.C. Right to Life, 525

F.3d at 293.

For non-profit entities, the most pertinent Supreme Court

precedents remain Buckley, Cal-Med, Citizens Against Rent

Control, NCPAC, and MCFL. As discussed above, those

23

cases ultimately stand for the proposition that non-profit

groups may accept unlimited donations to their soft-money

accounts. And subject to the one Austin-based exception,

non-profit groups – like individual citizens – may spend

unlimited amounts out of their soft-money accounts for

election-related activities such as advertisements, get-out-the-

vote efforts, and voter registration drives.13

13

Some have suggested that footnote 48 of the McConnell

opinion, in the course of discussing contributions to parties, subtly

re-interpreted Cal-Med to permit restrictions on large soft-money

donations to non-profits. See, e.g., Edward B. Foley & Donald

Tobin, The New Loophole?: 527s, Political Committees, and

McCain-Feingold, BNA MONEY & POL. REP., Jan. 7, 2004;

Memorandum from Prof. Daniel R. Ortiz, Univ. of Va. School of

Law, to Democracy 21 and the Campaign Legal Center (Apr. 9,

2004). We decline to adopt that expansive reading of footnote 48.

First, as explained by one leading election-law expert, such a

reading would require overruling the Supreme Court’s longstanding

dichotomy between limits on contributions and expenditures. See

Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. PA.

L. REV. 31, 70 (2004). Limits on donations to non-profit entities

are analytically akin to limits on expenditures by the donors. See

Cal-Med, 453 U.S. at 202 (opinion of Blackmun, J.); see also

Briffault, 73 GEO. WASH. L. REV. at 982 (“[I]f George Soros’s

direct expenditure of $23 million on anti-Bush or pro-Kerry ads is

constitutionally protected, how does he forfeit that protection if he

combines his $23 million with $20 million from Peter Lewis and

maybe another $10 million from some slightly smaller fry in a fund

that takes out essentially the same ads and supports the same voter

drives?”). For that reason, a broad interpretation of footnote 48

would mean “the entire Buckley edifice . . . falls.” Hasen, 153 U.

PA. L. REV. at 70. “Is that what the Court really intended buried in

a few sentences of a footnote in one of the longest cases in Supreme

Court history?” Id. We think not.

Second, footnote 48 simply cited Cal-Med together with

Buckley in the course of establishing the constitutionality of limits

on contributions to political parties, not to non-profits (which the

24

III

We now consider whether the 2004 FEC regulations at

issue in this case comport with the relevant constitutional

principles. They do not.

The fundamental flaw, as counsel for EMILY’s List

succinctly stated at oral argument, is that the Commission

improperly “brought to bear what was essentially a political

party analysis to a non-connected, independent committee

which is not under the control of, or associated with

Court had no need to address). In the key concluding sentence in

the footnote, the Court rejected the idea that the government could

only regulate “parties as pass-throughs.” McConnell, 540 U.S. at

152 n.48 (emphasis added). Moreover, footnote 48 was responding

to a point in Justice Kennedy’s dissent that had nothing to do with

non-profits. See Briffault, 73 GEO. WASH. L. REV. at 986

(“importantly, the McConnell footnote was written in the course of

the Court’s analysis of BCRA’s application of contribution limits to

the activities of political parties”). We would unfairly wrench

footnote 48 from its context were we to adopt the broad

interpretation some have proposed.

Third, in a later passage in the McConnell opinion, the Court

explained that, under the statute, “[i]nterest groups . . . remain free

to raise soft money to fund voter registration, GOTV activities,

mailings,” and advertisements. 540 U.S. at 187. That passage –

and the accompanying discussion – would make little sense if

footnote 48 were read to equate non-profits with political parties.

Fourth, the Fourth Circuit in North Carolina Right to Life

refused to adopt this broad reading of footnote 48; it eschewed the

dissenting judge’s extensive reliance on it. See 525 F.3d at 333-34

(Michael, J., dissenting).

In short, we decline to read this footnote addressing a different

issue in McConnell to indirectly (i) overrule Buckley, (ii) discard

Justice Blackmun’s opinion in Cal-Med, and (iii) equate non-profits

with political parties, contrary to other discussion in McConnell.

25

candidates in the fashion of a political party.” Tr. of Oral

Arg. at 4.

A

The rules set forth in §§ 106.6(c), 106.6(f), and 100.57

contain five relevant provisions. In our judgment, the

provisions are not closely drawn to meet an important

governmental interest.14

14

We need not decide whether the regulations are subject to

the strictest scrutiny applicable to spending restrictions or the still

“rigorous” but slightly lesser “closely drawn” scrutiny applicable to

contribution restrictions. See generally Davis v. FEC, 128 S. Ct.

2759, 2770-72 (2008); FEC v. Wis. Right to Life, Inc. (WRTL), 551

U.S. 449, 464 (2007); Buckley v. Valeo, 424 U.S. 1, 29 (1976).

Under either permutation of this “exacting” scrutiny, Buckley, 424

U.S. at 16, the regulations violate the First Amendment. That said,

the allocation and “mere reference” regulations of §§ 106.6(c) and

106.6(f) are best considered spending restrictions under the analysis

set forth in Wisconsin Right to Life. 551 U.S. at 457, 477 n.9, 478-

79; see also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 203 (1981)

(opinion of Blackmun, J.) (limits on donations to non-profits

subject to strict scrutiny). In Wisconsin Right to Life, the Court

indicated that forcing an entity to spend out of a segregated fund

subject to source and amount limitations, rather than its general

treasury, was a spending restriction. 551 U.S. at 477 n.9. So too

here. Unlike BCRA’s rules for political parties, moreover, these

regulations do not limit how much someone can contribute to

EMILY’s List or other covered non-profits. Rather, these

regulations force non-profit entities to pay for a large percentage of

their varied political activities out of hard-money accounts subject

to source and amount ($5000) limits rather than out of soft-money

accounts that may receive unlimited donations. Through this

mechanism, the regulations limit how much non-profits ultimately

can spend on advertisements, get-out-the-vote efforts, and voter

registration drives. These regulations therefore “reduce[] the

26

Under the Supreme Court’s precedents, non-profit

entities may be required to use their hard-money accounts for

their own contributions to candidates and parties and for an

appropriately tailored share of administrative expenses

associated with such contributions. But as explained above,

non-profits may not be forced to use their hard-money

accounts for expenditures such as advertisements, get-out-the-

vote efforts, and voter registration drives. Non-profits – like

individual citizens – are entitled to spend and raise unlimited

money for those activities. The FEC’s five new regulatory

provisions flout those principles.

First, the regulations require covered15 non-profit entities

to use their hard-money accounts to pay at least 50% of the

quantity of expression” for groups like EMILY’s List “by

restricting the number of issues discussed, the depth of their

exploration, and the size of the audience reached.” Buckley, 424

U.S. at 19. As a rough analogy, consider a law that requires home

buyers to pay a 50% cash down payment to obtain a mortgage.

That kind of law would significantly limit how much buyers could

afford to spend for a new house. A similar dynamic is at play as a

result of these regulations.

15

The regulations apply only to those non-profits that must

register with the FEC as political committees – namely, groups that

receive or spend more than $1000 annually for the purpose of

influencing a federal election and whose “major purpose” involves

federal elections. Buckley, 424 U.S. at 79; see 2 U.S.C. §§ 431-

434, 441a; supra note 7. Our constitutional analysis of donations

and spending limits applies both to non-connected non-profits

registered as political committees with the FEC and to non-

connected non-profits that are not so registered. The fact that a

non-profit spends a certain amount or percentage of its money in

relation to federal elections cannot be a basis, at least under the

anti-corruption rationale, for restricting its ability to accept large

donations to support those expenditures. That conclusion follows

27

costs of their generic get-out-the-vote efforts and voter

registration activities. 11 C.F.R. § 106.6(c). By “generic,”

the regulations mean those activities that refer to a party but

do not promote or oppose a particular candidate. See id. §

100.25. This provision violates the First Amendment because

non-profits are constitutionally entitled to pay 100% of the

costs of such voter drive activities out of their soft-money

accounts. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 203

(1981) (opinion of Blackmun, J.); see also FEC v. Mass.

Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259-63 (1986);

FEC v. Nat’l Conservative PAC (NCPAC), 470 U.S. 480, 501

(1985); Citizens Against Rent Control v. City of Berkeley, 454

U.S. 290, 298-99 (1981); Buckley v. Valeo, 424 U.S. 1, 45-48

(1976).

Second, the regulations mandate that covered non-profits

use their hard-money accounts for 50% of any generic

communications that refer to a party without referring to a

candidate, for example, “Support the Democratic party.” 11

C.F.R. § 106.6(c). This provision likewise violates the First

Amendment because non-profits are constitutionally entitled

to pay 100% of the costs of such communications out of their

soft-money accounts. See Cal-Med, 453 U.S. at 203 (opinion

of Blackmun, J.); see also MCFL, 479 U.S. at 259-63;

NCPAC, 470 U.S. at 501; Citizens Against Rent Control, 454

U.S. at 298-99; Buckley, 424 U.S. at 45-48.

from the Supreme Court’s consistent holdings that large

expenditures are constitutionally protected and the corresponding

principle that non-profits are constitutionally entitled to accept large

donations to their soft-money accounts to support advertisements,

get-out-the-vote efforts, and voter registration activities. Of course,

because of the lesser First Amendment protection against

disclosure, the major purpose test is permissible under current

precedent for determining non-profits’ disclosure obligations. See

Buckley, 424 U.S. at 79.

28

Third, the regulations direct covered non-profit entities to

use their hard-money accounts to pay at least 50% of all

administrative expenses. 11 C.F.R. § 106.6(c). Those

administrative expenses include rent, utilities, office supplies,

and salaries, among other costs. But a non-profit may be

forced to use hard money for, at most, a percentage of

administrative expenses that “closely” corresponds to the

percentage of activities relating to its contributions as

compared to its advertisements, get-out-the-vote efforts, and

voter registration activities. See Davis v. FEC, 128 S. Ct.

2759, 2770 (2008) (campaign finance regulations must at

least be “closely drawn” to further an important governmental

interest); Cal-Med, 453 U.S. at 198-99 n.19 (opinion of

Marshall, J.) (rejecting argument that non-profit was entitled

to pay its “entire” administrative expenses with unlimited

donations or soft-money account) (emphasis added). The

tailoring must ensure that a hybrid non-profit is not unduly

advantaged as compared to a non-profit that makes only

contributions (and thus must fund certain administrative

expenses with hard money) and is not unduly disadvantaged

as compared to a non-profit that makes only expenditures

(and thus may fund its administrative expenses with soft

money). Section 106.6(c) does not attempt or purport to

allocate administrative expenses in that way. And the “desire

for a bright-line rule . . . hardly constitutes the compelling

state interest necessary to justify any infringement on First

Amendment freedom.” FEC v. Wis. Right to Life, Inc.

(WRTL), 551 U.S. 449, 479 (2007) (internal quotation marks

omitted) (controlling opinion of Roberts, C.J.).

Fourth, the regulations compel covered non-profit entities

to use their hard-money accounts to pay 100% of the costs of

advertisements or other communications that “refer” to a

federal candidate. 11 C.F.R. § 106.6(f)(1). If an

29

advertisement or communication refers to a state candidate as

well as a federal candidate, the non-profit must pay for it with

a percentage of its hard-money account as determined by time

and space allocation. See id. § 106.6(f)(3). Here again, the

problem is that non-profits are constitutionally entitled to pay

100% of the costs of their advertisements and other

communications out of a soft-money account. See MCFL,

479 U.S. at 251; NCPAC, 470 U.S. at 501; Citizens Against

Rent Control, 454 U.S. at 299; Cal-Med, 453 U.S. at 203

(opinion of Blackmun, J.); Buckley, 424 U.S. at 45-48.

Fifth, the regulations create a new regime for solicitations

indicating that donated funds will be used to support or

oppose the election of a clearly identified federal candidate.

11 C.F.R. § 100.57. The regulations require that donations in

response to such solicitations be treated as 100% hard money.

Id. § 100.57(a)-(b)(1). This means that donations in response

to such solicitations are subject to a $5000 cap. If a

solicitation also refers to a state or local candidate, at least

50% of the responsive donations must go to the hard-money

account. Id. § 100.57(b)(2). This provision is badly flawed.

Non-profits are entitled to raise money for their soft-money

accounts to help support their preferred candidates, yet this

regulation prohibits non-profits from saying as much in their

solicitations. “Such notions run afoul of the fundamental rule

of protection under the First Amendment, that a speaker has

the autonomy to choose the content of his own message.”

WRTL, 551 U.S. at 477 n.9 (internal quotation marks

omitted); Davis, 128 S. Ct. at 2771 (provision that requires

choice between “unfettered political speech” and

“discriminatory fundraising limitations” violates First

Amendment).

30

B

In short, the new FEC regulations do not pass muster

under the Supreme Court’s First Amendment precedents. The

regulations are not “closely drawn” to serve a cognizable anti-

corruption interest. See Davis, 128 S. Ct. at 2770-71; WRTL,

551 U.S. at 478-80; NCPAC, 470 U.S. at 496-97; Citizens

Against Rent Control, 454 U.S. at 296-97; Buckley, 424 U.S.

at 26-27, 45-48. Donations to and spending by a non-profit

cannot corrupt a candidate or officeholder, at least in the

absence of some McConnell-like evidence establishing such

corruption or the appearance thereof. See N.C. Right to Life,

Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008); see also

Richard Briffault, The 527 Problem and the Buckley

Problem, 73 GEO. WASH. L. REV. 949, 999 (2005) (“The 527s

do not fit easily within Buckley’s anticorruption paradigm, at

least as the Supreme Court has defined corruption until

now.”); Gregg D. Polsky & Guy-Uriel E. Charles, Regulating

Section 527 Organizations, 73 GEO. WASH. L. REV. 1000,

1027-35 (2005).

Of course, the fact that the regulations do not serve a

cognizable anti-corruption interest is not surprising because

the decision to more tightly regulate entities like EMILY’s

List arose out of an entirely different concern: the influence of

non-profits that raise and spend large amounts of money and

thereby affect federal elections. See, e.g., Comments of

Democracy 21, Campaign Legal Center & Center for

Responsive Politics in Response to Notice of Proposed

Rulemaking, No. 2004-6, at 1-2 (Apr. 5, 2004) (criticizing

“the spending of tens of millions of dollars of soft money

explicitly for the purpose of influencing the presidential

election by section 527 groups”). Responding to such

complaints, the FEC adopted these new regulations to tamp

down spending by non-profits and thereby better equalize the

31

voices of citizens and groups who participate in the political

process. Large donations to and spending by non-profits

prompted these regulations, and limiting non-profits’

expenditures is their intended and predictable effect.

But the Supreme Court’s First Amendment cases have

repeatedly repudiated this equalization rationale as a basis for

regulating campaign-related contributions or expenditures.

See Davis, 128 S. Ct. at 2773; Buckley, 424 U.S. at 48-49.

Under current law, therefore, these regulations are

unsupportable. The concern with “large individual donations

to the 527s is that they permit a tiny group of Americans – the

wealthiest . . . – to play an enormous role in the electoral

process . . . . Buckley, however, rejected the protection of

political equality as a basis for limiting the role of money in

election campaigns.” Briffault, 73 GEO. WASH. L. REV. at

954 (internal quotation marks omitted).

As a lower court, we must strictly adhere to the Supreme

Court’s precedents. The regulations contravene the First

Amendment as it has been interpreted thus far by the Supreme

Court.16

C

As some commentators point out, it might seem

incongruous to permit non-profits to receive and spend large

soft-money donations when political parties and candidates

cannot. See Samuel Issacharoff & Pamela S. Karlan, The

Hydraulics of Campaign Finance Reform, 77 TEX. L. REV.

16

This case does not involve reporting and disclosure

obligations. The Government has a freer hand in imposing

reporting and disclosure requirements than it does in limiting

contributions and expenditures. See McConnell v. FEC, 540 U.S.

93, 121-22 (2003); Buckley, 424 U.S. at 64-68.

32

1705, 1715 (1999). But this perceived anomaly has existed to

some extent since Buckley, which recognized that contribution

limitations “alone would not reduce the greater potential voice

of affluent persons and well-financed groups, who would

remain free to spend unlimited sums directly to promote

candidates and policies they favor in an effort to persuade

voters.” Buckley, 424 U.S. at 26 n.26. And McConnell

similarly took note of the fact that, even after that decision

upholding regulations on contributions to parties, “[i]nterest

groups . . . remain free to raise soft money to fund voter

registration, GOTV activities, mailings,” and advertisements.

McConnell v. FEC, 540 U.S. 93, 187 (2003).

If eliminating this perceived asymmetry is deemed

necessary, the constitutionally permitted legislative solution,

as the Court stated in an analogous situation in Davis, is “to

raise or eliminate” limits on contributions to parties or

candidates. 128 S. Ct. at 2774. But it is not permissible, at

least under current Supreme Court precedents, to remove the

incongruity by placing these limits on spending by or

donations to non-profits.

IV

In addition to its First Amendment challenge to the five

regulatory provisions, EMILY’s List alternatively contends

that three of the five provisions exceed the FEC’s statutory

authority. See 5 U.S.C. § 706(2)(C) (agency may not act “in

excess of statutory jurisdiction, authority, or limitations, or

short of statutory right.”). We agree.

When enacting BCRA in 2002, Congress did not

authorize the FEC to restrict donations to or spending by non-

profits – even though Congress was aware that BCRA’s

restrictions on political parties meant that independent non-

33

profit groups would become more influential in the electoral

process. Indeed, Senator Lieberman, speaking in the Senate

at the time, anticipated that “at least some of the soft money

donors who will no longer be able to give to political parties

will be looking for other ways to influence our elections.

Donations to 527 groups will probably top many of their

lists.” 148 CONG. REC. S10779 (daily ed. Oct. 17, 2002)

(statement of Sen. Lieberman). He was right. Yet in the

seven years since BCRA was enacted, Congress still has not

imposed limits on non-profits, apparently because of

continuing constitutional and policy concerns about regulating

them in such a manner.

The statutory question, therefore, is whether the FEC’s

authority under the long-standing Federal Election Campaign

Act justifies the challenged regulations.

Under FECA, the FEC’s authority extends only to

regulating donations and expenditures made “for the purpose

of influencing any election for Federal office.” 2 U.S.C.

§ 431(8)(A)(i). As the Supreme Court has explained,

“[d]onations made solely for the purpose of influencing state

or local elections are therefore unaffected by FECA’s

requirements and prohibitions.” McConnell v. FEC, 540 U.S.

93, 122 (2003).

Under FECA, in other words, the FEC possesses

statutory authority to require a non-profit to use its hard-

money account to pay for federal activities, generic activities,

and mixed federal-state-local activities. See id. at 122-23.17

17

As explained earlier in this opinion, those approaches run

into severe First Amendment obstacles. For purposes of this

discussion, however, we analyze the statute as written without

regard to constitutional implications.

34

But the FEC exceeds its statutory authority when it requires

non-profits to use hard money for exclusively state and local

election activities. See id. at 122; Chevron USA, Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (step

one).

The three regulatory provisions that EMILY’s List

challenges under FECA cross the statute’s boundaries.

EMILY’s List targets one of the provisions in § 106.6(c)

as exceeding the FEC’s statutory authority – namely, the part

requiring covered non-profits to use their hard-money

accounts to pay for 50% of their administrative expenses.

This requirement applies even if more than 50% of a non-

profit’s administrative expenses are exclusively associated

with state and local elections. That poses a problem because

the FEC possesses no authority under FECA to require non-

profits to use their hard-money accounts for their exclusively

state and local election activities. We thus concur with

EMILY’s List that this provision is overbroad and

“federalizes the funding and reporting of a large portion of

such a committee’s nonfederal receipts and disbursements,

which are not made for the purpose of influencing federal

elections.” EMILY’s List Br. at 39.18

18

As discussed above, § 106.6(c) also requires non-profits to

use their federal or hard-money accounts to pay for (i) at least 50%

of their generic get-out-the vote and voter registration activities and

(ii) at least 50% of their generic communications, which refer to a

party but not a candidate. In its brief, EMILY’s List does not raise

statutory challenges to those two provisions. See EMILY’s List Br.

at 35-40; id. at 38 (challenging under the statute only that provision

in § 106.6(c) that sets forth a “‘Minimum Percentages’ Rule for

Administrative Costs”). Presumably, EMILY’s List has not

challenged these two provisions under FECA because McConnell

indicated that these generic activities qualify under the statute as

35

Next, EMILY’s List argues that § 106.6(f) exceeds the

FEC’s statutory authority. Recall that this provision requires

covered non-profits to use hard money for all or part of their

public communications that merely “refer” to federal

candidates. See 11 C.F.R. 106.6(f). The FEC runs roughshod

over the limits on its statutory authority when it presumes that

any public communications that merely “refer” to a federal

candidate necessarily seek to influence a federal election.19

For example, § 106.6(f) would compel a covered non-

profit to use some hard money to pay for an advertisement

running only in California in which Senator Jones from Maine

endorses Candidate Smith for Governor of California. The

sole purpose of such an advertisement is to influence the state

election in California – a matter entirely outside the FEC’s

statutory authority.

activities and communications “for the purpose of influencing”

federal elections. See McConnell, 540 U.S. at 123 (“Although a

literal reading of FECA’s definition of ‘contribution’ would have

required such activities to be funded with hard money, the FEC

ruled that political parties could fund mixed-purpose activities –

including get-out-the-vote drives and generic party advertising – in

part with soft money.”) (emphasis added).

19

The original FEC proposal was far narrower and would have

covered only communications that promote, attack, support, or

oppose federal candidates, similar to BCRA’s requirement for state

and local parties. See 69 Fed. Reg. at 11,753, 11,757-11,758 (Mar.

11, 2004) (notice of proposed rulemaking). After initially

considering that limited proposal, the FEC ultimately decided to

regulate broadly and to saddle non-profits with even greater

restrictions than Congress in BCRA chose to impose on state and

local parties.

36

An incident illustrating § 106.6(f)’s statutory flaws

occurred in 2005. EMILY’s List sought to run advertisements

featuring Senator Stabenow in order to support Democratic

women candidates for state legislative offices. At the time,

Senator Stabenow was a candidate for reelection to the U.S.

Senate in Michigan. EMILY’s List represented that the

communication would not be distributed in Michigan, would

not reference Senator Stabenow’s federal candidacy, would

not solicit funds for her federal candidacy, and would not

refer to any clearly identified non-federal candidate. Rather,

it would support non-federal Democratic women candidates

as a class. Nonetheless, the FEC determined that the mere

reference to Senator Stabenow meant that EMILY’s List had

to pay for the communications with 100% hard money. See

FEC Adv. Op. 2005-13, at 3-4 (Oct. 20, 2005).

Finally, EMILY’s List argues that the solicitation rule set

forth in § 100.57 also exceeds the FEC’s statutory power. We

agree. To reiterate, § 100.57 requires covered non-profits to

treat as hard-money “contributions” all funds given in

response to solicitations indicating that “any portion” of the

funds received will be used to support or oppose the election

of a federal candidate. 11 C.F.R. §§ 100.57(a)-(b)(1)

(emphasis added). If the communication indicates that the

funds will support or oppose both a federal and non-federal

candidate, then at least 50% of those funds must be treated as

hard money. See id. § 100.57(b)(2). The statutory defect in

the rule is that, depending on the particular solicitation at

issue, it requires covered non-profits to treat as hard money

certain donations that are not actually made “for the purpose

of influencing” federal elections.

Consider a fundraising pitch in which a non-profit such

as EMILY’s List tells donors that only 10% of their gift will

be used to support identified federal candidates, with the rest

37

to exclusively support state and local candidates. Each donor

fully and correctly understands that only a small portion of his

or her gift will be used “for the purpose of influencing”

federal elections. And yet, § 100.57 requires that at least 50%

of donations in response to such a solicitation be classified as

a hard-money donation subject to the $5000 cap – thereby

simultaneously creating a separate $5000 cap on soft-money

donations given in response to such a solicitation. This may

require a non-profit to decline or return funds it receives for

purely state and local elections. That is not permissible under

FECA.

In short, there is a significant mismatch between these

challenged provisions and the FEC’s authority under FECA.

Therefore, we conclude that §§ 106.6(f) and 100.57, as well

as the provision in § 106.6(c) that applies to administrative

expenses, exceed the FEC’s statutory authority.20

20

EMILY’s List separately argues that three of the five

regulatory provisions at issue in this case are also arbitrary and

capricious under the Administrative Procedure Act. EMILY’s List

Br. at 40-44. We are less persuaded by EMILY’s List’s free-

standing arbitrary and capricious argument. Putting aside the

constitutional and statutory-authority problems with the challenged

rules, the provisions are not otherwise arbitrary and capricious.

Agencies generally do not violate the APA’s deferential arbitrary-

and-capricious standard when they employ bright-line rules for

reasons of administrative convenience, so long as those rules fall

within a zone of reasonableness and are reasonably explained. See,

e.g., ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1084

(D.C. Cir. 2002); WorldCom, Inc. v. FCC, 238 F.3d 449, 461-62

(D.C. Cir. 2001).

EMILY’s List does not bring a challenge under either FECA

or the APA to § 106.6(c)’s requirement that covered non-profits

pay at least 50% of the cost of their generic communications out of

their hard-money accounts. See EMILY’s List Br. at 35-44.

38

V

Before concluding, we add a few words regarding the

concurring opinion.

To begin, it is important to emphasize the area of

agreement between the opinion of the Court and the

concurrence. All three judges on the panel have determined

that §§ 106.6(c), 106.6(f), and 100.57 are unlawful and must

be vacated.

The concurrence advances two main points: (i) that under

McConnell, the Federal Government constitutionally may

regulate non-profits like political parties; and (ii) that we

should not address the First Amendment issue in this case.

Neither argument is convincing.

First, the concurrence contends that “regulation of

political parties is not McConnell’s theme,” and it reads

McConnell to support regulation not only of political parties

but also of independent non-profit groups. Concurring Op. at

19. As we have explained at length above, we do not find that

a persuasive interpretation of McConnell. In upholding Title I

of BCRA, the McConnell Court relied heavily on the “unity

of interest,” “close relationship,” and “close ties” among

candidates, officeholders, and political parties. The

concurrence identifies no similar unity of interest between

non-profits, on the one hand, and candidates, officeholders, or

parties on the other. The McConnell Court also based its

decision on the substantial record evidence of parties selling

access in exchange for soft-money contributions. The Court

repeatedly emphasized that “Congress must show concrete

EMILY’s List raises only a constitutional challenge to that

provision.

39

evidence that a particular type of financial transaction is

corrupting or gives rise to the appearance of corruption . . . . It

has done so here.” McConnell, 540 U.S. at 185-86 n.72. The

concurrence cites no similar record evidence showing that

non-profits sell access to officeholders and candidates in

exchange for large soft-money contributions.

In our judgment, “McConnell views political parties as

different in kind than independent expenditure committees.”

N.C. Right to Life v. Leake, 525 F.3d 274, 293 (4th Cir. 2008).

We therefore disagree with the concurrence’s attempt to

stretch McConnell’s reasoning from political parties to non-

profits.21

21

The concurrence notes that McConnell upheld § 323(f) of

BCRA, which prohibits state and local candidates and officeholders

from using soft money for communications that promote, support,

attack, or oppose a federal candidate. We fail to see how this

aspect of McConnell justifies upholding limits on non-profits.

McConnell, as we read it, relied in part on the fact that

officeholders, candidates, and parties at all levels share a close

relationship and apparent unity of interest. And the Court also

based its conclusion with respect to state and local candidates and

officeholders – as elsewhere – on “the record in this litigation,” 540

U.S. at 185, emphasizing that “Congress must show concrete

evidence that a particular type of financial transaction is corrupting

or gives rise to the appearance of corruption . . . . It has done so

here.” Id. at 185-86 n.72.

The concurrence also raises concern about the activities of

non-profit committees that are “closely aligned” with federal

candidates. Concurring Op. at 23. But our constitutional analysis

of non-profits applies only to non-connected non-profits. See 11

C.F.R. § 106.6(a); supra note 7. Moreover, expenditures by

individuals or non-profits that are coordinated with a candidate may

be considered contributions to that candidate.

40

Relatedly, the concurrence disputes our reading of Cal-

Med. See Concurring Op. at 24. But our analysis of that case,

including our reliance on Justice Blackmun’s opinion, tracks

the persuasive reasoning of the Fourth Circuit in North

Carolina Right to Life, of several other courts, and of

numerous commentators. See, e.g., N.C. Right to Life, 525

F.3d at 292; see also, e.g., Comm. on Jobs Candidate

Advocacy Fund v. Herrera, No. C 07-03199, 2007 WL

2790351, *4 (N.D. Cal. Sept. 20, 2007); Wash. State

Republican Party v. Wash. State Pub. Disclosure Comm’n, 4

P.3d 808, 825 (Wash. 2000); Richard Briffault, The 527

Problem and the Buckley Problem, 73 GEO. WASH. L. REV.

949, 982-85 (2005); John C. Eastman, Strictly Scrutinizing

Campaign Finance Restrictions (and the Courts that Judge

Them), 50 CATH. U. L. REV. 13, 37 (2000); Gregg D. Polsky

& Guy-Uriel E. Charles, Regulating Section 527

Organizations, 73 GEO. WASH. L. REV. 1000, 1031 (2005).

Moreover, the concurrence does not substantively address the

several post-Cal-Med cases that similarly recognize the right

of non-profits to raise and spend money to support their

agendas and preferred candidates. See, e.g., FEC v. Mass.

Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259-65 (1986);

FEC v. Nat’l Conservative PAC (NCPAC), 470 U.S. 480, 501

(1985); Citizens Against Rent Control v. City of Berkeley, 454

U.S. 290, 296-99 (1981).

The concurrence further contends that we have not

received on-point briefing on the constitutional issue. We

again respectfully disagree. The briefs and oral argument

focused first and most extensively on the First Amendment

and McConnell – and debated the key question in this case:

For First Amendment purposes, are non-profits more like

individual citizens (who under Buckley have the right to spend

unlimited money to support their preferred candidates) or

more like political parties (which under McConnell do not)?

41

See Buckley v. Valeo, 424 U.S. 1, 44-51 (1976); see also

McConnell, 540 U.S. at 155-56. Moreover, Cal-Med was

cited and discussed often in the briefs and at oral argument.

See Tr. of Oral Arg. 17-18, 32-33; FEC Br. at 21, 27, 28, 34;

Amicus Br. at 21, 24; EMILY’s List Reply Br. at 11, 19-20.

Indeed, the FEC’s brief noted that Cal-Med was a case

“chiefly relied upon.” FEC Br. at iv. In short, the briefs and

oral argument focused on and grappled with the critical issues

posed by the First Amendment challenge.

The concurrence suggests, however, that our holding

goes further than the submission of EMILY’s List. But

EMILY’s List forcefully argued that these regulations

“violate the First Amendment of the United States

Constitution,” contended that McConnell and Cal-Med do not

support the FEC’s approach, and asked the Court to vacate the

new regulations in their entirety. EMILY’s List Br. at 19. In

deciding this case, we have set forth the relevant

constitutional principles as we discern them, and we then have

applied those principles to the challenged regulations. In so

doing, we have concluded that the regulations violate the First

Amendment; we therefore have vacated the regulations,

which is precisely the relief EMILY’s List sought in

advancing its First Amendment claims.

Second, apart from its substantive disagreement with our

First Amendment analysis, the concurrence states that we

should resolve this case on statutory grounds alone, and

claims that it is “gratuitous” for us to address the First

Amendment. We respectfully but firmly disagree.

The threshold problem with the concurrence’s preferred

statutory-only approach is that EMILY’s List raises a

statutory challenge to only three of the five provisions at issue

here. EMILY’s List does not advance a statutory challenge to

42

the provision in § 106.6(c) requiring that covered non-profits

use their federal or hard-money accounts to pay for at least

50% of their generic get-out-the-vote and voter registration

activities. Nor does EMILY’s List raise a statutory challenge

to the provision in § 106.6(c) requiring that covered non-

profits use hard money to pay for at least 50% of their generic

communications. Compare EMILY’s List Br. at 38-39

(discussing only administrative expenses provision of §

106.6(c) in statutory section of brief) with EMILY’s List Br.

at 32 (raising constitutional challenges to all provisions of §

106.6(c)). Indeed, footnote 11 of EMILY’s List’s brief all but

concedes that, under the statute, the FEC may require use of

hard money for these generic activities.

EMILY’s List’s decision not to target these two

provisions of § 106.6(c) on statutory grounds appears wise.

Such an argument would be very difficult to square with

McConnell’s several pointed statements that FECA permits

the FEC to treat generic activities as entirely federal for

purposes of contribution and expenditure limits. In fact,

McConnell harshly criticized the FEC for not having

previously treated political parties’ generic activities as

entirely federal activities subject to FECA’s limits. See

McConnell, 540 U.S. at 142 (by allowing generic activities to

be funded largely with soft money, FEC’s allocation regime

“subverted” original FECA scheme); id. at 167 (FECA

scheme “eroded” by FEC’s allocation regime); see also id. at

142 n.44.22

22

The concurrence finds “perplexing[]” our reading of

McConnell’s statutory discussion. Concurring Op. at 10. We think

it’s straightforward. McConnell said the statutory phrase “for the

purpose of influencing” federal elections covers generic activities.

McConnell, 540 U.S. at 167. That seems to foreclose any statutory

challenge to the new regulatory provisions applicable to generic

43

Under the circumstances, we have no choice but to

address EMILY’s List’s First Amendment argument. The

concurrence apparently wants us to address a statutory

argument that EMILY’s List did not raise and then to accept

that statutory claim even though we find it unpersuasive and

inconsistent with precedent. We respectfully decline the

concurrence’s proposal.23

activities. But that of course does not resolve EMILY’s List’s

constitutional challenge.

23

Even if EMILY’s List had put forward meritorious statutory

challenges to all of the regulatory provisions that it has challenged

under the First Amendment, we still would possess discretion to

rule in the alternative on both statutory and constitutional grounds.

The avoidance principle cited by the concurrence is prudential, not

jurisdictional. And it is not uncommon for lower courts to rule on

alternative statutory and constitutional grounds when appropriate.

See, e.g., United States v. Thomas, No. 07-3080, 2009 WL

2152429, *3-5 (D.C. Cir. July 21, 2009); Time Warner Entm’t Co.,

L.P. v. FCC, 240 F.3d 1126, 1128 (D.C. Cir. 2001); see generally

Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-

Retroactivity, and Constitutional Remedies, 104 HARV. L. REV.

1731, 1801 (1991) (“Simply as a routine matter, the Supreme

Court, in common with the lower federal courts, may choose to

discuss either or both of alternative grounds for reaching a

decision.”).

Given that the complaint in this case was filed four and a half

years ago, that the parties and the District Court overwhelmingly

focused their attention on the constitutional issue, that resolution of

the case only on statutory grounds would not alleviate the

continuing legal uncertainty, and that this is an area of law

demanding prompt and clear judicial decisionmaking, it would not

be an inappropriate exercise of judicial discretion for an

intermediate court to resolve this case on alternative constitutional

and statutory grounds.

44

***

The FEC rules challenged by EMILY’s List –

§§ 106.6(c), 106.6(f), and 100.57 – violate the First

Amendment. Sections 106.6(f) and 100.57 also exceed the

FEC’s authority under the Federal Election Campaign Act, as

does the provision of § 106.6(c) that applies to administrative

expenses. The FEC may not enforce §§ 106.6(c), 106.6(f), or

100.57. We reverse the judgment of the District Court and

direct it to enter judgment for EMILY’s List and to vacate the

challenged regulations.

So ordered.

In any event, we need not cross that discretionary bridge here

because, as we have explained, we must address the Constitution’s

application to non-profits’ election-related spending and

fundraising in order to resolve the appeal.

BROWN, Circuit Judge, concurring in part: “If there is

one doctrine more deeply rooted than any other in the process

of constitutional adjudication, it is that we ought not to pass

on questions of constitutionality . . . unless such adjudication

is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 105 (1944). “Thus, if a case can be decided on

either of two grounds, one involving a constitutional question,

the other a question of statutory construction or general law,

the Court will decide only the latter.” Ashwander v. TVA, 297

U.S. 288, 347 (1936) (Brandeis, J., concurring). Because

these regulations must be vacated as contrary to the statute,

we need not and should not reach the First Amendment issue.

But if we’re going to answer an unnecessary constitutional

question, we at least ought to get it right. In light of

McConnell v. FEC, 540 U.S. 93 (2003), I have grave doubts

about the court’s analysis, which bears at most a passing

resemblance to the parties’ briefs, and which will profoundly

affect campaign finance law in this circuit. I thus respectfully

concur only with Part IV of the court’s opinion, except for

footnotes 17, 18 and 20.

I.

A.

Though I do not join their First Amendment holding, I

agree with my colleagues’ conclusion that we must vacate the

regulations challenged here (the Multiple Candidate

Allocation Regulation, 11 C.F.R. § 106.6(f); the Solicitation

Regulation, 11 C.F.R. § 100.57; and the Administrative Costs

Allocation Regulation, 11 C.F.R. § 106.6(c)). I begin with

first principles. The Federal Election Commission (FEC) is

an agency within the Executive Branch. The Executive

Branch cannot make law, but instead executes laws enacted

by the Legislative Branch. In executing the law, the FEC may

issue “necessary” rules, 2 U.S.C. § 437d(a)(8), but, as with all

agencies, the FEC acts contrary to law if it promulgates

2

regulations “in excess of [its] statutory jurisdiction,” 5 U.S.C.

§ 706(2)(C). See also La. Pub. Serv. Comm’n v. FCC, 476

U.S. 355, 374 (1986) (“[A]n agency literally has no power to

act . . . unless and until Congress confers power upon it.”).

By the plain language of the Federal Election Campaign

Act (FECA), the FEC lacks the power it now asserts. To fall

within FEC jurisdiction, a “gift, subscription, loan, advance,

or deposit of money or anything of value” must be provided

to a political committee “for the purpose of influencing any

election for Federal office,” 2 U.S.C. § 431(8)(A)(i), and any

money expended by such a committee must also have been

done for that same purpose, id. § 431(9)(A)(i). There is no

other reasonable way to read Congress’s words. For the FEC

to have any role, money must be used for the “purpose”—

defined as an “objective, goal, or end,” BLACK’S LAW

DICTIONARY 1356 (9th ed. 2009)—of “influencing” an

“election for Federal office.” The inescapable corollary is the

FEC has no authority over money given or spent “solely for

the purpose of influencing state or local elections,” an activity

“unaffected by FECA’s requirements and prohibitions.”

McConnell, 540 U.S. at 122.

Here, the FEC has set aside Congress’s command that the

agency’s jurisdiction be bounded by the “purpose” for which

money is spent. Instead of strictly minding this jurisdictional

marker, the FEC conclusively presumes a federal purpose

drives any spending that might influence a federal election.1

The question though is not whether spending influences a

federal election, but whether it was spent for that reason.

1

See, e.g., Political Committee Status, Definition of Contribution,

and Allocation for Separate Segregated Funds and Nonconnected

Committees, 69 Fed. Reg. 68,056, 68,062 (Nov. 23, 2004) (Final

Rules) (“[R]eferences solely to a political party inherently influence

both Federal and non-Federal elections.”).

3

Otherwise, the word “purpose” becomes superfluous, a result

that this court cannot accept, e.g., Reiter v. Sonotone Corp.,

442 U.S. 330, 339 (1979), especially for a jurisdictional

provision like this one, see, e.g., N. Am. Van Lines, Inc. v.

NLRB, 869 F.2d 596, 598 (D.C. Cir. 1989). Under FECA,

federal effects are simply not enough.2

Nor does labeling spending that may affect both state and

federal elections as “mixed-purpose” somehow solve the

FEC’s problem. Regulating on the basis of such a label still

assumes there must be a federal purpose behind any spending

that might influence, even tangentially, a federal campaign.

Because that necessary assumption is false, these regulations

remain invalid. Only after a federal purpose—mixed or

otherwise—is identified does the FEC’s power come into

play. If a federal purpose can be shown, then allocation ratios

like those promulgated here may well be appropriate under

FECA, but just asserting that there must be a federal purpose

skips the threshold jurisdictional question.3

2

Cf. 42 U.S.C. § 1973c (under the Voting Rights Act, certain

jurisdictions cannot alter their voting procedures without showing

the change “neither has the purpose nor will have the effect of

denying or abridging the right to vote on account of race or color”

(emphasis added)).

3

It is also no defense to say that under Buckley v. Valeo, 424 U.S. 1

(1976), everything political committees do reflects federal

purposes. See EMILY’s List v. FEC, 569 F. Supp. 2d 18, 44

(D.D.C. 2008) (“EMILY’s List is undoubtedly correct that its status

as a political committee does not automatically give the FEC

authority to regulate its legitimately nonfederal election

activities.”). In Buckley, the Court explained “[e]xpenditures of . . .

‘political committees’ . . . can be assumed to fall within the core

area sought to be addressed by Congress.” 424 U.S. at 79. This

“assum[ption],” however, is rebutted when it is unreasonable to

posit a federal purpose. See Akins v. FEC, 101 F.3d 731, 742 (D.C.

4

B.

These regulations give short shrift to the “purpose” of

spending and so must be vacated. Indeed, we have already

rejected the FEC’s view. Just fours years ago, in Shays v.

FEC, we held FECA requires that “to qualify as ‘expenditure’

in the first place, spending must be undertaken ‘for the

purpose of influencing’ a federal election” and agreed with

the FEC that “time, place, and content may be critical indicia

of communicative purpose.” 414 F.3d 76, 99 (D.C. Cir.

2005). Though a federal

election-related intent is obvious . . . in statements

urging voters to “elect” or “defeat” a specified

candidate or party, the same may not be true of ads

identifying a federal politician but focusing on

pending legislation—a proposed budget, for example,

or government reform initiatives—and appearing three

years before the next election. Nor is such purpose

necessarily evident in statements referring, say, to a

Connecticut senator but running only in San Francisco

media markets.

Id.

Shays confirms what FECA says: context matters.

Referencing a federal candidate “may” reveal a federal

purpose, but if an ad will not be aired to her constituents or if

it will run “years before the next election,” then absent some

persuasive indicia of a federal purpose, a reference by itself to

Cir. 1996) (en banc) vac’d on other grounds 524 U.S. 1 (1998)

(Buckley only “creat[es] a presumption” of a federal purpose).

5

the candidate does not trigger FEC jurisdiction. This was the

FEC’s position in Shays, and it should be the FEC’s position

now. FECA’s unambiguous text requires no less.

Under the Multiple Candidate Allocation Regulation,

political committees must use hard money for “[p]ublic

communications that refer to one or more clearly identified

Federal candidates, regardless of whether there is reference to

a political party, but do not refer to any clearly identified non-

Federal candidates.” 11 C.F.R. § 106.6(f)(1). The rule is

categorical. Even if a communication only says “Vote No on

State Ballot Initiative 123—They Waste Enough Taxes in

Washington, D.C.,” merely referring (perhaps by means of a

montage of grainy black-and-white photos) to United States

Senators of both parties with a penchant for pork-barrel

spending, the ad is per se deemed to have a federal purpose.

This is true even if those big spenders hail from distant states,

are not up for reelection for years, and the spot will not be

shown anywhere near their voters. Whether such an ad could

affect a federal race is doubtful, but the FEC goes further and

says these ads always reflect a federal purpose. In an age

when even pizza shops and used-car dealers invoke the

stereotype of wasteful federal spending to sell their wares, the

FEC’s lack of sophistication is startling.

The FEC’s approach also ignores that a state campaign

may be more effective if the campaigning group can mention

a federal official’s endorsement. Many federal politicians are

of national stature, particularly those associated with hot

button political issues. If, for example, a referendum would

make it more difficult to get an abortion, a pro-choice group

may trumpet a statement denouncing it from a prominent pro-

choice United States senator, while a pro-life group may

respond with a statement from an equally prominent pro-life

senator. To say, as the FEC does, that citing these statements

6

can only be done for the purpose of influencing federal

elections is to pretend away the power of celebrity. Just as

Michael J. Fox’s name might be used in commercials for a

stem cell amendment because his association makes for

effective politics, see Alfonso Serrano, Stem Cell Opponents

To Air Celebrity Ad, CBSNEWS.COM, Oct. 25, 2006,

http://www.cbsnews.com/stories/2006/10/25/politics/main212

2383.shtml, an out-of-state and out-of-cycle Senator Debbie

Stabenow’s endorsement might be used to support state

candidates because her association makes for effective state

politics, particularly to targeted demographics.4

The Solicitation Regulation respects Congress’s language

no better. The regulation declares any donation “made by any

person in response to any communication is a contribution to

the person making the communication if the communication

indicates that any portion of the funds received will be used to

support or oppose the election of a clearly identified Federal

candidate.” 11 C.F.R. § 100.57(a). This rule applies even if a

solicitation’s banner headline says only a certain percentage

of the donation will be used for federal activities. Hence,

even if someone gives $1000 in response to a solicitation that

unambiguously says 90% of what is received will be spent on

local elections, the FEC asserts jurisdiction over the entire

gift. If a gift is made subject to this disclaimer, how is the full

$1000 given for the purpose of influencing a federal election?

The Solicitation Regulation also says “[i]f the solicitation

does not refer to any clearly identified non-Federal

4

“[R]eferring to Senator Stabenow might well inspire recipients

outside of her home state to contribute to her campaign, and thus

influence her federal election, or might otherwise raise her national

profile and ultimately influence her election,” EMILY’s List, 569 F.

Supp. 2d. at 48, but if such speculative brainstorming can satisfy

FECA’s “purpose” requirement, there is no “purpose” requirement.

7

candidates, but does refer to a political party, in addition to [a]

clearly identified Federal candidate,” then the entire gift

becomes subject to the FEC’s authority, id. § 100.57(b)(1),

and “[i]f the solicitation refers to one or more clearly

identified non-Federal candidates, in addition to [a] clearly

identified Federal candidate . . . , at least fifty percent (50%)

of the total funds received are contributions [subject to the

FEC], whether or not the solicitation refers to a political

party,” id. § 100.57(b)(2). Even if the solicitation is

unmistakable that the entire gift will be spent on local

elections, the FEC nonetheless still claims jurisdiction over at

least some of the resulting donations.

This blindingly-bright line suffers from the same flaw as

the Multiple Candidate Allocation Regulation: it assumes

merely referencing a federal candidate always unmasks a

purpose of influencing a federal election and assumes those

who give money in response to such a solicitation also

unfailingly do so for the same purpose. That’s just not true.

Instead, a federal politician’s name can be used for reasons

tied solely to state electioneering. Again, consider an out-of-

state and out-of-cycle Senator Stabenow. If she were to say

“EMILY’s List supported a Democrat like me when I was

running for state office, and I’m asking you to support

EMILY’s List now so it can continue to work on behalf of

women who are seeking state office,” then under the

Solicitation Regulation, the entire amount of any donations is

subject to the FEC.5 That result conflicts with Congress’s

“purpose” requirement.

5

My hypothetical is similar to one EMILY’s List posed to the FEC,

with the only material difference being the inclusion of a party

label. While the FEC said EMILY’s List’s solicitation was fine,

see FEC Advisory Op. 2005-13, at 5–6 (Oct. 20, 2005), it could not

have said the same for mine: including “Democrat”—an important

label in state politics too—causes the gift to be hard money.

8

Finally, the Administrative Costs Allocation Regulation is

contrary to law. Under 11 C.F.R. § 106.6(c), committees

must use “at least 50 percent Federal funds” for

“administrative expenses, costs of generic voter drives, and

costs of public communications that refer to any political

party.” An obvious problem is this rule applies in odd-

numbered years when there are no federal elections. If later

this November EMILY’s List were to say “vote a straight

Democratic ticket for the city counsel” in a broadcast in Walla

Walla, Washington, no less than half of the cost would have

to be expensed to a federal account, even though there is no

federal race to influence. The FEC is explicit: if a

communication mentions a political party, then context is

irrelevant. See FEC Advisory Op. 2005-13, at 4–5 (Oct. 20,

2005) (the duty to “pay the costs of public communications

that refer to a political party with at least 50 percent Federal

funds does not change based on the activities of [the

committee] in the particular State”).

Contrary to this regulation’s premise, moreover, certain

“administrative expenses” do not always reflect a federal

purpose, mixed or otherwise. A committee, for example, that

opposes human cloning (and thus supports many different

state and federal candidates and laws throughout the nation)

may launch an outpost in a state that is considering an anti-

cloning measure and organize a voter drive there,6 even

though the group has no intention of participating in any

federal election. By this regulation, a full half of the costs

6

A “generic voter drive” includes “any . . . activities that urge the

general public to . . . support candidates . . . associated with a

particular issue, without mentioning a specific candidate.” 11

C.F.R. § 106.6(b)(1)(iii) (emphasis added). Thus, if a committee

says “support candidates for the General Assembly who oppose

human cloning” in an odd-numbered year, hard money is required.

9

must be expensed to the committee’s federal account. In fact,

the FEC would require the committee to use hard money for a

leaflet that says “both Democrats and Republicans” endorse

the initiative. Such a leaflet is not “generic party advertising,”

McConnell, 540 U.S. at 123; it is an ad for a state ballot

initiative, not a political party, and it defies reason to say

otherwise.7 FECA does not require this absurdity.

The court says EMILY’s List has waived part of its

statutory claim. First, my colleagues concede EMILY’s List

has challenged every other subpart of these regulations, and

agree the FEC has exceeded its statutory powers, but say

because EMILY’s List only mentions “administrative

expenses” in one section of its brief, it waives its argument

about “costs of generic voter drives” and “costs of public

communications that refer to any political party.” 11 C.F.R.

§ 106.6(c). This is so even though the clauses are in the exact

same sentence of the exact same regulation, and even though

they violate the exact same section of FECA for the exact

same reason. This is perplexing. EMILY’s List

comprehensively says “[n]or are the regulations permitted by

FECA. FECA was passed to regulate contributions and

expenditures made with ‘the purpose of influencing any

election for Federal office.’” EMILY’s List Br. at 17

(emphasis added). And if there is any doubt, EMILY’s List

7

“Generic party advertising” is not in the United States Code or the

Code of Federal Regulations. It was used by the McConnell district

court to mean, naturally, ads that support a party. See 251 F. Supp.

2d 176, 199 (D.D.C. 2003) (per curiam) (“[N]ational parties

expended $14 million in nonfederal funds for ‘generic’ party

advertising, consisting predominantly of television advertisements

that did not mention candidates names, but urged viewers to simply

vote for a particular party or stressed themes from the presidential

campaigns.”); id. at 654 (separate opinion of Kollar-Kotelly, J.)

(“generic party advertising (that is, ‘Vote Republican!’)”).

10

opens its reply brief by saying “[t]he regulations at issue in

this case violate the First Amendment, Chevron[], and the

Administrative Procedure Act.” EMILY’s List Reply Br. at 1

(emphasis added). EMILY’s List also contends § 106.6(c)

requires using hard money for ads that state “both Democrats

and Republicans” support a measure. Id. at 16. It goes

without saying that EMILY’s List never argues “the

regulations all violate FECA, except for the second and third

clauses in the second sentence of 11 C.F.R. § 106.6(c).”8

Second and even more perplexingly, in order to buttress

its waiver argument, the same judges that read McConnell

narrowly as a case that “views political parties as different in

kind than independent expenditure committees,” Maj. Op. at

22, concludes EMILY’s List could not have successfully

challenged § 106.6(c)’s regulation of generic activities on

statutory grounds because McConnell specifically approved

regulation of contribution and expenditure limits for these

funds. Id. at 41–42. If this were correct, it would mean the

FEC can constitutionally regulate a committee like EMILY’s

List, and the court’s constitutional analysis is critically

undermined.

8

Even if we assume EMILY’s List has inadequately raised this

issue, waiver is a prudential doctrine—not jurisdictional. E.g.,

Mitchell v. Fishbein, 377 F.3d 157, 164–65 (2d Cir. 2004). And

though my colleagues are mistaken on waiver, if they were truly

concerned about this, we could order additional briefing. E.g., U.S.

Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444–48

(1993) (holding the D.C. Circuit did not err in ordering

supplemental briefing on a subject not raised because “when an

issue or claim is properly before the court, the court is not limited to

the particular legal theories advanced by the parties, but rather

retains the independent power to identify and apply the proper

construction of governing law”).

11

C.

No one disputes the FEC can craft bright-line rules. An

“objective test,” Orloski v. FEC, 795 F.2d 156, 162 (D.C. Cir.

1986), in fact, may be constitutionally required, see FEC v.

Wis. Right to Life, Inc., 551 U.S. 449, 467–69 (2007) (opinion

of Roberts, C.J.). Communications calling for the election or

defeat of federal candidates certainly fall within the agency’s

authority, and the FEC may have a bit more leeway to

regulate ads directed at federal electorates or aired during

federal elections. Shays, 414 F.3d at 99. FECA’s

unambiguous text, however, forbids the Commission from

doing what it has done here: promulgating proxies for

“purpose” that wholly ignore all relevant contextual clues.

The regulations consequently must be vacated as contrary to

congressional will.

II.

A.

Because this case can be decided on statutory grounds,

we need not reach the constitutional question, and so should

not reach the constitutional question. Our precedent is not

wishy-washy: “Federal courts should not decide constitutional

questions unless it is necessary to do so. Before reaching a

constitutional question, a federal court should therefore

consider whether there is a nonconstitutional ground for

deciding the case, and if there is, dispose of the case on that

ground.” Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000).

See also Meredith Corp. v. FCC, 809 F.2d 863, 870 (D.C. Cir.

1987); United States v. Thomas, 572 F.3d 945, 952 (D.C. Cir.

2009) (Ginsburg, J., concurring in part). My colleagues duck

this rule, preferring to summon the awesome power of

12

Marbury v. Madison. But in their eagerness to play John

Marshall, they do not follow him. The Great Chief Justice

himself cautioned: “No questions can be brought before a

judicial tribunal of greater delicacy than those which involve

the constitutionality of a legislative act. If they become

indispensably necessary to the case, the court must meet and

decide them,” but if not, “a just respect for the legislature

requires, that the obligation of its laws should not be

unnecessarily and wantonly assailed.” Ex parte Randolph, 20

F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).

The reasons to be “keenly mindful of our institutional

role” and “fully appreciate” the solemnity of constitutional

adjudication are obvious. Nw. Austin Mun. Util. Dist. No.

One v. Holder, 129 S. Ct. 2504, 2513 (2009). Meekness, for

one, compels us to recognize we are not the Constitution’s

only friend—each branch swears an oath to uphold it. See

U.S. CONST. art. II, § 1, cl. 8; Rostker v. Goldberg, 453 U.S.

57, 64 (1981). And if we misread a statute, Congress can fix

it; not so with the Constitution.

The court, however, is not content just answering a

gratuitous constitutional question. Its holding is broader than

even the plaintiff requests. Instead of arguing nonprofits have

a constitutional right to pay for ads attacking federal

candidates with soft money, EMILY’s List more modestly

challenges the regulations as the “functional equivalent of

spending limits, prohibiting EMILY’s List from supporting

state and local candidates in certain ways when its federal

funds are exhausted” and claims they are not properly tailored

because they “restrict vast amounts of nonfederal activity.”

EMILY’s List Br. at 17 (summary of argument) (emphasis

added). The court holds, nonetheless, that EMILY’s List is

constitutionally entitled to pay 100% of the costs of its

13

advertisements out of a soft-money account, even for ads that

attack or promote federal candidates. Maj. Op. at 28–29.9

Because EMILY’s List’s actual claims are not bold

enough, the court sua sponte spins a more aggressive

argument—making its waiver charge all the more curious.

Nowhere does any party refer to Justice Blackmun’s separate

opinion in California Medical Association v. FEC, 453 U.S.

182 (1981) (“Cal-Med”). Nor does EMILY’s List mention

FEC v. National Conservative PAC, 470 U.S. 480 (1985)

(“NCPAC”), FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986) (“MCFL”), or North Carolina Right to Life,

Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008)—in other words,

the cases upon which the court’s holding depends, see, e.g.,

Maj. Op. at 11–16, 22–23, 26.10 None of the law review

9

Consistent with its briefing, during oral argument counsel for

EMILY’s List was more circumspect than the court is today:

The Court: Would your position preclude say regulation

of get out the vote drives, or voter

registration, or that sort of thing? Do you

think that would be beyond the FEC’s

purview?

EMILY’s List: No, Your Honor, we don’t take that position,

we take the position that reasonable

regulations to account for the federal election

related impact of that activity are

permissible.

Tr. of Oral Arg. at 9. Cf. Maj. Op. at 27 (“[N]on-profits are

constitutionally entitled to pay 100% of the costs of such voter

drive activities out of their soft-money accounts.”).

10

In fact, EMILY’s List does not mention Cal-Med until its reply

brief, and neither party cites Cal-Med for a proposition integral to

14

articles the court relies on are cited—much less discussed—

either.11 And far from hashing out McConnell’s “footnote

48,” id. at 23 n.13, neither party mentions it. The court today

issues an expansive constitutional decision without the benefit

of on-point briefing. Before deciding a complicated First

Amendment issue, we ought to ask for the parties’ views.

In attempting to connect its decision to the parties’ views,

the court artfully re-imagines the “key question in this case,”

describing it as whether “non-profits [are] more like

individual citizens (who under Buckley have the right to spend

unlimited money . . . ) or more like political parties (which

under McConnell do not).” Maj. Op. at 40. The court notes

“Cal-Med was cited and discussed often in the briefs and at

oral argument.” Id. at 41. Cal-Med was cited and discussed

by the parties, but never to support the proposition for which

the court now relies on it. For instance, when asked by the

court to respond to the FEC’s reliance on Cal-Med, counsel

the court’s holding. EMILY’s List does cite, once, as a “see also,”

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290

(1981), but for a background principle. EMILY’s List Br. at 23–24.

The FEC cites MCFL in a footnote for an immaterial point, FEC

Br. at 23 n.17, but does not mention NCPAC, Citizens Against Rent

Control, or North Carolina Right to Life.

11

Many of the articles do not support the court, and not one

squarely does. E.g., Edward B. Foley, The “Major Purpose” Test:

Distinguishing Between Election-Focused and Issue-Focused

Groups, 31 N. KY. L. REV. 341, 344 (2004) (“[I]n my judgment

contributions to political committees should be classified under the

First Amendment with contributions to political parties . . . .”);

Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. PA.

L. REV. 31, 72 (2004) (explaining that because of the “considerable

deference” it displayed, “[l]ower courts showing fidelity to

McConnell will have a difficult time striking down most campaign

finance regulation”).

15

for EMILY’s List offered this succinct critique of the court’s

holding:

The Court: Can you deal with [FEC’s counsel’s]

response on [Cal-Med]?

EMILY’s List: Yes. I mean, Cal[-]Med is

mysteriously produced here for the

FEC’s position. Cal[-]Med didn’t

raise any of the issues in this case.

Cal[-]Med was a simple question of

whether a committee that was

making contributions to federal

candidates had to observe a limit on

contributions made to that federal

program. That set a law now, that’s

certainly what EMILY’s List does. I

don’t think it bears at all on this

invasion of our state and local

programs through the promulgation

of these excessive federal regulatory

schemes.

Tr. of Oral Arg. at 32–33. How true.

But even if it were judicially proper for me to do so, and

even if the issues were briefed, I doubt I could join the court’s

opinion in full. This is not because I dislike its outcome.

Indeed, I agree with what seems to be the unstated premise: if

the Supreme Court’s cases made any sense, the First

Amendment would protect much more than pornography,

profanity, and pyrotechnics. See United States v. Playboy

Entm’t Group, Inc., 529 U.S. 803 (2000); Cohen v.

California, 403 U.S. 15 (1971); Texas v. Johnson, 491 U.S.

397 (1989). The amendment’s “purpose,” after all, is “to

16

preserve an uninhibited marketplace of ideas in which truth

will ultimately prevail,” FCC v. League of Women Voters,

468 U.S. 364, 377 (1984)—a principle that “has its fullest and

most urgent application to speech uttered during a campaign

for political office,” Eu v. S.F. County Democratic Cent.

Comm., 489 U.S. 214, 223 (1989). If those beautifully fierce

words “Congress shall make no law” are to do anything but

condemn our constitutionalism as a failed experiment, then at

least political speech in all its forms should be free of

government constraint.

My colleagues’ distaste for the FEC’s handiwork is to

their credit. It shows they take the First Amendment

seriously. And they are right, of course, that if constitutional

law were better acquainted with the Constitution, regulations

such as these would never survive Article III scrutiny. If an

advertisement criticizes the President of the United States, the

Speaker of the House of Representatives, or the Chair of the

Senate Committee on Foreign Relations, it can be a felony

punishable by up to five years in prison to pay for that ad

using money the federal government doesn’t know about or

that comes from sources the federal government deems to

have already given enough. See 2 U.S.C. § 437g(d). The

First Amendment, logically construed, cannot condone such a

weighty burden on political speech at the same time it forbids

penalizing the production of “virtual child pornography,”

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).

I also agree with the court that “corruption” should only

be understood in terms of quid pro quo—not a free-floating

unease about money in politics. Once “corruption” is

disconnected from “pay to play,” Congress has carte blanche

to stifle speech, a license that is particularly pernicious as our

overweening government ever enlarges itself. Power—

government power—is what generates passion in politics.

17

Money only measures its depth. The more power is at stake,

the more money will be used to shield, deflect, or co-opt it.

So long as the government can take and redistribute a man’s

livelihood, there will always be money in politics. One man’s

corruption is another man’s political accountability.

But there is a rub. We sit on a lower court and “must

follow the binding Supreme Court precedent” until the Court

itself overrules it. We the People Found., Inc. v. United

States, 485 F.3d 140, 144 (D.C. Cir. 2007). Though we do

not read the court above’s precedent unduly expansively, we

also do not drag our feet: “it is not our role to fight a rear-

guard action” against the logical implications of the Court’s

cases. United States v. Gardellini, 545 F.3d 1089, 1096 (D.C.

Cir. 2008). Instead, we take its holdings as we find them,

applying them to cover all they fairly address. Stare decisis

means nothing if we only are bound by those cases with

which we already agree. Like it or not, we cannot ignore

Supreme Court precedent.

Modesty is dictated by the difficulty of applying

McConnell’s facial generalizations to real world events. It is

hard to say exactly how contribution limits on hybrid

committees, like EMILY’s List, should be analyzed after

McConnell. McConnell involved a wide-ranging facial

challenge addressing the constitutionality of BCRA. Trying

to extrapolate from that case to this one is risky and reason

enough to avoid the constitutional bog. Suffice it to say that

the Supreme Court majority, the dissenters, and the

commentators all have read McConnell as a maximalist

opinion. See 540 U.S. at 192–93 (“[O]ur decisions in Buckley

and MCFL were specific to the statutory language before us;

they in no way drew a constitutional boundary that forever

fixed the permissible scope of provisions regulating

campaign-related speech.”); id. at 263 (Scalia, J., dissenting)

18

(“We have witnessed merely the second scene of Act I of

what promises to be a lengthy tragedy.”); id. at 264 (Thomas,

J., dissenting) (“[T]he Court today upholds what can only be

described as the most significant abridgment of the freedoms

of speech and association since the Civil War.”); id. at 294

(Kennedy, J., dissenting) (“This new definition of corruption

sweeps away all protections for speech that lie in its path.”);

id. at 357 (Rehnquist, C.J., dissenting) (“Today’s decision, by

not requiring tailored restrictions, has significantly reduced

the protection for political speech having little or nothing to

do with corruption or the appearance of corruption.”); see also

Richard Briffault, The 527 Problem . . . and the Buckley

Problem, 73 GEO. WASH. L. REV. 949, 970 (2005)

(“McConnell, however, transformed the constitutional

landscape.”).

In both holding and discussion, the McConnell Court

sided with the censor, going so far as to rely on theoretical

anticipation to uphold a speech restriction, see 540 U.S. at

185 (upholding BCRA § 323(f), which forbids state and local

officeholders and candidates from using soft money to

support or attack federal candidates, based on the “eminently

reasonable prediction that . . . state and local candidates and

officeholders will become the next conduits for the soft-

money funding of sham issue advertising”), and ending with

an invitation for even more congressional action, id. at 224

(“We are under no illusion that BCRA will be the last

congressional statement on the matter.”). This is not the

modus operandi of a tentative tribunal; the Court knew what it

was doing, and said so. After McConnell, if these regulations

are within the FEC’s statutory power, then there is no obvious

reason they facially violate the First Amendment.12

12

This a facial challenge. For such claims, “exercising judicial

restraint . . . frees the Court not only from unnecessary

19

It is true McConnell upheld, against an equal protection

challenge, a provision of BCRA regulating political parties.

But regulation of political parties is not McConnell’s theme.

The Court broadly recognized and deferred to governmental

interests in preventing corruption, the appearance of

corruption, and circumvention of election regulations.

McConnell, 540 U.S. at 136–37, 143–45, 152–53. Arguably,

this expansive corruption/circumvention/conduit rationale is

broad enough to encompass some limits on independent

expenditure committees, particularly for those political

committees with a self-proclaimed electoral mission. See

Briffault, 73 GEO. WASH. L. REV. at 986–87; Hasen, 153 U.

PA. L. REV. at 67–68. EMILY’s List is a multicandidate

political committee that has as its primary purpose electing

ideologically compatible candidates, EMILY’s List Br. at 3. 13

pronouncement on constitutional issues, but also from premature

interpretations of statutes in areas where their constitutional

application might be cloudy.” Wash. State Grange v. Wash. State

Republican Party, 128 S. Ct. 1184, 1190–91 (2008). As a rule, a

law is facially repugnant only if it “is unconstitutional in all of its

applications,” but there is a narrow First Amendment exception

where “a law may be overturned [if] a substantial number of its

applications are unconstitutional, judged in relation to the statute’s

plainly legitimate sweep,” id. at 1191 n.6. Those seeking this

“strong medicine,” id., however, face a “heavy burden,”

McConnell, 540 U.S. at 207.

13

In defining its mission, EMILY’s List explains that it “is

committed to a three-pronged strategy to elect pro-choice

Democratic women: recruiting and funding viable women

candidates; helping them build and run effective campaign

organizations; and mobilizing women voters to help elect

progressive candidates across the nation.” EMILY’s List, Our

Mission, http://emilyslist.org/about/mission/ (last visited Aug. 28,

2009).

20

As such, it supports Democratic candidates for federal office.

See Matthew B. Stannard, Cash is Key for Tauscher’s

Replacement, S.F. CHRON., Aug. 24, 2009, at A1, available at

2009 WLNR 16474721 (noting that a candidate in a federal

primary race “has touted the endorsement of EMILY’s List, a

national fundraising organization that supported [former U.S.

Representative Ellen Tauscher] and backs Democratic women

who support abortion rights.”). Thus, EMILY’s List is much

more like a political party than the Sierra Club or the Society

for the Prevention of Cruelty to Animals.

Whether, under the high court’s current precedents,

EMILY’s List could be regulated exactly like a political party

is unknown. That it should not be regulated more harshly

than a political party seems to be the committee’s complaint

with the FEC regulations challenged in this court. EMILY’s

List Br. at 39 (“Bizarrely, [the regulation] also treats nonparty

PACs more harshly than any other type of committee, save

national parties and candidates themselves.”). My point is not

that McConnell mandates such treatment; only that nothing in

the opinion’s logic clearly precludes it. The court does not

think this is “a persuasive interpretation of McConnell.” Maj.

Op. at 38. Perhaps the court is right. But reading the case, as

the court does, to sanction First Amendment immunity for all

non-connected nonprofits seems even more implausible.

B.

Precedent holds allocation and solicitation rules are

contribution limits. This is key, as such limits receive less

than “strict scrutiny,” given they “‘entail only a marginal

restriction upon the contributor’s ability to engage in free

communication.’” McConnell, 540 U.S. at 134–35 (quoting

Buckley, 424 U.S. at 20)). The “‘overall effect’ of dollar

limits on contributions is [also] ‘merely to require candidates

21

and political committees to raise funds from a greater number

of persons.’” Id. at 136 (quoting Buckley, 424 U.S. at 21–22).

Unlike strict scrutiny, which requires narrow tailoring to serve

compelling governmental interests, a contribution limit is

“valid [if] it satisfies the lesser demand of being closely

drawn to match a sufficiently important interest.” Id.

After McConnell, allocation and solicitation rules are

subject only to this lesser scrutiny. Facing BCRA § 323(a),

which forbids national parties from soliciting and spending

soft money, and § 323(b), which forbids state parties from

spending soft money on “federal election activities,” the

Court declined to apply strict scrutiny. 540 U.S. at 138–39.

The Court held “neither provision in any way limits the total

amount of money parties can spend. Rather, they simply limit

the source and individual amount of donations. That they do

so by prohibiting the spending of soft money does not render

them expenditure limitations.” Id. at 139. We instead ask

“whether the mechanism adopted to implement the

contribution limit, or to prevent circumvention of that limit,

burdens speech in a way that a direct restriction on the

contribution itself would not.” Id. at 138–39. Using the

Court’s standard, I agree with the district court that while the

FEC’s regulations “may affect the manner in which EMILY’s

List must fund the speech in which it chooses to engage, they

do not in any way limit the political speech that EMILY’s List

may undertake.” EMILY’s List, 569 F. Supp. 2d at 39.

The issue we confront then is whether these regulations,

facially, are closely drawn to match an important interest. To

answer, we again ought to look to McConnell. In upholding

BCRA § 323, the Court noted the “interests that underlie

contribution limits—interests in preventing both the actual

corruption threatened by large financial contributions and the

eroding of public confidence in the electoral process through

22

the appearance of corruption.” McConnell, 540 U.S. at 136.

The Court bluntly held these interests are “not limited . . . to

the elimination of cash-for-vote exchanges,” but “extend to

the broader threat from politicians too compliant with the

wishes of large contributors.” Id. at 143. Congress must be

able to “address [these] more subtle but equally dispiriting

forms of corruption” by “remov[ing] the temptation” of “large

financial contributions.” Id. at 153. To combat “cynical

assumption[s],” Congress can “regulate the appearance of

undue influence,” with “undue influence” defined as “a sense

of obligation” or “grat[itude],” id. at 144–45. Importantly,

Congress also has an interest in preventing the circumvention

of these limits—and so can use broad prophylaxes—because

“candidates, donors, and parties test the limits of the current

law.” Id. at 144. In sum, McConnell defines the “interest” so

broadly it is hard to imagine regulations that are not properly

drawn to it. See id. at 356–57 (Rehnquist, C.J., dissenting).

Following from such an encompassing statement of the

interest, the McConnell Court facially upheld many onerous

restrictions on the use of soft money. The Court emphasized,

for example, that even a complete ban on soliciting nonfederal

funds would still “leave open ample opportunities for

soliciting federal funds,” and noted such restrictions “increase

the dissemination of information by forcing parties,

candidates, and officeholders to solicit from a wider array of

potential donors.” Id. at 139–40. The Court also upheld a

ban on any use of soft money by national parties, even for

those “minor parties” that are unlikely to have any tangible

electoral success, remarking only that “a nascent or struggling

minor party can bring an as-applied challenge if § 323(a)

prevents it from amassing the resources necessary for

effective advocacy.” Id. at 159. While national parties do not

always act on behalf of or in concert with federal candidates,

a prophylactic prohibition on any soft money spending and

23

soliciting by them is facially valid, given the “close

connection and alignment of interests” between national

parties and federal candidates. Id. at 155.

The Court’s discussion of national parties by itself raises

difficulties for the court, especially because the Court already

seemingly has held there is a “close connection and alignment

of interests” between committees like EMILY’s List and

federal candidates. In Cal-Med, the Court sustained

contribution limits to multicandidate committees. Four

justices adopted the Conference Report’s conclusion that

these committees may “‘appear to be separate entities

pursuing their own ends, but are actually a means for

advancing a candidate’s campaign,’” 453 U.S. at 199 n.18

(plurality opinion) (quoting H.R. Conf. Rep. No. 94-1057, pp.

57–58 (1976)). Justice Blackmun penned a concurring

opinion, but did not disclaim the Conference Report or

disagree with the Court’s ultimate holding. In fact, he

expressly said “contributions to multicandidate committees

may be limited to $5,000 per year as a means of preventing

evasion [of contribution limits],” though he noted in dicta that

his conclusion would be different if the committee “makes

only independent expenditures” and so does not “pose a

perceived threat of actual or potential corruption.” Id. at 203

(opinion of Blackmun, J.) (emphasis added). If Congress can

forbid all allocation and solicitation of soft money by national

parties, how is it unconstitutional to forbid only some

allocation and solicitation of soft money by multicandidate

committees that are also closely aligned with federal

candidates?

The court disputes this reading of Cal-Med, claiming

there are not just two types of political committees (ones that

only make independent expenditures, and all others), but

actually three: (1) those that only make independent

24

expenditures; (2) those that only contribute to candidates; and

(3) those that make independent expenditures and contribute

to candidates. Such political committees are, in the court’s

view, entitled to raise and spend “unlimited money” for

advertisements, get-out-the-vote efforts, and voter registration

drives. Maj. Op. at 26. If these hybrid committees contribute

to federal candidates, they must use hard money, says the

court, but all other spending can be with soft money.

This novel argument is not without considerable charm,

but one must read Cal-Med with a squint to see that holding.14

There is no indication in Cal-Med that the committee did not

make independent expenditures, but the Court still sustained

the statute, without announcing the distinction the court draws

today. The Court has consistently cited Cal-Med for the

unqualified proposition that it is constitutional to limit

contributions to multicandidate committees. See, e.g., FEC v.

14

The court relies heavily on Justice Blackmun’s concurring

opinion in Cal-Med, arguing that it is controlling. But the opinion

is controlling, if at all, only for “points that can be said to be fairly

subsumed within the reasoning of the plurality.” John C. Eastman,

Strictly Scrutinizing Campaign Finance Restrictions (and the

Courts that Judge Them), 50 CATH. U. L. REV. 13, 37 (2000); see

Marks v. United States, 430 U.S. 188, 193 (1977). This circuit has

clarified it is only the narrowest opinion’s overlap with the broader

opinion that counts. “Marks is workable—one opinion can be

meaningfully regarded as ‘narrower’ than another—only when one

opinion is a logical subset of other, broader opinions. In essence,

the narrowest opinion must represent a common denominator of the

Court’s reasoning; it must embody a position implicitly approved

by at least five Justices who support the judgment.” King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). Presumably

then, the controlling part of Justice Blackmun’s opinion is the

holding that the FEC may constitutionally regulate contributions to

fund independent political expenditures without contravening the

First Amendment—no more and no less.

25

Colorado Republican Fed. Campaign Comm., 533 U.S. 431,

441–42 (2001); FEC v. NRA Political Victory Fund, 513 U.S.

88, 97 (1994). See also Buckley, 424 U.S. at 38.

The infamous “footnote 48 of the McConnell opinion,”

Maj. Op. at 23 n.13, also flatly contradicts the court:

Justice KENNEDY’s contention that Buckley limits

Congress to regulating contributions to a candidate

ignores Buckley itself. There, we upheld FECA’s

$25,000 limit on aggregate yearly contributions to

candidates, political committees, and party committees

out of recognition that FECA’s $1,000 limit on

candidate contributions would be meaningless if

individuals could instead make “huge contributions to

the candidate’s political party.” Likewise, in [Cal-

Med], we upheld FECA’s $5,000 limit on

contributions to multicandidate political committees.

It is no answer to say that such limits were justified as

a means of preventing individuals from using parties

and political committees as pass-throughs to

circumvent FECA’s $1,000 limit on individual

contributions to candidates. Given FECA’s definition

of “contribution,” the $5,000 and $25,000 limits

restricted not only the source and amount of funds

available to parties and political committees to make

candidate contributions, but also the source and

amount of funds available to engage in express

advocacy and numerous other noncoordinated

expenditures. If indeed the First Amendment

prohibited Congress from regulating contributions to

fund the latter, the otherwise-easy-to-remedy

exploitation of parties as pass-throughs (e.g., a strict

limit on donations that could be used to fund candidate

26

contributions) would have provided insufficient

justification for such overbroad legislation.

McConnell, 540 U.S. at 152 n.48.

That the Court may have created a doctrinal anomaly

might suggest, as the court argues, see Maj. Op. at 23 n.13,

that it could not possibly have meant what it said, but that is a

hard argument to make. Often cases are in tension as doctrine

works itself pure. Our duty as an intermediate court is not to

tell the Court what it ought to have said, but to abide by what

it did say.

But even leaving aside its treatment of national parties,

McConnell further undermines the court. Recognizing the

dynamic—indeed, Sisyphean—character of campaign finance

law, the Court noted “[m]oney, like water, will always find an

outlet.” 540 U.S. at 224. Upon realizing structural forces

inherent in a republic inevitably create incentives for those

subject to regulation to petition for relief and to campaign

against those who are disinclined to grant it, the Court did not

retreat to a more manageable and less burdensome “quid pro

quo” standard. Id. at 296 (Kennedy, J., dissenting). Instead,

after upholding § 323(a), the Court emphasized money would

now “corrupt” federal races by other, more subtle routes, so

Congress, in anticipation of this new corruption, can enact

broad anti-circumvention measures. E.g., id. at 165–66.

Indeed, without pointing to any evidence that local officials

(e.g., county assessors) are connected to federal candidates

(e.g., for President of the United States) or have been used to

circumvent the law, the Court held Congress prophylactically

can regulate them without facially offending the Constitution.

See id. at 184–85. If the First Amendment is flexible enough

to allow regulating local officials because contributions might

flow through them to federal candidates, then why can’t the

27

FEC also make an “eminently reasonable prediction” that

committees like EMILY’s List—which actually do campaign

for candidates and give them money15—will be the next route

for corruption, and regulate accordingly? Id. at 185.

The court sidesteps McConnell by saying EMILY’s List

is a nonprofit, not a political party, and so has more

constitutional rights.16 But EMILY’s List is not just a

nonprofit; it is a multicandidate political committee that

campaigns for and contributes money to federal candidates.

In upholding § 323 in full, including § 323(f), McConnell

blessed restrictions on local officeholders, who are not, of

course, political parties. The rule then cannot be that parties

and federal candidates are in one column, and everyone else is

in another, because that does not explain McConnell. Instead,

there is a spectrum, N.C. Right to Life, 525 F.3d at 291, so we

should ask not whether an entity is a nonprofit, but instead

where it falls on the spectrum. Specifically, is EMILY’s List

more or less likely than a local official to act as a conduit to

federal candidates? “Common sense” says such committees

15

Britt Cocanour, EMILY’s List Chief of Staff, avowed her

committee “has helped to elect sixty-eight Democratic women to

Congress, thirteen to the U.S. Senate, eight to governorships, and

over 350 to other state and local offices.” Joint Appendix at 70.

16

The court suggests McConnell guarantees “‘interest groups’” the

right “‘to raise soft money to fund voter registration, GOTV

activities, mailings,’ and advertising.” Maj. Op. at 22 (quoting 540

U.S. at 187). But McConnell only notes BCRA can treat interest

groups differently than parties without violating Due Process. See

540 U.S. at 188. There is a difference between noting Congress has

not regulated and holding Congress cannot regulate. See N.C. Right

to Life, 525 F.3d at 333–34 (Michael, J., dissenting) (discussing

McConnell’s reference to “interest groups”).

28

are the more natural path to “corruption,” McConnell, 540

U.S. at 297 (Kennedy, J., dissenting), but if my colleagues are

correct, Congress cannot regulate them the same way it

regulates county directors of animal control.17 Precedent is

plain: local officials must use hard money to attack federal

candidates, see id. at 184–85, but as the court now resolves

this case, multicandidate political committees cannot be so

limited. Can that be right?

The court’s opinion is boldly creative, and will, if

followed, have profound results on campaign finance

regulation. This case means:

1. Multicandidate political committees can spend

unlimited amounts of soft money to run ads attacking

or supporting federal candidates and political parties.

2. These committees can spend unlimited amounts of

soft money on get-out-the-vote activities that support

federal candidates and political parties.

3. These committees can solicit soft money by saying:

“Just like you, we want [federal candidate] to win.

You have already donated all the law allows to

[federal candidate], but there is no limit on how much

you can give to us to support [federal candidate].”

4. Congress can do nothing about any of this.

These results are in tension—perhaps irreconcilable tension—

with McConnell.

17

Though these regulations go further than BCRA § 323(f), by the

court’s opinion, it would not matter if they were exactly the same:

nonprofits are categorically distinct. See Maj. Op. at 22.

29

C.

Recall how the Court in McConnell concluded its opinion:

“‘To say that Congress is without power to pass appropriate

legislation to safeguard an election from the improper use of

money to influence the result is to deny the nation in a vital

particular the power of self protection.’” 540 U.S. at 223–24

(quoting Burroughs v. United States, 290 U.S. 534, 545

(1934)). This “conviction” compelled the Court to uphold

“Congress’s most recent effort to confine the ill effects of

aggregated wealth on our political system” by

“control[ing]. . . soft money.” Id. at 224. But the Court was

“under no illusion that BCRA will be the last congressional

statement on the matter”—“[m]oney, like water, will always

find an outlet.” Id.

While I have argued courts should not unnecessarily assail

legislative acts, political speech is the core of what the First

Amendment protects. From Buckley to McConnell the Court

has relied on an ad hoc empiricism ill-suited to the complex

interactions of democratic politics. The government has

unlimited resources, public and private, for touting its policy

agenda. Those on the outside—whether voices of opposition,

encouragement, or innovation—must rely on private wealth to

make their voices heard. An increasingly anomalous

campaign finance jurisprudence only impoverishes this

essential debate. McConnell’s careless invocation of access

and influence (two integral aspects of political participation)

as synonyms for corruption is instructive. Such an expansive,

self-referential, and amorphous definition of corruption,

coupled with lax standards of scrutiny and a willingness to

accept as “evidence” any plausible theory of corruption or

claim of circumvention, is likely to doom any argument for

protection of core political speech. Someday the Supreme

30

Court may be persuaded to reconsider this approach. But that

cannot be our task.

***

This should have been a straightforward application of

administrative law, not unlike countless agency cases decided

by this circuit every year. Congress has enacted a statute; the

agency has violated it; the rules must be vacated; done. I

would enforce the statute as written and call it a day. A good

rule of thumb is we often do more for the law when we do

less with the law. Per that rule, I concur only in part with the

court’s opinion.