UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 

Plaintiff EMILY's List, through undersigned counsel, respectfully moves this Court 

for a summary judgment pursuant to Fed. R. Civ. P. 56 holding unlawful and setting aside 

Title 11 C.F.R. §§ 100.57 and 106.6 as "arbitrary, capricious, an abuse of discretion, [and] 

otherwise not in accordance with law"; "in excess of 'the Commission's] statutory 

jurisdiction, authority, [and] limitations"; as having been promulgated "without observance 

of procedure required by law"; and as violating the First Amendment to the United States 

Constitution.

A memorandum of points and authorities, Plaintiff's Statement of Material Facts as to 

Which There Is No Genuine Dispute, and a Proposed Order are submitted herewith. 

Plaintiff requests oral argument on this motion. 

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Respectfully submitted, 

Dated May 16, 2005 _____________/s/________________

Robert F. Bauer (D.C. Bar No. 938902) 

Ezra W. Reese (D.C. Bar No. 487760) 

PERKINS COIE LLP 

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011 

(202) 628-6600 

Attorneys for EMILY's List 

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Case 1:05-cv-00049-CKK Document 20 Filed 05/16/2005 Page 2 of 48
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 

Robert F. Bauer (D.C. Bar No. 938902) 

Ezra W. Reese (D.C. Bar No. 487760) 

Perkins Coie LLP 

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011 

(202) 628-6600 

Attorneys for EMILY's List 

[13376-0007-000000/DA051290.046] 5/16/05

Case 1:05-cv-00049-CKK Document 20 Filed 05/16/2005 Page 3 of 48
CONTENTS

I. INTRODUCTION................................................................................................... 1 

II. STATEMENT OF FACTS...................................................................................... 4 

A. Description of EMILY's List....................................................................... 4 

B. "Allocation" under the Former Regulatory Scheme.................................... 5 

C. Federal Election Commission Solicitation and Allocation 

Rulemaking ................................................................................................. 6 

III. ARGUMENT ........................................................................................................ 10 

A. The Regulations Exceed the Statutory Authority of the 

Commission............................................................................................... 10 

1. The Mere "Reference" Rule Exceeds the Statutory 

Authority of the Commission........................................................ 11 

2. The "Minimum Percentages" Rule for Administrative 

Costs Exceeds the Statutory Authority of the 

Commission................................................................................... 17 

3. The Solicitation Restrictions Imposed By the New Rule 

Impermissibly Burden Fundraising for State and Local 

Election Purposes.......................................................................... 18 

B. The Commission's Regulations Were Not Preceded By 

Adequate Notice........................................................................................ 20 

1. The Overall Scheme of the Final Rules So Departed 

from the NPRM That the Original Notice Did Not 

Adequately Frame the Subject for Discussion .............................. 21 

2. There Was No Notice in the NPRM That Final Rules 

Modifying the Allocation Rules for Political 

Committees Would Rely On Evidence of 

Administrative Convenience ......................................................... 23 

3. There Was No Meaningful Connection between the 

Proposed and Final Rules.............................................................. 25 

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a) There Was No Notice in the NPRM That Final 

Rules Modifying the Allocation Rules for 

Political Committees Would Depend On the 

Overbroad "Mere Reference" Standard Actually 

Adopted ............................................................................. 26 

b) There Was No Notice That Communications 

That Promoted a Political Party and a Federal 

Candidate May Not Be Allocated ..................................... 28 

c) There Was No Notice in the NPRM That Final 

Rules Modifying the Allocation Rules for 

Political Committees Would Require a Fifty 

Percent Minimum Federal Share for 

Administrative Expenses and Generic Voter 

Drives................................................................................ 28 

d) There Was Inadequate Notice in the NPRM 

That the Definition of "Contribution" Would 

Depend On the Overbroad "Indicates" Standard 

Actually Adopted .............................................................. 30 

C. The Regulations Are Arbitrary and Capricious......................................... 31 

1. The Fifty Percent Federal Minimum for Administrative 

and Voter Drive Expenses Is Arbitrary and Capricious................ 32 

2. The Solicitation Regulation Is Arbitrary and Capricious.............. 33 

3. The Regulations Fail to Consider the Necessary Goals 

of Preventing Corruption and the Appearance of 

Corruption ..................................................................................... 34 

D. The Regulations Violate the First Amendment to the United 

States Constitution..................................................................................... 35 

1. The Regulations Are Not Narrowly Tailored to Serve 

an Overriding State Interest........................................................... 35 

2. The Solicitation Regulation Is Unconstitutionally 

Vague and Overbroad.................................................................... 38 

IV. CONCLUSION ..................................................................................................... 39 

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TABLE OF AUTHORITIES 

Cases

AFL-CIO v. Donovan, 757 F.2d 330 (D.C. Cir. 1985)............................................................25 

Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir. 2000)..............................25 

BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979).............................................26 

*Buckley v. Valeo, 424 U.S. 1 (1976) .....................................................................................35 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)..............................10 

Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098 (4th Cir. 1985)..............................................25 

City of Chicago v. Morales, 527 U.S. 41 (1999).....................................................................38 

Cmty. for Creative Non-Violence v. Turner, 893 F.3d 1387 (D.C. Cir. 1990)........................39 

Cmty. Nutrition Inst. v. Block, 749 F.2d 50 (D.C. Cir. 1984) .................................................24 

*Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987)............................................16, 17 

Conn. Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525 

(D.C.Cir.), cert. denied, 459 U.S. 835 (1982)...............................................................24, 26 

Debraun v. Meissner, 958 F. Supp. 227 (E.D. Pa. 1997)........................................................26 

Envtl. Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .....................................34 

FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480 (1985) .......................35, 37 

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976)...................................................................39 

Int'l Fabricare Inst. v. U.S. E.P.A., 972 F.2d 384 (D.C. Cir. 1992).......................................24 

La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355 (1986) ............................................................10 

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

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).....................................................35 

Mich. Consol. Gas Co. v. FERC, 883 F.2d 117 (D.C. Cir. 1989)...........................................31 

[13376-0007-000000/DA051290.046] iii 5/16/05

Case 1:05-cv-00049-CKK Document 20 Filed 05/16/2005 Page 6 of 48
Motion Picture Ass'n of Am. v. FCC, 309 F.3d 796 (D.C. Cir. 2002).....................................10 

*Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29 (1983).................................................................................................................31, 34, 35 

Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir. 1996) ........................................................26 

*Portland Cement Ass'n v. Ruckelhaus, 486 F.2d 375 (D.C. Cir. 1973), cert. 

denied, 417 U.S. 921 (1974) .........................................................................................24, 25 

Republican Nat'l Committee v. FEC, 76 F.3d 400 (D.C. Cir. 1996).......................................31 

Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655 (D.C. Cir. 

1994) (en banc) ...................................................................................................................10 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004)...................................................................34 

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C. Cir. 

1983) .......................................................................................................................25, 26, 30 

Smith v. California, 361 U.S. 147 (1959)................................................................................39 

Solite Corp. v. U.S. EPA, 952 F.2d 473 (D.C. Cir. 1991).......................................................24 

United States v. Nat'l Treas. Employees Union, 513 U.S. 454 (1995)....................................37 

Statutes

2 U.S.C. § 431(20)(A)(iii).................................................................................................12, 26 

2 U.S.C. § 431(4)(A).......................................................................................................8, 18, 5 

*2 U.S.C. § 431(8)(A)(i)...................................................................................................11, 38 

*2 U.S.C. § 431(9)(A)(i)...................................................................................................11, 38 

2 U.S.C. § 434(f)(3)(A)(i).................................................................................................13, 15 

2 U.S.C. § 437g .......................................................................................................................20 

2 U.S.C. § 438(a)(8)................................................................................................................10 

2 U.S.C. § 441a(a).....................................................................................................................4 

2 U.S.C. § 441b(a).............................................................................................................13, 15 

2 U.S.C. § 441b(b)(2)..............................................................................................................15 

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2 U.S.C. § 441i(a)..............................................................................................................11, 12 

2 U.S.C. § 441i(b) ...................................................................................................................12 

5 U.S.C. § 553 .........................................................................................................................21 

*5 U.S.C. § 706(2)(A).............................................................................................................31 

*5 U.S.C. § 706(2)(C).............................................................................................................10 

Administrative Procedure Act, §§ 553-706.............................................................................10 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81..........11, 13, 32 

Federal Election Campaign Act, 2 U.S.C. §§ 431 et seq. .......................................................11 

I.R.C. § 527(j) .......................................................................................................................4, 2 

Regulations

*11 C.F.R. § 100.57 ..................................................................................................................3 

11 C.F.R. § 100.57(a)..................................................................................................19, 20, 30 

11 C.F.R. § 100.57(b)..............................................................................................................20 

11 C.F.R. § 104.10 ....................................................................................................................4 

*11 C.F.R. § 106.6 ........................................................................................................3, 26, 27 

11 C.F.R. § 106.6 (2004).................................................................................................5, 18, 3 

11 C.F.R. § 106.6(c)..........................................................................................................17, 29 

11 C.F.R. § 106.6(f) ..........................................................................................................11, 28 

11 C.F.R. § 106.7(d)................................................................................................................33 

11 C.F.R. § 106.7(d)(3)...........................................................................................................29 

11 C.F.R. Part 106...................................................................................................................12 

Other Authorities

Electioneering Communications, 67 Fed. Reg. 65,190, 65,200 (Oct. 23, 2002) ....................27 

FEC Advisory Opinion 2003-37 (Feb. 19, 2004).............................................................passim

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FEC Advisory Opinion 2004-33 (Sept. 10, 2004) ..................................................................31 

FEC Agenda Doc. No. 04-102 ( Nov. 18, 2004).................................................................10, 7 

FEC Agenda Doc. No. 04-48 (May 11, 2004) ..............................................................7, 8, 4, 5 

FEC Agenda Doc. No. 04-75 (Aug. 12, 2004)......................................................................9, 6 

FEC Agenda Doc. No. 04-75-C (Aug. 18, 2004)..................................................................9, 6 

FEC Agenda Doc. No. 04-77 (Sept. 9, 2004) .......................................................................9, 6 

*Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 2004).................passim

*Political Committee Status, Definition of Contribution, and Allocation for 

Separate Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 

68,056 (Nov. 23, 2004). ...............................................................................................passim

[13376-0007-000000/DA051290.046] vi 5/16/05

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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 

Plaintiff EMILY's List submits this memorandum of points and authorities in support 

of its Motion for Summary Judgment 

I. INTRODUCTION 

This case involves regulations promulgated by the Federal Election Commission 

("FEC" or "the Commission"), effective January 1, 2005, which unlawfully cripple the 

capacity of political organizations to engage in state and local political activity by purporting 

to treat it as federal election activity sharply constrained by the Federal Election Campaign 

Act. Under these new rules, a mere "reference" to a federal officeholder, or to a political 

party, results automatically in arbitrary and severe restrictions on the financing of a political 

organization’s public communications and voter drives. The new rules also impose onerous 

restrictions on the manner in which committees like EMILY's List ("EMILY's List" or "the 

Committee") may allocate between federal ("hard") and nonfederal ("soft") accounts their 

administrative and generic voter contact activities that do not entail the advocacy of any 

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particular candidate’s election or defeat. Moreover, they dramatically expand the class of 

funds received by EMILY's List that must be treated as contributions under federal law. 

By law these restrictions were designed only to limit the financing of efforts to 

influence a federal election, but the new rules expand them well beyond this purpose. These 

restrictions apply regardless of an organization’s actual or apparent purpose to influence the 

outcome of a federal election. 

The effect of these new rules is to severely limit the ability of EMILY's List, one of 

the nation’s largest political organizations, to finance a range of activities to influence the 

outcome of state and local elections. The Committee now faces a critical shortage in seeking 

to raise funds for and influence the outcome of statewide nonfederal races for Governor and 

other statewide offices, and for seats in state legislatures around the country. Because of the 

Commission’s new and unlawfully promulgated rules, the Committee’s funding of these 

races will be dictated not by the laws of the states in which these elections are held, but 

instead by a scheme of restricted campaign financing well outside of the federal statutory 

scheme, which was intended to apply only to bona fide federal election activity. This scheme

is all the more onerous in the coming election cycle, in which there is no presidential election 

and the focus of EMILY's List will be proportionally much more nonfederal than it was in 

the 2003-04 cycle. 

An examination of the FEC’s rulemaking history makes clear that the rules were 

originally intended to settle partisan complaints about very different organizations, ones 

prominent in last year’s presidential election. These included so-called nonfederal "section 

527" organizations which, unlike EMILY's List, are not "political committees" registered 

with and reporting to the FEC.1 These organizations were alleged to have impermissibly 

financed, using "soft money," those presidential election-related activities. EMILY's List, 

 

1 Section 527 refers to section 527 of the Internal Revenue Code. 

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however, does not share these organizations' purposes or operating history. Nonetheless, 

operating under intense partisan pressure and a self-imposed election year deadline, the FEC 

produced rules that ironically bound political organizations like EMILY's List, and left the 

original target of unregulated section 527 organizations untouched. Those rules also ranged 

well beyond registered political committees alleged to be concerned exclusively with the 

2004 Presidential elections, and restricted the activities of national committees, like EMILY's 

List, that maintain robust programs influencing state and local elections. 

No doubt as a byproduct of the intense political pressures under which the FEC 

produced these rules, they were promulgated in violation of fundamental requirements for 

providing affected parties with opportunity for notice and comment as required by law. The 

Commission approved the new rules on October 28, 2004 and published in the Federal 

Register on November 23. Until that time, the Commission had considered, along with 

proposals to address section 527 organizations, a variety of possible changes in the allocation 

rules. None of these included anything like the mere "refer[ence]" rule and other aspects of 

the financing restrictions that the Commission finally adopted. And, when announcing the 

final rules, the Commission changed its justification for the rules, offering an explanation of 

its purposes wholly at variance with statements made in the notice of proposed rulemaking 

("NPRM"), in public hearings and in the public statements of its Commissioners. 

The challenged regulations were codified as a new regulatory section, 11 C.F.R. 

§ 100.57 (hereinafter the "solicitation regulations"), and as an amendment to 11 C.F.R. 

§ 106.6 (hereinafter the "allocation regulations"). This motion for summary judgment 

challenges these regulations for exceeding the statutory authority of the regulating agency; 

for being promulgated following insufficient notice; for being arbitrary and capricious; and 

for violating the First Amendment of the United States Constitution. By regulating 

nonfederal as well as federal elections, lobbying as well as electoral activity, and nonfederal 

as well as federal contributions, the rules adopted by the Commission vastly exceed its

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statutory authority. Because the final rules differed radically from the proposed rules, and 

because the final rules were not a "logical outgrowth" of the proposed rules, notice was not 

sufficient under the Administrative Procedure Act. Because they contain arbitrary fifty 

percent minimums that apply in all circumstances, and because the FEC failed to articulate a 

rationale for the rules that explains how they diminish corruption or the appearance of 

corruption, the rules are arbitrary, capricious and contrary to law. Finally, because they are 

not narrowly tailored, do not rely on sufficient evidence, and are vague and overbroad, the 

rules violate the First Amendment of the United States Constitution. 

II. STATEMENT OF FACTS 

A. Description of EMILY's List 

EMILY's List is a political organization whose purpose is to recruit and fund viable 

women candidates; to help them build and run effective campaign organizations; and to 

mobilize women voters to help elect progressive candidates across the country. EMILY's 

List is a nonconnected committee2 that is registered with, and reports to, the Commission. 

Accordingly, it maintains a federal account that accepts only funds from sources and in 

amounts permissible under federal campaign law: $5,000 a year from federally permissible 

sources, such as individuals or FEC-registered political action committees. See 2 U.S.C. § 

441a(a). 

EMILY's List also raises and disburses funds for the purpose of influencing state and 

local elections. For this purpose, it maintains a nonfederal account. This account accepts 

funds from sources, and in amounts, not permissible under federal campaign finance law. 

EMILY's List reports its nonfederal receipts and disbursements to the Internal Revenue 

 

2 A "nonconnected committee" is a political committee that is not affiliated with a political party or

candidate, and that is not a separate segregated fund of any entity. See 11 C.F.R. § 104.10. 

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Service ("IRS") in accordance with I.R.C. § 527(j). All of EMILY's List's disclosure reports, 

whether to the FEC or the IRS, are publicly available on those agencies' respective websites. 

Since its organization twenty years ago, EMILY's List has helped to elect sixty 

Democratic women to Congress, eleven to the U.S. Senate, seven to governorships, and 215 

to other state and local offices. As the numbers indicate, the largest number of those 

successfully supported by EMILY's List have been candidates for state and local office. 

These numbers represent only the successful candidates actively supported by the 

Committee. Thousands more—including many more statewide and state legislative 

candidates—have received funds, advice and other forms of lawful support from EMILY's 

List. 

In the 2005-2006 election cycle, the proportion of EMILY's List's time, energy and 

funds committed to nonfederal elections will increase dramatically. With no presidential 

election in 2006, and thirty-four gubernatorial elections over the next two years, the 

Committee will focus more on gubernatorial and state legislative races, and other nonfederal 

candidates. In 2005, for instance, EMILY's List plans to assist state legislative candidates up 

for election in Virginia and New Jersey: there are no regularly scheduled federal elections in 

2005, anywhere in the country. 

B. "Allocation" under the Former Regulatory Scheme 

Like other national political organizations, EMILY's List conducts a number of 

activities, such as voter identification, voter registration, get-out-the-vote and generic voter 

mobilization activities, which affect both federal and nonfederal elections. In addition, 

EMILY's List has certain fixed administrative and overhead costs, such as rent, salaries, 

supplies, and the like. For many years, the FEC provided for an "allocation" procedure to 

ensure that a political committee paid for those particular expenses attributable to federal 

elections with federal funds, and those particular expenses attributed to state and local 

elections with state funds. Fixed overhead costs were paid with both federal and state funds, 

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on a ratio approximating the level of federal versus nonfederal activities undertaken by the 

committee. See 11 C.F.R. § 106.6 (2004). 

For example, until the adoption of the new rules effective January 1, 2005, the 

regulation governing the allocation of administrative and generic voter drives expenses was 

based on the "funds expended" method. Purely federal activity was paid for out of the 

federal account; purely nonfederal activity was paid for out of the nonfederal account. 

Payment for administrative expenses and for generic voter drives – that is, voter drives that 

did not refer to particular candidates – were made using funds from both accounts. In this 

last case, political committees paid the costs on the basis of the ratio of its direct support of 

federal candidates to its direct support of all candidates, federal and nonfederal. The rule 

called for precision in calculating and adjusting this ratio during an election cycle, requiring 

political committees to revise the ratio as required by its actual record of supporting both 

federal and nonfederal candidates. 

The result of this allocation scheme was that the payment of generic expenses such as

communications urging party-wide support and administrative expenses – activities designed 

to further the overall goal of an organization – reflected the share of that organization's goal 

devoted to federal elections. Organizations that focused overwhelmingly on federal elections 

paid for these activities almost entirely with federal funds. And organizations such as 

EMILY's List, which spend at least as much time and money on nonfederal elections as on 

federal elections, paid for these activities with a mix of funds that reflected the organization's 

actual dual purpose. 

C. Federal Election Commission Solicitation and Allocation Rulemaking 

The FEC did not reconsider the rules as applied to EMILY's List because of any 

suggestion that they did not fulfill their intended purpose, or because of any allegation that 

EMILY's List did not or could not comply with its terms. Instead, the changes in the rules 

emerged incongruously out of a proceeding established to address an altogether and unrelated 

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issue: organizations alleged to have been established to influence only the 2004 Presidential 

election and using soft money for this purpose. 

The first step toward the rulemaking occurred with the filing of an advisory opinion 

request with the FEC, aiming to place restriction on a specific political committee, America 

Coming Together ("ACT"), that was operating as a multiple-purpose political committee but 

was alleged by some to have been created solely to oppose President Bush’s candidacy for 

reelection in 2004. The opinion request aimed at ACT was filed by a new, paper 

organization named Americans For a Better Country ("ABC") that had neither raised nor 

spent any funds – and has not to this day – but represented supporters of President Bush’s 

reelection. 

On February 19, 2004, the Commission issued Advisory Opinion 2003-37. In this 

opinion, the Commission attempted – without a rulemaking – to restructure the allocation 

formulas, requiring allocating committees to pay entirely with federal funds for any public 

communication that "promotes, supports, attacks, or opposes" federal candidates. The 

Commission also built this requirement into the formulas for calculating allocations, so that 

any communication of this kind – promoting, supporting, attacking or opposing a federal 

candidate – would be included in the tally of "direct" federal candidate support used to 

determine the federal share of allocated expenses. The Commission's Office of General 

Counsel later described this advisory opinion as a "substantial reinterpretation of the 

'allocation' rules" that "looks an awful lot like a regulation." See FEC Agenda Doc. No. 04-

48, at 7 (May 11, 2004). 

On March 11, the Commission issued a wide-ranging proposal of new regulations. 

See Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 2004). While the 

regulations addressed a variety of topics, they were structured along two primary lines meant 

to address the concerns raised about the two types of organizations under attack in the 

presidential election. First, the regulations targeted section 527 organizations unregistered 

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with the FEC. Second, the regulations addressed "allocating committees": entities like

EMILY's List that were registered with the Commission, but that had nonfederal accounts as 

well. 

The proposed rules, through a revised definition of the FECA term "political 

committee," see 2 U.S.C. § 431(4)(A), required all section 527 organizations that were 

considered to participate in federal elections in any manner to register with and report to the 

Commission. The proposed rules also codified the changes to the allocation system first 

addressed in Advisory Opinion 2003-37, including inclusion of the "promotes, supports, 

attacks, or opposes" standard. The proposed rules further treated as federal contributions 

those funds received in response to a fundraising solicitation expressly advocating the 

election or defeat of federal candidates.

The Commission set what the FEC’s General Counsel aptly described as "a highly 

accelerated schedule for this important and far-reaching rulemaking, targeting approval of 

final rules just two months after publication of the NPRM." FEC Agenda Doc. No. 04-48, at 

4. Comments were due by April 9, and public hearings with thirty-one witnesses were held 

on April 14 and 15. Nonetheless, the rules created such controversy throughout the political 

and nonprofit communities that even with fewer than 30 days to address the "important and 

far-reaching rulemaking," more than 100,000 comments were submitted, "far exceeding the 

number of comments received in connection with any of the rulemakings to implement 

BCRA." Id. at 8. This was the first and last noticed opportunity for members of the public to 

comment on the rulemaking. The only portions of the proposed rules that received 

significant comment were those targeting section 527 organizations that did not register and 

report with the FEC, both because that was both the impetus and focus of the proceeding, and 

because the new allocation regulations tracked changes already present in Advisory Opinion 

2003-37. 

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The General Counsel submitted draft final rules to the FEC on August 12, and 

submitted amendments to those draft final rules on August 18. See FEC Agenda Doc. No. 

04-75 (Aug. 12, 2004), FEC Agenda Doc. No. 04-75-C (Aug. 18, 2004). On August 17, 

EMILY's List, among others, wrote a letter to the Commission noting that "the new proposed 

rules . . . provide for substantially different allocation rules for separate segregated funds and 

non-connected committees." The letter requested that the FEC publish the draft final rules 

for new comment, due to the magnitude of the changes, and postpone consideration of them

until afterward. The FEC did not respond to this letter. During the Commission meeting of 

August 19, Commissioner McDonald called for the new draft rules to be submitted for a 

sixty-day comment period. This motion failed by a 3-3 vote. See FEC Agenda Doc. No. 04-

77, at 8 (Sept. 9, 2004) (minutes of Aug. 19, 2004 meeting). 

The final rules, approved on October 28, did not include a revised definition of 

"political committee." Instead, the final rules created an allocation system totally unlike that

contained in Advisory Opinion 2003-37 and the proposed rules. The new rules focused not 

on whether communications "promoted, supported, attacked, or opposed" candidates, but 

whether they referred to candidates at all. In addition, the allocation system for 

administrative expenses and voter drives was reduced to a system of arbitrary threshold 

amounts. For example, a public communication that referred to a political party, but to no 

clearly identified candidates at all, had to be financed with no less than fifty percent federally 

regulated funds. The new rules took no account of a political committee’s operating history 

or actual record of involvement in supporting federal and nonfederal candidates. Far from a 

"refinement" in the allocation rules as originally suggested in the agency’s NPRM, 69 Fed. 

Reg. at 11,736, the final rule effected a radical change, replacing "allocation" with arbitrary 

minimums based on mere reference to a federal candidate. The final rules also contained a 

new definition of "contribution" unlike that contained in the proposed rules; the new section 

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100.57 defined contributions as funds received in response to a solicitation that "indicates 

that" any portion of the funds will be used to "support or oppose" federal candidates. 

The final rules, with explanation and justification and several additional amendments, 

were approved on October 28, 2004, and published on November 23, 2004. See FEC 

Agenda Doc. No. 04-102, at 3-5 ( Nov. 18, 2004) (minutes of Oct. 28, 2004 meeting); 

Political Committee Status, Definition of Contribution, and Allocation for Separate 

Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 68,056 (Nov. 23, 2004). 

III. ARGUMENT 

A. The Regulations Exceed the Statutory Authority of the Commission 

The Administrative Procedure Act ("APA"), §§ 553-706, forbids federal agencies 

from promulgating regulations "in excess of statutory jurisdiction, authority, or limitations, 

or short of statutory right." 5 U.S.C. § 706(2)(C). "[A]n agency literally has no power to act 

. . . unless and until Congress confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 

U.S. 355, 374 (1986). Deference to an administrative agency's interpretation is only 

appropriate when "Congress has left a gap for the agency to fill pursuant to an express or 

implied 'delegation of authority to the agency.'" Ry. Labor Executives' Ass'n v. Nat'l 

Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (citation omitted); see also 

Motion Picture Ass'n of Am. v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002) ("[T]he agency's

interpretation of the statute is not entitled to deference absent a delegation of authority from

Congress to regulate in the areas at issue.") (emphasis in original). Courts must vacate 

"administrative constructions which are contrary to clear congressional intent." Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984). 

The regulatory authority of the Commission is granted at 2 U.S.C. § 438(a)(8), which 

permits it to "prescribe rules, regulations, and forms to carry out the provisions of [the 

Federal Election Campaign Act]." Thus, the Commission has authority only to effectuate the 

provisions of federal campaign finance law. The definitions of "contribution" and 

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"expenditure" only apply to "anything of value" made "by any person for the purpose of 

influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i), (9)(A)(i). The Federal 

Election Campaign Act ("FECA"), 2 U.S.C. §§ 431 et seq., regulates contributions and 

expenditures by political committees. But FECA does not define every payment made to or 

by a political committee as a contribution or expenditure. The FEC's new regulations far 

exceed FECA's limited grant of authority 

1. The Mere "Reference" Rule Exceeds the Statutory Authority 

of the Commission 

The final rules apply severe financing restrictions on the basis of a mere "reference" 

to a federal candidate or to a political party. See 11 C.F.R. § 106.6(f). The rules require that 

communications that merely reference a clearly identified federal candidate must be paid for 

with at least some federal funds, and with entirely federal funds if no clearly identified 

nonfederal candidate are mentioned. See id. This is a course that Congress rejected when 

developing FECA and its subsequent amendments. Congress focused the statutory scheme

instead on expenditures "for the purpose of influencing" a federal election. See 2 U.S.C. 

§ 431(8)(A)(i), (9)(A)(i). 

That the FEC has transgressed the boundaries of its statutory authority is apparent 

from Congress’ recent enactment of the Bipartisan Campaign Reform Act of 2002 

("BCRA"), Pub. L. No. 107-155, 116 Stat. 81. Congress changed the allocation rules for 

political party committees, concluding that the mixed-purpose allocation rules then in place 

for political parties allowed for too much nonfederal financing. See 2 U.S.C. § 441i(a); 

McConnell v. FEC, 540 U.S. 93, 132-34, 142 (2003). But in overriding those rules for 

national, state and local parties, Congress again rejected the step adopted by the FEC and 

under challenge here. 

In the case of national parties, Congress imposed the most severe restriction: because 

of the unique relationship between national parties and federal officeholders who had 

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solicited large soft money donations for their parties, Congress elected to limit national party 

financing to federally regulated sources and amounts. See 2 U.S.C. § 441i(a); McConnell, 

540 U.S. at 145-51,154-55 . Congress chose a more complicated and varied scheme for the 

regulation of state and local parties: it restricted some activities to federal funding, allowed 

fully nonfederal or soft money financing for others, and adopted, for still other activities, a 

program of allocation. See 2 U.S.C. § 441i(b); McConnell, 540 U.S. at 161-64. In none of 

these cases did Congress permit regulation based on simple "references" in public 

communications to candidates or parties. 

Of particular significance is Congress' choice of means to address the state and local 

parties’ financing of so-called "issue advertisements." Those ads – a foundational concern of 

the 2002 amendments – name particular candidates, praising or criticizing them on issues, 

but do not expressly advocate their election or defeat. Id. at 126, 132. Even though 

Congress placed great weight on evidence that these types of ads were typically a "sham," 

constructed in fact to influence the election or defeat of named candidates, it declined to base 

any financing restrictions on these ads’ "reference" to candidates or parties. Rather, 

Congress required that these ads be funded under federal restrictions if and only if they 

"supported, promoted, attacked or opposed" a federal candidate. See 2 U.S.C. 

§ 431(20)(A)(iii); McConnell, 540 U.S. at 169-70. In other words, Congress tied the 

restriction to a standard plainly requiring that the ad was paid for the purpose of influencing a 

federal election, even if the boundaries of this standard are less than clear. 

In contrast, Congress declined to address allocation by non-party entities like 

EMILY's List. In doing so, Congress accepted the longstanding allocation regime set forth in 

11 C.F.R. Part 106 for those entities. BCRA's legislative history reflects no concern 

whatsoever that the FEC's regulation apparatus for their allocation – intact since 1990 – 

posed any public policy concern. While that does not necessarily preclude the FEC from

adjusting those rules, the FEC must respect the boundaries FECA establishes concerning 

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what conduct by non-candidate non-party entities can be compelled to be funded by a federal 

political committee. Regulating mere references to federal candidates in the communication 

of allocating committees goes well beyond a statutory basis for FEC regulation. When 

applied beyond the sphere of federal election activity, such as to the state and local election 

activity vital to EMILY's List, these restrictions at issue contravene the statute and exceed the 

Commission's authority. 

EMILY's List, like other nonconnected political committees subject to the new rules, 

is not a political party committee, and is not controlled by officeholders or candidates. It is 

not subject to BCRA's revisions to the allocation requirements for national, state, and local 

political party committees. Yet the FEC has imposed upon its activities financing restrictions 

beyond the permitted statutory range, and even more onerous than even those Congress 

dictated for state and local parties, which are presumed to be under the control of candidates. 

Under the new rule, the mere "reference" to a federal candidate triggers far-reaching—in 

practical effect, incapacitating—restrictions on EMILY's List's ability to finance activities 

influencing state and local elections. 

Indeed, in only one circumstance does FECA predicate federal funding of a mere 

"reference" to a federal candidate: it barred corporations and labor unions from spending 

their treasury money on broadcast advertisements – "electioneering communications – that 

"refers to a clearly identified" federal candidate. See 2 U.S.C. § 434(f)(3)(A)(i). Congress 

imposed this requirement in BCRA to expand the reach of the long-standing prohibition on 

corporate and union expenditures "in connection with" a federal election. See id. § 441b(a); 

McConnell, 540 U.S. at 204 n.87, 206. But now—and for the first time ever—the FEC on its 

own initiative has proposed to restrict in the same way a far more sweeping category of 

communications: public communications by independent, non-party organizations, 

irrespective of whether they take corporate or union funds. 

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The unlawful, extra-statutory acts of the Commission do not represent only 

theoretical infringements on the legal rights of EMILY's List. They pose direct threats to its 

ability to function, as it has for years, in lawfully influencing the course of state and local 

elections. By the mere "reference" to a federal candidate, or to a political party, EMILY's 

List communications become immediately subject to the broad financing restrictions that 

apply under federal law to efforts to "influence federal elections." Some examples of the 

consequences of these restrictions include: 

• A communication that promotes a gubernatorial candidate, by citing his 

support of an incumbent President’s social or fiscal policies, must be paid in 

part with federal funds if the President is running for reelection. 

• A communication promoting the candidacy of a gubernatorial candidate, in 

part on the basis of his support for the "McCain-Feingold" legislation, must be 

paid in part with federal funds, as a federal election activity, if either Senator 

McCain or Senator Feingold is running for reelection, even if the 

communication is made thousands of miles away from their states. 

• A communication in support of a state legislative candidate must be paid in 

part with federal funds if the communication mentions endorsement of the 

candidate by a federal officeholder who is running for reelection. 

• A communication raising funds for a political committee's program to support 

generally state and local candidates must be paid entirely with federal funds, 

as a federal election activity, if it refers to a federal candidate who has 

endorsed the program or otherwise vouched publicly for its effectiveness. 

• A communication supporting a political party generally and that refers to no 

candidates, that is run before an election in which there are no federal 

candidates on the ballot, must be paid for with fifty percent federal funds. 

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In all these cases, and others, the simple reference to a federal candidate converts the 

communication into federal election activity subject to significant financing restrictions. The 

outcome does not depend on the actual purpose of the communication, the actual history and 

current operations of the political organization, or on any other contested factor. 

A further comparison to FECA's restrictions on "electioneering communications," 

which does incorporate a "reference" standard, demonstrates the departure of the FEC's rules 

from the limited and careful FECA scheme. The "electioneering communication" definition 

contains three important restrictions on its application. First, it applies only to television, 

radio and satellite broadcasts. Second, it applies only to the time periods thirty days before a 

primary, or sixty days before a general election, in which the referenced candidate is running 

for election. Third, it applies only where at least 50,000 persons in the candidate's electorate 

can receive it. See 2 U.S.C. § 434(f)(3)(A)(i). 

The "electioneering communication" definition cannot serve as a statutory basis for 

the FEC's solicitation and allocation regulations for nonconnected committees; this section of 

FECA is a specific statutory provision barring only certain activity by corporations and labor 

unions, or certain uses of corporate or labor funds. See 2 U.S.C. § 441b(b)(2). Furthermore, 

corporations and labor unions not only may make no contribution or expenditure "for the 

purpose of influencing" federal elections, but are statutory barred from making contributions 

or expenditures "in connection with" federal elections. See id. § 441b(a). These two 

statutory provisions hold corporations and labor unions to a much stricter standard than

political organizations. Only for these types of entities, and only with the above temporal 

and geographic caveats, did Congress believe it appropriate to apply the mere "reference" 

standard. 

Congress' amendment of FECA to add this federal funds restriction was one of 

BCRA's most controversial and bitterly contested provisions. Yet the FEC now, by 

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regulation, has purported to impose a much farther-reaching restriction of the same kind. 

This is a patently ultra vires action without basis in FECA itself. 

The Commission interprets the opinion in Common Cause v. FEC, 692 F. Supp. 1391 

(D.D.C. 1987), as holding that the FEC has the power under the FECA to require that 

allocating committees spend only federal funds, even for purely state and local activity, and 

that any allocation scheme short of requiring one hundred percent federal funds is therefore 

permissible. Though the Common Cause decision is not binding upon this Court, this 

reading of that opinion is in error. That decision stands for the proposition that the FECA 

does not purport to regulate state elections. 

It is true that the Common Cause court, when requiring the FEC to promulgate rules 

to address state political party allocation, noted that "it is possible that the Commission may 

conclude that no method of allocation will effectuate the Congressional goal that all monies 

spent by state political committees on those activities permitted in the 1979 amendments be 

'hard money' under the FECA." Id. at 1396. The issue in the case was the allocation of funds 

for volunteer activities, voter registration, and get-out-the-vote activities affecting both 

federal and state elections. In context, it is clear that the court was describing allocations 

between federal and nonfederal funds for activities that affected both federal and nonfederal 

elections, not activities purely affecting state elections. Similarly, when the McConnell

court was decrying the FEC's allocation regime, it did so only in the context of "mixedpurpose activities." 540 U.S. at 123. 

Indeed, the Common Cause court considered whether the FECA regulated funds spent 

by dual-purpose entities on activities that influenced only state elections. The Common 

Cause court expressly rejected the plaintiff's claim that state election activities conducted by 

allocating committees are regulated by the FECA, and held that "the FECA regulates federal 

elections only." 692 F. Supp. at 3695. It cited the House Report on the 1979 amendments, 

which noted that slate cards featuring both federal and state candidates may be paid for with 

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a mix of federal and state funds. Id. And it noted that "Nothing in the language of the 

amendments suggests that they reach beyond federal elections and into the realm of state 

elections." Id. 

To be sure, the court did hold out the possibility that the FEC could make a finding 

that no allocation scheme can meet the requirements of the statutes. This statement was only 

noting the possibility that allocation may prove unworkable in practice – not giving 

permission to the FEC, on a regulatory whim, to require wholly state activities to be financed 

with federal funds. Besides, the Commission has made no such finding that no allocation 

system can effectively meet the statutory requirements. And while such an argument might 

be possible to make with regard to activities that influence both federal and state elections, it 

would be nonsensical to make such an argument with regard to activities that are entirely 

nonfederal. The mere "reference" rule applies not just to activities that are of mixed 

character, but also, as described above, to activities that are purely nonfederal, and that do 

not influence federal elections. To require any use of federal funds for purely state activity – 

and to require, in some circumstances, that only federal funds be used – is, as the Common 

Cause court noted, beyond the statutory bounds of the FECA. 

2. The "Minimum Percentages" Rule for Administrative Costs 

Exceeds the Statutory Authority of the Commission 

The final rule requires that political organizations like EMILY's List must pay for 

their administrative costs with federal funding at a level of no less than fifty percent of the 

total cost, without regard to the actual stake of the organization in federal elections. See 11 

C.F.R. § 106.6(c). If, under this rule, EMILY's List supports just one federal candidate or 

allocates just one percent of its total budget to the entire class of federal candidates supported 

in an election cycle, the result is the same: it must pay for no less than fifty percent of its 

administrative costs with federal funding. 

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This arbitrary minimum also exceeds the Commission’s statutory authority to 

promulgate regulations in aid of enforcement of the law. Under the rules previously in effect 

– the "funds expended" method – organizations paid the "federal share" of administrative 

costs in proportion to their actual financial commitment to federal elections. See 11 C.F.R. 

§ 106.6 (2004). The new "allocation" rule does not deserve the name. It is not shaped by 

any notion of proportionality but instead places a heavy burden on political committees – the 

payment of fifty percent of administrative costs with federal funds – regardless of whether 

they support only a single federal candidate and one hundred nonfederal candidates, or 

contribute $1,00.01 dollars to one federal candidate plus $100,000 to nonfederal candidates, 

or devote a million dollars to federal election activity and $2,000 to nonfederal activity. All 

organizations that register with the FEC as political committees – which they must do if they 

raise or spend over $1,000 to influence federal elections, see 2 U.S.C. § 431(4)(A) – are 

considered to be identical under the FEC's new regulations. A multi-million-dollar state 

political committee that spends $1,000.01 on a billboard supporting a federal candidate as its 

only federal activity now must use federal funds to pay for fifty percent of all its 

administrative expenses, even though only a tiny fraction of its administrative activity can 

fairly be attributed to influencing federal elections. 

As a result, the Commission has federalized 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. FECA provides no statutory authority for this 

regulatory adventure. 

3. The Solicitation Restrictions Imposed By the New Rule 

Impermissibly Burden Fundraising for State and Local Election 

Purposes 

The new rules also inject federal financing restrictions into fundraising for state and 

local elections. One such rule provides that a political committee like EMILY's List must 

treat as federally limited "contributions" any gift or donation 

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[M]ade by any person in response to any 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). If EMILY's List now refers to a federal candidate in a communication 

designed to raise monies for its state and local election program, it risks a Commission 

finding that its communication "indicates" that some portion of the monies received may be 

used to "support or oppose" the federal candidate. The rule does not define the term

"indicate"; rather, the Commission has simply offered vague "examples" of one possible 

application in the Explanation and Justification issued with the adopted final rule. 69 Fed. 

Reg. at 68,057.3 The Commission's guidance is also ambiguous, if not hopelessly confusing; 

it states that the new rule "requires an examination of only the text of the communication" 

and that it "turns on the plain meaning of the words used," but it also stresses that its

application is not "limited to solicitations that use specific words or phrases." Id.

While the application of the rule is highly uncertain, there is no doubt about its 

intended and actual effect: to limit the use of "references" to federal candidates in 

solicitations for state and local election purposes, and to impair fundraising messages that 

discuss federal officeholders who make and execute government policy. Any such 

references, if the Commission concludes that they "indicate" somehow that the funds will be 

used, to any extent, to" support or oppose" a federal candidate, will transform funds received 

into federally regulated "contributions." This means that if EMILY's List receives a 

contribution permissible under state law, but contrary to the applicable limits and source 

restrictions of federal law, the Committee must refund all or part of it to the donor. See 69 

Fed. Reg. at 68, 058-59. Moreover, having received "contributions" in excess of federal 

limits – because the Committee’s intention was to raise and spend them for state and local 

 

3 One such example reads: "Senator Jane Doe voted against a tax package that would have helped

working families. Your generous gift will enable us to make sure Californians remember in November." Id. 

(emphasis in original). The Commission states that the regulation "turns on the plain meaning of the words 

used in the communication and does not encompass implied meanings or understandings," and that the

regulation "does not depend on reference to external events." Id. The Commission does not state why this

language functions to "indicate" the use of the funds, only that—in its view—it does.

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election activity – the Committee faces liability under FECA for receiving illegal 

contributions. See 2 U.S.C. § 437g. 

These results follow under the rule even if the Commission finds that the solicitation 

indicated that only a "portion" of the funds received would be used to support a federal 

candidate. See 11 C.F.R. § 100.57(a). Moreover, even if the Committee were also to name

nonfederal candidates, the mention of a single federal candidate – even one mention – would 

require that at least fifty percent of the funds received be treated as federal contributions. See 

id. § 100.57(b). A solicitation that states outright that only one percent of contributions 

received will be used to support federal candidates – and the rest will be used to support nonfederal candidates – will still trigger the fifty percent minimum. See 69 Fed. Reg. at 68,057. 

FECA only grants the Commission the authority to regulate contributions insofar as 

they are made "for the purpose of influencing" federal elections. 2 U.S.C. § 431(8)(A)(i). 

"Donations made solely for the purpose of influencing state or local elections are therefore 

unaffected by FECA's requirements and prohibitions." McConnell, 540 U.S. at 122. The 

solicitation regulation regulates much more than that, deeming as "contributions" all funds 

received in response to a solicitation that "indicates" that "any portion" of the funds will be 

used for federal purposes. If a solicitation specifies that only a small percentage of funds 

received will be used for federal purposes, under the statutory definition, only a portion of 

the funds received are contributions; under the regulation, at least fifty percent and as much 

as one hundred percent are contributions, depending on whether nonfederal candidates are 

also referenced. The result is a broad overreaching of the Commission's authority to regulate 

funds solicited and donated for plainly nonfederal purposes. 

B. The Commission's Regulations Were Not Preceded By Adequate 

Notice 

The final rules published on November 23, 2004, deviate from the scheme articulated 

in the March 11 NPRM to such an extent that the legally required notice and opportunity to 

comment was not provided to the public. The most important element of the adopted rules – 

the determination that a mere reference to a federal candidate could subject a communication 

to FEC regulation – was never even suggested in the March 11 NPRM. Moreover, the 

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overall content and structure of the final rules depart substantially from that proposed in 

March. Despite EMILY's List's and others' specific requests for an opportunity to comment 

on the radically different final proposed rules immediately after they were disclosed, the FEC 

afforded no such opportunity. Because these final rules violate the notice-and-comment 

provisions of the APA, implementation of the rules must be enjoined pending an opportunity 

for comment on the novel regulatory scheme laid out in the November 23 publication. 

1. The Overall Scheme of the Final Rules So Departed from the 

NPRM That the Original Notice Did Not Adequately Frame the 

Subject for Discussion 

The NPRM was an extraordinary document, proposing regulations that were radically 

different from the regulations in place at the time. In the proposed rules, the Commission put 

the regulated community on notice that it was considering action on a variety of fronts. The 

regulated community and others responded with over 100,000 comments. 

While the proposed regulations did alter the text of the allocation regulations, the 

stated goal was to codify the changes already enacted by the FEC in Advisory Opinion 2003-

37. The proposed allocation regulations mirrored the standards of that advisory opinion, 

including its focus on whether a communication "promotes, supports, attacks, or opposes" a 

clearly identified federal candidate. The proposed allocation revisions, like the rule 

following Advisory Opinion 2003-37, also retained the "funds expended" system, but applied 

the "promotes, supports, attacks, or opposes" system to determine what would count as a 

federal expenditure when calculating the allocation ratio. 

The NPRM was primarily concerned not with allocation, but with the definition of 

"political committee." The primary goal of the proposed rules was to classify some section 

527 organizations that were not registered with the FEC as "political committees," thus

requiring that they register with and report to the FEC, and bringing them squarely within the 

ambit of federal election law. EMILY's List, and all other allocating committees, were 

already registered with the FEC, and they were already classified as political committees. To 

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EMILY's List, this portion of the NPRM was therefore irrelevant. The only significant 

change imposed on the allocation rules was to write into the regulations the changes already 

made by the Commission in Advisory Opinion 2003-37. 

When the draft final rules were released, they were unrecognizable as outgrowths of 

the NPRM. With the exception of the solicitation regulation, the final rules did not contain 

any further regulation of unregistered organizations. The FEC ignored the primary thrust of 

the NPRM, and instead focused on the regulation of allocating committees like EMILY's 

List. More surprising still were the fundamental changes made in the approach of the 

allocation regulations. Instead of merely modifying the calculation of the allocation ratio, the 

final rules discarded it. Instead of using the "promotes, supports, attacks, or opposes" 

standard, the final rules depended instead on whether communications "refer to" federal 

candidates. 

Recognizing the extent of the changes in the final rules, EMILY's List submitted a 

request to the FEC to open up a new comment period so that the regulated community could 

have a meaningful opportunity to comment. Though three Commissioners recognized the 

magnitude of the changes and argued for a new sixty-day comment period, that proposal 

ultimately failed. EMILY's List was never afforded an opportunity to comment. 

The various ways in which the NPRM failed to meet the legal requirements of the 

APA are detailed below. Together, they create a tapestry of an agency action that 

emphasized haste in a politically charged atmosphere over thoughtful and considered action. 

The FEC never put the regulated community on notice that the drastic changes made were 

even being considered by the FEC, much less a realistic possibility. And when the full extent 

of the changes were revealed, the FEC refused to cure its mistake and allow more time for 

comment – even though it ultimately did not approve the final rules until over 60 days after 

they were first released by the FEC's General Counsel, leaving ample time for a further 

comment period should the FEC have wished to permit it. 

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The FEC failed to frame the proposed rules in such a way as to put interested parties 

on notice. This failure is a violation of the notice-and-comment requirement of the APA. 

2. There Was No Notice in the NPRM That Final Rules 

Modifying the Allocation Rules for Political Committees Would 

Rely On Evidence of Administrative Convenience 

Because the NPRM focused so heavily on the definition of "political committee" and 

the implementation of a "promotes, supports, attacks, or opposes" standard, it contained no 

explanation of why the Commission was considering altering the allocation regulations. 

Specifically, the NPRM contained no mention of any data on which the Commission was 

relying, and no mention of any goal of administrative convenience for the regulated 

community. 

When the final rules were issued, the Commission explained that its purpose was to 

make it easier for committees to conform to the rules. After decrying the "confusion and 

administrative burden associated with the funds expended method," the Commission asserted 

that it "seeks to simplify, not further complicate, the allocation system. Thus, the 

Commission is not retaining the funds expended method in any form." 69 Fed. Reg. at 

68,062. 

The explanation described much evidence regarding the administrative difficulties of

the former system. The Commission referred to its examination of "public disclosure reports 

. . . over the past ten years" and its derived conclusions that "most SSFs and nonconnected 

committees do not allocate under section 106.6(c)"; the "[a]necdotal evidence suggested that 

many committees . . . were confused as to how the funds expended ratio should be calculated 

and adjusted throughout the two-year election cycle"; a "review of past reports . . . showed 

that almost half of [allocating] committees were already paying for these expenses with at 

least fifty percent federal funds under the former system"; and a finding that "the actual 

dollar amounts of non-Federal funds that were spent in past cycles on administrative and 

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generic voter drive expenses under former section 106.6(c) . . . is relatively low." See 69 

Fed. Reg. at 68,062. 

An agency cannot rest a rule on data "'that, [in] critical degree, is known only to the 

agency.'" Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 57 (D.C. Cir. 1984) (quoting Portland 

Cement Ass'n v. Ruckelhaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 

(1974)). "Integral to the notice requirement is the agency's duty 'to identify and make 

available technical studies and data that it has employed in reaching the decisions to propose 

particular rules . . . . An agency commits serious procedural error when it fails to reveal 

portions of the technical basis for a proposed rule in time to allow for meaningful 

commentary.'" Solite Corp. v. U.S. EPA, 952 F.2d 473, 484 (D.C. Cir. 1991) (quoting Conn. 

Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530-31 (D.C.Cir.), cert. 

denied, 459 U.S. 835 (1982)). Moreover, agencies cannot fail to "identify the . . . 

methodology used" in developing regulatory standards. Portland Cement Ass'n, 486 F.2d at 

392, quoted in Int'l Fabricare Inst. v. U.S. E.P.A., 972 F.2d 384, 99 (D.C. Cir. 1992).

Here, the Commission disclosed no data regarding administrative convenience in the 

NPRM. There was no notice provided in the NPRM that this evidence or subject would be 

considered, and no opportunity for commenters to challenge the Commission's assertion that 

a replacement of the funds expended method with a flat system would be easier for 

committees to administer. While the raw data the FEC relied upon was publicly available in 

unorganized form, there was no simple way to compile that data and determine how 

committees were allocating funds. More importantly, the requirement for disclosing the 

evidence relied upon is not merely to make that evidence public, but to permit the public to 

comment upon and challenge that evidence. Here, the NPRM did not put the public on 

notice that this evidence was being considered. 

Furthermore, the FEC did not disclose the underlying problem and rationale that led it 

to shape the final rule – the administrative convenience of the regulated community. Indeed, 

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because the NPRM did not suggest the possibility of abandoning the funds expended method 

in its entirety, the public could not have deduced this administrative convenience concern. 

Thus, commenters could not have properly addressed the Commission's methodology and 

whether or not the regulation served the goals articulated by the Commission in its 

explanation and justification of the final rules. Because evidence relied upon by the 

Commission was not referred to in the NPRM, and because the underlying "methodology 

used" was not disclosed, Portland Cement Ass'n, 486 F.2d at 392, the NPRM did not provide 

adequate notice under the APA for the fifty percent minimum federal threshold. 

3. There Was No Meaningful Connection between the Proposed 

and Final Rules 

An agency’s final rules need not precisely mirror a proposal presented in the NPRM. 

See, e.g., Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1058 (D.C. Cir. 2000); 

AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985). However, the notice-andcomment provision does require that the final rule be sufficiently tied to a noticed proposal 

that interested parties are given a meaningful opportunity to comment on the issues and likely 

regulatory approach. Id. at 338. 

Courts usually articulate the standard of meaningful notice by observing that a final 

rule must be a "logical outgrowth" of the proposals submitted to the public. See id. The 

NPRM notice must be sufficient for interested parties to realize, at the time of comment, that 

the final rule actually adopted is a likely potential outcome. As the D.C. Circuit noted in the 

context of a final EPA rule: "The rule, seen with the benefit of hindsight, makes some sense . 

. . . But the test, imperfectly captured in the phrase ‘logical outgrowth,’ is whether [a 

commenter], ex ante, should have anticipated that such a requirement might be imposed." 

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 548-49 (D.C. Cir. 1983); 

see also Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098, 1104 (4th Cir. 1985). 

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The D.C. Circuit places particular emphasis on whether the framing of the proposed 

rule provides adequate notice to interested parties of the crux of the final regulation: 

An agency adopting final rules that differ from its proposed rules is 

required to renotice when the changes are so major that the original 

notice did not adequately frame the subjects for discussion. The 

purpose of the new notice is to allow interested parties a fair 

opportunity to comment upon the final rules in their altered form. 

Conn. Light & Power Co, 673 F.2d at 533 (emphasis added); see also Omnipoint Corp. v. 

FCC, 78 F.3d 620, 632 (D.C. Cir. 1996); BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 

642 (1st Cir. 1979). The D.C. Circuit also demands that the notice of the intended regulation 

be fairly specific, to allow for informed comment; a general notice of change in particular 

regulatory provisions is insufficient. In Small Refiner, the court found the "purported notice . 

. . too general to be adequate. Agency notice must describe the range of alternatives being 

considered with reasonable specificity. Otherwise, interested parties will not know what to 

comment on, and notice will not lead to better-informed agency decisionmaking." 705 F.2d 

at 549; see also Debraun v. Meissner, 958 F. Supp. 227, 231-32 (E.D. Pa. 1997). 

a) There Was No Notice in the NPRM That Final Rules 

Modifying the Allocation Rules for Political Committees 

Would Depend On the Overbroad "Mere Reference" 

Standard Actually Adopted 

The NPRM included a proposal to amend 11 C.F.R. § 106.6 by changing how 

committees must allocate funds for communications that refer to either federal or nonfederal 

candidates. See 69 Fed. Reg. at 11,753. The proposal, though exceedingly complicated, 

essentially required that those communications – or those portions of communications – that 

"promote, support, attack, or oppose a clearly identified Federal candidate" be paid for using 

entirely federal funds. This language tracked that of Advisory Opinion 2003-37. See 69 Fed. 

Reg. at 11,755. Every portion of the proposed rule used this "PSAO" standard. The PSAO 

language is taken from 2 U.S.C. § 431(20)(A)(iii), which was added by BCRA and applies 

only to state and local party committees. Leaving aside the question of the Commission's 

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authority to apply one portion of FECA in regulations implementing a different portion, 

nowhere in the NPRM did the Commission contemplate any standard but the PSAO for 

determining whether a particular communication should be paid for using federal funds. 

The final rules amending 11 C.F.R. § 106.6 are radically different. They eschew the 

PSAO standard and instead predicate a federal funds requirement on whether 

communications "refer to" a clearly identified federal candidate. The Commission gave no 

notice that it was contemplating this far broader "refer to" standard. 

The Commission all but concedes the inadequacy of its notice. As mentioned above, 

the NPRM was driven by proposed changes to the definition of "political committee" and the 

adoption of a PSAO standard for certain expenditures. Given those broad and 

unquestionably important regulatory proposals, the Commission admits that "[l]ittle attention 

was focused on allocation issues during the public comment period." 69 Fed. Reg. at 68,061. 

The difference between the proposed and the final rules is immense. The proposed 

rules, though dangerously vague, were designed to regulate only those communications 

whose purpose was to influence federal elections. The final rule is far broader. For instance, 

the Commission has indicated that the inclusion of a federal candidate's name as a sponsor of 

legislation – such as "the McCain-Feingold bill" – is enough to count as a communication 

that "refers to a clearly identified candidate for Federal office." See Electioneering 

Communications, 67 Fed. Reg. 65,190, 65,200 (Oct. 23, 2002). The final rules would require 

that a communication that criticizes a gubernatorial candidate for supporting the "McCainFeingold" legislation be paid for in part using federal funds. This result could not have been 

foreseen by readers of the NPRM. 

Because the Commission's NPRM gave no notice at all of the use of its far-reaching 

"refer to" standard, the final rules are in violation of the APA. 

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b) There Was No Notice That Communications That 

Promoted a Political Party and a Federal Candidate May 

Not Be Allocated 

The proposed rules expressly considered political communications that promoted 

both a political party and a federal candidate, and considered them apart from those 

communications that promoted a federal candidate without promoting a political party more 

broadly. The NPRM proposed that communications promoting political parties be allocated 

using the "funds expended" method, reflecting the parties' role in both federal and nonfederal 

elections, while communications promoting clearly identified federal candidates be paid for 

using federal funds only. See 69 Fed. Reg. at 11,755. Nowhere did the NPRM hint that the 

Commission may require that such communications be paid for entirely with federal funds. 

Under the final rules, it is irrelevant whether such communications refer to a political 

party. Communications that refer to a federal candidate and no nonfederal candidate must be 

paid for with federal funds alone; communications that refer to a nonfederal and no federal 

candidate may be paid for using nonfederal funds. See 11 C.F.R. § 106.6(f). 

This result is dramatically different from the NPRM. A communication during 2004 

such as "Vote for George Bush and the Republican Ticket" would, under the NPRM, be paid 

for using at least some nonfederal funds; but under the final rules, that communication could 

not be paid for using any nonfederal funds. This standard is not mentioned in or considered 

by the NPRM, and constitutes a dramatic change for organizations like EMILY's List that 

routinely include party-wide support in their communications. The final rule is therefore in 

violation of the APA. 

c) There Was No Notice in the NPRM That Final Rules 

Modifying the Allocation Rules for Political Committees 

Would Require a Fifty Percent Minimum Federal Share for 

Administrative Expenses and Generic Voter Drives 

 The proposed rules did consider a minimum federal percentage for calculating "funds 

expended," for the purpose of allocating funds for administrative and voter drive expenses. 

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The proposed rules contained two alternatives; one permitted state-by-state flexibility, while 

the other did not. Both proposals used the allocation ratios for state political party 

committees under 11 C.F.R. § 106.7(d)(3), which range from a fifteen to thirty-six percent 

federal portion. Both proposals also retained the "funds expended" method to increase the 

federal allocation ratio beyond any minimum threshold. 

The Commission warned that it "is considering other minimum Federal percentages 

as alternatives to those presented in the proposed rules." See 69 Fed. Reg. at 11,754. The 

stated alternatives included a twenty-five percent minimum for committees that conduct 

operations in fewer in ten states, and a fifty percent minimum for committees that conduct 

operations in ten or more states. See id. The NPRM also asked, "what should the minimum 

Federal percentage be?" Id.

The final rules require a uniform fifty percent minimum federal percentage for 

administrative expenses and communications that do not reference a federal or nonfederal 

candidate. See 11 C.F.R. § 106.6(c). This amount is not targeted to the number of states in 

which committees operate; it applies to all allocating committees, no matter their size or their 

amount of nonfederal activity. Instead of a minimum threshold governing the funds 

expended method, the funds expended method is abandoned in its entirety. See 69 Fed. Reg. 

at 68,067-68. 

There was no notice in the NPRM that the Commission was considering a fifty 

percent minimum for all committees, or that it was considering repealing the funds expended 

method for calculating allocation ratios. While it did indicate that it might consider such a 

number for committees that operate in ten or more states, it never considered a wider scope 

for such an extreme minimum federal percentage. See Fed. Reg. at 11,754. A reader of the 

NPRM would have logically believed that for smaller committees especially, the minimum

number could only rise to thirty-six percent, and then only for elections with both 

presidential and Senate candidates on the ballot. 

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While the Commission did indicate that it would consider other numbers, that 

generalization fails to provide adequate notice under Small Refiner, 705 F.2d at 549. The 

NPRM did not provide sufficient notice under the APA. 

d) There Was Inadequate Notice in the NPRM That the 

Definition of "Contribution" Would Depend On the 

Overbroad "Indicates" Standard Actually Adopted 

The NPRM also considered potential changes to the definition of "contribution" at 11 

C.F.R. Part 100, Subpart B. Two alternatives were presented: the first tied the definition to 

an altered definition of "expenditures," and the second tied the definition to solicitations 

containing "express advocacy" of a clearly identified federal candidate. See 69 Fed. Reg. at 

11,743. The NPRM also broadly asked: "Should the new rule use a standard other than 

express advocacy, such as a solicitation that promotes, supports, attacks, or opposes a Federal 

candidate, or indicates that funds received in response thereto will be used to promote, 

support, attack, or oppose a clearly identified Federal candidate?" Id. at 11,743. 

In sharp contrast, the final section 100.57 treats funds received as contributions "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). The 

rule also provides that if no nonfederal candidates are referred to, all of the funds received 

are federal contributions; if the solicitation also refers to clearly identified nonfederal 

candidates, at least fifty percent of the funds received are contributions. Id. The FEC 

admitted in the Explanation and Justification of the final rules that "the NPRM . . . took a 

different approach." Id. at 68,057. 

The final rule departs too far from the proposed rule and the NPRM's comments. The 

NPRM did not contain any suggestion of a minimum amount of funds received that would be 

federal contributions for solicitations supporting or opposing federal candidates. As stated, 

under the final rule, a solicitation that indicates that only one percent of contributions 

received will be used to support federal candidates – and the rest will be used to support 

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nonfederal candidates – will still trigger the fifty percent minimum contribution level. Such 

a minimum federal percentage for section 100.57 was not even considered in the NPRM. 

Finally, the NPRM did not provide notice that once a solicitation falls under section 

100.57, for any funds received to be considered nonfederal funds a clearly identified 

candidate must be referred to. This is a serious impediment to solicitations, because 

nonfederal candidates are often not as well-known by the audience of a solicitation; indeed, 

early in an election cycle, specific nonfederal candidates may not even have announced their 

candidacies. For instance, a solicitation might request funds to be used to support "George 

Bush and state legislative candidates in Alabama." The Commission has indicated in 

Advisory Opinion 2004-33 that such language would not be considered as referring to clearly 

identified nonfederal candidates. See FEC Advisory Opinion 2004-33 (Sept. 10, 2004). The 

final rule thus requires solicitations to name individual nonfederal candidates that will be 

supported. This result could not have been deduced from the NPRM. 

For the above reasons, the Commission did not provide adequate notice under the 

APA for the final section 100.57. 

C. The Regulations Are Arbitrary and Capricious 

An agency's rulemaking must be vacated if it is found to be "arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). As part 

of this task, a court must determine whether "the agency . . . articulate[d] a satisfactory 

explanation for its action including a 'rational connection between the facts found and the 

choice made.'" Mich. Consol. Gas Co. v. FERC, 883 F.2d 117, 121 (D.C. Cir. 1989) 

(quoting Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 29 

(1983)). "[A]n agency's action is arbitrary and capricious [if] the agency has not considered 

certain relevant factors or articulated any rationale for its choice." Republican Nat'l 

Committee v. FEC, 76 F.3d 400, 407 (D.C. Cir. 1996). 

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1. The Fifty Percent Federal Minimum for Administrative and 

Voter Drive Expenses Is Arbitrary and Capricious 

As noted above, the final regulations require that fifty percent of all administrative 

and voter drive expenses be paid for with federal funds; this minimum threshold amount 

entirely replaces the funds expended method. This application of a universal threshold to all 

allocating committees is arbitrary and capricious.

The Commission reported, in its explanation of the final rules, that a "flat 50% 

allocation minimum recognizes that SSFs and nonconnected committees can be 'dual 

purpose' in that they engage in both Federal and non-Federal election activities. . . . 

However, the 50% figure also recognizes that some Federal SSFs and nonconnected 

committees conduct a significant amount of non-Federal activity in addition to their Federal 

spending." 69 Fed. Reg. at 68,062. That explanation demonstrates the arbitrary nature of the 

Commission's decision. 

The Commission crudely decided that because these committees had a "dual 

purpose," a fifty percent minimum is appropriate. That decision was, simply put, an illogical 

one: the appropriate level of federal funding has nothing to do with how many different roles 

a committee has, and everything to do with their relative importance to the organization. 

Allocating committees differ in their ratio of federal to nonfederal activity. Some large 

committees may only dabble in nonfederal activity; for those organizations, a fifty percent 

minimum would be far too low. Others, such as EMILY's List, have a much higher level of 

nonfederal activity, especially in non-presidential election years. Some committees' federal 

activity may barely reach above the $1,000 minimum threshold for filing with the 

Commission. For those organizations, imposing a fifty percent federal minimum on all 

administrative and voter drive expenses is completely arbitrary.4

 

4 While it is true that fixed ratios apply to state political party committees, and did apply to national 

political party committees before the passage of BCRA, political parties are an entirely different type of

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The Commission's decision is even more capricious than if the rule had been adopted 

in a vacuum, because it supplants the "funds expended" method of calculating allocation 

ratios. This method was designed to ensure that a nonconnected committee's allocation ratio 

for administrative expenses reflected the actual behavior of the organization. This system

flexibly accommodates both differences committee to committee and from cycle to cycle. It

accommodated organizations that only dabble in federal elections, those that only tread

lightly in nonfederal elections, and those – such as EMILY's List – with an active 

commitment to both. To replace this system with a one-size-fits-all minimum percentage is 

arbitrary and capricious.

2. The Solicitation Regulation Is Arbitrary and Capricious 

As described earlier, the solicitation regulation provides that all funds received are 

"contributions" if given in response to a solicitation indicating that "any portion" of the funds 

will be used to support or oppose federal candidates. This is true even if the solicitation 

indicates that some or most of the funds will be used for other purposes, including the 

election or defeat of unspecified nonfederal candidates. This regulation is arbitrary and 

capricious. 

The Commission explained, in the explanation and justification of the final rules, why 

it believed at least some funds should be defined as "contributions" in response to such a 

solicitation. However, there was no "rational basis" for the agency's decision to deem all 

such funds received to be contributions. See Envtl. Defense Fund, Inc. v. Costle, 657 F.2d 

 

organization from nonconnected committees. Political parties are responsible for all candidates running in their 

state, including federal and nonfederal candidates; the Commission's decision to apply fixed ratios depending on

the ratio of federal to nonfederal elections may make administrative sense. And even then, the ratio changes 

depending on the composition of the ballot from election to election, reflecting flexibility not found in the new 

allocation rule. See 11 C.F.R. § 106.7(d). 

By contrast, nonconnected committees pick and choose what elections to support or oppose; 

application of a fixed ratio is nonsensical. Some committees may focus on a higher ratio of federal elections 

and ignore nonfederal races that are less well-publicized. Other committees, such as EMILY's List, have a 

strong commitment to supporting nonfederal candidates, especially in non-presidential election cycles. 

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275, 283 (D.C. Cir. 1981). No explanation was proffered as to why a solicitation's specific 

explanation of how it will use the funds it receives should not trump the presumption that all 

funds are donated and will be used for the purpose of influencing a federal election. 

The solicitation regulation also states that funds received in response to solicitations 

that indicate that funds will be used to support both clearly identified federal and nonfederal 

candidates will be at least fifty percent federal contributions. Even if a solicitation states how 

funds will be used, the regulation imposes its own arbitrary threshold amount of federal 

contributions. The Commission does not explain, in the explanation and justification of the 

final rules or elsewhere, why this uniform level was chosen, even if the solicitation explicitly 

provides otherwise. No rationalization is given for this arbitrary system. The rule is 

therefore arbitrary and capricious. 

3. The Regulations Fail to Consider the Necessary Goals of 

Preventing Corruption and the Appearance of Corruption 

The only constitutionally permissible purpose relied upon by the Supreme Court 

when approving campaign finance reform measures is to "prevent the corruption or the 

appearance of corruption." McConnell, 540 U.S. at 100-01. Yet the Commission never 

considered the effect of the final rules, if any, on corruption or the appearance of corruption. 

This failure renders the regulations arbitrary and capricious. Under State Farm, agencies 

must consider all "relevant factors." 463 U.S. at 43. In the realm of FEC action, failure to 

consider the effect of regulations on fulfilling the primary purpose of FECA – preventing 

corruption and the appearance of corruption – constitutes arbitrary and capricious action. See 

Shays v. FEC, 337 F. Supp. 2d 28, 87 (D.D.C. 2004). 

In the publication of the final rules, the Commission only discussed corruption in the 

context of the definition of "political committee," regulations not ultimately adopted. The 

final rules contain no explanation of their effect on stemming corruption. The solicitation 

regulation's explanation focused on the Commission's belief that it had the power to act; the 

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allocation regulation's explanation focused on administrative convenience. In neither case 

did the Commission consider the impact on the only recognized constitutionally permissible 

goal of campaign finance reform. Because the Commission did not "consider an important 

aspect of the problem," State Farm, 463 U.S. at 43, the regulations are arbitrary and 

capricious. 

D. The Regulations Violate the First Amendment to the United States 

Constitution

1. The Regulations Are Not Narrowly Tailored to Serve an 

Overriding State Interest 

The First Amendment to the United States Constitution prohibits the government 

from restricting the types and amounts of funds used to create political speech or otherwise 

influence federal elections unless the restrictions are meant to prevent the actual or apparent 

corruption of elected officials. See McConnell, 540 U.S. at 93; FEC v. Nat'l Conservative 

Political Action Comm., 470 U.S. 480, 498 (1985); Buckley v. Valeo, 424 U.S. 1, 26 (1976). 

A primary purpose of the First Amendment "was to protect the free discussion of 

governmental affairs . . . of course include[ing] discussion of candidates." Id. at 14 (internal 

quotation marks and citations omitted). "When a law burdens core political speech, we apply 

'exacting scrutiny' and we uphold the restriction only when it is narrowly tailored to serve an 

overriding state interest." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 334-35 (1995). 

The Commission's regulations are in violation the First Amendment. First and 

foremost, they are not narrowly tailored to prevent corruption or the appearance of 

corruption. By regulating communications that merely "refer to" a federal or nonfederal 

candidate, the regulations go far beyond the governmental intrusions approved in Buckley

and its progeny. The new regulations apply specifically to independent communications, 

even those not made for the purpose of influencing an election, and thus pose little or no risk 

of corruption or the appearance of corruption. The fifty percent federal minimum for 

administrative expenses also regulates activity far removed from federal elections, for those 

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allocating committees whose federal activities comprise a small portion of their overall 

electoral efforts. 

These regulations impose severe restrictions on the ability of EMILY's List to engage 

in political speech. If it is forced to obey the restrictions of federal instead of state law, even 

when it is engaged solely in state activities, it may be able to raise and spend much less 

money in support of, or in opposition to, candidates. And because the regulations turn on a 

reference to federal candidates, EMILY's List may be required to remove such references if it 

cannot raise sufficient funds under federal election law restrictions. Such restrictions are a 

substantial and immediate burden upon EMILY's List. 

Because of the substantial burden on Plaintiff's speech, the regulations require a 

strong connection to corruption or the appearance of corruption. No such argument has been 

made by the Commission. It is nonsensical to argue that a donor would attempt to curry 

favor with a candidate running for Congress in one state by paying for a mail piece in another 

state entirely, in which that candidate endorses a state candidate. It is specious to argue that a 

mere "reference" to a candidate, even in the state in which she is running, is so beneficial to 

that candidate that corruption may only be checked by requiring that some or all of the funds 

used be federally regulated. 

The Commission has also offered no rationale why the solicitation restriction is 

necessary to stem corruption or the appearance of corruption. The solicitation restriction of 

section 100.57 prevents donors to a committee from deciding on their own whether their 

funds will go to support federal or state candidates. Indeed, the restriction appears to 

increase the potential for corruption of federal candidates, if anything; funds treated as 

federal despite the donor's intent can and will be used to influence federal elections, even if 

the donor does not wish to curry favor with federal candidates at all. The Commission does 

have an interest in ensuring that organizations not be able to raise funds that will be used in 

part to support federal candidates and classifying none of the resulting contributions as 

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federal funds; the result in that case would be a circumvention of the FECA. But this 

regulation overrules even explicit explanation on the fundraising materials as to how the 

funds will be used. There is no corruption or circumvention rationale for this severe 

restriction on fundraising. 

Even if the regulations could be connected to corruption or the appearance of 

corruption, the Commission has produced no evidence to this point. Such a demonstration 

requires actual evidence, not merely an assertion of a "hypothetical possibility" of corruption. 

Nat'l Conservative Political Action Comm., 470 U.S. at 498; see also United States v. Nat'l 

Treas. Employees Union, 513 U.S. 454, 475-76 (1995). In McConnell, the Supreme Court 

had before it extensive findings by Congress of the nature of the problems with political 

parties and addressed by BCRA. See 540 U.S. at 146. Moreover, the Court specifically 

distinguished the opportunity for corruption involving parties from independent groups 

unable to sell access to officeholders. See id. at 188. Here, the Commission has no evidence 

before it that allocating committees are a source of corruption of officials, or the appearance 

of corruption. 

McConnell does not support the Commission restrictions at issue here. McConnell

upheld a scheme of regulation focused on political party committees and justified by an 

extensive empirical record of corruption or the appearance of corruption entailed in the sale 

"access" to federal officeholders. Moreover, the Supreme Court repeatedly called attention 

to Congress’s care in crafting BCRA; the governmental interest in preventing corruption was 

strong; the regulated entities were in a "unique position" to harm that interest; and the 

consequent restrictions were closely tailored. Only under these circumstances was the 

burden on First Amendment rights justified. McConnell, 540 U.S. at 144-45, 154-55, 156 

n.51, 164-65. 

EMILY's List is not a party committee, and there is no suggestion that it is controlled, 

much less closely coordinates its actions with, federal officeholders. There is no empirical 

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record supporting a concern with corruption effected through the activities of political 

committees like Emily’s List that maintain robust programs in nonfederal elections. Indeed, 

more generally, as the McConnell Court noted, there are "salient differences" between 

political parties’ ability to sell access to officeholders and the inability of independent 

committees to do so, that leave political parties in a "unique position" to foster corruption or 

the appearance of corruption. McConnell, 540 U.S. at 144-45, 154-55, 156 n.51, 164-65, 

188. As the Court explained: 

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. 

Id.

Nonetheless the FEC's regulations impair EMILY's List’s ability to speak publicly, 

and to associate with others for lawful nonfederal purposes, without regard to its mandate to 

regulate communication "for the purpose of influencing any election for Federal office." 2 

U.S.C. § 431(8)(A)(i), (9)(A)(i). BCRA’s carefully documented and tailored restrictions on 

parties are utterly unlike the careless, undocumented and broad-brush restrictions on 

independent speakers at issue here. 

2. The Solicitation Regulation Is Unconstitutionally Vague and 

Overbroad

In addition, the "indicates that" standard of the new section 100.57 is vague and 

overbroad. See City of Chicago v. Morales, 527 U.S. 41, 52 (1999). The phrase "indicates 

that any portion of the funds received will be used to support or oppose the election of a 

clearly identified Federal candidate" is undefined, and the Commission's examples in its 

explanation of the final rules only exacerbate the confusion. See 69 Fed. Reg. at 68,057. The 

Supreme Court has noted that "stricter standards of permissible statutory vagueness may be 

applied to a statute having a potentially inhibiting effect on speech; a man may the less be 

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required to act at his peril here, because the free dissemination of ideas may be the loser." 

Smith v. California, 361 U.S. 147, 151 (1959); see also Hynes v. Mayor of Oradell, 425 U.S. 

610, 620 (1976) ("The general test of vagueness applies with particular force of review of 

laws dealing with speech."). 

There is no hint in the regulation as to what the "indicates that" standard means, or 

what language will be held to meet it. When a person "of common intelligence must 

necessarily guess at its meaning," the regulation will likely chill political speech. Cmty. for 

Creative Non-Violence v. Turner, 893 F.3d 1387, 1395 (D.C. Cir. 1990) (quoting Connally v. 

Gen. Constr. Co., 269 U.S. 385, 391 (1926)). The regulation at issue here is 

unconstitutionally vague. 

IV.CONCLUSION 

For the foregoing reasons, Plaintiff EMILY's List's Motion for Summary Judgment 

should be granted. 

Respectfully submitted, 

Dated May 16, 2005 _____________/s/________________

Robert F. Bauer (D.C. Bar No. 938902) 

Ezra W. Reese (D.C. Bar No. 487760) 

PERKINS COIE LLP 

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011 

(202) 628-6600 

Attorneys for EMILY's List 

[13376-0007-000000/DA051290.046] 39 5/16/05

Case 1:05-cv-00049-CKK Document 20 Filed 05/16/2005 Page 48 of 48
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK 

PLAINTIFF'S STATEMENT OF MATERIAL FACTS AS TO WHICH 

THERE IS NO GENUINE ISSUE 

Pursuant to LCvRs 7(h) and 56.1, Plaintiff EMILY's List hereby submits the 

following statement of material facts as to which there is no genuine issue, to accompany its 

Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. This is a facial challenge 

under the Administrative Procedure Act, 5 U.S.C. § 500 et seq., and the First Amendment to 

the United States Constitution, to regulations promulgated by the Federal Election 

Commission ("FEC" or "the Commission"). 

1. EMILY's List ("EMILY's List" or "the Committee") is a political organization 

whose purpose is to recruit and fund viable women candidates; to help them build and 

run effective campaign organizations; and to mobilize women voters to help elect 

progressive candidates across the country. 

2. EMILY's List is a nonconnected committee that is registered with, and reports 

to, the Commission. It maintains a federal account that accepts only funds from

sources and in amounts permissible under federal campaign law: $5,000 a year from

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federally permissible sources, such as individuals or FEC-registered political action 

committees. 

3. EMILY's List also raises and disburses funds for the purpose of influencing 

state and local elections. For this purpose, it maintains a nonfederal account. This 

account accepts funds from sources, and in amounts, not permissible under federal 

campaign finance law. 

4. EMILY's List reports its nonfederal receipts and disbursements to the Internal 

Revenue Service ("IRS") in accordance with I.R.C. § 527(j). All of EMILY's List's 

disclosure reports, whether to the FEC or the IRS, are publicly available on those 

agencies' respective websites. 

5. Since its organization twenty years ago, EMILY's List has helped to elect at 

least sixty Democratic women to Congress, eleven to the U.S. Senate, seven to 

governorships, and 215 to other state and local offices. These numbers represent only 

the successful candidates actively supported by the Committee. Thousands more—

including many more statewide and state legislative candidates—have received funds, 

advice and other forms of lawful support from EMILY's List. 

6. In the 2005-2006 election cycle, the proportion of EMILY's List's time, 

energy and funds committed to nonfederal elections will increase dramatically. With 

no presidential election in 2006, and thirty-four gubernatorial elections over the next 

two years, the Committee will focus more on gubernatorial and state legislative races, 

and other nonfederal candidates. In 2005, for instance, EMILY's List plans to assist 

state legislative candidates up for election in Virginia and New Jersey: there are no 

regularly scheduled federal elections in 2005, anywhere in the country. 

7. Like other national political organizations, EMILY's List conducts a number 

of activities, such as voter identification, voter registration, get-out-the-vote and 

generic voter mobilization activities, which affect both federal and nonfederal 

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elections. In addition, EMILY's List has certain fixed administrative and overhead 

costs, such as rent, salaries, supplies, and the like. 

8. For many years, the FEC provided for an "allocation" procedure to ensure that 

a political committee paid for those particular expenses attributable to federal 

elections with federal funds, and those particular expenses attributed to state and local 

elections with state funds. Fixed overhead costs were paid with both federal and state 

funds, on a ratio approximating the level of federal versus nonfederal activities 

undertaken by the committee. 

9. For example, until the adoption of the new rules effective January 1, 2005, the 

regulation governing the allocation of administrative and generic voter drives 

expenses was based on the "funds expended" method. Purely federal activity was 

paid for out of the federal account; purely nonfederal activity was paid for out of the 

nonfederal account. Payment for administrative expenses and for generic voter drives 

– that is, voter drives that did not refer to particular candidates – were made using 

funds from both accounts. Political committees paid the costs for administrative 

expenses and generic voter drives on the basis of the ratio of its direct support of 

federal candidates to its direct support of all candidates, federal and nonfederal. The 

rule called for precision in calculating and adjusting this ratio during an election 

cycle, requiring political committees to revise the ratio as required by its actual record 

of supporting both federal and nonfederal candidates. 

10. The result of this allocation scheme was that the payment of generic expenses 

such as communications urging party-wide support and administrative expenses – 

activities designed to further the overall goal of an organization – reflected the share 

of that organization's goal devoted to federal elections. Organizations that focused 

overwhelmingly on federal elections paid for these activities almost entirely with 

federal funds. And organizations such as EMILY's List, which spend at least as much 

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time and money on nonfederal elections as on federal elections, paid for these 

activities with a mix of funds that reflected the organization's actual dual purpose. 

11. The changes in the allocation rules were the result of an administrative 

proceeding established primarily to address organizations alleged to have been 

established to influence only the 2004 Presidential election but using soft money for 

this purpose. 

12. The first step toward the rulemaking occurred with the filing of an advisory 

opinion request with the FEC, aiming to place restriction on a specific political 

committee, America Coming Together ("ACT"), that was operating as a multiplepurpose political committee but was alleged by some to have been created solely to 

oppose President Bush’s candidacy for reelection in 2004. 

13. The opinion request aimed at ACT was filed by a new, paper organization 

named Americans For a Better Country ("ABC") that had neither raised nor spent any 

funds – and has not to this day – but represented supporters of President Bush’s 

reelection. 

14. On February 19, 2004, the Commission issued Advisory Opinion 2003-37. In 

this opinion, the Commission restructured the allocation formulas, requiring 

allocating committees to pay entirely with federal funds for any public 

communication that "promotes, supports, attacks, or opposes" federal candidates. The 

Commission also built this requirement into the formulas for calculating allocations, 

so that any communication of this kind – promoting, supporting, attacking or 

opposing a federal candidate – would be included in the tally of "direct" federal 

candidate support used to determine the federal share of allocated expenses. 

15. The Commission's Office of General Counsel later described this advisory 

opinion as a "substantial reinterpretation of the 'allocation' rules" that "looks an awful 

lot like a regulation." See FEC Agenda Doc. No. 04-48, at 7 (May 11, 2004). 

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16. On March 11, the Commission issued a wide-ranging proposal of new 

regulations. See Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 

2004). While the regulations addressed a variety of topics, they were structured along 

two primary lines meant to address the concerns raised about the two types of 

organizations under attack in the presidential election. First, the regulations targeted 

section 527 organizations that were not registered with the FEC. Second, the 

regulations addressed "allocating committees": entities – such as EMILY's List – that 

were registered with the Commission, but that had nonfederal accounts as well. 

17. The proposed rules, through a revised definition of the FECA term "political 

committee," see 2 U.S.C. § 431(4)(A), required all section 527 organizations that 

were considered to participate in federal elections in any manner to register with and 

report to the Commission. The proposed rules also codified the changes to the 

allocation system first addressed in Advisory Opinion 2003-37, including inclusion of 

the "promotes, supports, attacks, or opposes" standard. The proposed rules further 

treated as federal contributions those funds received in response to a fundraising 

solicitation expressly advocating the election or defeat of federal candidates. 

18. The Commission set what the FEC’s General Counsel aptly described as "a 

highly accelerated schedule for this important and far-reaching rulemaking, targeting 

approval of final rules just two months after publication of the NPRM." FEC Agenda 

Doc. No. 04-48, at 4. Comments were due by April 9, and public hearings with 

thirty-one witnesses were held on April 14 and 15. 

19. Even with fewer than 30 days to address the "important and far-reaching 

rulemaking," more than 100,000 comments were submitted, "far exceeding the 

number of comments received in connection with any of the rulemakings to 

implement BCRA." Id. at 8. This was the first and last noticed opportunity for 

members of the public to comment on the rulemaking. 

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20. The only portions of the proposed rules that received significant comment 

were those targeting section 527 organizations that did not register and report with the 

FEC, both because that was both the impetus and focus of the proceeding, and 

because the new allocation regulations tracked changes already present in Advisory 

Opinion 2003-37. 

21. The General Counsel submitted draft final rules to the FEC on August 12, and 

submitted amendments to those draft final rules on August 18. See FEC Agenda Doc. 

No. 04-75 (Aug. 12, 2004), FEC Agenda Doc. No. 04-75-C (Aug. 18, 2004). 

22. On August 17, EMILY's List, among others, wrote a letter to the Commission 

noting that "the new proposed rules . . . provide for substantially different allocation 

rules for separate segregated funds and non-connected committees." The letter 

requested that the FEC publish the draft final rules for new comment, due to the 

magnitude of the changes, and postpone consideration of them until afterward. 

23. The FEC did not respond to this letter. 

24. During the Commission meeting of August 19, Commissioner McDonald 

called for the new draft rules to be submitted for a sixty-day comment period. This 

motion failed by a 3-3 vote. See FEC Agenda Doc. No. 04-77, at 8 (Sept. 9, 2004) 

(minutes of Aug. 19, 2004 meeting). 

25. The final rules, approved on October 28, did not include a revised definition 

of "political committee," and did not address unregistered 527 organizations. 

26. Moreover, the new rules focused not on whether communications "promoted, 

supported, attacked, or opposed" candidates, but whether they referred to candidates. 

27. In addition, the allocation system for administrative expenses and voter drives 

was reduced to a system of threshold amounts. For example, a public communication 

that referred to a political party, but to no clearly identified candidates at all, had to be 

financed with no less than fifty percent federally regulated funds. The new rules took 

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no account of a political committee’s operating history or actual record of 

involvement in supporting federal and nonfederal candidates. 

28. The final rules also contained a new definition of "contribution" unlike that 

contained in the proposed rules, which defined contributions as funds received in 

response to a solicitation that "indicates that" any portion of the funds will be used to 

"support or oppose" federal candidates. 

29. The final rules, with explanation and justification and several additional 

amendments, were approved on October 28, 2004, and published on November 23, 

2004. See FEC Agenda Doc. No. 04-102, at 3-5 ( Nov. 18, 2004) (minutes of Oct. 

28, 2004 meeting); Political Committee Status, Definition of Contribution, and 

Allocation for Separate Segregated Funds and Nonconnected Committees, 69 Fed. 

Reg. 68,056 (Nov. 23, 2004). 

Respectfully submitted, 

Dated May 16, 2005 _____________/s/________________

Robert F. Bauer (D.C. Bar No. 938902) 

Ezra W. Reese (D.C. Bar No. 487760) 

PERKINS COIE LLP 

607 Fourteenth Street, N.W. 

Washington, D.C. 20005-2011 

(202) 628-6600 

Attorneys for EMILY's List 

Case 1:05-cv-00049-CKK Document 20-2 Filed 05/16/2005 Page 7 of 7
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK 

PROPOSED ORDER ON PLAINTIFF'S MOTION FOR SUMMARY 

JUDGMENT 

This cases comes before the Court on cross-motions for summary judgment. For the 

reasons set forth in the accompanying Memorandum Opinion, it is this ___ day of _______, 

2005, hereby 

ORDERED that Plaintiff's Motion for Summary Judgment (#___) is GRANTED; and 

it is further 

ORDERED that Defendant's Motion for Summary Judgment (#___) is DENIED; and 

it is further 

ORDERED that Title 11 C.F.R. §§ 100.57 and 106.6, promulgated by the Federal 

Election Commission, are held unlawful and set aside; and it is further 

ORDERED that the Commission shall, within 15 (15) days from the date of his 

Order, commence proceedings to promulgate new regulations that remedy the defects in the 

above-specified regulations set forth in the accompanying Memorandum Opinion; and it is 

further 

ORDERED that the Commission shall, within thirty (30) days from the date of this 

Order, issue appropriate interim regulations to govern during the pendency of its rulemaking 

proceedings, which shall remedy the defects in the above specified regulations set forth in the 

accompanying Memorandum Opinion; and it is further 

ORDERED that the Commission shall, within thirty (30) days from the date of this 

Order, report to the Court on its progress in issuing the interim regulations ordered above and 

in conducting proceedings to promulgate new regulations that comply with this Order and the 

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accompanying Memorandum Opinion, and that the Commission shall continue to report to 

the Court at such intervals to be established by the Court; and it is further 

ORDERED that the Court shall retain jurisdiction over this matter to ensure the 

Commission's timely and sufficient compliance with the provisions of this Order and the 

accompanying Memorandum Opinion. 

SO ORDERED. 

______________________________________ 

COLLEEN KOLLAR-KOTELLY 

United States District Judge

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