ORAL ARGUMENT NOT YET SCHEDULED 

 

No. 08-5422 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

EMILY’S LIST, 

Plaintiff-Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee.

 

On Appeal from the United States District Court for the District of Columbia 

 

BRIEF AMICI CURIAE FOR 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

IN SUPPORT OF DEFENDANT-APPELLEE AND URGING AFFIRMANCE 

 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Democracy 21 

J. Gerald Hebert 

(D.C. Bar No. 447676) 

Trevor Potter 

(Bar No. 413778) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

(202) 736-2200 

Counsel for the Campaign Legal 

 Center 
CERTIFICATE OF COUNSEL FOR AMICI CURIAE CAMPAIGN LEGAL 

CENTER AND DEMOCRACY 21 AS TO PARTIES, CORPORATE 

DISCLOSURE, RULINGS AND RELATED CASES 

I. Parties and Amici

 EMILY’s List was the plaintiff in the district court and is the appellant in 

this Court. The FEC was the defendant below and is the appellee in this Court. 

Amici curiae in the district court were Democracy 21, the Campaign Legal Center 

(CLC), the Center for Responsive Politics, John McCain, Russell Feingold, 

Christopher Shays, and Martin Meehan. In this Court, the CLC and Democracy 21 

are participating as amici curiae. 

II. Corporate Disclosure Statement 

 The CLC is a nonprofit, nonpartisan corporation. The CLC has no parent 

corporation and no publicly held corporation has any form of ownership interest in 

the CLC. Democracy 21 is a nonprofit, nonpartisan corporation. Democracy 21 

has no parent corporation and no publicly held corporation has any form of 

ownership interest in Democracy 21. 

III. Ruling Under Review 

 The ruling under review is the opinion and order issued by District Judge 

Colleen Kollar-Kotelly on July 31, 2008, granting the FEC’s motion for summary 

judgment, and denying EMILY’s List’s motion for summary judgment. The 

court’s opinion is reported as EMILY’s List v. FEC, 569 F. Supp. 2d 18 (D.D.C. 

2008). 
IV. Related Cases 

 There are no related cases pending in this Court or in any other court. This 

case was previously before this Court on EMILY’s List’s appeal of the district 

court’s denial of its motion for a preliminary injunction. This Court affirmed the 

denial. EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C.), aff’d, 170 Fed. Appx. 

719 (D.C. Cir. 2005) (No. 05-5160). 
TABLE OF CONTENTS 

STATEMENT OF INTEREST.......................................................................... 1 

SUMMARY OF ARGUMENT.......................................................................... 1 

BACKGROUND.................................................................................................. 5 

A. The Allocation System.................................................................... 5 

1. Origins of allocation.. ............................................................ 7 

2. BCRA and McConnell.. .......................................................... 9 

3. ACT and allocation in the 2004 campaign ............................ 6 

B. The 2004 Rulemaking................................................................... 13 

ARGUMENT ..................................................................................................... 17 

A. The Challenged Rules Regulate Contributions and Are 

 Therefore Subject Only to “Less Rigorous” Scrutiny .............. 17 

B. The Challenged Regulations Implement the Federal 

 Contribution Limits and Therefore Serve the State Interest in 

 Preventing Corruption and the Appearance of Corruption .... 23 

C. The Challenged Regulations Are Constitutional and Do Not 

 Exceed the FEC’s Statutory Authority.. .................................... 25 

1. The Minimum Allocation Percentage Does Not Violate the 

 First Amendment and Represents a Reasonable Exercise of 

 the FEC’s Authority... .......................................................... 25 

2. The Rule Requiring Federal Committees to Use Federal 

 Funds for Ads that “Refer” to Federal Candidates Is Neither 

 Unconstitutional Nor Unreasonable.................................... 29 

3. The Solicitation Rule Is Constitutional and Within the FEC’s 

 Statutory Authority.... ........................................................... 31 
CONCLUSION.................................................................................................. 33 

CERTIFICATE OF COMPLIANCE.............................................................. 34 

CERTIFICATE OF SERVICE........................................................................ 35 
TABLE OF AUTHORITIES 

*Authorities upon which we chiefly rely are marked with an asterisk. 

Cases: Page(s)

Austin v. Michigan Chamber of Commerce, 

 494 U.S. 652 (1990)............................................................................................. 20 

*Buckley v. Valeo, 

 424 U.S. 1 (1976)......................................................................... 18, 22, 23, 30, 32 

California Medical Assn. v. FEC, 

 453 U.S. 182 (1981)....................................................................................... 21, 24 

Common Cause v. FEC, 

 692 F. Supp. 1391 (D.D.C. 1987)................................................................ 4, 6, 26 

*EMILY’s List v. FEC, 

 569 F. Supp. 2d 18 (D.D.C. 2008)................................................................ passim

FEC v. Beaumont, 

 539 U.S. 146 (2003)............................................................................................. 20 

Colorado Republican Campaign Committee v. FEC, 

 518 U.S. 604 (1996)........................................................................................17-18 

*FEC v. Wisconsin Right to Life, Inc., 

 127 S. Ct. 2652 (2007).................................................................................. passim

McConnell v. FEC, 

 251 F. Supp. 2d 156 (D.C.C. 2003)................................................................... 5, 7 

*McConnell v. FEC, 

 540 U.S. 93 (2003)........................................................................................ passim

Statutes: 

2 US.C. § 431(20)(A)(iii)......................................................................................... .8 

2 U.S.C. § 431(8)(A)(i) ..................................................................................... 24, 31 
2 U.S.C. § 431(9)(A)(i).....................................................................26 

2 U.S.C. § 441a(a)(1)(C)........................................................................................... 5 

2 U.S.C. § 441i(a)................................................................................................ 8, 19 

2 U.S.C. § 441i(b)(1)........................................................................................... 8, 19 

2 U.S.C. § 441i(b)(2)................................................................................................. 8 

26 U.S.C. § 527 ......................................................................................................... 1 

Bipartisan Campaign Reform Act of 2002, 

 Pub. L. No. 107-155, 116 Stat. 81(2002) .............................................................. 1 

Regulations: 

11 C.F.R. § 100.57 (2005)................................................................... 3, 4, 17, 24, 31 

11 C.F.R. § 106.1(a) (2002) ...................................................................................... 6 

11 C.F.R. § 106.1(e) (1977) ...................................................................................... 5 

11 C.F.R. 106.5(b)(2)(i)(2002) ................................................................................. 7 

11 C.F.R. 106.5(b)(2)(ii) 2002)................................................................................. 7 

11 C.F.R. § 106.6 (2002)......................................................................................... 10 

11 C.F.R. § 106.6(b)(2)(iii) (2002) ........................................................................... 6 

11 C.F.R. § 106.6(c) (2002) ...................................................................................... 7 

11 C.F.R. § 106.6(c)(1) (2002). ................................................................................ 7 

11 C.F.R. § 106.6(c) (2005) ...................................................................... 3, 4, 17, 23 

11 C.F.R. § 106.6(f)(3)(i) (2005) ...................................................................... 29, 31 

55 Fed. Reg. 26,058 (Jun. 26, 1990) ......................................................................... 6 
69 Fed. Reg. 11,736 (Mar. 11, 2004)...................................................................... 15 

69 Fed. Reg. 68,059 (Nov. 23, 2004)...................................................................... 16 

Other Authorities: 

Thomas Edsall, Liberals Form Fund to Defeat President; Aim is to Spend $75 

Million for 2004, THE WASHINGTON POST, Aug. 8, 2003..............................12 

George Soros, Why I Gave, THE WASHINGTON POST, Dec. 5, 2003..................13 
 1

STATEMENT OF INTEREST

Amici curiae Campaign Legal Center and Democracy 21 are non-profit 

organizations that have extensive experience working for the enactment and 

effective implementation of the campaign finance laws. Both groups represented 

intervening defendants in McConnell v. FEC, 540 U.S. 93 (2003) and FEC v. 

Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL II”). Amici also filed 

written comments and testified before the FEC in the rulemaking that resulted in 

the rules challenged in this action.1

SUMMARY OF ARGUMENT

In 2002, Congress enacted landmark campaign finance reform legislation, 

the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 

Stat. 81 (2002), to stop the political parties from using massive amounts of “soft” 

money raised outside of the federal contribution limits and source requirements to 

influence federal elections. BCRA accomplished its basic goal in the 2004, 2006 

and 2008 elections: it ended the flood of corrupting soft money that once flowed 

through party committees into federal campaigns. 

 

1

 See comments of Democracy 21, Campaign Legal Center, et al re Notice 

2004-6 (Apr.5, 2004), available at 

http://www.fec.gov/pdf/nprm/political_comm_status/simon_potter_nobel_sanford.

pdf.
 2

 Despite the success of BCRA, new techniques were developed in the 2004 

election cycle to continue the spending of soft money in federal elections through 

non-party entities. 

 One technique was the use of so-called “527 groups.” These were “political 

organizations” registered with the Internal Revenue Service under section 527 of 

the tax code, 26 U.S.C. § 527, that attempted to influence federal elections, but 

refused to register with the FEC as “political committees” subject to the Federal 

Election Campaign Act (FECA). Operating in defiance of the federal election 

laws, these groups spent millions of dollars of soft money to broadcast ads 

attacking or promoting federal candidates in the 2004 elections – a practice that 

continued in the 2006 and 2008 elections. 

 The second technique – at issue in this case – involved the manipulation of 

the FEC’s former rules governing how federal political committees could 

“allocate” between federal “hard” money and non-federal “soft” money accounts 

when financing “generic” or “mixed” activities that affected both federal and nonfederal elections. The prime example of this in 2004 was America Coming 

Together (“ACT”), a federal political committee that contrived to finance a $100-

million voter mobilization effort almost entirely with non-federal money. Even 

though ACT was formed for the overriding purpose of influencing the 2004 
 3

presidential election, it claimed a right under the then-existing FEC allocation rules 

to fund 98 percent of its activities with soft money.

 To close these emerging avenues for circumventing the law, the FEC 

initiated a rulemaking in 2004 to address the proliferation of 527 groups, as well as 

the manipulation of the allocation rules. Although the FEC did not issue a new 

rule to address the circumvention of the law practiced by 527 groups, it did amend 

its then-existing allocation regulations to prevent, on a prospective basis following 

the 2004 election, the kind of manipulation of the allocation system that resulted in 

ACT’s soft money abuses. 11 C.F.R. § 106.6(c), (f) (2005). The Commission also 

clarified FECA’s definition of “contribution” to include funds raised in response to 

solicitations that indicate the money will be spent to influence federal elections. 11 

C.F.R. § 100.57 (2005). 

It is these rules that are challenged in this case. The district court below 

upheld the regulations, granting summary judgment for the FEC in July 2008. 

EMILY’s List v. FEC, 569 F. Supp. 2d 18 (D.D.C. 2008). 

This Court should affirm the district court’s well-reasoned decision. The 

regulations are consistent with the First Amendment, represent a reasonable 

exercise of the FEC’s statutory authority, and are not arbitrary and capricious. 

They serve the important governmental goals of preventing the circumvention of 
 4

the federal contribution limits and shutting down the soft money abuses that 

developed after the passage of BCRA. 

 The new “allocation” regulation sets a floor requiring a federal political 

committee to spend at least 50 percent federal funds for its “generic” activities and 

its administrative expenses. 11 C.F.R. § 106.6(c). This rule is modest in scope: it 

still allows a federal committee to fund many of its activities with 50 percent nonfederal funds. And as the district court below found in an earlier case, the FEC 

could have concluded that a federal political committee must use 100 percent 

federal funds to finance such activities. Common Cause v. FEC, 692 F. Supp. 

1391 (D.D.C. 1987). 

 The allocation regulation also specifies how federal political committees 

should allocate their expenses for political communications that reference clearlyidentified federal candidates and/or non-federal candidates. 11 C.F.R. § 106.6(f). 

The rule for such candidate-specific expenditures follows the reasonable, commonsense principle that the allocation of federal funds should be proportionate to the 

percentage of the communication focusing on federal elections. 

Finally, the contribution solicitation regulation provides that funds received 

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

used to support or oppose the election of a clearly identified Federal candidate” are 

“contributions” subject to FECA. 11 C.F.R. § 100.57. By clarifying FECA’s 
 5

definition of “contribution,” the rule serves the governmental interest in preventing 

circumvention of the federal contribution limits, and represents a permissible 

exercise of the FEC’s statutory authority. 

BACKGROUND

A. The Allocation System

1. Origins of allocation. The 1974 Amendments to FECA imposed a 

$5,000 limit on contributions to a federal political committee not connected to a 

political party. 2 U.S.C. § 441a(a)(1)(C). Throughout its history, the FEC has 

“struggled” to enforce this federal contribution limit in circumstances where 

federal political committees engage in “mixed” or “generic” activities that 

influence both federal and non-federal campaigns, such as voter mobilization 

efforts that register and bring to the polls voters who then cast ballots in both 

federal and non-federal campaigns. McConnell v. FEC, 251 F. Supp. 2d 176, 195 

(D.D.C. 2003) (three-judge court) (per curiam). 

In 1977, the Commission adopted rules that allowed political committees, 

including non-party committees, to establish federal and non-federal accounts and 

to allocate expenses “on a reasonable basis” between the two. 11 C.F.R. § 106.1(e) 

(1977); see McConnell, 251 F. Supp. 2d. at 196. In 1987, a district court below 

held that this “reasonable basis” rule was too permissive because it allowed a 

committee to determine its own allocation ratio, and thus “fail[ed] to regulate 
 6

improper or inaccurate allocation between federal and non-federal funds.” 

Common Cause, 692 F. Supp. at 1395. In response, the Commission in 1990 

promulgated new rules that established more specific allocation formulae.2

 

 Under the new rules, committees were permitted to allocate funds from 

federal and non-federal accounts for payments made on behalf of both “one or 

more clearly identified federal candidates” and “one or more clearly identified nonfederal candidates.” 11 C.F.R. § 106.1(a) (2002). This type of spending was to be 

allocated “according to the benefit reasonably expected to be derived.” Id. Thus, 

in the case of an ad that referred to both federal and non-federal candidates, “the 

attribution shall be determined by the proportion of space or time devoted to each 

candidate as compared to the total space or time devoted to all candidates.” Id. 

This rule applied to both party and non-party committees alike. 

Committees were also permitted to allocate payments for their 

administrative expenses, and for “[g]eneric voter drives including voter 

identification, voter registration, and get-out-the-vote drives, or any other activities 

that urge the general public to register, vote or support candidates of a particular 

party or associated with a particular issue, without mentioning a specific 

candidate.” 11 C.F.R. § 106.6(b)(2)(iii) (2002). 

 

2

 See “Methods of Allocation Between Federal and Non-Federal Accounts; 

Payments; Reporting,” 55 Fed. Reg. 26,058 (June 26, 1990). 
 7

But the 1990 rules distinguished between party and non-party committees in 

connection to this type of “generic” spending. A non-party committee’s ratio for 

allocating these costs was determined pursuant to the so-called “funds expended 

method.” 11 C.F.R. § 106.6(c) (2002). Under this method, expenses were be 

allocated based on the ratio of federal expenditures to total federal and non-federal 

disbursements made by the committee during the two-year federal election cycle. 

11 C.F.R. § 106.6(c)(1) (2002). 

The rules were different for party committees. For national party 

committees, allocation of “generic” expenses was done by fixed percentages, 

depending on the year in which the spending was done. National party committees 

in a presidential election year were required to allocate to their federal account a 

flat 65 percent of their spending on generic voter drives and administrative 

expenses, and 60 percent in non-presidential election years. 11 C.F.R. § 

106.5(b)(2)(i), (ii) (2002). 

2. BCRA and McConnell. Political committees operated under these 

allocation rules starting from their effective date of 1991. In this period, party 

committees became major conduits for soft money entering federal elections. In 

1992, the national party committees raised about $80 million of soft money; by 

2000, that increased more than six-fold to about $500 million. See McConnell, 251 

F. Supp. 2d at 440-41. 
 8

To address this problem, Congress in BCRA banned national party 

committees from raising or spending any non-federal funds, thus mooting the 

allocation question for such committees. 2 U.S.C. § 441i(a) (2002). State party 

committees were allowed to continue to raise non-federal funds for non-federal 

races, but could not spend such funds on ads that “promote, support, attack or 

oppose” federal candidates. 2 U.S.C. §§ 441i(b)(1), 431(20)(A)(iii) (2002). State 

parties were also required to fund certain specified voter mobilization activities 

(identified as “federal election activities”) with either federal funds or a mixture of 

federal funds and specially regulated non-federal funds, dubbed “Levin” funds. 2 

U.S.C. § 441i(b)(2). 

 In reviewing BCRA’s soft money provisions, the Supreme Court in 

McConnell explicitly recognized that the Commission’s allocation rules for 

political parties had fundamentally undermined FECA. The Court found that voter 

mobilization and generic activities plainly benefit federal candidates, stating that 

“[c]ommon sense dictates . . . that a party’s efforts to register voters sympathetic to 

that party directly assist the party’s candidates for federal office.” 540 U.S. at 167-

68 (citing 251 F. Supp. 2d at 460 (Kollar-Kotelly, J.)). Yet, as the Court noted, the 

FEC’s allocation regime allowed parties to “to use vast amounts of soft money in 

their efforts to elect federal candidates” through such voter mobilization efforts and 

other generic activities. Id. at 142. The Court concluded that the FECA “was 
 9

subverted by the creation of the FEC’s allocation regime,” id., which “invited 

widespread circumvention” of the law. Id. at 145. The Court accordingly upheld 

in their entirety the provisions of BCRA that ended national party committee 

allocation, and in so doing, rejected any argument that the allocation regime had 

been constitutionally compelled. Id. at 186-89 (rejecting claims based on the 

Elections Clause, the Tenth Amendment and the Due Process Clause). The Court 

also upheld the BCRA soft money provisions relating to state party spending. Id.

at 164-71. 

3. ACT and allocation in the 2004 campaign. Although the Court in 

McConnell addressed only the operation of the allocation rules for party 

committees, its conclusion that allocation “invited widespread circumvention” is 

applicable to the pre-2005 FEC allocation rule for non-party committees as well. 

In particular, the “funds expended” allocation method devised in the 1990 

rulemaking allowed non-party committees to finance their allocable generic 

activities and administrative expenses almost entirely with non-federal funds by 

manipulating how their allocation ratio was calculated – even if the committees 

focused almost exclusively on federal elections. 

This manipulation could take place because of how the “funds expended” 

formula worked. The percentage of federal funds required to pay for a 

committee’s allocable activities was based entirely on the committee’s candidate-
 10

specific disbursements. The formula compared the amount of a committee’s 

federal candidate-specific expenditures to the committee’s total candidate-specific

disbursements (not including overhead or other generic costs). The resulting ratio 

was then used as the federal percentage for that committee’s non-candidatespecific allocable spending, i.e., for administrative costs and generic activities. 

And unlike for party committees, no minimum federal percentage was imposed. 

11 C.F.R. § 106.6 (2002). 

For instance, if a non-connected political committee made no expenditures 

on behalf of specific federal candidates, but made a single small disbursement on 

behalf of a specific non-federal candidate, this “funds expended” allocation 

formula would calculate a zero federal allocation requirement. This would permit 

the committee to pay for a generic partisan voter drive – even one admittedly 

intended to elect a presidential candidate – entirely with soft money, since the 

committee would have no expenditures “on behalf of specific federal candidates.” 

This is essentially what ACT did in 2004. Although this case has been 

brought by EMILY’s List, the FEC’s rules challenged here cannot be understood 

without a discussion of the problem they were addressing, epitomized by ACT’s 

activities in the 2004 presidential election under the prior allocation rule. 
 11

ACT was organized for the overriding purpose of engaging in massive 

generic voter mobilization activities to elect the Democratic presidential nominee.3

 

ACT registered as a federal political committee (with a non-federal account) but 

avoided federal candidate-specific activity – eschewing, for example, express 

advocacy communications on behalf of federal candidates. Because it alleged it 

was doing little such candidate-specific federal activity, it claimed an allocation 

ratio, calculated under the “funds expended” method, of 2% federal and 98% nonfederal. It then applied this ratio to all of its generic spending, as well as to its 

administrative expenses. 

Since ACT alleged that it focused almost entirely on generic voter drive 

activity, virtually all of its spending was funded as allocated activity, and virtually 

all of that spending – 98 percent – was funded out of its non-federal account with 

soft money. 

 This occurred despite the fact that ACT openly engaged in these voter 

mobilization activities in order to defeat President Bush, and to elect the 

Democratic nominee. According to Washington Post report about the formation of 

ACT, its president, Ellen Malcolm (also president of EMILY’s List), admitted that 

 

3

 See Comments of Democracy 21 et al., supra n.1. 
 12

ACT would conduct “a massive get-out-the-vote operation that we think will 

defeat George W. Bush in 2004.”4

 This overriding purpose was confirmed by ACT’s direct mail fundraising 

materials. The envelope of one such solicitation stated: 

17 States; 

25,000 Organizers; 

200,000 Volunteers; 

10 Million Doors Knocked On 

. . . and a one-way ticket back to Crawford, Texas5

The solicitation letter itself is focused on the presidential election:

[I]f we can count on your personal support and active participation, 

2004 will be a year of America Coming Together and George W. 

Bush going home . . . .6

 

4

 Thomas Edsall, Liberals Form Fund to Defeat President; Aim is to Spend 

$75 Million for 2004, THE WASHINGTON POST, Aug. 8, 2003, available at 

http://www.commondreams.org/headlines03/0808-08.htm. 

5

 This solicitation was discussed in comments in the administrative record 

below. See supra, n.1. It was also appended to various FEC filings by amici. See, 

e.g., Comments of Democracy 21, et al. in AOR 2004-5 (February 12, 2004), 

which can be found using the FEC’s search engine at

http://saos.nictusa.com/saos/searchao?SUBMIT=continue.

6

 See Solicitation, supra n.5, at 1-2. 
 13

According to public reports, ACT spent approximately $100 million dollars 

of soft money on these activities.7

 It received the bulk of its funding from a 

handful of large donors, most prominently the financier, George Soros, who gave 

$7.5 million directly to ACT.8

 Soros made clear that this money was given to ACT

for the purpose of defeating President Bush, writing in a Washington Post op-ed 

that he and others were “contributing millions of dollars to grass-roots 

organizations engaged in the 2004 presidential election” because they “are deeply 

concerned with the direction in which the Bush administration is taking the United 

States and the world.”9

B. The 2004 Rulemaking

The fact that ACT in early 2004 was claiming a right under the then-existing 

allocation rule to use 98 percent soft money to fund its voter mobilization activities 

 

7

 See FEC Conciliation Agreement with ACT, at 6-12, infra n.16. 

8

 A list of the donors to ACT can be found on the website of the Center for 

Responsive Politics, at http://www.opensecrets.org/527s/527cmtedetail.asp?ein= 

200094706&cycle=2004&format =& tname =America+Coming+Together. Large 

donors to ACT include the Service Employees International Union (SEIU), which 

gave $4 million, InterService Corp., which gave $3 million, and businessman Peter 

Lewis, who gave almost $3 million. ACT received $52 million, or about twothirds of its total receipts of about $78 million, from a group of just 14 donors, who 

each gave $1 million or more. Id. 

9

 George Soros, Why I Gave, THE WASHINGTON POST, Dec. 5, 2003. 

 
 14

to elect a Democratic president was an important backdrop for the FEC’s 2004 

rulemaking. 

 In February 2004, in light of press reports about ACT’s formation and 

intended activities, as well as reports about the activities of 527 groups not 

registered as political committees, the Commission announced an expedited 

rulemaking to address these continuing soft money abuses. 

Amici wrote to the Commission to support the planned rulemaking, and to 

urge it to “adopt new rules on the allocation formula for non-connected political 

committees.”10 The amici also called the Commission’s attention to the 

manipulation of the allocation rules that was being undertaken by ACT: 

Thus, ACT is currently claiming a right to pay for its partisan generic 

voter mobilization activity with 98 percent soft money funding, 

despite the fact that ACT and its donors have made publicly clear that 

its overriding purpose is to spend money to mobilize voters to defeat 

President Bush in the 2004 elections.... 

ACT’s position illustrates the fundamental flaw in the Commission’s 

existing Part 106 regulations.... Simply put, the existing regulations 

completely fail to protect against the improper flow of soft money into 

federal elections through partisan voter mobilization activities of 

section 527 groups. Instead, the regulations authorize easy 

 

10 Letter of February 25, 2004 to FEC Commissioners from Democracy 21, the 

Campaign Legal Center and the Center for Responsive Politics at 1, available at

http://www.fec.gov/pdf/nprm/political_comm_status/exparte_commissioners.pdf.
 15

manipulation of the allocation ratio in order to set the soft money 

percentage at a fictional and absurdly high level.11

The Commission published its Notice of Proposed Rulemaking (NPRM) on 

March 11, 2004. “Political Committee Status,” 69 Fed. Reg. 11,736 (March 11, 

2004). The NPRM, in part, addressed the question of when a 527 organization was 

required to register as a political committee, and in part addressed the allocation 

issue. 

It sought general comment on “whether either BCRA or McConnell requires, 

permits, or prohibits changes to the allocation regulations for separate segregated 

funds and nonconnected committees.” Id. at 11,753. In addition to proposing a 

modification to the “funds expended” allocation method, id. at 11,754-55, the 

NPRM expressly invited comment on whether a 50 percent minimum federal 

percentage should be imposed on some or all political committees. Id. at 11,754. 

The NPRM also raised the fundamental question of whether the Commission 

should permit allocation at all, “[g]iven McConnell’s criticism of the 

Commission’s prior allocation rules for political parties.” Id. at 11,753. 

As to the issue of allocation by registered political committees, comments 

were filed by ACT, The Media Fund, the congressional sponsors of BCRA, the 

 

11 Id. at 2. 
 16

amici, and others. EMILY’s List, however, did not itself take advantage of the 

opportunity to do so. Amici supported the proposal for a 50 percent minimum 

federal allocation.12 Not surprisingly, ACT, the principal beneficiary of the 

allocation loophole in the 2004 election, filed written comments opposing all 

proposed changes to the allocation rules.13

 

 In August, 2004, the FEC’s general counsel proposed that the Commission 

adopt several new rules, including revisions to the allocation rules for non-party 

political committees, and a clarified definition of the statutory term “contribution” 

to include funds received in response to solicitations that indicate the funds will be 

used to promote or oppose federal candidates.14

 

 The Commission approved the general counsel’s proposal to modify the 

allocation system and to clarify the definition of “contribution.”15 The new rules 

took effect on January 1, 2005.16

 

12 Comments of Democracy 21 et al., supra n.1 at 3, 14-20. 

13 Comments of America Coming Together re Notice 2004-6 (Apr. 5, 2004) at 

35. 

14 Agenda Document 04-75 (Aug. 19, 2004), available at

http://www.fec.gov/agenda/2004/mtgdoc04-75.pdf. 

15 “Political Committee Status, Definition of Contribution, and Allocation for 

Separate Segregated Funds and Nonconnected Committees,” 69 Fed. Reg. 68,056 

(Nov. 23, 2004). 
 17

ARGUMENT

A. The Challenged Rules Regulate Contributions and Are Therefore 

Subject Only to “Less Rigorous” Scrutiny.

The district court properly rejected EMILY’s List’s argument that the 

allocation regulations, 11 C.F.R. § 106.6(c), (f), are the “functional equivalent of 

spending limits” and, as such, are subject to strict scrutiny. Brief of PlaintiffAppellant (“Br.”) at 20; see also 569 F. Supp. 2d at 38-40. This court should do 

the same. This court should likewise reject EMILY’s List’s argument, raised for 

the first time on appeal, that the solicitation regulation, see 11 C.F.R. § 100.57(a), 

also warrants strict scrutiny. 

The reason EMILY’s List attempts to cast the regulations as “spending 

limits” is because the Supreme Court has found a “fundamental constitutional 

difference” between contribution limits and expenditure limits for the purposes of 

First Amendment review. Colorado Republican Campaign Committee v. FEC, 

518 U.S. 604, 614 (1996). Because expenditure limits bar individuals from “any 

 

16 The epilogue to the rulemaking was a subsequent FEC enforcement 

proceeding, in which the Commission concluded that ACT illegally spent about 

$100 million of soft money to influence the 2004 presidential election, in violation 

of the FEC’s pre-2005 allocation regulations. As part of a settlement, ACT agreed 

to pay a civil penalty of $775,000 – less than one percent of the amount of its 

illegal spending. See Conciliation Agreement in the Matter of America Coming 

Together, MUR 5403 and 5466 (Aug. 23, 2007), available at

http://eqs.nictusa.com/eqsdocs/000061A1.pdf. 
 18

significant use of the most effective modes of communication,” see Buckley v. 

Valeo, 424 U.S. 1, 19-20 (1976), the Court holds them to strict scrutiny. Id. at 44-

45; McConnell, 540 U.S. at 134-35. Contribution limits are less burdensome of 

speech because they “permit[] the symbolic expression of support” for a candidate, 

and hence warrant “less rigorous” review. McConnell, 540 U.S. at 135, 137. 

Although EMILY’s List’s motivation for classifying the challenged 

regulations as “spending limits” is clear, its rationale for such a classification is 

not. It offers no reason why the solicitation regulation – which clarifies the 

FECA’s definition of “contribution” – warrants the strict scrutiny reserved for 

expenditure limits, making only the extraneous claim that the regulation is 

“overbroad” and “nebulous.” Br. at 21. 

EMILY’s List fares little better with respect to the allocation rules. It asserts 

that these rules function as an expenditure limit because they “prohibit EMILY’s 

List from supporting state and local candidates in certain ways when its federal 

funds are exhausted.” Br. at 20. But this is simply incorrect. The allocation rules 

in no way “prohibit” or limit the amount of EMILY’s List’s expenditures on behalf 

of state and local candidates. They merely establish the circumstances in which 

EMILY’s List is required to use funds raised in compliance with the federal 

contribution limits. 
 19

 Indeed, the allocation regulations are directly analogous to the soft money 

provisions in Title I of BCRA, which were upheld in their entirety in McConnell. 

Title I requires national political party committees to use only federally-regulated 

hard money for all their spending, see 2 U.S.C. § 441i(a), and state party 

committees to do so for certain defined “federal election activities,” see 2 U.S.C. § 

441i(b). As the Court noted in McConnell, however, “neither provision in any way 

limits the total amount of money parties can spend. Rather, they simply limit the 

source and individual amount of donations. That they do so by prohibiting the 

spending of soft money does not render them expenditure limitations.” 540 U.S. at 

139. 

Precisely the same is true of the Commission’s allocation regulations here: 

they do not limit the total amount of spending by a non-connected committee like 

EMILY’s List, but rather require it to use federally regulated funds for some or all 

of that spending. Thus, like Title I of BCRA, the allocation provision “does little 

more than regulate the ability of wealthy individuals, corporations, and unions to 

contribute large sums of money to influence federal elections, federal candidates, 

and federal officeholders.” McConnell, 540 U.S. at 138. In McConnell, the Court 

reviewed the constitutionality of Title I by “the less rigorous scrutiny applicable to 

contribution limits.” Id. at 141. That same standard should apply here.
 20

Nor does EMILY’s List’s invocation of the Supreme Court’s decision in 

WRTL II provide support for the application of strict scrutiny here. 

WRTL II considered the constitutionality of Title II of BCRA, which banned

corporations and unions from spending treasury funds for “electioneering 

communications,” i.e., advertisements referencing a federal candidate that are 

broadcast shortly before an election. Strict scrutiny was appropriate in WRTL II

because the challenged regulation was a direct prohibition of corporate 

expenditures. This level of review was consistent with the prior rulings of the 

Court, which have held that a prohibition on corporate spending is subject to strict 

scrutiny. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 

(1990). 

By contrast, the rule at issue here seeks to enforce the federal contribution 

limits by regulating how a federal political committee must allocate its spending 

between its federal and non-federal accounts. McConnell made clear that such an 

allocation rule is merely a restriction on contributions, and is therefore 

constitutional if it is “closely drawn to match a sufficiently important interest.” 

McConnell, 540 U.S. at 136, quoting FEC v. Beaumont, 539 U.S. 146, 162 (2003) 

(internal quotations omitted). 

 EMILY’s List nevertheless maintains that, under WRTL II, strict scrutiny 

applies here because, it argues, EMILY’s List’s non-federal fund is analogous to 
 21

WRTL, the non-profit corporation in WRTL II. EMILY’s List further theorizes 

that its federal account is analogous to WRTL’s federal PAC. According to 

EMILY’s List, the Court in WRTL II strictly scrutinized a law which required 

certain communications to be funded from the federal account (i.e., from WRTL’s 

PAC) instead of from the non-federal account (i.e., from WRTL’s corporate 

treasury funds). Id. Continuing this strained analogy, EMILY’s List argues that 

this Court likewise should apply strict scrutiny to the allocation rules that require 

spending from EMILY’s List’s federal account, instead of from its non-federal 

account. 

But this analogy is a false one: a corporation (e.g., WRTL) and the nonfederal account of a federal political committee (e.g., EMILY’s List’s non-federal 

account) are completely different kinds of entities, and the scrutiny applied to the 

regulation of the former says little about the permissible scope of regulation of the 

latter. See, e.g., California Medical Association (CalMed) v. FEC, 453 U.S. 182, 

201 (1981) (noting that the “differing restrictions” applicable under FECA to 

political committees and corporations “reflect a judgment by Congress that these 

entities have differing structures and purposes, and that they therefore may require 

different forms of regulation”). 

EMILY’s List has registered as a federal political committee, thereby 

acknowledging that it meets both the statutory definition of a “political committee” 
 22

and that it has a “major purpose” to influence elections. This latter test was 

originally formulated as a narrowing construction to resolve concerns of vagueness 

and overbreadth relating to the statutory definition of “political committee.” The 

Buckley Court construed the term “political committee” to encompass only 

“organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.” 424 U.S. at 79 (emphasis 

added). The activities of such “major purpose” groups “can be assumed to fall 

within the core area sought to be addressed by Congress. They are, by definition, 

campaign related.” Id. (emphasis added). 

Thus, EMILY’s List status here as a federal political committee means that 

its expenditures are presumptively related to federal elections. Requiring a federal 

political committee to fund presumptively campaign-related activities with its 

federal account, i.e. with funds raised under federal contribution limits, does not

constitute a “substantial burden” on its political speech warranting strict scrutiny 

review. 

The Court in WRTL II, by contrast, did not address the regulation of a 

“major purpose” group, such as EMILY’s List. The far different issue before the 

Court was the constitutionality of a law that restricted the spending of treasury 

funds by a corporation, an entity that does not have a “major purpose” to influence 

elections and whose spending is not “by definition, campaign related.” Buckley, 
 23

424 U.S. at 79. Requiring a “non-major purpose” group such as the WRTL 

corporation to form a federal PAC (i.e. a federal account) in order to buy any ad 

that refers to a federal candidate in the pre-election period was, in the Court’s 

view, a significant burden that justified heightened scrutiny, and could be sustained 

only if the spending was clearly campaign-related, i.e., for express advocacy or the 

“functional equivalent of express advocacy.” WRTL II, 127 S.Ct. at 2667. The 

same is not true of a federal political committee such as EMILY’s List, whose 

activities are, by definition, campaign-related. 

B. The Challenged Regulations Implement the Federal Contribution 

Limits and Therefore Serve the State Interest in Preventing 

Corruption and the Appearance of Corruption. 

 EMILY’s List complains that the FEC’s Explanation and Justification for 

the challenged rules did not include “a record of attempted circumvention by 

nonconnected committees” or “record evidence that nonconnected committees had 

been complicit in corrupt practices.” Br. at 26-27. From this observation, 

EMILY’s List leaps to the unfounded conclusion that there is no governmental 

interest furthered by the challenged regulations sufficiently important to pass 

muster under the First Amendment. 

 This argument is deliberately short-sighted. The purpose of the allocation 

regulations, 11 C.F.R. § 106.6(c), (f), is to prevent circumvention of the federal 

contribution limits in circumstances where a federal political committee engages in 
 24

both federal and non-federal activity. The purpose of the contribution solicitation 

rule at 11 C.F.R. § 100.57 is to clarify the statutory definition of “contribution,” 

see 2 U.S.C. § 431(8)(A)(i). Thus, because the challenged regulations both 

implement the federal contribution limits, it follows that the regulations serve the 

same governmental purposes served by the contribution limits. And the 

contribution limits applicable to non-connected political committees were 

specifically upheld in the Supreme Court’s CalMed decision because they advance 

the governmental interest in “preventing circumvention of the very limitations on 

[individual] contributions that [the Supreme] Court upheld in Buckley.” CalMed, 

453 U.S. at 197-98. EMILY’s List overlooks this decision entirely, failing to cite 

it even once in its brief. But the FEC could justifiably rely on the CalMed decision 

and the record developed in that litigation as a basis for promulgating the 

challenged regulations; there is no legal requirement that an administrative agency 

restate the settled case law supporting the constitutionality of its governing statute 

every time it adopts or amends a regulation to implement the statute. 

 Moreover, EMILY’s List’s assertion that there was no “record of attempted 

circumvention” is plainly wrong. Amici submitted multiple filings into the record 

of the 2004 rulemaking detailing the evasion of the FEC’s then-existing allocation 

rules by ACT. See supra Background, Section B; see also 569 F. Supp. 2d at 28 

n.7. Admitting as much, EMILY’s List makes the alternative argument that the 
 25

evidence of ACT’s abuses was an insufficient basis for the promulgation of the 

challenged allocation rules. Br. at 27. But ACT was the largest non-party 

committee active in the 2004 election,17 and was found to have improperly 

financed approximately $100 million of campaign activities with soft money.18

 

Not only was it permissible for the FEC to adopt a rule halting circumvention of 

the federal contribution limits by ACT (and similar organizations), but the FEC 

would have been in dereliction of its statutory obligation to enforce FECA had it 

ignored such flagrant abuses. 

C. The Challenged Regulations Are Constitutional and Do Not Exceed

the FEC’s Statutory Authority.

1. The Minimum Allocation Percentage Does Not Violate the First 

Amendment and Represents a Reasonable Exercise of the FEC’s 

Authority.

The fallacy of EMILY’s List’s challenge to the minimum allocation 

percentage is its apparent assumption that the pre-2005 “funds expended” 

allocation method was constitutionally and statutorily required. 

 

17 The Center for Responsive Politics calculates that ACT was the largest nonconnected PAC in the 2003-04 election cycle in terms of both its receipts and 

expenditures. See “Top PACs” at

http://www.opensecrets.org/pacs/toppacs.php?cycle=2004&Type=E&filter=P. 

18

 See Conciliation Agreement at supra note 16. 
 26

 As a federally registered political committee, which has never denied that its 

major purpose is to influence federal elections, EMILY’s List does not have a 

constitutional or statutory entitlement to any particular system of allocation, or 

indeed, to any system of allocation at all. See 569 F. Supp. 2d at 45. FECA does 

not mandate allocation for federal political committees. To the contrary, FECA 

mandates that funds spent “for the purpose of influencing” a federal election be 

subject to the contribution limits and source prohibitions of the law. 2 U.S.C. § 

431(9)(A)(i). It would certainly be a permissible interpretation of the statute for 

the Commission to conclude that when a federal political committee spends funds 

on “mixed” or generic activities that clearly impact federal elections, such 

spending is “for the purpose of influencing” federal elections and accordingly 

should be funded exclusively with federal funds. 

The Common Cause court reached this conclusion, holding that the 

Commission had the discretion to require that such “mixed” activities be funded 

entirely with federal funds: “[I]t 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.” 692 F. Supp. at 1396 (emphasis 

in original). 
 27

In McConnell, the Supreme Court made a similar point, noting, with 

justified skepticism, that the law did not mandate the FEC’s decision to permit 

party committees to allocate: 

Shortly after Buckley was decided, questions arose concerning the 

treatment of contributions intended to influence both federal and state 

elections. Although a literal reading of FECA’s definition of 

“contribution” would have required such activities to be funded with 

hard money, the FEC ruled that political parties could fund mixedpurpose activities – including get-out-the-vote drives and generic 

party advertising – in part with soft money. 

540 U.S. at 123 (emphasis added). The Court upheld Congress’ decision to abolish 

allocation entirely for national party committees – in large part because it found 

that FECA “was subverted by the creation of the FEC’s allocation regime,” which 

enabled party committees “to use vast amounts of soft money in their efforts to 

elect federal candidates.” Id. at 142. If allocation as created by the FEC actually 

subverts FECA, it certainly cannot be a regulatory mechanism that is required by 

FECA. 

 The allocation system, thus, is little more than an act of administrative grace. 

The FEC could have chosen to require that federal committees fund their generic 

activities entirely with hard money. 

EMILY’s List nonetheless complains that the new rule lacks 

“proportionality” because the 50 percent requirement for funding generic activities 
 28

may not relate well to the federal proportion of a committee’s candidate-specific 

activities. Br. at 32.19

 

But the supposed “proportionality” that EMILY’s List commends in the old 

rule was a regulatory illusion. The proportion of a committee’s candidate-specific 

spending that relates to federal elections may, or may not, relate well to the 

separate issue of whether the committee’s generic voter mobilization activities 

relate to federal elections. A committee could choose to run a couple of candidatespecific ads about the gubernatorial contests in Idaho and West Virginia, while also 

deciding to spend the vast majority of its funds on generic voter drive activity to 

influence the presidential race in battleground states such as Ohio and Florida. 

Under the FEC’s prior rule, the committee would nevertheless be able to fund its 

voter drive in Ohio and Florida entirely with soft money, notwithstanding its 

evident goal to influence the presidential race in those battleground states. Thus it 

 

19 EMILY’s List postulates the unlikely scenario that “[i]f” it 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,” it must still pay its 

administrative expenses with 50 percent federal funds. Br. at 38. This is, of 

course, simply hypothetical, since EMILY’s List does not spend trivially on federal 

elections and boasts that it has “helped to elect” dozens of women to Congress. Br. 

at 3-4. Furthermore, this hypothetical ignores the legal point that an entity that 

spends only trivial amounts on federal elections would not meet the “major 

purpose” test, and thus would not be classified as a federal political committee in 

the first place. 
 29

was the Commission’s prior rule that was arbitrary and irrational and, as was

clearly demonstrated in the 2004 election cycle, subject to blatant abuse. 

2. The Rule Requiring Federal Committees to Use Federal Funds for Ads 

that “Refer” to Federal Candidates Is Neither Unconstitutional Nor 

Unreasonable. 

 The Commission also modified the allocation rule for candidate-specific 

spending based on simple and intuitive propositions: spending that refers 

exclusively to federal candidates should be funded with federal funds; spending 

that refers exclusively to non-federal candidates can be funded with non-federal 

funds, and spending that refers to both federal and non-federal candidates can be 

funded with a mixture of federal and non-federal funds in “proportion” to the 

“space or time” devoted to each in the public communication. 11 C.F.R. § 

106.6(f)(3). 

 EMILY’s List argues that this allocation rule based on a “reference” to a 

federal candidate is overbroad and beyond the Commission’s statutory authority. 

Br. at 29. It argues that the Supreme Court in WTRL II refused to allow the 

regulation of communications based on such a “reference standard,” and instead 

limited the application of Title II of BCRA to communications that were “express 

advocacy or its functional equivalent.” Id., citing 127 S.Ct. at 2671. But that does 

not mean the same is required here. The Supreme Court in Buckley applied the 

narrowing construction of “express advocacy” only to expenditures by “an 
 30

individual other than a candidate or a group other than a ‘political committee.’” 

424 U.S. at 79 (emphasis added). Buckley found, however, that such a 

construction is not necessary in connection with the spending of political 

committees, whose activities are, “by definition, campaign-related.” 424 U.S. at 

79-80. Thus, when a political committee, such as EMILY’s List, “refers” in a 

public communication to a clearly identified federal candidate, it is not 

unreasonable to suppose the political committee is trying to influence the election 

of that candidate. By contrast, when a corporation – a group that does not have a 

“major purpose” to influence elections – refers to a federal candidate, the same 

presumption does not arise. 

 EMILY’s List also attempts to show the rule is overbroad by offering a list 

of improbable hypotheticals – such as an ad for a state candidate that mentions an 

endorsement by a federal candidate. Br. at 28-29. 

 The rule itself provides the best answer to these hypothetical applications. 

Although EMILY’s List suggests that a “mere reference” to a federal candidate in 

a communication may require use of “100 percent federal funds” or “at least 50 

percent federal money,” id. at 28, this is wrong as to the hypotheticals cited. For 

an ad that “refers to” both federal and non-federal candidates, the rule requires 

only an allocation of federal funding that is “based on the proportion of space or 

time devoted to each clearly identified Federal candidate as compared to the total 
 31

space or time devoted to all clearly identified candidates.” 11 C.F.R. § 

106.6(f)(3)(i). Thus, if the hypothetical endorsement ad is primarily about the state 

candidate, and refers only incidentally to the federal candidate’s endorsement, the 

rule requires only small amount of federal funding proportional to the space 

devoted to the federal candidate. 

 In other words, the rule governing “references” to both federal and nonfederal candidates embodies the very proportionality that EMILY’s List faults the 

rule on allocation of generic activities for lacking. 

3. The Solicitation Rule Is Constitutional and Within the FEC’s Statutory 

Authority. 

 FECA broadly defines a “contribution” to include “anything of value” given 

“for the purpose of influencing any election for Federal office.” 2 U.S.C. § 

431(8)(A)(i). The Commission’s new rule clarifies that a “contribution” 

encompasses any donation made “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. As the district court held, the new rule, “prevent[s] the circumvention of 

these contribution limits,” and thereby “serve[s] the important governmental 

purposes of preventing corruption and the appearance of corruption.” 569 F. Supp. 

2d at 45; see also The Real Truth About Obama v. FEC, 2008 WL 4416282 at *11-
 32

13 (E.D.Va. 2008) (finding that plaintiff was unlikely to succeed on the merits of 

its constitutional challenge to solicitation rule).

EMILY’s List challenges the rule by mischaracterizing it – arguing that the 

rule is not properly tailored because it “creat[es] peril for any organization raising 

funds while mentioning a federal candidate.” Br. at 34. But the new definition of 

“contribution” does not apply merely because of a solicitation’s “mention” of a 

federal candidate. Rather it applies only if the solicitation refers to a candidate and 

also indicates that the donated funds will be used to support or oppose the election 

of the referenced candidate. There is no “risk” to EMILY’s List by merely 

referring to a federal candidate in a solicitation, unless the language of the 

solicitation goes beyond that. Indeed, the one example EMILY’s List proffers of a 

communication that would be improperly covered by the solicitation rule goes far 

beyond a mere reference to a federal candidate: the hypothetical message from 

Senator Debbie Stabenow concludes with the classic fundraising pitch, “That’s 

why I need your help.” Id., citing FEC AO 2005-13. 

More fundamentally, EMILY’s List’s complaint about the tailoring of the 

solicitation rule overlooks that the rule is far narrower than the statutory definition 

of contribution – which, despite its breadth, was approved in Buckley despite 

claims of unconstitutional vagueness. 424 U.S. at 24. As the solicitation rule 
 33

provides the regulated committees with more, not less, guidance than the statutory 

definition, the rule is clearly constitutional. 

CONCLUSION

For these reasons, the district court’s decision should be affirmed. 

 

 Respectfully submitted, 

Donald J. Simon (Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

 ENDRESON & PERRY, LLP

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Democracy 21

___________________________ 

J. Gerald Hebert (Bar No. 447676) 

Trevor Potter (Bar No. 413778) 

Paul S. Ryan (Bar No. 502514) 

CAMPAIGN LEGAL CENTER

1640 Rhode Island Avenue, N.W. 

Suite 650 

Washington, D.C. 20036 

(202) 736-2200 

Counsel for the Campaign Legal 

 Center 

Fred Wertheimer (Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Democracy 21 

 

Dated: March 12, 2009 
 34

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) 

AND CIR. R. 32(a)(2) 

Pursuant to Fed. R. App. P. 29(c)(5) and Fed. R. App. P. 32(a)(7)(C)(i), I 

certify that the foregoing amici brief complies with the length requirements of Fed.

R. App. P. 29(d), Fed. R. App. P. 28.1(e)(2)(A)(i) and Cir. R. 32(a)(2). I have 

relied on the word count feature of Microsoft Word 2000 to calculate that the brief 

contains 6986 words. I further certify that the foregoing brief complies with the 

typeface requirements of Fed. R. App. P. 32(a)(5) and Cir. R. 32(a) and the type 

style requirements of Fed. R. App. P. 32(a)(6). The brief has been prepared in a 

proportionately spaced typeface using Microsoft Word 2000 in Times New Roman 

font size 14. 

____________________________

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave. NW, 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Fax: (202) 736-2222 

Dated: March 12, 2009 
 35

CERTIFICATE OF SERVICE 

I hereby certify that on this 12th day of March 2009, I served a copy of the 

foregoing BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT-APPELLEE AND URGING 

AFFIRMANCE on the following counsel of record, via email (where email 

addresses are available and known) and by United States mail, first-class postage 

prepaid: 

Attorneys Representing Appellant EMILY’s List: 

Robert F. Bauer 

Ezra Woolf Reese 

PERKINS COIE 

607 14th Street, NW 

Suite 800 

Washington, DC 20005-2011 

rbauer@perkinscoie.com

ereese@perkinscoie.com

Attorneys Representing Appellee Federal Election Commission: 

Gregory John Mueller 

Vivien Clair 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

gmueller@fec.gov 

vclair@fec.gov

____________________________ 

J. Gerald Hebert