UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY'S LIST, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

CIVIL ACTION NO. 05-00049-CKK

EMILY'S LIST'S REPLY MEMORANDUM AND MEMORANDUM IN 

OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY 

JUDGMENT 

 

Respectfully submitted, 

Dated June 27, 2005 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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CONTENTS

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

II. PRELIMINARY ISSUES ....................................................................................... 3 

A. Standing....................................................................................................... 3 

B. Material Facts.............................................................................................. 6 

C. Remedy........................................................................................................ 7 

III. THE REGULATIONS VIOLATE THE FIRST AMENDMENT OF 

THE UNITED STATES CONSTITUTION ........................................................... 8 

IV. THE REGULATIONS ARE IN EXCESS OF THE FEC'S 

STATUTORY JURISDICTION AND AUTHORITY......................................... 11 

V. THE REGULATIONS ARE ARBITRARY AND CAPRICIOUS....................... 14 

VI. THERE WAS NOT A SUFFICIENT OPPORTUNITY FOR NOTICE 

AND COMMENT................................................................................................. 18 

VII. CONCLUSION ..................................................................................................... 21 

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TABLE OF AUTHORITIES 

Constitutional Provisions

*First Amendment to the United States Constitution.......................................................passim

Statutes

*2 U.S.C. § 431 ...........................................................................................................11, 13, 14 

5 U.S.C. § 553 ...................................................................................................................18, 19 

*Administrative Procedure Act, §§ 553-706.................................................................7, 17, 18 

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

Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431 et seq. ...............................passim

Regulations

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

*11 C.F.R. § 106.6 ........................................................................................................4, 19, 20 

Rules

LCvR 7(h) .............................................................................................................................6, 7 

Cases

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. 

Cir. 1993) ..............................................................................................................................7 

American Library Ass'n v. FCC, 401 F.3d 489 (D.C. Cir. 2005)..............................................5 

Ass'n of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000) ......................19 

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Bellum v. PCE Constructors, Inc., 407 F.3d 734 (5th Cir. 2005)...........................................18 

Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................................10, 11 

Career Coll. Ass'n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996)....................................................19 

Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998)......................................................................14 

Chem. Mfrs. Ass'n v. EPA, 28 F.3d 1259 (D.C. Cir. 1994).......................................................7 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)..............................11 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987)..............................................12, 13 

Communities Against Runaway Expansion, Inc. v. FAA, 355 F.3d 678 (D.C. 

Cir. 2004) ..............................................................................................................................5 

Conoco Inc. v. FERC, 90 F.3d 536 (D.C. Cir. 1996)..............................................................16 

Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 

1998) .....................................................................................................................................5 

Elrod v. Burns, 427 U.S. 347 (1976).........................................................................................3 

ExxonMobil Gas Mktg. Co. v FERC, 297 F.3d 1071 (D.C. Cir. 2002)...................................16 

FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480 (1985) ...............................9 

FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir. 1995).......................................................14 

Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) ....................18 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .......................................................17 

Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004) .......................18 

Heasley v. D.C. Gen. Hosp., 180 F. Supp. 2d 158 (D.D.C. 2002)...........................................6 

Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977)..................................................14 

Int'l Union, UMW v. FMSHA, 920 F.2d 960 (D.C. Cir. 1990)..................................................7 

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145 

(D.C. Cir. 1996) ....................................................................................................................6 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................3 

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

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McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).......................................................9 

Nat'l Treasury Employees Union v. United States, 927 F.2d 1253 (D.C. Cir. 

1991) .....................................................................................................................................3 

RNC v. FEC, 76 F.3d 400 (D.C. Cir. 1996) ............................................................................14 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004)...................................................................18 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) .................................................................5 

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

1983) ...................................................................................................................................18 

Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)...................................18 

United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C.Cir. 1980).......................19 

Worldcom, Inc. v. FCC, 238 F.3d 4491 (D.C. Cir. 2001).......................................................16 

Other Authorities

Center for American Women and Politics, Women Candidates for Governor 

1970-2004, 

http://www.cawp.rutgers.edu/Facts/CanHistory/canwingov_histlst.pdf...............................4 

FEC Advisory Opinion 2003-37 (Feb. 19, 2004)..............................................................16, 19 

Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 2004)..........................16 

Political Committee Status, Definition of Contribution, and Allocation for 

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

68,056 (Nov. 23, 2004) .......................................................................................................16

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I. INTRODUCTION 

At the beginning of the 2006 election cycle, the Federal Election Commission 

adopted new rules that made it harder for independent political committees to support both 

federal and nonfederal candidates. Challenged in this Court by EMILY’s List, a political 

committee which extensively supports candidates for state and local office, the Federal 

Election Commission has responded with three basic arguments. 

The Commission contends that, because courts have upheld restrictions placed by 

Congress on political party committees, corporations and labor organizations, this Court 

should uphold restrictive rules that the Commission decided on its own to place on 

independent political committees. It contends that, because EMILY’s List is a federally 

registered political committee, the agency is free to regulate all the committee’s activities. 

Finally, the Commission contends that its new rules were rationally developed. Each of these 

arguments is incorrect. 

First, the Constitution limits the FEC’s authority to regulate political activity. These

limits can be surmounted, but only when carefully drawn to prevent corruption or its 

appearance. The Commission has not met this standard here. When Congress passed the 

Bipartisan Campaign Reform Act of 2002 ("BCRA"), Pub. L. No. 107-155, 116 Stat. 81, it 

regulated the activities of party committees effectively under the control or substantial 

influence of federal candidates, and those of corporations and unions with the potential to 

corrupt those candidates. It relied on extensive record evidence, and was conspicuously 

silent on the activities of independent committees. 

These new rules are wholly different. Independent committees do not, by definition, 

have these relationships with federal candidates. They present no such record of corruption, 

and the Commission considered no such record. The considerations that led the Supreme 

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Court to uphold BCRA are not present here, and yet the Commission assumes that the same

outcome should automatically result. 

Second, the Commission can only regulate contributions and expenditures made for 

the purpose of influencing federal elections. That a political committee is registered with the 

Commission does not automatically make its state and local election activities subject to 

Commission regulation as well. Nonetheless, these new rules regulate purely state and local 

election activity. They also regulate some activity well beyond their effect on federal 

elections. The Commission defends this by saying that it could have required all of a 

committee’s state and local election activity to be paid for entirely with federal funds. This is 

not so. 

Third, these rules are not the product of rational decision-making. The requirement 

that a committee must pay for administrative expenses and voter drive activity at least half

with federal funds has nothing to do with the actual effect of that spending on federal 

elections. The fundraising and public communication rules are poorly tailored also. For 

example, they require a committee to pay for a public communication referring to a New 

York federal candidate and directed to voters in Utah entirely with federal funds – on the 

theory that the communication might affect voters in New York. These are not simply rules 

that could have been better drafted. They are flawed to the core, having been poorly 

conceived. 

The Commission tries to evade accountability for these unlawful rules by questioning

EMILY’s List’s standing, and by claiming that plaintiff did not adequately cite to the record 

to support its claims. At the same time, however, it acknowledges that these rules prevent 

EMILY’s List from doing things that it could otherwise have lawfully done. This Court 

should reject the Commission’s arguments in defense of its unlawful rules, spurn its 

disingenuous attempt to avoid a decision on the merits, and grant summary judgment to 

EMILY’s List. 

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II. PRELIMINARY ISSUES 

A. Standing 

The Commission does not dispute that the rules challenged here apply to EMILY’s 

List. Moreover, it acknowledges that EMILY’s List cannot do things under the new rules 

that it could have lawfully done before. For example, it suggests that if EMILY’s List wants 

to ensure compliance with the new fundraising restrictions at 11 C.F.R. § 100.57, “it can 

adjust the wording of its solicitations.” (Def's. Mot. Summ. J. 33.) When the next 

presidential incumbent is on the ballot, EMILY's List can "reword" its communications to 

refer to "the Administration" instead. (Def's. Mot. Summ. J. 23.). It can ask the 

Government for permission to engage in once-lawful conduct, by seeking “advisory opinions 

for clarification . . . .” (Def's. Mot. Summ. J. 34.). All of this is justified by the speculative 

possibility that EMILY's List might become an "attractive vehicle[] for circumvention . . . ." 

(Def's. Mot. Summ. J. 22.) In the end, the Government faults EMILY’s List for not being 

“seriously interested in complying with the regulation.” (Def's. Mot. Summ. J. 33.). Yet at 

the same time, the Commission repeatedly claims that EMILY's list is entirely unaffected by 

the new rules. (Def's. Mot. Summ. J. 2, 3. 29.). 

 To achieve Article III standing, a plaintiff must show (1) injury in fact, (2) fairly 

traceable to the defendant’s challenged action, and (3) redressable by a favorable court 

decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Injury is presumed 

when a First Amendment violation is found. See Elrod v. Burns, 427 U.S. 347, 373 (1976) 

("The loss of First Amendments freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury."), quoted in Nat'l Treasury Employees Union v. United States, 

927 F.2d 1253, 1254 (D.C. Cir. 1991). 

The Commission does not make a direct assault on EMILY’s List’s standing, because 

there is no real question that EMILY’s List has standing. EMILY’s List is unquestionably 

injured by these rules. As discussed above, it cannot now do things that it once could do. It 

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cannot send a public communication referring to a lone federal candidate, even if the 

communication is not directed to that candidate’s voters, without paying for it entirely with 

federal funds. See 11 C.F.R. § 106.6(f)(1)(i). It cannot raise funds jointly for federal and 

nonfederal candidate activities, while mentioning federal candidates, without treating any 

less than 50% of the receipts as federal funds. See id. § 100.57(b). These new restrictions 

are a real burden, not an imaginary one, and the Commission acknowledges as much. 

EMILY’s List is also injured by the new rules’ requirement that it pay for at least half 

of its administrative and voter drive expenses with federal money. By citing EMILY’s List’s 

past allocation history as predictive of its future intent, (Def's. Mot. Summ. J. 3), the 

Commission radically misunderstands the historical context in which EMILY’s List has 

operated, in which women are becoming increasingly active and successful, particularly at 

the nonfederal level. In 2006, three incumbent women Democratic governors will seek 

reelection. Their campaigns, and those of countless women seeking lesser state and local 

office, will be an unprecedented focus of attention for EMILY’s List. 

In contrast, in 1996, when “EMILY’s List reported a final allocation ratio of 70% 

federal candidate support and 30% nonfederal,” (Def's. Mot. Summ. J. 3.), there were three 

women Democratic statewide candidates for governor – and two of them lost. See Center for 

American Women and Politics, Women Candidates for Governor 1970-2004, 

http://www.cawp.rutgers.edu/Facts/CanHistory/canwingov_histlst.pdf. Recent years have 

seen women shatter the glass ceiling separating them from statewide executive office. This, 

in turn, has significantly altered EMILY's List's focus. 

With nonfederal elections comprising a larger and larger share of EMILY’s List’s 

business, and with the Commission’s rules requiring more and more of that business to be 

paid for with federal money, the injury to EMILY’s List is clear. It does not matter whether 

EMILY’s List has “the most hard money.” (Def's. Mot. Summ. J. 2.). It does not matter 

whether “it can appeal to its existing supporters or find new supporters.” (Def's. Mot. Summ. 

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J. 29.). Every additional federal dollar that EMILY’s List has to spend to support state and 

local candidates under the new rule is a dollar that cannot be used to make a direct 

contribution or expenditure in actual support of a federal candidate. Even if this Court found 

it unnecessary to reach EMILY’s List’s First Amendment claim, for which injury is 

presumed, there would still be injury to EMILY’s List as a result of these rules. 

With standing not really in doubt, and with the Commission not really challenging it, 

the Commission complains instead that EMILY’s List has not submitted enough evidence to 

prove it. The FEC reads Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) and succeeding 

cases as creating an inflexible rule requiring the submission of affidavits to buttress standing 

in every case. That position is precisely the one rejected in American Library Ass'n v. FCC, 

401 F.3d 489 (D.C. Cir. 2005). There, the court held: "Nothing in Sierra Club suggests that 

it is intended to create a 'gotcha' trap whereby parties who reasonably think their standing is 

self-evident nonetheless may have their cases summarily dismissed if they fail to document 

fully their standing at the earliest possible stage in the litigation." Id. at 493. 

Moreover, Sierra Club and its progeny involved cases where the standing question 

was genuinely complex, such as when the plaintiff is an association asserting representational 

standing. See, e.g., Communities Against Runaway Expansion, Inc. v. FAA, 355 F.3d 678, 

684 (D.C. Cir. 2004); Sierra Club, 292 F.3d at 900. For example, Democratic Senatorial 

Campaign Committee v. FEC was an unprecedented case in which a national party 

committee had established a private right of action under the Federal Election Campaign Act 

("FECA"), 2 U.S.C. §§ 431 et seq., to sue its Republican counterpart directly. See 139 F.3d 

951 (D.C. Cir. 1998). There is no such complexity or novelty here, where EMILY’s List is 

unquestionably affected by these rules, and where it has sued on its own behalf.1

 

1 A plaintiff may submit an affidavit with a reply brief to demonstrate standing when the 

defendant would not be unfairly prejudiced. See Communities Against Runaway Expansion, 355 F.3d

at 684-85. To dispose of the Commission’s disingenuous argument once and for all, Plaintiff attaches 

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B. Material Facts 

The Commission also contends that EMILY’s List's Statement of Material Facts 

violates LCvR 7(h), and that this violation should lead to the denial of Plaintiff's Motion for 

Summary Judgment. In particular, the Commission complains that EMILY's List did not cite 

to the record for every numbered claim.

This argument, too, is disingenuous. Upon this Court's request, Plaintiff and 

Defendant conferred regarding the need for discovery, and jointly stipulated that no 

discovery would be necessary. Because no discovery was conducted, there is no record in 

this case, save the administrative record the FEC considered when promulgating the 

regulations at issue. The Commission cannot now pretend to be surprised at the paucity of 

the record. 

In any case, the Commission misreads LCvR 7(h). The rule, in relevant part, states: 

"Each motion for summary judgment shall be accompanied by a statement of material facts 

as to which the moving party contends there is no genuine issue, which shall include 

references to the parts of the record relied on to support the statement." The rule does not 

require a citation for every point; what it requires is that when portions of the record are 

relevant, they should be noted. EMILY's List has cited to documents available in the 

administrative record, when they are available. 

The Commission's listed cases are also disingenuous. They consider situations in 

which the moving party did not submit any statement of material facts, see Heasley v. D.C. 

Gen. Hosp., 180 F. Supp. 2d 158, 163 (D.D.C. 2002), or submitted one containing a grossly 

insufficient statement of material facts in the face of a developed record, see Jackson v. 

Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). 

 

an affidavit from Britt Cocanour, EMILY’s List’s Treasurer and Chief of Staff, detailing the effect of 

the Commission's rules on EMILY's List. Because Plaintiff has been clear from the beginning in how 

and why it was asserting standing, there is no unfair prejudice to Defendant. 

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These cases do not speak to a situation like the instant case, where the record is undeveloped 

due to mutual agreement by the parties. 

Finally, LCvR 7(h) requires the opposing party to list "all material facts as to which it 

is contended there exists a genuine issue necessary to be litigated." The Commission has 

challenged only a few of EMILY's List's facts on their face; Defendant's Statement of 

Material Issues rests primarily on the lack of an evidentiary record. The purpose of LCvR 

7(h) is to establish which facts require further investigation and which do not. The 

Commission therefore asserts that this Court should proceed to trial on these issues even if 

both parties actually agree on the basic facts. This Court should reject such an exercise in 

futility. 

C. Remedy 

If this Court finds that sections 100.57 and 106.6 violate the First Amendment, the 

boundaries on the Commission's statutory authority, or the Administrative Procedure Act 

("APA"), §§ 553-706, the regulations should be immediately vacated. The FEC argues that 

this would constitute "extraordinary relief." (Def's. Mot. Summ. J. 45.). The FEC misreads 

the relevant authority concerning remand without vacation. 

It is true that this circuit has held that regulations inadequately supported need not be 

vacated. Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150 (D.C. 

Cir. 1993). When making the determination, the factors to be weighed include "the 

seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose 

correctly) and the disruptive consequences of an interim change that may itself be changed." 

Int'l Union, UMW v. FMSHA, 920 F.2d 960, 967 (D.C. Cir. 1990). If it is unlikely that the 

flaw can be corrected upon remand, courts should immediately vacate instead. See Chem.

Mfrs. Ass'n v. EPA, 28 F.3d 1259, 1268 (D.C. Cir. 1994). 

Here, the FEC has shown no willingness or capability to satisfy the requirements of

the APA; this Court should not further indulge the Commission. Moreover, there is no way 

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for the Commission to correct its violations of the statutory authority or of the First 

Amendment. Given that there was a set of functioning regulations in place prior to the 

promulgation of the regulations at issue, any disruption would be minimal. To do otherwise, 

and remand without vacation, would unduly prejudice EMILY's List. 

III.THE REGULATIONS VIOLATE THE FIRST AMENDMENT OF THE 

UNITED STATES CONSTITUTION 

To the extent that the Commission bothers to defend the constitutionality of the new 

rules, its defense is premised almost entirely on the Supreme Court’s decision in McConnell 

v. FEC, 540 U.S. 93 (2003). The Commission argues that, because the Supreme Court 

permitted Congress to impose more onerous restrictions on party committees, corporations 

and unions, this Court should allow the Commission to enforce these new rules against 

independent committees like EMILY’s List. 

For example, the Commission cites the Supreme Court’s affirmance of a ban on 

national party committee soft money fundraising and spending to justify restrictions on 

EMILY’s List’s partial use of soft money for public communications and voter drives. 

(Def's. Mot. Summ. J. 22.). It cites the affirmance of BCRA’s Federal election activity 

restrictions on state and local party committees to justify limitations on the financing of 

EMILY’s List communications that refer to federal candidates. (Def's. Mot. Summ. J. 22, 

28.). It cites the survival of the electioneering communication restrictions to support its new 

restrictions on how EMILY’s List may pay for public communications. (Def's. Mot. Summ. 

J. 23.). 

However, McConnell addressed an altogether different situation. When Congress 

passed BCRA, it responded to record evidence of corruption and its appearance resulting 

from the activities of candidates, parties, and unregistered organizations using corporate and 

union funds. Those restrictions were upheld in McConnell, because they were found to be 

closely drawn to address real or apparent corruption. The Court particularly found that there 

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was a close relationship – one of control and substantial influence – between parties and 

candidates that, in turn, justified the law’s restrictions on party activities. See 540 U.S. at 

146-47. 

When the Commission adopted these rules, it found no record of corruption or its 

appearance. It found only the speculative possibility that “political committees like 

EMILY’s List ... could similarly be attractive vehicles for circumvention of the FECA’s

aggregate and individual contribution limits.” (Def's. Mot. Summ. J. 22.) (emphasis 

supplied). It imposed new, restrictive rules not on entities that were closely associated with 

candidates, or thought to be controlled by candidates, but rather on groups that operated 

largely independently of candidates. 

McConnell is not a blank check for the Commission to regulate however it pleases. 

The Supreme Court itself praised "Congress' decision to proceed in incremental steps in the 

area of campaign finance regulation," prudence which the Commission has not exercised. 

McConnell, 540 U.S. at 158. 

"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 Government “must 

show concrete evidence that a particular type of financial transaction is corrupting or gives 

rise to the appearance of corruption and that the chosen means of regulation are closely 

drawn to address that real or apparent corruption.” McConnell, 540 U.S. at 185 n.72. The 

mere "hypothetical possibility" of corruption is not enough. FEC v. National Conservative 

Political Action Comm., 470 U.S. 480, 498 (1985). 

The Commission cannot meet this constitutional burden. It cannot explain how an 

independent communication that merely references a federal officeholder, months or even 

years away from that officeholder's election and in another geographic location entirely, can 

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possibly be a corrupting influence on that officeholder. Not even electioneering 

communications by corporations and unions themselves are regulated this strictly. 

The fifty-percent minimum fares no better. The FEC does not show how the 

administrative expenses and voter drive activities of independent committees have a 

corrupting influence on officeholders. The FEC relies on the Supreme Court's approval of 

similar restrictions on political party activity; but McConnell took no position on such 

activities by outside organizations, and Congress pointedly chose to leave them alone. 

Political party committees are affiliated with, and are controlled by, elected officials and 

candidates; independent organizations are not. Congress readily grasped this distinction; the 

FEC did not. 

The solicitation restrictions in section 100.57 also cannot be linked to the corruption 

of federal officeholders or candidates. Once again, the independent nature of the 

organization is highly relevant; there is no record of federal candidate or officeholder 

involvement in independent committee soft money fundraising activities, as there was in 

BCRA. To the extent corruption was a concern, BCRA's separate restrictions on officeholder 

and candidate activity have already addressed it. 

Yet it is significant that the regulation goes far beyond even an imagined concern 

about corruption. In some circumstances, it treats a fixed percentage of receipts as federal 

contributions, even when the solicitation in question explicitly states that much less than that 

percentage will be used to support or oppose federal candidates. That is, the regulation treats 

some receipts as potentially corrupting of federal officeholders even when they will not be 

used for federal purposes at all. The First Amendment does not permit so imprecise a result. 

Finally, the FEC argues that these regulations are not restrictive of free speech, 

because EMILY's List can merely "appeal to its existing supporters or find new supporters." 

(Def's. Mot. Summ. J. 29.) It cites to Buckley v. Valeo, 424 U.S. 1, 21-22 (1976), for this 

proposition. But the Buckley court did not find that the contribution limits were not 

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restrictive of free speech and associational right; it instead found that constitutional rights 

were impinged, but that there was a "constitutionally sufficient justification." Id. at 26. 

Here, there is no such justification. Because the FEC cannot link these rules to the 

prevention of corruption, much less show that the regulations are narrowly tailored to serve 

that end, the regulations cannot stand. 

IV.THE REGULATIONS ARE IN EXCESS OF THE FEC'S STATUTORY 

JURISDICTION AND AUTHORITY 

The Commission presents this Court with a novel doctrine of administrative law – 

that once an entity falls within the agency’s jurisdiction, the agency is free to regulate all of 

its activities. For example, if a political committee is active also in state and local elections, 

the Commission may require the committee to pay for its state and local election activity 

entirely with federal money. (Def's. Mot. Summ. J. 16-17.). To the extent that the 

Commission decides to let the committee pay for its state and local election activity with 

funds raised under state law, it “is a permissive administrative construction, not a statutory 

entitlement.” (Def's. Mot. Summ. J. 17.). 

However, the APA prevents the Commission from regulating "in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). The 

APA prohibits "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). In 

the case of a political committee like EMILY's List, the agency may regulate only 

contributions or expenditures made for the purpose of influencing a federal election. See 2 

U.S.C. § 431(8)(A), (9)(A). 

The Commission has plainly exceeded this authority. First, the rules affect some

activities that cannot, under any theory, influence federal elections. For example, it restricts 

the financing of a public communication that refers to a federal candidate even when it is 

distributed to an audience that includes none of the candidate's voters, far in advance of any 

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election. As noted above, this radical approach goes beyond even Title II of BCRA, which 

contained geographic and temporal limits that proved essential to its survival. 

Second, the rules restrict some activities far beyond their effect on federal elections. 

In some cases, section 100.57 defines all receipts as contributions, when the solicitation 

indicates that a clearly identified candidate will be supported or opposed only with some of 

the funds. This is true even if the solicitation itself states unequivocally that only a smaller 

percentage of funds will be used for federal elections. This is true even when a majority of 

the funds are in fact segregated and used solely for nonfederal elections, or for entirely 

nonpolitical purposes. The Commission does not bother to address these anomalies. It 

claims only that that "plaintiff does not really contend that even the hypothetical 

communications it crafted to support its argument cannot have any influence on federal 

elections." (Def's. Mot. Summ. J. 23.) 

The principal argument that the Commission offers in defense of these rules is a 

telling and dangerous one: that the Commission is free to regulate all the activities of a 

federally registered political committee however it sees fit. It points to McConnell, 540 U.S. 

at 1, and Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987), for the proposition that 

the Commission has the statutory power to require an independent political committee to pay 

for its state and local election activity entirely with federal funds. (Def's. Mot. Summ. J. 16-

17.). 

Neither McConnell nor Common Cause stands for this proposition. The Court in 

McConnell did say that "a literal reading of FECA's definition of 'contribution' would have 

required" activities influencing both federal and nonfederal elections "to be funded with hard 

money . . . ." 540 U.S. at 123. However, the Court did not enforce this "literal reading" 

against the continued allocation of some mixed expenses by state parties. Moreover, as noted 

above, the Court upheld Congress' repeal of allocation by national party committees only 

after considering extensive evidence that the parties were using "soft money" expressly to 

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influence federal elections, and that their close relationship with federal candidates had 

created the appearance if not actuality of corruption. See id. at 146.

Nor does Common Cause support the proposition that the Commission may withhold 

allocation whenever it wants. In Common Cause, this Court wrote: "Indeed, 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 those activities permitted in the 1979 amendments be 'hard money' under the 

FECA." 692 F. Supp. at 1396. Yet the Commission does not present the full context of this 

discussion. The Court was not considering the administrative and voter drive activities of 

independent political committees like EMILY's List. Rather, it was discussing the so-called 

"exempt activities" of state and local party committees. See id. at 1394. These were 

activities that otherwise would have been contributions to federal candidates, had Congress 

not specifically chosen to exempt them from the definition of "contribution" in 1979. They 

expressly urged people to vote for federal candidates, were targeted at the candidates' voters, 

and were financed by parties in which the candidates were closely involved. Congress 

expressly required them to be financed with "contributions subject to the limitations and 

prohibitions of the Act." See id. at 1394; see also 2 U.S.C. § 431(8)(B)(ix)(2), (xi)(2), 

(viii)(2), (ix)(2). 

The Commission stands Common Cause on its head. Common Cause does not stand 

for the proposition that the Commission can force a political organization, active principally 

in state and local elections, to pay its administrative or generic expenses entirely with hard 

money. It does not stand for the proposition that the Commission can force a political 

committee to pay for a communication that has no demonstrable effect on federal elections 

entirely with hard money. It does not stand for the proposition that, once Congress has 

pointedly chosen to leave untouched the activities of independent committees, the 

Commission can regulate them anyway. 

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Finally, the Commission relies on FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir. 

1995) to support the over-reaching of section 100.57. That case held that contributions under 

FECA would result from a solicitation that left "no doubt" that funds given in response 

would be used to influence federal elections. Id. at 295. Yet once again, the Commission 

has twisted the case law to support an overreach of its authority. In some cases, section 

100.57 defines all receipts as contributions, when the solicitation indicates that a clearly 

identified candidate will be supported or opposed only with some of the funds. 

The Commission does not attempt to defend this result under the terms of 2 U.S.C. 

§ 431(8)(A), because the result is indefensible. The FEC only has the power to regulate 

payments made to influence a federal election. The rationale of Survival Education Fund

was based on the fact that the funds would be used to influence federal elections, and that this 

was easily ascertained from the solicitation. To treat all funds as contributions even when 

only a small portion of them will be used to influence federal elections, and even when the 

solicitation explicitly states as such, is a regulatory effort far beyond that permitted by the 

FECA. 

V. THE REGULATIONS ARE ARBITRARY AND CAPRICIOUS 

Just as the FEC may not regulate the state and local election activities of independent 

political committees however it pleases, it may not write rules however it wants. The rules 

must have some "relationship to the underlying regulatory problem." Cassell v. FCC, 154 

F.3d 478, 485 (D.C. Cir. 1998) (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 60 (D.C. 

Cir. 1977)). It is ironic that the FEC would cite RNC v. FEC, 76 F.3d 400 (D.C. Cir. 1996) to 

defend its rulemaking prerogatives. (Def's. Mot. Summ. J. 24.). In that case, the court 

invalidated a Commission rule so poorly crafted, it required political committees to make an 

"inaccurate and misleading" statement of the law. 76 F.3d at 406. That rule, too, involved 

issues that the Commission had "wrestled with" for decades. (Def's. Mot. Summ. J. 17.). 

See 76 F.3d at 404-05. 

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These rules suffer from the same slipshod, arbitrary approach. For example, the 

Commission arbitrarily decided to require independent political committees to pay for at least 

half of their administrative and voter drive expenses with hard money, because a fifty percent 

allocation ratio "fairly reflects the dual nature of the disbursements." (Def's. Mot. Summ. J. 

27.). It is nonsensical to conclude that, because someone does two different things, the effect 

of one is as significant as that of the other. Yet this is just the sort of illogic in which the 

Commission has indulged here. 

Moreover, the record reflects no actual evidence to show why the Commission 

reached the decision that it did. It cites "anecdotal evidence" that committees were 

"confused" by the old rule, but it does not say what that evidence is. (Def's. Mot. Summ. J. 

26.). It says that "audit experience had also shown that some committees were not properly 

allocating under the complicated funds expended method," (Def's. Mot. Summ. J. 26), but it 

does not identify the complexity that supposedly resulted in such improper allocation, nor 

does it say how the addition of a minimum federal percentage to a variable allocation scheme

leaves anyone less confused.2 It claims to have relied on a review of public disclosure 

reports, but it does not say how which reports led to its conclusion or how; anyone wishing to 

divine the Commission's thought processes must look at the untold thousands of reports 

"publicly available on the Commission's web site and in its public records office." (Def's. 

Mot. Summ. J. 42.). 

This rulemaking effectively began when a sham Republican PAC, mimicking the 

activities of a prominent Democratic organization, sought an advisory opinion inviting the 

Commission to disallow these activities. (Def's. Mot. Summ. J. 3 n.8, 8.). The Commission 

issued the opinion sought, placing restrictions on the financing of public communications by 

 

2 Indeed, the rules do not state how a committee would go about calculating a federal share 

greater than fifty percent. 

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independent political committees that had not yet been written into rules. See FEC Advisory 

Opinion 2003-37 (Feb. 19, 2004). The Commission undertook the rulemaking to attempt to 

ratify the new rules improperly imposed by the advisory opinion process, and it did so with 

extreme haste. See Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 

2004). (Def's. Mot. Summ. J. 6.). 

The Commission claimed that the true purpose of its rulemaking was the professed 

desire "to simplify the allocation system, and to make it easier for SSFs and nonconnected 

committees to comprehend and for the Commission to administer these requirements." 

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

Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 68,056, 68,060 (Nov. 23, 

2004). But the Commission can point to no independent political committee that sought such 

simplification. The only calls for simplification cited by the Commission in its brief came

from a public interest organization that supported more restrictive campaign financing rules; 

and from the Republican National Committee, which was no longer permitted to allocate 

because of BCRA. (Def's. Mot. Summ. J. 8-9.). 

This is not rulemaking within a "zone of reasonableness," ExxonMobil Gas Mktg. Co. 

v FERC, 297 F.3d 1071, 1084 (D.C. Cir. 2002), where the agency's policy preferences should 

be respected, Worldcom, Inc. v. FCC, 238 F.3d 449, 461 (D.C. Cir. 2001). Unlike this case, 

the cases cited by the FEC involved agencies that carefully considered the relevant factors 

before choosing the thresholds. In ExxonMobil, the court required the agency to "give[] 

'reasoned consideration to each of the pertinent factors' and articulate[] factual conclusions 

that are supported by substantial evidence in the record." 297 F.3d at 1084 (quoting Conoco 

Inc. v. FERC, 90 F.3d 536, 544 (D.C. Cir. 1996)). In Worldcom, the FCC "considered 

alternatives," rejected them, and "provided an adequate explanation." 238 F.3d at 461. The 

FEC engaged in none of this conduct. 

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The arbitrary thresholds of section 100.57 fare even worse. There is no analysis – 

none – for why the solicitation restriction treats one hundred percent of the receipts as 

contributions. There is no analysis – none – for why the regulation treats fifty percent of the 

receipts as contributions when a clearly identified nonfederal candidate is referenced. Why 

the FEC chose these amounts is never explained. The Commission's papers before this Court 

also fail to explain from whence these numbers originate, or why they were chosen. In the 

face of the Commission's complete abdication of its duty to justify the choice of the arbitrary 

amounts contained in section 100.57, this Court should strike that regulation down as 

arbitrary and capricious.

As to the use of hypothetical examples, the Commission complains that "Plaintiff 

offers no evidence" to support its hypothetical examples, in particular those concerning 

solicitations that ask for only a small percentage of federal funds. (Def's. Mot. Summ. J. 32.) 

As the Commission should know, the review of an agency's action under the APA is limited 

to the record before the agency at the time of the rulemaking. Fla. Power & Light Co. v. 

Lorion, 470 U.S. 729, 743-44 (1985). The Commission would no doubt complain if 

EMILY's List attempted to include evidence of its hypothetical examples. 

In any case, the FEC's complaint that there is "no evidence that anyone actually uses 

solicitations" that devote only a small percentage of receipts for federal purposes is 

disingenuous. (Def's. Mot. Summ. J. 32-33.) Before the advent of section 100.57, it was 

common practice for allocating committees, or joint fundraising committees for federal and 

nonfederal committees, to issue solicitations that would devote the first $5,000 of 

contributions for federal purposes, up to the contribution limit for federal committees, and to 

use the rest for solely nonfederal purposes. For solicitations targeting large contributions, 

then, only a small percentage of each contribution would be given for the purpose of 

influencing federal elections; however, section 100.57 requires at least half of those funds to 

be treated as federal contributions. 

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In any case, the use of hypothetical examples to demonstrate absurdities in 

administrative regulations is perfectly permissible. The two cases Defendant cites are 

inapposite. (Def's. Mot. Summ. J. 33.) The court in Union of Concerned Scientists v. NRC, 

920 F.2d 50, 57 (D.C. Cir. 1990) refused to consider a hypothetical misapplication of a rule, 

not a straightforward hypothetical application. See id. at 56. And the issue in Florida 

League of Professional Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) was a challenge to 

a state regulation under the First Amendment, not under the APA. See id. at 458. 

 Courts regularly use hypothetical examples to test the arbitrary and capricious nature 

of a rule. See Bellum v. PCE Constructors, Inc., 407 F.3d 734, 739 (5th Cir. 2005); Harbert 

v. Healthcare Services Group, Inc., 391 F.3d 1140, 1150 (10th Cir. 2004). Indeed, this Court 

in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) used hypotheticals again and again when 

striking down Commission regulations. See, e.g., id. at 113-14 (considering the possibility 

that political parties would spread federal election responsibilities throughout their 

employees to avoid the 25 percent threshold). 

VI.THERE WAS NOT A SUFFICIENT OPPORTUNITY FOR NOTICE AND 

COMMENT 

Section 553(b) of the APA permits notice by publishing either a "description of the 

subjects and issues involved," or "the terms or substance of the proposed rule." 5 U.S.C. 

§ 553(b)(3). The Commission argues that EMILY's List focuses on the latter, but ignores the 

former when arguing that the regulations were preceded by insufficient notice. (Def's. Mot. 

Summ. J. 34-34.) The Commission apparently does not understand that both of these prongs 

are governed by the "logical outgrowth" standard. See Small Refiner Lead Phase-Down Task 

Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). The Commission has not met this 

standard, and the rules fail as a result. 

EMILY's List does not complain simply that the proposed rules did not match the 

final rules exactly; under § 553(b), that is not required. What is required is that the notice be 

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"sufficient to apprise the public, at a minimum, that the issue . . . was on the table." Career 

Coll. Ass'n v. Riley, 74 F.3d 1265, 1276 (D.C. Cir. 1996). EMILY's List did not fail "even to 

argue about the alternative type of notice." (Def's. Mot. Summ. J. 35.) To the contrary, it 

focused on the logical outgrowth test and why it has not been met. This test encompasses 

both prongs of § 553(b). Defendant cannot avoid the strictures of the logical outgrowth test 

by focusing on one prong of § 553(b) instead of the other. 

The FEC offers no defense of its notice of the mere reference portions of section 

106.6, other than to say that it was "within the range of noticed possibilities." (Def's. Mot. 

Summ. J. 40). There is no attempt to explain how the final rules were a logical outgrowth of 

either the initial proposed rule, or of the description of the subjects and issues involved. The 

Commission never indicated that anything but the support or oppose standard would be used 

– the same standard already in place under AO 2003-37. 

As Defendant's Motion for Summary Judgment itself notes, the "logical outgrowth" 

test is only satisfied when "a new round of notice and comment would not provide 

commenters with their first occasion to offer new and different criticisms which the agency 

might find convincing." Ass'n of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047, 1058 

(D.C. Cir. 2000) (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1225 

(D.C.Cir. 1980)). Here, the administrative record makes obvious that new and different 

criticisms were clearly first available when the final rules were made public. This is why 

EMILY's List, in its letter of August 17, 2004 to the Commission, asked that a new round of 

notice and comment be permitted. That request was refused, and Plaintiff was never afforded 

an opportunity to offer comments and criticisms that were relevant to the regulations in their 

final form. 

The "refers to" standard contained in the final rules was unlike any regulation 

promulgated by the Commission, with the sole exception of the electioneering 

communications provisions, which expressly do not apply to groups like EMILY's List. 

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There was no hint in the proposed rules that the Commission would travel down this road. 

The overreaching of the rules to extend to nonfederal activity is due largely to the use of the 

"refers to" standard instead of the proposed "support or oppose" standard. EMILY's List 

never had the opportunity to comment on the use of this standard, and the Commission's 

resulting foray into the regulation of purely nonfederal activity. If it had, the Commission 

might have been dissuaded from this course, and this case might have been unnecessary. 

Finally, the FEC quarrels with Plaintiff's argument that the agency used data not 

made available to the public. Defendant argues that all the data used – publicly available 

disclosure reports – were available to the general public. (Def's. Mot. Summ. J. 42.) While 

that is technically true, the sheer number of reports available, and the lack of sorting ability 

on the FEC system, makes segregating out allocating committees practically impossible. 

This argument is akin to arguing that a scientific study of air samples nationwide was 

publicly available because the public could have conducted their own study by collecting 

their own samples. The public nature of the data points does not equate to the results of the 

analysis being made public. 

More importantly, neither EMILY's List nor anyone else had any idea that

administrative convenience was the rationale. EMILY's List had no chance to contest the 

findings, or the administrative conclusion drawn from those findings. If given the chance, 

EMILY's List would have noted that it would vastly prefer the former regime to a regime

where the illusion of clarity takes precedence over common sense, and that the FEC was 

overstating the savings in time and convenience from using a minimum allocation ratio. 

The Commission continues to rely only on the deference traditionally afforded federal 

agencies in the rulemaking process. But that deference only extends so far; the agency must 

present arguments and evidence to be deferred to. The FEC has not done that here. The 

revisions to section 106.6, and the promulgation of section 100.57, are arbitrary and 

capricious and should be struck down. 

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VII. CONCLUSION 

These regulations offend the Constitution, the boundaries on the Commission's 

statutory authority, and the Administrative Procedure Act. Yet when EMILY's List asserted 

its rights before this Court, the Commission responded in a manner that can only be 

described as cavalier. 

The Commission's answer to the First Amendment claim was that EMILY's List 

should "appeal to its existing supporters or find new supporters." (Def's. Mot. Summ. J. 29.) 

When told that it could not regulate EMILY's List's state and local election activities, the 

Commission replied that freedom from such regulation "is a permissive administrative 

construction, not a statutory entitlement." (Def's. Mot. Summ. J. 17.) Presented with serious 

defects in the administrative process, the Commission assured EMILY's List that it had the 

committee's best interests at heart, and that it was just trying to "make it easier" for the 

committee. (Def's. Mot. Summ. J. 26.) 

Such a response is unacceptable from an agency whose activities go to the heart of 

the First Amendment, and that is governed like any other by the bounds of reasoned decisionmaking. The Commission may believe that it can treat independent committees with no 

record of corruption in the same way that Congress treated parties, corporations and unions, 

but it cannot. It may believe that it is free to regulate the totality of a political committee's 

state and local election activities however it chooses, but it cannot. It may believe that it can 

generate irrational rules through an irregular process without being required to provide an 

adequate explanation, but it cannot. 

For the foregoing reasons, Plaintiff EMILY's List's Motion for Summary Judgment 

should be granted, and Defendant Federal Election Commission's Motion for Summary 

Judgment should be denied. 

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Respectfully submitted, 

Dated June 27, 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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