ORAL ARGUMENT NOT YET SCHEDULED 

______________________________________________________________________________ 

______________________________________________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

No. 08-5422 

_______________________________________________ 

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 FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Thomasenia P. Duncan 

General Counsel 

 

David Kolker 

Associate General Counsel 

 

Harry J. Summers 

Assistant General Counsel 

 Vivien Clair 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

February 25, 2009 (202) 694-1650 

______________________________________________________________________________ 

_________________________________________________________________ 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

 Pursuant D.C. Cir. R. 28(a)(1), the Federal Election Commission (“the 

Commission”) submits its Certificate as to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. EMILY’s List was the plaintiff in the district court 

and is the appellant in this Court. The Commission was the defendant below and is 

the appellee in this Court. Amici curiae in the district court were Democracy 21, 

the Campaign Legal Center, the Center for Responsive Politics, John McCain, 

Russell Feingold, Christopher Shays, and Martin Meehan. There were no 

intervenors in the district court. In this Court, the Campaign Legal Center and 

Democracy 21 are participating as amici curiae. 

(B) Rulings Under Review. EMILY’s List appeals the July 31, 2008, 

judgment of the United States District Court for the District of Columbia (KollarKotelly, J.) for the Commission on cross-motions for summary judgment in this 

suit challenging three regulations. The court’s opinion is reported at 

569 F. Supp. 2d 18 (D.D.C. 2008) and is in the Joint Appendix at JA 126-194. 

(C) Related Cases. This case was previously before this Court on an 

appeal by EMILY’s List of the district court’s denial of plaintiff’s 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). The Commission knows of no other “related cases” as that term is defined 

in D.C. Cir. R. 28(a)(1)(C). 
TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION................................... 1 

COUNTERSTATEMENT OF ISSUES PRESENTED......................... 1 

STATUTES AND REGULATIONS ....................................................... 2 

COUNTERSTATEMENT OF THE FACTS ......................................... 2 

 A. The Parties .............................................................................. 2 

 B. Statutory and Regulatory Background ............................... 4 

1. Regulation of Solicitations and Allocation of 

Expenses by Nonconnected Political Committees 

Prior to the Passage of BCRA................................... 4 

2. Bipartisan Campaign Reform Act............................ 5

3. The Commission’s Rulemaking Regarding 

Political Committee Status, Expenditures, 

Contributions, and Allocation .................................. 6 

a. The Notice of Proposed Rulemaking.............. 6 

b. Public Comment and Hearings ...................... 7 

c. The Final Rules................................................. 9 

i. Solicitations ............................................. 10 

 ii. Allocation regulations ............................. 10 

C. Court Proceedings......................................................................... 11 

 SUMMARY OF ARGUMENT................................................... 13 
ii

ARGUMENT................................................................................. 15 

I. THE COMMISSION’S ALLOCATION REGULATIONS 

ARE CONSTITUTIONAL ON THEIR FACE ......................... 15 

 A. Standards of Review ............................................................ 15 

 1. Summary Judgment ..................................................... 15 

 2. Contribution Limits...................................................... 15

 3. Facial Challenges .......................................................... 16 

B. The Lower Level of Scrutiny for Contribution Limits 

Applies to the Allocation Regulations, 11 C.F.R. 

106.6(c), (f)........................................................................... 17 

C. EMILY’s List Has Failed to Carry Its Heavy Burden 

of Showing that the Allocation Regulations Are 

Facially Overbroad ............................................................ 19 

1. The Allocation Regulations Serve Compelling 

Governmental Interests by Preventing 

Circumvention of the Act’s Contribution Limits . 20 

2. The Allocation Regulation...................................... 22 

3. The “Candidate-Driven” Regulation for Some 

Public Communications and Voter Drives Is 

 Closely Drawn to Match Important Governmental 

 Interests..................................................................... 30 

4. Recent Supreme Court Decisions Do Not Support 

EMILY’s List’s Facial Challenge ........................... 38 

II. THE COMMISSION’S SOLICITATION REGULATION IS 

CONSTITUTIONAL ON ITS FACE......................................... 40 

A. Standards of Review........................................................... 40 
iii

B. The Lesser Standard for Contribution Restrictions 

Applies to the Commission’s Solicitation Regulation ..... 40 

 C. EMILY’s List Has Failed to Carry Its Heavy Burden 

of Showing that the Solicitation Regulation Is Facially 

Overbroad ........................................................................... 41 

III. THE ALLOCATION AND SOLICITATION REGULATIONS 

ARE LAWFUL UNDER THE FECA AND THE APA ............ 47 

 

A. The Challenged Regulations Are Permissible 

Under Chevron.................................................................... 47 

B. The Regulations Satisfy APA Requirements ................... 52 

CONCLUSION........................................................................................ 58 
iv

TABLE OF AUTHORITIES 

Cases Page 

American Federation of Government Employees v. OPM, 

 821 F.2d 761 (D.C. Cir. 1987)............................................................. 53 

Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988) .................................... 52 

Arent v. Shalala, 70 F.3d 610 (D.C. Cir. 1995)........................................ 47 

Automotive Parts & Accessories Ass’n v. Boyd, 407 F.2d 330 

 (D.C. Cir. 1968) ................................................................................... 57 

Broadrick v. Oklahoma, 413 U.S. 601 (1973).......................................... 17 

* Buckley v. Valeo, 424 U.S. 1 

 (1976) .......................................14, 15, 16, 20, 23, 28, 30, 31, 39, 41, 42 

* California Medical Ass’n v. FEC, 453 U.S. 182 (1981)...... 21, 27, 28, 34 

Carpenter v. Secretary of Veteran Affairs, 343 F.3d 1347 

 (Fed. Cir. 2003).................................................................................... 55 

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004)....................... 52 

* Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 

 (1984)................................................................................ 12, 47, 51, 52 

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 

 789 (1984) ............................................................................................ 29 

Clinton Memorial Hospital v. Shalala, 10 F.3d 854 (D.C. Cir. 1993)...... 57 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987)..................... 49 

Davis v. FEC, 128 S. Ct. 2759 (2008) .......................................... 38, 39, 41 

* Cases and Authorities chiefly relied upon are marked with an asterisk. 
v

Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008) ......... 15 

EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005).................. 12, 26 

EMILY’s List v. FEC, 170 Fed. Appx. 719 (D.C. Cir. Dec. 22, 2005)..... 12 

ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002)... 54 

FEC v. Beaumont, 539 U.S. 146 (2002) ....................................... 15, 16, 20 

FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 

 431 (2001) ............................................................................................ 20 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 

 (1981)................................................................................................... 47 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)......... 23 

FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001)................... 51 

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982) ................. 18, 28 

FEC v. Public Citizen, 268 F.3d 1283 (11th Cir. 2001)............................ 45 

FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995)........... 42, 45 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007).................. 38 

Florida League of Prof’l Lobbyists v. Meggs, 87 F.3d 45 

 (11th Cir. 1996)..................................................................................... 30 

Flynn v. Dick Corp., 481 F.3d 824 (D.C. Cir. 2007)................................ 15 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................. 46 

Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978) ............................... 35 

Matthews v. Diaz, 426 U.S. 67 (1976)...................................................... 53 
vi

McConnell v. FEC, 251 F.Supp 2d 176 (D.D.C. 2003)............................ 21 

* McConnell v. FEC, 540 U.S. 93 (2003).......6, 15, 16, 17, 18, 19, 20, 22, 

...........................................25, 29, 30, 31, 32, 33, 45, 46, 47, 49, 50, 58, 59 

Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973)......... 53 

New York v. Ferber, 458 U.S. 747 (1982) ................................................ 17 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000)......... 15, 16, 39 

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 

 1996) ........................................................................................ 45, 53, 55 

Reytblatt v. NRC, 105 F.3d 715 (D.C. Cir. 1997)..................................... 58 

Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005).......... 48, 49 

San Luis Obispo Mothers For Peace v. NRC, 789 F.2d 26 

 (D.C. Cir. 1986) (en banc) ................................................................... 52 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007).................................... 24 

Trout v. Secretary of Navy, 540 F.3d 442 (D.C. Cir. 2008) ..................... 41 

Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) ... 29 

U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991)....................................... 35 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .............. 47 

United States v. Salerno, 481 U.S. 739 (1987)......................................... 17 

United States v. Slone, 411 F.3d 643 (6th Cir. 2005) ................................ 52 

Walsh v. Brady, 927 F.2d 1229 (D.C. Cir. 1991) ..................................... 53 

Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 

 1184 (2008).................................................................................... 16, 29 
vii

WorldCom, Inc. v. FCC, 238 F.3d 449, 459 (D.C. Cir. 2001) ........... 53, 55 

STATUTES AND REGULATIONS 

*Federal Election Campaign Act of 1971, as amended 2 U.S.C. 431-55 .. 1 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

 116 Stat. 81 (2002)................................................................................. 5 

Administrative Procedure Act................................................................... 11 

2 U.S.C. 431(4)(A)...................................................................................... 2 

*2 U.S.C. 431(8) ....................................................................... 3, 18, 41, 48 

2 U.S.C. 431(20)(A)(i).............................................................................. 33 

2 U.S.C. 431(20)(A)(ii)............................................................................. 33 

2 U.S.C. 431(20)(A)(iii)............................................................................ 46 

2 U.S.C. 431(20)(A)(iv)............................................................................ 24

2 U.S.C. 433(a) ........................................................................................... 2 

2 U.S.C. 437c(b)(1)..................................................................................... 2 

2 U.S.C. § 437d(a)(8)................................................................................ 53 

2 U.S.C. § 437f(a)(1) ................................................................................ 29 

2 U.S.C. 437c(b)(1)..................................................................................... 2 

2 U.S.C. 437d(a) ......................................................................................... 2 

2 U.S.C. 437d(a)(8)............................................................................... 2, 53 

2 U.S.C. 437g.............................................................................................. 2 

2 U.S.C. 437g(a)(12)................................................................................. 36 
viii

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

2 U.S.C. 438(d) ........................................................................................... 2 

2 U.S.C. 441a ........................................................................................ 4, 18 

2 U.S.C. 441a(a)(1)(C)................................................................................ 3 

2 U.S.C. 441a(a)(2)(A) ............................................................................. 22 

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

2 U.S.C. 441b ....................................................................................... 4, 38 

2 U.S.C. 441b(a) ................................................................................... 3, 18 

2 U.S.C. 441d(a) ....................................................................................... 45 

2 U.S.C. 441e ............................................................................................. 3 

2 U.S.C. 441i(b)(2)(A)................................................................................ 6 

5 U.S.C. 553(c) ................................................................................... 57, 58 

5 U.S.C. 706(2) ......................................................................................... 58 

5 U.S.C 706(2)(A)............................................................................... 21, 52

28 U.S.C. 1291............................................................................................ 1 

28 U.S.C. 1331............................................................................................ 1 

* 11 C.F.R. 100.57 ..........................1, 10, 11, 40, 42, 43, 44, 46, 47, 51, 56 

* 11 C.F.R. 100.57(a).......................................................................... 10, 41 

* 11 C.F.R. 100.57(b)(1)........................................................................... 42 

* 11 C.F.R. 100.57(b)(2)............................................................... 10, 42, 51 
ix

11 C.F.R. 102.5(a)....................................................................................... 3 

11 C.F.R. 102.5(a)(1).................................................................................. 3 

11 C.F.R. 102.5(a)(2).................................................................................. 3 

11 C.F.R. 106.1 ............................................................................. 31, 33, 37 

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

* 11 C.F.R. 106.6 ........................................................................ 6, 7, 10, 31 

11 C.F.R. 106.6(a)....................................................................................... 2 

11 C.F.R. 106.6(b)(1)(i)............................................................................ 22 

11 C.F.R. 106.6(b)(1)(iii).......................................................................... 22 

* 11 C.F.R. 106.6(c)..........................1, 5, 11, 17, 22, 24, 25, 26, 27, 37, 54 

* 11 C.F.R. 106.6(f)....................................1, 11, 30, 31, 32, 33, 36, 37, 54 

11 C.F.R. 106.6(f)(1) ................................................................................ 11 

11 C.F.R. 106.6(f)(2) ................................................................................ 11 

11 C.F.R. 106.6(f)(3) ................................................................................ 11 

Miscellaneous

U.S. Const. amend I. ............................................................................. 1, 12 

U.S. Const. article III. ............................................................................... 12 

FEC Advisory Opinion 1978-10................................................................. 5 

FEC Advisory Opinion 2005-13............................................................... 43 

55 Fed. Reg. 26,058 (1990) ........................................................................ 5 
x

* Political Committee Status, Proposed Rule, 69 Fed. Reg. 11,736 

 (March 11, 2004)................................................................................ 6, 9 

* Political Committee Status, Definition of Contribution, and Allocation 

 for Separate Segregated Funds and Nonconnected Committees 

 69 Fed. Reg. 68,056 (November 23, 2004) ........................................... 9 

Political Committee Status: Supplemental Explanation and Justification, 

 72 Fed. Reg. 5595, 5601 (2007) .......................................................... 24 

H.R. Conf. Rep. No. 94-1057, pp. 57-58 (1976) ...................................... 22 

Liz Sidoti, Bush, Kerry to Pull Ads on Friday, Associated Press 

 Newswires, June 7, 2004)...................................................................... 4 

FEC News Release, FEC To Collect $775,000 Civil Penalty From America 

Coming Together (Aug. 29, 2007) (News Release) ................................. 34 
GLOSSARY 

 

ACT (in capitals) = America Coming Together 

AO = Advisory Opinion 

AR = Certified Administrative Record 

APA = Administrative Procedure Act 

BCRA = Bipartisan Campaign Reform Act of 2002 

E&J = Explanation and Justification 

FEC = Federal Election Commission 

FECA = Federal Election Campaign Act of 1971 

JA = Joint Appendix 

MUR = Matter Under Review 

 

NPRM = Notice of Proposed Rulemaking 

OP. = District court’s opinion in this case 

SEF = Survival Education Fund 

SSF = Separate Segregated Fund 

WRTL = Wisconsin Right to Life 
1

COUNTERSTATEMENT OF JURISDICTION 

 The district court had jurisdiction under 28 U.S.C. 1331 over the claims by 

EMILY’s List that three regulations promulgated by the Federal Election 

Commission (“the Commission” or “FEC”) are facially invalid. This Court has 

jurisdiction under 28 U.S.C. 1291 of this appeal, filed September 25, 2008, from 

the July 31, 2008, final judgment of the district court granting the Commission’s 

motion for summary judgment and denying EMILY’s List’s motion. (JA 125.)1

 

COUNTERSTATEMENT OF ISSUES PRESENTED 

1. Whether regulations simplifying and clarifying how nonconnected 

federal political committees may “allocate” funds to finance certain activities that 

influence both federal and nonfederal elections violate the First Amendment on 

their face. 11 C.F.R. 106.6(c), (f). 

2. Whether a regulation clarifying when funds obtained through 

solicitations are “contributions” under the Federal Election Campaign Act of 1971, 

as amended (“FECA” or “Act”), 2 U.S.C. 431-55, facially violates the First 

Amendment. 11 C.F.R. 100.57. 

3. Whether those solicitation and allocation regulations exceed the 

Commission’s statutory authority or are arbitrary and capricious in violation of the 

Administrative Procedure Act. 

 

1

 “JA __” references are to the Joint Appendix filed with appellant’s brief. 
2

 STATUTES AND REGULATIONS 

 The Addendum to appellant’s brief contains relevant statutory and 

regulatory provisions. 

COUNTERSTATEMENT OF THE FACTS 

 A. The Parties 

The Commission is the independent agency of the United States government 

with exclusive jurisdiction to administer, interpret and civilly enforce the Act. 

See generally 2 U.S.C. 437c(b)(1), 437d(a), and 437g. The FEC is empowered to 

“formulate policy with respect to” the Act, 2 U.S.C. 437c(b)(1), and to promulgate 

“such rules ... as are necessary to carry out the provisions” of the Act. 2 U.S.C. 

§ 437d(a)(8). See also 2 U.S.C. 438(a)(8) and (d). 

 EMILY’s List has been registered with the Commission as a multicandidate 

nonconnected political committee for more than 20 years.2

 See 2 U.S.C. 433(a); 

FEC Statement of Facts (“FEC Stmt.”) ¶ 3 (JA 91-92); EMILY’s List v. FEC,

 

2

 The Act defines “political committee” in relevant part as “any committee, 

club, association, or other group of persons which receives contributions 

aggregating in excess of $1,000 during a calendar year or which makes 

expenditures aggregating in excess of $1,000 during a calendar year....” 

2 U.S.C. 431(4)(A). See also infra p. 23. A “nonconnected committee” is a 

political committee that is not a party committee, an authorized committee of a 

candidate, or a separate segregated fund (SSF) established by a corporation or 

labor organization. 11 C.F.R. 106.6(a). A “multi-candidate committee” is a 

political committee that has been registered at least 6 months, has more than 50 

contributors and has made contributions to at least 5 candidates for federal office. 

2 U.S.C. 441a(a)(4). 
3

569 F. Supp. 2d 18, 23 (D.D.C. 2008) (“Op.”); JA 129. Its self-described 

“organizational purposes” are “to recruit and fund viable pro-choice women 

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

mobilize women voters to help elect progressive candidates across the nation.” 

Complaint ¶ 5 (JA 10); see also JA 117-124. 

EMILY’s List has separate bank accounts to fund its federal and nonfederal 

activities, pursuant to 11 C.F.R. 102.5(a). FEC Stmt. ¶ 4 (JA 92); Op. at JA 129. 

The federal account can accept only contributions that comply with the Act’s 

source and amount restrictions (“hard money”), that is, contributions of up to 

$5,000 per year from individuals or other political committees registered with the 

Commission, but no contributions from corporations, labor unions, or foreign 

nationals.3

 See 2 U.S.C. 441a(a)(1)(C), 441b(a), 441e; 11 C.F.R. 102.5(a)(1), (2). 

EMILY’s List may spend funds from its federal account in connection with federal 

elections or nonfederal elections. Its nonfederal account can accept donations that 

do not comply with the Act’s source and amount restrictions (“soft money”), but it 

cannot use those funds in connection with federal elections. Op. at JA 129. 

EMILY’s List has registered its nonfederal account with the Internal Revenue 

Service. Complaint ¶ 11 (JA 11-12). 

 

3

 The Act defines “contribution” in relevant part as “any gift, subscription, 

loan, advance, or deposit of money or anything of value made by any person for 

the purpose of influencing any election for Federal office.” 2 U.S.C. 431(8). 
4

EMILY’s List is one of the top federal political committees in fundraising. 

It raised more than $25 million in federal funds alone during the 2003-04 election 

cycle, and it again raised $25 million in the 2005-06 election cycle, a period 

without a presidential election, when such contributions typically decline 

substantially. Op. at JA 142; FEC Stmt. ¶¶ 6-7 (JA 92-93); summary report (JA 

103). In the latest election cycle, EMILY’s List received approximately $25.3 

million in federal funds.4

 According to its president, “EMILY’s List is the biggest 

PAC, which means we have the most hard money, so it’s not an issue of not having 

it.” FEC Stmt. ¶ 10 (JA 94) (quoting Liz Sidoti, Bush, Kerry to Pull Ads on 

Friday, Associated Press Newswires, June 7, 2004). EMILY’s List has stated that 

it, as “the nation’s largest political action committee, continues to be the dominant 

financial resource for Democratic candidates.” FEC Stmt. ¶ 10 (JA 94). 

B. Statutory and Regulatory Background 

1. Regulation of Solicitations and Allocation of Expenses by 

Nonconnected Political Committees Prior to the Passage 

of BCRA 

The Commission has long regulated solicitations of contributions and 

allocation of expenses by political committees to enforce the contribution 

limitations and prohibitions established by 2 U.S.C. 441a and 441b. Since 1977, 

 

4

 The disclosure reports for 2007 are accessible at 

http://query.nictusa.com/cgi-bin/dcdev/forms/C00193433/330350 and at the same 

address except the last digits (substitute 399071) for 2008. 
5

the Commission has required political committees to allocate their administrative 

expenses and the costs of certain activities (such as voter registration) that affect 

both federal and nonfederal elections between separate federal and nonfederal 

accounts. See 11 C.F.R. 106.1 (1977); FEC Advisory Opinion (“AO”) 1978-10. 

The Commission substantially amended the allocation regulations in 1990. 55 Fed. 

Reg. 26,058 (1990). Between 1990 and 2004, 11 C.F.R. 106.6(c) permitted 

nonconnected committees (such as EMILY’s List) to allocate administrative 

expenses and the costs of “generic voter drives” under the “funds expended 

method.” 11 C.F.R. 106.6(c) (2000). These costs were allocated based on a ratio 

of “Federal expenditures” to “total Federal and non-Federal disbursements” made 

by the committee during the two-year election cycle. Id. The rules required 

committees to allocate expenditures made on behalf of one or more clearly 

identified federal and/or nonfederal candidates according to the benefit reasonably 

expected to be derived by each candidate. 11 C.F.R. 106.1(a) (2000). For 

publications and broadcast communications, the allocation was determined by the 

proportion of space or time devoted to each candidate compared to the total 

devoted to all candidates. Id. 

2. Bipartisan Campaign Reform Act

The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 

Stat. 81 (2002) (“BCRA”), amended FECA to eliminate allocation for national 
6

political party committees and substitute a different allocation regime for statelevel party committees, although it explicitly left determination of the method of 

allocation to the Commission. 2 U.S.C. 441i(b)(2)(A). The Supreme Court upheld 

these changes in McConnell v. FEC, 540 U.S. 93, 133-189 (2003). BCRA did not 

directly address allocation by nonconnected political committees under 

11 C.F.R. 106.6. 

3. The Commission’s Rulemaking Regarding Political 

Committee Status, Expenditures, Contributions, and 

Allocation 

a. The Notice of Proposed Rulemaking 

 In March 2004, the Commission published a detailed Notice proposing a 

variety of possible amendments to regulations regarding the definitions of 

“political committee,” “contribution,” and “expenditure,” and the allocation 

requirements for nonconnected committees and separate segregated funds 

(“SSFs”). Political Committee Status, Proposed Rule, 69 Fed. Reg. 11,736 (March 

11, 2004) (“Notice”) (JA 239-64). The Commission explicitly sought comment on 

whether to change the allocation regulations for those entities (JA 257): 

Given McConnell’s criticism of the Commission’s prior allocation 

rules for political parties, is it appropriate for the regulations to 

allow political committees to have non-Federal accounts and to 

allocate their disbursements between their Federal and non-Federal 

accounts? If an organization’s major purpose is to influence 

Federal elections, should the organization be required to pay for all 

of its disbursements out of Federal funds and therefore be 

prohibited from allocating any of its disbursements? 
7

The Notice also invited public comment on a proposal to treat funds received in 

response to particular types of solicitations as “contributions” under the Act 

(JA 247). 

 b. Public Comment and Hearings 

The Commission received numerous written comments and held two days of 

public hearings with 31 witnesses, representing many organizations with a broad 

range of opinions and concerns about different issues.5

 

A number of commenters supported eliminating allocation and instead 

requiring the use of 100% federal funds for all expenditures under 11 C.F.R. 106.6, 

and some suggested abandoning the funds expended method and substituting a 

simpler system.6

 Others supported using specific percentages as a federal 

minimum for administrative expenses,7

 or simply urged the Commission to require 

 

5

 The certified administrative record (“AR”) is contained in CD-ROMs filed 

in the district court. (See Certification (JA 67-68).) Unless otherwise noted, 

references to exhibits in this brief are to the exhibits accompanying the FEC’s 

second motion for summary judgment (D.D.C. Docket Entry 34 (JA 7)). The 

rulemaking comments and hearing transcripts are also available online in the 

FEC’s “Rulemaking Archive,” through portal 

http://www.fec.gov/law/law_rulemakings.shtml# political_ committee_status. 

6

 Comments of Public Citizen, at 12-13 (April 5, 2004) (Exh. 8); Comments 

of Republican National Committee, at 7-8 (April 5, 2004) (Exh. 9). 

7

 Comments of Democracy 21, Campaign Legal Center, Center for 

Responsive Politics, at 17-19 (April 5, 2004) (Exh. 10). 
8

a “significant minimum hard money share.”8 At least one commenter suggested 

that costs of public communications should be allocated either 100% federal or 

100% nonfederal based upon whether a communication included federal or 

nonfederal candidates.9

 One commenter argued that some revisions of the funds 

expended method would be too burdensome to committees because of the 

reporting and bookkeeping that would be required.10 

The Commission heard testimony about the complexities of the then-current 

allocation system and the proposal to move to a flat minimum federal percentage.11 

Witnesses also stated that the allocation system permitted circumvention of the 

rules in BCRA,12 and specifically discussed the possibility of a 50% federal 

 

8

 Comments of Senators McCain and Feingold, Representatives Shays and 

Meehan, at 3 (April 9, 2004) (Exh. 11). 

9

 Comments of Republican National Committee, at 7 (April 5, 2004) (Exh. 9). 

10 Comments of Media Fund, at 20 (April 5, 2004) (Exh. 12). 

11 Transcript of Public Hearing, April 14, 2004 (“Apr. 14 Tr.”), at 160 

(testimony of Craig Holman) (stating the current allocation ratio was “a mess,” and 

suggesting “it would certainly be a healthier improvement to at least come out with 

some sort of fixed percentage, that is a clear bright line test of how much illegal 

money can be used in Federal elections”) (Exh. 14). 

12 E.g., Apr. 14 Tr. at 158-59 (testimony of Craig Holman) (stating that nothing 

in FECA justifies any allocation ratio) (Exh. 14); Transcript of Public Hearing, 

April 15, 2004 (“Apr. 15 Tr.”), at 27-28 (testimony of Lawrence Noble) (stating 

that the funds expended allocation method allowed a “wholesale evasion of the soft 

money rules as applied to political organizations”) (accessible online; see supra

n.5). 
9

minimum for allocated expenses.13 Witnesses also addressed the Commission’s 

proposal that money given in response to solicitations indicating that funds 

received would be used to support or oppose the election of a federal candidate 

would be “contributions” under FECA.14 

EMILY’s List did not participate in these Commission hearings or submit 

any comments before the deadline for making comments. Op. at JA 134; FEC 

Stmt. ¶ 31 (JA 100). 

c. The Final Rules 

 The Final Rules and accompanying Explanation and Justification (“E&J”) 

were published in the Federal Register in November 2004, with an effective date of 

January 1, 2005. See Political Committee Status, Definition of Contribution, and 

Allocation for Separate Segregated Funds and Nonconnected Committees, 69 Fed. 

Reg. 68,056 (Nov. 23, 2004) (“Final Rules”) (JA 282-294). 

 

13 E.g., Apr. 15 Tr. at 80-84 (testimony of Robert Bauer, counsel for EMILY’s 

List in this case, representing American Coming Together (“ACT”)) (responding to 

possibility of 50% federal minimum and other allocation proposals) (Exh. 15); id.

at 80 (testimony of Lawrence Noble) (“We do suggest the 50 percent rule. You 

might be able to come up with a different line, but you did come up in the 

proposed rulemaking with one that’s 50 percent.”) (Exh. 15). 

14 E.g., Apr. 15 Tr. at 207-08 (testimony of Margaret McCormick) (“under the 

proposed notice of rulemaking, the idea is if you solicit contributions and you say 

that your solicitation specifically says it will be used to support or defeat a specific 

candidate, the idea is that the contributions come back in”) (Exh. 15). 
10

 i. Solicitations 

 New 11 C.F.R. 100.57 includes a general rule establishing when funds 

received in response to certain solicitations must be treated as “contributions” 

under FECA. Final Rules, JA 282. Section 100.57(a) states that all funds received 

in response to a solicitation are a “contribution” under FECA “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” (emphasis added). 

If a solicitation meets the standard in section 100.57(a), but also refers to at 

least one clearly identified nonfederal candidate, then only 50% of the money 

received from the solicitation must be treated as contributions under FECA. 

11 C.F.R. 100.57(b)(2); Final Rules, JA 284. If a solicitation refers to nonfederal 

candidates but does not indicate that any funds received will be used to support or 

oppose the election of a clearly identified federal candidate, then section 100.57(a) 

does not apply, and none of the funds received are federal contributions under that 

provision. 

 ii. Allocation regulations 

 The Commission also adopted final rules changing the allocation system for 

nonconnected committees in 11 C.F.R. 106.6. See Final Rules, JA 285-89. The 

Commission explained that a revised allocation method was needed to enhance 

compliance with FECA and make the system easier for committees to understand 
11

and follow, and for the Commission to administer. Id. at JA 286. Revised 

11 C.F.R. 106.6(c) replaces the “funds expended” method with a flat 50% federal 

funds minimum for administrative expenses, generic voter drives, and public 

communications that refer to a political party without any reference to clearly 

identified candidates. See Final Rules, JA 288. The Commission also promulgated 

a new provision, 11 C.F.R. 106.6(f), governing certain public communications and 

voter drives. See Final Rules, JA 289. Public communications and voter drives 

that refer to one or more clearly identified federal candidates, but to no nonfederal 

candidates, must be financed with 100% federal funds, regardless of whether 

political parties are also mentioned. 11 C.F.R. 106.6(f)(1). Conversely, public 

communications and voter drives that refer to a political party and only nonfederal 

candidates may be financed with 100% nonfederal funds. 11 C.F.R. 106.6(f)(2). 

Public communications and voter drives that refer to both federal and nonfederal 

candidates are subject to a time/space allocation between federal and nonfederal 

accounts, regardless of whether they also mention political parties. 

11 C.F.R. 106.6(f)(3). See Final Rules, JA 289. 

C. Court Proceedings 

 In a complaint filed in January 2005, EMILY’s List alleged that 

11 C.F.R. 100.57, 106.6(c), and 106.6(f) exceed the Commission’s authority and 

are arbitrary and capricious, in violation of the Administrative Procedure Act 
12

(“APA”), and facially violate the First Amendment. (JA 18-24.) EMILY’s List 

concurrently moved for a preliminary injunction, which the district court denied. 

EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005). On appeal, this Court 

affirmed the denial of the motion for a preliminary injunction. EMILY’s List v. 

FEC, 170 Fed. Appx. 719 (D.C. Cir. Dec. 22, 2005). 

On July 31, 2008, the district court granted summary judgment for the 

Commission (JA 125). The court first found that EMILY’s List had standing 

under Article III to bring these facial challenges. The court then explained (JA 

154-60) that the challenged regulations are contribution limits and therefore 

reviewed under a lesser level of review than “strict scrutiny.” Under that standard, 

the court concluded (JA 166-71), the regulations at issue foreclose circumvention 

of contribution limits and serve the important governmental purposes of preventing 

corruption and the appearance of corruption. The court also found (JA 171-86) 

that the regulations are “closely drawn” to match these important interests. 

The court next analyzed (JA 186-89) whether the regulations exceeded the 

Commission’s authority under FECA. The court concluded that, under Chevron, 

U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984), the regulations are a 

permissible interpretation of the Act within the Commission’s statutory authority 

(JA 186-89). Lastly, the court found that the allocation and solicitation regulations 

are not arbitrary and capricious (JA 189-93). 
13

SUMMARY OF ARGUMENT 

 EMILY’s List, a “nonconnected” federal political committee, challenges the 

facial validity of three FEC regulations. Two simplify how such a committee may 

allocate funds to finance particular kinds of activity influencing both federal and 

nonfederal elections. The third clarifies when funds obtained through solicitations 

are “contributions” under the Federal Election Campaign Act. The regulations are 

not overbroad under the First Amendment, do not exceed the Commission’s 

statutory authority, and are not arbitrary and capricious. 

The level of constitutional scrutiny for contribution limits applies to all three 

regulations, and, under that standard, the regulations are facially constitutional. 

They implement the Act’s contribution limits by ensuring that funds raised outside 

those limits do not finance federal campaign activity, either directly or by 

circumvention. The regulations thereby promote the important governmental 

interests that the contribution limits serve — foreclosing corruption and the 

appearance of corruption. 

 The regulations are closely drawn to serve those important interests. The 

allocation rules are tailored to require an appropriate percentage of federal funds to 

be raised to finance disbursements that influence both federal and nonfederal 

elections. Moreover, the rules apply only to federal political committees, whose 

“major purpose” is the nomination or election of federal candidates and whose 
14

expenditures “are, by definition, campaign related.” Buckley v. Valeo, 424 U.S. 1, 

79 (1976). One rule thus requires a 50% minimum federal funds allocation for 

such federal committees’ administrative expenses and generic voter drives. The 

other rule adopts clear, bright-line formulas for candidate-specific public 

communications and voter drives, but also builds in flexibility by allowing a 

proportionate allocation between federal and nonfederal funds. 

 Under the solicitation regulation, receipts are treated as “contributions” only 

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

support or oppose the election of a clearly identified federal candidate. The 

regulation is closely drawn to regulate funds that are given to influence federal 

elections and prevent circumvention of the Act’s contribution limits. Solicitors of 

funds can control whether funds received are “contributions” by communicating 

support or opposition to the election of federal candidates only, nonfederal 

candidates only, or both. 

 All of the regulations are within the Commission’s broad statutory authority. 

The Act says nothing about nonconnected political committees’ allocation of funds 

for mixed federal/nonfederal activity; nor does the Act define when solicitations 

seek “contributions.” The regulations reasonably fill these gaps. Indeed, the 

Supreme Court has noted that a literal reading of the Act would not allow any 

allocation for activities that influence both federal and nonfederal elections. 
15

 Finally, the regulations are not arbitrary or capricious. Their bright-line 

standards do not make the regulations unlawfully arbitrary. Funding of mixed 

purpose campaign activities cannot be divided with scientific precision into 

exclusively federal and nonfederal components, and the Commission adequately 

explained the bases for its rules. 

ARGUMENT

I. THE COMMISSION’S ALLOCATION REGULATIONS ARE 

CONSTITUTIONAL ON THEIR FACE 

A. Standards of Review 

 1. Summary Judgment 

 This Court reviews de novo the district court’s ruling on cross motions for 

summary judgment, Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. 

Cir. 2008), drawing all inferences from the evidence in favor of the non-movant, 

and applying the same standards as the district court did. Flynn v. Dick Corp., 

481 F.3d 824, 828-29 (D.C. Cir. 2007). 

 2. Contribution Limits

 Since Buckley v. Valeo, 424 U.S. 1, 19 (1976), the Supreme Court has 

subjected limits on campaign contributions to lesser scrutiny than the “strict 

scrutiny” applicable to restrictions on campaign expenditures. See, e.g., 

McConnell v. FEC, 540 U.S. 93, 134-36 (2003); FEC v. Beaumont, 539 U.S. 146, 

161 (2002); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88 (2000). In 
16

these cases, the Court recognized that a contribution limit, unlike an expenditure 

limit, “entails only a marginal restriction upon the contributor’s ability to engage in 

free communication.” Buckley, 424 U.S. at 20. “While contributions may result in 

political expression if spent by a candidate or an association to present views to 

the voters, the transformation of contributions into political debate involves speech 

by someone other than the contributor.” Id. at 21; accord, McConnell, 540 U.S. 

at 135. 

 Moreover, the “overall effect” of dollar limits on contributions is “merely to 

require candidates and political committees to raise funds from a greater number of 

persons.” Buckley, 424 U.S. at 21-22. As a result, the Court has concluded that 

“contribution limits impose serious burdens on free speech only if they are so low 

as to ‘preven[t] candidates and political committees from amassing the resources 

necessary for effective advocacy.’” McConnell, 540 U.S. at 135 (quoting Buckley, 

424 U.S. at 21). These considerations have led the Court to hold that a 

contribution limit is valid if it satisfies the “lesser demand” of being “closely 

drawn” to match a “sufficiently important interest.” Shrink Missouri, 528 U.S. at 

387-88; accord, Beaumont, 539 U.S. at 162; see also Buckley, 424 U.S. at 25. 

 3. Facial Challenges 

The Supreme Court has used various formulations in determining facial 

overbreadth. Compare, e.g., Wash. State Grange v. Wash. State Republican Party, 
17

128 S. Ct. 1184, 1190 (2008) (“plaintiff can only succeed in a facial challenge by 

‘establish[ing] that no set of circumstances exists under which the Act would be 

valid,’ i.e., that the law is unconstitutional in all of its applications”) (quoting 

United States v. Salerno, 481 U.S. 739 (1987)) with New York v. Ferber, 458 U.S. 

747, 769-771 (1982) (plaintiff can succeed if it establishes that a “substantial 

number” of the challenged law’s applications are unconstitutional) (citing 

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Thus, at a minimum, 

EMILY’s List carries the “heavy burden of proving” that each challenged 

regulation’s “application to protected speech is substantial, ‘not only in an absolute 

sense, but also relative to the scope of the law’s plainly legitimate applications.’” 

McConnell, 540 U.S. at 207 (citation omitted). 

B. The Lower Level of Scrutiny for Contribution Limits Applies to 

the Allocation Regulations, 11 C.F.R. 106.6(c), (f)

 As the district court properly concluded (JA 154-60), the less rigorous 

standard of scrutiny for contribution limits applies to the allocation regulations 

EMILY’s List challenges. A successful allocation regime protects the integrity of 

the Act’s contribution limits by ensuring that funds raised outside FECA’s 

requirements are not used to influence federal elections; a flawed regime enables 

circumvention of FECA by allowing nonfederal funds to finance activities that 

influence federal elections. See McConnell, 540 U.S. at 142, 166-67. Money is 

fungible, and nonfederal funds are donations that exceed FECA’s contribution 
18

limits or come from a source that the statute prohibits. See 2 U.S.C. 431(8) 

(definition of “contribution”); 441a (dollar limits); 441b(a) (source prohibition). 

 As the Supreme Court explained when it upheld BCRA’s restrictions on the 

solicitation and spending of soft money by political parties — including allocation 

provisions for state-level political parties — “for purposes of determining the level 

of scrutiny, it is irrelevant that Congress chose ... to regulate contributions on the 

demand rather than the supply side.” McConnell, 540 U.S. at 138 (citing FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 206-11 (1982)). The Court further 

explained that “the relevant inquiry” instead “is whether the mechanism adopted to 

implement the contribution limit, or to prevent circumvention of that limit, burdens 

speech in a way that a direct restriction on the contribution itself would not.” Id. at 

138-39. The Court answered that inquiry in the negative. Id. at 139. 

 Under McConnell’s analysis regarding the appropriate level of scrutiny, the 

allocation regulations here are indistinguishable from BCRA’s soft money 

provisions. Rather than limiting the amount of money that political committees 

like EMILY’s List can spend on mixed federal/nonfederal electoral activity, the 

regulations merely require that a certain percentage of federal dollars be raised to 

pay for particular activity. As the district court concluded in discussing the 

relevance of McConnell, the “new [allocation] rules do not in fact prevent Plaintiff 

from engaging in whatever political speech it seeks to undertake,” and they do “not 
19

limit [committees’] right to undertake their desired political expression.” (JA 155, 

internal quotation marks and citation omitted.) Rather, they may only “affect the 

manner in which EMILY’s List [and other nonconnected political committees] 

must fund the speech in which [they] choose[ ] to engage,” perhaps by “rais[ing] 

money from a greater number of donors.” Id. Thus, the allocation regulations do 

not “burden[ ] speech in a way that a direct restriction of the contribution itself 

would not.” McConnell, 540 U.S. at 139. “That they do so by [restricting the 

spending of nonfederal funds on certain activities] does not render them 

expenditure limitations.” Id. (footnote omitted). See also Op. at JA154-57. 

 Accordingly, EMILY’s List is wrong in contending (Br. 17, 20) that for 

constitutional purposes the allocation regulations “are the functional equivalent of 

spending limits.” As the Supreme Court has long recognized, contribution limits 

may require organizations to engage in more fundraising to acquire the money they 

would like to have, but because such limits do not restrict what organizations can 

spend, these limits are not subject to strict scrutiny. 

C. EMILY’s List Has Failed to Carry Its Heavy Burden of Showing 

that the Allocation Regulations Are Facially Overbroad 

EMILY’s List has conflated two different inquiries: whether the regulations 

on their face violate the First Amendment, and whether the regulations fail to 

satisfy Chevron review or the APA’s arbitrary-and-capricious standard, 

5 U.S.C 706(2)(A). We address these separate issues in turn.
20

1. The Allocation Regulations Serve Compelling 

Governmental Interests by Preventing Circumvention of 

the Act’s Contribution Limits 

 Since Buckley, the Supreme Court has repeatedly held that contribution 

restrictions serve the important governmental purposes of preventing corruption 

and the appearance of corruption, and it has upheld measures intended to foreclose 

circumvention of those provisions. See, e.g., Buckley, 424 U.S. at 26-28, 46-47; 

FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001) 

(“[A]ll Members of the Court agree that circumvention is a valid theory of 

corruption.”); Beaumont, 539 U.S. at 160; McConnell, 540 U.S. at 143-45. By 

ensuring that funds raised outside FECA’s requirements do not finance federal 

campaign activity, allocation systems implement FECA’s contribution limits. The 

district court correctly concluded, therefore, that “[i]n light of FECA’s restrictions 

on the ability of political committees to contribute to candidates, allowing political 

committees to fund activities intended to influence federal elections with 

nonfederal funds would directly circumvent FECA’s restrictions” (JA 167). 

 EMILY’s List suggests (Br. 26) that nonconnected political committees are 

immune from corruption or the appearance of corruption and that the potential of 

such groups to serve as circumvention vehicles is mere speculation. In fact, 

nonconnected political committees often have close relations with federal 

candidates, political parties, and officeholders, and, contrary to EMILY’s List’s 
21

assertion (Br. 26), the record includes evidence of such close relations. EMILY’s 

List itself is perhaps the best example. Its chief of staff, Britt Cocanour, stated that 

(Decl. ¶¶ 2, 3 (JA 69)) EMILY’s List “identifies viable opportunities to elect prochoice Democratic women,” “recruits qualified candidates,” “trains them to be 

effective fundraisers and communicators,” and “helps them build and run effective 

campaign organizations.” See also id. at ¶ 6 (“Since 1985, EMILY’s List has 

helped to elect sixty-eight Democratic women to Congress, thirteen to the U.S. 

Senate, eight to governorships, and over 350 to other state and local offices.”) (JA 

70); McConnell v. FEC, 251 F. Supp.2d 176, 550-51, 849 (D.D.C. 2003) 

(describing EMILY’s List’s deep involvement in a congressional race in 2000). 

 The decision in California Medical Ass’n v. FEC, 453 U.S. 182 (1981), 

shows that appellant’s suggestion is also legally incorrect. The Court there upheld 

the contribution limits applicable to multicandidate political committees like 

EMILY’s List and explained that those limits were intended in part to prevent 

circumvention of the aggregate and individual contribution limits. As the Court 

noted, Congress decided to 

impose more precisely defined limitations on the amount an 

individual may contribute to a political committee . . . [based] on 

the following considerations: first, these limits restrict the 

opportunity to circumvent the [ ] limits on contributions to a 

candidate; second, these limits serve to assure that candidates’ 

reports reveal the root source of the contributions the candidate has 

received; and third, these limitations minimize the adverse impact 

on the statutory scheme caused by political committees that appear 
22

to be separate entities pursuing their own ends, but are actually a 

means for advancing a candidate’s campaign. 

453 U.S. at 199 n.18 (quoting H.R. Conf. Rep. No. 94-1057, pp. 57-58 (1976)). 

Moreover, political committees could easily circumvent FECA’s limits on their 

contributions to federal candidates, see 2 U.S.C. 441a(a)(2)(A), if they could 

simply label their activities as nonfederal or not in support of identified candidates. 

 In sum, the allocation regulations help promote a governmental interest that 

is not only “sufficiently important,” McConnell, 540 U.S. at 136, but indeed 

compelling. As the Commission establishes in the next sections, the regulations 

are “closely drawn” to match that interest. Id. 

2. The Allocation Regulation Replacing the “Funds 

Expended” Method Is Closely Drawn to Match Important 

Governmental Interests 

 Revised 11 C.F.R. 106.6(c) governs the allocation between federal and 

nonfederal funds by nonconnected political committees of their administrative 

expenses,15 the costs of their “generic voter drives,”16 and certain public 

communications that refer to a political party. These disbursements benefit both 

federal and nonfederal candidates, and thus influence both federal and nonfederal 

 

15 Administrative expenses include rent, utilities, office supplies, and salaries 

not attributable to a clearly identified candidate. 11 C.F.R. 106.6(b)(1)(i). 

16 “Generic voter drives” include voter identification, voter registration, and 

get-out-the-vote drives that urge the public to support candidates of a particular 

political party, without mentioning a specific candidate. 11 C.F.R. 106.6(b)(1)(iii). 
23

elections. The revised regulation applies a minimum federal funds rate of 50% to 

these dual-purpose disbursements. The rate replaces the complex “funds 

expended” method of calculating a ratio for use of federal and nonfederal funds. 

Final Rules, JA 282; see supra pp. 5, 11. This allocation rule is closely drawn to 

limit the financing of activities that influence federal elections to federally 

permissible funds, and thereby serves a compelling anti-corruption purpose. 

 The 50% minimum percentage faithfully reflects the nature of the 

organizations regulated. When the Court in Buckley analyzed “political 

committee,” the Court narrowed the term to avoid “vagueness problems” to 

include only those organizations under the control of a candidate or whose “major 

purpose” is the “nomination or election of a candidate.” 424 U.S. at 79. 

“Expenditures of candidates and of ‘political committees’ so construed can be 

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

by definition, campaign related.” Id.

17 Moreover, the Commission interprets the 

major purpose test as limiting the definition of “political committee” to those 

organizations whose major purpose is federal campaign activity. See Political 

 

17 The Supreme Court reaffirmed its “major purpose” test in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252 n.6, 262 (1986), and more 

recently, in McConnell, 540 U.S. at 170 n.64, when the Court implicitly endorsed 

the test in upholding BCRA’s regulation of political party activity against a 

vagueness challenge. 
24

Committee Status: Supplemental Explanation and Justification, 72 Fed. Reg. 

5595, 5601 (2007).18

 Thus, because organizations like EMILY’s List have registered as federal 

political committees, their major purpose is necessarily federal campaign activity. 

“[C]onsistent with that status, political committees should not be permitted to pay 

for administrative expenses, generic voter drives and public communications that 

refer to a political party with a greater amount of non-Federal funds than Federal 

funds” (Final Rules, JA 288). The 50% minimum percentage in section 106.6(c) is 

also analogous to (though more lenient than) Congress’s decision in BCRA to 

impose a flat 100% federal funds requirement for the wages and salaries of state 

and local party committee employees who dedicate most of their compensated time 

to nonfederal electoral activities, if they spend 25% or more of their time on 

federal activities. See 2 U.S.C. 431(20)(A)(iv). Expressly deferring to Congress’s 

 

18 The Commission has long applied the Supreme Court’s major purpose test in 

determining whether an organization is a “political committee” under the Act. See 

Op. at JA 164-65; Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) (upholding 

Commission’s decision to flesh out the test on a case-by-case basis). EMILY’s 

List errs in claiming (Br. 32-33 n.10) that the Commission’s interpretation of the 

test is inconsistent with the Commission’s enforcement practices. Sometimes the 

administrative respondent explicitly concedes that its major purpose is federal 

campaign activity or does not dispute its obvious electoral purpose. The 

administrative Matter Under Review (MUR) singled out by appellant fits within 

that category. See General Counsel’s Factual and Legal Analysis in MUR 5492, at 

7 n.3 (July 5, 2005) (accessible under the MUR case number at 

http://eqs.nictusa.com/eqs/searcheqs). 
25

judgment, the Supreme Court upheld the 25% provision as a “prophylactic rule” 

that prevents circumvention of other provisions. McConnell, 540 U.S. at 170-71. 

 Revised section 106.6(c) is also closely drawn because the Commission 

reasonably decided that adopting a flat minimum federal rate was the soundest way 

to save an allocation system that was foundering in its own complexity and causing 

needless administrative burdens for political committees. “Anecdotal evidence 

suggested that many committees, including those that allocated, were confused as 

to how the funds expended ratio should be calculated and adjusted throughout the 

two-year election cycle,” and “audit experience ha[d] also shown that some 

committees were not properly allocating under the complicated funds expended 

method” (Final Rules, JA 288). Suggestions for adjusting the funds expended 

method appeared to increase the complexity of the necessary calculations. 

Therefore, the Commission embraced instead a workable, easy-to-grasp and easierto-enforce bright-line minimum flat rate method, and gave committees the option 

of paying for their administrative expenses and the costs of generic voter drives 

and certain public communications with a higher percentage of federal funds. 

“A flat minimum percentage makes the allocation scheme easier to understand and 

apply, while preserving the overall rationale underlying allocation” (Final Rules, 

JA 288). 
26

 The change in section 106.6(c) will have no significant effect on the vast 

majority of political committees, a fact further weakening any suggestion that the 

regulation is unconstitutional in a substantial number of its applications. The 

Commission had “discovered that very few committees chose to allocate their 

administrative and generic voter drive expenses under former section 106.6(c)” 

(Final Rules, JA 288). “Fewer than 2% of all registered nonparty political 

committees ... allocat[ed] administration and generic voter drive expenses under 

former section 106.6(c)....” Id. That means that the remaining committees used 

only federal funds for such activities. And many of those few committees that had 

used the funds expended method “already use 50% or more as their Federal 

allocation ratio” (id. at JA 292). EMILY’s List itself has consistently allocated its 

costs on this same 50% basis.19 Moreover, the Commission concluded (JA 289) 

that the flat rate would result at most in “only a minimal increase in federal funds 

expended” even by those few committees that correctly used the funds expended 

 

19 During the ten years leading up to the promulgation of the allocation 

regulations at issue here, EMILY’s List never reported less than a 50% allocation 

ratio for shared administrative expenses and the costs of generic voter drives or for 

direct federal candidate support. FEC Stmt. ¶ 11 (JA 94); EMILY’s List, 362 F. 

Supp. 2d at 58 (finding that EMILY’s List does not dispute these facts). In fact, at 

the end of the 1995-96 election cycle EMILY’s List reported a final allocation ratio 

of 70% federal candidate support and 30% nonfederal. FEC Stmt. ¶ 11 (JA 95); 

Schedule H1 (JA 107).
27

method and consistently came up with a federal funds allocation ratio less than 

50%. EMILY’s List offered no evidence to controvert this conclusion. 

 EMILY’s List’s other criticisms fail to support its facial challenge to section 

106.6(c). In particular, the Supreme Court has already rejected the argument that money 

raised and spent on administrative expenses does not pose a risk of corruption. 

If unlimited contributions for administrative support are 

permissible, individuals and groups . . . could completely dominate 

the operations and contribution policies of independent political 

committees . . . . Moreover, if an individual or association was 

permitted to fund the entire operation of a political committee, all 

moneys solicited by that committee could be converted into 

contributions, the use of which might well be dictated by the 

committee’s main supporter. In this manner, political committees 

would be able to influence the electoral process to an extent 

disproportionate to their public support and far greater than the 

individual or group that finances the committee’s operations would 

be able to do acting alone. In so doing, they could corrupt the 

political process in a manner that Congress, through its contribution 

restrictions, has sought to prohibit. 

 

California Medical Ass’n, 453 U.S. at 199 n.19. 

 EMILY’s List also asserts (Br. 32) that the rule’s 50% minimum allocation 

requirement “regulates activity far removed from federal elections for those 

committees whose federal activities comprise a small portion of their overall 

efforts.” See also Br. 38. As the district court noted, however, “EMILY’s List 

does not explain why” such an organization “would be considered to have the 

‘major purpose’ of federal campaign activity, or would not choose to operate as 

separate federal and nonfederal committees” (JA 176). 
28

 Similarly, EMILY’s List argues (Br. 32, 41) that the 50% rule 

unconstitutionally discriminates against nonconnected political committees 

because state and local political parties may, in certain circumstances, allocate with 

a lower federal percentage. But an organization like EMILY’s List differs in a 

crucial respect from a state or local party committee. As a federal political 

committee, EMILY’s List, by definition, has as its major purpose the nomination 

or election of federal candidates, while a state or local party committee may focus, 

depending upon the circumstances, on either federal or nonfederal elections. As 

the Supreme Court has repeatedly held, “differing structures and purposes” of 

different entities “may require different forms of regulation in order to protect the 

integrity of the electoral process.” California Medical Ass’n, 453 U.S. at 201. 

Accord, e.g., Nat’l Right to Work, 459 U.S. at 210. 

 EMILY’s List also argues (Br. 21) that the 50% rule, when applied to the 

covered public communications, “require[s] an allocating committee to choose 

between changing its message or effectively capping what it can spend.” First, 

however, the rule does not “cap” how much a committee can spend; the 

committee’s fundraising ability determines the amount. See Buckley, 424 U.S. at 

21-22 (“raise funds from a greater number of persons”). So the supposed forced 

choice is a false one. Second, EMILY’s List offers (Br. 21) only one unlikely 

hypothetical communication as support for its word-changing assertion — to 
29

prevent triggering the 50% rule, a political committee would have to avoid stating 

that “both Democrats and Republicans” support a ballot initiative. EMILY’s List 

has not asked the Commission to opine on whether such a bipartisan mention of 

political parties would be covered by the regulation.20 

EMILY’s List also presents a few other hypothetical situations, but it cannot 

meet its heavy burden in a facial challenge by relying on several unlikely or worstcase hypothetical scenarios. It has not established that the “application [of the 

challenged rules] to protected speech is substantial, ‘not only in an absolute sense, 

but also relative to the scope of the ... [regulations’] plainly legitimate 

applications.’” McConnell, 540 U.S. at 207 (internal citation omitted). “In 

determining whether a law is facially invalid, [the Court] must be careful not to go 

beyond the [regulation’s] facial requirements and speculate about ‘hypothetical’ or 

‘imaginary’ cases.” Wash. State Grange, 128 S.Ct. at 1190 (citation omitted). See 

also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 

(1984) (The “mere fact that one can conceive of some impermissible applications 

of a statute is not sufficient to render it susceptible to an overbreadth challenge.”); 

Union of Concerned Scientists v. NRC, 920 F.2d 50, 57 (D.C. Cir. 1990) 

 

20 As noted in McConnell, “should [an entity] feel that [it] need[s] further 

guidance, [it is] able to seek advisory opinions for clarification, see 2 U.S.C. 

§ 437f(a)(1), and thereby ‘remove any doubt there may be as to the meaning of the 

law.’” 540 U.S. at 170 n.64 (citation omitted). And if the committee were 

dissatisfied with the Commission’s opinion, the committee could bring an 

as-applied challenge to the regulation. 
30

(“Although hypothetical applications of [agency] rules might transgress the 

statutory provisions upon which petitioner relies, we think it inappropriate to 

anticipate them in resolving petitioner’s facial challenge to the rules.”); Florida 

League of Prof’l Lobbyists v. Meggs, 87 F.3d 457, 461 (11th Cir. 1996) (“As for the 

League’s hypothesized, fact-specific worst case scenarios, we also decline to 

accept the facial challenge based on these perceived problems.”). 

 In sum, the revised regulation, which implements the Act’s contribution 

restrictions, easily satisfies the “less rigorous scrutiny applicable to contribution 

limits,” McConnell, 540 U.S. at 141. EMILY’s List does not challenge the 

Commission’s authority to require it to allocate at least a portion of these 

expenditures to its federal account, only the size of the federal allocation the 

Commission adopted. As with the underlying contribution limits themselves, 

however, “‘[i]f it is satisfied that some limit on contributions is necessary, a court 

has no scalpel to probe, whether, say, a $2000 ceiling might not serve as well as 

$1000.’” Buckley, 424 U.S. at 30 (quoting lower court). 

3. The “Candidate-Driven” Regulation for Some Public 

Communications and Voter Drives Is Closely Drawn to 

Match Important Governmental Interests 

 In its new 11 C.F.R. 106.6(f), the Commission promulgated clear, bright-line 

rules for candidate-specific communications to “enhance compliance with the 

FECA, to simplify the allocation system, and to make it easier for SSFs and 
31

nonconnected committees to comprehend and for the Commission to administer 

these requirements.” Final Rules, JA 286. The new regulation establishes 

“candidate-driven allocation rules” (JA 285). Public communications and voter 

drives referring solely to clearly identified federal candidates must be financed 

solely with federal funds; those referring solely to clearly identified nonfederal 

candidates may be financed with nonfederal funds; and those referring to both 

federal and nonfederal candidates are subject to the time/space method of 

allocation under 11 C.F.R. 106.1. As the Commission further explained (JA 289), 

the new rules 

should reduce the burden of compliance on SSFs and nonconnected 

committees. Incorporation of certain voter drives and public 

communications into 11 C.F.R. 106.6 provides more specific 

guidance to committees that conduct such activity. The Commission 

believes that these final rules best resolve the problems with the 

former allocation scheme revealed through reviewing past FEC 

reports and the issues raised by the commenters on the NPRM. 

 Section 106.6(f) applies only to political committees. As we have explained, 

the major purpose of those organizations is “the nomination or election of a 

candidate,” and their expenditures thus “are, by definition, campaign related.” 

McConnell, 540 U.S. at 170 n.64 (quoting Buckley, 424 U.S. at 79). EMILY’s List 

complains (Br. 29) that the provision requires allocation of certain expenditures 

that “refer to” a clearly identified federal candidate. But because EMILY’s List is 

a federal political committee whose major purpose is the nomination or election of 
32

federal candidates, the Commission acted well within its discretion in concluding 

that when such a committee’s voter drives and public communications refer 

explicitly to clearly identified federal candidates, they should be financed with 

federal funds — or, if they also refer to nonfederal candidates, with a proportionate 

allocation between federal and nonfederal funds. That allocation method is closely 

tailored because, to the extent that the federal references are a small part of the 

communication, the federal share of the expenditure would be proportionately 

small. 

 The Supreme Court has repeatedly held that different kinds of political 

entities may be regulated differently, to account for their basic nature and the 

potential for abuse. See McConnell, 540 U.S. at 158; supra p.28. Section 106.6(f), 

regulating nonconnected committees, is less burdensome than the Act’s restrictions 

on other entities. For example, Congress provided in BCRA that national party 

committees could no longer solicit, receive, or spend any nonfederal funds, and the 

Supreme Court upheld those new restrictions despite the acknowledged role 

national party committees regularly play in nonfederal elections. McConnell, 540 

U.S. at 142-61. EMILY’s List, in contrast, can still solicit and spend nonfederal 

funds, subject to certain restrictions to ensure that such funds are not used to 

influence federal elections. To that end, section 106.6(f) merely requires that 

nonconnected political committees allocate expenses for public communications 
33

and voter drives that refer to a mixture of clearly identified federal and nonfederal 

candidates according to the pre-existing time/space method of 11 C.F.R. 106.1. 

 BCRA also established a new allocation system for state and local party 

committees, which have a vital interest in nonfederal elections — and whose major 

purpose, unlike that of EMILY’s List, is usually not the election of federal

candidates. As the Supreme Court noted in upholding the allocation requirements 

for those state-level committees, BCRA “prevents donors from contributing 

nonfederal funds to state and local party committees to help finance ‘Federal 

election activity.’” McConnell, 540 U.S. at 161-62. Moreover, two of the four 

statutory categories of “Federal election activity” encompass the same kind of 

voter drive activity included in 11 C.F.R. 106.6(f): voter registration, 

2 U.S.C. 431(20)(A)(i), and get-out-the-vote and generic campaign activity in 

connection with a federal election, 2 U.S.C. 431(20)(A)(ii). These provisions 

regulate the financing of such activities by state and local parties without regard to 

whether they involve any references to federal candidates. “A campaign need not 

mention federal candidates to have a direct effect on voting for such a candidate 

.... [G]eneric campaign activity has a direct effect on federal elections.” 

McConnell, 540 U.S. at 168 (citations and internal quotation marks omitted). This 

reasoning applies with at least as much force to the activities of federal political 

committees like EMILY’s List, which could similarly be attractive vehicles for 
34

circumvention of the FECA’s aggregate and individual contribution limits. See

California Med. Ass’n, 453 U.S. at 197-98. 

 A recent conciliation agreement between the Commission and America 

Coming Together (“ACT”) confirms the wisdom of the revised allocation rule.21 

See FEC News Release, FEC To Collect $775,000 Civil Penalty From America 

Coming Together (Aug. 29, 2007) (News Release) (JA 108-116). Like EMILY’s 

List, ACT is a federal nonconnected political committee that also has a nonfederal 

account registered with the Internal Revenue Service under section 527 of the 

Internal Revenue Code. See JA 108. The conciliation agreement settles 

allegations that ACT in the 2004 elections used federal/nonfederal allocation ratios 

that greatly underrepresented the proportion of its disbursements required to be 

paid with federal funds. For most of the 2004 election cycle, ACT used an 

allocation ratio of just 2% federal funds and 98% nonfederal funds for its 

administrative expenses and generic voter drives. Agreement at 2-3, 6. The 

Commission concluded that approximately $70 million dollars in disbursements 

characterized by ACT as “administrative expenses” for door-to-door canvassing, 

direct mail, and telemarketing were actually attributable to clearly identified 

federal candidates and thus were required to be paid with 100% federal funds. Id. 

at 7. The Commission further found that another $70 million in voter drive costs 

 

21 The Agreement is most easily accessible at 

http://eqs.nictusa.com/eqsdocs/000061A1.pdf. 
35

were directly attributable at least in part to clearly identified federal candidates, 

and thus should have been paid either with 100% federal funds or allocated 

between federal and nonfederal candidates based on the time or space devoted to 

the candidates. Id. at 9. 

 EMILY’s List’s criticism of the Commission (and the district court) for 

discussing ACT is misplaced. EMILY’s List attempts to impugn the integrity of 

the nonpartisan Commission with unsupported charges (Br. 7) that it revised the 

allocation regulations in “a partisan effort to curtail ... [ACT’s] activity that was 

thought to be adverse to the reelection of President George W. Bush.”22 But 

EMILY’s List also claims (Br. 26-27), inconsistently, that the Commission’s 

references to ACT in this litigation represent post hoc rationalizations by counsel.23 

Contrary to EMILY’s List’s assertion (Br. 27), the record includes evidence that 

the Commission considered ACT’s alleged violation during its rulemaking: 

 

22 See, e.g., U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) (“We 

generally accord ... official conduct a presumption of legitimacy.”); Hercules, Inc. 

v. EPA, 598 F.2d 91, 123 (D.C. Cir. 1978) (agency entitled to presumption of 

regularity in its administrative decisionmaking). 

23 Even if the Commission had no record evidence about ACT, its discussion 

of ACT (or other alleged violators) would not be impermissibly “post hoc.” 

Appellant’s constitutional challenge does not rest on its views of the adequacy of 

the record but on its legal arguments about the limits the First Amendment places 

on the Commission’s authority. The Commission was not required to anticipate 

those legal arguments during the rulemaking, and in litigation its defense of the 

regulation’s constitutionality is not limited to the issues raised and answered during 

that administrative process. Compare infra pp. 52-58 (adequacy of Commission’s 

reasoning under APA review). 
36

Commenters alleged that ACT had improperly applied the “funds expended” 

method, as the district noted. See Op. at JA 135 n.7, 168, 188 n.16; e.g., Apr. 15 

Tr. at 28 (testimony of Lawrence Noble); Feb. 25, 2004, letter from Democracy 21, 

et al., to FEC General Counsel (AR Item 1).24

 Finally, EMILY’s List presents several hypothetical examples (Br. 28-29) 

designed to show that some applications of section 106.6(f) might either be 

unconstitutional or exceed the Commission’s statutory authority. But even the 

hypothetical communications EMILY’s List crafted cannot plausibly be said to 

have no influence on federal elections. The first three examples all involve 

references to both federal and nonfederal candidates, and all could influence 

federal elections. Even if a political committee would try to influence a nonfederal 

election by identifying an out-of-state federal candidate, it is not evident that such 

a communication would not affect an in-state federal election. Such a 

communication may well suggest that its audience support a party’s full slate of 

candidates (federal and state) on the basis of their alliance with a prominent out-ofstate candidate’s policies or the out-of-state candidate’s support for the in-state 

candidates.25 Moreover, to the extent the federal references are as small a part of 

 

24 FECA’s confidentiality provision, 2 U.S.C. 437g(a)(12), prohibited the 

Commission from publicly disclosing and discussing information it gained during 

its ongoing investigation of ACT. 

25 Political committees like EMILY’s List often identify out-of-state federal 

candidates in their communications, especially when urging people all over the 
37

the communication as EMILY’s List implies, the federal share of the expenditure 

would be proportionately small under the time/space allocation rules of 11 C.F.R. 

106.1. One of EMILY’s List’s hypothetical communications (Br. 29) supports a 

political party generally, refers to no clearly identified candidates, and is run before 

an election in which there are no federal candidates on the ballot. The applicable 

regulation (section 106.6(c), not 106.6(f)) requires that the costs of such a public 

communication be financed with at least 50% federal funds regardless of when it is 

run, because undifferentiated support of a political party denotes support of all of 

its candidates, federal and nonfederal. Such elections are, of course, always held 

within the two-year federal election cycle. In any event, as explained supra pp. 29-

30, even if any of EMILY’s List’s hypothetical examples might present a 

successful as-applied challenge to the regulation, they do not provide a basis for 

finding the regulation unconstitutional on its face. 

 

nation to contribute funds to the political committee’s preferred candidates. On 

appellant’s own website, for example, where it solicits contributions to be given 

directly to a list of “featured candidates,” the list of candidates to be supported 

consists of federal candidates from Missouri, Illinois, and New York — although 

the page obviously reaches all 50 states. EMILY's List, “Full Candidate Listing,” 

available at https://emilyslist.org/support/candidates/?id=21&tracking_code= 

WMCCMHPZ (visited February 23, 2009). Moreover, since campaign ads are 

now routinely posted on the internet, even supposedly local ads are seen outside 

the immediate broadcast area.
38

4. Recent Supreme Court Decisions Do Not Support 

EMILY’s List’s Facial Challenge 

EMILY’s List tries to clothe itself in the garb of the successful plaintiffs in 

FEC v. Wisconsin Right to Life, Inc. (“WRTL”), 127 S. Ct. 2652 (2007), and Davis 

v. FEC, 128 S. Ct. 2759 (2008), but the suits do not fit because EMILY’s List 

ignores crucial factual and legal differences between those cases and its own. 

 WRTL is a nonprofit ideological corporation that brought an as-applied 

challenge to 2 U.S.C. 441b, an expenditure limit, to use its corporate treasury funds 

to pay for “issue advocacy.” In stark contrast, EMILY’s List is a federal political 

committee whose major purpose is federal campaign activity, not a corporation 

subject to section 441b; it brings a facial challenge to a regulation, not an asapplied challenge concerning particular communications; and it challenges 

contribution limits, not expenditure limits. In resolving the dispute in WRTL, the 

controlling Justices applied strict scrutiny, with their decision hinging on the 

distinction between issue advocacy and electoral advocacy and on the different 

burdens of proof in as-applied and facial challenges. EMILY’s List’s facial 

challenge does not concern the distinction between issue and electoral advocacy. 

Instead, it concerns the intersection of federal and nonfederal electoral activity as 

relevant to contribution limits for federal political committees. 

 EMILY’s List’s reliance on Davis also fails. Davis facially challenged the 

constitutionality of the so-called “Millionaire’s Amendment,” which, under certain 
39

circumstances, “impose[d] different campaign contribution limits on candidates 

competing for the same congressional seat.” 128 S.Ct. at 2765. Because the 

asymmetrical contribution limits were triggered by how much candidates spent of 

their own money on their own campaigns, the Court analyzed the burden as 

equivalent to an expenditure limit: “Buckley’s emphasis on the fundamental nature 

of the right to spend personal funds for campaign speech is instructive. While 

BCRA does not impose a cap on a candidate’s expenditure of personal funds, it 

imposes an unprecedented penalty on any candidate who robustly exercises that 

First Amendment right.” Id. at 2771. The Court thus held that the Millionaire’s 

Amendment could not stand unless it satisfied a “compelling” governmental 

interest. Id. at 2772 & n.7. In stark contrast, the allocation regulations that 

EMILY’s List challenges do not function as expenditure limits but rather as 

protections of FECA’s contribution limits; they treat all nonconnected federal 

political committees alike; and they need only be “closely drawn” to match a 

“sufficiently important interest.” Shrink Missouri, 528 U.S. at 387-88; see supra

pp. 17-19. Finally, in Davis the government’s long-accepted interest in eliminating 

corruption or the perception of corruption from large contributions was not present 

because millionaires cannot corrupt themselves by spending their own money on 

their own campaigns. The allocation rules at issue here directly address the risk of 
40

corruption inherent in large contributions by preventing contributions above the 

federal limits from being used to influence federal elections. 

II. THE COMMISSION’S SOLICITATION REGULATION IS 

CONSTITUTIONAL ON ITS FACE 

The solicitation regulation, 11 C.F.R. 100.57, clarifies when funds received 

in response to a solicitation will be considered “contributions” under the Act. See 

supra p. 10. 

A. Standards of Review 

The standards of review for the solicitation regulation are the same standards 

applicable to the allocation regulations. See supra pp. 15-17. 

B. The Lesser Standard for Contribution Restrictions Applies to the 

Commission’s Solicitation Regulation 

 This Court should apply the lesser scrutiny applicable to contribution limits 

for two reasons. First, by clarifying when funds received in response to certain 

solicitations will be deemed “contributions” under FECA, section 100.57 does 

nothing more than refine the definition of “contribution” itself. Second, in 

claiming for the first time on appeal that “strict scrutiny” applies, EMILY’s List 

has reversed its legal position. As the district court noted (JA 155), “EMILY’s List 

d[id] not dispute that contribution limits are subject to lesser scrutiny, ... and 

concede[d] that such lesser scrutiny applies to the solicitation regulation it 

challenges.” See also id. at JA 167 (“§ 100.57, which all parties agree is a 
41

contribution limit ....”). Appellant has thus waived its argument that a different 

standard applies. See, e.g., Trout v. Secretary of Navy, 540 F.3d 442, 448 (D.C. 

Cir. 2008) (“[T]his argument was not raised during the proceedings before the 

district court, and we therefore deem it waived.”).26

 C. EMILY’s List Has Failed to Carry Its Heavy Burden of Showing 

that the Solicitation Regulation Is Facially Overbroad 

Contrary to EMILY’s List’s repeated mischaracterization of the regulation 

(e.g., Br. 12, 40), section 100.57(a) treats funds received in response to a public 

communication as “contributions” only if the communication “indicates that any 

portion of funds received will be used to support or oppose the election of a clearly 

identified Federal candidate.” 11 C.F.R. 100.57(a) (emphasis added). As the 

Commission explained in its E&J for the rule, communications indicating that 

funds received will be used for that purpose “plainly seek funds ‘for the purpose of 

influencing Federal elections’” (JA 283), a key phrase in the Act’s definition of 

“contribution.” See 2 U.S.C. 431(8) (defining “contribution” as “any gift, ... 

money or anything of value made ... for the purpose of influencing any election 

for Federal office”); Buckley, 424 U.S. at 78 (construing “contribution” broadly, to 

include, for example, money “earmarked for political purposes” by the donor). By 

 

26 If EMILY’s List is relying on Davis as an intervening authority, that 

decision was issued before the district court issued its judgment in this case. In 

any event, as explained above, the Court analyzed the provision in Davis under 

strict scrutiny because of the “unprecedented penalty” it imposed on a candidate’s 

speech; the Commission’s solicitation regulation imposes no such burden. 
42

carefully defining which funds received in response to solicitations are 

“contributions” under the Act and can therefore be limited, the regulation is 

“closely drawn” to further the compelling governmental interest in preventing 

corruption from large contributions. EMILY’s List presented no evidence to the 

district court that the solicitation regulation has hurt its fundraising or that of other 

political committees. See supra p. 4. It has thus failed to show that the regulation 

has prevented it from “amassing the resources necessary for effective advocacy.” 

Buckley, 424 U.S. at 21. 

Under the regulation, if a solicitation indicates that the funds received will 

be used to support or oppose the election of a federal candidate but does not refer 

to the election of any nonfederal candidate, all of the funds collected are 

“contributions.” The same result occurs if an otherwise similar solicitation also 

refers to a political party. 11 C.F.R. 100.57(b)(1). However, “to avoid sweeping 

too broadly” (Final Rules, JA 282), the regulation includes exceptions to this 100% 

rule. Most notably, if the solicitation refers to one or more clearly identified 

nonfederal candidate in addition to a federal candidate, “at least ... 50%” of the 

funds received are contributions. 11 C.F.R 100.57(b)(2). 

 The Commission drew the standard in section 100.57 largely from FEC v. 

Survival Education Fund (SEF), 65 F.3d 285 (2d Cir. 1995), which construed a 

statutory provision governing solicitations of contributions under the pre-BCRA 
43

Act. The Second Circuit held that contributions “for the purpose of influencing” a 

federal election would result from a solicitation that “[left] no doubt” that funds 

given in response would be used to help defeat a particular candidate in a federal 

election. Id. at 295. The donations made in response to the solicitations at issue 

there were “contributions” because the text of the mailings “le[ft] no doubt that the 

funds contributed would be used to advocate President Reagan’s defeat at the polls, 

not simply to criticize his policies during the election year.” Id. 

The E&J describes the regulation’s operation and provides examples to help 

nonconnected federal political committees and other solicitors understand the rule 

(JA 283). AO 2005-13 (JA 299, 303-305), responding to a request by EMILY’s 

List, gives additional examples.27 Furthermore, the Commission carefully crafted 

the rule so as to “leave[] the group issuing the communication with complete 

control over whether its communications will trigger new section 100.57” (Final 

Rules, JA 283). The Commission stressed that this regulation is based only on the 

language of the solicitation itself; the Commission will not use any other 

statements or solicitations by the organization, the timing or targeting of the 

solicitation, or any other external information to evaluate the solicitation. Id. This 

 

27 EMILY’s List quarrels (Br. 34) with the Commission’s response to one of 

the solicitations EMILY’s List proposed. The Commission, unlike EMILY’s List, 

did not find the solicitation “at best” ambiguous, and the agency’s response does 

not support the conclusion that section 100.57 is “a trap for the unwary” (Br. 34). 

Rather, the response shows the utility of the advisory opinion process. 
44

gives groups soliciting funds complete control over the wording of their 

solicitations, without having to worry about whether factors external to the text of 

their message will be construed in conjunction with it. If a solicitor wants to 

ensure that donations received in response to a solicitation are not treated as federal 

contributions, it can simply omit all statements indicating that the funds received 

will be used to support or oppose the election of a clearly identified federal 

candidate. For 50% nonfederal proceeds, the solicitor need only identify one or 

more nonfederal candidates in addition to indicating support or opposition to the 

election of an identified federal candidate. A solicitor might also simply use 

separate communications to raise funds in connection with federal and nonfederal 

elections. 

 EMILY’s List argues (Br. 33) that section 100.57 is unconstitutional because 

it would override an express statement in a solicitation that “only one percent of 

contributions received will be used to support federal candidates — and that the 

rest will be used to support non-federal candidates.” This hypothetical example — 

supported by no real-world evidence of solicitations specifying a specific, low 

percentage — is, like the others discussed above, insufficient to meet EMILY’s 

List’s burden in this facial challenge. See supra pp. 29-30. 

 EMILY’s List claims (Br. 34) that section 100.57 “has caused committees 

like [itself] to alter their communications,” but, other than a declaration describing 
45

EMILY’s List’s own actions (JA 72), it provided no evidence in this facial 

challenge that other committees have altered their solicitations or been “chilled” by 

the regulation. Moreover, to the extent EMILY’s List has altered its speech, it has 

done so to exercise its choice to determine for itself whether the money it receives 

through its solicitations will be federal or nonfederal funds. In any event, courts 

have upheld statutory and regulatory provisions requiring persons who engage in 

electoral activity to include certain language in their communications or, indeed, to 

write certain communications. Most notably, in Republican Nat’l Comm. v. FEC, 

76 F.3d 400, 406 (D.C. Cir. 1996), this Court upheld an FEC rule directing political 

committees to make separate follow-up requests for contributor information if the 

committees wanted to qualify as having made “best efforts” to collect the 

information. In addition, two courts of appeals have upheld the FECA’s 

“disclaimer” provision, 2 U.S.C. 441d(a), which requires, inter alia, that persons 

who make disbursements to finance a public communication “expressly advocating 

the election or defeat of a clearly identified candidate, or solicit[ing] any 

contribution” include in their communication a statement whether the 

communication has been paid for or authorized by a candidate. FEC v. Public 

Citizen, 268 F.3d 1283 (11th Cir. 2001); SEF, 65 F.3d at 295-96. See also 

McConnell, 540 U.S. at 230-31 (upholding BCRA’s disclaimer requirements for 

electioneering communications). 
46

 Finally, EMILY’s List suggests (Br. 21) that section 100.57 is also 

unconstitutional because it uses a “nebulous” and “ambiguous” standard that 

includes the verb “indicates.” The constitutional test for vagueness requires, 

however, only that a provision “give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited” and “provide explicit standards 

for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108 

(1972). Section 100.57 provides adequate guidance as to what solicitations fall 

under the rule, and makes it easy for a political committee seriously interested in 

complying with the regulation to structure its solicitations to control whether funds 

it receives in response will be federal contributions. Moreover, the Commission’s 

E&J includes instructive examples (JA 283). The regulation is certainly no more 

vague than the provision in 2 U.S.C. 431(20)(A)(iii) (“promotes, supports, attacks, 

or opposes”) upheld by the Supreme Court in McConnell, 540 U.S. at 170 n.64. 

See also Op. at JA 182 (“[T]he Second Circuit clearly did not in SEF find the term 

‘indicates’ to be vague”); id. at JA 183. If EMILY’s List needs further guidance, it 

can seek an advisory opinion, as it has already done regarding certain solicitations. 

In sum, like the allocation regulations that EMILY’s List challenges here, 

the solicitation regulation creates no unconstitutional burden on fundraising or 

expenditures. Nonconnected political committees like EMILY’s List may do as 

much federal or nonfederal fundraising as they can afford or wish to do. Section 
47

100.57 only helps ensure that funds solicited to support or oppose the election of 

federal candidates are federal funds. Thus, EMILY’s List has failed to “carr[y] 

[its] heavy burden of proving that” the solicitation regulation is facially overbroad. 

McConnell, 540 U.S. at 207. 

III. THE ALLOCATION AND SOLICITATION REGULATIONS ARE 

LAWFUL UNDER THE FECA AND THE APA 

 

A. The Challenged Regulations Are Permissible Under Chevron

 The familiar two-step test of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 

842 (1984), determines whether an agency’s regulation is a valid interpretation of 

the underlying statute. Chevron “is principally concerned with whether an agency 

has authority to act under a statute.” Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 

1995) (citing Chevron, 467 U.S. at 842-45). Thus, a reviewing court’s “inquiry 

under Chevron is rooted in statutory analysis and is focused on discerning the 

boundaries of Congress’ delegation of authority to the agency; and as long as the 

agency stays within that delegation, it is free to make policy choices in interpreting 

the statute, and such interpretations are entitled to deference.” Id. See FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (Commission “is 

precisely the type of agency to which deference should presumptively be 

afforded.”); accord, United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 

1999) (“[T]he FEC’s express authorization to elucidate statutory policy in 

administering FECA ‘implies that Congress intended the FEC ... to resolve any 
48

ambiguities in statutory language. For these reasons, the FEC’s interpretation of 

the Act should be accorded considerable deference.’” (Citation omitted.)). 

Under Chevron, the Court “first ask[s] ‘whether Congress has directly 

spoken to the precise question at issue,’ in which case [the Court] ‘must give effect 

to the unambiguously expressed intent of Congress.’” Rhinelander Paper Co. v. 

FERC, 405 F.3d 1, 6 (D.C. Cir. 2005) (internal citations omitted). Here, FECA is 

silent concerning allocation of nonparty political committees’ mixed 

federal/nonfederal activities.28 As the district court found (JA 188), “Congress has 

not addressed — in either FECA or BCRA — allocation by nonconnected political 

committees.” Therefore, the allocation regulations pass Chevron step one. 

Likewise, although FECA includes a definition of “contribution,” 2 U.S.C. 431(8), 

it does not specify which kinds of solicitations generate “contributions.” Thus, in 

the face of that congressional silence, the solicitation regulation also passes 

Chevron step one. 

 

28 Significantly, BCRA expressly “gives the FEC responsibility for setting the 

allocation ratio” under that regime. McConnell, 540 U.S. at 163 n.58. Although 

McConnell distinguished political parties from independent groups when it 

addressed BCRA’s soft money restrictions — including the new allocation system 

for mixed federal/nonfederal activities by state and local party organizations — 

McConnell never suggested that there is any broad statutory barrier that would 

prevent the Commission from adjusting the regulations governing allocation and 

solicitation by federal nonparty political committees. Contrary to EMILY’s List’s 

unsupported suggestions (Br. 36, 37), nothing in the Act or its legislative history 

indicates that Congress intended by its silence to restrict the Commission’s 

discretion to determine allocation ratios for such committees. 
49

If, as here, “the ‘statute is silent or ambiguous with respect to the specific 

issue,’ ... [the Court] move[s] to the second step and defer[s] to the agency’s 

interpretation as long as it is ‘based on a permissible construction of the statute.’” 

Rhinelander Paper Co., 405 F.3d 1 at 6 (internal citations omitted). When the 

Supreme Court in McConnell discussed the exploding use of soft money just 

before the enactment of BCRA, the Court explained that, “concerning the 

treatment of contributions intended [to be spent on activities] to influence both 

federal and state elections,” a “literal reading of FECA’s definition of 

‘contribution’ would have required such activities to be funded with hard money.” 

540 U.S. at 123 (emphasis added). The Court thus made clear that the statutory 

language does not require any allocation to a soft money account for mixed 

spending that influences both federal and state elections. After all, an expenditure 

that influences federal elections does not lose that effect even if it also influences 

state elections. See id. at 166. Therefore, the use of an allocation formula — any

allocation formula — by a nonconnected federal political committee for expenses 

that may influence both federal and nonfederal elections is a permissive 

administrative construction, not a statutory entitlement.29 

 

29 Years ago, Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987), 

similarly held that, although the Commission may permit allocation of mixed 

expenditures for certain electoral activities, the Commission could just as well 

“conclude that no method of allocation will effectuate the Congressional goal that 

all moneys spent by [the party committees at issue for those activities] ... be ‘hard 
50

Especially because the major purpose of federal political committees such as 

EMILY’s List, like a national party committee, is to influence federal elections, the 

Supreme Court’s reasoning in McConnell applies with full force to the allocation 

regulations challenged here. See Op. at JA 188. Thus, these allocation regulations 

are well within the permissible range of statutory interpretation; they reasonably 

reflect the mixed nature of some federal political committees’ activities, while still 

ensuring that organizations whose major purpose is federal campaign activity pay 

for at least 50% of certain expenses with money raised within the federal 

contribution limits. 

Similarly, the solicitation regulation fills a gap by providing additional 

clarification about whether funds received in response to different kinds of 

solicitations will be considered “contributions” under the Act — a subject plainly 

within the Commission’s statutory authority. If a specific solicitation identifies 

only federal candidates in discussing its purpose and indicates that money raised 

will be used to support or oppose their election, the Commission acted within its 

authority to treat the proceeds as “contributions” under the Act. Because it is 

 

money’ under the FECA.” Id. at 1395-96 (emphases in original). EMILY’s List 

strains (Br. 39 n.11) to escape the reasoning of Common Cause. Contrary to 

EMILY’s List’s assertion, the district court did not interpret the case as “stand[ing] 

for the proposition that the Commission may pass whatever allocation rules it 

wishes.” The plain language of the decision supports the Commission’s regulatory 

discretion to end allocation for mixed federal/nonfederal electoral activity if the 

allocation proves to be impractical. See Common Cause, 692 F. Supp. at 1396. 
51

reasonable for the Commission to find that funds received in response to such a 

solicitation are “for the purpose of influencing” federal elections, section 100.57 

easily satisfies Chevron step two. Moreover, the regulation provides flexibility by 

lowering the percentage of the receipts deemed to be contributions when a 

solicitation refers to one or more clearly identified nonfederal candidates in 

addition to one or more clearly identified federal candidates. 11 C.F.R. 

100.57(b)(2). Section 100.57 permits some federal political committees to control 

whether they solicit federal or nonfederal funds or both, but ensures that the Act’s 

contribution limits are not easily circumvented. 

 “[U]nder Chevron, courts are bound to uphold an agency interpretation as 

long as it is reasonable — regardless whether there may be other reasonable, or 

even more reasonable, views.” FEC v. National Rifle Ass’n, 254 F.3d 173, 187 

(D.C. Cir. 2001) (internal quotation marks and citation omitted). So, for example, 

even if the former “funds expended” allocation regulation was also reasonable, 

EMILY’s List’s apparent preference for that regulation cannot trump the 

Commission’s decision to adopt a different reasonable regulation that it believes 

better implements the Act. EMILY’s List’s criticisms thus reflect little more than 

a policy dispute about how best to allocate expenses and fundraising receipts for 

activities that influence both federal and nonfederal elections but cannot be readily 

divided with scientific precision. In sum, as the district court stated (JA 188, 
52

quoting Chevron, 467 U.S. at 843), the allocation and solicitation regulations are 

“‘based on a permissible construction of the statute.’”

30 

B. The Regulations Satisfy APA Requirements 

 A court may set aside a regulation under the APA only if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 

5 U.S.C. 706(2)(A). This standard is “highly deferential” and “presumes the 

validity of agency action.” Cellco Partnership v. FCC, 357 F.3d 88, 93 (D.C. Cir. 

2004). Thus, “the party challenging an agency’s action as arbitrary and capricious 

bears the burden of proof.” San Luis Obispo Mothers For Peace v. NRC, 789 F.2d 

26, 37 (D.C. Cir. 1986) (en banc). 

 Under this standard, “[a] court cannot substitute its judgment for that of an 

agency ... and must affirm if a rational basis for the agency’s decision exists.” 

Appeal of Bolden, 848 F.2d 201, 205 (D.C. Cir. 1988). Where the statute simply 

 

30 Defendants in federal vote-buying prosecutions have raised — 

unsuccessfully — arguments similar to those EMILY’s List raises here. For 

example, in United States v. Slone, 411 F.3d 643 (6th Cir. 2005), the defendant 

appealed his conviction for vote buying in a federal election by claiming that he 

was buying votes only regarding a candidate for county office, although federal 

offices were also on the ballot. The defendant argued that the federal vote-buying 

statute is unconstitutional because it exceeds Congress’s enumerated powers by 

affecting local elections. Id. at 644. The Sixth Circuit held that the statute “applies 

to all elections in which a federal candidate is on the ballot, and the government 

need not prove that the defendant intended to affect the federal component of the 

election by his corrupt practices.” Id. at 648. Citing McConnell, 540 U.S. at 187, 

the court stated, “When the purity of the process is compromised in part, the 

corruption affects the integrity of the whole.” Id. at 650. 
53

authorizes the agency to “make ... such rules [...] as [are] necessary to carry out the 

provisions of this Act,” as does 2 U.S.C. 437d(a)(8), the “validity of a regulation 

promulgated thereunder will be sustained so long as it is ‘reasonably related to the 

purposes of the enabling legislation.’” Mourning v. Family Publications Serv., 

Inc., 411 U.S. 356, 369 (1973) (citation omitted). See also Republican Nat’l 

Comm., 76 F.3d at 407 (arbitrary-and-capricious standard is “satisfied if the agency 

enables us to see what major issues of policy were ventilated ... and why the 

agency reacted to them as it did”) (internal quotation marks omitted). 

 The revised allocation regulations are reasonable. As the Commission noted 

(JA 288), “[n]either FECA nor any court decision dictates how the Commission 

should determine appropriate allocation ratios.” See also Final Rules, JA 289. 

The bright lines that the Commission drew in the allocation regulations do not 

make the regulations unlawfully “arbitrary.” See Matthews v. Diaz, 426 U.S. 67, 

83 (1976) (“it remains true that some line is essential, that any line must produce 

some harsh and apparently arbitrary consequences....”); American Federation of 

Government Employees v. OPM, 821 F.2d 761, 777 (D.C. Cir. 1987) (“The lines 

drawn ... may well be, in one sense, ‘arbitrary’ without being ‘capricious’”); see 

also WorldCom, Inc. v. FCC, 238 F.3d 449, 461-62 (D.C. Cir. 2001); Walsh v. 

Brady, 927 F.2d 1229, 1233 (D.C. Cir. 1991) (“Of course, a clever lawyer can 
54

imagine anomalous applications of any regulation. But the ... [agency] had to 

draw a line between expenses that are allowed ... and those that are not.”). 

 The federal flat minimum of 50% in section 106.6(c) for administrative 

expenses and generic voter drives that cannot be divided with scientific precision 

into exclusively federal and nonfederal components reasonably reflects the dual 

nature of the disbursements. Likewise, the “candidate-driven allocation rules” 

(Final Rules, JA 285) in section 106.6(f) for certain public communications and 

voter drives reasonably reflects the focus of these activities. The historical 

prevalence of a 50% or higher ratio (see supra p. 26) reflects both the major 

purpose of federal political committees and the fact that even though federal 

elections occur biennially, many political committees begin preparing for them 

during the preceding “off” year. (Indeed, appellant’s name makes that very point; 

“EMILY” is an acronym for “Early Money Is Like Yeast.”) These circumstances 

are more than sufficient to establish that the Commission’s “line[s] of demarcation 

[are] ... within a zone of reasonableness, as distinct from the question of whether 

the line drawn by the Commission is precisely right.” ExxonMobil Gas Mktg. Co. 

v. FERC, 297 F.3d 1071, 1084 (D.C. Cir. 2002) (internal quotation marks and 

citations omitted). 

EMILY’s List errs in contending (Br. 26-27, 43-44) that the Commission 

was required to provide a new record of corruption to justify each adjustment of 
55

the allocation rules — indeed, each hypothetical application that EMILY’s List can 

imagine. As we explained above, long-established legal authority has concluded 

that political committees like EMILY’s List are properly subject to the Act’s 

contribution limits because of the potential for corruption stemming from 

circumvention. As we also explained, the entire allocation system implements the 

contribution restrictions that have been held to serve an anti-corruption purpose. 

“[A] regulation is reasonably related to the purposes of the legislation to which it 

relates if the regulation serves to prevent circumvention of the statute and is not 

inconsistent with the statutory provisions.” Carpenter v. Secretary of Veterans 

Affairs, 343 F.3d 1347, 1352 (Fed. Cir. 2003). “Moreover, it is unnecessary for an 

agency to prove that circumvention has occurred in the past in order to sustain an 

anti-circumvention regulation as reasonable; a regulation can be justified by a 

reasonable expectation that it will prevent circumvention of statutory policy in the 

future.” Id. at 1353. 

 In addition, contrary to EMILY’s List’s contention (Br. 26), the Commission 

properly “ma[d]e ease of administration and enforceability a consideration in 

setting its standard,” WorldCom, 238 F.3d at 459. For example, in Republican 

Nat’l Comm., 76 F.3d at 406, this Court upheld a regulation adopted to enhance 

compliance, and noted that, “[f]inding that political committees were not collecting 

sufficient data, the Commission concluded that an uncluttered follow-up request 
56

[to donors] would yield more information.” Similarly here, the Commission 

explained that, in promulgating the allocation regulations, it sought to “enhance 

compliance with the FECA,” as well as to create a system that is easier for political 

committees to understand and for the Commission to administer (JA 286). 

The solicitation regulation also satisfies APA review. EMILY’s List asserts 

(Br. 42-43) that the 50% figure for solicitations that indicate that funds received 

will support both federal and nonfederal candidates is arbitrary and capricious. As 

explained supra pp. 53-54, however, in the absence of an available scientifically 

precise calculation, an agency’s line drawing is not arbitrary and capricious. More 

generally, for substantially the same reasons that the solicitation regulation satisfies 

the First Amendment, see supra pp. 41-47, the regulation reasonably 

accommodates the needs of political committees while preventing circumvention 

of the Act. EMILY’s List also asserts (Br. 40, 42) that section 100.57 is arbitrary 

and capricious because it would trump express statements in solicitations that a 

low percentage of funds received would be used to support or oppose the election 

of federal candidates. But as the Commission explained in discussing the First 

Amendment challenge to section 100.57, an unsupported worst-case hypothetical 
57

example does not establish that the regulation is beyond the Commission’s 

authority to promulgate or is arbitrary and capricious. See supra p. 44.31 

 Finally, EMILY’s List argues (Br. 43-44) that the allocation and solicitation 

regulations violate the APA because the Commission did not include constitutional 

justifications for those rules in its E&J. EMILY’s List apparently relies on both 

the arbitrary-and-capricious standard in section 706(2)(A) and the requirement in 

5 U.S.C. 553(c) that an agency “incorporate in the rules adopted a concise general 

statement of their basis and purpose.” This Court, however, has explained that 

“[w]e do not expect the agency to discuss every item or opinion included in the 

submissions made to it in informal rulemaking. We do expect that ... [section 553] 

will enable us to see what major issues of policy were ventilated by the informal 

proceedings and why the agency reacted to them as it did.” Automotive Parts & 

Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968). 

 As the Commission has shown, its Final Rules discuss pertinent facts — for 

example, the Commission’s experience in the past ten years with the “funds 

expended” allocation formula — and give the agency’s policy reasons for adopting 

 

31 Moreover, because EMILY’s List chose not to participate in the rulemaking, 

it failed to suggest to the Commission at the appropriate time that express 

statements in solicitations about low allocation percentages should be given 

controlling weight. See Clinton Memorial Hospital v. Shalala, 10 F.3d 854, 859 

(D.C. Cir. 1993) (“[N]o one proposed ... the use of other criteria.... The absence 

of any alternative proposals colors our assessment of the Secretary’s 

explanation.”). 
58

the regulations, including why it changed the allocation formulas. The Final Rules 

summarize the views of the commenters and explain that the Commission took 

those views into account. See, e.g., JA 283-84 (solicitation regulation), JA 286 

(allocation regulations). During the rulemaking, no commenters “ventilated” 

constitutional objections to the allocation and solicitation regulations. EMILY’s 

List cites no authority that section 553(c) or 706(2) requires an agency to present a 

constitutional justification in its explanatory statement when no commenters raised 

constitutional objections. See Reytblatt v. NRC, 105 F.3d 715, 722 (D.C. Cir. 

1997) (“The basis and purpose statement is inextricably intertwined with the 

receipt of comments.”). In any event, the long history of the Commission’s 

allocation rules leaves no doubt that they are designed to prevent corruption and 

circumvention of the Act’s contribution limits. See McConnell, 540 U.S. at 122-

126; JA 257 (Commission Notice of Proposed Rulemaking acknowledging 

McConnell’s criticism of certain prior allocation rules). 

CONCLUSION 

 Although EMILY’s List invokes both the First Amendment and the APA to 

challenge the three regulations, its challenge ultimately rests on its disagreement 

with the Commission’s policy choices. In promulgating these regulations, the 

Commission has ensured that a political committee engaged in mixed federal and 

nonfederal electoral activity satisfies the requirement that only federally