UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, ) 

) 

 Plaintiff, ) Civ. No. 05-0049 (CKK) 

 ) 

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) MOTION 

) 

 Defendant. ) 

MOTION FOR SUMMARY JUDGMENT 

Pursuant to Fed. R. Civ. P. 56, Defendant Federal Election Commission (“the 

Commission”) hereby moves this Court for summary judgment. Pursuant to Local Civil 

Rules 7 and 56.1, a Memorandum of Points and Authorities, a Statement of Material 

Facts, and a proposed Order are submitted herewith. 

 The Motion is made on the grounds that plaintiff has failed to show that it is 

entitled to invalidate the Commission’s allocation and solicitation regulations at issue in 

this case. Judicial review of such regulations is highly deferential, and the regulations 

represent permissible policy choices of the Commission. Plaintiff has presented no 

significant new arguments and no evidence as to why the Court should alter the reasoning 

it employed in denying plaintiff’s motion for a preliminary injunction. 
Wherefore, the Commission respectfully moves that this Court grant this Motion 

for Summary Judgment, as outlined above and in the memorandum which accompanies 

this Motion. 

Respectfully submitted, 

 /s/ Lawrence H. Norton __________________________________________________________________________________________________________

Lawrence H. Norton ____________________ 

General Counsel 

 /s/ Richard B. Bader ______________________________________________________________________________________________________________________________ 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

 /s/ David Kolker _______________________________________________________________________

David Kolker ______________________________________________________ 

Assistant General Counsel 

(D.C. Bar # 394558) 

 /s/ Harry J. Summers _________________________________________________________________________________________

Harry J. Summers ____________________________________ 

Attorney 

 /s/ Greg J. Mueller __________________________________________________________________________________

Greg J. Mueller ___________________________________________ 

Attorney 

(D.C. Bar # 462840) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

June 6, 2005 (202) 694-1650 

2
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, ) 

) 

 Plaintiff, ) Civ. No. 05-0049 (CKK) 

 ) 

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM 

) 

 Defendant. ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT 

Respectfully submitted, 

Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

David Kolker 

Assistant General Counsel 

(D.C. Bar # 394558) 

Harry J. Summers 

Attorney 

Greg J. Mueller 

Attorney 

(D.C. Bar # 462840) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

June 6, 2005 (202) 694-1650 
TABLE OF CONTENTS 

 Page 

BACKGROUND............................................................................................................ 1 

 A. THE PARTIES ........................................................................................................ 1 

 B. STATUTORY AND REGULATORY BACKGROUND .................................................... 3 

1. Regulation of Solicitations and Allocation of Expenses by 

 Non-Connected Political Committees Prior to the Passage of BCRA...........3 

 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 

 i. Proposed 11 C.F.R. 100.57: Solicitations ......................................... 6 

ii. Proposed Changes to 11 C.F.R. 106.6: Allocation of Expenses ........ 7 

 b. Public Comment and Hearings on the NPRM......................................... 8 

 c. The Final Rules...................................................................................... 10 

 C. PLAINTIFF’S LAWSUIT AGAINST THE COMMISSION............................................. 12 

ARGUMENT ............................................................................................................... 12 

 I. THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR 

THE COMMISSION........................................................................................ 12 

 A. PLAINTIFF HAS FAILED TO MEET THE EVIDENTIARY STANDARD 

 FOR SUMMARY JUDGMENT AND TO DEMONSTRATE STANDING 

 UNDER ARTICLE III.................................................................................. 12 

 B. JUDICIAL REVIEW OF THE COMMISSION’S REGULATIONS IS 

 HIGHLY DEFERENTIAL................................................................................ 14 

 C. THE COMMISSION’S ALLOCATION AND SOLICITATION REGULATIONS 

 ARE NOT ARBITRARY OR CAPRICIOUS ....................................................... 16 
 1. The New Allocation Regulations Are Consistent with the Act, 

 Which Does Not Specify How Federal and Nonfederal Spending 

 Is to Be Allocated .................................................................................. 16 

 2. Regulation 11 C.F.R. 106.6(f) Uses Permissible Criteria to 

 Define Which Candidate-Specific Communications Are Subject 

 to Allocation Rules................................................................................ 20 

 3. Regulation 11 C.F.R. 106.6(c) Is a Permissible Allocation Formula for 

 Federal and Nonfederal Shared Expenses............................................. 25 

 4. Regulation 11 C.F.R. 100.57 Is a Permissible Interpretation of 

 When Donations to a Political Committee Are “Contributions” 

 Under the Act ........................................................................................ 30 

 D. THE COMMISSION PLAINLY SATISFIED THE APA NOTICE REQUIREMENT.....34 

1. The Commission Provided Ample Notice of Its Solicitation 

Regulation, 11 C.F.R. 100.57.......................................................................37 

 

2. The Commission Provided Ample Notice of Revisions to 

 Its Allocation Regulation, 11 C.F.R. 106.6 ......................................... 38

a. The Fifty Percent Federal Funds Minimum Allocation 

 Requirement Was Adequately Noticed ........................................... 39 

b. The Allocation Requirements for Communications that Refer 

 to Federal Candidates and Political Parties Were Adequately 

 Noticed ........................................................................................... 40 

 3. The Commission Can Rely upon Data in Publicly Available 

 Disclosure Reports............................................................................... 42 

II. THE REMEDY PLAINTIFF SEEKS IS UNSUPPORTED 

 AND UNLAWFUL............................................................................................... 44 

 

III. CONCLUSION ..................................................................................................... 45 

ii
TABLE OF AUTHORITIES 

Cases Page

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ..................................................... 13 

AFL-CIO v. Brock, 835 F.2d 912 (D.C. Cir. 1987)..................................................... 22 

American Medical Ass’n v. United States, 887 F.2d 760 (7th Cir. 1989) .............. 36, 40 

Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988)....................................................... 14

Arizona Public Service Co., 211 F.3d 1280 (D.C. Cir. 2000)...................................... 41 

Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir. 2000)............ 41, 42

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

Building & Constr. Trades Dept., AFL-CIO v. Allbaugh, 295 F.3d 28 

(D.C. Cir. 2002), cert. denied, 537 U.S. 1171 (2003) ............................................ 15 

 

*California Med. Ass’n v. FEC, 453 U.S. 182 (1981)..................................... 18, 22, 30 

Career College Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) ................. 36, 38, 39, 41

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) ........................................... 14 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................. 13 

*Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ......................................... 15, 20 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987)............................. 16, 17, 18 

Community Nutrition Inst. v. Block, 749 F.2d 50 (D.C. Cir. 1984) ............................ 43 

County of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999)............................ 44 

 

Defenders of Wildlife v. Department of Agriculture, 311 F.Supp.2d 44 

 (D.D.C. 2004).......................................................................................................... 13 

Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951 

 (D.C. Cir. 1998)...................................................................................................... 14 

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995)................................................... 13 

iii
 

Edison Electrical Inst. v. EPA, 2 F.3d 438 (D.C. Cir. 1993)........................................ 37 

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

ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002)...................... 27 

FEC v. Beaumont, 539 U.S. 146 (2003)....................................................................... 18 

FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001)............... 18 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)....................... 15

FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001)...................................... 15 

FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995)................... 4, 10, 31 

First American Discount Corp. v. CFTC, 222 F.3d 1008 (D.C. Cir. 2000)........... 34, 37 

Florida League of Prof’l Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) ............... 33 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ..................................................... 33 

Hawaii Longline Ass’n v. National Marine Fisheries Serv., 281 F.Supp.2d 1 

 (D.D.C. 2003)......................................................................................................... 44 

Health Ins. Ass’n v. Shalala, 23 F.3d 412 (D.C. Cir. 1994)......................................... 41 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................. 14 

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

McCoy v. United States, 802 F.2d 762 (4th Cir. 1986)................................................. 22 

Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973)............................. 14 

National Souvenir Ctr., Inc. v. Historic Figures, Inc., 728 F.2d 503 

 (D.C. Cir. 1984)...................................................................................................... 13 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ....................................... 28 

Noramco of Delaware v. DEA, 375 F.3d 1148 (D.C. Cir. 2004)................................. 15 

*Northeast Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936 

 (D.C. Cir. 2004)................................................................................................. 34, 41 

iv
Personal Watercraft Industry Ass’n v. Dept. of Commerce, 48 F.3d 540 

 (D.C. Cir. 1995)...................................................................................................... 43 

 

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973)..................... 43 

Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. 2003)..... 35 

Reno v. Flores, 507 U.S. 292 (1993)............................................................................ 15 

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

Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005) .................................... 15 

RNC v. FEC, 76 F.3d 400 (D.C. Cir. 1996)................................................................. 24 

Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140 (D.D.C. 2002)...................... 35

San Luis Obispo Mothers For Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) 

 (en banc)................................................................................................................. 14 

 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998)..................................... 15 

Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004).......................................................... 44 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002)..................................................... 14 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004)..................................................... 14 

Solite v. EPA, 952 F.2d 473 (D.C. Cir. 1991)........................................................ 43, 44 

Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990).........................33 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .................................. 15 

United States Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005)............................35 

United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980).............................. 40 

WorldCom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001)....................................... 24, 27 

v
Statutes and Regulations 

Federal Election Campaign Act of 1971, as amended (“Act” or “FECA”) 

2 U.S.C. 431-455............................................................................................................ 1 

 

2 U.S.C. 431(4)(A)................................................................................................... 2, 28 

2 U.S.C. 431(4)(B) ....................................................................................................... 23 

 

2 U.S.C. 431(20)(A)(i) ................................................................................................ 22 

2 U.S.C. 431(20)(A)(ii) ................................................................................................ 22 

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

2 U.S.C. 431(20)(A)(iv) ............................................................................................... 28 

2 U.S.C. 431(22) ............................................................................................................ 8 

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

2 U.S.C. 434(f)(3)(A)................................................................................................... 23 

2 U.S.C. 437c(b)(1) .............................................................................................. 1, 2, 29 

2 U.S.C. 437d(a)............................................................................................................. 1 

2 U.S.C. 437f(a)(1)....................................................................................................... 34 

 

2 U.S.C. 437d(a)(8) .................................................................................................. 2, 14 

2 U.S.C. 437g ................................................................................................................. 1

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

2 U.S.C. 441a............................................................................................................ 3, 18 

2 U.S.C. 441a(a)(1)(C) ................................................................................................ 30 

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

2 U.S.C. 441b ........................................................................................................... 3, 18 

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

5 U.S.C. 553(b)....................................................................................................... 35, 42 

5 U.S.C. 553(b)(3).................................................................................................. 34, 38 

5 U.S.C. 706(2)(A)....................................................................................................... 14 

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

11 C.F.R. 100.57(a).................................................................................... 10, 11, 31, 32 

11 C.F.R. 100.57(b)(2) ........................................................................................... 11, 32 

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

11 C.F.R. 104.10(b)........................................................................................................ 5 

11 C.F.R. 106.1......................................................................................................passim

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

*11 C.F.R. 106.6.................................................................................................... passim 

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

11 C.F.R. 106.6(b)(1)(i) ............................................................................................... 25 

11 C.F.R. 106.6(b)(1)(iii) ............................................................................................. 25 

 

11 C.F.R. 106.6(b)(2)(i) ............................................................................................... 12 

11 C.F.R. 106.6(b)(2)(ii) .............................................................................................. 12 

11 C.F.R. 106.6(c)................................................................................................ 7, 8, 11 

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

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

11 C.F.R. 106.6(f)(2).................................................................................................... 12 

11 C.F.R. 106.6(f)(3).................................................................................................... 12 

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

 (2002) ....................................................................................................................... 2 

vii
Federal Register 

69 Fed. Reg. 68056................................................................................................. 10, 34 

69 Fed. Reg. 68057..................................................................................... 10, 11, 31, 32 

69 Fed. Reg. 68058................................................................................................. 11, 32 

*69 Fed. Reg. 68059......................................................................................... 11, 20, 24 

69 Fed. Reg. 68061....................................................................................................... 12 

69 Fed. Reg. 68062................................................................................................. 11, 26 

69 Fed. Reg. 68063................................................................................................passim 

69 Fed. Reg. 68065....................................................................................................... 28 

69 Fed. Reg. 68066................................................................................................. 10, 37 

*69 Fed. Reg. 11743..............................................................................................passim 

69 Fed. Reg. 11753............................................................................................... 7, 8, 35 

69 Fed. Reg. 11754............................................................................................. 7, 38, 39 

69 Fed. Reg. 11755................................................................................................... 8, 40 

69 Fed. Reg. 11757......................................................................................................... 6 

Regulations on Methods of Allocation Between Federal and Non-Federal Accounts; 

 Payments; Reporting, 55 Fed. Reg. 26058 (June 26, 1990).......................... 4, 17, 18 

 

Political Committee Status, Proposed Rule, 69 Fed. Reg. 11736 

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

Political Committee Status, Definition of Contribution, and Allocation for 

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

 68056 (Nov. 23, 2004)............................................................................................. 10 

Allocation of Federal and Non-Federal Expenses, 57 Fed. Reg. 8990 (1992)............. 18 

Miscellaneous 

 

viii
Liz Sidoti, “Bush, Kerry to Pull Ads on Friday,” Associated Press Newswires, 

 June 7, 2004............................................................................................................... 2

U.S. Constitution Article III......................................................................................... 12 

Fed. R. Civ. P. 56(c)..................................................................................................... 13 

Comments of America Coming Together (April 5, 2004) ........................................... 36 

Comments of Public Citizen (April 5, 2004)............................................................ 9, 36 

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

Comments of Democracy 21, Campaign Legal Center, Center for Responsible 

 Politics (April 5, 2004).............................................................................................. 9 

Comments of Senators McCain and Feingold, Representatives Shays and Meehan 

 (April 9, 2004).......................................................................................................... 9 

Comments of Media Fund (April 5, 2004)..................................................................... 9 

Transcript of Public Hearing regarding Political Committee Status Notice 

 of Proposed Rulemaking, April 14, 2004 ................................................................ 9 

Transcript of Public Hearing regarding Political Committee Status Notice 

 of Proposed Rulemaking, April 15, 2004................................................................. 9 

FEC Advisory Opinion 1975-21, 40 Fed. Reg. 52794 (1975) ..................................... 17 

FEC Advisory Opinion 1978-10 [1976-1990 Transfer Binder] Fed. Election Camp. 

 Fin. Guide (CCH) ¶ 5340 ...................................................................................... 18 

FEC Advisory Opinion 2003-37 .................................................................................... 3 

 

ix
EMILY’s List, one of the best-funded political committees in the United States, has 

failed to show that it is entitled to invalidate several regulations recently issued by the Federal 

Election Commission. Judicial review of Commission regulations is highly deferential, and 

because plaintiff’s case is really about the Commission’s policy choices — rather than whether 

the Commission had the power to promulgate allocation rules or clarify when solicitations lead 

to statutory “contributions” — plaintiff’s substantive challenge must fail. Indeed, as this Court 

noted in denying plaintiff’s motion for a preliminary injunction, EMILY’s List “has not 

demonstrated any right, statutory or otherwise, to the former system of allocation rules.” 

EMILY’s List v. FEC, 362 F.Supp.2d 43, 55 (D.D.C. 2005). Although plaintiff has now moved 

for summary judgment, the vast majority of its memorandum is identical to the merits portion of 

the brief it filed in support of its preliminary injunction motion. Because plaintiff provides no 

significant new arguments and no evidence whatsoever to support its motion, it has offered no 

reason why the Court should alter its prior reasoning, and the Court should therefore grant 

summary judgment for the Commission. 

BACKGROUND 

 A. THE PARTIES 

The FEC is the independent agency of the United States government with exclusive 

jurisdiction to administer, interpret and civilly enforce the Federal Election Campaign Act of

1971, as amended (“Act” or “FECA”), 2 U.S.C. 431-455. See generally 2 U.S.C. 437c(b)(1), 

437d(a) and 437g. The Commission 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 438(a)(8) and (d). 

1
Plaintiff EMILY’s List has been registered with the Commission as a multi-candidate 

nonconnected political committee for more than 20 years.1 See 2 U.S.C. 433(a). It has separate 

bank accounts to fund its federal (“hard money”) and nonfederal (“soft money”) activities, 

pursuant to 11 C.F.R. 102.5(a). The federal account can only accept contributions that comply 

with the Act’s source and amount restrictions, i.e., 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. EMILY’s List may spend funds from its 

federal account in connection with federal elections. EMILY’s List’s nonfederal account can 

accept contributions that do not comply with the Act’s source and amount restrictions, but it can 

use those funds only in connection with nonfederal elections. 

EMILY’s List is one of the top federal political committees in fundraising, having raised 

more than $25 million in hard money contributions alone during the 2003-04 election cycle.2

 

“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,” according to its president, Ellen Malcolm. Liz Sidoti, “Bush, Kerry to 

Pull Ads on Friday,” Associated Press Newswires, June 7, 2004 (Exh. 4). During the rulemaking 

 

1

 A “political committee” is “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). 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). 

2

 See http://herndon1.sdrdc.com/cgi-bin/cancomsrs/?_04+C00193433 (data from FEC Web 

site) (Exh. 3). All exhibit references in this Memorandum are to the exhibits attached to the 

FEC’s Opposition to Plaintiff’s Application for a Preliminary Injunction filed January 24, 2005. 

2
at issue here EMILY’s List failed to submit comments, even though it later sent the Commission 

a letter indicating that it “wants the FEC to make clear what the rules are.” Id.

 3

EMILY’s List has regularly filed an H1 Schedule reporting the “allocation” ratio of 

federal and nonfederal dollars for shared administrative expenses and the costs of generic voter 

drives.4 Over the past ten years, EMILY’s List has never filed a final H1 Schedule reporting less 

than 50% direct federal candidate support.5

 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.6

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. 

 

3

 EMILY’s List failed to file comments before April 9, 2004, the deadline for rulemaking 

comments. After the deadline, on June 18, 2004, it submitted a letter asking the Commission to 

withdraw in part Advisory Opinion 2003-37, which involved related issues. During the 

rulemaking, the Commission had indicated that it would not consider any late-filed comments, 

see notice available at http://www.fec.gov/press/press2004/20040407advisory.html (Exh. 5); an 

agency is not required to consider untimely comments even if “it has indicated that it would take 

them into consideration.” Reytblatt v. NRC, 105 F.3d 715, 723 (D.C. Cir. 1997). 

4

 Prior to the effective date of the new regulations, the H1 Schedule, submitted with the

first report filed during a two-year election cycle, included an estimated allocation ratio based on 

the previous election cycle’s payments for direct candidate support or on a reasonable estimate of 

the upcoming cycle’s payments for support of federal and non-federal candidates. 11 C.F.R. 

106.6(c)(1) (2004). See infra p. 5. 

5

 See http://query.nictusa.com/cgi-bin/fecimg/?_25970012630+0, at 6 (final H1 for 2003-

04 election cycle); http://query.nictusa.com/cgi-bin/fecimg/?_23990455760+0, at 5 (final H1 for 

2001-02 election cycle); http://query.nictusa.com/cgi-bin/fecimg/?_21036814768+0, at 33 (final 

H1 for 1999-2000 election cycle); http://query.nictusa.com/cgi-bin/fecimg/?_99034233180+0, at 

70 (final H1 for 1997-98 election cycle). See Exh. 6. 

6

 Available at http://query.nictusa.com/cgi-bin/fecimg/?_97031750959+0, at 92 (Exh. 7). 

3
Prior to the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 

(2002) (“BCRA”), the Commission examined solicitations of contributions “for the purpose of 

influencing any election for Federal office” to enforce the contribution limitations and 

prohibitions, as well as the disclaimer requirements in FECA. See 2 U.S.C. 441d(a). Although 

no Commission regulation addressed the wording of solicitations, the courts and the Commission 

applied the statutory definition of “contribution” to determine whether a particular mailing was a 

solicitation of contributions. In FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 

1995), the Second Circuit performed such an analysis in holding that mailings sent by two 

nonprofit issue advocacy groups constituted solicitations of contributions under FECA because 

the text of the mailings “leaves 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. at 295. 

Since 1977, 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’s allocation 

regulations were substantially amended in 1990 to “provide guidance to committees on how to 

allocate such costs by creating a comprehensive set of allocation rules, and by enhancing the 

Commission’s ability to monitor the allocation process to ensure that prohibited funds are 

excluded from federal election activities.” Regulations on Methods of Allocation Between 

Federal and Non-Federal Accounts; Payments; Reporting, 55 Fed. Reg. 26058 (June 26, 1990). 

The 1990 regulations replaced the prior general standards for allocation with specific methods 

and percentages for political committees to use when allocating certain expenses. 

4
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. Committees were required to estimate and 

report this ratio to the Commission at the beginning of each election cycle based on prior 

experience or a reasonable prediction of activities. Id.; 11 C.F.R. 104.10(b) (2000). Committees 

were then expected to report revised ratios during the election cycle to reflect their actual 

disbursements. Id. “Generic voter drives” were defined as various activities which urged the 

general public to support candidates of a certain party or associated with a certain issue, without 

mentioning a specific candidate. 11 C.F.R. 106.6(b)(iii) (2000). Voter drive activity that 

mentioned a specific candidate could not be allocated under this formula. 11 C.F.R. 106.1(a) 

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, which in the case of publications and broadcast communications was 

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

devoted to all candidates. 11 C.F.R. 106.1(a)(2000). The rules from the 1990 amendments were 

still in effect at the time of the 2004 rulemaking at issue in this case. 

2. Bipartisan Campaign Reform Act 

In March 2002, Congress enacted BCRA to substantially amend FECA. With regard to 

the Commission’s allocation regulations, BCRA eliminated allocation for national party 

committees and substituted a different allocation regime for other political party committees, 

although it explicitly left determination of the method of allocation to the Commission. 

5
2 U.S.C. 441i(b)(2)(A). These amendments 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 

On March 11, 2004, the Commission published a detailed NPRM proposing a variety of 

possible amendments to regulations regarding the definitions of “political committee,” 

“contribution,” “expenditure,” and the allocation requirements for nonconnected committees. 

See Political Committee Status, Proposed Rule, 69 Fed. Reg. 11736 (March 11, 2004) (Exh. 1). 

Following a four-week comment period, the Commission held public hearings on April 14 and 

15, 2004. Id. 

i. Proposed 11 C.F.R. 100.57: Solicitations 

In the NPRM, the Commission sought public comment regarding a new rule establishing 

that any funds received in response to particular types of solicitation are “for the purpose of 

influencing any election for Federal office” and, therefore, “contributions” under FECA. 69 Fed. 

Reg. 11743. The NPRM included proposed regulatory text stating that any funds provided in 

response to a solicitation that contained “express advocacy” for or against a clearly identified 

federal candidate are contributions. 69 Fed. Reg. 11757 (proposed section 100.57 as a part of 

Alternative 1-B). The NPRM sought public comment regarding different ways the express 

advocacy standard could be applied to solicitations, such as requiring that the solicitation state 

that the funds will be used for express advocacy, or including solicitations that expressly 

advocate the election or defeat of federal candidates of a particular party without specific 

references to clearly identified candidates. 69 Fed. Reg. 11743. The Commission also sought 

public comment regarding other possible standards that could be applied to solicitations: 

6
Should the new rule use a standard other than express advocacy, such as a 

solicitation that promotes, supports, attacks, or opposes a Federal 

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

to promote, support, attack or oppose a clearly identified Federal 

candidate?

69 Fed. Reg. 11743. 

ii. Proposed Changes to 11 C.F.R. 106.6: Allocation of Expenses 

The Commission also sought comment on a number of possible changes to the allocation 

rules for nonconnected committees. The NPRM explained that the focus of BCRA and the 

Supreme Court’s opinion upholding it in McConnell v. FEC, 540 U.S. 93 (2003), on the 

Commission’s allocation regulations for political party committees prompted the Commission to 

examine more closely the allocation regulations in 11 C.F.R. 106.6. 69 Fed. Reg. 11753. The 

Commission sought public comment on the possibility of completely eliminating allocation to 

nonfederal accounts of any administrative expenses or generic voter drives costs for 

nonconnected committees (id.): 

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?

A number of proposals in the NPRM would have imposed a minimum federal percentage 

on the funds expended method in 11 C.F.R. 106.6(c). 69 Fed. Reg. 11754. The NPRM sought 

comment on several possible examples of a minimum percentage, ranging from 15% to 50%. Id.

The Commission also stated that it was “considering other minimum Federal percentages as 

alternatives to those presented in the proposed rules,” and explicitly asked for comment on 

whether it “[s]hould ... adopt a fixed minimum Federal percentage.” Id. 

7
The NPRM also sought public comment on proposals to change the allocation methods 

for certain voter drive activity and public communications that specifically mention federal 

candidates. 69 Fed. Reg. 11753. BCRA defined “public communication” as a specific type of 

activity covered by FECA. See 2 U.S.C. 431(22). The Commission proposed allocating the 

costs of public communications that promote or oppose a political party under the same method 

as administrative expenses in 11 C.F.R. 106.6(c). 69 Fed. Reg. 11753. The Commission sought 

public comment on a proposal to create a new section, 11 C.F.R. 106.6(f), requiring allocation of

public communications that promote, attack, support, or oppose, or expressly advocate the 

election or defeat of, a clearly identified federal candidate and a political party. 69 Fed. Reg. 

11755. Proposed section 11 C.F.R. 106.6(f) would have required a combined application of the 

time/space allocation method, similar to that used in 11 C.F.R. 106.1, and the 11 C.F.R. 106.6(c) 

method for these public communications. Id. This proposal was similar to the approach used by 

the Commission in Advisory Opinion 2003-37, which evaluated some post-BCRA allocation 

questions by a political committee under the rules in 11 C.F.R. 106.6. Id. 

b. Public Comment and Hearings on the NPRM 

The Commission received more than 100,000 comments from political committees, 

political parties, nonprofit organizations, individuals, campaign finance organizations, and 

Members of Congress that addressed the many contentious regulatory questions being examined 

in this rulemaking. The Commission’s two days of public hearings included 31 witnesses, 

representing numerous organizations with a broad range of opinions and concerns about many 

different issues. A number of commenters addressed allocation questions. Some supported the 

elimination of allocation in favor of 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 entirely in 

8
favor of a simpler system.7

 Others supported specific percentages to be used as a federal 

minimum for administrative expenses,8 or simply urged the Commission to require a “significant 

minimum hard money share.”9 At least one commenter suggested that public communications 

should be allocated either 100% federal or 100% nonfederal based upon whether federal or 

nonfederal candidates were included in the communication.10 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.11 

There was also testimony at the hearing regarding the complexities of the current

allocation system and the proposal to move to a flat minimum federal percentage.12 Other 

witnesses testified that the current allocation scheme permitted circumvention of the rules in 

BCRA,13 and specifically discussed the possibility of a 50% federal minimum for allocated 

 

7

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

Republican National Committee, at 7-8 (April 5, 2004) (Exh. 14). 

8

 See Comments of Democracy 21, Campaign Legal Center, Center for Responsible 

Politics, at 17-19 (April 5, 2004) (Exh. 15). 

9

 See Comments of Senators McCain and Feingold, Representatives Shays and Meehan, 

at 3 (April 9, 2004) (Exh. 10). 

10 See Comments of Republican National Committee, at 7 (April 5, 2004) (Exh. 14). 

11 See Comments of Media Fund, at 20 (April 5, 2004) (Exh. 16). 

12 See Transcript of Public Hearing regarding Political Committee Status Notice of 

Proposed Rulemaking, 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. 8). 

13 See, e.g., Apr. 14 Tr. at 158-59 (testimony of Craig Holman) (stating that nothing in 

FECA justifies any allocation ratio) (Exh. 8); Transcript of Public Hearing regarding Political 

Committee Status Notice of Proposed Rulemaking, 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”) (Exh. 9). 

9
expenses.14 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 a federal 

candidate would be “contributions” under FECA.15 

c. The Final Rules 

The Final Rules and accompanying Explanation and Justification were published in the 

Federal Register on November 23, 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. 68056 (Nov. 23, 2004) (Exh. 2). 

New section 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, along with 

several exceptions to this rule “to avoid sweeping too broadly.” 69 Fed. Reg. 68056. 11 C.F.R. 

100.57(a) states that all money received in response to a solicitation is a “contribution” under 

FECA if the solicitation “indicates that any portion of the funds received will be used to support 

or oppose the election of a clearly identified Federal candidate.” 69 Fed. Reg. 68066. The rule 

seeks to capture solicitations that “plainly seek funds ‘for the purpose of influencing Federal 

elections.’” 69 Fed. Reg. 68057. 

The Commission included numerous examples and explained that the standard in 

11 C.F.R. 100.57 was drawn from the Survival Education Fund decision (see p. 4 supra). 

 

14 See, e.g., Apr. 15 Tr. at 80-84 (testimony of Robert Bauer, counsel for plaintiff in this 

case, representing ACT) (responding to possibility of 50% federal minimum and other allocation 

proposals) (Exh. 9); 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”). 

15 See, 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. 9). 

10
69 Fed. Reg. 68057. If a solicitation meets the standard in 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. 69 Fed. Reg. 68058; 11 C.F.R. 

100.57(b)(2). 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 11 C.F.R. 100.57(a) does not apply and none of the funds received are federal contributions 

under that provision. 

The Commission also adopted final rules changing the allocation scheme for 

nonconnected committees in 11 C.F.R. 106.6. 69 Fed. Reg. 68059-63. The Commission 

explained that examination of the public comments and the history of public filings regarding 

allocation by committees led it to conclude that a revised allocation method was needed to 

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

follow, and for the Commission to administer. 69 Fed. Reg. 68060. The new 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. 69 Fed. Reg. 68062. A new section 11 C.F.R. 

106.6(f), which governs certain public communications and voter drives, was also adopted. 

69 Fed. Reg. 68063. 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. 69 Fed. Reg. 68063; 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. 69 Fed. 

Reg. 68063; 11 C.F.R. 106.6(f)(2). Public communications and voter drives that refer to both 

11
federal and nonfederal candidates are subject to a time/space allocation between federal and 

nonfederal accounts, regardless of whether they also mention political parties. 69 Fed. Reg. 

68063; 11 C.F.R. 106.6(f)(3). Only voter drives that refer to a federal candidate in the printed 

materials, or in which written instructions tell employees or volunteers to refer to a federal 

candidate, are covered by these provisions. 69 Fed. Reg. at 68061; 11 C.F.R. 106.6(b)(2)(i), (ii). 

C. PLAINTIFF’S LAWSUIT AGAINST THE COMMISSION

EMILY’s List filed suit on January 12, 2005. The Complaint challenged the 

Commission’s new regulations at 11 C.F.R. 100.57, 106.6(c) and 106.6(f), alleging that each was 

in excess of the Commission’s authority, was arbitrary and capricious, and was promulgated 

without adequate notice under the Administrative Procedure Act (“APA”), 5 U.S.C. 706(2), and 

further alleging that each violated the First Amendment. Complaint ¶¶46-79. 

On February 25, 2005, this court denied a preliminary injunction, concluding that “all 

four of the considerations relevant to the Court’s determination ... weigh in favor of denial of 

Plaintiff’s request.” 362 F.Supp.2d at 52. In particular, the court found that plaintiff had not 

shown a substantial likelihood of success on the merits on any of its claims. See id. at 52-57. 

On April 21, 2005, EMILY’s List filed its notice of appeal of this court’s preliminary 

injunction decision. 

ARGUMENT 

 I. THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR THE 

COMMISSION 

A. PLAINTIFF HAS FAILED TO MEET THE EVIDENTIARY STANDARD FOR SUMMARY 

JUDGMENT AND TO DEMONSTRATE STANDING UNDER ARTICLE III 

Summary judgment is appropriate when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

12
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The court must view the record in 

the light most favorable to the party opposing the motion, giving the non-movant the benefit of 

all favorable inferences that can reasonably be drawn from the record and the benefit of any 

doubt as to the existence of any genuine issue of material fact. Defenders of Wildlife v. 

Department of Agriculture, 311 F.Supp.2d 44, 53 (D.D.C. 2004) (citing Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157-59 (1970)). “But mere assertions of facts in pleadings and affidavits, 

when unsupported by any evidence, are not necessarily sufficient to preclude summary 

judgment.” National Souvenir Ctr., Inc. v. Historic Figures, Inc., 728 F.2d 503, 511 n.4 (D.C. 

Cir. 1984). 

In this case, EMILY’s List has failed to provide admissible evidence sufficient to support 

its own motion for summary judgment or to contest the Commission’s motion. Plaintiff has 

supplied no affidavits or other evidence to support many of its factual allegations, and most of 

the assertions in its Statement of Material Facts contain no citations to the administrative record 

or anything else that might support its claims. See FEC’s Statement of Genuine Issues. In 

particular, EMILY’s List has failed to support its assertions that its efforts in nonfederal elections 

will “increase dramatically” (Mem. 5) in the current election cycle, nor its claims that the 

restrictions at issue will have an “incapacitating” effect (Mem. 13) on its ability to finance future 

nonfederal activities. And plaintiff never even alleges that, if permissible, it would allocate less 

than 50% of its election spending to federal races in the current cycle—something it has never 

done in the past decade. See supra pp. 4. 

Moreover, because plaintiff has not provided admissible evidence that the regulations at 

issue will actually cause it any harm, it has also failed to establish the elements of standing, as it 

13
must at the summary judgment stage. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 

(1992) (at summary judgment, standing must be proved with admissible evidence, and mere 

allegations do not suffice); Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (plaintiff at 

summary judgment stage must support each element of standing by affidavit or other evidence); 

Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951, 952 (D.C. Cir. 1998) (“evidence 

there must be” to establish the elements of standing at the summary judgment stage). 

B. JUDICIAL REVIEW OF THE COMMISSION’S REGULATIONS IS HIGHLY 

DEFERENTIAL

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). See also Sierra Club v. EPA, 353 F.3d 976, 978 (D.C. Cir. 2004) (“‘The 

arbitrary and capricious standard deems the agency action presumptively valid[,] provided the 

action meets a minimum rationality standard.’” (Citation omitted.)). Where the statute simply 

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). On a 

facial challenge, where no regulation at issue has “yet been applied in a particular instance” so 

14
there is “no record ... concerning the [FEC’s] interpretation of the regulation or the history of its 

enforcement,” the challenger “‘must establish that no set of circumstances exists under which the 

[regulation] would be valid.’” Reno v. Flores, 507 U.S. 292, 300-301 (1993) (citation omitted). 

Accord, Building & Constr. Trades Dept., AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 

2002), cert. denied, 537 U.S. 1171 (2003). 

The Commission’s construction of its own governing statute is entitled to substantial 

deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984). Under the “familiar 

two-step Chevron framework,” 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.’ If the ‘statute is silent or ambiguous with respect to the specific 

issue,’ however, [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. 

v. FERC, 405 F.3d 1, 6 (D.C. Cir. 2005) (quoting Noramco of Delaware v. DEA, 375 F.3d 1148, 

1152 (D.C. Cir. 2004) (other citations omitted)). Whether a competing interpretation of the 

statute might also be reasonable is irrelevant. “[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) (quoting Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998)). 

Moreover, the Supreme Court has held that the Commission “is precisely the type of 

agency to which deference should presumptively be afforded.” FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981). 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 ambiguities in 

15
statutory language. For these reasons, the FEC’s interpretation of the Act should be accorded 

considerable deference.’” (Citation omitted.)). 

C. THE COMMISSION’S ALLOCATION AND SOLICITATION REGULATIONS ARE NOT

ARBITRARY OR CAPRICIOUS

1. The New Allocation Regulations Are Consistent with the Act, Which Does 

Not Specify How Federal and Nonfederal Spending Is to Be Allocated 

The Act does not say anything at all about allocation of expenditures by nonconnected 

political committees, much less mandate a particular allocation framework. Indeed, in the 

Supreme Court’s discussion of 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.” 

McConnell, 540 U.S. at 123. The Court has thus made clear that the statutory language does not 

require the Commission to permit any allocation to a soft money account for mixed spending that 

influences both federal and state elections. After all, the fact that a contribution or expenditure 

has an influence on state elections does not in itself negate the fact that it may simultaneously 

affect federal elections. See id. at 166. 

Indeed, years ago this Court held in Common Cause v. FEC, 692 F. Supp. 1391, 1395-96 

(D.D.C. 1987), that, although the Act authorizes the Commission to permit allocation of mixed 

expenditures, the Commission could just as well “conclude that no method of allocation will 

effectuate the Congressional goal that all moneys spent by [the political committees at issue] ... 

be ‘hard money’ under the FECA.” (emphasis in original). Thus, the use of an allocation 

formula — any allocation formula — by a nonconnected committee for expenses that may 

16
influence both federal and nonfederal elections is a permissive administrative construction, not a 

statutory entitlement. 

Congress addressed the allocation of “hard” and “soft” money for “mixed purpose” 

activities that influence federal elections for the first time in BCRA, but only by creating a 

limited allocation regime applicable to state and local party committees. See 2 U.S.C. 

441i(b)(2)(A) (“Levin Amendment”). Significantly, BCRA expressly “gives the FEC 

responsibility for setting the allocation ratio” under that regime. McConnell, 540 U.S. at 163 

n.58. Congress did not include in BCRA any reference to an allocation ratio for nonconnected 

committees, and there is nothing in the Act or legislative history indicating that it intended by 

silence to restrict the Commission’s discretion to determine allocation ratios for such 

committees.16

Plaintiff’s claim (Mem. 34-35) that the new allocation regulations are invalid because the 

Commission did not explicitly specify the regulations’ role in preventing corruption is fatuous. 

The Commission has wrestled with allocation issues for almost 30 years;17 the rulemaking at 

issue here is but the latest installment. That extensive history plainly demonstrates that all of 

 

16 Plaintiff strains (Mem. 16-17) to escape the reasoning of Common Cause, claiming that it 

really stands for the proposition that the FECA does not reach “activities purely affecting state 

elections.” However, the current case is clearly not about “purely” nonfederal activities, but 

about the regulation of mixed purpose (or entirely federal) activities — the same kind of mixed 

activities that were at issue in Common Cause, as this Court recognized in its preliminary 

injunction ruling. See EMILY’s List, 362 F.Supp.2d at 55-57. Moreover, plaintiff’s apparent 

suggestion (Mem. 17) that Common Cause was merely describing the possible administrative 

impracticality of rules for mixed-activity allocation — rather than the Commission’s regulatory 

discretion to end such allocation entirely if it proved to be impractical — is contrary to the plain 

language of the decision. See Common Cause, 692 F. Supp. at 1396. 

17 Over the years, the Commission has considered a variety of allocation methods for both 

party committees and other political committees. See, e.g., McConnell, 540 U.S. at 123 n.7 

(describing various FEC allocation rules for political parties); NPRM, 55 Fed. Reg. 26058, 

26059 (1990) (referring to allocation regulations promulgated in 1977); AO 1975-21, 40 Fed. 

Reg. 52794 (1975); AO 1978-10 [1976-1990 Transfer Binder] Fed. Election Camp. Fin. Guide 

(CCH) ¶ 5340. 

17
these allocation formulas are crafted to implement the Act’s contribution restrictions, 2 U.S.C. 

441a, 441b, and to ensure that funds that do not conform to those restrictions are not used to 

influence federal elections. See, e.g., Methods of Allocation Between Federal and Non-Federal 

Accounts, 55 Fed. Reg. 26058 (1990); Allocation of Federal and Non-Federal Expenses, 57 Fed. 

Reg. 8990 (1992). Since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has repeatedly 

held that the statutory contribution restrictions serve the important governmental purposes of 

preventing corruption and the appearance of corruption, and 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 (2001); FEC v. Beaumont, 

539 U.S. 146, 160 (2003); McConnell, 540 U.S. at 143-45. In particular, the Court long ago 

upheld the contribution limits applicable to multicandidate committees like EMILY’s List, 

stressing that they were enacted “in part to prevent circumvention of the very limitations on 

contributions that this Court upheld in Buckley,” and explaining how contributors seeking to 

evade FECA’s aggregate and individual candidate limits might otherwise channel funds through 

multicandidate committees for that purpose. California Med. Ass’n v. FEC, 453 U.S. 182, 197-

98 (1981). And as this Court concluded in denying a preliminary injunction, under the reasoning 

of both Common Cause and McConnell it is clear that “the FEC is empowered under FECA to 

modify allocation rules to ensure that unregulated monies are not used to improperly influence 

federal elections.” EMILY’s List, 362 F.Supp.2d at 57.18 

Plaintiff tries (Mem. 37-38) to escape the import of McConnell by noting that that case 

distinguished political parties from independent groups in addressing BCRA’s soft money 

 

18 This Court also noted that under the rationale of McConnell, the solicitation regulation 

“appears on its face to be reasonably designed to prevent corruption ... and like the allocation 

regulations, the solicitation regulation appears to be designed to enforce the contribution 

restrictions embodied in FECA.” Id. See infra pp. 34. 

18
restrictions, and by suggesting that “independent” political committees like EMILY’s List 

therefore have some undefined right to less regulation. However, McConnell never suggested 

that there is any broad constitutional or statutory barrier that would prevent the Commission 

from adjusting the regulations governing allocation and solicitation by federal political 

committees. Indeed, as the Supreme Court noted, it has been established for decades that 

because the term “political committee” “need only encompass 

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

purpose of which is the nomination or election of a candidate[,]” ... 

a political committee’s expenditures “are, by definition, campaign 

related.” 

McConnell, 540 U.S. at 170 n.64 (quoting Buckley, 424 U.S. at 79 (emphasis added)). Because 

EMILY’s List is a political committee, therefore, the law presumes that its expenditures are for 

the purpose of influencing elections. 

Finally, plaintiff’s claim (Mem. 36) that the new regulations will impose “severe 

restrictions” on its political speech is unsupported in fact (see supra pp. 2-3) or in law. Indeed, 

this Court stressed that the new rules do not “prevent Plaintiff from engaging in whatever 

political speech it seeks to undertake,” quoting Buckley’s observation that the overall effect of 

FECA’s contribution limits is “merely to require candidates and political committees to raise 

funds from a greater number of persons” (424 U.S. at 21-22), and concluding that in the same

way, plaintiff here may engage in the same speech as before “but may be required to raise money 

from a greater number of donors.” EMILY’s List, 362 F.Supp.2d at 58. Plaintiff’s brief offers 

no reason for revising this conclusion, and has thus failed to establish any constitutional or 

statutory right to the prior allocation system. 

19
2. Regulation 11 C.F.R. 106.6(f) Uses Permissible Criteria to Define Which 

Candidate-Specific Communications Are Subject to Allocation Rules 

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 nonconnected committees to comprehend 

and for the Commission to administer these requirements.” 69 Fed. Reg. 68060. Specifically, 

the new regulation establishes 

candidate-driven allocation rules for voter drives and public communications 

that refer to clearly identified Federal or non-Federal candidates regardless of 

whether the voter drive or public communication refers to a political party. 

When the voter drive or public communication refers to clearly identified 

Federal candidates, but no clearly identified non-Federal candidates, the costs 

must be paid for with 100% Federal funds. Similarly, when the voter drive or 

public communication refers to clearly identified non-Federal candidates, but 

no clearly identified Federal candidates, the costs may be paid 100% from a 

non-Federal account. Any voter drives or public communications that refer to 

both clearly identified Federal and non-Federal candidates are subject to the 

time/space method of allocation under 11 C.F.R. 106.1. The final rules do not 

change the allocation methods in 11 C.F.R. 106.1, which are based on the 

benefit reasonably expected to be derived by each candidate. 

69 Fed. Reg. 68059. As the Commission further explained (69 Fed. Reg. 68063), 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. 

Because, as shown above, Congress clearly has not “spoken to the precise question at 

issue” regarding allocation methods, 11 C.F.R. 106.6(f) easily passes step one of Chevron, 

467 U.S. at 842. Moreover, because 11 C.F.R. 106.6(f) reasonably implements the Act’s 

contribution limits, it also satisfies Chevron step two. 

20
It is important that 11 C.F.R. 106.6(f) applies only to political committees, i.e., 

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

nomination or election of a candidate,” and whose 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 (Mem. 11-17) that 11 C.F.R. 106.6(f) requires allocation of certain 

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

political committee whose major purpose is the nomination or election of candidates, and it was 

well within the Commission’s discretion to conclude 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. 

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. The challenged regulations of nonconnected committees are not as 

burdensome as 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 

11 C.F.R. 106.6(f) merely requires that nonconnected political committees allocate expenses for 

21
public communications 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. 106.1.19

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

which have a vital interest in nonfederal elections. As the Supreme Court noted in upholding 

those new restrictions, 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. 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 political committees like EMILY’s List, 

which could similarly be attractive vehicles for circumvention of the FECA’s aggregate and 

individual contribution limits. See California Med. Ass’n, 453 U.S. at 197-98. 

 

19 EMILY’s List suggests (Mem. 12) that BCRA’s failure to address the prior allocation 

system contained in 11 C.F.R. 106.6, together with an asserted lack of legislative history 

reflecting concern about that system, indicates that Congress would disapprove of the new 11 

C.F.R. 106.6(f). However, the complete congressional silence about allocation by nonconnected 

committees can hardly be evidence of an affirmative congressional intent to prohibit any change, 

and plaintiff concedes (Mem. 12-13) that this does not preclude the FEC from adjusting the 

allocation rules. Mere congressional awareness of an agency’s administrative interpretation does 

not preclude the agency from later adopting another reasonable interpretation, see McCoy v.

United States, 802 F.2d 762, 764 (4th Cir. 1986), and the D.C. Circuit “has [] consistently 

required express Congressional approval of an administrative interpretation if it is to be viewed 

as statutorily mandated.” AFL-CIO v. Brock, 835 F.2d 912, 915 (D.C. Cir. 1987). 

22
EMILY’s List poses several hypothetical examples (Mem. 15-16) designed to show that 

some applications of 11 C.F.R. 106.6(f) might exceed the Commission’s statutory authority. But 

plaintiff does not really contend that even the hypothetical communications it crafted to support 

its argument cannot have any influence on federal elections. Nor does it provide evidence of a 

single communication or expenditure of its own that it actually plans to make that would be 

adversely affected by the regulations it challenges. Rather, its arguments are largely a rehash of 

those rejected by the Supreme Court when it upheld BCRA’s regulation of electioneering 

communications. Indeed, as plaintiff concedes (Mem. 13), Congress employed just such a “refer 

to” standard in its definition of electioneering communications. 2 U.S.C. 434(f)(3)(A). 

Congress clearly believed that such a standard was appropriate for the regulation of independent 

groups generally, and as the Commission has explained (supra pp. 18-19), the regulation at issue 

here applies only to political committees whose major purpose is influencing the election of 

federal candidates. In McConnell, the Court noted that the bright-line definition of 

“electioneering communication” in BCRA might well regulate some “genuine issue ads” because 

its only content requirement was that the communication “refer” to a clearly identified candidate. 

540 U.S. at 206. But the Court did not find that to be an unconstitutional burden, in part because 

corporations and unions who wished to run genuine issue ads in the period before an election 

could still do so in the future “by simply avoiding any specific reference to federal candidates, or 

... by paying for the ad from a segregated fund.” Id.

20 

The same reasoning applies to plaintiff’s hypothetical communications (Mem. 15-16). 

For example, in plaintiff’s first hypothetical, the reference to an incumbent president’s policies 

could easily be reworded to refer to “the Administration’s policies” rather than using the name of 

 

20 A separate segregated fund is a type of political committee. 2 U.S.C. 431(4)(B). 

23
the incumbent running for re-election, if the writer wanted to avoid using hard money. 

Moreover, the first three examples all involve references to both federal and nonfederal 

candidates, which easily could influence federal elections, and to the extent the federal 

references are as small a part of the communication as plaintiff implies, the federal share of the 

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

106.1. Plaintiff’s last hypothetical example is equally meritless. The regulation requires a 

“communication supporting a political party generally and that refers to no candidates” (Mem. 

14) to be allocated equally between federal and nonfederal funds regardless of when it is run, 

because undifferentiated support of a political party denotes support of all of its candidates, 

federal and nonfederal. What plaintiff fails to acknowledge, however, is that the same

communication, if reworded to include the name of a clearly identified state candidate, could be 

financed entirely with nonfederal dollars in accordance with the regulation’s “candidate-driven” 

approach. 69 Fed. Reg. 68059. (And if plaintiff does not want to reword its communication to 

make clear it is focused on nonfederal candidates, an even more reasonable inference is that it 

also intends the communication to have a long-term influence on federal elections.) 

Finally, plaintiff’s First Amendment claim (Mem. 36-37) that the Commission has failed 

to show that 11 C.F.R. 106.6(f) is “connected” to the risk of corruption is spurious; as discussed 

supra pp. 17-18, the entire allocation system implements the contribution restrictions that have 

been held to serve an anti-corruption purpose. Moreover, contrary to plaintiff’s assertion (Mem. 

34-35), it is entirely proper for the Commission “to make ease of administration and 

enforceability a consideration in setting its standard,” WorldCom, Inc. v. FCC, 238 F.3d 449, 

459 (D.C. Cir. 2001). For example, in RNC v. FEC, 76 F.3d 400, 406 (D.C. Cir. 1996), the 

Court upheld a donor information gathering regulation adopted to enhance compliance and deter 

24
corruption, noting that “[f]inding that political committees were not collecting sufficient data, the 

Commission concluded that an uncluttered follow-up request would yield more information.” 

Similarly here, the Commission explained that 11 C.F.R. 106.6(f) seeks 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. See 69 Fed. Reg. 68060. 

3. Regulation 11 C.F.R. 106.6(c) Is a Permissible Allocation 

Formula for Federal and Nonfederal Shared Expenses 

Revised paragraph 11 C.F.R. 106.6(c) governs, inter alia, the allocation by nonconnected 

committees of their administrative expenses21 and the costs of their “generic voter drives”

22

between federal and nonfederal funds. These disbursements benefit both federal and nonfederal 

candidates, and thus influence both federal and nonfederal elections.23 The revised regulation 

applies a minimum federal funds rate of 50% to these dual-purpose disbursements. This flat rate 

replaces the complex “funds expended” method of calculating a ratio for use of federal and 

nonfederal funds. 69 Fed. Reg. 68,056. 

As the Commission explained (69 Fed. Reg. 68,059), it changed the allocation regime to 

“establish a simpler bright-line rule.... The previous rules were a source of confusion for some

... nonconnected committees and resulted in time-consuming reporting.” The Commission had 

“discovered that very few committees chose to allocate their administrative and generic voter 

 

21 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). 

22 “Generic voter drives” include voter identification, voter registration, and get-out-thevote 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 See McConnell, 540 U.S. at 167 (“Common sense dictates, and it was ‘undisputed’ 

below, that a party’s efforts to register voters sympathetic to that party directly assist the party’s 

candidates for federal office”) (citing 251 F.Supp.2d at 460 (Kollar-Kotelly, J.)). 

25
drive expenses under former section 106.6(c).” 69 Fed. Reg. 68,062.24 Moreover, “[a]necdotal 

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.” Id. By changing the allocation 

method, the Commission sought “to enhance compliance with the FECA, to simplify the 

allocation system, and to make it easier for ... nonconnected committees to comprehend and for 

the Commission to administer” the requirements. 69 Fed. Reg. 68,060. 

The Commission acted reasonably in adopting a flat minimum federal rate. As noted 

above, the Commission concluded that most of the regulated community neither used nor 

understood the complicated funds expended method of allocation, which needed to be 

recalculated repeatedly throughout the two-year election cycle. Suggestions for adjusting the 

funds expended method appeared merely 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 and generic voter drive expenses 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.” 69 Fed. Reg. 68,062. As noted supra

p. 24-25, it is well settled that simplifying regulation to promote ease of compliance and 

enforcement is a valid rulemaking objective. 

 

24 “Fewer than 2% of all registered nonparty political committees...allocate[ed] 

administration and generic voter drive expenses under former section 106.6(c)....” 69 Fed. Reg. 

68062. 

26
As the Commission explained, “[n]either FECA nor any court decision dictates how the 

Commission should determine appropriate allocation ratios.” 69 Fed. Reg. 68,062. See also id. 

at 68063. The chosen federal flat minimum of 50% for activities that cannot be divided with 

scientific precision into exclusively federal and exclusively nonfederal components fairly reflects 

the dual nature of the disbursements. In fact, many of those few committees who have used the 

funds expended method “already use 50% or more as their Federal allocation ratio.” 69 Fed. 

Reg. 68,066. EMILY’s List itself has consistently allocated its costs on this same 50% basis. 

FEC Exh. 6. The prevalence of a 50% or higher ratio reflects the fact that even though federal 

elections occur biennially, many political committees begin preparing for them during the 

preceding “off” year. Indeed, the plaintiff’s name makes that very point; “EMILY” is an 

acronym for “Early Money Is Like Yeast.” FEC Exh. 17. In off-year 2001, for example, 

EMILY’s List raised more than $8,500,000 in “hard money” contributions from individuals, and 

its “federal receipts” totaled more than $9 million. FEC Exh. 20 (excerpts from 1,051-page 

report for December 31, 2001). These circumstances are more than sufficient to establish that 

the Commission’s choice of a 50% “line of demarcation is ... 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). See also WorldCom, 238 F.3d at 461. The Commission’s 

reasoned rulemaking process and rational final rule are not at all the arbitrary and capricious 

conduct of which the plaintiff complains. See Pls. Mem. at 32-33. 

EMILY’S List again counters (Mem. 18, 32-33) by concocting extreme hypotheticals 

without evidentiary support. Plaintiff also again ignores the important fact that the regulation 

applies only to political committees. See supra pp. 18-19. As the Commission explained in the 

27
rulemaking, “[t]he ‘major purpose’ test is a judicial construct that limits the reach of the statutory 

triggers in FECA for political committee status. The Commission has been applying this 

construct for many years ..., and it will continue to do so in the future.” 69 Fed. Reg. 68,065.25 

The Commission’s revision of 11 C.F.R. 106.6(c) is 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 at least 25% of their time on 

federal activities. See 2 U.S.C. 431(20)(A)(iv). Expressly deferring to Congress’s 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, a view that plainly does not coincide with 

plaintiff’s concept of how allocation must be done.

Plaintiff’s claim (Mem. 35-36) that the 50% minimum federal allocation violates the First 

Amendment and is subject to strict scrutiny is meritless. EMILY’s List has offered absolutely no 

evidence to controvert the Commission’s conclusion, 69 Fed. Reg. 68063, that the flat rate would 

result at most in “only a minimal increase in federal funds expended” even by those few 

committees — if there are any — that correctly used the funds expended method and 

consistently came up with a federal funds allocation ratio less than 50%. See McConnell, 

540 U.S. at 173 (“The question is not whether § 323(b) reduces the amount of funds available 

over previous election cycles, but whether it is ‘so radical in effect as to ... drive the sound of 

[the recipient’s] voice below the level of notice’”) (quoting Nixon v. Shrink Missouri Gov’t

 

25 Plaintiffs’ speculative hypotheticals are also telling in their emphasis on the $1,000 

statutory threshold for political committee status. See 2 U.S.C. 431(4)(A) (contributions or 

expenditures of more than $1,000 in a calendar year). That emphasis strongly suggests that the 

real subject of plaintiff’s discontent is that this monetary threshold is too low; if so, plaintiff’s 

quarrel is with Congress, not the Commission.

28
PAC, 528 U.S. 377, 397 (2000)). Moreover, the allocation regulations do not impose any sort of 

ceiling on a committee’s administrative and generic voter drive expenditures. If a nonconnected 

committee needs more money to finance all the activities it wishes to undertake, it can appeal to 

its existing supporters or find new supporters. See Buckley, 424 U.S. at 21-22 (“The overall 

effect of the Act’s contribution ceilings is merely to require ... political committees to raise 

funds from a greater number of persons....”). 

Thus, 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. Plaintiff 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 allocation the 

Commission adopted. 26 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). 

In any event, even if the regulation hypothetically might burden some committees, 

EMILY’s List is not among them. As discussed supra pp. 2-3, EMILY’s List has been able to 

raise far more federal funds than almost any other nonconnected committee, and its president has 

publicly stated that a lack of hard money has not been an issue, even though EMILY’S List has 

been using the 50% allocation ratio required by the new regulation. 

 

26 In advocating that the Commission return to the funds expended method of allocation, 

plaintiff implicitly concedes that the Commission has statutory authority to establish an

allocation regime. See 2 U.S.C. 437c(b)(1) and 437d(a)(8) (granting the Commission broad 

rulemaking and policymaking powers). 

29
4. Regulation 11 C.F.R. 100.57 Is a Permissible Interpretation of 

When Donations to a Political Committee Are “Contributions” 

Under the Act 

As EMILY’s List notes (Mem. 20), the Act authorizes the Commission to regulate 

contributions to political committees that are made “for the purpose of influencing” federal 

elections. 11 C.F.R. 100.57 specifies when funds received in response to a solicitation will be 

considered “contributions” under the Act, and so the subject of this regulation is plainly within 

the Commission’s statutory authority. Plaintiff’s challenges to the Commission’s solicitation 

regulation at 11 C.F.R. 100.57 are predicated on a fundamental misunderstanding of the 

regulatory standard. 

The Supreme Court has always construed the statutory term “contribute” broadly, to 

include money “earmarked for political purposes” by the donor, and money spent by the donor 

“in cooperation with” a candidate or campaign committee. Buckley, 425 U.S. at 78. It also 

includes money given to a multicandidate political committee like EMILY’S List, even if the gift

is designated solely for administrative expenses rather than support of federal candidates. 

California Medical Ass’n, 453 U.S. at 199 n.19 (“contributions for administrative support clearly 

fall within the sorts of donations limited by § 441a(a)(1)(C)”) (plurality); id. at 203 (Blackman, 

J., concurring). The purpose of 11 C.F.R. 100.57 is to apply the broad statutory definition of 

contribution in a way that ensures that money given to a political committee in response to an 

appeal to help influence federal elections is subject to the statutory contribution limits. 

 Despite plaintiff’s assertions to the contrary (Mem. 19-20), the solicitation provision 

does not apply to every solicitation of funds that “refers to” a federal candidate, or even every 

solicitation that “supports or opposes” a candidate. Rather, the text of 11 C.F.R. 100.57 states 

plainly that it covers only a solicitation that “indicates that any portion of funds received will be 

30
used to support or oppose the election of a clearly identified Federal candidate.” 11 C.F.R. 

100.57(a) (emphasis added). Thus, the new provision is narrowly focused on solicitations that 

not only “refer to” a clearly identified federal candidate, but also indicate that the funds received 

will be used to support or oppose the election of that candidate. Clearly, donations made in 

response to such solicitations are “for the purpose of influencing” a federal election. 

The standard in 11 C.F.R. 100.57 was drawn in large part from the Second Circuit’s 

opinion in FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995), which construed a 

statutory provision governing solicitations of contributions under the pre-BCRA Act. That court 

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 Commission’s explanation of the final rule describes the operation of this standard 

and provides examples to guide committees in complying with the rule. See 69 Fed. Reg. 68057. 

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.” Id. 

First, 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 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. Thus, if a group wants to be sure 

donations received in response to a solicitation are not treated as federal contributions, it can 

simply omit all references to an election, or all references to federal candidates. 

31
The Commission gave examples of phrasing in a solicitation that would be for 

contributions under 11 C.F.R. 100.57(a), and also included the following example of a 

solicitation which would not be for federal contributions: 

The President wants to cut taxes again. Our group has been fighting for 

lower taxes since 1960, and we will fight for the President’s tax cuts. 

Send us money for our important work. 

69 Fed. Reg. 68057. This example directly contradicts plaintiff’s characterization (Mem. 19) of 

the regulation as one that “limit[s] the use of ‘references’ to federal candidates in solicitations for 

state and local election purposes, and [] impair[s] fundraising messages that discuss federal 

officeholders who make and execute government policy.” As the Commission explained, this 

sample solicitation does refer to a clearly identified Federal candidate (“the President”), but it 

discusses his policies as an officeholder and does not indicate that funds received will be used to 

support or oppose the election of the candidate. Id. Therefore, this solicitation would not trigger 

the rule, regardless of the timing of the mailing or the nature of the soliciting group. 

EMILY’s List also argues (Mem. 33-34) that 11 C.F.R. 100.57 is arbitrary because if a 

solicitation meets the standard in 100.57(a), but also refers to at least one clearly identified 

nonfederal candidate, then 50% of the money received from the solicitation must be treated as a 

contribution. 69 Fed. Reg. 68058; 11 C.F.R. 100.57(b)(2). Plaintiff again fails to present any 

evidence whatsoever about its own solicitations or anyone else’s. Instead, it hypothesizes 

(Mem. 20) a solicitation stating that only one percent of funds received will be used to support 

named federal candidates and the rest will be used to support nonfederal candidates, arguing 

(Mem. 37) that the rule would overrule committees’ own stated fundraising intent, and further 

claims (Mem. 36) that the rule will prevent donors from “deciding on their own whether their 

funds will go to support federal or state candidates.” Plaintiff offers no evidence that anyone 

32
actually uses solicitations like these, and such worst-case hypotheticals are insufficient to support 

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

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

on 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 any event, 

McConnell makes clear that in the future, EMILY’s List can adjust the wording of its 

solicitations, or simply separate its federal and nonfederal solicitations, to avoid such problems. 

See 540 U.S. at 206. 

EMILY’s List complains (Mem. 38-39) that the “indicates that” standard is not further 

defined in this regulation, and argues that the Commission’s examples create confusion. 

However, the constitutional test for vagueness requires 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, 108-09 

(1972). We have shown above that 11 C.F.R. 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 — rather than crafting an argument for challenging it — to 

structure its solicitations to control whether donations received will be federal contributions. 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, especially as applied to a sophisticated political committee like EMILY’S List well versed 

in campaign finance rules and advised by experienced election lawyers. As also noted in 

33
McConnell, “should plaintiff[] feel that [it] need[s] further guidance, [it is] able to seek advisory 

opinions for clarification, 2 U.S.C. § 437f(a)(1), and thereby ‘remove any doubt there may be as 

to the meaning of the law.’” Id. (citation omitted). 

Finally, EMILY’s List again asserts (Mem. 34-35) that this regulation is not supported by 

an explicit discussion of its effect on corruption. Like the other regulations discussed above, 

however, 11 C.F.R. 100.57 is clearly designed to enforce the Act’s contribution restrictions, 

which have repeatedly been held to serve the interest in preventing the reality and appearance of

corruption. In fact, the Commission explicitly stated that it adopted this rule to further 

implement and enforce the Act’s definition of contribution. See 69 Fed. Reg. 68056. 

D. THE COMMISSION PLAINLY SATISFIED THE APA NOTICE REQUIREMENT

On March 11, 2004, the Commission published an NPRM that plaintiff itself describes 

(Mem. 7) as a “wide-ranging proposal of new regulations” that “addressed a variety of topics[.]” 

EMILY’s List acknowledges (Mem. 21) that “[t]he NPRM was an extraordinary document, 

proposing regulations that were radically different from the regulations in place at the time.” 

Plaintiff describes the NPRM as “put[ting] the regulated community on notice that it was 

considering action on a variety of fronts.” Mem. 22. Despite all that, EMILY’s List claims that 

it did not have notice that the “drastic changes” were a “realistic possibility.” Id. 

The APA provides two independent ways to comply with its notice requirements, and the 

Commission has done both. The APA requires that a “[g]eneral notice of proposed rule making 

shall be published in the Federal Register” and “[t]he notice shall include ... either the terms or 

substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. 

553(b)(3) (emphasis added). See also First American Discount Corp. v. CFTC, 222 F.3d 1008, 

1014 (D.C. Cir. 2000); Northeast Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936, 950-

34
951 (D.C. Cir. 2004); United States Telecom Ass’n v. FCC, 400 F.3d 29, 40 n.21 (D.C. Cir. 

2005). The Commission met this requirement with a belt and suspenders approach by meeting 

both prongs of the disjunctive APA notice requirement. EMILY’s List focuses exclusively on 

the option under section 553(b)(3) that provides for description of the “terms or substance” of the 

proposed rule and has thus entirely failed even to argue about the alternative type of notice 

permitted by section 553(b)(3).27 Plaintiff again fails even to cite 5 U.S.C. 553(b), despite the 

Court’s specific criticism of this deficiency in plaintiff’s preliminary injunction brief. See

362 F.Supp.2d at 53 n.7. “An attorney can not carry out the practice of law like an ostrich with 

her head in the sand[.]” Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140, 184 (D.D.C. 

2002). Accord Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1357 (Fed. 

Cir. 2003). 

The Commission proposed as “subjects” a new regulation regarding solicitations 

(11 C.F.R. 100.57) and requested public comment on a variety of proposals for amending and 

revising the allocation regulations for nonconnected committees at 11 C.F.R. 106.6. 69 Fed. 

Reg. 11743, 11753-55. The Commission carefully identified a broad range of issues related to 

these topics, and asked “what, if any, changes are advisable” and whether the enactment of 

BCRA or the decision in McConnell “requires, permits, or prohibits changes.” 69 Fed. Reg. 

11753. The Commission asked, for example, whether a political committee should “be required 

to pay for all of its disbursements out of Federal funds and therefore be prohibited from 

allocating any of its disbursements[.]” In identifying these issues, much was placed on the table 

 

27 Contrary to plaintiff’s allegation (Complaint ¶ 62), the question is only whether the 

NPRM provided adequate notice with respect to the provisions at issue here; the APA does not 

require that notice of one proposed regulation receive more or less prominence than others.

35
for comment, ranging from preserving the status quo to requiring spending to be exclusively 

from federal funds. 

“[N]otice requirements do not require that the final rule be an exact replication of the 

proposed rule.” Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1058 (D.C. Cir. 2000). 

“If that rigidity were required, the purpose of the notice and comment — to allow an agency to 

reconsider, and sometimes change, its proposal based on the comments of affected persons — 

would be undermined.” Id. If every change required an additional notice and comment period 

“agencies would either refuse to make changes in response to comments or be forced into 

perpetual cycles of new notice and comments periods.” Id. Taking this into account, the D.C. 

Circuit has explained that “[a] final rule will be deemed to be the logical outgrowth of a 

proposed rule if a new round of notice and comment would not provide commenters with ‘their 

first occasion to offer new and different criticisms which the agency might find convincing.’” 

Id. (citation omitted). This requirement is satisfied if the notice is “sufficient to apprise the 

public, at a minimum, that the issue ... was on the table.” Career College Ass’n v. Riley, 

74 F.3d 1265, 1276 (D.C. Cir. 1996). See also American Medical Ass’n v. United States, 

887 F.2d 760, 768 (7th Cir. 1989) (“the relevant inquiry is whether or not potential commentators 

would have known that an issue in which they are interested was ‘on the table’ and was to be 

addressed by a final rule” (citation omitted)). 

EMILY’s List had the same opportunity to comment on each of the new rules as the 

many organizations that actually did provide comments. Compare, Comments of America 

Coming Together, dated April 5, 2004 (Exh. 13) at 36 (characterizing as “extreme” the proposal 

for political committees to “pay for all disbursements out of Federal funds”), with Comments of 

Public Citizen, dated April 5, 2004 (Exh. 12) at 12 (“it would be entirely appropriate to go still 

36
further and end the allocation ratio altogether”). “[T]he fact that others in [plaintiff’s] shoes ... 

did comment on [and propose regulatory alternatives] suggests that they, at least, regarded it as a 

logical outgrowth.” First American Discount Corp., 222 F.3d at 1015. See also Edison

Electrical Inst. v. EPA, 2 F.3d 438, 450 (D.C. Cir. 1993) (comments “are at least probative 

evidence that the notice was adequate”). 

1. The Commission Provided Ample Notice of Its Solicitation 

Regulation, 11 C.F.R. 100.57 

The Commission sought comment on a rule that any funds received in response to 

particular solicitations are “for the purpose of influencing any election for Federal office” and 

therefore “contributions” under FECA. 69 Fed. Reg. 11743. Within the NPRM the Commission 

published a proposed text for the solicitation regulation as well as permutations on that text. A 

comparison of the text in the NPRM and in the final rule shows how one provision was stricken 

and one provision was added, entirely consistent with what the NPRM indicated was a 

possibility. 

NPRM: Final Rule:

A gift, subscription, loan advance, or 

deposit of money or anything of value 

made by any person in response to 

any communication that includes 

material expressly advocating, as 

defined in 11 C.F.R. 100.22, a clearly 

identified Federal candidate is a 

contribution to the person making the 

communication. 67 Fed. Reg. 11757. 

A gift, subscription, loan advance, or deposit 

of money or anything of value made by any 

person in response to any communication that

includes material expressly advocating, as 

defined in 11 C.F.R. 100.22, a clearly 

identified Federal candidate is a contribution 

to the person making the communication if 

the communication indicates that any 

portion of the funds received will be used to 

support or oppose the election of a clearly 

identified Federal candidate. 69 Fed. Reg. 

68066 (striking express advocacy requirement 

and adding bold text). 

The Commission also explicitly sought public comment regarding other possible 

standards that could be applied to solicitations. As this Court concluded at the preliminary 

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injunction stage, “the NPRM specifically asked whether ‘the new rule [should] use a standard 

other than express advocacy, such as a solicitation that ... indicates that funds received in 

response thereto will be used to promote, support, attack, or oppose a clearly identified Federal 

candidate.’” EMILY’s List, 362 F.Supp. at 55 (quoting 69 Fed. Reg. 11743) (emphasis supplied 

by Court). Thus, since “[t]he NPRM included the specific language ultimately adopted,” id., it is 

clear that the Commission provided adequate notice of the new rule under the “terms or 

substance” option within 5 U.S.C. 553(b)(3). 

The Commission also satisfied the second option under section 553(b)(3) by providing 

notice of the “subjects and issues.” The notice identified the fundamental issue that it was 

addressing: whether a “standard other than express advocacy, such as a solicitation that 

promotes, attacks, or opposes a Federal candidate” should be used in the solicitation rule. This 

was ample to put the public on notice that the substance of a solicitation would determine 

whether a donation is a contribution and that parties interested in that subject should comment on 

the precise standard to be used. “That the Proposed Rule described [one alternative] approvingly 

does not undermine the notice to interested parties that the rule was subject to modification, 

particularly in light of adverse comments,” Career College Ass’n, 74 F.3d at 1276. 

In sum, the Commission satisfied the notice requirement twice over by providing the 

express terms of the proposed regulation and by identifying the subjects and issues for comment. 

Either notice approach standing alone easily satisfied the APA requirement. 

2. The Commission Provided Ample Notice of Revisions to Its Allocation 

Regulation, 11 C.F.R. 106.6 

 The Commission’s NPRM broadly sought comment on changes to its allocation 

regulations, asking “what, if any, changes are advisable,” 69 Fed. Reg. 11754, and the Court 

concluded at the preliminary injunction stage that “[i]t is abundantly clear that Plaintiff had 

38
sufficient notice of the proposed revisions to the FEC’s allocation regulations.” EMILY’s List, 

362 F.Supp.2d at 54. EMILY’s List offers nothing new to alter this conclusion. 

a. The Fifty Percent Federal Funds Minimum Allocation 

Requirement Was Adequately Noticed 

The Commission provided notice that it was considering setting a federal funds floor at 

50% for administrative expenses and voter drive activities. As one option, the Commission 

simply asked, “Should the Commission adopt a fixed minimum Federal percentage?” 69 Fed. 

Reg. 11754. The notice also sought comment on a number of other options, including a 

minimum Federal percentage to be added to the funds expended method in 11 C.F.R. 106.6(c) — 

a change that would require committees to calculate the funds expended ratio and then use the 

greater of either the funds expended ratio or the minimum percentage. Id. The NPRM also 

proposed using the same percentage applicable to State, district and local party committees (a 

range of 15% to 36% depending upon the Federal candidates on the ballot), or establishing a two 

tier system where committees’ Federal minimum percentage would depend upon the number of 

states in which the committee operated (perhaps 25% for less than 10 states, but 50% for more 

than 10 states). Thus, as the Court previously noted, the 50% federal funds minimum was 

specifically raised as a possibility. 362 F.Supp.2d at 54. 

In addition to these specific percentages published in the NPRM, the Commission made 

clear that it was “considering other minimum Federal percentages as alternatives to those 

presented in the proposed rules.” 69 Fed. Reg. 11754. By specifically asking, “what should the 

minimum Federal percentages be?” (id.), the Commission thereby put “on the table” the issue of 

where to set a minimum federal percentage. Career College Ass’n 74 F.3d at 1276. This was 

more than adequate to put EMILY’s List on notice that a change to the allocation ratio for 

administrative and voter drive activities could result in a fixed minimum percentage. See, e.g., 

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United Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (notice adequate when 

final rule is twice as stringent as the proposed rule); American Medical Ass’n, 887 F.2d at 769 

(“The final rule dealt with the identical issue of dues allocation, merely altering the allocation 

regime to assure greater consistency and fairness”). As the Court correctly concluded in its 

earlier opinion, “[i]n light of the language included in the NPRM, it is simply implausible that 

EMILY’s List was not on notice that a fixed 50 percent federal funds minimum requirement 

might be incorporated into the final rules.” 362 F.Supp.2d at 54 (footnote omitted).

b. The Allocation Requirements for Communications that 

Refer to Federal Candidates and Political Parties Were

Adequately Noticed 

The Commission provided notice that it was considering allocation requirements for 

communications that refer to federal candidates or that refer to federal candidates together with 

political parties. 69 Fed Reg. 11753-55. The Commission proposed allocating the costs of 

public communications that promote or oppose a political party under the same method as 

administrative expenses in 11 C.F.R. 106.6(c). Id. The Commission sought comment on a 

proposal to create a new section, 11 C.F.R. 106.6(f), requiring allocation of public 

communications that promote, support, attack, or oppose, or expressly advocate, a clearly 

identified federal candidate and a political party. 69 Fed. Reg. 11755. The new proposed section 

106.6(f) would require a combination of the time/space allocation method similar to that used in 

11 C.F.R. 106.1 and an application of the 11 C.F.R. 106.6(c) method for these public 

communications. Id. The final rule adopted a somewhat more stringent approach, but 

nonetheless one easily within the range of noticed possibilities, and the NPRM plainly put 

anyone concerned about the formula for allocating communications discussing candidates and 

40
parties on notice that this subject was “on the table” for revision. Career College Ass’n, 74 F.3d 

at 1276. 

Plaintiff argues (Mem. 28) that the Commission was required to use an allocation formula 

that gave greater weight to the mention of a political party. However, it is well established that 

the final rule permissibly may differ from versions that were presented to the public in the notice 

of proposed rulemaking. Health Ins. Ass’n v. Shalala, 23 F.3d 412, 421 (D.C. Cir. 1994)). The 

type of modification that EMILY’s List takes issue with here — essentially a revision by the 

Commission of the weight to be given one factor in an allocation system — is a routine part of 

administrative rulemaking. For example, in Northeast Maryland Waste Disposal Auth., 358 F.3d 

at 951-52, the EPA issued a NPRM that set up different requirements for refractory and 

nonrefractory waste combustion operations. When the EPA in the final rule entirely abandoned 

the refractory/nonrefractory distinction and set uniform standards for both types of operations, 

the D.C. Circuit held that the NPRM provided adequate notice. Id. The Court explained: 

By announcing that it proposed to distinguish between refractory and 

nonrefractory units, EPA invited comments on both the pros and cons of 

that distinction. It thus effectively served notice that, if persuaded that the 

latter outweighed the former, the distinction might not survive. 

Id. at 952. See also Ass’n of Battery Recyclers v. EPA, 208 F.3d 1047, 1059 (D.C. Cir. 2000); 

Arizona Public Service Co., 211 F.3d 1280, 1300 (D.C. Cir. 2000) (“any reasonable party should 

have understood that EPA might reach the opposite conclusion”). In this case, the NPRM 

plainly put anyone concerned about the formula for allocating communications discussing 

candidates and parties on notice that the Commission might or might not rely upon a reference to 

a political party and/or adopt the “promote, support, attack, or oppose” standard. 

EMILY’s List claims (Mem. 27) that “the Commission’s NPRM gave no notice at all of 

the use of its far-reaching ‘refer to’ standard ....” This argument, however, misapprehends the 

41
nature of the APA notice and comment requirements, which do not require that a particular 

standard appear in the NPRM, but rather, as explained supra pp. 34-36, that the “subject and 

issues” appear. 5 U.S.C. 553(b). For example, in Ass’n of Battery Recyclers, the EPA noticed a 

rulemaking that proposed less restrictive disposal alternatives for contaminated soil. 208 F.3d 

at 1058. The final rule was more stringent than the proposed rule, disallowing alternative 

processing of soil recycled into asphalt and brick products. Reviewing a standard that was not in 

the NPRM, the court reasoned that based on the NPRM “[o]ne would logically conclude that 

EPA could have ended up allowing alternative standards for all soils as the proposal suggested, 

for no soils, or — as it turned — out for some soils.” Id. at 1059. In this case, the fact that the 

NPRM included a “promote, support, attack, or oppose” standard did not prevent the 

Commission from adopting a different, somewhat more stringent, final rule. The specific “refer 

to” standard in the final rule still requires an explicit mention of an identified federal candidate 

and was a logical outgrowth of the proposed provision, well within the “subjects and issues” 

identified in the NPRM. 

3. The Commission Can Rely upon Data in Publicly Available Disclosure 

Reports 

Finally, EMILY’s List argues (Mem. 23-25) that the notice provided by the NPRM was 

inadequate because it did not “contain any mention of data on which the Commission was 

relying” and that an agency cannot base a rule on data that is known only to the agency. The 

Commission noted that it had “examin[ed] public disclosure reports filed by [separate segregated 

funds] and nonconnected committees” and that its conclusions were based in part on this review. 

69 Fed. Reg. 68,062. These disclosure reports are publicly available on the Commission’s Web 

site and in its public records office. See http://www.fec.gov/disclosure.shtml. Plaintiff’s claim,

42
therefore, that “there is simply no way to compile that data and determine how committees were 

allocating” (Mem. 24) is simply not true. 

The Commission’s review of this public information in analyzing the comments and 

formulating its final rule was entirely proper. “Agencies may develop additional information in 

response to public comments and rely on that information without starting anew ‘unless 

prejudice is shown.’” Personal Watercraft Industry Ass’n v. Dept. of Commerce, 48 F.3d 540, 

544 (D.C. Cir. 1995) (citation omitted). “The party objecting has the burden of ‘indicat[ing] 

with “reasonable specificity” what portions of the documents it objects to and how it might have 

responded if given the opportunity.’” Id. (citations omitted). EMILY’S List has not even tried 

to specify anything it would have said about these publicly available documents that could have 

affected the outcome of the rule, a showing that would be particularly difficult since EMILY’S 

List chose not to participate in the rulemaking at all. 

The cases plaintiff relies upon regarding inadequate notice of data or studies all involved 

results from formal studies conducted by experts using data not available to the public. See

Solite v. EPA, 952 F.2d 473, 477-78 (D.C. Cir. 1991) (volumetric studies of potentially 

hazardous waste from mining operations); Community Nutrition Inst. v. Block, 749 F.2d 50, 51 

(D.C. Cir. 1984) (health and safety study of use of mechanically separated meat); Portland

Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (results from particulate testing at 

cement plant). In this case, the Commission simply reviewed reports equally available to the 

plaintiff, and just noted what had been reported, rather than conducting any secret scientific test. 

Furthermore, the cases plaintiff relies upon require that “prejudice [be] shown” as a result of 

undisclosed data relied upon by an agency. See Community Nutrition Inst., 749 F.2d at 58 

(agency may undertake “new scientific studies, without entailing the procedural consequence 

43
appellants would impose, unless prejudice is shown”); Solite, 952 F.2d at 484-85. In sum, the 

data at issue here are publicly available, and plaintiff has shown no prejudice from the 

Commission’s use of such information. 

II. THE REMEDY PLAINTIFF SEEKS IS UNSUPPORTED AND UNLAWFUL

 

The Proposed Order EMILY’s List supplies along with its summary judgment motion 

would have the Court hold unlawful and “set aside” the regulations at issue, require the 

Commission to start new rulemaking proceedings within 15 days of the issuance of the Court’s 

order, require the Commission to issue interim regulations within 30 days of the order, impose a 

requirement that the Commission continue to report to the Court on its progress in these matters, 

and have the Court retain jurisdiction over the case to ensure timely compliance with the order. 

Plaintiff does not include a single argument in its brief in support of this extraordinary and 

impractical relief. Notably, the relevant text of plaintiff’s proposed Order here is a verbatim

reproduction of the key parts of the proposed order suggested and rejected in another case, Shays

v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004). This Court’s reasoning in that case applies equally 

here (id. at 130): 

As this Court recently noted, “’[u]nder settled principles of administrative 

law, when a court reviewing agency action determines that an agency made an 

error of law, the court’s inquiry is at an end: the case must be remanded to the 

agency for further action consistent with the corrected legal standards.’ 

Accordingly, it is up to the agency to determine how to proceed next — not 

for the Court to decide or monitor.” Hawaii Longline Ass’n v. National

Marine Fisheries Serv., 281 F.Supp.2d 1, 38 (D.D.C. 2003) (quoting County

of Los Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 1999)) (internal 

citation omitted). Consequently, the Court does not believe that there is a 

basis for granting Plaintiffs’ request for relief, and shall remand the case to the 

Commission for further action consistent with this opinion. 

Moreover, in denying preliminary relief in the current case, the Court pointed to the possibility 

that such relief would harm the public interest by leaving the Commission “hastily cobbling 

44
together an alternative, interim set of regulations.” EMILY’s List, 362 F.Supp.2d at 59. Thus, 

even if the Court were to rule in plaintiff’s favor on the merits, there is no basis for awarding the 

extraordinary relief it requests. 

III. CONCLUSION 

For the reasons given above, the Federal Election Commission’s motion for summary 

judgment should be granted, and plaintiff EMILY’s List’s motion for summary judgment 

should be denied. 

Respectfully submitted, 

 /s/ Lawrence H. Norton __________________________________________________________________________________________________________

Lawrence H. Norton ____________________ 

General Counsel 

 /s/ Richard B. Bader __________________________________________________________________________________________

Richard B. Bader ____________________________________ 

Associate General Counsel 

(D.C. Bar # 911073) 

 /s/ David Kolker ________________________________________________________________________

David Kolker _____________________________________________________ 

Assistant General Counsel 

(D.C. Bar # 394558) 

 /s/ Harry J. Summers ___________________________________________________________________________________________

Harry J. Summers __________________________________ 

Attorney 

 /s/ Greg J. Mueller __________________________________________________________________________________

Greg J. Mueller ___________________________________________ 

Attorney 

(D.C. Bar # 462840) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

June 6, 2005 (202) 694-1650 

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