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) 

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, a statement of genuine 

issues, and a proposed order accompany this motion. 

 The Commission makes this motion on the grounds that plaintiff has failed to show that it 

is entitled to a declaration that the allocation and solicitation regulations at issue in this case are 

unlawful and has also failed to show that it is entitled to an order invalidating those regulations. 

In particular, plaintiff has not carried its heavy burden to demonstrate that the regulations are 

facially overbroad under the First Amendment. Judicial review of such regulations is highly 

deferential, and the regulations challenged here represent permissible policy choices of the 

Commission in enforcing statutory contribution restrictions repeatedly upheld by the Supreme 

Court. Plaintiff has presented no new arguments and no new evidence that warrant this Court’s 

altering the reasoning it employed in denying plaintiff’s motion for a preliminary injunction. 

Most notably, FEC v. Wisconsin Right to Life, Inc., 127 S.Ct. 2652 (2007), on which plaintiff 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 1 of 79
2

relies, differs significantly, both factually and legally, from the present case and does not affect 

the integrity of the regulations challenged here. 

 Wherefore, the Commission respectfully moves that this Court grant this motion for 

summary judgment, as outlined above and in the memorandum accompanying the motion; deny 

plaintiff’s motion for summary judgment; and dismiss this case with prejudice. 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker 

David Kolker 

Acting Associate General Counsel 

(D.C. Bar # 394558) 

/s/ Harry J. Summers 

Harry J. Summers 

Acting Assistant General Counsel 

/s/ Vivien Clair 

Vivien Clair 

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 

(202) 694-1650 

October 9, 2007 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 2 of 79
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 SECOND MOTION FOR SUMMARY JUDGMENT 

AND IN OPPOSITION TO PLAINTIFF’S SECOND MOTION FOR 

SUMMARY JUDGMENT 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Acting Associate General Counsel 

(D.C. Bar # 394558) 

Harry J. Summers 

Acting Assistant General Counsel 

Vivien Clair 

Attorney 

Greg J. Mueller 

Attorney 

(D.C. Bar # 462840) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

October 9, 2007 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 3 of 79
TABLE OF CONTENTS 

 Page 

BACKGROUND ............................................................................................................2 

A. THE PARTIES.............................................................................................2 

B. STATUTORY AND REGULATORY BACKGROUND ...........................4 

1. Regulation of Solicitations and Allocation of Expenses 

by Nonconnected Political Committees Prior to the 

Passage of BCRA..................................................................................4 

2. Bipartisan Campaign Reform Act.........................................................6 

3. The Commission’s Rulemaking Regarding Political Committee 

Status, Expenditures, Contributions, and Allocation ............................6 

a. The Notice of Proposed Rulemaking and Public Comment.............6 

b. The Final Rules ................................................................................8 

C. PLAINTIFF’S SUIT AGAINST THE COMMISSION.............................10 

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

I. THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR 

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

A. Standard of Review for Summary Judgment .............................................12 

B. EMILY’s List Lacks Standing Under Article III .......................................13 

C. Judicial Review of the Commission’s Regulations Is 

Highly Deferential......................................................................................15 

D. The Level of Judicial Scrutiny Appropriate for Contribution 

Limits Applies to This Case.......................................................................16 

E. The Commission’s Allocation and Solicitation Regulations 

Are Lawful .................................................................................................19 

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

Which Does Not Specify How Federal and Nonfederal 

Spending is to be Allocated.................................................................19 

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ii

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

Which Candidate-Specific Communications Are Subject 

to Allocation Rules..............................................................................24 

3. 11 C.F.R. § 106.6(c) Establishes a Permissible Allocation Formula 

for Federal and Nonfederal Shared Expenses .....................................30 

4. 11 C.F.R. § 100.57 Is a Permissible Interpretation of When Funds 

Given in Response to a Political Committee’s Solicitation Are 

“Contributions” Under the Act............................................................35 

F. The Supreme Court’s Recent Decision in WRTL Does Not 

Support Plaintiff’s Challenge to the Commission’s Allocation 

and Solicitation Regulations.......................................................................41 

1. Background: The WRTL Case............................................................41 

2. The Reasoning and Holding of WRTL Do Not Undercut the 

Constitutionality of the Commission’s Regulations............................42 

G. Plaintiff’s Challenge to the Commission’s Authority Ultimately 

Rests on the Flawed Contention that the Regulations 

Violate Principles of Federalism................................................................45 

II. THE REMEDY PLAINTIFF SEEKS IS UNSUPPORTED 

 AND UNLAWFUL .............................................................................................46 

III. CONCLUSION ...................................................................................................47

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iii

TABLE OF AUTHORITIES 

 Page 

CASES 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).......................................................12 

American Federation of Government Employees v. OPM, 821 F.2d 761 

 (D.C. Cir. 1987) ......................................................................................................34 

Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988) ........................................................15 

Broadrick v. Oklahoma, 413 U.S. 601- (1973).......................................................29, 44 

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

*California Med. Ass’n v. FEC, 453 U.S. 182 (1981)................................22, 27, 36, 43 

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004)...........................................15 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................12 

*Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ...........................................15, 25 

Christian Knights of the Ku Klux Klan Invisible Empire v. District of Columbia, 

 919 F.2d 148 (D.C. Cir. 1990)................................................................................14 

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) ........14, 29 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987) ..................................20, 22 

County of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999).............................46 

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

 (D.D.C. 2004) .........................................................................................................12 

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995) ....................................................12 

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................14 

_______________________ 

* Authorities on which the Commission chiefly relies are marked with an asterisk. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 6 of 79
iv

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

EMILY’s List v. FEC, 170 Fed. Appx. 719 (D.C. Cir. 2005)........................................11 

ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002) .......................32 

FEC v. Beaumont, 539 U.S. 146, 161 (2002) .........................................................17, 22 

FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001)...............22 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981).......................16 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) .............................21 

FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001) .......................................16 

FEC v. National Right to Work Comm., 459 U.S. 197 (1982)................................18, 43 

FEC v. Public Citizen, 268 F.3d 1283 (11th Cir. 2001) ................................................41 

FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995).............4, 36, 37, 41

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

Florida League of Prof’l Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996)................29 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ......................................................40 

Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999) ........................................................13 

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

 (D.D.C. 2003) ..........................................................................................................46 

Kamargo Corp. v. FERC, 852 F.2d 1392 (D.C. Cir. 1988)..........................................34 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................13 

Matthews v. Diaz, 426 U.S. 67 (1976)..........................................................................34 

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

Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973) .............................15 

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

(D.C. Cir. 1984) ............................................................................................................12 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 7 of 79
v

National Treasury Employees Union v. United States, 927 F.2d 1253 

 (D.C. Cir. 1991) .......................................................................................................14 

New York v. United States EPA, 413 F.3d 3 (D.C. Cir. 2005)......................................11 

New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988) ............................44 

Noramco of Delaware v. DEA, 375 F.3d 1148 (D.C. Cir. 2004)..................................16 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ...................................16, 34

PDK Labs., Inc. v. United States Drug Enforcement Administration, 438 F.3d 1184 

 (D.C. Cir. 2006) .......................................................................................................11 

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 1996)............................29, 41 

Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005)....................................16 

San Luis Obispo Mothers ForPeace v. NRC, 789 F.2d 26 (D.C. Cir. 1986)................15 

 

Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004) ..........................................................46 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) .....................................................15 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998).....................................16 

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

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) ..................................16 

Virginia v. Hicks, 539 U.S. 113 (2003).........................................................................44 

WorldCom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001)..................................29, 32, 34 

STATUTES AND REGULATIONS

Administrative Procedure Act, 5 U.S.C. § 706.................................................10, 11, 15 

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

 81 (2002) ..........................................................................................................passim

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-455........passim 

2 U.S.C. § 431(4)(A).................................................................................................2, 20 

2 U.S.C. § 431(8) ......................................................................................................2, 35 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 8 of 79
vi

2 U.S.C. § 431(20)(A)(i)...............................................................................................27 

2 U.S.C. § 431(20)(A)(ii)..............................................................................................27 

2 U.S.C. § 431(20)(A)(iii).............................................................................................40 

2 U.S.C. § 431(20)(A)(iv).............................................................................................33 

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

2 U.S.C. § 434(f)(3)(A)(i).............................................................................................41 

2 U.S.C. § 437c(b) ........................................................................................................35 

2 U.S.C. § 437c(b)(1)................................................................................................2, 34 

2 U.S.C. § 437d.............................................................................................................35 

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

2 U.S.C. § 437d(a)(8)..........................................................................................2, 15, 34 

2 U.S.C. § 437f(a)(1) ....................................................................................................40 

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

2 U.S.C. § 438(a)(8)..................................................................................................2, 35 

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

2 U.S.C. § 441a.........................................................................................................4, 35 

2 U.S.C. § 441a(a)(1)(C)...............................................................................................36 

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

2 U.S.C. § 441b...............................................................................................................4

2 U.S.C. § 441b(b)(2) ...................................................................................................41 

2 U.S.C. § 441d(a) ....................................................................................................4, 41 

2 U.S.C. § 441d(a)(3)....................................................................................................37 

2 U.S.C. § 441i(b)(2)(A)...........................................................................................6, 22 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 9 of 79
vii

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

5 U.S.C. § 706(2)(A).....................................................................................................15 

26 U.S.C. § 527.........................................................................................................3, 23 

28 U.S.C., Fed. R. Civ. P. 56(c)....................................................................................12 

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

11 C.F.R. § 100.57(a)....................................................................................9, 36, 38, 39 

11 C.F.R. § 100.57(b)(2)...........................................................................................9, 39 

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

11 C.F.R. § 104.10(b) (2000)..........................................................................................5 

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

11 C.F.R. § 106.1............................................................................................. 25, 27, 28 

11 C.F.R. § 106.1(a) (2000)............................................................................................6 

11 C.F.R. § 106.1(c)(2).................................................................................................33 

*11 C.F.R. § 106.6............................................................................................6, 7, 9, 25 

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

11 C.F.R. § 106.6(b)(1)(i).............................................................................................30 

11 C.F.R. § 106.6(b)(1)(iii)...........................................................................................30 

11 C.F.R. § 106.6(b)(2)(i).............................................................................................10 

11 C.F.R. § 106.6(b)(2)(ii)............................................................................................10 

11 C.F.R. § 106.6(b)(iii) (2000)......................................................................................6 

11 C.F.R. § 106.6(c) (2000)......................................................................................5, 31 

*11 C.F.R. § 106.6(c).............................................................................................passim 

11 C.F.R. § 106.6(c)(1) (2004) .......................................................................................3 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 10 of 79
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*11 C.F.R. § 106.6(f).............................................................................................passim 

11 C.F.R. § 106.6(f)(1) .................................................................................................10 

11 C.F.R. § 106.6(f)(2) .................................................................................................10 

11 C.F.R. § 106.6(f)(3) .................................................................................................10 

FEDERAL REGISTER 

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

 Payments; Reporting, 55 Fed. Reg. 26,058 (1990).....................................................5 

Political Committee Status: Proposed Rule, 69 Fed. Reg. 11,736 (2004)......................6 

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

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

 (2004).................................................................................................................passim 

Political Committee Status: Supplemental Explanation and Justification, 

 72 Fed. Reg. 5595 (2007) ........................................................................................21 

MISCELLANEOUS 

EMILY’s List, Press Release, dated February 1, 2007...................................................3 

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

FEC Advisory Opinion 2005-13...................................................................................38 

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

Coming Together (Aug. 29, 2007).........................................................................23 

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

Politics (April 5, 2004) ............................................................................................7 

Comments of Media Fund, at 20 (April 5, 2004) ...........................................................7 

Comments of Public Citizen (April 5, 2004)..................................................................7 

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

Comments of Senators McCain and Feingold, Representatives Shays and Meehan 

(April 9, 2004) ......................................................................................................7 

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

June 7, 2004 .............................................................................................................3 

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Transcript of Public Hearing regarding Political Committee Status: Notice of 

Proposed Rulemaking, April 14, 2004 (testimony of Craig Holman) .....................8 

Transcript of Public Hearing regarding Political Committee Status: Notice of 

Proposed Rulemaking, April 15, 2004 (testimony of Lawrence Noble) .................8 

Transcript of Public Hearing regarding Political Committee Status: Notice of 

Proposed Rulemaking, April 15, 2004 (testimony Robert Bauer)...........................8 

Transcript of Public Hearing regarding Political Committee Status: Notice of 

Proposed Rulemaking, April 15, 2004 (testimony Margaret McCormick) .............8 

U.S. CONST. amend. I ............................................................................................passim 

U.S. CONST. amend. X..................................................................................................45 

U.S. CONST. art. III .......................................................................................................13

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 12 of 79
EMILY’s List, one of the best-funded federal political committees in the United States, 

has failed to carry its heavy burden of establishing that several regulations issued by the Federal 

Election Commission (FEC or Commission) in 2004 are overly broad under the First 

Amendment or are otherwise unlawful. Two of the regulations provide allocation rules for 

mixed federal and state electoral activities by federal political committees, see 11 C.F.R. 

§§ 106.6(c), (f), and the third clarifies when solicitations lead to “contributions” under the 

Federal Election Campaign Act of 1971, as amended (FECA or Act), codified at 2 U.S.C. 

§§ 431-455. See 11 C.F.R. § 100.57. 

Judicial review of Commission regulations is highly deferential, and plaintiff’s challenge 

ultimately rests on objections to the Commission’s policy choices, not on any dispute whether 

the Commission has the power to promulgate allocation rules for mixed electoral activities or 

clarify the statutory definition of “contribution.” 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). The Court also concluded that section 100.57 “appears on its 

face to be reasonably designed to prevent corruption or the appearance of corruption” by 

implementing the Act’s contribution restrictions. Id. at 57. Furthermore, the Supreme Court’s 

recent decision in FEC v. Wisconsin Right to Life, Inc. (WRTL), 127 S.Ct. 2652 (2007), does not 

bolster plaintiff’s weak case, for that decision did not address contributions, but an entirely 

different topic — the constitutional distinction between electoral advocacy and issue advocacy as 

applied to proposed advertisements by a nonprofit corporation. Because EMILY’s List is a 

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

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 13 of 79
2

unlike WRTL, and it has offered no sustainable argument why this Court should alter its prior 

reasoning. The Court should therefore grant summary judgment for the Commission. 

BACKGROUND 

 A. THE PARTIES 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret and civilly enforce the Act. See generally 2 U.S.C. 

§§ 437c(b)(1), 437d(a), and 437g. The FEC is empowered to “formulate policy with respect to” 

the Act, 2 U.S.C. § 437c(b)(1), and to promulgate “such rules ... as are necessary to carry out the 

provisions” of the Act. 2 U.S.C. § 437d(a)(8). See also 2 U.S.C. §§ 438(a)(8) and (d). 

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

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, that is, contributions of up to $5,000 

per year from individuals or other political committees registered with the Commission, but no 

contributions from corporations, labor unions, or foreign nationals.2

 EMILY’s List may spend 

funds from its federal account in connection with federal elections or nonfederal elections. 

 

1

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

association, or other group of persons which receives contributions aggregating in excess of 

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

during a calendar year....” 2 U.S.C. § 431(4)(A). See also infra pp. 20-21. 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

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

or deposit of money or anything of value made by any person for the purpose of influencing any 

election for Federal office.” 2 U.S.C. § 431(8). 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 14 of 79
3

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 has registered its nonfederal account with the Internal Revenue Service 

as a “section 527” organization, 26 U.S.C. § 527. See Plaintiff’s Memorandum 3-4. 

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

than $25 million in federal funds alone during the 2003-04 election cycle, and it again raised $25 

million in the 2005-06 election cycle, a period without a presidential election, when such 

contributions typically decline substantially.3

 “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. 3). EMILY’s List has also recently stated that it, as “the nation’s largest 

political action committee, continues to be the dominant financial resource for Democratic 

candidates.” See EMILY’s List, Press Release, dated February 1, 2007, available at 

http://www.emilyslist.org/newsroom/releases/20070201.html (Exh. 4). 

 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

 During the ten years leading up to the promulgation of the regulations at issue here, 

EMILY’s List never reported less than a 50% allocation ratio for these activities or for direct 

 

3

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

Web site) (Exh. 1); http://herndon1.sdrdc.com/cgi-bin/cancomsrs/?_06+C00193433 (data from 

FEC Web site) (Exh. 2).

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 nonfederal candidates. 11 C.F.R. 

§ 106.6(c)(1) (2004). See infra pp. 5-6. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 15 of 79
4

federal candidate support.5

 See EMILY’s List, 362 F. Supp. 2d at 58 (finding that plaintiff does 

not dispute these facts). In fact, at the end of the 1995-96 election cycle EMILY’s List reported 

a final allocation ratio of 70% federal candidate support and 30% nonfederal.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. 

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 made “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. (SEF), 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 

 

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. 5.

6

 Available at http://query.nictusa.com/cgi-bin/fecimg/?_97031750959+0, at 92 (Exh. 6). 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 16 of 79
5

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. 26,058 (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. 

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, 

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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. For publications and broadcast communications, the allocation was 

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

devoted to all candidates. 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 political party 

committees and substituted a different allocation regime for other party committees, although it 

explicitly left determination of the method of allocation to the Commission. 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 and Public Comment 

 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. 11,736 (March 11, 2004) (Exh. 7). 

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

15, 2004. Id. 

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 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 

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 

 

7

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

Republican National Committee, at 7-8 (April 5, 2004) (Exh. 9). The FEC filed a certified index 

to the administrative record and excerpts from that record with this Court earlier in this litigation. 

See Docket Entries 11, 12, 19. 

8

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

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

9

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

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

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

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

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

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 

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 

b. 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. 68,056 (Nov. 23, 2004) (Exh. 13). 

 

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. 14). 

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

FECA justifies any allocation ratio) (Exh. 14); Transcript of Public Hearing 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. 15). 

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

case, representing America Coming Together (ACT)) (responding to possibility of 50% federal 

minimum and other allocation proposals) (Exh. 15); id. at 80 (testimony of Lawrence Noble) 

(“We do suggest the 50 percent rule. You might be able to come up with a different line, but you 

did come up in the proposed rulemaking with one that’s 50 percent”). 

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. 15). 

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

in response to certain solicitations must be treated as “contributions” under FECA, along with 

several exceptions to this rule “to avoid sweeping too broadly.” 69 Fed. Reg. 68,056. Section 

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. 68,066. The rule 

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

elections.’” 69 Fed. Reg. 68,057. 

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 supra p.4). 

69 Fed. Reg. 68,057. If a solicitation meets the standard in section 100.57(a), but also refers to at 

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

solicitation must be treated as contributions under FECA. 69 Fed. Reg. 68,058; 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. 68,059-63. 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. 68,060. The new 11 C.F.R. 

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§ 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. 68,062. A new provision, 

11 C.F.R. § 106.6(f), which governs certain public communications and voter drives, was also 

adopted. 69 Fed. Reg. 68,063. 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. 68,063; 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. 68,063; 11 C.F.R. § 106.6(f)(2). Public communications and voter drives that 

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

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

Reg. 68,063; 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 68,061; 11 C.F.R. 

§ 106.6(b)(2)(i), (ii). 

C. PLAINTIFF’S SUIT 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. 

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 On February 25, 2005, this Court denied plaintiff’s motion for a preliminary injunction. 

In reaching that decision, the Court concluded 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 concluded that plaintiff had not shown a substantial likelihood of success 

on the merits on any of its claims. See id. at 52-57. The Court also found that “[i]t is abundantly 

clear that Plaintiff had sufficient notice of the proposed revisions to the FEC’s allocation 

regulations.” Id. at 54.16 

On April 21, 2005, EMILY’s List appealed this Court’s preliminary injunction decision. 

On December 22, 2005, the D.C. Circuit affirmed this Court’s denial of EMILY’s request for a 

preliminary injunction. EMILY’s List v. FEC, 170 Fed. Appx. 719 (D.C. Cir. 2005). The D.C. 

Circuit considered “the evidence of irreparable harm submitted by EMILY’s List and its 

likelihood of prevailing on the merits,” and concluded that the court “cannot say the district court 

abused its discretion in denying injunctive relief.” Id. at 719. 

 On July 12, 2007, this Court denied the parties’ previous summary judgment motions 

without prejudice and directed the parties to file updated summary judgment motions in light of 

the Supreme Court’s recent decision in WRTL. Order, filed July 12, 2007. 

 

16 EMILY’s List has now waived its prior lack-of-APA-notice claim by failing to present 

any arguments whatsoever in support of that claim in its September 14, 2007, summary judgment 

memorandum. See, e.g., New York v. United States EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) 

(argument not made by petitioners in their opening brief was thereby waived). Cf. PDK Labs., 

Inc. v. United States Drug Enforcement Administration, 438 F.3d 1184, 1196 (D.C. Cir. 2006) 

(manufacturer’s reference to employee’s statement as “hearsay” in fact section of opening brief 

did not prevent waiver of that argument where manufacturer waited until its reply brief to argue 

that the statement should have been disregarded). 

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ARGUMENT 

 I. THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR 

THE COMMISSION 

 A. Standard of Review for Summary Judgment 

 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 

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).

EMILY’s List has failed to provide evidence sufficient to support its own motion for 

summary judgment. In particular, EMILY’s List relies heavily in its Statement of Material Facts 

on the Declaration of Britt Cocanour, filed September 14, 2007, citing that declaration to support 

30 of its 49 facts. However, the Cocanour declaration consists of a series of vague, conclusory, 

and speculative statements and provides insufficient evidentiary support for the plaintiff’s 

assertions in its brief that the regulations at issue are “operationally debilitating restrictions” 

(Mem. 35) that “cripple” (Mem. 1) plaintiff’s ability to finance nonfederal activities. See Greene 

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v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (“[a]ccepting such conclusory allegations as true, 

therefore, would defeat the central purpose of the summary judgment device”).

B. EMILY’s List Lacks Standing Under Article III 

 Three elements constitute the “irreducible constitutional minimum” of Article III 

standing: (1) an injury-in-fact that is “concrete and particularized,” not “conjectural” or 

“hypothetical”; (2) a causal connection between the injury and the challenged conduct of the 

defendant; and (3) a likelihood that the injury will be redressed by a favorable decision of the 

court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking federal 

jurisdiction bears the burden of establishing that it satisfies these elements. Id. at 561. 

“The existence of federal jurisdiction ordinarily depends on the facts as they exist when the 

complaint is filed.” Id. at 571 n.4 (citation omitted). EMILY’s List has not shown that it meets 

even the first required element, injury-in-fact. 

 The new 50% federal funds minimum requirement of 11 C.F.R. § 106.6(c) has not 

required EMILY’s List to alter its practices. For more than ten years preceding the effective date 

of this regulation, plaintiff never reported less than a 50% federal/nonfederal allocation ratio, see 

supra pp. 3-4, and plaintiff has provided no evidence that it will change its longstanding practice 

and begin spending significantly more resources on nonfederal activity. Indeed, the reports that 

plaintiff has filed with the FEC and the IRS since the initiation of this litigation strongly suggest 

that plaintiff has, in fact, adhered closely to its historic norm. See FEC Facts ¶¶ 7-8.17

 Moreover, neither 11 C.F.R. § 106.6(c) nor the other allocation provision challenged 

here, section 106.6(f), prohibits plaintiff from engaging in electoral speech or in any of the other 

 

17 Plaintiff suggests (Mem. 16) that 11 C.F.R. § 106.6(c) places it at a competitive 

disadvantage “with other nonfederal organizations.” But EMILY’s List is not a “nonfederal” 

organization; it is a federal political committee and federal campaign activity is its major 

purpose. See infra pp. 20-21. The regulation treats all federal political committees the same. 

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campaign activities listed in the regulations. The regulations impose no expenditure ceiling. 

Thus, EMILY’s List may spend as much money as it wishes on the covered activities, consistent 

with its ability to attract more supporters and raise more funds — and plaintiff prides itself on its 

notable success in both respects. See, e.g., Pl. Mem. 2 (“one of the nation’s largest political 

organizations”). Indeed, plaintiff’s president has publicly stated that a lack of hard money has 

not been an issue for her organization. See supra p. 3; Exh. 4; see also FEC Facts ¶¶ 5-9 

(plaintiff’s financial data). 

 Instead of harming EMILY’s List, the solicitation regulation, 11 C.F.R. § 100.57, offers 

the organization the opportunity to control whether its solicitations result in “contributions” 

under the Act. It can state whatever it wishes in a solicitation and, by exercising its choice of 

wording, determine whether the solicitation invites “contributions.” See 69 Fed. Reg. 68,057. 

 In arguing that the three regulations it challenges are causing it injury, EMILY’s List 

cites (Mem. 9) Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). However, the D.C. Circuit 

has explained that Elrod did not eliminate a First Amendment plaintiff’s burden to show that its 

interests are actually threatened or in fact being impaired at the time relief is ought. See National 

Treasury Employees Union v. United States, 927 F.2d 1253, 1254-255 (D.C. Cir. 1991); 

Christian Knights of the Ku Klux Klan Invisible Empire v. District of Columbia, 919 F.2d 148, 

149 (D.C. Cir. 1990) (describing Elrod as a case in which “First Amendment rights were totally 

denied by the disputed Government action”). 

 EMILY’s List also invokes (Mem. 10) the First Amendment overbreadth doctrine. But a 

plaintiff may successfully rely on that doctrine only where there is “a realistic danger that the 

statute itself will significantly compromise recognized First Amendment protections of parties 

not before the Court.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 

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801-02 (1984) (emphases added). EMILY’s List’s Statement of Material Facts does not include 

any evidence that third parties not before this Court face a “realistic danger” that the regulations 

challenged here will “significantly compromise” those parties’ First Amendment rights.

C. 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). 

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 

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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 

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

considerable deference.’” (citation omitted)). 

D. The Level of Judicial Scrutiny Appropriate for Contribution Limits Applies 

to This Case 

In Buckley v. Valeo, 424 U.S. 1 (1976), and subsequent cases, the Supreme Court has 

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

to restrictions on campaign expenditures. See, e.g., Buckley, 424 U.S. at 19; McConnell v. FEC, 

540 U.S. 93, 134-36 (2003); FEC v. Beaumont, 539 U.S. 146, 161 (2002); Nixon v. Shrink 

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Missouri Gov’t PAC, 528 U.S. 377, 387-88 (2000). In those cases, the Court recognized that a 

contribution limit, unlike an expenditure limit, “entails only a marginal restriction upon the 

contributor’s ability to engage in free communication.” Buckley, 424 U.S. at 20. “While 

contributions may result in political expression if spent by a candidate or an association to 

present views to the voters, the transformation of contributions into political debate involves 

speech by someone other than the contributor.” Id. at 21; accord, McConnell, 540 U.S. at 135. 

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

and political committees to raise funds from a greater number of persons.” Buckley, 424 U.S. 

at 21-22. As a result, the Court has concluded that “contribution limits impose serious burdens 

on free speech only if they are so low as to ‘preven[t] candidates and political committees from 

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

Buckley, 424 U.S. at 21). In light of these considerations, the Court has held that a contribution 

limit is valid if it satisfies the “lesser demand” of being “closely drawn” to match a “sufficiently 

important interest.” Shrink Missouri, 528 U.S. at 387-88; accord, Beaumont, 539 U.S. at 162. 

See also Buckley, 424 U.S. at 25. 

This less rigorous standard of scrutiny applies to all of the regulations at issue here. First, 

as EMILY’s List concedes (Mem. 29), this standard applies to 11 C.F.R. § 100.57, which 

clarifies which funds received in response to a solicitation are regulated “contributions” under 

the Act. Because the whole point of the regulation it to help flesh out the “statutory standard for 

‘contribution’ by reaching payments ‘made ... for the purpose of influencing any election for 

Federal office,’” 69 Fed. Reg. 68,056, the regulation obviously focuses entirely on contribution 

limits, not expenditure limits. 

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Second, the lower standard of scrutiny also applies to the allocation regulations 

challenged here, 11 C.F.R. §§ 106.6(c) and (f). As this Court previously concluded, the “new 

[allocation] rules do not in fact prevent Plaintiff from engaging in whatever political speech it 

seeks to undertake,” and they do “not limit [committees’ such as EMILY’s List] right to 

undertake their desired political expression.” 362 F. Supp. 2d at 58. Thus, as a matter of 

constitutional law, the allocation rules are subject to review as contribution limits. As the 

Supreme Court explained when it upheld BCRA’s restrictions on the solicitation and spending of 

“soft money” by political parties, “for purposes of determining the level of scrutiny, it is 

irrelevant that Congress chose ... to regulate contributions on the demand rather than the supply 

side.” McConnell, 540 U.S. at 138 (citing FEC v. National Right to Work Comm., 459 U.S. 197, 

206-11 (1982)). The Court explained that “the relevant inquiry” instead “is whether the 

mechanism adopted to implement the contribution limit, or to prevent circumvention of that 

limit, burdens speech in a way that a direct restriction of the contribution itself would not.” Id.

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

allocation regulations are indistinguishable from the soft money provisions in BCRA. Rather 

than limiting the amount of money that political committees can spend on mixed 

federal/nonfederal activity, the regulations merely require that a certain percentage of federal 

dollars be raised to pay for certain activity. Thus, the allocation regulations do not “burden[ ] 

speech in a way that a direct restriction of the contribution itself would not.” Id. “That they do 

so by [restricting the spending of nonfederal funds on certain activities] does not render them 

expenditure limitations.” Id. (footnote omitted). 

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E. The Commission’s Allocation and Solicitation Regulations Are Lawful 

 The Commission’s regulations reasonably implement the Act’s requirement that federal 

funds be used to pay for activity that influences federal elections. In particular, the allocation 

regulations ensure that federal political committees — groups whose major purpose is the 

nomination or election of federal candidates — do not circumvent this requirement or the Act’s 

general contribution limits. Below, we explain how these regulations actually work and why 

they are reasonable. We then explore the three main reasons why the centerpiece of plaintiff’s 

current attempt to challenge these regulations, its reliance on the Supreme Court’s recent 

decision in WRTL, is flawed. As we explain infra pp. 41-44, first, WRTL concerned a limit on 

expenditures, not contributions. Second, that case involved line drawing between electoral 

advocacy and “issue advocacy,” not the distinction at issue here, i.e., the line between federal 

and nonfederal election activity. Third, WRTL involved a restriction on a nonprofit ideological 

corporation that was not a political committee, while here the allocation regulations apply only to 

political committees, whose major purpose is, by definition, federal campaign activity. 

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 says nothing at all about allocation of expenditures by nonconnected 

political committees, much less does it 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 thus made clear that the statutory language does not 

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require any allocation to a soft money account for mixed spending that influences both federal 

and state elections. After all, a contribution or expenditure that influences state elections may 

simultaneously affect federal elections. See id. at 166. 

Years ago this district court held 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 party 

committees at issue] ... be ‘hard money’ under the FECA.” Common Cause v. FEC, 692 F. 

Supp. 1391, 1395-96 (D.D.C. 1987) (emphases in original). The same reasoning applies to 

allocation of funds spent by nonconnected political committees, see EMILY’s List, 

362 F. Supp. 2d at 55 n.9, especially in light of the Supreme Court’s construction of the term 

“political committee.” 18

The Act defines a “political committee” as “any committee, club, association, or other 

group of persons which receives contributions aggregating in excess of $1,000 during a calendar 

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

2 U.S.C. § 431(4)(A). However, the Supreme Court in Buckley added a requirement to the 

statute’s financial thresholds for political committee status. To avoid constitutional vagueness 

problems and yet “fulfill the purposes of the Act,” the Court concluded that the term “political 

committee” “only encompass[es] organizations that are under the control of a candidate or the 

 

18 Plaintiff strains (Mem. 36-37) to escape the reasoning of Common Cause, claiming that 

the case stands for the proposition that the FECA does not reach “purely state and local activity.” 

However, contrary to plaintiff’s characterization, the current case is 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. 37) 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. 

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major purpose of which is the nomination or election of a candidate.” Id. at 79. The Court 

limited the term “political committee” in this way to exclude “groups engaged purely in issue 

discussion.” Id. Having thus narrowed the reach of “political committee,” the Court explained 

that “[e]xpenditures of ... ‘political committees’ ... can be assumed to fall within the core area 

sought to be addressed by Congress. They are, by definition, campaign related.” Id. (emphasis 

added).19

Moreover, the Commission has long applied the Court’s major purpose test in 

determining whether an organization is a “political committee” under the Act, and the 

Commission interprets that test as limited to organizations whose major purpose is federal

campaign activity. See Political Committee Status: Supplemental Explanation and Justification, 

72 Fed. Reg. 5595, 5597, 5601 (2007). 

Thus, the major purpose of federal political committees such as EMILY’s List, like that 

of national party committees, is to influence federal elections. In turn, the use of an allocation 

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

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

statutory entitlement. As this Court explained when it denied EMILY’s List’s request for a 

preliminary injunction, “[i]t is clear then, that the FEC’s decision to allow any given allocation 

formula by a political committee such as EMILY’s List, with respect to expenditures intended to 

 

19 The Court reaffirmed its “major purpose” test in FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238, 262 (1986) (“[S]hould MCFL’s independent spending become so extensive 

that the organization’s major purpose may be regarded as campaign activity, the corporation 

would be classified as a political committee.”) (citing Buckley, 424 U.S. at 79)). See also id. at 

261 n.6. More recently, the Court implicitly endorsed the test in upholding BCRA’s regulation 

of political party activity against a vagueness challenge. McConnell, 540 U.S. at 170 n.64. 

Quoting the “major purpose” language of Buckley, the Court noted that “actions taken by 

political parties are presumed to be in connection with election campaigns.” Id. 

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influence both federal and nonfederal elections, is within the Commission’s purview.” 

362 F. Supp. 2d at 56. 

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 

political committees, and nothing in the Act or its legislative history indicates that Congress 

intended by its silence to restrict the Commission’s discretion to determine allocation ratios for 

such committees. 

Since Buckley, 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 

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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 57.20 

As this Court further noted, “[t]he ‘funds expended’ allocation method allowed non-party 

committees to calculate the federal portions of their allocated spending at or close to zero.” 

EMILY’s List, 362 F. Supp. 2d at 48. A recent conciliation agreement between the Commission 

and America Coming Together (ACT) illustrates this potential for abuse. See FEC News 

Release, FEC To Collect $775,000 Civil Penalty From America Coming Together (Aug. 29, 

2007) (News Release) (FEC Exh. 16). Like EMILY’s List, ACT is a registered federal 

nonconnected political committee that also has a nonfederal account registered with the Internal 

Revenue Service under section 527 of the Internal Revenue Code. See News Release. The 

conciliation agreement (FEC Exh. 17) settles allegations that ACT in the 2004 elections used 

federal/nonfederal allocation ratios that greatly underrepresented the proportion of its 

disbursements required to be paid with federal funds.21 

 

20 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.” 362 F. Supp. 2d at 57. 

21 For most of the 2004 election cycle, ACT used an allocation ratio of just 2% federal 

funds and 98% nonfederal funds for its administrative expenses and generic voter drives. 

Conciliation Agreement at 2-3, 6. The Commission concluded that approximately $70 million 

dollars in disbursements characterized by ACT as “administrative expenses” for door-to-door 

canvassing, direct mail, and telemarketing were actually attributable to clearly identified federal 

candidates and thus were required to be paid with 100% federal funds. Id. at 7. The 

Commission further found that another $70 million in voter drive costs were directly attributable 

at least in part to clearly identified federal candidates, and thus should have been paid either with 

100% federal funds or allocated between federal and nonfederal candidates based on the time or 

space devoted to the candidates. Id. at 9. ACT agreed to pay a $775,000 civil penalty and to 

cease and desist from violating the relevant statutory and regulatory restrictions and reporting 

requirements. Id. at 12. 

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 Although McConnell distinguished political parties from independent groups when it 

addressed BCRA’s soft money restrictions, 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. To the 

contrary, the McConnell Court reiterated Buckley’s holding that a political committee’s major 

purpose is federal campaign activity. McConnell, 540 U.S. at 170 n.64 (quoting Buckley, 

424 U.S. at 79). Indeed, in light of the Supreme Court’s construction, federal political 

committees are more like national political parties than state or local parties, because the law 

does not presume that the latter organizations have as their major purpose the nomination or 

election of federal candidates. 

Finally, as this Court emphasized, the new rules do not “prevent Plaintiff from engaging 

in whatever political speech it seeks to undertake.” EMILY’s List, 362 F. Supp. 2d at 58. The 

Court quoted 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 concluded that EMILY’s List may engage in the same speech 

as before “but may be required to raise money from a greater number of donors.” Id. Plaintiff’s 

memorandum offers no good reason for revising this conclusion, and plaintiff has thus failed to 

establish any constitutional or statutory right to the prior allocation system. 

2. 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 

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and for the Commission to administer these requirements.” 69 Fed. Reg. 68,060. 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. 68,059. In sum, public communications and voter drives referring solely to clearly 

identified federal candidates must be financed solely with federal funds; those referring solely to 

clearly identified nonfederal candidates may be financed with nonfederal funds; and those 

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

allocation under 11 C.F.R. § 106.1. As the Commission further explained (id. at 68,063), 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. 

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 11 C.F.R. § 106.6(f) applies only to political committees, which, as we have explained, 

are “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. 32-38) that 11 C.F.R. §106.6(f) requires allocation of certain 

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

(unlike the plaintiff in WRTL) is a federal political committee whose major purpose is the 

nomination or election of federal candidates, the Commission acted well within its discretion in 

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

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

or, if they also refer to nonfederal candidates, with a proportionate allocation between federal 

and nonfederal funds. 

 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; infra p. 43. The provisions challenged here regulating 

nonconnected committees are less burdensome than the Act’s restrictions on other entities. For 

example, Congress provided in BCRA that national party committees could no longer solicit, 

receive or spend any nonfederal funds, and the Supreme Court upheld those new restrictions 

despite the acknowledged role national party committees regularly play in nonfederal elections. 

McConnell, 540 U.S. at 142-61. EMILY’s List, in contrast, can still solicit and spend nonfederal 

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

elections. To that end, 11 C.F.R. § 106.6(f) merely requires that nonconnected political 

committees allocate expenses for public communications and voter drives that refer to a mixture 

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of clearly identified federal and nonfederal candidates according to the pre-existing time/space 

method of 11 C.F.R. § 106.1. 

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

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

plaintiff’s, is usually not the election of federal candidates. As the Supreme Court noted in 

upholding the allocation requirements for those nonfederal committees, BCRA “prevents donors 

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

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

categories of “Federal election activity” encompass the same kind of voter drive activity 

included in 11 C.F.R. § 106.6(f): voter registration, 2 U.S.C. § 431(20)(A)(i), and get-out-thevote and generic campaign activity in connection with a federal election, 2 U.S.C. 

§ 431(20)(A)(ii). These provisions regulate the financing of such activities by state and local 

parties without regard to whether they involve any references to federal candidates. “A 

campaign need not mention federal candidates to have a direct effect on voting for such a 

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

540 U.S. at 168 (citations and internal quotation marks omitted). This reasoning applies with at 

least as much force to the activities of federal political committees like EMILY’s List, which 

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

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

 EMILY’s List poses several hypothetical examples (Mem. 35-36) 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. The first three examples all 

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

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

identifying an out-of-state federal candidate (as in plaintiff’s first hypothetical), it is not evident 

that such a communication could not affect an in-state federal election. Such a communication 

may well suggest that its audience support a party’s full slate of candidates (federal and state) on 

the basis of their alliance with a prominent out-of-state candidate’s policies or the out-of-state 

candidate’s support for the in-state candidates.22 Moreover, 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.23 It concerns (Mem. 36) a 

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

applicable regulation (11 C.F.R. § 106.6(c), not 106.6(f)) requires that the costs of such a public 

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

undifferentiated support of a political party denotes support of all of its candidates, federal and 

nonfederal.24 

 

22 Political committees like EMILY’s List often identify out-of-state federal candidates in 

their communications, especially when urging people all over the nation to contribute funds to 

the political committee’s preferred candidates. On plaintiff’s own Web site, for example, where 

it solicits contributions to be given directly to a list of “recommended candidates,” the list of 

candidates to be supported consists of federal candidates from Massachusetts, New Hampshire, 

and Colorado — although the page obviously reaches all 50 states. EMILY’s List, 

“Recommended Candidates,” available at https://secure1.emilyslist.org/Donation/ 

index.cfm?event=initiative_showOne&initiativeID=375&mt=1406 (visited October 3, 2007). 

23 We address plaintiff’s fourth hypothetical, about a solicitation, in our discussion of 

11 C.F.R. § 100.57. See infra p. 39 n.33. 

24 Plaintiff also complains (Mem. 12) that the regulation would require the use of federal 

funds to finance an advertisement that, for example, urges Missouri voters to vote on a ballot 

initiative on the specified November election day and includes an endorsement by a Missouri 

candidate for federal office. But plaintiff overlooks the obvious. Such an advertisement would 

obviously benefit the federal candidate or, otherwise stated, influence federal elections because 

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In any event, in a facial challenge like the one EMILY’s List brings here, worst-case 

examples are not sufficient to satisfy a plaintiff’s burden of proof. See City Council of Los 

Angeles v. Taxpayers for Vincent, 466 U.S. at 800 (The “mere fact that one can conceive of some 

impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth 

challenge.”); 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.”); 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.”); see also Broadrick v. 

Oklahoma, 413 U.S. 601, 618 (1973) (“[W]e do not believe that [the statutory provision] must be 

discarded in toto because some persons’ arguably protected conduct may or may not be caught or 

chilled by the statute.”). 

 Finally, plaintiff’s claim (Mem. 44) 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. 

22-23, and as this Court previously held, the entire allocation system implements the 

contribution restrictions that have been held to serve an anti-corruption purpose. See EMILY’s 

List, 362 F. Supp. 2d at 56-57. Moreover, contrary to plaintiff’s assertion (Mem. 44), 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 Republican Nat’l Comm. 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 

 

encouraging sympathetic voters to vote for the ballot measure gets them to the polls, where the 

endorsing federal candidate is on the ballot. 

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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. 68,060. 

3. 11 C.F.R. § 106.6(c) Establishes a Permissible Allocation Formula 

for Federal and Nonfederal Shared Expenses 

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

funds by nonconnected committees of their administrative expenses,25 the costs of their “generic 

voter drives,”26 and certain public communications. These disbursements benefit both federal 

and nonfederal candidates, and thus influence both federal and nonfederal elections.27 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 

 

25 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). 

26 “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). 

27 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.)). 

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drive expenses under former section 106.6(c).” 69 Fed. Reg. 68,062.28 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 expenses and the costs of generic voter drives and certain public 

communications with a higher percentage of federal funds. “A flat minimum percentage makes 

the allocation scheme easier to understand and apply, while preserving the overall rationale 

underlying allocation.” 69 Fed. Reg. 68,062. As noted supra pp. 29-30, it is well settled that 

simplifying regulation to promote ease of compliance and enforcement is a valid rulemaking 

objective. 

 

28 “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. 

68,062. That means that the remaining committees used only federal funds for such activities. 

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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 68,063. 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 that 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. 5. 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. 18. In present off-year, for example, 

EMILY’s List has raised more than $8,100,000 in “hard money” contributions as of August 31, 

2007. FEC Exh. 19 (FEC Committee Summary Report, available at http://herndon1.sdrdc.com/ 

cgi-bin/cancomsrs/?_08+C00193433 ). 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 (Mem. 41-43). 

 EMILY’S List again counters by concocting extreme hypotheticals without evidentiary 

support. Plaintiff also again ignores the important fact that the regulation applies only to 

political committees, whose major purpose is federal campaign activity. See supra pp. 20-21. 

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For example, plaintiff offers (Mem. 8) the unlikely hypothetical of a political committee that 

spends 99 percent of its funds in state and local races. Plaintiff does not explain, however, why 

an organization that uses only one percent of its funds for federal electoral activity would qualify 

as a “political committee” under the Supreme Court’s major purpose test; if that threshold is not 

met, the organization would not be governed by the 50% allocation regulation.29 

 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.

EMILY’s List has offered absolutely no evidence to controvert the Commission’s 

conclusion, 69 Fed. Reg. 68,063, 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%. In any event, the relevant “question is not whether [the 

 

29 Plaintiff’s discussion of its Campaign Corps program (Mem. 14-15) suffers from a 

similar lack of clarity. EMILY’s List assumes that the costs of the program would fall within the 

50% administrative expenses regulation, but the lack of relevant detail in plaintiff’s description 

of the program makes it impossible to conclude whether all those costs would in fact qualify as 

“administrative expenses.” See, e.g., 11 C.F.R. § 106.1(c)(2) (addressing, inter alia, 

expenditures for “educational campaign seminars” and “training of campaign workers”). 

Moreover, although EMILY’s List alleges (Mem. 15) that “77% of the graduates ... worked on 

nonfederal races,” plaintiff fails to state whether those graduates may have also worked on 

federal races or generic campaign activity. 

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regulation] 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.’” 

McConnell, 540 U.S. at 173 (quoting Shrink Missouri, 528 U.S. at 397). EMILY’s List has not 

even alleged that any of the challenged regulations have such a radical effect.30

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.31 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). And the fact that the Commission’s regulation draws a line does not make the regulation 

unlawfully “arbitrary.” See Matthews v. Diaz, 426 U.S. 67, 83 (1976) (“But it remains true that 

some line is essential, that any line must produce some harsh and apparently arbitrary 

consequences....”); American Federation of Government Employees v. OPM, 821 F.2d 761, 777 

(D.C. Cir. 1987) (“The lines drawn as a result of this [rulemaking] process may well be, in one 

sense, ‘arbitrary’ without being ‘capricious’”); Kamargo Corp. v. FERC, 852 F.2d 1392, 1398 

n.7 (D.C. Cir. 1988) (same). See also Worldcom, 238 F.3d at 461-62. EMILY’s List has 

 

30 Indeed, campaign finance reports filed by EMILY’s List reveal that it raised more funds 

and spent more on allocated activities during the first third of the current election cycle than it 

had during the comparable period in the last presidential election cycle, 2003-04, when the 

former allocation regime was in effect. FEC Facts ¶¶ 8-9. 

31 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 also 2 U.S.C. §§ 437c(b)(1) and 437d(a)(8) (granting the Commission 

broad rulemaking and policymaking powers). 

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35

presented no basis for denying the Commission deference and substituting a different line for the 

one the Commission drew. 

But EMILY’s List makes an even more fundamental mistake. It does not understand that 

the Act regulates disbursements that have the purpose of influencing federal elections, regardless 

of whatever other effects they may also have. The Act does not support plaintiff’s assumption 

that the Commission must quantify the relative effect that dual-purpose spending has on federal 

and nonfederal elections. Because 11 C.F.R. § 106.6(c) governs spending that influences both 

federal and nonfederal elections, plaintiff’s criticisms reflect little more than a policy dispute 

about how best to allocate expenses for activities that cannot be readily divided with scientific 

precision, but all of which have at least some influence on federal elections. 

4. 11 C.F.R. § 100.57 Is a Permissible Interpretation of When Funds 

Given in Response to a Political Committee’s Solicitation Are 

“Contributions” Under the Act 

The Act authorizes the Commission to regulate “contributions” — money and anything of 

value given to political committees or candidates “for the purpose of influencing” federal 

elections. See, e.g., 2 U.S.C. §§ 431(8), 437c(b), 437d, 438(a)(8), 441a. New regulation 

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

“contributions” under the Act. Thus, the subject of this regulation is plainly within the 

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

regulation is predicated on a fundamental misunderstanding of the regulatory standard. 

 The Supreme Court has always construed the statutory term “contribution” 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. The term 

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

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36

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 (Blackmun, 

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 (e.g., Mem. 12, 28), 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 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, 

money given in response to such solicitations is “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 (SEF), 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. 

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EMILY’s List does not dispute that this was a holding in the case. Rather, in a strained 

effort to link the Second Circuit’s decision to WRTL, plaintiff (Mem. 29-30) gives a distorted 

account of the relevant portion of SEF, which did not turn on whether the solicitation in question 

contained express advocacy. Indeed, the Second Circuit explicitly eschewed ruling on that issue. 

SEF, 65 F.3d at 290, 296. Instead, in deciding whether the particular communication was 

required to include certain disclosures applicable to communications that “solicit[ ] any 

contributions,” see 2 U.S.C. § 441d(a)(3), the court analyzed the phrase “earmarked for political 

purposes.” 65 F.3d at 295-96 (citing Buckley, 424 U.S. at 78-80). The Supreme Court in 

Buckley, 424 U.S. at 78, had used that phrase in identifying types of gifts of money that are 

“made for the purpose of influencing [federal] elections,” and thus are properly regulated by the 

Act as contributions. The Second Circuit explained that, “[e]ven if a communication does not 

itself constitute express advocacy, it may still fall within the reach of” the disclosure provision 

“if it contains solicitations clearly indicating that the contributions will be targeted to the election 

or defeat of a clearly identified candidate for federal office.” SEF, 65 F.3d at 295. Thus, 

EMILY’s List is simply wrong when it argues (Mem. 29) that “[e]xpress advocacy ... was the 

line of demarcation” at issue in SEF. 

 The Commission’s explanation of 11 C.F.R. § 100.57 describes the application of this 

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

Reg. 68,057. 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. 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 

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38

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 does not want to elicit 

contributions for a federal candidate and wants to ensure that none of the money it receives in 

response to a solicitation will be treated as federal contributions, it can simply draft its 

communication without indicating that any portion of the funds received will be used to support 

or oppose the election of a clearly identified federal candidate. 

 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 that 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. 68,057. 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. 

 FEC Advisory Opinion (AO) 2005-13 (October 20, 2005), requested by EMILY’s List 

after it filed this suit, discusses another example (proffered by plaintiff) of a solicitation that 

would not trigger 11 C.F.R. § 100.57:32

EMILY’s List has always supported me [Senator Stabenow, a candidate for 

federal office,] when I most needed it. And that is why I am asking you to support 

EMILY’s List today, so that it can continue the work on behalf of women who, by 

seeking state office today, will be ready to claim national leadership tomorrow. 

 

32 AO 2005-13 is attached as Exhibit E to plaintiff’s summary judgment memorandum. 

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The Commission pointed out that, although this solicitation “features a clearly identified Federal 

candidate,” the solicitation makes clear that Senator Stabenow is raising funds for EMILY’s List 

to use on behalf of women who seek state office and not to support her own re-election.33 Thus, 

plaintiff is simply wrong in asserting (Mem. 29) that “the mere reference to a single federal 

candidate is sufficient” to make the funds received federal contributions. 

EMILY’s List also attacks (Mem. 9) 11 C.F.R. § 100.57(b)(2) because it provides that, if 

a solicitation meets the standard in section 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. See also 69 Fed. Reg. 68,058. Plaintiff hypothesizes a solicitation 

expressly stating that a lower percentage of funds received would be used to support federal 

candidates. See also Mem. 43. However, plaintiff does not point to any language in the Act 

inconsistent with this regulation, and plaintiff’s worst-case hypothetical example does not 

demonstrate that section 100.57 is unconstitutional on its face or beyond the Commission’s 

authority to promulgate. Plaintiff provides no evidence that this issue was raised before the 

Commission, and it has supplied no real-world evidence of solicitations that expressly state that a 

certain low percentage of funds collected will be used to support or oppose the election of clearly 

identified federal candidates. As explained supra p. 29, plaintiff’s worst-case hypothetical 

examples are insufficient for plaintiff to prevail in this facial challenge.34

 

33 The Commission’s analysis might also apply to plaintiff’s penultimate hypothetical at 

Mem. 36, although plaintiff describes the hypothetical solicitation in such vague and ambiguous 

terms that the same result is not certain.

34 Despite plaintiff’s claim that the regulation will have a crippling effect on fundraising, 

plaintiff has raised more federal and nonfederal funds thus far in the 2007-08 election cycle than 

it did in the first third of the last comparable election cycle, 2003-04. See supra n.30. 

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 EMILY’s List also complains (Mem. 30) that the “indicates that” standard is not 

further defined in this regulation. 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 (1972). 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 to structure its solicitations to control whether funds it receives in 

response 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. As also noted in 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).35 

 EMILY’s List claims (Mem. 31) that 11 C.F.R. § 100.57 forces it and other solicitors to 

revise the texts of their solicitations to avoid triggering the regulation, and that section 100.57 

thereby contravenes WRTL, which supposedly “made clear ... that directing political speech is 

not a legitimate function of a government agency.” But, once again, plaintiff ignores context. 

WRTL applied strict scrutiny in an as-applied challenge to a direct limit on corporate spending for 

speech. The WRTL decision was limited to issue advocacy and did not address solicitations for 

federal campaign contributions. 

 Moreover, courts have upheld statutory and regulatory provisions requiring persons who 

engage in electoral activity to include certain language in their communications or, indeed, to 

 

35 Indeed, EMILY’s List has itself sought and received an advisory opinion about the 

regulation’s application to proposed solicitations. See supra p. 38. 

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write certain communications. Most notably, in Republican Nat’l Comm. v. FEC, 76 F.3d at 406, 

the D.C. Circuit upheld an FEC rule directing political committees to make separate follow-up 

requests for contributor information if the committees wanted to qualify as having made “best 

efforts” to collect the information. In addition, two courts of appeals have upheld the FECA’s 

“disclaimer” provision, 2 U.S.C. § 441d(a), which requires, inter alia, that persons who make 

disbursements to finance a public communication “expressly advocating the election or defeat of 

a clearly identified candidate, or solicit[ing] any contribution” include in their communication a 

statement whether the communication has been paid for or authorized by a candidate. FEC v. 

Public Citizen, 268 F.3d 1283 (11th Cir. 2001); SEF, 65 F.3d at 295-96. 

F. The Supreme Court’s Recent Decision in WRTL Does Not Support Plaintiff’s 

Challenge to the Commission’s Allocation and Solicitation Regulations 

The integrity of the Commission’s regulations is unaffected by WRTL. Unlike this case, 

WRTL was an as-applied challenge to a limit on expenditures brought by a corporation that 

claimed it wished to engage in issue advocacy, not a facial challenge brought by a federal 

political committee that intended to engage in some nonfederal election activity. As we explain 

below, EMILY’s List ignores or conflates these critical differences. 

1. Background: The WRTL Case 

 In 2003, the Supreme Court had held that the McConnell plaintiffs had failed to carry 

“their heavy burden” of establishing that BCRA’s “electioneering communication” provision 

was substantially overbroad. See McConnell, 540 U.S. at 204-07.36 The Court also noted that a 

corporation with a separate segregated fund could legally finance an electioneering 

 

36 BCRA amended the Act to prohibit corporations from using their general treasury funds 

to finance any “electioneering communication.” BCRA § 203, codified at 2 U.S.C. § 441b(b)(2). 

BCRA defines an “electioneering communication” as, inter alia, any broadcast communication 

that refers to a clearly identified federal candidate during a specified pre-election period and is 

“targeted to the relevant electorate.” 2 U.S.C. § 434(f)(3)(A)(i). 

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communication from that fund. Id. Alternatively, the corporation could use its treasury funds if 

it simply avoided referring to a clearly identified federal candidate in the communication. Id. 

 Shortly before the 2004 federal elections, WRTL, a nonprofit ideological advocacy 

corporation, sought to use its corporate treasury funds to finance electioneering communications, 

and it brought an as-applied challenge to that facially valid provision. WRTL, 127 S.Ct. at 

2660-61. WRTL claimed that its proposed advertisements were constitutionally protected “issue 

advocacy” rather than campaign advocacy. The Supreme Court agreed, and the controlling 

opinion by Chief Justice Roberts applied strict scrutiny, placing the burden on the government to 

demonstrate that the prohibition was “narrowly tailored to serve a compelling governmental 

interest.” 127 S. Ct. at 2664. Because the government could not show that WRTL’s 

advertisements contained “express advocacy or its functional equivalent,” id., the Court held that 

WRTL could not constitutionally be prohibited from using its corporate treasury funds to finance 

its proposed advertisements, id. at 2673. 

2. The Reasoning and Holding of WRTL Do Not Undercut the 

Constitutionality of the Commission’s Regulations 

 The decision in WRTL applied strict scrutiny in an as-applied challenge to an expenditure 

limit applicable to corporations and unions. In particular, the decision hinged on the distinction 

between issue advocacy and electoral advocacy. In stark contrast, the facial challenge brought 

by EMILY’s List does not concern that crucial First Amendment distinction. Rather, it concerns 

the intersection of federal and nonfederal electoral activity as relevant to contribution limits for 

federal political committees, topics irrelevant to the WRTL litigation. These multiple differences 

mean that WRTL provides no support for EMILY’s List here, despite the organization’s attempt 

to clothe itself in WRTL’s mantle. Although EMILY’s List conflates nonfederal electoral 

activity and issue advertising (Mem. 2, 22), they are not the same. Indeed, EMILY’s List itself 

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describes (Mem. 3) its nonfederal account as accepting funds to affect state and local candidate 

elections, not to engage in issue advocacy. 

 WRTL sued as a nonprofit ideological corporation seeking to use its corporate treasury 

funds for its issue advertising, while EMILY’s List is a registered federal political committee 

with a nonfederal account that is challenging the Commission’s discretion to set an appropriate 

allocation formula for political committees that engage in activity that affects both federal and 

nonfederal candidate elections. EMILY’s List tries to minimize the importance of its status as a 

“political committee” under the Act (see Mem. 25-26) and cites WRTL for the proposition that 

the identity of the speaker (a corporation in WRTL) does not matter. Mem. 26 (citing WRTL, 

127 S.Ct. at 2673). However, plaintiff conveniently ignores the narrow context to which Chief 

Justice Roberts was referring — issue advocacy. In federal campaign finance contexts, the Court 

has repeatedly found that the identity of the actor is indeed relevant. For example, in California 

Medical Ass’n, 453 U.S. at 201, the Court stated that the “differing structures and purposes” of 

different entities “may require different forms of regulation to protect the integrity of the 

electoral process.” Accord, McConnell, 540 U.S. at 158; FEC v. National Right to Work Comm., 

459 U.S. at 210. Here, the identity of EMILY’s List as a federal political committee is highly 

relevant. 

As explained supra pp. 20-21, the major purpose of EMILY’s List, like that of all federal 

political committees, is by definition federal campaign activity. The same could not be said of 

WRTL as a corporation. As a consequence, the requirements in the Commission’s allocation 

regulations — such as the provision requiring administrative costs to be paid with at least 50% 

federal dollars — are entirely reasonable in light of the presumption inherent in the Supreme 

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Court’s “major purpose” construction and the Commission’s own interpretation of “political 

committee.”37 

Lastly, unlike WRTL, EMILY’s List has brought a facial challenge. The burdens of 

proof and persuasion differ markedly in as-applied challenges and facial challenges. The 

Supreme Court in WRTL placed a heavy burden on the government, but, as the Court clearly held 

in McConnell, the plaintiff — not the government — bears the major burden in a facial 

challenge. See McConnell, 540 U.S. at 207. Thus, EMILY’s List must carry the “heavy burden” 

of proving that the regulations at issue here are overbroad. Id. As we have shown, however, 

EMILY’s List, like the plaintiffs in McConnell, has not established that the “application [of the 

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

relative to the scope of the ... [regulations’] plainly legitimate applications.’” Id. (quoting 

Virginia v. Hicks, 539 U.S. 113, 120 (2003) (alterations added)). See also, e.g., New York State 

Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988) (holding that a plaintiff must “demonstrate 

from the text of [the challenged law] and from actual fact that a substantial number of instances 

exist in which the Law cannot be applied constitutionally”); Broadrick v. Oklahoma, 413 U.S. at 

615 (“[P]articularly where conduct and not merely speech is involved, ... the overbreadth of a 

statute must not only be real, but substantial as well ....”). Indeed, aside from a few worst-case, 

hypothetical examples, EMILY’s List has not even attempted to show that the amount of 

protected speech it envisions is in any way “substantial” in relation to the regulations’ “plainly 

legitimate applications.” 

 

37 As explained supra pp. 16-18, the level of judicial scrutiny applicable here is the level for 

cases challenging contribution limits. It is not, contrary to assertions by EMILY’s List (e.g., 

Mem. 19) the more rigorous “strict scrutiny” standard used in WRTL. 

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G. Plaintiff’s Challenge to the Commission’s Authority Ultimately Rests on the 

Flawed Contention that the Regulations Violate Principles of Federalism 

As explained above, EMILY’s List improperly conflates two different distinctions: 

(1) the line dividing electoral advocacy and issue advocacy, and (2) the line dividing federal 

electoral activity and nonfederal electoral activity. Plaintiff’s real target (unlike WRTL’s) is the 

second distinction. Consequently, although EMILY’s List purports to rely on the First 

Amendment, plaintiff’s implicit accusation is that the Commission has gone too far regulating 

nonfederal electoral activity, thereby violating constitutional principles of federalism. See, e.g., 

Mem. 2, 9, 25, 26, 28. Several plaintiffs in McConnell attacked Title I of BCRA (the “soft 

money” restrictions) on that very ground, and the Supreme Court found no merit to their 

argument. McConnell, 540 U.S. at 186-87. For the same reasons, this Court should reject the 

implicit federalism argument of EMILY’s List. 

 The Court in McConnell noted, first, that it had focused its attention in Tenth Amendment 

cases on laws that “commandeer the States and state officials in carrying out federal regulatory 

schemes.” McConnell, 540 U.S. at 186. The Court then stated that, in contrast, Title I of BCRA 

“only regulates the conduct of private parties ... and does not expressly pre-empt state 

legislation.” Id. The Court acknowledged that Title I “prohibits some fundraising tactics that 

would otherwise be permitted under the laws of various States, and that it may therefore have an 

indirect effect on the financing of state electoral campaigns.” McConnell, 540 U.S. at 186. The 

Court concluded, however, that “[t]hese indirect effects do not render BCRA unconstitutional,” 

and observed that “such conflict is inevitable in areas of law that involve both state and federal 

concerns.” Id. at 186-87. 

 Second, the Supreme Court held that Congress had not “overstepped” its power in 

enacting BCRA. “Congress has a fully legitimate interest,” the Court stated, “in maintaining the 

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integrity of federal officeholders and preventing corruption of federal electoral processes through 

the means it has chosen.” McConnell, 540 U.S. at 187.38 The Commission’s regulations are 

fully consistent with this interest, and EMILY’s List has not suggested that they impose any 

“requirements ... upon States or state officials” nor has plaintiff otherwise explained how these 

regulations violate “constitutional principles of federalism.” Id. at 186. 

II. THE REMEDY PLAINTIFF SEEKS IS UNSUPPORTED AND UNLAWFUL 

 

 The proposed order accompanying EMILY’s List’s summary judgment motion would 

have the Court hold unlawful and “set aside” the regulations at issue. If this Court were to find 

for plaintiff on the merits, it should reject the request that it set aside the regulations. First, 

[a]s 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. 

Shays v. FEC, 337 F. Supp. 2d 28, 130 (D.D.C. 2004). Second, plaintiff implicitly — and 

mistakenly — assumes that the prior regulations it favors would somehow spring back to life if 

the regulations at issue were vacated. But, as this Court noted in denying preliminary relief in 

the current case, such relief would in fact leave the Commission “in the position of either 

allowing these areas to go unregulated until final resolution of this case, or hastily cobbling 

together an alternative, interim set of regulations.” EMILY’s List, 362 F. Supp. 2d at 59. Thus, 

 

38 In Shays v. FEC, 337 F. Supp. 2d 28, 104 (D.D.C. 2004), this Court cited these passages 

in McConnell in criticizing the Commission for paying too much heed to federalism concerns. 

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even if the Court were to rule in favor of EMILY’s List 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/ Thomasenia P. Duncan 

______________________________________________________________________________________________________________________________ 

Thomasenia P. Duncan 

General Counsel 

 /s/ David Kolker

______________________________________________________________________________________________________________________________ 

David Kolker 

Acting Associate General Counsel 

(D.C. Bar # 394558) 

 /s/ Harry J. Summers 

_____________________________________________________________________________________________________________________________ 

Harry J. Summers 

Acting Assistant General Counsel 

 /s/ Vivien Clair _____________________________________________________________________________________________________________________________ 

Vivien Clair 

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 

October 9, 2007 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 59 of 79
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, ) 

) 

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

 ) 

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) STATEMENT OF 

) MATERIAL FACTS 

 Defendant. ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

STATEMENT OF MATERIAL FACTS AS TO WHICH 

THERE IS NO GENUINE ISSUE 

 Pursuant to Fed. R. Civ. P. 56(c) and LCvR 7(h) (D.D.C.), defendant Federal Election 

Commission (“Commission” or “FEC”) presents the following statement of material facts as to 

which there is no genuine issue and that entitle the Commission to judgment as a matter of law:

A. The Parties 

1. The Commission 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. 

2. 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). 

 3. Plaintiff EMILY’s List has been registered with the Commission as a multicandidate nonconnected political committee for more than 20 years. Complaint, filed Jan. 12, 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 60 of 79
2

2005 (“Complaint”), ¶ 10; Plaintiff’s Statement of Material Facts, filed Sept 14, 2007, ¶¶ 20 & 

25. See also 2 U.S.C. §§ 431(4)(A), 433(a), 441a(a)(4); 11 C.F.R. § 106.6(a). 

4. EMILY’s List has separate bank accounts to fund its federal (“hard money”) and 

nonfederal (“soft money”) activities, pursuant to 11 C.F.R. § 102.5(a). Complaint ¶ 10. 

5. In the 2001-02 election cycle, EMILY’s List raised more than $15.5 million in 

federal contributions. In this cycle, EMILY’s List raised well over 5.5 million in non-federal 

funds. See http://herndon1.sdrdc.com/cgi-bin/cancomsrs/?_02+C00193433 data from FEC Web 

Site) (Exh. 20). In this cycle, EMILY’s List reported total federal disbursements of over $17.2 

million, and total allocated spending of $11.2 million, which was financed with approximately 

$5.6 million in federal funds and $5.5 million in nonfederal funds. See EMILY’s List, Form 3X 

Year-End 2001, available at http://query.nictusa.com/cgi-bin/dcdev/forms/C00193433/24873/; 

EMILY’s List, Form 3X Year-End 2002, available at http://query.nictusa.com/cgibin/dcdev/forms/C00193433/45037/. 

6. In the 2003-04 election cycle, EMILY’s List raised more than $25 million in 

federal contributions. In this cycle, EMILY’s List also raised well over $8 million in non-federal 

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

Web Site) (Exh. 1). In this cycle, EMILY’s List reported total federal disbursements of 

approximately $26 million, and total allocated spending of $16.2 million, which was financed 

with approximately $8.1 million in federal funds and $8.1 million in nonfederal funds. See 

EMILY’s List, Form 3X Year-End 2003, available at http://query.nictusa.com/cgibin/dcdev/forms/C00193433/105765; 

EMILY’s List, Form 3X Year-End 2004, available at http://query.nictusa.com/cgibin/dcdev/forms/C00193433/161030/. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 61 of 79
3

7. In the 2005-06 election cycle, EMILY’s List again raised over $25 million in 

federal contributions. In this cycle, EMILY’s List also raised well over $7.8 million in nonfederal funds. See http://herndon1.sdrdc.com/cgi-bin/cancomsrs/?_06+C00193433 (data from 

FEC Web Site) (Exh. 2). In this cycle, EMILY’s List reported total federal disbursements of 

over $26 million and total allocated spending of 15.3 million, which was financed with 

approximately $7.5 million in federal funds and $ 7.8 million in nonfederal funds. See EMILY’s 

List, Form 3X Year-End 2005, available at http://query.nictusa.com/cgibin/dcdev/forms/C00193433/201801/; EMILY’s List, Form 3X Year-End 2006, available at 

http://query.nictusa.com/cgi-bin/dcdev/forms/C00193433/285957/.

8. So far in the 2007-08 election cycle, EMILY’s List has reported raising over $8.1 

million in federal contributions and well over $2.9 million in nonfederal funds through August 

31, 2007, the first third of the two-year reporting cycle. See http://herndon1.sdrdc.com/cgibin/cancomsrs/?_08+C00193433 (Data from FEC Web Site) (Exh. 19). In this same eightmonth period, EMILY’s List reported total federal disbursements of over $7.1 million, and total 

allocated spending of $5.9 million, which was financed with $2.9 million in federal funds and 

$2.9 million in nonfederal funds. See http://query.nictusa.com/cgibin/dcdev/forms/C00193433/303798/(Data from FEC Web Site). 

9. EMILY’s List’s fundraising and spending totals in the first third of the 2005-2006 

and 2007-2008 election cycles exceed the totals at the same point in the comparable election 

cycles of 2001-2002 and 2003-2004, respectively. In the presidential cycles in 2003-04 and 

2007-08, EMILY’s List raised, respectively, $8 and $8.1 million in federal funds through the 

first third of the cycles. See http://query.nictusa.com/cgi-bin/dcdev/forms/C00193433/95568/ 

(2003 data from FEC Web Site) and supra ¶ 8 (2007 data). In the first eight months of those 

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4

same two cycles EMILY’s List engaged in, respectively, $1.8 and $5.9 million of total allocated 

spending (including federal and nonfederal dollars). Id. In the non-presidential cycles in 2001-

02 and 2005-06, EMILY’s List raised, respectively, $7.3 and $8.7 million in federal funds 

through the first third of the cycles. See http://query.nictusa.com/cgi-bin/dcdev/forms/ 

C00193433/20038/ (2001 data from FEC Web Site); http://query.nictusa.com/cgibin/dcdev/forms/C00193433/186639/ (2005 data from FEC Web Site). In the first eight months 

of those same two cycles EMILY’s List engaged in, respectively, $3.1 and $3.8 million of total 

allocated spending (including federal and nonfederal dollars). Id.

10. EMILY’s List has recently stated that it, as “the nation’s largest political action 

committee, continues to be the dominant financial resource for Democratic candidates.” See

EMILY’s List, Press Release, dated February 1, 2007, available at 

http://www.emilyslist.org/newsroom /releases/20070201.html. “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. 3). 

 11. 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.1

 During the ten years leading up to the promulgation of the regulations at issue 

here, EMILY’s List never reported less than a 50% allocation ratio for these activities or for 

 

1

 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 nonfederal candidates. 11 C.F.R. 

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

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direct federal candidate support.2

 See EMILY’s List, 362 F. Supp. 2d at 58 (finding that plaintiff 

does not dispute these facts). In fact, at the end of the 1995-96 election cycle EMILY’s List 

reported a final allocation ratio of 70% federal candidate support and 30% nonfederal.3 

B. The Commission’s Rulemaking Regarding Political Committee Status, 

Expenditures, Contributions, and Allocation 

1. The Notice of Proposed Rulemaking 

12. 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. 11,736 (March 11, 2004) (Exh. 7). 

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

15, 2004. Id. 

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

13. 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. 11,743. 

14. 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 

 

2

 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. 5.

3

 Available at http://query.nictusa.com/cgi-bin/fecimg/?_97031750959+0, at 92 (Exh. 6).

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federal candidate are contributions. 69 Fed. Reg. 11,757 (proposed section 100.57 as a part of 

Alternative 1-B) (Exh. 7). 

15. 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. 11,743. 

16. The Commission also sought public comment regarding other possible standards 

that could be applied to solicitations: 

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. 11,743. 

b. Proposed Changes to 11 C.F.R. § 106.6: Allocation of 

Expenses 

 17. 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. 11,753. 

18. 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 

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7

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?

 19. 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. 11,754 

(Exh. 7). 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. 

 20. 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. 11,753. 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. 11,753. 

21. 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 (“PASO”), or expressly advocate the election or defeat of, a clearly identified federal 

candidate and a political party. 69 Fed. Reg. 11,755. 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 

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8

2003-37, which evaluated some post-BCRA allocation questions by a political committee under 

the rules in 11 C.F.R. § 106.6. Id. 

2. Public Comment and Hearings on the NPRM 

 22. 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. See Administrative Record, filed May 4, 2005, 

Index of Documents at 3-60 and AR Disks 2-5. 

 23. 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 

favor of a simpler system. See, e.g., Comments of Public Citizen, at 12-13 (April 5, 2004) 

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

24. Other commenters supported specific percentages to be used as a federal 

minimum for administrative expenses (see Comments of Democracy 21, Campaign Legal 

Center, Center for Responsible Politics, at 17-19 (April 5, 2004) (Exh. 10)), or simply urged the 

Commission to require a “significant minimum hard money share.” See Comments of Senators 

McCain and Feingold, Representatives Shays and Meehan, at 3 (April 9, 2004) (Exh. 11). 

25. At least one commenter suggested that public communications should be 

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

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9

candidates were included in the communication. See Comments of Republican National 

Committee, at 7 (April 5, 2004) (Exh. 9). 

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

27. 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. 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. 14). 

28. Other witnesses testified that the current allocation scheme permitted 

circumvention of the rules in BCRA. See, e.g., Apr. 14 Tr. at 158-59 (testimony of Craig 

Holman) (stating that nothing in FECA justifies any allocation ratio) (Exh. 14); Transcript of 

Public Hearing 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. 15). 

29. Witnesses specifically discussed the possibility of a 50% federal minimum for 

allocated expenses. 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. 15); id. at 80 (testimony of Lawrence Noble) (“We do suggest 

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10

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”). 

30. Witnesses also addressed the Commission’s proposal that money given in 

response to solicitations stating funds received would be used to support or oppose a federal 

candidate would be “contributions” under FECA. 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. 15). 

31. During the rulemaking at issue here, EMILY’s List failed to file comments before 

April 9, 2004, the deadline for rulemaking comments. 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. 

3. The Final Rules 

 32. 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. 68,056 (Nov. 23, 2004) (Exh. 13). 

 33. 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. 68,056. 

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. 68,066. 

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11

34. The Commission also adopted final rules changing the allocation scheme for 

nonconnected committees in 11 C.F.R. 106.6. 69 Fed. Reg. 68,059-63. 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. 68,060. 

35. 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. 68,062. 

36. A new section 11 C.F.R. § 106.6(f), which governs certain public 

communications and voter drives, was also adopted. 69 Fed. Reg. 68,063. 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. 68,063; 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. 68,063; 11 

C.F.R. § 106.6(f)(2). Public communications and voter drives that refer to both federal and 

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

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12

accounts, regardless of whether they also mention political parties. 69 Fed. Reg. 68,063; 11 

C.F.R. § 106.6(f)(3). 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker 

David Kolker 

Acting Associate General Counsel 

(D.C. Bar # 394558) 

/s/ Harry J. Summers 

Harry J. Summers 

Acting Assistant General Counsel 

/s/ Vivien Clair 

Vivien Clair 

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 

October 9, 2007 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 71 of 79
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, ) 

) 

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

 ) 

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) STATEMENT OF 

) GENUINE ISSUES AND 

 Defendant. ) OBJECTIONS

DEFENDANT FEDERAL ELECTION COMMISSION’S 

STATEMENT OF GENUINE ISSUES 

AND OBJECTIONS 

 Pursuant to Local Civil Rules (“LCvR”) 7(h) and 56.1, defendant Federal Election 

Commission (“FEC” or “Commission”) submits the following Statement of Genuine Issues and 

Objections to Plaintiff’s Statement of Material Facts, filed September 14, 2007 (“Plaintiff’s 

Statement”). This statement contains the Commission’s responses and objections to the evidence 

adduced by plaintiff in support of its motion for summary judgment. 

 The Commission generally objects to Plaintiff’s Statement because much of the factual 

material Plaintiff submits was not part of the Administrative Record in the rulemaking in which 

the Commission promulgated the regulations at issue here. This material is irrelevant and 

immaterial to the merits of this action because it was not before the Commission when the 

agency conducted that rulemaking. Such extra-record evidence cannot be considered because 

courts must “confine their review to the ‘administrative record’” when they review agency 

decisions. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996); IMS, P.C. v. 

Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (“It is a widely accepted principle of administrative 

law that the courts base their review of an agency’s actions on the materials that were before the 

agency at the time its decision was made”); see Amfac Resorts, L.L.C. v. Dep’t. of Interior, 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 72 of 79
2

143 F. Supp. 2d 7, 11 (D.D.C. 2001) (“The rationale for this rule derives from a commonsense 

understanding of the court’s functional role in the administrative state. . . . ‘Were courts 

cavalierly to supplement the record, they would be tempted to second-guess agency decisions in 

the belief that they were better informed than the administrators empowered by Congress and 

appointed by the President. . . . ’”) (quoting Deukmejian v. Nuclear Regulatory Comm’n, 751 

F.2d 1287, 1325-26 (D.C. Cir. 1984), aff’d in relevant parts sub. nom., San Luis Obispo Mothers 

for Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) (en banc)). Because the 

court “should have before it neither more nor less information than did the agency when it made 

its decision,” extra-record evidence should not be considered. IMS, 129 F.3d at 623 (quoting 

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). 

 The Commission also objects to plaintiff’s statement of facts because it contains a series 

of legal arguments. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 

F.3d 145, 153 (D.C. Cir. 1996) (finding it improper to “repeatedly blend[] factual assertions with 

legal argument”). 

 In addition to these general objections, specific responses and objections are presented 

below in numbered paragraphs tracking the numbering scheme in Plaintiff’s Statement. 

 1. This paragraph purports to describe Advisory Opinion 2003-37, a legal document 

that speaks for itself. 

 2. To the extent this paragraph purports to describe Advisory Opinion 2003-37, that 

legal document speaks for itself. To the extent this purported fact is a description by the 

Commission’s staff of an advisory opinion, it is immaterial in this case. 

 3. The Commission admits that “[o]n March 11, the Commission issued a wideranging proposal of new regulations ... [that] addressed a variety of topics ....” To the extent this 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 73 of 79
3

paragraph purports to describe the NPRM issued by the Commission, it describes a legal 

document that speaks for itself. 

 4. This paragraph purports to describe the NPRM and Advisory Opinion 2003-37 

issued by the Commission, legal documents that speak for themselves. 

 5-7. No response. 

 8. FEC’s Statement of Material Facts, ¶¶ 22-30, controverts plaintiff’s assertion that 

the Commission did not receive “significant comment” on the portion of the rulemaking that 

resulted in the regulations subject to challenge in this lawsuit. These facts describe the 

significant and wide ranging comments and testimony the Commission received on the portion 

of the rulemaking addressing the definition of “contribution,” “expenditure,” and the allocation 

requirements for nonconnected committees. As support for this purported fact, plaintiff cites the 

Final Rule and Explanation and Justification (“E&J”), 69 Fed. Reg. 68056, a legal document that 

does not support plaintiff’s purported fact and speaks for itself. 

 9. This paragraph purports to describe regulatory provisions and the E&J, which 

speak for themselves. The Commission further objects to this fact’s statement that the 

regulations “did not address unregistered 527 organizations,” because the regulations the 

Commission promulgated apply to all groups, including Section 527 organizations. 

 10-12. These paragraphs purport to describe regulatory provisions and the E&J, which 

speak for themselves. To the extent these paragraphs contain any factual allegations beyond 

what is in the regulations and E&J, the paragraphs are not supported by any citation, in violation 

of the local rules. See LCvR 7(h) (statement of material facts “shall include references to the 

parts of the record relied on to support the statement”). 

 13-14. No response. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 74 of 79
4

 15-17. These paragraphs describe an advisory opinion request EMILY’s List made to the 

Commission and an advisory opinion issued by the Commission. These legal documents speak 

for themselves. To the extent these paragraphs contain legal argument, such argument is not 

properly included in a LCvR 7(h) Statement. 

 18. This paragraph describes an advisory opinion request EMILY’s List made to the 

Commission and an advisory opinion issued by the Commission. These legal documents speak 

for themselves. To the extent this paragraph contains legal argument, such argument is not 

properly included in a LCvR 7(h) Statement. This fact is controverted by the record, which 

shows that the communication was not “solely on a ballot initiative,” but also included a 

reference to a political party within the meaning of 11 C.F.R. § 106.6(c). 

 19. This paragraph describes an advisory opinion request EMILY’s List made to the 

Commission and an advisory opinion issued by the Commission. These legal documents speak 

for themselves. To the extent this paragraph contains legal argument, such argument is not 

properly included in a LCvR 7(h) Statement. 

 20-24. The Commission does not dispute that EMILY’s List is a political organization 

that works to elect women to office. These paragraphs rely on the Declaration of Britt Cocanour, 

filed September 14, 2007, as their lone source of evidentiary support. The Commission objects 

to these facts and the Cocanour Declaration as conclusory, speculative, and without foundation. 

These facts, reproduced verbatim from the declaration, contain conclusions that the declarant 

does not state are based upon her personal knowledge. See Greene v. Dalton, 164 F.3d 671, 675 

(D.C. Cir. 1999) (“[a]ccepting such conclusory allegations as true, therefore, would defeat the 

central purpose of the summary judgment device”). 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 75 of 79
5

 25. The Commission does not dispute that EMILY’s List is registered as a political 

committee with the Commission and that the organization’s activities are subject to the source 

and amount restrictions in the Federal Election Campaign Act. 

 26. No response. 

 27-28. To the extent these paragraphs describe specific regulations, those regulations 

speak for themselves. To the extent the paragraphs contain legal conclusions, they are not 

properly included in a LCvR 7(h) Statement. The Commission objects to these paragraphs to the 

extent they suggest, inaccurately, that the Commission’s rules “prevent” EMILY’s List from 

spending non-federal funds on non-federal activities. The Commission also objects to these 

paragraphs to the extent they contain speculation about EMILY’s List’s future activities. 

 29-30. The Commission objects to these facts as conclusory, speculative, and without 

foundation, because they rely upon the Cocanour Declaration. See supra ¶¶ 20-24. 

 31. The Commission objects to this purported fact because it is vague, ambiguous, 

and conclusory. This paragraph provides no factual support, relying on a conclusory statement 

in a declaration. The paragraph fails to specify whether the “graduates” it describes worked 

solely on nonfederal races, or whether they spent significant time on federal races or generic 

campaign activity as well. The Commission also objects to this paragraph, for the same reasons 

listed above, because it relies upon the Cocanour Declaration. See supra ¶¶ 20-24. 

 32. To the extent this paragraph describes specific regulations, those regulations 

speak for themselves. To the extent this paragraph is a legal conclusion, it is unsupported and 

not properly included in a LCvR 7(h) Statement. The Commission also objects to this fact as 

conclusory, speculative, and without foundation, because it relies upon the Cocanour 

Declaration. See supra ¶¶ 20-24. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 76 of 79
6

 33. The Commission objects to this statement because it is vague, ambiguous, 

unsupported, and speculative. In addition, the evidence before the Court controverts this 

statement, because it shows that in the past EMILY’s List did not exceed a fifty percent 

allocation ratio even before the challenged regulations went into effect. See FEC Fact ¶ 11. The 

Commission objects to this fact as conclusory, speculative, and without foundation, because it 

relies upon the Cocanour Declaration. See supra ¶¶ 20-24. 

 34. The Commission objects to this fact as conclusory, speculative, and without 

foundation, because it relies upon the Cocanour Declaration. See supra ¶¶ 20-24. 

 35-36. The Commission objects to these purported factual statements as vague, 

speculative, and without foundation, because they rely upon the Cocanour Declaration. See

supra ¶¶ 20-24. 

 37. To the extent this paragraph describes specific regulations those provisions speak 

for themselves. To the extent this paragraph contains legal conclusions it is not properly 

included in a LCvR 7(h) Statement. 

 38-42. The Commission objects to these facts as conclusory, speculative, and without 

foundation, because they rely upon the Cocanour Declaration. See supra ¶¶ 20-24.

 43. This paragraph describes regulations that speak for themselves and includes legal 

conclusions that are not properly included in a LCvR 7(h) Statement. The Commission also 

objects to these facts as conclusory, speculative, and without foundation, because they rely upon 

the Cocanour Declaration. See supra ¶¶ 20-24. The Commission further objects because under 

11 C.F.R. 106.6(f), federal political committees like EMILY’s List are not “forced” to stop 

identifying federal candidates in their advertising, but are merely required to finance public 

communications that clearly identify federal candidates at least in part with federal funds. 

 44. No response. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 77 of 79
7

 45. The Commission objects to this fact as conclusory, speculative, and without 

foundation, because it relies upon the Cocanour Declaration. See supra ¶¶ 20-24. This 

paragraph is vague and speculative to the extent it purports to state what EMILY’s List “would 

have preferred” or “would have included” under some other undefined regulatory structure. The 

Commission also objects to the paragraph as conclusory, speculative, without foundation, and in 

violation of Fed. R. Civ. P. 26(a)(2), to the extent it purports to offer expert opinion testimony 

regarding which methods of advertising are “more effective” and regarding the “purpose” of 

some undefined category of political advertising. 

 46. The Commission objects to this paragraph because it contains legal conclusions 

that are not properly included in a LCvR 7(h) Statement. The Commission also objects to this 

paragraph to the extent it suggest that the Commission’s rules require EMILY’s list to forego any 

communications or use specific language in any communication. The Commission also objects 

to these facts as conclusory, speculative, and without foundation, because they rely upon the 

Cocanour Declaration. See supra ¶¶ 20-24. 

 47-48. The Commission objects to these facts as conclusory, speculative, and without 

foundation, because they rely upon the Cocanour Declaration. See supra ¶¶ 20-24. The 

Commission further objects because under 11 C.F.R. 106.6(f), federal political committees like 

EMILY’s List are not “prevented” from including references to federal candidates, and are not 

“prohibited from spending nonfederal funds to influence nonfederal elections,” but are merely 

required to finance public communications that clearly identify federal candidates at least in part 

with federal funds. 

 49. The Commission objects to this fact as conclusory, speculative, and without 

foundation, because it relies upon the Cocanour Declaration. See supra ¶¶ 20-24. 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 78 of 79
8

The Commission also objects to this paragraph to the extent it states, inaccurately, that EMILY’s 

List has been and will be “impeded” in raising and spending funds for nonfederal purposes by 

Commission regulations, which merely implement federal contribution restrictions. 

Furthermore, this paragraph is controverted by the record (FEC Facts 5-9) which shows that the 

plaintiff’s fundraising and spending has steadily increased over comparable election cycles since 

these rules went into effect (i.e., comparing presidential cycles to presidential cycles, nonpresidential cycles to non-presidential cycles). 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker 

David Kolker 

Acting Associate General Counsel 

(D.C. Bar # 394558) 

/s/ Harry J. Summers 

Harry J. Summers 

Acting Assistant General Counsel 

/s/ Vivien Clair 

Vivien Clair 

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 

October 9, 2007 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 35 Filed 10/09/2007 Page 79 of 79