UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

EMILY'S LIST,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

CIVIL ACTION NO. 05-00049-CKK

PLAINTIFF'S STATEMENT OF MATERIAL FACTS AS TO WHICH 

THERE IS NO GENUINE ISSUE

Pursuant to LCvRs 7(h) and 56.1, Plaintiff EMILY's List hereby submits the 

following statement of material facts as to which there is no genuine issue, to accompany its 

Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. This is a facial challenge 

under the Administrative Procedure Act, 5 U.S.C. § 500 et seq., and the First Amendment to 

the United States Constitution, to regulations promulgated by the Federal Election 

Commission ("FEC" or "the Commission").

1. On February 19, 2004, the Commission issued Advisory Opinion 2003-37. In this 

opinion, the Commission restructured the allocation formulas, requiring allocating 

committees to pay entirely with federal funds for any public communication that "promotes, 

supports, attacks, or opposes" federal candidates. The Commission also built this requirement 

into the formulas for calculating allocations, so that any communication of this kind –

promoting, supporting, attacking or opposing a federal candidate – would be included in the 

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tally of "direct" federal candidate support used to determine the federal share of allocated 

expenses. (AO 2003-37 (Feb. 19, 2004), attached as Attachment C).

2. The Commission's Office of General Counsel later described this advisory opinion as 

a "substantial reinterpretation of the 'allocation' rules." (FEC Agenda Doc. No. 04-48, at 7 

(May 11, 2004).

3. On March 11, the Commission issued a wide-ranging proposal of new regulations. 

While the regulations addressed a variety of topics, they were structured along two primary 

lines meant to address the concerns raised about the two types of organizations under attack 

in the presidential election. First, the regulations targeted section 527 organizations that were 

not registered with the FEC. Second, the regulations addressed "allocating committees": 

entities – such as EMILY's List – that were registered with the Commission, but that had 

nonfederal accounts as well. See Political Committee Status, 69 Fed. Reg. 11,736 (proposed 

Mar. 11, 2004).

4. The proposed rules, through a revised definition of the FECA term "political 

committee," see 2 U.S.C. § 431(4)(A), required all section 527 organizations that were 

considered to participate in federal elections in any manner to register with and report to the 

Commission. The proposed rules also codified the changes to the allocation system first 

addressed in Advisory Opinion 2003-37, including inclusion of the "promotes, supports, 

attacks, or opposes" standard. The proposed rules further treated as federal contributions 

those funds received in response to a fundraising solicitation expressly advocating the 

election or defeat of federal candidates. (Id.)

5. The Commission set what the FEC’s General Counsel aptly described as "a highly 

accelerated schedule for this important and far-reaching rulemaking, targeting approval of 

final rules just two months after publication of the NPRM." FEC Agenda Doc. No. 04-48, at 

4. Comments were due by April 9, and public hearings with thirty-one witnesses were held 

on April 14 and 15. 69 Fed. Reg. 11,736.

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6. Even with fewer than 30 days to address the "important and far-reaching rulemaking," 

more than 100,000 comments were submitted, "far exceeding the number of comments 

received in connection with any of the rulemakings to implement BCRA." FEC Agenda 

Doc. No. 04-48, at 8. 

7. This was the first and last noticed opportunity for members of the public to comment 

on the rulemaking. (Political Committee Status, Definition of Contribution, and Allocation 

for Separate Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 68,056 (Nov. 

23, 2004)).

8. The only portions of the proposed rules that received significant comment were those 

targeting section 527 organizations that did not register and report with the FEC. (Id.)

9. The final rules, approved on October 28, did not include a revised definition of 

"political committee," and did not address unregistered 527 organizations. (Id.)

10. Moreover, the new rules focused not on whether communications "promoted, 

supported, attacked, or opposed" candidates, but whether they referred to candidates. (Id.)

11. In addition, the allocation system for administrative expenses and voter drives was 

reduced to a system of threshold amounts. For example, a public communication that 

referred to a political party, but to no clearly identified candidates at all, had to be financed 

with no less than fifty percent federally regulated funds. The new rules took no account of a 

political committee’s operating history or actual record of involvement in supporting federal 

and nonfederal candidates. (Id.)

12. The final rules also contained a new definition of "contribution" unlike that contained 

in the proposed rules, which defined contributions as funds received in response to a 

solicitation that "indicates that" any portion of the funds will be used to "support or oppose" 

federal candidates. (Id.)

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13. The final rules, with explanation and justification and several additional amendments, 

were approved on October 28, 2004, and published on November 23, 2004. (Id.; FEC 

Agenda Doc. No. 04-102, at 3-5 ( Nov. 18, 2004) (minutes of Oct. 28, 2004 meeting)).

14. On August 18, 2005, EMILY's List submitted an Advisory Opinion Request to the 

FEC asking, inter alia, whether a fundraising solicitation to raise money to support state 

legislative candidates of state legislative candidates, referring to Senator Debbie Stabenow 

but not to any clearly identified non-federal candidates, would have to be paid for using 

entirely federal funds. EMILY's List was proposing to include her in a public 

communication distributed outside her state, for "the purpose of stressing the importance of 

successes for women in State elective office." (See FEC Adv. Op. Request 2005-13 (Aug. 

18, 2005), attached at Attachment D). 

15. EMILY's List noted: "The communication will not be distributed in the Senator's 

home state of Michigan, will not reference the Senator's candidacy for re-election, and will 

not solicit funds for her campaign." (AO 2005-13 (Oct. 20, 2005), attached as Attachment 

E). 

16. The FEC concluded that the communication must be paid for using entirely federal 

funds "[r]egardless of its context." (Id.). 

17. Moreover, the FEC stated, "This analysis does not change if a candidate for election 

in a year other than 2006 [the year of the communication, when Senator Stabenow was 

running for re-election] were to be substituted for Senator Stabenow in EMILY's List public 

communication . . . ." (See id.).

18. EMILY's List also proposed to fund a communication solely on a ballot initiative, 

including in it an appeal to Democrats. The FEC ruled that this communication would 

trigger a 50% federal financing requirement. It held: "A discussion of a State legislative 

initiative or referendum does not alter the application of these rules." (Id.).

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19. EMILY's List also asked whether three solicitations, all of which refer to Senator 

Stabenow but not to any clearly identified non-federal candidates, would require that the 

funds received in response be treated as federal contributions. The FEC ruled that two of the 

three communications did require that all of the funds received in response be treated as 

federal contributions, including a solicitation containing only this statement: "We are asking 

for your support, so that EMILY's List can support candidates, who, like me, could never 

succeed as women in politics without the combined commitment of all [of] us." (Id.)

20. EMILY's List is a political organization whose purpose is to recruit and fund viable 

women candidates for local, state and federal office; to help them build and run effective 

campaign organizations; and to mobilize women voters to help elect progressive candidates 

across the country. (B. Cocanour Aff. ¶ 2).

21. EMILY’s List identifies viable opportunities to elect pro-choice Democratic women 

to local, state and federal office, recruits qualified candidates, trains them to be effective 

fundraisers and communicators, and works with them throughout the campaign to make sure 

that they are executing winning strategies. (Id. ¶ 3).

22. EMILY's List also works through its Women Vote! Program to mobilize women 

voters for local, state and federal elections through broadcast advertising, web sites, direct 

mail and personal voter contact. (Id. ¶ 4).

23. EMILY's List was founded in 1985. At that time, no Democratic woman had ever 

been elected to the U.S. Senate in her own right, no woman had ever been elected governor 

of a large state, and the number of Democratic women in the U.S. House had declined to 

twelve. (Id. ¶ 5).

24. Since 1985, EMILY's List has helped to elect sixty-eight Democratic women to 

Congress, thirteen to the U.S. Senate, eight to governorships, and over 350 to other state and 

local offices. (Id. ¶ 6).

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25. The federal account of EMILY's List is a nonconnected political committee that is 

registered with, and reports to, the Federal Election Commission. (Id. ¶ 7).

26. For the purpose of raising and disbursing funds for nonfederal elections, EMILY's 

List also maintains a nonfederal account. This account accepts funds from sources, and in 

amounts, that the states authorize for use in supporting local and state candidates, but that 

may not be permissible under federal campaign finance law for the support of federal 

candidates. (Id. ¶ 8).

27. Because of the rules published at 69 Fed. Reg. 68,056, EMILY's List is required to 

devote funds from its federal account to pay for fifty percent of its administrative expenses, 

generic voter drives, and public communications that do not refer to clearly identified federal 

or nonfederal candidates. (Id. ¶ 9).

28. These rules prevent EMILY's List from spending a higher proportion of nonfederal 

funds on activities which exclusively or predominantly reflect nonfederal electoral purposes.

(Id. ¶ 10).

29. For example, among EMILY's List's administrative expenses is a program called 

Campaign Corps, which trains young people in campaign skills and assists in placing them 

on campaigns. Campaign Corps is a unique grassroots program dedicated to politically 

empowering young people. Each year, EMILY's List trains talented individuals just out of 

college at an intense week-long Campaign School and then places them on campaigns for the 

last 3 months of the campaign. (Id. ¶ 11).

30. In odd-numbered years such as 2007, there are no regularly scheduled federal races 

on the ballot; therefore, the vast majority of the students are placed on campaigns for state 

and local office in New Jersey and Virginia, which hold elections in these years. In even 

years, graduates are placed with both federal and nonfederal campaigns. (Id. ¶ 12).

31. During the 2006 election cycle, 77% of the graduates trained by the program 

ultimately worked on nonfederal races. (Id. ¶ 13).

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32. The rules published at 69 Fed. Reg. 68,056 requires EMILY's List to pay at least half 

of the expenses of the Campaign Corps with funds from EMILY's List's federal account. (Id.

¶ 14).

33. Were it not for these rules, EMILY's List would pay for this expense with a higher 

proportion of nonfederal funds, to reflect its predominantly nonfederal purpose. (Id. ¶ 15).

34. EMILY's List will continue to sponsor the Campaign Corps during the 2007-2008 

electoral cycle. (Id. ¶ 16).

35. EMILY's List has drawn national attention for its success in electing clearly identified 

federal candidates. These victories have been a powerful inducement in branding EMILY's 

List as an effective political organization. The national reputation of the committee 

encourages persons to donate to EMILY's List's nonfederal programs, because donors are 

confident that if EMILY's List has succeeded with the election of federal candidates in highprofile national elections, it possesses the skills and resources required for success in local 

and state elections as well. (Id. ¶ 17).

36. EMILY's List has also found that the use of the names, association with EMILY's List 

and endorsements of certain well-known federal candidates and officeholders are uniquely 

effective at raising funds for EMILY's List and its efforts on behalf of federal and nonfederal 

candidates. These candidates and officeholders have "superstar" status: the use of their 

names, and their endorsement of EMILY's List's goals, carry power well beyond their home 

states. (Id. ¶ 18).

37. Under the rules published at 69 Fed. Reg. 68,056, EMILY's List must treat as a 

federal contribution the funds received in response to a communication that indicates that any 

portion of the funds received will be used to support or oppose the election of a clearly 

identified Federal candidate. This regulation permits some funds to be treated as nonfederal 

contributions only if a non-federal candidate is also clearly identified, and in no case may 

more than fifty percent of the funds received be treated as nonfederal. (Id. ¶ 19).

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38. Before these regulations, EMILY's List has made solicitations to raise funds for its 

nonfederal programs that refer to clearly identified federal candidates, and that do not refer to 

any clearly identified nonfederal candidates. EMILY's List did deposit some funds received 

as a result of these solicitations in nonfederal accounts. (Id. ¶ 20).

39. As a result of the new regulations, EMILY's List has altered its solicitations in order 

to be able to accept nonfederal funds as a result of a solicitation. It has either eliminated 

references to clearly identified candidates in solicitations, especially "superstar" federal 

candidates, or if it seeks to use some portion of the funds received for its local and state 

elections activity, it has been compelled to add references to clearly identified nonfederal 

candidates. For instance, Attachment A is a solicitation sent by EMILY's List. In its final 

form, it included a reference to Arizona Governor Janet Napolitano. This reference was 

included solely so that some funds could be treated as nonfederal contributions, for use in 

local and state elections. (Id. ¶ 21).

40. Prior to the enactment of the new regulations, EMILY's List would ask for 

contributions by referencing its work on gubernatorial and state legislative races, but it would 

not commonly reference any clearly identified nonfederal candidates but would in 

appropriate cases determine that a reference to a federal officeholder, also a candidate, would 

most effectively persuade the intended target audience. (Id. ¶ 22).

41. EMILY's List has begun to include references to clearly identified nonfederal 

candidates in its solicitations, solely to be able to treat some funds received as nonfederal 

contributions under the new regulations, for use in its activities in local and state elections. 

(Id. ¶ 23).

42. EMILY's List has, in the past, paid for public communications that refer to federal 

candidates, the purpose of which is not to support or oppose federal candidates; for reasons 

relating to the choice of the most effective message, these communications have not often 

referred to any clearly identified non-federal candidates. (Id. ¶ 24).

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43. The new regulations require that communications that merely refer to a clearly 

identified federal candidate must be paid for with at least some federal funds, and with 

entirely federal funds if no clearly identified nonfederal candidate are mentioned—regardless 

of the purpose of the communications and specifically, its relationship to the nonfederal 

program. As a result, even in communications that are not made for the purpose of 

influencing federal elections, EMILY's List is forced to cease to either include references to 

federal candidates, or else to pay for the communications with federal funds. (Id. ¶ 25).

44. For example, Attachment B contains five advertisements supporting two ballot 

initiatives in Missouri that were paid for and distributed by EMILY's List. None of these 

advertisements contain, in their final form, a reference to a clearly identified federal 

candidate. (Id. ¶ 26).

45. EMILY's List would have preferred to include a reference to a clearly identified 

federal candidate in these advertisements to endorse the ballot initiatives while continuing to 

pay for them with nonfederal funds. EMILY's List's communication would have included a 

federal candidate in the state of Missouri, or a "superstar" federal candidate outside the state. 

Ballot initiatives very often present questions of national scope, and endorsements by a 

national spokespeople such as federal-level officeholders or candidates are more effective in 

raising funds for or delivering persuasive messages about those initiatives. These 

communications would not have the purpose of influencing those candidates' elections. (Id. ¶ 

27).

46. The new regulations would have required the advertisements for this ballot initiative 

to be paid with entirely federal funds if they included a reference to a clearly identified 

federal candidate, even though the advertisements would remain focused on the ballot 

initiative. As a result, EMILY's List declined to include such references. (Id. ¶ 28).

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47. EMILY's List will continue to support and oppose state ballot initiatives, and will be 

prevented from including references to federal candidates in its ballot initiative 

communications so long as these regulations remain in effect. (Id. ¶ 29).

48. Because of these rules, EMILY's List is prohibited from spending nonfederal funds to 

influence nonfederal elections or ballot initiatives conducted and financed under state law, if 

it chooses to include references to federal candidates in its communications. (Id. ¶ 30).

49. Overall, the rules have impeded and will impede the ability of EMILY's List to raise 

and spend money in support of and in opposition to candidates for local and state office, or 

for other nonfederal purposes. (Id. ¶ 31).

Respectfully submitted,

Dated September 14, 2007 ______________/s/________________

Robert F. Bauer (D.C. Bar No. 938902)

______________/s/________________

Ezra W. Reese (D.C. Bar No. 487760)

PERKINS COIE LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011

(202) 628-6600

Attorneys for EMILY's List

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