UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

) 

) 

) 1:05cv00049 (CKK) 

) 

) Opposition to Preliminary Injunction

) 

) 

) 

) 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S APPLICATION FOR A PRELIMINARY INJUNCTION 

Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

David Kolker 

Assistant General Counsel 

Vivien Clair 

Harry J. Summers 

Greg J. Mueller 

Leigh G. Hildebrand 

Margaret G. Perl 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, D.C. 20463 

January 24, 2005 (202) 694-1650 
TABLE OF CONTENTS 

 

Page 

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

II. BACKGROUND .................................................................. 2 

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

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

1. Regulation of Solicitations and Allocation of Expenses by 

Nonconnected Political Parties 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 .............................. 6 

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

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

Expenses .......................................................... 

 

 7 

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

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

III. EMILY’S LIST CANNOT CARRY ITS HEAVY BURDEN OF 

SHOWING THAT IT IS ENTITLED TO A PRELIMINARY 

INJUNCTION ..................................................................... 

 

 12 

A. THE REQUIREMENTS FOR A PRELIMINARY INJUNCTION .................. 12 

i
Page 

B. EMILY’S LIST IS UNLIKELY TO SUCCEED ON ITS SUBSTANTIVE CHALLENGE TO 

THE COMMISSION’S REGULATIONS ...................................................... 

 

 13 

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

Not Specify How Federal and Nonfederal Spending Are to be Allocated .... 

 

 

 15 

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

Candidate-Specific Communications Are Subject to Allocation Rules ....... 

 

 17 

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

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

 

 22 

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

Donations to a Political Committee Are “Contributions” Under the Act ..... 

 

 27 

C. EMILY’S LIST IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT IT RECEIVED 

INADEQUATE NOTICE OF THE COMMISSION’S RULEMAKING ........................ 

 

 31 

 1. The Commission Provided Ample Notice of Its Solicitation Regulation, 

11 C.F.R. 100.57 ..................................................................... 

 

 34 

 2. The Commission Provided Ample Notice of Revisions to Its Allocation 

Regulation, 11 C.F.R. 106.6 ........................................................ 

 

 35 

 a. The Fifty Percent Federal Funds Minimum Requirement Was 

Adequately Noticed ............................................................... 

 

 35 

 b. The Allocation Requirements for Communications that Refer to Federal 

Candidates and Political Parties Were Adequately Noticed .................

 

 36 

 3. The Commission Can Rely Upon Data in Publicly Available Disclosure 

Reports ................................................................................. 

 

 37 

D. EMILY’S LIST HAS FAILED TO SHOW IRREPARABLE HARM ......................... 39 

E. A PRELIMINARY INJUNCTION WOULD CAUSE THE PUBLIC, THE COMMISSION, 

AND OTHERS SUBSTANTIAL HARM ..................................................... 

 

 43 

IV. CONCLUSION ............................................................................... 44 

 ii 
FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S APPLICATION FOR A PRELIMINARY INJUNCTION 

I. INTRODUCTION 

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

entirely failed to show that it is entitled to the extraordinary relief it seeks to halt enforcement of 

several regulations recently issued by the Federal Election Commission. Judicial review of 

Commission regulations is highly deferential, and because plaintiff’s case is really about the 

Commission’s policy choices — rather than whether the Commission had the power to 

promulgate allocation rules or clarify when solicitations lead to statutory “contributions” — 

plaintiff’s substantive challenge is unlikely to succeed. Procedurally, the Commission’s 

rulemaking notice was fully adequate to inform plaintiff that the Commission was considering 

regulations like those at issue here, as evidenced by the wide range of comment from the 

regulated community, even though EMILY’s List itself chose not to participate. More 

fundamentally, however, plaintiff has completely failed to demonstrate that it will suffer the 

irreparable harm necessary to justify a preliminary injunction, supplying no specific facts or 

evidence whatsoever about its financial status or its past or future activities. Indeed, EMILY’s 

List has not even demonstrated that the challenged regulations require it to change its operations 

in any way. An injunction, however, would seriously impair the Commission’s ability to 

implement the Federal Election Campaign Act and to provide the regulated community with the 

clear guidance it needs, potentially creating regulatory chaos and real harm to the public.1

 

 

1

 For the Court’s convenience, we have attached as exhibits those documents cited in this 

Opposition. We note that most of the substantive documents in the administrative record, including the 

hearing transcript and the comments that contained nonduplicative substantive remarks, are available at 

http://www.fec.gov/law/law_rulemakings.shtml#political_committee_status. 

1
II. BACKGROUND 

 A. THE PARTIES 

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

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

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

437d(a) and 437g. The Commission is empowered to “formulate policy with respect to” the Act, 

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

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

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

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

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

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

with the Act’s source and amount restrictions, i.e., contributions of up to $5,000 per year from

individuals or other political committees registered with the Commission, but no contributions 

from corporations, labor unions, or foreign nationals. EMILY’s List may spend funds from its 

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

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

only use those funds in connection with nonfederal elections. 

 

2

 A “political committee” is “any committee, club, association, or other group of persons which 

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

expenditures aggregating in excess of $1,000 during a calendar year....” 2 U.S.C. 431(4)(A). A 

“nonconnected committee” is a political committee that is not a party committee, an authorized 

committee of a candidate, or a separate segregated fund (“SSF”) established by a corporation or labor 

organization. 11 C.F.R. 106.6(a). A “multi-candidate committee” is a political committee that has been 

registered at least 6 months, has more than 50 contributors and has made contributions to at least 5 

candidates for federal office. 2 U.S.C. 441a(a)(4). 

2
EMILY’s List is one of the top federal political committees in fundraising, having raised 

more than $25 million in hard money contributions alone during the 2003-04 election cycle.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. 4). During the rulemaking 

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

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

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

than 50% direct federal candidate support.6 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% 

 

3

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

(Exh. 3). 

4

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

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

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

Commission had indicated that it would not consider any late-filed comments, see notice available at 

http://www.fec.gov/press/press2004/20040407advisory.html (Exh. 5); an agency is not required to 

consider untimely comments even if “it has indicated that it would take them into consideration.” 

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

5

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

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

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

cycle’s payments for support of federal and non-federal candidates. 11 C.F.R. 106.6(c)(1) (2004). If the 

actual allocation ratio for these expenses changed from the one estimated at the beginning of the cycle, 

the committee had to file an adjusted Schedule H1 to reflect the revised ratio. See 11 C.F.R. 106.6(c)(2) 

(2004). 

6

 See http://query.nictusa.com/cgi-bin/fecimg/?_24981553382+0, at 6 (latest 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) (collected at Exh. 6). 

3
nonfederal.7

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 “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 Commission applied the 

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

of contributions. In FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995), the 

Second Circuit did that in holding that mailings sent by two nonprofit issue advocacy groups 

constituted solicitations of contributions under FECA because the text of the mailings “leaves no 

doubt that the funds contributed would be used to advocate President Reagan’s defeat at the 

polls, not simply to criticize his policies during the election year.” Id. at 295. 

Since 1977, the Commission has required political committees to allocate their 

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

both federal and nonfederal elections between separate federal and nonfederal accounts. See 

11 C.F.R. 106.1 (1977); FEC Advisory Opinion (“AO”) 1978-10. The Commission’s allocation 

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

 

7

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

4
allocate such costs by creating a comprehensive set of allocation rules, and by enhancing the 

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

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

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

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

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

Between 1990 and 2004, 11 C.F.R. 106.6(c) permitted nonconnected committees (such as 

EMILY’s List) to allocate administrative expenses and the costs of generic voter drives under the 

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

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

committee during the two-year election cycle. Id. Committees were required to estimate and 

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

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

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

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

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

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

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

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

federal and/or nonfederal candidates according to the benefit reasonably expected to be derived 

for each candidate. 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. 

5
2. Bipartisan Campaign Reform Act 

In March 2002, Congress enacted BCRA to substantially amend FECA. As a part of 

these amendments, BCRA defined “public communication” as a specific type of activity covered 

by FECA. See 2 U.S.C. 431(22). With regard to the Commission’s allocation regulations, 

BCRA eliminated allocation for national party committees and substituted a different allocation 

regime for other political party committees, although it explicitly left determination of the 

method of allocation to the Commission. 2 U.S.C. 441i(b)(2)(A). These amendments did not 

address allocation by nonconnected political committees under 11 C.F.R. 106.6. 

3. The Commission’s Rulemaking Regarding Political Committee 

Status, Expenditures, Contributions, and Allocation 

a. The Notice of Proposed Rulemaking 

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

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

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

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

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

15, 2004. Id. 

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

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

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

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

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

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

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

6
Alternative 1-B). The NPRM sought public comment regarding different ways the express 

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

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

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

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

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

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

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

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

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

candidate?

69 Fed. Reg. 11743. 

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

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

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

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

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

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

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

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

nonconnected committees (id.): 

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

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

committees to have non-Federal accounts and to allocate their 

disbursements between their Federal and non-Federal accounts? If an 

organization’s major purpose is to influence Federal elections, should the 

organization be required to pay for all of its disbursements out of Federal 

funds and therefore be prohibited from allocating any of its 

disbursements?

7
A number of proposals in the NPRM would have imposed a minimum federal percentage 

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

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

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

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

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

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

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

candidates. 69 Fed. Reg. 11753. The Commission proposed allocating the costs of public 

communications (now defined by BCRA) that promote or oppose a political party under the 

same method as administrative expenses in 11 C.F.R. 106.6(c). Id. The Commission sought 

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

application of the time/space allocation method, similar to that used in 11 C.F.R. 106.1, and the 

11 C.F.R. 106.6(c) method for these public communications. Id. This proposal was similar to 

the approach used by the Commission in Advisory Opinion 2003-37, which evaluated some postBCRA allocation questions by a political committee under the rules in 11 C.F.R. 106.6. Id. 

b. Public Comment and Hearings on the NPRM 

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

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

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

8
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 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.

8

 Others supported specific percentages to be used as a federal minimum for 

administrative expenses,9 or simply urged the Commission to require a “significant minimum

hard money share.”10 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.

11 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.12 

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.13 Other 

witnesses testified that the current allocation scheme helped to circumvent the rules in BCRA,14

 

8

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

National Committee, at 7-8 (April 5, 2004) (Exh. 14). 9

 See Comments of Democracy 21, Campaign Legal Center, Center for Responsible Politics, at 17-

19 (April 5, 2004) (Exh. 15). 10 See Comments of Senators McCain and Feingold, Representatives Shays and Meehan, at 3 (April 

9, 2004) (Exh. 10). 

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

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

13 See Transcript of Public Hearing regarding Political Committee Status Notice of Proposed 

Rulemaking, April 14, 2004 (“Apr. 14 Tr.”) at 160 (testimony of Craig Holman) (stating the current 

allocation ratio was “a mess” and suggesting “it would certainly be a healthier improvement to at least 

come out with some sort of fixed percentage, that is a clear bright line test of how much illegal money can 

be used in Federal elections”) (Exh. 8). 

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

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

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

9
and specifically discussed the possibility of a 50% federal minimum for allocated expenses.15 

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.16 

c. The Final Rules 

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

Federal Register on November 23, 2004, with an effective date of January 1, 2005. See Political

Committee Status, Definition of Contribution, and Allocation for Separate Segregated Funds and 

Nonconnected Committees, 69 Fed. Reg. 68056 (Nov. 23, 2004) (Exh. 2). 

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

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

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

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

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

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

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

elections.’” 69 Fed. Reg. 68057. 

 

(stating that the funds expended allocation method allowed a “wholesale evasion of the soft money rules 

as applied to political organizations”) (Exh. 9). 

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

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

(Exh. 9); id. at 80 (testimony of Lawrence Noble) (“We do suggest the 50 percent rule. You might be able 

to come up with a different line, but you did come up in the proposed rulemaking with one that’s 50 

percent”). 

16 See, e.g., Apr. 15 Tr. at 207-08 (testimony of Margaret McCormick) (“under the proposed notice 

of rulemaking, the idea is if you solicit contributions and you say that your solicitation specifically says it 

will be used to support or defeat a specific candidate, the idea is that the contributions come back in”) 

(Exh. 9). 

10
The Commission included numerous examples and explained that the standard in 

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

69 Fed. Reg. 68057. If a solicitation meets the standard in 100.57(a), but also refers to at least 

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

solicitation must be treated as contributions under FECA. 69 Fed. Reg. 68058; 11 C.F.R. 

100.57(b)(2). If a solicitation refers to nonfederal candidates but does not indicate that any funds 

received will be used to support or oppose the election of a clearly identified federal candidate, 

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

under that provision. 

The Commission also adopted final rules changing the allocation scheme for 

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

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

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

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

follow, and for the Commission to administer. 69 Fed. Reg. 68060. Revised 11 C.F.R. 106.6 

replaces the funds expended method with a flat 50% federal funds minimum for administrative 

expenses, generic voter drives, and public communications that refer to a political party without 

any reference to clearly identified candidates. 69 Fed. Reg. 68062. A new section 11 C.F.R. 

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

69 Fed. Reg. 68063. Public communications and voter drives that refer to one or more clearly 

identified federal candidates, but to no nonfederal candidates, must be financed with 100% 

federal funds, regardless of whether political parties are also mentioned. 69 Fed. Reg. 68063; 11 

C.F.R. 106.6(f)(1). Conversely, public communications and voter drives that refer to a political 

11
party and only nonfederal candidates may be paid with 100% nonfederal funds. 69 Fed. Reg. 

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

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

accounts, regardless of whether they also mention political parties. 69 Fed. Reg. 68063; 11 

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

in which written instructions are issued to employees or volunteers to refer to a federal candidate 

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

 III. EMILY’S LIST CANNOT CARRY ITS HEAVY BURDEN OF SHOWING THAT 

IT IS ENTITLED TO A PRELIMINARY INJUNCTION 

 A. THE REQUIREMENTS FOR A PRELIMINARY INJUNCTION

“It frequently is observed that a preliminary injunction is an extraordinary and drastic 

remedy, one that should not be granted unless the movant, by a clear showing, carries the burden 

of persuasion.” Boivin v. US Airways, Inc., 297 F.Supp.2d 110, 116 (D.D.C. 2003), quoting 

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in Mazurek). A party seeking a 

preliminary injunction has the burden of showing “(1) a substantial likelihood of success on the 

merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction 

would not substantially harm other interested parties, and (4) that issuance of the injunction is in 

the public interest.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). “The purpose of a 

preliminary injunction is merely to preserve the relative positions of the parties until a trial on the 

merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Accord

Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 

1977). 

The preliminary injunction “factors interrelate on a sliding scale and must be balanced 

against each other.” Davenport v. International Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 

12
1999). In this case, since plaintiff has not made any serious attempt to demonstrate any factor 

other than its likelihood of success (see infra pp. 39-44), plaintiff’s burden on the likelihood of 

success factor is extraordinarily heavy. See Holiday Tours, 559 F.2d at 843 (“The necessary 

‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the 

other factors”).

In this case, plaintiff has plainly failed to satisfy its burden of proof by failing to submit 

any affidavits or documentary evidence. This alone is fatal to its claim of irreparable injury, for 

there is a “requirement” in this Circuit “that the movant substantiate the claim that irreparable 

injury is ‘likely’ to occur.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). 

Plaintiff’s “[b]are allegations of what is likely to occur are of no value since the court must 

decide whether the harm will in fact occur,” id. (emphasis in original). 

It is now too late, after the Commission has filed its opposition, for plaintiff to submit the 

required evidence. See LCv.R 65.1(c) (“An application for a preliminary injunction ... shall be 

supported by all affidavits on which the plaintiff intends to rely.”) Yet “the basis of injunctive 

relief in the federal courts has always been irreparable harm,” Sampson v. Murray, 415 U.S. 61, 

88 (1974) (citation omitted). “Thus, if the movant makes no showing of irreparable injury, ‘that 

alone is sufficient’ for a district court to refuse to grant preliminary injunctive relief.” Societal

Anonima Vina Santa Rita v. United States Dept. of the Treasury, 193 F.Supp.2d 6, 14 (D.D.C. 

2001) (quoting Sampson). 

B. EMILY’S LIST IS UNLIKELY TO SUCCEED ON ITS SUBSTANTIVE CHALLENGE

TO THE COMMISSION’S REGULATIONS

A court may set aside a regulation under the Administrative Procedure Act (“APA”) only 

if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 

13
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 v. Blue Cross

& Blue Shield Ass’n, 848 F.2d 201, 205 (D.C. Cir. 1988). See also Sierra Club v. EPA, 

353 F.3d 976, 978 (D.C. Cir. 2004) (“‘The arbitrary and capricious standard deems the agency 

action presumptively valid, provided the action meets a minimum rationality standard.’” 

(Citation omitted.)). Where the statute simply authorizes the agency to “make ... such rules [...] 

as [are] necessary to carry out the provisions of this Act,” as does 2 U.S.C. 437d(a)(8), the 

“validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably 

related to the purposes of the enabling legislation.’” Mourning v. Family Publications Serv., 

Inc., 411 U.S. 356, 369 (1973) (citation omitted). On a facial challenge, where no regulation at 

issue has “yet been applied in a particular instance” so there is “no record ... concerning the 

[FEC’s] interpretation of the regulation or the history of its enforcement,” the challenger “‘must 

establish that no set of circumstances exists under which the [regulation] would be valid.’” Reno

v. Flores, 507 U.S. 292, 300-301 (1993) (citation omitted). Accord, Building & Constr. Trades

Dept. AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002), cert. denied, 537 U.S. 1171 

(2003). 

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

deference under Chevron U.S.A. v. NRDC, 467 U.S. 837, 842 (1984). Under the “familiar twostep Chevron framework,” the Court “first ask[s] ‘whether Congress has directly spoken to the 

14
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.’” Noramco of 

Delaware v. DEA, 375 F.3d 1148, 1152 (D.C. Cir. 2004) (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)). 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.)). 

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

Not Specify How Federal and Nonfederal Spending Are to be Allocated 

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

political committees, much less mandate a particular allocation framework. In its discussion of 

the exploding use of soft money just before the enactment of BCRA, the Supreme Court 

explained that, “concerning the treatment of contributions intended to influence both federal and 

state elections,” a “literal reading of FECA’s definition of ‘contribution’ would have required 

such activities to be funded with hard money.” McConnell, 540 U.S. at 123. The Court has thus 

15
made clear that the statutory language does not require any allocation for mixed spending that 

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

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

affect federal elections. See id. at 166. Indeed, years ago this Court held in Common Cause v.

FEC, 692 F.Supp. 1391, 1395-96 (D.D.C. 1987), that, although the Act authorizes the 

Commission to permit some allocation of mixed expenditures, the Commission could just as well 

“conclude that no method of allocation will effectuate the Congressional goal that all moneys 

spent by [the political committees at issue] ... be ‘hard money’ under the FECA.” 

Thus, 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 matter of

administrative grace, not statutory entitlement. Before BCRA the Act did not require, or even 

refer to, allocation ratios of “hard” and “soft” money for a political committee’s administrative 

expenses and generic voter drives or, in fact, for any of its “mixed purpose” activities that 

influence federal elections. Congress first addressed the subject 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”). BCRA expressly “gives the FEC responsibility for setting 

the allocation ratio” under that regime. McConnell, 540 U.S. at 163 n.58. Congress did not 

include in BCRA any reference to an allocation ratio for nonconnected committees, and there is 

nothing in the Act or legislative history indicating that it intended by silence to restrict the 

Commission’s discretion to determine allocation ratios for such committees. 

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

Commission did not explicitly state the regulations’ role in preventing corruption is 

16
disingenuous. The Commission has wrestled with allocation issues for almost 30 years;17 the 

rulemaking at issue here is but the latest installment. That extensive history plainly demonstrates 

that all of these allocation formulas are crafted to implement the Act’s contribution restrictions, 

2 U.S.C. 441a, 441b, and to ensure that funds that do not conform to those restrictions are not 

used to influence federal elections. See, e.g., Methods of Allocation Between Federal and NonFederal Accounts, 55 Fed. Reg. 26058 (1990); Allocation of Federal and Non-Federal Expenses, 

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

repeatedly held that the statutory contribution restrictions serve the important governmental 

purposes of preventing corruption and the appearance of corruption and has upheld measures 

intended to foreclose circumvention of those provisions. See, e.g., Buckley, 424 U.S. at 26-28, 

46-47; FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001); FEC v.

Beaumont, 539 U.S. 146, 160 (2003); McConnell, 540 U.S. at 143-45. 

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

Candidate-Specific Communications Are Subject to Allocation Rules 

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

candidate-specific communications to “enhance compliance with the FECA, to simplify the 

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

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

the new regulation establishes 

candidate-driven allocation rules for voter drives and public 

communications that refer to clearly identified Federal or non-Federal 

candidates regardless of whether the voter drive or public communication 

 

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

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

FEC allocation rules for political parties); NPRM, 55 Fed. Reg. 26058, 26059 (1990) (referring to 

allocation regulations promulgated in 1977); AO 1975-21, 40 Fed. Reg. 52794 (1975); AO 1978-10 

[1976-1990 Transfer Binder] Fed. Election Camp. Fin. Guide (CCH) ¶ 5340. 

17
refers to a political party. When the voter drive or public communication 

refers to clearly identified Federal candidates, but no clearly identified 

non-Federal candidates, the costs must be paid for with 100% Federal 

funds. Similarly, when the voter drive or public communication refers to 

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

candidates, the costs may be paid 100% from a non-Federal account. Any 

voter drives or public communications that refer to both clearly identified 

Federal and non-Federal candidates are subject to the time/space method 

of allocation under 11 C.F.R. 106.1. The final rules do not change the 

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

reasonably expected to be derived by each candidate. 

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

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. 

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

SSFs and nonconnected committees like EMILY’s List, which are by definition electorallyfocused entities that receive contributions or make expenditures to influence federal elections. 

See 2 U.S.C. 431(4), (8), (9). As the Supreme Court has interpreted the Act for nearly thirty 

years, 

because the term “political committee” “need only encompass 

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

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

18
a political committee’s expenditures “are, by definition, campaign 

related.” 

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

because of the inherent characteristics of federal political committees like EMILY’s List, the law

presumes that their expenditures are for the purpose of influencing elections. 

 EMILY’s List emphasizes that 11 C.F.R. 106.6(f) requires allocation of certain 

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

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

was well within the Commission’s discretion to conclude that when such a committee’s voter 

drives and public communications refer explicitly to clearly identified federal candidates, they 

should be financed with federal funds or, if they also refer to nonfederal candidates, with a 

proportionate allocation between federal and nonfederal funds. 

The Supreme Court has repeatedly held that different kinds of political entities may be 

regulated differently, to account for their basic nature and the potential for abuse. See

McConnell, 540 U.S. at 158. The challenged regulations of nonconnected committees are not as 

burdensome as the Act’s restrictions on other entities. For example, Congress provided in 

BCRA that national party committees could no longer solicit, receive or spend any nonfederal 

funds, and the Supreme Court upheld those new restrictions despite the acknowledged role 

national party committees regularly play in nonfederal elections. McConnell, 540 U.S. at 142-

61. EMILY’s List, in contrast, can still solicit and spend nonfederal funds, subject to certain 

restrictions to ensure that such funds are not used to influence federal elections. To that end 11 

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

19
public communications and voter drives that refer to a mixture of clearly identified federal and 

nonfederal candidates according to the pre-existing time/space method of 11 C.F.R. 106.1. 18

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

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

those new restrictions, BCRA “prevents donors from contributing nonfederal funds to state and 

local party committees to help finance ‘Federal election activity.’” McConnell, 540 U.S. at 161-

62. Two of the four statutory categories of “Federal election activity” encompass the same kind 

of voter drive activity included in 11 C.F.R. 106.6(f): voter registration, 2 U.S.C. 431(20)(A)(i), 

and get-out-the-vote and generic campaign activity in connection with a federal election, 2 

U.S.C. 431(20)(A)(ii). These provisions regulate the financing of such activities by state and 

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

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

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

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

EMILY’s List poses several hypothetical examples (Mem. 12-17) designed to show that 

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

although, as shown supra pp. 15-16, the statute itself does not require the Commission to 

authorize allocation at all. But plaintiff does not really contend that even the hypothetical 

 

18 EMILY’s List suggests (Mem. 14) that BCRA’s failure to address the prior allocation system

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

that system, indicates that Congress would disapprove of the new 11 C.F.R. 106.6(f). However, the 

complete congressional silence about allocation by nonconnected committees hardly evidences 

congressional intent to prohibit any change, and plaintiff concedes that it “does not preclude the FEC 

from adjusting” the allocation rules. Mere congressional awareness of an agency’s administrative 

interpretation does not preclude the agency from later adopting another reasonable interpretation, see

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

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

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

20
communications it crafted to support its argument cannot have any influence on federal elections. 

Nor does it provide evidence of a single communication or expenditure it has any actual plans to 

make that would be adversely affected by the regulations it challenges. Rather, its arguments are 

largely a rehash of those rejected by the Supreme Court when it upheld BCRA’s regulation of 

electioneering communications. In that context, the Court noted that BCRA’s bright-line 

definition of “electioneering communication” might well regulate “genuine issue ads” because 

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

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

part because corporations and unions who wished to run genuine issue ads in the period before 

an election could still do so in the future “by simply avoiding any specific reference to federal 

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

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

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

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

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

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

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

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

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

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

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

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

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

21
federal and nonfederal. What plaintiff fails to acknowledge, however, is that the same

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

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

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

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

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

Finally, plaintiff’s First Amendment claim 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. 4-

5, 16-17, the entire allocation system implements the contribution restrictions that have been 

held to serve an anti-corruption purpose. Moreover, contrary to plaintiff’s assertion (Mem. 35), 

it is entirely proper for the Commission “to make ease of administration and enforceability a 

consideration in setting its standard,” WorldCom, Inc. v. FCC, 238 F.3d 449, 459 (D.C. Cir. 

2001), and the explanation of 11 C.F.R. 106.6(f) cited not only “administrative convenience” but 

also enhancing compliance. See 69 Fed. Reg. 68060. 

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

Formula for Federal and Nonfederal Shared Expenses 

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

committees of their administrative expenses19 and the costs of their “generic voter drives”

20

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

 

19 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). 20 “Generic voter drives” include voter identification, voter registration, and get-out-the-vote drives 

that urge the public to support candidates of a particular political party, without mentioning a specific 

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

22
candidates, and thus influence both federal and nonfederal elections.21 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. 68056. 

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

drive expenses under former section 106.6(c).” 69 Fed. Reg. 68062.22 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. 68060. 

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

above, the Commission concluded that a sizable majority of the regulated community neither 

used nor understood the complicated funds expended method of allocation, which needed to be 

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

expended method appeared merely to increase the complexity of the necessary calculations. 

 

21 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.)). 22 “Fewer than 2% of all registered nonparty political committees...allocate[ed] administration and 

generic voter drive expenses under former section 106.6(c)....” 69 Fed. Reg. 68062. 

23
Therefore, the Commission embraced instead a workable, easy-to-grasp and easier-to-enforce 

bright-line minimum flat rate method, and gave committees the option of paying for their 

administrative and generic voter drive expenses with a higher percentage of federal funds. 

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

preserving the overall rationale underlying allocation.” 69 Fed. Reg. 68062. As noted supra, p. 

22, it is well settled that simplifying regulation to promote ease of administration and 

enforcement is a valid rulemaking objective. 

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

Commission should determine appropriate allocation ratios.” 69 Fed. Reg. 68062. See also, id. 

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

scientific precision into exclusively federal and exclusively nonfederal components fairly reflects 

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

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

Reg. 68066. EMILY’S List itself has consistently allocated its costs on this same 50% basis. 

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

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

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

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

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

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

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

the Commission’s choice of a 50% “line of demarcation is ... within a zone of reasonableness, as 

distinct from the question of whether the line drawn by the Commission is precisely right.” 

24
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. 

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

support. (Mem. 17-18, 32-33). Plaintiff also again ignores the important fact that the regulation 

applies only to political committees, groups that have as their major purpose the nomination or 

election of candidates. See pp. 18-19, supra. As the Commission explained in the rulemaking, 

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

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

many years ..., and it will continue to do so in the future.” 69 Fed. Reg. 68065. 23 

The Commission’s revision of 11 C.F.R. 106.6(c) is analogous to (though more lenient 

than) Congress’s decision in BCRA to impose a flat 100% federal funds requirement for the 

wages and salaries of state and local party committee employees who dedicate most of their 

compensated time to nonfederal electoral activities, if they spend at least 25% of their time on 

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

Supreme Court upheld the 25% provision as a “‘prophylactic rule’” that prevents circumvention 

of other provisions, McConnell, 540 U.S. at 170-71, a view that plainly does not coincide with 

plaintiff’s concept of how allocation must be done.

 

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

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

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

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

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

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

than $1,000 in a calendar year). That emphasis strongly suggests that the real subject of plaintiff’s 

discontent is that this monetary threshold is too low; if so, plaintiff’s quarrel is with Congress, not the 

Commission. 

25
committees — if there are any — that correctly used the funds expended method and 

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

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

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

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

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

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

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

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

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

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

Thus, the revised regulation, which implements the Act’s contribution restrictions, easily 

satisfies the “less rigorous scrutiny applicable to contribution limits,” McConnell, 540 U.S. at 

141. Plaintiff does not challenge the Commission’s authority to require it to allocate at least a 

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

Commission adopted. 24 As with the underlying contribution limits themselves, however, “‘[i]f it 

is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, 

say, a $2000 ceiling might not serve as well as $1000.’” Buckley, 424 U.S. at 30 (quoting lower 

court). 

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

EMILY’s List is not among them. As discussed supra, pp. 3, 24, EMILY’S List has been able to 

 

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

implicitly concedes that the Commission has statutory authority to establish an allocation regime. See 

2 U.S.C. 437c(b)(1) and 437d(a)(8) (granting the Commission broad rulemaking and policymaking 

powers). 

26
raise far more federal funds than almost any other nonconnected committee, and its president has 

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

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

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

When Donations to a Political Committee Are “Contributions” 

Under the Act 

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

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

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

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

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

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

regulatory standard, and there is little likelihood of plaintiff’s success on this claim.

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

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

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

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

the gift is to be used solely for administrative expenses rather than support of federal candidates. 

California Medical Ass’n v. FEC, 453 U.S. 182, 199 n.19 (1981) (“contributions for 

administrative support clearly fall within the sorts of donations limited by § 441a(a)(1)(C)”) 

(plurality); id. at 203 (Blackman, J., concurring). The purpose of 11 C.F.R. 100.57 is to apply 

the broad statutory definition of contribution in a way that ensures that money given to a political 

committee in response to an appeal to help influence federal elections is subject to the statutory 

contribution limits. 

27
 Despite plaintiff’s assertions (Mem. 18-19) to the contrary, 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 state that the funds received 

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

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

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

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

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

held that contributions “for the purpose of influencing” a federal election would result from a 

solicitation that “[left] no doubt” that funds given in response would be used to help defeat a 

particular candidate in a federal election. Id. at 295. 

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

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

The Commission carefully crafted the rule so as to “leave[] the group issuing the communication 

with complete control over whether its communications will trigger new section 100.57.” Id. 

First, the Commission stressed that this regulation is based only on the language of the 

solicitation itself — the Commission will not use any other statements or solicitations by the 

organization, the timing or targeting of the solicitation, or any other external information to 

evaluate the solicitation. Id. This gives groups soliciting funds complete control over the 

28
wording of their solicitations, without having to worry about whether factors external to the text 

of their message will be construed in conjunction with it. Thus, if a group wants to be sure 

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

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

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

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

solicitation which would not be for federal contributions: 

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

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

Send us money for our important work. 

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

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

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

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

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

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

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

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

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

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

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

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

evidence whatsoever about its own solicitations (or anyone else’s), but instead hypothesizes 

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

29
named federal candidates and the rest will be used to support nonfederal candidates. Again, 

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

solicitations, or simply separate its federal and nonfederal solicitations, to avoid the self-imposed 

problem plaintiff hypothesizes. See 540 U.S. at 206. In any event, plaintiff offers no evidence 

that solicitations like that are actually used by anyone, and merely imagining possible worst-case 

scenarios is insufficient to support a facial challenge like this one. Florida League of

Professional 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.”). 

Next, EMILY’s List complains (Mem. 36) that the “indicates that” standard is not further 

defined in this regulation and the Commission’s examples “exacerbate the confusion.” However, 

the constitutional test for vagueness requires only that a provision “give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited” and “provide explicit standards 

for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). We have 

shown above that 11 C.F.R. 100.57 provides adequate guidance as to what solicitations fall under 

the rule, and makes it easy for a political committee seriously interested in complying with the 

regulation, rather than crafting an argument for challenging it, to structure its solicitations to 

control whether donations received will be federal contributions. The regulation is certainly no 

more vague than the one in 2 U.S.C. 431(20)(A)(iii) (“promotes, supports, attacks, or opposes”) 

upheld by the Supreme Court in McConnell, 540 U.S. at 170 n.64, especially as applied to 

sophisticated political committees like EMILY’S List well versed in campaign finance rules and 

advised by experienced election lawyers. 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. 

30
§ 437f(a)(1), and thereby ‘remove any doubt there may be as to the meaning of the law.’” Id.

(citation omitted). 

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

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

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

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

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

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

C. EMILY’S LIST IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT IT RECEIVED 

INADEQUATE NOTICE OF THE COMMISSION’S RULEMAKING

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

(Mem. 7-8) as a “wide-ranging proposal of new regulations” that “addressed a variety of 

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

document, proposing regulations that were radically different from the regulations in place at the 

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

considering action on a variety of fronts.” Id. Despite all that, EMILY’s List claims that it did 

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

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

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

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

terms or substance of the proposed rule or a description of the subjects and issues involved.” 

5 U.S.C. 553(b)(3) (emphasis added). See also First American Discount Corp. v. CFTC, 

222 F.3d 1008, 1014 (D.C. Cir. 2000); Northeast Maryland Waste Disposal Auth. v. EPA, 

358 F.3d 936, 950-951 (D.C. Cir. 2004). The Commission met this requirement with a belt and 

31
suspenders approach by meeting both prongs of the disjunctive APA notice requirement. 

EMILY’s List focuses exclusively on the option under section 553(b)(3) to describe the “terms

or substance” of the proposed rule, and has thus entirely failed even to argue that the alternative 

type of notice permitted by section 553(b)(3) was not satisfied. 25 

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

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

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

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

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

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

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

for all of its disbursements out of Federal funds and therefore be prohibited from allocating any 

of its disbursements?” In identifying these issues, much was placed on the table for comment, 

ranging from preserving the status quo to requiring spending to be exclusively from federal 

funds. 

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

proposed rule.” Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1058 (D.C. Cir. 2000). 

“If that rigidity were required, the purpose of the notice and comment — to allow an agency to 

reconsider, and sometimes change, its proposal based on the comments of affected persons — 

would be undermined.” Id. If every change required an additional notice and comment period 

“agencies would either refuse to make changes in response to comments or be forced into 

perpetual cycles of new notice and comments periods.” Id. Taking this into account, the D.C. 

 

25 Contrary to plaintiff (Mem. 22-23), the question is only whether the NPRM provided adequate

notice with respect to the provisions at issue here; the APA does not require that notice of one regulation 

proposed receive more or less prominence than others. 

32
Circuit has explained that “[a] final rule will be deemed to be the logical outgrowth of a 

proposed rule if a new round of notice and comment would not provide commenters with ‘their 

first occasion to offer new and different criticisms which the agency might find convincing.’” 

Id. (citation omitted). This requirement is satisfied if the notice is “sufficient to apprise the 

public, at a minimum, that the issue ... was on the table.” Career College Ass’n v. Riley, 

74 F.3d 1265, 1276 (D.C. Cir. 1996). See also American Medical Ass’n v. United States, 

887 F.2d 760, 768 (7th Cir. 1989) (“the relevant inquiry is whether or not potential commentators 

would have known that an issue in which they are interested was ‘on the table’ and was to be 

addressed by a final rule” (citation omitted)). 

Here, EMILY’s List had the same opportunity to comment on each of the new rules as 

the many organizations that actually did provide comments. Compare, Comments of America 

Coming Together, dated April 5, 2004 (Exh. 13) at 36 (characterizing as “extreme” the proposal 

for political committees to “pay for all disbursements out of Federal funds”),26 with Comments 

of Public Citizen, dated April 5, 2004 (Exh. 12) at 12 (“it would be entirely appropriate to go still 

further and end the allocation ratio altogether”). “[T]he fact that others in [plaintiff’s] shoes ... 

did comment on [and propose regulatory alternatives] suggests that they, at least, regarded it as a 

logical outgrowth.” First American Discount Corp., 222 F.3d at 1015. See also Edison

 

26 Americans Coming Together has the same president, Ellen Malcolm (see FEC Exh. 21), as 

EMILY’s List (FEC Exh. 18), and ACT’s comments were presented to the Commission by the same 

counsel that is representing EMILY’S List (see n. 14, p. 10, supra). Thus, EMILY’s List had the same 

actual notice, through Malcolm, as ACT, which both commented and provided testimony on the 

regulation. A party that has actual notice of an agency’s proposal does not have standing to challenge the 

validity of a rule for lack of notice. See 5 U.S.C. 553(b)(3) (providing exception for “persons subject 

thereto” who “otherwise have actual notice” from the formal notice requirements). Moreover, given their 

common leadership, there is no basis for assuming EMILY’S List would have said anything to the 

Commission different from what ACT actually submitted in comments and testimony. See West Virginia

v. EPA, 362 F.3d 861, 869 (D.C. Cir. 2004) (rejecting notice challenge where “the only evidence 

petitioning States offer ... was, in fact, before the EPA”). 

33
Electrical Inst. v. EPA, 2 F.3d 438, 450 (D.C. Cir. 1993) (comments “are at least probative 

evidence that the notice was adequate”). 

1. The Commission Provided Ample Notice Of Its Solicitation 

Regulation, 11 C.F.R. 100.57 

The Commission sought comment on a rule that any funds received in response to 

particular solicitations are “for the purpose of influencing any election for Federal office” and 

therefore “contributions” under FECA. 69 Fed. Reg. 11743. Within the NPRM the Commission 

published a proposed text for the solicitation regulation as well as permutations on that text. A 

comparison of the text in the NPRM and in the final rule shows how one provision was stricken 

and one provision was added, entirely consistent with what the NPRM indicated was a 

possibility. 

NPRM: Final Rule:

A gift, subscription, loan advance, or 

deposit of money or anything of value 

made by any person in response to 

any communication that includes 

material expressly advocating, as 

defined in 11 C.F.R. 100.22, a clearly 

identified Federal candidate is a 

contribution to the person making the 

communication. 67 Fed. Reg. 11757. 

A gift, subscription, loan advance, or deposit 

of money or anything of value made by any 

person in response to any communication that

includes material expressly advocating, as 

defined in 11 C.F.R. 100.22, a clearly 

identified Federal candidate is a contribution 

to the person making the communication if 

the communication indicates that any 

portion of the funds received will be used to 

support or oppose the election of a clearly 

identified Federal candidate. 69 Fed. Reg. 

68066 (striking express advocacy requirement 

and adding bold text). 

The Commission also explicitly sought public comment regarding other possible 

standards that could be applied to solicitations, asking, “[s]hould the new rule use a standard 

other than express advocacy, such as a solicitation that promotes, supports, attacks, or opposes a 

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

support, attack or oppose a clearly identified Federal candidate?” 69 Fed. Reg. 11743 (emphasis 

34
added). Since the very words used in final regulation were also in the NPRM, under the “terms

or substance” option within 5 U.S.C. 553(b)(3), it is clear that the Commission provided 

adequate notice of the new rule. 

The Commission also satisfied the second option of section 553(b)(3) by providing notice 

of the “subjects and issues.” In the NPRM, the Commission sought public comment regarding a 

new rule that would establish that any funds received in response to particular solicitations are 

“for the purpose of influencing any election for Federal office” and therefore “contributions” 

under FECA. 69 Fed. Reg. 11743. The notice identified the fundamental issue that it was 

addressing as whether a “standard other than express advocacy, such as a solicitation that 

promotes, attacks, or opposes a Federal candidate” be used in the solicitation rule. This was 

ample to put the public on notice that the substance of a solicitation would determine whether a 

donation is a contribution and that parties interested in the standard to be used should comment. 

“That the Proposed rule described [one alternative] approvingly does not undermine the notice to 

interested parties that the rule was subject to modification, particularly in light of adverse 

comments,” Career College Ass’n, 74 F.3d at 1276. 

2. The Commission Provided Ample Notice Of Revisions To Its 

Allocation Regulation, 11 C.F.R. 106.6 

a. The Fifty Percent Federal Funds Minimum Requirement 

Was Adequately Noticed 

The Commission provided notice that it was considering setting a federal funds floor at 

50% for administrative expenses and voter drive activities. As one option, the Commission 

simply asked, “Should the Commission adopt a fixed minimum Federal percentage?” 69 Fed. 

Reg. 11754. The notice also sought comment on a number of other options, including a 

minimum Federal percentage to be added to the funds expended method in 11 C.F.R. 106.6(c) — 

a change that would require committees to calculate the funds expended ratio and then use the 

35
greater of either the funds expended ratio or the minimum percentage. Id. The NPRM also 

proposed using the same percentage applicable to State, district and local party committees (a 

range of 15% to 36% depending upon the Federal candidates on the ballot), or establishing a two 

tier system where committees’ Federal minimum percentage would depend upon the number of 

states in which the committee operated (perhaps 25% for less than 10 states, but 50% for more 

than 10 states). In addition to these specific proposals, the Commission made clear that it was 

“considering other minimum Federal percentages as alternatives to those presented in the 

proposed rules.” Id. The NPRM also specifically asked, “what should the minimum Federal 

percentages be?” Id. This was more than adequate to put EMILY’s List on notice that a change 

to the allocation ratio for administrative and voter drive activities could result in a fixed

minimum percentage. See, e.g., United Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C. 

Cir. 1980) (notice adequate when final rule is twice as stringent as the proposed rule); American 

Medical Ass’n, 887 F.2d at 769 (“The final rule dealt with the identical issue of dues allocation, 

merely altering the allocation regime to assure greater consistency and fairness”). 

b. The Allocation Requirements for Communications that 

Refer to Federal Candidates and Political Parties Were

Adequately Noticed 

The Commission provided notice that it was considering allocation requirements for 

communications that refer to federal candidates or that refer to federal candidates together with 

political parties. 69 Fed Reg. 11753-55. The Commission proposed allocating the costs of 

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

administrative expenses in 11 C.F.R. 106.6(c). Id. The Commission sought comment on a 

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

communications that promote, support, attack, or oppose, or expressly advocate, a clearly 

36
identified federal candidate and a political party. 69 Fed. Reg. 11755. The proposed section 

106.6(f) would require a combination of the time/space allocation method similar to that used in 

11 C.F.R. 106.1 and an application of the 11 C.F.R. 106.6(c) method for these public 

communications. Id. The final rule adopted a somewhat more stringent approach, but 

nonetheless one easily within the range of noticed possibilities, and the NPRM plainly put 

anyone concerned about the formula for allocating communications discussing candidates and 

parties on notice that this subject was “on the table” for revision. Career College Ass’n, 74 F.3d 

at 1276. 

Plaintiff argues (Mem. 27-28) that the Commission was required to use an allocation 

formula that gave greater weight to the mention of a political party. However, it is well 

established that the final rule permissibly may differ from versions that were presented to the 

public in the notice of proposed rulemaking. Health Ins. Ass’n v. Shalala, 23 F.3d 412, 421 

(D.C. Cir. 1994)). The language in the NPRM does not preclude the development of more 

specificity in the final regulations. For example in District of Columbia v. Train, 521 F.2d 971, 

997 (D.C. Cir. 1975), a general notice in an air quality rulemaking about “alternative forms of 

transportation controls” was found to be adequate when the final rule produced regulations on 

bicycle lanes. The specific language in the final rule was well with the “subjects and issues” 

identified in the NPRM. 

3. The Commission Can Rely upon Data in Publicly Available Disclosure 

Reports 

Finally, EMILY’s List argues (Mem. 23-24) that the notice provided by the NPRM was 

inadequate because it did not “contain any mention of data on which the Commission was 

relying” and that an agency cannot base a rule on data that is known only to the agency. The 

Commission noted that it had “examin[ed] public disclosure reports filed by [separate segregated 

37
funds] and nonconnected committees” and that its conclusions were based in part on this review. 

69 Fed. Reg. 68062. These disclosure reports are publicly available on the Commission’s Web 

site and in its public records office. See http://www.fec.gov/disclosure.shtml. Plaintiff’s claim,

therefore, that “there is simply no way to compile that data and determine how committees were 

allocating” (Mem. 24) is simply not true. 

The Commission’s review of this public information in analyzing the comments and 

formulating its final rule was entirely proper. “Agencies may develop additional information in 

response to public comments and rely on that information without starting anew ‘unless 

prejudice is shown.’” Personal Watercraft Industry Ass’n v. Dept. of Commerce, 48 F.3d 540, 

544 (D.C. Cir. 1995) (citation omitted). “The party objecting has the burden of ‘indicat[ing] 

with “reasonable specificity” what portions of the documents it objects to and how it might have 

responded if given the opportunity.’” Id. (citations omitted). EMILY’S List has not even tried 

to specify anything it would have said about these publicly available documents that could have 

affected the outcome of the rule, which would be particularly difficult since EMILY’S List chose 

not to participate in the rulemaking at all. 

The cases plaintiff relies upon regarding inadequate notice of data or studies all involved 

results from formal studies conducted by experts using data not available to the public. See

Solite v. EPA, 952 F.2d 473, 477-78 (D.C. Cir. 1991) (volumetric studies of potentially 

hazardous waste from mining operations); Community Nutrition Inst. v. Block, 749 F.2d 50, 51 

(D.C. Cir. 1984) (health and safety study of use of mechanically separated meat); Portland

Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (results from particulate testing at 

cement plant). In this case, the Commission simply reviewed reports equally available to the 

plaintiff, and just determined what was reported, rather than conducting any secret scientific test. 

38
Furthermore, the cases plaintiff relies upon require that “prejudice [be] shown” as a result of 

undisclosed data relied upon by an agency. See Community Nutrition Inst., 749 F.2d at 58 

(agency may undertake “new scientific studies, without the consequence appellants would 

impose, unless prejudice is shown”); Solite, 952 F.2d at 484-85. Even though the data at issue 

here are still publicly available, plaintiff has shown no reason to question the Commission’s 

conclusion about what is contained in its public disclosure reports, so no prejudice has been 

shown.

D. EMILY’S LIST HAS FAILED TO SHOW IRREPARABLE HARM

EMILY’s List barely even tries (Mem. 36-37) to establish the kind of irreparable harm 

that would justify a preliminary injunction, devoting precisely one page of its 39-page brief to 

the subject. Plaintiff’s cursory arguments amount to nothing more than a conclusory prediction 

that it will not be able to raise as much in federal funds as it would like to finance electoral 

activity in the coming election cycle. Even if EMILY’S List were not one of the wealthiest 

committees in hard money, conclusory speculation like that would not satisfy its burden of

proving irreparable harm. Regardless of the strength of plaintiff’s case on the merits, its total 

failure to demonstrate irreparable harm alone is sufficient grounds for denying a preliminary 

injunction. See supra, pp. 12-13. 

To show irreparable injury, “[a] litigant must do more than merely allege the violation of 

First Amendment rights.” Wagner v. Taylor, 836 F.2d 566, 576 n.76 (D.C. Cir. 1987). See also

NTEU v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991). It must also “show that [t]he 

injury complained of [is] of such imminence that there is a clear and present need for equitable 

relief to prevent irreparable harm.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 

39
1985) (internal citation and quotation marks omitted). This harm “must be both certain and 

great,” and “actual and not theoretical.” Id. 

Moreover, if — as here — the requested relief “would alter, not preserve, the status quo

... [a plaintiff] must meet a higher standard....” Veitch v. Danzig, 135 F.Supp.2d 32, 35 (D.D.C. 

2001). “The purpose of a preliminary injunction is merely to preserve the relative positions of 

the parties until a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. at 

395; accord KOS Pharmaceuticals v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). But the 

new regulations have been in effect, and the old ones eliminated, since January 1, 2005, and this 

case was not filed until January 12. EMILY’s List thus seeks to alter the current status quo while 

its request for permanent relief is pending. 

Even apart from plaintiff’s complete failure to support its claim with evidence, it is plain 

that the regulations at issue do not impose any irreparable harm on EMILY’S List. The 

requirement in 11 C.F.R. 106.6(c) to allocate at least 50% of administrative and generic voter 

drive expenses to the federal account does not even require EMILY’S List to alter its preexisting practices, since it has been using that same allocation formula for years (see pp. 3-4, 

supra). See Sociedad Anonima, 193 F.Supp.2d at 27 (no irreparable harm where government 

viticultural designation did not change plaintiff wine producer’s current labeling practice). We

have shown above that the regulations regarding allocation of expenditures for communications 

referring to candidates (11 C.F.R. 106.6(f)) and the treatment of contributions given in response 

to certain solicitations (11 C.F.R. 100.57), were carefully crafted to ensure that a political 

committee can easily control how its communications will be treated under those regulations. 

Moreover, none of these regulations really restricts speech; their only effect is to 

determine how much federal money must be used to finance certain activities. Thus, nothing 

40
more is at stake for EMILY’S List while this case is pending than the amount of federal money it 

will use to finance these activities, and it is well settled that “financial harm alone cannot 

constitute irreparable injury unless it threatens the very existence of the movant’s business.” 

Sociedad Anonima, 193 F.Supp. at 14. Accord Wisconsin Gas, 758 F.3d at 674. It can hardly be 

argued that the new allocation regulations “threaten the existence” of EMILY’s List, one of the 

most successful committees in the nation in raising hard money.27

Finally plaintiff argues (Mem. at 36) that it “must know now” what resources it has 

available to spend in the current election cycle, but the existing regulations give precisely that 

information, and a preliminary injunction would not improve plaintiff’s understanding. 

Even if this Court were to enter the preliminary injunction, if the regulations at issue were 

ultimately upheld by this Court or a higher court — or if the preliminary injunction itself were 

reversed on appeal — plaintiff would be subject to a civil enforcement action by the Commission 

under the retroactivity doctrine. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97-98 

(1993) (“an opinion announcing a rule of federal law ... ‘appl[ies] retroactively to the litigants 

then before the Court’”). As the D.C. Circuit noted in a previous case in which a preliminary 

injunction against the Commission’s allocation regulation was denied, a preliminary “injunction 

wouldn’t protect a party against an adverse final decision on the merits” and “the decision to 

grant or deny a preliminary injunction has no bearing on the ultimate allocation between hard 

and soft accounts.” Republican National Comm. v. FEC, 172 F.3d 920, 1998 WL 794896 (D.C. 

Cir. Nov. 6, 1998).28

 

27 Plaintiff’s assertion that the new rules might decrease the amount it will spend on speech does not 

convert this claim of economic harm into a constitutional one. See Jimmy Swaggart Ministries v. Board 

of Equalization, 493 U.S. 378, 391 (1990) (when statute “merely decreases the amount of money

appellant has to spend on its religious activities, any such burden is not constitutionally significant.”) 28 The court did find that there was some possibility of irreparable harm in that case involving 

claims not raised by the plaintiff here. It concluded, however, that because the evidence of harm was so 

41
Plaintiff invokes the First Amendment, but this case is nothing like Elrod v. Burns, 

427 U.S. 347, 373 (1976) (plurality), the only case plaintiff cites on irreparable injury (Mem. at 

37). In Elrod the Supreme Court held that employee dismissal based on political party patronage 

was an unconstitutional infringement on employees’ First Amendment rights. Id. at 372. But in 

that case, the Court found that government employees had already been “threatened with 

discharge or had agreed to provide support for the Democratic Party in order to avoid discharge,” 

and it was “clear therefore that First Amendment interests were either threatened or in fact being 

impaired at the time relief was sought.” Id. at 373. In this case, EMILY’S List has not been 

punished for its political views, and remains free to finance its political speech with all the hard 

money it can convince its supporters to contribute, supplemented by an allocable portion of 

nonfederal funds. Contrary to plaintiff’s apparent assumption, Elrod did not eliminate the 

burden on a plaintiff who invokes the First Amendment to demonstrate that its interests are 

actually threatened or in fact being impaired. NTEU, 927 F.2d at 1254-55; Wagner, 836 F.2d at 

576-77 n.76; Christian Knights of the Ku Klux Klan Invisible Empire v. District of Columbia, 

919 F.2d 148, 149-50 (D.C. Cir. 1990) (Elrod applicable only to cases in which “First 

Amendment rights were totally denied by the disputed Government action”).29 That is a burden 

EMILY’S List has made no effort to sustain. 

 

“weak ... appellants would have to show an exceptional likelihood of success on the merits,” and 

affirmed the denial of a preliminary injunction. Id., 1998 WL 794896 at *2. 29 An “assertion of First Amendment rights does not automatically require a finding of irreparable 

injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the 

merits.” Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989). See also Time Warner Cable of New York 

City v. Bloomberg L.P., 118 F.3d 917, 924 (2d Cir. 1997) (“[It is often] more appropriate to determine 

irreparable injury by considering what adverse factual consequences the plaintiff apprehends if an 

injunction is not issued, and then considering whether the infliction of those consequences is likely to 

violate any of the plaintiff’s rights”). 

42
E. A PRELIMINARY INJUNCTION WOULD CAUSE THE PUBLIC, THE COMMISSION, 

AND OTHERS SUBSTANTIAL HARM

Even a temporary injunction against the challenged regulations would change the status 

quo to open the door to the use of soft money to influence federal elections; it would thereby 

harm the public interest in preserving the integrity of the federal election process by undermining 

the Act’s contribution limitations and prohibitions. In addition, an injunction would harm all 

nonconnected committees by creating chaos and uncertainty in the allocation rules. A 

preliminary injunction would also harm the Commission by preventing it from implementing 

fully its understanding of Congress’s decision, embodied in the Act, to prevent soft money from

influencing federal elections. 

More fundamentally, an injunction would create confusion and uncertainty in the 

regulated community. Plaintiff is incorrect in its assumption (Mem. 37-38) that the former 

allocation regulation already repealed on January 1 would spring back to life if the Commission 

were enjoined from enforcing the new ones. Revised paragraph 11 C.F.R. 106.6(c) has already 

replaced the former paragraph 106.6(c), so the Commission would have to complete a new 

rulemaking in order to reinstate the now-repealed rule. Thus, if the Commission were enjoined 

from enforcing the current regulations, it is unclear how political committees would be legally 

required to allocate their activities. 

Moreover, the bulk of plaintiff’s argument about the challenged regulations concerns the 

alleged procedural defects in their promulgation, i.e., allegedly inadequate notice. Even if the 

Court were to find that the plaintiff is likely to prevail on that ground, such a finding would not 

justify a preliminary injunction against the substantive operation of the rules. The “disruptive 

consequences of an interim change” would be severe indeed, and because the Commission could 

cure any notice defects on remand “it is not unlikely that the [Commission] ‘will be able to 

43
justify a future decision to retain the [r]ule[s].” Louisiana Federal Land Bank v. Farm Credit 

Admin., 336 F.3d 1075, 1085 (D.C. Cir. 2003). Moreover, just last year this Court refused to 

enjoin the Commission from enforcing existing regulations even after it had found those 

regulations invalid and remanded them to the Commission. Shays v. FEC, 337 F.Supp.2d 28, 

129-130 (D.D.C. 2004), appeal filed (D.C. Cir. No. 04-5352, Sept. 30, 2004). Plainly, a 

preliminary injunction against enforcing regulations that have not been found invalid is even less 

justified than an injunction after a final judgment of invalidity.

Finally, “[t]he harm to the ... Federal Election Commission is evident. Everyone agrees 

that it is the statutory duty of the [FEC] to enforce the [Act]. If we enter the preliminary 

injunction, then, to the extent of that injunction, the Commission cannot perform its duty. We

hold that an injunction against the performance of its statutory duty constitutes a substantial 

injury to the Commission.” Wisconsin Right to Life, Inc. v. FEC, Civil No. 04-1260 (DBS, 

RWR, RJL) (D.D.C. Aug. 17, 2004), slip op. at p.8 (FEC Exh. 19). 

IV. CONCLUSION 

For the reasons given above, the motion of plaintiff EMILY’s List for a preliminary 

injunction should be denied. 

Respectfully submitted, 

____________s/______________________

Lawrence H. Norton 

General Counsel 

____________s/______________________

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

44
____________s/______________________

David Kolker 

Assistant General Counsel 

(D.C. Bar # 394558) 

Vivien Clair 

Harry J. Summers 

Greg J. Mueller 

Leigh G. Hildebrand 

Margaret G. Perl 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, D.C. 20463 

January 24, 2005 (202) 694-1650 

45