1

EMILY’s LIST,

 Plaintiff,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 05–0049 (CKK)

MEMORANDUM OPINION

(July 31, 2008)

 Currently pending before the Court are cross-motions for summary judgment filed by

Plaintiff, EMILY’s List, an organization that recruits and funds pro-choice women candidates for

political office, and Defendant, the Federal Election Commission (“FEC” or “Commission”). 

EMILY’s List, a political committee registered with the FEC, commenced this action by filing a

Complaint and Motion for Preliminary Injunction in January 2005, asserting a facial challenge to

regulations promulgated by the Commission to implement the provisions of the Federal Election

Campaign Act of 1971, Pub.L. No. 92-255, 86 Stat. 3, (“FECA”), as amended by the Bipartisan

Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”). The challenged

regulations established a new rule for when funds received by political committees in response to

certain solicitations must be treated as “contributions” under FECA and modified the

Commission’s rules governing how political committees may allocate spending between federal

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 1 of 69
 “Federal” funds–also referred to as “hard money”–are funds that are subject to FECA’s 1

disclosure requirements and source and amount limitations. McConnell v. FEC, 540 U.S. 93,

122 (2003). In contrast, “nonfederal” funds, or “soft money,” are funds raised outside of the

source and amount limitations imposed by FECA, which political parties may solicit and accept

for purposes not related to federal elections, provided that they are placed in accounts separate

from federal funds. See McConnell v. FEC, 251 F. Supp. 2d 176, 196-97 & n.9 (D.D.C. 2003)

(per curiam). 

 The Supreme Court did not issue a majority opinion in WRTL. “[T]he holding of the 2

Court” in the case is therefore the “position taken by those Members who concurred in the

judgments on the narrowest grounds,” which is the opinion by Chief Justice Roberts (joined by

Justice Alito). Marks v. United States, 430 U.S. 188, 192-93 (1977).

2

and nonfederal accounts. EMILY’s List sought to enjoin the enforcement of the regulations,

1

which went into effect in January 2005, alleging that each was in excess of the Commission’s

authority, was arbitrary and capricious, was promulgated without adequate notice under the

Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2), and violated the First Amendment to

the United States Constitution. On February 25, 2005, the Court issued a Memorandum Opinion

and Order denying EMILY’s List’s motion for preliminary injunction, which was subsequently

affirmed on appeal. See EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005) (hereinafter

“PI Mem. Op.”), aff’d 170 Fed. App’x. 719 (Dec. 22, 2005). 

The parties then proceeded to brief cross-motions for summary judgment; however, in

June 2007, the United States Supreme Court issued its opinion in FEC v. Wisconsin Right to Life,

127 S. Ct. 2652 (2007) (“WRTL”), which significantly impacted a number of the arguments 2

raised by the parties in their then-pending cross-motions for summary judgment. Accordingly,

the Court denied the parties’ initial cross-motions for summary judgment without prejudice and

ordered the parties to file revised briefing that accurately reflected the state of the law. See

7/12/07 Order, Docket No. [29]. Those revised cross-motions for summary judgment are now

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 2 of 69
 This Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil 3

Rule 7(h)). As such, in resolving the instant cross-motions for summary judgment, the Court

“assumes that facts identified by the moving party in the statement of material facts are admitted,

unless such a fact is controverted in the statement of genuine issues filed in opposition to the

motion.” LCvR 56.1; 7(h). Specifically, the Court looks to each party’s statement to cull out the

relevant undisputed facts and to determine those facts that are conceded by the cross-moving

party. Further, as discussed below, while the Commission challenges the sufficiency of the

evidence supporting some of EMILY’s List’s factual assertions, the parties’ factual disputes are

not ultimately material because the Court’s conclusions in this opinion turn on legal conclusions,

as opposed to factual findings. 

3

ripe, and the Court has conducted a searching review of the parties’ briefs, the exhibits attached

thereto, the brief filed by amici curiae Senators John McCain and Russell Feingold,

Representative Christopher Shays, Democracy 21, and the Campaign Legal Center in opposition

to Plaintiff’s revised motion for summary judgment, the relevant statutes and case law, and the

entire record herein. Based on the foregoing, the Court shall DENY [32] EMILY’s List’s Motion

for Summary Judgment and shall GRANT [34] the Commission’s Cross-Motion for Summary

Judgment.

I. BACKGROUND

The events, statutes, and case law relevant to this opinion are largely addressed in the

Court’s February 25, 2005 Memorandum Opinion denying EMILY’s List’s motion for

preliminary injunction. PI Mem. Op., 362 F. Supp. 2d 43. Accordingly, the Court assumes

familiarity with that opinion, and only recites herein those facts that are relevant to resolving the

instant cross-motions for summary judgment.3

A. Parties

The Federal Election Commission is the independent agency of the United States

government with exclusive jurisdiction to administer, interpret, and civilly enforce FECA. 2

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 3 of 69
 Pursuant to 11 C.F.R. § 106.6(a), a “nonconnected committee’ includes any [political] 4

committee which conducts activities in connection with an election, but which is not a party

committee, an authorized committee of any candidate for federal election, or a separate

segregated fund.” 11 C.F.R. § 106.6(a). In turn, as defined in FECA, 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).

 In response to EMILY’s List’s description of itself and its programs in its Statement of 5

Material Facts, see Pl.’s Stmt. ¶¶ 20-24, the Commission correctly notes that the relevant

paragraphs “rely on the Declaration of Britt Cocanour, [EMILY’s List’s Assistant Treasurer and

4

U.S.C. §§ 437c(b)(1), 437d(a), and 437g; FEC Stmt. of Mat’l Facts ¶ 1; Pl.’s Stmt. of Genuine

Issues and Objs. (hereinafter “Pl.’s Resp. Stmt.”) ¶ 1. Among other things, the Commission is

empowered to “formulate policy with respect to” FECA, see 2 U.S.C. § 437c(b)(1), and to

promulgate “such rules . . . as are necessary to carry out the provisions” of FECA, id. §

437d(a)(8). FEC Stmt. ¶ 2; Pl.’s Resp. Stmt. ¶ 2. 

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

nonconnected political committee for more than 20 years. FEC Stmt. ¶ 3; Pl.’s Resp. Stmt. ¶ 3.4

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

Stmt. ¶ 4; Pl.’s Resp. Stmt. ¶ 4. The parties do not dispute that EMILY’s List’s nonfederal

account accepts funds from sources and in amounts that various states authorize for use in

supporting state and local candidates, but that may not permissibly be used to support federal

candidates under federal campaign finance laws. Pl.’s Stmt. of Mat’l Facts ¶ 26; FEC Stmt. of

Genuine Issues and Objs. (hereinafter “FEC Resp. Stmt.”) ¶ 26. EMILY’s List describes itself as

“a political organization whose purpose is to recruit and fund viable women candidates for local,

state and federal office; to help them build and run effective campaign organizations; and to

mobilize women voters to help elect progressive candidates.” Pl.’s Stmt. ¶ 20. The Court 5

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 4 of 69
Chief of Staff,] filed on September 14, 2007, as their lone source of evidentiary support,” FEC

Resp. Stmt. ¶¶ 20-24. The Commission continues to state that it “objects to these facts and the

Cocanour Declaration as conclusory, speculative, and without foundation” because, according to

the Commission, Paragraphs 20-24 of EMILY’s List’s Statement of Material Facts, “reproduced

verbatim from the [Cocanour] declaration, contain conclusions that the declarant does not state

are based upon her personal knowledge.” Id. Insofar as EMILY’s List asserts facts regarding the

organization’s purpose and activities, the Court finds that Ms. Cocanour’s declaration provides

sufficient factual support because, as the organization’s Assistant Treasurer and Chief of Staff,

she is in a position of knowledge with respect to those issues.

5

discusses EMILY’s List’s activities in greater detail below, after addressing the relevant

regulatory framework.

B. Regulatory Framework

 The overarching purpose of FECA was to place limitations on contributions and

expenditures in connection with federal elections. See McConnell, 251 F. Supp. 2d at 193 (per

curiam). FECA’s passage, however, “did not deter unseemly fundraising and campaign

practices,” McConnell, 540 U.S. at 118, and in particular, “the invention and proliferation of

political committees that purported to be independent and outside the knowledge and control of

the candidates and designated campaign committees . . . eviscerated statutory limitations on

contributions and expenditures,” Buckley v. Valeo, 519 F.2d 821, 837 (D.C. Cir. 1975), aff’d in

part, rev’d in part, 424 U.S. 1 (1976)). In 1974, Congress passed comprehensive amendments to

FECA, which, inter alia, established the FEC, McConnell, 540 U.S. at 118, and in 2002,

Congress enacted BCRA, which represented the “first major overhaul of [FECA] since the 1974

Amendments and their revision following [the Supreme Court’s opinion in Buckley v. Valeo, 424

U.S. 1 (1976)].” McConnell, 251 F. Supp. 2d at 205 (per curiam). BCRA was intended to stem

the tide of nonfederal funds being improperly used to influence federal elections. PI Mem. Op.,

362 F. Supp. 2d at 46. Although pre-BCRA campaign finance laws were intended to prevent soft

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 5 of 69
6

money from being used to influence federal elections, by the time of BCRA’s passage, the

circumvention of these laws had become routine, resulting in unregulated funds being used to

influence federal elections. Id.

The FEC rules in effect until June 2005 permitted non-party committees (including

EMILY’s List) to allocate spending for administrative expenses and generic voter drive activity

(as opposed to candidate-specific disbursements) pursuant to the so-called “funds expended

method.” 11 C.F.R. § 106.6(c) (2002). Under that approach, “expenses [were to] be allocated

based on the ratio of federal expenditures to total federal and non-federal disbursements made by

the committee during the two-year federal election cycle. . . . In calculating its federal

expenditures, the committee [was to] include only amounts contributed to or otherwise spent on

behalf of specific federal candidates.” Id. § 106.6(c)(1) (2002). 

Prior to the enactment of BCRA, party committees were also required to allocate their

expenses for “mixed” federal and nonfederal expenses, but did so according to fixed percentages

rather than the “funds expended” methods. See id. § 106.5(b)(2)(i), (ii) (2002); § 106.5(d)(1)(i)

(2002). While functioning under these allocation rules, party committees routinely circumvented

the spirit of campaign finance laws by using soft money to finance activities intended to influence

federal elections. McConnell, 540 U.S. at 131-32; PI Mem. Op., 362 F. Supp. 2d at 47. Congress

ultimately determined that the existing allocation system was not effective at limiting party

committees’ spending of nonfederal funds to nonfederal activities. McConnell, 540 U.S. at 131-

34. Instead, Congress determined that the allocation system in fact enabled the circumvention of

the law by authorizing the spending of soft money on activities that were intended to, and in fact

did, influence federal campaigns. See McConnell, 251 F. Supp. 2d at 651 (Kollar-Kotelly, J.)

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 6 of 69
7

(noting that FEC regulations permitted widespread use of nonfederal money by party units to

influence federal elections). In BCRA, Congress sought to modify the flawed regime by banning

national party committees from raising or spending any nonfederal funds. See 2 U.S.C. § 441i(a). 

State party committees were permitted to raise nonfederal funds for nonfederal races, but were

precluded from spending nonfederal funds on advertisements that “promote, support, attack or

oppose” federal candidates. Id. §§ 431(20)(A)(iii); 441i(b)(1). BCRA also permitted state parties

to fund certain “federal election activities,” including voter mobilization activities, with an

allocated mixture of federal funds and limited, regulated nonfederal funds. Id. §§ 431(20)(A);

441i(b)(2). BCRA was challenged, and ultimately upheld by the Supreme Court. See generally

McConnell, 540 U.S. 93. 

Although the Supreme Court’s decision in McConnell only addressed allocation with

respect to party committees, in 2004, the FEC undertook a rulemaking aimed at curbing the

similar use of nonfederal funds in connection with federal campaign activity by nonconnected

committees. PI Mem. Op., 362 F. Supp. 2d at 48. In particular, because the “funds expended”

allocation method based the allocation ratio only on “amounts contributed to or otherwise spent

on behalf of specific federal candidates,” 11 C.F.R. § 106.6(c)(1) (2002), the method at times

allowed nonconnected committees to calculate the federal portions of their allocated spending at,

or close to, zero. See PI Mem. Op., 362 F. Supp. 2d at 48 (citing PI Admin. Record, Ex. 1 (Letter

to FEC from Democracy 21) at 2; id. Ex. 10 (Facsimile to FEC from Democracy 21) at 2-3; id.

Ex. 266 (Letter from McCain, Feingold, Shays, Meehan to Mai T. Dinh)). In addition, the “funds

expended” allocation method did not subject nonconnected political committees to a minimum

federal allocation percentage. See 11 C.F.R. § 106.6 (2002).

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 7 of 69
 In its motion for preliminary injunction, EMILY’s List argued that the challenged FEC 6

regulations were promulgated without sufficient notice under the APA. See PI Mem. Op., 362 F.

Supp. 2d at 48-49, 53-56. In denying EMILY’s List’s motion for preliminary injunction, the

Court concluded that EMILY’s List had not demonstrated a substantial likelihood of success on

its claims regarding notice under the APA. Id. EMILY’s List does not raise its notice-related

arguments in its revised motion for summary judgment, and the Court therefore does not address

the merits of those arguments as they are waived. See New York v. United States Envtl. Prot.

Agency, 413 F.3d 3, 20 (D.C. Cir. 2005).

8

In February 2004, the FEC issued Advisory Opinion 2003-37, requiring that nonconnected

political committees pay for any public communication that “promotes, supports, attacks, or

opposes” federal candidates entirely with federal funds. Pl.’s MSJ, Attach. C (Advisory Opinion

2003-37); Pl.’s Stmt.¶ 1; FEC Resp. Stmt.” ¶ 1. The FEC simultaneously indicated its intent to

undertake a rulemaking with respect to the allocation rules affecting nonconnected political

committees. Pl.’s MSJ, Attach. C (Advisory Opinion 2003-37) at 3 n.3. On March 11, 2004, the

FEC published its official Notice of Proposed Rulemaking (“NPRM”), which was framed largely

in response to the Supreme Court’s holding in McConnell. See 69 Fed. Reg. 11,736-38. The 6

NPRM sought comment on “whether either BCRA or McConnell requires, permits, or prohibits

changes to the allocation regulations for separate segregated funds and nonconnected

committees.” Political Committee Status, 69 Fed. Reg. 11,736, 11,753 (March 11, 2004)

(discussing proposed 11 C.F.R. § 106.6). The NPRM questioned

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 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? 

Id. at 11,753. 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 8 of 69
9

The FEC designated the period through April 9, 2004 for public comments on the

proposed rules, and held a hearing on April 14 and 15, 2004. See 69 Fed. Reg. 11,736. EMILY’s

List’s representatives did not submit any comments and did not testify at the hearing, although

over 100,000 comments were filed by other parties–including political committees, political

parties, nonprofit organizations, individuals, campaign finance organizations, and Members of

Congress–on a variety of issues raised by the rulemaking, and the two days of public hearings

included 31 witnesses representing organizations with a broad range of opinions and concerns. 

FEC Stmt. ¶¶ 22-31; Pl.’s Resp. Stmt. ¶¶ 22-31. The majority of the comments the Commission

received focused on the NPRM’s proposals regarding potential changes to the status of certain

section 527 organizations that did not register and report to the FEC, Pl.’s Stmt. ¶ 8; FEC Resp.

Stmt. ¶ 8; however, a number of commenters offered remarks on the proposed allocation rules and

testimony on the proposed revision of the definition of “contributions,” PI Mem. Op., 362 F.

Supp. 2d at 50 (citations omitted). 

In particular, at least one commenter supported eliminating allocation altogether and

requiring nonconnected committees to use 100% federal funds for all expenditures under 11

C.F.R. § 106.6, see FEC MSJ Ex. 8 (Comments of Public Citizen, at 12-13), while another

suggested that communications should be allocated either 100% federal or 100% nonfederal based

upon whether federal or nonfederal candidates were mentioned in the communication, see FEC

MSJ Ex. 9 (Comments of Republican National Committee, at 7-8). See also FEC Stmt. ¶¶ 23, 25;

Pl.’s Resp. Stmt. ¶¶ 23, 25. Other commenters supported implementing a specific percentage or

“significant minimum hard money share” for administrative expenses. FEC MSJ Exs. 10

(Comments of Democracy 21, Campaign Legal Center, Center for Responsible Politics, at 17-19)

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 9 of 69
 Mr. Noble’s testimony referred to the activities of Americans Coming Together (ACT), 7

a registered nonconnected political committee with a separate registered nonfederal account. 

See FEC Ex. 16 (FEC News Release, FEC to Collect $775,000 Civil Penalty From America

Coming Together (Aug. 29, 2007)). The amicus brief filed in this action by Senators McCain

and Feingold, Representative Shays, Democracy 21, and the Campaign Legal Center focuses

largely on ACT’s activities and the conciliation agreement eventually reached between ACT and

the FEC, which settles allegations that during the 2004 election ACT used federal/nonfederal

allocation ratios that greatly under-represented the proportion of its disbursements required to be

paid with federal funds. FEC MSJ at 23 & n.21; Ex. 17 (Conciliation Agreement). As the FEC

explains:

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

federal funds and 98% nonfederal funds for its administrative expenses and

generic voter drives. [FEC Ex. 17] Conciliation Agreement at 2-3, 6. The

Commission concluded that approximately $70 million dollars in disbursements

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

direct mail, and telemarketing were actually attributable to clearly identified

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

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

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

10

and 11 (Comments of Senators McCain and Feingold, Representatives Shays and Meehan, at 3). 

See also FEC Stmt. ¶ 24; Pl.’s Resp. Stmt. ¶ 24. 

One commenter argued that revising the funds expended method to require a federal

minimum share would be too burdensome and complicated for political committees. FEC MSJ

Ex. 12 (Comments of Media Fund, at 20); FEC Stmt. ¶ 26; Pl.’s Resp. Stmt. ¶ 26. In contrast,

during the hearing, testimony was offered regarding the complexities of the funds expended

allocation method and the FEC’s proposal to move to a flat minimum percentage, including a

50% federal minimum, for allocated expenses. FEC MSJ Ex. 14 (Apr. 14, 2004 Hrg. Tr.) at 158-

60 (testimony of Craig Holman) and Ex. 15 (Apr. 15, 2004 Hrg. Tr.) at 78-80 (testimony of

Lawrence Noble) and 80-84 (testimony of Robert Bauer). In addition, one witness testified that

the funds expended allocation method permitted circumvention of BCRA’s aim that soft money

not be used to fund federal campaign activities. Id. at 78-80 (testimony of Lawrence Noble).7

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 10 of 69
and thus should have been paid either with 100% federal funds or allocated

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

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

and desist from violating the relevant statutory and regulatory restrictions and

reporting requirements. Id. at 12.

FEC MSJ at 23 & n.21. The FEC also concluded that, with respect to the $30 million in

disbursements that ACT properly treated as administrative and generic voter drive

expenses, it should have used an allocation of at least 90% federal and 10% nonfederal

funds. FEC Ex. 16 (Press Release). 

Amici further explain that ACT based its 2%/98% federal to nonfederal ratio only on

spending that it identified as candidate-specific, as permitted by the rules then in effect; however,

ACT’s President’s public statements made clear that the organization’s purpose was to oppose

President George W. Bush’s re-election in 2004 and the organization focused its efforts on

seventeen “battleground” states in the 2004 presidential election. Amicus Br. at 14-17; FEC Ex.

17 (Conciliation Agreement) at 4. After the Commission announced, in Advisory Opinion 2003-

37, that it intended to undertake a rulemaking on the issues, the organizational amici (along with

the Center for Responsive Politics) wrote to the Commission and brought ACT’s activities to the

Commission’s attention. Amicus Br. at 19-20 (citing 2/25/04 Letter to FEC Commissioners,

available at http://www.fec.gov/pdf/nprm/political_comm_status/exparte_commisioners.pdf. A

copy of the organizational amici’s letter is included in the rulemaking record. In addition, the

organizational amici and the Center for Responsive Politics submitted comments during the

comment period that specifically referenced ACT. See http://www.fec.gov/pdf/nprm/

poltical_comm_status/simon_potter_nobel_sanford.pdf.

11

Finally, witnesses addressed the FEC’s proposal that money given in response to solicitations

indicating that the funds received would be used to support or oppose a federal candidate would

be treated as contributions under FECA. Id. at 202-03 (testimony of Lyn Utrecht) and 207-08

(testimony of Margaret McCormick).

The FEC published the final rules and an accompanying Explanation and Justification

(“E&J”) in the Federal Register on November 23, 2004, and the final rules became effective on

January 1, 2005. See 29 Fed. Reg. 68,056. Pursuant to the new rule at 11 C.F.R. § 100.57(a), all

funds received in response to a solicitation are treated as “contributions” under FECA “if the

communication indicates that any portion of the funds received will be used to support or oppose

the election of a clearly identified Federal candidate.” 11 C.F.R. § 100.57(a). If, however, the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 11 of 69
12

Commission’s rules would permit the costs of the solicitation to be allocated between federal and

nonfederal funds, funds received in response may be treated differently. Id. § 100.57(b). 

Specifically, if the solicitation refers to a clearly identified federal candidate and a political party,

but not to a clearly identified nonfederal candidate, all funds received in response are considered

contributions. Id. § 100.57(b)(1). In contrast, if the solicitation refers to one or more clearly

identified nonfederal candidates, in addition to a clearly identified federal candidate, at least fifty

percent of the funds received in response must be treated as contributions, regardless of whether

the solicitation also refers to a political party. Id. § 100.57(b)(2). 

As revised, 11 C.F.R. § 106.6 replaced the “funds expended” method for allocation by

nonconnected political committees with a 50 percent federal funds minimum for administrative

expenses, costs of generic voter drives, and costs of public communications that refer to a political

party but do not refer to any specific candidates. See 11 C.F.R. § 106.6(c). In addition, section

106.6(f) provides that public communications and voter drives that refer to one or more clearly

identified federal candidates, and do not refer to any nonfederal candidates, must be financed with

100 percent federal funds, regardless of whether political parties are also mentioned. See id. §

106.6(f)(1). In contrast, public communications and voter drives that refer only to nonfederal

candidates, or refer to a political party and only nonfederal candidates, may be financed with 100

percent nonfederal funds. Id. § 106.6(f)(2). Finally, expenses for “communications and voter

drives that refer to one or more clearly identified Federal candidates and one or more clearly

identified non-Federal candidates, regardless of whether there is a reference to a political party,”

are to be “allocated based on the proportion of space or time devoted to each clearly identified

Federal candidate as compared to the total space or time devoted to all clearly identified

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 12 of 69
13

candidates.” Id. § 106.6(f)(3). 

On August 18, 2005, EMILY’s List submitted an Advisory Opinion Request to the FEC

seeking clarification regarding the new regulations. In particular, EMILY’s List asked whether, as

a nonconnected political committee, it would be required to pay at least 50% of its administrative

expenses and generic voter driver expenses with federal funds, even if its budget “committe[d] [it]

to the expenditure of 65% of its candidate budget for the [remainder of the 2005-2006 election]

cycle on contributions to or amounts otherwise spent on behalf of specific nonfederal

candidiates.” Pl.’s Attach. D (8/18/05 Advisory Opinion Request) at 1. The FEC’s responsive

Advisory Opinion 2005-13 confirmed that EMILY’s List was required to allocate a minimum of

50% federal funds “without regard to how much a Federal political committee may choose to

spend on non-Federal elections.” Pl.’s Attach. E (Advisory Opinion 2005-13) at 2-3. 

In its Advisory Opinion Request, EMILY’s List also described a proposed fundraising

solicitation “in support of its efforts on behalf of state legislative candidates” that would refer to

Senator Debbie Stabenow of Michigan and “feature a discussion of her own experiences, earlier in

her career, as a candidate for State Senate in Michigan,” in order to “stress the importance of

successes for women in state elective office.” Pl.’s Attach. D (Advisory Opinion Request) at 1-2. 

EMILY’s List explained that the solicitation would not be distributed in Michigan and would not

reference Senator Stabenow’s “federal candidacy or solicit funds for her federal candidacy.” Id. at

2. In addition, the proposed communication would not refer to any clearly identified nonfederal

candidate, but only generally to nonfederal Democratic women candidates as a class, and

EMILY’s List asked the Commission whether the funds raised by the communication would be

required to be treated entirely as contributions. Id. 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 13 of 69
14

In response, the FEC’s Advisory Opinion 2005-13 clarified that, “[r]egardless of its

context, the reference to Senator Stabenow in EMILY’s List’s public communication is a

reference to a clearly identified Federal candidate in a Federal political committee’s public

communication,” which does not refer to a clearly identified nonfederal candidate, such that,

“EMILY’s List must pay for the public communication that clearly identifies Senator Stabenow

with 100 percent Federal funds.” Pl.’s Attach. E (Advisory Opinion 2005-13) at 3-4. In response

to a suggestion by EMILY’s List that it could substitute a federal candidate not standing for

election in 2006 for Senator Stabenow, the Commission further noted that the “analysis does not

change if a candidate for election in a year other than 2006 were to be substituted for Senator

Stabenow in EMILY’s List’s public communication.” Id. at 4. The FEC noted that neither FECA

“nor Commission regulations distinguish between candidates based on election date,” rather,

FECA defines a “candidate” as “an individual who seeks nomination for election, or election, to

Federal office,” and defines an individual as seeking “nomination for election, or election, if he or

she has received contributions aggregating in excess of $5,000 or has made expenditures

aggregating in excess of $5,000.” Id. (citing 2 U.S.C. § 431(2)(A); 11 C.F.R. 100.3(a)(1)). 

In addition to generally requesting clarification on whether its communication referring to

Senator Stabenow would have to be funded with federal funds, EMILY’s List’s Advisory Opinion 

Request asked the Commission to review three proposed options for the portion of the

communication asking recipients “to support the nonfederal programs of EMILY’s List,” with the

caveat that EMILY’s List “wish[ed] to avoid any language that would be construed to ‘indicate’ a

use of the funds to support federal candidates, including but not limited to Senator Stabenow.”

Pl.’s Attach. D (Advisory Opinion Request) at 2. Specifically, EMILY’s List proposed the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 14 of 69
15

following texts:

(a) “We are asking for your support, so that EMILY’s List can support candidates

who, like me, could never succeed as women in politics without the combined

commitment of all [sic] us.”

(b) “EMILY’s List’s support over the years for candidates like me has made an

enormous difference to the progress of women toward equality in the pursuit of

political office. But we have a long way to go. That’s why I need your help.”

(c) “EMILY’s List has always supported me (Senator Stabenow) when I most

needed it. And that is why I am asking you to support EMILY’s List today, so

that it can continue the work on behalf of women who, by seeking state office

today, will be ready to claim national leadership tomorrow.”

Id.

In response to this question, the Commission’s Advisory Opinion 2005-13 explained that

“[a]ll three communications indicate that the funds EMILY’s List receives in response will be

used to support candidates and implicitly to support their election to office. The only question is

whether these communications indicate that Senator Stabenow is among those candidates.” Id. at

5-6. Specifically, the FEC concluded that, EMILY’s List’s Example (a) “indicates that [Senator

Stabenow] is among the candidates that EMILY’s List will support,” such that all funds received

in response to a solicitation including the text in Example (a) would be treated as contributions

under 11 C.F.R. § 100.57. Id. at 6. The Commission reached the same conclusion with respect to

EMILY’s List’s Example (b), noting that the language “I need your help” suggests that “Senator

Stabenow is also appealing on her own behalf,” and “indicates that some of the funds raised will

be used to support Senator Stabenow’s re-election, which satisfies 11 CFR 100.57(a)(1).” Id.

While EMILY’s List’s Example (c) “also features a clearly identified Federal candidate raising

funds for EMILY’s List,” the Commission concluded that “it indicates those funds will be used on

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 15 of 69
16

behalf of women seeking State office,” and therefore “does not indicate that any portion of the

funds received will be used to support [Senator Stabenow’s] re-election.” Id. Accordingly, the

Commission advised EMILY’s List that it could consider any funds received in response to a

solicitation including the language in Example (c) “to be donations to its non-Federal account.”

Id. at 6-7.

Finally, EMILY’s List’s Advisory Opinion Request stated that it “expect[ed] to implement

its nonfederal objections by making public communications in support of state legislative

initiatives and referenda,” which “would not name a federal or nonfederal candidate, but would

appeal to Democratic women to support or oppose these initiatives.” Pl.’s Attach. D (Advisory

Opinion Request) at 3. EMILY’s List asked the Commission to clarify whether “the reference to

Democrats in these communications requires that the associated costs be paid at least 50% with

funds raised under the restrictions of federal law,” and whether the answer to that question

“depend[ed] on whether EMILY’s List otherwise only supports nonfederal candidates in that state

in this cycle.” Id. In response, the FEC’s Advisory Opinion 2005-13 noted the E&J for the

revised regulations, which stated that “references solely to a political party inherently influence

both Federal and non-Federal elections. Therefore, the 50% Federal funds requirement reflects

the dual nature of the communication.” Pl.’s Attach. E (Advisory Opinion 2005-13) at 4. The

FEC clarified that “[a] discussion of a State legislative initiative or referendum does not alter the

application of these rules,” and reminded EMILY’s List that if it were to remove the reference to

“Democrats” from the communications, EMILY’s List would be permitted to pay for the

communications with 100% nonfederal funds. Id. at 4-5. The Commission also clarified that the

“analysis that EMILY’s List must pay the costs of public communications that refer to a political

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 16 of 69
17

party with at least 50 percent Federal funds does not change based on the activities of EMILY’s

List in the particular State.” Id. at 5.

C. EMILY’s List’s Historical and Present-Day Activities

The parties do not dispute the following facts regarding EMILY’s List’s reported historical

activities:

• In the 2001-2002 election cycle, EMILY’s List raised more than $15.5

million in federal contributions and more than $5.5 million in nonfederal

funds. FEC Stmt. ¶ 5; Pl.’s Resp. Stmt. ¶ 5. In that cycle, EMILY’s List

reported total federal disbursements of over $17.2 million, and reported

total allocated spending of $11.2 million, which was financed with

approximately $5.6 million in federal funds and $5.6 million in nonfederal

funds. Id. 

• In the 2003-2004 election cycle, EMILY’S LIST raised more than $25

million in federal contributions and more than $8 million in nonfederal

funds. FEC Stmt. ¶ 6; Pl.’s Resp. Stmt. ¶ 6. In that cycle, EMILY’s List

reported total federal disbursements of approximately $26 million, and

reported total allocated spending of $16.2 million, which was financed

with approximately $8.1 million in federal funds and $8.1 million in

nonfederal funds. Id.

• In the 2005-2006 election cycle, EMILY’S LIST again raised more than

$25 million in federal contributions and more than $7.8 million in

nonfederal funds. FEC Stmt. ¶ 7; Pl.’s Resp. Stmt. ¶ 7. In that cycle,

EMILY’s List reported total federal disbursements of over $26 million,

and reported total allocated spending of $15.3 million, which was financed

with approximately $7.5 million in federal funds and $7.8 million in

nonfederal funds. Id.

• For the 2007-2008 election cycle, EMILY’S LIST reported raising over

$8.1 million in federal contributions and more than $2.9 million in

nonfederal funds through August 31, 2007. FEC Stmt. ¶ 8; Pl.’s Resp.

Stmt. ¶ 8. In the same period, EMILY’s List reported total federal

disbursements of over $7.1 million, and reported total allocated spending

of $5.9 million, which was financed with approximately $2.9 million in

federal funds and $2.9 million in nonfederal funds. Id. EMILY’s List’s

fundraising and spending totals in the first third of 2005-2006 and 2007-

2008 election cycles exceed the totals at the same point in the comparable

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 17 of 69
 The Commission “objects to [this fact] as conclusory, speculative, and without 8

foundation, because [it relies] upon the Cocanour Declaration.” FEC Resp. Stmt. ¶¶ 29-30. 

Given her position as EMILY’s List Assistant Treasurer and Chief of Staff, Ms. Cocanour’s

Declaration generally provides sufficient factual support for EMILY’s List’s description of its

Campaign Corps program’s activities in the past.

18

election cycles of 2001-2002 and 2003-2004, respectively. FEC Stmt. ¶ 9;

Pl.’s Resp. Stmt. ¶ 9.

• During the ten years prior to the promulgation of the revised regulations at

issue in this case, EMILY’s List never reported an allocation ratio of

federal and nonfederal funds of less than 50%. FEC Stmt. ¶ 11; Pl.’s

Resp. Stmt. ¶ 11. At the end of the 1995-1996 election cycle, EMILY’s

List reported a final allocation ratio of 70% federal candidate support and

30% nonfederal. Id.

• EMILY’s List has described itself as “the nation’s largest political action

committee,” and its president, Ellen Malcom, has stated that EMILY’s List

has “the most hard money, so it’s not an issue of not having it.” FEC

Stmt. ¶ 10; Pl.’s Resp. Stmt. ¶ 10 (quoting EMILY’s List, Press Release,

Feb. 1, 2007, available at http://www.emilyslist.org/newsroom/

releases/20070201.html, and Liz Sidoti, “Bush, Kerry to Pull Ads on

Friday,” Associated Press Newswires, June 7, 2004 (FEC MSJ, Ex. 3)).

The remainder of the EMILY’s List’s factual assertions regarding its activities are more

hotly contested. In particular, EMILY’s List’s Statement of Material Facts describes one specific

program–its “Campaign Corps” program–that EMILY’s List asserts will be affected by the 50%

federal fund minimum in the revised allocation regulation. Pl.’s Stmt. ¶¶ 29-31. According to

EMILY’s List, each year, the Campaign Corps program “trains talented individuals just out of

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

3 months of the campaign.” Id. ¶ 29. EMILY’s List explains that in odd-numbered years, when 8

there are no regularly scheduled federal elections, “the vast majority of students are placed on

campaigns for state and local office in New Jersey and Virginia, which hold elections in these

years. In even years, graduates are placed with both federal and nonfederal campaigns.” Id. ¶ 30. 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 18 of 69
 Again, the Commission objects to these statements as “vague, speculative, and without 9

foundation, because they rely upon the Cocanour Declaration.” FEC Resp. Stmt. ¶ 36. In light

of her position, however, Ms. Cocanour’s Declaration is sufficient factual support insofar as it

describes EMILY’s List’s past activities.

19

EMILY’s List also asserts–based upon Ms. Cocanour’s Declaration–that “[d]uring the 2006

election cycle, 77% of the graduates trained by the program ultimately worked on nonfederal

races.” Id. ¶ 31. EMILY’s List also asserts that it will continue to sponsor the Campaign Corps

program during the 2007-2008 election cycle, id. ¶ 34, and that, but for revised regulation 11

C.F.R. 106.6, it “would pay for this expense with a higher proportion of nonfederal funds, to

reflect its predominantly nonfederal purpose,” id. ¶ 33. As the Commission correctly notes,

however, EMILY’s List does not specify whether its 2006 Campaign Corps graduates worked

solely on nonfederal races, or whether they also spent substantial time working on federal races or

on generic campaign activity. FEC Resp. Stmt. ¶ 31. The Court therefore agrees with the

Commission that EMILY’s List’s statement that the Campaign Corps program has a

“predominantly nonfederal purpose” is conclusory. 

EMILY’s List also asserts that it “has found that the use of the names, association with

EMILY’s List and endorsements of certain well-known federal candidates and officeholders are

uniquely effective at raising funds for EMILY’s List and its efforts on behalf of federal and

nonfederal candidates.” Pl.’s Stmt. ¶ 36; Cocanour Decl. ¶ 18. According to EMILY’s List,

9

prior to the revised regulations, it had made solicitations to raise funds for nonfederal programs

that specifically referred to clearly identified federal candidates, but did not refer to any clearly

identified nonfederal candidates, and it deposited some funds received as a result of those

solicitations in nonfederal accounts. Pl.’s Stmt. ¶ 38; Cocanour Decl. ¶ 20. EMILY’s List

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 19 of 69
20

continues to state that “[a]s a result of the new regulations, [it] has altered its solicitations in order

to be able to accept nonfederal funds as a result of a solicitation,” either by eliminating references

to clearly identified federal candidates in solicitations or by adding references to clearly identified

nonfederal candidates. Pl.’s Stmt. ¶ 39; Cocanour Decl. ¶ 21. 

Specifically, EMILY’s List proffers a solicitation it sent to supporters that includes

references to federal candidates–Senators Debbie Stabenow, Maria Cantwell, Dianne Feinstein,

and Hillary Clinton, as well as Representatives Gwen Moore, Allyson Schwartz, and Melissa

Bean–and also refers to Arizona Governor Janet Napolitano. See Pl.’s MSJ, Attach. A. 

According to EMILY’s List, the reference to Governor Napolitano “was included solely so that

some funds could be treated as nonfederal contributions, for use in local and state elections.” Pl.’s

Stmt. ¶ 39; Cocanour Decl. ¶ 21. EMILY’s List also proffers five advertisements supporting two

ballot initiatives in Missouri that EMILY’s List paid for and distributed, which do not contain any

references to clearly identified federal candidates. See Pl.’s MSJ, Attach. B. EMILY’s List

asserts that it “would have preferred to include a reference to a clearly identified federal candidate

in these advertisements to endorse the ballot initiatives while continuing to pay for them with

nonfederal funds,” but declined to include such a reference because doing so would have required

EMILY’s List to fund the advertisements entirely with federal funds, in light of the lack of

reference to a clearly identified nonfederal candidate. Pl.’s Stmt. ¶ 45; Cocanour Decl. ¶ 27.

The Commission generally objects to EMILY’s List’s statements, asserting that they are

“conclusory, speculative, and without foundation, because they rely on the Cocanour

Declaration,” and specifically objects to EMILY’s List’s assertion that it “would have preferred”

to include a reference to a federal candidate in its ballot initiative advertisements as vague and

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 20 of 69
21

speculative. FEC Resp. Stmt. ¶¶ 38-42; 45. The Court finds, however, that in light of her

position as EMILY’s List’s Assistant Treasurer and Chief of Staff, Ms. Cocanour’s Declaration

provides sufficient factual support for EMILY’s List’s description of specific choices the

organization made as a result of the revised regulations. In contrast, to the extent that EMILY’s

List’s Statement of Material Facts (and Ms. Cocanour’s Declaration) includes various assertions

regarding possible future activities EMILY’s List may undertake, the Court generally agrees with

the Commission that those assertions are speculative. The Court need not–and does not–parse the

FEC’s specific objections to the remainder of the factual assertions contained in EMILY’s List’s

Statement of Material Facts because the Court’s resolution of the pending cross-motions for

summary judgment, below, is premised on legal, rather than factual, grounds. To the extent that

the Court has set forth facts above regarding EMILY’s List’s historical activities, those facts are

necessary to the Court’s analysis of EMILY’s List’s standing to bring this action. However, as the

Court need not consider EMILY’s List’s potential future activities in resolving the legal questions 

dispositive on the pending cross-motions for summary judgment, the Court declines to do so. 

D. Procedural History

As noted above, the challenged regulations went into effect on January 1, 2005, and

EMILY’s List filed its Complaint and Motion for Preliminary Injunction on January 12, 2005. 

The Court denied EMILY’s List’s Motion for Preliminary Injunction in a Memorandum Opinion

and Order dated February 25, 2005, which was affirmed by the D.C. Circuit on appeal on

December 22, 2005. See PI Mem. Op., 362 F. Supp. 3d 43; EMILY’s List v. FEC, 170 Fed. Appx.

719 (D.C. Cir. 2005). In the interim, the parties briefed cross-motions for summary judgment. 

After those cross-motions were fully briefed, on June 25, 2007, the Supreme Court issued its

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 21 of 69
22

decision in Federal Election Commission v. Wisconsin Right to Life. On July 12, 2007, the Court

denied the parties’ initial cross-motions for summary judgment without prejudice and ordered the

parties to file revised briefing that accurately reflected the state of the law. See 7/12/07 Order,

Docket No. [29]. Briefing on the parties’ revised cross-motions is now ripe and, in addition, the

Court has received an amicus brief filed by Senators John McCain and Russell Feingold,

Representative Christopher Shays, Democracy 21, and the Campaign Legal Center in opposition

to Plaintiff’s revised motion for summary judgment.

II. LEGAL STANDARD

A party is entitled to summary judgment if the pleadings, depositions, and affidavits

demonstrate that there is no genuine issue of material fact in dispute and that the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638

(D.C. Cir. 1994). In ruling upon a motion for summary judgment, the Court must view the

evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bayer v. United States Dep’t of Treasury, 956 F.2d

330, 333 (D.C. Cir.1992). Furthermore, in ruling on cross-motions for summary judgment, the

court shall grant summary judgment only if one of the moving parties is entitled to judgment as a

matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517

F.2d 66, 67 (2d Cir. 1975); Long v. Gaines, 167 F. Supp. 2d 75, 85 (D.D.C. 2001). Each moving

party discharges its burden to support its motion by “informing the district court of the basis for its

motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 22 of 69
 As discussed in the Background section above, the FEC repeatedly challenges 10

EMILY’s List’s reliance on Ms. Cocanour’s Declaration in its response to EMILY’s List’s

Statement of Material Facts. The Commission repeats this challenge in its memorandum in

support of its motion for summary judgment, generally asserting that “EMILY’s List has failed to

provide evidence sufficient to support its own motion for summary judgment” because its

Statement of Material Facts relies primarily on Ms. Cocanour’s Declaration for factual support. 

See FEC MSJ at 12. The Court has already concluded that Ms. Cocanour is the Assistant

Treasurer and Chief of Staff of EMILY’s List and is thus in a position of knowledge as to

EMILY’s List’s past activities and specific actions EMILY’s List has taken (or declined to take)

in light of the revised regulations. Her averments in that regard therefore constitute sufficient

support for EMILY’s List’s factual assertions with respect to specific past activities. In contrast,

23

(quoting Fed. R. Civ. P. 56(c)). In opposing a motion for summary judgment, a party must “go

beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’” Id. at 324.

III. DISCUSSION

In addressing the pending cross-motions, the Court first–as it must–considers the

Commission’s argument that EMILY’s List lacks standing to bring its claims. After concluding

that EMILY’s List has standing, the Court turns to the merits of EMILY’s List’s First Amendment

and APA claims, in that order. Although EMILY’s List brings separate claims under the First

Amendment and the APA, which require the Court to apply very different forms of analysis, the

parties’s briefs (particularly those of the FEC) do not clearly delineate their arguments as to each

claim and do not engage in the precise First Amendment analysis required and discussed below. 

This imprecision greatly complicates the Court’s task in evaluating the parties’ arguments. 

Nevertheless, the Court has attempted to parse the parties’ briefs to discern which arguments

relate to each claim. Ultimately, the Court finds, for the reasons discussed below, that the

Commission is entitled to Summary Judgment on all of EMILY’s List’s claims.

10

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 23 of 69
insofar as EMILY’s List makes various assertions regarding its potential future activities, the

Court generally agrees with the Commission that those assertions are speculative. However, as

discussed above, the Court need not rely upon those assertions in resolving the pending crossmotions for summary judgment because the dispositive issues are legal, rather than factual, in

nature.

24

A. Standing 

As an Article III court, this Court’s judicial power is limited to adjudicating actual “cases”

and “controversies.” Allen v. Wright, 468 U.S. 737, 750 (1984). “In an attempt to give meaning

to Article III’s case-or-controversy requirement, the courts have developed a series of principles

termed ‘justiciability doctrines,’ among which are standing[,] ripeness, mootness, and the political

question doctrine.” Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.

Cir. 1996) (citing Allen, 468 U.S. at 750). These doctrines incorporate both the prudential

elements, which “Congress is free to override,” id. (quoting Fair Employment Council of Greater

Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir.1994)) (internal quotations

omitted), and “core component[s]” which are “essential and unchanging part[s] of the case-orcontroversy requirement of Article III,” id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992) (internal quotations omitted)). In order to satisfy the constitutional standing

requirements, a plaintiff must establish that he or she has (1) suffered an injury in fact, which is

concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) which is

fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision. Id.

The Commission focuses its standing argument on the injury-in-fact element, asserting

that EMILY’s List has not been required to alter its practices as a result of the new 50% federal

funds minimum requirement for administrative expenses at 11 C.F.R. § 106.6(c) because it is

undisputed that in the ten years proceeding the new regulations, EMILY’s List never reported less

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 24 of 69
25

than a 50% federal to nonfederal ratio, and EMILY’s List has not proffered evidence that it plans

to significantly alter its spending practices. FEC MSJ at 13. The Commission also argues that

EMILY’s List suffers no injury-in-fact as a result of the allocation and solicitation regulations

because they do not prohibit EMILY’s List “from engaging in electoral speech or in any of the

other campaign activities listed in the regulations” and “impose no expenditure ceiling.” Id. at 13-

14. As discussed in greater detail below, and as this Court previously concluded in its

Memorandum Opinion denying EMILY’s List’s Motion for Preliminary Injunction, “the new rules

do not in fact prevent Plaintiff from engaging in whatever political speech it seeks to undertake.” 

PI Mem. Op., 362 F. Supp. 2d at 58. As such, the Court rejects EMILY’s List’s assertions that it

“has been forced to alter its communications.” Pl.’s MSJ at 10. 

Nevertheless, the Court finds that EMILY’s List has demonstrated an injury-in-fact insofar

as it has actually altered its communications in light of the new regulations. Specifically,

EMILY’s List has proffered a specific solicitation, discussed above, that includes references to

both clearly identified federal candidates and to Arizona Governor Janet Napolitano, see Pl.’s

MSJ at 10-12 & Attach. A, and Ms. Cocanour’s Declaration establishes that the reference to

Governor Napolitano in that solicitation “was included solely so that some funds could be treated

as nonfederal contributions, for use in local and state elections.” Pl.’s Stmt. ¶ 39; Cocanour Decl.

¶ 21. EMILY’s List has also proffered the five ballot initiative advertisements discussed above,

and established that it “would have preferred to include a reference to a clearly identified federal

candidate in these advertisements to endorse the ballot initiatives” but declined to do so because it

would have required EMILY’s List to fund the advertisements entirely with federal funds in light

of the lack of reference to a clearly identified nonfederal candidate. Pl.’s MSJ at 12-14 & Attach.

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 25 of 69
26

B; Pl.’s Stmt. ¶ 45; Cocanour Decl. ¶ 27. At the summary judgment stage, “the plaintiff [may not]

rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’

which for the purposes of the summary judgment motion will be taken to be true.” Lujan, 504

U.S. at 561 (quoting Fed. R. Civ. P. 56(e)). Here, Ms. Cocanour’s Declaration sufficiently

establishes that EMILY’s List has ordered its conduct, in ways it otherwise would not have, in

order to comply with the new allocation and solicitation regulations. As such, EMILY’s List has

established an injury-in-fact, suffered as a result of 11 C.F.R. §§ 100.57 and 106.6(f), which

would be alleviated if the regulations were invalidated. EMILY’s List thus has standing to

challenge 11 C.F.R. §§ 100.57 and 106.6(f). Cf. Becker v. FEC, 230 F.3d 381, 386 (1st Cir. 2000)

(concluding that “an impact on the strategy and conduct of an office-seeker’s political campaign

constitutes an injury of a kind sufficient to confer standing.”) (quoting Vote Choice Inc. v.

DiStefano, 4 F.3d 26, 37 (1st Cir. 1993)). 

As to the 50% minimum allocation requirement for administrative expenses and generic

voter drives contained in revised 11 C.F.R. § 106.6(c), EMILY’s List does not dispute its past

allocation ratios and thus does not attempt to argue that it has suffered an injury-in-fact by virtue

of significantly altering its allocation ratios. EMILY’s List Reply at 4. Instead, EMILY’s List

asserts that it would–if permitted by the regulations–pay for certain administrative expenses, such

as its Campaign Corps program, with more nonfederal funds than federal funds. Id. As discussed

above, EMILY’s List’s description of its Campaign Corps program lacks sufficient detail to

establish–as EMILY’s List asserts–that the program has a “predominantly nonfederal purpose.” 

See Pl.’s Stmt. ¶ 31. Nevertheless, Ms. Cocanour’s Declaration is sufficient to establish that

EMILY’s List has ordered its funding for the Campaign Corps program, in a way it otherwise

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 26 of 69
27

would not have, based on the allocation regulation. As such, the Court finds that EMILY’s List

has established an injury-in-fact stemming from, and thus its standing to challenge, the regulation.

While the Court’s discussion above establishes that EMILY’s List has standing to

challenge the new allocation and solicitation regulations on its own behalf, EMILY’s List does not

bring an as-applied challenge. Instead, EMILY’s List brings a facial challenge to the rules,

asserting that it may do so “[u]nder the First Amendment overbreadth doctrine” because “an

individual whose own speech or conduct may be prohibited is permitted to challenge a statute on

its face ‘because it also threatens others not before the court-those who desire to engage in legally

protected expression but who may refrain from doing so rather than risk prosecution or undertake

to have the law declared partially invalid.’” Pl.’s MSJ at 10 (quoting Bd. of Airport Comm’rs of

City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 503 (1985)). 

The Commission contests this assertion, arguing–albeit not strenuously–that EMILY’s List

lacks standing to bring a facial challenge because the overbreadth doctrine only applies where

“there is a realistic danger that the statute itself will significantly compromise recognized First

Amendment protections of parties not before the Court.” FEC MSJ at 14-15 (quoting City

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801-02 (1984)). The Commission

is correct that EMILY’s List’s Statement of Material Facts does not include specific allegations of

First Amendment injuries suffered by parties not before the Court as a result of the regulations at

issue in this case. This failing, however, goes more to EMILY’s List’s ability–discussed in detail

below–to meet the high standard required to demonstrate that a regulation is unconstitutional on

its face. To the extent that EMILY’s List has altered its conduct in order to comply with the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 27 of 69
28

regulations, other political committees likely have as well and, insofar as EMILY’s List could

establish that the regulations violate the First Amendment, their mere existence would

“significantly compromise recognized First Amendment protections of parties not before the

Court.” Taxpayers for Vincent, 466 U.S. 801-02. EMILY’s List certainly could have, and should

have, proffered more evidence of how it asserts the revised regulations have impacted or will

impact the First Amendment freedoms of others not before the Court, as its showing in that

respect is weak. Nevertheless, in the context of free speech, litigants “are permitted to challenge a

statute not because their own rights of free expression are violated, but because of a judicial

prediction or assumption that the statute’s very existence may cause others not before the court to

refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973). Although it is a close call, the Court finds that this principle is sufficient to tilt

the balance, and concludes that EMILY’s List has standing to assert its facial challenge to the

regulations. The Court therefore turns to the merits of that claim.

B. First Amendment

EMILY’s List’s First Amendment claim is premised on its assertion that “[i]t is unable,

without risking enforcement action by the FEC, to conduct [its] nonfederal activities without

complying with draconian federal financing rules.” Pl.’s MSJ at 15. In order to assess the validity

of this claim, the Court must reach some initial conclusions regarding the type of activity

EMILY’s List asserts is affected by the revised regulations and the resulting level of scrutiny to be

applied to EMILY’s List’s First Amendment claim. The Court also addresses at the outset the

general applicability of the Supreme Court’s decision in Wisconsin Right to Life to EMILY’s

List’s facial overbreadth challenge. These initial considerations are essential to framing the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 28 of 69
29

Court’s consideration of EMILY’s List’s First Amendment claim.

1. The Revised Allocation and New Contribution Regulations Are

Contribution Limits, Subject to Lesser Scrutiny

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

campaign contributions to lesser scrutiny than the “strict scrutiny” applied to restrictions on

campaign expenditures. See Buckley, 424 U.S. at 19; McConnell, 540 U.S. at 134-36; FEC v.

Beaumont, 539 U.S. 146, 161 (2003); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,

387-88 (2000). In so doing, the Supreme Court has “recognized that contribution limits, unlike

limits on expenditures, ‘entail only a marginal restriction upon the contributor’s ability to engage

in free communication.’” McConnell, 540 U.S. at 134-35 (quoting Buckley, 424 U.S. at 20; citing

Beaumont, 539 U.S. at 151; Shrink Missouri, 528 U.S. at 386-88). In addition, contribution limits

do not pose the same danger to associational rights as expenditure restrictions because the

“‘overall effect’ of dollar limits on contributions is ‘merely to require candidates and political

committees to raise funds from a greater number of persons.” Id. at 136 (quoting Buckley, 424

U.S. at 21-22). As a result, the Supreme Court has concluded that “contribution limits impose

serious burdens on free speech only if they are so low as to ‘prevent candidates and political

committees from amassing the resources necessary for effective advocacy.’” Id. at 135 (quoting

Buckley, 424 U.S. at 21) (alterations omitted). Therefore, as opposed to expenditure limits–which

must be narrowly tailored to serve a compelling governmental interest, see Beaumont, 539 U.S. at

162–a contribution limit is “valid if it satisfies the ‘lesser demand’ of being ‘closely drawn’ to

match a ‘sufficiently important interest.’” McConnell, 540 U.S. at 136 (quoting Beaumont, 539

U.S. at 162 (quoting Shrink Missouri, 528 U.S. at 387-88)).

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 29 of 69
30

EMILY’s List does not dispute that contribution limits are subject to lesser scrutiny, Pl.’s

MSJ at 19, and concedes that such lesser scrutiny applies to the solicitation regulation it

challenges, 11 C.F.R. § 100.57, because the rule dictates whether funds received must be treated

as contributions under FECA, id. at 28-29. In contrast, however, EMILY’s List maintains that the

allocation regulations, 11 C.F.R. § 106.6 (c) and (f), are subject to strict scrutiny because they are

restrictions on speech and nonfederal election activity. See id. at 18-20. EMILY’s List’s

arguments are belied by this Court’s findings in denying EMILY’s List’s Motion for Preliminary

Injunction, as well as by the Supreme Court’s analysis of allocation regulations applicable to state

and local parties in McConnell. First, to the extent that EMILY’s List suggests that the allocation

regulations compel it to engage in, or refrain from, certain speech, the Court previously rejected

such a claim, finding that 

the new rules do not in fact prevent Plaintiff from engaging in whatever political

speech it seeks to undertake. While under the new allocation rule, committees

such as EMILY’s List are required to fund certain types of communications using

at least 50 percent federal funds, this does not limit their right to undertake their

desired political expression. In considering contribution limits in Buckley, the

Supreme Court held that “the overall effect of [FECA] contribution ceilings is

merely to require candidates and political committees to raise funds from a greater

number of persons.” Buckley, 424 U.S. at 21-22. Indeed, the same rationale is

applicable to Plaintiff’s present situation; Plaintiff is free to undertake the same

political speech as before, but may be required to raise money from a greater

number of donors [in light of the contribution limits applicable to political

committees under FECA].

PI Mem. Op., 362 F. Supp. 2d at 58. The Court’s prior analysis holds true. While the allocation

regulations at issue in this case may affect the manner in which EMILY’s List must fund the

speech in which it chooses to engage, they do not in any way limit the political speech that

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 30 of 69
 EMILY’s List correctly notes that in WRTL, the Court stressed that First Amendment 11

concerns are not obviated when regulations allow a speaker to “speak by changing what they

say,” stating that such an

argument is akin to telling Cohen that he cannot wear his jacket because he is free

to wear one that says “I disagree with the draft,” cf. Cohen v. California, 403 U.S.

15 [] (1971), or telling 44 Liquormart that it can advertise so long as it avoids

mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 527 U.S. 484 []

(1996). Such notions run afoul of the “fundamental rule of protection under the

First Amendment, that a speaker has the autonomy to choose the content of his

own message.” Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of

Boston, Inc., 515 U.S. 557, 573 [] (1995)

127 S. Ct. at 2671 n.9. As explained above, however, in the instant case, EMILY’s List is free to

engage in whatever political speech it chooses–by mentioning, or refraining from mentioning,

any and all federal and nonfederal candidates–the only impact of the challenged regulations is on

the manner in which EMILY’s List must pay for its speech.

31

EMILY’s List may undertake.11

Moreover, as the FEC correctly highlights, in McConnell, the Supreme Court analyzed and

upheld BCRA’s restrictions–including allocation regulations–on the solicitation and spending of

nonfederal funds by political parties. See 540 U.S. at 138-40. In so doing, the Supreme Court

applied lesser scrutiny because the challenged regulations had “only a marginal impact on the

ability of contributors, candidates, and parties to engage in effective political speech.” Id. at 138. 

The Supreme Court also explicitly rejected a claim that strict scrutiny applied to the regulations

because they “restrict[ed] not only contributions but also the spending and solicitation of funds

raised outside of FECA’s contribution limits,” stating that “for purposes of determining the level

of scrutiny, it is irrelevant that Congress chose [] to regulate contributions on the demand rather

than the supply side.” Id. (citing FEC v. National Right to Work Comm., 458 U.S. 176, 206-11

(1982)). According to the Supreme Court, “[t]he relevant inquiry is whether the mechanism

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

speech in a way that a direct restriction on the contribution itself would not,” but that was “not the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 31 of 69
32

case” for BCRA’s restrictions on the use of nonfederal funds by political parties. Id. at 138-39. 

The Supreme Court’s description of the restrictions on political parties at issue in

McConnell demonstrates that its analysis is equally applicable in the instant case: in McConnell,

the Supreme Court explained that although BCRA’s restrictions prohibited political parties from

spending nonfederal funds on federal election activities, they did not limit the total amount of

money parties could spend on such activities. Id. at 139 (citing 2 U.S.C. §§ 441i(a),(b)). “Rather,

they simply limit[ed] the source and individual amount of donations. That they [did] so by

prohibiting the spending of soft money [did] not render them expenditure limitations.” Id. So

too, here; EMILY’s List may spend as much as it wants on the election activities regulated by 11

C.F.R. § 106.6, but may simply be required to fund all or part those activities with federal funds. 

EMILY’s List attempts to distinguish McConnell’s analysis by asserting that the Supreme

Court in that case “was only passing judgment on the use of [soft] money in connection with

federal elections, and so the ban on nonfederal funds acted only as a contribution limit.” Pl.’s

MSJ at 19. According to EMILY’s List, the instant case is different because the revised allocation

regulation impinges on EMILY’s List’s ability to engage in nonfederal election activity using

nonfederal funds. Id. This assertion gets to the heart of a key dispute between the parties in this

action: EMILY’s List characterizes the activities it seeks to fund with soft money as “wholly” or

“purely” related to state and local elections, see Pl.’s Reply at 1, 14, while the FEC maintains that

the activities regulated by the revised allocation rules are “mixed purpose” activities that influence

both federal and state or local elections, see FEC Reply at 6. For the reasons set forth below, the

Court concludes that the FEC has the better of this argument.

FECA defines a contribution as “any gift, subscription, loan, advance or deposit of money

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 32 of 69
33

or anything of value made by any person for the purpose of influencing any election for Federal

office.” 2 U.S.C. § 431(8) (emphasis added). Under FECA, contributions must be made with

federal funds, but “[d]onations made solely for the purpose of influencing state or local elections

are [] unaffected by FECA’s requirements and prohibitions.” McConnell, 540 U.S. at 122. FECA

does not dictate how political committees are to fund mixed purposes activities, i.e., those

activities that influence both federal and state or local elections, and prior to the passage of

BCRA, “questions arose concerning the treatment of contributions intended to influence both

federal and state elections.” Id. at 123. “Although a literal reading of FECA’s definition of

‘contribution’ would have required such activities to be funded with hard money, the FEC ruled

that political parties [as well as political committees, like EMILY’s List] could fund mixedpurpose activities . . . in part with soft money” through allocation. Id. (emphasis added). This

same reading of FECA’s statutory language was embraced by Judge Thomas A. Flannery in

Common Cause v. FEC, 692 F.Supp. 1391 (D.D.C. 1987). See PI Mem. Op., 362 F. Supp. 2d at

55. Specifically, Judge Flannery found that the FEC had the authority to determine what method

of allocation to use, if any, for mixed purpose activities, stating, “[i]ndeed, it is possible that the

Commission may conclude that no method of allocation will effectuate the Congressional goal

that all money spent by state political committees on [certain] activities permitted in the 1979

amendments [to FECA] be ‘hard money under the FECA.’” 692 F. Supp. at 1396. While Judge

Flannery was considering the applicability of allocation regulations to state party committees in

Common Cause, as this Court previously found when it adopted Judge Flannery’s reasoning in

denying EMILY’s List’s Motion for Preliminary Injunction, “Judge Flannery’s reasoning with

respect to the FEC’s authority to regulate allocation methods is equally applicable in the instant

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 33 of 69
34

context” to political committees such as EMILY’s List. PI Mem. Op. at 56 n.9.

The Court sees no reason to revisit the conclusion that the FEC acts within its discretion in

adjusting the allocation formulas applicable to mixed purpose activities. This conclusion,

however, does not end the analysis; instead, it again begs the question of whether the activities

EMILY’s List claims are affected by the revised allocation regulations are, in fact, wholly

nonfederal, as EMILY’s List maintains, as opposed to mixed purpose activities, as the FEC

maintains. The FEC supports its characterization by demonstrating how each of a set of

hypothetical examples EMILY’s List offers of alleged nonfederal activity that would be impacted

by the allocation regulations, in fact, may influence federal elections. See Pl.’s MSJ at 35-36;

FEC MSJ at 27-28. The Court addresses EMILY’s List’s specific examples below, in the context

of its First Amendment claims and argument that the revised rules exceed the FEC’s authority by

regulating nonfederal election activity. At this point, the Court simply notes the Supreme Court’s

finding in McConnell that “[c]ommon sense dictates” that “federal candidates reap substantial

rewards from any efforts that increase the number of like-minded voters who actually go to the

polls.” 540 U.S. at 167-68. While EMILY’s List characterizes the communications that will be

impacted by the revised allocation regulations as “wholly” nonfederal, at least some of the

communications it describes could well influence federal elections, in addition to state or local

elections, and are thus properly characterized as “mixed purpose” activities within the FEC’s

purview to regulate. See Pl.’s MSJ at 35-36; FEC MSJ at 27-28. For example, EMILY’s List

complains that, under 11 C.F.R. § 106.6(f) “[a] communication in support of a state legislative

candidate must be paid part with federal funds if the communication mentions endorsement of the

candidate by a federal officeholder who is running for reelection.” Pl.’s MSJ at 36. “Common

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 34 of 69
35

sense,” however, suggests that a communication encouraging recipients to vote for a state or local

candidate in part based upon her endorsement by a federal officeholder might well influence the

federal officeholder’s bid for reelection by enticing those who support the federal officeholder to

go to the polls and vote for both candidates. 

As such, the Court rejects EMILY’s List’s attempt to distinguish the instant case from

McConnell’s analysis based on a claim that the revised allocation rules impact purely nonfederal

election activity. In McConnell, the Court analyzed restrictions on the solicitation and spending

of nonfederal funds by state and local parties as contribution limits, notwithstanding the fact that

they “capture[d] some activities that affect state campaigns for nonfederal offices” “because they

affect[ed] federal as well as state elections.” 540 U.S. at 166. So too, here, the Court considers

the allocation regulations to be contribution limits, and thus subjects them to lesser scrutiny by

asking whether they are “closely drawn” to support a “sufficiently important interest.” Id. at 136.

2. Wisconsin Right to Life Does Not Control The Court’s Analysis in the

Instant Case

EMILY’s List also argues that the revised allocation rules must be subjected to strict

scrutiny in light of the Supreme Court’s decision in WRTL, and more generally argues that WRTL

establishes that the allocation regulations violate the First Amendment. In contrast, the

Commission and amici argue that WRTL is distinguishable from this case in several key respects,

and therefore does not control the Court’s analysis here. Again, the Court finds that the

Commission has the better of this argument.

WRTL involved an as-applied challenge to BCRA’s prohibition on corporations and

unions using treasury funds to make expenditures for “electioneering communications,” which are

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 35 of 69
36

defined as broadcast, cable, or satellite communications that “refer[] to a clearly identified

candidate for federal office” and are made shortly before an election and targeted to the relevant

electorate. 2 U.S.C. §§ 434(f)(3)(A) and 441 b(b)(2),(c). McConnell upheld these restrictions

against a facial challenge, but the Supreme Court subsequently concluded that McConnell left

open the possibility of an as-applied challenge, in the event that the bright-line definition of

“electioneering communications” captured “genuine issue ads” in addition to election-related

speech. Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) (per curiam);

McConnell, 540 U.S. at 207. The non-profit corporation plaintiff in WRTL posed just such an asapplied challenge, arguing that its proposed ads were “genuine issue ads” free from restraint under

the First Amendment. See generally 127 S. Ct. 2652. The Supreme Court agreed, finding that the

First Amendment does not permit the restriction of corporate speech unless it is express advocacy

or the “functional equivalent of express advocacy.” Id. at 2667, 2671. 

WRTL is distinguishable from the instant case in several key ways. First, in WRTL, the

Supreme Court applied strict scrutiny to BCRA’s “electioneering communications” provision

because it “burdens political speech.” Id. at 2664. While EMILY’s List argues that WRTL

dictates that the Court apply strict scrutiny to the allocation regulation in this case, as discussed

above, the allocation regulation does not prevent EMILY’s List from engaging in political speech,

see PI Mem. Op., 362 F. Supp. 2d at 58, and is instead a contribution limit analyzed under lesser

scrutiny. Second, WRTL involved an as-applied challenge, while EMILY’s List brings a facial

challenge, and thus must “carr[y] [the] heavy burden of proving that [the challenged regulations

are] overbroad.” McConnell, 540 U.S. at 207. For these two reasons, the plaintiff’s burden in

WRTL and EMILY’s List’s burden in the instant case are substantially different. 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 36 of 69
37

EMILY’s List also points out that the corporation in WRTL had a federally registered

political committee funded with federal funds, but sought to fund its issue advertisement with its

corporate treasury funds, i.e., funds not regulated by the FEC. Pl.’s MSJ at 18-19. EMILY’s List

claims that it “is in an identical position to the plaintiff” in WRTL, apparently attempting to

analogize the corporation’s treasury funds (not regulated by the FEC) to EMILY’s List’s

nonfederal account. Id. This argument raises the third key difference between the instant case

and WRTL: the type of entities involved. The plaintiff in WRTL was a corporation, while

EMILY’s List is a federally registered political committee. FECA defines a “political committee”

as “any committee, club, association, or other group of persons which receives contributions

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

in excess of $1,000 during a calendar year.” 2 U.S.C. § 431(4)(A). In addition, however, in

Buckley, the Supreme Court noted that this pure definition might raise constitutional vagueness

and overbreadth problems because the requirement that “political committees” disclose their

“expenditures” “could be interpreted to reach groups engaged purely in issue discussion” as

opposed to federal campaign activity. See 424 U.S. at 79. The Court found that “[t]o fulfill the

purposes of [FECA]” while avoiding constitutional concerns, “the words ‘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.” Id. According to the Supreme Court,

“[e]xpenditures of candidates and of ‘political committees’ so construed can be assumed to fall

within the core area sought to be addressed by Congress [because] [t]hey are, by definition,

campaign related.” Id. In contrast, for expenditures made by those other than candidates and

political committees, the Court applied a narrowing gloss to avoid constitutional concerns, by

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 37 of 69
38

interpreting the term “expenditure” to reach “only funds used for communications that expressly

advocate the election or defeat of a particular federal candidate.” Id. at 79-80.

This discussion of Buckley crystalizes the difference between the plaintiff corporation in

WRTL–an entity other than a political committee whose communications only constitute

expenditures if they include express advocacy or the functional equivalent thereof–and EMILY’s

List–a federally registered political committee whose “major purpose” is the nomination or

election of a candidate, and whose activities are “by definition, campaign related.” Buckley, 424

U.S. at 79-80. The Supreme Court has since reaffirmed this interpretation: in FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), the Court noted that

“should [a particular nonprofit corporation’s] independent spending become so extensive that the

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

classified as a political committee” and thus “automatically be subject to the obligations and

restrictions applicable to those groups whose primary objective is to influence political

campaigns.” Id. at 262 (citing Buckley, 424 U.S. at 79)); see also McConnell, 540 U.S. at 169

n.64 (citing Buckley’s major purpose test as eliminating vagueness concerns with respect to the

term “expenditure” because “political committee’s expenditures ‘are, by definition, campaign

related’”).

Further, in California Medical Association v. FEC, 435 U.S. 182 (1981), the Supreme

Court specifically upheld the contribution limits FECA applied to nonconnected multicandidate

political committees, like EMILY’s List, on the grounds that they were enacted “in part to prevent

circumvention of the very limitations on contributions that [the Supreme] Court upheld in

Buckley.” Id. at 197-98. In so doing, the Court specifically explained how, in the absence of such

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 38 of 69
39

limitations on contributions to political committees, FECA’s “contribution limitations could be

easily evaded.” Id. Also in California Medical Association, the Supreme Court specifically noted

the “differing restrictions” FECA placed on political committees, on the one hand, and on

corporations and unions, on the other, stating that those differing restrictions “reflect a judgment

by Congress that these entities have differing structures and purposes, and that they therefore may

require different forms of regulation in order to protect the integrity of the electoral process.” Id.

at 201. Accord, McConnell, 540 U.S. at 158; National Right to Work, 459 U.S. at 210.

The FEC thus correctly stresses that, as a political committee, EMILY’s List, by definition,

has the major purpose of influencing federal elections, and may be regulated differently than the

nonprofit corporation plaintiff in WRTL. For its part, EMILY’s List opposes the Commission’s

reliance on Buckley’s “major purpose” test, asserting that the Commission has not defined what

constitutes an organization’s “major purpose” and has not included the test in its regulations. Pl.’s

Reply at 8-10. EMILY’s List’s arguments in this respect, however, do not undercut the FEC’s

showing that EMILY’s List’s status as a political committee bears upon the manner in which it

may be regulated. As an initial matter, regardless of the FEC’s implementation of the major

purpose test, the Supreme Court precedent discussed above makes clear that Buckley’s “major

purpose” narrowing gloss is relevant to determining whether an organization is a political

committee because it avoids constitutional vagueness and overbreadth. See MCFL, 479 U.S. at

262; McConnell, 540 U.S. at 169 n.64; see also Shays, 511 F. Supp. 2d 19, 30-31 (2007). 

Moreover, the fact that the FEC has not incorporated the major purpose test into regulations does

not demonstrate that the test has not actually been applied. To the contrary, the FEC proffers

evidence that it has applied the major purpose test sporadically since 1988. See FEC Reply at 7

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 39 of 69
40

(citing examples, including Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), vacated on other

grounds, 524 U.S. 11 (1998); FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), amended on

reconsideration, 2005 WL 588222 (D.D.C. Mar. 7, 2005) and FEC Advisory Opinions 2006-20

and 1988-22). Finally, while EMILY’s List is correct that the Commission has not defined the

term “major purpose” in its regulations, Judge Emmet G. Sullivan recently concluded that the

Commission could proceed in this regard via case-by-case adjudication rather than rulemaking. 

See Shays v. FEC, 511 F. Supp. 2d 19 (2007). As such, the Court continues to agree with the FEC

that EMILY’s List, as a political committee with the major purpose of federal campaign activity,

may be regulated differently from the nonprofit corporation in WRTL. 

EMILY’s List is undoubtedly correct that its status as a political committee does not

automatically give the FEC authority to regulate its legitimately nonfederal election activities. See

Pl.’s Reply at 7. As Judge Flannery noted in Common Cause, “FECA regulates federal elections

only,” and does not suggest that the Commission’s jurisdiction “reach[es] beyond federal elections

and into the realm of state elections.” 692 F.Supp. at 1395. However, EMILY’s List has

designated itself as a political committee registered with the FEC, and does not deny that its major

purpose is federal campaign activity and that it engages in activities for the purpose of influencing

federal elections. As such, the fact that EMILY’s List also engages in nonfederal activity does not

insulate EMILY’s List from being required to fund its federal campaign activities and mixed

purpose activities with federal funds. In short, the Court concludes that WRTL is distinguished

from the instant case by EMILY’s List’s status as a political committee, the fact that it challenges

contribution limits rather than electioneering communication restrictions, and its mounting of a

facial challenge rather than an as-applied challenge. Accordingly, while the Court takes WRTL’s

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 40 of 69
41

analysis and holdings into account in considering EMILY’s List’s First Amendment claim, it does

not consider that case dispositive of EMILY’s List’s claim in this case.

3. Applying Lesser Scrutiny to the Challenged Regulations

Having concluded that all of the challenged regulations are subject to the lesser scrutiny

the Supreme Court has applied to contribution limits, the Court now continues to apply that

scrutiny, by asking whether the regulations are “‘closely drawn’ to match a ‘sufficiently important

interest.’” McConnell, 540 U.S. at 136 (quoting Beaumont, 539 U.S. at 162 (quoting Shrink

Missouri, 528 U.S. at 387-88)). 

a. The Challenged Regulations Serve the Important Governmental

Purposes of Preventing Corruption and the Appearance of

Corruption By Foreclosing Circumvention of FECA’s Rules

As the FEC correctly notes, “[s]ince Buckley, the Supreme Court has repeatedly held that

the statutory contribution restrictions serve the important governmental purposes of preventing

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

circumvention of those provisions.” FEC MSJ at 22 (citing Buckley, 424 U.S. at 26-28, 46-47;

FEC v. Colorado Repub. Fed. Campaign Comm., 533 U.S. 431 (2001); Beaumont, 539 U.S. at

160; and McConnell, 540 U.S. at 143-45)). Further, as explained above, the Supreme Court

specifically upheld contribution limits as applied to nonconnected multicandidate political

committees in California Medical Association as “an appropriate means by which Congress could

seek to protect the integrity of the contribution restrictions upheld by [the Supreme Court] in

Buckley.” 453 U.S. at 198-99. FECA expressly limits the contributions that political committees

may make to candidates and dictates that those contributions be funded by hard money subject to

FECA’s source and amount limitations. 2 U.S.C. §§ 431(8); 441a(a)(2)(A). The challenged

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 41 of 69
42

solicitation regulation, 11 C.F.R. § 100.57, which all parties agree is a contribution limit, serves to

prevent the circumvention of these contribution limits by specifying when funds received by

political committees in response to solicitations will be treated as contributions under FECA. 

The revised allocation regulations similarly serve the important governmental purposes of

preventing corruption and the appearance of corruption by foreclosing the circumvention of

FECA’s contribution limits. In light of FECA’s restrictions on the ability of political committees

to contribute to candidates, allowing political committees to fund activities intended to influence

federal elections with nonfederal funds would directly circumvent FECA’s restrictions. Indeed, in

denying EMILY’s List’s Motion for Preliminary Injunction, the Court previously concluded “that

the FEC promulgated these rules in an effort to close an oft-exploited loophole in federal election

law,” and “that the FEC is empowered under FECA to modify allocation rules to ensure that

unregulated monies are not improperly used to influence federal elections.” PI Mem. Op., 362 F.

Supp. 2d at 57; Cf. Common Cause, 692 F. Supp. at 1395 (“[W]ith respect to federal elections,

‘soft money’ cannot properly be used for these activities under the FECA”). 

As this Court also previously concluded, “Plaintiff has not demonstrated any right,

statutory or otherwise, to the former system of allocation rules.” PI Mem. Op., 362 F. Supp. 2d at

55. To the contrary, both the Supreme Court in McConnell and Judge Flannery in Common Cause

have found that a system allowing political committees to allocate the costs of mixed purpose

activities is not required by–and may in fact be contrary to–a strict reading of FECA’s language. 

McConnell, 540 U.S. at 123; Common Cause, 692 F. Supp. at 1396. Indeed, in McConnell, the

Supreme Court indicated that the “FEC’s allocation regime” applicable to political committees

prior to BCRA “subverted” the purposes of FECA by allowing political parties “to use vast

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 42 of 69
43

amounts of soft money in their efforts to elect federal candidates.” 540 U.S. at 124. 

Further, the record in this case reveals that the “funds expended” allocation method in

place prior to the challenged revisions “allowed non-party committees to calculate the federal

portions of their allocated spending at or close to zero.” PI Mem. Op., 362 F. Supp. 2d at 48. As

the example of ACT vividly demonstrates, those allocation calculations were not always reflective

of the political committees’ actual spending on behalf of federal candidates or in connection with

federal elections. See Amici Br. at 14-18. To the contrary, operating under the “funds expended”

method, ACT applied an allocation ratio of 2% federal funds and 98% nonfederal funds for its

administrative expenses and generic voter drives rather than the appropriate allocation of 90%

federal funds to 10% nonfederal funds, and improperly characterized disbursements directly

attributable to clearly identified federal candidates as “administrative expenses.” FEC MSJ, Ex.

17 (Conciliation Agreement). Allegations regarding ACT’s improper application of the “funds

expended” method were brought to the Commission’s attention during the rulemaking and are

part of the rulemaking record in this case. Amicus Br. at 19-20. 

EMILY’s List nevertheless argues that because it is nonconnected political committee (as

opposed to a party political committee like the ones Congress focused on in BCRA), the

Commission’s “concern with corruption, or its appearance, on which the regulation of federal

campaign finance depends, is attenuated.” Pl.’s MSJ at 20. As the Supreme Court explained in

McConnell, however, FECA and BCRA are “premised on Congress’ judgment that if a large

donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of

corruption or the appearance of corruption.” McConnell, 540 U.S. at 167. EMILY’s List’s status

as nonconnected political committee does not insulate it from that judgment. As California

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 43 of 69
44

Medical Association noted, Congress decided to

impose more precisely defined limitations on the amount an individual may

contribute to a political committee . . . [based] on the following considerations:

first, these limits restrict the opportunity to circumvent the [] limits on

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

reports reveal the root source of the contributions the candidate has received; and

third, these limitations minimize the adverse impact on the statutory scheme

caused by political committees that appear to be separate entities pursuing their

own ends, but are actually a means for advancing a candidate’s campaign.

453 U.S. at 199 n.18 (quoting H.R. Conf. Rep. No. 94-1057, pp. 57-58 (1976)). Nor is the risk of

corruption limited by the fact that the allocation regulations relate in part to EMILY’s List’s

administrative expenses.

If unlimited contributions for administrative support are permitted, individuals

and groups . . . could completely dominate the operations and contribution

policies of independent political committees . . . . Moreover, if an individual or

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

moneys solicited by that committee could be converted into contributions, the use

of which might well be dictated by the committee’s main supporter. In this

manner, political committees would be able to influence the electoral process to

an extent disproportionate to their public support and far greater than the

individual or group that finances the committee’s operations would be able to do

acting alone. In so doing, they could corrupt the political process in a manner that

Congress, through its contribution restrictions, has sought to prohibit.

Id. at 199 n.19. Further, while FECA imposes limits on political committees’ abilities to make

contributions to federal candidates, see 2 U.S.C. § 441a(a)(2)(A), those limits would be of little

value if political committees were allowed–as ACT did–to circumvent them simply by

characterizing their activities or disbursements as nonfederal or not attributable to clearly

identified candidates.

EMILY’s List acknowledges that the FEC may “regulate reasonably in aid of enforcement

of federal contribution limits.” Pl.’s MSJ at 23. Nevertheless, EMILY’s List suggests that the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 44 of 69
45

anticircumvention goals of the solicitation and allocation regulations should no longer be

considered “sufficiently important” government interests in light of WRTL. EMILY’s List is

correct that the WRTL Court concluded that a prophylactic, anticircumvention rationale did not

constitute the “compelling interest” required by strict scrutiny to justify regulations on

electioneering communications by corporations that were not the functional equivalent of express

advocacy. See 127 S. Ct. at 2671-72. However, WRTL expressly acknowledged that the Supreme

“Court has long recognized ‘the governmental interest in preventing corruption and the

appearance of corruption’ in election campaigns” and that “[t]his interest has been invoked as a

reason for upholding contribution limits.” Id. at 2672 (emphasis in original). As such, WRTL

simply does not mean that the FEC’s asserted anticircumvention rationale is not a “sufficiently

important interest” to justify the contributions limits in this case under lesser scrutiny.

EMILY’s List also argues that the “activities at issue [in this case are] outside the reach of

[FECA]: nonfederal activities, conducted by a nonconnected committee active in both federal and

nonfederal elections.” Pl.’s MSJ at 22. But the Court has already rejected EMILY’s List’s

characterization of its impacted activities as purely nonfederal in nature. EMILY’s List’s attempt

to rely upon WRTL’s rejection of a “greater-includes-the-lesser approach”–by suggesting that the

FEC erroneously assumes it can regulate EMILY’s List’s nonfederal activities simply by virtue of

its status as a political committee–is thus unavailing. Id. In WRTL, the Supreme Court rejected

the suggestion that the FEC could legitimately regulate issue advocacy because it could regulate

express advocacy. 127 S. Ct. at 2671. Here, in contrast, the Court has already concluded that the

revised regulations fall within the FEC’s purview because they relate to mixed purpose activities. 

See PI Mem. Op., 362 F. Supp. at 56-57. To the extent that the activities impacted by the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 45 of 69
46

challenged regulations influence federal as well as nonfederal elections, they pose the same risks

of corruption and the appearance thereof that the Supreme Court addressed in California Medical

Association. While the Court considers below whether the regulations are adequately tailored to

serve those “important” government interests, the Court finds that EMILY’s List’s ipse dixit that

its impacted activities are nonfederal in nature does not establish that they cannot be regulated in

order to avoid the circumvention of FECA’s contribution limits.

b. The Allocation Rules in 11 C.F.R. §§ 106.6(c) and (f) Are “Closely

Drawn” to Match These “Sufficiently Important Interests”

The FEC summarizes the revised rule at 11 C.F.R. § 106.6(f) by stating, “[i]n sum, public

communications and voter drives referring solely to clearly identified federal candidates must be

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

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

nonfederal candidates are subject to the time/space method of allocation under 11 C.F.R. §

106.1.” FEC MSJ at 25; see also 69 Fed. Reg. 68,059 (summarizing 11 C.F.R. § 106.6(f)). 

Similarly, the allocation rule at 11 C.F.R. § 106.6(c) requires that political committees finance

their administrative expenses, generic voter drives, and public communications that refer to a

political party but not specific candidates with at least 50% federal funds. 11 C.F.R. § 106.6(c).

Although EMILY’s List addresses the allocation regulations under the rubric of strict

scrutiny, which the Court has concluded does not apply in the instant case, a number of EMILY’s

List’s arguments appear to suggest that the new allocation regulations likewise do not meet lesser

scrutiny because they are not “closely drawn” to match the Government’s objectives. First,

EMILY’s List correctly notes that the allocation regulations “hinge the requirement of federal

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 46 of 69
47

funding on a mere reference to a clearly identified candidate for federal office,” in the case of 11

C.F.R. § 106.6(f), or reference to a political party, in the case of 11 C.F.R. § 106.6(c), and argues

that this standard is impermissible in light of WRTL’s rejection of a “mere reference” standard. 

Pl.’s MSJ at 23-25. WRTL, however, does not establish that a “reference” standard is

impermissible in this context. WRTL rejected the reference standard included in BCRA’s

electioneering communications regulation as it applied to a corporation, i.e., an entity other than a

candidate or political committee. 127 S. Ct. at 2667, 2671. In contrast, the reference standard in

11 C.F.R. § 106.6 applies to the speech of political committees, “the major purpose of which is

the nomination or election of a candidate,” and whose activities are “by definition, campaign

related.” Buckley, 424 U.S. at 79. Again, because the Supreme Court has repeatedly upheld

“differing restrictions” on various actors in the political arena in light of their “differing structures

and purposes,” WRTL’s conclusions as to the nonprofit corporation in that case are not dispositive

in this case. Calif. Med. Ass’n, 453 U.S. at 201; McConnell, 540 U.S. at 158; National Right to

Work, 459 U.S. at 210.

EMILY’s List also argues that the “breadth of the Commission’s position” (by which it

apparently means to suggest a lack of close tailoring) is demonstrated by the Commission’s

responses, in Advisory Opinion 2005-13, to EMILY’s List’s questions regarding a proposed

communication featuring Senator Debbie Stabenow of Michigan to be distributed outside of that

state. Pl.’s MSJ at 24. As EMILY’s List correctly notes, the Commission found that “[r]egardless

of context,” the reference to Senator Stabenow triggered a federal financing requirement, and held

that the analysis would not change if the communication instead referred to a federal candidate not

running for reelection in the year the communication was distributed. See Pl.’s MSJ, Attach. E

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 47 of 69
 In its motion for summary judgment, EMILY’s List offers another hypothetical 12

example of a communication that it believes demonstrates the overbreadth of the allocation and

solicitation regulations, stating that “[a] communication raising funds for a political committee’s

program to support generally state and local candidates must be paid entirely with federal funds,

as a federal election activity, if it refers to a federal candidate who has endorsed the program or

otherwise vouched publicly for its effectiveness.” Pl.’s MSJ at 36. While this hypothetical is

somewhat vague, it appears to describe EMILY’s List’s proposed communication referencing

Senator Stabenow, and as such the Court’s discussion above demonstrates how it may influence

federal elections. 

48

(Advisory Opinion 2005-13). This example, however, fails to show that the allocation regulation

is not closely tailored to serve the interests identified above; as amici note, a communication

referring to Senator Stabenow might well inspire recipients outside of her home state to contribute

to her campaign, and thus influence her federal election, or might otherwise raise her national

profile and ultimately influence her election. Amicus Br. at 42 n.48. 

12

In addition, EMILY’s List offers a number of other hypothetical examples, which it claims

(albeit in the context of its APA argument) demonstrate the purported overbreadth of 11 C.F.R. §

106.6. In the context of considering a challenge to a state election law on its face, rather than in

the context of an actual election, the Supreme Court has recently noted that “[i]n determining

whether a law is facially invalid, [the Court] must be careful not to go beyond the statute’s facial

requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange v.

Wash. State Repub. Party, --- U.S. ---, 128 S. Ct. 1184, 1190 (2008) (citing United States v.

Raines, 362 U.S. 17, 22 (1960)). Washington State Grange, however, specifically distinguished

“a second type of facial challenge in the First Amendment context under which a law may be

overturned as impermissibly overbroad because a ‘substantial number’ of its applications are

unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep.’” Id. at n.6 (quoting

New York v. Ferber, 458 U.S. 747, 769-71 (1982) (quoting Broadrick, 413 U.S. at 615)). 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 48 of 69
49

Washington State Grange also asserted again that a finding of facial overbreadth is “strong

medicine” and is not applied “where the parties fail to describe the instances of arguable

overbreadth of the contested law.” Id. (quoting New York State Club Assn., Inc. v. City of New

York, 487 U.S. 1, 14 (1988)). As such, the Court addresses EMILY’s List’s proffered

hypotheticals below, and finds that far from demonstrating “substantial overbreadth,” EMILY’s

List’s hypotheticals actually show that what EMILY’s List views as “purely” nonfederal activity

may quite plausibly influence federal elections as well. 

Three of EMILY’s List’s examples involve references to clearly identified federal

candidates: in one case the President running for reelection, in another two out-of-state Senators

that have raised enough money to be considered federal candidates, and in the third a federal

officeholder running for reelection and endorsing a state legislative candidate. See Pl.’s MSJ at

35-36. As the Court already accepted above, see supra pp. 34-35, in the last example, the

communication including a federal candidate’s endorsement of a state candidate might well

induce voters favoring the federal candidate to go to the polls and vote for both. FEC MSJ at 28. 

Similarly, in EMILY’s List’s first example, a communication that “promotes a gubernatorial

candidate, by citing his support of an incumbent President’s social or fiscal policies,” could

prompt voters that support the President to go to the polls and vote for him in addition to the

gubernatorial candidate. Finally, even in EMILY’s List’s second example, where the

communication promotes a gubernatorial candidate on the basis of his support for legislation

sponsored by two out-of-state Senators, the communication could affect an in-state federal

election by “suggest[ing] that its audience support a party’s full slate of candidates (federal and

state) on the basis of their alliance with a prominent out-of-state candidate’s policies or the out-ofCase 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 49 of 69
 EMILY’s List’s fifth proffered hypothetical examples poses a slightly more difficult 13

question than the ones discussed above, noting correctly that under 11 C.F.R. § 106.6(c), a

“communication supporting a political party generally and that refers to no candidates, that is run

before an election in which there are no federal candidates on the ballot, must be paid for with

fifty percent federal funds.” Pl.’s MSJ at 36. Nevertheless, the Supreme Court has made “clear []

that the mere fact that one can conceive of some impermissible applications of a [regulation] is

not sufficient to render it susceptible to a[] [facial] overbreadth challenge.” Taxpayers for

Vincent, 466 U.S. at 800.

 The same analysis applies to the ballot initiative advertisements that EMILY’s List 14

proffers in support of its standing argument, discussed above, see Pl.’s Attach. B, which would

have to be funded with 100% federal funds under 11 C.F.R. § 106.6(f) if they referred to a clearly

identified federal candidate but not to any clearly identified nonfederal candidate. The FEC is

correct that common sense suggests that “encouraging sympathetic voters to vote for the ballot

measure gets them to the polls, where the endorsing federal candidate is on the ballot.” FEC

MSJ at 28-29 n.24.

50

state candidate’s support for the in-state candidates.” FEC MSJ at 28. 

In McConnell, the Supreme Court recognized that a “campaign need not mention federal

candidates to have a direct effect on voting for such a candidate” because “federal candidates reap

substantial rewards from any efforts that increase the number of like-minded registered voters

who actually go to the polls.” 540 U.S. at 167-68. This analysis fits with the requirement in 11

C.F.R. § 106.6(c) that a political committee’s public communications that refer to a political party

but not to specific candidates must be funded with at least 50 percent federal funds–suggested in

EMILY’s List’s final example, Pl.’s MSJ at 36 –“because undifferentiated support of a political 13

party denotes support of all of its candidates, federal and nonfederal.” FEC MSJ at 28.14

Similarly, 11 C.F.R. § 106.6(c) requires federal political committees to fund

administrative expenses and generic voter drives with at least 50% federal funds. EMILY’s List

suggests that this requirement is overbroad because the “allocation ratio does not depend on the

relative federal activity of an organization.” Pl.’s MSJ at 8. As an example, EMILY’s List posits

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 50 of 69
 EMILY’s List also offers the example of its Campaign Corps program in attempting to 15

argue that the allocation rule at 11 C.F.R. § 106.6(c) may inhibit nonfederal election activity. 

See Pl.’s MSJ at 14-15. As the Court concluded above, however, EMILY’s List’s description of

that program is not sufficiently detailed to support its assertion that the program has a

predominantly nonfederal purpose.

51

that “[a] political committee that spends 99 percent of its funds in state and local races must use

50 percent federal funds for its administrative and generic expenses.” Id. That hypothetical is 15

unconvincing, however, because EMILY’s List does not explain why a political committee that

spends 99% of its funds on nonfederal races would be considered to have the “major purpose” of

federal campaign activity, or would not choose to operate as separate federal and nonfederal

committees. FEC MSJ at 33. 

In short, California Medical Association specifically considered and determined that

administrative expenses of political committees offer the potential for corruption of the political

process. 453 U.S. at 199 n.19. The revised allocation regulation at 11 C.F.R. § 106.6(c)

represents the Commission’s judgment that, consistent with their status, political committees who

are registered with the FEC and have the major purpose of campaign activity should not be

allowed to fund their administrative expenses and generic voter drives with more nonfederal funds

than federal funds. 69 Fed. Reg. 68,062. And, as even WRTL recognizes, such prophylactic

anticircumvention measures have been upheld in the context of contribution limits. See 127 S. Ct.

at 2671-72; see also McConnell, 540 U.S. at 676 (giving “deference to [the] congressional

determination of the need for [a] prophylactic rule” requiring state and local parties to pay the

salaries of employees who spend more than 25% of their compensated time on activities in

connection with a federal election with 100% federal funds). 

As to whether the provision in 11 C.F.R. § 106.6(f) is “closely drawn,” it is significant that

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 51 of 69
52

the rule provides for the allocation of costs of public communications that refer to both federal

and nonfederal candidates “based on the proportion of space or time devoted to each clearly

identified Federal candidate as compared to the total space or time devoted to all clearly identified

candidates.” Id. at § 106.6(f)(3)(i). This allocation method–which EMILY’s List completely

ignores in its briefs–is undoubtedly closely tailored because “to the extent the federal references

are [a small part] of the communication, [] the federal share of the expenditure would be

proportionately small under the time/space allocation rules.” FEC MSJ at 28. “Conversely, if the

federal candidate making the endorsement [or referenced] is prominently featured in the ad, it is

reasonable to require a larger federal allocation because the ad may promote the federal

candidate’s own campaign as well as that of the non-federal candidate.” Amici Br. at 42. Further,

with respect to public communications that reference either only federal or only nonfederal

candidates, the allocation rule at 11 C.F.R. § 106.6(f) requires that the communication be financed

accordingly. While EMILY’s List may be able to suggest hypothetical examples in which it

would prefer to reference only a federal candidate in a communication to be sent in support of

unidentified state candidates (such as its example involving Senator Stabenow), as discussed

above, it cannot show that such a communication would not, in fact, influence a federal election. 

Moreover, “it is clear [] that the mere fact that one can conceive of some impermissible

applications of a [regulation] is not sufficient to render it susceptible to an overbreadth challenge.” 

Taxpayers for Vincent, 466 U.S. at 800. 

Finally, to the extent that EMILY’s List premises its First Amendment challenge to the

allocation regulations on its claim that the regulations inhibit its ability to engage in nonfederal

election activity as it sees fit, that claim is insufficient to demonstrate that the regulation is facially

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 52 of 69
53

invalid. As the Supreme Court has concluded, contribution limits “impose serious burdens on

free speech only if they are so low as to prevent candidates and political committees from

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

List cannot make such a showing here, with respect to itself, because it is undisputed that, even

with the revised allocation regulations in place, EMILY’s List raised more than $8.1 million in

federal funds during the first three quarters of the “off-year” 2007. See FEC Ex. 19. It is likewise

undisputed that EMILY’s List’s fundraising and spending totals in the first third of 2005-2006 and

2007-2008 election cycles exceed the totals at the same point in the comparable election cycles of

2001-2002 and 2003-2004, respectively. FEC Stmt. ¶ 9; Pl.’s Resp. Stmt. ¶ 9. As such, the

evidence certainly does not demonstrate that the allocation regulations have prevented EMILY’s

List from amassing the resources necessary for effective advocacy.

EMILY’s List also cannot establish that the revised allocation regulations at 11 C.F.R. §

106.6(c) and (f) are facially overbroad. To the contrary, the discussion above reveals that the

regulations are in most cases “closely drawn” to match the “sufficiently important interests” of

preventing corruption and the appearance of corruption by preventing the use of federal funds for

communications that may influence federal elections, and thus foreclosing the circumvention of

FECA’s contribution restrictions. EMILY’s List thus fails to “carr[y] [its] heavy burden of

proving that” the allocation regulation is facially overbroad. McConnell, 540 U.S. at 207. “Even

if [the Court] assumed that [the allocation regulation will inhibit some nonfederal election

activity], that assumption would not ‘justify prohibiting all enforcement’ of the [regulation] unless

its application to protected speech is substantial, ‘not only in an absolute sense, but also relative to

the scope of the law’s plainly legitimate applications.’” Id. (quoting Virginia v. Hicks, 539 U.S.

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 53 of 69
54

113, 120 (2003)). “Far from establishing” that the allocation regulation’s application to

nonfederal activity “is substantial, either in an absolute sense or relative to its application to”

federal activity, the discussion above “strongly supports the contrary conclusion.” Id. As such,

the Court rejects EMILY’s List’s facial overbreadth challenge to the allocation regulations.

c. The Solicitation Regulation in 11 C.F.R. § 100.57 Is Similarly

“Closely Drawn” to Match“Sufficiently Important Interests”

The solicitation regulation at new 11 C.F.R. § 100.57 requires a political committee to

treat all funds received in a response to a solicitation as a “contribution” under FECA if the

soliciting communication “indicates that any portion of the funds received will be used to support

or oppose the election of a clearly identified federal candidate.” 11 C.F.R. § 100.57(a). The

regulation continues, however, to provide that if the costs of the solicitation are allocable under 11

C.F.R. § 106.6: (1) funds received in response to a solicitation that refers to a clearly identified

federal candidate and to a political party, but not to a clearly identified nonfederal candidate, must

be treated entirely as contributions; while (2) funds received in response to a solicitation that

refers to a clearly identified nonfederal candidate in addition to a clearly identified federal

candidate (whether or not the solicitation also refers to a political party) must be treated as at least

50% as contributions. Id. § 100.57(b).

 EMILY’s List suggests that the solicitation regulation is not closely drawn because it

takes an “all or nothing” approach. Pl.’s MSJ at 29. EMILY’s List also complains that, “[f]or

purposes of the application of this rule, the FEC is indifferent to the extent to which a federal

candidate may benefit from the proceeds . . . [and] stringent limits apply to the sources or amounts

of these funds, even if the proceeds were to be dedicated to the support of nonfederal candidates.” 

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 54 of 69
55

Id. at 28. These arguments, however, clearly overlook the fact that the regulation allows a

political committee to consider only 50% of the funds received as a result of a solicitation to be

contributions if the solicitation refers to a clearly identified nonfederal candidate in addition to

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

identified federal candidate. 11 C.F.R. § 100.57(b). And, to the extent that EMILY’s List

purports to challenge the bright-line nature of the solicitation regulation, as discussed above,

prophylactic anticircumvention approaches have been upheld in the context of contribution limits. 

See WRTL,127 S. Ct. at 2671-72; McConnell, 540 U.S. at 676. Significantly, while the Supreme

Court in WRTL noted that “[t]he desire for a bright-line rule . . . hardly constitutes the compelling

state interest necessary to justify any infringement on First Amendment freedom,” 127 S. Ct. at

2672, the parties do not dispute that the solicitation regulation is a contribution limit, which may

be upheld under lesser scrutiny where it is “closely drawn to match a sufficiently important

interest.” McConnell, 540 U.S. at 136 (quotations and citation omitted).

EMILY’s List also challenges the standard in 11 C.F.R. § 100.57(a), which requires that

funds received as a result of a solicitation be treated as contributions 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.” 11 C.F.R. § 100.57. EMILY’s List appears to suggest that the

regulation is unconstitutionally vague because the terms “indicate,” and “support or oppose” are

not defined and are not related to the express advocacy requirement. EMILY’s List’s argument is

entirely unavailing as to the words “support” or “oppose,” because the Supreme Court rejected

just such a claim in McConnell, stating that “[t]he words ‘promote,’ ‘oppose,’ ‘attack,’ and

‘support’ . . . ‘provide explicit standards for those who apply them’ and ‘give the person of

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 55 of 69
56

ordinary intelligence a reasonable opportunity to know what is prohibited.’” 540 U.S. at 675 n.64

(emphasis added) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). Indeed,

the Supreme Court found that was “particularly the case” in McConnell “since actions taken by

political parties are presumed to be in connection with political campaigns,” citing to the very

same portion of Buckley that concluded that a political committee’s expenditures are, likewise,

“by definition, campaign related.” Id. (quoting Buckley, 424 U.S. at 79). The Supreme Court also 

noted in McConnell that “should plaintiffs feel that they need further guidance, they are able to

seek advisory opinions for clarification, see 2 U.S.C. § 437f(a)(1), and thereby ‘remove any doubt

there may be as to the meaning of the law.’” Id. (quoting Civil Service Comm’n v. Letter Carriers,

413 U.S. 548, 580 (1973)).

The Supreme Court’s finding in McConnell is dispositive of EMILY’s List’s vagueness

claims as to the words “support” and “oppose,” and its analysis is similarly fatal to EMILY’s

List’s claim as to the term “indicate.” Indeed, the FEC explains that the “indicate” 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, Inc., 65 F.3d 285 (2d. Cir. 1995) (“SEF”). In that case, the Second Circuit

considered FECA’s requirement that a direct mailing “solicit[ing] any contribution” disclose its

sponsor in the mailing. See generally 65 F.3d 285. In so doing, the Second Circuit considered

Buckley’s conclusion that “contributions” under FECA include “dollars given to another person or

organization [independent from a political candidate] that are earmarked for political purposes,”

see 424 U.S. at 24 n.24, 78, and attempted to “give content to the phrase ‘earmarked for political

purposes,’” SEF, 65 F.3d at 295. The Second Circuit first noted that the Buckley Court’s limiting

principle for independent expenditures is not concerned with political committees because those

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 56 of 69
57

organizations have the “major purpose of [] the nomination or election of a candidate.” Id. The

Second Circuit then continued to find that, for groups other than political committees that act

independent of candidates, FECA required disclosure for “solicitations of contributions that are

earmarked for activities or . . . ‘that expressly advocate the election or defeat of a clearly identified

candidate.’” Id. (quoting Buckley, 424 U.S. at 80). Finally, the Second Circuit concluded that

“[e]ven if a communication does not itself constitute express advocacy, it may still fall within the

reach of [FECA’s disclosure requirement] if it contains solicitations clearly indicating that the

contributions will be targeted to the election or defeat of a clearly identified candidate for federal

office.” Id. (emphasis added).

The Second Circuit thus reasonably concluded in SEF that funds received in response to a

solicitation are contributions under FECA where the “solicitation makes plain that the

contributions will be used to advocate the defeat or success of a clearly identified [federal]

candidate at the polls.” Id. Indeed, where the solicitation indicates as much, requiring that

donations received in response be treated as contributions is consistent with FECA’s requirement

that contributions include funds given “for the purpose of influencing any election for Federal

office.” 2 U.S.C. § 431(8). As the FEC explained in its E&J for the new solicitation regulation,

“[m]any groups’ fundraising solicitations will say nothing of an electoral objective regarding the

use of funds . . . [c]ommunications that do, however, plainly seek funds ‘for the purpose of

influencing federal elections.’” 69 Fed. Reg. at 68,057. 

The Court does not–and the Second Circuit clearly did not in SEF–find the term

“indicates” to be vague, because it “provide[s] [an] explicit standard” and “give[s] the person of

ordinary intelligence a reasonable opportunity to know what is prohibited.’” Grayned, 408 U.S. at

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 57 of 69
58

108-09. Moreover, any lingering confusion over the meaning of the term “indicates” was likely

resolved by the FEC’s E&J, which provides a series of examples. 69 Fed. Reg. at 68,057. 

Specifically, the FEC contrasts a solicitation stating “[t]he 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,” with another stating “[t]he President wants to cut taxes

again. Our group has been fighting for lower taxes since 1960, and we will fight to give the

President four more years to fight for lower taxes. Send us money for our important work.” Id.

As the FEC explains, the first solicitation does not indicate that funds received will be used to

promote the President’s reelection, while the second solicitation does. The FEC also provides the

following examples, noting that the italicized language in each indicates that the solicitation will

be used to support the election or defeat of a federal candidate:

1. “Electing Joe Smith is crucial to our efforts to preserve the environment. 

Please send money to us so that we can be successful in this cause.”

2. “Our group strives to preserve Social Security, and Representative Jones has a

great plan to protect this vital program. The Congressman needs our help to stay

in Washington and implement his plan to save Social Security. Give now to help

us fight to save Social Security.”

3. “Senator Jane Doe voted against a tax package that would have helped working

families. Your generous gift will enable us to make sure Californians remember

in November.”

Id. Each of these examples provides further clarification of the application of the term “indicates”

in 11 C.F.R. § 100.57.

Finally, as the Supreme Court noted in McConnell when considering vagueness concerns,

“should plaintiffs feel that they need further guidance, they are able to seek advisory opinions for

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

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 58 of 69
59

meaning of the law.’” 540 U.S. at 675 n.64 (quoting Civil Service Comm’n v. Letter Carriers, 413

U.S. 548, 580 (1973)). Indeed, EMILY’s List did just that in its Advisory Opinion Request, when

it asked that the FEC consider three proposed options for the portion of a communication

featuring Senator Stabenow that would solicit financial support for EMILY’s List’s programs. 

See Pl.’s Attach. D (Advisory Opinion Request) at 2. EMILY’s List proposed the following texts:

(a) “We are asking for your support, so that EMILY’s List can support candidates

who, like me, could never succeed as women in politics without the combined

commitment of all [sic] us.”

(b) “EMILY’s List’s support over the years for candidates like me has made an

enormous difference to the progress of women toward equality in the pursuit of

political office. But we have a long way to go. That’s why I need your help.”

(c) “EMILY’s List has always supported me (Senator Stabenow) when I most

needed it. And that is why I am asking you to support EMILY’s List today, so

that it can continue the work on behalf of women who, by seeking state office

today, will be ready to claim national leadership tomorrow.”

Id. In response, the Commission concluded that EMILY’s List’s Examples (a) and (b) indicate

that at least some of the funds raised by the solicitation would be used to support Senator

Stabenow’s reelection. Pl.’s Attach. E (Advisory Opinion 2005-13) at 5-6. As such, if the

solicitation only referred to Senator Stabenow, all funds received in response would be treated as

contributions, and if the solicitation also referred to a clearly identified nonfederal election, at

least 50% of the funds received would have to be treated as contributions. 11 C.F.R. § 100.57. In

contrast, the Commission concluded that EMILY’s List’s Example (c) indicates that funds

received would “be used on behalf of women seeking State office,” and therefore “does not

indicate that any portion of the funds received will be used to support [Senator Stabenow’s] reelection.” Id. Accordingly, EMILY’s List would not have to consider any funds received in

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 59 of 69
60

response to such a solicitation as contributions, but rather could consider them “to be donations to

its non-Federal account.” Id. at 6-7.

In light of this ample clarification, the Court rejects EMILY’s List’s suggestion that the

term “indicates” is unconstitutionally vague. The term itself is sufficiently definite, and any

concerns are alleviated by the guidance offered in the FEC’s E&J and the supplemental guidance

that EMILY’s List received through Advisory Opinion 2005-13. Significantly, as the FEC

stressed in its E&J, applying the standard in 11 C.F.R. § 100.57(a) “turns on the plain meaning of

the words used in the communication and does not encompass implied meanings or

understandings.” 69 Fed. Reg. at 68,057. As such, the standard presents a clear guide for political

committees as to which solicitations will trigger the receipt of contributions subject to FECA. 

Perhaps in light of the clarity of the “indicates” standard, EMILY’s List also argues that

the solicitation regulation is insufficiently tailored because, as the FEC’s E&J makes clear, “new

section 100.57(a) applies even if the solicitation states that funds received would be used for other

purposes too,” id., or disclaims an intent to use funds raised to promote or oppose the election of

the federal candidate identified in the solicitation. Pl.’s MSJ at 31. While such a disclaimer

might, at first glance, suggest that funds received in response to a solicitation should not be treated

as contributions because they would not be used to influence a federal election, as discussed

above, a solicitation referring to a clearly identified federal candidate (such as Senator Stabenow,

in EMILY’s List’s example) might still serve to raise the federal candidate’s national profile or

encourage recipients to contribute to the federal candidate’s campaign through other means. In

any event, as discussed above, “it is clear [] that the mere fact that one can conceive of some

impermissible applications of a [regulation] is not sufficient to render it susceptible to an

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 60 of 69
61

overbreadth challenge.” Taxpayers for Vincent, 466 U.S. at 800. EMILY’s List has not

demonstrated that the solicitation regulation’s application to nonfederal activity “is substantial,

either in an absolute sense or relative to its application to” federal activity, and therefore has failed

to “carr[y] [its] heavy burden of proving that” the solicitations regulation is facially overbroad. 

McConnell, 540 U.S. at 207. Instead, the discussion above demonstrates that the solicitation

regulation is “closely drawn” to match “sufficiently important” government interests, and thus

must be upheld under the appropriate lesser scrutiny standard.

C. Administrative Procedure Act Claims

In addition to arguing that the revised allocation and solicitation regulations violate the

First Amendment, EMILY’s List offers two challenges under the Administrative Procedure Act. 

First, EMILY’s List argues that the regulations exceed the Commission’s statutory authority under

FECA, and second, EMILY’s List argues that the regulations are arbitrary and capricious. The

Court addresses each in turn. 

1. The Regulations Do Not Exceed The Commission’s Authority Under FECA

EMILY’s List’s first claim is subject to Chevron review, so-called after the Supreme

Court’s decision in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). 

Under that standard, the central question for the reviewing court “is whether the agency’s

construction of the statute is faithful to its plain meaning, or, if the statute has no plain meaning,

whether the agency’s interpretation ‘is based on a permissible construction of the statute.’” Arent

v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995) (quoting Chevron, 467 U.S. at 843). In applying

Chevron analysis, a court first asks “whether Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 61 of 69
62

agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S.

at 842-43; see also id. at 843 n.9 (“[A]dministrative constructions which are contrary to clear

congressional intent” must be rejected by the court). In conducting this stage of the Chevron

analysis, the Court “giv[es] no deference to the agency’s interpretation.” American Fed’n of

Labor & Congress of Indus. Orgs. v. Federal Election Commission, 333 F.3d 168, 173 (D.C. Cir.

2003) (“AFL-CIO”).

If the court finds that “the statute is silent or ambiguous with respect to the specific issue,

the question for the court is whether the agency’s answer is based on a permissible construction of

the statute.” Chevron, 467 U.S. at 843. Therefore

[w]hen a challenge to an agency construction of a statutory provision, fairly

conceptualized, really centers on the wisdom of the agency’s policy, rather than

whether it is a reasonable choice within a gap left open by Congress, the challenge

must fail. In such a case, federal judges-who have no constituency-have a duty to

respect legitimate policy choices made by those who do. The responsibilities for

assessing the wisdom of such policy choices and resolving the struggle between

competing views of the public interest are not judicial ones: “Our Constitution vests

such responsibilities in the political branches.”

Id. at 866 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)). However, “[i]f the FEC’s

interpretation unduly compromises the Act’s purposes, it is not a ‘reasonable accommodation’

under the Act, and it would therefore not be entitled to deference.” Orloski v. FEC, 795 F.2d 156,

164 (D.C. Cir. 1986) (quoting Chevron, 467 U.S. at 845); see also Chevron, 467 U.S. at 845.

As discussed above, FECA gives the Commission exclusive jurisdiction to administer,

interpret, and civilly enforce FECA, as well as to “formulate policy with respect to” FECA and

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

437c(b)(1), 437d(a), and 437g. In addition, while FECA includes a definition of “contribution,”

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 62 of 69
 EMILY’s List also suggests that the Commission exceeded its authority in altering the 16

allocation regime applicable to political committees because it did not make a finding, as Judge

Flannery suggested it might in Common Cause, that “no method of allocation will effectuate the

Congressional goal that all monies spent by [] political committees on [activities that influence

federal elections] be ‘hard money’ under the FECA.” 692 F. Supp. at 1396. Such a finding

would be illogical because the Commission did not eliminate the allocation system for political

committees, it altered it. Further, as discussed above and below, the rulemaking record in this

case included significant evidence–particularly in the case of ACT–that the prior “funds

expended” allocation method was not effectuating Congress’ goal. 

63

see 2 U.S.C. § 431(8), EMILY’s List does not dispute that further regulation of contributions falls

within the Commission’s delegation of authority to promulgate rules “necessary to carry out the

provision” of FECA. Pl.’s MSJ at 32. EMILY’s List also admits that Congress has not

addressed–in either FECA or BCRA–allocation by nonconnected political committees. Id. at 34. 

As the Court has previously concluded, following the logic of the Supreme Court in McConnell

and Judge Flannery in Common Cause, “the FEC’s decision to allow any given allocation formula

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

influence both federal and nonfederal elections [as well as to adjust that allocation formula], is

within the Commission’s purview.” PI Mem. Op., 362 F. Supp. 2d at 56. Accordingly, both the 16

allocation and solicitation regulations easily survive Chevron step one.

Furthermore, the Court’s discussion of the allocation and solicitation regulations above

makes exceedingly clear that the regulations are “based on a permissible construction of the

statute” and thus meet Chevron step two review. Chevron, 467 U.S. at 843. Nevertheless,

EMILY’s List continues to argue that the regulations exceed the Commission’s authority,

rehashing a number of arguments discussed above: that the “reference” standard in the allocation

regulation impermissibly regulates nonfederal election activity; that the regulations will have a

deleterious impact on EMILY’s List’s nonfederal activity; and that the minimum 50% federal

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 63 of 69
 In particular, insofar as EMILY’s List’s claims in this respect turn on its ipse dixit that 17

the revised allocation and solicitation regulations will curb its “purely” nonfederal election

activity, the Court has specifically rejected EMILY’s List’s attempt to portray its activities in that

manner.

64

funding requirement in 11 C.F.R. § 106.6(c) is not necessarily reflective of a political committee’s

activities. See Pl.’s MSJ at 32-41. The Court has considered and rejected each of these arguments

in the course of considering EMILY’s List’s First Amendment claim, and declines to revisit them

in the context of its Chevron claim. In short, EMILY’s List’s arguments reveal a profound 17

policy dispute with the Commission and obvious preference for the “funds expended” allocation

method previously in place. Under the relevant case law, however, “[w]hen a challenge to an

agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom

of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by

Congress, the challenge must fail.” Chevron, 467 U.S. at 866. As such, the Court rejects

EMILY’s List’s claim that the allocation and solicitation regulations exceed the Commission’s

statutory authority. 

2. The Regulations Are Not Arbitrary or Capricious

Finally, the Administrative Procedure Act (“APA”) provides that “[t]he reviewing court

shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . .

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A). 

The scope of review under the “arbitrary and capricious” standard is narrow and a

court is not to substitute its judgment for that of the agency. Nevertheless, the agency

must examine the relevant data and articulate a satisfactory explanation for its action

including a rational connection between the facts found and the choice made. In

reviewing that explanation, we must consider whether the decision was based on a

consideration of the relevant factors and whether there has been a clear error of

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 64 of 69
65

judgment. Normally, an agency rule would be arbitrary and capricious if the agency

has relied on factors which Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency expertise. The

reviewing court should not attempt itself to make up for such deficiencies: We may

not supply a reasoned basis for the agency’s action that the agency itself has not given.

We will, however, uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.

Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S.

29, 43 (1983) (hereinafter “State Farm”) (internal citations and quotation marks omitted); see also

Cellco P’ship v. Federal Communications Commission, 357 F.3d 88, 93-94 (D.C. Cir. 2004)

(noting “arbitrary and capricious” review is “highly deferential . . . presum[ing] the validity of

agency action . . . [which] must [be] affirm[ed] unless the Commission failed to consider relevant

factors or made a clear error in judgment.”). 

EMILY’s List first argues that the 50% minimum federal funding requirement for political

committee’s administrative expenses and generic voter drives, found in 11 C.F.R. § 106.6(c), is

arbitrary and capricious because “[a]llocating committees differ in their ratio of federal to

nonfederal activity.” Pl.’s MSJ at 41-42. The FEC’s E&J, however, explained that the 50%

minimum requirement offered a clear, bright-line rule, which would “enhance compliance with

the FECA, [] simplify the allocation system, and [] make it easier for [] nonconnected [political]

committees to comprehend and for the Commission to administer these requirements.” 69 Fed.

Reg. at 68,060. In addition, as noted above, the Commission based the 50% minimum

requirement on a conclusion that, consistent with their status, federally registered political

committees “should not be permitted to pay for administrative expenses, generic voter drives and

public communications that refer to a political party with a greater amount of non-Federal funds

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 65 of 69
66

than Federal funds.” Id. at 68,062. Finally, the FEC explained that the revised rule “should

reduce the burden of compliance on [] nonconnected [political] committees. . . [and] 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.” Id. at 68,063. 

The Commission’s decision to “make ease of administration and enforceability a

consideration in setting its standard” is entirely permissible, and certainly does not demonstrate

that the allocation regulation is arbitrary and capricious. WorldCom, Inc. v. FCC, 238 F.3d 449,

459 (D.C. Cir. 2001). Further, the rulemaking record in this case amply supported the

Commission’s conclusions that the prior “funds expended” allocation method proved difficult for

political committees to implement and for the Commission to administer. Specifically, the FEC’s

E&J reveals that: (1) the Commission’s review of public disclosure reports in the ten years prior

to the rulemaking demonstrated that very few committees were allocating expenses under the

prior 11 C.F.R. § 106.6(c), 69 Fed. Reg. at 68,062; (2) political committees had “consistently

requested guidance on the proper application of the allocation methods under the former section

106.6 at various Commission conferences, roundtables, and education events, id.; (3) the

Commission’s Audit Division had discovered that some committees were not properly allocating

under the old rules, id.; and (4) compliance with the old allocation rule required multiple steps

because political committees had to “monitor their Federal expenditures and non-Federal

disbursements, compare their current spending to the ratio reported at the start of the election

cycle, and then adjust the ratio to reflect their actual behavior,” id. This evidence certainly

constitutes a reasoned basis for the Commission’s conclusions.

In addition, while EMILY’s List suggests that the allocation method at 11 C.F.R. §

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 66 of 69
67

106.6(c) is inherently arbitrary and capricious because it replaced the “funds expended” allocation

method, Pl.’s MSJ at 42, as amici stress, the rulemaking record included strong evidence–in the

form of the allegations against ACT–that political committees’ allocations under that method

were not always tied to reality and that the method could be easily manipulated. Moreover,

EMILY’s List does not dispute the FEC’s finding in its E&J that many of the political committees

applying the “funds expended” method already allocated more than 50% of their administrative

expenses to federal funds, such that the change in regulation would have no impact on them. 69

Fed. Reg. at 68,063, 68,086. Nor does EMILY’s List contest that it consistently allocated its own

costs to at least 50% federal funds in the ten years prior to the revised regulations. See FEC MSJ,

Ex. 5. In light of the foregoing evidence, which the FEC considered in its rulemaking process, the

Court easily concludes that the 50% minimum federal funds requirement in 11 C.F.R. § 106.6(c)

is not arbitrary and capricious. 

The Court similarly concludes that the solicitation regulation is not arbitrary and

capricious. EMILY’s List’s argument in this respect focuses on the “all-or-nothing” nature of the

regulation, i.e., the fact that an indication that funds raised in response to a solicitation will be

used to promote or oppose the election of a clearly identified federal candidate causes all

donations received in response to that solicitation to be treated as contributions. Pl.’s MSJ at 43. 

This argument, however, again overlooks the regulation’s provision that when such a solicitation

also refers to a nonfederal candidate, only 50% of the funds received must be treated as

contributions. 11 C.F.R. § 100.57(b). While EMILY’s List asserts that the FEC has failed to

justify the 50% minimum in this context, it is reasonable for the Commission to take the ease of

administering and enforcing the allocation regulation into account, and even the Commission’s

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 67 of 69
 EMILY’s List also suggests that the revised allocation and solicitation regulations are 18

arbitrary and capricious because the E&J does not explicitly discuss the final rules’ effect on

corruption or the appearance of corruption. Pl.’s MSJ at 44. The Court’s discussion above

makes the connection between the revised rules and the important government interests of

preventing corruption and the appearance thereof abundantly clear. Moreover, as the

Commission correctly notes, “[a] regulation is reasonably related to the purpose of the legislation

to which it relates if the regulation serves to prevent circumvention of the statute and is not

inconsistent with the statutory provisions.” Carpenter v. Sec’y of Veteran Affairs, 343 F.3d

1347, 1352 (Fed. Cir. 2003). The regulations at issue in this case easily meet that requirement,

and “it is unnecessary for an agency to prove that circumvention has occurred in the past in order

to sustain an anti-circumvention regulation as reasonable; a regulation can be justified by a

reasonable expectation that it will prevent circumvention of statutory policy in the future.” Id. 

68

decision to rely on an “admittedly imperfect measure” would not render it arbitrary and

capricious. WorldCom, Inc., 238 F.3d at 459. 

Finally, EMILY’s List argues that the solicitation regulation is arbitrary and capricious

because a disclaimer of an intent to use funds to promote or oppose a federal candidate will not

trump an “indication” of an intent to do so. Pl.’s MSJ at 43. However, for the reasons discussed

extensively above, the Commission has demonstrated–and explained in its E&J–why funds raised

in response to solicitations indicating they will be used to promote or oppose a federal candidate

should be treated as contributions under FECA. The Commission’s explanation sufficiently

“enables [the Court] to see what major issues of policy were ventilated and why the agency

reacted to them as it did.” Repub. Nat’l Comm. v. FEC, 76 F.3d 400, 407 (D.C. Cir. 1996). As

such, the Court rejects EMILY’s List’s claim that the solicitation regulation is arbitrary and

capricious.18

IV. CONCLUSION

For the foregoing reasons, the Court shall DENY [32] EMILY’s List’s Motion for

Summary Judgment and shall GRANT [34] the Commission’s Cross-Motion for Summary

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 68 of 69
69

Judgment. In light of the Court’s grant of summary judgment to the Commission, the Court shall

DISMISS the instant action in its entirety. An appropriate Order accompanies this Memorandum

Opinion. 

Date: July 31, 2008

 /s/ 

COLLEEN KOLLAR-KOTELLY

United States District Judge

Case 1:05-cv-00049-CKK Document 41 Filed 07/31/2008 Page 69 of 69