United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2009 Decided September 18, 2009 

No. 08-5422 

EMILY’S LIST, 

APPELLANT

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:05-cv-00049-CKK) 

Robert F. Bauer argued the cause for appellant. With 

him on the briefs were Ezra W. Reese and Brian G. Svoboda. 

David Kolker, Associate General Counsel, Federal 

Election Commission, argued the cause for appellee. With 

him on the brief were Thomasenia P. Duncan, General 

Counsel, Harry J. Summers, Assistant General Counsel, and 

Vivien Clair, Attorney. Gregory J. Mueller, Attorney, entered 

an appearance. 

Donald J. Simon, Fred Wertheimer, J. Gerald Hebert, 

Trevor Potter, and Paul S. Ryan were on the brief for amici 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 1
2 

curiae Campaign Legal Center and Democracy 21 in support 

of appellee. 

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit 

Judges. 

 Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Circuit Judge HENDERSON joins, 

and with whom Circuit Judge BROWN joins as to Part IV 

except footnotes 17, 18, and 20. 

 Opinion concurring in part filed by Circuit Judge 

BROWN. 

 KAVANAUGH, Circuit Judge: A non-profit group known 

as EMILY’s List promotes abortion rights and supports prochoice Democratic women candidates. It challenges several 

new Federal Election Commission regulations that restrict 

how non-profits may spend and raise money to advance their 

preferred policy positions and candidates. EMILY’s List 

argues that the regulations violate the First Amendment. 

The First Amendment, as interpreted by the Supreme 

Court, protects the right of individual citizens to spend 

unlimited amounts to express their views about policy issues 

and candidates for public office. Similarly, the First 

Amendment, as the Court has construed it, safeguards the 

right of citizens to band together and pool their resources as 

an unincorporated group or non-profit organization in order to 

express their views about policy issues and candidates for 

public office. We agree with EMILY’s List that the new FEC 

regulations contravene those principles and violate the First 

Amendment. We reverse the judgment of the District Court 

and direct it to enter judgment for EMILY’s List and to vacate 

the challenged regulations. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 2
3 

I 

In the wake of the 2002 Bipartisan Campaign Reform Act 

and the Supreme Court’s 2003 decision in McConnell v. FEC, 

the election season of 2004 erupted with bitter accusations 

about the activities of certain non-profit entities. The 

controversy was popularly known by a single term – “527s” – 

that refers to the section of the tax code applicable to nonprofits engaged in political activities. The debate arose after 

wealthy individuals contributed huge sums of money to nonprofits ranging from America Coming Together to 

MoveOn.org to Swift Boat Veterans for Truth in order to 

support advertisements, get-out-the-vote efforts, and voter 

registration drives. In total during the 2004 campaign, these 

groups reportedly spent several hundred million dollars. 

As the campaign unfolded, many in both major parties –

including President Bush and Senator Kerry – questioned the 

activities of certain non-profits. Some encouraged the FEC to 

ban large donations to non-profit entities in the same way that 

Congress in BCRA had banned large contributions to political 

parties. Proponents of additional regulation reasoned that 

non-profits had replaced political parties as the soft-money 

“loophole” in the campaign finance system. See Edward B. 

Foley & Donald Tobin, The New Loophole?: 527s, Political 

Committees, and McCain-Feingold, BNA MONEY & POL.

REP., Jan. 7, 2004. 

In response, the FEC did not ban non-profits from 

receiving and spending large donations, as some had urged. 

But the FEC did limit how much non-profits such as 

EMILY’s List could raise and spend. The FEC achieved this 

objective by dictating that covered non-profits pay for a large 

percentage of election-related activities out of their hardCase: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 3
4 

money accounts. See 11 C.F.R. §§ 106.6(c), (f).1

 Because 

donations to those hard-money accounts are capped at $5000 

annually for individual contributors, the FEC’s allocation 

regulations substantially restrict the ability of non-profits to 

spend money for election-related activities such as 

advertisements, get-out-the-vote efforts, and voter registration 

drives. The regulations separately require that donations to 

non-profits be considered hard money subject to the $5000 

cap if the corresponding solicitation indicated that donations 

would be used to support the election or defeat of a federal 

candidate. See id. § 100.57. 

In early 2005, EMILY’s List filed suit, arguing that the 

new regulations violated the First Amendment and the Federal 

Election Campaign Act. In 2008, the District Court upheld 

the regulations in their entirety. 

II 

To assess the constitutionality of the new FEC 

regulations, we initially must address at some length the 

relevant First Amendment principles set forth by the Supreme 

Court. 

A 

Ratified in 1791, the First Amendment provides that 

“Congress shall make no law . . . abridging the freedom of 

speech.” U.S. CONST. amend. I. This guarantee “has its 

fullest and most urgent application precisely to the conduct of 

 1

 A hard-money account is subject to source and amount 

limitations. For example, under the statute, EMILY’s List cannot 

accept donations of more than $5000 annually into its hard-money 

account from any single contributor. 2 U.S.C. § 441a(a)(1)(C). A 

soft-money account may receive unlimited donations. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 4
5 

campaigns for political office.” Buckley v. Valeo, 424 U.S. 1, 

15 (1976) (internal quotation marks omitted). The 

Amendment “protects political association as well as political 

expression.” Id.; see also NAACP v. Alabama ex rel. 

Patterson, 357 U.S. 449, 460 (1958). 

In analyzing the interaction of the First Amendment and 

campaign finance laws, the Court has articulated several 

overarching principles of relevance here. 

First, the Court has held that campaign contributions and 

expenditures constitute “speech” within the protection of the 

First Amendment. In Buckley, the foundational case, the 

Court definitively ruled that “contribution and expenditure 

limitations operate in an area of the most fundamental First 

Amendment activities.” 424 U.S. at 14. The Court has never 

strayed from that cardinal tenet, notwithstanding some 

passionate objections. See, e.g., Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring) 

(“Money is property; it is not speech.”); J. Skelly Wright, 

Politics and the Constitution: Is Money Speech?, 85 YALE 

L.J. 1001 (1976). 

Second, the Court has ruled that the Government cannot 

limit campaign contributions and expenditures to achieve 

“equalization” – that is, it cannot restrict the speech of some 

so that others might have equal voice or influence in the 

electoral process. In perhaps the most important sentence in 

the Court’s entire campaign finance jurisprudence, Buckley

stated: “[T]he concept that government may restrict the 

speech of some elements of our society in order to enhance 

the relative voice of others is wholly foreign to the First 

Amendment.” 424 U.S. at 48-49. The Court added that the 

Government’s interest in “equalizing the relative ability of 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 5
6 

individuals and groups to influence the outcome of elections” 

does not justify regulation. Id. at 48. 

In Davis v. FEC, the Court strongly reiterated that 

“equalization” is not a “legitimate government objective.” 

128 S. Ct. 2759, 2773 (2008). The Davis Court approvingly 

quoted Justice Kennedy’s observation in Austin v. Michigan 

State Chamber of Commerce that “the notion that the 

government has a legitimate interest in restricting the quantity 

of speech to equalize the relative influence of speakers on 

elections” is “antithetical to the First Amendment.” Id. 

(citation and internal quotation marks omitted); see also 

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 

684 (1990) (Scalia, J., dissenting) (“This illiberal free-speech 

principle of ‘one man, one minute’ was proposed and soundly 

rejected in Buckley”).2

 

Third, the Court has recognized a strong governmental 

interest in combating corruption and the appearance thereof. 

See Buckley, 424 U.S. at 26-27, 45-48; see also McConnell v. 

FEC, 540 U.S. 93, 154 (2003). This, indeed, is the only

interest the Court thus far has recognized as justifying 

campaign finance regulation. Davis, 128 S. Ct. at 2773 

(“Preventing corruption or the appearance of corruption are 

 2

 The Court’s rejection of the equalization argument is 

consistent with its broader First Amendment jurisprudence: “As a 

general matter, the American First Amendment tradition requires 

that the financial, political, or rhetorical imbalance between the 

proponents of competing arguments is insufficient to justify 

government intervention to correct that imbalance.” Frederick 

Schauer & Richard H. Pildes, Electoral Exceptionalism and the 

First Amendment, 77 TEX. L. REV. 1803, 1825 (1999); see 

generally Lillian R. BeVier, Money and Politics: A Perspective on 

the First Amendment and Campaign Finance Reform, 73 CAL. L.

REV. 1045 (1985). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 6
7 

the only legitimate and compelling government interests thus 

far identified for restricting campaign finances.”) (citation and 

internal quotation marks omitted). Importantly, the Court has 

emphasized that the anti-corruption rationale is not boundless. 

The core corruption that Government may permissibly target 

with campaign finance regulation “is the financial quid pro 

quo: dollars for political favors.” FEC v. Nat’l Conservative 

PAC (NCPAC), 470 U.S. 480, 497 (1985). This anticorruption interest is implicated by contributions to 

candidates: “To the extent that large contributions are given 

to secure a political quid pro quo from current and potential 

office holders, the integrity of our system of representative 

democracy is undermined.” Buckley, 424 U.S. at 26-27; see 

also Citizens Against Rent Control v. City of Berkeley, 454 

U.S. 290, 296-97 (1981) (“Buckley identified a single narrow 

exception to the rule that limits on political activity were 

contrary to the First Amendment”; the exception relates “to 

the perception of undue influence of large contributors to a 

candidate”). Based on the close relationship between 

candidates and parties and record evidence demonstrating that 

political parties sold access to candidates in exchange for 

contributions, the Court has held that the anti-corruption 

interest also justifies limits on contributions to parties. See 

McConnell, 540 U.S. at 154; see also Buckley, 424 U.S. at 

38.3

 

Fourth, in applying the anti-corruption rationale, the 

Court has afforded stronger protection to expenditures by 

citizens and groups (for example, for advertisements, get-outthe-vote efforts, and voter registration activities) than it has 

 3

 Contributions include coordinated expenditures – that is, 

expenditures coordinated with a candidate or party. See 

McConnell, 540 U.S. at 121; FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 443 (2001); see also 2 U.S.C. § 

441a(a)(7)(B). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 7
8 

provided to their contributions to candidates or parties. The 

Court has explained that contributions to a candidate or party 

pose a greater risk of quid pro quo corruption than do 

expenditures. See Buckley, 424 U.S. at 46-47. At the same 

time, the Court has stated that limits on contributions to 

candidates or parties pose only a “marginal restriction upon 

the contributor’s ability to engage in free communication.” 

Id. at 20-21. By contrast, expenditure restrictions limit 

“political expression at the core of our electoral process and 

of the First Amendment freedoms.” Id. at 39 (internal 

quotation marks omitted). A “restriction on the amount of 

money a person or group can spend on political 

communication during a campaign necessarily reduces the 

quantity of expression by restricting the number of issues 

discussed, the depth of their exploration, and the size of the 

audience reached.” Id. at 19. The Court’s jurisprudence, in 

short, reflects a “fundamental constitutional difference 

between money spent to advertise one’s views independently 

of the candidate’s campaign and money contributed to the 

candidate to be spent on his campaign.” NCPAC, 470 U.S. at 

497 (emphases added); see also Randall v. Sorrell, 548 U.S. 

230, 241-42 (2006).

4

 4

 Many have criticized the distinction between contributions 

and expenditures because, in their view, they are “two sides of the 

same First Amendment coin.” Buckley, 424 U.S. at 241 (opinion of 

Burger, C.J.). Some contend that limits on contributions and 

expenditures are both suspect under the First Amendment. See id.; 

id. at 290 (opinion of Blackmun, J); see also Shrink Mo. Gov’t 

PAC, 528 U.S. at 410 (Thomas, J., dissenting). Others argue that 

the interest in limiting contributions similarly justifies restricting 

expenditures. See Buckley, 424 U.S. at 260-62 (opinion of White, 

J.). The Court thus far has rebuffed both critiques and adhered to 

the Buckley divide. See Randall, 548 U.S. at 242 (“Over the last 30 

years, in considering the constitutionality of a host of different 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 8
9 

In maintaining this line between (i) contributions to 

candidates or parties and (ii) expenditures, the Court has 

acknowledged that a citizen’s or group’s large expenditure – 

for example, in financing advertisements or get-out-the-vote 

activities – may confer some benefit on a candidate and 

thereby give influence to the spender. But the Court 

nonetheless has consistently dismissed the notion that 

expenditures implicate the anti-corruption interest. See 

Buckley, 424 U.S. at 47 (expenditures not “a quid pro quo for 

improper commitments from the candidate”); see also

McConnell, 540 U.S. at 153 (“mere political favoritism or 

opportunity for influence alone is insufficient to justify 

regulation”); id. at 156-57 n.51 (Congress could not regulate 

talk show hosts or newspaper editors “on the sole basis that 

their activities conferred a benefit on the candidate”); 

NCPAC, 470 U.S. at 498 (“exchange of political favors for 

uncoordinated expenditures remains a hypothetical possibility 

and nothing more”). 

Fifth, the Court has been somewhat more tolerant of 

regulation of for-profit corporations and labor unions. The 

Court has permitted statutory limits on contributions that forprofit corporations and unions make from their general 

treasuries to candidates and parties.5

 More controversially, 

the Court has carved out a significant exception to Buckley’s

holding on expenditures: The Court has upheld laws that 

prohibit for-profit corporations and unions from making 

expenditures for activities expressly advocating the election 

 

campaign finance statutes, this Court has repeatedly adhered to 

Buckley’s constraints, including those on expenditure limits.”). 

5

 The Court also has ruled that the Government may bar 

certain non-profit as well as for-profit corporations from making 

direct contributions to candidates or parties. See FEC v. Beaumont, 

539 U.S. 146, 159-60 (2003). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 9
10 

or defeat of a federal candidate. The Court has permitted 

those expenditure limits on the ground that they restrain the 

“corrosive and distorting effects of immense aggregations of 

wealth that are accumulated with the help of the corporate 

form and that have little or no correlation to the public’s 

support for the corporation’s political ideas.” Austin, 494 

U.S. at 660; see also McConnell, 540 U.S. at 204-05; but see 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 

(1978); Buckley, 424 U.S. at 48-49.6

 

To sum up so far: In reconciling the competing interests, 

the Supreme Court has generally approved statutory limits on 

contributions to candidates and political parties as consistent 

with the First Amendment. The Court has rejected 

expenditure limits on individuals, groups, candidates, and 

parties, even though expenditures may confer benefits on 

candidates. And the Court has upheld limits on for-profit 

corporations’ and unions’ use of their general treasury funds 

to make campaign contributions to candidates or political 

parties or to make expenditures for activities expressly 

advocating the election or defeat of federal candidates. 

B 

 This case does not involve regulation of candidates, 

parties, or for-profit corporations. Rather, this case concerns 

 6

 The Supreme Court is presently considering whether to 

overrule Austin (and McConnell’s reliance on it) to the extent 

Austin permitted the Government to limit for-profit corporations’ 

and unions’ expenditures. See Citizens United v. FEC, No. 08-205 

(S. Ct. reargued Sept. 9, 2009); cf. Austin, 494 U.S. at 702 

(Kennedy, J., dissenting) (“Today’s decision abandons [Buckley’s] 

distinction and threatens once-protected political speech.”). The 

regulations at issue here violate the First Amendment with or 

without Austin on the books. See infra note 11. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 10
11 

the FEC’s regulation of non-profit entities that are not 

connected to a candidate, party, or for-profit corporation. We 

thus must consider how the constitutional principles outlined 

above apply to non-profits – and in particular to three 

different kinds of non-profits: (i) those that only make 

expenditures; (ii) those that only make contributions to 

candidates or parties; and (iii) those that do both. For 

purposes of the First Amendment analysis, the central issue 

turns out to be whether independent non-profits are treated 

like individual citizens (who under Buckley have the right to 

spend unlimited money to support their preferred candidates) 

or like political parties (which under McConnell do not have 

the right to raise and spend unlimited soft money).7

1 

The first relevant category of non-profit entities consists 

of those that only make expenditures for political activities 

such as advertisements, get-out-the-vote efforts, and voter 

 7

 In referring to non-profit entities, we mean non-connected 

non-profit corporations (usually advocacy or ideological or 

politically oriented non-profits) that engage in election-related 

activities and register with the Internal Revenue Service under 26 

U.S.C. § 527 or § 501(c), as well as unincorporated non-profit 

groups. “Non-connected” means that the non-profit is not a 

candidate committee, a party committee, or a committee established 

by a corporation or labor union. See 11 C.F.R. § 106.6(a). “Nonconnected” for purposes of this opinion also excludes so-called 

leadership PACs. 

Some non-profits register with the FEC as political 

committees; others do not. Our constitutional analysis of donations 

to and spending by non-connected non-profits applies regardless 

whether a non-profit has registered as a political committee with the 

FEC. See infra note 15. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 11
12 

registration drives. Non-profits in this category make no 

contributions to federal candidates or parties. 

The Supreme Court’s case law establishes that those nonprofit entities, like individual citizens, are constitutionally 

entitled to raise and spend unlimited money in support of 

candidates for elected office – with the narrow exception that, 

under Austin, the Government may restrict to some degree 

how non-profits spend donations received from the general 

treasuries of for-profit corporations or unions. See Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 202-03 (1981) (opinion of 

Blackmun, J.); see also FEC v. Mass. Citizens for Life, Inc. 

(MCFL), 479 U.S. 238, 259-65 (1986); NCPAC, 470 U.S. at 

501; Citizens Against Rent Control, 454 U.S. at 296-99;

Buckley, 424 U.S. at 47; N.C. Right to Life, Inc. v. Leake, 525 

F.3d 274, 292-93 (4th Cir. 2008). 

Those principles were initially articulated in Cal-Med. 

There, Justice Blackmun determined that “contributions to 

political committees can be limited only if those contributions 

implicate the governmental interest in preventing actual or 

potential corruption, and if the limitation is no broader than 

necessary to achieve that interest.” Cal-Med, 453 U.S. at 203 

(opinion of Blackmun, J.). Applying that standard, he found 

that “contributions to a committee that makes only 

independent expenditures pose no such threat” of “actual or 

potential corruption.” Id. “By pooling their resources, 

adherents of an association amplify their own voices; the 

association is but the medium through which its individual 

members seek to make more effective the expression of their 

own views.” Id. (citation and internal quotation marks 

omitted). Justice Blackmun thus concluded that Government 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 12
13 

may not limit contributions to a non-profit that only makes 

expenditures.8 

The Court reinforced those principles a year later in 

Citizens Against Rent Control. There, the Court struck down 

limits on donations to a non-profit committee seeking to 

defeat a ballot measure. See Citizens Against Rent Control,

454 U.S. at 296-99. Building on the established right of 

individuals to make unlimited expenditures, the Court stated 

that there are “of course, some activities, legal if engaged in 

by one, yet illegal if performed in concert with others, but 

political expression is not one of them.” Id. at 296. The 

Court further reasoned: “Placing limits on contributions 

which in turn limit expenditures plainly impairs freedom of 

expression.” Id. at 299. In the Court’s words, to place “a 

Spartan limit – or indeed any limit – on individuals wishing to 

band together to advance their views on a ballot measure, 

while placing none on individuals acting alone, is clearly a 

restraint on the right of association.” Id. at 296. 

 8

 In Cal-Med, there was no majority opinion on the First 

Amendment issue. Under the Marks principle, Justice Blackmun’s 

opinion in Cal-Med appears to be controlling. See Marks v. United 

States, 430 U.S. 188, 193 (1977); cf., e.g., Regents of Univ. of Cal. 

v. Bakke, 438 U.S. 265, 269-320 (1978) (opinion of Powell, J.). 

Even if Justice Blackmun’s opinion were not binding under the 

Marks principle or even if his discussion of expenditure-only nonprofits were considered dicta, his opinion’s principles have been 

followed in subsequent decisions such as Citizens Against Rent 

Control. In that regard, we note that Justice Marshall’s opinion in 

Cal-Med did not decide how the First Amendment applies to 

contributions to a non-profit that only makes expenditures. See 

Cal-Med, 453 U.S. at 197 n.17 (opinion of Marshall, J.) (“American 

Civil Liberties Union suggests that § 441a(a)(1)(C) would violate 

the First Amendment if construed to limit the amount individuals 

could jointly expend to express their political views. We need not 

consider this hypothetical application . . . .”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 13
14 

In NCPAC, the Court reiterated that the Government may 

not limit the spending of non-profits. The Court invalidated a 

law that restricted a group’s expenditures in support of a 

candidate who had accepted public financing. See NCPAC,

470 U.S. at 501. The Court stated that citizens’ “collective 

action in pooling their resources to amplify their voices” is 

“entitled to full First Amendment protection . . . .” Id. at 495.

In MCFL, the Court again underscored that non-profit 

advocacy groups are generally entitled to raise and spend 

unlimited money on elections. The Court invalidated an 

expenditure limit imposed on a non-profit corporation that 

had distributed a newsletter promoting pro-life candidates. 

The Court noted that individuals “contribute to a political 

organization in part because they regard such a contribution 

as a more effective means of advocacy than spending the 

money under their own personal direction.” MCFL, 479 U.S.

at 261. The Court added that “[v]oluntary political 

associations do not suddenly present the specter of corruption 

merely by assuming the corporate form.” Id. at 263; see also 

Austin, 494 U.S. at 701 (Kennedy, J., dissenting) (MCFL held 

that “a nonprofit corporation engaged in political discussion 

of candidates and elections has the full protection of the First 

Amendment”). Adhering to MCFL, the McConnell Court 

ruled that BCRA’s ban on certain electioneering 

communications could not validly be applied to non-profit 

corporations. See McConnell, 540 U.S. at 210-11. 

The principles set forth in Cal-Med, Citizens Against 

Rent Control, NCPAC, and MCFL are rooted in the Court’s 

consistent holdings beginning with Buckley that individual 

citizens may spend money without limit (apart from the limit 

on their own contributions to candidates or parties) in support 

of the election of particular candidates. After all, if one 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 14
15 

person is constitutionally entitled to spend $1 million to run 

advertisements supporting a candidate (as Buckley held), it 

logically follows that 100 people are constitutionally entitled 

to donate $10,000 each to a non-profit group that will run 

advertisements supporting a candidate.9 Put another way: “If 

the First Amendment prohibits any limitation on how much 

money an independent political committee can spend on an 

independent-expenditure campaign, how can it permit limits 

on donations to committees that make only independent 

expenditures?” Richard Briffault, The 527 Problem and the 

Buckley Problem, 73 GEO. WASH. L. REV. 949, 982 (2005); 

see also Edward B. Foley, The “Major Purpose” Test: 

Distinguishing Between Election-Focused and Issue-Focused 

Groups, 31 N. KY. L. REV. 341, 343 (2004) (stating “baseline 

proposition that it would be unconstitutional to limit the 

contributions that individuals may give to ideological groups 

to be used for electoral purposes”); Note, The 

Unconstitutionality of Limitations on Contributions to 

Political Committees in the 1976 Federal Election Campaign 

Act Amendments, 86 YALE L.J. 953 (1977).

These Supreme Court decisions reflect, moreover, the 

commonsense proposition that regulation of non-profits does 

not fit within the anti-corruption rationale, which constitutes 

 9

 To be sure, some cases suggest that the First Amendment 

interest in donating to someone else for speech, while important, is 

less weighty than the First Amendment interest in speaking oneself. 

But those cases involve contributions to candidates or parties. See 

Buckley, 424 U.S. at 21. With respect to donations to groups other 

than candidates or political parties, the Court has said that there are 

“of course, some activities, legal if engaged in by one, yet illegal if 

performed in concert with others, but political expression is not one 

of them.” Citizens Against Rent Control, 454 U.S. at 296; see also 

MCFL, 479 U.S. at 261; NCPAC, 470 U.S. at 495; Cal-Med, 453 

U.S. at 203 (opinion of Blackmun, J.); NAACP, 357 U.S.at 460. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 15
16 

the sole basis for regulating campaign contributions and 

expenditures. See Davis, 128 S. Ct. at 2773. As the Court has 

explained the anti-corruption principle, mere donations to 

non-profit groups cannot corrupt candidates and 

officeholders. In the words of the Fourth Circuit, it is 

“implausible that contributions to independent expenditure 

political committees are corrupting.” N.C. Right to Life, 525 

F.3d at 293 (internal quotation marks omitted). And to the 

extent a non-profit then spends its donations on activities such 

as advertisements, get-out-the-vote efforts, and voter 

registration drives, those expenditures are not considered 

corrupting, even though they may generate gratitude from and 

influence with officeholders and candidates. Rather, under 

Buckley, those expenditures are constitutionally protected. 

Therefore, limiting donations to and spending by non-profits 

in order to prevent corruption of candidates and officeholders 

represents a kind of “prophylaxis-upon-prophylaxis” 

regulation to which the Supreme Court has emphatically 

stated, “Enough is enough.” FEC v. Wis. Right to Life, Inc. 

(WRTL), 551 U.S. 449, 478-79 (2007) (controlling opinion of 

Roberts, C.J.). 

Writing for the Fourth Circuit, Judge Wilkinson recently 

summarized the relevant Supreme Court precedents, 

concluding that “the Court has never held that it is 

constitutional to apply contribution limits to political 

committees that make solely independent expenditures.” N.C. 

Right to Life, 525 F.3d at 292. Those non-profit groups 

receive full First Amendment protection and are entitled to 

receive donations and make expenditures because they “offer 

an opportunity for ordinary citizens to band together to speak 

on the issue or issues most important to them.” Id. at 295. 

We agree with Judge Wilkinson’s assessment of the state of 

the law. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 16
17 

2 

The second relevant category of non-profits consists of 

those that only make contributions to federal candidates or 

political parties and make no expenditures. Given the 

constitutionally permissible caps on an individual donor’s 

contributions to candidates or parties, the Supreme Court has 

acknowledged the risk that individuals might use non-profits 

to evade those limits. In order to prevent circumvention of 

limits on an individual donor’s contributions to candidates 

and parties, the Court has held that non-profit entities can be 

required to make their own contributions to candidates and 

parties, as well as pay associated administrative expenses, out 

of a hard-money account that is subject to source and amount 

restrictions. See Cal-Med, 453 U.S. at 198-99 (opinion of 

Marshall, J.); id. at 203-04 (opinion of Blackmun, J.). As a 

majority of the Court pointed out in Cal-Med, doing so 

prevents non-profits from being used as “conduits” for illegal 

contributions to parties and candidates and thus prevents 

“evasion of the limitations on contributions” to a candidate. 

Id. at 203 (opinion of Blackmun, J.); see also id. at 198 

(opinion of Marshall, J.) (limit on donations to non-profit 

prevents evasion of “$1,000 limit on contributions to 

candidates . . . by channeling funds” through the non-profit); 

Cal. Med. Ass’n v. FEC, 641 F.2d 619, 625 (9th Cir. 1980) 

(Kennedy, J.) (non-profit committee is “natural conduit for 

candidate contributions and . . . the essential purpose of the 

provision here in question is to limit those contributions, not 

to limit expenditures for any other type of political 

advocacy”) (emphasis added).10 

 10 The requirement that certain administrative expenses be 

funded in part with hard money prevents a contributor from 

essentially taking control of a non-profit and thereby circumventing 

limits on individual contributions to candidates. See Cal-Med, 453 

U.S. at 198-99 n.19 (opinion of Marshall, J.); id. at 203 (opinion of 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 17
18 

Consistent with Cal-Med’s ruling, FECA limits 

contributors to donating a maximum of $5000 per year to a 

non-profit’s hard-money account. A non-profit in turn may 

contribute to a candidate or party only from that hard-money 

account. See 2 U.S.C. § 441a(a)(1)(C). And an individual’s 

contribution to a non-profit’s hard-money account may count 

against the individual’s aggregate annual contribution limits. 

See 2 U.S.C. § 441a(a)(3). 

3 

What about a non-profit entity that falls into both 

categories – in other words, a non-profit that makes 

expenditures and makes contributions to candidates or 

parties? EMILY’s List is a good example of such a hybrid 

non-profit: It makes expenditures for advertisements, get-outthe-vote efforts, and voter registration drives; it also makes 

direct contributions to candidates and parties. In all of its 

activities, its mission is to promote and safeguard abortion 

rights and to support the election of pro-choice Democratic 

women to federal, state, and local offices nationwide. 

 The constitutional principles that govern such a hybrid 

non-profit entity follow ineluctably from the well-established 

principles governing the other two categories of non-profits. 

To prevent circumvention of contribution limits by individual 

donors, non-profit entities may be required to make their own 

contributions to federal candidates and parties out of a hardmoney account – that is, an account subject to source and 

 

Blackmun, J.). But as discussed above, the Cal-Med Court never 

stated that non-profits could be required to use hard money for 

advertisements, get-out-the-vote activities, and voter registration 

drives; indeed, Justice Blackmun’s opinion stated the opposite. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 18
19 

amount limitations ($5000 annually per contributor). 

Similarly, non-profits also may be compelled to use their 

hard-money accounts to pay an appropriately tailored share of 

administrative expenses associated with their contributions. 

See Cal-Med, 453 U.S. at 198-99 n.19 (opinion of Marshall, 

J.). But non-profit entities are entitled to make their 

expenditures – such as advertisements, get-out-the-vote 

efforts, and voter registration drives – out of a soft-money or 

general treasury account that is not subject to source and 

amount limits. Stated another way: A non-profit that makes 

expenditures to support federal candidates does not suddenly 

forfeit its First Amendment rights when it decides also to 

make direct contributions to parties or candidates. Rather, it 

simply must ensure, to avoid circumvention of individual 

contribution limits by its donors, that its contributions to 

parties or candidates come from a hard-money account.11 

 11 One additional wrinkle: To the extent a non-profit receives 

donations from for-profit corporations or unions, those donations 

cannot be placed in the non-profit’s hard-money account (because 

for-profit corporate or union donations cannot be the source of 

contributions to parties or candidates). Moreover, under Austin, the 

soft-money account into which such donations are deposited cannot 

be used to fund express-advocacy election activities that for-profit 

corporations and unions are themselves banned from conducting. 

Cf. WRTL, 551 U.S. at 476-77; MCFL, 479 U.S. at 259-64; FEC v. 

NRA, 254 F.3d 173, 191-92 (D.C. Cir. 2001). Justice Souter 

recently summarized these points: A “nonprofit may use its general 

treasury to pay for clearly electioneering communications so long 

as it declines to serve as a conduit for money from business 

corporations and unions (and thus qualifies for the MCFL

exception).” WRTL, 551 U.S. at 521 (Souter, J., dissenting) 

(internal quotation marks omitted). If Austin were overruled, then 

non-profits would be able to make unlimited express-advocacy 

expenditures from their soft-money accounts even if they accepted 

donations from for-profit corporations or unions to those accounts. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 19
20 

C 

How does McConnell affect the above principles 

governing non-profits? McConnell upheld congressionally 

imposed limits on political parties receiving or spending soft 

money. Some have argued that the Government can similarly 

restrict soft-money contributions to and spending by nonprofits. In this case, the District Court accepted that reasoning 

in ruling for the FEC; it found non-profits similarly situated to 

political parties for purposes of the First Amendment analysis. 

In our judgment, however, McConnell does not support 

such regulation of non-profits. McConnell affirmed BCRA’s 

limits on contributions to political parties because of the close 

ties between candidates and parties and the extensive record 

evidence of what it deemed a threat of actual or apparent 

corruption – specifically, the access to federal officials and 

candidates that large soft-money contributors to political 

parties received in exchange for their contributions. The 

Court said that it was “not unwarranted for Congress to 

conclude that the selling of access gives rise to the appearance 

of corruption.” McConnell, 540 U.S. at 154. The Court 

expressly based its conclusion on the “close relationship 

between federal officeholders and the national parties, as well 

as the means by which parties have traded on that relationship 

. . . .” Id.12

 12 See generally McConnell, 540 U.S. at 130 (“both parties 

promised and provided special access to candidates and senior 

Government officials in exchange for large soft-money 

contributions”); id. at 145 (“special relationship and unity of 

interest” that candidates and officeholders share with parties); id. at 

146 (“The evidence in the record shows that candidates and donors 

alike have in fact exploited the soft-money loophole, the former to 

increase their prospects of election and the latter to create debt on 

the part of officeholders, with the national parties serving as willing 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 20
21 

Unlike the political parties examined in McConnell, there 

is no record evidence that non-profit entities have sold access 

to federal candidates and officeholders in exchange for large 

contributions. See also Craig Holman, The Bipartisan 

Campaign Reform Act: Limits and Opportunities for Non-

 

intermediaries.”); id. at 150 (“The record in the present cases is 

replete with similar examples of national party committees peddling 

access to federal candidates and officeholders in exchange for large 

soft-money donations.”); id. at 151 (“So pervasive is this practice 

that the six national party committees actually furnish their own 

menus of opportunities for access to would-be soft-money donors, 

with increased prices reflecting an increased level of access.”); id.

at 152 (“close ties that candidates and officeholders have with their 

parties”); id. at 153-54 (“As the record demonstrates, it is the 

manner in which parties have sold access to federal candidates and 

officeholders that has given rise to the appearance of undue 

influence.”); id. at 155 (“no meaningful separation between the 

national party committees and the public officials who control 

them”) (internal quotation marks omitted); id. (“Given this close 

connection and alignment of interests, large soft-money 

contributions to national parties are likely to create actual or 

apparent indebtedness on the part of federal officeholders”); id.

(“This close affiliation has also placed national parties in a position 

to sell access to federal officeholders in exchange for soft-money 

contributions”); id. (“Access to federal officeholders is the most 

valuable favor the national party committees are able to give in 

exchange for large donations.”); id. at 156 n.51 (“[T]he record 

demonstrates close ties between federal officeholders and the state 

and local committees of their parties. That close relationship makes 

state and local parties effective conduits for donors desiring to 

corrupt federal candidates and officeholders. Thus, in upholding 

§§ 323(b), (d), and (f), we rely not only on the fact that they 

regulate contributions used to fund activities influencing federal 

elections, but also that they regulate contributions to, or at the 

behest of, entities uniquely positioned to serve as conduits for 

corruption.”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 21
22 

Profit Groups in Federal Elections, 31 N. KY. L. REV. 243, 

280 (2004) (“Today’s electioneering non-profit groups . . . 

can make no such promises of access in exchange for a soft 

money contribution.”). 

More fundamentally, non-profit groups do not have the 

same inherent relationship with federal candidates and 

officeholders that political parties do. The McConnell Court 

identified numerous “real-world differences between political 

parties and interest groups.” 540 U.S. at 188. “Interest 

groups do not select slates of candidates for elections. 

Interest groups do not determine who will serve on legislative 

committees, elect congressional leadership, or organize 

legislative caucuses. Political parties have influence and 

power in the Legislature that vastly exceeds that of any 

interest group. As a result, it is hardly surprising that party 

affiliation is the primary way by which voters identify 

candidates, or that parties in turn have special access to and 

relationships with federal officeholders.” Id. As noted in 

McConnell, Congress recognized these differences and 

enacted a statutory scheme under which “[i]nterest groups . . . 

remain free to raise soft money to fund voter registration, 

GOTV activities, mailings,” and advertising. Id. at 187. 

In sum, it will not work to simply transport McConnell’s 

holding from the political party context to the non-profit 

setting. On this question as well, we agree with Judge 

Wilkinson: “It is . . . not an exaggeration to say that 

McConnell views political parties as different in kind than 

independent expenditure committees.” N.C. Right to Life, 525 

F.3d at 293. 

For non-profit entities, the most pertinent Supreme Court 

precedents remain Buckley, Cal-Med, Citizens Against Rent 

Control, NCPAC, and MCFL. As discussed above, those 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 22
23 

cases ultimately stand for the proposition that non-profit 

groups may accept unlimited donations to their soft-money 

accounts. And subject to the one Austin-based exception, 

non-profit groups – like individual citizens – may spend 

unlimited amounts out of their soft-money accounts for 

election-related activities such as advertisements, get-out-thevote efforts, and voter registration drives.13 

 13 Some have suggested that footnote 48 of the McConnell

opinion, in the course of discussing contributions to parties, subtly 

re-interpreted Cal-Med to permit restrictions on large soft-money 

donations to non-profits. See, e.g., Edward B. Foley & Donald 

Tobin, The New Loophole?: 527s, Political Committees, and 

McCain-Feingold, BNA MONEY & POL. REP., Jan. 7, 2004; 

Memorandum from Prof. Daniel R. Ortiz, Univ. of Va. School of 

Law, to Democracy 21 and the Campaign Legal Center (Apr. 9, 

2004). We decline to adopt that expansive reading of footnote 48. 

First, as explained by one leading election-law expert, such a 

reading would require overruling the Supreme Court’s longstanding 

dichotomy between limits on contributions and expenditures. See 

Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. PA.

L. REV. 31, 70 (2004). Limits on donations to non-profit entities 

are analytically akin to limits on expenditures by the donors. See 

Cal-Med, 453 U.S. at 202 (opinion of Blackmun, J.); see also 

Briffault, 73 GEO. WASH. L. REV. at 982 (“[I]f George Soros’s 

direct expenditure of $23 million on anti-Bush or pro-Kerry ads is 

constitutionally protected, how does he forfeit that protection if he 

combines his $23 million with $20 million from Peter Lewis and 

maybe another $10 million from some slightly smaller fry in a fund 

that takes out essentially the same ads and supports the same voter 

drives?”). For that reason, a broad interpretation of footnote 48 

would mean “the entire Buckley edifice . . . falls.” Hasen, 153 U.

PA. L. REV. at 70. “Is that what the Court really intended buried in 

a few sentences of a footnote in one of the longest cases in Supreme 

Court history?” Id. We think not. 

Second, footnote 48 simply cited Cal-Med together with 

Buckley in the course of establishing the constitutionality of limits 

on contributions to political parties, not to non-profits (which the 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 23
24 

III 

We now consider whether the 2004 FEC regulations at 

issue in this case comport with the relevant constitutional 

principles. They do not. 

The fundamental flaw, as counsel for EMILY’s List 

succinctly stated at oral argument, is that the Commission 

improperly “brought to bear what was essentially a political 

party analysis to a non-connected, independent committee 

which is not under the control of, or associated with 

 

Court had no need to address). In the key concluding sentence in 

the footnote, the Court rejected the idea that the government could 

only regulate “parties as pass-throughs.” McConnell, 540 U.S. at 

152 n.48 (emphasis added). Moreover, footnote 48 was responding 

to a point in Justice Kennedy’s dissent that had nothing to do with 

non-profits. See Briffault, 73 GEO. WASH. L. REV. at 986 

(“importantly, the McConnell footnote was written in the course of 

the Court’s analysis of BCRA’s application of contribution limits to 

the activities of political parties”). We would unfairly wrench 

footnote 48 from its context were we to adopt the broad 

interpretation some have proposed. 

Third, in a later passage in the McConnell opinion, the Court 

explained that, under the statute, “[i]nterest groups . . . remain free 

to raise soft money to fund voter registration, GOTV activities, 

mailings,” and advertisements. 540 U.S. at 187. That passage – 

and the accompanying discussion – would make little sense if 

footnote 48 were read to equate non-profits with political parties. 

Fourth, the Fourth Circuit in North Carolina Right to Life 

refused to adopt this broad reading of footnote 48; it eschewed the 

dissenting judge’s extensive reliance on it. See 525 F.3d at 333-34 

(Michael, J., dissenting). 

In short, we decline to read this footnote addressing a different 

issue in McConnell to indirectly (i) overrule Buckley, (ii) discard 

Justice Blackmun’s opinion in Cal-Med, and (iii) equate non-profits 

with political parties, contrary to other discussion in McConnell. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 24
25 

candidates in the fashion of a political party.” Tr. of Oral 

Arg. at 4. 

A 

The rules set forth in §§ 106.6(c), 106.6(f), and 100.57 

contain five relevant provisions. In our judgment, the 

provisions are not closely drawn to meet an important 

governmental interest.14 

 14 We need not decide whether the regulations are subject to 

the strictest scrutiny applicable to spending restrictions or the still 

“rigorous” but slightly lesser “closely drawn” scrutiny applicable to 

contribution restrictions. See generally Davis v. FEC, 128 S. Ct. 

2759, 2770-72 (2008); FEC v. Wis. Right to Life, Inc. (WRTL), 551 

U.S. 449, 464 (2007); Buckley v. Valeo, 424 U.S. 1, 29 (1976). 

Under either permutation of this “exacting” scrutiny, Buckley, 424 

U.S. at 16, the regulations violate the First Amendment. That said, 

the allocation and “mere reference” regulations of §§ 106.6(c) and 

106.6(f) are best considered spending restrictions under the analysis 

set forth in Wisconsin Right to Life. 551 U.S. at 457, 477 n.9, 478-

79; see also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 203 (1981) 

(opinion of Blackmun, J.) (limits on donations to non-profits 

subject to strict scrutiny). In Wisconsin Right to Life, the Court 

indicated that forcing an entity to spend out of a segregated fund 

subject to source and amount limitations, rather than its general 

treasury, was a spending restriction. 551 U.S. at 477 n.9. So too 

here. Unlike BCRA’s rules for political parties, moreover, these 

regulations do not limit how much someone can contribute to 

EMILY’s List or other covered non-profits. Rather, these 

regulations force non-profit entities to pay for a large percentage of 

their varied political activities out of hard-money accounts subject 

to source and amount ($5000) limits rather than out of soft-money 

accounts that may receive unlimited donations. Through this 

mechanism, the regulations limit how much non-profits ultimately 

can spend on advertisements, get-out-the-vote efforts, and voter 

registration drives. These regulations therefore “reduce[] the 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 25
26 

Under the Supreme Court’s precedents, non-profit 

entities may be required to use their hard-money accounts for 

their own contributions to candidates and parties and for an 

appropriately tailored share of administrative expenses 

associated with such contributions. But as explained above, 

non-profits may not be forced to use their hard-money 

accounts for expenditures such as advertisements, get-out-thevote efforts, and voter registration drives. Non-profits – like 

individual citizens – are entitled to spend and raise unlimited 

money for those activities. The FEC’s five new regulatory 

provisions flout those principles. 

First, the regulations require covered15 non-profit entities 

to use their hard-money accounts to pay at least 50% of the 

 

quantity of expression” for groups like EMILY’s List “by 

restricting the number of issues discussed, the depth of their 

exploration, and the size of the audience reached.” Buckley, 424 

U.S. at 19. As a rough analogy, consider a law that requires home 

buyers to pay a 50% cash down payment to obtain a mortgage. 

That kind of law would significantly limit how much buyers could 

afford to spend for a new house. A similar dynamic is at play as a 

result of these regulations. 

15 The regulations apply only to those non-profits that must 

register with the FEC as political committees – namely, groups that 

receive or spend more than $1000 annually for the purpose of 

influencing a federal election and whose “major purpose” involves 

federal elections. Buckley, 424 U.S. at 79; see 2 U.S.C. §§ 431-

434, 441a; supra note 7. Our constitutional analysis of donations 

and spending limits applies both to non-connected non-profits 

registered as political committees with the FEC and to nonconnected non-profits that are not so registered. The fact that a 

non-profit spends a certain amount or percentage of its money in 

relation to federal elections cannot be a basis, at least under the 

anti-corruption rationale, for restricting its ability to accept large 

donations to support those expenditures. That conclusion follows 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 26
27 

costs of their generic get-out-the-vote efforts and voter 

registration activities. 11 C.F.R. § 106.6(c). By “generic,” 

the regulations mean those activities that refer to a party but 

do not promote or oppose a particular candidate. See id. § 

100.25. This provision violates the First Amendment because 

non-profits are constitutionally entitled to pay 100% of the 

costs of such voter drive activities out of their soft-money 

accounts. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 203 

(1981) (opinion of Blackmun, J.); see also FEC v. Mass. 

Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259-63 (1986); 

FEC v. Nat’l Conservative PAC (NCPAC), 470 U.S. 480, 501 

(1985); Citizens Against Rent Control v. City of Berkeley, 454 

U.S. 290, 298-99 (1981); Buckley v. Valeo, 424 U.S. 1, 45-48 

(1976). 

Second, the regulations mandate that covered non-profits 

use their hard-money accounts for 50% of any generic 

communications that refer to a party without referring to a 

candidate, for example, “Support the Democratic party.” 11 

C.F.R. § 106.6(c). This provision likewise violates the First 

Amendment because non-profits are constitutionally entitled 

to pay 100% of the costs of such communications out of their 

soft-money accounts. See Cal-Med, 453 U.S. at 203 (opinion 

of Blackmun, J.); see also MCFL, 479 U.S. at 259-63; 

NCPAC, 470 U.S. at 501; Citizens Against Rent Control, 454 

U.S. at 298-99; Buckley, 424 U.S. at 45-48. 

 

from the Supreme Court’s consistent holdings that large 

expenditures are constitutionally protected and the corresponding 

principle that non-profits are constitutionally entitled to accept large 

donations to their soft-money accounts to support advertisements, 

get-out-the-vote efforts, and voter registration activities. Of course, 

because of the lesser First Amendment protection against 

disclosure, the major purpose test is permissible under current 

precedent for determining non-profits’ disclosure obligations. See 

Buckley, 424 U.S. at 79. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 27
28 

Third, the regulations direct covered non-profit entities to 

use their hard-money accounts to pay at least 50% of all 

administrative expenses. 11 C.F.R. § 106.6(c). Those 

administrative expenses include rent, utilities, office supplies, 

and salaries, among other costs. But a non-profit may be 

forced to use hard money for, at most, a percentage of 

administrative expenses that “closely” corresponds to the 

percentage of activities relating to its contributions as 

compared to its advertisements, get-out-the-vote efforts, and 

voter registration activities. See Davis v. FEC, 128 S. Ct. 

2759, 2770 (2008) (campaign finance regulations must at 

least be “closely drawn” to further an important governmental 

interest); Cal-Med, 453 U.S. at 198-99 n.19 (opinion of 

Marshall, J.) (rejecting argument that non-profit was entitled 

to pay its “entire” administrative expenses with unlimited 

donations or soft-money account) (emphasis added). The 

tailoring must ensure that a hybrid non-profit is not unduly 

advantaged as compared to a non-profit that makes only 

contributions (and thus must fund certain administrative 

expenses with hard money) and is not unduly disadvantaged 

as compared to a non-profit that makes only expenditures 

(and thus may fund its administrative expenses with soft 

money). Section 106.6(c) does not attempt or purport to 

allocate administrative expenses in that way. And the “desire 

for a bright-line rule . . . hardly constitutes the compelling

state interest necessary to justify any infringement on First 

Amendment freedom.” FEC v. Wis. Right to Life, Inc.

(WRTL), 551 U.S. 449, 479 (2007) (internal quotation marks 

omitted) (controlling opinion of Roberts, C.J.). 

Fourth, the regulations compel covered non-profit entities 

to use their hard-money accounts to pay 100% of the costs of 

advertisements or other communications that “refer” to a 

federal candidate. 11 C.F.R. § 106.6(f)(1). If an 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 28
29 

advertisement or communication refers to a state candidate as 

well as a federal candidate, the non-profit must pay for it with 

a percentage of its hard-money account as determined by time 

and space allocation. See id. § 106.6(f)(3). Here again, the 

problem is that non-profits are constitutionally entitled to pay 

100% of the costs of their advertisements and other 

communications out of a soft-money account. See MCFL, 

479 U.S. at 251; NCPAC, 470 U.S. at 501; Citizens Against 

Rent Control, 454 U.S. at 299; Cal-Med, 453 U.S. at 203 

(opinion of Blackmun, J.); Buckley, 424 U.S. at 45-48.

Fifth, the regulations create a new regime for solicitations 

indicating that donated funds will be used to support or 

oppose the election of a clearly identified federal candidate. 

11 C.F.R. § 100.57. The regulations require that donations in 

response to such solicitations be treated as 100% hard money. 

Id. § 100.57(a)-(b)(1). This means that donations in response 

to such solicitations are subject to a $5000 cap. If a 

solicitation also refers to a state or local candidate, at least 

50% of the responsive donations must go to the hard-money 

account. Id. § 100.57(b)(2). This provision is badly flawed. 

Non-profits are entitled to raise money for their soft-money 

accounts to help support their preferred candidates, yet this 

regulation prohibits non-profits from saying as much in their 

solicitations. “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.” 

WRTL, 551 U.S. at 477 n.9 (internal quotation marks 

omitted); Davis, 128 S. Ct. at 2771 (provision that requires 

choice between “unfettered political speech” and 

“discriminatory fundraising limitations” violates First 

Amendment). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 29
30 

B 

In short, the new FEC regulations do not pass muster 

under the Supreme Court’s First Amendment precedents. The 

regulations are not “closely drawn” to serve a cognizable anticorruption interest. See Davis, 128 S. Ct. at 2770-71; WRTL, 

551 U.S. at 478-80; NCPAC, 470 U.S. at 496-97; Citizens 

Against Rent Control, 454 U.S. at 296-97; Buckley, 424 U.S. 

at 26-27, 45-48. Donations to and spending by a non-profit 

cannot corrupt a candidate or officeholder, at least in the 

absence of some McConnell-like evidence establishing such 

corruption or the appearance thereof. See N.C. Right to Life, 

Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008); see also 

Richard Briffault, The 527 Problem and the Buckley

Problem, 73 GEO. WASH. L. REV. 949, 999 (2005) (“The 527s 

do not fit easily within Buckley’s anticorruption paradigm, at 

least as the Supreme Court has defined corruption until 

now.”); Gregg D. Polsky & Guy-Uriel E. Charles, Regulating 

Section 527 Organizations, 73 GEO. WASH. L. REV. 1000, 

1027-35 (2005). 

Of course, the fact that the regulations do not serve a 

cognizable anti-corruption interest is not surprising because 

the decision to more tightly regulate entities like EMILY’s 

List arose out of an entirely different concern: the influence of 

non-profits that raise and spend large amounts of money and 

thereby affect federal elections. See, e.g., Comments of 

Democracy 21, Campaign Legal Center & Center for 

Responsive Politics in Response to Notice of Proposed 

Rulemaking, No. 2004-6, at 1-2 (Apr. 5, 2004) (criticizing 

“the spending of tens of millions of dollars of soft money 

explicitly for the purpose of influencing the presidential 

election by section 527 groups”). Responding to such 

complaints, the FEC adopted these new regulations to tamp 

down spending by non-profits and thereby better equalize the 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 30
31 

voices of citizens and groups who participate in the political 

process. Large donations to and spending by non-profits 

prompted these regulations, and limiting non-profits’ 

expenditures is their intended and predictable effect. 

But the Supreme Court’s First Amendment cases have 

repeatedly repudiated this equalization rationale as a basis for 

regulating campaign-related contributions or expenditures. 

See Davis, 128 S. Ct. at 2773; Buckley, 424 U.S. at 48-49. 

Under current law, therefore, these regulations are 

unsupportable. The concern with “large individual donations 

to the 527s is that they permit a tiny group of Americans – the 

wealthiest . . . – to play an enormous role in the electoral 

process . . . . Buckley, however, rejected the protection of 

political equality as a basis for limiting the role of money in 

election campaigns.” Briffault, 73 GEO. WASH. L. REV. at 

954 (internal quotation marks omitted). 

 

As a lower court, we must strictly adhere to the Supreme 

Court’s precedents. The regulations contravene the First 

Amendment as it has been interpreted thus far by the Supreme 

Court.16 

C 

As some commentators point out, it might seem 

incongruous to permit non-profits to receive and spend large 

soft-money donations when political parties and candidates 

cannot. See Samuel Issacharoff & Pamela S. Karlan, The 

Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 

 16 This case does not involve reporting and disclosure 

obligations. The Government has a freer hand in imposing 

reporting and disclosure requirements than it does in limiting 

contributions and expenditures. See McConnell v. FEC, 540 U.S. 

93, 121-22 (2003); Buckley, 424 U.S. at 64-68. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 31
32 

1705, 1715 (1999). But this perceived anomaly has existed to 

some extent since Buckley, which recognized that contribution 

limitations “alone would not reduce the greater potential voice 

of affluent persons and well-financed groups, who would 

remain free to spend unlimited sums directly to promote 

candidates and policies they favor in an effort to persuade 

voters.” Buckley, 424 U.S. at 26 n.26. And McConnell 

similarly took note of the fact that, even after that decision 

upholding regulations on contributions to parties, “[i]nterest 

groups . . . remain free to raise soft money to fund voter 

registration, GOTV activities, mailings,” and advertisements. 

McConnell v. FEC, 540 U.S. 93, 187 (2003). 

If eliminating this perceived asymmetry is deemed 

necessary, the constitutionally permitted legislative solution, 

as the Court stated in an analogous situation in Davis, is “to 

raise or eliminate” limits on contributions to parties or 

candidates. 128 S. Ct. at 2774. But it is not permissible, at 

least under current Supreme Court precedents, to remove the 

incongruity by placing these limits on spending by or 

donations to non-profits. 

IV 

In addition to its First Amendment challenge to the five 

regulatory provisions, EMILY’s List alternatively contends 

that three of the five provisions exceed the FEC’s statutory 

authority. See 5 U.S.C. § 706(2)(C) (agency may not act “in 

excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right.”). We agree. 

When enacting BCRA in 2002, Congress did not 

authorize the FEC to restrict donations to or spending by nonprofits – even though Congress was aware that BCRA’s 

restrictions on political parties meant that independent nonCase: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 32
33 

profit groups would become more influential in the electoral 

process. Indeed, Senator Lieberman, speaking in the Senate 

at the time, anticipated that “at least some of the soft money 

donors who will no longer be able to give to political parties 

will be looking for other ways to influence our elections. 

Donations to 527 groups will probably top many of their 

lists.” 148 CONG. REC. S10779 (daily ed. Oct. 17, 2002) 

(statement of Sen. Lieberman). He was right. Yet in the 

seven years since BCRA was enacted, Congress still has not 

imposed limits on non-profits, apparently because of 

continuing constitutional and policy concerns about regulating 

them in such a manner. 

The statutory question, therefore, is whether the FEC’s 

authority under the long-standing Federal Election Campaign 

Act justifies the challenged regulations. 

Under FECA, the FEC’s authority extends only to 

regulating donations and expenditures made “for the purpose 

of influencing any election for Federal office.” 2 U.S.C. 

§ 431(8)(A)(i). As the Supreme Court has explained, 

“[d]onations made solely for the purpose of influencing state 

or local elections are therefore unaffected by FECA’s 

requirements and prohibitions.” McConnell v. FEC, 540 U.S. 

93, 122 (2003). 

Under FECA, in other words, the FEC possesses 

statutory authority to require a non-profit to use its hardmoney account to pay for federal activities, generic activities, 

and mixed federal-state-local activities. See id. at 122-23.17 

 17 As explained earlier in this opinion, those approaches run 

into severe First Amendment obstacles. For purposes of this 

discussion, however, we analyze the statute as written without 

regard to constitutional implications. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 33
34 

But the FEC exceeds its statutory authority when it requires 

non-profits to use hard money for exclusively state and local 

election activities. See id. at 122; Chevron USA, Inc. v. 

Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (step 

one). 

The three regulatory provisions that EMILY’s List 

challenges under FECA cross the statute’s boundaries. 

EMILY’s List targets one of the provisions in § 106.6(c) 

as exceeding the FEC’s statutory authority – namely, the part 

requiring covered non-profits to use their hard-money 

accounts to pay for 50% of their administrative expenses. 

This requirement applies even if more than 50% of a nonprofit’s administrative expenses are exclusively associated 

with state and local elections. That poses a problem because 

the FEC possesses no authority under FECA to require nonprofits to use their hard-money accounts for their exclusively 

state and local election activities. We thus concur with 

EMILY’s List that this provision is overbroad and 

“federalizes the funding and reporting of a large portion of 

such a committee’s nonfederal receipts and disbursements, 

which are not made for the purpose of influencing federal 

elections.” EMILY’s List Br. at 39.18 

 18 As discussed above, § 106.6(c) also requires non-profits to 

use their federal or hard-money accounts to pay for (i) at least 50% 

of their generic get-out-the vote and voter registration activities and 

(ii) at least 50% of their generic communications, which refer to a 

party but not a candidate. In its brief, EMILY’s List does not raise 

statutory challenges to those two provisions. See EMILY’s List Br. 

at 35-40; id. at 38 (challenging under the statute only that provision 

in § 106.6(c) that sets forth a “‘Minimum Percentages’ Rule for 

Administrative Costs”). Presumably, EMILY’s List has not 

challenged these two provisions under FECA because McConnell

indicated that these generic activities qualify under the statute as 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 34
35 

Next, EMILY’s List argues that § 106.6(f) exceeds the 

FEC’s statutory authority. Recall that this provision requires 

covered non-profits to use hard money for all or part of their 

public communications that merely “refer” to federal 

candidates. See 11 C.F.R. 106.6(f). The FEC runs roughshod 

over the limits on its statutory authority when it presumes that 

any public communications that merely “refer” to a federal 

candidate necessarily seek to influence a federal election.19 

For example, § 106.6(f) would compel a covered nonprofit to use some hard money to pay for an advertisement 

running only in California in which Senator Jones from Maine 

endorses Candidate Smith for Governor of California. The 

sole purpose of such an advertisement is to influence the state 

election in California – a matter entirely outside the FEC’s 

statutory authority. 

 

activities and communications “for the purpose of influencing” 

federal elections. See McConnell, 540 U.S. 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 could fund mixed-purpose activities – 

including get-out-the-vote drives and generic party advertising – in 

part with soft money.”) (emphasis added). 

19 The original FEC proposal was far narrower and would have 

covered only communications that promote, attack, support, or 

oppose federal candidates, similar to BCRA’s requirement for state 

and local parties. See 69 Fed. Reg. at 11,753, 11,757-11,758 (Mar. 

11, 2004) (notice of proposed rulemaking). After initially 

considering that limited proposal, the FEC ultimately decided to 

regulate broadly and to saddle non-profits with even greater 

restrictions than Congress in BCRA chose to impose on state and 

local parties. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 35
36 

An incident illustrating § 106.6(f)’s statutory flaws 

occurred in 2005. EMILY’s List sought to run advertisements 

featuring Senator Stabenow in order to support Democratic 

women candidates for state legislative offices. At the time, 

Senator Stabenow was a candidate for reelection to the U.S. 

Senate in Michigan. EMILY’s List represented that the 

communication would not be distributed in Michigan, would 

not reference Senator Stabenow’s federal candidacy, would 

not solicit funds for her federal candidacy, and would not 

refer to any clearly identified non-federal candidate. Rather, 

it would support non-federal Democratic women candidates 

as a class. Nonetheless, the FEC determined that the mere 

reference to Senator Stabenow meant that EMILY’s List had 

to pay for the communications with 100% hard money. See 

FEC Adv. Op. 2005-13, at 3-4 (Oct. 20, 2005). 

Finally, EMILY’s List argues that the solicitation rule set 

forth in § 100.57 also exceeds the FEC’s statutory power. We 

agree. To reiterate, § 100.57 requires covered non-profits to 

treat as hard-money “contributions” all funds given in 

response to solicitations indicating that “any portion” of the 

funds received will be used to support or oppose the election 

of a federal candidate. 11 C.F.R. §§ 100.57(a)-(b)(1) 

(emphasis added). If the communication indicates that the 

funds will support or oppose both a federal and non-federal 

candidate, then at least 50% of those funds must be treated as 

hard money. See id. § 100.57(b)(2). The statutory defect in 

the rule is that, depending on the particular solicitation at 

issue, it requires covered non-profits to treat as hard money 

certain donations that are not actually made “for the purpose 

of influencing” federal elections. 

Consider a fundraising pitch in which a non-profit such 

as EMILY’s List tells donors that only 10% of their gift will 

be used to support identified federal candidates, with the rest 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 36
37 

to exclusively support state and local candidates. Each donor 

fully and correctly understands that only a small portion of his 

or her gift will be used “for the purpose of influencing” 

federal elections. And yet, § 100.57 requires that at least 50% 

of donations in response to such a solicitation be classified as 

a hard-money donation subject to the $5000 cap – thereby 

simultaneously creating a separate $5000 cap on soft-money 

donations given in response to such a solicitation. This may 

require a non-profit to decline or return funds it receives for 

purely state and local elections. That is not permissible under 

FECA. 

In short, there is a significant mismatch between these 

challenged provisions and the FEC’s authority under FECA. 

Therefore, we conclude that §§ 106.6(f) and 100.57, as well 

as the provision in § 106.6(c) that applies to administrative 

expenses, exceed the FEC’s statutory authority.20

 20 EMILY’s List separately argues that three of the five 

regulatory provisions at issue in this case are also arbitrary and 

capricious under the Administrative Procedure Act. EMILY’s List 

Br. at 40-44. We are less persuaded by EMILY’s List’s freestanding arbitrary and capricious argument. Putting aside the 

constitutional and statutory-authority problems with the challenged 

rules, the provisions are not otherwise arbitrary and capricious. 

Agencies generally do not violate the APA’s deferential arbitraryand-capricious standard when they employ bright-line rules for 

reasons of administrative convenience, so long as those rules fall 

within a zone of reasonableness and are reasonably explained. See, 

e.g., ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1084 

(D.C. Cir. 2002); WorldCom, Inc. v. FCC, 238 F.3d 449, 461-62 

(D.C. Cir. 2001). 

EMILY’s List does not bring a challenge under either FECA 

or the APA to § 106.6(c)’s requirement that covered non-profits 

pay at least 50% of the cost of their generic communications out of 

their hard-money accounts. See EMILY’s List Br. at 35-44. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 37
38 

V 

Before concluding, we add a few words regarding the 

concurring opinion. 

To begin, it is important to emphasize the area of 

agreement between the opinion of the Court and the 

concurrence. All three judges on the panel have determined 

that §§ 106.6(c), 106.6(f), and 100.57 are unlawful and must 

be vacated. 

The concurrence advances two main points: (i) that under 

McConnell, the Federal Government constitutionally may 

regulate non-profits like political parties; and (ii) that we 

should not address the First Amendment issue in this case. 

Neither argument is convincing. 

First, the concurrence contends that “regulation of 

political parties is not McConnell’s theme,” and it reads 

McConnell to support regulation not only of political parties 

but also of independent non-profit groups. Concurring Op. at 

19. As we have explained at length above, we do not find that 

a persuasive interpretation of McConnell. In upholding Title I 

of BCRA, the McConnell Court relied heavily on the “unity 

of interest,” “close relationship,” and “close ties” among 

candidates, officeholders, and political parties. The 

concurrence identifies no similar unity of interest between 

non-profits, on the one hand, and candidates, officeholders, or 

parties on the other. The McConnell Court also based its 

decision on the substantial record evidence of parties selling 

access in exchange for soft-money contributions. The Court 

repeatedly emphasized that “Congress must show concrete 

 

EMILY’s List raises only a constitutional challenge to that 

provision. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 38
39 

evidence that a particular type of financial transaction is 

corrupting or gives rise to the appearance of corruption . . . . It 

has done so here.” McConnell, 540 U.S. at 185-86 n.72. The 

concurrence cites no similar record evidence showing that 

non-profits sell access to officeholders and candidates in 

exchange for large soft-money contributions. 

In our judgment, “McConnell views political parties as 

different in kind than independent expenditure committees.” 

N.C. Right to Life v. Leake, 525 F.3d 274, 293 (4th Cir. 2008). 

We therefore disagree with the concurrence’s attempt to 

stretch McConnell’s reasoning from political parties to nonprofits.21 

 21 The concurrence notes that McConnell upheld § 323(f) of 

BCRA, which prohibits state and local candidates and officeholders 

from using soft money for communications that promote, support, 

attack, or oppose a federal candidate. We fail to see how this 

aspect of McConnell justifies upholding limits on non-profits. 

McConnell, as we read it, relied in part on the fact that 

officeholders, candidates, and parties at all levels share a close 

relationship and apparent unity of interest. And the Court also 

based its conclusion with respect to state and local candidates and 

officeholders – as elsewhere – on “the record in this litigation,” 540 

U.S. at 185, emphasizing that “Congress must show concrete 

evidence that a particular type of financial transaction is corrupting 

or gives rise to the appearance of corruption . . . . It has done so 

here.” Id. at 185-86 n.72. 

The concurrence also raises concern about the activities of 

non-profit committees that are “closely aligned” with federal 

candidates. Concurring Op. at 23. But our constitutional analysis 

of non-profits applies only to non-connected non-profits. See 11 

C.F.R. § 106.6(a); supra note 7. Moreover, expenditures by 

individuals or non-profits that are coordinated with a candidate may 

be considered contributions to that candidate. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 39
40 

Relatedly, the concurrence disputes our reading of CalMed. See Concurring Op. at 24. But our analysis of that case, 

including our reliance on Justice Blackmun’s opinion, tracks 

the persuasive reasoning of the Fourth Circuit in North 

Carolina Right to Life, of several other courts, and of 

numerous commentators. See, e.g., N.C. Right to Life, 525 

F.3d at 292; see also, e.g., Comm. on Jobs Candidate 

Advocacy Fund v. Herrera, No. C 07-03199, 2007 WL 

2790351, *4 (N.D. Cal. Sept. 20, 2007); Wash. State 

Republican Party v. Wash. State Pub. Disclosure Comm’n, 4 

P.3d 808, 825 (Wash. 2000); Richard Briffault, The 527 

Problem and the Buckley Problem, 73 GEO. WASH. L. REV.

949, 982-85 (2005); John C. Eastman, Strictly Scrutinizing 

Campaign Finance Restrictions (and the Courts that Judge 

Them), 50 CATH. U. L. REV. 13, 37 (2000); Gregg D. Polsky 

& Guy-Uriel E. Charles, Regulating Section 527 

Organizations, 73 GEO. WASH. L. REV. 1000, 1031 (2005). 

Moreover, the concurrence does not substantively address the 

several post-Cal-Med cases that similarly recognize the right 

of non-profits to raise and spend money to support their 

agendas and preferred candidates. See, e.g., FEC v. Mass. 

Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259-65 (1986); 

FEC v. Nat’l Conservative PAC (NCPAC), 470 U.S. 480, 501 

(1985); Citizens Against Rent Control v. City of Berkeley, 454 

U.S. 290, 296-99 (1981). 

The concurrence further contends that we have not 

received on-point briefing on the constitutional issue. We 

again respectfully disagree. The briefs and oral argument 

focused first and most extensively on the First Amendment 

and McConnell – and debated the key question in this case: 

For First Amendment purposes, are non-profits more like 

individual citizens (who under Buckley have the right to spend 

unlimited money to support their preferred candidates) or 

more like political parties (which under McConnell do not)? 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 40
41 

See Buckley v. Valeo, 424 U.S. 1, 44-51 (1976); see also 

McConnell, 540 U.S. at 155-56. Moreover, Cal-Med was 

cited and discussed often in the briefs and at oral argument. 

See Tr. of Oral Arg. 17-18, 32-33; FEC Br. at 21, 27, 28, 34; 

Amicus Br. at 21, 24; EMILY’s List Reply Br. at 11, 19-20. 

Indeed, the FEC’s brief noted that Cal-Med was a case 

“chiefly relied upon.” FEC Br. at iv. In short, the briefs and 

oral argument focused on and grappled with the critical issues 

posed by the First Amendment challenge. 

 

The concurrence suggests, however, that our holding 

goes further than the submission of EMILY’s List. But 

EMILY’s List forcefully argued that these regulations 

“violate the First Amendment of the United States 

Constitution,” contended that McConnell and Cal-Med do not 

support the FEC’s approach, and asked the Court to vacate the 

new regulations in their entirety. EMILY’s List Br. at 19. In 

deciding this case, we have set forth the relevant 

constitutional principles as we discern them, and we then have 

applied those principles to the challenged regulations. In so 

doing, we have concluded that the regulations violate the First 

Amendment; we therefore have vacated the regulations, 

which is precisely the relief EMILY’s List sought in 

advancing its First Amendment claims. 

Second, apart from its substantive disagreement with our 

First Amendment analysis, the concurrence states that we 

should resolve this case on statutory grounds alone, and 

claims that it is “gratuitous” for us to address the First 

Amendment. We respectfully but firmly disagree. 

The threshold problem with the concurrence’s preferred 

statutory-only approach is that EMILY’s List raises a 

statutory challenge to only three of the five provisions at issue 

here. EMILY’s List does not advance a statutory challenge to 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 41
42 

the provision in § 106.6(c) requiring that covered non-profits 

use their federal or hard-money accounts to pay for at least 

50% of their generic get-out-the-vote and voter registration 

activities. Nor does EMILY’s List raise a statutory challenge 

to the provision in § 106.6(c) requiring that covered nonprofits use hard money to pay for at least 50% of their generic 

communications. Compare EMILY’s List Br. at 38-39 

(discussing only administrative expenses provision of § 

106.6(c) in statutory section of brief) with EMILY’s List Br. 

at 32 (raising constitutional challenges to all provisions of § 

106.6(c)). Indeed, footnote 11 of EMILY’s List’s brief all but 

concedes that, under the statute, the FEC may require use of 

hard money for these generic activities. 

EMILY’s List’s decision not to target these two 

provisions of § 106.6(c) on statutory grounds appears wise. 

Such an argument would be very difficult to square with 

McConnell’s several pointed statements that FECA permits 

the FEC to treat generic activities as entirely federal for 

purposes of contribution and expenditure limits. In fact, 

McConnell harshly criticized the FEC for not having 

previously treated political parties’ generic activities as 

entirely federal activities subject to FECA’s limits. See 

McConnell, 540 U.S. at 142 (by allowing generic activities to 

be funded largely with soft money, FEC’s allocation regime 

“subverted” original FECA scheme); id. at 167 (FECA 

scheme “eroded” by FEC’s allocation regime); see also id. at 

142 n.44.22

 22 The concurrence finds “perplexing[]” our reading of 

McConnell’s statutory discussion. Concurring Op. at 10. We think 

it’s straightforward. McConnell said the statutory phrase “for the 

purpose of influencing” federal elections covers generic activities. 

McConnell, 540 U.S. at 167. That seems to foreclose any statutory 

challenge to the new regulatory provisions applicable to generic 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 42
43 

Under the circumstances, we have no choice but to 

address EMILY’s List’s First Amendment argument. The 

concurrence apparently wants us to address a statutory 

argument that EMILY’s List did not raise and then to accept 

that statutory claim even though we find it unpersuasive and 

inconsistent with precedent. We respectfully decline the 

concurrence’s proposal.23 

 

activities. But that of course does not resolve EMILY’s List’s 

constitutional challenge. 

23 Even if EMILY’s List had put forward meritorious statutory 

challenges to all of the regulatory provisions that it has challenged 

under the First Amendment, we still would possess discretion to 

rule in the alternative on both statutory and constitutional grounds. 

The avoidance principle cited by the concurrence is prudential, not 

jurisdictional. And it is not uncommon for lower courts to rule on 

alternative statutory and constitutional grounds when appropriate. 

See, e.g., United States v. Thomas, No. 07-3080, 2009 WL 

2152429, *3-5 (D.C. Cir. July 21, 2009); Time Warner Entm’t Co., 

L.P. v. FCC, 240 F.3d 1126, 1128 (D.C. Cir. 2001); see generally 

Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, NonRetroactivity, and Constitutional Remedies, 104 HARV. L. REV. 

1731, 1801 (1991) (“Simply as a routine matter, the Supreme 

Court, in common with the lower federal courts, may choose to 

discuss either or both of alternative grounds for reaching a 

decision.”).

Given that the complaint in this case was filed four and a half 

years ago, that the parties and the District Court overwhelmingly 

focused their attention on the constitutional issue, that resolution of 

the case only on statutory grounds would not alleviate the 

continuing legal uncertainty, and that this is an area of law 

demanding prompt and clear judicial decisionmaking, it would not 

be an inappropriate exercise of judicial discretion for an 

intermediate court to resolve this case on alternative constitutional 

and statutory grounds. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 43
44 

 

* * * 

The FEC rules challenged by EMILY’s List – 

§§ 106.6(c), 106.6(f), and 100.57 – violate the First 

Amendment. Sections 106.6(f) and 100.57 also exceed the 

FEC’s authority under the Federal Election Campaign Act, as 

does the provision of § 106.6(c) that applies to administrative 

expenses. The FEC may not enforce §§ 106.6(c), 106.6(f), or 

100.57. We reverse the judgment of the District Court and 

direct it to enter judgment for EMILY’s List and to vacate the 

challenged regulations. 

So ordered. 

 

In any event, we need not cross that discretionary bridge here 

because, as we have explained, we must address the Constitution’s 

application to non-profits’ election-related spending and 

fundraising in order to resolve the appeal. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 44
BROWN, Circuit Judge, concurring in part: “If there is 

one doctrine more deeply rooted than any other in the process 

of constitutional adjudication, it is that we ought not to pass 

on questions of constitutionality . . . unless such adjudication 

is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin, 

323 U.S. 101, 105 (1944). “Thus, if a case can be decided on 

either of two grounds, one involving a constitutional question, 

the other a question of statutory construction or general law, 

the Court will decide only the latter.” Ashwander v. TVA, 297 

U.S. 288, 347 (1936) (Brandeis, J., concurring). Because 

these regulations must be vacated as contrary to the statute, 

we need not and should not reach the First Amendment issue. 

But if we’re going to answer an unnecessary constitutional 

question, we at least ought to get it right. In light of 

McConnell v. FEC, 540 U.S. 93 (2003), I have grave doubts 

about the court’s analysis, which bears at most a passing 

resemblance to the parties’ briefs, and which will profoundly 

affect campaign finance law in this circuit. I thus respectfully 

concur only with Part IV of the court’s opinion, except for 

footnotes 17, 18 and 20. 

I. 

A. 

Though I do not join their First Amendment holding, I 

agree with my colleagues’ conclusion that we must vacate the 

regulations challenged here (the Multiple Candidate 

Allocation Regulation, 11 C.F.R. § 106.6(f); the Solicitation 

Regulation, 11 C.F.R. § 100.57; and the Administrative Costs 

Allocation Regulation, 11 C.F.R. § 106.6(c)). I begin with 

first principles. The Federal Election Commission (FEC) is 

an agency within the Executive Branch. The Executive 

Branch cannot make law, but instead executes laws enacted 

by the Legislative Branch. In executing the law, the FEC may 

issue “necessary” rules, 2 U.S.C. § 437d(a)(8), but, as with all 

agencies, the FEC acts contrary to law if it promulgates 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 45
2 

regulations “in excess of [its] statutory jurisdiction,” 5 U.S.C. 

§ 706(2)(C). See also La. Pub. Serv. Comm’n v. FCC, 476 

U.S. 355, 374 (1986) (“[A]n agency literally has no power to 

act . . . unless and until Congress confers power upon it.”). 

By the plain language of the Federal Election Campaign 

Act (FECA), the FEC lacks the power it now asserts. To fall 

within FEC jurisdiction, a “gift, subscription, loan, advance, 

or deposit of money or anything of value” must be provided 

to a political committee “for the purpose of influencing any 

election for Federal office,” 2 U.S.C. § 431(8)(A)(i), and any 

money expended by such a committee must also have been 

done for that same purpose, id. § 431(9)(A)(i). There is no 

other reasonable way to read Congress’s words. For the FEC 

to have any role, money must be used for the “purpose”—

defined as an “objective, goal, or end,” BLACK’S LAW 

DICTIONARY 1356 (9th ed. 2009)—of “influencing” an 

“election for Federal office.” The inescapable corollary is the 

FEC has no authority over money given or spent “solely for 

the purpose of influencing state or local elections,” an activity 

“unaffected by FECA’s requirements and prohibitions.” 

McConnell, 540 U.S. at 122. 

Here, the FEC has set aside Congress’s command that the 

agency’s jurisdiction be bounded by the “purpose” for which 

money is spent. Instead of strictly minding this jurisdictional 

marker, the FEC conclusively presumes a federal purpose 

drives any spending that might influence a federal election.1

 

The question though is not whether spending influences a 

federal election, but whether it was spent for that reason. 

 

1 See, e.g., Political Committee Status, Definition of Contribution, 

and Allocation for Separate Segregated Funds and Nonconnected 

Committees, 69 Fed. Reg. 68,056, 68,062 (Nov. 23, 2004) (Final 

Rules) (“[R]eferences solely to a political party inherently influence 

both Federal and non-Federal elections.”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 46
3 

Otherwise, the word “purpose” becomes superfluous, a result 

that this court cannot accept, e.g., Reiter v. Sonotone Corp., 

442 U.S. 330, 339 (1979), especially for a jurisdictional 

provision like this one, see, e.g., N. Am. Van Lines, Inc. v. 

NLRB, 869 F.2d 596, 598 (D.C. Cir. 1989). Under FECA, 

federal effects are simply not enough.2

 

Nor does labeling spending that may affect both state and 

federal elections as “mixed-purpose” somehow solve the 

FEC’s problem. Regulating on the basis of such a label still 

assumes there must be a federal purpose behind any spending 

that might influence, even tangentially, a federal campaign. 

Because that necessary assumption is false, these regulations 

remain invalid. Only after a federal purpose—mixed or 

otherwise—is identified does the FEC’s power come into 

play. If a federal purpose can be shown, then allocation ratios 

like those promulgated here may well be appropriate under 

FECA, but just asserting that there must be a federal purpose 

skips the threshold jurisdictional question.3

 

 

2 Cf. 42 U.S.C. § 1973c (under the Voting Rights Act, certain 

jurisdictions cannot alter their voting procedures without showing 

the change “neither has the purpose nor will have the effect of 

denying or abridging the right to vote on account of race or color” 

(emphasis added)). 

3

 It is also no defense to say that under Buckley v. Valeo, 424 U.S. 1 

(1976), everything political committees do reflects federal 

purposes. See EMILY’s List v. FEC, 569 F. Supp. 2d 18, 44 

(D.D.C. 2008) (“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.”). In Buckley, the Court explained “[e]xpenditures of . . . 

‘political committees’ . . . can be assumed to fall within the core 

area sought to be addressed by Congress.” 424 U.S. at 79. This 

“assum[ption],” however, is rebutted when it is unreasonable to 

posit a federal purpose. See Akins v. FEC, 101 F.3d 731, 742 (D.C. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 47
4 

B. 

These regulations give short shrift to the “purpose” of 

spending and so must be vacated. Indeed, we have already 

rejected the FEC’s view. Just fours years ago, in Shays v. 

FEC, we held FECA requires that “to qualify as ‘expenditure’ 

in the first place, spending must be undertaken ‘for the 

purpose of influencing’ a federal election” and agreed with 

the FEC that “time, place, and content may be critical indicia 

of communicative purpose.” 414 F.3d 76, 99 (D.C. Cir. 

2005). Though a federal 

election-related intent is obvious . . . in statements 

urging voters to “elect” or “defeat” a specified 

candidate or party, the same may not be true of ads 

identifying a federal politician but focusing on 

pending legislation—a proposed budget, for example, 

or government reform initiatives—and appearing three 

years before the next election. Nor is such purpose 

necessarily evident in statements referring, say, to a 

Connecticut senator but running only in San Francisco 

media markets. 

Id. 

Shays confirms what FECA says: context matters. 

Referencing a federal candidate “may” reveal a federal 

purpose, but if an ad will not be aired to her constituents or if 

it will run “years before the next election,” then absent some 

persuasive indicia of a federal purpose, a reference by itself to 

 

Cir. 1996) (en banc) vac’d on other grounds 524 U.S. 1 (1998) 

(Buckley only “creat[es] a presumption” of a federal purpose). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 48
5 

the candidate does not trigger FEC jurisdiction. This was the 

FEC’s position in Shays, and it should be the FEC’s position 

now. FECA’s unambiguous text requires no less. 

Under the Multiple Candidate Allocation Regulation, 

political committees must use hard money for “[p]ublic 

communications that refer to one or more clearly identified 

Federal candidates, regardless of whether there is reference to 

a political party, but do not refer to any clearly identified nonFederal candidates.” 11 C.F.R. § 106.6(f)(1). The rule is 

categorical. Even if a communication only says “Vote No on 

State Ballot Initiative 123—They Waste Enough Taxes in 

Washington, D.C.,” merely referring (perhaps by means of a 

montage of grainy black-and-white photos) to United States 

Senators of both parties with a penchant for pork-barrel 

spending, the ad is per se deemed to have a federal purpose. 

This is true even if those big spenders hail from distant states, 

are not up for reelection for years, and the spot will not be 

shown anywhere near their voters. Whether such an ad could 

affect a federal race is doubtful, but the FEC goes further and 

says these ads always reflect a federal purpose. In an age 

when even pizza shops and used-car dealers invoke the 

stereotype of wasteful federal spending to sell their wares, the 

FEC’s lack of sophistication is startling. 

The FEC’s approach also ignores that a state campaign 

may be more effective if the campaigning group can mention 

a federal official’s endorsement. Many federal politicians are 

of national stature, particularly those associated with hot 

button political issues. If, for example, a referendum would 

make it more difficult to get an abortion, a pro-choice group 

may trumpet a statement denouncing it from a prominent prochoice United States senator, while a pro-life group may 

respond with a statement from an equally prominent pro-life 

senator. To say, as the FEC does, that citing these statements 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 49
6 

can only be done for the purpose of influencing federal 

elections is to pretend away the power of celebrity. Just as 

Michael J. Fox’s name might be used in commercials for a 

stem cell amendment because his association makes for 

effective politics, see Alfonso Serrano, Stem Cell Opponents 

To Air Celebrity Ad, CBSNEWS.COM, Oct. 25, 2006, 

http://www.cbsnews.com/stories/2006/10/25/politics/main212

2383.shtml, an out-of-state and out-of-cycle Senator Debbie 

Stabenow’s endorsement might be used to support state 

candidates because her association makes for effective state 

politics, particularly to targeted demographics.4

 

The Solicitation Regulation respects Congress’s language 

no better. The regulation declares any donation “made by any 

person in response to any communication is a contribution to 

the person making the communication if the communication 

indicates that any portion of the funds received will be used to 

support or oppose the election of a clearly identified Federal 

candidate.” 11 C.F.R. § 100.57(a). This rule applies even if a 

solicitation’s banner headline says only a certain percentage 

of the donation will be used for federal activities. Hence, 

even if someone gives $1000 in response to a solicitation that 

unambiguously says 90% of what is received will be spent on 

local elections, the FEC asserts jurisdiction over the entire 

gift. If a gift is made subject to this disclaimer, how is the full 

$1000 given for the purpose of influencing a federal election? 

The Solicitation Regulation also says “[i]f the solicitation 

does not refer to any clearly identified non-Federal 

 

4

 “[R]eferring 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,” EMILY’s List, 569 F. 

Supp. 2d. at 48, but if such speculative brainstorming can satisfy 

FECA’s “purpose” requirement, there is no “purpose” requirement. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 50
7 

candidates, but does refer to a political party, in addition to [a] 

clearly identified Federal candidate,” then the entire gift 

becomes subject to the FEC’s authority, id. § 100.57(b)(1), 

and “[i]f the solicitation refers to one or more clearly 

identified non-Federal candidates, in addition to [a] clearly 

identified Federal candidate . . . , at least fifty percent (50%) 

of the total funds received are contributions [subject to the 

FEC], whether or not the solicitation refers to a political 

party,” id. § 100.57(b)(2). Even if the solicitation is 

unmistakable that the entire gift will be spent on local 

elections, the FEC nonetheless still claims jurisdiction over at 

least some of the resulting donations. 

This blindingly-bright line suffers from the same flaw as 

the Multiple Candidate Allocation Regulation: it assumes 

merely referencing a federal candidate always unmasks a 

purpose of influencing a federal election and assumes those 

who give money in response to such a solicitation also 

unfailingly do so for the same purpose. That’s just not true. 

Instead, a federal politician’s name can be used for reasons 

tied solely to state electioneering. Again, consider an out-ofstate and out-of-cycle Senator Stabenow. If she were to say 

“EMILY’s List supported a Democrat like me when I was 

running for state office, and I’m asking you to support 

EMILY’s List now so it can continue to work on behalf of 

women who are seeking state office,” then under the 

Solicitation Regulation, the entire amount of any donations is 

subject to the FEC.5

 That result conflicts with Congress’s 

“purpose” requirement. 

 

5

 My hypothetical is similar to one EMILY’s List posed to the FEC, 

with the only material difference being the inclusion of a party 

label. While the FEC said EMILY’s List’s solicitation was fine, 

see FEC Advisory Op. 2005-13, at 5–6 (Oct. 20, 2005), it could not 

have said the same for mine: including “Democrat”—an important 

label in state politics too—causes the gift to be hard money. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 51
8 

Finally, the Administrative Costs Allocation Regulation is 

contrary to law. Under 11 C.F.R. § 106.6(c), committees 

must use “at least 50 percent Federal funds” for 

“administrative expenses, costs of generic voter drives, and 

costs of public communications that refer to any political 

party.” An obvious problem is this rule applies in oddnumbered years when there are no federal elections. If later 

this November EMILY’s List were to say “vote a straight 

Democratic ticket for the city counsel” in a broadcast in Walla 

Walla, Washington, no less than half of the cost would have 

to be expensed to a federal account, even though there is no 

federal race to influence. The FEC is explicit: if a 

communication mentions a political party, then context is 

irrelevant. See FEC Advisory Op. 2005-13, at 4–5 (Oct. 20, 

2005) (the duty to “pay the costs of public communications 

that refer to a political party with at least 50 percent Federal 

funds does not change based on the activities of [the 

committee] in the particular State”). 

Contrary to this regulation’s premise, moreover, certain 

“administrative expenses” do not always reflect a federal 

purpose, mixed or otherwise. A committee, for example, that 

opposes human cloning (and thus supports many different 

state and federal candidates and laws throughout the nation) 

may launch an outpost in a state that is considering an anticloning measure and organize a voter drive there,6

 even 

though the group has no intention of participating in any 

federal election. By this regulation, a full half of the costs 

 

6

 A “generic voter drive” includes “any . . . activities that urge the 

general public to . . . support candidates . . . associated with a 

particular issue, without mentioning a specific candidate.” 11 

C.F.R. § 106.6(b)(1)(iii) (emphasis added). Thus, if a committee 

says “support candidates for the General Assembly who oppose 

human cloning” in an odd-numbered year, hard money is required. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 52
9 

must be expensed to the committee’s federal account. In fact, 

the FEC would require the committee to use hard money for a 

leaflet that says “both Democrats and Republicans” endorse 

the initiative. Such a leaflet is not “generic party advertising,” 

McConnell, 540 U.S. at 123; it is an ad for a state ballot 

initiative, not a political party, and it defies reason to say 

otherwise.7 FECA does not require this absurdity. 

The court says EMILY’s List has waived part of its 

statutory claim. First, my colleagues concede EMILY’s List 

has challenged every other subpart of these regulations, and 

agree the FEC has exceeded its statutory powers, but say 

because EMILY’s List only mentions “administrative 

expenses” in one section of its brief, it waives its argument 

about “costs of generic voter drives” and “costs of public 

communications that refer to any political party.” 11 C.F.R. 

§ 106.6(c). This is so even though the clauses are in the exact 

same sentence of the exact same regulation, and even though 

they violate the exact same section of FECA for the exact 

same reason. This is perplexing. EMILY’s List 

comprehensively says “[n]or are the regulations permitted by 

FECA. FECA was passed to regulate contributions and 

expenditures made with ‘the purpose of influencing any 

election for Federal office.’” EMILY’s List Br. at 17 

(emphasis added). And if there is any doubt, EMILY’s List 

 

7

 “Generic party advertising” is not in the United States Code or the 

Code of Federal Regulations. It was used by the McConnell district 

court to mean, naturally, ads that support a party. See 251 F. Supp. 

2d 176, 199 (D.D.C. 2003) (per curiam) (“[N]ational parties 

expended $14 million in nonfederal funds for ‘generic’ party 

advertising, consisting predominantly of television advertisements 

that did not mention candidates names, but urged viewers to simply 

vote for a particular party or stressed themes from the presidential 

campaigns.”); id. at 654 (separate opinion of Kollar-Kotelly, J.) 

(“generic party advertising (that is, ‘Vote Republican!’)”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 53
10 

opens its reply brief by saying “[t]he regulations at issue in 

this case violate the First Amendment, Chevron[], and the 

Administrative Procedure Act.” EMILY’s List Reply Br. at 1 

(emphasis added). EMILY’s List also contends § 106.6(c) 

requires using hard money for ads that state “both Democrats 

and Republicans” support a measure. Id. at 16. It goes 

without saying that EMILY’s List never argues “the 

regulations all violate FECA, except for the second and third 

clauses in the second sentence of 11 C.F.R. § 106.6(c).”8

Second and even more perplexingly, in order to buttress 

its waiver argument, the same judges that read McConnell

narrowly as a case that “views political parties as different in 

kind than independent expenditure committees,” Maj. Op. at 

22, concludes EMILY’s List could not have successfully 

challenged § 106.6(c)’s regulation of generic activities on 

statutory grounds because McConnell specifically approved 

regulation of contribution and expenditure limits for these 

funds. Id. at 41–42. If this were correct, it would mean the 

FEC can constitutionally regulate a committee like EMILY’s 

List, and the court’s constitutional analysis is critically 

undermined. 

 

8

 Even if we assume EMILY’s List has inadequately raised this 

issue, waiver is a prudential doctrine—not jurisdictional. E.g., 

Mitchell v. Fishbein, 377 F.3d 157, 164–65 (2d Cir. 2004). And 

though my colleagues are mistaken on waiver, if they were truly 

concerned about this, we could order additional briefing. E.g., U.S. 

Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444–48 

(1993) (holding the D.C. Circuit did not err in ordering 

supplemental briefing on a subject not raised because “when an 

issue or claim is properly before the court, the court is not limited to 

the particular legal theories advanced by the parties, but rather 

retains the independent power to identify and apply the proper 

construction of governing law”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 54
11 

C. 

No one disputes the FEC can craft bright-line rules. An 

“objective test,” Orloski v. FEC, 795 F.2d 156, 162 (D.C. Cir. 

1986), in fact, may be constitutionally required, see FEC v. 

Wis. Right to Life, Inc., 551 U.S. 449, 467–69 (2007) (opinion 

of Roberts, C.J.). Communications calling for the election or 

defeat of federal candidates certainly fall within the agency’s 

authority, and the FEC may have a bit more leeway to 

regulate ads directed at federal electorates or aired during 

federal elections. Shays, 414 F.3d at 99. FECA’s 

unambiguous text, however, forbids the Commission from 

doing what it has done here: promulgating proxies for 

“purpose” that wholly ignore all relevant contextual clues. 

The regulations consequently must be vacated as contrary to 

congressional will. 

II. 

A. 

Because this case can be decided on statutory grounds, 

we need not reach the constitutional question, and so should 

not reach the constitutional question. Our precedent is not 

wishy-washy: “Federal courts should not decide constitutional 

questions unless it is necessary to do so. Before reaching a 

constitutional question, a federal court should therefore 

consider whether there is a nonconstitutional ground for 

deciding the case, and if there is, dispose of the case on that 

ground.” Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000). 

See also Meredith Corp. v. FCC, 809 F.2d 863, 870 (D.C. Cir. 

1987); United States v. Thomas, 572 F.3d 945, 952 (D.C. Cir. 

2009) (Ginsburg, J., concurring in part). My colleagues duck 

this rule, preferring to summon the awesome power of 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 55
12 

Marbury v. Madison. But in their eagerness to play John 

Marshall, they do not follow him. The Great Chief Justice 

himself cautioned: “No questions can be brought before a 

judicial tribunal of greater delicacy than those which involve 

the constitutionality of a legislative act. If they become 

indispensably necessary to the case, the court must meet and 

decide them,” but if not, “a just respect for the legislature 

requires, that the obligation of its laws should not be 

unnecessarily and wantonly assailed.” Ex parte Randolph, 20 

F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558). 

The reasons to be “keenly mindful of our institutional 

role” and “fully appreciate” the solemnity of constitutional 

adjudication are obvious. Nw. Austin Mun. Util. Dist. No. 

One v. Holder, 129 S. Ct. 2504, 2513 (2009). Meekness, for 

one, compels us to recognize we are not the Constitution’s 

only friend—each branch swears an oath to uphold it. See

U.S. CONST. art. II, § 1, cl. 8; Rostker v. Goldberg, 453 U.S. 

57, 64 (1981). And if we misread a statute, Congress can fix 

it; not so with the Constitution. 

The court, however, is not content just answering a 

gratuitous constitutional question. Its holding is broader than 

even the plaintiff requests. Instead of arguing nonprofits have 

a constitutional right to pay for ads attacking federal 

candidates with soft money, EMILY’s List more modestly 

challenges the regulations as the “functional equivalent of 

spending limits, prohibiting EMILY’s List from supporting 

state and local candidates in certain ways when its federal 

funds are exhausted” and claims they are not properly tailored 

because they “restrict vast amounts of nonfederal activity.” 

EMILY’s List Br. at 17 (summary of argument) (emphasis 

added). The court holds, nonetheless, that EMILY’s List is 

constitutionally entitled to pay 100% of the costs of its 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 56
13 

advertisements out of a soft-money account, even for ads that 

attack or promote federal candidates. Maj. Op. at 28–29.9 

Because EMILY’s List’s actual claims are not bold 

enough, the court sua sponte spins a more aggressive 

argument—making its waiver charge all the more curious. 

Nowhere does any party refer to Justice Blackmun’s separate 

opinion in California Medical Association v. FEC, 453 U.S. 

182 (1981) (“Cal-Med”). Nor does EMILY’s List mention 

FEC v. National Conservative PAC, 470 U.S. 480 (1985) 

(“NCPAC”), FEC v. Massachusetts Citizens for Life, Inc., 479 

U.S. 238 (1986) (“MCFL”), or North Carolina Right to Life, 

Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008)—in other words, 

the cases upon which the court’s holding depends, see, e.g., 

Maj. Op. at 11–16, 22–23, 26.10 None of the law review 

 

9

 Consistent with its briefing, during oral argument counsel for 

EMILY’s List was more circumspect than the court is today: 

The Court: Would your position preclude say regulation 

of get out the vote drives, or voter 

registration, or that sort of thing? Do you 

think that would be beyond the FEC’s 

purview? 

EMILY’s List: No, Your Honor, we don’t take that position, 

we take the position that reasonable 

regulations to account for the federal election 

related impact of that activity are 

permissible. 

Tr. of Oral Arg. at 9. Cf. Maj. Op. at 27 (“[N]on-profits are 

constitutionally entitled to pay 100% of the costs of such voter 

drive activities out of their soft-money accounts.”). 

10 In fact, EMILY’s List does not mention Cal-Med until its reply 

brief, and neither party cites Cal-Med for a proposition integral to 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 57
14 

articles the court relies on are cited—much less discussed—

either.11 And far from hashing out McConnell’s “footnote 

48,” id. at 23 n.13, neither party mentions it. The court today 

issues an expansive constitutional decision without the benefit 

of on-point briefing. Before deciding a complicated First 

Amendment issue, we ought to ask for the parties’ views. 

In attempting to connect its decision to the parties’ views, 

the court artfully re-imagines the “key question in this case,” 

describing it as whether “non-profits [are] more like 

individual citizens (who under Buckley have the right to spend 

unlimited money . . . ) or more like political parties (which 

under McConnell do not).” Maj. Op. at 40. The court notes 

“Cal-Med was cited and discussed often in the briefs and at 

oral argument.” Id. at 41. Cal-Med was cited and discussed 

by the parties, but never to support the proposition for which 

the court now relies on it. For instance, when asked by the 

court to respond to the FEC’s reliance on Cal-Med, counsel 

 

the court’s holding. EMILY’s List does cite, once, as a “see also,” 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 

(1981), but for a background principle. EMILY’s List Br. at 23–24. 

The FEC cites MCFL in a footnote for an immaterial point, FEC 

Br. at 23 n.17, but does not mention NCPAC, Citizens Against Rent 

Control, or North Carolina Right to Life. 

 

11 Many of the articles do not support the court, and not one 

squarely does. E.g., Edward B. Foley, The “Major Purpose” Test: 

Distinguishing Between Election-Focused and Issue-Focused 

Groups, 31 N. KY. L. REV. 341, 344 (2004) (“[I]n my judgment 

contributions to political committees should be classified under the 

First Amendment with contributions to political parties . . . .”); 

Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. PA.

L. REV. 31, 72 (2004) (explaining that because of the “considerable 

deference” it displayed, “[l]ower courts showing fidelity to 

McConnell will have a difficult time striking down most campaign 

finance regulation”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 58
15 

for EMILY’s List offered this succinct critique of the court’s 

holding: 

The Court: Can you deal with [FEC’s counsel’s] 

response on [Cal-Med]? 

EMILY’s List: Yes. I mean, Cal[-]Med is 

mysteriously produced here for the 

FEC’s position. Cal[-]Med didn’t 

raise any of the issues in this case. 

Cal[-]Med was a simple question of 

whether a committee that was 

making contributions to federal 

candidates had to observe a limit on 

contributions made to that federal 

program. That set a law now, that’s 

certainly what EMILY’s List does. I 

don’t think it bears at all on this 

invasion of our state and local 

programs through the promulgation 

of these excessive federal regulatory 

schemes. 

Tr. of Oral Arg. at 32–33. How true. 

But even if it were judicially proper for me to do so, and 

even if the issues were briefed, I doubt I could join the court’s 

opinion in full. This is not because I dislike its outcome. 

Indeed, I agree with what seems to be the unstated premise: if 

the Supreme Court’s cases made any sense, the First 

Amendment would protect much more than pornography, 

profanity, and pyrotechnics. See United States v. Playboy 

Entm’t Group, Inc., 529 U.S. 803 (2000); Cohen v. 

California, 403 U.S. 15 (1971); Texas v. Johnson, 491 U.S. 

397 (1989). The amendment’s “purpose,” after all, is “to 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 59
16 

preserve an uninhibited marketplace of ideas in which truth 

will ultimately prevail,” FCC v. League of Women Voters, 

468 U.S. 364, 377 (1984)—a principle that “has its fullest and 

most urgent application to speech uttered during a campaign 

for political office,” Eu v. S.F. County Democratic Cent. 

Comm., 489 U.S. 214, 223 (1989). If those beautifully fierce 

words “Congress shall make no law” are to do anything but 

condemn our constitutionalism as a failed experiment, then at 

least political speech in all its forms should be free of 

government constraint. 

My colleagues’ distaste for the FEC’s handiwork is to 

their credit. It shows they take the First Amendment 

seriously. And they are right, of course, that if constitutional 

law were better acquainted with the Constitution, regulations 

such as these would never survive Article III scrutiny. If an 

advertisement criticizes the President of the United States, the 

Speaker of the House of Representatives, or the Chair of the 

Senate Committee on Foreign Relations, it can be a felony 

punishable by up to five years in prison to pay for that ad 

using money the federal government doesn’t know about or 

that comes from sources the federal government deems to 

have already given enough. See 2 U.S.C. § 437g(d). The 

First Amendment, logically construed, cannot condone such a 

weighty burden on political speech at the same time it forbids 

penalizing the production of “virtual child pornography,” 

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). 

I also agree with the court that “corruption” should only 

be understood in terms of quid pro quo—not a free-floating 

unease about money in politics. Once “corruption” is 

disconnected from “pay to play,” Congress has carte blanche

to stifle speech, a license that is particularly pernicious as our 

overweening government ever enlarges itself. Power—

government power—is what generates passion in politics. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 60
17 

Money only measures its depth. The more power is at stake, 

the more money will be used to shield, deflect, or co-opt it. 

So long as the government can take and redistribute a man’s 

livelihood, there will always be money in politics. One man’s 

corruption is another man’s political accountability. 

But there is a rub. We sit on a lower court and “must 

follow the binding Supreme Court precedent” until the Court 

itself overrules it. We the People Found., Inc. v. United 

States, 485 F.3d 140, 144 (D.C. Cir. 2007). Though we do 

not read the court above’s precedent unduly expansively, we 

also do not drag our feet: “it is not our role to fight a rearguard action” against the logical implications of the Court’s 

cases. United States v. Gardellini, 545 F.3d 1089, 1096 (D.C. 

Cir. 2008). Instead, we take its holdings as we find them, 

applying them to cover all they fairly address. Stare decisis

means nothing if we only are bound by those cases with 

which we already agree. Like it or not, we cannot ignore 

Supreme Court precedent. 

Modesty is dictated by the difficulty of applying 

McConnell’s facial generalizations to real world events. It is 

hard to say exactly how contribution limits on hybrid 

committees, like EMILY’s List, should be analyzed after 

McConnell. McConnell involved a wide-ranging facial 

challenge addressing the constitutionality of BCRA. Trying 

to extrapolate from that case to this one is risky and reason 

enough to avoid the constitutional bog. Suffice it to say that 

the Supreme Court majority, the dissenters, and the 

commentators all have read McConnell as a maximalist 

opinion. See 540 U.S. at 192–93 (“[O]ur decisions in Buckley 

and MCFL were specific to the statutory language before us; 

they in no way drew a constitutional boundary that forever 

fixed the permissible scope of provisions regulating 

campaign-related speech.”); id. at 263 (Scalia, J., dissenting) 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 61
18 

(“We have witnessed merely the second scene of Act I of 

what promises to be a lengthy tragedy.”); id. at 264 (Thomas, 

J., dissenting) (“[T]he Court today upholds what can only be 

described as the most significant abridgment of the freedoms 

of speech and association since the Civil War.”); id. at 294 

(Kennedy, J., dissenting) (“This new definition of corruption 

sweeps away all protections for speech that lie in its path.”); 

id. at 357 (Rehnquist, C.J., dissenting) (“Today’s decision, by 

not requiring tailored restrictions, has significantly reduced 

the protection for political speech having little or nothing to 

do with corruption or the appearance of corruption.”); see also 

Richard Briffault, The 527 Problem . . . and the Buckley

Problem, 73 GEO. WASH. L. REV. 949, 970 (2005) 

(“McConnell, however, transformed the constitutional 

landscape.”). 

In both holding and discussion, the McConnell Court 

sided with the censor, going so far as to rely on theoretical 

anticipation to uphold a speech restriction, see 540 U.S. at 

185 (upholding BCRA § 323(f), which forbids state and local 

officeholders and candidates from using soft money to 

support or attack federal candidates, based on the “eminently 

reasonable prediction that . . . state and local candidates and 

officeholders will become the next conduits for the softmoney funding of sham issue advertising”), and ending with 

an invitation for even more congressional action, id. at 224 

(“We are under no illusion that BCRA will be the last 

congressional statement on the matter.”). This is not the 

modus operandi of a tentative tribunal; the Court knew what it 

was doing, and said so. After McConnell, if these regulations 

are within the FEC’s statutory power, then there is no obvious 

reason they facially violate the First Amendment.12 

 

12 This a facial challenge. For such claims, “exercising judicial 

restraint . . . frees the Court not only from unnecessary 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 62
19 

It is true McConnell upheld, against an equal protection 

challenge, a provision of BCRA regulating political parties. 

But regulation of political parties is not McConnell’s theme. 

The Court broadly recognized and deferred to governmental 

interests in preventing corruption, the appearance of 

corruption, and circumvention of election regulations. 

McConnell, 540 U.S. at 136–37, 143–45, 152–53. Arguably, 

this expansive corruption/circumvention/conduit rationale is 

broad enough to encompass some limits on independent 

expenditure committees, particularly for those political 

committees with a self-proclaimed electoral mission. See

Briffault, 73 GEO. WASH. L. REV. at 986–87; Hasen, 153 U.

PA. L. REV. at 67–68. EMILY’s List is a multicandidate 

political committee that has as its primary purpose electing 

ideologically compatible candidates, EMILY’s List Br. at 3. 13 

 

pronouncement on constitutional issues, but also from premature 

interpretations of statutes in areas where their constitutional 

application might be cloudy.” Wash. State Grange v. Wash. State 

Republican Party, 128 S. Ct. 1184, 1190–91 (2008). As a rule, a 

law is facially repugnant only if it “is unconstitutional in all of its 

applications,” but there is a narrow First Amendment exception 

where “a law may be overturned [if] a substantial number of its 

applications are unconstitutional, judged in relation to the statute’s 

plainly legitimate sweep,” id. at 1191 n.6. Those seeking this 

“strong medicine,” id., however, face a “heavy burden,” 

McConnell, 540 U.S. at 207. 

13 In defining its mission, EMILY’s List explains that it “is 

committed to a three-pronged strategy to elect pro-choice 

Democratic women: recruiting and funding viable women 

candidates; helping them build and run effective campaign 

organizations; and mobilizing women voters to help elect 

progressive candidates across the nation.” EMILY’s List, Our 

Mission, http://emilyslist.org/about/mission/ (last visited Aug. 28, 

2009). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 63
20 

As such, it supports Democratic candidates for federal office. 

See Matthew B. Stannard, Cash is Key for Tauscher’s 

Replacement, S.F. CHRON., Aug. 24, 2009, at A1, available at 

2009 WLNR 16474721 (noting that a candidate in a federal 

primary race “has touted the endorsement of EMILY’s List, a 

national fundraising organization that supported [former U.S. 

Representative Ellen Tauscher] and backs Democratic women 

who support abortion rights.”). Thus, EMILY’s List is much 

more like a political party than the Sierra Club or the Society 

for the Prevention of Cruelty to Animals. 

Whether, under the high court’s current precedents, 

EMILY’s List could be regulated exactly like a political party 

is unknown. That it should not be regulated more harshly

than a political party seems to be the committee’s complaint 

with the FEC regulations challenged in this court. EMILY’s 

List Br. at 39 (“Bizarrely, [the regulation] also treats nonparty 

PACs more harshly than any other type of committee, save 

national parties and candidates themselves.”). My point is not 

that McConnell mandates such treatment; only that nothing in 

the opinion’s logic clearly precludes it. The court does not 

think this is “a persuasive interpretation of McConnell.” Maj. 

Op. at 38. Perhaps the court is right. But reading the case, as 

the court does, to sanction First Amendment immunity for all 

non-connected nonprofits seems even more implausible. 

B. 

Precedent holds allocation and solicitation rules are 

contribution limits. This is key, as such limits receive less 

than “strict scrutiny,” given they “‘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)). The “‘overall effect’ of dollar 

limits on contributions is [also] ‘merely to require candidates 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 64
21 

and political committees to raise funds from a greater number 

of persons.’” Id. at 136 (quoting Buckley, 424 U.S. at 21–22). 

Unlike strict scrutiny, which requires narrow tailoring to serve 

compelling governmental interests, a contribution limit is 

“valid [if] it satisfies the lesser demand of being closely 

drawn to match a sufficiently important interest.” Id. 

After McConnell, allocation and solicitation rules are 

subject only to this lesser scrutiny. Facing BCRA § 323(a), 

which forbids national parties from soliciting and spending 

soft money, and § 323(b), which forbids state parties from 

spending soft money on “federal election activities,” the 

Court declined to apply strict scrutiny. 540 U.S. at 138–39. 

The Court held “neither provision in any way limits the total 

amount of money parties can spend. Rather, they simply limit 

the source and individual amount of donations. That they do 

so by prohibiting the spending of soft money does not render 

them expenditure limitations.” Id. at 139. We instead ask 

“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.” Id. at 138–39. Using the 

Court’s standard, I agree with the district court that while the 

FEC’s regulations “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 EMILY’s List 

may undertake.” EMILY’s List, 569 F. Supp. 2d at 39. 

The issue we confront then is whether these regulations, 

facially, are closely drawn to match an important interest. To 

answer, we again ought to look to McConnell. In upholding 

BCRA § 323, the Court noted the “interests that underlie 

contribution limits—interests in preventing both the actual 

corruption threatened by large financial contributions and the 

eroding of public confidence in the electoral process through 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 65
22 

the appearance of corruption.” McConnell, 540 U.S. at 136. 

The Court bluntly held these interests are “not limited . . . to 

the elimination of cash-for-vote exchanges,” but “extend to 

the broader threat from politicians too compliant with the 

wishes of large contributors.” Id. at 143. Congress must be 

able to “address [these] more subtle but equally dispiriting 

forms of corruption” by “remov[ing] the temptation” of “large 

financial contributions.” Id. at 153. To combat “cynical 

assumption[s],” Congress can “regulate the appearance of 

undue influence,” with “undue influence” defined as “a sense 

of obligation” or “grat[itude],” id. at 144–45. Importantly, 

Congress also has an interest in preventing the circumvention 

of these limits—and so can use broad prophylaxes—because 

“candidates, donors, and parties test the limits of the current 

law.” Id. at 144. In sum, McConnell defines the “interest” so 

broadly it is hard to imagine regulations that are not properly 

drawn to it. See id. at 356–57 (Rehnquist, C.J., dissenting). 

Following from such an encompassing statement of the 

interest, the McConnell Court facially upheld many onerous 

restrictions on the use of soft money. The Court emphasized, 

for example, that even a complete ban on soliciting nonfederal 

funds would still “leave open ample opportunities for 

soliciting federal funds,” and noted such restrictions “increase 

the dissemination of information by forcing parties, 

candidates, and officeholders to solicit from a wider array of 

potential donors.” Id. at 139–40. The Court also upheld a 

ban on any use of soft money by national parties, even for 

those “minor parties” that are unlikely to have any tangible 

electoral success, remarking only that “a nascent or struggling 

minor party can bring an as-applied challenge if § 323(a) 

prevents it from amassing the resources necessary for 

effective advocacy.” Id. at 159. While national parties do not 

always act on behalf of or in concert with federal candidates, 

a prophylactic prohibition on any soft money spending and 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 66
23 

soliciting by them is facially valid, given the “close 

connection and alignment of interests” between national 

parties and federal candidates. Id. at 155. 

The Court’s discussion of national parties by itself raises 

difficulties for the court, especially because the Court already 

seemingly has held there is a “close connection and alignment 

of interests” between committees like EMILY’s List and 

federal candidates. In Cal-Med, the Court sustained 

contribution limits to multicandidate committees. Four 

justices adopted the Conference Report’s conclusion that 

these committees may “‘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 

(plurality opinion) (quoting H.R. Conf. Rep. No. 94-1057, pp. 

57–58 (1976)). Justice Blackmun penned a concurring 

opinion, but did not disclaim the Conference Report or 

disagree with the Court’s ultimate holding. In fact, he 

expressly said “contributions to multicandidate committees 

may be limited to $5,000 per year as a means of preventing 

evasion [of contribution limits],” though he noted in dicta that 

his conclusion would be different if the committee “makes 

only independent expenditures” and so does not “pose a 

perceived threat of actual or potential corruption.” Id. at 203 

(opinion of Blackmun, J.) (emphasis added). If Congress can 

forbid all allocation and solicitation of soft money by national 

parties, how is it unconstitutional to forbid only some 

allocation and solicitation of soft money by multicandidate 

committees that are also closely aligned with federal 

candidates? 

The court disputes this reading of Cal-Med, claiming 

there are not just two types of political committees (ones that 

only make independent expenditures, and all others), but 

actually three: (1) those that only make independent 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 67
24 

expenditures; (2) those that only contribute to candidates; and 

(3) those that make independent expenditures and contribute 

to candidates. Such political committees are, in the court’s 

view, entitled to raise and spend “unlimited money” for 

advertisements, get-out-the-vote efforts, and voter registration 

drives. Maj. Op. at 26. If these hybrid committees contribute 

to federal candidates, they must use hard money, says the 

court, but all other spending can be with soft money. 

This novel argument is not without considerable charm, 

but one must read Cal-Med with a squint to see that holding.14

There is no indication in Cal-Med that the committee did not 

make independent expenditures, but the Court still sustained 

the statute, without announcing the distinction the court draws 

today. The Court has consistently cited Cal-Med for the 

unqualified proposition that it is constitutional to limit 

contributions to multicandidate committees. See, e.g., FEC v. 

 

14 The court relies heavily on Justice Blackmun’s concurring 

opinion in Cal-Med, arguing that it is controlling. But the opinion 

is controlling, if at all, only for “points that can be said to be fairly 

subsumed within the reasoning of the plurality.” John C. Eastman, 

Strictly Scrutinizing Campaign Finance Restrictions (and the 

Courts that Judge Them), 50 CATH. U. L. REV. 13, 37 (2000); see

Marks v. United States, 430 U.S. 188, 193 (1977). This circuit has 

clarified it is only the narrowest opinion’s overlap with the broader 

opinion that counts. “Marks is workable—one opinion can be 

meaningfully regarded as ‘narrower’ than another—only when one 

opinion is a logical subset of other, broader opinions. In essence, 

the narrowest opinion must represent a common denominator of the 

Court’s reasoning; it must embody a position implicitly approved 

by at least five Justices who support the judgment.” King v. 

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). Presumably 

then, the controlling part of Justice Blackmun’s opinion is the 

holding that the FEC may constitutionally regulate contributions to 

fund independent political expenditures without contravening the 

First Amendment—no more and no less. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 68
25 

Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 

441–42 (2001); FEC v. NRA Political Victory Fund, 513 U.S. 

88, 97 (1994). See also Buckley, 424 U.S. at 38. 

The infamous “footnote 48 of the McConnell opinion,” 

Maj. Op. at 23 n.13, also flatly contradicts the court: 

Justice KENNEDY’s contention that Buckley limits 

Congress to regulating contributions to a candidate 

ignores Buckley itself. There, we upheld FECA’s 

$25,000 limit on aggregate yearly contributions to 

candidates, political committees, and party committees

out of recognition that FECA’s $1,000 limit on 

candidate contributions would be meaningless if 

individuals could instead make “huge contributions to 

the candidate’s political party.” Likewise, in [CalMed], we upheld FECA’s $5,000 limit on 

contributions to multicandidate political committees. 

It is no answer to say that such limits were justified as 

a means of preventing individuals from using parties 

and political committees as pass-throughs to 

circumvent FECA’s $1,000 limit on individual 

contributions to candidates. Given FECA’s definition 

of “contribution,” the $5,000 and $25,000 limits 

restricted not only the source and amount of funds 

available to parties and political committees to make 

candidate contributions, but also the source and 

amount of funds available to engage in express 

advocacy and numerous other noncoordinated 

expenditures. If indeed the First Amendment 

prohibited Congress from regulating contributions to 

fund the latter, the otherwise-easy-to-remedy 

exploitation of parties as pass-throughs (e.g., a strict 

limit on donations that could be used to fund candidate 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 69
26 

contributions) would have provided insufficient 

justification for such overbroad legislation. 

McConnell, 540 U.S. at 152 n.48. 

That the Court may have created a doctrinal anomaly 

might suggest, as the court argues, see Maj. Op. at 23 n.13, 

that it could not possibly have meant what it said, but that is a 

hard argument to make. Often cases are in tension as doctrine 

works itself pure. Our duty as an intermediate court is not to 

tell the Court what it ought to have said, but to abide by what 

it did say. 

But even leaving aside its treatment of national parties, 

McConnell further undermines the court. Recognizing the 

dynamic—indeed, Sisyphean—character of campaign finance 

law, the Court noted “[m]oney, like water, will always find an 

outlet.” 540 U.S. at 224. Upon realizing structural forces 

inherent in a republic inevitably create incentives for those 

subject to regulation to petition for relief and to campaign 

against those who are disinclined to grant it, the Court did not 

retreat to a more manageable and less burdensome “quid pro 

quo” standard. Id. at 296 (Kennedy, J., dissenting). Instead, 

after upholding § 323(a), the Court emphasized money would 

now “corrupt” federal races by other, more subtle routes, so 

Congress, in anticipation of this new corruption, can enact 

broad anti-circumvention measures. E.g., id. at 165–66. 

Indeed, without pointing to any evidence that local officials 

(e.g., county assessors) are connected to federal candidates 

(e.g., for President of the United States) or have been used to 

circumvent the law, the Court held Congress prophylactically 

can regulate them without facially offending the Constitution. 

See id. at 184–85. If the First Amendment is flexible enough 

to allow regulating local officials because contributions might

flow through them to federal candidates, then why can’t the 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 70
27 

FEC also make an “eminently reasonable prediction” that 

committees like EMILY’s List—which actually do campaign 

for candidates and give them money15—will be the next route 

for corruption, and regulate accordingly? Id. at 185. 

The court sidesteps McConnell by saying EMILY’s List 

is a nonprofit, not a political party, and so has more 

constitutional rights.16 But EMILY’s List is not just a 

nonprofit; it is a multicandidate political committee that 

campaigns for and contributes money to federal candidates. 

In upholding § 323 in full, including § 323(f), McConnell

blessed restrictions on local officeholders, who are not, of 

course, political parties. The rule then cannot be that parties 

and federal candidates are in one column, and everyone else is 

in another, because that does not explain McConnell. Instead, 

there is a spectrum, N.C. Right to Life, 525 F.3d at 291, so we 

should ask not whether an entity is a nonprofit, but instead 

where it falls on the spectrum. Specifically, is EMILY’s List 

more or less likely than a local official to act as a conduit to 

federal candidates? “Common sense” says such committees 

 

15 Britt Cocanour, EMILY’s List Chief of Staff, avowed her 

committee “has helped to elect sixty-eight Democratic women to 

Congress, thirteen to the U.S. Senate, eight to governorships, and 

over 350 to other state and local offices.” Joint Appendix at 70. 

16 The court suggests McConnell guarantees “‘interest groups’” the 

right “‘to raise soft money to fund voter registration, GOTV 

activities, mailings,’ and advertising.” Maj. Op. at 22 (quoting 540 

U.S. at 187). But McConnell only notes BCRA can treat interest 

groups differently than parties without violating Due Process. See

540 U.S. at 188. There is a difference between noting Congress has 

not regulated and holding Congress cannot regulate. See N.C. Right 

to Life, 525 F.3d at 333–34 (Michael, J., dissenting) (discussing 

McConnell’s reference to “interest groups”). 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 71
28 

are the more natural path to “corruption,” McConnell, 540 

U.S. at 297 (Kennedy, J., dissenting), but if my colleagues are 

correct, Congress cannot regulate them the same way it 

regulates county directors of animal control.17 Precedent is 

plain: local officials must use hard money to attack federal 

candidates, see id. at 184–85, but as the court now resolves 

this case, multicandidate political committees cannot be so 

limited. Can that be right? 

The court’s opinion is boldly creative, and will, if 

followed, have profound results on campaign finance 

regulation. This case means: 

1. Multicandidate political committees can spend 

unlimited amounts of soft money to run ads attacking 

or supporting federal candidates and political parties. 

2. These committees can spend unlimited amounts of 

soft money on get-out-the-vote activities that support 

federal candidates and political parties. 

3. These committees can solicit soft money by saying: 

“Just like you, we want [federal candidate] to win. 

You have already donated all the law allows to 

[federal candidate], but there is no limit on how much 

you can give to us to support [federal candidate].” 

4. Congress can do nothing about any of this. 

These results are in tension—perhaps irreconcilable tension—

with McConnell. 

 

17 Though these regulations go further than BCRA § 323(f), by the 

court’s opinion, it would not matter if they were exactly the same: 

nonprofits are categorically distinct. See Maj. Op. at 22. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 72
29 

C. 

Recall how the Court in McConnell concluded its opinion: 

“‘To say that Congress is without power to pass appropriate 

legislation to safeguard an election from the improper use of 

money to influence the result is to deny the nation in a vital 

particular the power of self protection.’” 540 U.S. at 223–24 

(quoting Burroughs v. United States, 290 U.S. 534, 545 

(1934)). This “conviction” compelled the Court to uphold 

“Congress’s most recent effort to confine the ill effects of 

aggregated wealth on our political system” by 

“control[ing]. . . soft money.” Id. at 224. But the Court was 

“under no illusion that BCRA will be the last congressional 

statement on the matter”—“[m]oney, like water, will always 

find an outlet.” Id. 

While I have argued courts should not unnecessarily assail 

legislative acts, political speech is the core of what the First 

Amendment protects. From Buckley to McConnell the Court 

has relied on an ad hoc empiricism ill-suited to the complex 

interactions of democratic politics. The government has 

unlimited resources, public and private, for touting its policy 

agenda. Those on the outside—whether voices of opposition, 

encouragement, or innovation—must rely on private wealth to 

make their voices heard. An increasingly anomalous 

campaign finance jurisprudence only impoverishes this 

essential debate. McConnell’s careless invocation of access 

and influence (two integral aspects of political participation) 

as synonyms for corruption is instructive. Such an expansive, 

self-referential, and amorphous definition of corruption, 

coupled with lax standards of scrutiny and a willingness to 

accept as “evidence” any plausible theory of corruption or 

claim of circumvention, is likely to doom any argument for 

protection of core political speech. Someday the Supreme 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 73
30 

Court may be persuaded to reconsider this approach. But that 

cannot be our task. 

* * * 

This should have been a straightforward application of 

administrative law, not unlike countless agency cases decided 

by this circuit every year. Congress has enacted a statute; the 

agency has violated it; the rules must be vacated; done. I 

would enforce the statute as written and call it a day. A good 

rule of thumb is we often do more for the law when we do 

less with the law. Per that rule, I concur only in part with the 

court’s opinion. 

Case: 08-5422 Document: 1206889 Filed: 09/18/2009 Page: 74