ORAL ARGUMENT SCHEDULED FOR DECEMBER 13, 2005 

______________________________________________________________________________ 

______________________________________________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

No. 05-5160 

_______________________________________________ 

EMILY’s LIST

Plaintiffs-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lawrence H. Norton 

General Counsel 

 

Richard B. Bader 

Associate General Counsel 

 

David Kolker 

Assistant General Counsel 

 Vivien Clair 

Harry J. Summers 

Greg J. Mueller 

Attorneys 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

October 12, 2005 (202) 694-1650 

______________________________________________________________________________ 

_________________________________________________________________ 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

EMILY’s LIST, ) 

) 

Plaintiff-Appellant, ) No. 05-5160 

) 

v. ) 

) 

CERTIFICATE OF COUNSEL 

(Cir. R. 28(a)(1)) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant-Appellee. ) 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

 Pursuant to D.C. Cir. R. 28(a)(1), the Federal Election Commission (“the Commission”) 

hereby submits its Certificate as to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. The plaintiff below was EMILY’s List, and it is the appellant 

in this Court. The Commission is the defendant below and is the appellee in this Court. Amici

curiae in the district court and in this Court are: John McCain, Russell Feingold, Christopher 

Shays, Martin Meehan, Democracy 21, The Campaign Legal Center, and the Center for 

Responsive Politics. There have been no intervenors in the district court or in this Court. 

(B) Rulings Under Review. EMILY’s List appeals the February 25, 2005, decision 

of the United States District Court for the District of Columbia (Kollar-Kotelly, J.) denying its 

application for a preliminary injunction. The district court’s opinion is reported as EMILY’s 

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

(C) Related Cases. This case has not previously been before this Court or any court 

other than the district court below. The Commission knows of no “related cases” as that term 

is defined in D.C. Cir. R. 28(a)(1)(C). 
TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION .............................................................1 

COUNTERSTATEMENT OF ISSUES PRESENTED ...................................................1 

STATUTES AND REGULATIONS ...............................................................................2 

COUNTERSTATEMENT OF THE CASE .....................................................................2 

COUNTERSTATEMENT OF THE FACTS ...................................................................2 

I. BACKGROUND..................................................................................................2 

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

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

1. Regulation of Allocation of Expenses by Nonconnected 

Political Committees Prior to BCRA ...........................................4 

2. Bipartisan Campaign Reform Act ................................................4 

3. Rulemaking ..................................................................................5 

a. Proposed Changes to 11 C.F.R. 106.6: Allocation..........5 

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

c. Public Comment and Hearings ........................................6 

4. The Final Rules.............................................................................7 

a. Allocation: 50% Minimum for Administrative 

and Other Expenses ..........................................................7 

b. Allocation: Public Communications 

and Voter Drives...............................................................8 

 c. Solicitations ......................................................................8 

II. PROCEEDINGS IN THE DISTRICT COURT...................................................9 

SUMMARY OF ARGUMENT......................................................................................10 
ARGUMENT .................................................................................................................12 

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 

IN DENYING A PRELIMINARY INJUNCTION........................................................12 

I. STANDARD OF REVIEW AND MOVANT’S BURDEN FOR A 

PRELIMINARY INJUNCTION .......................................................................12 

II. EMILY’S LIST’S COMPLETE FAILURE TO PROVIDE 

EVIDENCE OF HARM IS FATAL TO ITS REQUEST FOR 

A PRELIMINARY INJUNCTION AND ITS ABILITY TO 

DEMONSTRATE STANDING.........................................................................14 

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 

IN CONCLUDING THAT EMILY’S LIST FAILED TO ESTABLISH 

ITS LIKELIHOOD OF SUCCESS ON THE MERITS.....................................19 

A. THE ALLOCATION AND SOLICITATION REGULATIONS 

REASONABLY APPLY THE ACT’S CONTRIBUTION LIMITS 

TO POLITICAL COMMITTEES....................................................................20 

B. 11 C.F.R. 106.6(c) IS A PERMISSIBLE ALLOCATION FORMULA FOR 

CERTAIN FEDERAL AND NONFEDERAL SHARED EXPENSES.....................22 

C. 11 C.F.R. 106.6(f) USES PERMISSIBLE CRITERIA TO DEFINE 

WHICH CANDIDATE-SPECIFIC COMMUNICATIONS ARE SUBJECT 

TO ALLOCATION RULES...........................................................................30 

D. 11 C.F.R. 100.57 IS A PERMISSIBLE INTERPRETATION OF WHICH

DONATIONS TO A POLITICAL COMMITTEE ARE “CONTRIBUTIONS”........34 

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

RECEIVED INADEQUATE NOTICE OF THE COMMISSION’S RULEMAKING .38 

1. The Commission Provided Ample Notice of Revisions to 

Its Allocation Regulation, 11 C.F.R. 106.6 ................................39 

a. The 50% Federal Funds Minimum Allocation 

Requirement Was Adequately Noticed .........................39 

b. The Allocation Requirements for Communications 

that Refer to Federal Candidates and Political 

Parties Were Adequately Noticed ..................................40 

-ii-
2. The Commission Provided Ample Notice of Its 

Solicitation Regulation, 11 C.F.R. 100.57..................................41 

3. The Commission Can Rely Upon Data in Publicly 

Available Disclosure Reports.....................................................43 

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN 

FINDING THAT A PRELIMINARY INJUNCTION WOULD CAUSE 

THE COMMISSION AND THE PUBLIC SUBSTANTIAL HARM...............44 

CONCLUSION ..............................................................................................................45 

-iii-
TABLE OF AUTHORITIES 

 Page 

Cases 

Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001)......................................................... 12 

Allied Local and Regional Mfrs. Caucus v. EPA, 215 F.3d 61 (D.C. Cir. 2000)...24, 27 

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

 (D.C. Cir. 1987)...................................................................................................... 27 

 

Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988)....................................................... 19 

Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) ......................... 41 

Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir. 2000)............ 38, 41 

Bailey v. Federal National Mortgage Ass’n, 209 F.3d 740 (D.C. Cir. 2000) .............. 13 

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

Building & Constr. Trades Dept., AFL-CIO v. Allbaugh, 295 F.3d 28 

(D.C. Cir. 2002), cert. denied, 537 U.S. 1171 (2003) ............................................. 19 

 

* California Med. Ass’n v. FEC, 453 U.S. 182 (1981).................................... 21, 29, 35 

Career College Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) ....................... 39, 40, 43 

Carpenter v. Secretary of Veteran Affairs, 343 F.3d 1347 (Fed. Cir. 2003)................ 28 

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) ........................................... 19 

* Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .............................................. 20 

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

Columbia, 919 F.2d 148 (D.C. Cir. 1990)............................................................... 18 

CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738 

 (D.C. Cir. 1995)....................................................................................................... 12 

Clinton Memorial Hospital v. Shalala, 10 F.3d 854 (D.C. Cir. 1993) ................... 24, 37 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987)................................... 23, 29 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-iv-
Davenport v. International Bhd. of Teamsters, 166 F.3d 356 (D.C. Cir. 1999)........... 13 

Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951 

 (D.C. Cir. 1998)....................................................................................................... 19 

 

Doe v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003) ............................................ 18, 19 

Edison Electrical Inst. v. EPA, 2 F.3d 438 (D.C. Cir. 1993) ....................................... 39 

Elrod v. Burns, 427 U.S. 347 (1976)............................................................................ 18 

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

ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002)...................... 25 

Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993)............................................................. 13 

FEC v. Beaumont, 539 U.S. 146 (2003)....................................................................... 21 

FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) ......... 20 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)....................... 20 

FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001) ..................................... 20 

FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995)......................... 9, 35 

First American Discount Corp. v. CFTC, 222 F.3d 1008 (D.C. Cir. 2000)........... 38, 39 

Florida League of Prof’l Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) .............. 33 

FTC v. Affordable Media, LLC, 179 F.3d 1228 (9th Cir. 1999) .................................. 15 

General Instrument Corp. v. FCC, 213 F.3d 724 (D.C. Cir. 2000) ............................. 27 

Health Ins. Ass’n v. Shalala, 23 F.3d 412 (D.C. Cir. 1994)......................................... 41 

Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007 

 (6th Cir. 2003) .......................................................................................................... 15 

Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378 (1990) .............. 17 

Kamargo Corp. v. FERC, 852 F.2d 1392 (D.C. Cir. 1988).......................................... 27 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-v-
Louisiana Federal Land Bank v. Farm Credit Admin., 336 F.3d 1075 

 (D.C. Cir. 2003)....................................................................................................... 45 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................. 18 

Mathews v. Diaz, 426 U.S. 67 (1976).......................................................................... 27 

Mazurek v. Armstrong, 520 U.S. 968 (1997)............................................................... 13 

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

Meriwether v. Caraustar Packaging Co., 326 F.3d 990 (8th Cir. 2003)........................ 15 

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

 (D.C. Cir. 1991)....................................................................................................... 18 

National Wildlife Fed’n v. Burford, 835 F.2d 305 (D.C. Cir. 1987) ........................... 14 

National Wildlife Fed’n v. Burford, 878 F.2d 422 (D.C. Cir. 1989), 

rev’d on other grounds sub nom Lujan v. National Wildlife Fed’n, 

 497 U.S. 871 (1990) ................................................................................................ 19 

National Wildlife Fed’n v. EPA, 286 F.3d 554 (D.C. Cir. 2002)................................. 15 

 

Natural Resources Defense Council v. Pena, 147 F.3d 1012 (D.C. Cir. 1998)............ 14 

* Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) .............................. 17, 28 

Northeast Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936 

 (D.C. Cir. 2004)................................................................................................. 38, 41 

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

 (D.C. Cir. 1995)....................................................................................................... 43 

Plains Cotton Cooperative Ass’n of Lubbock, Texas v. Goodpasture 

Computer Service, Inc., 807 F.2d 1256 (5th Cir. 1987)........................................... 13 

* Reno v. Flores, 507 U.S. 292 (1993)......................................................................... 19 

Reytblatt v. NRC, 105 F.3d 715 (D.C. Cir. 1997).......................................................... 7 

RNC v. FEC, 76 F.3d 400 (D.C. Cir. 1996)................................................................. 37 

Sampson v. Murray, 415 U.S. 61 (1974) ..................................................................... 14 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-vi-
San Luis Obispo Mothers For Peace v. NRC, 789 F.2d 26 

 (D.C. Cir. 1986) (en banc)....................................................................................... 19 

Second City Music, Inc. v. City of Chicago, 333 F.3d 846 (7th Cir. 2003).................. 16 

Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998).............................. 12, 20 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005)................................................................ 32 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004)..................................................... 19 

Steel Company v. Citizens for Better Environment, 523 U.S. 83 (1998) ................... 18 

* United States v. Harriss, 347 U.S. 612 (1954) .......................................................... 33 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .................................. 20 

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) ................................. 12 

United States Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) .......................... 38 

University of Texas v. Camenisch, 451 U.S. 390 (1981)....................................... 13, 14 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987) ................................................. 16, 18 

Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 

 (D.C. Cir. 1977)................................................................................................ 13, 14 

West Virginia v. EPA, 362 F.3d 861 (D.C. Cir. 2004) ................................................ 44 

* Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985)............................. 14, 17 

Worldcom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001)........................................ 25, 27 

Statutes and Regulations

Administrative Procedure Act, 5 U.S.C. 706(2) ................................................... passim

Bipartisan Campaign Reform Act of 2002, (“BCRA”) Pub. L. No. 107-155, 

 116 Stat. 81 (2002) ........................................................................................... passim

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-vii-
* Federal Election Campaign Act of 1971, as amended, codified at 

 2 U.S.C. 431-55................................................................................................ passim

 

BCRA § 323 ................................................................................................................. 29 

2 U.S.C. 431(2)............................................................................................................. 34 

2 U.S.C. 431(4)(A)......................................................................................................... 3 

* 2 U.S.C. 431(8).......................................................................................................... 34 

2 U.S.C. 431(20)(A)(i) ................................................................................................. 31 

2 U.S.C. 431(20)(A)(ii) ................................................................................................ 31 

2 U.S.C. 431(20)(A)(iv) ............................................................................................... 27 

2 U.S.C. 433(a)............................................................................................................... 3 

2 U.S.C. 434(f)(3)(A)................................................................................................... 32 

2 U.S.C. 437c(b)(1) ........................................................................................................ 2 

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

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

2 U.S.C. 437d(a)(8) ........................................................................................................ 2 

2 U.S.C. 438(a)(8) .......................................................................................................... 2 

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

2 U.S.C. 441a(a)............................................................................................................. 3 

2 U.S.C. 441a(a)(1)(C)................................................................................................. 35 

2 U.S.C. 441a(a)(4) ........................................................................................................ 3 

2 U.S.C. 441b ................................................................................................................. 3 

2 U.S.C. 441e.................................................................................................................. 3 

2 U.S.C. 441i(b)(2)(A) ............................................................................................. 4, 22 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-viii-
* 5 U.S.C. 553(b)(3)............................................................................................... 38, 42 

5 U.S.C. 706(2)(A)....................................................................................................... 19 

28 U.S.C. 1292(a)(1) ...................................................................................................... 1 

28 U.S.C. 1331 ............................................................................................................... 1 

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

11 C.F.R. 100.57(a) ................................................................................................. 9, 35 

11 C.F.R. 100.57(b)(2) ............................................................................................. 9, 35 

11 C.F.R. 102.5(a).......................................................................................................... 3 

11 C.F.R. 104.10(b) (2000) ............................................................................................ 4 

11 C.F.R. 106.1....................................................................................................... 30, 31 

11 C.F.R. 106.1 (1977)................................................................................................... 4 

* 11 C.F.R. 106.6................................................................................................... passim

11 C.F.R. 106.6(a) ......................................................................................................... 3 

11 C.F.R. 106.6(b)(1)(i) ................................................................................................ 8 

11 C.F.R. 106.6(b)(1)(iii) ............................................................................................... 8 

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

11 C.F.R. 106.6(c) (2000) .............................................................................................. 4 

11 C.F.R. 106.6(f)..................................................................................................passim 

11 C.F.R. 106.6(f)(1)...................................................................................................... 8 

11 C.F.R. 106.6(f)(2)...................................................................................................... 8 

11 C.F.R. 106.6(f)(3)...................................................................................................... 8 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-ix-
Federal Register 

* Final Rules and Explanation and Justification on “Political Committee Status, 

Definition of Contribution, and Allocation for Separate Segregated Funds 

and Nonconnected Committees,” 69 Fed. Reg. 68,056 (Nov. 23, 2004)........passim 

*Notice of Proposed Rulemaking, 69 Fed. Reg. 11,736 (Mar. 11, 2004).............passim

Miscellaneous 

U.S. Const. Art. III ....................................................................................................... 10 

U.S. Const. amend. I.............................................................................................. passim

Fed. R. App. P. 10(e).................................................................................................... 15 

Fed R. App. P. 28(a)(7) ................................................................................................ 15

Fed. R. App. P. 28(a)(9) ............................................................................................... 15 

Fed. R. Civ. P. 52(a)..................................................................................................... 13 

Local Rules, LCvR 65.1(c) (D.D.C.)............................................................................ 15 

FEC Advisory Opinion 1978-10 .................................................................................... 4

FEC Notice, April 7, 2004, available at http://www.fec.gov/

press/press2004/20040407advisory.html ................................................................. 7 

FEC PAC Financial Summaries, available at http://www.fec.gov/finance/ 

disclosure/ftpsum.shtml.......................................................................................... 43 

Comments of America Coming Together to FEC, April 5, 2004, available at 

http://www.fec.gov/pdf/nprm/political_comm_status/america_ 

 coming_tghr_svoboda.pdf...................................................................................... 39 

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

Politics to FEC, April 5, 2004, available at http://www.fec.gov/pdf/nprm/

political_comm_status/simon_potter_nobel_sanford.pdf .................................. 6, 26 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-x-
Comments of Media Fund to FEC, April 5, 2004, available at http://www.fec.gov/

pdf/nprm/political_comm_status/media_fund_utrecht.pdf ...................................... 7 

Comments of Public Citizen to FEC, April 5, 2004, available at http://

www.fec.gov/pdf/nprm/political_comm_status/ 

public_citizen_holman.pdf........................................................................... 6, 26, 39 

Comments of Republican National Committee to FEC, April 5, 2004, available at 

http://www.fec.gov/pdf/nprm/political_comm_status/ 

rnc_election_law_spies.pdf ...................................................................................... 6 

Comments of Senators McCain and Feingold, Representatives Shays and Meehan 

 to FEC, April 9, 2004, available at 

http://www.fec.gov/pdf/nprm/political_comm_status/comm2/02.pdf............... 6, 26 

Transcript of FEC Hearing on Political Committee Status Notice of Proposed 

Rulemaking, April 14, 2004, available at http://www.fec.gov/

pdf/nprm/political_comm_status/trans_04_14_04.pdf............................................. 7 

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

June 7, 2004, at 1, available at LEXIS, News Library, Wire Service File..................... 3 

*Cases and authorities chiefly relied upon are marked with an asterisk. 

-xi-
GLOSSARY 

AO = Advisory Opinion 

APA = Administrative Procedure Act 

BCRA = Bipartisan Campaign Reform Act of 2002 

CFTC = Commodity Futures Trading Commission 

CIA = Central Intelligence Agency 

EPA = Environmental Protection Agency 

FCC = Federal Communications Commission 

FEC = Federal Election Commission 

FECA = Federal Election Campaign Act of 1971 

FERC = Federal Energy Regulatory Commission 

FTC = Federal Trade Commission 

NPRM = Notice of Proposed Rulemaking 

NRC = Nuclear Regulatory Commission 

NRDC = Natural Resources Defense Council 

RNC = Republican National Committee 

SSF = Separate Segregated Fund 
Oral Argument Scheduled For December 13, 2005 

______________________________ 

No. 05-5160 

______________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

______________________________ 

EMILY’s LIST, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_____________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_____________________________ 

COUNTERSTATEMENT OF JURISDICTION 

 EMILY’s List alleged jurisdiction under 28 U.S.C. 1292(a)(1) and 1331 over its claims 

that three regulations promulgated by the Federal Election Commission (“the Commission” or 

“FEC”) are facially invalid. The Commission contests the Court’s jurisdiction. See infra

pp. 14-19. 

COUNTERSTATEMENT OF ISSUES PRESENTED 

Whether the district court abused its discretion in denying a preliminary injunction 

to prevent enforcement of three regulations implementing the contribution limits in the Federal 

Election Campaign Act of 1971, as amended (“FECA” or “the Act”), 2 U.S.C. 431-55, as they 

apply to political committees. 
STATUTES AND REGULATIONS 

Relevant statutory and regulatory provisions are set out in the appellant’s addendum. 

COUNTERSTATEMENT OF THE CASE 

EMILY’s List appeals the February 25, 2005, order denying its application for a 

preliminary injunction in this facial challenge to three regulations. EMILY’s List v. FEC, 

362 F.Supp.2d 43 ( D.D.C. 2005) (JA 25-49).1

 Two of these regulations simplify and clarify 

how federal political committees may “allocate” nonfederal funds to help finance administrative 

expenses, voter drives, and certain public communications that influence both federal and 

nonfederal elections. See 11 C.F.R. 106.6(c), 106.6(f). A third rule clarifies when funds 

obtained through solicitations by those committees constitute “contributions” under the Act. See

11 C.F.R. 100.57. 

COUNTERSTATEMENT OF THE FACTS 

I. BACKGROUND 

 A. THE PARTIES 

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

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

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

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

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

 

1

 “JA __” references are to the Joint Appendix filed with appellant’s brief. 

-2- 
EMILY’s List has been registered with the Commission for more than 20 years as a 

multicandidate nonconnected political committee.2 See 2 U.S.C. 433(a). It has separate bank 

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

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

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

other political committees, but no contributions from corporations, labor unions, or foreign 

nationals. See 2 U.S.C. 441a(a), 441b, 441e. EMILY’s List may use its federal account in 

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

that do not comply with the Act’s source and amount restrictions, but it can use those funds only 

in connection with nonfederal elections. 

EMILY’s List is one of the wealthiest federal political committees, having raised more 

than $25 million in hard money alone during the 2003-04 election cycle. See JA 175. 

“EMILY’s List is the biggest PAC, which means we have the most hard money, so it’s not an 

issue of not having it,” according to its president, Ellen Malcolm. Liz Sidoti, “Bush, Kerry to 

Pull Ads on Friday,” Associated Press Newswires, June 7, 2004, at 1, available at LEXIS, News 

Library, Wire Service File. 

 

-3- 

2

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

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

makes expenditures aggregating in excess of $1,000 during a calendar year....” 2 U.S.C. 

431(4)(A). A “nonconnected committee” is a political committee that is not a party committee, 

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

corporation or labor organization. 11 C.F.R. 106.6(a). A “multicandidate committee” is a 

political committee that has been registered at least 6 months, has more than 50 contributors, and 

has made contributions to at least 5 candidates for federal office. 2 U.S.C. 441a(a)(4). 
B. STATUTORY AND REGULATORY BACKGROUND

1. Regulation of Allocation of Expenses by Nonconnected Political 

Committees Prior to BCRA 

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

separate federal and nonfederal accounts administrative expenses and the costs of certain 

activities (such as voter registration) that affect both federal and nonfederal elections. See 

11 C.F.R. 106.1 (1977); FEC Advisory Opinion (“AO”) 1978-10. Between 1990 and 2004, 

11 C.F.R. 106.6(c) permitted nonconnected committees to allocate administrative expenses and 

the costs of generic voter drives under the “funds expended method.” 11 C.F.R. 106.6(c) (2000). 

These costs were allocated based on a ratio of “federal expenditures” to “total federal and nonfederal disbursements” made by the committee during the two-year election cycle. Id. 

Committees were required to estimate and report this ratio to the Commission at the beginning of 

each election cycle and then report revised ratios during the election cycle to reflect actual 

disbursements. Id.; 11 C.F.R. 104.10(b) (2000). 

Over the past ten years, EMILY’s List has never reported a final allocation ratio 

reflecting less than 50% in direct federal candidate support. See JA 176-79 (final H1 Forms 

from 1997-2004). Its final allocation ratio for the 1995-96 election cycle was 70% federal and 

30% nonfederal (JA 181).

2. Bipartisan Campaign Reform Act 

In March 2002, Congress enacted the Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 (2002), to amend FECA. BCRA eliminated 

allocation for national party committees and substituted a different allocation regime for other 

political party committees, although it explicitly left determination of the method of allocation to 

the Commission. 2 U.S.C. 441i(b)(2)(A). These amendments did not directly address allocation 

-4- 
by nonconnected political committees under 11 C.F.R. 106.6; they were found constitutional in 

McConnell v. FEC, 540 U.S. 93, 133-189 (2003). 

3. Rulemaking 

On March 11, 2004, the Commission published a detailed notice of proposed rulemaking 

(“NPRM”) and, following a four-week comment period, held hearings on April 14 and 15, 2004. 

69 Fed. Reg. 11,736-60 (JA 75-100). 

a. Proposed Changes to 11 C.F.R. 106.6: Allocation 

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

for nonconnected committees. In particular, the Commission sought comment on the elimination 

of allocation to nonfederal accounts of any administrative expenses or generic voter drives 

(JA 93): 

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

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

committees to have non-Federal accounts and to allocate their disbursements between their Federal and non-Federal accounts? If an organization’s major purpose is to influence Federal elections, should the organization be required to pay for all of its disbursements out of Federal funds and 

therefore be prohibited from allocating any of its disbursements?

The NPRM proposed imposing a minimum federal percentage on the funds-expended method in 

11 C.F.R. 106.6(c); sought comment on several possible examples of a minimum percentage, 

ranging from 15% to 50%; and explicitly asked whether the Commission “[s]hould ... adopt a 

fixed minimum Federal percentage?” JA 94. The NPRM also sought public comment on 

proposals to change the allocation methods for certain voter drive activity and public 

communications that specifically mention federal candidates (JA 93). 

-5- 
b. Proposed 11 C.F.R. 100.57: Solicitations 

The Commission sought public comment on a proposed new regulation that any funds 

received in response to particular types of solicitations are “for the purpose of influencing any 

election for Federal office” and, therefore, “contributions” under FECA (JA 83). The NPRM 

included proposed regulatory text stating that any funds provided in response to a solicitation 

that contained “express advocacy” for or against a clearly identified federal candidate are 

contributions (JA 97). The Commission also sought comment regarding other possible 

standards for solicitations (JA 83): 

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

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

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

support, attack, or oppose a clearly identified Federal candidate?

c. Public Comment and Hearings 

Some commenters supported eliminating allocation in favor of requiring 100% federal 

funds for all expenditures under 11 C.F.R. 106.6, and some suggested abandoning the funds 

expended method and substituting a simpler system.3

 Others supported specific percentages to 

be used as a federal minimum for administrative expenses,4

 or simply urged the Commission to 

require a “significant minimum hard money share.”5

 There was also testimony at the hearing 

 

3

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

Republican National Committee, at 7-8 (April 5, 2004) (Exh. 14). All citations to “Exh.” herein 

refer to the FEC’s Exhibits in Support of its Opposition to Plaintiff’s Application for a 

Preliminary Injunction filed in the district court on January 24, 2005. The rulemaking comments 

and hearing transcripts are also available on the Commission’s Web site at 

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

4

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

Politics, at 17-19 (April 5, 2004) (Exh. 15). 

-6- 

5

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

at 3 (April 9, 2004) (Exh. 10). 
regarding the complexities of the current allocation system and the proposal to move to a flat 

minimum federal percentage.6 

Although the Commission received comments from numerous groups and individuals 

during the rulemaking, EMILY’s List did not submit any comments.7

4. The Final Rules 

The Final Rules and accompanying Explanation and Justification were published in 

the Federal Register on November 23, 2004, with an effective date of January 1, 2005. 69 Fed. 

Reg. 68,056-68 (JA 161-73). 

a. Allocation: 50% Minimum for Administrative 

and Other Expenses

The final rules changed the allocation scheme in 11 C.F.R. 106.6 for nonconnected 

committees. JA 164-68. The Commission explained that the comments and the history of public 

filings regarding allocation by committees led it to conclude that a revised allocation method 

would enhance compliance with FECA by making the system easier for committees to 

understand and follow, and for the Commission to administer (JA 165). New 11 C.F.R. 106.6(c) 

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

 

6

 See Transcript of Public Hearing regarding Political Committee Status Notice of 

Proposed Rulemaking, April 14, 2004, at 160 (testimony of Craig Holman) (stating the current 

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

least come out with some sort of fixed percentage”) (Exh. 8). See also Comments of Media 

Fund, at 20 (April 5, 2004) (Exh. 16). 

-7- 

7

 EMILY’s List filed no comments before the April 9, 2004 deadline for rulemaking 

comments. On August 17, 2004, it submitted a letter (JA 159-60) asking the Commission to 

publish new proposed rules and accept additional comments. During the rulemaking, the 

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

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

required to consider untimely comments even if “it has indicated that it would take them into 

consideration.” Reytblatt v. NRC, 105 F.3d 715, 723 (D.C. Cir. 1997). 
expenses, generic voter drives, and public communications that refer to a political party without 

referring to clearly identified candidates (JA 167). Administrative expenses include rent, 

utilities, office supplies, and salaries not attributable to a clearly identified candidate. 11 C.F.R. 

106.6(b)(1)(i). “Generic voter drives” include voter identification, voter registration, and 

get-out-the-vote drives that urge the public to support candidates of a particular political party, 

without mentioning a specific candidate. 11 C.F.R. 106.6(b)(1)(iii). 

b. Allocation: Public Communications and Voter Drives 

New section 11 C.F.R. 106.6(f) governs certain public communications and voter drives 

(JA 168). Those that refer to one or more clearly identified federal candidate, but to no 

nonfederal candidates, must be financed with 100% federal funds, regardless of whether political 

parties are also mentioned. Id.; 11 C.F.R. 106.6(f)(1). Conversely, public communications and 

voter drives that refer to a political party and only nonfederal candidates may be financed with 

100% nonfederal funds. JA 168; 11 C.F.R. 106.6(f)(2). Those that refer to both federal and 

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

accounts, regardless of whether they also mention political parties. 11 C.F.R. 106.6(f)(3). 

 c. Solicitations 

New section 11 C.F.R. 100.57 governs when funds received in response to certain 

solicitations must be treated as “contributions” under FECA (JA 161). If the solicitation 

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

a clearly identified Federal candidate,” then all money given in response is a “contribution” 

under FECA (JA 171). The rule seeks to capture solicitations that “plainly seek funds ‘for the 

purpose of influencing Federal elections’” (JA 162). 

-8- 
The Commission provided examples and explained that the standard in 11 C.F.R. 100.57 

was drawn from FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995) (JA 162). If a 

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

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

as contributions under FECA. 11 C.F.R. 100.57(b)(2) (JA 163). If a solicitation refers to 

nonfederal candidates and does not indicate that any funds received will be used to support or 

oppose the election of a clearly identified federal candidate, then 11 C.F.R. 100.57(a) does not 

apply and none of the funds received are federal contributions under that provision. 

II. PROCEEDINGS IN THE DISTRICT COURT 

EMILY’s List filed suit against the Commission on January 12, 2005. The complaint 

challenged new regulations 11 C.F.R. 100.57, 106.6(c) and 106.6(f), alleging that each exceeded 

the Commission’s authority, was arbitrary and capricious, was promulgated without adequate 

notice under the Administrative Procedure Act (“APA”), 5 U.S.C. 706(2), and violated the First 

Amendment. Complaint ¶¶ 46-79 (JA 16-22). 

On February 25, the district court denied EMILY’s List’s motion for a preliminary 

injunction, concluding that “all four of the considerations relevant to the Court’s determination 

... weigh in favor of denial of Plaintiff’s request.” JA 37. The court found that plaintiff had not 

shown a substantial likelihood of success on any of its claims and that it had made a “weak 

showing on the irreparable harm prong” of the preliminary injunction test (JA 48). The court 

also found that the harm to the parties and public interest factors “weigh heavily against the 

issuance of an injunction.” JA 48-49.8

 

-9- 

8 EMILY’s List asserts (Br. 2, 25) that the district court “did not consider” its claim that 

the regulations were arbitrary and capricious, but the court clearly did so (JA 37) — noting 
On April 21, 2005, almost two months later, EMILY’s List filed a timely appeal from the 

denial of a preliminary injunction. Meanwhile, on July 18, EMILY’s List and the Commission 

completed briefing their cross motions for summary judgment, which are now pending before the 

district court. 

SUMMARY OF ARGUMENT 

EMILY’s List cannot show that it is entitled to the extraordinary relief of a preliminary 

injunction to halt enforcement of three regulations promulgated by the Federal Election 

Commission. EMILY’s List failed to present to the district court any evidence of harm and 

relied instead upon unsupported factual assertions and hypothetical examples. It thus failed to 

establish irreparable harm to itself and standing under Article III. 

The district court did not abuse its discretion in finding that EMILY’s List is unlikely to 

succeed on the merits. The regulations govern certain “mixed” activity that influences both 

federal and nonfederal elections, and they implement the FECA’s contribution limits as applied 

to political committees, whose major purpose is the election of candidates. The provisions at 

issue do not limit how much money EMILY’s List can spend on campaign activities, but only 

help to prevent soft money contributions from influencing federal elections. 

Regulation 11 C.F.R. 106.6(c) sets a minimum 50% level of federal funds that federal 

political committees must use to finance administrative expenses and generic voter drives. The 

rule simplifies and clarifies the Commission’s previous regulation and reasonably reflects the 

fact that generic activities like “get out the vote” drives influence both federal and nonfederal 

elections. The regulation is consistent with the Act’s treatment of other political committees, and 

 

the claim “that the regulations themselves are arbitrary and capricious” — and then rejected it 

(JA 42-45). 

-10- 
it does not offend the First Amendment. It does not impose any spending limits or require 

EMILY’s List to change how it has been funding such activity. Like other provisions that 

prevent circumvention of the Act’s contribution limits, it is not subject to strict scrutiny. 

EMILY’s List does not attempt to make the required showing that this regulation (or the other 

two) would so reduce its fundraising ability that it would no longer be able to make its message 

heard. 

Regulation 11 C.F.R. 106.6(f) is a reasonable “candidate-driven” allocation rule that 

allows expenses for certain voter drives and public communications to be allocated based upon 

their references to federal or nonfederal candidates. It is consistent with the Act’s treatment of 

similar activities by political party committees and other entities, and, like section 106.6(c), 

prevents circumvention of the Act’s contribution limits. Appellant’s hypothetical examples of 

applications of this regulation that are allegedly beyond the Commission’s statutory authority or 

unconstitutional are insufficient to support a facial challenge. 

Regulation 11 C.F.R. 100.57 specifies that when a political committee receives money in 

response to a solicitation that indicates that the funds received will be used to support or oppose 

the election of a clearly identified federal candidate, those funds are “contributions” under the 

Act. This regulation is consistent with the Act’s definition of “contribution” and Supreme Court 

precedent interpreting that term. The regulation leaves multiple options for political committees 

to control whether their fundraising solicitations will seek federal or nonfederal donations, and it 

imposes no significant burden on EMILY’s List. 

EMILY’s List is unlikely to succeed on its claim that the Commission’s rulemaking 

notice was inadequate. The NPRM included both the terms and substance of the rules ultimately 

adopted, and the subjects and issues involved. Although EMILY’s List chose not to submit 

-11- 
comments, the notice was more than adequate to inform appellant that the Commission was 

considering regulations like those ultimately adopted, as evidenced by the wide range of 

comments from other organizations and individuals. 

 The district court did not abuse its discretion when it found that a preliminary injunction 

would harm the Commission and the public. A preliminary injunction would change the status 

quo, impair the Commission’s ability to implement the Act, and deprive the regulated 

community of the clear guidance it needs, thereby creating the potential for regulatory chaos. 

ARGUMENT 

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

DENYING A PRELIMINARY INJUNCTION 

I. STANDARD OF REVIEW AND MOVANT’S BURDEN FOR A 

PRELIMINARY INJUNCTION 

In denying a preliminary injunction the district court balanced four factors: (1) Whether 

the movant had shown that it is substantially likely to succeed on the merits; (2) whether the 

movant had shown that it would suffer irreparable injury if the injunction were not granted; 

(3) whether an injunction would substantially injure other interested parties; and (4) whether the 

requested injunction is in the public interest (JA 35-37). See also, e.g., CityFed Financial Corp.

v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). This Court reviews the 

district court’s weighing of these factors for abuse of discretion. See, e.g., Al-Fayed v. CIA, 

254 F.3d 300, 303-04 (D.C. Cir. 2001) (citing Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 

1317-18 (D.C. Cir. 1998)). 

The Court reviews the district court’s legal conclusions de novo, see, e.g., CityFed, 

58 F.3d at 746, but “[t]here is no de novo appellate review of factfindings.” United States v. 

Microsoft Corp., 253 F.3d 34, 117 (D.C. Cir. 2001). An appellate court will not set aside the 

-12- 
district court’s “[f]indings of fact, whether based on oral or documentary evidence, ... unless 

[they are] clearly erroneous.” Fed. R. Civ. P. 52(a). “It does not matter whether a finding of fact 

is based on documentary evidence or inferences from other facts; in either event, an appellate 

court must respect a trial court’s finding of fact unless it concludes that the finding is clearly 

erroneous.” Bailey v. Federal National Mortgage Ass’n, 209 F.3d 740, 743 (D.C. Cir. 2000). 

This standard applies, for example, to the fact-dependent irreparable injury inquiry. See, e.g., 

Faulkner v. Jones, 10 F.3d 226, 233 (4th Cir. 1993); Plains Cotton Cooperative Ass’n of 

Lubbock, Texas v. Goodpasture Computer Service, Inc., 807 F.2d 1256, 1261 (5th Cir. 1987). 

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be 

granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). “The purpose of a preliminary 

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

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

Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). 

EMILY’s List seeks to alter the current status quo while its request for permanent relief is 

pending before the district court. 

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

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

1999). Since EMILY’s List has not made any serious attempt to demonstrate any factor other 

than its likelihood of success (see infra pp. 19-44), its burden on that factor is extraordinarily 

-13- 
heavy. See Holiday Tours, 559 F.2d at 843 (“The necessary ‘level’ or ‘degree’ of possibility of 

success will vary according to the court’s assessment of the other factors”).9

II. EMILY’S LIST’S COMPLETE FAILURE TO PROVIDE EVIDENCE OF HARM 

IS FATAL TO ITS REQUEST FOR A PRELIMINARY INJUNCTION AND ITS 

ABILITY TO DEMONSTRATE STANDING 

“[T]he basis of injunctive relief in the federal courts has always been irreparable harm,” 

Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted). As the district court noted 

(JA 36; citation omitted), “if the movant makes no showing of irreparable injury, ‘that alone is 

sufficient’ for a district court to refuse to grant preliminary injunctive relief.” EMILY’s List’s 

failure to submit any affidavits or documentary evidence with its application for a preliminary 

injunction is, therefore, fatal to its claim of irreparable injury because “[b]are allegations of what 

is likely to occur are of no value since the court must decide whether the harm will in fact

occur.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (emphasis in original). 

EMILY’s List claims (Br. 8) that the new regulations impose “severe limitations” on its 

political speech, but this conclusory assertion is unsupported in law or fact. As explained infra

pp.28-30, the regulations do not prevent EMILY’s List from spending whatever money it can 

legally raise, and EMILY’s List offered no evidence about its alleged injury when it requested a 

 

9

 The Court should deny appellant’s request (Br. 34) for a final judgment on the merits. 

“‘[I]t is generally inappropriate for a federal court at the preliminary injunction stage to give a 

final judgment on the merits.’” Natural Resources Defense Council v. Pena, 147 F.3d 1012, 

1023 (D.C. Cir. 1998) (quoting University of Texas v. Camenisch, 451 U.S. at 395). See also, 

e.g., National Wildlife Fed’n v. Burford, 835 F.2d 305, 319 (D.C. Cir. 1987) (Court “ordinarily 

do[es] not consider the merits of the case further than necessary to determine whether that 

discretion [in granting or denying a motion for preliminary injunction] was abused.”). A merits 

judgment is clearly unwarranted here because the parties completed briefing their motions for 

summary judgment in July and the district court may issue its ruling imminently. The district

court may conclude that factual issues remain and thus summary judgment is inappropriate now 

or, finding that the preconditions for summary judgment have been satisfied, it may soon make a

final determination on the merits. 

-14- 
preliminary injunction. Instead, it has relied (Br. 4, 8-10, 14, 20, 23, 33) upon a slew of 

unsupported factual assertions, including statements about the intentions and activities of 

America Coming Together and other third parties; conclusory allegations of EMILY’s List’s 

supposed “critical shortage of funds”; descriptions of purely hypothetical communications; and 

unsubstantiated suggestions that EMILY’s List now devotes “a majority” of its time and effort to 

nonfederal elections.10 Moreover, appellant’s failure to cite anything in the administrative record 

to show that the kinds of hypothetical examples it now imagines were presented to the 

Commission indicates that these arguments were not preserved for judicial review, and should 

not even be considered by this Court. See National Wildlife Fed’n v. EPA, 286 F.3d 554, 562 

(D.C. Cir. 2002) (“[I]ssues not raised in comments before the agency are waived.... [T]here is a 

near absolute bar against raising new issues — factual or legal — on appeal in the administrative 

context.”) (citations omitted).11

 

10 The omission from appellant’s brief of “appropriate references to the record” for its 

factual assertions violates Fed R. App. P. 28(a)(7). See also Fed. R. App. P. 28(a)(9) (argument 

“must contain ... citations to the authorities and parts of the record on which the appellant 

relies”). 

-15- 

11 On appeal, EMILY’s List relies upon (Br. 9, 14, 17) the declaration of Britt Cocanour 

(JA 50-53), which was submitted to the district court with plaintiff’s reply brief in support of its 

motion for summary judgment on June 27, 2005 — two months after it filed this appeal from the 

denial of a preliminary injunction. JA 4 #17; JA 5 #26. This vague and speculative declaration 

fails to demonstrate irreparable harm, but in any event, it came far too late to serve as the 

required evidence at the preliminary injunction stage. See LCvR 65.1(c) (D.D.C.). It is not part 

of the record on appeal from the preliminary injunction order and was included in the joint 

appendix over the Commission’s objection. Moreover, the declaration’s absence cannot be 

attributed to an error or accident in compiling the record, and EMILY’s List did not even seek 

permission to supplement the record. See Fed. R. App. P. 10(e). The Court should therefore 

disregard Cocanour’s declaration on this appeal. See, e.g., Meriwether v. Caraustar Packaging

Co., 326 F.3d 990, 994 (8th Cir. 2003) (denying motion to supplement record “because such 

evidence was not before the district court at the time of its summary judgment ruling”); Inland

Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003); FTC v.

Affordable Media, LLC, 179 F.3d 1228, 1231 n.1 (9th Cir. 1999) (striking declarations executed 

months after district court issued preliminary injunction).
The district court correctly found that EMILY’s List had “failed to make the requisite 

showing of imminent, irreparable injury” (JA 46). EMILY’s List had devoted only one page of 

its brief to “this central question,” id.; however, even First Amendment claimants must do more 

than “merely allege” violations of their rights. Id. (quoting Wagner v. Taylor, 836 F.2d 566, 576 

n.76 (D.C. Cir. 1987) (emphasis in original)). The district court based its holding on three main 

findings. First, it found that EMILY’s List had failed to show that the new 50% federal funds 

minimum in 11 C.F.R. 106.6(c) would require it to change its current practice (JA 47). 

Second, the court concluded that “the new rules do not in fact prevent [EMILY’s List] from

engaging in whatever political speech it seeks to undertake.” Id. Finally, the district court 

found that, even if EMILY’s List ultimately prevailed on the merits of its suit, any harm it had 

suffered would not be irreparable because it could seek a “retroactive adjustment of its 

expenditure ratios” (JA 47-48). 

As the district court noted, the requirement in 11 C.F.R. 106.6(c) that committees allocate 

at least 50% of administrative and generic voter drive expenses to the federal account does not 

even require EMILY’S List to alter its pre-existing practices, since it has been using that same

allocation formula for years. See supra p. 4; Second City Music, Inc. v. City of Chicago,

333 F.3d 846, 849 (7th Cir. 2003) (there is “no strong justification for immediate relief to this

plaintiff, for ... [plaintiff] does not contend that it has altered ... its own mix of inventory”) 

(emphasis in original). 

As explained infra pp. 27-30, none of the challenged regulations restricts appellant’s 

speech, and, as the district court recognized (JA 47-48), what is really at stake for EMILY’S List 

while the merits of this case are pending is the amount of federal money it will use to finance 

certain activities and whether it may have to raise funds from more contributors. See Buckley v.

-16- 
Valeo, 424 U.S. 1, 21-22 (1976). It is well settled, however, that “[r]ecoverable monetary loss 

may constitute irreparable harm only where the loss threatens the very existence of the movant’s 

business.” Wisconsin Gas, 758 F.2d at 674. EMILY’s List, one of the nation’s most successful 

fundraising committees, has not alleged that its existence is threatened. Instead, its arguments 

amount to nothing more than a conclusory prediction that it will not be able to raise as much in 

federal funds as it would like in the coming election cycle. See, e.g., EMILY’s List Br. 12 

(EMILY’s List “must curtail its activities to the level permitted by the limited amount of federal 

funds available”), 13 (raising federal funds is “more difficult” than raising nonfederal funds).12 

Even if EMILY’S List were not one of the wealthiest committees in hard money, such 

speculation would not satisfy its burden of proving irreparable harm. 

[T]he mere fact that [a soft money restriction] may reduce the relative amount 

of money available ... to fund federal election activities is largely 

inconsequential. The question is not whether [the provision] reduces the 

amount of funds available over previous election cycles, but whether it is “so 

radical in effect as to ... drive the sound of [the recipient’s] voice below the 

level of notice.” 

McConnell, 540 U.S. at 173 (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 397 

(2000); fourth alteration in McConnell). Cf. Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 391 (1990) (when statute “merely decreases the amount of money appellant 

has to spend on its religious activities, any such burden is not constitutionally significant”). 

EMILY’s List argues that a retroactive adjustment cannot restore the political speech in 

 

-17- 

12 EMILY’s List also claims (Br. 14) that in the current election cycle it plans to engage in 

more nonfederal activity than “ever before,” and that such activity will become “the lion’s share” 

of its total activities. For these assertions, EMILY’s List relies solely on the declaration that it 

submitted with its summary judgment reply brief — long after the decision on appeal here. See, 

e.g., JA 51 (EMILY’s List “expects” to “train significantly more” nonfederal candidates in the 

2006 election cycle). Even if reliance on that declaration were proper (see supra p. 15 n.11), its 

vague and conclusory assertions do not show that appellant’s harm is certain, imminent, great 

and irreparable, as is required. 
which it will ostensibly be prevented from engaging. See Br. 12, 13-14. But this case is nothing 

like the case on which it relies, Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). In Elrod the 

Supreme Court found that government employees had already been “threatened with discharge 

or had agreed to provide support for the Democratic Party in order to avoid discharge,” and it 

was “clear therefore that First Amendment interests were either threatened or in fact being 

impaired at the time relief was sought.” Id. at 373. EMILY’S List has not been punished for its 

political views, and it remains free to finance its political speech with all the hard money it can 

convince its supporters to contribute, supplemented by an allocable portion of nonfederal funds. 

Elrod did not eliminate the burden on a plaintiff who invokes the First Amendment to 

demonstrate that its interests are actually threatened or in fact being substantially impaired. See

National Treasury Employees Union v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991); 

Wagner, 836 F.2d at 576-77 n.76; Christian Knights of the Ku Klux Klan Invisible Empire v. 

District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (Elrod applies only to cases in 

which “First Amendment rights were totally denied by the disputed Government action”). 

Finally, because EMILY’s List did not provide admissible evidence of its alleged harm, it 

also failed to establish the elements of standing. “The requirement that jurisdiction be 

established as a threshold matter ... is ‘inflexible and without exception.’” Steel Company v.

Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (citation omitted). To establish 

standing, EMILY’s List bears the burden of demonstrating (1) a “concrete and particularized,” 

“actual or imminent” injury that is (2) fairly traceable to the challenged regulations and (3) is 

likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992); McConnell, 540 U.S. at 225. “‘Mere allegations will not support standing at the 

preliminary injunction stage.’” Doe v. Rumsfeld, 297 F.Supp.2d 119, 130 (D.D.C. 2003). 

-18- 
(citation omitted). The showing required to support standing for a preliminary injunction is 

normally no less than that required at summary judgment. See National Wildlife Fed’n v. 

Burford, 878 F.2d 422, 432 (D.C. Cir. 1989), rev’d on other grounds sub nom. Lujan v. National

Wildlife Fed’n, 497 U.S. 871 (1990); Doe v. Rumsfeld, 297 F.Supp.2d at 130. At summary 

judgment, standing must be proved with admissible evidence. Democratic Senatorial Campaign 

Comm. v. FEC, 139 F.3d 951, 952 (D.C. Cir. 1998) (“[T]here is very little evidence regarding 

the three standing requirements ... [y]et evidence there must be”). 

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN 

CONCLUDING THAT EMILY’S LIST FAILED TO ESTABLISH ITS 

LIKELIHOOD OF SUCCESS ON THE MERITS 

A court may set aside a regulation under the APA only if it is “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). This 

standard is “highly deferential” and “presumes the validity of agency action.” Cellco Partnership 

v. FCC, 357 F.3d 88, 93 (D.C. Cir. 2004). Thus, “the party challenging an agency’s action as 

arbitrary and capricious bears the burden of proof.” San Luis Obispo Mothers For Peace v.

NRC, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). Under this standard, “[a] court cannot 

substitute its judgment for that of an agency ... and must affirm if a rational basis for the 

agency’s decision exists.” Appeal of Bolden, 848 F.2d 201, 205 (D.C. Cir. 1988). See also

Sierra Club v. EPA, 353 F.3d 976, 978 (D.C. Cir. 2004). On a facial challenge, where the 

regulation has not “yet been applied in a particular instance” so there is “no record ... concerning 

the [agency’s] interpretation of the regulation or the history of its enforcement,” the challenger 

“‘must establish that no set of circumstances exists under which the [regulation] would be 

valid.’” Reno v. Flores, 507 U.S. 292, 300-301 (1993) (citation omitted). Accord, Building &

-19- 
Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002), cert. denied, 

537 U.S. 1171 (2003). 

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

deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984). “[U]nder Chevron, 

courts are bound to uphold an agency interpretation as long as it is reasonable — regardless 

whether there may be other reasonable, or even more reasonable, views.” FEC v. National Rifle

Ass’n, 254 F.3d 173, 187 (D.C. Cir. 2001) (quoting Serono Labs, 158 F.3d at 1321). The 

Supreme Court has held that the Commission “is precisely the type of agency to which deference 

should presumptively be afforded.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 

27, 37 (1981). Accord, United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999). 

A. THE ALLOCATION AND SOLICITATION REGULATIONS REASONABLY APPLY THE 

ACT’S CONTRIBUTION LIMITS TO POLITICAL COMMITTEES 

This lawsuit challenges the Commission’s policy decisions to simplify its allocation 

regulations and clarify when solicitations lead to “contributions” under the FECA. Because 

appellant relies on little more than an argument that the Commission should have chosen 

different allocation percentages or left the prior system unchanged, EMILY’s List cannot show 

that the Commission’s interpretation of the Act is impermissible under Chevron’s highly

deferential standard, 467 U.S. at 842. 

As discussed in detail below, the context of this case is critical. First, the purpose of the 

regulations at issue here is to implement the Act’s contribution restrictions, not to limit spending. 

The Supreme Court has repeatedly upheld the Act’s contribution restrictions, and measures to 

foreclose circumvention of them, because they serve the important governmental interests in 

preventing corruption and the appearance of corruption. See Buckley, 424 U.S. at 26-28, 46-47; 

McConnell, 540 U.S. at 143-45; FEC v. Colorado Republican Federal Campaign Comm., 

-20- 
533 U.S. 431, 456 (2001) (“all Members of the Court agree that circumvention is a valid theory 

of corruption”); FEC v. Beaumont, 539 U.S. 146, 160 (2003); California Med. Ass’n v. FEC, 

453 U.S. 182, 197-98 (1981) (upholding contribution limits applied to independent political 

committees). Contrary to appellant’s suggestions (Br. 15-18), it is well settled that contribution 

limits like those at issue here are subject to a “less rigorous standard of review” than the strict 

scrutiny applied to expenditure limits, McConnell, 540 U.S. at 137. 

Second, the allocation regulations that EMILY’s List challenges apply to “mixed” 

activities that influence both federal and nonfederal elections. A pre-election television ad 

urging viewers to “vote Democratic,” for example, would obviously affect both federal and 

nonfederal races on the ballot. EMILY’s List does not question the Commission’s authority to 

require that such “mixed” activities that influence both federal and nonfederal elections be 

financed in part with federal dollars. Indeed, the aim of this lawsuit appears to be to resurrect the 

Commission’s prior rules governing allocation of such spending, to which EMILY’s List does 

not object.13 As the district court found, however, EMILY’s List has “not demonstrated any 

right, statutory or otherwise, to the former system of allocation rules” (JA 42). 

Third, the regulations at issue apply only to political committees, whose major purpose is 

the nomination or election of candidates. As the Supreme Court reiterated in McConnell, it has 

been established for decades that, 

because the term “political committee” “need only encompass organizations 

that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate[,]” ... a political committee’s 

expenditures “are, by definition, campaign related.” 

 

13 See, e.g., EMILY’s List Br. 8-9 (lamenting loss of the “sensible flexibility of the previous 

set of allocation regulations”). 

-21- 
McConnell, 540 U.S. at 170 n.64 (quoting Buckley, 424 U.S. at 79). The law thus presumes that 

expenditures by federal political committees like EMILY’s List are for the purpose of 

influencing elections. Indeed, such organizations often have close relations with candidates, 

parties, and office holders.14

B. 11 C.F.R. 106.6(c) IS A PERMISSIBLE ALLOCATION FORMULA FOR 

CERTAIN FEDERAL AND NONFEDERAL SHARED EXPENSES

Revised paragraph 11 C.F.R. 106.6(c) governs, inter alia, the allocation of federal and

nonfederal funds to finance nonconnected committees’ administrative expenses and “generic 

voter drives.” These disbursements benefit both federal and nonfederal candidates, and thus 

influence both federal and nonfederal elections. “Common sense dictates ... that a party’s 

efforts to register voters sympathetic to that party directly assist the party’s candidates for federal 

office.” McConnell, 540 U.S. at 167 (citation omitted). The revised regulation applies a 

minimum federal funds rate of 50% to these dual-purpose disbursements. This flat rate replaces 

the complex “funds expended” method of calculating a ratio for use of federal and nonfederal 

funds (JA 161). 

The regulation is consistent with the Act. The FECA does not say anything about the 

allocation of expenditures by nonconnected political committees, much less mandate a particular 

framework. Congress addressed the allocation of “hard” and “soft” money for “mixed purpose” 

activities that influence federal elections for the first time in BCRA, but only by creating a 

limited allocation regime applicable to state and local party committees. See 2 U.S.C. 

441i(b)(2)(A) (“Levin Amendment”). Significantly, BCRA expressly “gives the FEC 

 

14 For example, EMILY’s List asserts (Br. 2) that its purposes include “recruit[ing] and 

fund[ing] viable women candidates” and “help[ing] them build and run effective campaign 

organizations.” 

-22- 
responsibility for setting the allocation ratio” under that regime. McConnell, 540 U.S. at 163 

n.58. BCRA does not address allocation by nonconnected committees, and neither the Act nor 

its legislative history indicates that Congress intended to restrict the Commission’s discretion to 

determine how such committees should allocate their mixed expenditures. 

As the district court noted (JA 43), the Supreme Court concluded that, prior to enactment 

of BCRA, “concerning the treatment of contributions intended [to be spent on activities] to 

influence both federal and state elections,” a “literal reading of FECA’s definition of 

‘contribution’ would have required such activities to be funded with hard money.” McConnell, 

540 U.S. at 123 (emphasis added). The Court thus made clear that the statutory language does 

not require the Commission to permit any allocation to a soft money account for mixed spending 

that influences both federal and state elections. After all, just because a contribution or 

expenditure has an influence on state elections does not negate that it may simultaneously affect 

federal elections. See id. at 166. Thus, the use of any allocation formula by a nonconnected 

committee for expenses that may influence both federal and nonfederal elections is a permissive 

administrative construction, not a statutory entitlement.15 

More generally, an entity cannot immunize its federal election activity from regulation 

simply by also engaging in some nonfederal activity. On the contrary, McConnell upheld 

 

15 EMILY’s List wrongly suggests (Br. 24) that the district court “based” one of its holdings 

solely on Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987), and it distorts the meaning 

of that decision. Common Cause actually held that, although the Act authorizes the Commission 

to permit allocation of mixed expenditures, the Commission could just as well “conclude that no

method of allocation will effectuate the Congressional goal that all monies spent” on certain 

activities “be ‘hard money’ under the FECA.” 692 F. Supp. at 1395-96 (emphasis in original). 

Appellant’s apparent suggestion (Br. 24-25) that Common Cause was merely describing the 

possible administrative impracticality of rules for mixed-activity allocation — rather than the 

Commission’s regulatory discretion to end such allocation entirely if it proved to be impractical

— is contrary to the plain language of the decision. See 692 F. Supp. at 1396. 

-23- 
BCRA’s prohibition of national parties’ solicitation, receipt, or expenditure of nonfederal funds 

despite the parties’ recognized role in nonfederal elections, and it also upheld BCRA’s more 

restrictive allocation system for state and local parties, despite their even more obvious role in 

nonfederal elections. See 540 U.S. at 142-62. 

As the Commission explained (JA 164), it changed the allocation regime to “establish a 

simpler bright-line rule .... The previous rules were a source of confusion for some ... 

nonconnected committees and resulted in time-consuming reporting.” The Commission had 

“discovered that very few committees chose to allocate their administrative and generic voter 

drive expenses under former section 106.6(c).” JA 167.16 Moreover, “[a]necdotal evidence 

suggested that many committees, including those that allocated, were confused as to how the 

funds expended ratio should be calculated and adjusted throughout the two-year election cycle,” 

and “audit experience ha[d] also shown that some committees were not properly allocating under 

the complicated funds expended method.” Id. By changing the allocation method, the 

Commission sought “to enhance compliance with the FECA, to simplify the allocation system, 

and to make it easier for ... nonconnected committees to comprehend and for the Commission to 

administer” the requirements. JA 165. It is well settled that simplifying regulation to promote 

ease of compliance and enforcement is a valid rulemaking objective. See Allied Local and 

Regional Mfrs. Caucus v. EPA, 215 F.3d 61, 78 (D.C. Cir. 2000) (“The agency’s consideration 

of ... ‘regulatory efficiency,’ seems nothing more than regulatory common sense ... ”); Clinton

 

-24- 

16 “[F]ewer than 2% of all registered nonparty political committees ... allocate[ed] 

administrative and generic voter drive expenses under former section 106.6(c).... Any SSF or 

nonconnected committee that was not allocating under section 106.6 was presumably already 

using 100% Federal funds for these expenses, except where those expenses were paid by other 

entities in accordance with the Act and Commission regulations, such as an SFF’s connected 

organization paying its administrative expenses.” JA 167. 
Memorial Hospital v. Shalala, 10 F.3d 854, 860 (D.C. Cir. 1993) (“the Secretary certainly is 

allowed to take administrative convenience into account”). 

The 50% minimum for activities that cannot be divided with scientific precision into 

exclusively federal and nonfederal components fairly reflects the dual nature of the 

disbursements. As the Commission noted, many of those few committees that have used the 

funds expended method “already use 50% or more as their Federal allocation ratio.” JA 171. 

EMILY’s List itself has consistently allocated its costs on this same 50% basis (JA 176-79). The 

prevalence of a 50% or higher ratio reflects the fact that, even though federal elections occur 

biennially, many political committees begin preparing for them during the preceding “off” year. 

Indeed, the appellant’s name makes that very point; “EMILY” is an acronym for “Early Money 

Is Like Yeast” (JA 184). In off-year 2001, for example, EMILY’s List raised more than 

$8,500,000 in “hard money” contributions from individuals, and its “federal receipts” totaled 

more than $9 million (JA 196-99). These circumstances are more than sufficient to establish 

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

reasonableness, as distinct from the question of whether the line drawn by the Commission is 

precisely right.” ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1084 (D.C. Cir. 2002) 

(internal quotation marks and citations omitted). See also Worldcom, Inc. v. FCC, 238 F.3d 449, 

461 (D.C. Cir. 2001). 

Relying on speculation, without record support, EMILY’s List argues (Br. 26-27) that the 

50% federal funds minimum rule is arbitrary and capricious because “[s]ome large committees 

may only dabble in nonfederal activity [while] others, such as EMILY’s List, have a much 

higher level of nonfederal activity.” This argument also ignores the important fact that the 

regulation applies only to federal political committees, whose major purpose is to influence 

-25- 
elections, see supra pp. 20-22, and that the kinds of activity governed by this regulation, by their 

very nature, affect both federal and nonfederal elections. As the Commission explained 

(JA 167): 

These committees have registered as Federal political committees with the 

FEC; consistent with that status, political committees should not be permitted 

to pay for administrative expenses, generic voter drives and public 

communications that refer to a political party with a greater amount of nonFederal funds than Federal funds. 

Even regarding its own activity, EMILY’s List provides no evidence but only asserts in its 

brief (at 23) that it “devote[s] a majority of [its] time and effort to nonfederal elections....”; 

its prior disclosure reports to the Commission, however, indicate otherwise. See supra p. 4; 

JA 177-81. 

Contrary to appellant’s accusation (Br. 26) that the Commission acted arbitrarily, the 

Commission (JA 165) “carefully consider[ed] the[] public comments and examin[ed] 

information regarding how the allocation system under former 11 CFR 106.6 ha[d] worked.” 

The Commission summarized (JA 166-67) the comments it received on allocation; they included 

a range of views supporting either a 100% level or other percentages. See Comments of Public 

Citizen, at 12-13 (April 5, 2004) (supporting 100% federal funds) (Exh. 12); Comments of 

Democracy 21, Campaign Legal Center, Center for Responsive Politics, at 17-19 (April 5, 2004) 

(supporting 50% federal funds minimum, with exception for committees only active in two or 

three states) (Exh. 15); Comments of Senators McCain and Feingold, Representatives Shays and 

Meehan, at 3 (April 9, 2004) (supporting significant federal funds minimum) (Exh. 10).17 

 

17 EMILY’s List also argues (Br. 27) that the Commission’s review of public disclosure 

reports in this context was improper. This argument is fully addressed infra pp. 43-44. 

-26- 
In any event, there is an inherent degree of arbitrariness in any line-drawing endeavor, 

but that does not render it unlawful. See Mathews v. Diaz, 426 U.S. 67, 83 (1976) (“But it 

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

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

761, 765 (D.C. Cir. 1987) (“The lines drawn as a result of this [rulemaking] process may well be, 

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

1398 n.7 (D.C. Cir. 1988) (same). See also Worldcom, 238 F.3d at 461-462. EMILY’s List has 

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

one drawn by the Commission.18

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

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

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

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

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

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

of other provisions. McConnell, 540 U.S. at 170-71 (citation omitted). 

EMILY’s List also claims (Br. 16-17) that the 50% minimum federal allocation violates 

the First Amendment, but that argument is meritless. EMILY’s List has offered absolutely no 

evidence to controvert the Commission’s conclusion (JA 168) that the flat rate would result at 

 

-27- 

18 Appellant’s claim (Br. 26) that the 50% minimum is “arbitrary and capricious” also 

reflects a basic misunderstanding of the Commission’s broad regulatory discretion in creating 

rules to implement the Act’s contribution restrictions. Such a rule is not required to be the result 

of what EMILY’s List terms (Br. 26) a “formal study.” It reflects common sense in light of the 

Commission's experience in regulating federal political committees. See General Instrument 

Corporation v. FCC, 213 F.3d 724, 735 (D.C. Cir. 2000) (“the Commission’s concern ... appears 

well-grounded in common sense”); Allied Local, 215 F.3d at 78. 
most in “only a minimal increase in Federal funds expended” even by those few committees — if 

there are any — that correctly used the funds expended method and consistently came up with a 

federal funds allocation ratio less than 50%. 

The allocation regulations do not impose any ceiling on a committee’s administrative and 

generic voter drive expenditures, but simply implement the Act’s contribution restrictions. As 

the Supreme Court has recognized, the “overall effect of the Act’s contribution ceilings is merely 

to require ... political committees to raise funds from a greater number of persons.” Buckley, 

424 U.S. at 21-22. Thus, the district court found, relying on Buckley, that the regulations at 

issue here do not prevent EMILY’s List from “engaging in whatever political speech it seeks to 

undertake,” but mean only that it “may be required to raise money from a greater number of 

donors” (JA 47). Indeed, the test for the constitutionality of such a contribution limit is whether 

it is “so radical in effect as to ... drive the sound of [the recipient’s] voice below the level of 

notice.” Shrink Missouri, 528 U.S. at 397).19

Contrary to appellant’s suggestion (Br. 15) that the “narrow tailoring” or “exacting 

scrutiny” test applies here, even contribution restrictions that involve a “significant interference” 

with associational rights need only be “closely drawn to match a sufficiently important interest.” 

McConnell, 540 U.S. at 136 (internal quotation marks and citations omitted). As the Supreme 

 

19 Appellant’s insistence (Br. 15-17) that the Commission provide an extensive, 

McConnell-style record of potential corruption as to each adjustment of the allocation and 

solicitation rules — indeed, as to each hypothetical application that EMILY’s List can imagine 

— is absurd. “[I]t is unnecessary for an agency to prove that circumvention has occurred in the 

past in order to sustain an anti-circumvention regulation as reasonable; a regulation can be 

justified by a reasonable expectation that it will prevent circumvention of statutory policy in the 

future.” Carpenter v. Secretary of Veteran Affairs, 343 F.3d 1347, 1353 (Fed. Cir. 2003). The 

Commission has wrestled with allocation issues for almost 30 years; the rulemaking at issue here 

is but the latest installment. See, e.g., McConnell, 540 U.S. at 123 n.7. 

-28- 
Court explained in rejecting the argument that strict scrutiny must be applied to the soft money 

restrictions in BCRA: 

[F]or purposes of determining the level of scrutiny, it is irrelevant that 

Congress chose in [BCRA] § 323 to regulate contributions on the demand 

rather than the supply side.... The relevant inquiry is whether the mechanism

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

that limit, burdens speech in a way that a direct restriction on the contribution 

itself would not. That is not the case here. 

McConnell, 540 U.S. at 138-39 (citation omitted). The same is true in this case because the 

allocation regulations merely limit the use of nonfederal contributions for certain expenditures, 

without placing any limit on the expenditures themselves. As the district court explained 

(JA 44-45; citation omitted), 

it is apparent that the FEC promulgated these rules in an effort to close an oftexploited loophole in federal election law. Under the reasoning of both 

Common Cause and the Supreme Court’s decision in McConnell, it is clear to 

the Court that the FEC is empowered under FECA to modify allocation rules 

to ensure that unregulated monies are not used to improperly influence federal 

elections. Indeed, the Court finds persuasive Defendant’s argument that the 

FEC’s “entire allocation system implements the contribution restrictions that 

have been held to serve an anti-corruption purpose.” 

EMILY’s List has not suggested that the allocation regulations it challenges would lower 

its voice below the level of notice. Instead, EMILY’s List suggests (Br. 15-17) that the activities 

of nonconnected political committees do not raise concerns of corruption and specifically argues 

(Br. 11) that it has “never been the subject of any suggestion that it is the avenue for corrupt 

politics.” But neither had the committee in California Med. Ass’n, a decision that EMILY’s List 

ignores. That decision upheld the restrictions on contributions to independent multicandidate 

committees; it stresses that those limits serve “the governmental interest in preventing the actual 

or apparent corruption of the political process” because contributors seeking to evade FECA’s 

limits on contribution to candidates might otherwise channel funds through multicandidate 

-29- 
committees for that purpose. Id., 453 U.S. at 197-98. Acceptance of appellant’s idiosyncratic 

argument would effectively bar the Act’s application to any committee whose conduct had not 

already been shown to be questionable. 

C. 11 C.F.R. 106.6(f) USES PERMISSIBLE CRITERIA TO DEFINE WHICH 

CANDIDATE-SPECIFIC COMMUNICATIONS ARE SUBJECT TO ALLOCATION 

RULES

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

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

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

and for the Commission to administer these requirements.” JA 165. Specifically, the new 

regulation establishes 

candidate-driven allocation rules for voter drives and public communications 

that refer to clearly identified Federal or non-Federal candidates regardless of 

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

When the voter drive or public communication refers to clearly identified 

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

must be paid for with 100% Federal funds. Similarly, when the voter drive or 

public communication refers to clearly identified non-Federal candidates, but 

no clearly identified Federal candidates, the costs may be paid 100% from a 

non-Federal account. Any voter drives or public communications that refer to 

both clearly identified Federal and non-Federal candidates are subject to the 

time/space method of allocation under 11 C.F.R. 106.1. 

JA 164. “The Commission believes that these final rules best resolve the problems with the 

former allocation scheme revealed through reviewing past FEC reports and the issues raised by 

the commenters on the NPRM.” JA 168. 

Like 11 C.F.R. 106.6(c), see supra pp. 22-30, section 106.6(f) applies only to federal

political committees, whose major purpose is the nomination or election of candidates. It was 

thus well within the Commission’s discretion to conclude that when a political committee’s voter 

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

-30- 
financed with federal funds — or, if they also refer to nonfederal candidates, with a 

proportionate allocation between federal and nonfederal funds, according to the pre-existing 

time/space method of 11 C.F.R. 106.1. 

New 11 C.F.R. 106.6(f) is a reasonable implementation of the Act’s contribution limits, 

which regulate different kinds of political entities differently to account for their basic nature and 

potential for abuse — limits that the Supreme Court has repeatedly upheld. See McConnell, 

540 U.S. at 158. Specifically, section 106.6(f)’s regulation of nonconnected committees is 

consistent with, but less restrictive than, the Act’s regulation of other entities. For example, 

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

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

acknowledged role national party committees regularly play in nonfederal elections. McConnell, 

540 U.S. at 142-61. BCRA also established a new allocation system for state and local party 

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

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

state and local party committees to help finance ‘Federal election activity.’” McConnell, 

540 U.S. at 161-62. Two of the four statutory categories of “Federal election activity” 

encompass the same kind of voter drive activity included in 11 C.F.R. 106.6(f): voter 

registration, 2 U.S.C. 431(20)(A)(i), and get-out-the-vote and generic campaign activity in 

connection with a federal election, 2 U.S.C. 431(20)(A)(ii). These provisions regulate the 

financing of such activities by state and local parties without regard to whether they involve any

references to federal candidates. “A campaign need not mention federal candidates to have a 

direct effect on voting for such a candidate .... [G]eneric campaign activity has a direct effect on 

federal elections.” McConnell, 540 U.S. at 168 (citations and internal quotation marks omitted). 

-31- 
Because federal political committees such as EMILY’s List — like political parties — have as 

their major purpose the nomination or election of candidates, their generic activity can also be 

presumed to affect federal elections. See id. at 170 n.64 (discussing Buckley’s presumption 

about spending by political committees in the context of political parties).

EMILY’s List complains (Br. 9, 16, 20-22) that 11 C.F.R. 106.6(f) requires allocation of 

certain expenditures that “refer to” a clearly identified federal candidate, and poses several 

hypothetical examples (Br. 9, 20-21) designed to show that some applications of the regulation 

might exceed the Commission’s statutory authority or violate the First Amendment.20 But it fails 

to provide a single real-world example, or evidence of any specific communication that it 

actually plans to make, that would be adversely affected by the regulation. Rather, appellant’s 

arguments are like those rejected by the Supreme Court regarding BCRA’s regulation of 

electioneering communications. Indeed, as EMILY’s List concedes (Br. 21), Congress 

employed just such a “refer to” standard in its definition of “electioneering communications.” 

2 U.S.C. 434(f)(3)(A). Congress clearly believed that such a standard was appropriate for the 

regulation of independent groups generally, even those whose major purpose is not to influence 

the election of candidates.21 In any event, McConnell makes clear that in the future, EMILY’s 

 

20 Like its First Amendment attack on section 106.6(c), appellant’s challenge to section 

106.6(f) does not attempt to explain how this regulation’s implementation of the Act’s 

contribution limits could possibly lower EMILY’s List’s voice to unnoticeable levels. See supra

pp. 27-29. 

-32- 

21 EMILY’s List includes (Br. 22) a quotation from the recent decision in Shays v. FEC, 

414 F.3d 76, 99 (D.C. Cir. 2005), stating that electoral intent is not always “evident” merely 

because of a reference to a candidate. But the quoted passage was part of the Court’s discussion 

of the content standards used to help define when communications coordinated with parties and 

candidates should be considered contributions, and as such it related to any entity engaged in 

such conduct, not just political committees. Indeed, in Shays the Court was actually concerned 

with whether such communications were election-related at all, not whether a political 
List can adjust the wording of its communications, or simply separate its federal and nonfederal 

communications, to avoid the alleged problems it hypothesizes. See 540 U.S. at 206. The 

regulation is thus a reasonable implementation of Act’s contribution limits that imposes only a 

marginal burden on speech. 

In particular, EMILY’s List points repeatedly (Br. 9, 16) to hypothetical public 

communications that refer to a federal candidate in a different jurisdiction or are made well in 

advance of any election in which that candidate is on the ballot. 

Hypothetical borderline situations are conjured up in which such persons 

choose to remain silent because of fear of possible prosecution for failure to 

comply with the Act.... The hazard of such restraint is too remote to require 

striking down a statute which on its face is otherwise plainly within the area of 

congressional power. 

United States v. Harriss, 347 U.S. 612, 626 (1954) (footnote omitted). See also Florida League

of Prof’l Lobbyists v. Meggs, 87 F.3d 457, 461 (11th Cir. 1996) (“As for the League’s 

hypothesized, fact-specific worst case scenarios, we also decline to accept the facial challenge 

based on these perceived problems.”). Thus, even if there may be an unusual communication to 

which the regulation could not be lawfully applied, such an occurrence is not sufficient to 

invalidate the regulation on its face, and appellant’s claims before the district court involved only 

a facial challenge. See McConnell, 540 U.S. at 157 n.52. 

Moreover, in the unlikely event that a committee would try to influence a nonfederal 

election by identifying an out-of-state federal candidate but no nonfederal candidate, it is not 

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

communication — like a generic party building advertisement — may well suggest that its 

audience support a party’s full slate of candidates (federal and state) on the basis of their alliance 

 

-33- 

committee’s spending — which is presumed to be campaign-related — would influence state 

versus federal elections. 
with a prominent out-of-state candidate’s policies, or the out-of-state candidate’s support for the 

in-state candidates. (EMILY’s List also complains that communications are covered without 

regard to time, but of course there is a time element inherent in the term “candidate,” defined in 

2 U.S.C. 431(2)). 

Appellant’s other hypothetical examples fare no better. The example (Br. 20-21) 

involving the reference to an incumbent president’s policies could easily be reworded to refer to 

“the Administration’s policies” rather than using the name of the incumbent running for 

re-election, if the writer wanted to avoid using hard money. The hypothetical example (Br. 9, 

20) involving the use of the popular name of federal legislation (e.g., “McCain-Feingold”) to 

support the election of state candidates could easily be re-worded to avoid identifying a federal 

candidate. The examples (Br. 9, 20) involving advertisements that support a political party 

generally but refer to no candidates must be financed with at least 50% federal funds regardless 

of when they are run because undifferentiated support of a political party denotes support of all 

of its candidates, federal and nonfederal. Moreover, the same communication, if reworded to 

include the name of a clearly identified state candidate, could be financed entirely with 

nonfederal dollars in accordance with the regulation’s “candidate-driven” approach. 69 Fed. 

Reg. 68,059 (JA 164). EMILY’s List can thus easily abide by this reasonable regulation and 

control which donations may be used for its voter drives and public communications. 

D. 11 C.F.R. 100.57 IS A PERMISSIBLE INTERPRETATION OF WHICH 

DONATIONS TO A POLITICAL COMMITTEE ARE “CONTRIBUTIONS” 

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

considered “contributions” under the Act, a subject that is plainly within the Commission’s 

statutory authority and broad discretion. See 2 U.S.C. 431(8) (defining “contribution” as “any 

-34- 
gift, ... money or anything of value made ... for the purpose of influencing any election for 

Federal office”). The regulation covers only a solicitation that “indicates that any portion of 

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

candidate.” 11 C.F.R. 100.57(a) (emphasis added). If such a solicitation refers to no nonfederal 

candidates, the funds collected are federal funds. If it also refers to a nonfederal candidate, then 

at least 50% of the total funds collected are federal funds. 11 C.F.R. 100.57(b)(2). The new 

provision is narrowly focused on solicitations that not only “refer to” a clearly identified federal 

candidate, but also indicate that funds received will be used to support or oppose the election of 

that candidate. 

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

include money “earmarked for political purposes” by the donor and money spent by the donor 

“in cooperation with” a candidate or campaign committee. Buckley, 424 U.S. at 78. It also 

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

is designated solely for expenses other than support of federal candidates. California Med.

Ass’n, 453 U.S. at 199 n.19 (“contributions for administrative support clearly fall within the sorts 

of donations limited by § 441a(a)(1)(C)”) (plurality); id. at 203 (Blackmun, J., concurring). The 

purpose of 11 C.F.R. 100.57 is to apply the broad statutory definition of “contribution” in a way 

that ensures that money given to a political committee in response to an appeal to help 

influence federal elections is subject to the statutory contribution limits. See 69 Fed. Reg. 

68,056 (JA 161). 

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

opinion in FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995). That court held that 

donations made in response to a solicitation were “contributions” because the text of the mailings

-35- 
“le[ft] no doubt that the funds contributed would be used to advocate President Reagan’s defeat 

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

The Commission’s explanation of the final rule describes its operation and provides 

examples to guide committees in complying with the rule (JA 162). The Commission carefully 

crafted the rule so as to “leave[] the group issuing the communication with complete control over 

whether its communications will trigger new section 100.57.” Id. The Commission stressed that 

this regulation is based only on the language of the solicitation itself — the Commission will not 

use any other statements or solicitations by the organization, the timing or targeting of the 

solicitation, or any other external information to evaluate the solicitation. Id. If a group wants to 

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

can simply omit all statements indicating that the funds received will be used to influence federal 

elections. Thus, appellant’s claims (Br. 7, 22-23) that the regulation forces it to “refuse” funds 

given for nonfederal purposes ring hollow. 

EMILY’s List repeatedly argues (Br. 7, 9, 17-18, 22-23) that 11 C.F.R. 100.57 is beyond 

the Commission’s authority and unconstitutional because it would override express statements in 

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

candidates. However, EMILY’s List identifies no language in the statute inconsistent with this 

regulation, and appellant’s unsupported example is, like the others discussed above, 

inconsequential and insufficient to support a facial challenge. See supra pp. 32-34. EMILY’s 

List does claim (Br. 17-18), relying on the declaration it submitted months after the denial of a 

preliminary injunction, that it wishes to use such solicitations in the future. But the vague, 

-36- 
self-serving assertions in this belated declaration are insufficient to show that 11 C.F.R. 100.57 

would impose any significant burden.

22 

Indeed, 11 C.F.R. 100.57 leaves countless options for sophisticated political committees 

like EMILY’s List to raise nonfederal funds — flexibility that the Supreme Court has found 

significant in reviewing comparable restrictions. See McConnell, 540 U.S. at 206. Under 

section 100.57, if EMILY’s List wants any of the funds raised in response to a given solicitation 

to be nonfederal funds, it need only avoid stating that the money collected will be used to support 

or oppose the election of a clearly identified federal candidate (for 100% nonfederal proceeds), 

or include an indication that some of the funds raised will be used to support or oppose identified 

federal and nonfederal candidates (for 50% federal proceeds). As EMILY’s List concedes (Br. 

18), a committee might also simply use separate communications to raise funds in connection 

with federal and nonfederal elections. See RNC v. FEC, 76 F.3d 400, 406 (D.C. Cir. 1996) 

(upholding FEC rule requiring political committees to make separate follow-up information 

requests that do not include a request for additional funds as a reasonable interpretation of the 

Act’s requirement that it use “best efforts” to collect contributor information). But if a specific 

solicitation identifies only federal candidates in discussing its purpose and indicates that money 

raised will be used to support or oppose their candidacies, it is clearly reasonable to treat the 

proceeds as federal funds. 

 

-37- 

22 Of course, since EMILY’s List did not participate in the rulemaking, it failed to suggest 

to the Commission that express statements in solicitations about allocation percentages should be 

given controlling weight. See Clinton Memorial Hospital, 10 F.3d at 859 (“[N]o one proposed 

... the use of other criteria.... The absence of any alternative proposals colors our assessment of 

the Secretary’s explanation.”). 
E. EMILY’S LIST IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT IT RECEIVED 

INADEQUATE NOTICE OF THE COMMISSION’S RULEMAKING

On March 11, 2004, the Commission published an NPRM that EMILY’s List itself 

describes (Br. 5) as a “wide-ranging proposal of new regulations” that addressed a variety of 

topics. EMILY’s List acknowledges (Br. 28) that the NPRM “contained both a comprehensive 

explanation of the subjects and issues involved, and specific details regarding the terms and 

substance of the proposed rules.” 

The APA provides two independent ways to comply with its notice requirements: “[t]he 

notice shall include ... either the terms or substance of the proposed rule or a description of the 

subjects and issues involved.” 5 U.S.C. 553(b)(3) (emphasis added). See also First American 

Discount Corp. v. CFTC, 222 F.3d 1008, 1014 (D.C. Cir. 2000); Northeast Maryland Waste 

Disposal Auth. v. EPA, 358 F.3d 936, 950-951 (D.C. Cir. 2004); United States Telecom Ass’n v. 

FCC, 400 F.3d 29, 40 n.21 (D.C. Cir. 2005). The Commission addressed both prongs of the 

APA’s disjunctive notice requirement. 

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

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

If every change required an additional notice and comment period, “[a]gencies would either 

refuse to make changes in response to comments or be forced into perpetual cycles of new notice 

and comments periods.” Id. Therefore, “[a] final rule will be deemed to be the logical 

outgrowth of a proposed rule if a new round of notice and comment would not provide 

commenters with ‘their first occasion to offer new and different criticisms which the agency 

might find convincing.’” Id. (citation omitted). This requirement is satisfied if the notice is 

-38- 
“sufficient to apprise the public, at a minimum, that the issue ... was on the table.” Career

College Ass’n v. Riley, 74 F.3d 1265, 1276 (D.C. Cir. 1996).23 

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

many organizations that actually did provide comments — and expressed a broad range of 

opinion. See, e.g., Comments of America Coming Together, dated April 5, 2004 (Exh. 13), at 36 

(characterizing as “extreme” the proposal for political committees to “pay for all of its disbursements out of Federal funds”); Comments of Public Citizen, dated April 5, 2004 (Exh. 12), at 12 

(“it would be entirely appropriate to go still further and end the allocation ratio altogether”). 

“The fact that others in [plaintiff’s] shoes ... did comment on [and propose regulatory 

alternatives] suggests that they, at least, regarded it as a logical outgrowth.” First American 

Discount Corp., 222 F.3d at 1015. See also Edison Electrical Inst. v. EPA, 2 F.3d 438, 450 (D.C. 

Cir. 1993) (comments “are at least probative evidence that the notice given was adequate”). 

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

Regulation, 11 C.F.R. 106.6 

 

a. The 50% Federal Funds Minimum Allocation Requirement 

Was Adequately Noticed 

The Commission’s NPRM broadly sought comment on changes to its allocation 

regulations. It asked, “what, if any, changes are advisable” (JA 94), and specifically provided 

notice that it was considering setting a federal funds floor at 50% for administrative expenses 

and voter drive activities. For one option, the Commission asked, “Should the Commission 

adopt a fixed minimum Federal percentage?” Id. One proposal suggested a two-tier system

 

-39- 

23 EMILY’s List complains (Br. 10, 28) that this rulemaking was dominated by proposed 

rules not at issue here and that the less controversial allocation rules were overshadowed. 

However, the relevant question is only whether the NPRM provided adequate notice with respect 

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

receive more or less prominence than others. 
where committees’ federal minimum percentage would depend upon the number of states in 

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

10 states). Thus, as the district court correctly concluded, the 50% federal funds minimum was 

specifically raised as a possibility (JA 40). Since EMILY’s List itself operates in more than 

10 states, it was plainly on notice that it could be subject to the 50% federal funds minimum. 

By specifically asking, “what should the minimum Federal percentages be?” (JA 94), the 

Commission plainly put “on the table” the issue of where to set a minimum federal percentage. 

Career College Ass’n, 74 F.3d at 1276. As the district court correctly concluded, “[i]n light of 

the language included in the NPRM, it is simply implausible that EMILY’s List was not on 

notice that a fixed 50 percent federal funds minimum requirement might be incorporated into the 

final rules.” JA 40 (footnote omitted). 

b. The Allocation Requirements for Communications that 

Refer to Federal Candidates and Political Parties Were

Adequately Noticed 

The Commission provided notice that it was considering allocation requirements for 

communications that refer to federal candidates only or to both federal candidates and political 

parties (JA 93-95). The Commission proposed allocating the costs of public communications 

that promote or oppose a political party under the same method as administrative expenses in 

11 C.F.R. 106.6(c). Id. The Commission sought comment on a proposal to create a new section, 

11 C.F.R. 106.6(f), requiring allocation of public communications that promote, support, attack, 

or oppose, or expressly advocate a clearly identified federal candidate and a political party 

(JA 95). The final rule adopted a somewhat more stringent approach, but nonetheless one easily 

within the range of noticed possibilities and thus “on the table” for revision. Career College 

Ass’n, 74 F.3d at 1276. 

-40- 
EMILY’s List claims (Br. 29) that the Commission’s NPRM gave no notice of the “refer 

to” standard and was locked into the “promote, support, attack, or oppose” standard. However, it 

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

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

(D.C. Cir. 1994)). For example, in Northeast Maryland Waste Disposal Auth., 358 F.3d at 

951-52, EPA issued an NPRM that set up different requirements for refractory and nonrefractory 

waste combustion operations. Even though the final rule abandoned this distinction, the Court 

explained that EPA had “effectively served notice that ... the distinction might not survive” by 

“invit[ing] comments on both the pros and cons of that distinction.” Id. at 952. See also Ass’n

of Battery Recyclers, 208 F.3d at 1059; Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1300 

(D.C. Cir. 2000) (“any reasonable party should have understood that EPA might reach the 

opposite conclusion”). 

In this case, the NPRM plainly put EMILY’s List on notice that the Commission was 

considering a regulation that would turn on the reference to a federal candidate in the 

communication. The nature of the reference that would trigger the regulation was clearly an 

issue the Commission indicated it was considering, and though “promote, support, attack, or 

oppose” and “expressly advocate” were set out as possible answers, the NPRM did not suggest 

that no other formulations would be considered. The specific “refer to” standard in the final rule 

still requires an explicit mention of an identified federal candidate and was a logical outgrowth 

of the original proposal, well within the “subjects and issues” identified in the NPRM. 

2. The Commission Provided Ample Notice of Its Solicitation 

Regulation, 11 C.F.R. 100.57 

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

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

-41- 
therefore “contributions” under FECA (JA 83). The NPRM included a proposed text for the 

solicitation regulation as well as possible permutations on that text. Although the proposed text 

included an “express advocacy” standard, the Commission also explicitly sought public comment 

regarding other possible standards. As the district court found, “the NPRM specifically asked 

whether ‘the new rule [should] use a standard other than express advocacy, such as [a] 

solicitation that ... indicates that funds received in response thereto will be used to promote, 

support, attack, or oppose a clearly identified Federal candidate.’” JA 41-42 (quoting 69 Fed. 

Reg. 11,743) (emphases supplied by Court). Thus, since “[t]he NPRM included the specific 

language ultimately adopted,” id., it is indisputable that the Commission provided adequate 

notice of the new rule under the “terms or substance” option within 5 U.S.C. 553(b)(3). 

Despite this explicit notice, EMILY’s List argues (Br. 32) that the rule’s treatment of 

contributions in response to solicitations as either 50% or 100% federal contributions “severely 

constrain[s] EMILY’s List’s ability to fundraise for nonfederal political purposes.” However, 

this complaint addresses the alleged effect of the regulation and not the adequacy of notice under 

the “terms or substance” prong of 5 U.S.C. 553(b)(3). Appellant concedes (Br. 32) that the 

NPRM “did ask whether another standard [other than express advocacy] should be used 

instead.”24

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

notice of the “subjects and issues.” The notice identified the fundamental issue that it was 

 

-42- 

24 EMILY’s List claims (Br. 32) that there was no notice that the “express intent” of a 

solicitation would be ignored, but that is clearly wrong. Nothing in the NPRM suggested that 

such “express intent” was on the table as a relevant factor, and we are not aware of any evidence

in the rulemaking — and EMILY’s List has pointed to none — of real solicitations that specify, 

for example, that a fixed percentage of the donations received will be allocated exclusively for 

nonfederal elections. The rulemaking’s complete silence on this hypothetical possibility thus put 

EMILY’s List on notice that such “express intent” was not presented as the touchstone for 

deciding whether donations are contributions. See also supra pp. 15, 37 n.22. 
addressing: whether a “standard other than express advocacy, such as a solicitation that 

promotes, attacks, or opposes a Federal candidate” should be used in the solicitation rule. “That 

the Proposed Rule described [one alternative] approvingly does not undermine the notice to 

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

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

3. The Commission Can Rely Upon Data in Publicly Available 

Disclosure Reports 

In the final rules the Commission noted that it had “examin[ed] public disclosure reports 

filed by [separate segregated funds] and nonconnected committees” and that its conclusions were 

based in part on this review (JA 167). EMILY’s List argues (Br. 31-32) that the Commission 

improperly failed to provide notice of this intention. These disclosure reports, however, are 

publicly available on the Commission’s Web site and in its public records office. See

http://www.fec.gov/disclosure.shtml. EMILY’s List states (Br. 31-32) that disclosure reports are 

only available in “unorganized form” and that “the disclosure reports of allocating committees 

are not able to be separated out from the reports of all other political committees.” EMILY’s 

List is flatly mistaken in this regard. The Commission’s Web site posts both disclosure reports 

and data summary files. The data summary files can easily be sorted and analyzed. For 

example, the 2001-2002 PAC Summary shows the 188 committees that allocate. See FEC, PAC 

Financial Summaries, available at http://www.fec.gov/finance/disclosure/ftpsum.shtml. The 

cases EMILY’s List relies upon (Br. 31) regarding inadequate notice of studies all involved 

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

In any event, “[a]gencies may develop additional information in response to public 

comments and rely on that information without starting anew ‘unless prejudice is shown.’”

Personal Watercraft Industry Ass’n v. Department of Commerce, 48 F.3d 540, 544 (D.C. Cir. 

-43- 
1995) (citation omitted). “The party objecting has the burden of ‘indicat[ing] with “reasonable 

specificity” what portions of the documents it objects to and how it might have responded if 

given the opportunity.’” Id. (citations omitted); see also West Virginia v. EPA, 362 F.3d 861, 

869 (D.C. Cir. 2004). EMILY’S List has not even tried to specify anything it would have said 

about these publicly available documents that could have affected the outcome of the rule. 

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING 

THAT A PRELIMINARY INJUNCTION WOULD CAUSE THE COMMISSION 

AND THE PUBLIC SUBSTANTIAL HARM

Even a temporary injunction against the challenged regulations would change the status 

quo and potentially encourage the use of soft money to influence federal elections. It would 

thereby harm the public interest in preserving the integrity of the federal election process by 

undermining the Act’s contribution limitations and prohibitions. A preliminary injunction would 

also harm the Commission by preventing it from implementing fully its understanding of 

Congress’s decision, embodied in the Act, to prevent the use of soft money to influence federal 

elections. 

A preliminary injunction would also create confusion and uncertainty in the regulated 

community. The regulations at issue here apply to all nonconnected political committees. 

Appellant’s argument (Br. 33) about the relatively small number of committees that availed 

themselves of former 11 C.F.R. 106.6(c) only addresses a portion of the overall harm that would 

be caused to the system by the injunction EMILY’s List sought. As the district court explained 

(JA 48-49; citations omitted), if the rules were enjoined, the “public would find these portions of 

campaign finance law suddenly unregulated.... Enjoining the new rules would not even 

automatically reinstate the arguably flawed former regime preferred by [EMILY’s List].” 

-44- 
Moreover, much of appellant’s argument about the challenged regulations concerns the 

alleged procedural defects in their promulgation, i.e., allegedly inadequate notice. Even if the 

Court were to find that the appellant is likely to prevail on that ground, such a finding would not 

justify a preliminary injunction against the substantive operation of the rules. The “disruptive 

consequences of an interim change” would be severe indeed, and because the Commission could 

cure any notice defects on remand “it is not unlikely the [Commission] will be able to justify a 

future decision to retain the [r]ule[s].” Louisiana Federal Land Bank v. Farm Credit Admin., 336 

F.3d 1075, 1085 (D.C. Cir. 2003). 

Finally, the harm to the Commission is evident. No one disputes that the Commission 

has the statutory duty to enforce the Act. A preliminary injunction would preclude the 

Commission from performing its duty, causing it a substantial injury. 

CONCLUSION 

For the foregoing reasons, the Court should affirm the decision of the district court. 

 

Respectfully submitted, 

 Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

 

David Kolker 

Assistant General Counsel 

 Vivien Clair

 Harry J. Summers

Greg J. Mueller 

Attorneys 

 

-45- 
FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

October 12, 2005 (202) 694-1650 

-46- 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

EMILY’s LIST, ) 

) 

) 

Plaintiff-Appellant, ) No. 05-5160 

) 

v. ) 

) 

CERTIFICATE OF COMPLIANCE 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant-Appellee. ) 

CERTIFICATE OF COMPLIANCE WITH Fed.R.App.P. 32(a)(7) 

As required by Fed.R.App.P. 32(a)(7)(C)(i), I hereby certify that the foregoing brief 

complies with the length requirements of Fed.R.App.P. 32(a)(7)(B). I have relied upon the word 

count feature of the Microsoft Word software application; the brief contains 13,983 words. 

 I further certify that the foregoing brief complies with the typeface requirements of 

Fed.R.App.P. 32(a)(5)(A), as modified by D.C. Cir. R.32(a)(1), and the type style requirements 

of Fed.R.App.P. 32(a)(6). The brief has been prepared in a proportionately space typeface using 

Microsoft Word 2000 in Times New Roman font size 12. 

 /s/ 

____________________________________ 

David Kolker 

Assistant General Counsel 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

October 12, 2005 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

EMILY’s LIST, ) 

) 

) 

Plaintiff-Appellant, ) No. 05-5160 

) 

v. ) 

) 

CERTIFICATE OF SERVICE 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant-Appellee. ) 

CE CERTIFICATE OF SERVICE 

I hereby certify that on this 12th day of October, 2005, I caused to be served by hand 

two copies of the foregoing Brief for the Federal Election Commission, upon the following 

counsel: 

 

Robert F. Bauer, Esq. 

Marc E. Elias, Esq. 

Ezra W. Reese, Esq. 

Perkins Coie, LLP 

607 14th Street, NW 

 Washington, DC 20005 

 /s/ 

___________________________ 

Greg J. Mueller 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

October 12, 2005 (202) 694-1650