UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

EMILY’S LIST, ) 

) 

 Plaintiff, ) Civ. No. 05-0049 (CKK) 

 ) 

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) REPLY 

) 

 Defendant. ) 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS SECOND MOTION FOR SUMMARY JUDGMENT 

 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

 Harry J. Summers 

Acting Assistant General Counsel 

Vivien Clair 

Attorney 

Greg J. Mueller 

Attorney 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

November 20, 2007 Washington, D.C. 20463 

 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 1 of 27
TABLE OF CONTENTS 

 Page 

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

II. THE COMMISSION’S ALLOCATION AND SOLICITATION 

REGULATIONS ARE CONSTITUTIONAL AND CONSISTENT 

WITH THE FECA ................................................................................................3 

A. The Challenged Regulations Address “Mixed” Federal and 

State Election Activity by Groups Whose Major Purpose Is 

Federal Campaign Activity.......................................................................6

 

 B. The Revised Allocation Regulations Are Lawful .....................................10 

1. 11 C.F.R. § 106.6(f) Establishes Permissible Allocation 

Rules for Candidate-Specific Communications by Political 

Committees Like EMILY’s List ...................................................10 

2. 11 C.F.R. § 106.6(c) Establishes a Permissible 

50% Minimum Allocation Rule for Administrative 

Expenses and Generic Voter Drives by Political 

 Committees ...................................................................................13 

C. The Solicitation Regulation, 11 C.F.R. § 100.57, Is a Permissible 

Interpretation of When Funds Given in Response to a Solicitation 

Are “Contributions” Under the Act ..........................................................15 

D. Plaintiff Has Failed to Show that the Regulations Violate 

Principles of Federalism ...........................................................................17 

E. EMILY’s List Has Failed to Meet Its Evidentiary Burden 

at Summary Judgment...............................................................................19 

 

III. EMILY’S LIST HAS FAILED TO JUSTIFY THE REMEDY 

IT SEEKS..............................................................................................................20 

IV. CONCLUSION......................................................................................................21 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 2 of 27
ii

TABLE OF AUTHORITIES 

 Page 

Cases 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), vacated on other grounds, 

 524 U.S. 11 (1998).......................................................................................................7, 8 

 

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

 (D.C. Cir. 1987) ...........................................................................................................15 

 

Bellum v. PCE Constructors, Inc., 407 F.3d 734 (5th Cir. 2005)......................................10 

*Buckley v. Valeo, 424 U.S. 1 (1976)...............................................................................2, 3, 4, 7 

*California Medical Ass’n v. FEC, 453 U.S. 182 (1981).................................................1, 4, 5 

Carpenter v. Secretary of Veteran Affairs, 343 F.3d 1347 (Fed. Cir. 2003) ....................5 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................19, 20 

*Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

 837 (1984)....................................................................................................................3, 10, 15 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987) .............................................8 

EMILY’s List v. FEC, 362 F. Supp. 2d 43, 55 (D.D.C.), 

 aff’d, 170 Fed. Appx. 719 (D.C. Cir. 2005).................................................................1, 2, 3, 21 

 

FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) .............3 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), amended on reconsideration, 

 2005 WL 588222 (D.D.C. Mar. 7, 2005).....................................................................7, 8 

FEC v. Survival Education Fund (SEF), 65 F.3d 285 (2d Cir. 1995) ..............................17 

FEC v. Wisconsin Right to Life, Inc. (WRTL), 127 S. Ct. 2652 (2007) ............................2, 5, 6, 19 

Florida League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996)............9 

Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004), 

 cert. denied, 546 U.S. 822 (2005)................................................................................10 

___________________ 

* Authorities on which the Commission chiefly relies are marked with an asterisk. 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 3 of 27
iii

Haynes v. Williams, 392 F.3d 478 (D.C. Cir. 2004).........................................................19 

Kamargo Corp. v. FERC, 852 F.2d 1392 (D.C. Cir. 1988)..............................................15 

Mathews v. Diaz, 426 U.S. 67 (1976)...............................................................................15 

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

National Wildlife Fed’n v. EPA, 286 F.3d 554 (D.C. Cir. 2002)......................................9 

Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000)..............................................2 

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 1996)......................................17 

Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005)........................................3 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ............................................................20 

Shays v. FEC, ___ F. Supp. 2d ___, 2007 WL 2446159 (D.D.C. Aug. 30, 2007) ...........8 

United States v. McCranie, 169 F.3d 723 (11th Cir. 1999)...............................................19 

United States v. Slone, 411 F.3d 643 (6th Cir. 2005) ........................................................18 

Walsh v. Brady, 927 F.2d 1229 (D.C. Cir. 1991) .............................................................10 

Worldcom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001)...................................................15 

Statutes and Regulations 

Administrative Procedure Act, 5 U.S.C. § 706(2) ............................................................1, 20 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155, 116 Stat. 81 (2002).................4, 8, 12 

Federal Election Campaign Act, 2 U.S.C. §§ 431-55.......................................................passim 

2 U.S.C. § 431(2) ..............................................................................................................11 

2 U.S.C. § 431(4)(A).........................................................................................................7 

2 U.S.C. § 431(8) ..............................................................................................................6 

2 U.S.C. § 441b.................................................................................................................2 

2 U.S.C. § 441d(a) ............................................................................................................17 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 4 of 27
iv

*11 C.F.R. § 100.57..........................................................................................................15, 16, 17 

11 C.F.R. § 100.57(a)........................................................................................................15

11 C.F.R. § 100.57(b)(2)...................................................................................................16 

11 C.F.R. § 106.1..............................................................................................................10 

11 C.F.R. § 106.6 (2000) ..................................................................................................13 

*11 C.F.R. § 106.6(c) .......................................................................................................7, 13 

11 C.F.R. § 106.6(c) (2000)..............................................................................................13 

*11 C.F.R. § 106.6(f)........................................................................................................7, 10, 11 

Administrative Materials 

FEC Advisory Opinion 2006-20.......................................................................................7 

FEC Advisory Opinion 1988-22 ......................................................................................7 

Matter Under Review 5492...............................................................................................8 

*Political Committee Status, Definition of Contribution, and Allocation for Separate 

 Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 

 68,056 (2004)...............................................................................................................7, 13, 14, 17 

Political Committee Status: Supplemental Explanation and Justification, 72 Fed. 

 Reg. 5595, (2007) ........................................................................................................7, 8 

Miscellaneous 

U.S. CONST. amend. I .......................................................................................................1, 9, 10 

U.S. CONST. art. I, § 4.......................................................................................................19 

U.S. CONST. art. I, § 8.......................................................................................................19 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 5 of 27
I. INTRODUCTION 

 In its opposition to the second motion for summary judgment by the Federal Election 

Commission (Commission or FEC), EMILY’s List concedes that the Commission has the 

authority to regulate contributions and expenditures made “for the purpose of influencing” 

federal elections. Plaintiff also concedes that the Commission may promulgate rules to govern 

the financing of federal political committees’ activities that may simultaneously affect both 

federal and state elections. Although plaintiff invokes the First Amendment, the Administrative 

Procedure Act, and federalism principles in its challenge to the three provisions at issue here, 

plaintiff’s challenge ultimately rests on its objections to the Commission’s policy choices, a 

challenge that must fail under the applicable highly deferential standard of review. EMILY’s 

List favors the Commission’s previous regulatory regime for “mixed” federal and nonfederal 

electoral activities, but as this Court noted in denying plaintiff’s motion for a preliminary 

injunction, plaintiff “has not demonstrated any right, statutory or otherwise, to the former system 

of allocation rules.” EMILY’s List v. FEC, 362 F. Supp. 2d 43, 55 (D.D.C.), aff’d, 170 Fed. 

Appx. 719 (D.C. Cir. 2005). 

 EMILY’s List, like all federal political committees, is subject to numerous restrictions 

under the Federal Election Campaign Act (Act or FECA), 2 U.S.C. §§ 431-55. Plaintiff may be 

“independent” in the sense of not being controlled by a particular political party or candidate, but 

the Supreme Court has upheld restrictions on contributions to “independent” (nonconnected) 

political committees, in part because those limits help prevent circumvention of the Act’s 

individual and aggregate contribution limits. See California Medical Ass’n v. FEC, 453 U.S. 182 

(1981). The regulations at issue here serve that end. They modestly refine the prior rules and 

reasonably implement some of the Act’s provisions that govern the activities of federal political 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 6 of 27
committees like EMILY’s List, whose major purpose is federal campaign activity. In particular, 

the challenged regulations simplify the allocation system applicable to EMILY’s List and clarify 

when funds received in response to solicitations are considered “contributions.” 

 In its opposition, EMILY’s List relies heavily upon unjustified generalizations from 

FEC v. Wisconsin Right to Life, Inc. (WRTL), 127 S. Ct. 2652 (2007), but it does not refute our 

argument that it has ignored or conflated the critical distinctions between that case and this one. 

WRTL was an as-applied challenge, not a facial challenge as here; it concerned a limit on 

expenditures, not contributions; and it was brought by a corporation that claimed it wished to 

engage in issue advocacy, not by a federal political committee that seeks to finance its mixed 

election activity with a higher percentage of nonfederal funds. See FEC’s Memorandum in 

Support of Its Second Motion for Summary Judgment (FEC Mem.), at 41-44. 

 As this Court previously noted, the anti-circumvention regulations at issue here do not 

prevent plaintiff from “engaging in whatever political speech it seeks to undertake”; instead, they 

mean only that plaintiff “may be required to raise money from a greater number of donors.” 

EMILY’s List, 362 F. Supp. 2d at 58 (quoting Buckley v. Valeo, 424 U.S. 1, 21-22 (1976)). 

Indeed, the proper test in assessing the effect of the regulations at issue here is “whether [they 

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

notice.’” McConnell v. FEC, 540 U.S. 93, 173 (2003) (quoting Nixon v. Shrink Missouri Gov't 

PAC, 528 U.S. 377, 397 (2000)). That test is significantly more deferential than the strict 

scrutiny applied in WRTL to the spending restriction applicable to a corporation under 2 U.S.C. 

§ 441b. Moreover, plaintiff’s conclusory factual assertion that the new rules “impede the ability 

of EMILY’s List to raise and spend money” (Cocanour Declaration (Decl.) ¶ 31) does not meet 

the standard applicable here. 

2

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 7 of 27
II. THE COMMISSION’S ALLOCATION AND SOLICITATION REGULATIONS 

ARE CONSTITUTIONAL AND CONSISTENT WITH THE FECA 

 

 The Commission has shown (Mem. 19-46) that the regulations at issue are consistent 

with the Constitution and the Act. Because plaintiff’s case rests on little more than an argument 

that the Commission should have chosen different allocation percentages or left the prior system 

unchanged, plaintiff has failed to show that the Commission’s interpretation of the Act is 

impermissible under the highly deferential standard applicable to judicial review under Chevron 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). See 

Rhinelander Paper Co. v. FERC, 405 F.3d 1, 6 (D.C. Cir. 2005); FEC Mem. at 15-16. In its 

reply, EMILY’s List does not question the applicability of this deferential standard of review. 

Nor does plaintiff question the Commission’s authority to require that the financing of mixed 

activities be allocated to ensure that activities influencing federal elections be paid for with 

federal funds. Instead, EMILY’s List bases much of its opposition on a straw man: its false 

claim that the Commission’s position is “that once an entity falls within the agency’s 

jurisdiction, the agency is free to regulate all of its activities.” EMILY’s List’s Reply 

Memorandum and Memorandum in Opposition to Defendant’s Second Motion for Summary 

Judgment (Pl. Reply Mem.), at 7. 

 EMILY’s List does not dispute that the purpose of the regulations at issue in this case is 

to implement the Act’s contribution restrictions, as this Court recognized in denying a 

preliminary injunction. EMILY’s List, 362 F. Supp. 2d at 57. Nor does plaintiff dispute that the 

Supreme Court has repeatedly upheld those statutory contribution restrictions, and measures to 

foreclose circumvention of them, on the grounds that 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 

3

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Campaign Comm., 533 U.S. 431, 456 (2001) (“all Members of the Court agree that 

circumvention is a valid theory of corruption”); FEC Mem. 22-23. Indeed, more than a quarter 

century ago, the Supreme Court upheld the contribution limits applicable to multicandidate 

political committees like EMILY’s List, explaining that those limits were intended in part to 

prevent circumvention of the aggregate and individual candidate contribution limits upheld in 

Buckley. California Medical Ass’n, 453 U.S. at 197-98. 

EMILY’s List ignores the Supreme Court’s ruling in California Medical Ass’n, which 

forecloses plaintiff’s suggestions that “independent groups” are somehow immune from 

corruption concerns and that the potential of such groups to serve as circumvention vehicles is 

mere speculation. Nonconnected committees like EMILY’s List are subject to the Act’s 

restrictions, even though they are not political parties, because their major purpose is the 

nomination or election of federal candidates, and they often have close relations with federal 

candidates, political parties, and office holders — as EMILY’s List does. See infra p. 12. 

Indeed, the Supreme Court has stressed that, because the term “political committee” need include 

only committees whose “‘major purpose’” is the “‘nomination or election of a candidate,’” the 

expenditures of such a committee “‘are, by definition, campaign related.’” McConnell, 540 U.S. 

at 170 n.64 (quoting Buckley, 424 U.S. at 79). Thus, it is well-established that regulation of the 

finances of such committees serves important anti-corruption interests. 

As the Commission explained (Mem. 26), the Supreme Court has recognized that 

Congress may constitutionally regulate different types of political entities in different ways, see 

McConnell, 540 U.S. at 158, and that an entity cannot immunize its federal election activity from 

regulation by also engaging in some nonfederal activity. To the contrary, McConnell upheld the 

elimination of national parties’ solicitation and receipt of nonfederal funds in the Bipartisan 

4

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 9 of 27
Campaign Reform Act (BCRA), Pub. L. No. 107-155, 116 Stat. 81 (2002), despite the parties’ 

recognized role in nonfederal elections, and it also upheld BCRA’s new allocation system for 

state and local parties, despite their even more obvious role in nonfederal elections. See 540 U.S. 

at 142-62. Nor must “independent” multicandidate committees like EMILY’s List be as directly 

associated with federal candidates as political parties are to present corruption concerns. See 

California Medical Ass’n, 453 U.S. at 197-98.1

In an attempt to revisit the anti-circumvention justification that supports the kind of 

contribution regulations at issue here, EMILY’s List relies upon WRTL, particularly Chief Justice 

Roberts’ statement that “enough is enough.” Reply Mem. 10 (citing 127 S. Ct. at 2672). But 

plaintiff takes this remark out of context. In fact, when Chief Justice Roberts explained that 

Congress could not restrict the financing of electioneering communications that went beyond the 

functional equivalent of express advocacy, he specifically contrasted the expenditure limitation 

at issue in WRTL with contribution limits upheld in other cases. In that context, while explaining 

that anti-circumvention principles have been found sufficient to uphold contribution limits, he 

reasoned that they were not sufficient to support the application of the spending limitation at 

issue in WRTL to the corporate plaintiff’s issue advertisements. Here, however, we have shown 

(Mem. 16-18) that the regulations governing mixed electoral activities by political committees 

 

1

 Since it has long been established that political committees like EMILY’s List are 

properly subject to the Act’s contribution limits because of the potential for corruption stemming 

from circumvention, plaintiff’s suggestion (see Reply Mem. 11-12) that the Commission provide 

a new record of corruption as to each adjustment of the allocation and solicitation rules — 

indeed, as to each hypothetical application that plaintiff can imagine — is mistaken. “[A] 

regulation is reasonably related to the purpose of the legislation to which it relates if the 

regulation serves to prevent circumvention of the statute and is not inconsistent with the statutory 

provisions.” Carpenter v. Secretary of Veteran Affairs, 343 F.3d 1347, 1352 (Fed. Cir. 2003). 

“Moreover, it is unnecessary for an agency to prove that circumvention has occurred in the past 

in order to sustain an anti-circumvention regulation as reasonable; a regulation can be justified 

by a reasonable expectation that it will prevent circumvention of statutory policy in the future.” 

Id. at 1353. 

5

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 10 of 27
function as contribution limits and that the Court must apply the less rigorous standard of 

scrutiny applicable to such limits. In its reply, EMILY’s List does not contest this argument; 

thus, its reliance on WRTL is misplaced. 

A. The Challenged Regulations Address “Mixed” Federal and State Election 

Activity by Groups Whose Major Purpose Is Federal Campaign Activity 

 The Commission promulgated the regulations at issue to clarify the extent to which 

certain activities of political committees would be considered to be “for the purpose of 

influencing” a federal election under the Act. 2 U.S.C. § 431(8). Plaintiff agrees (Reply Mem. 

1, 14) that this is the relevant statutory standard, but asserts (id. at 1, 7) that the Commission has 

claimed the right to require political committees to finance “all” of their activities with federal 

funds. See also, e.g., id. at 15. The Commission has done no such thing. Despite the straw man 

plaintiff creates, this case is actually about mixed activities, that is, those intended to influence 

both federal and nonfederal elections. As the Commission explained (Mem. 19-20), McConnell

made clear that a “literal reading of FECA’s definition of ‘contribution’ would have required 

such activities to be funded with hard money.” 540 U.S. at 123. Plaintiff’s argument thus boils 

down to mischaracterizing this mixed activity as “purely” or “wholly” state and local election 

activity and then expressing outrage that the Commission would suggest it could require that 

such activity be financed with federal funds. Reply Mem. 1, 14.2

 As the Commission has 

explained (Mem. 20, 27-28), however, a given activity may influence nonfederal elections and 

 

2

 In stressing its professed goals of engaging in the kind of election activity governed by 

these regulations, EMILY’s List suggests that its subjective intent can override the regulations’ 

objective criteria in determining the extent to which that activity must be financed with federal 

funds, and whether a solicitation yields “contributions.” To the contrary, subjective intent should 

play no such role here, and the regulations appropriately provide objective standards for 

resolving those issues. Cf. WRTL, 127 S. Ct. at 2665 (test for resolving as-applied First 

Amendment challenge to electioneering communication provision does not depend on 

determining a speaker’s subjective intent); infra p. 18-19 (discussing intent in federal 

prosecutions for vote buying in mixed federal and nonfederal elections). 

6

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also affect federal elections. See McConnell, 540 U.S. at 166. A pre-election television ad 

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

nonfederal races on the ballot. 

 Moreover, the allocation regulations challenged here apply only to political committees. 

See 11 C.F.R. §§ 106.6(c), (f). As the Commission has explained (Mem. 20-21), an organization 

is a “political committee” if it passes one of the financial thresholds specified in the Act, see

2 U.S.C. § 431(4)(A), and also satisfies the “major purpose” test announced by the Supreme 

Court in Buckley, 424 U.S. at 79; see supra p. 4. Because of that narrowing construction, 

“[e]xpenditures of . . . ‘political committees’ . . . can be assumed to fall within the core area 

sought to be addressed by Congress. They are, by definition, campaign related.” Id. 

 Contrary to plaintiff’s assertion (Reply Mem. 8), the Commission has long applied the 

Supreme Court’s major purpose test in determining whether an organization is a “political 

committee” under the Act. See Political Committee Status, Definition of Contribution, and 

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

68,065 (2004) (noting that the Commission “has been applying” this test “for many years”). See 

also, e.g., Political Committee Status: Supplemental Explanation and Justification, 72 Fed. Reg. 

5595, 5597, 5605-5606 (2007); Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), vacated on other 

grounds, 524 U.S. 11 (1998); FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), amended on 

reconsideration, 2005 WL 588222 (D.D.C. Mar. 7, 2005); FEC Advisory Opinion (AO) 2006-20 

and AO 1988-22 (both accessible by AO number at http://saos.nictusa.com/ saos/searchao). 3

 As 

 

3

 EMILY’s List also errs in asserting (Reply Mem. 8) that the Commission did not refer to 

the major purpose test in previous memoranda in this litigation. See, e.g., FEC Memorandum in 

Support of Its [First] Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for 

Summary Judgment (June 6, 2005), at 7, 19, 21, 28; FEC Reply Memorandum in Support of Its 

[First] Motion for Summary Judgment (July 18, 2005), at 4, 11. 

7

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plaintiff notes, the Commission clarified this year that it interprets the “major purpose” test to 

refer to organizations whose major purpose is federal campaign activity. 72 Fed. Reg. 5595, 

5601.4

 Because, by definition, the major purpose of EMILY’s List and other nonconnected 

political committees is to influence federal elections, an allocation regime that reflects that 

federal purpose is tailored to the kind of entity regulated. Moreover, EMILY’s List is in no 

position to complain about this interpretation because it does not deny in its complaint or in the 

Cocanour declaration that its own major purpose is federal campaign activity.5 

 In BCRA, Congress mandated a specific allocation system for state parties, and the 

Supreme Court upheld it. For nonconnected political committees like EMILY’s List, Congress 

left undisturbed the regulatory structure that has been in place for over 30 years, a structure that 

allows — but does not require — the Commission to permit allocation. In this regard, plaintiff 

continues to distort the meaning of Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987), 

arguing (Reply Mem. 14-15) that the case does not support regulating all activities of political 

committees that are “active in state and local elections.” See FEC Mem. 20, 22-23. But once 

again, that is not what the regulations at issue here do. Rather, they clarify the extent to which 

 

4

 Although, as plaintiff states (Reply Mem. 8), no Commission regulation defines “major 

purpose,” the Commission’s decision to define that term case-by-case rather than by regulation 

was upheld in Shays v. FEC, ___ F. Supp. 2d ___, 2007 WL 2446159, at *8-10 (D.D.C. Aug. 30, 

2007). In addition, EMILY’s List errs in claiming (Reply Mem. 9) that the Commission’s 

interpretation of the major purpose test is inconsistent with the Commission’s enforcement 

practices. Sometimes the administrative respondent either explicitly concedes that its major 

purpose is federal campaign activity or does not dispute its obvious electoral purpose. The 

administrative Matter Under Review (MUR) singled out by plaintiff (Reply Mem. 9) fits within 

that category. See General Counsel’s Factual and Legal Analysis in MUR 5492, at 7 n.3 (July 5, 

2005) (available through the Commission’s website enforcement query search engine under the 

MUR case number: http://eqs.nictusa.com/eqs/searcheqs). Likewise, the facts in Akins and 

Malenick involved federal campaign activity. 

5

 EMILY’s List hints (Reply Mem. 4 n.1) that, at some indeterminate future election cycle, 

it may make state and local campaign activity its major purpose, but this suggestion is 

speculative and conditional. 

8

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mixed activities of federal political committees must be financed with federal funds. Just as 

plaintiff cannot transform mixed activity into purely nonfederal activity merely by labeling it as 

such, it cannot transform federal political committees into entities active principally or entirely in 

nonfederal elections merely through assertion. Thus, for example, plaintiff’s hypothetical 

scenario (Reply Mem. 10) of a political committee that “spends 99 per cent of its funds on 

nonfederal elections” does not make sense: why would such a group be considered a federal 

political committee in the first place? Indeed, as the Commission showed (Mem. 13), EMILY’s 

List itself is a more realistic example: It had not reported an allocation ratio for administrative 

expenses and generic voter drives of less than 50% federal funds over the decade preceding this 

lawsuit, using the “funds expended” method that should have reflected (as plaintiff itself notes) 

“the share of that organization’s goal devoted to federal elections.” Memorandum of Points and 

Authorities in Support of Plaintiff’s Motion for Summary Judgment (Sept. 14, 2007) (Pl. Mem), 

at 5. See also FEC’s Statement of Material Facts ¶¶ 5-6, 11. 

 In asking the Court to set aside the challenged regulations, EMILY’s List has relied on 

several unlikely or worst-case hypothetical scenarios. 6

 As we explained (FEC Mem. 29, 44), 

EMILY’s List cannot meet its heavy burden in a facial challenge by relying on such examples, 

and plaintiff’s attempts to distinguish the cases on which the Commission relies are unsuccessful. 

Plaintiff suggests (Reply Mem. 20) that Florida League of Prof’l Lobbyists, Inc. v. Meggs, 

87 F.3d 457, 461 (11th Cir. 1996), is inapposite because it concerned a First Amendment 

challenge. This suggestion is especially ill-conceived because plaintiff relies on hypothetical 

 

6

 Plaintiff had every opportunity to participate in the rulemaking and call these scenarios to 

the Commission’s attention, but it chose not to do so. See National Wildlife Fed’n v. EPA, 

286 F.3d 554, 562 (D.C. Cir. 2002) (“It is well established that issues 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). 

9

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examples to support its First Amendment challenge. Pl. Mem. 15; Pl. Reply Mem. 10. 

Moreover, the cases upon which EMILY’s List relies (Reply Mem. 20) to rebut the 

Commission’s criticisms are suits by former employees seeking benefits under the Family and 

Medical Leave Act in which the courts used quite plausible hypothetical scenarios in their 

Chevron analyses of Department of Labor regulations. See Harbert v. Healthcare Services

Group, Inc., 391 F.3d 1140, 1149-54 (10th Cir. 2004), cert. denied, 546 U.S. 822 (2005); Bellum 

v. PCE Constructors, Inc., 407 F.3d 734, 738-40 (5th Cir. 2005). In contrast, EMILY’s List has 

invented farfetched hypothetical scenarios in an effort to support its facial challenge to the 

Commission’s regulations. “Of course, a clever lawyer can imagine anomalous applications of 

any regulation. But the ... [agency] had to draw a line between expenses that are allowed . . . 

and those that are not.” Walsh v. Brady, 927 F.2d 1229, 1233 (D.C. Cir. 1991). 

B. The Revised Allocation Regulations Are Lawful 

1. 11 C.F.R. § 106.6(f) Establishes Permissible Allocation Rules 

for Candidate-Specific Communications by Political Committees 

Like EMILY’s List 

 The Commission showed (Mem. 24-30) that 11 C.F.R. § 106.6(f) established new, brightline rules for the financing of candidate-specific public communications and voter drives by 

federal political committees to enhance compliance with the Act’s contribution limits. Under 

that provision, communications referring solely to federal candidates must be financed solely 

with federal funds, those referring solely to nonfederal candidates may be financed entirely with 

nonfederal funds, and those referring to both federal and nonfederal candidates are subject to the 

time/space method of allocation under 11 C.F.R. § 106.1. Because Congress left these allocation 

rules to the Commission’s discretion, and because section 106.6(f) reasonably implements the 

statutory contribution limits, the regulation easily satisfies Chevron analysis. In challenging 

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section 106.6(f), EMILY’s List fails to take into account the applicable time/space method of 

allocation, although that allocation method dispels most of plaintiff’s concerns. 

 EMILY’s List asserts (Reply Br. 15, 18) that section 106.6(f) is unconstitutional and in 

excess of the Commission’s authority because it would require that federal funds be used to 

finance a public communication that refers to a federal candidate in a different jurisdiction and is 

made well in advance of any election in which that candidate is on the ballot. This hypothetical 

example is not sufficient, however, to invalidate the regulation on its face. See supra p.10; FEC 

Mem. 29. In any event, as the Commission has explained (Mem. 28), if a committee were to try 

to influence a nonfederal election by identifying an out-of-state federal candidate but not 

identifying any nonfederal candidate in a communication, the communication could affect an instate federal election. The communication may well suggest that its audience support a party’s 

full slate of candidates (federal and state) on the basis of their alliance with the prominent out-ofstate candidate’s policies, or the out-of-state candidate’s support for the in-state candidates.7

 

EMILY’s List also complains that communications are covered without regard to time, but of 

course there is a time element inherent in the statutory term “candidate,” 2 U.S.C. § 431(2), and 

in any event this regulation applies only to federal political committees, whose major purpose is 

the nomination or election of federal candidates. See McConnell, 540 U.S. at 170 n.64; supra 

p. 7; FEC Mem. 26. 

 

7

 EMILY’s List tries to counter this explanation by arguing that “a communication that 

included a nonfederal out-of-state candidate for endorsement purposes instead of a federal 

candidate would have an identical effect on in-state elections, and yet that communication could 

be paid for with entirely nonfederal funds.” Reply Mem. 19. If plaintiff is suggesting that the 

Commission would have been justified in regulating more broadly to cover that situation, the 

lack of such broader regulation does not undermine the Commission’s actual regulation. The 

Commission may “proceed in incremental steps in the area of campaign finance regulation” and 

is not required to restrict all regulable activity. McConnell, 540 U.S. at 158. Moreover, plaintiff 

does not even attempt to respond to the Commission’s explanation (FEC Mem. 27-28) of 

plaintiff’s other hypothetical scenarios. 

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 As we explained supra pp. 4-5, BCRA restricted the allocation available to state and local 

party committees, and eliminated the opportunity for allocation by national party committees. 

EMILY’s List argues (Reply Mem. 12) that it differs significantly from state and local party 

committees and, therefore, that any allocation rules governing it should permit greater use of 

nonfederal funds for mixed electoral activities than the rules governing those party committees 

or the rules plaintiff challenges here permit. EMILY’s List does differ from a state or local party 

committee in at least one important respect; as a political committee whose major purpose is to 

influence federal elections, EMILY’s List is more likely to engage in federal electoral activity 

than is a state or local party committee. Indeed, from plaintiff’s own description of its activities, 

plaintiff is more akin to a national party committee. It appears to advance the same national 

Democratic electoral interests as the Democratic National Committee, the Democratic Senatorial 

Campaign Committee, and the Democratic Congressional Campaign Committee. For example, 

Ms. Cocanour’s declaration (¶¶ 2, 3) states that EMILY’s List “identifies viable opportunities to 

elect pro-choice Democratic women,” “recruits qualified candidates,” “trains them to be 

effective fundraisers and communicators,” and “helps them build and run effective campaign 

organizations.” See also id. at ¶ 6 (“Since 1985, EMILY’s List has helped to elect sixty-eight 

Democratic women to Congress, thirteen to the U.S. Senate, eight to governorships, and over 

350 to other state and local offices.”). Of course, the allocation regulations at issue here, unlike 

BCRA’s treatment of national political party committees, still allow EMILY’s List to allocate 

nonfederal dollars to help pay for a significant amount of mixed federal/nonfederal election 

activity. 

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2. 11 C.F.R. § 106.6(c) Establishes a Permissible 50% Minimum 

Allocation Rule for Administrative Expenses and Generic Voter 

Drives by Political Committees 

 The Commission has shown (Mem. 30-35) that the 50% minimum allocation rule for 

disbursements by political committees that benefit both federal and nonfederal candidates is 

well within the range of reasonable regulation in this area. EMILY’s List complains (Reply 

Mem. 17) that the 50% minimum rule was the product of a flawed rulemaking and that it is 

“nonsensical to conclude that, because someone does two different things, the effect of one is as 

significant as that of the other.” This argument misapprehends the Act, which regulates 

disbursements that have the purpose of influencing federal elections, regardless of whatever 

other effects they may also have. Thus, plaintiff has no statutory basis for assuming that the 

relevant inquiry must quantify the relative “effect” that dual purpose spending has on federal and 

nonfederal elections. Since EMILY’s List concedes that this regulation governs spending that 

influences both federal and nonfederal elections, its complaint is little more than a policy dispute 

about how best to allocate expenses for activities that cannot be readily divided with scientific 

precision — all of which have at least some influence on federal elections. 

EMILY’s List asserts (Reply Mem. 17) that “the record reflects no actual evidence to 

show why the Commission reached the decision it did.” The plaintiff, however, ignores the 

extensive administrative record on this point, as summarized below: 

• A Review of Disclosure Reports: “In examining public disclosure reports filed by 

SSF’s over the past ten years the Commission discovered that very few committees 

chose to allocate their administrative and generic voter drive expenses under the 

former section 106.6(c).” Political Committee Status, 69 Fed. Reg. at 68,062; 

• Confusion Under Former Rule: The Commission explained that, in its experience, 

“[c]ommittees have consistently requested guidance on the proper application of the 

allocation methods under the former section 106.6 at various Commission 

conferences, roundtables, and education events.” Id; 

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• Experience of Commission Auditors: Based on reports by the Commission’s Audit 

Division, the Commission discovered that some committees were not properly 

allocating under the old allocation rules. Id. (citing final FEC audit reports); 

• Administrative Burden: The Commission took into account the multiple steps 

required to comply with the old rule. “[C]ompliance required committees to monitor 

their Federal expenditures and non-Federal disbursements, compare their current 

spending to the ratio reported at the start of the election cycle, and then adjust the 

ratio to reflect their actual behavior.” Id; see also Comments of Media Fund, at 20 

(April 5, 2004) (Exh. 12); Transcript of Public Hearing regarding Political Committee 

Status Notice of Proposed Rulemaking, April 14, 2004 (Apr. 14 Tr.), at 160 (Exh. 

14);8

• Comments Supporting 100% Federal Funds: See Comments of Public Citizen, 

at 12-13 (April 5, 2004) (Exh. 8); Comments of Republican National Committee, at 

7-8 (April 5, 2004) (Exh. 9); 

• Comments Supporting a Specific Percentage: See Comments of Democracy 21, 

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

(Exh. 10); Comments of Senators McCain and Feingold, Representatives Shays and 

Meehan, at 3 (April 9, 2004) (Exh. 11); Comments of Republican National 

Committee, at 7 (April 5, 2004) (Exh. 15); and 

• Witness Testimony that the Prior Rule Permitted Circumvention: See Apr. 14 

Tr. at 158-59 (Exh. 14); Transcript of Public Hearing regarding Political Committee 

Status Notice of Proposed Rulemaking, April 15, 2004, at 27-28 (Exh. 9). 

Thus, the record amply supports the Commission’s conclusion.9 Moreover, the Commission’s 

recent conciliation agreement with America Coming Together (ACT) shows how a nonparty 

political committee that did purport to allocate its mixed expenses exploited the former, 

complicated allocation system. See FEC Mem. 23; Memorandum of Amici Curiae Senator John 

McCain, et al. in Opposition to Plaintiff’s Motion for Summary Judgment (Oct. 9, 2007), at 

14-18, 20, 24-27. EMILY’s List ignores ACT. 

 

8

 The exhibits cited refer to the exhibits filed with the Commission’s memorandum in 

support of its second summary judgment motion. 

9

 “Fewer than 2% of all registered nonparty political committees . . . allocat[ed] 

administration and generic voter drive expenses under former section 106.6(c) . . . .” Political 

Committee Status, 69 Fed. Reg. at 68,062. That means that the remaining nonparty committees 

used only federal funds for such activities. See also FEC, PAC Financial Summaries (sortable 

data files), available at www.fec.gov/finance/disclosure/ ftpsum.shtml. 

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 Finally, EMILY’s List characterizes (Reply Mem. 17) the line drawn by this regulation as 

arbitrary. However, 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, 277 

(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, Inc. v. FCC, 238 F.3d 449, 461-462 (D.C. Cir. 

2001). EMILY’s List has presented no basis for denying the Commission deference and 

substituting a different line for the one drawn by the Commission. 

C. The Solicitation Regulation, 11 C.F.R. § 100.57, Is a Permissible 

Interpretation of When Funds Given in Response to a Solicitation Are 

“Contributions” Under the Act 

 The Commission explained (Mem. 35-41) that 11 C.F.R. § 100.57 clarifies the 

circumstances in which funds received in response to a solicitation will be considered 

“contributions” under the Act. EMILY’s List ignores the rule’s crucial limiting circumstances: 

funds are contributions when received in response to 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 the solicitation indicates that the 

funds will be used to support or oppose the election of only clearly identified federal candidates, 

then 100% of the funds received will be contributions under the Act. Because it is reasonable for 

the Commission to infer that funds received in response to such a solicitation are “for the 

purpose of influencing” federal elections, 11 C.F.R. § 100.57 easily satisfies Chevron analysis. 

The regulation lowers the percentage of the receipts deemed to be contributions when a 

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solicitation refers to one or more clearly identified nonfederal candidates in addition to one or 

more clearly identified federal candidates. In that case, at least 50% of the total funds received 

are considered contributions. 11 C.F.R. § 100.57(b)(2).10 

 EMILY’s List argues (Reply Mem. 19) that 11 C.F.R. § 100.57 is unconstitutional and 

beyond the Commission’s authority because it would override express statements in solicitations 

that a lower percentage of funds received would be used to support federal candidates. However, 

as the Commission has noted (Mem. 39), EMILY’s List identifies no language in the statute 

inconsistent with this regulation, and provides no evidence that this issue was raised before the 

Commission. Moreover, EMILY’s List has not provided any real examples of a specific “low 

percentage” solicitation (by a nonparty political committee) that both clearly indicates that funds 

received will be used to support the election of clearly identified federal candidates and that also 

voluntarily restricts the use of the committee’s receipt of funds. In any event, as explained supra

pp. 9-10, an unsupported worst-case hypothetical example does not establish that the regulation 

is unconstitutional on its face or beyond the Commission’s authority to promulgate. 

If EMILY’s List wants some or all of the funds raised in response to a given solicitation 

to be nonfederal funds, all it need do is avoid stating (for 100% nonfederal proceeds) that the 

funds collected will be used to support or oppose the election of a clearly identified federal 

candidate, or (for 50% federal proceeds) also indicate that some of the funds raised will be used 

to support or oppose the election of an identified nonfederal candidate. A committee might also 

simply use separate communications to raise funds in connection with federal and nonfederal 

 

10 Plaintiff posits a hypothetical situation (Reply Mem. 10) about a solicitation in which an 

identified out-of-state federal candidate helps a fundraising effort for state candidates. Contrary 

to plaintiff’s apparent expectation, however, this hypothetical scenario does not undermine the 

constitutionality of section 100.57. Because the solicitation does not indicate that any of the 

fundraising proceeds will be used to support the election of the out-of-state federal candidate, 

section 100.57 would not treat any of the proceeds as “contributions.” 

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elections. See Republican Nat’l Comm. 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 committees 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 elections, the regulation reasonably treats the 

proceeds as federal funds. 

 Finally, in promulgating new section 100.57, the Commission cited FEC v. Survival

Education Fund (SEF), 65 F.3d 285 (2d Cir. 1995), as helpful precedent. 69 Fed. Reg. at 68,057. 

In its reply memorandum (at 16), EMILY’s List again misreads the case and argues that 

“solicitations would only be regulated when they indicated that funds would be earmarked for 

express advocacy.” Although the court in SEF discussed express advocacy, it did not rule on 

whether the solicitation in question was express advocacy and instead based its decision on the 

sentence plaintiff includes at the end of its long block quotation — a sentence that defeats 

plaintiff’s interpretation. See FEC Mem. 4, 36-37. The Second Circuit stated: “Even if a 

communication does not itself constitute express advocacy, it may still fall within the reach of 

§ 441d(a) [the Act’s disclaimer provision] if it contains solicitations clearly indicating that the 

contributions will be targeted to the election or defeat of a clearly identified candidate for 

federal office.” 65 F.3d at 295 (emphasis added). That formulation, which is quite similar to the 

language of 11 C.F.R. § 100.57, does not rely upon an express advocacy standard. 

D. Plaintiff Has Failed to Show that the Regulations Violate Principles of 

Federalism 

EMILY’s List implicitly concedes (Reply Mem. 13) that the regulations do not 

“commandeer the States and state officials in carrying out federal regulatory schemes,” the usual 

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basis for a federalism challenge. McConnell, 540 U.S. at 186. See FEC Mem. 45. Instead, 

plaintiff argues (Reply Mem. 13) that the regulations violate principles of federalism because 

they infringe plaintiff’s “right to participate in nonfederal elections.” But the regulations in no 

way prohibit or restrict EMILY’s List from participating in nonfederal elections. EMILY’s List 

can do as much nonfederal fundraising as it likes and can spend all the money it has on 

nonfederal electoral activity. Indeed, EMILY’s List can spend all of its federal money on 

nonfederal elections, if it so chooses. The regulations only help ensure that nonfederal dollars 

are not improperly spent to influence federal elections. 

The regulations protect the integrity of federal campaign activity by ensuring that, in 

engaging in “mixed” federal and nonfederal electoral activities, an organization satisfies the 

statutory requirement that only federally permissible funds finance federal electoral activity. 

Like Congress, the Commission “has a fully legitimate interest in maintaining the integrity of 

federal officeholders and preventing corruption of federal electoral processes.” McConnell, 

540 U.S. at 187. The Commission tailored the regulations to achieve that end while 

accommodating the need for workable, understandable rules. As the recent conciliation 

agreement with ACT shows, inadequate tailoring invites abuse. See FEC Mem. 23; supra p.14. 

If the resulting tailoring indirectly affects the financing of state and local electoral activity, those 

indirect effects do not make the regulations unconstitutional. McConnell, 540 U.S. at 186-87. 

Defendants in federal vote-buying prosecutions have raised — unsuccessfully — 

federalism arguments similar to those EMILY’s List raises here. For example, in United States 

v. Slone, 411 F.3d 643 (6th Cir. 2005), the defendant appealed his conviction for vote buying in a 

federal election by claiming that he was buying votes only regarding a candidate for county 

office, although federal offices were also on the ballot. The defendant argued that the federal 

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vote-buying statute is unconstitutional because it exceeds Congress’s enumerated powers by 

affecting local elections. Id. at 644. The Sixth Circuit held that the statute “applies to all 

elections in which a federal candidate is on the ballot, and the government need not prove that 

the defendant intended to affect the federal component of the election by his corrupt practices.” 

Id. at 648. Citing McConnell, 540 U.S. at 187, the court stated, “When the purity of the process 

is compromised in part, the corruption affects the integrity of the whole.” Id. at 650. See also, 

e.g., United States v. McCranie, 169 F.3d 723, 727 (11th Cir. 1999) (holding, in a federal 

vote-buying case, that the Elections Clause and the Necessary and Proper Clause provide 

Congress with the power to regulate mixed federal and state elections even when federal 

candidates are running unopposed). 

Finally, EMILY’s List again invokes WRTL (Reply Mem. 13) when it argues that its right 

to participate in nonfederal elections has been infringed. But that case involved the line between 

issue advocacy and electoral advocacy, not the line between federal and nonfederal election 

activity. That difference is critical here, because only the latter dichotomy could possibly 

involve considerations of federalism. WRTL had no occasion to revisit or even mention 

McConnell’s discussion of federalism; WRTL is thus irrelevant to the issue before this Court. 

E. EMILY’s List Has Failed to Meet Its Evidentiary Burden at Summary 

Judgment 

 At summary judgment, the failure of a party to come forward with evidence “‘sufficient 

to establish the existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial,’” requires entry of summary judgment against that party. 

Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986)). Indeed, “[o]ne of the principal purposes of the summary judgment 

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rule is to isolate and dispose of factually unsupported claims” — such as the claims plaintiff has 

presented here. Celotex, 477 U.S. at 323-24. 

Plaintiff’s summary judgment motion lacks the necessary evidentiary support. Factually, 

the motion is based almost entirely on a single, conclusory declaration by Britt Cocanour, the 

chief of staff and assistant treasurer at EMILY’s List. That declaration provides her titles but 

does not explain whether she has personal knowledge of the subjects to which she is attesting. 

For example, in asserting that particular communications “would not have the purpose of 

influencing [specific] candidates’ elections” (Decl. ¶ 27), Ms. Cocanour does not disclose the 

basis of her supposed knowledge. See also id. at ¶ 24 (same). Also, the purported facts 

describing plaintiff’s Campaign Corps campaign school are vague, ambiguous, and conclusory. 

They fail to specify, for example, whether the “graduates” the declaration describes worked 

solely on nonfederal races or whether they spent significant time on federal races or generic 

campaign activity. See FEC Statement of Genuine Issues ¶¶ 29-31; FEC Mem. 33 n.29. More 

detailed information might show that the participants spent much of their time on federal races. 

Thus, the Cocanour declaration raises questions but does not answer them or meet plaintiff’s 

evidentiary burden. 

III. EMILY’S LIST HAS FAILED TO JUSTIFY THE REMEDY IT SEEKS 

 EMILY’s List requests (Reply Mem. 20) that the Court “immediately vacate[ ]” the 

Commission’s regulations — extraordinary relief that this Court rejected in Shays v. FEC, 337 F. 

Supp. 2d 28, 130 (D.D.C. 2004), a decision EMILY’s List ignores. Instead, without offering any 

supporting evidence, plaintiff simply asserts (Reply Mem. 21) that the Commission has “shown 

no willingness or capability to satisfy the requirements of the APA” and that there is “no way for 

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the Commission to correct its violations” of law. This bald ad hominem attack cannot substitute 

for reasoned argument. 

 Plaintiff also asserts that “any disruption would be minimal” if the regulations at issue 

were vacated because functioning regulations were previously in place. Reply Mem. 21. This 

assertion reflects plaintiff’s persistent and incorrect belief that the Commission’s prior 

regulations would somehow spring back to life. The regulations at issue here are adjustments to 

an interconnected framework of regulation of political committees; vacating these rules would 

leave that framework in disarray. See FEC Mem. 46; EMILY’s List, 362 F. Supp. 2d at 59. 

Thus, even if the Court were to rule in plaintiff’s favor on the merits, the Court should deny the 

extraordinary relief that plaintiff requests. 

IV. CONCLUSION 

 For the reasons given above, the Federal Election Commission’s motion for summary 

judgment should be granted, and plaintiff EMILY’s List’s motion for summary judgment 

should be denied. 

Respectfully submitted, 

 /s/ Thomasenia P. Duncan ______________________________________________________________________________________________________________________________________________ 

Thomasenia P. Duncan 

General Counsel 

 /s/ David Kolker ________________________________________________________________________

David Kolker ______________________________________________________________________ 

Associate General Counsel 

(D.C. Bar # 394558) 

 /s/ Harry J. Summers _________________________________________________________________________________________

Harry J. Summers ____________________________________________________

Acting Assistant General Counsel 

 /s/ Vivien Clair ______________________________________________________________

Vivien Clair ________________________________________________________________________________ 

Attorney 

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Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 26 of 27
22

 /s/ Greg J. Mueller 

__________________________________________________________________________________

Greg J. Mueller ___________________________________________________________ 

Attorney 

(D.C. Bar # 462840) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

November 20, 2007 (202) 694-1650 

Case 1:05-cv-00049-CKK Document 39 Filed 11/20/2007 Page 27 of 27