Lead Opinion
Opinion for the Court filed by Circuit
Judge KAVANAUGH, with whom Circuit
Opinion concurring in part filed by Circuit Judge BROWN.
A non-profit group , known as EMILY’s List promotes abortion rights and supports pro-choice Democratic women candidates. It challenges several new Federal Election Commission regulations that restrict how non-profits may spend and raise money to advance their preferred' policy positions and candidates. EMILY’s List argues that the regulations violate the First Amendment.
The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office. Similarly, the First Amendment, as the Court has construed it, safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express their views about policy issues and candidates for public office. We agree with EMILY’s List that the new FEC regulations contravene those principles and violate the First Amendment. We reverse the judgment of the District Court and direct it to enter judgment for EMILY’s List and to vacate the challenged regulations.
I
In the wake of the 2002 Bipartisan Campaign Reform Act and the Supreme Court’s 2003 decision in McConnell v. FEC, the election season of 2004 erupted with bitter accusations about the activities of certain non-profit entities. The controversy was popularly known by a single term — “527s”—that refers to the section of the tax code applicable to nonprofits engaged in political activities. The debate arose after wealthy individuals contributed huge sums of money to nonprofits ranging from America Coming Together to MoveOn.org to Swift Boat Veterans for Truth in order to support advertisements, get-out-the-vote efforts, and voter registration drives. In total during the 2004 campaign, these groups reportedly spent several hundred million dollars.
As the campaign unfolded, many in both major parties — including President Bush and Senator Kerry — questioned the activities of certain non-profits. Some encouraged the FEC to ban large donations to non-profit entities in the same way that Congress in BCRA had banned large contributions to political parties. Proponents of additional regulation reasoned that nonprofits had replaced political parties as the soft-money “loopholе” in the campaign finance system. See Edward B. Foley & Donald Tobin, The New Loophole?: 527s, Political Committees, and McCain-Feingold, BNA Money & Pol. Rep., Jan. 7, 2004.
In response, the FEC did not ban nonprofits from receiving and spending large donations, as some had urged. But the FEC did limit how much non-profits such as EMILY’s List could raise and spend. The FEC achieved this objective by dictating that covered non-profits pay for a large percentage of election-related activities out of their hard-money accounts. See 11 C.F.R. §§ 106.6(c), (f).
In early 2005, EMILY’s List filed suit, arguing that the new regulations violated the First Amendment and the Federal Election Campaign Act. In 2008, the District Court upheld the regulations in their entirety.
II
To assess the constitutionality of the new FEC regulations, we initially must address at some length the relevant First Amendment principles set forth by the Supreme Court.
A
Ratified in 1791, the First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. This guarantee “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Buckley v. Valeo,
In analyzing the interaction of the First Amendment and campaign finance laws, the Court has articulated several overarching principles of relevance here.
First, the Court has held that campaign contributions and expenditures constitute “speech” within the protection of the First Amendment. In Buckley, the foundational case, the Court definitively ruled that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.”
Second, the Court has ruled that the Government cannot limit campaign contributions' and expenditures to achieve “equalization” — that is, it cannot restrict the speech of some so that others might have equal voice or influence in the electoral process. In perhaps the most important sentence in the Court’s entire campaign finance jurisprudence, Buckley stated: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
In Davis v. FEC, the Court strongly reiterated that “equalization” is not a “legitimate government objective.” — U.S. -,
Third, the Court has recognized a strong governmental interest in combating corruption and the appearance thereof. See Buckley,
Fourth, in applying the anti-corruption rationale, the Court has afforded stronger protection to expenditures by citizens and groups • (for example, for advertisements, get-out-the-vote efforts, and voter registration activities) than it has provided to their contributions to candidates or parties. The Court has explained that contributions to a candidate or party pose a
In maintaining this line between (i) contributions to candidates or parties and (ii) expenditures, the Court has acknowledged that a citizen’s or group’s large expenditure — for example, in financing advertisements or get-out-the-vote activities — may confer some benefit on a candidate and thereby give influence to the spender. But the Court nonetheless has consistently dismissed the notion that expenditures implicate the anti-corruption interest. See Buckley,
Fifth, the Court has been somewhat more tolerant оf regulation of for-profit corporations and labor unions. The Court has permitted statutory limits on contributions that for-profit corporations and unions make from their general treasuries to candidates and parties.
To sum up so far: In reconciling the competing interests, the Supreme Court has generally approved statutory limits on contributions to candidates and political parties as consistent with the First Amendment. The Court has rejected expenditure limits on individuals, groups, candidates, and parties, even though expenditures may confer benefits on candidates. And the Court has upheld limits on for-profit corporations’ and unions’ use of their general treasury funds to make campaign contributions to candidates or political parties or to make expenditures for activities expressly advocating the election or defeat of federal candidates.
B
This case does not involve regulation of candidates, parties, or for-profit corporations. Rather, this case concerns the FEC’s regulation of non-profit entities that are not connected to a candidate, party, or for-profit corporation. We thus must consider how the constitutional principles outlined above apply to non-profits — and in particular to three different kinds of non-profits: (i) those that only make expenditures; (ii) those that only make contributions to candidates or parties; and (iii) those that do both. For purposes of the First Amendment analysis, the central issue turns out to be whether independent non-profits are treated like individual citizens (who under Buckley have the right to spend unlimited money to support their preferred candidates) or like political parties (which under McConnell do not have the right to raise and spend unlimited soft money).
1
The first relevant category of non-profit entities consists of those that only make expenditures for political activities such as
The Supreme Court’s case law establishes that those nonprofit entities, like individual citizens, are constitutionally entitled to raise and spend unlimited money in support of candidates for elected office — with the narrow exception that, under Austin, the Government may restrict to some degree how non-profits spend donations received from the general treasuries of for-profit corporations or unions. See Cal. Med. Ass’n v. FEC,
Those principles were initially articulated in Cal-Med. There, Justice Blackmun determined that “contributions to political committees can be limited only if those contributions implicate the governmental interest in preventing actual or potential corruption, and if the limitation is no broader than necessary to achieve that interest.” Cal-Med,
The Court reinforced those principles a year later in Citizens Against Rent Control There, the Court struck down limits on donations to a non-profit committee seeking to defeat a ballot measure. See Citizens Against Rent Control,
In NCPAC, the Court reiterated- that the Government may not limit the spending of non-profits. The Court invalidated a law that restricted a group’s expenditures in support of a candidate who had accepted public financing. See NCPAC,
In MCFL, the Court again underscored that non-profit advocacy groups are generally entitled to raise and spend unlimited money on elections. The Court invalidated an expenditure limit imposed on a nonprofit corporation that had distributed a newsletter promoting pro-life candidates. The Court noted that individuals “contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction.” MCFL,
The principles set forth in Cal-Med, Citizens Against Rent Control, NCPAC, and MCFL are rooted in the Court’s consistent holdings beginning with Buckley that individual citizens may spend money without limit (apart from the limit on their own contributions to candidates or parties) in support of the election of particular candidates. After all, if one person is constitutionally entitled to spend $1 million to run advertisements supporting a candidate (as Buckley held), it logically follows that 100 people are constitutionally entitled to donate $10,000 each to a non-profit group that will run advertisements supporting a candidate.
These Supreme Court decisions reflect, moreover, the commonsense proposition that regulation of non-profits does not fit within the anti-corruption rationale, which constitutes the sole basis for regulating campaign contributions and expenditures. See Davis,
Writing for the Fourth Circuit, Judge Wilkinson recently summarized the relevant Supreme Court precedents, concluding that “the Court has never held that it is constitutional to apply contribution limits to political committees that make solely independent expenditures.” N.C. Right to Life,
2
The second relevant category of nonprofits consists of those that only make contributions to federal candidates or political parties and make no expenditures. Given the constitutionally permissible caps on an individual donor’s contributions to candidates or parties, the Supreme Court has acknowledged the risk that individuals might use non-profits to evade those limits. In order to prevent circumvention of limits on an individual donor’s contributions to candidates and parties, the Court has held that non-profit entities can be required to make their own contributions to candidates and parties, as well as pay associated administrative expenses, out of a hard-money account that is subject to source and amount restrictions. See Cal-Med,
Consistent with Cal-Med’s ruling, FECA limits contributors to donating a maximum of $5000 per year to a nonprofit’s hard-money account. A non-profit in turn may contribute to a candidate or party only from that hard-money account. See 2 U.S.C. § 441a(a)(l)(C). And an individual’s contribution to a non-profit’s hard-money account may count against the individual’s aggregate annual contribution limits. See 2 U.S.C. § 441a(a)(3).
3
What about a non-profit entity that falls into both categories — in other words, a non-profit that makes expenditures and makes contributions to candidates or parties? EMILY’s List is a good example of such a hybrid non-profit: It makes expenditures for advertisements, get-out-the-vote efforts, and voter registration drives; it also makes direct contributions to candidates and parties. In all of its activities, its mission is to promote and safeguard abortion rights and to support the election of pro-choice Democratic women to federal, state, and local offices nationwide.
The constitutional principles that govern such a hybrid non-profit entity follow ineluctably from the well-established principles governing the other two categories of non-profits. To prevent circumvention of contribution limits by individual donors, non-profit entities may be requirеd to make their own contributions to federal candidates and parties out of a hard-money account — that is, an account subject to source and amount limitations ($5000 annually per contributor). Similarly, nonprofits also may be compelled to use their hard-money accounts to pay an appropriately tailored share of administrative expenses associated with their contributions. See Cal-Med,
How does McConnell affect the above principles governing non-profits? McConnell upheld congressionally imposed limits on political parties receiving or spending soft money. Some have argued that the Government can similarly restrict soft-money contributions to and spending by nonprofits. In this case, the District Court accepted that reasoning in ruling for the FEC; it found non-profits similarly situated to political parties for purposes of the First Amendment analysis.
In our judgment, however, McConnell does not support such regulation of nonprofits. McConnell affirmed BCRA’s limits on contributions to political parties because of the close ties between candidates and parties and the extensive record evidence of what it deemed a threat of actual or apparent corruption — specifically, the access to federal officials and candidates that large soft-money contributors to political parties received in exchange for their contributions. The Court said that it was “not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption.” McConnell,
More fundamentally, non-profit groups do not have the same inherent relationship with federal candidates and officeholders that political parties do. The McConnell Court identified numerous “real-world differences between political parties and interest groups.”
In sum, it will not work to simply transport McConnell’s holding from the political party context to the non-profit setting. On this question as well, we agree with Judge Wilkinson: “It is ... not an exaggeration to say that McConnell views political parties as different in kind than independent expenditure committees.” N.C. Right to Life,
For non-profit entities, the most pertinent Supreme Court precedents remain Buckley, Cal-Med, Citizens Against Rent Control, NCPAC, and MCFL. As discussed above, those cases ultimately stand for the proposition that non-profit groups may accept unlimited donations to their soft-money accounts. And subject to the one Austin-based exception, non-profit groups— like individual citizens — may spend unlimited amounts out of their soft-money accounts for election-related activities such as advertisements, get-out-the-vote efforts, and voter registration drives.
We now consider whether the 2004 FEC regulations at issue in this case comport with the relevant constitutional principles. They do not.
The fundamental flaw, as counsel for EMILY’s List succinctly stated at oral argument, is that the Commission improperly “brought to bear what was essentially a political party analysis to a non-connected, independent cоmmittee which is not under the control of, or associated with candidates in the fashion of a political party.” Tr. of Oral Arg. at 4.
A
The rules set forth in §§ 106.6(c), 106.6(f), and 100.57 contain five relevant provisions. In our judgment, the provisions are not closely drawn to meet an important governmental interest.
First, the regulations require covered
Third, the regulations direct covered non-profit entities to use their hard-money accounts to pay at least 50% of all administrative expenses. 11 C.F.R. § 106.6(c). Those administrative expenses include rent, utilities, office supplies, and salaries, among other costs. But a nonprofit may be forced to use hard money for, at most, a percentage of administrative expenses that “closely” corresponds to the percentage of activities relating to its contributions as compared to its advertisements, get-out-the-vote efforts, and voter registration activities. See Davis v. FEC, — U.S.-,
Fourth, the regulations compel covered non-profit entities to use their hard-money accounts to pay 100% of the costs of advertisements or other communications that “refer” to a federal candidate. 11 C.F.R. § 106.6(f)(1). If an advertisement or communication refers to a state candidate as well as a federal candidate, the non-profit must pay for it with a percentage of its hard-money account as determined by time and space allocation. See id. § 106.6(f)(3). Here again, the problem is that non-profits are constitutionally entitled to pay 100% of the costs of their advertisements and other communications out of a soft-money account. See MCFL,
Fifth, the regulations create a new regime for solicitations indicating that donated funds will be used to support or oppose the election of a clearly identified federal candidate. 11 C.F.R. § 100.57. The regulations require that donations in response to such solicitations be treated as
B
In short, the new FEC regulations do not pass muster under the Supreme Court’s First Amendment precedents. The regulations are not “closely drawn” to serve a cognizable anticorruption interest. See Davis,
Of course, the fact that the regulations do not serve a cognizable anti-corruption interest is not surprising because the decision to more tightly regulate entities like EMILY’s List arose out of an entirely different concern: the influence of nonprofits that raise and spend large amounts of money and thereby affect federal elections. See, e.g., Comments of Democracy 21, Campaign Legal Center & Center for Responsive Politics in Response to Notice of Proposed Rulemaking, No.2004-6, at 1-2 (Apr. 5, 2004) (criticizing “the spending of tens of millions of dollars of soft money explicitly for the purpose of influencing the presidential election by section 527 groups”). Responding to such complaints, the FEC adopted these new regulations to tamp down spending by non-profits and thereby better equalize the voices of citizens and groups who participate in the political process. Large donations to and spending by non-profits prompted these regulations, and limiting non-profits’ expenditures is their intended and predictable effect.
But the Supreme Court’s First Amendment eases have repeatedly repudiated this equalization rationale as a basis for regulating campaign-related contributions or expenditures. See Davis,
As a lower court, we must strictly adhere to the Supreme Court’s precedents. The regulations contravene the First Amendment as it has been interpreted thus far by the Supreme Court.
C
As some commentators point out, it might seem incongruous to permit nonprofits to receive and spend large soft-money donations when political parties and candidates cannot. See Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex. L.Rev. 1705, 1715 (1999). But this perceived anomaly has existed to some extent since Buckley, which recognized that contribution limitations “alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters.” Buckley,
If eliminating this perceived asymmetry is deemed necessary, the constitutionally permitted legislative solution, as the Court stated in an analogous situation in Davis, is “to raise or eliminate” limits on contributions to parties or candidates.
IV
In addition to its First Amendment challenge to the five regulatory provisions, EMILY’s List alternatively contends that three of the five provisions exceed the FEC’s statutory authority. See 5 U.S.C. § 706(2)(C) (agency may not act “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”). We agree.
When enacting BCRA in 2002, Congress did not authorize the FEC to restrict donations to or spending by nonprofits — even though Congress was aware that BCRA’s restrictions on political parties meant that independent non-profit groups would become more influential in the electoral process. Indeed, Senator Lieberman, speaking in the Senate at the time, anticipated that “at least some of the soft money donors who will no longer be able to give to political parties will be looking for other ways to influence our elections. Donations to 527 groups will probably top many of their lists.” 148 CONG. REC. S10779 (daily ed. Oct. 17, 2002) (statement of Sen. Lieberman). He was right. Yet in the seven years since BCRA was enacted, Congress still has not imposed limits on non-profits, apparently because of continuing constitutional and policy concerns about regulating them in such a manner.
The statutory question, therefore, is whether the FEC’s authority under the long-standing Federal Election Campaign Act justifies the challenged regulations.
Under FECA, in other words, the FEC possesses statutory authority to require a non-profit to use its hard-money account to pay for federal activities, generic activities, and mixed federal-state-local activities. See id. at 122-23,
The three regulatory provisions that EMILY’s List challenges under FECA cross the statute’s boundaries.
EMILY’s List targets one of the provisions in § 106.6(c) as exceeding the FEC’s statutory authority — namely, the part requiring covered non-profits to use their hard-money accounts to pay for 50% of their administrative expenses. This requirement applies even if more than 50% of a nonprofit’s administrative expenses are exclusively associated with state and local elections. That poses a problem because the FEC possesses no authority under FECA to require nonprofits to use their hard-money accounts for their exclusively state and local election activities. We thus concur with EMILY’s List that this provision is overbroad and “federalizes the funding and reporting of a large portion of such a committee’s nonfederal receipts and disbursements, which are not made for the purpose of influencing federal elections.” EMILY’s List Br. at 39.
Next, EMILY’s List argues that § 106.6(f) exceeds the FEC’s statutory authority. Recall that this provision requires covered non-profits to use hard money for all or part of their public communications that merely “refer” to federal candidates. See 11 C.F.R. 106.6(f). The FEC runs roughshod over the limits on its statutory authority when it presumes that any public communications that merely “refer” to a federal candidate necessarily seek to influence a federal election.
An incident illustrating § 106.6(f)’s statutory flaws occurred in 2005. EMILY’s List sought to run advertisements featuring Senator Stabenow in order to support Democratic women candidates for state legislative offices. At the time, Senator Stabenow was a candidate for reelection to the U.S. Senate in Michigan. EMILY’s List represented that the communication would not be distributed in Michigan, would not reference Senator Stabenow’s federal candidacy, would not solicit funds for her federal candidacy, and would not refer to any clearly identified non-federal candidate. Rather, it would support non-federal Democratic women candidates as a class. Nonetheless, the FEC determined that the mere reference to Senator Stabenow meant that EMILY’s List had to pay for the communications with 100% hard money. See FEC Adv. Op.2005-13, at 3-4 (Oct. 20, 2005).
Finally, EMILY’s List argues that the solicitation rule set forth in § 100.57 also exceeds the FEC’s statutory power. We agree. To reiterate, § 100.57 requires covered non-profits to treat as hard-money “contributions” all funds given in response to solicitations indicating that “any portion” of the funds received will be used to support or oppose the election of a federal candidate. 11 C.F.R. §§ 100.57(a)-(b)(l) (emphasis added). If the communication indicates that the funds will support or oppose both a federal and non-federal candidate, then at least 50% of those funds must be treated as hard money. See id. § 100.57(b)(2). The statutory defect in the rule is that, depending on the particular solicitation at issue, it requires covered non-profits to treat as hard money certain donations that are not actually made “for the purpose of influencing” federal elections.
Consider a fundraising pitch in which a non-profit such as EMILY’s List tells donors that only 10% of their gift will be used to support identified federal candidates, with the rest to exclusively support state and local candidates. Each donor fully and correctly understands that only a small portion of his or her gift will be used “for the purpose of influencing” federal elections. And yet, § 100.57 requires that at least 50% of donations in response to such a solicitation be classified as a hard-money donation subject to the $5000 cap— thereby simultaneously creating a separate $5000 cap on soft-money donations given in response to such a solicitation. This may require a non-profit to decline or return funds it receives for purely state and local elections. That is not permissible under FECA.
In short, there is a significant mismatch between these challenged provisions and the FEC’s authority under FECA. Therefore, we conclude that §§ 106.6(f) and 100.57, as well as the provision in § 106.6(c) that applies to administrative
V
Before concluding, we add a few words regarding the concurring opinion.
To begin, it is important to emphasize the area of agreement between the opinion of the Court and the concurrence. All three judges on the panel have determined that §§ 106.6(c), 106.6(f), and 100.57 are unlawful and must be vacated.
The concurrence advances two main points: (i) that under McConnell, the Federal Government constitutionally may regulate non-profits like political parties; and (ii) that we should not address the First Amendment issue in this case. Neither argument is convincing.
First, the concurrence contends that “regulation of political parties is not McConnell’s theme,” and it reads McConnell to support regulation not only of political parties but also of independent nonprofit groups. Concurring Op. at 34. As we have explained at length above, we do not find that a persuasive interpretation of McConnell. In upholding Title I of BCRA, the McConnell Court relied heavily on the “unity of interest,” “close relationship,” and “close ties” among candidates, officeholders, and political parties. The concurrence identifies no similar unity of interest between non-profits, on the one hand, and candidates, officeholders, or parties on the other. The McConnell Court also based its decision on the substantial record evidence of parties selling access in exchange for soft-money contributions. The Court repeatedly emphasized that “Congress must show concrete evidence that a particular type of financial transaction is corrupting or gives rise to the appearance of corruption.... It has done so here.” McConnell,
In our judgment, “McConnell views political parties as different in kind than independent expenditure committees.” N.C. Right to Life v. Leake,
The concurrence further contends that we have not received on-point briefing on the constitutional issue. We again respectfully disagree. The briefs and oral argument focused first and most extensively on the First Amendment and McConnell — and debated the key question in this case: For First Amendment purposes, are non-profits more like individual citizens (who under Buckley have the right to spend unlimited money to support their preferred candidates) or more like political parties (which under McConnell do not)? See Buckley v. Valeo,
The concurrence suggests, however, that our holding goes further than the submission of EMILY’s List. But EMILY’s List forcefully argued that these regulations “violate the First Amendment of the United States Constitution,” contended that McConnell and Cal-Med do not support the FEC’s approach, and asked the Court to vacate the new regulations in their entirety. EMILY’s List Br. at 19. In decid
Second, apart from its substantive disagreement with our First Amendment analysis, the concurrence states that we should resolve this case on statutory grounds alone, and claims that it is “gratuitous” for us to address the First Amendment. We respectfully but firmly disagree.
The threshold problem with the concurrence’s preferred statutory-only approach is that EMILY’s List raises a statutory challenge to only three of the five provisions at issue here. EMILY’s List does not advance a statutory challenge to the provision in § 106.6(c) requiring that covered non-profits use their federal or hard-money accounts to pay for at least 50% of their generic get-out-the-vote and voter registration activities. Nor does EMILY’s List raise a statutory challenge to the provision in § 106.6(c) requiring that covered nonprofits use hard money to pay for at least 50% of their generic communications. Compare EMILY’s List Br. at 38-39 (discussing only administrative expenses provision of § 106.6(c) in statutory section of brief) with EMILY’s List Br. at 32 (raising constitutional challenges to all provisions of § 106.6(c)). Indeed, footnote 11 of EMILY’s List’s brief all but concedes that, under the statute, the FEC may require use of hard money for these generic activities.
EMILY’s List’s decision not to target these two provisions of § 106.6(c) on statutory grounds appears wise. Such an argument would be very difficult to square with McConnell’s several pointed statements that FECA permits the FEC to treat generic activities as entirely federal for purposes of contribution and expenditure limits. In fact, McConnell harshly criticized the FEC for not having previously treated political parties’ generic activities as entirely federal activities subject to FECA’s limits. See McConnell,
Under the circumstances, we have no choice but to address EMILY’s List’s First Amendment argument. The concurrence apparently wants us to address a statutory argument that EMILY’s List did not raise and then to accept that statutory claim even though we find it unpersuasive and inconsistent with precedent. We respectfully decline the concurrence’s proposal.
So ordered.
Notes
. A hard-money account is subject to source and amount limitations. For example, under the statute, EMILY’s List cannot accept donations of more than $5000 annually into its hard-money account from any single contributor. 2 U.S.C. § 441a(a)(l)(C). A soft-money account may receive unlimited donations.
. The Court’s rejection of the equalization argument is consistent with its broader First Amendment jurisprudence: "As a general matter, the American First Amendment tradition requires that the financial, political, or rhetorical imbalance between the proponents of competing arguments is insufficient to justify government intervention to correct that imbalance." Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 77 Tex. L.Rev. 1803, 1825 (1999); see generally Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Cal. L.Rev. 1045 (1985).
. Contributions include coordinated expenditures — that is, expenditures coordinated with a candidate or party. See McConnell,
. Many have criticized the distinction between contributions and expenditures because, in their view, they are "two sides of the same First Amendment coin.” Buckley,
. The Court also has ruled that the Government may bar certain non-profit as well as for-profit corporations from making direct contributions to candidates or parties. See FEC v. Beaumont,
. The Supreme Court is presently considering whether to overrule Austin (and McConnell's reliance on it) to the extent Austin permitted the Government to limit for-profit corporations' and unions’ expenditures. See Citizens United v. FEC, No. 08-205 (S.Ct. reargued Sept. 9, 2009); cf. Austin,
. In referring to non-profit entities, we mean non-connected non-profit corporations (usually advocacy or ideological or politically oriented non-profits) that engage in election-related activities and register with the Internal Revenue Service under 26 U.S.C. § 527 or § 501(c), as well as unincorporated non-profit groups. "Non-connected” means that the non-profit is not a candidate committee, a party committee, or a committee established by a corporation or labor union. See 11 C.F.R. § 106.6(a). “Non-connected” for purposes of this opinion also excludes so-called leadership PACs.
Some non-profits register with the FEC as political committees; others do not. Our constitutional analysis of donations to and spending by non-connected non-profits applies regardless whether a non-profit has registered as a political committee with the FEC. See infra note 15.
. In Cal-Med, there was no majority opinion on the First Amendment issue. Under the Marks principle, Justice Blackmun’s opinion in Cal-Med appears to be controlling. See Marks v. United States,
. To be sure, some cases suggest that the First Amendment interest in donating to someone else for speech, while important, is less weighty than the First Amendment interest in speaking oneself. But those cases involve contributions to candidates or parties. See Buckley,
. The requirement that certain administrative expenses be funded in part with hard money prevents a contributor from essentially taking control of a non-profit and thereby circumventing limits on individual contributions to candidates. See Cal-Med,
. One additional wrinkle: To the extent a non-profit receives donations from for-profit corporations or unions, those donations cannot be placed in the non-profit’s hard-money account (because for-profit corporate or union donations cannot be the source of contributions to parties or candidates). Moreover, under Austin, the soft-money account into which such donations are deposited cannot be used to fund express-advocacy election activi
. See generally McConnell,
. Some have suggested that footnote 48 of the McConnell opinion, in the course of discussing contributions to parties, subtly re-interpreted Cal-Med to permit restrictions on large soft-money donations to non-profits. See, e.g., Edward B. Foley & Donald Tobin, The New Loophole?: 527s, Political Committees, and McCain-Feingold, BNA Money & Pol. Rep., Jan. 7, 2004; Memorandum from Prof. Daniel R. Ortiz, Univ. of Va. School of Law, to Democracy 21 and the Campaign Legal Center (Apr. 9, 2004). We decline to adopt that expansive reading of footnote 48.
First, as explained by one leading election-law expert, such a reading would require overruling the Supreme Court's longstanding dichotomy between limits on contributions and expenditures. See Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. Pa. L.Rev. 31, 70 (2004). Limits on donations to non-profit entities are analytically akin to limits on expenditures by the donors. See Cal-Med,
Second, footnote 48 simply cited Cal-Med together with Buckley in the course of establishing the constitutionality of limits on contributions to political parties, not to non-profits (which the Court had no need to address). In the key concluding sentence in the footnote, the Court rejected the idea that the government could only regulate "parties as pass-throughs.” McConnell,
Third, in a later passage in the McConnell opinion, the Court explained that, under the statute, "[ijnterest groups ... remain free to raise soft money to fund voter registration, GOTV activities, mailings,” and advertisements.
Fourth, the Fourth Circuit in North Carolina Right to Life refused to adopt this broad reading of footnote 48; it eschewed the dissenting judge's extensive reliance on it. See
In short, we decline to read this footnote addressing a different issue in McConnell to indirectly (i) overrule Buckley, (ii) discard Justice Blackmun’s opinion in Cal-Med, and (iii) equate non-profits with political parties, contrary to other discussion in McConnell.
. We need not decide whether the regulations are subject to the strictest scrutiny applicable to spending restrictions or the still "rigorous” but slightly lesser "closely drawn” scrutiny applicable to contribution restrictions. See generally Davis v. FEC, - U.S. -,
. The regulations apply only to those nonprofits that must register with the FEC as political committees — namely, groups that receive or spend more than $1000 annually for the purpose of influencing a federal election and whose "major purpose” involves federal elections. Buckley,
. This case does not involve reporting and disclosure obligations. The Government has a freer hand in imposing reporting and disclosure requirements than it does in limiting contributions and expenditures. See McConnell v. FEC,
. As explained earlier in this opinion, those approaches run into severe First Amendment obstacles. For purposes of this discussion, however, we analyze the statute as written without regard to constitutional implications.
. As discussed above, § 106.6(c) also requires non-profits to use their federal or hard-money accounts to pay for (i) at least 50% of their generic get-out-the vote and voter registration activities and (ii) at least 50% of their generic communications, which refer to a party but not a candidate. In its brief, EMILY’s List does not raise statutory challenges to those two provisions. See EMILY’s List Br. at 35-40; id. at 38 (challenging under the statute only that provision in § 106.6(c) that sets forth a " ‘Minimum Percentages' Rule for Administrative Costs”). Presumably, EMILY’s List has not challenged these two provisions under FECA because McConnell indicated that these generic activities qualify under the statute as activities and communications "for the purpose of influencing” federal elections. See McConnell,
. The original FEC proposal was far narrower and would have covered only communica
. EMILY’s List separately argues that three of the five regulatory provisions at issue in this case are also arbitrary and capricious under the Administrative Prоcedure Act. EMILY’s List Br. at 40-44. We are less persuaded by EMILY’s List’s freestanding arbitrary and capricious argument. Putting aside the constitutional and statutory-authority problems with the challenged rules, the provisions are not otherwise arbitrary and capricious. Agencies generally do not violate the APA’s deferential arbitrary-and-capricious standard when they employ bright-line rules for reasons of administrative convenience, so long as those rules fall within a zone of reasonableness and are reasonably explained. See, e.g., ExxonMobil Gas Mktg. Co. v. FERC,
EMILY’s List does not bring a challenge under either FECA or the APA to § 106.6(c)'s requirement that covered non-profits pay at least 50% of the cost of their generic communications out of their hard-money accounts. See EMILY's List Br. at 35-44. EMILY’s List raises only a constitutional challenge to that provision.
. The concurrence notes that McConnell upheld § 323(f) of BCRA, which prohibits state and local candidates and officeholders from using soft money for communications that promote, support, attack, or oppose a federal candidate. We fail to see how this aspect of McConnell justifies upholding limits on nonprofits. McConnell, as we read it, relied in part on the fact that officeholders, candidates, and parties at all levels share a close relationship and apparent unity of interest. And the
The concurrence also raises concern about the activities of non-profit committees that are “closely aligned” with federal candidates. Concurring Op. at 36-37. But our constitutional analysis of non-profits applies only to non-connected non-profits. See 11 C.F.R. § 106.6(a); supra note 7. Moreover, expenditures by individuals or non-profits that are coordinated with a candidate may be considered contributions to that candidate.
. The concurrence finds "perplexing[ ]" our reading of McConnell's statutory discussion. Concurring Op. at 30. We think it's straightforward. McConnell said the statutory phrase "for the purpose of influencing” federal elections covers generic activities. McConnell,
. Even if EMILY’s List had рut forward meritorious statutory challenges to all of the regulatory provisions that it has challenged under the First Amendment, we still would possess discretion to rule in the alternative on both statutory and constitutional grounds. The avoidance principle cited by the concurrence is prudential, not jurisdictional. And it is not
Given that the complaint in this case was filed four and a half years ago, that the parties and the District Court overwhelmingly focused their attention on the constitutional issue, that resolution of the case only on statutory grounds would not alleviate the continuing legal uncertainty, and that this is an area of law demanding prompt and clear judicial decisionmaking, it would not be an inappropriate exercise of judicial discretion for an intermediate court to resolve this case on alternative constitutional and statutory grounds.
In any event, we need not cross that discretionary bridge here because, as we have explained, we must address the Constitution's application to non-profits' election-related spending and fundraising in order to resolve the appeal.
Concurrence Opinion
concurring in part:
“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin,
I.
A.
Though I do not join their First Amendment holding, I agree with my colleagues’ conclusion that we must vacate the regulations challenged here (the Multiple Candidate Allocation Regulation, 11 C.F.R. § 106.6(f); the Solicitation Regulation, 11 C.F.R. § 100.57; and the Administrative Costs Allocation Regulation, 11 C.F.R. § 106.6(c)). I begin with first principles. The Federal Election Commission (FEC) is an agency within the Executive Branch.
By the plain language of the Federal Election Campaign Act (FECA), the FEC lacks the power it now asserts. To fall within FEC jurisdiction, a “gift, subscription, loan, advance, or deposit of money or anything of value” must be provided to a political committee “for the purpose of influencing any election for Federal office,” 2 U.S.C. § 431(8)(A)(i), and any money expended by such a committee must also have been done for that same purpose, id. § 431(9)(A)(i). There is no other reasonable way to read Congress’s words. For the FEC to have any role, money must be used for the “purpose”' — defined as an “objective, goal, or end,” Black’s Law Dictionary 1356 (9th ed.2009) — of “influencing” an “election for Federal office.” The inescapable corollary is the FEC has no authority over money given or spent “solely for the purpose of influencing state or local elections,” an activity “unaffected by FECA’s requirements and prohibitions.” McConnell,
Here, the FEC has set aside Congress’s command that the agency’s jurisdiction be bounded by the “purpose” for which money is spent. Instead of strictly minding this jurisdictional marker, the FEC conclusively presumes a federal purpose drives any spending that might influence a federal election.
Nor does labeling spending that may affect both state and federal elections as “mixed-purpose” somehow solve the FEC’s problem. Regulating on the basis of such a label still assumes therе must be a federal purpose behind any spending that might influence, even tangentially, a federal campaign. Because that necessary assumption is false, these regulations remain invalid. Only after a federal purpose. — mixed or otherwise — is identified does the FEC’s power come into play. If a federal purpose can be shown, then allocation ratios like those promulgated here may well be appropriate under FECA, but just asserting that there must be a federal purpose skips the threshold jurisdictional question.
These regulations give short shrift to the “purpose” of spending and so must be vacated. Indeed, we have already rejected the FEC’s view. Just fours years ago, in Shays v. FEC, we held FECA requires that “to qualify as ‘expenditure’ in the first place, spending must be undertaken ‘for the purpose of influencing’ a federal election” and agreed with the FEC that “time, place, and content may be critical indicia of communicative purpose.”
election-related intent is obvious ... in statements urging voters to “elect” or “defeat” a specified candidate or party, the same may not be true of ads identifying a federal politician but focusing on pending legislation — a proposed budget, for example, or government reform initiatives — and appearing three years before the next election. Nor is such purpose necessarily evident in statements referring, say, to a Connecticut senator but running only in San Francisco media markets.
Id.
Shays confirms what FECA says: context matters. Referencing a federal candidate “may” reveal a federal purpose, but if an ad will not be aired to her constituents or if it will run “years before the next election,” then absent some persuasive indicia of a federal purpose, a reference by itself to the candidate does not trigger FEC jurisdiction. This was the FEC’s position in Shays, and it should be the FEC’s position now. FECA’s unambiguous text requires no less.
Under the Multiple Candidate Allocation Regulation, political committees must use hard money for “[pjublic communications that refer to one or more clearly identified Federal candidates, regardless of whether there is reference to a political party, but do not refer to any clearly identified non-Federal candidates.” 11 C.F.R. § 106.6(f)(1). The rule is categorical. Even if a communication only says “Vote No on State Ballot Initiative 123 — They Waste Enough Taxes in Washingtоn, D.C.,” merely referring (perhaps by means of a montage of grainy black-and-white photos) to United States Senators of both parties with a penchant for pork-barrel spending, the ad is per se deemed to have a federal purpose. This is true even if those big spenders hail from distant states, are not up for reelection for years, and the spot will not be shown anywhere near their voters. Whether such an ad could affect a federal race is doubtful, but the FEC goes further and says these ads always reflect a federal purpose. In an age when even pizza shops and used-car dealers invoke the stereotype of wasteful federal spending to sell their wares, the FEC’s lack of sophistication is startling.
The FEC’s approach also ignores that a state campaign may be more effective if the campaigning group can mention a federal official’s endorsement. Many federal politicians are of national stature, particularly those associated with hot button political issues. If, for example, a referen
The Solicitation Regulation respects Congress’s language no better. The regulation declares any donation “made by any person in response to any communication is a contribution to the person making the communication if the communication indicates that any portion of the funds received will be used to support or oppose the elеction of a clearly identified Federal candidate.” 11 C.F.R. § 100.57(a). This rule applies even if a solicitation’s banner headline says only a certain percentage of the donation will be used for federal activities. Hence, even if someone gives $1000 in response to a solicitation that unambiguously says 90% of what is received will be spent on local elections, the FEC asserts jurisdiction over the entire gift. If a gift is made subject to this disclaimer, how is the full $1000 given for the purpose of influencing a federal election?
The Solicitation Regulation also says “[i]f the solicitation does not refer to any clearly identified non-Federal candidates, but does refer to a political party, in addition to [a] clearly identified Federal candidate,” then the entire gift becomes subject to the FEC’s authority, id. § 100.57(b)(1), and “[i]f the solicitation refers to one or more clearly identified non-Federal candidates, in addition to [a] clearly identified Federal candidate ..., at least fifty percent (50%) of the total funds received are contributions [subject to the FEC], whether or not the solicitation refers to a political party,” id. § 100.57(b)(2). Even if the solicitation is unmistakable that the entire gift will be spent on local elections, the FEC nonetheless still claims jurisdiction over at least some of the resulting donations.
This blindingly-bright line suffers from the same flaw as the Multiple Candidate Allocation Regulation-, it assumes merely referencing a federal candidate always unmasks a purpose of influencing a federal election and assumes those who give money in response to such a solicitation also unfailingly do so for the same purpose. That’s just not true. Instead, a federal politician’s name can be used for reasons tied solely to state electioneering. Again, consider an out-of-state and out-of-cycle Senator Stabenow. If she were to say “EMILY’s List supported a Democrat like me when I was running for state office, and I’m asking you to support EMILY’s List now so it can continue to work on behalf of women who are seeking state
Finally, the Administrative Costs Allocation Regulation is contrary to law. Under 11 C.F.R. § 106.6(c), committees must use “at least 50 percent Federal funds” for “administrative expenses, costs of generic voter drives, and costs of public communications that refer to any political party.” An obvious problem is this rule applies in odd-numbered years when there are no federal elections. If later this November EMILY’s List were to say “vote a straight Democratic ticket for the city counsel” in a broadcast in Walla Walla, Washington, no less than half of the cost would have to be expensed to a federal account, even though there is no federal race to influence. The FEC is explicit: if a communication mentions a political party, then context is irrelevant. See FEC Advisory Op. 2005-13, at 4-5 (Oct. 20, 2005) (the duty to “pay the costs of public communications that refer to a political party with at least 50 percent Federal funds does not change based on the activities of [the committee] in the particular State”).
Contrary to this regulation’s premise, moreover, certain “administrative expenses” do not always reflect a federal purpose, mixed or otherwise. A committee, for example, that opposes human cloning (and thus supports many different state and federal candidates and laws throughout the nation) may launch an outpost in a state that is considering an anti-cloning measure and organize a voter drive there,
The court says EMILYs List has waived part of its statutory claim. First, my colleagues concede EMILY’s List has challenged every other subpart of these regulations, and agree the FEC has exceeded its statutory powers, but say be
Second and even more perplexingly, in order to buttress its waiver argument, the same judges that read McConnell narrowly as a case that “views political parties as different in kind than independent expenditure committees,” Maj. Op. at 14, concludes EMILY’s List could not have suecessfully challenged § 106.6(c)’s regulation of generic activities on statutory grounds because McConnell specifically approved regulation of contribution and expenditure limits for these funds. Id. at 23. If this were correct, it would mean the FEC can constitutionally regulate a committee like EMILY’s List, and the court’s constitutional analysis is critically undermined.
C.
No one disputes the FEC can craft bright-line rules. An “objective test,” Orloski v. FEC,
II.
A.
Because this ease can be decided on statutory grounds, we need not reach the
The reasons to be “keenly mindful of our institutional role” and “fully appreciate” the solemnity of constitutional adjudication are obvious. Nw. Austin Mun. Util. Dist. No. One v. Holder, — U.S. -,
The court, however, is not content just answering a gratuitous constitutional question. Its holding is broader than even the plaintiff requests. Instead of arguing nonprofits have a constitutional right to pay for ads attacking federal candidates with soft money, EMILY’s List more modestly challenges the regulations as the “functional equivalent of spending limits, prohibiting EMILY’s List from supporting state and local candidates in certain ways when its federal funds are exhausted” and claims they are not properly tailored because they “restrict vast amounts of nonfederal activity.” EMILY’s List Br. at 17 (summary of argument) (emphasis added). The court holds, nonetheless, that EMILY’s List is constitutionally entitled to pay 100% of the costs of its advertisements out of a soft-money account, even for ads that attack or promote federal candidates. Maj. Op. at 17.
Because EMILY’s List’s actual claims are not bold enough, the court sua sponte spins a more aggressive argument — making its waiver charge all the more curious. Nowhere does any party refer to Justice Blackmun’s separate opinion in California Medical Association v. FEC,
In attempting to connect its decision to the parties’ views, the court artfully re-imagines the “key question in this case,” describing it as whether “non-profits [are] more like individual citizens (who under Buckley have the right to spend unlimited money ...) or more like political parties (which under McConnell do not).” Maj. Op. at 23. The court notes “CaV-Med was cited and discussed often in the briefs and at oral argument.” Id. at 23. Cal-Med was cited and discussed by the parties, but never to support the proposition for which the court now relies on it. For instance, when asked by the court to respond to the FEC’s reliance on CaV-Med, counsel for EMILY’s List offered this succinct critique of the court’s holding:
The Court: Can you deal with [FEC’s counsel’s] response on [CaV-MedJ!
EMILY’s List: Yes. I mean, Cal[-]Med is mysteriously produced here for the FEC’s position. Cal[-]Med didn’t raise any of the issues in this case. Cal[-]Med was a simple question of whether a committee that was making contributions to federal candidates had to observe a limit on contributions made to that federal program. That set a law now, that’s certainly what EMILY’s List does. I don’t think it bears at all on this invasion of our state and local programs through the promulgation of these excessive federal regulatory schemes.
Tr. of Oral Arg. at 32-33. How true.
But even if it were judicially proper for me to do so, and even if the issues were briefed, I doubt I could join the court’s opinion in full. This is not because I dislike its outcome. Indeed, I ■ agree .with what seems to be the unstated premise: if the Supreme Court’s cases made any sense, the First Amendment would protect much more than pornography, profanity,
My colleagues’ distaste for the FEC’s handiwork is to their credit. It shows they take the First Amendment seriously. And they are right, of course, that if constitutional law were better acquainted with the Constitution, regulations such as these would never survive Article III scrutiny. If an advertisement criticizes the President of the United States, the Speaker of the House of Representatives, or the Chair of the Senate Committee on Foreign Relations, it can be a felony punishable by up to five years in prison to pay for that ad using money the federal government doesn’t know about or that comes from sources the federal government deems to have already given enough. See 2 U.S.C. § 437g(d). The First Amendment, logically construed, cannot condone such a weighty burden on political speech at the same time it forbids penalizing the production of “virtual child pornography,” Ashcroft v. Free Speech Coal.,
I also agree with the court that “corruption” should only be understood in terms of quid pro quo — not a free-floating unease about money in politics. Once “corruption” is disconnected from “pay to play,” Congress has carte blanche to stifle speech, a license that is particularly pernicious as our overweening government ever enlarges itself. Power — government power — is what generates passion in politics. Money only measures its depth. The more power is at stake, the more money will be used to shield, deflect, or co-opt it. So long as the government can take and redistribute a man’s livelihood, there will always be money in politics. One man’s corruption is another man’s political accountability.
But there is a rub. We sit on a lower court and “must follow the binding Supreme Court precedent” until the Court itself overrules it. We the People Found., Inc. v. United States,
Modesty is dictated by the difficulty of applying McConnell’s facial generalizations to real world events. It is hard to say exactly how contribution limits on hybrid committees, like EMILY’S List, should be analyzed after McConnell. McConnell involved a wide-ranging facial challenge addressing the constitutionality of BCRA.
In both holding and discussion, the McConnell Court sided with the censor, going so far as to rely on theoretical anticipation to uphold a speech restriction, see
It is true McConnell upheld, against an equal protection challenge, a provision of BCRA regulating political parties. But regulation of political parties is not McConnell’s theme. The Court broadly recognized and deferred to governmental interests in preventing corruption, the appearance of corruption, and circumvention of election regulations. McConnell,
Whether, under the high court’s current precedents, EMILY’s List could be regulated exactly like a political party is unknown. That it should not be regulated more harshly than a political party seems to be the committee’s complaint with the FEC regulations challenged in this court. EMILY’s List Br. at 39 (“Bizarrely, [the regulation] also treats nonparty PACs more harshly than any other type of committee, save national parties and candidates themselves.”). My point is not that McConnell mandates such treatment; only that nothing in the opinion’s logic clearly precludes it. The court does not think this is “a persuasive interpretation of McConnell.” Maj. Op. at 22. Perhaps the court is right. But reading the case, as the court does, to sanction First Amendment immunity for all non-connected nonprofits seems even more implausible.
B.
Precedent holds allocation and solicitation rules are contribution limits. This is key, as such limits receive less than “strict scrutiny,” given they “ ‘entail only a marginal restriction upon the contributor’s ability to engage in free-communication.’ ” McConnell,
After McConnell, allocation and solicitation rules are subject only to this lesser scrutiny. Facing BCRA § 323(a), which forbids national parties from soliciting and spending soft money, and § 323(b), which forbids state parties from spending soft money on “federal election activities,” the Court declined to apply strict scrutiny.
The issue we confront then is whether these regulations, facially, are closely drawn to match an important interest. To answer, we again ought to look to McConnell. In upholding BCRA § 323, the Court noted the “interests that underlie contribution limits — interests in preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” McConnell,
Following from such an encompassing statement of the interest, the McConnell Court facially upheld many onerous restrictions on the use of soft money. The Court emphasized, for example, that even a complete ban on soliciting nonfederal funds would still “leave open ample opportunities for soliciting federal funds,” and noted such restrictions “increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors.” Id. at 139-40, 124 S.Ct.' 619. The Court also upheld a ban on any use of soft money by national parties, even for those “minor parties” that are unlikely to have any tangible electoral success, remarking only that “a nascent or struggling minor party can bring an as-applied challenge if § 323(a) prevents it from amassing the resources necessary for effective advocacy.” Id. at 159,
The Court’s discussion of national parties by itself raises difficulties for the court, especially because the Court already seemingly has held there is a “close connection and alignment of interests” between committees like EMILY’s List and federal candidates. In Cal-Med, the Court sustained contribution limits to multicandidate committees. Four justices adopted the Conference Report’s conclusion that these committees may “ ‘appear to be separate entities pursuing their own ends, but are actually a means for advancing a candidate’s campaign,’ ” 453 U.S. at
The court disputes this reading of CalMed, claiming there are not just two types of political committees (ones that only make independent expenditures, and all others), but actually three: (1) those that only make independent expenditures; (2) those that only contribute to candidates; and (3) those that make independent expenditures and contribute to candidates. Such political committees are, in the court’s view, entitled to raise and spend “unlimited money” for advertisements, get-out-the-vote efforts, and voter registration drives. Maj. Op. at 16. If these hybrid committees contribute to federal candidates, they must use hard money, says the court, but all other spending can be with soft money.
This novel argument is not without considerable charm, but one must read CalMed with a squint to see that holding.
The infamous “footnote 48 of the McConnell opinion,” Maj. Op. at 14 n. 13, also flatly contradicts the court:
Justice Kennedy’s contention that Buckley limits Congress to regulating contri*38 buttons to a candidate ignores Buckley itself. There, we upheld FECA’s $25,000 limit on aggregate yearly contributions to candidates, political committees, and party committees out of recognition that FECA’s $1,000 limit on candidate contributions would be meaningless if individuals could instead make “huge contributions to the candidate’s political party.” Likewise, in [Calr-Med], we upheld FECA’s $5,000 limit on contributions to multicandidate political committees. It is no answer to say that such limits were justified as a means of preventing individuals from using parties and political committees as passthroughs to circumvent FECA’s $1,000 limit on individual contributions to candidates. Given FECA’s definition of “contribution,” the $5,000 and $25,000 limits restricted not only the source and amount of funds available to parties and political committees to make candidate contributions, but also the source and amount of funds available to engage in express advocacy and numerous other noncoordinated expenditures. If indeed the First Amendment prohibited Congress from regulating contributions to fund the latter, the otherwise-easy-to-remedy exploitation of parties as passthroughs (e.g., a strict limit on donations that could be used to fund candidate contributions) would have provided insufficient justification for such over-broad legislation.
McConnell,
That the Court may have created a doctrinal anomaly might suggest, as the court argues, see Maj. Op. at 14-15 n. 13, that it could not possibly have meant what it said, but that is a hard argument to make. Often cases are in tension as doctrine works itself pure. Our duty as an intermediate court is not to tell the Court what it ought to have said, but to abide by what it did say.
But even leaving aside its treatment of national parties, McConnell further undermines the court. Recognizing the dynamic — indeed, Sisyphean — character of campaign finance law, the Court noted “[mjoney, like water, will always find an outlet.”
The court sidesteps McConnell by saying EMILY’s List is a nonprofit, not a political party, and so has more constitutional rights.
The court’s opinion is boldly creative, and will, if followed, have profound results on campaign finance regulation. This case means:
1. Multicandidate political committees can spend unlimited amounts of soft money to run ads attacking or supporting federal candidates and political parties.
2. These committees can spend unlimited amounts of soft money on get-out-the-vote activities that support federal candidates and political parties.
3. These committees can solicit soft money by saying: “Just like you, we want [federal candidate] to win. You have already donated all the law allows to [federal candidate], but there is no limit on how much you can give to us to support [federal candidate].”
4. Congress can do nothing about any of this.
These results are in tension — -perhaps irreconcilable tension — -with McConnell.
C.
Recall how the Court in McConnell concluded its opinion: “ ‘To say that Congress is without power to pass appropriate legislation to safeguard an election from the improper use of money to influence the result is to deny the nation in a vital particular the power of self protection.’ ”
While I have argued courts should not unnecessarily assail legislative acts, political speech is the core of what the First Amendment protects. From Buckley to McConnell the Court has relied on an ad hoc empiricism ill-suited to the complex interactions of democratic politics. The government has unlimited resources, public and private, for touting its policy agenda. Those on the outside- — whether voices of opposition, encouragement, or innovation — must rely on private wealth to make their voices heard. An increasingly anomalous campaign finance jurisprudence only impoverishes this essential debate. McConnell’s careless invocation of access and influence (two integral aspects of political participation) as synonyms for corruption is instructive. Such an expansive, self-referential, and amorphous definition of corruption, coupled with lax standards of scrutiny and a willingness to accept as “evidence” any plausible theory of corruption or claim of circumvention, is likely to doom any argument for protection of core political speech. Someday the Supreme Court may be persuaded to reconsider this approach. But that cannot be our task.
This should have been a straightforward application of administrative law, not unlike countless agency cases decided by this circuit every year. Congress has- enacted a statute; the agency has violated it; the rules must be vacated; done. I would enforce the statute as written and call it a day. A good rule of thumb is we often do more for the law when we do less with the law. Per that rule, I concur only in part with the court’s opinion.
. See, e.g., Political Committee Status, Definition of Contribution, and Allocation for Separate Segregated Funds and Nonconnected Committees, 69 Fed.Reg. 68,056, 68, 062 (Nov. 23, 2004) (Final Rules) ("[References solely to a political party inherently influence both Federal and non-Federal elections.”).
. Cf. 42 U.S.C. § 1973c (under the Voting Rights Act, certain jurisdictions cannot alter their voting procedures without showing the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” (emphasis added)).
. It is also no defense to say that under Buckley v. Valeo,
. "[R]eferring to Senator Stabenow might well inspire recipients outside of her home state to contribute to her campaign, and thus influence her federal election, or might otherwise raise her national profile and ultimately influence her election,” EMILY’s List, 569 F.Supp.2d. at 48, but if such speculative brainstorming can satisfy FECA’s "purpose” requirement, there is no “purpose” requirement.
. My hypothetical is similar to one EMILY's List posed to the FEC, with the only material difference being the inclusion of a party label. While the FEC said EMILY's List’s solicitation was fine, see FEC Advisory Op. 2005-13, at 5-6 (Oct. 20, 2005), it could not have said the same for mine: including "Democrat”— an important label in state politics too— causes the gift to be hard money.
. A "generic voter drive” includes "any ... activities that urge the general public to ... support candidates ... associated with a particular issue, without mentioning a specific candidate.” 11 C.F.R. § 106.6(b)(l)(iii) (emphasis added). Thus, if a committee says "support candidates for the General Assembly who oppose human cloning” in an odd-numbered year, hard money is required.
. "Generic party advertising” is not in the United States Code or the Code of Federal Regulations. It was used by the McConnell district court to mean, naturally, ads that support a party. See
. Even if we assume EMILY's List has inadequately raised this issue, waiver is a prudential doctrine — not jurisdictional. E.g., Mitchell v. Fishbein,
. Consistent with its briefing, during oral argument counsel for EMILY's List was more circumspect than the court is today:
The Court: Would your position preclude say regulation of get out the vote drives, or voter registration, or that sort of thing? Do you think that would be beyond the FEC's purview?
EMILY’s List: No, Your Honor, we don’t take that position, we take the position that reasonable regulations to account for the federal election related impact of that activity are permissible.
Tr. of Oral Arg. at 9. Cf. Maj. Op. at 16 (”[N]on-profits are constitutionally entitled to pay 100% of the costs of such voter drive activities out of their soft-money accounts.”).
. In fact, EMILY’s List does not mention Cal-Med until its reply brief, and neither party cites Cal-Med for a proposition integral to the court's holding. EMILY’s List does cite, once, as a “see also,” Citizens Against Rent Control v. City of Berkeley,
. Many of the articles do not support the court, and not one squarely does. E.g., Edward B. Foley, The “Major Purpose" Test: Distinguishing Between Election-Focused and Issue-Focused Groups, 31 N. Ky L.Rev. 341, 344 (2004) ("[I]n my judgment contributions to political committees should be classified under the First Amendment with contributions to political parties....”); Richard L. Hasen, Buckley is Dead, Long Live Buckley, 153 U. Pa. L.Rev. 31, 72 (2004) (explaining that because of the “considerable deference” it displayed, “[ljower courts showing fidelity to McConnell will have a difficult time striking down most campaign finance regulation”).
. This a facial challenge. For such claims, "exercising judicial restraint ... frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in arеas where their constitutional application might be cloudy.” Wash. State Grange v. Wash. State Republican Party,
"is unconstitutional in all of its applications,” but there is a narrow First Amendment exception where "a law may be overturned [if] a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep,” id. at 1191 n. 6. Those seeking this "strong medicine,” id., however, face a "heavy burden,” McConnell,540 U.S. at 207 ,124 S.Ct. 619 .
. In defining ils mission, EMILY's List explains that it "is committed to a three-pronged strategy to elect pro-choice Democratic women: recruiting and funding viable women candidates; helping them build and run effective campaign organizations; and mobilizing women voters to help elect progressive candidates across the nation.” EMILY's List, Our Mission, http://emilyslist.org/ about/mission/ (last visited Aug. 28, 2009).
. The court relies heavily on Justice Black-mun's concurring opinion in Cal-Med, arguing that it is controlling. But the opinion is controlling, if at all, only for "points that can be said to be fairly subsumed within the reasoning of the plurality.” John C. Eastman, Strictly Scrutinizing Campaign Finance Restrictions (and the Courts that Judge Them), 50 Cath. U.L. Rev. 13, 37 (2000); see Marks v. United States,
. Britt Cocanour, EMILY’s List Chief of Staff, avowed her committee "has helped to elect sixty-eight Democratic women to Congress, thirteen to the U.S. Senate, eight to
. The court suggests McConnell guarantees " 'interest groups' ” the right " 'to raise soft money to fund voter registration, GOTV activities, mailings,’ and advertising.” Maj. Op. at 14 (quoting
. Though these regulations go further than BCRA § 323(0, by the court's opinion, it would not matter if they were exactly the same: nonprofits are categorically distinct. See Maj. Op. at 14.