EMILY's LIST v. FEC (district court)

On July 31, 2008, the U.S. District Court for the District of Columbia denied EMILY's List's motion for summary judgment and granted the FEC's cross-motion for summary judgment.

Background

EMILY's List is a nonconnected political committee registered with the FEC. In January 2005, EMILY's List filed suit in the U.S. District Court for the District of Columbia, asserting a facial challenge to regulations promulgated by the FEC to implement provisions of the Federal Election Campaign Act (the Act).

The regulations at issue established a new rule for when funds received by political committees in response to certain solicitations must be treated as "contributions" under the Act and thereby must abide by federal limitations and prohibitions. The regulations also modified the Commission's rules regarding how political committees may allocate spending between federal and nonfederal accounts.

Under current FEC rules, nonconnected political committees that maintain both federal and nonfederal accounts may allocate administrative expenses, costs of generic voter drives and costs of public communications that refer to a political party but not to specific candidates with a minimum of 50 percent federal funds. (The remainder may be allocated to the nonfederal account). 11 CFR 106.6. Public communications and voter drives that refer to one or more clearly identified federal candidates, but not to any nonfederal candidates, must be financed with 100 percent federal funds. 11 CFR 106.6(f)(1). Public communications and voter drives that refer to one or more clearly identified nonfederal candidates but do not refer to any federal candidates may be financed with 100 percent nonfederal funds. 11 CFR 106.6(f)(2).

With regard to solicitations, Commission regulations state that funds received in response to a solicitation must be considered federal "contributions" under the Act if the communication indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified federal candidate. 11 CFR 100.57(a). Likewise, if a solicitation refers to a clearly identified federal candidate and a political party, but not to a clearly identified nonfederal candidate, all funds received in response are considered contributions. 11 CFR 100.57(b)(1). In contrast however, if the solicitation refers to one or more clearly identified nonfederal candidates, in addition to a clearly identified federal candidate, at least 50 percent of the funds received must be treated as contributions under the Act, regardless of whether the solicitation also refers to a political party. 100.57(b)(2).

EMILY's List sought to enjoin enforcement of the regulations, alleging that each was in excess of the Commission's authority, was arbitrary and capricious, was promulgated without adequate notice under the Administrative Procedures Act (APA) and violated the First Amendment to the Constitution. On February 25, 2005, the court denied EMILY's List's motion for a preliminary injunction, which was subsequently affirmed on appeal on December 22, 2005. See the April 2005 and February 2006 Record.

Court decision on summary judgment

The court held that EMILY's List has standing to challenge both the rule regarding how political committees must treat funds received in response to certain solicitations and the rules for how federal and nonfederal activities must be allocated. EMILY's List brings a facial challenge to the rules rather than an "as-applied" challenge, asserting that the rules are overly broad under the First Amendment because "an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face."

The court also held that the allocation and contribution limits that EMILY's List challenged in this case are contribution limits, which are subject to lesser scrutiny than the "strict scrutiny" standard that is typically applied to limits on campaign expenditures. The Supreme Court has "recognized that contribution limits, unlike limits on expenditures, ‘entail only a marginal restriction upon the contributor's ability to engage in free communication.'" Moreover, contribution limits do not pose the same danger to associational rights as expenditure restrictions because the "overall effect of dollar limits on contributions is merely to require candidates and political committees to raise funds from a greater number of persons."

The district court held in this case that the challenged solicitation and allocation regulations serve the governmental interest of preventing corruption and the appearance of corruption by foreclosing the circumvention of the Act's contribution limits. The court held that EMILY's List cannot establish that the FEC's allocation regulations are facially overbroad since the regulations are closely drawn to match the sufficiently important interests of preventing corruption and the appearance of corruption by preventing the use of nonfederal funds for communications that may influence federal elections. The court also held that the solicitation regulations are closely drawn to match sufficiently important government interests and thus must be upheld under a lesser scrutiny standard. The court denied EMILY's List's motion for summary judgment and granted the FEC's cross-motion for summary judgment.

U.S. District Court for the District of Columbia, 1:05CV00049.