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List v. Federal Election Commission

July 31, 2008

EMILY'S LIST, PLAINTIFF,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court are cross-motions for summary judgment filed by Plaintiff, EMILY's List, an organization that recruits and funds pro-choice women candidates for political office, and Defendant, the Federal Election Commission ("FEC" or "Commission"). EMILY's List, a political committee registered with the FEC, commenced this action by filing a Complaint and Motion for Preliminary Injunction in January 2005, asserting a facial challenge to regulations promulgated by the Commission to implement the provisions of the Federal Election Campaign Act of 1971, Pub.L. No. 92-255, 86 Stat. 3, ("FECA"), as amended by the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 ("BCRA"). The challenged regulations established a new rule for when funds received by political committees in response to certain solicitations must be treated as "contributions" under FECA and modified the Commission's rules governing how political committees may allocate spending between federal and nonfederal accounts.*fn1 EMILY's List sought to enjoin the enforcement of the regulations, which went into effect in January 2005, 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"), 5 U.S.C. § 706(2), and violated the First Amendment to the United States Constitution. On February 25, 2005, the Court issued a Memorandum Opinion and Order denying EMILY's List's motion for preliminary injunction, which was subsequently affirmed on appeal. See EMILY's List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005) (hereinafter "PI Mem. Op."), aff'd 170 Fed. App'x. 719 (Dec. 22, 2005).

The parties then proceeded to brief cross-motions for summary judgment; however, in June 2007, the United States Supreme Court issued its opinion in FEC v. Wisconsin Right to Life, 127 S.Ct. 2652 (2007) ("WRTL"),*fn2 which significantly impacted a number of the arguments raised by the parties in their then-pending cross-motions for summary judgment. Accordingly, the Court denied the parties' initial cross-motions for summary judgment without prejudice and ordered the parties to file revised briefing that accurately reflected the state of the law. See 7/12/07 Order, Docket No. [29]. Those revised cross-motions for summary judgment are now ripe, and the Court has conducted a searching review of the parties' briefs, the exhibits attached thereto, the brief filed by amici curiae Senators John McCain and Russell Feingold, Representative Christopher Shays, Democracy 21, and the Campaign Legal Center in opposition to Plaintiff's revised motion for summary judgment, the relevant statutes and case law, and the entire record herein. Based on the foregoing, the Court shall DENY [32] EMILY's List's Motion for Summary Judgment and shall GRANT [34] the Commission's Cross-Motion for Summary Judgment.

I. BACKGROUND

The events, statutes, and case law relevant to this opinion are largely addressed in the Court's February 25, 2005 Memorandum Opinion denying EMILY's List's motion for preliminary injunction. PI Mem. Op., 362 F. Supp. 2d 43. Accordingly, the Court assumes familiarity with that opinion, and only recites herein those facts that are relevant to resolving the instant cross-motions for summary judgment.*fn3

A. Parties

The Federal Election Commission is the independent agency of the United States government with exclusive jurisdiction to administer, interpret, and civilly enforce FECA. 2 U.S.C. §§ 437c(b)(1), 437d(a), and 437g; FEC Stmt. of Mat'l Facts ¶ 1; Pl.'s Stmt. of Genuine Issues and Objs. (hereinafter "Pl.'s Resp. Stmt.") ¶ 1. Among other things, the Commission is empowered to "formulate policy with respect to" FECA, see 2 U.S.C. § 437c(b)(1), and to promulgate "such rules . . . as are necessary to carry out the provisions" of FECA, id. § 437d(a)(8). FEC Stmt. ¶ 2; Pl.'s Resp. Stmt. ¶ 2.

EMILY's List has been registered with the Commission as a multicandidate nonconnected political committee for more than 20 years. FEC Stmt. ¶ 3; Pl.'s Resp. Stmt. ¶ 3.*fn4

EMILY's List has separate bank accounts to fund its federal and nonfederal activities. FEC Stmt. ¶ 4; Pl.'s Resp. Stmt. ¶ 4. The parties do not dispute that EMILY's List's nonfederal account accepts funds from sources and in amounts that various states authorize for use in supporting state and local candidates, but that may not permissibly be used to support federal candidates under federal campaign finance laws. Pl.'s Stmt. of Mat'l Facts ¶ 26; FEC Stmt. of Genuine Issues and Objs. (hereinafter "FEC Resp. Stmt.") ¶ 26. EMILY's List describes itself as "a political organization whose purpose is to recruit and fund viable women candidates for local, state and federal office; to help them build and run effective campaign organizations; and to mobilize women voters to help elect progressive candidates." Pl.'s Stmt. ¶ 20.*fn5 The Court discusses EMILY's List's activities in greater detail below, after addressing the relevant regulatory framework.

B. Regulatory Framework

The overarching purpose of FECA was to place limitations on contributions and expenditures in connection with federal elections. See McConnell, 251 F. Supp. 2d at 193 (per curiam). FECA's passage, however, "did not deter unseemly fundraising and campaign practices," McConnell, 540 U.S. at 118, and in particular, "the invention and proliferation of political committees that purported to be independent and outside the knowledge and control of the candidates and designated campaign committees . . . eviscerated statutory limitations on contributions and expenditures," Buckley v. Valeo, 519 F.2d 821, 837 (D.C. Cir. 1975), aff'd in part, rev'd in part, 424 U.S. 1 (1976)). In 1974, Congress passed comprehensive amendments to FECA, which, inter alia, established the FEC, McConnell, 540 U.S. at 118, and in 2002, Congress enacted BCRA, which represented the "first major overhaul of [FECA] since the 1974 Amendments and their revision following [the Supreme Court's opinion in Buckley v. Valeo, 424 U.S. 1 (1976)]." McConnell, 251 F. Supp. 2d at 205 (per curiam). BCRA was intended to stem the tide of nonfederal funds being improperly used to influence federal elections. PI Mem. Op., 362 F. Supp. 2d at 46. Although pre-BCRA campaign finance laws were intended to prevent soft money from being used to influence federal elections, by the time of BCRA's passage, the circumvention of these laws had become routine, resulting in unregulated funds being used to influence federal elections. Id.

The FEC rules in effect until June 2005 permitted non-party committees (including EMILY's List) to allocate spending for administrative expenses and generic voter drive activity (as opposed to candidate-specific disbursements) pursuant to the so-called "funds expended method." 11 C.F.R. § 106.6(c) (2002). Under that approach, "expenses [were to] be allocated based on the ratio of federal expenditures to total federal and non-federal disbursements made by the committee during the two-year federal election cycle. . . . In calculating its federal expenditures, the committee [was to] include only amounts contributed to or otherwise spent on behalf of specific federal candidates." Id. § 106.6(c)(1) (2002).

Prior to the enactment of BCRA, party committees were also required to allocate their expenses for "mixed" federal and nonfederal expenses, but did so according to fixed percentages rather than the "funds expended" methods. See id. § 106.5(b)(2)(i), (ii) (2002); § 106.5(d)(1)(i) (2002). While functioning under these allocation rules, party committees routinely circumvented the spirit of campaign finance laws by using soft money to finance activities intended to influence federal elections. McConnell, 540 U.S. at 131-32; PI Mem. Op., 362 F. Supp. 2d at 47. Congress ultimately determined that the existing allocation system was not effective at limiting party committees' spending of nonfederal funds to nonfederal activities. McConnell, 540 U.S. at 131-34. Instead, Congress determined that the allocation system in fact enabled the circumvention of the law by authorizing the spending of soft money on activities that were intended to, and in fact did, influence federal campaigns. See McConnell, 251 F. Supp. 2d at 651 (Kollar-Kotelly, J.) (noting that FEC regulations permitted widespread use of nonfederal money by party units to influence federal elections). In BCRA, Congress sought to modify the flawed regime by banning national party committees from raising or spending any nonfederal funds. See 2 U.S.C. § 441i(a). State party committees were permitted to raise nonfederal funds for nonfederal races, but were precluded from spending nonfederal funds on advertisements that "promote, support, attack or oppose" federal candidates. Id. §§ 431(20)(A)(iii); 441i(b)(1). BCRA also permitted state parties to fund certain "federal election activities," including voter mobilization activities, with an allocated mixture of federal funds and limited, regulated nonfederal funds. Id. §§ 431(20)(A); 441i(b)(2). BCRA was challenged, and ultimately upheld by the Supreme Court. See generally McConnell, 540 U.S. 93.

Although the Supreme Court's decision in McConnell only addressed allocation with respect to party committees, in 2004, the FEC undertook a rulemaking aimed at curbing the similar use of nonfederal funds in connection with federal campaign activity by nonconnected committees. PI Mem. Op., 362 F. Supp. 2d at 48. In particular, because the "funds expended" allocation method based the allocation ratio only on "amounts contributed to or otherwise spent on behalf of specific federal candidates," 11 C.F.R. § 106.6(c)(1) (2002), the method at times allowed nonconnected committees to calculate the federal portions of their allocated spending at, or close to, zero. See PI Mem. Op., 362 F. Supp. 2d at 48 (citing PI Admin. Record, Ex. 1 (Letter to FEC from Democracy 21) at 2; id. Ex. 10 (Facsimile to FEC from Democracy 21) at 2-3; id. Ex. 266 (Letter from McCain, Feingold, Shays, Meehan to Mai T. Dinh)). In addition, the "funds expended" allocation method did not subject nonconnected political committees to a minimum federal allocation percentage. See 11 C.F.R. § 106.6 (2002).

In February 2004, the FEC issued Advisory Opinion 2003-37, requiring that nonconnected political committees pay for any public communication that "promotes, supports, attacks, or opposes" federal candidates entirely with federal funds. Pl.'s MSJ, Attach. C (Advisory Opinion 2003-37); Pl.'s Stmt.¶ 1; FEC Resp. Stmt." ¶ 1. The FEC simultaneously indicated its intent to undertake a rulemaking with respect to the allocation rules affecting nonconnected political committees. Pl.'s MSJ, Attach. C (Advisory Opinion 2003-37) at 3 n.3. On March 11, 2004, the FEC published its official Notice of Proposed Rulemaking ("NPRM"), which was framed largely in response to the Supreme Court's holding in McConnell. See 69 Fed. Reg. 11,736-38.*fn6 The NPRM sought comment on "whether either BCRA or McConnell requires, permits, or prohibits changes to the allocation regulations for separate segregated funds and nonconnected committees." Political Committee Status, 69 Fed. Reg. 11,736, 11,753 (March 11, 2004) (discussing proposed 11 C.F.R. § 106.6). The NPRM questioned

Given McConnell's criticism of the Commission's prior allocation rules for political parties, is it appropriate for the regulations to allow political committees to have non-Federal accounts and to allocate their disbursements between Federal and non-Federal accounts? If an organization's major purpose is to influence Federal elections, should the organization be required to pay for all of its disbursements out of Federal funds and therefore be prohibited from allocating any of its disbursements?

Id. at 11,753.

The FEC designated the period through April 9, 2004 for public comments on the proposed rules, and held a hearing on April 14 and 15, 2004. See 69 Fed. Reg. 11,736. EMILY's List's representatives did not submit any comments and did not testify at the hearing, although over 100,000 comments were filed by other parties--including political committees, political parties, nonprofit organizations, individuals, campaign finance organizations, and Members of Congress--on a variety of issues raised by the rulemaking, and the two days of public hearings included 31 witnesses representing organizations with a broad range of opinions and concerns. FEC Stmt. ¶¶ 22-31; Pl.'s Resp. Stmt. ¶¶ 22-31. The majority of the comments the Commission received focused on the NPRM's proposals regarding potential changes to the status of certain section 527 organizations that did not register and report to the FEC, Pl.'s Stmt. ¶ 8; FEC Resp. Stmt. ¶ 8; however, a number of commenters offered remarks on the proposed allocation rules and testimony on the proposed revision of the definition of "contributions," PI Mem. Op., 362 F. Supp. 2d at 50 (citations omitted).

In particular, at least one commenter supported eliminating allocation altogether and requiring nonconnected committees to use 100% federal funds for all expenditures under 11 C.F.R. § 106.6, see FEC MSJ Ex. 8 (Comments of Public Citizen, at 12-13), while another suggested that communications should be allocated either 100% federal or 100% nonfederal based upon whether federal or nonfederal candidates were mentioned in the communication, see FEC MSJ Ex. 9 (Comments of Republican National Committee, at 7-8). See also FEC Stmt. ¶¶ 23, 25; Pl.'s Resp. Stmt. ¶¶ 23, 25. Other commenters supported implementing a specific percentage or "significant minimum hard money share" for administrative expenses. FEC MSJ Exs. 10 (Comments of Democracy 21, Campaign Legal Center, Center for Responsible Politics, at 17-19) and 11 (Comments of Senators McCain and Feingold, Representatives Shays and Meehan, at 3). See also FEC Stmt. ¶ 24; Pl.'s Resp. Stmt. ¶ 24.

One commenter argued that revising the funds expended method to require a federal minimum share would be too burdensome and complicated for political committees. FEC MSJ Ex. 12 (Comments of Media Fund, at 20); FEC Stmt. ¶ 26; Pl.'s Resp. Stmt. ¶ 26. In contrast, during the hearing, testimony was offered regarding the complexities of the funds expended allocation method and the FEC's proposal to move to a flat minimum percentage, including a 50% federal minimum, for allocated expenses. FEC MSJ Ex. 14 (Apr. 14, 2004 Hrg. Tr.) at 158-60 (testimony of Craig Holman) and Ex. 15 (Apr. 15, 2004 Hrg. Tr.) at 78-80 (testimony of Lawrence Noble) and 80-84 (testimony of Robert Bauer). In addition, one witness testified that the funds expended allocation method permitted circumvention of BCRA's aim that soft money not be used to fund federal campaign activities. Id. at 78-80 (testimony of Lawrence Noble).*fn7

Finally, witnesses addressed the FEC's proposal that money given in response to solicitations indicating that the funds received would be used to support or oppose a federal candidate would be treated as contributions under FECA. Id. at 202-03 (testimony of Lyn Utrecht) and 207-08 (testimony of Margaret McCormick).

The FEC published the final rules and an accompanying Explanation and Justification ("E&J") in the Federal Register on November 23, 2004, and the final rules became effective on January 1, 2005. See 29 Fed. Reg. 68,056. Pursuant to the new rule at 11 C.F.R. § 100.57(a), all funds received in response to a solicitation are treated as "contributions" under FECA "if the communication indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified Federal candidate." 11 C.F.R. § 100.57(a). If, however, the Commission's rules would permit the costs of the solicitation to be allocated between federal and nonfederal funds, funds received in response may be treated differently. Id. § 100.57(b). Specifically, if the 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. Id. § 100.57(b)(1). In contrast, if the solicitation refers to one or more clearly identified nonfederal candidates, in addition to a clearly identified federal candidate, at least fifty percent of the funds received in response must be treated as contributions, regardless of whether the solicitation also refers to a political party. Id. § 100.57(b)(2).

As revised, 11 C.F.R. § 106.6 replaced the "funds expended" method for allocation by nonconnected political committees with a 50 percent federal funds minimum for administrative expenses, costs of generic voter drives, and costs of public communications that refer to a political party but do not refer to any specific candidates. See 11 C.F.R. § 106.6(c). In addition, section 106.6(f) provides that public communications and voter drives that refer to one or more clearly identified federal candidates, and do not refer to any nonfederal candidates, must be financed with 100 percent federal funds, regardless of whether political parties are also mentioned. See id. § 106.6(f)(1). In contrast, public communications and voter drives that refer only to nonfederal candidates, or refer to a political party and only nonfederal candidates, may be financed with 100 percent nonfederal funds. Id. § 106.6(f)(2). Finally, expenses for "communications and voter drives that refer to one or more clearly identified Federal candidates and one or more clearly identified non-Federal candidates, regardless of whether there is a reference to a political party," are to be "allocated based on the proportion of space or time devoted to each clearly identified Federal candidate as compared to the total space or time devoted to all clearly identified candidates." Id. § 106.6(f)(3).

On August 18, 2005, EMILY's List submitted an Advisory Opinion Request to the FEC seeking clarification regarding the new regulations. In particular, EMILY's List asked whether, as a nonconnected political committee, it would be required to pay at least 50% of its administrative expenses and generic voter driver expenses with federal funds, even if its budget "committe[d] [it] to the expenditure of 65% of its candidate budget for the [remainder of the 2005-2006 election] cycle on contributions to or amounts otherwise spent on behalf of specific nonfederal candidiates." Pl.'s Attach. D (8/18/05 Advisory Opinion Request) at 1. The FEC's responsive Advisory Opinion 2005-13 confirmed that EMILY's List was required to allocate a minimum of 50% federal funds "without regard to how much a Federal political committee may choose to spend on non-Federal elections." Pl.'s Attach. E (Advisory Opinion 2005-13) at 2-3.

In its Advisory Opinion Request, EMILY's List also described a proposed fundraising solicitation "in support of its efforts on behalf of state legislative candidates" that would refer to Senator Debbie Stabenow of Michigan and "feature a discussion of her own experiences, earlier in her career, as a candidate for State Senate in Michigan," in order to "stress the importance of successes for women in state elective office." Pl.'s Attach. D (Advisory Opinion Request) at 1-2. EMILY's List explained that the solicitation would not be distributed in Michigan and would not reference Senator Stabenow's "federal candidacy or solicit funds for her federal candidacy." Id. at 2. In addition, the proposed communication would not refer to any clearly identified nonfederal candidate, but only generally to nonfederal Democratic women candidates as a class, and EMILY's List asked the Commission whether the funds raised by the communication would be required to be treated entirely as contributions. Id.

In response, the FEC's Advisory Opinion 2005-13 clarified that, "[r]egardless of its context, the reference to Senator Stabenow in EMILY's List's public communication is a reference to a clearly identified Federal candidate in a Federal political committee's public communication," which does not refer to a clearly identified nonfederal candidate, such that, "EMILY's List must pay for the public communication that clearly identifies Senator Stabenow with 100 percent Federal funds." Pl.'s Attach. E (Advisory Opinion 2005-13) at 3-4. In response to a suggestion by EMILY's List that it could substitute a federal candidate not standing for election in 2006 for Senator Stabenow, the Commission further noted that the "analysis does not change if a candidate for election in a year other than 2006 were to be substituted for Senator Stabenow in EMILY's List's public communication." Id. at 4. The FEC noted that neither FECA "nor Commission regulations distinguish between candidates based on election date," rather, FECA defines a "candidate" as "an individual who seeks nomination for election, or election, to Federal office," and defines an individual as seeking "nomination for election, or election, if he or she has received contributions aggregating in excess of $5,000 or has made expenditures aggregating in excess of $5,000." Id. (citing 2 U.S.C. § 431(2)(A); 11 C.F.R. 100.3(a)(1)).

In addition to generally requesting clarification on whether its communication referring to Senator Stabenow would have to be funded with federal funds, EMILY's List's Advisory Opinion Request asked the Commission to review three proposed options for the portion of the communication asking recipients "to support the nonfederal programs of EMILY's List," with the caveat that EMILY's List "wish[ed] to avoid any language that would be construed to 'indicate' a use of the funds to support federal candidates, including but not limited to Senator Stabenow."

Pl.'s Attach. D (Advisory Opinion Request) at 2. Specifically, EMILY's List proposed the following texts:

(a) "We are asking for your support, so that EMILY's List can support candidates who, like me, could never succeed as women in politics without the combined commitment of all [sic] us."

(b) "EMILY's List's support over the years for candidates like me has made an enormous difference to the progress of women toward equality in the pursuit of political office. But we have a long way to go. That's why I need your help."

(c) "EMILY's List has always supported me (Senator Stabenow) when I most needed it. And that is why I am asking you to support EMILY's List today, so that it can continue the work on behalf of women who, by seeking state office today, will be ready to claim national leadership tomorrow."

Id.

In response to this question, the Commission's Advisory Opinion 2005-13 explained that "[a]ll three communications indicate that the funds EMILY's List receives in response will be used to support candidates and implicitly to support their election to office. The only question is whether these communications indicate that Senator Stabenow is among those candidates." Id. at 5-6. Specifically, the FEC concluded that, EMILY's List's Example (a) "indicates that [Senator Stabenow] is among the candidates that EMILY's List will support," such that all funds received in response to a solicitation including the text in Example (a) would be treated as contributions under 11 C.F.R. § 100.57. Id. at 6. The Commission reached the same conclusion with respect to EMILY's List's Example (b), noting that the language "I need your help" suggests that "Senator Stabenow is also appealing on her own behalf," and "indicates that some of the funds raised will be used to support Senator Stabenow's re-election, which satisfies 11 CFR 100.57(a)(1)." Id. While EMILY's List's Example (c) "also features a clearly identified Federal candidate raising funds for EMILY's List," the Commission concluded that "it indicates those funds will be used on behalf of women seeking State office," and therefore "does not indicate that any portion of the funds received will be used to support [Senator Stabenow's] re-election." Id. Accordingly, the Commission advised EMILY's List that it could consider any funds received in response to a solicitation including the language in Example (c) "to be donations to its non-Federal account." Id. at 6-7.

Finally, EMILY's List's Advisory Opinion Request stated that it "expect[ed] to implement its nonfederal objections by making public communications in support of state legislative initiatives and referenda," which "would not name a federal or nonfederal candidate, but would appeal to Democratic women to support or oppose these initiatives." Pl.'s Attach. D (Advisory Opinion Request) at 3. EMILY's List asked the Commission to clarify whether "the reference to Democrats in these communications requires that the associated costs be paid at least 50% with funds raised under the restrictions of federal law," and whether the answer to that question "depend[ed] on whether EMILY's List otherwise only supports nonfederal candidates in that state in this cycle." Id. In response, the FEC's Advisory Opinion 2005-13 noted the E&J for the revised regulations, which stated that "references solely to a political party inherently influence both Federal and non-Federal elections. Therefore, the 50% Federal funds requirement reflects the dual nature of the communication." Pl.'s Attach. E (Advisory Opinion 2005-13) at 4. The FEC clarified that "[a] discussion of a State legislative initiative or referendum does not alter the application of these rules," and reminded EMILY's List that if it were to remove the reference to "Democrats" from the communications, EMILY's List would be permitted to pay for the communications with 100% nonfederal funds. Id. at 4-5. The Commission also clarified that the "analysis that EMILY's List must 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 EMILY's List in the particular State." Id. at 5.

C. EMILY's List's Historical and Present-Day Activities

The parties do not dispute the following facts regarding EMILY's List's reported historical activities:

* In the 2001-2002 election cycle, EMILY's List raised more than $15.5 million in federal contributions and more than $5.5 million in nonfederal funds. FEC Stmt. ¶ 5; Pl.'s Resp. Stmt. ¶ 5. In that cycle, EMILY's List reported total federal disbursements of over $17.2 million, and reported total allocated spending of $11.2 million, which was financed with approximately $5.6 million in federal funds and $5.6 million in nonfederal funds. Id.

* In the 2003-2004 election cycle, EMILY'S LIST raised more than $25 million in federal contributions and more than $8 million in nonfederal funds. FEC Stmt. ¶ 6; Pl.'s Resp. Stmt. ¶ 6. In that cycle, EMILY's List reported total federal disbursements of approximately $26 million, and reported total allocated spending of $16.2 million, which was financed with approximately $8.1 million in federal funds and $8.1 million in nonfederal funds. Id.

* In the 2005-2006 election cycle, EMILY'S LIST again raised more than $25 million in federal contributions and more than $7.8 million in nonfederal funds. FEC Stmt. ¶ 7; Pl.'s Resp. Stmt. ¶ 7. In that cycle, EMILY's List reported total federal disbursements of over $26 million, and reported total allocated spending of $15.3 million, which was financed with approximately $7.5 million in federal funds and $7.8 million in nonfederal funds. Id.

* For the 2007-2008 election cycle, EMILY'S LIST reported raising over $8.1 million in federal contributions and more than $2.9 million in nonfederal funds through August 31, 2007. FEC Stmt. ¶ 8; Pl.'s Resp. Stmt. ¶ 8. In the same period, EMILY's List reported total federal disbursements of over $7.1 million, and reported total allocated spending of $5.9 million, which was financed with approximately $2.9 million in federal funds and $2.9 million in nonfederal funds. Id. EMILY's List's fundraising and spending totals in the first third of 2005-2006 and 2007-2008 election cycles exceed the totals at the same point in the comparable election cycles of 2001-2002 and 2003-2004, respectively. FEC Stmt. ¶ 9; Pl.'s Resp. Stmt. ¶ 9.

* During the ten years prior to the promulgation of the revised regulations at issue in this case, EMILY's List never reported an allocation ratio of federal and nonfederal funds of less than 50%. FEC Stmt. ¶ 11; Pl.'s Resp. Stmt. ¶ 11. At the end of the 1995-1996 election cycle, EMILY's List reported a final allocation ratio of 70% federal candidate support and 30% nonfederal. Id.

* EMILY's List has described itself as "the nation's largest political action committee," and its president, Ellen Malcom, has stated that EMILY's List has "the most hard money, so it's not an issue of not having it." FEC Stmt. ¶ 10; Pl.'s Resp. Stmt. ¶ 10 (quoting EMILY's List, Press Release, Feb. 1, 2007, available at http://www.emilyslist.org/newsroom/ releases/20070201.html, and Liz Sidoti, "Bush, Kerry to Pull Ads on Friday," Associated Press Newswires, June 7, 2004 (FEC MSJ, Ex. 3)).

The remainder of the EMILY's List's factual assertions regarding its activities are more hotly contested. In particular, EMILY's List's Statement of Material Facts describes one specific program--its "Campaign Corps" program--that EMILY's List asserts will be affected by the 50% federal fund minimum in the revised allocation regulation. Pl.'s Stmt. ¶¶ 29-31. According to EMILY's List, each year, the Campaign Corps program "trains talented individuals just out of college at an intense week-long Campaign School and then places them on campaigns for the last 3 months of the campaign." Id. ¶ 29.*fn8 EMILY's List explains that in odd-numbered years, when there are no regularly scheduled federal elections, "the vast majority of students are placed on campaigns for state and local office in New Jersey and Virginia, which hold elections in these years. In even years, graduates are placed with both federal and nonfederal campaigns." Id. ¶ 30.

EMILY's List also asserts--based upon Ms. Cocanour's Declaration--that "[d]uring the 2006 election cycle, 77% of the graduates trained by the program ultimately worked on nonfederal races." Id. ¶ 31. EMILY's List also asserts that it will continue to sponsor the Campaign Corps program during the 2007-2008 election cycle, id. ¶ 34, and that, but for revised regulation 11 C.F.R. 106.6, it "would pay for this expense with a higher proportion of nonfederal funds, to reflect its predominantly nonfederal purpose," id. ¶ 33. As the Commission correctly notes, however, EMILY's List does not specify whether its 2006 Campaign Corps graduates worked solely on nonfederal races, or whether they also spent substantial time working on federal races or on generic campaign ...


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