Emily's List v. Federal Election Com'n.

Decision Date18 September 2009
Docket NumberNo. 08-5422.,08-5422.
Citation581 F.3d 1
PartiesEMILY'S LIST, Appellant v. FEDERAL ELECTION COMMISSION, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-00049-CKK).

Robert F. Bauer argued the cause for appellant. With him on the briefs were Ezra W. Reese and Brian G. Svoboda.

David Kolker, Associate General Counsel, Federal Election Commission, argued the cause for appellee. With him on the brief were Thomasenia P. Duncan, General Counsel, Harry J. Summers, Assistant General Counsel, and Vivien Clair, Attorney. Gregory J. Mueller, Attorney, entered an appearance.

Donald J. Simon, Fred Wertheimer, J. Gerald Hebert, Trevor Potter, and Paul S. Ryan were on the brief for amici curiae Campaign Legal Center and Democracy 21 in support of appellee.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit

[581 F.3d 4]

Judge HENDERSON joins, and with whom Circuit Judge BROWN joins as to Part IV except footnotes 17, 18, and 20.

Opinion concurring in part filed by Circuit Judge BROWN.

KAVANAUGH, Circuit Judge:

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 non-profits had replaced political parties as the soft-money "loophole" 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 non-profits 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).1 Because donations to those hard-money accounts are capped at $5000 annually for individual contributors, the FEC's allocation regulations substantially restrict the ability of non-profits to spend money for election-related activities such as advertisements, get-out-the-vote efforts, and voter registration drives. The regulations separately require that donations to non-profits be considered hard money subject to the $5000 cap if the corresponding solicitation indicated that donations would be used to support the election or defeat of a federal candidate. See id. § 100.57.

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, 424 U.S. 1, 15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (internal quotation marks omitted). The Amendment "protects political association as well as political expression." Id.; see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

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." 424 U.S. at 14, 96 S.Ct. 612. The Court has never strayed from that cardinal tenet, notwithstanding some passionate objections. See, e.g., Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 398, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Stevens, J., concurring) ("Money is property; it is not speech."); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001 (1976).

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." 424 U.S. at 48-49, 96 S.Ct. 612. The Court added that the Government's interest in "equalizing the relative ability of individuals and groups to influence the outcome of elections" does not justify regulation. Id. at 48-49, 96 S.Ct. 612.

In Davis v. FEC, the Court strongly reiterated that "equalization" is not a "legitimate government objective." ___ U.S. ___, 128 S.Ct. 2759, 2773, 171 L.Ed.2d 737 (2008). The Davis Court approvingly quoted Justice Kennedy's observation in Austin v. Michigan Chamber of Commerce that "the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections" is "antithetical to the First Amendment." Id. (citation and internal quotation marks omitted); see also Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 684, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (Scalia, J., dissenting) ("This illiberal free-speech principle of `one man, one minute' was proposed and soundly rejected in Buckley").2

Third, the Court has recognized a strong governmental interest in combating corruption and the appearance thereof. See Buckley, 424 U.S. at 26-27, 45-48, 96 S.Ct. 612; see also McConnell v. FEC, 540 U.S. 93, 154, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). This, indeed, is the only interest the Court thus far has recognized as justifying campaign finance regulation. Davis, 128 S.Ct. at 2773 ("Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.") (citation and internal quotation marks omitted). Importantly, the Court has emphasized that the anti-corruption rationale is not boundless. The core corruption that Government may permissibly target with campaign finance regulation "is the financial quid pro quo: dollars for political favors." FEC v. Nat'l Conservative PAC (NCPAC), 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). This anticorruption interest is implicated by contributions to candidates: "To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined." Buckley, 424 U.S. at 26-27, 96 S.Ct. 612; see also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 296-97, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) ("Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment"; the exception relates "to the perception of undue influence of large contributors to a candidate"). Based on the close relationship between candidates and parties and record evidence demonstrating that political parties sold access to candidates in exchange for contributions, the Court has held that the anti-corruption interest also justifies limits on contributions to parties. See McConnell, 540 U.S. at 154, 124...

To continue reading

Request your trial
65 cases
  • AARP v. U.S. Equal Emp't Opportunity Comm'n
    • United States
    • U.S. District Court — District of Columbia
    • August 22, 2017
    ... ... a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that AARP has not ... been mailed a ballot for our Board of Directors Election"); Constitution of the NAACP, at 34, ... 2007) (members of a mailing list, without more, did not constitute members for purposes of ... ...
  • Oceana, Inc. v. Pritzker
    • United States
    • U.S. District Court — District of Columbia
    • March 10, 2014
    ... ... PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND GRANTING ... See EMILY's List v. FEC, 569 F. Supp. 2d 18, 25 n.6 (D.D.C. 2008), rev'd ... ...
  • Stop this Insanity, Inc. Emp. Leadership Fund v. Fed. Election Comm'n
    • United States
    • U.S. District Court — District of Columbia
    • November 5, 2012
    ... ... EMPLOYEE LEADERSHIP FUND, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant. Civil Action No. 121140(BAH). United ... to independent expenditure-only organizations.); EMILY's List v. FEC, 581 F.3d 1, 12 (D.C.Cir.2009) ([L]imiting donations to and ... ...
  • Ass'n of Private Colleges & Univs.v. Duncan
    • United States
    • U.S. District Court — District of Columbia
    • June 30, 2012
    ... ... To be eligible to accept federal funds under Title IV of the Higher Education Act, some ... Emily's List v. FEC, 581 F.3d 1, 22 n. 20 (D.C.Cir.2009). But where an ... ...
  • Request a trial to view additional results
1 firm's commentaries
3 books & journal articles
  • Election law violations.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • March 22, 2010
    ...106.6(c), (f) (2009), promulgated under 2 U.S.C. [section][section] 438(a)(8), 441a(b), 441a(g) (2006). (278.) Emily's List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). (279.) 130 S. Ct. 876 (2010). (280.) 494 U.S. 652 (1990). (281.) Citizens United, 130 S. Ct. at 913. (282.) Id. (Holding 2 U.S.C. ......
  • ELECTION LAW VIOLATIONS
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • July 1, 2021
    ...might have equal voice or inf‌luence on the electoral process) is not a “legitimate government objective”); see also Emily’s List v. FEC, 581 F.3d 1, 5–7 (D.C. Cir. 2009) (discussing the Court’s acceptance of the governmental anti-corruption rationale and its rejection of the equalization r......
  • Election Law Violations
    • United States
    • American Criminal Law Review No. 59-3, July 2022
    • July 1, 2022
    ...might have equal voice or inf‌luence on the electoral process) is not a “legitimate government objective”); see also Emily’s List v. FEC, 581 F.3d 1, 5–7 (D.C. Cir. 2009) (discussing the Court’s acceptance of the governmental anti-corruption rationale and its rejection of the equalization r......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT