Emily's List v. Federal Election Com'n, Civil Action No. 05-0049 (CKK).

• Decision Date: 31 July 2008
• Docket Number: Civil Action No. 05-0049 (CKK).
• Citation: 569 F.Supp.2d 18
• Parties: EMILY's LIST, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

Page 18

569 F.Supp.2d 18

EMILY's LIST, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

Civil Action No. 05-0049 (CKK).

United States District Court, District of Columbia.

July 31, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Felix Bauer, Ezra W. Reese, Perkins Coie, LLP, Washington, DC, for Plaintiff.

Gregory John Mueller, Thomasenia P. Duncan, Vivien Clair, Federal Election Commission, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

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.¹ 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.Appx. 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, ___ U.S. ___, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) ("WRTL"),² 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 Plaintiffs 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.³

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. ¶ 3.⁴ 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. ¶ 20.⁵ 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 fund-raising and campaign practices," McConnell, 540 U.S. at 118, 124 S.Ct. 619, 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, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In 1974, Congress passed comprehensive amendments to FECA, which, inter alia, established the FEC, McConnell, 540 U.S. at 118, 124 S.Ct. 619, 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, 96 S.Ct. 612, 46 L.Ed.2d 659 (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, 124 S.Ct. 619; 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, 124 S.Ct. 619. 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, 124 S.Ct. 619.

Although the Supreme Court's decision in McConnell only addressed allocation with respect to party committees, in ...