Posted October 9, 2007 by Tara Malloy

Legal Center Filing: WRTL Irrelevant to EMILY's List Case

Today the Campaign Legal Center, together with Democracy 21 and Bipartisan Campaign Reform Act sponsors Senators John McCain (R-AZ) and Russell Feingold (D-WI), and Representative Christopher Shays (R-CT), filed an amici brief in the case EMILY's List v. FEC.

The case concerns a challenge brought by EMILY’s List, a federal political committee, to the constitutionality of two regulations adopted by the Federal Election Commission (FEC) in 2004.  The FEC’s “allocation” rule requires a federal political committee that maintains a nonfederal soft money account to spend at least fifty-percent federal hard money both for its “mixed” political activities that affect both federal and non-federal elections, and for its administrative expenses.  It was adopted to prevent political committees from circumventing federal contribution limits and source restrictions by using only soft money to finance their voter mobilization efforts in federal elections.  The “solicitation” regulation clarifies that the term “contribution” in federal campaign finance law includes funds raised in response to solicitations that indicate that the money will be used “to support or oppose” the election of federal candidates.  The amici brief supports the constitutionality of both regulations.

The U.S. District Court of the District of Columbia denied EMILY's List’s earlier request for a preliminary injunction in 2005, finding that it had failed to demonstrate a likelihood of success on the merits of its challenge.  Following the recent Supreme Court decision in FEC v. Wisconsin Right to Life, Inc. (WRTL II), the Court asked the parties for additional briefing in light of the decision.  Emily’s List took this opportunity to substantially modify its case, arguing that WRTL II provides additional legal support for its challenge to the FEC’s regulations.  In response, amici submitted their brief to make clear that the WRTL II decision is not relevant to the current case.  WRTL II considered a ban on the expenditure of treasury funds by corporations and labor unions for “electioneering communications,” whereas Emily’s List considers the contribution limits that apply to federal political committees.  As the amici brief points out, WRTL II “addresses a different provision of the federal campaign finance law, a different type of regulated entity, and a different set of facts.”   

To view earlier amici filings in the case click here.