41
See Buckley v. Valeo, 424 U.S. 1, 44-51 (1976); see also
McConnell, 540 U.S. at 155-56. Moreover, Cal-Med was
cited and discussed often in the briefs and at oral argument.
See Tr. of Oral Arg. 17-18, 32-33; FEC Br. at 21, 27, 28, 34;
Amicus Br. at 21, 24; EMILY’s List Reply Br. at 11, 19-20.
Indeed, the FEC’s brief noted that Cal-Med was a case
“chiefly relied upon.” FEC Br. at iv. In short, the briefs and
oral argument focused on and grappled with the critical issues
posed by the First Amendment challenge.
The concurrence suggests, however, that our holding
goes further than the submission of EMILY’s List. But
EMILY’s List forcefully argued that these regulations
“violate the First Amendment of the United States
Constitution,” contended that McConnell and Cal-Med do not
support the FEC’s approach, and asked the Court to vacate the
new regulations in their entirety. EMILY’s List Br. at 19. In
deciding this case, we have set forth the relevant
constitutional principles as we discern them, and we then have
applied those principles to the challenged regulations. In so
doing, we have concluded that the regulations violate the First
Amendment; we therefore have vacated the regulations,
which is precisely the relief EMILY’s List sought in
advancing its First Amendment claims.
Second, apart from its substantive disagreement with our
First Amendment analysis, the concurrence states that we
should resolve this case on statutory grounds alone, and
claims that it is “gratuitous” for us to address the First
Amendment. We respectfully but firmly disagree.
The threshold problem with the concurrence’s preferred
statutory-only approach is that EMILY’s List raises a
statutory challenge to only three of the five provisions at issue
here. EMILY’s List does not advance a statutory challenge to