2
regulations “in excess of [its] statutory jurisdiction,” 5 U.S.C.
§ 706(2)(C). See also La. Pub. Serv. Comm’n v. FCC, 476
U.S. 355, 374 (1986) (“[A]n agency literally has no power to
act . . . unless and until Congress confers power upon it.”).
By the plain language of the Federal Election Campaign
Act (FECA), the FEC lacks the power it now asserts. To fall
within FEC jurisdiction, a “gift, subscription, loan, advance,
or deposit of money or anything of value” must be provided
to a political committee “for the purpose of influencing any
election for Federal office,” 2 U.S.C. § 431(8)(A)(i), and any
money expended by such a committee must also have been
done for that same purpose, id. § 431(9)(A)(i). There is no
other reasonable way to read Congress’s words. For the FEC
to have any role, money must be used for the “purpose”—
defined as an “objective, goal, or end,” BLACK’S LAW
DICTIONARY 1356 (9th ed. 2009)—of “influencing” an
“election for Federal office.” The inescapable corollary is the
FEC has no authority over money given or spent “solely for
the purpose of influencing state or local elections,” an activity
“unaffected by FECA’s requirements and prohibitions.”
McConnell, 540 U.S. at 122.
Here, the FEC has set aside Congress’s command that the
agency’s jurisdiction be bounded by the “purpose” for which
money is spent. Instead of strictly minding this jurisdictional
marker, the FEC conclusively presumes a federal purpose
drives any spending that might influence a federal election.1
The question though is not whether spending influences a
federal election, but whether it was spent for that reason.
1
See, e.g., Political Committee Status, Definition of Contribution,
and Allocation for Separate Segregated Funds and Nonconnected
Committees, 69 Fed. Reg. 68,056, 68,062 (Nov. 23, 2004) (Final
Rules) (“[R]eferences solely to a political party inherently influence
both Federal and non-Federal elections.”).