11
C.
No one disputes the FEC can craft bright-line rules. An
“objective test,” Orloski v. FEC, 795 F.2d 156, 162 (D.C. Cir.
1986), in fact, may be constitutionally required, see FEC v.
Wis. Right to Life, Inc., 551 U.S. 449, 467–69 (2007) (opinion
of Roberts, C.J.). Communications calling for the election or
defeat of federal candidates certainly fall within the agency’s
authority, and the FEC may have a bit more leeway to
regulate ads directed at federal electorates or aired during
federal elections.
Shays, 414 F.3d at 99.
FECA’s
unambiguous text, however, forbids the Commission from
doing what it has done here: promulgating proxies for
“purpose” that wholly ignore all relevant contextual clues.
The regulations consequently must be vacated as contrary to
congressional will.
II.
A.
Because this case can be decided on statutory grounds,
we need not reach the constitutional question, and so should
not reach the constitutional question. Our precedent is not
wishy-washy: “Federal courts should not decide constitutional
questions unless it is necessary to do so. Before reaching a
constitutional question, a federal court should therefore
consider whether there is a nonconstitutional ground for
deciding the case, and if there is, dispose of the case on that
ground.” Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000).
See also Meredith Corp. v. FCC, 809 F.2d 863, 870 (D.C. Cir.
1987); United States v. Thomas, 572 F.3d 945, 952 (D.C. Cir.
2009) (Ginsburg, J., concurring in part). My colleagues duck
this rule, preferring to summon the awesome power of