20
As such, it supports Democratic candidates for federal office.
See Matthew B. Stannard, Cash is Key for Tauscher’s
Replacement, S.F. CHRON., Aug. 24, 2009, at A1, available at
2009 WLNR 16474721 (noting that a candidate in a federal
primary race “has touted the endorsement of EMILY’s List, a
national fundraising organization that supported [former U.S.
Representative Ellen Tauscher] and backs Democratic women
who support abortion rights.”). Thus, EMILY’s List is much
more like a political party than the Sierra Club or the Society
for the Prevention of Cruelty to Animals.
Whether, under the high court’s current precedents,
EMILY’s List could be regulated exactly like a political party
is unknown. That it should not be regulated more harshly
than a political party seems to be the committee’s complaint
with the FEC regulations challenged in this court. EMILY’s
List Br. at 39 (“Bizarrely, [the regulation] also treats nonparty
PACs more harshly than any other type of committee, save
national parties and candidates themselves.”). My point is not
that McConnell mandates such treatment; only that nothing in
the opinion’s logic clearly precludes it. The court does not
think this is “a persuasive interpretation of McConnell.” Maj.
Op. at 38. Perhaps the court is right. But reading the case, as
the court does, to sanction First Amendment immunity for all
non-connected nonprofits seems even more implausible.
B.
Precedent holds allocation and solicitation rules are
contribution limits. This is key, as such limits receive less
than “strict scrutiny,” given they “‘entail only a marginal
restriction upon the contributor’s ability to engage in free
communication.’” McConnell, 540 U.S. at 134–35 (quoting
Buckley, 424 U.S. at 20)). The “‘overall effect’ of dollar
limits on contributions is [also] ‘merely to require candidates