21
and political committees to raise funds from a greater number
of persons.’” Id. at 136 (quoting Buckley, 424 U.S. at 21–22).
Unlike strict scrutiny, which requires narrow tailoring to serve
compelling governmental interests, a contribution limit is
“valid [if] it satisfies the lesser demand of being closely
drawn to match a sufficiently important interest.” Id.
After McConnell, allocation and solicitation rules are
subject only to this lesser scrutiny. Facing BCRA § 323(a),
which forbids national parties from soliciting and spending
soft money, and § 323(b), which forbids state parties from
spending soft money on “federal election activities,” the
Court declined to apply strict scrutiny. 540 U.S. at 138–39.
The Court held “neither provision in any way limits the total
amount of money parties can spend. Rather, they simply limit
the source and individual amount of donations. That they do
so by prohibiting the spending of soft money does not render
them expenditure limitations.” Id. at 139. We instead ask
“whether the mechanism adopted to implement the
contribution limit, or to prevent circumvention of that limit,
burdens speech in a way that a direct restriction on the
contribution itself would not.” Id. at 138–39. Using the
Court’s standard, I agree with the district court that while the
FEC’s regulations “may affect the manner in which EMILY’s
List must fund the speech in which it chooses to engage, they
do not in any way limit the political speech that EMILY’s List
may undertake.” EMILY’s List, 569 F. Supp. 2d at 39.
The issue we confront then is whether these regulations,
facially, are closely drawn to match an important interest. To
answer, we again ought to look to McConnell. In upholding
BCRA § 323, the Court noted the “interests that underlie
contribution limits—interests in preventing both the actual
corruption threatened by large financial contributions and the
eroding of public confidence in the electoral process through