27
FEC also make an “eminently reasonable prediction” that
committees like EMILY’s List—which actually do campaign
for candidates and give them money15—will be the next route
for corruption, and regulate accordingly? Id. at 185.
The court sidesteps McConnell by saying EMILY’s List
is a nonprofit, not a political party, and so has more
constitutional rights.16 But EMILY’s List is not just a
nonprofit; it is a multicandidate political committee that
campaigns for and contributes money to federal candidates.
In upholding § 323 in full, including § 323(f), McConnell
blessed restrictions on local officeholders, who are not, of
course, political parties. The rule then cannot be that parties
and federal candidates are in one column, and everyone else is
in another, because that does not explain McConnell. Instead,
there is a spectrum, N.C. Right to Life, 525 F.3d at 291, so we
should ask not whether an entity is a nonprofit, but instead
where it falls on the spectrum. Specifically, is EMILY’s List
more or less likely than a local official to act as a conduit to
federal candidates? “Common sense” says such committees
15
Britt Cocanour, EMILY’s List Chief of Staff, avowed her
committee “has helped to elect sixty-eight Democratic women to
Congress, thirteen to the U.S. Senate, eight to governorships, and
over 350 to other state and local offices.” Joint Appendix at 70.
16
The court suggests McConnell guarantees “‘interest groups’” the
right “‘to raise soft money to fund voter registration, GOTV
activities, mailings,’ and advertising.” Maj. Op. at 22 (quoting 540
U.S. at 187). But McConnell only notes BCRA can treat interest
groups differently than parties without violating Due Process. See
540 U.S. at 188. There is a difference between noting Congress has
not regulated and holding Congress cannot regulate. See N.C. Right
to Life, 525 F.3d at 333–34 (Michael, J., dissenting) (discussing
McConnell’s reference to “interest groups”).