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”).

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