25
candidates in the fashion of a political party.” Tr. of Oral
Arg. at 4.
A
The rules set forth in §§ 106.6(c), 106.6(f), and 100.57
contain five relevant provisions. In our judgment, the
provisions are not closely drawn to meet an important
governmental interest.14
14
We need not decide whether the regulations are subject to
the strictest scrutiny applicable to spending restrictions or the still
“rigorous” but slightly lesser “closely drawn” scrutiny applicable to
contribution restrictions. See generally Davis v. FEC, 128 S. Ct.
2759, 2770-72 (2008); FEC v. Wis. Right to Life, Inc. (WRTL), 551
U.S. 449, 464 (2007); Buckley v. Valeo, 424 U.S. 1, 29 (1976).
Under either permutation of this “exacting” scrutiny, Buckley, 424
U.S. at 16, the regulations violate the First Amendment. That said,
the allocation and “mere reference” regulations of §§ 106.6(c) and
106.6(f) are best considered spending restrictions under the analysis
set forth in Wisconsin Right to Life. 551 U.S. at 457, 477 n.9, 47879; see also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 203 (1981)
(opinion of Blackmun, J.) (limits on donations to non-profits
subject to strict scrutiny). In Wisconsin Right to Life, the Court
indicated that forcing an entity to spend out of a segregated fund
subject to source and amount limitations, rather than its general
treasury, was a spending restriction. 551 U.S. at 477 n.9. So too
here. Unlike BCRA’s rules for political parties, moreover, these
regulations do not limit how much someone can contribute to
EMILY’s List or other covered non-profits.
Rather, these
regulations force non-profit entities to pay for a large percentage of
their varied political activities out of hard-money accounts subject
to source and amount ($5000) limits rather than out of soft-money
accounts that may receive unlimited donations. Through this
mechanism, the regulations limit how much non-profits ultimately
can spend on advertisements, get-out-the-vote efforts, and voter
registration drives. These regulations therefore “reduce[] the