28
Third, the regulations direct covered non-profit entities to
use their hard-money accounts to pay at least 50% of all
administrative expenses. 11 C.F.R. § 106.6(c). Those
administrative expenses include rent, utilities, office supplies,
and salaries, among other costs. But a non-profit may be
forced to use hard money for, at most, a percentage of
administrative expenses that “closely” corresponds to the
percentage of activities relating to its contributions as
compared to its advertisements, get-out-the-vote efforts, and
voter registration activities. See Davis v. FEC, 128 S. Ct.
2759, 2770 (2008) (campaign finance regulations must at
least be “closely drawn” to further an important governmental
interest); Cal-Med, 453 U.S. at 198-99 n.19 (opinion of
Marshall, J.) (rejecting argument that non-profit was entitled
to pay its “entire” administrative expenses with unlimited
donations or soft-money account) (emphasis added). The
tailoring must ensure that a hybrid non-profit is not unduly
advantaged as compared to a non-profit that makes only
contributions (and thus must fund certain administrative
expenses with hard money) and is not unduly disadvantaged
as compared to a non-profit that makes only expenditures
(and thus may fund its administrative expenses with soft
money). Section 106.6(c) does not attempt or purport to
allocate administrative expenses in that way. And the “desire
for a bright-line rule
. . . hardly constitutes the compelling
state interest necessary to justify any infringement on First
Amendment freedom.” FEC v. Wis. Right to Life, Inc.
(WRTL), 551 U.S. 449, 479 (2007) (internal quotation marks
omitted) (controlling opinion of Roberts, C.J.).
Fourth, the regulations compel covered non-profit entities
to use their hard-money accounts to pay 100% of the costs of
advertisements or other communications that “refer” to a
federal candidate.
11 C.F.R. § 106.6(f)(1).
If an