34
But the FEC exceeds its statutory authority when it requires
non-profits to use hard money for exclusively state and local
election activities. See id. at 122; Chevron USA, Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (step
one).
The three regulatory provisions that EMILY’s List
challenges under FECA cross the statute’s boundaries.
EMILY’s List targets one of the provisions in § 106.6(c)
as exceeding the FEC’s statutory authority – namely, the part
requiring covered non-profits to use their hard-money
accounts to pay for 50% of their administrative expenses.
This requirement applies even if more than 50% of a nonprofit’s administrative expenses are exclusively associated
with state and local elections. That poses a problem because
the FEC possesses no authority under FECA to require nonprofits to use their hard-money accounts for their exclusively
state and local election activities. We thus concur with
EMILY’s List that this provision is overbroad and
“federalizes the funding and reporting of a large portion of
such a committee’s nonfederal receipts and disbursements,
which are not made for the purpose of influencing federal
elections.” EMILY’s List Br. at 39.18
18
As discussed above, § 106.6(c) also requires non-profits to
use their federal or hard-money accounts to pay for (i) at least 50%
of their generic get-out-the vote and voter registration activities and
(ii) at least 50% of their generic communications, which refer to a
party but not a candidate. In its brief, EMILY’s List does not raise
statutory challenges to those two provisions. See EMILY’s List Br.
at 35-40; id. at 38 (challenging under the statute only that provision
in § 106.6(c) that sets forth a “‘Minimum Percentages’ Rule for
Administrative Costs”). Presumably, EMILY’s List has not
challenged these two provisions under FECA because McConnell
indicated that these generic activities qualify under the statute as
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