4
money accounts. See 11 C.F.R. §§ 106.6(c), (f).1 Because
donations to those hard-money accounts are capped at $5000
annually for individual contributors, the FEC’s allocation
regulations substantially restrict the ability of non-profits to
spend money for election-related activities such as
advertisements, get-out-the-vote efforts, and voter registration
drives. The regulations separately require that donations to
non-profits be considered hard money subject to the $5000
cap if the corresponding solicitation indicated that donations
would be used to support the election or defeat of a federal
candidate. See id. § 100.57.
In early 2005, EMILY’s List filed suit, arguing that the
new regulations violated the First Amendment and the Federal
Election Campaign Act. In 2008, the District Court upheld
the regulations in their entirety.
II
To assess the constitutionality of the new FEC
regulations, we initially must address at some length the
relevant First Amendment principles set forth by the Supreme
Court.
A
Ratified in 1791, the First Amendment provides that
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. CONST. amend. I. This guarantee “has its
fullest and most urgent application precisely to the conduct of
1
A hard-money account is subject to source and amount
limitations. For example, under the statute, EMILY’s List cannot
accept donations of more than $5000 annually into its hard-money
account from any single contributor. 2 U.S.C. § 441a(a)(1)(C). A
soft-money account may receive unlimited donations.