33
profit groups would become more influential in the electoral
process. Indeed, Senator Lieberman, speaking in the Senate
at the time, anticipated that “at least some of the soft money
donors who will no longer be able to give to political parties
will be looking for other ways to influence our elections.
Donations to 527 groups will probably top many of their
lists.” 148 CONG. REC. S10779 (daily ed. Oct. 17, 2002)
(statement of Sen. Lieberman). He was right. Yet in the
seven years since BCRA was enacted, Congress still has not
imposed limits on non-profits, apparently because of
continuing constitutional and policy concerns about regulating
them in such a manner.
The statutory question, therefore, is whether the FEC’s
authority under the long-standing Federal Election Campaign
Act justifies the challenged regulations.
Under FECA, the FEC’s authority extends only to
regulating donations and expenditures made “for the purpose
of influencing any election for Federal office.” 2 U.S.C.
§ 431(8)(A)(i).
As the Supreme Court has explained,
“[d]onations made solely for the purpose of influencing state
or local elections are therefore unaffected by FECA’s
requirements and prohibitions.” McConnell v. FEC, 540 U.S.
93, 122 (2003).
Under FECA, in other words, the FEC possesses
statutory authority to require a non-profit to use its hardmoney account to pay for federal activities, generic activities,
and mixed federal-state-local activities. See id. at 122-23.17
17
As explained earlier in this opinion, those approaches run
into severe First Amendment obstacles. For purposes of this
discussion, however, we analyze the statute as written without
regard to constitutional implications.