37
to exclusively support state and local candidates. Each donor
fully and correctly understands that only a small portion of his
or her gift will be used “for the purpose of influencing”
federal elections. And yet, § 100.57 requires that at least 50%
of donations in response to such a solicitation be classified as
a hard-money donation subject to the $5000 cap – thereby
simultaneously creating a separate $5000 cap on soft-money
donations given in response to such a solicitation. This may
require a non-profit to decline or return funds it receives for
purely state and local elections. That is not permissible under
FECA.
In short, there is a significant mismatch between these
challenged provisions and the FEC’s authority under FECA.
Therefore, we conclude that §§ 106.6(f) and 100.57, as well
as the provision in § 106.6(c) that applies to administrative
expenses, exceed the FEC’s statutory authority.20
20
EMILY’s List separately argues that three of the five
regulatory provisions at issue in this case are also arbitrary and
capricious under the Administrative Procedure Act. EMILY’s List
Br. at 40-44. We are less persuaded by EMILY’s List’s freestanding arbitrary and capricious argument. Putting aside the
constitutional and statutory-authority problems with the challenged
rules, the provisions are not otherwise arbitrary and capricious.
Agencies generally do not violate the APA’s deferential arbitraryand-capricious standard when they employ bright-line rules for
reasons of administrative convenience, so long as those rules fall
within a zone of reasonableness and are reasonably explained. See,
e.g., ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1084
(D.C. Cir. 2002); WorldCom, Inc. v. FCC, 238 F.3d 449, 461-62
(D.C. Cir. 2001).
EMILY’s List does not bring a challenge under either FECA
or the APA to § 106.6(c)’s requirement that covered non-profits
pay at least 50% of the cost of their generic communications out of
their hard-money accounts. See EMILY’s List Br. at 35-44.