10 opens its reply brief by saying “[t]he regulations at issue in this case violate the First Amendment, Chevron[], and the Administrative Procedure Act.” EMILY’s List Reply Br. at 1 (emphasis added). EMILY’s List also contends § 106.6(c) requires using hard money for ads that state “both Democrats and Republicans” support a measure. Id. at 16. It goes without saying that EMILY’s List never argues “the regulations all violate FECA, except for the second and third clauses in the second sentence of 11 C.F.R. § 106.6(c).”8 Second and even more perplexingly, in order to buttress its waiver argument, the same judges that read McConnell narrowly as a case that “views political parties as different in kind than independent expenditure committees,” Maj. Op. at 22, concludes EMILY’s List could not have successfully challenged § 106.6(c)’s regulation of generic activities on statutory grounds because McConnell specifically approved regulation of contribution and expenditure limits for these funds. Id. at 41–42. If this were correct, it would mean the FEC can constitutionally regulate a committee like EMILY’s List, and the court’s constitutional analysis is critically undermined. 8 Even if we assume EMILY’s List has inadequately raised this issue, waiver is a prudential doctrine—not jurisdictional. E.g., Mitchell v. Fishbein, 377 F.3d 157, 164–65 (2d Cir. 2004). And though my colleagues are mistaken on waiver, if they were truly concerned about this, we could order additional briefing. E.g., U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444–48 (1993) (holding the D.C. Circuit did not err in ordering supplemental briefing on a subject not raised because “when an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law”).