19
It is true McConnell upheld, against an equal protection
challenge, a provision of BCRA regulating political parties.
But regulation of political parties is not McConnell’s theme.
The Court broadly recognized and deferred to governmental
interests in preventing corruption, the appearance of
corruption, and circumvention of election regulations.
McConnell, 540 U.S. at 136–37, 143–45, 152–53. Arguably,
this expansive corruption/circumvention/conduit rationale is
broad enough to encompass some limits on independent
expenditure committees, particularly for those political
committees with a self-proclaimed electoral mission. See
Briffault, 73 GEO. WASH. L. REV. at 986–87; Hasen, 153 U.
PA. L. REV. at 67–68. EMILY’s List is a multicandidate
political committee that has as its primary purpose electing
ideologically compatible candidates, EMILY’s List Br. at 3. 13
pronouncement on constitutional issues, but also from premature
interpretations of statutes in areas where their constitutional
application might be cloudy.” Wash. State Grange v. Wash. State
Republican Party, 128 S. Ct. 1184, 1190–91 (2008). As a rule, a
law is facially repugnant only if it “is unconstitutional in all of its
applications,” but there is a narrow First Amendment exception
where “a law may be overturned [if] a substantial number of its
applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep,” id. at 1191 n.6. Those seeking this
“strong medicine,” id., however, face a “heavy burden,”
McConnell, 540 U.S. at 207.
13
In defining its mission, EMILY’s List explains that it “is
committed to a three-pronged strategy to elect pro-choice
Democratic women: recruiting and funding viable women
candidates; helping them build and run effective campaign
organizations; and mobilizing women voters to help elect
progressive candidates across the nation.” EMILY’s List, Our
Mission, http://emilyslist.org/about/mission/ (last visited Aug. 28,
2009).