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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 1 of 71 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 23-5161 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

READY TO WIN, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Christopher H. Bell 

Acting General Counsel Attorney 

lstevenson@fec.gov chbell@fec.gov 

Kevin Deeley Federal Election Commission 

Associate General Counsel 1050 First Street NE 

kdeeley@fec.gov Washington, DC 20463 

(202) 694-1650 

January 17, 2024 
 

 

 

 

 

USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 2 of 71 

APPELLANT FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

(A) Parties and Amici. All parties, intervenors, and amici appearing 

before the district court and in this court are listed in the Certificate as to 

Parties, Rulings, and Related Cases submitted by plaintiff-appellant Ready to 

Win. 

(B) Ruling Under Review. Plaintiff-appellant appeals the order entered 

on May 17, 2023 by the United States District Court for the District of 

Columbia (Moss, J.) denying Plaintiff’s Motion for Preliminary Injunction 

[Docket Entry #30]. The Memorandum Opinion is available at Ready to Win v. 

FEC, Civ. No. 22-3282, 2023 WL 3539633 (D.D.C. May 17, 2023). 

(C) Related Cases. The FEC is not aware of any related cases at this 

time. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 3 of 71 

TABLE OF CONTENTS 

INTRODUCTION ............................................................................................1 

COUNTERSTATEMENT OF JURISDICTION .............................................2 

COUNTERSTATEMENT OF THE ISSUES...................................................3 

STATUTES AND RULES ...............................................................................5 

STATEMENT OF THE CASE.........................................................................5 

I. LEGAL BACKGROUND......................................................................5 

A. The Federal Election Commission’s Advisory 

Opinion Process............................................................................5 

B. FECA’s Regulation of “Candidates” and the 

Limited Exception for Testing the Waters Activity.....................6 

C. Contribution Limits and In-Kind Contributions 

of Mailing and Email Lists...........................................................8 

II. FACTUAL BACKGROUND...............................................................10 

A. Plaintiff-Appellant Ready to Win ..............................................10 

B. Commission Processing of Requestor’s Advisory 

Opinion Request.........................................................................11 

1. Requestor’s Request.........................................................11 

2. Decision ...........................................................................13 

C. The Proceedings Below..............................................................15 

D. Requestor’s Appeal ....................................................................18 

SUMMARY OF ARGUMENT ......................................................................19 
 

 

 

 

 

 

 

 

 

 

 

 

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STANDARDS OF REVIEW..........................................................................20 

ARGUMENT ..................................................................................................20 

I. REQUESTOR’S CONTENTIONS REGARDING 

DESANTIS’S PRE-CANDIDACY AND 

TESTING-THE-WATERS PERIOD ARE MOOT .............................20 

II. THE FIRST AMENDMENT PERMITS 

REGULATION OF IN-KIND CONTRIBUTIONS 

TO CANDIDATES FOR FEDERAL OFFICE, 

INCLUDING VALUABLE MAILING LISTS WITH 

EXTENSIVE CONTACT INFORMATION .......................................22 

A. The District Court Correctly Determined that 

Applying FECA’s Campaign Contribution 

Limitations to Requestor’s Proposed Conduct 

Easily Satisfies Intermediate Scrutiny .......................................23 

B. Requestor’s Arguments that Ignore Controlling 

Constitutional Law are Inapposite to Its Claim .........................26 

C. The FEC is Not Engaged in Content Discrimination.................30 

III. THE DISTRICT COURT CORRECTLY CONCLUDED 

THAT THE COMMISSION MAY CONSTRUE FECA 

TO APPLY TO THE TRANSFER OF THE MAILING LIST 

REQUESTOR COMPILED AFTER GOVERNOR DESANTIS 

BECAME A CANDIDATE AND WHILE HE WAS TESTING 

THE WATERS .....................................................................................33 

A. The Commission Reasonably Construed the Term 

“Contribution” in FECA to Determine That Requestor 

Could Not Transfer a List of Potential Supporters to 

Governor DeSantis after he Begins Testing the 

Waters or Becomes a Candidate.................................................34 

B. The Commission Reasonably Determined that 

Requestor is Not Serving as a “Conduit” for the 

Contributions of Others..............................................................40 

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C. The Commission Reasonably Determined that 

Requestor May Not Provide Its Mailing List if 

Governor DeSantis is Testing the Waters ..................................49 

IV. THE COURT SHOULD REMAND THIS MATTER FOR 

PENDING DISCOVERY.....................................................................53 

CONCLUSION...............................................................................................56 

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594 (D.C. Cir. 1990) ................ 34 

Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020)....................... 39 

*Buckley v. Valeo, 424 U.S. 1 (1976).................5, 8, 23-24, 25, 28, 29, 32, 38 

Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012)......................................... 10 

Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) ........................................... 54 

Clark v. United States, 915 F.2d 699 (D.C. Cir. 1990) ................................. 20 

Davis v. FEC, 554 U.S. 724 (2008) ............................................................... 22 

Doe v. Sec. & Exch. Comm’n, 28 F.4th 1306 (D.C. Cir. 2022)..................... 35 

FEC v. Akins, 524 U.S. 11 (1998).................................................................... 7 

FEC v. Beaumont, 539 U.S. 146 (2003) ........................................................ 28 

*FEC v. Christian Coal., 

52 F. Supp. 2d 45 (D.D.C. 1999)....................................9, 25, 29, 38, 48-49, 

FEC v. Cruz, 142 S. Ct. 1638 (2022)........................................................51-52 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981)...................................................................................... 35 

FEC v. Int’l Funding Inst. Inc., 969 F.2d 1110 (D.C. Cir. 1992).............. 9, 25 

FEC v. Machinists Non-Partisan Pol. League, 

655 F.2d 380 (D.C. Cir. 1981).........................................................10-11, 50 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001) ............ 35, 37 

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Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 

920 F.3d 1 (D.C. Cir. 2019) .................................................................. 20, 45 

Herron for Congress v. FEC, 903 F. Supp. 2d 9 (D.D.C. 2012)..............21-22 

Holmes v. FEC, 832 F.3d 69 (D.C. Cir. 2016) .............................................. 22 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)................................................... 35, 53 

Libertarian Nat’l Comm. v. FEC, 924 F.3d 533 (D.C. Cir. 2019) ................ 30 

*McCutcheon v. FEC, 572 U.S. 185 (2014)................................ 23, 24, 25, 28 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..................................................... 34 

Murphy v. Hunt, 455 U.S. 478 (1982) ........................................................... 21 

Nat’l Lifeline Ass’n v. FCC, 983 F.3d 498 (D.C. Cir. 2020)......................... 35 

Salazar ex rel. Salazar v. D.C., 671 F.3d 1258 (D.C. Cir. 2012).................. 54 

San Luis Obispo Mothers for Peace v. NRC, 

789 F.2d 26 (D.C. Cir. 1986) ...................................................................... 35 

Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) .................... 20 

Sibley v. Alexander, 916 F. Supp. 2d 58 (D.D.C. 2013)................................ 21 

U. S. Lines, Inc. v. Fed. Mar. Comm’n, 

584 F.2d 519 (D.C. Cir. 1978) .................................................................... 31 

United States v. Stevens, 559 U.S. 460 (2010) .............................................. 28 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ...................................... 34 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015).......................................... 24, 26 

Wash. Reg’l Medicorp v. Burwell, 813 F.3d 357 (D.C. Cir. 2015) ............... 36 

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Statutes 

5 U.S.C. § 702................................................................................................ 16 

28 U.S.C. § 1291............................................................................................ 54 

28 U.S.C. § 1292(a)(1)............................................................................. 18, 54 

28 U.S.C. § 2201.................................................................................15-16, 33 

52 U.S.C. §§ 30101-46 .................................................................................... 5 

52 U.S.C. § 30101(2) ................................................................................. 6, 50 

52 U.S.C. § 30101(2)(A)................................................................................ 39 

52 U.S.C. § 30101(8) ....................................................................................... 6 

52 U.S.C. § 30101(8)(A)................................................................................ 50 

52 U.S.C. § 30101(8)(A)(i).............................................................. 7, 9, 31, 32 

52 U.S.C. § 30101(8)(A)(ii)............................................................................. 9 

52 U.S.C. § 30101(9) ................................................................................... 6, 7 

52 U.S.C. § 30101(9)(A)................................................................................ 50 

52 U.S.C. § 30101(9)(A)(i).............................................................................. 7 

52 U.S.C. § 30101(11) ..................................................................................... 9 

52 U.S.C. § 30106(b)(1) .................................................................................. 5 

52 U.S.C. § 30106(c) ....................................................................................... 5 

52 U.S.C. § 30106(e) ....................................................................................... 5 

52 U.S.C. § 30107(a) ....................................................................................... 5 

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52 U.S.C. § 30107(a)(6)................................................................................... 5 

52 U.S.C. § 30107(a)(7)................................................................................... 5 

52 U.S.C. § 30107(a)(8)................................................................................... 5 

52 U.S.C. § 30107(a)(9)................................................................................... 5 

52 U.S.C. § 30108............................................................................................ 5 

52 U.S.C. § 30108(a) ....................................................................................... 6 

52 U.S.C. § 30108(c) ....................................................................................... 6 

52 U.S.C. § 30109............................................................................................ 5 

52 U.S.C. § 30111(a)(8)................................................................................... 5 

52 U.S.C. § 30116(a) ..................................................................................... 15 

52 U.S.C. § 30116(a)(1)(A) ................................................................. 9, 16, 33 

52 U.S.C. § 30116(a)(2)(A) ............................................................................. 9 

52 U.S.C. § 30116(a)(8)..................................................................... 15, 16, 33 

Rules and Regulations 

11 C.F.R. § 100.5(a)....................................................................................... 10 

11 C.F.R. § 100.5(f) ....................................................................................... 10 

11 C.F.R. § 100.52(d)(1)...................................................................... 9, 10, 31 

11 C.F.R. § 100.72 ............................................................................... 7, 14, 15 

11 C.F.R. § 100.72(a)............................................................................. 7, 8, 50 

11 C.F.R. § 100.131 ................................................................................... 7, 50 

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11 C.F.R. § 102.8(a)....................................................................................... 42 

11 C.F.R. § 102.8(c)....................................................................................... 42 

11 C.F.R. § 102.14(b)(2)................................................................................ 11 

11 C.F.R. § 106.6(a)....................................................................................... 10 

11 C.F.R. § 110.1(b) ...................................................................................... 15 

11 C.F.R. § 110.1(d) ...................................................................................... 15 

11 C.F.R. § 110.6(b)(2).................................................................................. 45 

11 C.F.R. § 110.6(c)(1).................................................................................. 42 

11 C.F.R. § 110.6(d)(2)............................................................................ 42, 45 

11 C.F.R. § 112.1(a)......................................................................................... 6 

11 C.F.R. § 112.1(b) ........................................................................................ 6 

11 C.F.R. § 112.1(c)......................................................................................... 6 

11 C.F.R. § 112.1(d) ........................................................................................ 6 

11 C.F.R. § 112.4(a)......................................................................................... 6 

11 C.F.R. § 112.4(c)......................................................................................... 6 

Fed. R. App. P. 30(a)(2)................................................................................. 16 

Payments Received for Testing the Waters Activities, 

50 Fed. Reg. 9992 (Mar. 13, 1985)........................................................... 7, 8 

Miscellaneous 

FEC Advisory Op. 1976-86, 1976 WL 419397 

(McDonald for Congress) ........................................................................... 36 

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FEC Advisory Op. 1977-51, 1977 WL 438159 (Hon. Cecil Heftel)............. 36 

FEC Advisory Op. 1981-32, 1981 WL 721644 

(Donald M. Middlebrooks) ......................................................................... 52 

FEC Advisory Op. 1995-09, 1995 WL 247474 (NewtWatch PAC) ............. 47 

FEC Advisory Op. 2002-14, 2003 WL 715988 

(Libertarian National Committee)................................................................. 9 

FEC Advisory Op. 2003-23, 2003 WL 22827476 (We Lead) ...................... 41 

FEC Advisory Op. 2006-30, 2006 WL 3390749 (Act Blue)....................41-42 

FEC Advisory Op. 2011-02, 2011 WL 7629547 

(Scott Brown for U.S. Senate Committee).................................................... 9 

FEC Advisory Op. 2014-06, 2014 WL 3748239 

(Ryan for Congress, et. al) ............................................................................ 9 

FEC Advisory Op. 2014-19, 2015 WL 1754737 (Act Blue)......................... 41 

FEC Advisory Op. 2019-15 (NORPAC), 

https://www.fec.gov/files/legal/aos/2019-15/2019-15.pdf ......................... 47 

H.R. Rep. No. 96-422 ...................................................................................... 6 

R. Biersack, P. Herrnson & C. Wilcox, 

Seeds for Success: Early Money in Congressional Elections, 

18 Leg. Studies Q. 535, 548 (1993) ............................................................ 52 

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GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

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INTRODUCTION 

Compiled contact information for groups of people who support a person 

running for office is one of the most valuable assets of a nascent political 

campaign. Data on persons likely to be sympathetic to a particular political cause 

can be rented or purchased in a market for thousands of dollars, and candidates, 

parties, and other groups closely safeguard this information. As a result, the 

Federal Election Commission (“FEC” or “Commission”) long ago concluded that 

transfers of membership, mailing, or “contact” lists are subject to limitations on inkind contributions in the Federal Election Campaign Act (“FECA”) and may not 

be given for free to a person running for office if its market value exceeds that 

limit. Courts, likewise, have affirmed the Commission’s application of this 

principle to even publicly available information that an outside group compiles to 

send to a campaign. 

In the proceedings below, plaintiff Ready to Win (designated herein as the 

advisory opinion “Requestor”) sought a preliminary injunction challenging a 

Commission Advisory Opinion applying these principles to conclude that 

Requestor may not give a potential candidate information that includes, at a 

minimum, the name and email address of thousands of people who have expressed 

support for that potential candidacy and which Requestor has spent hundreds of 

thousands of dollars compiling, at least insofar as the potential candidate is 
 

 

 

 

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determining whether to run for office or has decided to run. Requestor’s position 

is based on its counterintuitive assertion that a list of names and contact 

information is not a mailing list. After multiple rounds of briefing and oral 

argument, the district court had no trouble affirming the FEC’s advisory opinion 

and rejecting Requestor’s theory, finding that FECA’s well-established 

contribution limits to candidates prohibited Requestor’s proposed course of 

conduct, and that there is no constitutional infirmity in their application here. 

Requestor’s contentions regarding pre-candidacy and pre-testing the waters periods 

are now moot. Even if they were not, however, Requestor fails to show that the 

district court committed error as to any phase, particularly not the live postcandidacy period. Neither the First Amendment nor FECA requires the 

Commission to blind itself to the practical effect of Requestor’s proposal, which 

would exempt from FECA’s limits a transfer of immense value that falls squarely 

within the contribution limits. This Court should affirm the district court’s denial 

of Requestor’s motion for a preliminary injunction and remand this ongoing matter 

for further proceedings. 

COUNTERSTATEMENT OF JURISDICTION 

This Court has jurisdiction over Requestor’s interlocutory appeal of the 

district court’s denial of Plaintiff-Appellant Ready to Win’s Motion for 

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Preliminary Injunction, J.A. 279,1 which the district court treated as a motion for 

summary judgment and a permanent injunction as to Requestor’s nonconstitutional claims, J.A. 291. 

This Court does not have jurisdiction over the district court’s order denying 

Requestor’s Motion for Entry of Judgment, Civ. No. 22-3282 (Docket No. 33) 

(filed June 23, 2023). While Requestor’s Opposition to FEC’s Partial Motion to 

Dismiss (Document #2015872) disavowed any intent to directly appeal the district 

court’s denial of final judgment at this stage, id. at 11, Requestor nonetheless asks 

this Court to dismiss its Complaint in the event this appeal is unsuccessful, which 

would effectively circumvent the lower court’s decision despite discovery pending 

below. 

As explained below, Requestor’s contentions regarding the pre-candidacy 

and testing-the-waters periods are now moot. See infra, pp. 20-22. 

COUNTERSTATEMENT OF THE ISSUES 

1. When a group forms to draft one individual to become a candidate and 

the individual becomes a candidate, are legal issues related to the period before 

candidacy moot? 

Citations to the Joint Appendix appear in the format “J.A. [X],” where [X] is 

the Appendix page number. 

3 

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2. Does the First Amendment allow the government to limit in-kind 

contributions to candidates to federal office, including contributions in the form of 

membership or mailing lists with extensive contact information that are a valuable 

asset to political campaigns? 

3. Does the attachment of a political statement to an in-kind contribution 

to a federal candidate exempt that contribution from generally applicable 

limitations intended to deter corruption and its appearance, regardless of that 

contribution’s source and monetary value? 

4. Should an organization that spends hundreds of thousands of dollars 

to collect and compile voter contact information, and provides this information to a 

federal candidate, be considered the source of that contribution? 

5. In the event Plaintiff-Appellant Ready to Win is not entitled to a 

preliminary injunction, should this Court remand this matter to the district court for 

the resumption of pending discovery prior to a final decision on the merits? 

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STATUTES AND RULES 

The relevant statutory and regulatory provisions are set out in the Addendum 

to this brief. 

STATEMENT OF THE CASE 

I. Legal Background 

A. The Federal Election Commission’s Advisory Opinion Process 

The FEC is an independent agency of the United States government with 

jurisdiction over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-46 (“FECA”). See generally 

52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. Congress provided for the 

Commission to “prepare written rules for the conduct of its activities,” 52 U.S.C. § 

30106(e), “formulate policy” under FECA, see, e.g., 52 U.S.C. § 30106(b)(1), and 

make rules and issue advisory opinions, 52 U.S.C. §§ 30107(a)(7), (8); id. 

§§ 30108; 30111(a)(8); see also Buckley v. Valeo, 424 U.S. 1, 110-11 (1976) (per 

curiam). At least four affirmative Commissioner votes are required for the 

Commission to take certain actions, including, inter alia, issuing advisory 

opinions, promulgating regulations, and advancing enforcement matters. Id. 

§§ 30106(c), 30107(a)(6)-(9). 

Anyone may request an advisory opinion regarding the application of FECA 

and Commission regulations to a specific transaction or activity by that person. 52 

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U.S.C. § 30108(a); 11 C.F.R. § 112.1(a). FECA generally provides that the 

Commission “shall render [an] advisory opinion” within 60 days. 52 U.S.C. § 

30108(a); see 11 C.F.R. § 112.1(b)-(d). Congress recognized, however, that the 

Commission may not be able to issue an advisory opinion in some cases due to the 

four-vote requirement, so “[a] 3-3 vote by the Commission on the proposed 

opinion is considered a response for purposes of the time requirements[.]” H.R. 

Rep. No. 96-422 (1979), at 20. Accordingly, the Commission adopted a regulation 

that it shall either issue an advisory opinion or “a written response stating that the 

Commission was unable to approve an advisory opinion by the required 

affirmative vote of 4 members” within 60 days of receiving a complete request. 11 

C.F.R. § 112.4(a), (c). Commission advisory opinions act as a safe harbor against 

sanction for any person who follows the opinion in good faith and is involved in 

the same or a materially indistinguishable transaction. 52 U.S.C. § 30108(c). 

B. FECA’s Regulation of “Candidates” and the Limited Exception 

for Testing the Waters Activity 

Under 52 U.S.C. § 30101(2), “candidate” means “an individual who seeks 

nomination for election, or election, to federal office,” and an individual is deemed 

a candidate if he or she receives “contributions” or makes “expenditures” in excess 

of $5,000 or gives consent to another person to receive contributions or make 

expenditures on his or her behalf aggregating in excess of $5,000. “Contribution” 

and “expenditure” are defined terms of art. See 52 U.S.C. § 30101(8), (9). Those 

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terms cover only those receipts and disbursements that are made “for the purpose 

of influencing any election for Federal office.” Id. § 30101(8)(A)(i), (9)(A)(i); see 

also FEC v. Akins, 524 U.S. 11, 15 (1998). FECA thus establishes automatic 

thresholds for becoming a candidate, a status which triggers registration and 

reporting requirements. 

Since 1977, the Commission has established “limited exceptions” to these 

automatic thresholds which permit an individual to test the feasibility of a 

campaign for federal office without becoming a candidate under FECA. FEC, 

Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9992, 9993 

(Mar. 13, 1985). Commonly referred to as the “testing the waters” exceptions, 11 

C.F.R. § 100.72 and § 100.131 exclude funds received and payments made to 

determine whether an individual should become a candidate from the definitions of 

“contribution” and “expenditure,” respectively. An individual who undertakes 

“testing the waters” activities must nevertheless keep records of all funds received 

and payments made in connection with these activities, which become 

contributions and expenditures under the FECA if the person subsequently 

becomes a candidate. 11 C.F.R. § 100.72(a). 

Prior to March 1985, the Commission’s regulations permitted a candidate to 

refund any excessive or prohibited contributions received during the “testing the 

waters” period within 10 days after the individual became a candidate. Payments 

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Received for Testing the Waters Activities, 50 Fed. Reg. at 9994. However, the 

Commission “reconsidered this issue and determined that permitting prohibited 

funds to be used for ‘testing the waters’ activities extended the exemptions beyond 

the narrow range of activities they were originally intended to encompass.” Id. 

Accordingly, the Commission revised the regulations, id., such that “[o]nly funds 

permissible under the Act may be used for [testing the waters] activities.” 11 

C.F.R. § 100.72(a). 

C. Contribution Limits and In-Kind Contributions of Mailing and 

Email Lists 

In 1974, Congress substantially revised FECA in response to the Watergate 

scandal and the “deeply disturbing” reports from the 1972 federal elections of 

contributors giving large amounts of money to candidates “to secure a political 

quid pro quo.” Buckley, 424 U.S. at 26-27. With FECA, Congress primarily 

intended to “limit the actuality and appearance of corruption resulting from large 

individual financial contributions.” Id. at 26. And in Buckley, the Supreme Court 

held that Congress could constitutionally limit the dollar amounts of contributions 

to candidates for federal office, id. at 24, and may limit the “provision of in-kind 

assistance” to a candidate or his campaign, id. at 36-37. 

To satisfy these governmental interests, FECA prohibits a political 

committee, other than a multicandidate committee, from contributing more than 

$2,900 to any candidate with respect to any election for federal office. See 52 

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U.S.C. §§ 30101(11) (defining “person” to include political committees); 

30116(a)(1)(A), (a)(2)(A). A contribution includes “in-kind” contributions, which 

are “the provision of any goods or services without charge or at a charge that is 

less than the usual and normal charge.” 11 C.F.R. § 100.52(d)(1); see also 52 

U.S.C. § 30101(8)(A)(i)-(ii) (defining “contribution” to include “anything of 

value” and “the payment by any person of compensation for the personal services 

of another person which are rendered to a political committee without charge”). 

The Commission has “long recognized” that political committee mailing and 

email lists have commercial value and are “frequently sold, rented, or exchanged in 

a market.” FEC Advisory Op. 2014-06, 2014 WL 3748239 at *7 (Ryan for 

Congress, et. al) (collecting examples); see, e.g., FEC Advisory Op. 2011-02, 2011 

WL 7629547 at *5 (Scott Brown for U.S. Senate Committee) (same); FEC 

Advisory Op. 2002-14, 2003 WL 715988 at *2 (Libertarian National Committee). 

Indeed, as “the product of time-consuming, labor-intensive activities that can cost a 

political committee thousands, even millions, of dollars” to compile, a political 

committee’s list of persons sympathetic to its cause is among “its most valuable 

assets.” FEC v. Int’l Funding Inst. Inc., 969 F.2d 1110, 1116 (D.C. Cir. 1992) (en 

banc) (internal citations omitted); see also FEC v. Christian Coal., 52 F. Supp. 2d 

45, 96 (D.D.C. 1999). Accordingly, the Commission’s regulations specifically 

identify “membership lists” and “mailing lists” as examples of goods that are in9 
 

 

 

 

 

 

 

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kind contributions when provided to a candidate or political committee without 

charge or at less than their usual and normal charge. 11 C.F.R. § 100.52(d)(1). 

II. Factual Background 

A. Plaintiff-Appellant Ready to Win 

On May 23, 2022, Requestor registered with the Commission as a hybrid, 

nonconnected, unauthorized political committee. Ready for Ron, Statement of 

Organization, FEC Form 1 (May 23, 2022), https://docquery.fec.gov/cgibin/forms/C00815928/1597424/; see 11 C.F.R. §§ 100.5(a), (f), 106.6(a). 

Requestor was “formed to draft Florida Governor Ron Desantis as the Republican 

Party’s nominee for President in 2024.” J.A. 12. As a “hybrid” PAC under Carey 

v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012), Requestor may, and does, accept 

contributions into two accounts: (1) a “contribution” or “hard money” account 

subject to the FECA’s source prohibitions and contribution limits; and (2) to a 

“non-contribution” account, which accepts unlimited contributions (from 

individuals other than prohibited sources). J.A. 13. From its contribution account, 

Requestor may make contributions to federal candidates and from its noncontribution account, Requestor may make independent expenditures. 

Following early FECA caselaw, organizations created to “draft” a person to 

become a candidate for federal office have often not registered as political 

committees pursuant to FECA. See, e.g. FEC v. Machinists Non-Partisan Pol. 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 23 of 71 

League, 655 F.2d 380, 383-84 (D.C. Cir. 1981). Requestor, however, voluntarily 

chose to register as a political committee.2 In the 2023-24 election cycle it has 

reported making over $1,592,000 in independent expenditures opposing Joe Biden, 

an amount which makes up the entirety of the committee’s spending on 

independent expenditures or contributions. See Ready to Win, Financial summary, 

https://www.fec.gov/data/committee/C00815928/?cycle=2024 (last accessed Jan. 

16, 2024). 

B. Commission Processing of Requestor’s Advisory Opinion Request 

1. Requestor’s Request 

Requestor requested an advisory opinion from the Commission on May 25, 

2022, J.A. 51-71, which it later supplemented with additional information 

requested by the Commission, J.A. 68-72. The request and various supplements 

proposed to use funds from both its contribution and non-contribution account to 

finance a nationwide petition to encourage Governor DeSantis to run for president 

in 2024. Requestor explained that it was engaging in extensive media outreach to 

support its petition, including television, online advertisements and earned media 

coverage, and provided statistics regarding the extent of this outreach. J.A. 53. 

Although there is a regulation addressing how a “political committee 

established solely to draft an individual . . . to become a candidate” may name 

itself, 11 C.F.R. § 102.14(b)(2), there have never been any special registration or 

reporting requirements applicable to such committees. 

11 

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Requestor planned to continue promoting the petition “through radio, podcast, 

Skywriting, direct mail, billboards, blimps, and other media,” and estimated 

spending an average of $25,000-$50,000 per week on advertisements supporting 

the petition through 2024. J.A. 53-54. Individuals who wished to “sign” the 

petition could do so through Requestor’s website or by phone, and could provide 

their name, phone number, email address, and zip code. J.A. 53. Each signatory 

was required to provide their name and email address. Id.; see J.A. 14. Requestor 

notified individuals that, by signing the petition, they agreed to have their names 

and contact information provided to Governor DeSantis. J.A. 53-54. 

Requestor proposed to provide this information — including all provided 

contact information — to Governor DeSantis without charge. J.A. 55. Requestor 

projected that its petition would likely eventually include contact information of 

“millions” of signatories. Id. As of September 14, 2022, Requestor had collected 

approximately 43,750 signatures; moreover, Requestor planned to submit “regular 

updates” to Governor DeSantis through the 2024 election. See J.A. 173 n.8. 

Requestor stated that the market value of the information it planned to provide to 

Governor DeSantis would exceed $2,900. J.A. 173. 

Requestor presented two questions to the Commission. First, whether 

Requestor could provide its petition, along with the accompanying list of 

signatories and their contact information, to Governor DeSantis to attempt to 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 25 of 71 

persuade him to become a candidate for the Republican nomination for president in 

2024. J.A. 55. Second, assuming yes, whether Requestor was required to do so 

before Governor DeSantis either starts testing the waters to become a candidate for 

the office of president or becomes a candidate for the office of president, should he 

do either. J.A. 55-56. 

2. Decision 

The Commission voted in a public meeting on two draft advisory opinions, 

neither of which garnered the required four votes for approval. The 

Commissioners then approved by notation, or “tally vote,” a draft that reflected the 

substantial areas of agreement among Commissioners. The resulting Advisory 

Opinion 2022-12 concluded that Requestor could not provide the names and 

contact information to Governor DeSantis if he either becomes a federal candidate 

or begins testing the waters for a potential federal candidacy because the value of 

that information would exceed the applicable contribution limits on funds used to 

test the waters. J.A. 171. The Commission also concluded that the proposal was 

contrary to restrictions on the use of funds in the non-contribution accounts of 

hybrid committees. Id. These conclusions were unanimous among the six FEC 

Commissioners. J.A. 169. 

In reaching its conclusions, the Commission relied on four bases. First, 

the compiled contact information in Requestor’s petition was a thing of value, 

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similar to a mailing or membership list, and the provision of the contact 

information to Governor DeSantis would therefore constitute an in-kind 

contribution to Governor DeSantis. J.A. 175. Second, Requestor’s proposal would 

result in an excessive contribution to Governor DeSantis if provided to him 

without charge after he becomes a federal candidate. J.A. 176. Third, the proposal 

to provide the signatories’ contact information to Governor DeSantis after he 

begins testing the waters for a federal candidacy, should he choose to do so, would 

be contrary to the Commission’s regulation at 11 C.F.R. § 100.72. J.A. 177. 

Fourth, the proposal to provide the contact information in the event he either 

becomes a federal candidate or begins testing the waters would be inconsistent 

with restrictions on a hybrid PAC’s use of its non-contribution account. J.A. 179. 

As to whether Requestor could provide the contact information from its 

petition without charge to Governor DeSantis in advance of any indication that 

Governor DeSantis was testing the waters, one draft that garnered the approval of 

three Commissioners concluded that the provision of the petition with contact 

information would be subject to the testing the waters regulation at any point in 

advance of a declaration of candidacy. Another draft opinion supported by two 

Commissioners concluded that neither FECA nor Commission regulations 

governed the donation of things of value to individuals who are neither federal 

candidates nor testing the waters. The Commission notified plaintiff that it could 

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not approve a response to this portion of the advisory opinion request by the 

required four votes. J.A. 17 

C. The Proceedings Below 

Nearly one month after receiving its Advisory Opinion, on October 27, 

2022, Requestor filed a complaint seeking preliminary and permanent injunctions 

prohibiting the Commission from applying the “testing of waters” statute or 

regulations to Requestor’s provision of the petition and signatories’ contact 

information to Governor DeSantis; a declaratory judgment holding that 52 U.S.C. 

§ 30116(a) and implementing regulations at 11 C.F.R. § 110.1(b) and (d) are 

unconstitutional as applied to the provision of a signed draft petition and the 

petition-related expenditure of funds raised outside the limits and prohibition of the 

FECA; a declaration that section 30116 does not limit transfers to a person who is 

not a candidate, and that 52 U.S.C. § 30116(a)(8) allows Requestor to act as a 

conduit to pass signatures and contact information from a petition’s signatories to 

the recipient; a declaration that 11 C.F.R. § 100.72 (the “testing the waters” 

regulation) is void and unenforceable; and a request to the Court to vacate A.O. 

2022-12. J.A. 48-50. 

Plaintiff’s complaint includes six causes of action: Count I (First 

Amendment); Count II (Challenge to FECs Refusal to Issue Requested Advisory 

Opinion under the APA); Count III (Declaratory Judgment under 28 U.S.C. 

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§ 2201); Count IV (Equality Claim for Injunctive Relief);3 Count V (52 U.S.C. 

§ 30116(a)(1)(A), (a)(8)); and Count VI (Challenge to FEC’s “Testing the Waters” 

Regulation under the APA, 5 U.S.C. § 702). J.A. 39-48. Nearly two months after 

filing its complaint, and nearly three months after receiving its Advisory Opinion, 

Requestor filed a motion for a preliminary injunction with respect to all its claims, 

accompanied by a memorandum of law in support.4 

On May 17, 2023, the district court denied Requestor’s motion and ruled in 

the FEC’s favor on all counts. J.A. 338. The court began by rejecting the notion 

this case is about a political petition, finding that “the dispute is about the contact 

list.” J.A. 293. The district court easily held such a contact list falls within the 

FECA’s definition of “contribution[.]” J.A. 293-304. It further held that 

Requestor is not a “conduit” for transmitting contact information from the 

petition’s signatories to Governor DeSantis pursuant to 52 U.S.C. § 30116(a)(8). 

J.A. 304-316. Based on these findings, the court determined that “[Requestor] may 

not provide its contact list to Governor DeSantis free of charge—at any time[,]” 

and for this reason dismissed Requestor’s challenge to the Commission’s testing3 Requestor “is no longer pursuing Count IV[.]” Br. at 1, n.1. 

4 Requestor elected to include in the Joint Appendix certain memoranda of 

law. See J.A. 182-85, J.A. 221-23, J.A. 253-56. Those were improperly included 

over the Commission’s objection. See FRAP 30(a)(2); Handbook of Practice and 

Internal Procedures at 44, 

https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-

%20Handbook%202006%20Rev%202007/$FILE/Handbook20210316.pdf. 

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the-waters regulation. J.A. 316. Finally, the district court held that the First 

Amendment does not prohibit the Commission from applying FECA’s contribution 

limits to Requestor’s contact list. J.A. 327. 

Following the court’s decision, on June 23, 2023, Requestor moved for an 

order granting final judgment as to all claims in the Commission’s favor, or in the 

alternative granting judgment as to all but RtW’s First Amendment claim pursuant 

to Federal Rule of Civil Procedure 54(b) or, as a third alternative, staying 

discovery during the pendency of its planned appeal to this court. Order, Civ. No. 

22-3282, at 1-2 (Docket No. 42) (D.D.C. July 28, 2023) (“Final Judgment 

Denial”); see J.A. 6 (district court docket). The FEC opposed this motion, 

emphasizing that it is entitled to seek discovery as to factual matters impacting 

RtW’s claims for relief under the First Amendment. The district court issued an 

order on July 28, 2023, in which it denied RtW’s motion to enter judgment in the 

Commission’s favor as to all claims, noting that each of RtW’s claims touch on 

First Amendment issues and that the Commission had preserved its right to seek 

discovery in that regard. Final Judgment Denial at 1-2. However, the district court 

granted RtW’s alternative request to stay discovery pending the outcome of this 

appeal. Id. at 2-3. 

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D. Requestor’s Appeal 

Following Requestor’s notice of appeal, the FEC filed a Partial Motion to 

Dismiss Requestor’s appeal on August 28, 2023. FEC’s Partial Mot. to Dismiss, 

Ready to Win. v. FEC, Civ. No. 23-5161 (Doc. #2014480). The Commission 

argued that Requestor’s statement of issues evidenced an intent to appeal not 

merely the district court’s preliminary order, but the Final Judgment Denial as 

well. Because the district court made clear that Requestor relies on the First 

Amendment to support each of its claims, and because the FEC has sought to 

develop a factual record as to these issues, summary or final judgment as to any of 

Requestor’s claims was and remains inappropriate. Because that decision did not 

itself grant, deny, or modify an injunction, it is outside the narrow categories for 

which interlocutory appeal may be had under 28 U.S.C. § 1292, and Requestor’s 

appeal of that decision should be dismissed by this Court for lack of jurisdiction. 

On October 31, 2023, the Court issued a per curiam Order referring the 

partial motion to dismiss to the merits panel and directed the parties “to address in 

their briefs the issues presented in the partial motion to dismiss rather than 

incorporate these arguments by reference.” Order, Ready to Win. v. FEC, Civ. No. 

23-5161 (Document #2024570). 

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SUMMARY OF ARGUMENT 

The district court’s decision should be upheld in all respects. Requestor’s 

contentions regarding pre-candidacy or testing-the-waters period are moot. 

Assuming arguendo that they are not, Requestor fails to establish any error in the 

district courts handling of those or the post-candidacy period. The district court 

accurately determined that the FEC’s advisory opinion was constitutional, and 

indeed is a straightforward application of FECA’s core contribution limits. In 

addition, the Commission’s advisory opinion satisfies APA review. Requestor’s 

contact list is a “contribution” as established by the FEC’s prior adjudications and 

relevant caselaw. Nor is Requestor operating as a “conduit” when Requestor itself 

has invested extensive money and labor to build and maintain its contact list. And 

Requestor’s challenge to the Commission’s testing-the-waters regulation cannot 

succeed because the Commission reasonably determined that FECA’s contribution 

limits apply to a candidate who is testing the waters of a candidacy. 

Finally, in the likely event that this Court affirms the lower court’s denial of 

Requestor’s motion for preliminary injunction, the proper remedy is to remand this 

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case for additional proceedings, rather than taking the extraordinary step of 

dismissing the Complaint on appeal as Requestor has requested. 

STANDARDS OF REVIEW 

The Court “review[s] a district court’s denial of a preliminary injunction for 

an abuse of discretion, but in doing so [it] review[s] the district court’s legal 

conclusions de novo and any findings of fact for clear error.” Guedes v. Bureau of 

Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (citing 

Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998)). 

ARGUMENT 

I. REQUESTOR’S CONTENTIONS REGARDING DESANTIS’S PRECANDIDACY AND TESTING-THE-WATERS PERIOD ARE MOOT 

Much of Requestor’s appeal involves issues related to the period before 

Governor DeSantis declared his candidacy and when he may have been engaging 

in activity to test the waters to determine whether to do so, but those matters are 

now moot given that Governor DeSantis is a declared candidate for president. See 

Clark v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (“[T]he [mootness] 

doctrine requires a federal court to refrain from deciding [the litigation] if events 

have so transpired that the decision will neither presently affect the parties’ rights 

nor have a more-than-speculative chance of affecting them in the future.”). 

In its challenge to the FEC’s testing-the-waters regulation Requestor 

implicitly concedes that the challenge to earlier phases is moot but argues that it 

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qualifies for the exception to mootness for issues “capable of repetition, yet 

evading review.” Br. at 45-46. Requestor is incorrect. To qualify for this 

exception Requestor must make “the requisite showing of ‘a reasonable 

expectation’ or a ‘demonstrated probability’ that ‘the same controversy will recur 

involving the same complaining party.’” Sibley v. Alexander, 916 F. Supp. 2d 58, 

62–63 (D.D.C. 2013) (quoting Herron for Congress v. FEC, 903 F. Supp. 2d 9, 14 

(D.D.C. 2012) and noting that it in turn cites and quotes Murphy v. Hunt, 455 U.S. 

478, 482 (1982) (per curiam)). 

Requestor’s complaint stems from a fact-bound advisory opinion by the FEC 

regarding a particular individual that Requestor was formed with the exclusive 

purpose of supporting. See supra, pp. 11-15. For instance, the FEC relied upon 

Requestor’s representations as to how much it had spent to solicit signatory contact 

information, the type of information it had gathered, and how it proposed to 

provide this information to Governor DeSantis. See supra, pp. 11-13. Requestor 

does not cite any record evidence suggesting that any of these precise 

circumstances or any other similar ones are likely to be repeated, presenting only a 

statement in a brief that it “may seek to provide a similar petition to draft a 

qualified conservative to run for office in the next election cycle[.]” Br. at 46. 

That is unsupported speculation. See Herron for Cong. v. FEC, 903 F. Supp. 2d 9, 

14 (D.D.C. 2012) (“Ordinarily, courts require plaintiffs to submit evidence 

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suggesting that their controversy is likely to recur.”) (citing Davis v. FEC, 554 

U.S. 724, 736 (2008)). 

In contrast, in the cases on which Requestor relies, the parties had “averred 

that they intend to make [the contributions at issue] in the future,” Holmes v. FEC, 

832 F.3d 69, 71 n.16 (D.C. Cir. 2016), or “made a public statement expressing” the 

intent to “self-finance another bid for a House seat,” Davis, 554 U.S. at 735-36 

(cleaned up). There is no comparable indication here, nor would one be expected 

for a group that was formed to support a single individual. See Herron, 903 F. 

Supp. 2d at 13-15 (claim brought by unsuccessful Congressional candidate against 

the FEC was moot, and did not qualify for the “capable of repetition” exception, 

where candidate did not demonstrate a “clear and definite intent” to participate in 

future electoral contests and did not show a similar injury would occur involving 

(1) the same opponent’s (2) receipt of a bank loan that (3) the opponent failed to 

disclose, which (4) violates applicable FEC regulations). 

II. THE FIRST AMENDMENT PERMITS REGULATION OF IN-KIND 

CONTRIBUTIONS TO CANDIDATES FOR FEDERAL OFFICE, 

INCLUDING VALUABLE MAILING LISTS WITH EXTENSIVE 

CONTACT INFORMATION 

The district court correctly observed that, at base, “[Requestor]’s arguments 

reduce to the contention that the First Amendment does not permit the FEC to treat 

a contact list as a contribution, so long as a ‘petition’ is attached.” J.A. 49. This is 

not a difficult question. There is no dispute that the right to political expression 

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generally, and the right to petition current and prospective officeholders in 

particular, are fundamental rights protected by the First Amendment. But it simply 

does not follow that Requestor and others must be permitted to exceed FECA’s 

contribution limits because they associate those contributions with protected 

speech, particularly where, as here, there are numerous other ways in which 

Requestor can vindicate its right to support Governor DeSantis. Requestor’s 

extreme position finds no support in constitutional law, and if accepted, would 

fatally undermine government efforts to curb corruption and its appearance. 

A. The District Court Correctly Determined that Applying FECA’s 

Campaign Contribution Limitations to Requestor’s Proposed 

Conduct Easily Satisfies Intermediate Scrutiny 

The advisory opinion challenged by Requestor deals with the candidate 

contribution limits at the core of FECA. Requestor’s proposed contribution of a 

mailing list to Governor DeSantis is thus subject to the “closely drawn” standard of 

First Amendment scrutiny. J.A. 327-28 (citing McCutcheon v. FEC, 572 U.S. 185, 

197 (2014) (in turn quoting Buckley, 424 U.S. at 25)). “Under that standard, 

‘[e]ven a significant interference with protected rights of political association may 

be sustained if the State demonstrates a sufficiently important interest and employs 

means closely drawn to avoid unnecessary abridgment of associational freedoms.’” 

Id. (citations omitted). The closely drawn standard is less demanding than strict 

scrutiny but is nevertheless a “rigorous standard of review.” Id. (quoting Buckley, 

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424 U.S. at 29). In reaching its conclusion that intermediate scrutiny applied, the 

district court cited eight different instances of courts applying the “closely drawn” 

standard “to many different forms of contribution limits[.]” J.A. 328, n.13 (listing 

cases). 

The district court correctly held that Requestor’s desire to make its 

contribution in the form of a contact list did not alter the applicable level of 

scrutiny. The court noted that “in fact the FEC seeks to apply FECA’s contribution 

limits only to a contact list, not a petition[,]” and that “the contact list ... only 

indirectly or marginally implicates core First Amendment values.” J.A. 328. The 

court was also unpersuaded by Requestor’s attempt to establish that “its contact list 

has independent expressive value[,]” noting that Requestor’s cited authorities 

regarding “the publication of contact information” were inapposite where 

Requestor did not seek to publish its list, J.A. 329, and its message would not be 

meaningfully diluted if the contact information were omitted, J.A. 330. 

Applying intermediate scrutiny, the district court had no trouble finding that 

“‘the Government’s interest in preventing quid pro quo corruption and its 

appearance is sufficiently important’ to justify the regulation of campaign 

contributions.” J.A. 331 (quoting Wagner v. FEC, 793 F.3d 1, 8 (D.C. Cir. 2015) 

(in turn quoting McCutcheon, 572 U.S. at 199)). The court further concluded “that 

the FEC is likely to demonstrate on the merits that applying FECA’s contribution 

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limits to [Requestor]’s proposed activity furthers the government’s interest in 

preventing quid pro quo corruption and its appearance.” J.A. 331. Applying wellestablished precedent, the court found that “contribution limits in general further 

the interest in combatting quid pro quo corruption and its appearance[,]” J.A. 331 

(citing Buckley, 424 U.S. at 25–30), and that in-kind contributions, including 

contact lists specifically, “is typically of significant value to a candidate. J.A. 332 

(citing Christian Coal., 52 F. Supp. 2d at 96; Int’l Funding Inst., 969 F.2d at 1116). 

Finally, the court rejected Requestor’s argument that the risk of corruption under 

these circumstances is minimal because spending the large sums it has to compile 

its contact list would be “an ineffective instrument for corruption.” J.A. 332-33. 

The court observed first that there 25easonason to assume either “that the poor 

economic returns [Requestor] describes are true of contact lists in general[,]” J.A. 

333, or that “Congress’s anti-corruption interest turn on the savvy of the 

contributor.” J.A. 334. 

The court further held that the FEC was likely to prevail on its contention 

that applying FECA’s contribution limits to Requestor’s contact list is “closely 

drawn to avoid unnecessary abridgement of associational freedoms.” J.A. 335 

(citing McCutcheon, 572 U.S. at 218 (in turn quoting Buckley, 424 U.S. at 25)). 

Critically, the court found that “treating [Requestor]’s contact list as a contribution 

in excess of the contribution limits is a narrowly tailored means of preventing 

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actual or apparent quid pro quo corruption.” J.A. 335. In particular the court 

found that 

this limited restriction leaves untouched [Requestor]’s ability to 

circulate its petition, to spend unlimited amounts of hard and soft 

money soliciting signatures for it, and to present it to Governor 

DeSantis. Wagner, 793 F.3d at 25. It also permits any individual who 

determines that they are Ready for Ron to sign the petition and to have 

that signature be provided to the Governor. And it allows [Requestor] 

to collect contact information so that it can itself validate the signatures 

and ensure that it is only presenting Governor DeSantis with the names 

of authentic supporters. The FEC’s advisory opinion thus places no 

serious burden on anyone’s ability to express their support for Governor 

DeSantis and to join together with others in so doing. All it prevents is 

[Requestor] from providing to Governor DeSantis free of charge a 

classic campaign asset that cost it over $1 million to compile. 

J.A. 335-36. The court further rejected Requestor’s “one argument in response:” 

that this limitation “is fatally underinclusive because it leaves [Requestor] so many 

other options.” J.A. 336. 

B. Requestor’s Arguments that Ignore Controlling Constitutional 

Law are Inapposite to Its Claim 

Critically, Requestor’s appeal makes little effort to engage with the many 

foundational campaign finance cases that the district court relied upon in reaching 

its conclusions. See Br. at 14-31. A large number of the court’s factual 

distinctions, and the foundational constitutional precedent the court cites, are 

completely unaddressed. Despite FECA’s contribution limits being permissible 

here under the well-established standard, Requestor largely disregards that 

standard, instead offering inapposite authorities that do not address the 

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constitutionality of campaign finance legislation and implementing regulations. 

Yet none of its authorities provide for an unqualified right to provide in-kind 

contributions to candidates for federal office, nor do they undermine the 

government’s interest in limiting quid pro quo corruption and its appearance. 

Contrary to Requestor’s contentions, the court did not “refuse” to treat its 

contact list as a “single integrated communication,” Br. at 14, nor is this distinction 

relevant. The court instead considered all aspects of Requestor’s proposed conduct 

and correctly focused its analysis on the only portion that the government sought to 

limit: the provision of a valuable in-kind contribution to a federal candidate. J.A. 

297 (“the information that the FEC seeks to restrict is not core political speech; it is 

contact information.”); J.A. 328 (“[T]he contact list—as distinct from the 

petition—only indirectly or marginally implicates core First Amendment values.”); 

see also J.A. 280, 293. Cases cited by Requestor in which the government sought 

to censor the content of speech, including opposition to the draft and sexually 

explicit material, Br. at 15, are inapplicable. Any effort by plaintiffs in those cases 

to associate their speech with a valuable campaign contribution would have been 

subject to a separate and distinct analysis by the Court. 

Requestor disregards or misapplies numerous cases in which the Court has 

engaged in careful and close analysis to determine whether government limitations 

on speech were constitutionally sound. For instance, Requestor argues that any 

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attempt to assess the appropriate level of First Amendment protection based on 

“‘the value of the speech” at issue would be “startling and dangerous.’” Br. at 24 

(quoting United States v. Stevens, 559 U.S. 460, 470 (2010)). Requestor’s out of 

context citation appears to imply that all speech of any kind is subject to 

unqualified protection. Of course, Stevens makes no such claim, and in that very 

case the Court recognized several permissible “traditional limitations” on speech, 

including obscenity, defamation, fraud, incitement, and speech integral to criminal 

conduct. Id. at 468-69 (listing cases) (citations omitted). 

More to the point, in Buckley itself the Court endorsed precisely the line 

drawing in the realm of political speech that Requestor suggests is impermissible. 

As the district court observed, “perhaps the most fundamental line in campaign 

finance law” is “one between contributions and independent expenditures. 

Whereas Buckley upheld contribution limits as a permissible means of combatting 

corruption, 424 U.S. at 29, it reached the opposite conclusion with respect to 

independent expenditures, id. at 45.” J.A. 337. “[A]s the Supreme Court has held 

time and again, because ‘contributions lie closer to the edges than to the core of 

political expression,’ FEC v. Beaumont, 539 U.S. 146, 161 (2003), contribution 

limits—like those at play here—may permissibly be regulated, see McCutcheon v. 

FEC, 572 U.S. 185, 197 (2014).’” J.A. 298. 

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Requestor’s attempt to frame its contact list as “pure political speech” 

beyond the reach of the government, Br. at 22-26, is thus unpersuasive. The FEC 

of course agrees that political speech is a fundamental right, which includes the 

ability to join with others and express that right in the form of a petition or any 

other message addressing a political candidate. But as the district court correctly 

found, Requestor’s right to speak and petition candidates are not at issue. See J.A. 

293 (“The FEC stresses that it sees no problem with RFR providing its petition— 

complete with the list of signatures—to Governor DeSantis.”); id. (citing FEC 

briefing and noting that “[Requestor] ‘has many alternative avenues for 

communicating its message’ including through ‘a petition without the contact 

information’”). The authorities cited by Requestor regarding the importance of the 

right to petition, Br. at 22-23, provide no support for challenging government 

action that does not seek to regulate its right to petition in any way. Nor does the 

fact that the Court has “applied First Amendment protection” to “informational 

statements[,]” Br. at 24 (citations omitted), help this Court address whether the 

government has an interest in regulating Requestor’s contact list. In contrast, 

Buckley and its progeny explicitly endorse the government’s authority to limit inkind candidate contributions. Buckley, 424 U.S. at 26-27, 36-37; see Christian 

Coal., 52 F. Supp. 2d at 96. 

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Requestor’s theory, if taken to its logical conclusion, would entirely upend 

limits on in-kind contributions. Under Requestor’s approach, for example, an 

outside group could prepare a 30 second video lauding a candidate’s qualities at 

great expense, and then claim a constitutional right to provide this video to the 

candidate free of charge because making a video is protected First Amendment 

speech. Any in-kind contribution would be immune from regulation provided it 

contained a threshold level of expressive activity, which the Commission and the 

courts would be required to define. Such a regime would plainly undermine the 

government’s interest in preventing corruption and in predictable enforcement of 

the anticorruption law. Avoiding such complications is precisely why “the Court 

has announced a single unified test” to evaluate “contributors’ heterogeneous First 

Amendment interests in making political donations[.]” Libertarian Nat’l Comm. v. 

FEC, 924 F.3d 533, 541 (D.C. Cir. 2019). 

C. The FEC is Not Engaged in Content Discrimination 

Requestor’s argument that the FEC is engaging in content-based 

discrimination is meritless. The alleged “substantive content” that the Commission 

seeks to regulate is that “the petition’s text seeks to persuade Governor DeSantis to 

run for President.” Br. at 27-28. Requestor avers that “[i]f the petition concerned 

virtually any other issue in the world—urging Governor DeSantis to resign and 

become the Walt Disney Corporation’s next CEO, for example—the FECA’s 

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contribution limits would be inapplicable.” 5 Id. at 28 (citing 52 U.S.C. § 

30101(8)(A)(i)); see id. at 18-19. 

As an initial matter, Requestor’s contentions relate only to a moot portion of 

the case. See supra, pp. 20-22. The district court’s analysis contested by 

Requestor was whether the transmission of the contact list was “for the purpose of 

influencing” an election and thus a regulable “contribution” under FECA was a 

necessary analytical step before Governor DeSantis became a candidate. See 

J.A.283 n.2, 294, 323. Now that he is a candidate, outside of delineated 

exemptions all in-kind support including “mailing lists” that Requestor might 

provide to his campaign, i.e. “the provision of any goods or services without 

charge or at a charge that is less than the usual and normal charge,” “is a 

contribution.” 11 C.F.R. § 100.52(d)(1). That would include an exhaustively 

created contact list of individuals that thought highly enough of Governor DeSantis 

to believe that he should become a CEO of a major multinational corporation. 

Contra Br. at 27-28. 

Moreover, even if Requestor’s content-based arguments related to a live 

dispute and accurately characterized governing law, Requestor does not directly 

Requestor’s hypothetical is inapposite because it presents substantially 

different facts from those the FEC considered, and does not speak to the 

reasonableness of the decision the FEC actually made. See U. S. Lines, Inc. v. Fed. 

Mar. Comm’n, 584 F.2d 519, 526 (D.C. Cir. 1978) (the court examines “the actual 

choice made to determine whether it is arbitrary or capricious.”) 

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allege, and makes no attempt to demonstrate, that the Commission’s actions were 

influenced in any way by the particular candidate Requestor seeks to support, 

namely Governor DeSantis. On the other hand, Requestor does not deny that in 

the pre-candidacy phase “that the FEC only [sought] to regulate its provision of the 

contact list to Governor DeSantis because [Requestor] wants to provide with him 

the list ‘for the purpose of influencing an[] election for Federal office.’” J.A. 330 

(citing Requestor briefing and quoting 52 U.S.C. § 30101(8)(A)(i)). As the district 

court observed, “[Requestor] does not dispute” that it had such a purpose at that 

time, J.A. 323, nor could it given the substance of its petition. Of course, “[a]ll 

regulation of campaign contributions is content based in the sense that it targets 

only contributions made for the purpose of influencing elections for Federal office, 

not all transfers of money or things of value at any time for any reason. Yet 

Buckley held and the Supreme Court has many times affirmed that strict scrutiny 

does not apply to contribution limits . . . . [and Requestor] offers no persuasive 

reason why the same principles should not apply here.” J.A. 330. Requestor has 

provided no answer to the court’s analysis. 

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III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE 

COMMISSION MAY CONSTRUE FECA TO APPLY TO THE 

TRANSFER OF THE MAILING LIST REQUESTOR COMPILED 

AFTER GOVERNOR DESANTIS BECAME A CANDIDATE AND 

WHILE HE WAS TESTING THE WATERS 

Separate from its constitutional claim, Requestor’s Brief argues that FECA’s 

text and the FEC’s testing-the-waters regulation cannot be read to cover its 

proposed activity. Br. at 31-51. But as in the district court, Requestor’s Brief does 

not clearly explain which cause of action is likely to succeed on the basis of this 

argument. Nor does it explain what standard of review would apply. Requestor’s 

Brief does not cite or reference the APA, and offers only limited references to 

judicial authorities interpreting it. Requestor makes one reference to the “arbitrary, 

capricious,” and “contrary to law” standard, (Br. at 50,) and references the 

complaint’s APA counts in its recount of this matter’s procedural history.

6 (Id. at 

4-5.) 

As the district court correctly determined, the Commission’s advisory 

opinion here meets APA review, J.A. 293-327, and FECA, the Declaratory 

Requestor’s complaint purports to assert causes of action arising under the 

Administrative Procedure Act for the Commission’s refusal to issue the requested 

advisory opinion (Count II) and to its testing the waters regulation (Count VI). It 

also purports to assert a direct cause of action under FECA, 52 U.S.C. § 

30116(a)(1)(A), (a)(8) (Count V) and the Declaratory Judgment Act, 28 U.S.C. § 

2201 (Count III). 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 46 of 71 

Judgment Act, and general equitable principles provide no independent cause of 

action for review. J.A. 290. 

A. The Commission Reasonably Construed the Term “Contribution” 

in FECA to Determine That Requestor Could Not Transfer a List 

of Potential Supporters to Governor DeSantis after he Begins 

Testing the Waters or Becomes a Candidate 

The district court determined that “[t]he contact list that [Requestor] 

proposes to give to Governor DeSantis easily falls within [FECA]’s definition of a 

‘contribution.’” J.A. 294. This Court should affirm. 

The arbitrary and capricious standard of review as set forth in the APA is 

“highly deferential” and “presume[s] the validity of agency action.” Am. Horse 

Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). The standard for 

determining whether a Commission determination was “arbitrary or capricious” or 

otherwise “an abuse of discretion” entails a “very deferential scope of review that 

forbids a court from substitute[ing] its judgment for that of the agency.” Van 

Hollen v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (internal quotation marks 

omitted)). To meet that standard, plaintiffs must show that “the agency . . . entirely 

failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference in view or the product of agency 

expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). “[T]he party challenging an agency’s action as 

34 
 

 

 

 

 

 

 

 

 

 

 

 

 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 47 of 71 

arbitrary and capricious bears the burden of proof.” San Luis Obispo Mothers for 

Peace v. NRC, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). 

The Commission’s interpretation of FECA, as expressed in the challenged 

advisory opinion, is entitled to deference. As the district court noted, “[t]he D.C. 

Circuit has held that FEC advisory opinions interpreting FECA are entitled to 

Chevron deference, FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 184–86 (D.C. 

Cir. 2001); see also FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 

37 (1981) (stating that the FEC is “precisely the type of agency to which deference 

should presumptively be afforded”).”7 J.A. 293-94. With respect to the FEC’s 

determination that Requestor’s contact list falls within FECA’s definition of a 

“contribution,” however, the court found that “although Chevron applies, pacing 

through the Chevron two-step is unnecessary because the FEC’s conclusion that 

[Requestor]’s contact list constitutes a ‘contribution’ under FECA is ‘not only 

reasonable but also the best interpretation of the statute,’ and it is the one the Court 

An agency’s interpretation of its own regulations is entitled to deference 

where it is the agency’s “authoritative” or “official position,” “implicate[s] its 

substantive expertise,” and reflects “fair and considered judgment[.]” Kisor v. 

Wilkie, 139 S. Ct. 2400, 2416–18 (2019); see Nat’l Lifeline Ass’n v. FCC, 983 F.3d 

498, 507 (D.C. Cir. 2020). Where these “three guiding principles” weigh in favor 

of the agency’s regulation, the agency’s interpretation will prevail. See Doe v. Sec. 

& Exch. Comm’n, 28 F.4th 1306, 1313-16 (D.C. Cir. 2022). The advisory opinion 

at issue here easily meets these criteria, and thus the Court should defer to the 

FEC’s interpretation of its regulations therein. 

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would adopt irrespective of Chevron.” J.A. 294 (quoting Wash. Reg’l Medicorp v. 

Burwell, 813 F.3d 357, 362 (D.C. Cir. 2015)). 

Requestor’s challenge to the Commission’s interpretation of the term 

“contribution” largely re-iterates its arguments below and provides no basis for 

overturning the district court’s judgment. First, Requestor argues that its mailing 

list “does not constitute a ‘contribution’ because it cannot be deemed a ‘gift.’” Br. 

at 32. Requestor neither engages with the district court’s consideration of this 

precise question, J.A. 295-96, nor cites FECA or cases interpreting the statute’s 

definition of “contribution.” Rather, Requestor relies on two FEC advisory 

opinions from 1976 and 1977 that merely state that the term should be construed 

“reasonably” and in accord with “customary practice.” Br. at 32. Requestor does 

not claim that these advisory opinions considered anything like the contact list it 

seeks to provide to Governor DeSantis, and indeed they did not. See FEC 

Advisory Op. 1976-86, 1976 WL 419397 at *1 (McDonald for Congress) 

(billboard advertisements); FEC Advisory Op. 1977-51, 1977 WL 438159 at *2 

(Hon. Cecil Heftel) (receipt of “macadamia nuts” of “minimal value”). 

Requestor also offers uncited and unpersuasive reasons for why its contact 

list should not be considered a “gift” in “ordinary parlance[.]” Br. at 32-33. 

However, even assuming that this narrow focus on the meaning of “gift” in 

“ordinary parlance” were appropriate, the district court cited no less than five 

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dictionary definitions to demonstrate that even in ordinary parlance, “gift” means 

“something that is voluntarily transferred by one person to another without 

compensation.” J.A. 295 (listing dictionary definitions). In contrast, Requestor 

cites no authority suggesting that its own definition is more appropriate, and its 

hypotheticals regarding a greeting card, public school roster, or a phone directory, 

Br. at 32-33, do not involve contexts where things of value are regulated due to 

fundamental governmental interests. The district court correctly observed that its 

definition of gift “is the only one that is plausible in context” given “FECA’s 

concern is the provision of benefits to candidates[.]” J.A. 296. 

Second, Requestor argues that “FECA should be construed narrowly, as 

excluding signed political petitions, to avoid unnecessarily raising serious 

constitutional questions.” Br. at 33 (citation omitted). But even assuming that the 

district court’s definition of “contribution” were not the only plausible one, and 

that any ambiguity were not resolved by deference to the FEC’s reasoned judgment 

expressed in an official advisory opinion, Nat’l Rifle Ass’n of Am., 254 F.3d at 

184–86, the district court correctly identified this argument as a “non-sequitur[,]” 

J.A. 298, given that the FEC does not seek to limit Requestor’s right to petition in 

any meaningful way. “Campaign finance regulation, in general, involves some 

regulation of political speech[,]” and “the history of campaign finance regulation 

and dozens of opinions from the Supreme Court, the D.C. Circuit, and this Court 

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that approve the regulation of speech in the form of campaign contributions.” J.A. 

298. 

Third, Requestor’s invocation, Br. at 33-35, of three substantive cannons, 

“constitutional avoidance, the major questions doctrine, and the rule of lenity[,]” 

are inapplicable here, for precisely the reasons set out by the district court. J.A. 

298-301. As the court noted, these canons apply only when the language to be 

interpreted is “doubtful” or “ambiguous,” when the government’s interpretation 

gives rise to “grave” constitutional concerns, or when the authority conferred to an 

agency “lack[s] historical precedent[.]” J.A. 300. Such concerns are clearly absent 

here. As the district court found, the challenged advisory opinion was a 

straightforward application of FECA’s contribution limits to a contact list in accord 

with the statute’s “ordinary meaning[.]” J.A. 296. The Commission has 

repeatedly and uncontroversially found that such lists constitute things of value 

subject to FECA’s limitations. See supra, pp. 9-10. And the agency’s authority to 

regulate such in-kind contributions was explicitly upheld in Buckley, 424 U.S. at 

36-37, and subsequently, see, e.g., Christian Coal., 52 F. Supp. 2d at 96. 

Fourth and finally, Requestor’s invocation of FECA’s legislative history to 

bolster its preferred definition of “contribution,” Br. at 35-37, does not refute the 

contrary findings of the district court in this regard, J.A. 323-26. As the court 

found, FECA’s legislative history should play no role in this proceeding because 

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Requestor’s statutory interpretation is directly at odds with FECA’s unambiguous 

provisions. J.A. 323-24. Despite acknowledging that it is providing its mailing list 

“for the purpose of influencing any election for Federal office[,]” Requestor 

nonetheless avers that individuals should be able to accept such items without 

restriction if they have not yet declared a candidacy. But as the district court 

rightly found, Requestor has failed to meet its burden to show that the Commission 

erred in this regard. J.A. 323-24 (citing 52 U.S.C. § 30101(2)(A)). 

Moreover, “even if the Court were to consider it, this legislative history 

provides no meaningful support for [Requestor]’s contention.” J.A. 324. This is 

because Requestor’s averred history “pertain[s] to efforts to bring contributions to 

draft committees within the scope of the Act and does not address the regulation of 

contributions from draft committees to individuals.” Id. (emphasis in original). As 

a result, “it is far from clear that the inference [Requestor] would have the Court 

draw from the legislative history is the right one[,]” J.A. 325, and the district court 

offered several plausible bases upon which congress could have declined to act on 

the relevant proposed amendments. J.A. 326-27. As the district court noted, 

Requestor’s invocation of “speculation about why a later Congress declined to 

adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an 

interpretation of an existing law a different and earlier Congress did adopt.” J.A. 

326 (quoting Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1747 (2020)). 

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B. The Commission Reasonably Determined that Requestor is Not 

Serving as a “Conduit” for the Contributions of Others 

Requestor is not a conduit committee, and has never proposed that it should 

be permitted to operate as one, subject to the well-established rules the FEC has 

established for such committees. Instead, Requestor argues that because its 

proposed course of action bears some surface-level similarities to actual conduit 

committees, it would be irrational to prohibit its conduct. At the same time, 

Requestor makes no representation that it has or will comply with the rules 

governing such committees, and indeed suggests that doing so would be 

unconstitutionally burdensome. J.A. 308-09. In context, Requestor’s analogy to 

conduit committees is properly viewed as a post-hoc rationalization of its actions, 

and as the district court found, “the FEC reasonably decided that [Requestor] is not 

acting as a mere conduit for the contributions of others[.]” J.A. 316. 

To attempt to demonstrate that it is merely acting as a conduit for the 

contributions of its signatories, Requestor relies heavily on analogies to 

organizations such as ActBlue and WE LEAD that the Commission has endorsed 

as conduits in other advisory opinions. However, an examination of how these 

organizations operate serves to underscore their difference from Requestor. For 

instance, while Requestor repeatedly references the FEC’s endorsement of ActBlue 

acting as a conduit committee, the very advisory opinions that Requestor cites 

make clear that ActBlue operates in a manner highly distinct from what Requestor 

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proposes. See FEC Advisory Op. 2014-19, 2015 WL 1754737 at *6 (Act Blue); 

FEC Advisory Op. 2006-30, 2006 WL 3390749 at *6 (Act Blue). ActBlue charges 

a ~3.95% processing fee to the campaigns receiving contributions, and explicitly 

acknowledges that it is “legally required to pass along processing costs to the 

campaign so that we do not make in-kind contributions to them.” ActBlue 

Support, Do you charge a fee for contributions?, ActBlue (last visited Jan. 15, 

2024), https://support.actblue.com/donors/contributions/do-you-charge-a-fee-forcontributions/. WinRed, a similar organization that Requestor highlighted in its 

complaint, J.A. 35-36, also charges transaction fees ranging from 3.2% to 3.94%. 

Pricing, How much WinRed charges in transaction fees, WinRed (last visited Jan. 

15, 2024), https://support.winred.com/en/articles/3097721-pricing. 

Moreover, the FEC relied on these organizations’ representations that they 

would comply with the applicable regulations. The ActBlue and We Lead 

advisory opinions highlighted by Requestor detail the regulatory requirements for 

conduit contributions and conditioned their conclusions on compliance with those 

requirements. See FEC Advisory Op. 2003-23, 2003 WL 22827476 at *2-3 (We 

Lead) (requestor’s proposed conduct was permissible “as long as [it] complies with 

the requirements set forth below,” including the requirement that earmarked 

contributions be forwarded to recipient treasurer within 10 days of receipt); 

ActBlue, 2006 WL 3390749 at *2, 4 (“ActBlue must forward earmarked 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 54 of 71 

contributions to the candidates within ten days of the date that the candidate 

registers a presidential campaign committee with the Commission.”) 

In contrast, Requestor has made no representations to the Commission that it 

would meet these requirements, and the facts suggest that it will not. Requestor 

plans to provide its mailing list to Governor DeSantis at a time and place of its 

choosing, irrespective of Governor DeSantis’s candidacy status. (Mem. at 4-5.) 

Requestor is not forwarding the valuable contact information to Governor DeSantis 

within ten days. 11 C.F.R. § 102.8(a), (c). Nor is Requestor making regular reports 

to the Commission and to the appropriate DeSantis committee disclosing the 

original source of any of the data Requestor proposes to transfer. 11 C.F.R. 

110.6(c)(1). Under these circumstances, Requestor exerts significantly more 

control over the timing and conveyance of the contribution than was proposed in 

either the Act Blue or We Lead advisory opinions. Cf. 11 C.F.R. § 110.6(d)(2) (“If 

a conduit or intermediary exercises any direction or control over the choice of the 

recipient candidate, the earmarked contribution shall be considered a contribution 

by [the] intermediary.”). And far from agreeing to meet these requirements, 

Requestor “asks that, if it is treated as a conduit, it not be subjected to conduit 

reporting requirements” because such requirements constitute an “unreasonable” 

and “substantial burden[.]” J.A. 308-09. 

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In addition to failing to comply with the well-established rules for conduits, 

Requestor’s proposed course of action is distinct from what the FEC has 

previously approved because the collection and compiling of contact information 

creates value beyond that offered by a conduit committee forwarding monetary 

contributions, thus creating a thing of value that is “more than the sum of its parts.” 

J.A. 305. “It has taken [Requestor] nearly a year of work, over $1 million, and 

considerable initiative to identify and to solicit the hundreds of thousands of 

signatories of its petition and to amalgamate their contact information into a 

contact list.” J.A. 306. “Had [Requestor] not expended that time and money, no 

such list would exist.” J.A. 306. These solicitations have explicitly targeted those 

who support the candidacy of Governor DeSantis, clearly and substantially 

increasing the value of the list to that candidate. 

Moreover, while Requestor disclaims doing any work to verify, and thus 

further enhance the value of, the information on its list, it is nonetheless the case 

that “much of the value of a contact list lies in the fact that someone has engaged in 

the effort to compile the list in a useful manner.” J.A. 308. “By conducting an 

expensive campaign of nationwide outreach and compiling the fruits of that 

outreach in a single, useable contact list of motivated supporters, [Requestor] 

created a ‘thing of value’ beyond that which is attributable to the ‘contribution’ of 

each individual petition signatory.” J.A. 305-06. As the court observed, if all 

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signatories “individually sent their contact information through letters, e-mails, text 

messages, and phone calls to Governor DeSantis, it would require considerable 

labor on his part to intake and organize that information in a usable form.” J.A. 

308. Instead, Requestor “has done that work for him.” J.A. 308. Requestor itself 

concedes that the task of compiling this information is onerous, given that it 

suggests complying with conduit committee requirements would be a “substantial 

burden” that is “unreasonable” and even “unconstitutional.” J.A. 308-09. On this 

basis, the court concluded that “[t]hat [FEC’s] determination was not only 

reasonable but unassailable.” J.A. 306. In any case, it was not “clear error.” 

Requestor is also distinguishable from a conduit committee because 

Requestor will retain the value of, and control over, the individual “contributions” 

(i.e. contact information) it seeks to pass on to the DeSantis campaign. At a 

Commission public hearing held September 15, 2022, counsel for Requestor 

indicated both that the organization would retain the contact list and acknowledged 

that the list is valuable to Requestor. See YouTube, FEC Open Meeting of 

September 15, 2022, https://www.youtube.com/watch?v=BWfuTD46wwM at 

12:48-13:03. That continued possession of the information at issue suggests that 

Requestor retains control over who can gain access to it and when. If Requestor 

later provides its mailing list or a portion of it to any federal candidate other than 

Governor DeSantis, it would be exercising discretion or control, and would 

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undoubtedly be making a contribution in its own name. 11 C.F.R. § 110.6(d)(2). 

The result should be no different if Requestor provides the contact information to 

Governor DeSantis. Even assuming that Requestor’s signatories have effectively 

directed their individual “contribution” to Governor DeSantis, Requestor’s future 

use of the list, either for its own organizing activities or to sell for profit, would 

involve the “exercise” of “direction or control” concerning the contributor’s 

“choice of recipient,” in violation of FEC regulations. 11 C.F.R. § 110.6(b)(2) 

Beyond simply relitigating its case in chief, Requestor challenges the district 

court’s assessment on three factual bases. However, Requestor’s disputes with the 

court’s factual findings are meritless, and in any case do not demonstrate “clear 

error[.]” Guedes, 920 F.3d at 10. 

First, Requestor charges that the district court erred by incorrectly assuming 

that collecting monetary contributions constitutes a “de minimus” logistical and 

financial effort, whereas collecting contact information as Requestor has done 

constitutes a more “onerous” undertaking. Br. at 41-42. However, as detailed 

infra, pp. 47-48, what distinguishes Requestor’s undertaking from that of other 

organizations addressed in FEC advisory opinions is the extent it seeks to engage 

in massive and unrecouped effort to support a single candidate. Moreover, 

Requestor cannot credibly contest the court’s finding that the burden of collecting 

and compiling contact information into a usable list is “onerous” when Requestor 

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has effectively conceded this fact in this litigation. When faced with the prospect 

of being required to comply with the FEC’s conduit committee regulations, 

Requestor implored that “if it is treated as a conduit, it not be subjected to conduit 

reporting requirements, in part because ‘listing potentially hundreds of thousands’ 

of contributions would be a ‘substantial burden’ that is ‘unreasonable’ and even 

‘unconstitutional.’” J.A. 308-09. 

Critically, Requestor does not offer any evidence that the district court’s 

factual determinations in this regard were incorrect. And Requestor has 

consistently opposed any discovery or factfinding that could contradict the court’s 

factual findings, based on its assertion that “[t]his case involves pure questions of 

law[.]” Br. at 51; see infra, pp. 53-56. Requestor forsook discovery as to all of its 

claims, and is ill-positioned to challenge the district court’s conclusions based on a 

lack of record evidence. See J.A. 291 (“[Requestor] contends that discovery is 

unnecessary and would needlessly delay resolution of this matter.”). 

Second, Requestor argues that the district court erred in finding that 

“conduits do not themselves bear the transaction costs associated with the separate 

payments,” when in fact this is true only for corporations. Br. at 42-43. However, 

the advisory opinions Requestor relies upon demonstrate that the FEC has not 

previously authorized anything like the conduct Requestor seeks to engage in. 

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For instance, Requestor asserts that in NewtWatch PAC, FEC A.O. 1995-09, 

at 3 (Apr. 21, 1995), the FEC “conclude[ed]” that “expenses a conduit committee 

incurs in processing online financial transactions ‘are operating expenditures of the 

committee[.]’” Br. at 42-43. In fact, NewtWatch PAC was not and never claimed 

to be a “conduit” of any kind, and this term does not appear in the opinion. The 

quoted text refers to NewtWatch’s reporting of the 2% processing fee it planned to 

provide to a financial services company as compensation for processing 

contributions to NewtWatch, and the FEC explicitly noted that these services 

“would be a prohibited contribution by [the financial services company] if 

uncompensated.” Id. at 3. 

Requestor similarly cites FEC Advisory Op. 2019-15 at 4-6 (NORPAC), 

https://www.fec.gov/files/legal/aos/2019-15/2019-15.pdf , for its “holding” 

regarding a political committee, but in that opinion the Commission approved 

“NORPAC’s proposal to deduct a flat-rate, fixed percentage fee from earmarked 

contributions that it forwards in order to reimburse its merchant processing costs as 

well as its solicitation and administrative costs.” Id. at 1. NORPAC is a 

“nonconnected [political] committee,” id., not a corporation, and nonetheless 

proposed to cover its administrative expenses by deducting a percentage of each 

contribution before passing that money onto the designated candidate, id. at 4. 

This provides no support for Requestor’s claim that “FECA allows political 

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committees to act as conduits and pay such administrative, processing, or other 

such costs themselves[.]” Br. at 42-43. Given that Requestor plans to retain the 

valuable contact list it has solicited even after providing it to Governor DeSantis, 

which it may sell and/or use for its own organization-building, there is no reason 

that it should be subject to less requirements than a committee that merely seeks to 

cover its costs, and Requestor has failed to establish that the FEC has acted 

inconsistently or irrationally in this case. 

Third, while Requestor does not seriously dispute that the collective value of 

many peoples’ contact information is “more than the sum of its parts,” it 

nonetheless maintains that this is not legally relevant. Requestor cites no legal 

authority for its position, and instead merely criticizes the court’s opinion for 

failing to cite precedent on this issue. However, the lack of case law holding on 

this precise question is indicative only of the fact that Requestor’s position is 

extreme. 

Requestor further criticizes the court’s reliance on Christian Coalition, 52 F. 

Supp. 2d at 77, because that case did not squarely address conduit committees. Br. 

at 44-45. This criticism is misplaced, as this case was cited for the limited 

proposition that a contact list is a highly valuable campaign asset with unique value 

to particular campaigns. J.A. 306-07. In that case the court determined that the 

value of the list at issue was enhanced by the defendant’s “cross-check” of the list 

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against its own mailing list, making it more likely that the list would be valuable to 

the recipient candidate’s campaign “because those on the list were highly likely to 

share the Coalition’s views on a number of issues[.]” J.A. 306 (quoting Christian 

Coal., 52 F. Supp. 2d at 77). That court explained that “[e]ven if the names on the 

[particular] list were publicly available, the fact that the Coalition expended 

resources to compile the list and cross-check it with the Coalition’s house file, 

created value that was passed on to the North campaign.” J.A. 306 (quoting 

Christian Coal., 52 F. Supp. 2d at 96). These findings are directly applicable here, 

where Requestor proposes to provide Governor DeSantis with a mailing list 

curated with contact information of the Governor’s supporters, and developed with 

Requestor’s considerable money and labor to compile the list into a convenient 

format. 

It was, therefore, entirely reasonable for the district court to conclude “that 

[Requestor] is not acting as a mere conduit for the contributions of others and that 

its decision is not inconsistent with any prior advisory opinions that either party 

has brought to the Court’s attention.” J.A. 316. That decision should be affirmed. 

C. The Commission Reasonably Determined that Requestor May 

Not Provide Its Mailing List if Governor DeSantis is Testing the 

Waters 

As explained above, Requestor’s Count VI is now moot. See supra, pp. 20-

22. Even assuming arguendo that it was not, however, the FEC’s interpretation of 

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its authority to regulate Requestor’s conduct was reasonable, and Requestor has 

not met its burden to show otherwise. “Candidate” status under FECA is triggered 

either by (a) “seek[ing] nomination for election, or election, to Federal office”; or 

(b) receiving “contributions” or making “expenditures” aggregating in excess of 

$5,000. 52 U.S.C. § 30101(2). Whether a receipt or disbursement is a contribution 

or expenditure depends on whether it is made or received “for the purpose of 

influencing any election for Federal office.” Id. § 30101(8)(A), (9)(A). 

As the district court noted, Requestor’s attack on the testing the waters 

regulation is “puzzling” given that “the testing-the-waters regulation is a limited 

exemption from FECA’s otherwise applicable disclosure requirements[,]” and “it 

is a mystery how [Requestor] would benefit from a decision setting that exemption 

aside[.]” J.A. 320-321; see 11 C.F.R. §§ 100.72(a), 100.131; see also supra, pp. 6-

8. Were this regulation struck down, “it would mean that Governor DeSantis 

would qualify as a “candidate” for all statutory purposes were he to accept 

Requestor’s proposed in-kind contribution.” J.A. 321. 

As at the district court noted, Requestor’s appeal relies heavily on the D.C. 

Circuit’s decision in Machinists, 655 F.2d 380. See Br. at 45-50. But in 

Machinists the court held that only organizations supporting or opposing a 

“candidate” are subject to regulation as political committees. 655 F.2d at 393-94. 

Accordingly, the court found that the Commission could not exercise jurisdiction 

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over organizations that sought only to “draft” former Senator Edward Kennedy to 

run for president, nor apply FECA’s contribution limits to the Machinists NonPartisan Political League which sought to fund those organizations. Id. at 383-84. 

Requestor misreads Machinists to stand for a “the sweeping proposition that 

FECA does not regulate efforts to ‘draft’ candidates for federal office, and argues 

that the decision establishes [Requestor]’s right to provide its signed petition to 

‘draft’ Governor DeSantis at any[] time before he becomes a candidate[.]” J.A. 

321-22. (citations and quotations omitted). But Machinists “does not speak to the 

definition of ‘candidate.’” J.A. 322. Nor does Requestor address the circular 

nature of its position: the receipt of contributions makes one a candidate, but a 

thing of value is not a contribution unless given to someone who is already a 

candidate. J.A. 322-23. Machinists does not dictate the outcome that Requestor 

seeks in this litigation, and Requestor has not shown that the Commission or the 

court committed error when it declined to authorize Requestor’s valuable 

contribution. J.A. 322. 

Nor is the enforcement of FECA’s contribution limits in this context an 

impermissible “prophylaxis-upon-prophylaxis” approach. Br. at 49. It is instead a 

straightforward application of FECA’s core contribution limits to a federal 

candidate. As the Commission noted previously, the early days of an election are 

“critical” to determining viability for office. FEC v. Cruz, 142 S. Ct. 1638, 1651 

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(2022). The value of early fundraising is of outsized importance for prospective 

candidates because “seed money is associated with later fund-raising success even 

with controls for candidate quality” and other confounding variables. R. Biersack, 

P. Herrnson & C. Wilcox, Seeds for Success: Early Money in Congressional 

Elections, 18 Leg. Studies Q. 535, 548 (1993). 

Finally, Requestor realleges a semantic argument: that the testing-the-waters 

regulation’s use of the term “funds” rather than “contributions” means that the 

former term covers only financial instruments, rather than “anything of value.” Br. 

at 49-50. The court was right to dismiss this argument as irrelevant. “If 

[Requestor] were to prevail on that argument, the exception would not apply, and 

thus any prospective candidate who accepts an in-kind contribution worth more 

than $5,000 would, by virtue of the statute, become a candidate.” J.A. 327. “The 

fact that in kind goods or services are not expressly mentioned in the regulation 

exemption to the definition of contribution could arguably indicate that such in 

kind gifts would be viewed as contributions and thus trigger candidate status if 

they aggregated in excess of $5,000.” FEC Advisory Op. 1981-32, 1981 WL 

721644 at *5 (Donald M. Middlebrooks). In any case, Requestor does not and 

cannot dispute that the Commission has long interpreted its testing the waters 

regulation to apply both to in-kind contributions as well as monetary ones. See 

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supra, pp. 9-10. That interpretation of the regulation is entitled to deference. 

Kisor, 139 S. Ct. at 2416-18. 

IV. THE COURT SHOULD REMAND THIS MATTER FOR PENDING 

DISCOVERY 

Requestor asserts that “This case involves pure questions of law[.]” Br. at 

51. For this reason, and despite the interlocutory nature of its appeal and pending 

discovery requests in the district court, it argues that this Court should take the 

unusual step of dismissing this matter outright, rather than remanding to the district 

court for further proceedings. The Court should deny Requestor’s request because 

it is in effect an attempt to appeal a separate interlocutory order of the district court 

over which this Court does not have jurisdiction, and would eliminate the parties’ 

opportunity for necessary discovery. 

As detailed supra, p. 17, following the district court’s order denying 

Requestor’s motion for a preliminary injunction, Requestor moved for the entry of 

final judgment in favor of the FEC, arguing there, as here, that this case consists of 

pure questions of law that make discovery unnecessary, and the court should 

therefore enter judgment in the FEC’s favor to facilitate its appeal. The court 

denied this motion, and the FEC accordingly submitted discovery requests to 

Requestor regarding its First Amendment claim. Because the court has already 

rejected Requestor’s effort to avoid discovery and have final judgment entered in 

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favor of the FEC, Requestor should not be permitted to circumvent that order by 

having this Court dismiss its complaint in its entirety. 

This Court lacks jurisdiction over the district court’s denial of Requestor’s 

motion for entry of judgment, and it should not reward Requestor’s attempt to 

circumvent jurisdictional barriers by effectively appealing it here. This Court has 

jurisdiction over only “final decisions” of district courts, 28 U.S.C. § 1291, with a 

limited exception for certain “interlocutory orders[,]” 28 U.S.C. § 1292(a)(1). This 

exception is construed “narrowly” because the “congressional policy against 

piecemeal review[.]” Salazar ex rel. Salazar v. D.C., 671 F.3d 1258, 1261–62 

(D.C. Cir. 2012) (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). 

Despite earlier indicating that it planned to appeal the district court’s denial of its 

motion to enter final judgment, Requestor subsequently conceded that it was not 

appealing that order. Pl.-Appellant’s Opp. to FEC’s Partial Mot. to Dismiss at 2-4, 

Civ. No. 23-5161 (Document #2015872). Given this concession, this Court has a 

vested interest in ensuring that the Federal Rules are not undermined by permitting 

what would be in effect an appeal of that very order. That interest is particularly 

acute here, where Requestor is seeking a final ruling that could be the subject of 

further review and, if Requestor is successful, would permanently alter federal 

campaign finance regulation. It should not be able to do so on the basis of the 

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expedited, largely one-sided presentation of evidence from the preliminaryinjunction process. 

Moreover, discovery is merited in this case, and indeed had already begun 

before it was stayed to permit Requestor to take this interlocutory appeal. The 

FEC served initial written discovery requests on plaintiff on July 5, 2023. Inter 

alia, the Commission seeks to establish the true value of Requestor’s contact list, 

which is likely substantially higher than the $11,000 figure the court relied upon, 

and which will provide important factual context regarding the danger of quid pro 

quo corruption. The FEC similarly seeks to test Requestor’s unilateral assertions 

as to how the contact list was created and maintained, which addresses whether 

Requestor is merely serving as a conduit for the contributions of others to the 

DeSantis Campaign. 

The FEC also seeks to test Requestor’s assertions as to the harm it and 

others have suffered, facts which speak to the extent of the burden the 

Commission’s actions have imposed on plaintiff. This includes whether Requestor 

either has or plans to support the DeSantis Campaign beyond the illegal course of 

action it has proposed. Requestor has presented an apparently false binary choice 

of either providing its contact list to the DeSantis campaign free of charge or not 

providing the information at all. Indeed, a public social media post following the 

Court’s preliminary-injunction decision presented the view that “the court’s ruling 

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means we’re now the only ones able to communicate with those patriots [the 

petition signers] to build a bottom-up grassroots program to draft/nominate/elect 

Ron in 2024.”8 Requestor’s apparent intention to be the exclusive user of its 

contact list through 2024 highlights the question why Requestor does not sell or 

rent its petition list to the DeSantis campaign, and further why it does not raise 

money for the DeSantis campaign from the supporters it has identified. The FEC 

is entitled to explore these outstanding questions through discovery. 

CONCLUSION 

For all the foregoing reasons, the Court should affirm the decision below in 

its entirety and remand this matter to the district court for further proceedings. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

/s/ Christopher H. Bell 

Christopher H. Bell 

Attorney 

@Ready4Ron, Twitter (May 18, 2023, 9:44AM), 

https://twitter.com/Ready4Ron/status/1659193307719933955. 

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USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 69 of 71 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 17, 2024 (202) 694-1650 

57 
 

 

USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 70 of 71 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 12,994 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(f). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Christopher H. Bell 

Christopher H. Bell 

Attorney 

Federal Election Commission 
 

 

 

 

 

 

 

USCA Case #23-5161 Document #2035964 Filed: 01/17/2024 Page 71 of 71 

CERTIFICATE OF SERVICE 

I hereby certify that on this 17th day of January, 2024, I electronically filed 

the Brief for Federal Election Commission with the Clerk of the United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through CM/ECF: 

Dan Backer, Esq. 

CHALMERS, ADAMS, BACKER & KAUFMAN LLC 

441 N. Lee Street, Suite 300 

Alexandria, VA 22314 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Christopher H. Bell 

Christopher H. Bell 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

chbell@fec.gov