UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

READY FOR RON,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

 Civil Action No. 22-3282 (RDM)

MEMORANDUM OPINION AND ORDER

READY FOR RON (“RFR”) is a political committee that has spent more than $1 million 

soliciting and gathering signatures and contact information from over 200,000 people who have 

declared themselves “Ready for Ron.” Dkt. 1 at 5 (Compl. ¶ 6); Dkt. 17 at 8. RFR would like to 

deliver the “petition” that it has created to Florida Governor Ron DeSantis, along with a letter 

urging him to become a candidate for the Republican nomination for President in the 2024 

election. Dkt. 1 at 7 (Compl. ¶ 17). Before taking this step, however, RFR sought an advisory

opinion from the Federal Election Commission (“FEC” or “Commission”) addressing whether

and when it could do so consistent with the federal campaign finance laws. Dkt. 23-2 at 1. 

According to RFR, presenting Governor DeSantis with a “petition” would constitute pure 

political speech beyond the constitutional or statutory reach of these laws. Id. at 12–13.

The FEC declined to bless RFR’s proposal. Id. at 190–200. In particular, the 

Commission disapproved of RFR’s insistence that it provide Governor DeSantis not only its 

petition but also the e-mail address and/or phone number of every signatory. Id. at 193. The 

Commission unanimously concluded that RFR was, in all but name, seeking permission to 

provide Governor DeSantis with an in-kind contribution—that is, a contact list in the guise of a 

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petition. Id. at 194. Based on that conclusion, the Commission further held that were Governor 

DeSantis to begin to test the waters for a run, and similarly were he to become a candidate, the 

campaign finance laws would preclude RFR from delivering that contact list to him because the 

market value of the list exceeds the relevant contribution limit and because RFR funded its drive 

with a combination of regulated funds (hard money) and unregulated funds (soft money). Id. at 

195, 197, 199. The Commission was unable to garner a majority, however, on the question 

whether RFR may deliver the list to Governor DeSantis before he begins to test the waters. Id. at 

199. It thus left that portion of RFR’s request for an advisory opinion unanswered. Id.

RFR commenced this lawsuit in response, seeking declaratory and injunctive relief that 

would permit it to deliver the petition to Governor DeSantis at any time without risking an 

enforcement action. Dkt. 1 (Compl.). It subsequently moved for a preliminary injunction. Dkt. 

8-1. After oral argument, the parties agreed to treat RFR’s preliminary injunction motion as a 

motion for summary judgment, except to the extent that RFR’s claims arise under the First 

Amendment. Dkt. 27 at 1, 5. Both of those motions—RFR’s motion for a preliminary 

injunction with respect to its First Amendment claims, and its motion for summary judgment 

with respect to its other claims—are now ripe for decision.

As explained below, the Court agrees with the Commission that what RFR calls a petition 

is, in fact, a contact list and, more importantly, an in-kind contribution. As such, the list is 

subject to the contribution limits contained in the Federal Election Campaign Act (“FECA” or 

the “Act”), 52 U.S.C. §§ 30101 et seq., and it is now well-trod ground that those limits satisfy 

constitutional dictates. Finally, although the Commission did not entirely resolve the question, 

the Court concludes that it makes no difference whether Governor DeSantis has declared his 

candidacy, whether he has invoked the regulatory exception for “testing the waters,” or whether 

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he has done neither at the point at which he accepts RFR’s contact list. By accepting the list, he 

would necessarily commit himself to either a candidacy or testing the waters, both of which 

require contributors (including in-kind contributors) to comply with FECA’s contribution 

limitations. To hold otherwise would invite massive evasion of the campaign finance laws by 

allowing those seeking office simply to wait to declare their candidacies or to invoke the testingthe-waters exception until after they have assembled war-chests of non-FECA-compliant 

contributions. Congress precluded circumvention of this type by defining a candidate as anyone 

who receives “contributions aggregating in excess of $5,000,” 52 U.S.C. § 30101(2)(A), and by 

defining a “contribution” to include “any gift . . . of money or anything of value made by any 

person for the purposes of influencing any election for Federal office,” id. § 30101(8)(A)(i).

The Court will, accordingly, DENY RFR’s motion for summary judgment on its nonFirst Amendment claims and will DENY RFR’s motion for a preliminary injunction on its First 

Amendment claims. 

I. BACKGROUND

A. Statutory and Regulatory Background

The Federal Election Campaign Act sets forth a comprehensive scheme regulating federal 

campaign finance. Among other things, FECA limits the amount that a “person” may 

“contribut[e]” to a “candidate” with respect to an “election for Federal office” to $3,300. 52 

U.S.C. §§ 30116(a)(1)(A), 30116(c), 11 C.F.R. § 110.1(b)(1).1 Because this case turns in 

1 At the time the parties initially briefed the pending motion, the limit was $2,900, but it 

increased to $3,300 on February 2, 2023. Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 88 Fed. Reg. 7088, 7090

(Feb. 2, 2023).

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considerable part on the meaning and scope of this limitation, the Court describes each of its 

components in turn.

Under FECA, a “person” includes, among other things, a political “committee.” 52 

U.S.C. § 30101(11), (4). RFR does not dispute that it is a “person” within the meaning of the 

Act. Dkt. 8-1 at 36 n.4. 

FECA defines a “contribution” to include “any gift, subscription, loan, advance, or 

deposit of money or anything of value made by any person for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). As the capacious terms “any gift” and 

“anything of value” suggest, contributions are not limited to the donation of money and include 

“the provision of in-kind assistance.” Buckley v. Valeo, 424 U.S. 1, 36–37 (1976); see also 

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 784–88 (D.C. Cir. 2022) (“[U]tilizing political 

committee staff time, office space, or other resources in cooperation with a candidate counts as a 

contribution.”). FEC regulations define in-kind contributions as “the provision of any goods or 

services without charge or at a charge that is less than the usual and normal charge for such 

goods or services.” 11 C.F.R. § 100.52(d)(1). Such “goods or services” include “membership 

lists” and “mailing lists.” Id.

FECA defines a “candidate” as “an individual who seeks nomination for election, or 

election, to Federal office.” 52 U.S.C. § 30101(2). And FECA “deem[s]” an individual to be 

“seek[ing] nomination for election, or election, to Federal office”—i.e., to be a candidate—if

“such individual has received contributions aggregating in excess of $5,000 or has made 

expenditures aggregating in excess of $5,000.” Id. § 30101(2)(A). So under the statute, the 

“recei[pt]” of over $5,000 in “contributions” makes a person a “candidate.” Id. But not 

everyone who receives $5,000 is a candidate, only those who receive $5,000 (or $5,000 worth of 

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in-kind assistance) that was provided “for the purpose of influencing any election for Federal 

office.” Id.; id. § 30101(8)(A)(i). 

Although FECA’s definition of “candidate” does not admit of obvious exceptions, the 

FEC has recognized a limited one “for individuals wishing to ‘test the waters’ of a potential 

candidacy.” Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 43 (D.D.C. 2021). Under the 

FEC’s testing-the-waters regulations, “[f]unds received” or “[p]ayments made” “solely for the 

purpose of determining whether an individual should become a candidate” are not treated as 

immediately reportable contributions or expenditures. 11 C.F.R. §§ 100.72(a), 100.131(a). 

Instead, the recipient need not report the contributions or expenditures unless and until the “the 

principal campaign committee of the candidate” files its “first report,” “regardless of the date the 

funds were received” or “the payments were made.” 11 C.F.R. §§ 100.72(a), 100.131(a). These

regulations, then, are an exemption from that which FECA would otherwise require: if an 

individual accepts “contributions aggregating in excess of $5,000,” 52 U.S.C. § 30101(2)(A), she 

automatically becomes a “candidate” under the statute, subject to all related obligations, unless 

the testing-the-waters exceptions offers shelter from some such requirements.2

This exemption is valuable, because it allows those considering candidacies to do so 

discretely. If funds raised and expended for the purpose of exploring a candidacy—conducting 

preliminary polling and travel, for instance—were treated as reportable contributions or 

expenditures under the Act, they would have to be publicly disclosed. The testing-the-waters 

regulations “permit individuals to conduct certain activities while deciding whether to become a 

2 As explained further below, RFR does not dispute that it seeks to deliver its petition and contact

list to Governor DeSantis “for the purpose of influencing an[] election for Federal office,” 52 

U.S.C. § 30101(8)(A)(i), or, more precisely, “to persuade Governor DeSantis to become and 

remain a candidate for the Republican nomination for President in the 2024 election,” Dkt. 1 at 5

(Compl. ¶ 9).

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candidate for Federal office, without making their activities immediately public.” Payments 

Received for Testing the Waters Activities, 50 Fed. Reg. 9993 (Mar. 13, 1985).

But testing the waters does not mean that anything goes. Recognizing that permitting an 

individual to receive (and to expend) contributions in excess of the contribution limits and from 

prohibited sources while “testing the waters” would invite “circumvention of the prohibitions 

and limitations of the Act,” the FEC revised the exemption in 1985 to “require that all funds 

received” under the exemption remain “subject to the Act’s limitations and prohibitions.” Id. at 

9994. The revised rule was “intended to clear up any misconceptions that the ‘testing the waters’ 

provisions may be used,” for example, “to raise ‘seed money’ for prospective candidates.” Id. 

As a result, large donors cannot use the exemption to evade contribution limits, and prohibited 

sources (including foreign interests, corporations, and unions) cannot use the exemption to make 

otherwise unlawful contributions. Thus, although by their terms the testing-the-waters 

regulations provide that certain (but not all) funds received by an individual considering a run for 

office “are not contributions” (at least until the person declares her candidacy), 11 C.F.R. 

§§ 100.72(a), 100.131(a), in practice the regulations carve out a limited exception to the Act’s 

disclosure requirements for those who receive contributions in excess of $5,000 (and who, 

accordingly, are technically “candidates” under FECA) while they consider a candidacy.

FECA does not regulate all money spent in politics to the same degree. Contributions to 

candidates—as those terms have been defined above—must be made with money subject to 

FECA’s disclosure requirements and source and amount limitations. See McConnell v. FEC, 540 

U.S. 93, 122 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310 

(2010). These FECA-compliant funds are known as “hard money.” Id. Conversely, funds that 

are not subject to FECA’s strictures are known as “soft money.” See Carey v. FEC, 791 F. Supp. 

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2d 121, 126 (D.D.C. 2011). Political committees may raise and spend unlimited quantities of 

soft money, subject to two constraints: (1) such committees must not be connected to or 

authorized by a particular candidate, and (2) the soft money must be spent on “independent 

expenditures”—expenditures that are not made to or spent in coordination with a candidate, a 

candidate’s authorized committee, or a political party committee. See id. 

In order to allow participants in the political process to operate with substantial certainty

regarding their legal obligations, the Act permits people to request advisory opinions from the 

FEC regarding whether a “specific [proposed] transaction or activity by the person” is legally 

permissible. 52 U.S.C. § 30108(a)(1). The FEC is required to accept comments on the request 

and to issue a response within sixty days. Id. § 30108(a)(1), (d). FECA specifies, however, that 

no advisory opinion shall issue absent “the affirmative vote of 4 members of the Commission.” 

Id. § 30106(c). If four commissioners are unable to agree on the content of an advisory opinion, 

the FEC issues a response stating that it was “unable to approve an advisory opinion by the 

required affirmative vote of 4 members.” 11 C.F.R. § 112.4(a). But if at least four 

commissioners agree to approve the proposed course of action—so a favorable advisory opinion 

issues—the party who requested the opinion, “and any person involved in an identical 

transaction or activity to that described in the request, may rely in good faith on the opinion and 

will be protected from any sanction under FECA that might otherwise attach to the transaction or 

activity.” McCutcheon v. FEC, 496 F. Supp. 3d. 318, 324–25 (D.D.C. 2020) (citing 52 U.S.C. 

§ 30108(c)). Only a favorable advisory opinion provides this safe harbor. Both the issuance of 

an opinion disapproving the proposed action and the failure to issue an opinion because of 

disagreement amongst commissioners deprive the requester of any protection against subsequent 

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enforcement. See Unity08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010); Chamber of Com. of the 

U.S. v. FEC, 69 F.3d 600, 603–04 (D.C. Cir. 1995).3

B. Factual Background

RFR is a political committee “formed for the purpose of drafting [Florida Governor] Ron 

DeSantis as a candidate for the Republican nomination for President in the 2024 election.” Dkt. 

23-2 at 2. It has not been authorized by Governor DeSantis and is not acting in coordination 

with him or any political committees he has authorized. Id. at 1, 3. RFR is a “hybrid” 

committee, meaning that it raises and spends both hard and soft money. Dkt. 1 at 5 (Compl. ¶ 7). 

RFR has devoted itself to the compilation of what it refers to as a “petition” encouraging 

Governor DeSantis to run for president.4 As of February of this year, RFR had expended over $1

3 Both the issuance of an unfavorable advisory opinion and the non-issuance of an opinion create 

a justiciable controversy for Article III purposes. In either case, the requester has been 

“deprive[d] . . . of a legal right” that “it would enjoy if it had obtained a favorable resolution in 

the advisory opinion process.” Unity08 v. FEC, 596 F.3d 681, 865 (D.C. Cir. 2010). As a result, 

“[n]othing . . . prevents the Commission from” instituting an enforcement action “at any time,” 

including after, “perhaps, another change of mind of one of the Commissioners” in the case of a 

deadlocked non-opinion. Chamber of Com. of the U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir. 

1995). What is more, FECA “permits a private party to challenge the FEC’s decision not to 

enforce,” so “even without a Commission enforcement decision,” a requester is “subject to 

litigation challenging the legality of [its] actions.” Id. (emphasis in original). Finally, FECA’s 

restrictions bear on First Amendment interests, and “[a] party has standing to challenge, preenforcement, . . . the constitutionality of a statute if First Amendment rights are arguably chilled, 

so long as there is a credible threat of prosecution.” Id. (emphasis omitted).

4 The petition reads:

America is in grave danger from the Radical Left and their failed, socialist, woke 

policies. The America-First agenda MUST be revived. Governor Ron DeSantis 

is the next Great American President—like Ronald Reagan and Donald 

Trump—who will turn our country around. We must organize NOW—we 

cannot wait and let the Left take another election. I am Ready for Ron! Let Ron 

know I’m behind him and want to join his team!

Dkt. 8-3 at 1. 

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million “soliciting and gathering over 200,000 real, electronic, and telephonic signatures with 

contact information” for this petition. Dkt. 17 at 8. It expects to spend a further $25,000-50,000 

per week for the duration of the 2024 election. Dkt. 1 at 9 (Compl. ¶ 25). RFR has spent both 

hard and soft money on this project, purchasing television, social media, and other

advertisements and acquiring contact lists that it has used for robocalls and mass e-mail

campaigns. Dkt. 1 at 8–9 (Compl. ¶¶ 21, 23, 25); Dkt. 8-2 at 2–3, 5 (Llanes Decl. ¶¶ 9, 16, 25). 

These communications explain the purpose of the petition and urge recipients to add their names

and contact information. Dkt. 1 at 8–9 (Compl. ¶ 21). RFR requires signatories to provide either 

an e-mail address or phone number. Id. at 9 (Compl. ¶ 26); Dkt. 8-2 at 3 (Llanes Decl. ¶ 13). 

RFR would like to present its petition, complete with the names and contact information 

of the signatories, to Governor DeSantis at a time to be determined. Dkt. 23-2 at 4.5 After doing 

so, it wants to continue to provide him regular updates, with new names and contacts it has 

compiled, for the duration of any presidential campaign he might undertake. Id. 

5 RFR’s proposed letter to Governor DeSantis states:

Please accept this petition to express the widespread public support to draft you 

to become, and remain, a candidate for the Republican nomination for President 

in the 2024 election and, when nominated, a candidate for the office of President 

of the United States. 

All of the signatories below have virtually signed this petition to demonstrate 

their support. They provided Ready for Ron with their names and contact 

information to convey to you as part of this petition on their behalf. They have 

endorsed the following message: 

[Text of the petition]

Thank you for your continued leadership. Enclosed as part of this petition are 

the virtual signatures and contact information of the signatories who have joined 

together to express their political beliefs and persuade you to run for President. 

Dkt. 8-4 at 1–2. 

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By RFR’s own admission, the petition it has created has a market value of greater than 

$3,300. Id.; Dkt. 1 at 9–10 (Compl. ¶ 26). The value lies in the contact information: RFR 

estimates that “[a] reasonable sample market value of contact information in political distribution 

lists is presently approximately 5 cents each,” Dkt. 23-2 at 4; Dkt. 8-2 at 5 (Llanes Decl. ¶ 27), 

meaning that RFR’s list hit the $3,300 threshold when it reached 66,000 signatories, a number it 

has now well surpassed. RFR believes that it “will likely amass well over a million . . . 

signatures” before all is said and done. Dkt. 23-2 at 4. 

In May 2022, RFR submitted a request for an advisory opinion to the FEC. Dkt. 23-2 at 

1. It sought guidance on whether it could present its “petition” to Governor DeSantis and, if so, 

whether it was required to do so either before Governor DeSantis began testing the waters or 

before he became a candidate. Id. at 4–5. 

After considerable back and forth between RFR and the FEC and a public hearing, the 

FEC issued an opinion that largely disapproved RFR’s proposed course of action. Id. at 190–

200. The FEC unanimously concluded that RFR could not give the “petition” to Governor 

DeSantis if he becomes a candidate or begins testing the waters. Id. at 193. According to the 

FEC, this was so for two reasons: First, the “petition”—or, more precisely, the contact 

information that RFR plans to include—constitutes a contact list that is a “thing of value” worth 

more than $2,900 (the then-applicable limit). Id. at 194–96. In the Commission’s view, because 

the petition contains the contact information of signatories (and has been compiled at 

considerable expense), it is indistinguishable from well-established categories of in-kind 

contributions like mailing and contributor lists. Id. at 194–95. As such, providing it to Governor 

DeSantis free of charge when he is a candidate or is testing the waters would either constitute an 

unlawful campaign contribution or would violate the testing-the-waters exception. Id. at 195–97. 

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Second, because RFR has funded the creation of the petition in part with soft money, providing 

the petition to Governor DeSantis would violate the restriction on making contributions of soft 

money to candidates. Id. at 198–99 (citing 52 U.S.C. § 30125(e)(1)(A)). The FEC, however,

was unable to obtain the requisite four affirmative votes for an advisory opinion addressing

whether RFR could provide the petition to Governor DeSantis before he begins testing the 

waters, so it issued no decision on that score. Id. at 199. 

C. Procedural Background

RFR filed this lawsuit on October 27, 2022. Dkt. 1 (Compl.). It brings six claims for 

relief: (1) a First Amendment claim brought directly under the Constitution, the gravamen of 

which is that the FEC’s advisory opinion violates the First Amendment as do FECA’s 

contribution limits (and associated regulations) as applied to RFR’s proposed course of action; 

(2) an Administrative Procedure Act (“APA”) challenge to the FEC’s advisory opinion (and 

failure to issue a favorable advisory opinion) as arbitrary, capricious, and contrary to law; (3) a

claim under the Declaratory Judgment Act seeking a declaration that the advisory opinion is 

unenforceable and that the First Amendment and FECA permit RFR to fund and submit its 

petition to Governor DeSantis as it wishes; (4) an “Equitable Claim for Injunctive Relief” 

seeking a permanent injunction barring the FEC from enforcing FECA’s contribution limits 

against it in connection with its providing the petition to Governor DeSantis; (5) a statutory 

claim brought directly under FECA seeking a “declaration of right” that its proposed actions are 

permissible under the statute and an injunction prohibiting the FEC from bringing an 

enforcement action related to its proposed conduct; and (6) an APA challenge to the testing-thewaters regulation. Dkt. 1 at 31–40 (Compl. ¶¶ 93–131). 

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RFR has since conceded that its “equitable claim for injunctive relief” does not constitute 

a distinct claim but, instead, is merely a request for relief on its other claims, and it has 

essentially conceded (as it must) that FECA does not establish an independent cause of action

applicable here. Dkt. 17 at 12 n.1. In addition, although RFR does not concede the point, RFR’s 

Declaratory Judgment Act claim is not substantively distinct from its constitutional, statutory, 

and regulatory claims, and thus that claim is best viewed as a request for declaratory relief 

should RFR prevail on its substantive arguments.

6

 Cf. Malek v. Flagstar Bank, 70 F. Supp. 3d 

23, 28 (D.D.C. 2014). In substance, then, RFR has brought (1) an as-applied First Amendment 

challenge to the advisory opinion and FECA’s contribution limits, (2) an APA challenge to the 

advisory opinion (which implicates the interpretation of FECA and FEC regulations), and (3) an 

APA challenge to the testing-the-waters regulation. If successful on any of these claims, RFR 

then requests appropriate declaratory and injunctive relief. 

Approximately two months after filing suit, RFR moved for a preliminary injunction. 

Dkt. 8. It asks the Court to enjoin the FEC from instituting enforcements proceedings against it 

related to its plan to give its petition to Governor DeSantis at any time (before or after Governor 

DeSantis tests the waters or becomes a candidate), providing Governor DeSantis periodic 

updates to the petition thereafter, and accepting unlimited soft money and spending this money 

in connection with the petition. Id. at 1–2. It also requests an injunction against the enforcement 

of the testing-the-waters regulations. Id. at 2. The Court held a motion hearing on February 28, 

6 RFR seems to treat its statutory FECA arguments as substantively distinct from its APA claim, 

Dkt. 17 at 12 n.1. But in the Court’s view, RFR’s APA claim turns at least in part on the correct 

interpretation of FECA and the FEC’s regulations.

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2023, Min. Entry (Feb. 28, 2023), at which it requested supplemental briefing on certain issues, 

which the parties have now provided, Dkt. 24; Dkt. 25; Dkt. 26; Dkt. 28. 

Following the motion hearing, the parties consented to treating RFR’s motion for a 

preliminary injunction as one for summary judgment and a permanent injunction for all counts 

except Count I, RFR’s constitutional claim. Dkt. 27 at 1–2. Because portions of RFR’s APA

claims assert essentially the same First Amendment challenge, the Court also considers those 

portions outside the scope of the parties’ consent to resolution for summary judgment purposes. 

RFR would also treat its preliminary injunction motion as one for summary judgment as to the 

First Amendment issues, but the FEC has requested discovery as to these issues. Id. at 2. RFR 

contends that discovery is unnecessary and would needlessly delay resolution of this matter. Id. 

The Court will, accordingly, treat RFR’s preliminary injunction motion as a motion for 

summary judgment and a permanent injunction as to all non-First Amendment claims, whether 

asserted directly under the Constitution or pursuant to the APA. This will require the Court to 

apply the preliminary injunction standard to RFR’s First Amendment claims, and the summary 

judgment standard to its remaining claims. 

II. STANDARD OF REVIEW

A preliminary injunction is an “extraordinary remedy,” Singh v. Berger, 56 F.4th 88, 95 

(D.C. Cir. 2022), and in deciding whether to grant it the Court must ask four questions: Is the 

movant likely to succeed on the merits of its claims? Will the movant likely suffer “irreparable 

harm in the absence of preliminary relief”? Does the balance of equities favor preliminary 

relief? And is an injunction in the public interest? Winter v. Nat. Res. Def. Council, Inc., 555 

U.S. 7, 20 (2008). “In First Amendment cases, the likelihood of success will often be the 

determinative factor in the preliminary injunction analysis.” Green v. United States Dep’t of 

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Just., 54 F.4th 738, 745 (D.C. Cir. 2022) (quoting Pursuing America’s Greatness v. FEC, 831 

F.3d 500, 511 (D.C. Cir. 2016)).

At one time the courts in this circuit applied a “sliding-scale” approach under which “a 

strong showing” on one of the preliminary injunction factors could make up for a “weaker 

showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). But after the 

Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 

(2008), the D.C. Circuit has suggested although never squarely held that this approach is no 

longer appropriate, at least as to likelihood of success, which is a “free-standing requirement” for 

a preliminary injunction. Sherley, 644 F.3d at 393 (quoting Davis v. Pension Benefit Guar. 

Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)). As noted, because 

irreparable injury is typically presumed when the moving party has established a likelihood of 

success on the merits of a First Amendment challenge, the availability (or not) of the slidingscale approach is of little consequence in this case.

RFR’s other claims—those that the Court will resolve under the summary judgment 

standard—are APA claims seeking equitable and declaratory relief. The Court will, accordingly, 

consider these claims under the familiar APA standard of review, which requires the Court to 

“hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In an APA case, summary 

judgment “serves as a ‘mechanism for deciding, as a matter of law, whether the agency action is

. . . consistent with the APA standard of review.’” Fisher v. Pension Benefit Guar. Corp., 468 F. 

Supp. 3d 7, 18 (D.D.C. 2020) (quoting Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 9 

(D.D.C. 2019)). In essence, “the district judge sits as an appellate tribunal,” and “the entire case 

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on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. 

Cir. 2001) (internal quotation marks omitted).

III. ANALYSIS

RFR raises a host of statutory and constitutional challenges. The Court starts with RFR’s 

statutory challenges, which take a variety of forms, and then turns to its constitutional claims.

A.

RFR’s lead argument is that its petition is not a contribution under FECA and thus is not 

subject to FECA’s contribution limitations. The Court is unpersuaded. 

Some clarification is in order at the outset. The FEC stresses that it sees no problem with

RFR providing its petition—complete with the list of signatures—to Governor DeSantis. Dkt. 

16 at 29 (“[T]he contribution limit applies only to restrict the private transfer of the mailing list 

with contact information, not the petition to which it is attached.”); Dkt. 22 at 36 (noting that 

RFR “has many alternative avenues for communicating its message” including through “a 

petition without the contact information”); id. at 39–40 (“[W]e are concerned not with the 

message that Ready for Ron is trying to communicate at all . . . we have gone specifically for the 

contact information . . . .”). Its only concern arises from RFR’s plan to provide Governor 

DeSantis with the contact information of the signatories, because that compilation of contact 

information is, in all but name, a mailing or contact list. Id. As a result, RFR’s framing of this 

case as one about its “petition” is inaccurate. Rather, the dispute is about the contact list. Going 

forward, then, the Court will refer to the operative item as a “contact list,” unless the 

accompanying petition is somehow relevant.

Whether the FEC correctly determined that RFR’s contact list falls within FECA’s 

definition of a “contribution” is a question of statutory construction. The D.C. Circuit has held 

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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”), so the Court would typically 

review the agency’s interpretation of FECA under the familiar Chevron framework. Here,

however, although Chevron applies, pacing through the Chevron two-step is unnecessary 

because the FEC’s conclusion that RFR’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 

would adopt irrespective of Chevron. Wash. Reg’l Medicorp v. Burwell, 813 F.3d 357, 362 

(D.C. Cir. 2015); cf. Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 45 F.4th 

306, 314 (D.C. Cir. 2022) (“[T]here is no need to decide what deference, if any, a regulation 

should receive where we can conclude that the agency’s interpretation of the statute is the best 

one.”). So the Court need only interpret FECA using the traditional tools of statutory 

construction and leave it at that. 

The contact list that RFR proposes to give to Governor DeSantis easily falls within the 

Act’s definition of a “contribution.” Under that definition, a contribution is, in relevant part, 

“any gift . . . of money or anything of value made by any person for the purpose of influencing 

any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). RFR does not contest that it would 

like to provide its petition and contact list to Governor DeSantis in order to “influenc[e] an[] 

election for Federal office.” Id. Quite the opposite; it freely acknowledges that its goal is to 

convince Governor DeSantis to run for President, to remain a candidate throughout the election 

cycle, and, one can only assume, to prevail in that effort. Dkt. 1 at 5–7 (Compl. ¶¶ 9–17). The 

petition itself declares that “Governor Ron DeSantis is the next Great American President . . . 

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who will turn our country around,” and it invites signatories to “[l]et Ron know [they are] behind 

him and want to join his team!” Dkt. 8-3 at 1. The FEC, moreover, soundly concluded that the 

contact list constitutes more than unadorned advocacy urging Governor DeSantis to join the race

or urging others to support him. Rather, it is a uniquely effective, tangible tool designed to assist 

him in pursing the presidency. Dkt. 23-2 at 195–96.

7

 So, the question is whether the contact list

is a “gift” of “anything of value.” 52 U.S.C. § 30101(8)(A)(i). 

Begin with the word gift, which means “something that is voluntarily transferred by one 

person to another without compensation.” Gift, Webster’s Third New International Dictionary 

(2d ed. 1976) (def. 2); accord Gift, Webster’s Third New International Dictionary (3d ed. 1993) 

(identical definition); Gift, Oxford English Dictionary (3d ed. Mar. 2023) (def. II.3.a 

“Something, the possession of which is transferred to another without the expectation or receipt 

of an equivalent; a donation, present”); Gift, Oxford English Dictionary (2d ed. 1989) (identical 

definition); Gift, Black’s Law Dictionary (10th ed. 2014) (“The voluntary transfer of property to 

another without compensation”; “A thing so transferred”). Thus if RFR voluntarily transfers its 

7 The Court notes that the implicit position the FEC has taken in this case with respect to what 

sorts of transfers are made “for the purpose of influencing any election for Federal office,” 52 

U.S.C. § 30101(8)(A)(i), is consistent with that which it has taken previously. In ActBlue, FEC 

Advisory Op. 2006-30 (Nov. 9, 2006), https://www.fec.gov/files/legal/aos/2006-30/2006-30.pdf, 

the FEC approved a proposal by ActBlue to solicit and receive funds for prospective candidates 

for the 2008 presidential election and to withhold remitting those funds to the prospective 

candidates until they in fact registered as candidates. Id. at 1. But it cautioned that if these 

earmarked contributions were forwarded “to a Prospective Candidate before that person 

register[ed]” their candidacy, “both ActBlue and the Prospective candidate should recognize that 

a Prospective Candidate who receives contributions aggregating in excess of $5,000 becomes a 

candidate under the Act and . . . must register [as such].” Id. at 5. This analysis presumes that 

transfers made for the purpose of supporting the potential candidacy of a prospective candidate 

can constitute contributions within the meaning of the Act and thus are made “for the purpose of 

influencing an[] election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). That assumption is 

equally apt here, where RFR seeks to provide something to a prospective candidate in order to 

induce and then to support his potential candidacy. 

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contact list to Governor DeSantis without compensation, it is a gift. Not only is that result 

consistent with the term’s ordinary meaning, it is the only one that is plausible in context. 

FECA’s concern is the provision of benefits to candidates—i.e. the giving of things to 

candidates—in ways that might give rise to corruption or its appearance. Buckley, 424 U.S. at 

25–26. The plain meaning of “gift” addresses precisely this concern. 

The contact list is also a “[]thing of value” such that the giving (or “gift[ing]”) of it 

makes it a contribution. 52 U.S.C. § 30101(8)(A)(i). Something is a “thing of value”—it is 

“valuable”—if it has “financial or market value.” Valuable, Black’s Law Dictionary, supra; see 

also Value, Black’s Law Dictionary, supra (def. 2 “The monetary worth or price of something; 

the amount of goods, services, or money that something commands in an exchange”); Valuable, 

Webster’s Third New International Dictionary (2d. ed. 1976) (def.1 “possessing monetary value 

in use or exchange”); Value, Webster’s Third New International Dictionary (2d ed. 1976) (def. 2 

“the monetary worth of something”). There is no dispute that RFR’s contact list has 

considerable financial or market value. RFR has spent over $1 million creating it, Dkt. 17 at 8, 

and by RFR’s own estimate, its fair market value is greater than $11,000, Dkt. 23-2 at 4; Dkt. 25 

at 33. 

The reason RFR’s contact list is so valuable—and this is in many ways the crux of the

case—is that it is indistinguishable from a mailing list, a well-established “thing of value” the 

provision of which for less than its ordinary price constitutes a “contribution” under FECA. As 

this Court recognized in Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45 

(D.D.C. 1999), “mailing lists have commercial value and are routinely rented for fundraising or 

other solicitation purposes.” Id. at 96; see also FEC v. Int’l Funding Inst., Inc., 969 F.2d 1110, 

1116 (D.C. Cir. 1992) (recognizing that lists of donors are “the product of time-consuming, 

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labor-intensive activities that can cost a political committee thousands, even millions, of dollars” 

(internal quotation marks omitted)). RFR understands this; RFR itself spent thousands of dollars 

to rent mailing lists to use for soliciting signatories for its petition. Dkt. 1 at 9 (Compl. ¶ 23); 

Dkt. 23-2 at 18. Any doubt regarding the status of mailing lists, moreover, is put soundly to rest 

by an FEC regulation providing that “the provision of any goods or services,” including, for 

example, “membership lists[] and mailing lists,” “without charge . . . is a contribution.” 11 

C.F.R. § 100.52(d)(1). Notably, RFR does not challenge the reasonableness or constitutionality 

of this regulation. 

In short, then, RFR seeks to give Governor DeSantis a valuable contact list, and its 

purpose in doing so is to influence the 2024 election by inducing Governor DeSantis to become a 

candidate in that election and supporting him in his candidacy. Such a conveyance is a 

contribution under 52 U.S.C. § 30101(8)(A)(i). 

RFR urges the Court to reject these commonsense interpretations of both “gift” and 

“thing of value,” but its reasons are unpersuasive. 

RFR first argues that whatever the word “gift” encompasses, it cannot include a petition, 

because a petition is “[p]ure political speech.” Dkt. 8-1 at 23. That contention rests on a faulty

premise. Although the text of the petition and the list of associated names constitute core

political speech, the same cannot be said for the contact information. RFR never explains why 

“John Doe – john.doe@website.com” or “John Doe – (123) 867–5309” carry meaningful 

expressive value above and beyond “John Doe.” And, as explained, the FEC has indicated that it 

would not object to RFR presenting the petition without the associated contact information. Dkt. 

16 at 29; Dkt. 22 at 36, 39–40. So the information that the FEC seeks to restrict is not core

political speech; it is contact information. 

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The notion that the presence of a significant speech component exempts an item from the 

ambit of “gift” and thus FECA more generally is also a non-sequitur. Campaign finance 

regulation, in general, involves some regulation of political speech. Buckley, 424 U.S. at 16. 

But as 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). RFR’s contention that items with speech components are “not 

ordinarily characterized as [] ‘gift[s]’ and therefore do[] not constitute [] ‘contribution[s],’” Dkt. 

8-1 at 24, ignores the history of campaign finance regulation and dozens of opinions from the 

Supreme Court, the D.C. Circuit, and this Court that approve the regulation of speech in the form 

of campaign contributions. RFR’s construction also contradicts the plain language of FECA and 

the “cardinal principle of statutory construction” that a court must “give effect, if possible, to 

every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000) (cleaned up). 

Failing to make headway on plain meaning, RFR invokes other canons of construction, 

none of which sheds meaningful light on the interpretive questions presented here. RFR first 

cites to the noscitur a sociis semantic canon—“a word is known by the company it keeps,” Ali v. 

Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (quoting S.D. Warren Co. v. Maine Bd. Of 

Env’t Prot., 547 U.S. 370, 378 (2006))—as a basis to read “gift” to exclude contact lists, at least 

if they are appended to “petitions.” It notes that the definition of contribution includes a list of 

terms in addition to “gift”—“subscription, loan, advance, or deposit,” 52 U.S.C. 

§ 30101(8)(A)(i)—and that each of these terms has some financial connotation. Dkt. 8-1 at 25. 

Applying the noscitur canon, then, RFR maintains that the Court should read the term “gift” to 

cover only “transfers with a financial aspect.” Id. at 24–25. This argument does bring several 

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additional words of the statute into the picture, but, more importantly, it leaves critical ones out. 

In full, the provision says that the word “contribution includes . . . any gift, subscription, loan, 

advance, or deposit of money or anything of value made by any person for the purpose of 

influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). The disjunctive phrase 

“money or anything of value” lays plain that “contribution[s],” and thus “gift[s],” are not limited 

to money or other forms of currency or things with a defined transactional value. Id. (emphasis 

added); see Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “‘or’ 

is ‘almost always disjunctive’” (quoting United States v. Woods, 571 U.S. 31, 45 (2013)). And, 

as recounted above, courts have long read the word “gift” to include in-kind contributions that do 

not have a “financial aspect” as RFR would narrowly define that concept. Buckley, 424 U.S. at 

36–37 (discussing “food or beverages” and “travel” as types of in-kind contributions); Campaign 

Legal Ctr., 31 F.4th at 784 (describing in-kind contributions to include “committee staff time, 

office space, or other resources”). 

Lest there be any doubt, the statute does not merely refer to “gift[s]” or “things of value” 

but rather “any gift” and “anything of value.” 52 U.S.C. § 30101(8)(A)(i) (emphasis added). 

“Any,” whether used on its own or as part of another word, “has an expansive meaning, that is, 

‘one or some indiscriminately of whatever kind.’” United States v. Gonzalez, 520 U.S. 1, 5 

(1997) (quoting Any, Webster’s Third New International Dictionary (2d ed. 1976)). Such broad 

language cannot plausibly be construed as limited to items with a transactional or “financial 

aspect.” To conclude otherwise would deprive the Act’s contribution limits of any practical 

meaning. Under RFR’s reading of the statute, large contributors could easily evade the statutory 

limits by purchasing all of the supplies a campaign might need. RFR fails to explain, for 

example, whether or how its reading of the statute would preclude a contributor with sufficient 

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resources from buying an airplane (and all the necessary fuel) to allow the candidate to travel the 

country. Airplanes are not financial instruments, but they are certainly things of value.

RFR also looks for support in three substantive canons: constitutional avoidance, the 

major questions doctrine, and the rule of lenity. Taking these in order, the canon of 

constitutional avoidance applies only if one potential interpretation of a statute would raise 

“grave and doubtful constitutional questions.” Rust v. Sullivan, 500 U.S. 173, 191 (1991)

(quoting United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)). As 

the Court explains in more detail below, the FEC’s interpretations of “any gift” and “anything of 

value” do not give rise to any “grave” constitutional doubts, so the canon is inapplicable. Next, 

the major questions doctrine addresses those “‘extraordinary cases’ in which the ‘history and the 

breadth of the authority that [the agency] has asserted,’ and the ‘economic and political 

significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’

meant to confer such authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022) (alteration 

in original) (some internal quotation marks omitted) (quoting FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 159–60 (2000)). It applies in particular when such authority

“lack[s] historical precedent,” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 

505 (2010) (internal quotation marks omitted), in the face of ambiguous statutory language, see 

West Virginia, 142 S. Ct. at 2608. Nothing like that is presented here. The authority the FEC 

asserts is no different than the authority it has always asserted and that the Courts have 

recognized and upheld since FECA’s inception. See Buckley, 424 U.S. at 29, 36–37. “Any gift” 

and “anything of value” also reside in the definition of one of FECA’s core provisions, hardly 

the sort of “cryptic” statutory language with which the major questions doctrine is most 

concerned. West Virginia, 142 S. Ct. at 2608 (quoting Brown & Williamson Tobacco Corp., 529 

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U.S. at 160). Lastly, the rule of lenity applies only where a statute presents a “grievous 

ambiguity.” Shaw v. United States, 580 U.S. 63, 71 (2016) (quoting Muscarello v. United States, 

524 U.S. 125, 138–39 (1998)). For reasons already provided, the relevant statutory text is not 

ambiguous, much less grievously so. 

To be sure, the FEC itself asserts that the definition of contribution is ambiguous, hence 

its invocation of Chevron deference. But not all ambiguity is of the same stripe. The Supreme 

Court made this point in a related context in Buckley v. Valeo, 424 U.S. 1 (1976), where it 

observed that any uncertainty regarding the meaning of the phrase “for the purpose of 

influencing” an election “presents fewer problems in connection with the definition of a 

contribution” than in other contexts, “because of the limiting connotation created by the general 

understanding of what constitutes a political contribution.” 424 U.S. at 23 n.24. This is just such 

a circumstance, where the provision of mailing lists and the like without charge has long been 

understood to qualify as an in-kind contribution. Christian Coalition, 552 F. Supp. 2d at 96; Int’l 

Funding Inst., 969 F.2d at 1116. Moreover, the relevant inquiry—at Chevron step one and when 

applying other ambiguity-dependent interpretative canons—is not whether there lurks some 

ambiguity in a statutory provision when that provision is read in a void or is applied to 

circumstances not raised in the case. Brown & Williamson Tobacco Corp., 529 U.S. at 132–33. 

Rather, the question is whether a statutory term is ambiguous as to the particular application at 

issue. Calif. Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C. Cir. 2004) (“The 

issue is not so much whether the word ‘practice’ is, in some abstract sense, ambiguous, but rather 

whether, read in context and using the traditional tools of statutory construction, the term 

‘practice’ encompasses the procedures [that were challenged in the case].”). This is because 

“[t]he meaning—or ambiguity—of certain words or phrases may only become evident when 

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placed in context.” Brown & Williamson Tobacco Corp., 529 U.S. at 131; Brown v. Gardner, 

513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of 

statutory context.”). The question here is thus whether FECA’s definition of “contribution” is 

ambiguous as applied to RFR’s contact list. It is not, and RFR cites to no precedent, dictionary, 

or alternative reading of the text that could plausibly support excluding mailing or contact lists 

from the statutory definition of in-kind contributions. 

RFR next endeavors to distinguish its contact list from a mailing or contributor list. It 

emphasizes first that unlike a more typical mailing list, the item it proposes to provide also 

contains political speech, namely, the content of the petition and the names of the signatories. 

This boils down to the unsupportable submission that if expressive content it attached to a 

contact list, it is no longer a contact list. More generally, RFR’s argument seems to be that if 

expression is added to a “thing of value,” it becomes something other than a “thing of value.” 

That contention does not pass the straight-face test. The hypothetical airplane described above is 

still an airplane (and still an in-kind contribution), even if the donor stencils a “petition” on the

back of every seat. So too with contact lists. If it were otherwise, FECA would be a nullity; all 

contributions could become non-contributions so long as an expressive element is added. 

Buckley famously held that “the dependence of a communication on the expenditure of 

money . . . [does not] introduce a nonspeech element [to the communication] or [] reduce the 

exacting scrutiny required by the First Amendment.” Id. at 16. But the converse is also true: the 

combination of a speech element with an item of monetary value does not eliminate the

monetary value of the latter nor the ability of the government to regulate it consistent with the 

First Amendment. Cf. United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[W]hen ‘speech’ 

and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important 

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governmental interest in regulating the nonspeech element can justify incidental limitations on 

First Amendment freedoms.”). This is particularly true where the core political speech (here, the 

petition itself) and the in-kind contribution are not unavoidably linked; RFR can provide 

Governor DeSantis with its “petition” without also providing him with its contact list. 

It also bears mention that when given the opportunity to engage in the core political 

speech that it invokes here, while excluding the valuable contact list, RFR declined. In 

explaining its refusal to yield on this point, RFR contends that the inclusion of phone numbers 

and e-mail addresses is necessary to demonstrate to Governor DeSantis that the signatures are 

authentic. Dkt. 8-1 at 21; Dkt. 17 at 10, 28. That is a doubtful proposition, because it is no more 

difficult to make up phone numbers than it is to make up names and only slightly more work to 

generate fake e-mail addresses. Perhaps RFR envisions that Governor DeSantis or his staff will 

call or e-mail a random sample of signatories to make sure they are real. But if that is what RFR 

has in mind, it has offered no support for the assumption that its petition will carry greater First 

Amendment punch if it includes the contact information needed for such efforts. More 

importantly, however, even if RFR’s justification was more plausible, it would not change the 

statutory analysis. That a petition is more resonant or verifiable if it includes a contact list does 

transform an in-kind contribution into unregulatable, core political speech. Applying RFR’s 

reasoning, Governor DeSantis might be better able to assess whether the petition signatories are 

really committed to him—or whether, for example, they signed the petition in the hopes of 

inviting a primary fight that might weaken all of the Republican candidates—if each signatory 

also made a modest financial contribution to him. But that increased certainty regarding the 

bona fides of each signatory would not permit the FEC to ignore those contributions. The same 

is true of RFR’s in-kind contribution of a contact list.

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The proposition that a list of names, e-mail addresses, and phone numbers is a contact list 

(and the corollary that whatever else it might accompany cannot change that fact) dispenses with 

RFR’s other arguments as well. For instance, RFR asserts that its contact list is not a contact list 

because it “reflects the voluntary, affirmative political and expressive association of Governor 

DeSantis’ supporters.” Dkt. 8-1 at 28. But RFR fails to explain why this is so. RFR also has it 

exactly backward as a practical matter. One of the things that makes RFR’s contact list so 

valuable is that, at substantial expense, RFR has identified those voters most likely to support 

Governor DeSantis’ candidacy. These are the individuals who, if contacted, will presumably be 

most likely to make contributions to his campaign, to volunteer, and to show up at the polls. If 

any contact lists should be treated as in-kind contributions, surely those that are crafted to 

provide the most benefit to their recipients should be. In any event, to sound a by-now-familiar 

note, the FEC has no quarrel with the “voluntary, affirmative political and expressive 

association” of RFR’s signatories, only the provision of the valuable contact information that 

RFR collected at considerable expense and using, at least in part, soft money. Dkt. 8-1 at 28; 

Dkt. 16 at 29; Dkt. 22 at 36, 39–40. 

B.

Changing tack, RFR attempts to reframe the issue: it argues that, if anything, RFR should 

be treated as a conduit for the contributions of the petition’s signatories. The signatories are, after 

all, the ones who are providing their contact information, which RFR is merely passing along to 

Governor DeSantis. Dkt. 8-1 at 30–36. RFR then maintains that the contribution of each 

signatory—their name and contact information—should be considered de minimis and therefore 

should not count against their own contribution limits. Id. at 31 n.2. The Court is not convinced.

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FECA recognizes the concept of conduits and conduit contributions, also known as 

“earmarked” contributions. It provides: 

For purposes of the limitations imposed by this section, all contributions made 

by a person, either directly or indirectly, on behalf of a particular candidate, 

including contributions which are in any way earmarked or otherwise directed 

through an intermediary or conduit to such candidate, shall be treated as 

contributions from such person to such candidate.

52 U.S.C. § 30116(a)(8). The FEC, in turn, has promulgated regulations that impose certain 

requirements on conduits, including (1) that conduit contributions must be forwarded to their 

ultimate recipient “no later than 10 days after receipt,” 11 C.F.R. §§ 110.6(b)(2)(iii), 102.8(a), 

(c); (2) that a conduit must “report the original source” of the contribution to the FEC, id.

§ 110.6(c)(1)(i); and (3) that if the conduit exercises “any direction or control over the choice of 

recipient,” the contribution shall be treated as one from the conduit as well as the original source, 

id. § 110.6(d)(2). 

Here, the FEC concluded that RFR’s contact list was not properly considered a series of 

individual contributions from each signatory because “the ‘thing of value’ that R[F]R proposes 

to provide to Governor DeSantis does not consist solely, or even primarily, of any individual 

signatory’s name or contact information.” Dkt. 23-2 at 198. “Instead,” the FEC reasoned, “it 

lies in R[F]R’s collection and compilation of information from tens of thousands, if not 

‘millions,’ of individuals nationwide who would have already demonstrated their support for 

Governor DeSantis and his potential presidential campaign by participating in R[F]R’s petition 

project—a project on which R[F]R plans to expend considerable resources of its own.” Id. In 

other words, the FEC concluded that the whole of RFR’s contact list amounts to more than the 

sum of its parts. By conducting an expensive campaign of nationwide outreach and compiling 

the fruits of that outreach in a single, useable contact list of motivated supporters, RFR created a 

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“thing of value” beyond that which is attributable to the “contribution” of each individual 

petition signatory. 

That determination was not only reasonable but unassailable. It has taken RFR 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. Dkt. 17 at 8; Dkt. 1 at 8–9 (Compl. ¶¶ 21, 23, 25). Had RFR not expended that time 

and money, no such list would exist. RFR’s labor and expenditures have thus created a uniquely 

valuable asset, the value of which cannot be attributed to the individual signatories. 

Christian Coalition endorsed this theory of value. At issue in that case was a list of 

delegates from the 1993 Republican Convention in Virginia who had supported a particular 

candidate, Mike Farris, for Lieutenant Governor (the “Farris List”). 52 F. Supp. 2d at 77. The 

defendant, the Christian Coalition, had taken that list and cross-checked it against its own 

mailing list to determine which individuals were on both lists. Id. The court explained that 

“[t]he Farris list”—as augmented by the Christian Coalition’s cross-check—“would be valuable 

to a [1994 Republican] campaign because those on the list were highly likely to share the 

Coalition’s views on a number of issues . . . and many of the 1993 delegates would likely be 

delegates to the 1994 Virginia Republican convention.” Id. Against this backdrop, the Court 

concluded that the Coalition’s provision of the list free of charge to Oliver North’s 1994 senate 

campaign constituted a “contribution.” Id. at 49, 96. As the Court explained, “[e]ven if the 

names on the Farris 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.” Id. at 96. Here, as in Christian Coalition, RFR has “expended 

resources to compile” the “Ready for Ron” contact list, and, in so doing, it has created an 

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independent “thing of value.” The FEC’s determination that providing this “thing of value” to 

Governor DeSantis would constitute a contribution from RFR is consistent with precedent, 

makes eminent sense, and was not, by any stretch, arbitrary and capricious. 

To be clear, the Court does not hold, as RFR seems to suggest, Dkt. 25 at 12–13, that 

were RFR to provide its contact list to Governor DeSantis, that would amount to an in-kind 

contribution of the full value of RFR’s solicitation expenses—$1 million or more, Dkt. 17 at 8. 

The FEC has held that third-party expenditures soliciting contributions to a candidate do not 

count directly as contributions by the third party to the candidate, and the Court does not disturb 

that conclusion. WE LEAD, FEC Advisory Op. 2003-23, at 5 (Nov. 7, 2003), 

https://saos.fec.gov/aodocs/2003-23.pdf; see also 52 U.S.C. § 30101(17) (defining independent 

expenditure). Rather, the list as a whole has value—created by means of RFR’s independent 

expenditures but distinct from those expenditures—that all agree exceeds FECA’s contribution 

limits and that the FEC reasonably held is distinct from the value of each separate name and email address or phone number. That “thing of value” is what RFR seeks to contribute to 

Governor DeSantis. 

RFR offers four arguments in support of its conduit theory, none of which is availing. 

The first is that compiling a mailing list is no different than compiling financial 

contributions, so RFR is no different than a more typical contribution conduit. Dkt. 8-1 at 32; 

Dkt. 25 at 19–21. The FEC reasonably rejected this comparison. The following hypothetical 

illustrates the difference between one who compiles and passes along monetary donations and 

one who does the same with contact list information. Imagine an ordinary conduit who spends 

$20,000 soliciting contributions for a candidate, yielding contributions from 100 individuals of 

$100 each, which the conduit passes along to the candidate. The $10,000 the conduit remits to 

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the candidate is worth $10,000 to the candidate—exactly the sum of the individual contributions. 

And, as long as the candidate receives the $10,000, the risk of actual or apparent corruption is 

minimal: a $100 contribution is worth $100 regardless of who collects it. To be sure, by 

physically collecting and passing along contributions, the conduit has saved the candidate some 

logistical or administrative effort, but only a de minimis amount. It requires little additional 

effort for a candidate to accept 100 $100 payments versus one $10,000 payment, and conduits do 

not themselves bear the transaction costs associated with the separate payments, which the 

original contributor or the candidate must pay in any event. See ReCellular, FEC Advisory Op. 

2010-21, at 7–8 (Oct. 8, 2010), https://saos.fec.gov/aodocs/AO%202010-21.pdf. 

A contact list is different. To start, the contact information of an identified supporter is 

far more valuable than the contact information of anyone else. See Christian Coalition, 52 F. 

Supp. 2d at 77, 96; see also Dkt. 17-1 at 4 (Llanes Decl. ¶ 11) (noting that the value of a person’s 

contact information depends in part on “the amount that is known about [the person’s] political 

beliefs, affiliations, or leanings” and “how reliably the [person] contribut[es] or otherwise 

respond[s] to solicitations”). RFR has spent significant resources making sure it has a list only 

of the former. Moreover, 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. If 200,000 individuals 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. RFR has done that work for him. Indeed, RFR seems to recognize 

just how onerous such an organizational effort is: it asks 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 

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“unconstitutional.” Dkt. 8-1 at 31–32 n.2. The FEC, accordingly, reasonably concluded that a 

compiled contact list of avowed supporters is different than a series of monetary contributions.

This same reasoning applies to RFR’s second contention. RFR notes that if each 

signatory independently sent their contact information directly to Governor DeSantis—even at 

RFR’s prompting—the signatories would be treated as the source of the “contributions,” not 

RFR. Dkt. 8-1 at 32–33; Dkt. 25 at 16–17. That is true but, for the reasons just provided, beside 

the point. Through its efforts, RFR has created a campaign tool of distinct value. 

Third, RFR argues that the FEC’s advisory opinion in this case is inconsistent with prior 

opinions that blessed various conduit contribution arrangements. But RFR has failed to identify 

a prior advisory opinion that is in actual conflict with the one at issue here. It first cites to 

several opinions approving conduit contribution arrangements under which conduits would 

solicit contributions for identified candidates or potential candidates and remit those 

contributions to the candidates (or potential candidates when they declared their candidacies). 

ActBlue, FEC Advisory Op. 2006-30 (Nov. 9, 2006), https://www.fec.gov/files/legal/aos/2006-

30/2006-30.pdf; ActBlue, FEC Advisory Op. 2007-27 (Dec. 17, 2007), https://saos.fec.gov/

aodocs/2007-27.pdf; ActBlue, FEC Advisory Op. 2014-19 (Jan. 15, 2015), https://saos.fec.gov/

aodocs/AO_2014-19_(ActBlue)_Final_(1.15.15).pdf; Skimmerhat, FEC Advisory Op. 2012-22 

(Aug. 2, 2012), https://saos.fec.gov/aodocs/AO%202012-22.pdf; WE LEAD, FEC Advisory Op. 

2003-23, supra. Many, although not all, of these opinions concern ActBlue, a political

committee and major contribution conduit. But each of these opinions deals only with the 

remittance of money which, for the reasons discussed above, differs in material respects from the 

compilation of a contact list. Notably, there is no suggestion in any of the opinions that the 

conduit was adding value to the contributions in a manner anything like what RFR proposes to 

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do. Because these opinions dealt with a very different question from that raised here, they 

neither compelled a result different from that which the FEC reached nor obligated the FEC to 

offer a reasoned basis for departing from prior practice or precedent. See Hall v. McLaughlin, 

864 F.2d 868, 873 (D.C. Cir. 1989) (“[I]f the court itself finds the past decisions to involve 

materially different situations, the agency’s burden of explanation about any alleged ‘departures’ 

is considerably less.”). 

RFR also highlights that in most of these opinions the FEC approved—indeed, 

required—that each conduit provide to the recipients of contributions not only the funds 

contributed but also the name and physical mailing address of the original contributor. Dkt. 8-1 

at 33–35. This information, it maintains, is no different than that which it seeks to give to 

Governor DeSantis. See id. But there is an essential difference: FEC regulations require

conduits to pass along the names and mailing addresses of contributors to the ultimate recipients 

in order to enforce the relevant contribution limits and FECA’s other prohibitions, 11 C.F.R. 

§§ 110.6(c)(1)(iv), 102.8(a)–(b), whereas RFR seeks to provide Governor DeSantis with a

distinct thing of value in excess of those very contribution limits. It goes without saying that a 

conduit’s compliance with a regulatory requirement is far less likely to give rise to an appearance 

of corruption than is a political committee’s effort to give a contact list to a candidate or 

prospective candidate. In the former scenario, the names and addresses are provided to prevent 

the violation of FECA, while in the latter, the contact list serves no countervailing regulatory 

purpose and is indistinguishable from the types of lists that the FEC has consistently treated as 

in-kind contributions. See, e.g., Ryan, FEC Advisory Op. 2014-06, at 8 (July 24, 2014), 

https://saos.fec.gov/aodocs/2014-06.pdf; Brown, FEC Advisory Op. 2011-02, at 7–8 (Feb. 17, 

2011), https://saos.fec.gov/aodocs/AO%202011-02.pdf; Dellums, FEC Advisory Op. 1981-46, at 

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2 (Nov. 16, 1981), https://saos.fec.gov/aodocs/1981-46.pdf. In the usual course, moreover, 

conduits like ActBlue are generally required to provide contribution recipients with any conduit 

contributions (and the required identifying information) within ten days of receiving them, 11 

C.F.R. § 102.8(a), making it unlikely that the conduit could, in effect, provide the candidate with 

a contact list under the guise of the regulatory identification requirements.8 And as noted above, 

RFR acknowledges that compiling disparate contact information as it comes in is highly 

burdensome. Dkt. 8-1 at 31–32 n.2; Dkt. 25 at 38 n.6.

In response, RFR notes that ActBlue does provide the e-mail addresses and phone 

numbers of contributors to candidates free of charge when it remits those contributors’ financial 

contributions. Dkt. 8-1 at 33–34. But the permissibility of that practice has never been before 

the FEC, and it has never approved it. Dkt. 24 at 3. There is at least a fair question whether that 

practice is permissible under the RFR advisory opinion. The legality vel non of ActBlue’s 

8

In some prior opinions, including ActBlue, FEC Advisory Op. 2006-30, supra, at 1, and WE 

LEAD, Advisory Op. 2003-23, supra, at 4, the FEC arguably approved arrangements closer to 

that which RFR is proposing. The ActBlue opinion, for instance, concluded that ActBlue could 

collect conduit contributions for potential candidates for the 2008 presidential election and 

postpone forwarding those contributions to the prospective candidates until 10 days after they

formally registered. ActBlue, FEC Advisory Op. 2006-30, supra, at 1. Because ActBlue was 

required to include the mailing addresses of the contributors when it forwarded the monetary 

contributions, it was arguably permitted to provide contact information to candidates in bulk 

after they registered, rather than piecemeal as is typically the case. Nevertheless, this advisory 

opinion (and the WE LEAD opinion, which approved a similar arrangement) remains 

distinguishable because of the fundamental difference between the compelled provision of 

certain contributor information that the FEC has concluded is necessary to enforce FECA’s 

prohibitions and the gratuitous provision of additional contributor information for purposes 

unrelated to the enforcement of the Act. More still, on the Court’s reading of these advisory 

opinions, the FEC had no cause to and did not consider squarely whether the contact information 

at issue constituted a separate thing of value provided to the potential candidates, distinct from 

the monetary contributions that were the subject of the opinions. So, although in a sense the 

FEC approved, in particular contexts, the bulk provision of contact information, it is more 

accurate to say that the FEC did not on its own initiative consider whether approving the 

monetary contribution scheme at issue created a separate potential problem.

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activities, however, is not before the Court. Instead, the Court may only consider—among 

RFR’s other challenges—whether the FEC acted in an arbitrary and capricious manner by 

disapproving conduct by RFR that it has actually approved in other contexts. Because the FEC 

has never approved ActBlue’s provision of e-mail addresses and phone numbers to candidates, 

whatever ActBlue may (or may not) do in this regard has no bearing on the Court’s decision.

In any event, these opinions are distinguishable in other ways as well. Advisory Opinion 

2006-30, for instance, the ActBlue advisory opinion most cited in subsequent opinions on these 

issues, emphasizes that ActBlue may serve as a conduit only if it adheres to conduit reporting 

requirements, most notably that it “report the original . . . source[]” of the contribution “to the 

Commission.” ActBlue, FEC Advisory Op. 2006-30, supra, at 6; 11 C.F.R. § 110.6(c)(1)(i). The 

opinion even states that the FEC “consider[ed] the fact that ActBlue is a political committee 

subject to the reporting requirements of the Act to be significant to [its] determination”

approving ActBlue’s proposal. ActBlue, FEC Advisory Op. 2006-30, supra, at 6 n.4 (emphasis 

added). But RFR argues that, even if it is treated as a conduit, it should not be required to adhere 

to this requirement, because compliance would be unduly and even unconstitutionally 

burdensome on RFR and the signatories of the petition. Dkt. 8-1 at 31–32 n.2; Dkt. 25 at 38–39

n.6. RFR is, of course, correct that whether it is appropriately considered a conduit is an 

antecedent inquiry to whether it is entitled to an exemption from conduit reporting requirements, 

Dkt. 28 at 9–10, and the Court does not express a view on the latter issue, which is not before it 

and was not before the FEC. But it is notable that RFR is not seeking to operate like any other 

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conduit committee. Simply put, it wants the benefit of the ActBlue precedents without the 

burden.9 

Finally, in its supplemental briefing, the FEC forthrightly surfaced two other advisory 

opinions, at least one of which, ReCellular, arguably presents a closer analog to RFR’s proposal 

than do the precedents discussed above. As an initial matter, the Court notes that RFR never 

raised ReCellular before the FEC, so the Commission can hardly be faulted for failing to address 

an argument that was never made or for failing to distinguish a precedent that RFR did not itself 

consider sufficiently on point to raise before the agency. Although an agency “cannot ignore its 

own relevant precedent,” B B & L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995), it is “by no 

means required to distinguish” every one of its prior decisions, LeMoyne-Owen College v. NLRB, 

357 F.3d 55, 60 (D.C. Cir. 2004). The D.C. Circuit has held, instead, that “where . . . a party 

makes a significant showing that analogous cases have been decided differently, the agency must 

do more than simply ignore that argument.” Id. at 61 (emphasis added). A corollary of this 

9 The Court is likewise unmoved by RFR’s contention that, even if it were a conduit passing 

along contact information to Governor DeSantis, treating the signatories’ submission of contact 

information as non de minimis conduit contributions would be untenable, because it would 

“make it impossible for RFR or any other entity to actually compile a political petition.” Dkt. 25 

at 18. The reason, says RFR, is that it would have to “forward each signatory’s name and 

contact information to Governor DeSantis within ten days of receiving it once [h]e becomes a 

candidate,” rather than present all of the information at once at the time of its choosing. Id. But 

this assertion assumes that a political petition is only a political petition if it includes e-mail and 

phone information. That assumption is baseless. To state the obvious, petitions long pre-date 

modern modes of communication, and the advent of telecommunications technologies such as 

the cell phone and e-mail has not changed the essence of what makes something a petition. 

Petition, Oxford English Dictionary (3d ed. Dec. 2022), https://www.oed.com/view/Entry/

141858 (def. 1 “A supplication, entreaty, or prayer”; def. 2 “A written or formal request”; def. 

2.b “[A] formal written request or supplication, [especially] one signed by many people, 

appealing to an individual or group in authority . . . for some favour, right, or mercy, or in 

respect of a particular cause”); Petition, Merriam-Webster, https://www.merriamwebster.com/dictionary/petition (last visited Apr. 10, 2023) (def. 1.a “a formal written request 

made to an authority or organized body (such as a court)”; def. 1.b “a written request or call for 

change signed by many people in support of a shared cause or concern”). 

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proposition is that if a party made no such showing before the agency—and the precedent is not 

so obviously on point that one would have expected the agency to consider the precedent on its 

own accord—the agency is not obligated to identify and to discuss it or every other relevant prior 

decision. This is a variation of the more general rule that “parties seeking judicial review of 

agency action [must] raise their issues before the agency during the administrative process in 

order to preserve those issues for judicial review.” Advocs. for Highway and Auto Safety v. Fed. 

Motor Carrier Safety Admin., 429 F.3d 1136, 1148 (D.C. Cir. 2005). 

In any event, the fact pattern addressed in ReCellular has little bearing on RFR’s 

proposed course of action. In ReCellular, the FEC approved a plan under which ReCellular, a 

company that purchased used cell phones from individuals, would offer its customers the option 

of having the proceeds from the phones they sold to the company sent to political candidates and 

committees rather than remitted to them. ReCellular, FEC Advisory Op. 2010-21, supra, at 1–2. 

As part of each such transaction, ReCellular proposed to send e-mails to both the customer and 

to the recipient political committee confirming the contribution. Id. at 3. The e-mail to the 

political committee would also include the contact information of the contributor, including his 

or her e-mail address. Id. at 5. So ReCellular, unlike the other advisory opinions discussed 

above, approved the provision of contributor e-mail addresses to candidates. ReCellular, 

however, differs from the FEC’s Ready for Ron opinion in two significant respects. First, the 

FEC held that ReCellular was required to charge either the recipients of contributions or the 

contributors themselves “for the cost of the notification e[-]mails.” Id. at 7. As the agency 

explained, “[u]nder ReCellular’s proposal, the cost of the notification e-mails would be the only 

cost borne by ReCellular,” and it was—as the FEC understood the proposal—the only “service” 

or “[]thing of value” that ReCellular proposed to give to the candidates. Id. (internal quotation 

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marks omitted). As such, ReCellular was not permitted to bear that cost without becoming a 

contributor itself. Id. Here, in contrast, the FEC correctly concluded, based on years of 

precedent, that the contact list that RFR proposes to provide to Governor DeSantis is itself a 

“thing of value” and thus an in-kind contribution, and RFR’s proposal does not contemplate RFR 

charging Governor DeSantis for providing it to him. 

Second, and relatedly, the FEC required ReCellular to provide the contributor 

information to recipients on a contribution-by-contribution basis, “within ten days of confirming 

that the consumer’s phone was worth the quoted price.” Id. at 8 (internal quotation marks 

omitted). So, although ReCellular was permitted to provide candidates the component pieces of 

a contact list, it was not permitted to provide candidates with a mailing list or its functional 

equivalent. That differs in material respects from what RFR proposes to give Governor 

DeSantis. As the FEC interpreted the statute—correctly, in the Court’s view—the “thing of 

value” that RFR aims to provide is the compilation of names of supporters accompanied by their 

contact information: a contact list. And ReCellular says nothing about whether a contact list is a 

thing of value subject to FECA’s contribution limits. 

The other advisory opinion that the FEC references in its supplemental brief, Democracy 

Engine, FEC Advisory Op. 2022-03 (June 27, 2022), https://www.fec.gov/files/legal/aos/2022-

03/2022-03.pdf, is even less on point. In that case, a conduit contributor proposed to collect the 

e-mail addresses of contributors but stated only that, at the time it remitted contributions to their 

ultimate recipients, it “would provide the recipient[s] . . . with the information necessary to 

properly report the contribution to the Commission.” Id. at 3. Only names and mailing 

addresses (and in some cases employer names) are “necessary to properly report” contributions 

to the FEC. 11 C.F.R. §§ 110.6(c)(1)(iv), 102.8(a)–(b). So, Democracy Engine endorsed only 

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the type of information sharing that the FEC approved in its ActBlue opinions: that which is 

necessary to comply with regulatory requirements, and nothing more. For the reasons explained 

above, providing a candidate with information needed to comply with FECA’s reporting 

requirements and contribution limits simply is not analogous to what RFR proposes to do.

The Court, accordingly, concludes that the FEC reasonably decided that RFR 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. 

C.

It follows from the foregoing that RFR may not provide its contact list to Governor 

DeSantis free of charge—at any time. First and most obviously, if Governor DeSantis becomes 

a candidate for president, RFR may not give him the contact list for free. This is because: (1) the 

contact list constitutes a contribution under FECA; (2) that contribution would be from RFR, not 

the signatories of RFR’s petition; (3) the market value of the contact list is greater than FECA 

permits; and (4) the contact list has been funded in part with soft money. For the same reasons, 

RFR may not provide the contact list to Governor DeSantis if he is testing the waters (setting 

aside for the moment RFR’s challenge to the testing-the-waters regulation). As explained above, 

although the FEC’s testing-the-waters regulation provides a limited exemption from FECA’s 

disclosure requirements, it still requires that transfers comply with the Act’s contribution limits. 

See 11 C.F.R § 100.72(a). 

The last question—and the one on which the FEC was unable to reach a majority 

decision—is whether RFR may provide the contact list to Governor DeSantis before he begins 

testing the waters (if, in fact, he has not already begun to do so). In the Court’s view, the 

premise of this question is confused, because FECA contemplates no scenario in which an 

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individual may accept contributions in excess of $5,000 (which RFR’s contact list is) without 

either becoming a candidate or, under FEC regulations, testing the waters. The answer to this 

question is thus no different from the answer to the preceding questions: RFR may not provide 

its contact list to Governor DeSantis. The Court is unpersuaded by RFR’s arguments to the 

contrary.

First a word on the standard of review. What standard the Court should apply in 

reviewing the FEC’s failure to issue an advisory opinion for want of a majority is a difficult 

question. One possibility is that the Court should review a non-decision in the same way it 

reviews a decision on the merits: under the APA and with appropriate deference. See Nat’l Rifle 

Ass’n of Am., 254 F.3d at 184–86. But the APA’s arbitrary and capricious or contrary to law 

standard, 5 U.S.C. § 706(2)(A), and interpretive deference both seem an ill fit where, as here, the 

agency has reached no decision and has provided no reasoning to evaluate or interpretation to 

which to defer. Just as a court “cannot uphold silence,” it cannot defer to it. Cleveland Constr. 

Co. v. NLRB, 44 F.3d 1010, 1016 (D.C. Cir. 1995). On the opposite end of the spectrum, one 

might by analogy apply the standard used to evaluate agency action unlawfully withheld. 5 

U.S.C. § 706(1). After all, RFR contends that the FEC should have issued an advisory opinion 

approving RFR’s proposed actions but declined to act. But this standard too is an ill fit: RFR has 

not actually brought a § 706(1) claim, and, when the FEC issues decisions contrary to a 

requester’s position, courts do not apply the § 706(1) standard, even though the agency has also 

in some sense “withheld” the relief the requester sought. The Court also sees no reason why a 

more demanding standard of review should apply when the agency deadlocks than when it 

rejects the requester’s position on the merits. 

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Given the absence of agency reasoning to review and mindful of the oddity of applying 

§ 706(1) here, the Court concludes that the best course is to review de novo the legal question on 

which the FEC failed to issue an opinion. In so doing, however, the Court must still defer, as 

appropriate, to other agency determinations and pronouncements—relevant regulations, prior 

advisory opinions, and the like. Based on its de novo review, the Court concludes that, if 

Governor DeSantis were to accept RFR’s contact list, he would become a candidate for federal 

office or would at least be testing the waters.10 Either way, providing the contact list to 

Governor DeSantis for free would constitute an excessive and thus unlawful contribution. 

One might reasonably argue that anyone who accepts a contact list like RFR’s—an item 

that meets the statutory definition of a contribution with a value over $5,000—necessarily 

becomes a candidate in all relevant respects. That is, after all, what FECA says: a “candidate” is 

one who “seeks nomination for election, or election, to Federal office,” and an individual “shall 

be deemed to seek nomination for election, or election . . . if such individual has received 

contributions aggregating in excess of $5,000.” 52 U.S.C. § 30101(2)(A). Under the statute, 

then, the default is that acceptance of a contribution greater than $5,000 equals a candidacy. The 

only possibly applicable carve-out from FECA’s plain language is the testing-the-waters 

exception. And this exception might apply if Governor DeSantis accepts the contact list as part 

of an effort to “determin[e] whether [he] should become a candidate.” 11 C.F.R. § 100.72(a). In 

10 Of course, if RFR offered the petition to Governor DeSantis and he chose not to accept it, he 

would not thereby be testing the waters or become a candidate. But the only sensible way to 

evaluate RFR’s request is to assume that Governor DeSantis would accept what is offered. To 

hold otherwise would deprive RFR of any possible access to the safe harbor, since RFR does not 

know (and has no reason to know) whether Governor DeSantis would accept the contact list, and 

thus RFR would send it to him at its peril. And it would deprive Governor DeSantis of the 

ability to test the waters without the fanfare of a public campaign to require RFR to obtain a 

commitment from him of his intentions before requesting an advisory opinion or before seeking 

review in this Court.

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analogous circumstances, the FEC has concluded, for example, that the “[r]ental and purchase of 

office equipment for the purpose of compiling the names and addresses of individuals who 

indicate an interest in organizing a national campaign” was a permissible testing-the-waters 

activity that would not make the recipient a candidate for all purposes. See Askew, FEC 

Advisory Op. 1981-32, at 2, 4 (Oct. 2, 1981), https://www.fec.gov/files/legal/aos/1981-32/1981-

32.pdf. But whether accepting the contact list would make Governor DeSantis a candidate for all 

purposes or whether he would fall within the limited testing-the-waters “exemption,” 11 C.F.R. 

§ 100.72(a), the result is the same: FECA’s contribution limits apply, and the value of the contact 

list exceeds those limits. There is therefore no scenario in which Governor DeSantis could 

accept the contact list without triggering FECA’s limitations.

RFR’s contrary position stems from a misunderstanding of the statute. RFR posits that 

there exists a sequential continuum of campaign phases: a pre-testing the waters period, in which 

someone can accept contributions from any source and without limitation; a testing the waters 

phase, in which someone can accept contributions subject to most of FECA’s restrictions but 

exempt from its disclosure requirements; and a candidacy phase, in which FECA’s full 

complement of restrictions attach. See Dkt. 8-1 at 52–54. But that view of campaign finance 

law finds no support in FECA, which sets forth a clear rule: a person is a candidate if he or she 

accepts more than $5,000 in contributions. 52 U.S.C. § 30101(2)(A). The only exception to this 

rule is found in the testing-the-waters regulation. 11 C.F.R. § 100.72(a). There is no third, 

regulation-free option for those who accept more than $5,000 in contributions. RFR’s third 

option is not only atextual but also would open a gaping hole in the campaign finance laws and 

would render the balance struck in the testing-the-waters regulation meaningless. A 

“prospective” candidate would be free to accept contributions of any amount from any source by 

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the simple artifice of waiting to declare his or her candidacy or to invoke the testing-the-waters 

exception. Avoiding that type of wholesale circumvention of the law is precisely why the FEC 

amended the testing-the-waters regulation in 1985 to subject “all funds received for ‘testing the 

waters’ . . . to the Act’s limitations and prohibitions.” Payments Received for Testing the Waters 

Activities, 50 Fed. Reg. at 9994.

RFR protests that the mere acceptance of its contact list is insufficient to constitute 

testing the waters, Dkt. 8-1 at 53–54; Dkt. 17 at 12–13, and, it would seem to follow, insufficient 

to make someone a candidate. Rather, RFR insists, testing the waters (and presumably a 

candidacy) requires “affirmative act[s].” Dkt. 8-1 at 54. But that contention is at odds with

FECA, which repeatedly attaches legal consequences to the receipt of certain things. For 

instance, the Act “deem[s]” anyone who receives “contributions aggregating in excess of 

$5,000” to be a “candidate,” 52 U.S.C. § 30101(2)(A), makes it unlawful for any “candidate” to 

“receive . . . funds for any Federal election activity, unless the funds are subject to the 

limitations, prohibitions, and reporting requirements of th[e] Act,” id. § 30125(e)(1)(A), and 

prohibits the “accept[ance] [] or recei[pt]” of a “contribution or donation” from a foreign 

national, id. § 30121(a)(2). RFR’s “affirmative acts” test appears nowhere in the statutory text or 

governing regulations and, if adopted, would open the floodgates to circumvention of the 

statutory requirements. 

The Court thus has no difficulty concluding that Governor DeSantis would become a 

candidate or at least begin testing the waters were he to accept RFR’s contact list. 

D.

RFR also attacks the testing-the-waters regulation as an impermissible interpretation of 

FECA and as inconsistent with the law in this circuit. This is a puzzling argument coming from 

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RFR. As explained above, the testing-the-waters regulation is a limited exemption from FECA’s 

otherwise applicable disclosure requirements. So, it is a mystery how RFR would benefit from a 

decision setting that exemption aside; if anything, it would mean that Governor DeSantis would 

qualify as a “candidate” for all statutory purposes were he to accept RFR’s proposed in-kind 

contribution. 

But, in any event, RFR’s challenges to the testing-the-waters regulation are unavailing. 

RFR relies in large part on the D.C. Circuit’s decision in Federal Election Commission v. 

Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), which held that only 

organizations supporting or opposing a “candidate” are subject to regulation as political 

committees. Id. at 393–94. In Machinists, the FEC sought to exercise jurisdiction over certain 

“draft-Kennedy” groups—organizations formed to encourage Senator Edward Kennedy to run 

for president—after the Machinists Non-Partisan Political League allegedly made contributions 

to these groups in excess of FECA’s contribution limits. Id. at 383–84. The D.C. Circuit held 

that the FEC could not permissibly do so. Id. at 396. As Machinists explains, in Buckley the 

Supreme Court interpreted FECA’s definition of political committee to encompass only 

“organizations that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Id. at 391 (emphasis added) (quoting Buckley, 424 U.S. 

at 79). And, Machinists points out, a committee seeking to draft a “candidate” for office 

necessarily is not “promoting a ‘candidate’ for office,” because the individual it hopes to draft is 

not yet a candidate. Id. at 392. For these reasons, Machinists concludes that draft groups are not 

political committees and fall outside of the scope of the Act. Id. at 396. 

RFR reads Machinists to stand for the sweeping proposition that “FECA does not 

regulate efforts to ‘draft’ candidates for federal office,” Dkt. 8-1 at 38, and argues that the 

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decision “establishes RFR’s right to provide its signed petition to ‘draft’ Governor DeSantis at 

any[] time before he becomes a candidate,” id. at 40. But in pressing this point, RFR yet again 

ignores a crucial fact: if Governor DeSantis accepts RFR’s contact list—an in-kind contribution 

worth more than $5,000—he will become a candidate for federal office, 52 U.S.C. 

§ 30101(2)(A), unless he is deemed to be testing the waters, 11 C.F.R. § 100.72(a). As the Court 

has explained, the testing-the-waters regulation does not regulate those who do not qualify as 

candidates; it exempts those who would otherwise be candidates from certain disclosure 

requirements. Id. 

Machinists casts no doubt on this straightforward reading of FECA. The D.C. Circuit’s 

decision dealt only with FECA’s definition of “political committee” and expressed no view 

regarding the entirely distinct question of whether “an individual” who “receive[s]” an in-kind 

contribution worth more than $5,000 is properly “deemed” to be a “candidate” for purposes of 

the Act. 52 U.S.C. § 30101(2)(A). Machinists speaks to the relationship between “political 

committees” and draft groups, the arguable vagueness of the statutory definition of “political 

committee,” the way in which Buckley and other prior cases had interpreted “political 

committee,” the constitutional doubts that a broad construction of “political committee” might 

engender, and the history of legislative action and inaction with respect to the treatment of draft 

groups as political committees. Machinists, 655 F.2d at 391–96. But it does not speak to the 

definition of “candidate.” Notably, although Machinists declined to adopt the most obvious (and 

expansive) reading of FECA’s definition of “political committee,” it merely quoted the definition 

of “candidate” without any suggestion that it should be similarly narrowed. Id. at 392 n.24. 

Applying Machinists in the way RFR proposes would also make FECA circular: the statute

would make the receipt of “contribution[s]” a trigger for becoming a “candidate,” but it would 

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only treat the transfer of a thing of value as a “contribution” if it were provided to someone who 

was already a “candidate.” 

RFR’s resort to the legislative history of FECA is no more availing. As an initial matter, 

reliance on legislative history is unnecessary where statutory text is clear. See Milner v. Dep’t of 

Navy, 562 U.S. 562, 572 (2011). And, although the statutory definition of “contribution” is 

arguably ambiguous, it is not ambiguous as relevant here. FECA defines “contribution” as “ any 

gift . . . of money or anything of value made by any person for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). Buckley recognized that the phrase 

“for the purpose of influencing any election for federal office” admits of some ambiguity, 424 

U.S. at 23 n.4, and the FEC asserts that it is this ambiguity that creates space for the testing-thewaters regulation, Dkt. 16 at 42–43. The idea seems to be that if an individual spends money 

testing the waters and ultimately decides not further to pursue a candidacy, no harm and no foul. 

No damage has been done to the anti-corruption interests FECA serves by allowing that 

individual to proceed anonymously. And, because the funds expended on the abortive candidacy 

had at most a negligible “influenc[e] [on] any election for Federal office,” the FEC deems them 

as not having been expended “for th[at] purpose.” 52 U.S.C. § 30101(8)(A)(i).

11

 But this

ambiguity has no bearing on the situation presented in this case. RFR does not dispute that it 

wants to provide its petition and contact list to Governor DeSantis “for the purpose of 

influencing an[] election for Federal office,” a sensible concession given the substance of the 

petition. Dkt. 8-3 at 1. The point it presses is more fundamental: it contends that FECA permits 

individuals to receive items provided “for the purpose of influencing any election for Federal 

11 If the individual does decide to run, the anti-corruption interest is still fully vindicated, because 

funds used for testing the waters must retroactively be reported. 11 C.F.R. § 100.72(a). 

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office” without restriction, if they have not yet declared a candidacy. As explained, FECA 

unambiguously forbids such a maneuver through the $5,000 trigger in its definition of 

“candidate.” See 52 U.S.C. § 30101(2)(A). Thus because the statute is unambiguous in relevant 

respects, there is no reason to turn to legislative history, which is a tool for resolving ambiguity, 

not creating it. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1749 (2020).

But even if the Court were to consider it, this legislative history provides no meaningful 

support for RFR’s contention. It appears to pertain 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. As Machinists recognized, the FEC had for years recommended 

without success that contributions to draft committees be limited. Machinists, 655 F.2d at 395–

96 (citing FEC annual report recommendations). Machinists then held definitively that such 

contributions were beyond the scope of the Act. Id. at 391–96. Some of the legislative history 

RFR cites expressly involves post-Machinists efforts to abrogate that decision and to bring draft 

groups within FECA. See FEC, Legislative Recommendations—1987, at 2–3 (1987), 

https://www.fec.gov/resources/cms-content/documents/legrec1987.pdf. 

The remainder of the legislative history that RFR invokes involves failed attempts to 

amend FECA’s definition of “contribution” in the following manner:

(A)The term “contribution” includes—

(i) any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any election for 

Federal office; or

(ii) the payment by any person of compensation for the personal services of 

another person which are rendered to a political committee without charge 

for any purpose.; and

(iii) any gift, subscription, loan, advance, or deposit of money or

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 anything of value made by any person for the purpose of drafting a clearly

 identified individual as a candidate for Federal office or encouraging a

 clearly identified individual to become a candidate for Federal office.

See, e.g., H.R. 708, 103rd Cong., § 8(a) (1993); S.7, 103rd Cong., § 422 (1993); H.R. 4934, 

102nd Cong., § 504(a) (1992); S.6, 102nd Cong., § 622(a) (1991); S.143, 102nd Cong., § 422(a) 

(1991); S.2595, 101st Cong., § 422(a) (1990); see also Dkt. 8-1 at 43–44 (citing similar proposed 

amendments). These bills also proposed adding a clarification that a contribution made under 

the newly proposed sub-section shall be treated as a “contribution” to the recipient, “whether or 

not the [recipient] becomes a candidate.” See, e.g., H.R. 708, § 8(b); S.2595, § 422(b); S.6, 

§ 622(b).

RFR urges the Court to infer that these proposed amendments reflect a congressional 

understanding that FECA’s contribution limits do not currently apply to donations made for the 

purpose of influencing an individual to run for office. But it is far from clear that the inference 

RFR would have the Court draw from the legislative history is the right one. These proposed 

amendments could also be understood as further efforts to reverse Machinists and to regulate 

contributions to draft committees in the same way as contributions to “political committees.” Or 

perhaps these proposals failed because some legislators understood FECA in the way RFR does,

but others disagreed and thought an amendment was unnecessary because the Act already 

covered the sort of transfers at issue. Or perhaps some legislators understood the Act in the way 

the Court does yet sought to add additional clarity to “in Macbeth’s words[,] . . . make 

assurances double sure.” Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1243 (D.C. Cir. 2020) 

(quoting Fla. Health Scis. Ctr., Inc. v. Sec’y of Health & Human Servs., 830 F.3d 515, 520 (D.C. 

Cir. 2016)). Or “[m]aybe still others, occupied by other concerns, didn’t consider the issue at 

all.” Bostock, 140 S. Ct. at 1747. There is no authoritative explanation for the proposed 

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amendments and why they failed to become law, so it is impossible to know. The only thing the 

Court can conclude from this uncertainty is that the Supreme Court was correct to caution that 

“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.” Bostock, 140 S. Ct. at 1747 (quoting Pension Benefit Guar. Corp. v. LTV 

Corp., 496 U.S. 633, 650 (1990)). 

Beyond Machinists and legislative history, RFR makes one further argument relating to 

the testing-the-waters regulation: it points out that the regulation says that “[f]unds received 

solely for the purpose of determining whether an individual should become a candidate are not 

contributions,” yet it goes on to state that “[o]nly funds permissible under the Act may be used 

for such activities.” 11 C.F.R. § 100.72(a); Dkt. 8-1 at 44–45. How, RFR asks, can funds that 

are not a “contribution” be limited by the Act’s other requirements, which pertain only to 

contributions? RFR may be right that this is clumsy drafting. But that does not change the result 

here. RFR can hardly claim that the testing-the-waters regulation is invalid and then turn around 

and say that, because of the testing-the-waters regulation’s exemption from the definition of 

contribution, testing the waters funds are not subject to FECA’s contribution limits. Either the 

concept of testing the waters is permissible under the statute or it is not. Which leads to a more 

basic point: if the Court were to set aside the testing-the-waters regulation, RFR would be no 

closer to the relief that it seeks. If there were no testing-the-waters exemption, that would mean 

that Governor DeSantis would automatically become a candidate if he accepted the contact list, 

and the contact list would still constitute an improper contribution under the statute. 52 U.S.C. 

§ 30116(a)(1)(A). Thus, to the extent that there are problems with how the regulation is cast, 

that does not help RFR.

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RFR’s final argument that the testing-the-waters regulation does not cover in-kind 

contributions because it speaks only of “[f]unds” suffers from the same defect. 11 C.F.R. 

§ 100.72(a). If RFR 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. So, regardless of whether the regulation covers inkind contributions, RFR cannot provide its contact list to Governor DeSantis. 

E.

The final question is whether RFR is entitled to a preliminary injunction on its First 

Amendment challenges to the advisory opinion and FECA’s contribution limits. Once the nature 

of its proposed conduct is understood, RFR’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.12 Because this argument is unlikely to succeed on the merits and RFR’s 

arguments with respect to the other preliminary injunction factors all rise and fall with the merits, 

the Court will deny RFR’s request for a preliminary injunction. Green, 54 F.4th at 747.

1.

To begin, the “closely drawn” standard of First Amendment scrutiny applies to RFR’s asapplied challenge to FECA’s contribution limits and the application of those limits in the 

advisory opinion. McCutcheon, 572 U.S. at 197 (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 

12 Notwithstanding its challenge to the testing-the-waters regulation as a statutory matter, the 

Court does not understand RFR to bring a First Amendment challenge to FECA’s definition of 

“candidate” as one who receives more than $5,000 in contributions. Rather, it focuses its fire on 

whether the petition can be treated as a “contribution.” 

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drawn to avoid unnecessary abridgment of associational freedoms.’” Id. (alteration in original) 

(emphasis added) (quoting Buckley, 424 U.S. at 25). The closely drawn standard is less 

demanding than strict scrutiny but is nevertheless a “rigorous standard of review. Id. (quoting 

Buckley, 424 U.S. at 29). Courts have applied the “closely drawn” standard to many different 

forms of contribution limits, recognizing that “[t]o protect contributors’ heterogeneous First 

Amendment interests in making political donations, . . . the [Supreme] Court has announced a 

single unified test that applies an intermediate level of scrutiny to contribution limits.” 

Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 533, 541 (D.C. Cir. 2019).13

RFR offers three arguments for why the Court should nevertheless apply strict scrutiny 

here, none of which is convincing.

First, RFR contends that the Court should apply strict scrutiny because RFR’s proposed 

contribution “is, itself, political speech,” namely, a “signed political petition.” Dkt. 8-1 at 19. 

The Court does not agree, because in fact the FEC seeks to apply FECA’s contribution limits 

only to a contact list, not a petition. Dkt. 16 at 29; Dkt. 22 at 37, 39–40. “[T]he level of [First 

Amendment] scrutiny is based on the importance of the ‘political activity at issue’ to effective 

speech or political association,” Beaumont, 539 U.S. at 161 (quoting FEC v. Mass Citizens for 

Life, Inc., 479 U.S. 238, 259 (1986)), and the contact list—as distinct from the petition—only 

indirectly or marginally implicates core First Amendment values. Although like all political 

13 See, e.g., McCutcheon, 572 U.S. at 199–227 (aggregate contribution limits); Randall v. Sorrell, 

548 U.S. 230, 246–63 (2006) (plurality opinion) (state contribution limits); McConnell, 540 U.S. 

at 231–32 (2003) (ban on contributions by minors); FEC v. Beaumont, 539 U.S. 146, 161–63 

(2003) (ban on corporate contributions); FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. 431, 456–65 (2001) (limits on party expenditures that are coordinated with candidates);

SpeechNow.org v. FEC, 599 F.3d 686, 692 (D.C. Cir. 2010) (en banc) (contribution limits as 

applied to unincorporated nonprofit); Wagner v. FEC, 793 F.3d 1, 5–8 (D.C. Cir. 2015) (en banc) 

(prohibition on government contractor contributions).

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contributions, monetary and in-kind, there is some expressive element to providing a candidate 

(or potential candidate) with a contact list, a restriction on the provision of e-mail addresses and 

phone numbers “entails only a marginal restriction upon the contributor’s ability to engage in 

free communication.” Buckley, 424 U.S. at 20. RFR is still free to provide Governor DeSantis 

with its petition, and that petition would still demonstrate the depth of support for Governor 

DeSantis through its list of names. The challenged limitation thus “involves little direct restraint 

on . . . political communication” and does not “in any way infringe” on RFR’s ability to “discuss 

candidates and issues” or the ability of the petition’s signatories to do the same. Id. at 21.

Second, RFR maintains that its contact list has independent expressive value so 

significant as to justify the application of strict scrutiny. Dkt. 25 at 26–29. But the cases RFR

cites for this proposition deal with restrictions on the publication of contact information, not the 

provision of an in-kind campaign contribution.14 That distinction matters. As the FEC 

acknowledged at oral argument, “it would alleviate a lot of [the FEC’s] concerns if the list that 

Ready for Ron wants to provide were just published online, and Governor DeSantis, along with 

other people, were able to look at that list and contact who they wanted to.” Dkt. 22 at 38–39. 

In the same vein, RFR argues that a petition without a contact list would be less informative and 

thus less useful to Governor DeSantis because he could not employ the contact information to 

verify and contact signatories. Dkt. 25 at 26–27, 28–29. True, but as explained above, even if 

Governor DeSantis wanted to use the contact information for this purpose, the list would still 

constitute a thing of value, and the same rationale that supports other contribution limits would 

14 See, e.g., Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247, 1249 (N.D. Fla. 2010); 

Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1139, 1150 (W.D. Wash. 2003); Ostergren v. 

Cuccinelli, 615 F.3d 263, 271 n.8, 272 (4th Cir. 2010); Publius v. Boyer-Vine, 237 F. Supp. 3d 

997, 1004 (E.D. Cal. 2017); Org. for a Better Austin v. Keefe, 402 U.S. 415, 417, 419–20 (1971).

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apply here with equal force. RFR next insists that by limiting RFR’s ability to share its contact

list with Governor DeSantis, the FEC is requiring the signatories of RFR’s petition to be 

“anonym[ous],” which would “alter or dilute” the petition’s message. Dkt. 8-1 at 21. This too is 

incorrect. The FEC does not object to the provision of the petition inclusive of the names of its 

signatories. Dkt. 16 at 29; Dkt. 22 at 37, 39–40. Despite the ubiquity of electronic 

communication, it can hardly be said that someone is “anonymous” if their name does not 

include the most convenient way to reach them. Nor is the Court persuaded that the message of 

RFR’s petition would be altered or diluted if it could not provide its contact list along with its 

petition. RFR’s expression of support does not turn on ten digits of a phone number or an e-mail 

address, and none of the cases RFR cites are to the contrary. 

Third, RFR argues that strict scrutiny should apply because the application of FECA to 

its contact list is a content-based restriction. It notes that the FEC only seeks to regulate its 

provision of the contact list to Governor DeSantis because RFR wants to provide with him the 

list “for the purpose of influencing an[] election for Federal office.” Dkt. 25 at 30 (quoting 52 

U.S.C. § 30101(8)(A)(i)). This, RFR contends, is a content-based regulation subject to strict 

scrutiny. Id. at 30–32. But that argument proves far too much. All 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. See supra, at 50 n.13. RFR offers no persuasive 

reason why the same principles should not apply here. 

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2.

Under the “closely drawn” standard, the Court must first “determine whether the 

government has advanced a sufficiently important interest in support of” the application of 

FECA’s contribution limits to RFR’s mailing list. Wagner v. FEC, 793 F.3d 1, 8 (D.C. Cir. 

2015) (en banc) (internal quotation marks omitted). The FEC asserts an interest in “preventing 

quid pro quo corruption [and] its appearance.” Dkt. 16 at 26 (quoting McCutcheon, 572 U.S. at 

199). It is, of course, well-established that “‘the Government’s interest in preventing quid pro 

quo corruption and its appearance is sufficiently important’ to justify the regulation of campaign 

contributions.” Wagner, 793 F.3d at 8 (cleaned up) (quoting McCutcheon, 572 U.S. at 199). 

Indeed, the Supreme Court has gone further, calling the interest “compelling” and sufficient to

“satisfy even strict scrutiny.” McCutcheon, 572 U.S. at 199 (internal quotation marks omitted). 

This is all for good reason: quid pro quo corruption subverts “the integrity of our system of 

representative democracy,” and “the appearance of corruption” undermines “confidence in the 

system of representative Government.” Buckley, 424 U.S. at 26–27 (internal quotation marks 

omitted). 

3.

The Court next concludes that the FEC is likely to demonstrate on the merits that 

applying FECA’s contribution limits to RFR’s proposed activity furthers the government’s

interest in preventing quid pro quo corruption and its appearance. This follows from three 

settled propositions. 

First, as noted above, contribution limits in general further the interest in combatting quid 

pro quo corruption and its appearance. Buckley, 424 U.S. at 25–30. As such, “Congress was 

surely entitled to conclude . . . that contribution ceilings were a necessary legislative concomitant 

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[to disclosure requirements] to deal with the reality or appearance of corruption inherent in a 

system permitting unlimited financial contributions.” Id. at 28; id. (“The Act’s . . . contribution 

limitation focuses precisely on the problem of large campaign contributions—the narrow aspect 

of political association where the actuality and potential for corruption have been identified . . . 

.”); see also McConnell, 540 U.S. at 136 (“Our treatment of contribution restrictions . . . reflects 

the importance of the interests that underlie contribution limits—interests in preventing ‘both the 

actual corruption threatened by large financial contributions and the eroding of public confidence 

in the electoral process through the appearance of corruption.’” (quoting FEC v. Nat’l Right to 

Work Comm., 459 U.S. 197, 208 (1982))). 

Second, “the provision of in-kind assistance” can “provide[] material financial assistance 

to a candidate” such that “the ultimate effect is the same as if the person had contributed the 

dollar amount [of the in-kind assistance] to the candidate.” Buckley, 424 U.S. at 36–37. Thus 

contribution limits further the government’s anti-corruption interest even when applied to in-kind

assistance. 

Finally, as discussed above, a contact list is a form of in-kind contribution that is 

typically of significant value to a candidate. See Christian Coalition, 552 F. Supp. 2d at 96; Int’l 

Funding Institute, 969 F.2d at 1116. Indeed, in upholding FECA’s contribution limits Buckley

noted that, among other things, “sophisticated mass-mailing . . . operations” were one of the 

reasons that “raising large sums of money” was “an ever more essential ingredient of an effective 

candidacy.” 424 U.S. at 26. And if limitations on providing money to fund mass mailings 

further Congress’s anti-corruption interest, surely providing mailing lists directly does so as well. 

RFR questions this rationale, arguing that the risk of corruption in this context is minimal 

because compiling a contact list for a candidate would be a “terrible way of attempting to make 

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an excessive in-kind contribution” and thus an ineffective instrument for corruption. Dkt. 25 at 

32–33. It notes that it has spent over $1 million to create its contact list, but, based on its own

estimates as of March 14, 2023, the list is worth approximately $11,250. Id. at 33. This, RFR

says, would be an “extraordinarily poor investment” if the goal was to funnel value to a 

candidate in return for improper favors once the candidate takes office. Id. It purports to find

support for this argument in McCutcheon, which invalidated aggregate contribution limits in part 

because the scenarios in which exceeding such limits would give rise to apparent or actual 

corruption were implausibly uneconomic for the would-be contributor. See 572 U.S. at 212–14. 

The Court rejects this argument for several reasons.

In the first place, whatever might be true of the market value of RFR’s contact list, it is

unlikely that the poor economic returns RFR describes are true of contact lists in general. There 

would be little market for selling contact lists if doing so was financial folly, and RFR’s own 

activities demonstrate that such a market exists. Dkt. 1 at 9 (Compl. ¶ 23) (noting that RFR has 

rented mailing lists for its own use); Dkt. 23-2 at 18 (stating that RFR has spent thousands of 

dollars renting a contact list). The caselaw also recognizes that campaigns spend enormous sums 

on such lists, not the comparative pittance that RFR contends that its list is worth. See, e.g., 

Christian Coalition, 552 F. Supp. 2d at 96; Int’l Funding Inst., 969 F.2d at 1116; cf. Buckley, 424 

U.S. at 26. In any event, even if, as RFR claims, it has engaged in “[r]idiculously [i]nefficient” 

spending, Dkt. 25 at 32, that does not undermine the justification for applying FECA’s 

contribution limits to contact lists in general, cf. Buckley, 424 U.S. at 29–30 (recognizing that 

“most large contributors do not seek improper influence over a candidate’s position or an 

officeholder’s action” but nevertheless upholding contribution limits).

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Nor does Congress’s anti-corruption interest turn on the savvy of the contributor. 

Assuming that RFR is correct about the market value of its contact list, the number of signatures 

it has amassed—one of the primary determinants of its value, Dkt. 17-1 at 4 (Llanes Decl. 

¶ 11)—is a function of RFR’s outreach strategy. It may have been possible using different 

methods to generate an asset of considerably greater or lesser value for the same cost that RFR 

has incurred. Similarly, the return on a political committee’s expenditures in creating a contact

list depends on the public’s reaction to the message promoted. There may be candidates for 

whom the same amount of outreach would have generated many more or many fewer signatures 

and thus a mailing list of greater or lesser value. It would make little sense—and it would raise 

far more serious constitutional difficulties—for the First Amendment analysis to vary with the 

popularity of a candidate or political message. Yet that is a consequence of RFR’s position. 

Putting contact lists aside, there are innumerable things of value that can be purchased or created 

for a candidate, some with more substantial returns than others. The Court is unpersuaded that 

the risk of apparent or actual quid pro quo corruption turns on the Court’s assessment of the 

economic wisdom of an investment. 

McCutcheon does not suggest otherwise. It considered whether aggregate contribution 

limits (limits on the total amount a donor may contribute to all candidates) served the 

government’s interest in preventing circumvention of base contribution limits (limits on the 

amount a donor may contribute to a single candidate—what RFR challenges here). 572 U.S. at 

210–15. It held that they did not, because base limits and other associated rules and regulations 

are sufficiently comprehensive that efforts to avoid base limits by funneling many individual 

contributions through different entities back to a single candidate are unlikely to be worth the 

candle, even absent aggregate contribution limitations. Id. at 213–14. McCutcheon’s argument 

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from impracticality was aimed at the possible circumvention of base limits, and its reasoning 

does not translate to the direct violation of those limits that RFR asks the Court to permit. Far 

from casting doubt on any application of base limits, McCutcheon reaffirmed that they are “the 

primary means of regulating campaign contributions” and the bulwark against corruption that 

made aggregate limits unnecessary. Id. at 209. 

4.

Finally, the Court holds that the FEC is likely to prevail on its contention that applying 

FECA’s contribution limits to RFR’s contact list is “closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Id. at 218 (quoting Buckley, 424 U.S. at 25). Under the 

“closely drawn” standard, the government need not demonstrate a perfect fit between its interest 

and its proposed means of addressing that interest but rather one that is “reasonable.” Id.

(quoting Bd. of Trs. of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989)). The “means” 

need not represent “the single best disposition,” but it must be “narrowly tailored to achieve the 

desired objective.” Id. (quoting Fox, 492 U.S. at 480). 

The FEC is likely to establish that treating RFR’s contact list as a contribution in excess 

of the contribution limits is a narrowly tailored means of preventing actual or apparent quid pro 

quo corruption. This limited restriction “leaves untouched” RFR’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 RFR 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 

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ability to express their support for Governor DeSantis and to join together with others in so 

doing. All it prevents is RFR from providing to Governor DeSantis free of charge a classic 

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

RFR offers only one argument in response: It contends that the limitation the FEC seeks 

to apply is fatally underinclusive because it leaves RFR so many other options. Dkt. 25 at 34. In 

particular, it notes that at oral argument the FEC suggested that it might be permissible for RFR 

to post its petition—contact information and all—on a public website, such that Governor 

DeSantis or anyone else could review it. Id. As RFR sees it, this argument “give[s] away the 

ballgame” because the purported risk of corruption is no less if it posts its petition and contact

list on the internet than if it provides it directly to Governor DeSantis. Id.

This argument fails for four reasons. First, a passing comment at oral argument does not 

suffice to bind the Commission to a theoretical course of action it has yet squarely to consider, 

nor does it undermine the validity of the Commission’s opinion on matters on which it has 

formally opined. Second, underinclusivity is problematic in the First Amendment context only

to the extent that it “raise[s] ‘doubts about whether the government is in fact pursuing the interest 

it invokes, rather than disfavoring a particular speaker or viewpoint,’” or “reveal[s] that a law 

does not actually advance a compelling interest.” Williams-Yulee v. Fl. Bar, 575 U.S. 433, 448–

49 (2015) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011)). RFR does not even 

suggest that the FEC’s true interest was to disfavor its speech, and its contention that one 

attorney’s comment proves that treating its contact list as an excessive contribution does not 

actually advance the government’s anticorruption interest is weak. For all the reasons already 

provided, applying FECA to contact lists does advance this interest, even if “imperfectly.” 

Wagner, 793 F.3d at 28. Third, and relatedly, the Court disagrees with RFR that there is no 

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relevant difference between posting a contact list on the internet and providing it to Governor 

DeSantis. Quid pro quo corruption is “a direct exchange of an official act for [a contribution].” 

McCutcheon, 572 U.S. at 192. If RFR does not “direct[ly] exchange” anything of value with 

Governor DeSantis by giving him a contact list, the risk of actual or apparent quid pro quo

corruption is diminished. At the very least, the appearance of corruption is less if RFR does not 

provide its contact list to Governor DeSantis directly. 

Finally, the line that RFR deems insignificant also resembles perhaps the most 

fundamental line in campaign finance law: the 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. The Court reasoned that “[t]he absence of prearrangement and 

coordination of an expenditure with the candidate or his agent not only undermines the value of 

the expenditure to the candidate, but also alleviates the danger that expenditures will be given as 

a quid pro quo for improper commitments from the candidate.” Id. at 47. The same logic 

supports the distinction the FEC has suggested that it might draw between a “prearrange[d] and 

coordinat[ed]” transfer of a contact list to Governor DeSantis and the making of the entire list 

available to the public. Id.

* * *

The Court “ha[s] little left to say because ‘[i]n First Amendment cases, the likelihood of 

success will often be the determinative factor in the preliminary injunction analysis.’” Green, 54 

F.4th at 747 (second alteration in original) (quoting Pursuing America’s Greatness, 831 F.3d at 

511). “That is especially true here,” because RFR’s arguments on the remaining preliminary 

injunction factors “rest entirely on [its] flawed claim” that the FEC’s advisory opinion and the 

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application of FECA’s contribution limits to its proposed course of action “imperils [its] First 

Amendment rights.” Id.

CONCLUSION

For these reasons, it is hereby ORDERED that RFR’s motion for a preliminary 

injunction, which the Court treats in part as one for summary judgment, Dkt. 8, is DENIED.

15

SO ORDERED.

 /s/ Randolph D. Moss

 RANDOLPH D. MOSS 

 United States District Judge 

Date: May 17, 2023

15 It is ORDERED that both RFR’s consent motion to strike declaration, Dkt. 18, and motion to 

file supplemental declaration, Dkt. 19, are GRANTED.

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