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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 1 of 39 

ORAL ARGUMENT HAS BEEN SCHEDULED FOR MARCH 18, 2024

No. 23-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

READY TO WIN,

Plaintiff-Appellant, 

v.

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the U.S. District Court

for the District of Columbia

No. 1:22-cv-3292, Hon. Randolph D. Moss

PLAINTIFF-APPELLANT’S REPLY BRIEF

Dan Backer, Esq. (D.C. Bar No. 996641)

CHALMERS, ADAMS, BACKER

& KAUFMAN LLC

441 N. Lee Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@ChalmersAdams.com 

Attorney for Plaintiff-Appellant

Ready to Win
USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 2 of 39 

TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES ................................................................................... iii 

SUMMARY OF ARGUMENT ................................................................................. 1 

ARGUMENT ............................................................................................................. 3 

I. THIS CASE IS JUSTICIABLE ....................................................................... 3 

A. RTW’s Claims Remain Live as Applied to Either the “PreTesting-the-Waters” or “Candidacy” Stage of Governor 

DeSantis’ 2024 Presidency Candidacy ................................................. 4 

1. Governor DeSantis Most Likely Remains a Candidate .............. 4 

2. Alternatively, Governor DeSantis Has Returned to PreTesting-the-Waters Status ........................................................... 6 

B. All of RTW’s Claims are Capable of Repetition, Yet Evading 

Review................................................................................................... 7 

II. THE FEC HAS FAILED TO ADDRESS THE GRAVAMEN OF 

RTW’S CONSTITUTIONAL ARGUMENTS ............................................... 7 

A. The District Court Should Have Considered Signatories’ 

Contact Information in Context, as Part of RTW’s Political 

Petition, Rather Than in Isolation ......................................................... 8 

B. Considered Independently, Signatories’ Contact Information 

is Entitled to Full First Amendment Protection .................................. 10 

C. The Unique Expressive and Associational Aspects of RTW’s 

Petition Entitle It to Greater Constitutional Protection Than 

Mere Political Contributions ............................................................... 12 

D. The FEC’s Conception of the Constitutional Right to Petition

is Chillingly Narrow ............................................................................ 15 

E. The FEC Effectively Admits Content-Based Discrimination 

Is Necessary to Decide When FECA’s Contribution Limits 

Apply to Petitions to Non-Candidates ................................................. 17 

III. RTW’S SIGNED POLITICAL PETITION IS NOT A 

“CONTRIBUTION” UNDER FECA ............................................................ 18 

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IV. AT MOST, RTW IS A CONDUIT THROUGH WHICH 

PETITION SIGNATORIES SOUGHT TO PROVIDE THEIR

CONTACT INFORMATION TO GOVERNOR DESANTIS .....................21 

V. FECA DOES NOT PROHIBIT PROVIDING SIGNED 

POLITICAL PETITIONS TO INDIVIDUALS WHO ARE NOT 

YET CANDIDATES..................................................................................... 28 

VI. THE FEC IS NOT ENTITLED TO CONTINUE LITIGATING 

THIS CASE IF RTW’S CLAIMS FAIL AS A MATTER OF LAW...........29 

CONCLUSION........................................................................................................ 31 

ii 
USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 4 of 39 

TABLE OF AUTHORITIES 

Page(s) 

Cases:

44 Liquormart v. Rhode Island, 

517 U.S. 484 (1996) ............................................................................................. 10 

Ark. Dairy Coop. Ass’n v. USDA, 

573 F.3d 815 (D.C. Cir. 2009) .............................................................................. 30 

Austin v. Reagan Nat’l Adver. of Austin, LLC, 

142 S. Ct. 1464 (2022) ......................................................................................... 17 

Ayestas v. Davis, 

584 U.S. 28 (2018) ............................................................................................... 18 

Bigelow v. Virginia, 

421 U.S. 809 (1975) ...........................................................................................8, 9 

Branch v. FCC, 

824 F.2d 37 (D.C. Cir. 1987) .................................................................................. 7 

Brown v. Glines, 

444 U.S. 348 (1980) ............................................................................................. 12 

Buckley v. Valeo, 

424 U.S. 1 (1976) ...................................................................................... 1, 13, 16 

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ................................................................................ 20 

Cincinnati v. Discovery Network, 

507 U.S. 410 (1993) ............................................................................................... 9 

Citizens Against Rent Control v. Berkeley, 

454 U.S. 290 (1981) ............................................................................................. 12 

Democracy Engine, 

A.O. 2022-03 ................................................................................................. 21, 27 

FEC v. Akins, 

524 U.S. 11 (1998) ............................................................................................... 15 

FEC v. Beaumont, 

539 U.S. 146 (2003) ............................................................................................. 13 

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 5 of 39 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) ............................................................. 3, 20, 21, 29 

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985) ............................................................................................. 22 

Holmes v. FEC, 

823 F.3d 69 (D.C. Cir. 2016) .................................................................................. 7 

Hon. Cecil Heftel, 

A.O. 1977-51 (Nov. 16, 1977) .............................................................................. 19 

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 

515 U.S. 557 (1995) ....................................................................................... 11, 14 

Jamison v. Texas, 

318 U.S. 413 (1943) ............................................................................................... 9 

LaRouche v. Fowler, 

152 F.3d 974 (D.C. Cir. 1998) ............................................................................1, 7 

Leocal v. Ashcroft, 

543 U.S. 1 (2004) ................................................................................................. 19 

McCullen v. Coakley, 

573 U.S. 464 (2014) ............................................................................................. 11

McDonald for Congress, 

A.O. 1976-86 (Oct. 6, 1978) ................................................................................ 19 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) ............................................................................................. 14 

Munaf v. Green, 

553 U.S. 674 (2008) ........................................................................................ 3, 30 

Nat’l Mining Ass’n v. Kempthorne, 

512 U.S. 702 (D.C. Cir. 2008) ........................................................................ 19-20 

Org. for a Better Austin v. Keefe, 

402 U.S. 415 (1971) ............................................................................................. 10 

Ostergren v. Cuccinelli, 

615 F.3d 263 (4th Cir. 2010) ................................................................................ 10 

Pearson v. Shalala, 

164 F.3d 650 (D.C. Cir. 1999) .............................................................................. 10 

iv 
USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 6 of 39 

Publius v. Boyer-Vine, 

237 F. Supp. 3d 997 (E.D. Cal. 2017) .................................................................. 10 

Reed v. Town of Gilbert, 

576 U.S. 155 (2015) ........................................................................................ 1, 17 

Rubin v. Coors Brewing Co., 

514 U.S. 476 (1995) ............................................................................................. 10 

Schaumburg v. Citizens for a Better Env’t, 

444 U.S. 620 (1980) ............................................................................................... 9 

Sheehan v. Gregoire, 

272 F. Supp. 2d 1135 (W.D. Wash. 2003) ............................................................ 10 

UBAAPAC, 

A.O. 2011-14 (Sept. 22, 2011) ............................................................................. 21 

United States v. Stevens, 

559 U.S. 460 (2010) ................................................................................. 11, 12, 16 

Va. State Bd. of Pharm. v. Va. Citizens Cons. Coun., Inc., 

425 U.S. 748 (1976) ............................................................................................. 16 

Wash. State Federal Comm., 

A.O. 1998-18 ................................................................................................... 6, 28 

WE LEAD, 

A.O. 2003-23 (Nov. 7, 2003) ......................................................................... 21, 22 

Wis. Cent. Ltd. v. United States, 

138 S. Ct. 2067 (2018) ......................................................................................... 18 

Statutes & Other Authorities: 

U.S Const., amend. I ......................................... 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 22 

11 C.F.R. § 100.72(a) ...................................................................................... 3, 6, 28 

11 C.F.R. § 102.8(a) ...................................................................................... 2, 24, 25 

11 C.F.R. § 102.8(b) ...................................................................................... 2, 24, 25 

11 C.F.R. § 102.8(c) .......................................................................................... 23, 24 

11 C.F.R. § 110.1(b)(3)(iii)(C) ...............................................................................1, 5 

11 C.F.R. § 110.6(c)(1)(i) .............................................................................. 2, 24, 25 

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 7 of 39 

11 C.F.R. § 110.6(c)(1)(iv)(A) ...................................................................... 2, 24, 25 

52 U.S.C. § 30101(2) ................................................................................................. 3 

52 U.S.C. § 30101(2)(A) ............................................................................................ 5 

52 U.S.C. § 30101(8)(A)(i) .............................................................................. 1-2, 18 

52 U.S.C. § 30102(b)(1) ............................................................................... 2, 24, 25 

52 U.S.C. § 30102(b)(2) ............................................................................... 2, 24, 25 

52 U.S.C. § 30116(a)(1)(A) ............................................................................ 3, 6, 28 

52 U.S.C. § 30116(a)(8) ................................................................................ 2, 21, 23 

H.R. 1818, 106th Cong., 1st Sess., § 106(a)(1) (May 14, 1999) ....................... 20-21 

Alec Hernandez, Ron DeSantis Suspends His Presidential Bid and 

Endorses Trump, NBC NEWS (Jan. 21, 2024), 

https://www.nbcnews.com/politics/2024-election/ron-desantis-planningdrop-presidential-bid-sunday-rcna134953 ............................................................. 4 

Naomi Lim, DeSantis Qualifies for GOP Primary in 36 States and 

Territories, WASH. EXAMINER (Jan. 6, 2024), 

https://www.washingtonexaminer.com/news/2788696/desantisqualifies-for-gop-primary-ballot-in-36-states-and-territories/ ...............................5 

Ross Perot Re-Enters Presidential Race, L.A. TIMES (Oct. 10, 1992), 

https://www.latimes.com/archives/la-xpm-1992-10-10-me-383-

story.html ................................................................................................................ 5 

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SUMMARY OF ARGUMENT

1. This case is not moot. Regardless of whether Governor DeSantis

remains a “candidate”—which he most likely does for purposes of contribution

limits, cf. 11 C.F.R. § 110.1(b)(3)(iii)(C)—the district court’s ruling still makes it

illegal for RTW to provide him its signed petition to persuade him to resume 

campaigning, see A-320. At minimum, this issue is capable of repetition yet evading

review since RTW will similarly seek to draft Governor DeSantis in 2028. LaRouche

v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998). 

2. The Court generally subjects FECA’s contribution limits only to

intermediate scrutiny because contributions usually involve minimal communicative

content. Buckley v. Valeo, 424 U.S. 1, 21, 25 (1976) (per curiam). The signatories’

self-provided contact information in RTW’s petition, however, involves substantial

expressive and associational components that trigger strict scrutiny.

Additionally, the FEC suggests it determines whether FECA’s contribution

limits apply to petitions to people who have not yet become candidates based on the

petitions’substantive messages. See FEC Br. at 31. Thisis a content-based restriction

on speech, subject to strict scrutiny, and invalid. Reed v. Town of Gilbert, 576 U.S.

155, 171-72 (2015). 

3. FECA’s contribution limits do not apply to RTW’s signed political

petition because it does not meet FECA’s definition of “contribution.” 52 U.S.C.

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§ 30101(8)(A)(i). In ordinary parlance, people would not call either the petition or

its signatory contact information a “gift.” Several canons of statutory interpretation

require this Court to resolve any ambiguity by narrowly construing the term to

exclude such petitions. FECA’s legislative history further counsels excluding draft

petitions.

4. At most, RTW is a conduit committee seeking to provide signatories’

information to Governor DeSantis at their request, on their behalf, as conduit

contributions. The FEC’s advisory opinion and district court’s ruling erroneously bar

RTW from doing so.

FECA does not exclude RTW from serving as a conduit committee on the

grounds it generated too much additional “value” for Governor DeSantis. FECA

requires conduit committees to provide contributions they receive and aggregate to

the designed recipient, without regard to whether such aggregation generates any

additional value. 52 U.S.C. § 30116(a)(8). Indeed, conduit committees which collect

monetary contributions are required to generate “extra” value by compiling

contributors’ names, addresses, occupations, and employers to provide to the

designated recipient candidates. 52 U.S.C. § 30102(b)(1)-(2); 11 C.F.R. §§ 102.8(a)-

(b), 110.6(c)(1)(i), (iv)(A). Thus, there is no basis for refusing to recognize RTW as

a conduit committee.

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5. Under a plain-meaning interpretation of FECA, 52 U.S.C. 

§ 30116(a)(1)(A), the FEC lacks authority to limit the transfer of funds or other items

to people who are not “candidates,” regardless of whether they may be “testing the

waters” for a potential candidacy. Moreover, Machinists Non-Partisan Political

League, 655 F.2d 380, 392 (D.C. Cir. 1981), held FECA doesn’t regulate efforts to

draft candidates and is inapplicable to people who are merely considering the

possibility of running.

6. If this Court concludes RTW’s claims fail as a matter of law, it should

order dismissal of the Complaint. Munaf v. Green, 553 U.S. 674, 691 (2008). The

FEC offered no reason it may demand discovery if it is impossible for RTW to

prevail regardless of how the evidentiary record develops.

ARGUMENT

I. THIS CASE IS JUSTICIABLE

RTW brought this case to vindicate its right to provide its signed political

petition, including signatories’ self-provided contact information to Florida

Governor Ron DeSantis at three points in time:

(i) Pre-Testing-the-Waters (i.e., the status of most Americans)—any

period in which Governor DeSantis is neither a “candidate” under 52 U.S.C.

§ 30101(2), nor “testing the waters” for a potential candidacy under 11 C.F.R.

§ 100.72(a);

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(ii) Testing-the-Waters—any period in which he is “testing the waters,” but

not a “candidate”;

(iii) Candidacy—the period after Governor DeSantis qualifies as a

“candidate.”

RTW’s claims concerning either pre-Testing-the-Waters or Candidacy

necessarily remain live. In any event, any moot claims are capable of repetition, yet

evading review.

A. RTW’s Claims Remain Live as Applied to Either the 

“Pre-Testing-the-Waters” or “Candidacy” Stage

of Governor DeSantis’ 2024 Presidency Candidacy

Governor DeSantis has indisputably qualified as a “candidate” for President

in the 2024 election, but has announced he is suspending his campaign. Alec

Hernandez, Ron DeSantis Suspends His Presidential Bid and Endorses Trump, NBC

NEWS (Jan. 21, 2024), https://www.nbcnews.com/politics/2024-election/rondesantis-planning-drop-presidential-bid-sunday-rcna134953. Now, one of two

possibilities must be true: (i) Governor DeSantis still qualifies as a candidate and

remains subject to limits on candidate contributions, or (ii) he has returned to pretesting-the-waters status with regard to the 2024 election.

1. Governor DeSantis Most Likely Remains a Candidate—

Governor DeSantis likely remains a “candidate” under FECA. First, DeSantis

continues to satisfy FECA’s definition of “candidate” having received more than

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 12 of 39 

$5,000 in contributions for the 2024 presidential election. 52 U.S.C. § 30101(2)(A).

Second, neither FECA nor FEC regulations have any provisions for “uncandidating” oneself.

Third, Governor DeSantis’ decision to suspend his campaign is not legally

binding. He would be reasonably likely to re-activate his campaign should

developments occur concerning Trump’s health or manifold pending trials. Cf. Ross 

Perot Re-Enters Presidential Race, L.A. TIMES (Oct. 10, 1992),

https://www.latimes.com/archives/la-xpm-1992-10-10-me-383-story.html. RTW’s

petition could be a key factor in such decision.

Fourth, Governor DeSantis remains a candidate insofar as his name will

appear on dozens of upcoming primary ballots. Naomi Lim, DeSantis Qualifies for

GOP Primary in 36 States and Territories, WASH. EXAMINER (Jan. 6, 2024),

https://www.washingtonexaminer.com/news/2788696/desantis-qualifies-for-gopprimary-ballot-in-36-states-and-territories/.

Finally, FEC regulations continue to recognize a person as a “candidate” in a

particular election—at least for purposes of contribution limits for that election—

even after that election ends, it is impossible for that person to win, and he has

stopped campaigning. 11 C.F.R. § 110.1(b)(3)(iii)(C) (“The candidate and his or her

authorized political committee(s) may accept contributions made after the date of

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 13 of 39 

the election if... [s]uch contributions do not exceed the contribution limitations in

effect on the date of such election.”) (emphasis added).

It is undisputed candidate contribution limits continue to apply to Governor 

DeSantis. Thus, all of RTW’s constitutional and statutory challenges to FECA as

applied to RTW’s provision of its petition to a “candidate”—Counts I, II, III, 

and V—remain live.

2. Alternatively, Governor DeSantis Has

Returned to Pre-Testing-the-Waters Status

If Governor DeSantis is no longer a candidate (and there is no evidence he is

“testing the waters”), he necessarily has returned to a pre-Testing-the-Waters state.

The district court held, and the FEC agrees, providing the signed political petition to

someone who is neither testing the waters nor a candidate would automatically

trigger either “testing-the-waters” or “candidacy” status. A-318 to A-320; FEC Br.

at 50. Should that occur, limits on contributions to candidates would apply, either

directly under 52 U.S.C. § 30116(a)(1)(A), or indirectly, via the FEC’s testing-thewaters regulation, 11 C.F.R. § 100.72(a); Wash. State Federal Comm., A.O. 1998-

18, at *3 (Oct. 9, 1998).

Thus, even if Governor DeSantis is neither a candidate nor testing the waters,

RTW remains prohibited from providing its petition to persuade him to resume

campaigning. Accordingly, all counts and arguments discussed above in Subsection

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 14 of 39 

I.A.1 remain live, as does Count VI—the sole count which only challengesthe FEC’s

regulation of draft petitions to people who are not candidates.

B. All of RTW’s Claims are Capable

of Repetition, Yet Evading Review.

Even if all of RTW’s claims and arguments are moot regarding the 2024

election, they are capable of repetition yet evading review for the 2028 election.

“Controversies that arise in election campaigns are unquestionably among those

saved from mootness under the exception for matters 'capable of repetition, yet

evading review.’” Branch v. FCC, 824 F.2d 37, 41 n.2 (D.C. Cir. 1987). “Challenges

to rules governing elections are the archetypal cases for application of this

exception.” LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998). Only a

“reasonable expectation” the same issues will recur is necessary. Id. This case falls

within that exception because RTW intends to compile a signed political petition,

including signatories’ self-provided contact information, to encourage Governor

DeSantis to become and remain a candidate for President in 2028. Holmes v. FEC, 

823 F.3d 69, 71 n.3 (D.C. Cir. 2016).

II. THE FEC HAS FAILED TO ADDRESS THE GRAVAMEN

OF RTW’S CONSTITUTIONAL ARGUMENTS.

The FEC and district court have concluded the self-provided contact

information for the signatories to RTW’s political petition is too valuable to provide

to Governor DeSantis, yet not valuable enough to trigger First Amendment

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protection. Their shared premise is that while the petition’s encouragement of

DeSantis’ candidacy is constitutionally protected, the contact information which

signatories provided to identify themselves and invite a response is not.

A. The District Court Should Have Considered 

Signatories’ Contact Information in Context, as Part

of RTW’s Political Petition, Rather Than in Isolation

This Court should assess RTW’s right to provide the signed political petition

as a whole to Governor DeSantis. The FEC should not be able to disassemble the

petition into constituent parts, divorced from their context, and individually assess

whether each is constitutionally protected. FEC Br. at 27 (acknowledging the district

court “focused its analysis on the only portion [of RTW’s signed political petition]

that the [FEC] sought to regulate”). For example, in Bigelow v. Virginia, 421 U.S.

809, 812-13 (1975), Virginia law prohibited abortions and made it illegal for

publications to encourage anyone to obtain an abortion. AVirginia newspaper ran an

advertisement encouraging women to travel to an abortion clinic in New York, where

the procedure was legal. Id. at 812.

The Court held the First Amendment fully protected the advertisement as a

whole. Id. at 822. While acknowledging portions of the advertisement “simply

propose[d] a commercial transaction,” the Court emphasized it also contained

“factual material of clear ‘public interest.’” Id. The Court didn’t parse the

advertisement to separate the commercial solicitation from the factual information

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to determine which segments could be constitutionally proscribed. Id. (“Viewed in

its entirety, the advertisement conveyed information of potential interest and

value.”) (emphasis added).

In Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 622-23 (1980), a

group challenged an ordinance restricting door-to-door solicitations by charities. The

Court held door-to-door solicitors often both “[s]olicit financial support” and

communicate information. Id. at 632. Rather than parsing a speaker’s statements to

separate factual portions enjoying full constitutionally protection from solicitations

portions which could be regulated, the Court held both aspects of such

communications were “characteristically intertwined.” Id. at 632-33. Accordingly,

the communications as a whole received full First Amendment protection. Id.;

Cincinnati v. Discovery Network, 507 U.S. 410, 420 (1993) (“[I]mportant

commercial attributes of various forms of communication do not qualify their

entitlement to constitutional protection.”); Jamison v. Texas, 318 U.S. 413, 417

(1943) (“[The state] may not prohibit the distribution of handbills in the pursuit of a

clearly religious activity merely because [a section of] the handbills invite the

purchase of books.”). Thus, the district court and FEC err by focusing solely on the

signatory contact information rather than the petition as an integrated whole. 

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B. Considered Independently, Signatories’ Contact 

Information is Entitled to Full First Amendment Protection

Even adopting the district court’s and FEC’s myopic focus on signatories’

contact information, the First Amendment protects communication of mundane,

narrow, factual information such as the price of a good, 44 Liquormart v. Rhode

Island, 517 U.S. 484, 513 (1996), and the alcoholic content of beer, Rubin v. Coors

Brewing Co., 514 U.S. 476, 481, 483 (1995); cf. Pearson v. Shalala, 164 F.3d 650,

654 (D.C. Cir. 1999).

The Supreme Court has also have held the First Amendment protects

communications containing people’s contact information. Org. for a Better Austin v. 

Keefe, 402 U.S. 415, 417, 419-20 (1971) (realtor’s name and phone number); see

also Ostergren v. Cuccinelli, 615 F.3d 263, 271 n.8, 272 (4th Cir. 2010) (social

security numbers); Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1004 (E.D. Cal.

2017) (legislators’ home addresses and telephone numbers); Sheehan v. Gregoire, 

272 F. Supp. 2d 1135, 1139, 1150 (W.D. Wash. 2003) (police officers’ addresses, 

telephone numbers, birthdays, and social security numbers).

Thus, signatories’ contact information is not “low-value” speech falling below

some arbitrary, FEC-determined threshold for constitutional protection. Rather, such

information allows signatories to:

(i) identify themselves with specificity and distinguish themselves from others

with the same name, 

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(ii) convey the sincerity of their support, 

(iii) allow the authenticity of their signature to be confirmed and, perhaps most

importantly,

(iv) invite a response from Governor DeSantis.

The FEC’s notes the district court held these precedents “inapposite” for two

reasons. First, RTW “did not seek to publish its list.” FEC Br. at 24 (citing A-329).

Irrelevant. The First Amendment applies equally regardless of whether a

communication’s recipient is an individual or a large group. Meyer, 486 U.S. at 424

(holding the First Amendment fully protects “the most effective, fundamental... 

avenue of political discourse, direct one-on-one communication”); McCullen v.

Coakley, 573 U.S. 464, 489 (2014) (conversations).

Second, the FEC reiterates the district court’s contention RTW’s “message

would not be meaningfully diluted if the contact information were omitted.” FEC 

Br. at 24 (citing A-330), see also id. at 28-29. In United States v. Stevens, 559 U.S.

460, 470 (2010), however, the Court rejected the Government’s attempt to

“determine whether the First Amendment even applies” to speech based on its

“value.” It declared, “Our Constitution forecloses any attempt to revise that

judgment simply on the basis that some speech is not worth it.” Id. at 470; see also

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573 (1995)

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(“meaningful expressive value” is not required for expression to be constitutionally

protected).

The FEC retorts Stevens recognized “several permissible ‘traditional

limitations’ on speech, including obscenity, defamation, fraud, incitement, and

speech integral to criminal conduct.” FEC Br. at 28 (quoting Stevens, 559 U.S.

at 468-69). The FEC fails to mention, however, that political petitions to candidates

have never been recognized as an exception to the First Amendment (regardless of

whether they contain signatory contact information).

Collective political expression such as petitions lie at the heart of the First

Amendment. Meyer, 486 U.S. at 421 (1988); Citizens Against Rent Control v. 

Berkeley, 454 U.S. 290, 294 (1981); Brown v. Glines, 444 U.S. 348, 363 (1980)

(Brennan, J., dissenting). These holdings never suggested such protection applies

only when signatories are effectively anonymous or it is impossible for the recipient

to respond. Thus, the signatory contact information in RTW’s petition is entitled to

full First Amendment protection. 

C. The Unique Expressive and Associational Aspects of 

RTW’s Petition Entitle It to Greater Constitutional

Protection Than Mere Political Contributions

This Court should hold federal contribution limits unconstitutional as applied

to in-kind contributions comprised primarily of pure political expression and

association, such as RTW’s petition. The FEC and district court correctly note that

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contribution limits—including limits on in-kind contributions—are generally

subject only to intermediate scrutiny and constitutionally valid. Cf. FEC Br. at 27-

29. The FEC seeks to apply this facial analysis to RTW’s petition by dismissing it as

a contact list with an unrelated political note hastily attached as a desultory fig leaf

to circumvent contribution limits. FEC Br. at 22 (arguing RTW is attempting to

prevent “the FEC [from] treat[ing] a contact list as a contribution” simply by

attaching a “petition” (quoting A-49)); id. at 23 (arguing RTW is “associat[ing]” its

“contributions with protected speech”); id. at 27 .

By viewing the signed political petition as merely a generic “mailing list,” id. 

at 23, or “contact list,” id. at 24, 25, 29, the FEC and district court overlook its

inherent characteristics which should, under Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam), trigger strict scrutiny. The FEC notes political contributions generally may

be limited because “[they] lie closer to the edges than to the core of political

expression.” FEC Br. at 28 (quoting FEC v. Beaumont, 539 U.S. 146, 161 (2003));

see also Buckley, 424 U.S. at 21, 25 (contribution limits generally “entail[] only a

marginal restriction upon the contributor’s ability to engage in free communication” 

and “involve[] little direct restraint on... political communication”). Most political

contributions involve no political expression beyond the “undifferentiated, symbolic

act of contributing.” Id. 

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In contrast, RTW’s signed petition—including signatories’ contact

information—is literal communication. Each signatory voluntarily chose to provide

information to RTW to add to the petition to convey to Governor DeSantis on their

behalf as part of a collective expression of political support. A-189; see also A-191,

A-192. Accordingly, prohibiting RTW from providing its petition to Governor

DeSantis with signatories’ contact information is a direct prohibition on pure

political speech. Hurley, 515 U.S. at 573 (emphasizing a speaker’s First Amendment

right “to choose the content of his own message,” including determining what

“statements of fact” to include).

The inclusion of signatories’ contact information also constitutes a substantial

form of political association with Governor DeSantis because it allows each

signatory to identify themselves to him, rather than remaining effectively

anonymous by providing only a name (quite literally, “Who is John Galt?”). See 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s

decision to remain anonymous... is an aspect of the freedom of speech protected by

the First Amendment.”). Such contact information also enhances the appearance of

a signature’s authenticity and allows Governor DeSantis to confirm the signatory is

an actual person rather than a fabricated name.

Finally, and most importantly, the inclusion of signatory contact information

is necessary to allow Governor DeSantis to respond, if he wishes. A petition cannot

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be a meaningful vehicle for association with its recipient if that recipient has no way

of further interacting with the petition’s signatories. See Meyer, 486 U.S. at 421

(recognizing petitions involve “interactive communication concerning political

change” (emphasis added)); FEC v. Akins, 524 U.S. 11, 29 (1998) (recognizing

“communications” as a fundamental component of the “constitutionally protected

rights of association”). 

The First Amendment prohibits the FEC from treating RTW’s signed political

petition as if it were $20,000 worth of donated office equipment. Applying

contribution limitsto the petition substantially burdens both pure political expression

and association in ways Buckley neither contemplated nor authorized. Those limits,

as applied in this case, should be subject to strict scrutiny and invalidated. 

D. The FEC’s Conception of the Constitutional

Right to Petition is Chillingly Narrow

The FEC claims it “does not seek to regulate RTW’s right to petition in any

way.” FEC Br. at 29; see also FEC Br. at 22-23. But the right to petition as the FEC

envisions it is indefensibly cramped. Under the FEC’s approach, a person may

provide a draft petition to a potential or actual candidate only if they:

● limit the number of signatories;

● change the substantive content of their political communication by

stripping signatories’ personal information, making it impossible for the recipient to

meaningfully identify, authenticate, or respond to them; or 

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● violate signatories’ privacy by publishing it on the Internet.

FEC Br. at 26 (citing A-335-36).

The FEC confesses its minimalist construction of the First Amendment would

prohibit “an outside group [from] prepar[ing] a 30 second video lauding a

candidate’s qualities at great expense, and then... provid[ing] this video to the 

candidate free of charge....” FEC Br. at 30. Unacceptable. The First Amendment

protects a group’s right to engage in pure political speech by telling a candidate why

the group supports him, whether orally, by e-mail, or video. Neither the medium of

communication, see Stevens, 559 U.S. at 481-82 (recognizing the First Amendment

applies to videos), nor the fact a communication costs money to prepare, allows the

FEC to so grossly limit pure political expression, Buckley, 424 U.S. at 16 (rejecting

the notion “the dependence of a communication on the expenditure of money

operates itself to introduce a nonspeech element” that allows the communication to

be regulated); Va. State Bd. of Pharm. v. Va. Citizens Cons. Coun., Inc., 425 U.S.

748, 761-62 (1976).

The FEC further declares, so long as Governor DeSantis is a candidate, it

would prohibit any group from providing any petition containing signatories’ contact

information on any topic to him. FEC Br. at 31. Such a sweeping prohibition on pure

expression cannot be constitutional.

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E. The FEC Effectively Admits Content-Based 

Discrimination Is Necessary to Decide When FECA’s

Contribution Limits Apply to Petitions to Non-Candidates

Finally, the FEC’s brief appears to concede a substantial part of RTW’s First

Amendment argument. As discussed above, the FEC declares so long as Governor

DeSantis is a candidate, contribution limits apply to any signed political petition to

him containing signatories’ contact information, from any group, on any topic. FEC

Br. at 31. But the FEC also implies contribution limits apply to a signed political

petition to a person who does not qualify as a candidate only if it encourages them

to run for federal office. Id. In other words, the applicability of FECA’s contribution

limits to a petition to a non-candidate depends on the petition’s message.

Accordingly, as applied to petitions to non-candidates, FECA’s contribution limits

are content-based restrictions on expression and subject to strict scrutiny. Reed v.

Town of Gilbert, 576 U.S. 155, 160, 171-72 (2015) (deeming an ordinance which

applied only to signs “designed to influence the outcome of an election” to be a

“content-based regulation of speech” subject to strict scrutiny).

Ignoring Reed, the FEC notes FECA’s applicability to RTW’s petition did not

depend on the particular candidate RTW supported. FEC Br. at 32. True, but

irrelevant. Content-based restrictions are subject to strict scrutiny even if they “do[]

not discriminate among viewpoints within that subject matter,” Austin v. Reagan

Nat’l Adver. of Austin, LLC, 142 S. Ct. 1464, 1472 (2022).

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The FEC also reiterates its tired observation that contribution limits are

generally subject only to intermediate scrutiny and constitutionally valid. FEC Br. at

32. True, but irrelevant. Contribution limits can become impermissible contentbased restrictions on speech when applied to pure political expression and

association like a political petition.

III. RTW’S SIGNED POLITICAL PETITION IS 

NOT A “CONTRIBUTION” UNDER FECA

Under 52 U.S.C. § 30101(8)(A)(i), RTW’s signed political petition must

constitute a “gift” to qualify as a “contribution” subject to FECA’s limits. FEC Br.

at 36-37. Citing dictionary definitions, the FEC argues the term “gift” includes

anything “voluntarily transferred by one person to another without compensation.”

Id. at 37 (quoting A-295). This tautological definition—a “gift” is anything you give

someone—is inaccurately overbroad compared to ordinary usage. Ayestas v. Davis, 

584 U.S. 28, 44 (2018) (interpreting “necessary” to mean “merely important or

strongly desired” because that is how it is “often used” in “ordinary speech,” even

through dictionaries define it to mean “essential”); Wis. Cent. Ltd. v. United States, 

138 S. Ct. 2067, 2072 (2018) (rejecting “expansive sense” in which dictionaries

define “money,” because “that isn’t how the term was ordinarily used”).

A person may “voluntarily transfer[]” any number of things to another

“without compensation”—including greeting cards, public school student rosters,

and employee phone directories—which no one would call a “gift” in common

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parlance. Moreover, the FEC asks this Court to ignore the Commission’s own

precedents which establish the term “contribution” should be construed

“‘reasonably’ and in accord with 'customary practice,’” FEC Br. at 36 (quoting

McDonald for Congress, A.O. 1976-86 (Oct. 6, 1978); Hon. Cecil Heftel, A.O. 1977-

51 (Nov. 16, 1977)). Those opinions’interpretive principles for determining whether

something is a “contribution,” while not specific to petitions, apply here. Id.

Moreover, the FEC’s shocking assertion of authority to prohibit anyone from giving

candidates signed petitions on absolutely any topic if they include enough

signatories’ contact information is reason enough to reject the agency’s extremist

interpretation. See FEC Br. at 31.

Alternatively, the FEC admits the definition of “contribution” is ambiguous

in this case. A-223. Accordingly, the constitutional avoidance canon, major 

questions doctrine, and rule of lenity all counsel in favor of construing the term

narrowly to exclude RTW’s petition.1 The FEC’s contends this argument is a “nonsequitur” because the agency “does not seek to limit [RTW’s] right to petition in any

meaningful way.” FEC Br. at 37. Yet this case involves a range of serious

constitutional questions. See supra Part II. This Court should construe the term

“contribution” narrowly—rather than deferring to the FEC—to avoid them. Nat’l

1 The FEC fails to address the rule of lenity, an independent basis for construing

“contribution” in RTW’s favor. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).

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Mining Ass’n v. Kempthorne, 512 U.S. 702, 711 (D.C. Cir. 2008) (recognizing the

constitutional avoidance canon “trumps” Chevron deference); e.g., Chamber of

Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995); FEC v. Machinists Non-Partisan

Political League, 655 F.2d 380, 392 (D.C. Cir. 1981).

This Court may also resolve any statutory ambiguity by referring to FECA’s

legislative history. In Machinists, this Court reviewed that history to conclude FECA

does not regulate “draft” efforts to “convince” a person “that he would make a good

‘candidate’ or should become a candidate.’” 655 F.2d at 396. The FEC incorrectly

claims FECA’s legislative history is irrelevant because it involves only “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.” FEC

Br. at 39 (quoting A-324; emphasis in original).

To the contrary, as RTW’s opening brief demonstrated, Congress has for

decades consistently rejected the FEC’s repeated efforts to expand the general

definition of “contribution” to include disbursements—not just disbursements to

draft committees—“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 RTW Br. at 36 & n.11; see also A-325 (citing

rejected bills); accord H.R. 1818, 106th Cong., 1st Sess., § 106(a)(1) (May 14,

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1999). Narrow construction of “contribution” is especially appropriate to prevent

draft petitions from being swept within FECA’s scope. Machinists, 655 F.2d at 392.

IV. AT MOST, RTW IS A CONDUIT THROUGH WHICH 

PETITION SIGNATORIES SOUGHT TO PROVIDE THEIR

CONTACT INFORMATION TO GOVERNOR DESANTIS

Alternatively, RTW should be deemed a conduit through which its petition’s

signatories convey their contact information to Governor DeSantis. See 52 U.S.C. §

30116(a)(8). RTW will provide that contact information to Governor DeSantis only

at the express direction, and on behalf, of each signatory. At a minimum, RTW is

engaging in the same solicitation, collection, and aggregation of contributions as the

conduit committee in WE LEAD, A.O. 2003-23, at 5-6 (Nov. 7, 2003), except RTW

is soliciting in-kind contributions in the form of contact information while WE

LEAD solicited monetary contributions. See also UBAAPAC, A.O. 2011-14, at 2 

(Sept. 22, 2011); Democracy Engine, A.O. 2022-03, at 5-6 (June 27, 2022). The

FEC’s reasons for refusing to recognize RTW as a conduit don’t hold water.

First, the FEC points out commercial conduits such as WinRed and ActBlue

provide their services for a fee. FEC Br. at 41. But the FEC does not (and cannot

truthfully) contend committees like RTW—which are not associated with

corporations and serve as conduits solely out of ideological and political

motivations—are legally required to charge any such fee, or generally do so. See,

e.g., WE LEAD, A.O. 2003-23, at 5-6.

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Second, the FEC disingenuously complains RTW has “fail[ed] to comply with

the well-established rules for conduits.” FEC Br. at 43; id. at 41-42. Based on the

FEC’s advisory opinion and lower court ruling, however, there is no legal way for

RTW to do so without a favorable ruling from this Court. The FEC further protests

RTW has asked both the Commission and the district court whether, either under the

First Amendment or as a matter of statutory interpretation, it may be exempt from

some of the technical requirements governing conduit committees. FEC Br. at 42.

Such requests may neither be held against RTW nor impact the threshold legal

question of whether RTW in fact qualifies as a conduit committee which is subject

to those requirements in the first place. 

Third, the FEC suggests RTW cannot be a conduit since it spent millions of

dollars to solicit signatures for its petition. FEC Br. at 43. Such solicitations for

conduit contributions constitute independent expenditures, however, WE LEAD, 

A.O. 2003-23, at 5-6, and PACs have a First Amendment right to make unlimited

independent expenditures, FEC v. Nat’l Conservative Political Action Comm., 470

U.S. 480, 496 (1985). RTW’s spending on solicitations is irrelevant to whether it

qualifies as a conduit. A-307.

Fourth, the FEC declares RTW cannot be a conduit committee because the

act of aggregating signatories’ contact information creates additional “value” that

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qualifies as a contribution from RTW to Governor DeSantis. FEC Br. at 43-44. Every

aspect of this argument fails.

1. The FEC assumes that the value of RTW’s signed political petition is

“more than the sum” of the individual values of each signatory’s contact information.

FEC Br. at 43 (quoting A-305). In other words, the FEC claims the value of a conduit

contribution includes:

(i) the total value of each individual monetary or in-kind contribution

considered independently, which is treated as a contribution from each 

donor, respectively, to the recipient candidate, 52 U.S.C. § 30116(a)(8),

as well as

(ii) the additional “extra” value the conduit committee itself creates by

aggregating together those individual monetary or in-kind contributions

and conveying them together to the designated recipient, which it is

legally required to do, 11 C.F.R. § 102.8(c).

This reflects a completely new perspective on conduit contributions the FEC

has never before advanced in any regulation, prior advisory opinion, or enforcement

matter. As noted above, when a conduit contribution is made, FECA deems the

original contributor of the funds or in-kind contribution to be the contributor. 52 

U.S.C. § 30116(a)(8). Neither FECA nor FEC regulations contemplate that each

conduit contribution also involves a contribution from the conduit committee itself

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of whatever “extra” value is allegedly created by the act of aggregating numerous

small individual contributions together.

Moreover, to the extent aggregation of numerous small contributions

inherently generates “extra” value, FECA’s authorization of conduit committees not

only permits, but affirmatively requires, the conveyance of such value to the

designated recipient. 11 C.F.R. § 102.8(c). Neither FECA nor FEC regulations,

however, empower the FEC to count any such extra value against the conduit

committee’s contribution limits.

2. The FEC also emphasizes the district court’s finding—unsupported by

any citation to record evidence—that aggregating petition signatories’ contact

information somehow provides more “extra” value than aggregating monetary

contributions. As discussed below in point #3, this finding is clearly erroneous since

conduit committees that collect monetary contributions are also required to solicit,

collect, and aggregate various pieces of contact and other identifying information

about each contributor. 52 U.S.C. § 30102(b)(1)-(2); 11 C.F.R. §§ 102.8(a)-(b),

110.6(c)(1)(i), (iv)(A). Accordingly, conduit committees which accept monetary

contributions are categorically doing more work—and from the FEC’s perspective

adding more “extra” value—than RTW.

Putting that aside, there is no limit to the number or aggregate value of

contributions which a conduit committee may solicit, aggregate, and transfer to a

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 32 of 39 

candidate—so long as each individual contribution comprising that aggregate is

within applicable base limits. Thus, there is no limit to the amount of “extra” value

a conduit committee may generate by aggregating monetary contributions. In other

words, however much extra “value” RTW has generated, a conduit committee which

solicits monetary contributions could legally solicit, collect, and aggregate enough

additional contributions to generate just as much value. Accordingly, the relative

amounts of “extra” value generated by the aggregation of monetary contributions,

signatory contact information, or other types of in-kind contributionsis a red herring.

3. As mentioned above, the FEC ignores the fact every conduit committee

which solicits, collects, and aggregates monetary contributions also must solicit,

collect, and aggregate contributors’ contact information—name, address,

occupation, and employer—to convey to the designated recipient. 52 U.S.C.

§ 30102(b)(1)-(2); 11 C.F.R. §§ 102.8(a)-(b), 110.6(c)(1)(i), (iv)(A). Such conduit

committees are not required to charge either the contributor or the candidate for the

costs associated with “the collection and compiling of [that] contact information,”

regardless of whether the act of “compil[ing] the list in a useful manner” generates

additional value for the recipient. Cf. FEC Br. at 43 (quoting A-308).

Had RTW solicited a one-dollar ($1.00) conduit contribution from each

signatory, it would have been not only permitted, but required to collect and

aggregate contact information from them to provide to the recipient candidate. Id. at

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USCA Case #23-5161 Document #2039235 Filed: 02/07/2024 Page 33 of 39 

43-44. In the FEC’s warped view of campaign finance law, it is illegal for RTW to

provide its signed political petition with signatory contact information to Governor

DeSantis since RTW did not simultaneously solicit monetary conduit contributions

for him. This is exactly backwards.

4. Finally, neither the FEC nor the district court offer any way to

determine how much of the value of RTW’s petition arises from the contact

information itself and is attributable to each signatory, and how much of that value

arises from the act of aggregation and is attributable to RTW. Cf. FEC Br. at 43-44.

Neither FECA nor FEC regulations contemplates any such calculation. Both the

district court and FEC erroneously attributed the entire fair market value of the

petition to RTW. A-307. That cannot be correct. At most of the value of a compiled

list of signatories’ contact information arises from the contact information each

signatory provided.

In short, the fact RTW may have generated “extra” value by soliciting,

collecting, and aggregating numerousin-kind contributions does not preclude it from

being a conduit committee.

Fifth, the FEC complains RTW will retain a copy of the signatories’ contact

information. FEC Br. at 44. But RTW’s maintenance of a complete copy of its own

signed petition raises no risk of corruption. Moreover, the FEC has already held

political committees or other entities which facilitate conduit contributions may

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retain, use, and even sell contact information they collect from contributors.

Democracy Engine, A.O. 2022-03, at 6.

The FEC’s discussion of this issue underscores why RTW may be treated as a

conduit. It declares:

If [RTW] later provides its mailing list or a portion of it to any federal

candidate other than Governor DeSantis, it would be exercising

discretion or control, and would undoubtedly be making a contribution

in its own name. The result should be no different if [RTW] provides

the contact information to Governor DeSantis.

FEC Br. at 44-45 (emphasis added).

Of course the results should differ! In the FEC’s hypothetical:

(i) no signatory asked RTW to provide their contact information to other

candidates; 

(ii) the contact information is not being provided to those other candidates

as part of a petition containing a political message in which the signatories joined; 

(iii) no signatory expressed an interest in associating with or receiving

communications from those other candidates; and

(iv) RTW would be deciding on its own, after the fact, where signatories’

contact information was being forwarded. 

The FEC’s hypothetical lacks the key factors which distinguish RTW’s signed

political petition from an ordinary mailing list.

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For these reasons, RTW is entitled—at a minimum—to be treated as a conduit

committee with regard to its signed political petition.

V. FECA DOES NOT PROHIBIT PROVIDING SIGNED POLITICAL

PETITIONS TO INDIVIDUALS WHO ARE NOT YET CANDIDATES

FECA’s contribution limits, in relevant part, unambiguously apply only to

transfers to a “candidate.” 52 U.S.C. § 30116(a)(1)(A). The FEC has nevertheless

interpreted a regulation, 11 C.F.R. § 100.72(a), as extending contribution limits to

people who are not yet candidates, but are “testing the waters” for a potential

candidacy. Wash. State Federal Comm., A.O. 1998-18, at *3. The district court

allowed the FEC to go even further by applying contribution limitsto non-candidates

who have not yet even reached that “testing the waters” stage.

The FEC’s brief provides no statutory authority for applying contribution

limits to anyone other than a “candidate.” Congress has consistently refused to

amend the definition of “contribution” to include payments made to draft someone

to become a candidate. See supra Part III. The FEC’s only response is that the early

stages of a campaign are important. FEC Br. at 51-52. Regardless, FECA’s plain text

doesn’t let the FEC limit transfers to anyone other than candidates.

Alternatively, Machinists counsels strongly against applying contribution

limits to draft petitions seeking to persuade a non-candidate—regardless of whether

he is testing the waters—to run for office. Machinists emphasized the fundamental

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distinction between: (i) “activities[to] support an existing ‘candidate,’” which FECA

expressly regulates, and (ii) “attempts to convince the voters or [an individual] that

he would make a good ‘candidate’ or should become a ‘candidate,’” about which

FECA is silent. 655 F.2d at 396; id. at 392 (emphasizing the target of a draft

campaign is not a “candidate... as Congress uses that term in FECA”).

Machinists further noted efforts to draft a potential candidate do not carry the 

same potential for corruption as contributions to actual candidates. Id. at 392. As

Machinists confirms, nothing in FECA’s legislative history suggests Congress

intended to restrict draft efforts. Thus, at the very least, this Court should construe

FECA narrowly to permit the provision of signed draft petitions, including signatory

contact information, to non-candidates (regardless of whether they are “testing the

waters”).

VI. THE FEC IS NOT ENTITLED TO CONTINUE LITIGATING

THIS CASE IF RTW’S CLAIMS FAILAS A MATTER OF LAW.

The district court’s legal rulings in its denial of RTW’s motion for a

preliminary injunction were sufficient to defeat all of RTW’s claims as a matter of

law. In the event this Court’s legal determinations similarly make it impossible for

RTW to prevail, the proper remedy isto order dismissal of the Complaint. The FEC’s

arguments to the contrary are frivolous.

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The FEC begins by disingenuously contending RTW is “attempt[ing] to

appeal a separate interlocutory order of the district court over which this Court does

not have jurisdiction.” FEC Br. at 53. Instead, as RTW has repeatedly explained, this

Court has jurisdiction to order dismissal of a complaint in an interlocutory appeal

from a district court order concerning a preliminary injunction when the plaintiff’s

claims fail as a matter of law. Munaf v. Green, 553 U.S. 674, 691 (2008); Ark. Dairy 

Coop. Ass’n v. USDA, 573 F.3d 815, 821 (D.C. Cir. 2009). The FEC ignores these

binding precedents. FEC Br. at 53-56. Dismissal would simplify the case’s current

bifurcated posture and prevent pointless discovery and futile trial court proceedings.

The FEC stubbornly insists, however, on its supposed entitlement to take

discovery. FEC Br. at 55-56. It never explains why the discovery it identifies would

be necessary if RTW’s claims fail as a matter of law, or how any evidence adduced

could make judgment in its favor inappropriate. The FEC also warns dismissal is

problematic because, “if [RTW] is successful,” it could “permanently alter federal

campaign finance law.” FEC Br. at 54. But RTW seeks dismissal only if it is not

successful here, in which case campaign finance law would remain unchanged. This 

case turns on pure questions of law; if the Complaint fails as a matter of law,

dismissal is warranted.

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CONCLUSION

RTW respectfully asks this Court to grant its requested relief.

Respectfully submitted,

February 7, 2024 _/s/ Dan Backer_____________________

Dan Backer, Esq. (D.C. Bar No. 996641)

CHALMERS, ADAMS, BACKER

& KAUFMAN LLC

441 N. Lee Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@ChalmersAdams.com 

Attorney for Plaintiff-Appellant

Ready to Win

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CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limit of Fed. R. App. P.

32(a)(7)(B)(ii) because, excluding the parts of the document exempted by Fed. R.

App. P. 32(f), this document contains 6,491 words.

2. This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this

document has been prepared in a proportionally spaced typeface using Microsoft

Word version 2311 in Times New Roman 14-point font.

Respectfully submitted, 

_/s/ Dan Backer_____________________

Dan Backer, Esq. (D.C. Bar No. 996641)

Attorney for Plaintiff-Appellant

Ready to Win

Dated February 7, 2024

32