Case 1:22-cv-03282-RDM Document 16 Filed 02/01/23 Page 1 of 57 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

READY FOR RON, ) 

) 

Plaintiff, ) Civ. No. 22-3282 (RDM) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) OPPOSOTION TO MOTION 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

February 1, 2023 (202) 694-1650 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 16 Filed 02/01/23 Page 2 of 57 

TABLE OF CONTENTS 

PAGE 

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

BACKGROUND .......................................................................................................................2 

I. LEGAL BACKGROUND .............................................................................................2 

A. The Federal Election Commission’s Advisory Opinion 

Process ...............................................................................................................2 

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

Exception for Testing the Waters Activity ........................................................3 

C. Contribution Limits and In-Kind Contributions of 

Mailing and Email Lists.....................................................................................5 

II. FACTUAL BACKGROUND........................................................................................7 

A. Plaintiff Ready for Ron......................................................................................7 

B. Commission Processing of RFR’s Advisory Opinion 

Request...............................................................................................................8 

1. RFR’s Request .......................................................................................8 

2. Decision ...............................................................................................10 

C. Plaintiff’s Complaint and Preliminary Injunction Motion...............................11 

ARGUMENT ..........................................................................................................................12 

I. PLAINTIFF CARRIES A SIGNIFICANT BURDEN TO 

QUALIFY FOR THE EXTRAORDINARY REMEDY OF A 

PRELIMINARY INJUNCTION .................................................................................12 

II. RFR IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS 

FIRST AMENDMENT CLAIM..................................................................................13 

A. Application of a Contribution Limit to RFR’s Proposed 

Conduct is Subject to Intermediate Scrutiny, not Strict 

Scrutiny............................................................................................................14 

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B. Applying FECA’s Contribution Limits to Prevent the 

Transfer of RFR’s Mailing List at no Charge Satisfies 

Intermediate Scrutiny.......................................................................................15 

1. The Government has a Sufficiently Important, Indeed 

Compelling, Interest in Preventing Quid Pro Quo 

Corruption and its Appearance ............................................................15 

2. Application of FECA’s Contribution Limits to RFR’s 

Proposed Conduct is Closely Drawn to the Government’s 

Interest .................................................................................................16 

III. RFR IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT THE 

COMMISSION UNREASONABLY CONSTRUED FECA TO 

PROHIBIT TRANSFER OF THE MAILING LIST RFR COMPILED 

AFTER DESANTIS BECOMES A CANDIDATE OR WHILE HE IS 

TESTING THE WATERS...........................................................................................20 

A. The Administrative Procedure Act Establishes a Deferential 

Standard for Review of Agency Action.......................................................... 21 

B. Agency Deference Under the Supreme Court’s 

Chevron and Kisor Framework....................................................................... 22 

C. The Commission Reasonably Concluded that RFR Could Not 

Transfer a List of Potential Supporters to Governor DeSantis 

after he Begins Testing the Waters or Becomes a Candidate ......................... 24 

1. The Commission Advisory Opinion is a Reasonable 

Interpretation of an Ambiguous Statute..............................................24 

2. The Commission’s Conclusion that the Signatory 

Information Falls within The Commission’s Regulations 

Governing Mailing Lists is Entitled to Deference ..............................27 

3. The Commission Reasonably Determined that RFR is 

Not Serving as a “Conduit” for the Contributions of Others..............28 

4. The Commission Reasonably Determined that RFR 

May Not Provide Its Mailing List if DeSantis is 

Testing the Waters ...............................................................................30 

a. The Commission’s Testing the Waters Regulations are 

Reasonable and Permissible Interpretations of an 

Ambiguous Statutory Provision ....................................................31 

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b. Neither Machinsts nor Subsequent Congressional Inaction 

Prevents the Commission from Applying a Contribution 

Limit to In-Kind Donations from RFR..........................................36 

c. The Commission’s Application of Its Testing the Waters 

Regulation to In-Kind Contributions Is Permissible ....................39 

IV. RFR IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT IT 

HAS A RIGHT TO PROVIDE THE SIGNATORY INFORMATION 

TO GOVERNOR DESANTIS BEFORE HE IS TESTING THE WATERS..............40 

V. RFR IS UNLIKELY TO SUCCEED ON ITS DECLARATORY 

RELIEF, INJUNCTIVE RELIEF, AND FECA CLAIMS ..........................................41 

VI. RFR HAS FAILED TO DEMONSTRATE IRREPARABLE HARM .......................42 

VII. THE INJUNCTION PLAINTIFF SEEKS WOULD HARM THE 

GOVERNMENT AND UNDERMINE THE PUBLIC INTEREST...........................44 

CONCLUSION........................................................................................................................45 

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TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011)............................................................................ 41 

Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594 (D.C. Cir. 1990)................................................ 21 

Arlington v. Fed. Commc’ns Comm’n, 569 U.S. 290 (2013)........................................................ 22 

Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 

283 F.3d 339 (D.C. Cir. 2002)................................................................................................... 42 

Base One Techs., Inc. v. Ali, 78 F. Supp. 3d 186 (D.D.C. 2015).................................................. 41 

Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) ........................................................................ 37 

Brown v. FEC, 386 F. Supp. 3d 16 (D.D.C. 2019)....................................................................... 13 

Buckley v. Valeo, 424 U.S. 1 (1976)...................................................................................... passim 

C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 

310 F.3d 197 (D.C. Cir. 2002)................................................................................................... 41 

Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012).......................................................................... 7 

Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716 (D.C. Cir. 2022) .................................... 13 

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006)..............................................................................................42-43 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)............................ 22, 34 

Citizens for Resp. & Ethics in Wash. v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ................. 28, 35 

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995)....................... 43 

Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 

447 U.S. 102 (1980) .................................................................................................................. 37 

Davis v. District of Columbia, 721 F.3d 638 (D.C. Cir. 2013)..................................................... 42 

Department of Army v. Blue Fox, Inc., 525 U.S. 255 (1999) ....................................................... 42 

Doe v. Reed, 561 U.S. 186 (2010) ................................................................................................ 19 

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Doe v. Sec. & Exch. Comm’n, 28 F.4th 1306 (D.C. Cir. 2022).................................................... 23 

F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ......................................... 22 

FEC v. Akins, 524 U.S. 11 (1998)................................................................................................3-4 

FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) .....................................6, 17-18, 30 

FEC v. Cruz, 142 S. Ct. 1638 (2022)............................................................................................ 33 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)................................. 23, 28 

FEC v. Int’l Funding Inst., 969 F.2d 1110 (D.C. Cir. 1992) .................................................... 6, 17 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981)...............36-37 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001)............................................ 23, 28 

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) ........................................................................ 43 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)...................................................................... 23, 27, 28, 39 

Libertarian Nat’l Comm. v. FEC, 924 F.3d 533 (D.C. Cir. 2019).................................... 14, 15, 20 

McConnell v. FEC, 540 U.S. 93 (2003)........................................................................................ 15 

McCutcheon v. FEC, 572 U.S. 185 (2014)..................................................................14, 15-16, 33 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).......................................................... 19 

Meyer v. Grant, 486 U.S. 414 (1988) ........................................................................................... 19 

Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009).................................................... 42 

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

463 U.S. 29 (1983) ...............................................................................................................21-22 

Nat’l Lifeline Ass’n v. Fed. Commc’ns Comm’n, 983 F.3d 498 (D.C. Cir. 2020)........................ 23 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ............................... 44 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ......................................................... 15 

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................................... 44 

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Odebrecht Constr. v. Sec’y Fla. DOT, 715 F.3d 1268 (11th Cir. 2013)....................................... 42 

PDK Lab’ys Inc. v. U.S. D.E.A., 362 F.3d 786 (D.C. Cir. 2004).............................................37-38 

Pension Benefit Guaranty Corp. v. LTV Corp., 

496 U.S. 633 (1990) .................................................................................................................. 37 

Prechtel v. Fed. Commc’ns Comm’n, 330 F. Supp. 3d 320 (D.D.C. 2018).................................. 20 

Rainwater v. United States, 356 U.S. 590 (1958)......................................................................... 38 

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014)..............................................................43-44, 45 

Rust v. Sullivan, 500 U.S. 173 (1991)........................................................................................... 35 

Sampson v. Murray, 415 U.S. 61 (1974) ...................................................................................... 42 

San Luis Obispo Mothers for Peace v. NRC, 

789 F.2d 26 (D.C. Cir. 1986) (en banc...................................................................................... 22 

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)................................................................ 13, 43 

Smith v. Henderson, 944 F. Supp. 2d 89 (D.D.C. 2013)............................................................... 13 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .......................................23, 35-36 

United States v. Price, 361 U.S. 304 (1960)................................................................................. 38 

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010)................................................................27, 41-42 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)................................................................... 43, 44 

Util. Workers Union of Am., Loc. 369 v. FEC, 

691 F. Supp. 2d 101 (D.D.C. 2010)........................................................................................... 23 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..........................................................21, 22-23 

W. Va. v. EPA, 142 S. Ct. 2587 (2022)......................................................................................... 35 

Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992) .......................................................... 23, 27 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).................................................12-13, 42 

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Statutes 

5 U.S.C. § 702............................................................................................................................... 12 

28 U.S.C. § 2201..................................................................................................................... 12, 21 

52 U.S.C. § 30101(2) .......................................................................................................... 3, 31, 33 

52 U.S.C. § 30101(8) ...................................................................................................................... 3 

52 U.S.C. § 30101(8)(A)............................................................................................................... 31 

52 U.S.C. § 30101(8)(A)(i)............................................................................................... 3, 5, 6, 24 

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

52 U.S.C. § 30101(9) ...................................................................................................................... 3 

52 U.S.C. § 30101(9)(A)............................................................................................................... 31 

52 U.S.C. § 30101(9)(A)(i)............................................................................................................. 3 

52 U.S.C. § 30101(11) .............................................................................................................. 5, 24 

52 U.S.C. §§ 30101-46 ................................................................................................................... 2 

52 U.S.C. § 30102(e)(1).................................................................................................................. 3 

52 U.S.C. § 30104(a)(1).................................................................................................................. 3 

52 U.S.C. § 30104(a)(2).................................................................................................................. 3 

52 U.S.C. § 30104(a)(3).................................................................................................................. 3 

52 U.S.C. § 30106(b)(1) ................................................................................................................. 2 

52 U.S.C. § 30106(c) ...................................................................................................................... 2 

52 U.S.C. § 30106(e) ...................................................................................................................... 2 

52 U.S.C. § 30107(a) ...................................................................................................................... 2 

52 U.S.C. § 30107(a)(6).................................................................................................................. 2 

52 U.S.C. § 30107(a)(7).................................................................................................................. 2 

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52 U.S.C. § 30107(a)(8).................................................................................................................. 2 

52 U.S.C. § 30107(a)(9).................................................................................................................. 2 

52 U.S.C. § 30107(e) ...................................................................................................................... 2 

52 U.S.C. § 30108........................................................................................................................... 2 

52 U.S.C. § 30108(a) ...................................................................................................................... 2 

52 U.S.C. § 30108(c) ...................................................................................................................... 3 

52 U.S.C. § 30109........................................................................................................................... 2 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

52 U.S.C. § 30109(a)(2).................................................................................................................. 2 

52 U.S.C. § 30109(a)(6).................................................................................................................. 2 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

52 U.S.C. § 30111(d) .................................................................................................................... 38 

52 U.S.C. § 30116(a) ................................................................................................................ 5, 12 

52 U.S.C. § 30116(a)(1)................................................................................................................ 24 

52 U.S.C. § 30116(a)(1)(A) ...................................................................................... 3, 6, 12, 21, 31 

52 U.S.C. § 30116(a)(2)(A) ............................................................................................................ 6 

52 U.S.C. § 30116(a)(8).................................................................................................... 12, 21, 29 

52 U.S.C. § 30116(c) ...................................................................................................................... 6 

52 U.S.C. § 30118........................................................................................................................... 3 

52 U.S.C. § 30119........................................................................................................................... 3 

52 U.S.C. § 30121........................................................................................................................... 3 

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Rules and Regulations 

11 C.F.R. § 100.5(a)........................................................................................................................ 7 

11 C.F.R. § 100.5(f)........................................................................................................................ 7 

11 C.F.R. § 100.7(b)(1)................................................................................................................... 4 

11 C.F.R. § 100.8(b)(1)................................................................................................................... 4 

11 C.F.R. §§ 100.51-100.94.......................................................................................................... 24 

11 C.F.R. § 100.52(d) ................................................................................................................... 27 

11 C.F.R. § 100.52(d)(1)........................................................................................................6-7, 25 

11 C.F.R. § 100.72.................................................................................................................... 4, 12 

11 C.F.R. § 100.72(a)................................................................................................ 4, 5, 31, 34, 40 

11 C.F.R. § 100.131.................................................................................................................. 4, 31 

11 C.F.R. § 102.14(b) ..................................................................................................................... 7 

11 C.F.R. § 103.3(b)(3)................................................................................................................. 34 

11 C.F.R. § 106.6(a)........................................................................................................................ 7 

11 C.F.R. § 110.1(b) .................................................................................................................... 12 

11 C.F.R. § 110.1(b)(1)................................................................................................................... 6 

11 C.F.R. § 110.1(d) ..................................................................................................................... 12 

11 C.F.R. § 112.1(a)........................................................................................................................ 2 

11 C.F.R. § 112.1(b) ....................................................................................................................... 2 

11 C.F.R. § 112.1(c)........................................................................................................................ 2 

11 C.F.R. § 112.1(d) ....................................................................................................................... 2 

11 C.F.R. § 112.4(a)........................................................................................................................ 3 

11 C.F.R. § 112.4(c)........................................................................................................................ 3 

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Case 1:22-cv-03282-RDM Document 16 Filed 02/01/23 Page 11 of 57 

Explanation & Justification of Regulations Concerning Jan.8, 1980 Amendments to Fed. 

Election Campaign Act of 1971, 45 Fed. Reg. 15080 (Mar. 7, 1980)......................................... 3 

FEC, Notice of Proposed Rulemaking, Mailing Lists of Political Committees, 68 Fed. Reg. 

52,531 (Sept. 4, 2003) ........................................................................................................... 6, 17 

FEC, Payments Received for Testing the Waters Activities, 

50 Fed. Reg. 9992 (Mar. 13, 1985) ............................................................................. 4, 5, 32, 33 

FEC, Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 86 Fed. Reg. 7867 (Feb. 2, 2021)............................................ 6 

Miscellaneous 

Adam Bonica, Professional Networks, Early Fundraising, and Electoral Success, 

16 Election L.J. 153 (2017) ...................................................................................................... 33 

FEC Advisory Op. 1981-32, 1981 WL 721644 (Askew) ............................................................. 39 

FEC Advisory Op. 1982-41, 1982 WL 993349 (Dellums)........................................................... 25 

FEC Advisory Op. 1985-40, 1986 WL 1301186 (Republican Majority Fund)............................ 39 

FEC Advisory Op. 2002-14, 2003 WL 715988 (Libertarian National Committee)................. 6, 25 

FEC Advisory Op. 2011-02, 2011 WL 7629547 (Scott Brown for U.S. Senate Committee).. 6, 25 

FEC Advisory Op. 2014-06, 2014 WL 3748239 (Ryan for Congress, et. al) .................... 6, 17, 25 

FEC Advisory Op. 2014-09, 2014 WL 4105867 (REED Marketing) .......................................... 25 

Federal Election Regulations, H.R. Doc. No. 95-44, 40 (1977)..........................................4, 31-32 

H.R. Rep. No. 96-422 (1979).......................................................................................................2-3 

R. Biersack, P. Herrnson & C. Wilcox, Seeds for Success: Early Money in Congressional 

Elections, 18 Leg. Studies Q. 535 (1993).................................................................................. 33 

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INTRODUCTION 

Compiled contact information for groups of people who support a person running for 

office is one of the most valuable assets of a nascent political campaign. Data on persons likely 

to be sympathetic to a particular political cause can be rented or purchased in a market for 

thousands of dollars, and candidates, parties, and other groups closely safeguard this information. 

As a result, the Federal Election Commission (“FEC” or “Commission”) long ago concluded that 

transfers of membership or mailing lists are subject to limitations on in-kind contributions in the 

Federal Election Campaign Act (“FECA”) and may not be given for free to a person running for 

office if its market value exceeds that limit. Courts, likewise, have affirmed the Commission’s 

application of this principle to even publicly available information that an outside group 

compiles to send to a campaign. 

Plaintiff Ready for Ron (“RFR”) challenges a Commission Advisory Opinion applying 

these principles to conclude that RFR may not give a potential candidate information that 

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

support for that potential candidacy and which RFR has spent hundreds of thousands of dollars 

compiling, at least insofar as the potential candidate is determining whether to run for office or 

has decided to run. That position is based on its counterintuitive assertion that a list of names 

and contact information is not a mailing list. It makes no difference whether RFR’s list is 

attached to a political statement that RFR is free to make; RFR cannot exempt a contribution 

from FECA’s limits just by including political speech. Neither the First Amendment nor FECA 

required the Commission to blind itself to the practical effect of RFR’s proposal, which would 

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

contribution limits. This Court should deny RFR’s motion for a preliminary injunction. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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BACKGROUND 

I. LEGAL BACKGROUND 

A. The Federal Election Commission’s Advisory Opinion Process 

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

over the administration, interpretation, and civil enforcement of the Federal Election Campaign 

Act, 52 U.S.C. §§ 30101-46 (“FECA”). See generally 52 U.S.C. §§ 30106(b)(1), 30107(a), 

30109. Congress provided for the Commission to “prepare written rules for the conduct of its 

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

§ 30106(b)(1), and make rules and issue advisory opinions, 52 U.S.C. §§ 30107(a)(7), (8); id. 

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

Commission is also authorized to institute investigations of possible violations of FECA, 

52 U.S.C. § 30109(a)(1)-(2), and to initiate civil enforcement actions in the United States district 

courts, id. §§ 30106(b)(1), 30107(a)(6), 30107(e), 30109(a)(6). At least four affirmative 

Commissioner votes are required for the Commission to take certain actions, including, inter 

alia, issuing advisory opinions, promulgating regulations, and advancing enforcement matters. 

Id. §§ 30106(c), 30107(a)(6)-(9). 

Anyone may request an advisory opinion regarding the application of FECA and 

Commission regulations to a specific transaction or activity by that person. 52 U.S.C. 

§ 30108(a); 11 C.F.R. § 112.1(a). FECA generally provides that the Commission “shall render 

[an] advisory opinion” within 60 days of receiving a complete request. 52 U.S.C. § 30108(a); 

see 11 C.F.R. § 112.1(b)-(d). Congress recognized, however, that the Commission may not be 

able to issue an advisory opinion in some cases due to the four-vote requirement, so “[a] 3-3 vote 

by the Commission on the proposed opinion is considered a response for purposes of the time 

requirements,” of which the requestor should be promptly notified. H.R. Rep. No. 96-422 

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(1979), at 20. Accordingly, the Commission adopted a regulation that it shall either issue an 

advisory opinion or “a written response stating that the Commission was unable to approve an 

advisory opinion by the required affirmative vote of 4 members” within 60 days of receiving a 

complete request. 11 C.F.R. § 112.4(a), (c); see also Explanation & Justification of Regulations 

Concerning Jan.8, 1980 Amendments to Fed. Election Campaign Act of 1971, 45 Fed. Reg. 

15080, 15090, 15124 (Mar. 7, 1980). When the Commission issues an advisory opinion finding 

the proposed transaction or activity lawful under FECA and its regulations, the opinion acts as a 

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

in either the proposed transaction addressed in the opinion or a materially indistinguishable 

transaction. 52 U.S.C. § 30108(c). 

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

the Waters Activity 

FECA requires individuals who meet the statutory definition of a “candidate” to 

designate a principal campaign committee, file periodic campaign finance disclosure reports, and 

abide by certain source and amount limitations on contributions. See generally 52 U.S.C. 

§§ 30102(e)(1), 30104(a)(1)-(3), 30116(a)(1)(A), 30118, 30119, 30121. Under 52 U.S.C. 

§ 30101(2), “candidate” means “an individual who seeks nomination for election, or election, to 

federal office,” and an individual is deemed a candidate if he or she receives “contributions” or 

makes “expenditures” in excess of $5,000 or gives consent to another person to receive 

contributions or make expenditures on his or her behalf aggregating in excess of $5,000. 

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

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

any election for Federal office.” Id. § 30101(8)(A)(i), (9)(A)(i); see also FEC v. Akins, 524 U.S. 

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11, 15 (1998). FECA thus establishes automatic thresholds for becoming a candidate, a status 

which triggers registration and reporting requirements. 

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

thresholds which permit an individual to test the feasibility of a campaign for federal office 

without becoming a candidate under the FECA. FEC, Payments Received for Testing the Waters 

Activities, 50 Fed. Reg. 9992, 9993 (Mar. 13, 1985); see Federal Election Regulations, H.R. 

Doc. No. 95-44, 40 (1977), available at https://www.fec.gov/resources/cmscontent/documents/95-44.pdf (explaining regulatory exception from definition of “contribution” 

for “[p]ayments for the purpose of determining whether and individual should become a 

candidate if the individual does not subsequently become a candidate”). Commonly referred to 

as the “testing the waters” exceptions, 11 C.F.R. § 100.72 and § 100.1311 exclude funds received 

and payments made to determine whether an individual should become a candidate from the 

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

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

made in connection with these activities. 11 C.F.R. § 100.72(a). If the person subsequently 

becomes a candidate, those receipts and disbursements become contributions and expenditures 

under the FECA, and are therefore subject to the Act’s reporting requirements and source and 

amount restrictions. Id. 

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

excessive or prohibited contributions received during the “testing the waters” period within 10 

days after the individual became a candidate. Payments Received for Testing the Waters 

Activities, 50 Fed. Reg. at 9994. However, the Commission “reconsidered this issue and 

Formerly, 11 C.F.R. § 100.7(b)(1) and 100.8(b)(1). 

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determined that permitting prohibited funds to be used for ‘testing the waters’ activities extended 

the exemptions beyond the narrow range of activities they were originally intended to 

encompass.” Id. Accordingly, the Commission revised the regulations to require funds received 

to test the waters be permissible under the FECA’s source prohibitions and contribution limits. 

Id.; 11 C.F.R. § 100.72(a). The Commission rejected comments objecting to the proposed 

regulatory provision, explaining that it “view[ed] the amended regulations as reducing the 

potential for circumvention of the prohibitions and limitations of the Act,” and “ensur[ing] 

consistent application of the Act’s contribution limitations and prohibitions.” Payments 

Received for Testing the Waters Activities, 50 Fed. Reg. at 9994. As a result, “[o]nly funds 

permissible under the Act may be used for [testing the waters] activities.” 11 C.F.R. § 100.72(a). 

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

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

the “deeply disturbing” reports from the 1972 federal elections of contributors giving large 

amounts of money to candidates “to secure a political quid pro quo.” Buckley, 424 U.S. at 26-27. 

With FECA, Congress primarily intended to “limit the actuality and appearance of corruption 

resulting from large individual financial contributions.” Id. at 26. And in Buckley, the Supreme 

Court held that Congress could constitutionally limit the dollar amounts of contributions to 

candidates for federal office. Id. at 24; see also 52 U.S.C. § 30116(a); id. § 30101(8)(A)(i). The 

Supreme Court also held that the government’s interest in preventing quid pro quo corruption is 

sufficient to justify limits on the “provision of in-kind assistance” to a candidate or his campaign. 

424 U.S. at 36-37. 

To satisfy these governmental interests, FECA prohibits a political committee, other than 

a multicandidate committee, from contributing more than $2,900 to any candidate with respect to 

any election for federal office. See 52 U.S.C. §§ 30101(11) (defining “person” to include 

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political committees); 30116(a)(1)(A), (a)(2)(A); see also 11 C.F.R. § 110.1(b)(1); FEC, Price 

Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling 

Disclosure Threshold, 86 Fed. Reg. 7867, 7869 (Feb. 2, 2021) (adjusting limit for inflation 

pursuant to 52 U.S.C. § 30116(c)). A contribution includes “in-kind” contributions, which are 

“the provision of any goods or services without charge or at a charge that is less than the usual 

and normal charge.” 11 C.F.R. § 100.52(d)(1); see also 52 U.S.C. § 30101(8)(A)(i)-(ii) (defining 

“contribution” to include “anything of value” and “the payment by any person of compensation 

for the personal services of another person which are rendered to a political committee without 

charge”). 

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

have commercial value and are “frequently sold, rented, or exchanged in a market.” FEC 

Advisory Op. 2014-06, 2014 WL 3748239 (Ryan for Congress, et. al), at *7 (collecting 

examples); see, e.g., FEC Advisory Op. 2011-02, 2011 WL 7629547 (Scott Brown for U.S. 

Senate Committee), at *5 (same); FEC Advisory Op. 2002-14, 2003 WL 715988 (Libertarian 

National Committee), at *2. Indeed, as “the product of time-consuming, labor-intensive 

activities that can cost a political committee thousands, even millions, of dollars” to compile, a 

political committee’s list of persons sympathetic to its cause is among “its most valuable assets.” 

FEC v. Int’l Funding Inst., 969 F.2d 1110, 1116 (D.C. Cir. 1992) (en banc) (internal citations 

omitted); see also FEC v. Christian Coal., 52 F. Supp. 2d 45, 96 (D.D.C. 1999); Notice of 

Proposed Rulemaking, FEC, Mailing Lists of Political Committees, 68 Fed. Reg. 52,531, 52,531 

(Sept. 4, 2003) (“One of the principal assets of many political committees is their mailing list.”). 

Accordingly, the Commission’s regulations specifically identify “membership lists” and 

“mailing lists” as examples of goods that are in-kind contributions when provided to a candidate 

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or political committee without charge or at less than their usual and normal charge. 11 C.F.R. 

§ 100.52(d)(1). 

II. FACTUAL BACKGROUND 

A. Plaintiff Ready for Ron 

On May 23, 2022, RFR registered with the Commission as a hybrid, nonconnected,2 

unauthorized3 political committee. Ready for Ron, Statement of Organization, FEC Form 1 

(May 23, 2022), https://docquery.fec.gov/cgi-bin/forms/C00815928/1597424/. As a “hybrid” 

PAC under Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2012), RFR may, and does, accept 

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

FECA’s source prohibitions and contribution limits; and (2) to a “non-contribution” account, 

which accepts unlimited contributions (from individuals other than prohibited sources). (Compl. 

¶ 7.) From its contribution account, RFR may make contributions to federal candidates and from 

its non-contribution account, RFR may make independent expenditures. 

Although RFR describes itself as a “draft committee”4 that was “formed for the purpose 

of drafting” Florida Governor Ron DeSantis “as a candidate for the Republican nomination for 

President in the 2024 election,” (Compl. ¶ 6,) RFR may make contributions to federal candidates 

2 A nonconnected committee is a political committee that is not a party committee, an 

authorized committee of a candidate, or a separate segregated fund established by a corporation 

or labor organization. See 11 C.F.R. §§ 100.5(a), 106.6(a). 

3 An unauthorized committee is a political committee which has not been authorized by a 

candidate to receive contributions or make expenditures on behalf of such candidate. See 11 

C.F.R. § 100.5(f). 

4 A “draft committee” is not a designation subject to special registration or reporting 

requirements under FECA or Commission regulations. Although there is a regulation addressing 

how a “political committee established solely to draft an individual . . . to become a candidate” 

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

reporting requirements applicable to such committees. 

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and, to date, has reported making over $76,000 in independent expenditures opposing Joe Biden, 

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

expenditures or contributions. See Ready for Ron, Financial summary, 

https://www.fec.gov/data/committee/C00815928/?cycle=2022 (last accessed Jan. 26, 2022). 

B. Commission Processing of RFR’s Advisory Opinion Request 

1. RFR’s Request 

RFR requested an advisory opinion from the Commission by letter on May 25, 2022 

(Compl. Exh. 1 (“A.O. Request”).), which it later supplemented with additional information 

requested by the Commission.5 RFR’s advisory opinion request and various supplements and 

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

finance a nationwide petition to encourage Governor DeSantis to run for president in 2024. RFR 

explained that it was engaging in extensive media outreach to support its petition, including 

television and online advertisements as well as earned media coverage, and provided statistics 

regarding the extent of this outreach at the time of its request. (Id. at 2.) At the time of the 

request, RFR was planning to continue promoting the petition “through radio, podcast, 

Skywriting, direct mail, billboards, blimps, and other media,” and estimated spending an average 

of $25,000-$50,000 per week on advertisements supporting the petition through 2024. (Id. at 2-

3.) According to the request, individuals who wished to “sign” the petition could do so through 

RFR’s website or by phone, and all signatories could provide their name, phone number, email 

address, and zip code. (Id. at 2.) Each signatory was required to provide their name and email 

address. (Id. at 2; see Compl. ¶ 11.) RFR notified individuals that, by signing the petition, they 

The public record regarding RFR’s advisory opinion request is available at 

https://www.fec.gov/data/legal/advisory-opinions/2022-12/. 

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agreed to have their names and contact information provided to Governor DeSantis. (A.O. 

Request at 2-3.) 

RFR proposed to provide this information — including each signatory’s name and 

email address, in addition to any other contact information the signatory provides — to Governor 

DeSantis without charge. (A.O. Request at 4.) RFR projected that it “will likely amass well 

over a million virtual signatures for its petition, along with accompanying [contact information], 

by the end of 2022,” and that its petition would likely eventually include contact information of 

“millions” of signatories. (Id. at 4.) As of RFR’s supplemental submission to the request on 

September 14, 2022, RFR had collected approximately 43,750 signatures and anticipated having 

over 60,000 by the end of that month; moreover, RFR planned to submit “regular updates” to 

Governor DeSantis through the 2024 election. (See Compl. Exh. 11, Advisory Op. 2022-12 

(Ready for Ron) (“Advisory Opinion” or “A.O.”) at 3 n.8.) RFR estimated the value of each 

signatory’s contact information to be five cents, based on a “reasonable sample market value of 

contact information in political distribution lists,” and stated that the market value of the 

information it planned to provide to Governor DeSantis would exceed $2,900.6 (Id. at 3.) 

RFR presented two questions to the Commission. First, whether RFR could provide its 

petition, along with the accompanying list of signatories and their contact information, to 

Governor DeSantis to attempt to persuade him to become a candidate for the Republican 

nomination for president in 2024. (A.O. Request at 4.) Second, assuming yes, whether RFR was 

RFR bases this estimated value on the following information. First, in support of its 

petition efforts, RFR purchased a distribution list of registered Republicans who contributed to 

Republican candidates, but not to President Trump or the Save America PAC. RFR represents 

that the price it paid to purchase this list with contact information was five cents per name and 

that it paid more than $2,900 to purchase the list. RFR also bases its estimate on consultations 

“with commercial data vendors experienced in political marketing.” (Compl. Exh. 11 at 3 n.12.) 

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required to do so before Governor DeSantis either starts testing the waters to become a candidate 

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

(Id. at 4-5.) 

2. Decision 

The Commission voted in a public meeting on two draft advisory opinions, neither of 

which garnered the required four votes for approval.7 The Commissioners then approved by 

notation, or “tally vote,” a draft that reflected the substantial areas of agreement among 

Commissioners.8 The resulting Advisory Opinion 2022-12 concluded that RFR could not 

provide the names and contact information to Governor DeSantis if he either becomes a federal 

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

information would exceed the applicable contribution limits on funds used to test the waters. 

(Advisory Opinion at 1.) The Commission also concluded that the proposal was contrary to 

restrictions on the use of funds in the non-contribution accounts of hybrid committees. Id. 

These conclusions were unanimous among the six FEC Commissioners. (See Compl. Exh. 10.) 

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

contact information in RFR’s petition was a thing of value, similar to a mailing or membership 

list, and the provision of the contact information to Governor DeSantis would therefore 

constitute an in-kind contribution to Governor DeSantis. (Advisory Opinion at 5.) Second, 

RFR’s proposal — which RFR estimated would cost it $25,000 to $50,000 per week over a 

7 See Draft AO 2022-12 (Ready for Ron) Draft A (Aug. 2, 2022) 

https://www.fec.gov/files/legal/aos/2022-12/202212.pdf (“Draft A”); Draft AO 2022-12 (Ready 

for Ron) Draft B (Aug. 2, 2022) https://www.fec.gov/files/legal/aos/2022-12/202212_1.pdf 

(“Draft B”); Amended Cert., In re: Ready for Ron, AO 2022-12 (certifying Sept. 15, 2022 votes 

on Sept. 19, 2022) https://www.fec.gov/files/legal/aos/2022-12/202212V_2.pdf. 

8 Cert., In re: Ready for Ron, AO 2022-12 (Sept. 28, 2022) 

https://www.fec.gov/files/legal/aos/2022-12/202212V_3.pdf. 

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period of more than two years and would result in a list with a commercial value in excess of 

$2,900 — would result in an excessive contribution to Governor DeSantis if provided to him 

without charge after he becomes a federal candidate. (Id. at 6.) Third, the proposal to provide 

the signatories’ contact information to Governor DeSantis after he begins testing the waters for a 

federal candidacy, should he choose to do so, would be contrary to the Commission’s regulation 

at 11 C.F.R. § 100.72. (Id. at 7.) Fourth, the proposal to provide the contact information in the 

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

with restrictions on a hybrid PAC’s use of its non-contribution account to make contributions to 

federal candidates. (Id. at 9.) 

As to whether RFR could provide the contact information from its petition without 

charge to Governor DeSantis in advance of any indication that Governor DeSantis was testing 

the waters, one draft that garnered the approval of three Commissioners concluded for the same 

reasons as explained above that the provision of the petition with contact information would be 

subject to the testing the waters regulation at any point in advance of a declaration of candidacy. 

(Draft A at 9-15.) Another draft opinion supported by two Commissioners concluded that 

neither FECA nor Commission regulations governed the donation of things of value to 

individuals who are neither federal candidates nor testing the waters. (Draft B at 15.) The 

Commission notified plaintiff that it could not approve a response to this portion of the advisory 

opinion request by the required four votes. (Advisory Opinion at 1.) 

C. Plaintiff’s Complaint and Preliminary Injunction Motion 

Nearly one month after receiving its Advisory Opinion, on October 27, 2022, RFR filed a 

complaint against the Commission seeking preliminary and permanent injunctions prohibiting 

the Commission from applying the “testing of waters” statute or regulations to RFR’s provision 

of the petition and signatories’ contact information to Governor DeSantis; a declaratory 

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judgment holding that 52 U.S.C. § 30116(a) and implementing regulations at 11 C.F.R. 

§ 110.1(b) and (d) are unconstitutional as applied to the provision of a signed draft petition and 

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

declaration that section 30116 does not limit transfers to a person who is not a candidate, and that 

52 U.S.C. § 30116(a)(8) allows RFR to act as a conduit to pass signatures and contact 

information from a petition’s signatories to the recipient; a declaration that 11 C.F.R. § 100.72 

(the “testing the waters” regulation) is void and unenforceable; and a request to the Court to 

vacate A.O. 2022-12. (Compl. Prayer for Relief ¶¶ 1-3.) 

Plaintiff’s complaint includes six causes of action: Count I (First Amendment); Count II 

(Challenge to FECs Refusal to Issue Requested Advisory Opinion under the APA); Count III 

(Declaratory Judgment under 28 U.S.C. § 2201); Count IV (Equality Claim for Injunctive 

Relief); Count V (52 U.S.C. § 30116(a)(1)(A), (a)(8)); and Count VI (Challenge to FEC’s 

“Testing the Waters” Regulation under the APA, 5 U.S.C. § 702). (Compl. ¶¶ 93-131.) 

Nearly two months after filing its complaint, and nearly three months after receiving its 

Advisory Opinion, RFR filed a motion for a preliminary injunction with respect to all its claims, 

accompanied by a memorandum of law in support. (Pl.’s Memo. of Law in Supp. of Pl.’s Mem. 

For Prelim. Inj. (Docket No. 8-1) (filed Dec. 21, 2022) (“Motion” or “Mem.”).) 

ARGUMENT 

I. PLAINTIFF CARRIES A SIGNIFICANT BURDEN TO QUALIFY FOR THE 

EXTRAORDINARY REMEDY OF A PRELIMINARY INJUNCTION 

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief. . . . [It is] never awarded as of right.” 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008) (citations omitted). A plaintiff 

seeking a preliminary injunction must establish that (1) “he is likely to succeed on the merits,” 

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(2) “he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance 

of equities tips in his favor,” and (4) “an injunction is in the public interest.” Id. at 20. 

The D.C. Circuit “has suggested, without deciding, that Winter should be read to abandon 

[any] sliding-scale analysis in favor of a ‘more demanding burden’ requiring Plaintiffs to 

independently demonstrate both a likelihood of success on the merits and irreparable harm.” 

Smith v. Henderson, 944 F. Supp. 2d 89, 95-96 (D.D.C. 2013) (quoting Sherley v. Sebelius, 644 

F.3d 388, 392-93 (D.C. Cir. 2011)). The D.C. Circuit recently declined to resolve this 

“tension[,]” while at the same time noting that “even under the sliding-scale approach, the 

movant must raise at least a ‘serious legal question on the merits.’” Changji Esquel Textile Co. 

v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022) (quoting Sherley, 644 F.3d at 398); see also 

Brown v. FEC, 386 F. Supp. 3d 16, 24 (D.D.C. 2019) (“[W]ithout a likelihood of success on the 

merits, [p]laintiffs are not entitled to a preliminary injunction regardless of their showing on the 

other factors.”) (emphasis added) (citation omitted). 

Plaintiff cannot avoid bearing this heavy burden merely because it alleges that its 

proposed contribution is of a unique character that puts it beyond the well-established authority 

of the Commission to limit in-kind contributions to prospective candidates. (Mem. at 43-44.) 

Plaintiff is highly unlikely to overturn the longstanding limitations and prohibitions on 

contributions to such individuals, and thus cannot meet its burden to demonstrate it is “likely to 

succeed on the merits” here. Winter, 555 U.S. at 22. 

II. RFR IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS FIRST 

AMENDMENT CLAIM 

RFR challenges the application of FECA’s contribution limits to restrict its ability to 

provide a petition, with a mailing list including the contact information of thousands of potential 

supporters, to Governor DeSantis for no charge because “FECA’s contribution limits are 

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unconstitutional as applied to pure political speech like a signed petition.” (Mem. at 6.) RFR is 

incorrect. RFR’s “petition,” like many political contributions, doubtless includes a significant 

element of expressive activity. This does not change the fact that RFR seeks to provide 

Governor DeSantis with a mailing list including the contact information for the Governor’s 

supporters. Under well-established agency and judicial precedent, the mailing list is a thing of 

substantial value to a political campaign, and may be limited in accordance with FECA. 

A. Application of a Contribution Limit to RFR’s Proposed Conduct is Subject 

to Intermediate Scrutiny, not Strict Scrutiny 

Contribution limits, which limit transfers of funds or things of value to prospective or 

actual candidates for federal office, are governed by intermediate scrutiny. In contrast to limits 

on expenditures, limits on contributions are subject to a “lesser but still ‘rigorous standard of 

review.’” McCutcheon v. FEC, 572 U.S. 185, 197 (2014) (plurality op.) (quoting Buckley, 424 

U.S. at 29). “Under that standard, even a significant interference with protected rights of 

political association may be sustained if the State demonstrates a sufficiently important interest 

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

Id. (cleaned up). 

Despite the Supreme Court’s longstanding application of intermediate scrutiny to 

contribution limits, RFR suggests that any limit on its proposed conduct must be a direct limit on 

speech subject to strict scrutiny. (See Mem. at 9 (“[T]he FECA’s contribution limits should be 

subject to strict scrutiny insofar as they apply to RFR’s petition . . . .”).) But the fact that RFR 

has appended a political message to its mailing list does not require application of strict scrutiny. 

Courts have long recognized that all contribution limitations implicate both speech and 

associational rights. See, e.g., Libertarian Nat’l Comm. v. FEC, 924 F.3d 533, 540 (D.C. Cir. 

2019) (en banc) (“The contribution ‘serves as a general expression of support for the candidate 

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and his views’ and ‘serves to affiliate a person with a candidate.’”) (quoting McCutcheon, 572 

U.S. at 203). 

RFR cannot alter the constitutional test this Court should apply by appending a political 

message to an in-kind contribution. Here RFR fails to separate the communicative message of 

the “petition” from the value of RFR’s efforts to compile an extensive mailing list of DeSantis 

supporters. The fact that RFR includes a political message (a desire for Governor DeSantis to 

run for president) with its contribution (a mailing list) is neither novel nor extraordinary. The 

Court “has announced a single unified test that applies an intermediate level of scrutiny to 

contribution limits” precisely to protect the “heterogeneous First Amendment interests in making 

political donations,” and RFR has failed to show that its own rights are categorically different, 

such that this Court should immunize its donation from FECA’s limitations on the basis of its 

presumably sincere desire to see Governor DeSantis declare his candidacy. Libertarian Nat’l 

Comm., 924 F.3d at 541 (citing Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 388 (2000)). 

Indeed, the Supreme Court rejected an argument similar to plaintiff’s in McConnell v. FEC by 

applying intermediate scrutiny to a provision that restricted the ability of federal candidates and 

national party committees to solicit soft money. 540 U.S. 93, 140 (2003) (“The fact that . . . 

federal candidates . . . must now ask only for limited dollar amounts . . . in no way alters or 

impairs the political message ‘intertwined’ with the solicitation.”) (citation omitted). 

B. Applying FECA’s Contribution Limits to Prevent the Transfer of RFR’s 

Mailing List at no Charge Satisfies Intermediate Scrutiny 

1. The Government has a Sufficiently Important, Indeed Compelling, 

Interest in Preventing Quid Pro Quo Corruption and its Appearance 

The “Government’s interest in preventing quid pro quo corruption or its appearance” is 

“sufficiently important” to meet intermediate scrutiny, and “may properly be labeled 

‘compelling,’ ... so that the interest would satisfy even strict scrutiny.” McCutcheon, 572 U.S. at 

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199 (citations omitted). The state’s interest in preventing quid pro quo corruption extends 

beyond limiting monetary contributions to cover in-kind contributions. See Buckley, 424 U.S. at 

26-27; id. at 36-37. As the Supreme Court has concluded, the “provision of in-kind assistance” 

to a candidate or his campaign “provides material financial assistance to a candidate[,]” and may 

thus be limited in the same manner as a contribution. Id. at 36. “The ultimate effect is the same 

as if the person had contributed the dollar amount to the candidate and the candidate had then 

used the contribution to pay for the” contributed goods. Id. at 36-37. “Treating these expenses 

as contributions when made to the candidate’s campaign or at the direction of the candidate or 

his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by 

citizens independently of a candidate’s campaign.” Id. at 37 (footnotes omitted). 

2. Application of FECA’s Contribution Limits to RFR’s Proposed 

Conduct is Closely Drawn to the Government’s Interest 

In order to be closely drawn to the important interest, a contribution limit must have a “fit 

that is not necessarily perfect, but reasonable; that represents not necessarily the single best 

disposition but one whose scope is in proportion to the interest served, that employs not 

necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired 

objective.” McCutcheon, 572 U.S. at 218 (citation omitted). Here, limiting the contribution of a 

mailing list appended to a political petition restricts only one narrow proposed course of conduct 

that is close in kind to a transfer of money: spending hundreds of thousands of dollars to compile 

valuable information about over 100,000 supporters, and then providing it free of charge to a 

candidate. (Mem. at 3-5.) Those expenses would otherwise have to be borne by a future 

DeSantis campaign using funds subject to FECA’s limitations. As Buckley recognized, 

absolving a campaign from incurring those costs provides “material financial assistance” and 

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thus creates the risk that they could be used as an avenue for quid pro quo corruption. 424 U.S. 

at 36-37. 

Substantial precedent has recognized the potential value — and therefore corruptive 

potential — of providing mailing lists to a political campaign. For example, the D.C. Circuit has 

recognized that a political committee’s list of persons sympathetic to its cause is among “its most 

valuable assets.” Int’l Funding Inst., 969 F.2d at 1116; see also Notice of Proposed Rulemaking, 

Mailing Lists of Political Committees, 68 Fed. Reg. 52,531, 51,531 (Sept. 4, 2003) (“One of the 

principal assets of many political committees is their mailing list.”). In Christian Coalition, a 

court in this district concluded that a political group’s expenditure of resources to compile a list 

of potential supporters from publicly available sources for an identified candidate, cross-checked 

against their own information, “created value that was passed on to the” campaign. 52 F. Supp. 

2d at 96. The record in that case demonstrated “that mailing lists have commercial value and are 

routinely rented for fundraising or other solicitation purposes.” Id.; see also FEC Advisory Op. 

2014-06, 2014 WL 3748239, at *7 (noting that political committee mailing and email lists are 

“frequently sold, rented, or exchanged in a market”). Applying contribution limits to transfers of 

those lists advances the same interests as limits on transfers of monetary contributions. 

The facts as provided by RFR illustrate that the value of the so-called signatory 

information RFR proposes to give to Governor DeSantis at no charge is far from trivial. RFR “is 

currently spending “$100,000-$200,000 per month” compiling its list, including through general 

public advertising and purchasing mailing lists from other entities. (Mem. at 4.) The 

expenditure of such substantial sums to compile a list is clear evidence of its value. See 

Christian Coal., 52 F. Supp. 2d at 96. RFR’s mailing list is all the more valuable because it is 

comprised of individuals that explicitly support Governor DeSantis. Compare id. at 77 (noting 

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that a mailing list would be “valuable” to the campaign “because those on the list were highly 

likely to share the Coalition’s views on a number of issues”) with Advisory Opinion at 7 (“The 

contact information in R4R’s petition would be of significant value . . . because it exclusively 

includes persons who are advocating in favor of Governor DeSantis running for President.”). It 

therefore minimizes the time and effort a DeSantis campaign would need to expend to identify 

and contact voters who support him, reducing an expense he would otherwise incur and creating 

the potential that such a transfer could be part of a corrupt bargain. And contrary to RFR’s 

argument, the fact that it proposes to transfer a curated list of DeSantis supporters rather than 

“barren aggregations of information” (Mem. at 17-18) makes the list more valuable, not less. 

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

The Commission’s application of contribution limits to RFR’s mailing list is also 

proportionate to the government’s interest. RFR is currently spending hundreds of thousands of 

dollars a month to compile a list of valuable contact information and seeks to provide that list to 

a well-known potential candidate at no charge. Its inability to do so imposes at most a marginal 

burden on RFR’s associational freedoms, and leaves open multiple avenues for RFR to engage in 

free communication and advocacy. That is so because the contribution limit applies only to 

restrict the private transfer of the mailing list with contact information, not the petition to which 

it is attached. RFR and others remain free to “discuss candidates and issues,” collectively or 

individually, anonymously or with their names attached. Buckley, 424 U.S. at 21. For instance, 

nothing in the FEC’s Advisory Opinion would prevent any citizen from, inter alia: 

• writing a letter to DeSantis to encourage him to run for president; 

• giving speeches or otherwise encouraging fellow citizens to support DeSantis’s 

prospective candidacy; 

• banding together with other citizens to run print, television, or internet advertisements 

encouraging DeSantis to run for federal office; or 

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• publishing a list of Ready for Ron signatories. 

RFR’s assertion that application of the contribution limit to its proposed course of conduct bars 

“pure political speech and expressive association” is therefore incorrect. (Mem. at 9.) 

Rather than simply avail itself of these open avenues for political expression, RFR 

insists that the inclusion of its signers’ contact information (which makes the list a clear thing of 

value) is somehow an essential part of the underlying political message, and hence RFR has a 

First Amendment right to provide this contact information free of charge. (Mem. at 9.) 

However, RFR’s proffered justifications are irrelevant to its claims, and are not supported by its 

cited authorities. (Id.) For instance, McIntyre v. Ohio Elections Commission, 514 U.S. 334 

(1995), in fact stands for the right of speakers to remain anonymous. Indeed, the Court in that 

case went out of its way to distinguish “the kind of independent activity pursued by [plaintiff]” 

from “the ‘prophylactic effect’ of disclosure requirements” concerning “contributions to the 

candidate[.]” Id. at 354. RFR’s remaining authorities merely state that the circulation of a 

petition is expressive political activity (a point the Commission does not dispute), but say 

nothing in regards to either signatory contact information or contributions to political candidates. 

(Mem. at 9 (citing Meyer v. Grant, 486 U.S. 414, 421 (1988); Doe v. Reed, 561 U.S. 186, 232 

(2010) (Thomas, J., dissenting)).) 

RFR further offers that “[p]roviding signatories’ contact information also helps 

establish the authenticity of the signatures and allows Governor DeSantis to confirm they are not 

fraudulent.” (Mem. at 9.) However, RFR states earlier that to virtually sign its petition, the only 

required information is “their name and e-mail address.” (Mem. at 3.) This undercuts the 

assertion that RFR desires to include signatory information for verifying that the signer is an 

actual person. Email addresses are easy to create and do little to confirm the signer is not 

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fraudulent,9 but are tremendously valuable as a fundraising tool. And RFR does not suggest that 

there are no alternatives available for verifying signature authenticity. 

RFR’s theory, if taken to its logical conclusion, would entirely upend limits on in-kind 

contributions. Under RFR’s approach, for example, an outside group could prepare a 30 second 

video lauding a candidate’s qualities at great expense, and then claim a constitutional right to 

provide this video to the candidate free of charge because making a video is protected First 

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

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

be required to define. Such a regime would plainly undermine the government’s interest in 

preventing corruption and in predictable enforcement of the anticorruption law. Avoiding such 

complications is precisely why “the Court has announced a single unified test” to evaluate 

“contributors’ heterogeneous First Amendment interests in making political donations,” 

according to which the Commission has clearly operated within the bounds of the First 

Amendment. Libertarian Nat’l Comm., 924 F.3d at 541. 

III. RFR IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT THE COMMISSION 

UNREASONABLY CONSTRUED FECA TO PROHIBIT TRANSFER OF THE 

MAILING LIST RFR COMPILED AFTER DESANTIS BECOMES A 

CANDIDATE OR WHILE HE IS TESTING THE WATERS 

Separate from its constitutional claim, RFR’s Motion argues that FECA’s text cannot be 

read to cover its proposed activity. But its Motion does not clearly explain which cause of action 

is likely to succeed on the basis of this argument. Nor does it explain what standard of review 

See, e.g., Prechtel v. Fed. Commc’ns Comm’n, 330 F. Supp. 3d 320, 331 (D.D.C. 2018) 

(noting that “[o]utside groups have examined” the email addresses of over twenty million 

commenters on an FCC rulemaking, and “highlighted the extent to which public comments were 

associated with clearly fraudulent or otherwise dubious email addresses”) (citing Pew Research 

Ctr., Public Comments to the Federal Communications Commission About Net Neutrality 

Contain Many Inaccuracies and Duplicates (2017), https://perma.cc/B9SZ-JUWC). 

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would apply. Indeed, its Memorandum does not cite or reference the APA, nor does RFR refer 

the Court to any relevant judicial authorities. RFR makes two references to the “arbitrary, 

capricious,” and “contrary to law” standard, (Mem. at 34, 41,) and references the complaint’s 

APA counts in its request for an injunction. (Mem. at 44.) 

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

Procedure Act for the Commission’s refusal to issue the requested advisory opinion (Count II) 

and to its testing the waters regulation (Count VI). It also purports to assert a direct cause of 

action under FECA, 52 U.S.C. § 30116(a)(1)(A), (a)(8) (Count V), the Declaratory Judgment 

Act, 28 U.S.C. § 2201 (Count III), and a claim for equitable relief (Count IV). But the 

Commission’s advisory opinion here meets APA review, and FECA, the Declaratory Judgment 

Act, and general equitable principles provide no independent cause of action for review. 

A. The Administrative Procedure Act Establishes a Deferential Standard for 

Review of Agency Action 

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

deferential” and “presume[s] the validity of agency action.” Am. Horse Prot. Ass’n v. Yeutter, 

917 F.2d 594, 596 (D.C. Cir. 1990). As the D.C. Circuit has explained, the standard for 

determining whether a Commission determination “was arbitrary or capricious or otherwise an 

abuse of discretion” entails a “very deferential scope of review that forbids a court from 

substitut[ing] its judgment for that of the agency.” Van Hollen v. FEC, 811 F.3d 486, 495 (D.C. 

Cir. 2016) (internal quotation marks omitted)). To meet that standard, plaintiffs must show that 

“the agency . . . entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

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

expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

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U.S. 29, 43 (1983). “[T]he party challenging an agency’s action as arbitrary and capricious bears 

the burden of proof.” San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 37 (D.C. Cir. 

1986) (en banc). 

B. Agency Deference Under the Supreme Court’s Chevron and Kisor 

Framework 

RFR’s challenge implicates both the Commission’s interpretation of FECA’s contribution 

limits to apply to mailing lists and its interpretation of agency regulations to govern RFR’s 

proposed course of conduct. The Commission is entitled to deference on both counts. 

Agency interpretations of statutory authority are evaluated under the framework 

established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 842 (1984). The first step of the Chevron analysis is for court must 

determine “whether Congress has directly spoken to the precise question at issue[,]” and if so 

“the court, as well as the agency, must give effect to the unambiguously expressed intent of 

Congress.” Id. at 842–43. 

If the statute is either silent or ambiguous, the second step is for the court to determine 

whether the interpretation proffered by the agency is “based on a permissible construction of the 

statute.” Id. at 843. Here the court accords “considerable weight” to an agency’s construction of 

a statutory scheme it has been “entrusted to administer,” id. at 844, provided the agency’s 

reading falls “within the bounds of reasonable interpretation.” Arlington v. Fed. Commc’ns 

Comm’n, 569 U.S. 290, 296 (2013). When Congress leaves a particular statutory term 

ambiguous or undefined, this is, “in Chevron terms, ‘an implicit delegation from Congress to the 

agency to fill in the statutory gaps.’” Van Hollen v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) 

(quoting F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). Under this 

standard, the courts have deferred to the FEC’s interpretation of FECA. See Van Hollen, 811 

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F.3d at 495 (disclosure regulation); United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. 

Cir. 1999) (soft money reporting regulation) (“[T]he FEC’s express authorization to elucidate 

statutory policy in administering FECA ‘implies that Congress intended the FEC ... to resolve 

any ambiguities in statutory language. For these reasons, the FEC’s interpretation of the Act 

should be accorded considerable deference.’”) (citation omitted); FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981) (delegation of spending authority) (“[T]he 

Commission is precisely the type of agency to which deference should presumptively be 

afforded.”). 

The Supreme Court has clarified that an agency’s interpretation of its own regulations is 

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

its substantive expertise,” and reflects “fair and considered judgment[.]” Kisor v. Wilkie, 139 S. 

Ct. 2400, 2416–18 (2019); see Nat’l Lifeline Ass’n v. Fed. Commc’ns Comm’n, 983 F.3d 498, 

507 (D.C. Cir. 2020). Where these “three guiding principles” weigh in favor of the agency’s 

regulation, the agency’s interpretation will prevail. See Doe v. Sec. & Exch. Comm’n, 28 F.4th 

1306, 1313-16 (D.C. Cir. 2022). 

Courts have previously applied Chevron deference to the agency’s advisory opinions, 

relying on the fact that FECA “establishes a detailed framework for issuing” such opinions, that 

in doing so the Commission “fulfills its statutorily granted responsibility to interpret the Act[,]” 

and that they “have binding legal effect on the Commission” by creating a “safe harbor” for 

parties who rely on an adopted advisory opinion. FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 

185-86 (D.C. Cir. 2001) (repayment of segregated funds); see Weber v. Heaney, 793 F. Supp. 

1438, 1455 (D. Minn. 1992) (preemption of state law); see also Util. Workers Union of Am., Loc. 

369 v. FEC, 691 F. Supp. 2d 101, 108 n.10 (D.D.C. 2010) (Because FEC “advisory opinions are 

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due Chevron deference, . . . it is perfectly appropriate for the FEC to cite and rely on them in its 

adjudications.”). 

C. The Commission Reasonably Concluded that RFR Could Not Transfer a List 

of Potential Supporters to Governor DeSantis after he Begins Testing the 

Waters or Becomes a Candidate 

The Commission considered RFR’s advisory opinion request in accordance with its 

statutory authority, and its regulations promulgated for the handling of such requests. See supra 

pp. 8-10. The Advisory Opinion interpreted the facts as presented by RFR as applied to FECA 

and the Commission’s regulations and reached a unanimous decision on two of the three 

questions RFR posed. Supra pp. 10-12. The opinion warrants deference from this Court. 

1. The Commission Advisory Opinion is a Reasonable Interpretation of 

an Ambiguous Statute 

FECA prohibits any person, including political committees like RFR, from making a 

contribution in excess of a dollar limit. 52 U.S.C. § 30116(a)(1); see id. § 30101(11). The term 

“contribution” includes “anything of value made by any person for the purpose of influencing 

any election for Federal office[.]” Id. § 30101(8)(A)(i). Standing alone, that definition does not 

clarify whether every arguable potential transaction is deemed a contribution. See Buckley, 424 

U.S. at 23 n.24. The Commission has, therefore, filled the interpretive gap by promulgating 

additional rules to give content to the statutory phrase. See 11 C.F.R. §§ 100.51-100.94. 

Advisory Opinion 2022-12 concluded that the portion of RFR’s proposed petition that 

contained contact information is effectively a mailing list, and therefore a “thing of value” 

subject to contribution limits under FECA. See A.O. at 6 (“[I]t is well established under the 

Commission’s regulation that ‘mailing lists’ or ‘membership lists’ compiled by political 

committees are an in-kind contribution under the Act if provided at less than the ‘usual and 

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normal charge.’”). This conclusion was reasonable, and consistent with Commission and 

judicial precedent. 

The Commission has a well-established history of treating a mailing list as a thing of 

value to a candidate or campaign. 11 C.F.R. § 100.52(d)(1) (defining the provision of 

“membership lists” and “mailing lists” “without charge” as a contribution); see FEC, Factual & 

Legal Analysis, MUR 7207 (Taub) (June 11, 2021) at 8, 

https://www.fec.gov/files/legal/murs/7207/7207_24.pdf (noting that “[t]he Commission has long 

recognized that mailing lists are assets that have value” and concluding that a list of donors was a 

thing of value within that precedent) (cleaned up); FEC Advisory Op. 2014-06, 2014 WL 

3748239, at *8.10 

RFR does not appear to contend that Congress has “directly spoken on the precise 

question” of FECA’s application to the contact information it proposes to transfer. Chevron, 467 

U.S. at 842-43. Rather, RFR appears to argue at step two of Chevron that the agency’s 

construction of FECA to subject this information to contribution limits is unreasonable. But 

RFR’s arguments in support of that position all rely on its mistaken characterization of its plan as 

sending a “political petition” and not a “mailing list.” (E.g., Mem. at 10-18.) The Commission’s 

Advisory Opinion did not purport to regulate any political message RFR wished to convey in its 

petition. (See A.O. at 4-7.) Rather, the Commission confirmed that RFR could not “provide 

Governor DeSantis with the list of names and contact information from its petition,” not that it 

could not send the petition itself. (Id. at 4 (emphasis added).) The Commission’s Advisory 

Opinion thus analyzed RFR’s proposed course of conduct only to the extent it proposed to 

See also FEC Advisory Op. 2014-09, 2014 WL 4105867 (REED Marketing), at *3 n.6; 

FEC Advisory Op. 2011-02, 2011 WL 7629547, at *5; FEC Advisory Op. 2002-14, 2003 WL 

715988, at *2-4; FEC Advisory Op. 1982-41, 1982 WL 993349 (Dellums), at *1. 

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convey information closely associated with a mailing list, and its conclusions flow naturally from 

FECA and prior Commission precedent concluding such types of information are things of value 

that may not be provided free of charge. 

When correctly viewed as a mailing list, which is a “thing of value” to a political 

candidate, RFR’s attempts to rebut the Commission’s analysis fall flat. RFR argues that it would 

be odd to characterize “[p]ure political speech” as a “gift” subject to the contribution limit 

because the term “gift” must connote a financial aspect in FECA. (Mem. at 11-13.) As the 

Commission recognized, however, the signatory information RFR proposes to transfer is akin to 

“political committee mailing and email lists,” which “have commercial value and are frequently 

sold, rented, or exchanged in a market” and therefore certainly have a financial aspect that may 

be gifted to a candidate. (A.O. at 5 (cleaned up).) Similarly, RFR’s argument that a political 

petition is not a “thing of value” because “petitions ... are customarily provided to [public 

figures] free of charge[,]” (Mem. at 14,) fails because the A.O. did not assert jurisdiction over the 

petition portion of RFR’s conduct, only the portion that transfers valuable contact information. 

RFR’s own conduct in obtaining signatures to its petition demonstrates that aggregated 

contact information of potential supporters is a thing of value subject to FECA’s contribution 

limits. In its advisory opinion request RFR explained that it intended to “‘rent access to 

distribution lists from commercial vendors to send e-mails and text messages to potential 

DeSantis supporters’ and that it [had] already paid more [than] $2900 for a contact list of persons 

who it believes are likely sympathetic to its cause.” (A.O. at 5 (quoting A.O. Request at 2, 18).) 

RFR then undertook great expense to contact persons on that list to identify those who actually 

supported a potential Governor DeSantis presidential candidacy. (Id.) That this type of 

information is available for rent or purchase on an open market only bolsters the Commission’s 

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conclusion that aggregated lists of potential supporters is a thing of value subject to contribution 

limits under FECA. 

2. The Commission’s Conclusion that the Signatory Information Falls 

Within The Commission’s Regulations Governing Mailing Lists is 

Entitled to Deference 

To the extent that there remains any ambiguity about whether the contributor information 

RFR seeks to give to Governor DeSantis at no charge falls within the scope of a regulable 

“mailing list” under Commission regulations, this Court should defer to the Commission’s 

conclusion. (See A.O. 5-6 (citing 11 C.F.R. § 100.52(d)).) An agency’s interpretation of its own 

regulations is entitled to deference where it is the agency’s “authoritative” or “official position,” 

“implicate[s] its substantive expertise,” and reflects “fair and considered judgment[.]” Kisor, 

139 S. Ct. at 2416-18. The Commission’s Advisory Opinion easily meets these criteria. 

First, the Advisory Opinion is the Commission’s “authoritative” or “official position.” 

Kisor, 139 S. Ct. at 2416. The Advisory Opinion was formulated following the prescribed 

statutory process, and as a result may be relied upon by not only the party requesting the 

advisory opinion but any party in a materially indistinguishable transaction or activity. 52 

U.S.C. § 30108(c) (binding effect of advisory opinions). “Federal Election Commission 

advisory opinions are binding in the sense that they may be relied upon affirmatively by any 

person involved in the specific transaction or activity discussed in the opinion or in any 

materially indistinguishable transaction or activity.” Weber, 793 F. Supp. at 1454; see also 

Unity08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010) (treating the issuance of an FEC advisory 

opinion as the agency’s “final legal position” on the matter). 

Second, the Advisory Opinion also “implicate[s] [the Commission’s] substantive 

expertise.” Kisor, 139 S. Ct. at 2417. The Advisory Opinion relied on the Commission’s 

understanding of political campaign operations and its understanding of markets for information 

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about potential contributors. It also reflects the Commission’s FECA “implementation choices, 

which call on the FEC’s special regulatory expertise,” and “were the types of judgments that 

Congress committed to the sound discretion of the agency.” Citizens for Responsibility & Ethics 

in Wash. v. FEC, 209 F. Supp. 3d 77, 86 (D.D.C. 2016); see Democratic Senatorial Campaign 

Comm., 454 U.S. at 37 (“[T]he Commission is precisely the type of agency to which deference 

should presumptively be afforded.”). 

Third, the Advisory Opinion reflects the Commission’s “fair and considered judgment.” 

Kisor, 139 S. Ct. at 2417. “FEC advisory opinions not only reflect the Commission’s considered 

judgment made pursuant to congressionally delegated lawmaking power, but also have binding 

legal effect.” Nat’l Rifle Ass’n of Am., 254 F.3d at 186. The Advisory Opinion was the 

culmination of a statutorily mandated process by which the Commission receives comments 

from a requestor and other interested parties, both in writing and at an open hearing. See supra 

pp. 8-12. 

Because the Commission’s Advisory Opinion here meets all required elements, this Court 

should defer to its reasonable interpretation of its regulation to prevent RFR from transferring a 

list of supporters’ contact information to Governor DeSantis free of charge should he test the 

waters or become a candidate. 

3. The Commission Reasonably Determined that RFR is Not Serving as 

a “Conduit” for the Contributions of Others 

RFR further argues that, “[e]ven if the signatory information contained within RFR’s 

petition is properly deemed to be a “contribution” to Governor DeSantis, the source of that 

contribution is the signatories themselves,” therefore “RFR is merely a conduit passing along a 

message and contact information from each signatory, at the signatory’s request, to Governor 

DeSantis.” (Mem. at 18.) This is incorrect. 

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Under 52 U.S.C. § 30116(a)(8), “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.” The individual signatories to 

RFR’s petition are not “conduit contributions” because RFR has a far more active role than a 

mere conduit, and the thing being regulated (the compiled signatory information) has value as a 

result of the resources invested by RFR itself. RFR “is currently spending between $100,000-

$200,000 per month” to compile the information it wishes to transfer, via “advertisements 

through various mediums[.]” (Mem. at 4.) It then compiles this information into a list that 

maximizes its usefulness to Governor DeSantis. (Mem. at 3-4.) It is also increasing the value of 

its efforts by investing labor by providing quotes and interviews to reporters,11 publicizing 

editorials by RFR and financial backers,

12 and promoting a YouTube channel featuring several 

media appearances by RFR officers publicizing its petition efforts.13 

RFR’s activities are categorically different from the role played by ActBlue, with whom 

it compares itself. (Mem. at 21-23.) Unlike RFR, ActBlue is not devoted to individual 

11 Taylor Giorno, Pro-DeSantis Hybrid PAC to File Lawsuit Challenging Unfavorable 

FEC Ruling, Open Secrets (Oct. 3, 2022 4:56 PM), 

https://www.opensecrets.org/news/2022/10/pro-desantis-hybrid-pac-to-file-lawsuit-challengingunfavorable-fec-ruling. 

12 Shaun McCutcheon, If You Want Trump Policies – Support DeSantis, Townhall (Aug. 

25, 2022), https://townhall.com/columnists/shaunmccutcheon/2022/08/25/untitled-n2612216; 

Dan Backer, The People Want DeSantis to Run. The FEC Stands in Their Way, Washington 

Examiner (Dept. 26, 2022 12:00 AM), https://www.washingtonexaminer.com/opinion/opeds/the-people-want-desantis-to-run-the-fec-stands-in-their-way. 

13 Ready for Ron, YouTube (last visited Jan. 28, 2023), 

https://www.youtube.com/@readyforron1630. 

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campaigns, or soliciting money and support for particular organizations or candidates.14 Nor 

does ActBlue invest substantial amounts of its own resources to compile a list of supporters and 

present it to a specific candidate. Furthermore, ActBlue does not spend its own resources to 

publicize its efforts on behalf of a single candidate. Instead, ActBlue processes payments 

initiated by the donor as directed by the donor.15 

The facts here are indistinguishable from those of Christian Coalition, 52 F. Supp. 2d at 

96, which held that providing a list of names to a campaign was subject to contribution limits 

because of the resources expended to compile and curate the list, even assuming the names 

provided were publicly available. So here, RFR’s extensive and well-documented activities to 

compile and curate the mailing list replete with contact information that it plans to forward 

makes it an active contributor, not a mere intermediary. 

4. The Commission Reasonably Determined that RFR May Not Provide 

Its Mailing List if DeSantis is Testing the Waters 

RFR further contends that, even if the Commission permissibly applied FECA’s 

contribution limits to the signatory information appended to its planned petition, the Commission 

nevertheless erred in concluding that those limits apply if Governor DeSantis is testing the 

waters and has not yet become a candidate. (Mem. at 24-37.) The Commission, however, 

properly applied its long-standing regulations governing testing the waters activity, and RFR’s 

other arguments misapply D.C. Circuit precedent. 

14 ActBlue Support, Does ActBlue Promote or Endorse Any Candidates or Groups that 

Use Its Platform?, ActBlue (last visited Jan. 28, 2023), https://support.actblue.com/donors/aboutactblue/does-actblue-promote-or-endorse-any-candidates-or-groups-that-use-its-platform/ 

(“ActBlue does not endorse any candidates, committees, or organizations that use our 

platform. . . . We do not promote any groups using our platform, and we do not send emails or 

texts or fundraise on their behalf.”) 

15 See id. (“Each group raises its own contributions and only uses ActBlue to process and 

receive them.”). 

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a. The Commission’s Testing the Waters Regulations are 

Reasonable and Permissible Interpretations of an 

Ambiguous Statutory Provision 

As relevant here, FECA’s contribution limits apply to “any candidate.” 52 U.S.C. 

§ 30116(a)(1)(A). A person becomes a candidate under FECA either by (a) “seek[ing] 

nomination for election, or election, to Federal office”; or (b) receiving “contributions” or 

making “expenditures” aggregating in excess of $5,000. 52 U.S.C. § 30101(2). Whether a 

receipt or disbursement is a contribution or expenditure depends on whether it is made or 

received “for the purpose of influencing any election for Federal office.” 52 U.S.C. 

§ 30101(8)(A), (9)(A). 

As with other contexts depending on this definition, see supra pp. 25-26, FECA is not 

unambiguous regarding whether receipts or disbursements made to explore one’s candidacy are 

“for the purpose of influencing any election for Federal office,” 52 U.S.C. § 30101(8)(A), (9)(A). 

For example, FECA’s candidacy definition could be read to apply to all individuals who are 

raising or spending to determine whether to run for federal office, because the identity of 

individuals that run for office necessarily “influences” the ultimate election. Under that 

interpretation, any individual that spends $5,000 to determine whether to run for office has 

become a candidate subject to the full range of FECA’s disclosure requirements and contribution 

limitations. 52 U.S.C. § 30101(2). 

Rather than interpreting FECA so as to maximize its statutory authority, however, the 

Commission has since the early years of its inception opted for a middle-ground interpretation, 

and concluded that funds raised and spent solely to determine whether to become a candidate are 

not contributions or expenditures counting toward the candidacy definition, but must be raised 

and spent subject to FECA’s limits and reported if the person subsequently becomes a candidate. 

See 11 C.F.R. §§ 100.72(a), 100.131; see also Federal Election Regulations, H.R. Doc. No. 95-

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44, 40 (1977), available at https://www.fec.gov/resources/cms-content/documents/95-44.pdf 

(explaining testing the waters exception from definition of “contribution”); Payments Received 

for Testing the Waters Activities, 50 Fed. Reg. 9992, 9993 (Mar. 13, 1985) (explaining 

amendments to longstanding testing the waters regulation). 

The Commission promulgated these “limited exceptions” in order “to permit individuals 

to conduct certain activities while deciding whether to become a candidate for Federal office, 

without making their activities immediately public.” Payments Received for Testing the Waters 

Activities, 50 Fed. Reg. at 9993. At the same time, however, the Commission recognized that 

fully exempting testing the waters activities from FECA’s contribution limits created the 

potential for “circumvention of the prohibitions and limitations of” FECA. Id. at 9994. As a 

result, “[o]nly funds permissible under the Act may be used for [testing the waters] activities.” 

Id. 

RFR argues that FECA’s candidacy definition admits to “no statutory ambiguity” that 

requires resolution through a Commission interpretation (Mem. at 34), but it does not seriously 

grapple with the multiple possible constructions of qualifying contributions or expenditures. 

Indeed, the Supreme Court in Buckley noted that the “for the purposes of influencing” language 

that underlies the definition of those terms contained “ambiguity” that required judicial 

construction in the context of FECA’s contribution and disclosure requirements. 424 U.S. at 77; 

see id. at 23 n.24. The testing the waters regulation reflects the Commission’s judgment of how 

to apply that ambiguous phrase to the determination of when FECA’s requirements apply to an 

emerging candidacy. 

RFR would have this Court believe that the Commission’s testing the waters regulations 

impermissibly expand FECA’s reach to cover prospective candidates, when in fact precisely the 

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opposite is true: the regulations reduce the burdens on prospective candidates for federal office, 

who could otherwise be subject to the automatic thresholds triggering “candidate” status under 

FECA. See 52 U.S.C. § 30101(2) (defining “candidate”). RFR’s simplistic formulation that “[a] 

person who is merely ‘testing the waters,’ by definition, is not a candidate” simply ignores 

potential constructions of the language that Congress authored. (Mem. at 34.) 

RFR’s other arguments against the validity of the testing the waters regulation fare no 

better. It downplays the risk of quid pro quo corruption when a person is deciding whether to 

become a candidate and suggests that the regulation is an “impermissible ‘prophylaxis-uponprophylaxis approach.’” (Mem. at 34 (quoting McCutcheon 572 U.S. at 221). Contrary to 

RFR’s argument, however, the early days of an election are “critical” to determining viability for 

office. FEC v. Cruz, 142 S. Ct. 1638, 1651 (2022). The value of early fundraising is of outsized 

importance for prospective candidates because “seed money is associated with later fund-raising 

success even with controls for candidate quality” and other confounding variables. R. Biersack, 

P. Herrnson & C. Wilcox, Seeds for Success: Early Money in Congressional Elections, 18 Leg. 

Studies Q. 535, 548 (1993); see Adam Bonica, Professional Networks, Early Fundraising, and 

Electoral Success, 16 Election L.J. 153, 154 (2017) (“A simple model that assumes that the 

candidate who raises the most money will be victorious correctly predicts the winner in 79 

percent of contested primary elections.”). As the Commission recognized, exempting testing the 

waters activities from contribution limits would therefore create a giant loophole for prospective 

candidates to raise unlimited early amounts in monetary and in-kind contributions outside of the 

basic contribution limits. See Payments Received for Testing the Waters Activities, 50 Fed. Reg. 

at 9994 (resolving “any misconceptions” that the “‘testing the waters’ provisions may be used to 

raise ‘seed money’ for prospective candidates”). 

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RFR also suggests it is unfair to apply the testing the waters regulation because of 

uncertainty about whether any particular person may be testing the waters. (Mem. at 35-36.) 

The cited Commissioner comments merely reflect the uncertainty based on the present record 

whether Governor DeSantis, who was not a party to RFR’s advisory opinion request and is not a 

party here, is currently “determining whether” to “become a candidate” under FEC regulations. 

11 C.F.R. § 100.72(a). But Governor DeSantis surely knows whether he is raising or spending 

money for that purpose. Indeed, enabling individuals to raise funds to assess potential 

candidacies in a nonpublic manner demonstrates that the Commission has ensured its 

construction of FECA was closely drawn.16 Moreover, any excess contributions, whether 

monetary or in-kind, can be promptly refunded or returned. Cf. 11 C.F.R. § 103.3(b)(3) 

(requiring political committee treasurers to refund excessive contributions within sixty days of 

receipt). In practice, therefore, RFR and those individuals subject to the regulation have little 

risk of being caught unawares. 

To the extent the Court finds any ambiguity in FECA’s text, such ambiguity must be 

resolved in favor of the Commission. The Commission is the agency “entrusted to administer” 

FECA, and the regulation implicates the Commission’s substantive expertise in the field of 

campaign finance law. See Chevron, 467 U.S. at 844. The Commission’s interpretation of this 

statute reflects its “implementation choices, which call on the FEC’s special regulatory 

Although to the Commission’s knowledge Governor DeSantis has taken no public 

stance on whether he intends to run for federal office during the 2024 campaign cycle, published 

media reports increasingly suggest that DeSantis may have already begun to test the waters for 

such a candidacy. See, e.g., Hannah Knowles, DeSantis Advisers Prepare for Potential 

Presidential Run, Explore Staff Options, Wash. Post, Jan. 28, 2023, 

https://www.washingtonpost.com/politics/2023/01/28/desantis-2024-campaign-planning/. 

Further proceedings in this case may demonstrate that RFR’s pre-testing the waters claims are 

moot. 

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expertise,” and is among “the types of judgments that Congress committed to the sound 

discretion of the agency.” Citizens for Resp. & Ethics in Wash., 209 F. Supp. 3d at 86. “[T]he 

FEC’s express authorization to elucidate statutory policy in administering FECA ‘implies that 

Congress intended the FEC . . . to resolve any ambiguities in statutory language[,] thus “the 

FEC’s interpretation of the Act should be accorded considerable deference.’” Kanchanalak, 192 

F.3d at 1049. 

RFR’s pleas to apply various canons of construction similarly fall short. (Mem. at 37-

39.) RFR’s discussion of the “constitutional avoidance canon” cites no authority addressing the 

electoral context where the government’s anticorruption interests were at stake, and indeed cites 

authority where the canon was applied to uphold the Secretary of Health and Human Services’ 

regulations. (Mem. at 38 (citing Rust v. Sullivan, 500 U.S. 173, 191 (1991) (holding “that the 

regulations promulgated by the Secretary do not raise the sort of grave and doubtful 

constitutional questions . . . that would lead us to assume Congress did not intend to authorize 

their issuance.”) (citation omitted)).) RFR also invokes the “major questions doctrine,” which 

applies in “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.” W. Va. v. EPA, 142 S. 

Ct. 2587, 2608 (2022) (internal quotations omitted). The application of a contribution limit to a 

proposed course of conduct, however, is precisely the type of authority Congress intended the 

Commission to assert, and in any event applies only to a relatively narrow and esoteric question 

of federal law. Finally, “the rule of lenity” does not compel a court “to reject the FEC’s 

otherwise reasonable interpretation of an ambiguous statutory provision” merely because the 

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“governing statute authorizes criminal enforcement” under some circumstances. Kanchanalak, 

192 F.3d at 1050 n.23 (citation omitted). 

b. Neither Machinsts nor Subsequent Congressional Inaction 

Prevents the Commission from Applying a Contribution Limit to 

In-Kind Donations from RFR 

In spite of this ample textual support and precedent, RFR nevertheless insists that the 

D.C. Circuit’s decision in FEC v. Machinists Non-Partisan Political League places so-called 

draft groups completely outside the Commission’s jurisdiction. (See Mem. 25-28.) But the 

holding of that case was not nearly so broad. Rather, the Machinists court merely concluded that 

“draft” groups fell outside of FECA’s definition of “political committee,” and therefore could not 

be subject to a subpoena as part of an investigation as to whether a draft group received funds in 

excess of the dollar amount limits on contributions to political committees. 655 F.2d 380, 390 

(D.C. Cir. 1981) (describing FEC “complaint alleging that [respondent’s] contributions to 

various ‘draft-Kennedy’ groups in excess of $5,000 violated the contribution limitations of 

FECA”). 

The “sole proffered jurisdictional basis” the FEC asserted for jurisdiction in the matter 

underlying Machinists was the “purely legal claim that ‘draft’ groups are ‘political committees’ 

under FECA.” Id. The D.C. Circuit rejected that as a sufficient basis for a sweeping subpoena to 

an entity who had provided funds to draft groups. Id. at 395-96. But Machinists does not 

suggest that a group engaging in activities to encourage a person to run for office is exempt from 

FECA’s generally applicable limits on making in-kind contributions, nor did it determine how 

FECA’s candidacy definition or contribution limits would apply to a person actively raising and 

spending money to determine whether to become a candidate. Indeed, Machinists explicitly 

distinguished FEC investigations of groups supporting persons who had announced candidacies, 

and noted approval of investigations into whether draft groups were acting on behalf of 

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candidates, which further suggests that the Commission’s determinations as to RFR were not 

within the scope of the opinion. See Machinists, 655 F.2d at 392 (noting that none of the draft 

groups at issue were “promoting a ‘candidate’ for office, as Congress uses that term in FECA” 

and the reduced potential for corruption “where a group’s activities are not related in any way to 

a person who has decided to become a candidate”) (emphasis added); id. at 397 (suggesting the 

permissibility of investigating whether “groups were, or may have been, operating on behalf of 

[the] candidate”); see also id. at 386 n.7 (noting that the case concerned only “the jurisdiction of 

the FEC over the subject matter of contribution limitations to draft groups” and “does not 

concern whether these groups ... are subject to the Commission’s jurisdiction for other 

purposes”) (emphasis added). 

RFR’s reliance on subsequent legislative inaction related to draft groups is similarly 

legally incorrect and factually inapposite. RFR argues that that “Congress has repeatedly 

declined the FEC’s requests to amend FECA’s definition of ‘contribution’ to include 

disbursements made to influence someone to run for federal office” and therefore this Court 

should not read such language into the existing statute. (Mem. at 29.) However, this history 

should play no part in the Court’s decision, because “[a]bsent a clearly expressed legislative 

intention to the contrary, [statutory] language must ordinarily be regarded as conclusive.” 

Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Postenactment legislative history is accorded even less weight. Bostock v. Clayton Cnty., 140 S. Ct. 

1731, 1747 (2020). “[S]peculation 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.” Id. (quoting Pension Benefit Guaranty Corp. v. LTV 

Corp., 496 U.S. 633, 650 (1990)); see PDK Lab’ys Inc. v. U.S. D.E.A., 362 F.3d 786, 794-95 

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(D.C. Cir. 2004) (“In all cases, ‘the views of a subsequent Congress form a hazardous basis for 

inferring the intent of an earlier one,’ . . . and have ‘very little, if any, significance.’” (quoting 

United States v. Price, 361 U.S. 304, 313 (1960); Rainwater v. United States, 356 U.S. 590, 593 

(1958)). 

Reliance on subsequent congressional inaction is particularly problematic here because 

nearly every legislative proposal RFR cites (Mem. 29-32) post-dates the initial adoption of the 

testing the waters regulation, which dates back to 1977. See supra pp. 3-5. The Commission 

submitted the regulation for congressional review. Id.; see 52 U.S.C. § 30111(d) (requiring FEC 

to submit proposed rules to Senate and House of Representatives for disapproval). If anything, 

the lack of congressional action in these circumstances suggests legislative acquiescence to the 

Commission’s interpretation of FECA. 

What is worse, RFR misrepresents the Commission’s proposed legislative changes. The 

recommendations RFR cites reflect the Commission’s recommendation that Congress consider 

limiting contributions to a draft committee, not an admission that in-kind contributions from a 

draft committee to an individual testing the waters are beyond the scope of the statute. See FEC, 

Annual Report 1976, at 74 (“Congress may wish to amend the limitation section to make the 

$1,000 limitation applicable to contributions to political committees whose purpose is to 

influence a clearly identified individual or individuals to become a candidate.”). RFR’s attempts 

to elide this distinction by de-emphasizing the recipient of the disbursement in the proposed 

legislation it cites does not make this distinction any less significant. (Id. at 31 (describing 

“funds provided in the course of attempting to influence a person to run for federal office”).) In 

short, RFR simply has not shown that any Congress considered contributions from “draft 

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committees” to be exempt from FECA, rendering this “particularly dangerous” species of 

legislative history entirely inapposite. Bostock, 140 S. Ct. at 1747. 

c. The Commission’s Application of Its Testing the Waters Regulation 

to In-Kind Contributions Is Permissible 

RFR’s final challenge to application of the testing the waters regulation is that it only 

applies to “funds,” not in-kind contributions like the signatory information it proposes to 

transfer. (Mem. at 36-37.) As RFR concedes, however, the Commission has long interpreted its 

testing the waters regulation to apply both to in-kind contributions as well as monetary ones. See 

FEC Advisory Op. 1981-32, 1981 WL 721644 (Askew), at *5 (“The fact that the quoted 

regulation refers specifically to ‘funds received’ was not intended to change the general rules as 

to what is meant by the term ‘contributions;’ nor was the regulation language intended to deny 

the applicability of the exemption to ‘in kind’ donations for testing the water activity.”); FEC 

Advisory Op. 1985-40, 1986 WL 1301186 (Republican Majority Fund), at *3 (same). That 

interpretation of the regulation is entitled to deference. Kisor, 139 S. Ct. at 2416-18. But more 

fundamentally, RFR again fails to comprehend that the testing the waters regulation is a partial 

exemption from FECA’s requirements, not an additional limitation. “The fact that in kind goods 

or services are not expressly mentioned in the regulation exemption to the definition of 

contribution could arguably indicate that such in kind gifts would be viewed as contributions and 

thus trigger candidate status if they aggregated in excess of $5,000.” FEC Advisory Op. 1981-

32, 1981 WL 721644, at *5. If the testing the waters regulation does not apply, this offers no 

help to RFR’s position. 

* * * * 

In sum, the testing the waters regulations are permissible interpretation of FECA’s 

statutory text that balances ability of a prospective candidate to explore his candidacy without 

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triggering full disclosure while also furthering the government’s interest in preventing 

corruption. Despite their long history in force, RFR offers virtually no evidence that these 

regulations excessively burden speech or are unworkable in their implementation. RFR has 

simply not met its burden, and certainly cannot demonstrate any “likelihood of success” 

sufficient to enjoin this longstanding regulation ahead of trial. 

IV. RFR IS UNLIKELY TO SUCCEED ON ITS CLAIM THAT IT HAS A RIGHT TO 

PROVIDE THE SIGNATORY INFORMATION TO GOVERNOR DESANTIS 

BEFORE HE IS TESTING THE WATERS 

RFR’s final tack is that the Commission “erred in failing to affirm” its “right to provide 

its signed petition with signatories’ contact information to Governor DeSantis before he starts 

‘testing the waters.’” (Mem. at 41.) As the Commission explained, it “could not approve a 

response by the required four affirmative votes as to whether R4R may provide the contact 

information from its petition to Governor DeSantis when Governor DeSantis is neither testing 

the waters nor a federal candidate.” (A.O. at 10.) Despite the Commission’s split, RFR is 

unlikely to succeed on the merits of this claim because it has failed to demonstrate that its 

proposed activity is lawful. 

As noted, RFR has embarked on a nationwide effort and collected valuable information 

about potential supporters of Governor DeSantis. It is spending in excess of $100,000 per month 

to do so, using robocalls and other advertisements to gain signatories to the petition and their 

information. (Mem. Exh. 1, Llanes Decl. ¶¶ 9, 16, 25 (Docket No. 8-2).) And it is undertaking 

all these efforts expressly to “support” Governor DeSantis’s “nomination or candidacy” for 

president. (Mem. at 5.) Under these circumstances, it would not be arbitrary or capricious for 

the Commission to have determined that, were Governor DeSantis to accept the signatory 

information from RFR, that would be part and parcel with “determining whether” to “become a 

candidate” and therefore testing the waters. 11 C.F.R. § 100.72(a). 

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The three Commissioners who voted in favor of the draft advisory opinion reached that 

conclusion. Draft A at 12. Their votes were sufficient to control the outcome on this portion of 

plaintiff’s advisory opinion request.17 For the same reasons as explained above, those 

Commissioners concluded that the provision of the proposed petition with contact information at 

any time in advance of candidacy would be “subject to the testing the waters regulation.” Id. 

Given that plaintiff plans to spend thousands of dollars each week to provide Governor DeSantis 

with supporters’ contact information on an ongoing basis for his unrestricted use, including 

potentially as a candidate, id. at 12 & n.43, it was permissible for the agency not to have issued 

the response that plaintiff sought on this question. 

V. RFR IS UNLIKELY TO SUCCEED ON ITS DECLARATORY RELIEF, 

INJUNCTIVE RELIEF, AND FECA CLAIMS 

Because plaintiff’s substantive constitutional and statutory claims fail, its claims for 

declaratory and injunctive relief (Counts III and IV, respectively) fail as well. See, e.g., Ali v. 

Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (“It is a ‘well-established rule that the Declaratory 

Judgment Act is not an independent source of federal jurisdiction. Rather, the availability of 

[declaratory] relief presupposes the existence of a judicially remediable right.’”) (quoting C & E 

Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002)); 

Base One Techs., Inc. v. Ali, 78 F. Supp. 3d 186, 199 (D.D.C. 2015) (“Injunctive relief . . . is not 

a freestanding cause of action, but rather—as its moniker makes clear—a form of relief to 

redress the other claims asserted by Plaintiff”) (dismissing claim for injunctive relief). 

RFR’s direct claim under FECA (Count V) similarly fails for lack of a discernible cause 

of action and lack of a waiver of sovereign immunity. See Unity08, 596 F.3d at 866 (noting that 

One additional Commissioner supported neither of the initial draft advisory opinions. 

See supra p. 11 & n.7. 

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FECA does not “provide any private right of action against the Commission” for direct review of 

advisory opinions); Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 283 F.3d 

339, 344 (D.C. Cir. 2002) (explaining the limited availability of non-statutory review); 

Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (reiterating that the United 

States government and its agencies may generally not be sued absent a waiver of immunity). 

VI. RFR HAS FAILED TO DEMONSTRATE IRREPARABLE HARM 

The extraordinary remedy of preliminary injunctive relief is available only upon a “clear 

showing” that it is necessary, and not “based only on a possibility of irreparable harm.” Winter, 

555 U.S. at 22; see Sampson v. Murray, 415 U.S. 61, 88 (1974) (“[T]he basis of injunctive relief 

in the federal courts has always been irreparable harm”) (citation and internal quotation marks 

omitted). The D.C. Circuit “has set a high standard for irreparable injury,” underscoring that the 

injury “must be both certain and great . . . actual and not theoretical.” Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation marks omitted). 

RFR has failed to show substantial or irreparable harm. It asks the Court to bar the FEC 

from taking enforcement action with regard to providing its petition and mailing list to Governor 

DeSantis, alleging that “[t]his interference with pure political speech and association constitutes 

per se irreparable harm. (Mem. at 44 (citing Mills v. District of Columbia, 571 F.3d 1304, 1312 

(D.C. Cir. 2009), and Davis v. District of Columbia, 721 F.3d 638, 653 (D.C. Cir. 2013)).) 

Plaintiff also alleges that “RFR will be unable to seek monetary compensation from the 

Commission for this unwarranted chill on its activities.” (Id. at 44-45 (citing Odebrecht Constr. 

v. Sec’y Fla. DOT, 715 F.3d 1268, 1289 (11th Cir. 2013)).) 

However, plaintiff wrongly assumes that irreparable harm flows automatically from its 

contentions of First Amendment infringement. (Mem. at 44.) The law requires plaintiff “to do 

more than merely allege a violation of freedom of expression in order to satisfy the irreparable 

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injury prong of the preliminary injunction frame-work.” Chaplaincy of Full Gospel Churches, 

454 F.3d at 301. Furthermore, the harm plaintiff describes is not irreparable. The speech value 

of a contribution, or a transfer of funds, is that it “serves as a general expression of support” and 

“serves to affiliate a person with a candidate [or in this instance, a party].” Buckley, 424 U.S. at 

21-22. But as the Commission has detailed, there are multiple avenues open to RFR and other 

Governor DeSantis supporters to express their support, collectively and individually. See supra 

Part II.B.2. 

RFR’s request is also at odds with the purpose of a preliminary injunction, which “is 

merely to preserve the relative positions of the parties until a trial on the merits can be held.” 

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Here the “status quo” is plainly the 

continued operation of regulations plaintiff challenges, which have been in force continuously 

since their last amendment in 1985. See supra pp. 3-5. Rather than seeking to preserve the 

status quo, plaintiff seeks to “upend” it by asking this Court to issue a legal ruling overturning a 

decades-old regulation limiting contributions to prospective federal candidates at precisely the 

time when such individuals are soliciting support from donors before announcing their 

candidacies for office ahead of November 2024 federal elections. See Sherley, 644 F.3d at 398 

(denying preliminary injunction motion that sought to upend the status quo). 

Plaintiff’s failure to establish irreparable harm “‘alone is sufficient’ for a district court to 

refuse to grant preliminary injunctive relief.” Hicks v. Bush, 397 F. Supp. 2d 36, 40 (D.D.C. 

2005) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 

1995)). As one court in this District concluded in rejecting a motion to preliminarily enjoin 

limits on contributions to political parties, “[p]laintiffs will not ‘suffer irreparable harm in the 

absence of preliminary relief’; they will simply be required to adhere to the regulatory regime 

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that has governed campaign finance for decades.” Rufer v. FEC, 64 F. Supp. 3d 195, 206 

(D.D.C. 2014). 

VII. THE INJUNCTION PLAINTIFF SEEKS WOULD HARM THE GOVERNMENT 

AND UNDERMINE THE PUBLIC INTEREST 

The third and fourth preliminary injunction factors, harm to the opposing party and 

weighing the public interest, respectively, “merge when the Government is the opposing party. 

See Nken v. Holder, 556 U.S. 418, 435 (2009). These factors weigh heavily in favor of 

preserving the status quo and denying plaintiffs’ request for extraordinary injunctive relief. 

Indeed, “any time a State is enjoined by a court from effectuating statutes enacted by 

representatives of [the] people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. 

Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). Worse still, plaintiff is asking 

this Court to disrupt the nation’s campaign finance system by issuing a legal ruling permitting a 

particular organization (and thus potentially others) with the resources to undercut long-standing 

limits on contributions designed to deter corruption. See Buckley, 424 U.S. at 24. At the same 

time, plaintiff has steadfastly refused to avail itself of the many ways in which it may express its 

support of Governor DeSantis, and convey the support of others, in a manner that will not 

contravene longstanding limitations meant to curb corruption. See supra Part II.B.2. 

Rather than preserving the status quo, as preliminary injunctions are intended, 

Camenisch, 451 U.S. at 395, granting relief here “would do precisely the opposite,” Rufer, 64 F. 

Supp. 3d at 206. There would also be no satisfactory way to unscramble the effects of RFR’s 

proposed conduct if an injunction were granted yet the Commission’s position be vindicated on 

final review. The signatory information would be transferred and Governor DeSantis could use 

it for any purpose, including fundraising for any run for federal office. The value of that 

information having exceeded the relevant contribution limit, there would be no suitable way to 

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precisely unwind the advantage Governor DeSantis would have received from the temporary 

suspension of otherwise valid rules. “Permitting that to happen would be imprudent, to say the 

least, and certainly not in the public interest.” Rufer, 64 F. Supp. 3d at 206. 

CONCLUSION 

For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be 

denied. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

February 1, 2023 (202) 694-1650 

45 
 

Case 1:22-cv-03282-RDM Document 16 Filed 02/01/23 Page 57 of 57 

CERTIFICATE OF SERVICE 

I hereby certify that on February 1, 2023, I served the foregoing pursuant to Fed. R. Civ. 

P. 5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

46