Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 1 of 11 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

READY FOR RON, ) 

) 

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

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL BRIEF 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL BRIEF OPPOSING 

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 

Defendant Federal Election Commission (“FEC” or “Commission”) hereby submits this 

supplemental brief in opposition to plaintiff Ready for Ron’s (“RFR”) Motion for Preliminary 

Injunction (Docket No. 8) (the “Motion”) and Memorandum in Support (Docket No. 8-1) 

(“Memorandum” or “Mem.”), in accordance with the Court’s minute order dated February 28, 

2023. As suggested at the preliminary injunction hearing, this brief narrowly addresses the 

Court’s request for Commission precedent with regards to so-called “conduit contributions,” and 

its relevance to RFR’s proposed course of conduct. For the reasons articulated herein, the 

Commission’s Advisory Opinion 2022-12 reasonably and permissibly determined, consistent 

with Commission precedent, that RFR’s proposed conduct is not akin to a conduit contribution, 

and that RFR instead seeks to make an in-kind contribution to Governor DeSantis in excess of 

FECA’s well-established limitations. 

As detailed in the Commission’s Response in Opposition to RFR’s Motion (Docket No. 

16) (“Opposition” or “Opp.”), in Advisory Opinion 2022-12 all six FEC Commissioners 

unanimously concluded, following extended briefing by RFR as well as comments by other 

1 
 

 

 

 

 

 

 

1 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 2 of 11 

interested parties, that RFR could not provide the names and contact information contained in its 

petition 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.1 Opp. at 10. The Commission’s 

Advisory Opinion directly addressed RFR’s contention that it is a mere conduit for the 

contributions of others, and explained that 

it 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 normal charge.” As the D.C. 

District Court recognized in FEC v. Christian Coalition, “[e]ven if the names on 

the . . . list were publicly available, the fact that the [respondent] expended 

resources to compile the list” of persons likely to support a candidate “created value 

that was passed on” when that list was provided to the candidate. 

(See Compl. Exh. 11, Advisory Op. 2022-12 (Ready for Ron) (“Advisory Opinion” or “A.O.”) at 

6-7 (citing FEC v. Christian Coalition, 52 F. Supp. 2d 45, 96 (D.D.C. 1999)).) The Commission 

thus directly addressed and rejected RFR’s contention that it was acting as “a mere conduit of 

other people’s information” such that it should not be viewed as the entity making the 

contribution. (Id. at 9.) Because RFR “intends to spend a significant amount of money to 

compile the list of contact information in its petition” and “asserts that the resultant list will have 

a commercial value in excess of $2900[,]” “R4R may not provide the contact information to 

The Commissioners could not approve a response regarding 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 by the required four 

votes. (Opp. at 11.) One draft that garnered the approval of three Commissioners concluded that 

the provision of the petition with contact information would be subject to the testing the waters 

regulation at any point in advance of a declaration of candidacy. (Id.) 

RFR’s argument that it is merely a “conduit” and not the source of its proposed 

contribution to Governor DeSantis does not appear to depend upon the timing of its proposed 

contribution, including whether Governor DeSantis is then testing the waters of a potential 

candidacy or is a “candidate” as defined by FECA. (See Mem. at 18-24 (discussing conduit 

contributions within section of argument titled “Ready for Ron May Provide Its Signed Petition 

to Governor DeSantis at Any Time”).) 

2 
 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 3 of 11 

Governor DeSantis without charge[.]” Id. at 7. That conclusion represents the Commission’s 

considered and official position and satisfies the deferential standard of review for agency 

actions challenged under the Administrative Procedure Act. (Opp. at 21-28.) 

The Court made further inquiries at oral argument regarding prior Commission advisory 

opinions and, so far as counsel are able to determine, the Commission has never opined that it is 

permissible to collect email information regarding potential contributors and provide that to a 

prospective or actual candidate free of charge, as RFR seeks to do here. The most closely 

analogous cases the Commission has identified generally opine that the candidate should cover 

the cost of the provision of email addresses of contributors to a federal candidate, in contrast 

with plaintiff’s proposal. For instance, in FEC Advisory Op. 2010-21, 2010 WL 4024418 

(ReCellular Inc.) at 6-7, the Commission concluded it was permissible for a for-profit entity that 

purchased used cell phones for resale to allow those who sold it cell phones to select a political 

committee to receive the payment, and include email information about that donor, but only if 

the political committee or the donor covered the cost of the transaction. In FEC Advisory Op. 

2022-03, 2022 WL 2452587 (Democracy Engine) at 3, the requestor noted that it planned to 

provide a platform for certain groups to solicit the general public to make contributions to 

candidates or political committees and required those responding to the solicitation to provide 

personal information including email addresses “as part of its processing services to ensure that 

the ultimate recipient committees are provided ‘the data they need under the law’ to file reports 

with the Commission and for [the Requestor’s] own accounting purposes.” The opinion did not 

separately address whether the inclusion of email address information was a thing of value, nor is 

it even clear whether all such information was transferred to the political committee or whether 

the Commission considered that issue. In addition, the requestor proposed to charge a 

3 
 

 

 

 

 

 

 

 

 

 

 

 

2 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 4 of 11 

commercially reasonable fee for its service, distinguishing this opinion from RFR’s proposal to 

provide the information for free. Id. at *2, 3; see also FEC Advisory Op. 2014-06, 2014 WL 

3748239 (Ryan for Congress) (candidate may use PAC email list so long as he pays fair market 

value).

2 

In short, the Commission advisory opinions most closely addressing the issue highlighted 

by the Court approved of the requestor’s conduct under circumstances where the candidate 

receiving emails would be charged a fee for the services provided by the requestor (including the 

collection and provision of emails). RFR, by contrast, proposes to spend “$100,000-$200,000 

per month” to compile this data and provide it to Governor DeSantis free of charge. (Mem. at 4.) 

None of these advisory opinions undermine the Commission’s conclusion in A.O. 2022-12 that a 

compilation of supporter contact information, including email addresses, is a thing of value, and 

providing this information to Governor DeSantis free of charge when he is testing the waters or 

operating a campaign would violate FECA’s limitations on contributions to candidates. 

Neither of the Commission advisory opinions RFR principally relies upon are 

inconsistent with the Commission’s rejection of RFR’s conduit theory in A.O. 2022-12 or the 

Other Commission advisory opinions either failed to reach any kind of consensus 

regarding email addresses or did not clearly address whether these could be provided to actual or 

potential candidates. See, e.g., FEC Advisory Op. 1999-36, 2000 WL 180333 (Campaign 

Advantage) (Commission authorized third party to process electronic check contributions which 

required the donor to submit email information so that the third party could email a “digital 

signature authentication code” and to notify the donor of problems with the donation, without 

discussion of whether email information was transmitted to the candidate, and in any event the 

third party charged a fee to the candidate’s campaign for the service); FEC Advisory Op. 2011-

02, 2011 WL 7629547 (Brown) (Commission split on whether a candidate could collect email 

addresses of those persons attending a book signing set up by publisher to promote candidate’s 

book, with those Commissioners finding that proposal impermissible concluding that it would 

take advantage of expenses borne by the publisher and therefore be an impermissible corporate 

in-kind contribution, and three Commissioners would have concluded that proposed transaction 

was permissible because the book signing was not a fundraising event). 

4 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 5 of 11 

above authorities that indicate candidate campaigns must pay a fee when corporations propose to 

pass contact information of supporters/prospective contributors. As an initial matter, the Court 

need not even reach this issue because RFR failed to raise those advisory opinions to the 

Commission in a timely manner. “It is a hard and fast rule of administrative law, rooted in 

simple fairness, that issues not raised before an agency are waived and will not be considered by 

a court on review.” Wallaesa v. Fed. Aviation Admin., 824 F.3d 1071, 1078 (D.C. Cir. 2016) 

(quoting Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004)). That 

principle “holds special force where, as here, an appeal follows adversarial administrative 

proceedings in which parties are expected to present issues material to their case.” Id.; see also 

Nat'l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) (“[T]here is a near absolute bar 

against raising new issues — factual or legal — on appeal in the administrative context.”) 

(emphasis added) (citation omitted). RFR failed to cite FEC Advisory Op. 2003-23, 2003 WL 

22827476 (“We Lead”) in any of its submissions to the Commission in connection with the 

Advisory Opinion. RFR cited FEC Advisory Op. 2006-30, 2006 WL 3390749 (“ActBlue”) for 

the first time in its third requestor’s counsel comment, submitted to the Commission September 

28, 2022, the same day the Commission approved the final Advisory Opinion. (See Compl. Exh. 

9, Advisory Op. 2022-12 (Ready for Ron) (“Third Comment”) at 1. Even granting the idea that 

RFR preserved its general argument that it should be viewed as a conduit, it failed to raise in a 

timely manner relevant authority to support its suggestion that the Commission’s rejection of that 

theory would result in inconsistent treatment. 

In any event, both We Lead and ActBlue are distinguishable from the Commission’s 

Advisory Opinion under review here in material respects. The Commission’s analysis in ActBlue 

and We Lead addressed only the transmission of information to authorized committees that was 

5 
 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 6 of 11 

required for those committees to meet their reporting obligations with respect to monetary 

contributions. See We Lead, 2003 WL 22827476 at *3 (“the name and address of the contributor 

and the date of receipt must be forwarded with the contribution”); ActBlue, 2006 WL 3390749 at 

*5 (“The information would have to include the name and address of the contributor, and the 

date of receipt of the contribution.”). Plaintiff does not propose to forward any monetary 

contributions, which entail a higher need for verification, to Governor DeSantis. And neither 

advisory opinion addressed the transmission of constituent contribution email addresses, let 

alone a mailing list as such. To the extent those entities are transmitting more information 

outside the scope of the Commission’s analysis, the agency did not address the permissibility of 

those actions. 

Moreover, ActBlue charges a ~3.95% processing fee to the campaigns receiving 

contributions, and explicitly acknowledges that it is “legally required to pass along processing 

costs to the campaign so that we do not make in-kind contributions to them.” ActBlue Support, 

Do you charge a fee for contributions?, ActBlue (last visited March 9, 2023), 

https://support.actblue.com/donors/contributions/do-you-charge-a-fee-for-contributions/. 

WinRed, a similar organization that RFR highlighted in its complaint, (Compl. at 2-3, ¶ 84,) also 

charges transaction fees ranging from 3.2% to 3.94%. Pricing, How much WinRed charges in 

transaction fees, WinRed (last visited March 14, 2023), 

https://support.winred.com/en/articles/3097721-pricing. To any extent that the Court has 

concerns regarding public information plaintiff raises regarding ActBlue, a more comprehensive 

view of such information shows that ActBlue operates in ways that are distinguishable from what 

plaintiff proposes. 

6 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 7 of 11 

In addition, the ActBlue and We Lead advisory opinions detailed the regulatory 

requirements for conduit contributions and conditioned their conclusions on compliance with 

those requirements. See We Lead, 2003 WL 22827476 at *2-3 (opining that requestor’s 

proposed conduct was permissible “as long as [it] complies with the requirements set forth 

below,” including the requirement that earmarked contributions be forwarded to recipient 

treasurer within 10 days of receipt); ActBlue, 2006 WL 3390749 at *2, 4 (“ActBlue must forward 

earmarked contributions to the candidates within ten days of the date that the candidate registers 

a presidential campaign committee with the Commission.”). In contrast RFR made no 

representations to the Commission that it would meet these requirements, and the facts before the 

Court suggest that it will not. RFR plans to provide its mailing list to Governor DeSantis at a 

time and place of its choosing, irrespective of Governor DeSantis’s candidacy status. (Mem. at 

4-5.) RFR is not forwarding the valuable contact information to Governor DeSantis within ten 

days. 11 C.F.R. § 102.8(a), (c). Nor is RFR making regular reports to the Commission and to the 

appropriate DeSantis committee disclosing the original source of any of the constituent data RFR 

proposes to transfer. 11 C.F.R. 110.6(c)(1). Under these circumstances, RFR exerts 

significantly more control over the timing and conveyance of the contribution than was proposed 

in either the Act Blue or We Lead advisory opinions. Cf. 11 C.F.R. § 110.6(d)(2) (“If a conduit 

or intermediary exercises any direction or control over the choice of the recipient candidate, the 

earmarked contribution shall be considered a contribution by [the] intermediary.”). It was, 

therefore, entirely reasonable and permissible for the Commission to conclude that RFR’s 

proposed conduct would result in an excessive in-kind contribution notwithstanding ActBlue and 

We Lead, as those requestors indicated they would continue to comply with Commission 

7 
 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 8 of 11 

regulations and who applied objective markers to trigger the transfer of the contributions to the 

ultimate recipient committees. (Opp. at 21-28.) 

Furthermore, the ActBlue and We Lead advisory opinions’ address those organizations’ 

efforts to serve as a conduit for monetary contributions, as opposed to valuable contact 

information. This distinction is significant because under those circumstances ActBlue and We 

Lead do not retain any of the value of the contribution once it is passed to the designated 

recipient. In contrast, RFR plans to send to Governor DeSantis only a copy of its mailing list, 

and will retain its mailing list for its own use. At a Commission public hearing held September 

15, 2022, counsel for RFR indicated both that the organization would retain the mailing list and 

acknowledged that the list is valuable to RFR. See YouTube, FEC Open Meeting of September 

15, 2022, https://www.youtube.com/watch?v=BWfuTD46wwM at 12:48-13:03. That continued 

possession of the information at issue suggests that RFR retains control over who can gain access 

to it and when. If RFR later provides its mailing list or a portion of it to any federal candidate 

other than Governor DeSantis, it would be exercising discretion or control, and would 

undoubtedly be making a contribution in its own name. 11 C.F.R. § 110.6(d)(2). The result 

should be no different if RFR provides the contact information to Governor DeSantis, since RFR 

has and is continuing to spend large sums of money to provide encouragement and support to a 

Governor DeSantis candidacy based on its own desire to see Governor DeSantis elected 

president of the United States. (A.O. at 6-7.) 

While other Commission authorities have not explicitly addressed the potential free 

provision of email addresses to candidates, it is noteworthy that providing supporter emails to 

Governor DeSantis is neither required by Commission regulations nor necessary for RFR to 

achieve its stated goals. The Commission’s existing regulations do not require the contributor’s 

8 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 9 of 11 

email address to verify identity. Instead, FECA requires each political committee to report the 

name, mailing address, occupation, and employer of any individual who contributes more than 

$200 to the committee in a calendar year, along with the amount and date of the individual's 

contributions. See 52 U.S.C. §§ 30101(13)(A), 30104(b)(3)(A); see also 11 C.F.R. §§ 100.12, 

104.8(a). Similarly, conduits and intermediaries of earmarked contributions are required to 

report “[t]he name and mailing address of each contributor” and the amount of each earmarked 

contribution. See 11 C.F.R. § 110.6(c)(1)(iv). Here, while RFR claims that providing contact 

information with its petition “helps establish the authenticity” of the signatures (Mem. at 9), RFR 

has failed to rebut the point that such addresses are more useful as a fundraising tool than as a 

means of verifying the authenticity of persons, (see Opp. at 20 & n.9). 

Finally, in the event this Court determines under the APA that the FEC did not 

sufficiently consider its prior advisory opinion precedent in connection with RFR’s Advisory 

Opinion, the proper recourse is remand to the agency. See Util. Workers Union of Am., Loc. 369, 

AFL-CIO v. FEC, 691 F. Supp. 2d 101, 106 (D.D.C. 2010) (“[If the agency has not considered 

all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action 

. . . the proper course, except in rare circumstances, is to remand to the agency for additional 

investigation or explanation.”) (quoting Safe Extensions, Inc. v. FAA, 509 F.3d 593, 599 (D.C. 

Cir. 2007).) 

9 
 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 10 of 11 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

March 14, 2023 

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 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

10 
 

 

 

Case 1:22-cv-03282-RDM Document 24 Filed 03/14/23 Page 11 of 11 

CERTIFICATE OF SERVICE 

I hereby certify that on March 14, 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 

11