Case 1:22-cv-03282-RDM Document 8-1 Filed 12/21/22 Page 1 of 58 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

READY FOR RON ) Judge Randolph D. Moss 

66 W. Flagler Street ) 

Suite 900, #6781 ) No. 1:22-cv-3282-RDM 

Miami, FL 33130, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION ) 

1050 First Street, NE ) 

Washington, DC 20463, ) 

) 

Defendant. ) 

_______________________________________ ) 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF 

READY FOR RON’S MOTION FOR PRELIMINARY INJUNCTION 

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

Chalmers & Adams LLC 

441 N. Lee Street, Suite 300 

Alexandria, VA 22314 

(202) 210-5431 

dbacker@ChalmersAdams.com 

Lilian Rodriguez-Baz, Esq.* 

Chief Legal Counsel, Ready for Ron 

66 W Flagler Street, Suite 900 

Miami, FL 33130 

(561) 291-9897 

Lilian@ReadyForRon.com 

*Motion for pro hac vice admission 

forthcoming 

Attorneys for Plaintiff 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03282-RDM Document 8-1 Filed 12/21/22 Page 2 of 58 

TABLE OF CONTENTS 

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

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

STATEMENT OF FACTS.......................................................................................................... 2 

A. Ready for Ron........................................................................................................ 2 

B. Ready for Ron’s Petition to Governor DeSantis.................................................... 3 

C. The FEC’s Advisory Opinion Declining to Allow 

Ready for Ron to Deliver Its Signed Petition to Governor DeSantis .................... 5 

ARGUMENT................................................................................................................................ 6 

I. READY FOR RON HAS A FIRST AMENDMENT RIGHT TO 

SOLICIT AND GATHER SIGNATURES FOR ITS PETITION, 

AND PRESENT THE SIGNED PETITION TO GOVERNOR 

DESANTIS AT A TIME OF ITS CHOOSING ............................................................ 6 

II. THE FEDERAL ELECTION CAMPAIGN ACT DOES 

NOT PROHIBIT READY FOR RON’S ACTIVITIES ............................................. 10 

A. Ready for Ron May Provide Its Signed Petition to 

Governor DeSantis at Any Time ......................................................................... 10 

1. A signed petition does not qualify 

as a “contribution” under FECA.............................................................. 11 

a. A signed petition is not a “gift” ................................................... 11 

b. A signed petition is not a “thing of value” for 

purposes of the definition of “contribution” ................................ 13 

c. The Commission’s reasons for treating RFR’s 

signed petition as a “contribution” are erroneous........................ 15 

2. Ready for Ron is not the source of any contribution 

to Governor DeSantis, but instead is merely acting 

as a conduit, providing the petition and signatories’ 

contact information to him on the signatories’ behalf ............................. 18 

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B. In the Alternative, Ready for Ron May Provide Its Signed 

Petition to Governor DeSantis Before He Becomes a Candidate, 

Regardless of Whether He Is “Testing the Waters”............................................. 24 

1. Binding D.C. Circuit precedent precludes the 

FEC from regulating disbursements made in an 

effort to “draft” someone to become a candidate..................................... 26 

2. 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 ....... 29 

3. There is no legal authority for the 

FEC’s “testing the waters” regulation...................................................... 32 

4. The “testing the waters” regulation does 

not apply to in-kind contributions............................................................ 36 

C. The Canons of Statutory Interpretation Counsel in Favor of 

Allowing RFR to Provide Its Signed Petition to Governor DeSantis.................. 38 

D. At the Very Least, Ready for Ron May Provide Its Signed Petition 

to Governor DeSantis Before He Begins Testing the Waters.............................. 40 

III. THIS COURT SHOULD ISSUE A PRELIMINARY INJUNCTION...................... 42 

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

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TABLE OF AUTHORITIES 

Cases 

Ass’n of Private Sector Colleges & Univs. v. Duncan, 

681 F.3d 427 (D.C. Cir. 2012)......................................................................................... 11 

*Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam)................................................................................. passim 

Carey v. FEC, 

864 F. Supp. 2d 57 (D.D.C. 2002)............................................................................... 2, 42 

Chevron, U.S.A., Inc. v. Nat’l Resources Def. Council, 

467 U.S. 837 (1984)......................................................................................................... 34 

Citizens Against Rent Cont./Coalition for Fair Hous. v. Berkeley, 

454 U.S. 290 (1981)............................................................................................... 7, 16, 17 

Citizens United v. FEC, 

558 U.S. 310 (2010). ........................................................................................................ 34 

City of Maui v. Haw. Wildlife Fund, 

140 S. Ct. 1462 (2020)..................................................................................................... 29 

Cleveland v. United States, 

531 U.S. 12 (2000)........................................................................................................... 39 

Colo. Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996)........................................................................................................... 8 

Davis v. District of Columbia, 

721 F.3d 638 (D.C. Cir. 2013)......................................................................................... 44 

DePierre v. United States, 

564 U.S. 70 (2011)........................................................................................................... 39 

Doe v. Reed, 

561 U.S. 186 (2010)........................................................................................................... 9 

Dole v. United Steelworkers of Am., 

494 U.S. 26 (1990)........................................................................................................... 12 

Elrod v. Burns, 

427 U.S. 347 (1976)......................................................................................................... 44 

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Eu v. San Francisco Cnty. Democratic Cent. Comm., 

489 U.S. 214 (1989)..................................................................................................... 8, 17 

FEC v. Christian Coalition, 

52 F. Supp. 2d 45 (D.D.C. 1999)..................................................................................... 15 

FEC v. Citizens for Democratic Alternatives in 1980, 

655 F.2d 397 (D.C. Cir. 1981)....................................................................................27-28 

FEC v. Florida for Kennedy Comm., 

681 F.2d 1281 (11th Cir. 1982) ....................................................................................... 28 

FEC v. Int’l Funding Institute, 

969 F.2d 1110 (D.C. Cir. 1992) (en banc)....................................................................... 15 

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

470 U.S. 480 (1985)....................................................................................................28-29 

FEC v. Ted Cruz for Senate, 

142 S. Ct. 1638 (2022)..................................................................................................... 35 

FEC v. Wis. Right to Life Inc., 

551 U.S. 449 (2007)......................................................................................................... 34 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000)......................................................................................................... 39 

*Federal Election Comm’n v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981)..........................................................................2, 26-28, 30 

Fourth Estate Pub. Ben Corp. v. Wall-street.com LLC, 

139 S. Ct. 881 (2019)....................................................................................................... 29 

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013)......................................................................................... 45 

Gustafson v. Alloyd Co., 

513 U.S. 561 (1995)......................................................................................................... 12 

Henson v. Santander Cons. USA, Inc., 

137 S. Ct. 1718 (2017)..................................................................................................... 36 

Jarecki v. G.D. Searle & Co., 

367 U.S. 303 (1961)......................................................................................................... 11 

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Case 1:22-cv-03282-RDM Document 8-1 Filed 12/21/22 Page 6 of 58 

Kimble v. Marvel Entm’t LLC, 

576 U.S. 446 (2015)......................................................................................................... 29 

Leocal v. Ashcroft, 

543 U.S. 1 (2004)............................................................................................................. 39 

Loughrin v. United States, 

134 S. Ct. 2384 (2014)..................................................................................................... 37 

Martin v. Struthers, 

319 U.S. 141 (1943)......................................................................................................... 17 

Massachusetts v. Morash, 

490 U.S. 107 (1989)......................................................................................................... 12 

McCutcheon v. FEC, 

572 U.S. 185 (2014)................................................................................................... 28, 34 

McDonnell v. United States, 

136 S. Ct. 2355 (2016)..................................................................................................... 13 

McNally v. United States, 

483 U.S. 350 (2003)......................................................................................................... 39 

MCI Telecomms. Corp. v. AT&T Co., 

512 U.S. 218 (1994)......................................................................................................... 39 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995)........................................................................................................... 9 

*Meyer v. Grant, 

486 U.S. 414 (1988)..................................................................................................... 9, 16 

Mills v. District of Columbia, 

571 F.3d 1304 (D.C. Cir. 2009)....................................................................................... 44 

NAACP v. Alabama, 

357 U.S. 449 (1958)........................................................................................................... 7 

Nat’l Grain & Feed Ass’n v. Occupational Safety & Health Admin., U.S. Dep’t of Labor, 

845 F.2d 345 (D.C. Cir. 1988)......................................................................................... 11 

Nat’l Labor Rel. Bd. v. Catholic Bishop of Chicago, 

440 U.S. 490 (1979)......................................................................................................... 38 

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Odebrecht Constr. v. Sec’y Fla. DOT, 

715 F.3d 1268 (11th Cir. 2013) ....................................................................................... 44 

Preston v. Leake, 

743 F. Supp. 2d 501 (E.D.N.C. 2010).............................................................................. 14 

Pursuing Am. Greatness v. FEC, 

831 F.3d 500 (D.C. Cir. 2016)......................................................................................... 45 

Rewis v. United States, 

401 U.S. 808 (1971)......................................................................................................... 39 

Roberts v. U.S. Jaycees, 

468 U.S. 609 (1984)......................................................................................................... 16 

Rust v. Sullivan, 

500 U.S. 173 (1991)......................................................................................................... 38 

Sherley v. Sebelius, 

644 F.3d 388 (D.C. Cir. 2011)......................................................................................... 42 

Speechnow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc)......................................................................... 42 

Stanley v. Georgia, 

394 U.S. 557 (1969)......................................................................................................... 17 

Texas v. Biden, 

10 F.4th 538 (5th Cir. 2021) (per curiam) ....................................................................... 45 

United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 

213 U.S. 366 (1909)......................................................................................................... 38 

United States v. Santos, 

553 U.S. 507 (2008)......................................................................................................... 39 

United States v. Thompson/Ctr. Arms Co., 

504 U.S. 505 (1992)......................................................................................................... 39 

United States v. Williams, 

553 U.S. 285 (2008)......................................................................................................... 12 

Unity08 v. FEC, 

596 F.3d 861 (D.C. Cir. 2010)............................................................................... 1, 28, 40 

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Va. State Bd. of Pharmacy v. Va. Citizens Cons. Council, 

425 U.S. 748 (1976)......................................................................................................... 17 

Walters v. Metro. Educ. Enters., Inc., 

519 U.S. 202 (1997)......................................................................................................... 11 

Watson v. United States, 

552 U.S. 74 (2007)........................................................................................................... 11 

West Virginia v. EPA, 

142 S. Ct. 2587 (2022)............................................................................................... 29, 38 

Winter v. Natural Res. Defense Coun., 

555 U.S. 7 (2008)............................................................................................................. 42 

Yates v. United States, 

574 U.S. 528 (2015)................................................................................................... 12, 40 

FEC Advisory Opinions 

ActBlue, 

FEC A.O. 2006-30 (Nov. 9, 2006)............................................................................ passim 

ActBlue, 

FEC A.O. 2007-27 (Dec. 17, 2007)................................................................................. 22 

ActBlue, 

FEC A.O. 2008-10 (Jan. 15, 2015) ............................................................................ 22, 23 

Askew, 

FEC A.O. 1981-32 (Oct. 2, 1981).............................................................................. 33, 37 

Assoc. Buildings & Contractors, 

FEC A.O. 1984-23 (June 22, 1984) ................................................................................. 13 

Brunswick Corp., 

FEC A.O. 1984-43 (Sept. 14, 1984) ................................................................................ 11 

Congressman Vic Fazio, 

FEC A.O. 1985-38 (Jan. 17, 1986) .................................................................................. 33 

Hon. Cecil Heftel, 

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

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In re McDonald for Congress, 

FEC A.O. 1976-86 (Oct. 6, 1976).................................................................................... 11 

Pro-Life Democratic Candidate PAC, 

FEC A.O. 2019-11 (July 25, 2019).................................................................................. 23 

Ready for Ron, 

FEC A.O. 2022-12 (Sept. 28, 2012) .................................................................................. 1 

Republican Majority Fund, 

FEC A.O. 1985-40 (Jan. 24, 1985) .................................................................................. 37 

Skimmerhat, 

FEC A.O. 2012-22 (Aug. 2, 2012)................................................................................... 22 

Washington State Federal Comm., 

FEC A.O. 1998-18 (Oct. 9, 1998).................................................................................... 33 

WE LEAD, 

FEC A.O. 2003-23 (Nov. 7, 2003)................................................................................... 20 

Statutes and Regulations 

11 C.F.R. § 100.3 ............................................................................................................... 5, 24, 34 

11 C.F.R. § 100.10 ....................................................................................................................... 24 

11 C.F.R. § 100.24 ....................................................................................................................... 20 

11 C.F.R. § 100.52 ................................................................................................................ passim 

11 C.F.R. § 100.72 ....................................................................................................... 5, 33, 35, 36 

11 C.F.R. § 102.8 ......................................................................................................................... 21 

11 C.F.R. § 102.14 ....................................................................................................................... 26 

11 C.F.R. § 110.1 .................................................................................................................. passim 

11 C.F.R. § 110.6 ....................................................................................................... 10, 18, 20, 23 

11 C.F.R. § 113.1 ......................................................................................................................... 20 

11 C.F.R. § 114.4 ......................................................................................................................... 20 

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11 C.F.R. § 9008.9 ....................................................................................................................... 20 

18 U.S.C. § 1341 .......................................................................................................................... 39 

18 U.S.C. § 1519 .......................................................................................................................... 12 

52 U.S.C. § 30101 ................................................................................................................. passim 

52 U.S.C. § 30102 ........................................................................................................................ 21 

52 U.S.C. § 30108 ................................................................................................................ 1, 5, 40 

52 U.S.C. § 30116 ................................................................................................................. passim 

Other Sources and Authorities 

ActBlue, http://secure.ActBlue.com ............................................................................................ 21 

Bipartisan Campaign Reform Act (“BCRA”), 

Pub. L. No. 107-155 (Mar. 27, 2002) .............................................................................. 32 

Does ActBlue Share My Personal Information, 

Including Email Address and Phone Number?, 

ACTBLUE (last referenced Sept. 26, 2022) , 

https://support.actblue.com/donors/about-actblue/ does-actblue-share-my-personalinformation-including- email-address-and-phone-number/........................................ 21-22 

W. Eskridge, Interpreting Law: A Primer on How to 

Read Statutes and the Constitution (2016)....................................................................... 38 

FEC, Annual Report 1975, 

https://www.fec.gov/resources/cms-content/documents/ar75.pdf.................................. 35 

FEC, Annual Report 1976, 

https://www.fec.gov/resources/cms-content/documents/ar76.pdf................................... 30 

FEC, Effective Date: “Testing the Waters” Regulations, 

50 Fed. Reg. 25,698 (June 21, 1985). ............................................................................. 33 

FEC, Legislative Recommendations—1987, 

reprinted in House Subcomm. on Elections, Comm. on House Admin., 

Hearings on Campaign Finance, 100th Cong., 1st Sess. 

(May 21, June 2, June 16, June 30, and July 14, 1987) ................................................... 31 

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FEC, Payments Received for Testing the Waters Activities; 

Transmittal to Congress, 50 Fed. Reg. 9992 (Mar. 13, 1985)......................................... 33 

H.R. 1818, 106th Cong., 1st Sess. (May 14, 1999) ..................................................................... 32 

H.R. 708, 103rd Cong. (Feb. 2, 1993) ......................................................................................... 31 

H.R. 4934, 102nd Cong. (Apr. 9, 1992) ...................................................................................... 31 

H. Rpt. No. 96-422 (1979), reprinted in 1979 U.S.C.C.A.N. 2860 ........................................ 30-31 

Carol E. Lee, et al., Biden Aides are Quietly Assembling a 2024 

Campaign as They Await a Final Decision on His Political Future, 

FOX NEWS (Sept. 16, 2022), 

https://www.nbcnews.com/politics/joe-biden/biden-aides-are-quietly- assembling-2024-

campaign-await-final-decision-rcna48005. ..................................................................... 35 

S.2595, 101st Cong. (May 12, 1990)........................................................................................... 31 

S.143, 102nd Cong. (Jan. 14, 1991)............................................................................................. 31 

S.6, 102nd Cong. (Apr. 11, 1991)................................................................................................ 31 

S.7, 103rd Cong. (Jan. 21, 1993) ................................................................................................. 31 

S. Comm. on Rules & Admin., Hearings on Proposed 

Amendments to the Federal Election Campaign Act of 1971, 

S. Hrg. 99-709 (Nov. 5, 1985; Jan. 22 & Mar. 27, 1986) 

(reprinting S. 1891, 99th Cong. (Dec. 3, 1985)).............................................................. 31 

Brett Samuels, Biden Says He Intends to Run in 2024, 

Has Not Made a “Firm Decision,” THE HILL 

(7:49 P.M. ET, Sept. 18, 2022), 

https://thehill.com/homenews/administration/3649720-biden-says- he-intends-to-run-in2024-has-not-made-a-firm-decision ............................................................................... 35 

Sebastian Smith, Biden Warns China and Russia, Hedges on Seeking Reelection, 

BARRON’S (Sept. 18, 2022), 

https://www.barrons.com/news/biden-hedges-on-seeking-reelection-01663552807...... 35 

Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey 

and James E. “Trey” Trainor, III, In re Donald J. Trump for President, Inc., 

MURs 7265 & 7266 (May 10, 2021)............................................................................... 14 

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Vendor/Recipient Profile: BIDEN FOR PRESIDENT, 

OPEN SECRETS (last referenced Oct. 23, 2022), 

https://www.opensecrets.org/campaign-expenditures/ 

vendor?cycle=2020&vendor=BIDEN+FOR+PRESIDENT ........................................... 21 

Video of Sept. 15, 2022 FEC Hearing, 

https://www.youtube.com/watch?v=BWfuTD46wwM. ............................................ 36, 41 

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INTRODUCTION 

As of this writing, more than 100,000 people have signed a petition declaring themselves 

“Ready for Ron”—that is, seeking to draft Florida Governor Ron DeSantis to run for President in 

2024. Plaintiff Ready for Ron (“RFR”), a federal political committee, has run advertisements 

encouraging people to virtually “sign” the petition by submitting their names and contact 

information through a website and telephone hotline RFR created for that purpose. Ignoring the 

Constitution, the plain language and legislative history of the Federal Election Campaign Act 

(“FECA”), binding D.C. circuit precedent, and its own treatment of nearly $1.5 billion in political 

activity each election cycle, the Federal Election Commission (“FEC” or “Commission”) has 

decided to prohibit both RFR and the petition’s signatories from engaging in this fundamental act 

of political speech and association. 

The Commission has issued an advisory opinion refusing to allow RFR to provide its 

signed petition with signatories’ voluntarily provided contact information to Governor DeSantis. 

See Ready for Ron, FEC A.O. 2022-12 (Sept. 28, 2012), attached as Compl. Exh. 11. Declaring 

the petition to be a “thing of value” which might be “useful” to Governor DeSantis, the 

Commission has concluded providing the petition to Governor DeSantis either while he is “testing 

the waters” for a potential candidacy, or after he becomes a candidate, would violate the Federal 

Election Campaign Act’s (“FECA”) contribution limits. Id. at 1. The Commission also deadlocked 

on the issue of whether RFR may provide its petition to Governor DeSantis before he begins testing 

the waters, despite the complete absence of any statutory or regulatory basis for such a prohibition, 

id., thereby depriving RFR of a “safe harbor” against enforcement actions and civil and criminal 

penalties for engaging in such conduct. 52 U.S.C. § 30108(c)(1)(A), (c)(2); Unity08 v. FEC, 596 

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F.3d 861, 867-68 (D.C. Cir. 2010). The Commission’s advisory opinion creates a reasonable 

apprehension of civil and criminal penalties for RFR. 

The Commission’s refusal to acknowledge RFR’s right to provide a signed petition 

identifying its signatories to a public figure to encourage him to run for our nation’s highest office 

is beyond the pale. It blatantly violates the rights of both RFR and the petition’s signatories to 

engage in pure political speech and expressive association. The Commission’s treatment of a 

signed political petition to someone as a “contribution,” particularly before they have even become 

a “candidate” under the FECA, not only misinterprets that statute and flies in the face of binding 

circuit precedent, see Federal Election Comm’n v. Machinists Non-Partisan Political League, 655 

F.2d 380, 382 (D.C. Cir. 1981), but casts a chilling pall over one of our nation’s most important, 

longstanding forms of collective political action. 

STATEMENT OF FACTS 

A. Ready for Ron 

RFR is a draft committee formed for the purpose of drafting Governor DeSantis as a 

candidate for the Republican nomination for President in the 2024 election. Declaration of Gabriel 

Llanes ¶ 4, attached as Motion for Preliminary Injunction, Exh. 1 (hereinafter, “Llanes Decl.”). 

RFR is not affiliated with Governor DeSantis in any way and has not coordinated with him or his 

staff with regard to the petition. Id. ¶ 5. 

RFR has two bank accounts. Id. ¶ 6. First, it has a traditional hard money account, which 

may be used to make political contributions. Id. Contributions which RFR receives for this account 

are subject to the Federal Election Campaign Act’s (“FECA”) contribution limits. Id. Second, RFR 

also has a separate, segregated “non-contribution” account pursuant to the U.S. District Court for 

the District of Columbia’s ruling in Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 2002). Id. RFR 

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may accept unlimited contributions to this “Carey account” and use funds from it to pay for its 

communications, advertisements, and other expenses. Id. RFR may not use funds from this 

account, however, to make political contributions. Id. 

B. Ready for Ron’s Petition to Governor DeSantis 

RFR has created a petition to attempt to persuade Governor DeSantis to become and remain 

a candidate for the Republican nomination for President in the 2024 election. Id. ¶ 7. RFR has 

invited members of the general public who share that political belief to associate together to convey 

this political message by approving the addition of their virtual signatures to its petition through 

either RFR’s website or a dedicated phone line RFR established. Id. ¶ 8. RFR has publicized its 

petition through various advertisements funded in part or whole from RFR’s non-contribution 

Carey account. Id. ¶ 9. 

RFR’s website, http://www.ReadyforRon.com, displays the text of the petition. Id. ¶ 10. It 

provides users with an opportunity to electronically submit their name, phone number, e-mail 

address, and zip code (collectively, “Signatory Information”) to be added to the petition. Id. ¶ 13. 

To virtually sign the petition, a person must provide at least their name and e-mail address. Id. The 

page on which people enter their Signatory Information contains a message stating, in relevant 

part, “I am Ready for Ron! Let Ron know I’m behind him and want to join his team!” Id. ¶ 14. A 

notice at the bottom of the screen informs users by virtually signing the petition and providing 

their information, they are requesting to have RFR provide it to Governor DeSantis. Id. 

RFR has also established telephone numbers for people to call to virtually sign the petition 

by having their names and contact information added to it. Id. ¶ 15. When a person calls the 

number, a recorded message invites them to join the petition if they wish to “Let Ron know, ‘I am 

Ready for Ron!’” and that they are “behind him and want to join his team!’” Id. It further notifies 

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callers by signing the petition, they are requesting to have their names and contact information 

provided to Governor DeSantis. Id. In addition, RFR conducts “robocalls” in which it dials 

people’s phone numbers and plays them a pre-recorded message about the petition, inviting them 

to sign it. Id. ¶ 16. A person may press “1” to request to have their name and contact information 

added to the petition and provided to Governor DeSantis. Id. Finally, RFR also gathers petition 

signatures in person on select occasions. Id. ¶ 28. It uses a preprinted form to invite people to 

provide their signature and contact information to join the petition to draft Governor DeSantis. Id. 

A person’s name and contact information will be added to the petition only if they ask to 

sign the petition through RFR’s website(s), phone number(s), or forms designated for that purpose. 

Id. ¶ 17. RFR has not and will not add anyone to the petition without their request and consent. Id. 

RFR is currently spending between $100,000-$200,000 per month on advertisements through 

various mediums to notify people about its petition and invite them to sign it. Id. ¶¶ 25-26. It pays 

for these advertisements through both its traditional hard-money account and non-contribution 

Carey accounts. Id. ¶ 25. 

RFR’s petition has so far attracted approximately 100,000 signatures. Id. ¶ 18. If the 

signatories’ contact information were treated as if it were contained within an ordinary mailing or 

contributor list, then $0.05 per line-item would be a reasonable approximation of the minimum 

fair-market value for such information. Id. ¶ 27. At that rate, the fair-market value of the signed 

petition with signatories’ contact information would exceed $2,900, the limit on contributions from 

a non-multicandidate political committee to a candidate per election. Id. 

RFR wishes to present the signed petition, including the names and contact information 

provided by its signatories, to Governor DeSantis, regardless of whether the Commission 

determines he is testing the waters or has become a candidate. Id. ¶ 19; see also id. ¶ 28 (specifying 

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reasons). After it does so, RFR wishes to periodically demonstrate continued public support for 

Governor DeSantis’ nomination or candidacy by providing supplements or updates to the petition 

with the names and contact information of people who subsequently join the petition. Id. Were it 

not for the FEC’s response to RFR’s advisory opinion request and resulting substantial likelihood 

of enforcement actions, RFR would provide its petition, as well as with updates and supplements, 

to Governor DeSantis before he begins testing the waters for a potential presidential run, while he 

is “testing the waters” under 11 C.F.R. § 100.72, and also after he has become a “candidate” under 

52 U.S.C. § 30101(2); accord 11 C.F.R. § 100.3(a). Llames Decl. ¶ 20. 

C. The FEC’s Advisory Opinion Declining to Allow Ready 

for Ron to Deliver Its Signed Petition to Governor DeSantis 

On June 28, 2022, RFR submitted an advisory opinion request to the FEC to obtain an 

advisory opinion confirming the legality of its actions and providing RFR with “safe harbor” 

protection against any administrative proceedings, civil penalties, and prosecution for its actions 

pursuant to 52 U.S.C. § 30108(c). Llames Decl., ¶ 21. The FEC issued an opinion refusing to 

confirm the legality of RFR’s ongoing and concretely impending future conduct. The FEC: 

● deadlocked and failed to reach a conclusion on whether RFR may provide its signed 

petition, including signatories’ contact information, to Governor DeSantis before he begins testing 

the waters under 11 C.F.R. § 100.72; 

● concluded RFR may not provide its signed petition with signatories’ contact 

information to Governor DeSantis once he begins testing the waters under 11 C.F.R. § 100.72 

because it would constitute an illegal excessive contribution in violation of that regulation; 

● concluded RFR may not provide its signed petition with signatories’ contact 

information to Governor DeSantis once he becomes a candidate under 52 U.S.C. § 30101(2) and 

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11 C.F.R. § 100.3(a) because it would constitute an illegal excessive contribution in violation of 

52 U.S.C. § 30116(a)(1)(A) and 11 C.F.R. § 110.1(b)(1); and 

● concluded RFR may not spent funds from its non-contribution Carey account on 

advertising or other expenses relating to its petition, if it provides the signed petition to Governor 

DeSantis while he is testing the waters or becomes a candidate, because such expenditures would 

transmute into an illegal excessive contribution in violation of 52 U.S.C. § 30116(a)(1)(A) and 11 

C.F.R. § 110.1(b)(1). 

See generally Compl., Exh. 11, at 1. 

The FEC’s advisory opinion, its refusal to grant RFR a statutory “safe harbor,” and the 

reasonable likelihood of administrative proceedings, civil penalties, and prosecution under the 

FECA have chilled RFR from exercising its rights by deterring it from providing the signed 

petition with signatories’ contact information to Governor DeSantis at any point, unless and until 

this Court enters an injunction and/or declaratory judgment in its favor. Llanes Decl. ¶ 23. 

ARGUMENT 

I. READY FOR RON HAS A FIRST AMENDMENT RIGHT TO 

SOLICIT AND GATHER SIGNATURES FOR ITS PETITION, 

AND PRESENT THE SIGNED PETITION TO GOVERNOR 

DESANTIS AT A TIME OF ITS CHOOSING 

RFR’s fundamental First Amendment rights of speech and political association allow it to 

provide its signed petition with the signatories’ contact information to Governor DeSantis at any 

time, and to fund its petition-related activities through its non-contribution Carey account. The 

FECA’s contribution limits are unconstitutional as applied to pure political speech like a signed 

petition. Contribution limits are generally subject only to intermediate scrutiny and constitutionally 

permissible because they typically “entail[] only a marginal restriction upon the contributor’s 

ability to engage in free communication.” Buckley v. Valeo, 424 U.S. 1, 20, 25 (1976) (per curiam). 

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Buckley explained, “A contribution serves as a general expression of support for the candidate and 

his views, but does not communicate the basis for the underlying support. . . . [T]he expression 

rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the 

contribution provides a very rough index of the intensity of the contributor’s support for the 

candidate.” Id. at 21. The Court further emphasized contribution limits “involve[] little direct 

restraint on . . . political communication” because they do “not in any way infringe the 

contributor’s freedom to discuss candidates and issues.” Id. 

This reasoning is patently inapplicable when the supposed contribution is, itself, political 

speech, such as a signed political petition. The Supreme Court has never allowed contribution 

limits to be applied to prohibit pure political speech by American citizens. Treating RFR’s signed 

petition as a contribution would impose much more than “a marginal restriction upon the 

contributor’s ability to engage in free communication.” Id. at 20–21. Petitioning Governor 

DeSantis is not an “undifferentiated, symbolic act,” but rather direct, express political speech that 

lies at the heart of the First Amendment. Id. at 21. The petition expressly “communicat[es] the 

underlying basis for [signatories’] support” of Governor DeSantis and proudly displays the 

identities and contact information of those who have chosen to join it. Id. Accordingly, the FEC’s 

sweeping conception of in-kind contributions imposes a “direct restraint” on both RFR’s and the 

petition signatories’ “freedom to discuss candidates and issues.” Id. at 21. 

Joining together in a petition is also a fundamental, time-honored form of political 

association. “[T]he practice of persons sharing common views banding together to achieve a 

common end is deeply embedded in the American political process. The 18th-century Committees 

of Correspondence . . . were early examples of this phenomena . . . .” Citizens Against Rent 

Cont./Coalition for Fair Hous. v. Berkeley, 454 U.S. 290, 294 (1981). As the Court elaborated, 

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“[B]y collective effort individuals can make their views known, when, individually, their voices 

would be faint or lost.” Id.; see also NAACP v. Alabama, 357 U.S. 449, 460 (1958) (“Effective 

advocacy of both public and private points of view . . . is undeniably enhanced by group 

association, as this Court has more than once recognized by remarking upon the close nexus 

between the freedoms of speech and assembly.”). Indeed, Buckley itself recognized the right to 

freedom of association “is diluted if it does not include the right to pool money through 

contributions.” Buckley, 424 U.S. at 65-66. Here, Governor DeSantis’ supporters are not seeking 

to “pool money,” but rather join together in a petition, amplifying their voices through collective 

action in a way that would be impossible if acting individually. By barring RFR from presenting 

a signed political petition to Governor DeSantis, the Commission is severely hindering expressive 

political association. 

If an individual directly e-mailed Governor DeSantis to encourage him to run for President 

and provide their contact information, it would be pure political speech beyond the Commission’s 

constitutional ability to regulate. If that person instead urged people to sign a petition to Governor 

DeSantis to persuade him to run, both that person’s speech as well as the underlying petition would 

be likewise protected. Such pure political speech does not lose constitutional protection or become 

subject to governmental restriction simply because gathering the petition costs money. See 

Buckley, 424 U.S. at 16 (rejecting the notion “the dependence of a communication on the 

expenditure of money operates itself to introduce a nonspeech element”). Nor does a signatory 

lose their right to convey their political support for Governor DeSantis’ candidacy simply because 

they wish to join with others to convey it. See Eu v. San Francisco Cnty. Democratic Cent. Comm., 

489 U.S. 214, 224-25 (1989) (holding the state violated the First Amendment right to freedom of 

association by allowing individual members of political parties’ state and county central 

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committees to endorse candidates, but not the committees themselves). Accordingly, prohibiting 

RFR from submitting its signed petition to Governor DeSantis “heavily burdens core First 

Amendment expression.” Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 614 

(1996) (“Colorado I”) (plurality op.). 

Finally, RFR cannot constitutionally be required to anonymize its petition or alter or dilute 

its message by stripping the signatories’ contact information from it. The decision about whether 

or not to engage in political communications anonymously is itself protected by the First 

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

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

Amendment.”). Moreover, signatories affixing their names and contact information to the petition 

is an important form of expressive political association. Meyer v. Grant, 486 U.S. 414, 421 (1988) 

(“[C]irculation of a petition involves . . . interactive communication concerning political change . 

. . .”); see also Doe v. Reed, 561 U.S. 186, 232 (2010) (Thomas, J., dissenting) (“[S]igning a 

referendum petition amounts to political association protected by the First Amendment.”). 

Providing signatories’ contact information also helps establish the authenticity of the signatures 

and allows Governor DeSantis to confirm they are not fraudulent. 

In short, RFR’s signed petition with signatories’ contact information involves pure political 

speech and expressive association in a manner absent from other types of monetary and in-kind 

contributions. Cf. Buckley, 424 U.S. at 20-21. Accordingly, the FECA’s contribution limits should 

be subject to strict scrutiny insofar as they apply to RFR’s petition, and held unconstitutional as 

applied. 

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II. THE FEDERAL ELECTION CAMPAIGN ACT DOES 

NOT PROHIBIT READY FOR RON FROM PROVIDING 

ITS SIGNED PETITION TO GOVERNOR DESANTIS 

The FECA does not prohibit RFR from providing its signed petition, including contact 

information for its signatories—as well as any future updates or supplements to the petition—to 

Governor DeSantis. Section A explains the FECA is completely inapplicable to a signed political 

petition, meaning RFR may provide the signed petition and any supplements to Governor DeSantis 

at any time, regardless of whether he is “testing the waters” or has become a federal candidate. 

Section B demonstrates, in the alternative, the FECA allows RFR to provide its signed petition to 

Governor DeSantis before he becomes a candidate—regardless of whether the Commission 

decides he is “testing the waters.” This Section demonstrates the FECA neither empowers the 

Commission to regulate efforts to “draft” federal candidates, nor otherwise regulates contributions 

to individuals who have not yet become candidates. Indeed, Congress has repeatedly refused to 

grant the Commission’s repeated requests for such authority. Finally, Section C shows, at the very 

least, RFR may provide its signed petition, including signatory contact information, to Governor 

DeSantis before he begins testing the waters. 

A. Ready for Ron May Provide Its Signed 

Petition to Governor DeSantis at Any Time 

The FECA does not prohibit RFR from providing a signed petition, including contact 

information for its signatories (as well as any updates or supplements) to Governor DeSantis at 

any time, even if he is testing the waters or has become a candidate. Under a plain-meaning 

interpretation of the FECA, a signed political petition does not qualify as a “contribution.” 

Alternatively, even if the information contained within a petition is deemed a “contribution,” the 

source of any contribution in this case is not RFR, but rather the people who have chosen to join 

together to sign the petition to encourage Governor DeSantis to run for office and asked RFR to 

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convey their signatures and contact information to him on their behalf. At most, RFR is a conduit, 

see 52 U.S.C. § 30116(a)(8); 11 C.F.R. § 110.6(a), not a contributor. The FECA’s limits therefore 

do not bar RFR from providing its signed petition to Governor DeSantis. 

1. A signed petition does not qualify 

as a “contribution” under FECA 

Contribution limits do not bar RFR from providing its signed petition to Governor DeSantis 

because the petition does not fall within the statutory definition of “contribution.” The FECA 

defines “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything 

of value made by any person for the purpose of influencing any election for Federal office.” 52 

U.S.C. § 30101(8)(A)(i) (emphasis added); 11 C.F.R. § 100.52(a). The signed petition does not 

qualify as a “contribution” under a plain-meaning interpretation of this definition because it is 

neither a “gift” nor a “thing of value” for purposes of this definition. 

a. A signed petition is not a “gift” 

The first reason RFR’s signed petition does not constitute a “contribution,” and therefore 

is not subject to the FECA’s contribution limits, is because the petition is not a “gift.” 52 U.S.C. 

§ 30101(8)(A)(i); 11 C.F.R. § 100.52(a). An undefined statutory term such as “gift” must be given 

its “ordinary, contemporary, common meaning.” Walters v. Metro. Educ. Enters., Inc., 519 U.S. 

202, 207 (1997); see Nat’l Grain & Feed Ass’n v. Occupational Safety & Health Admin., U.S. 

Dep’t of Labor, 845 F.2d 345, 346 (D.C. Cir. 1988) (defining statutory term based on its “plain 

meaning” and “ordinary usage”); see also Ass’n of Private Sector Colleges & Univs. v. Duncan, 

681 F.3d 427, 443 (D.C. Cir. 2012). Customary usage of language determines whether something 

constitutes a “gift” under § 30101(8)(A)(i). See In re McDonald for Congress, FEC A.O. 1976-86, 

at *1 (Oct. 6, 1976) (determining whether an act constitutes a “gift” primarily based on the 

industry’s customary practice). Pure political speech which lies at the heart of the First 

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Amendment, such as a signed petition urging a person to become or remain a candidate, is not 

ordinarily characterized as a “gift” and therefore does not constitute a “contribution.” See, e.g., 

Brunswick Corp., FEC A.O. 1984-43, at *2 (Sept. 14, 1984) (“[T]he endorsement of a candidate 

by a corporation does not by itself constitute a prohibited contribution . . . .”); cf. Watson v. United 

States, 552 U.S. 74, 79 (2007) (“The Government may say that a person ‘uses’ a firearm simply 

by receiving it in a barter transaction, but no one else would.”). 

Since the term “gift” appears in a statutory list, this Court can also apply the noscitur a 

sociis canon to confirm its meaning. The noscitur canon “dictates ‘words grouped in a list should 

be given related meaning.’” Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) (quoting 

Massachusetts v. Morash, 490 U.S. 107, 114-15 (1989)); Jarecki v. G.D. Searle & Co., 367 U.S. 

303, 307 (1961) (explaining the noscitur canon means that a term in a legal provision “is known 

by the company it keeps”). The maxim, “while not an inescapable rule, is often wisely applied 

where a word is capable of many meanings in order to avoid the giving of unintended breadth to 

the Acts of Congress.” Jarecki, 367 U.S. at 307. 

The Supreme Court frequently invokes noscitur a sociis to develop a more “precise” and 

accurate definition for a potentially broad term in a statutory list to make it correspond better with 

the other terms in the list. United States v. Williams, 553 U.S. 285, 294 (2008). In Yates v. United 

States, 574 U.S. 528, 544 (2015) (quoting 18 U.S.C. § 1519), for example, the term “tangible 

object” appeared “last in a list of [statutory] terms that beg[an] ‘any record [or] document.’” 

Applying the noscitur a sociis canon, the Court concluded that, despite its apparent facial breadth, 

“tangible object” referred solely to “objects used to record or preserve information.” Id.; see also 

Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (construing the term “communication” in a 

federal securities statute to include only “public communication[s],” because the other items listed 

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in that provision “refer[] to documents of wide dissemination”); Dole, 494 U.S. at 36 (concluding 

the phrase “reporting and recordkeeping requirements” in a statutory definition referred only to 

“rules requiring information to be sent or made available to a federal agency,” based on the other 

elements included in that definition). 

In this case, the term “contribution” is defined as including a “gift,” as well as any 

“subscription, loan, advance, or deposit.” 52 U.S.C. § 30101(8)(A)(i); accord 11 C.F.R. 

§ 100.52(a). Read in that context, it becomes apparent the term “gift” includes transfers with a 

financial aspect, and does not extend to signed political petitions with their signatories’ contact 

information. See McDonnell v. United States, 136 S. Ct. 2355, 2368–69 (2016) (holding the term 

“any question” within the federal bribery statute’s definition of “official act” had to be construed 

narrowly and in context). Since RFR’s petition is not a gift, it does not fall within the statutory or 

regulatory definition of “contribution,” and therefore the FECA’s contribution limits do not 

prohibit RFR from providing it to Governor DeSantis at any time. 

b. A signed petition is not a “thing of value” for 

purposes of the definition of “contribution” 

RFR’s petition also fails to satisfy another statutory element of the definition of 

“contribution”: the petition is not a “thing of value” for purposes of 52 U.S.C. § 30101(8)(A)(i) 

and 11 C.F.R. § 100.52(a). Even though constitutionally protected acts of political expression may 

have value to a candidate, they do not constitute “things of value” for purposes of these provisions. 

See Assoc. Buildings & Contractors, FEC A.O. 1984-23, at 2 (June 22, 1984) (ruling, before 

Citizens United recognized the constitutional right of corporations to engage in political speech, 

that a corporation or labor union may “endorse a candidate and may publicly announce its 

endorsement and state the reason or reasons for it,” regardless of whether the endorsement is a 

thing of value, because such endorsement does not constitute a “contribution”). 

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The Commission’s regulations concerning the meaning of the phrase “thing of value” 

explain, “[T]he provision of any goods or services without charge or at a charge that is less than 

the usual and normal charge for such goods or services is a contribution.” Id. § 100.52(d)(1) 

(emphasis added). A signed political petition with the signatories’ contact information, however, 

is neither a “good” nor a “service” within the ordinary understanding of those terms. Moreover, 

under 11 C.F.R. § 100.52(d)’s plain terms, a good or service must carry a “usual and normal 

charge” to constitute “anything of value” and qualify as a contribution. 11 C.F.R. § 100.52(d); see, 

e.g., Preston v. Leake, 743 F. Supp. 2d 501, 511 (E.D.N.C. 2010) (stating, in construing a 

comparable state campaign finance provision, “[p]roviding a service to a candidate for free when 

one usually charges for it is an in-kind contribution”), aff’d, 660 F.3d 726 (4th Cir. 2011). Signed 

petitions seeking to encourage a public figure to take some action or are customarily provided to 

their addressees free of charge; they are not regarded as “goods” or “services” for which the 

recipient must typically pay. Thus, because RFR’s signed petition is not a “good,” and the 

addressee of a political petition does not pay any “usual and ordinary charge” for it, the petition is 

not “anything of value” under 11 C.F.R. § 100.52(a), (d), and therefore does not qualify as a 

“contribution” under 52 U.S.C. § 30101(8)(A)(i) and 11 C.F.R. § 100.52(a); cf. Statement of 

Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” 

Trainor, III, In re Donald J. Trump for President, Inc., MURs 7265 & 7266, at 2 & n.8 (May 10, 

2021) (expressing reticence to adopt the FEC Office of General Counsel’s “tenuous legal theory 

of what constitutes a ‘thing of value’” and doubting whether the term includes the provision of 

“general information that is helpful to a campaign”). 

c. The Commission’s reasons for treating RFR’s 

signed petition as a “contribution” are erroneous 

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The FEC deadlocked on whether RFR may provide its signed petition to Governor 

DeSantis before he begins testing the waters, and affirmatively concluded it may not do so once 

Governor DeSantis begins testing the waters or becomes a candidate. Compl. Exh. 11 at 1. The 

Commission ruled RFR’s provision of its signed petition with its signatories’ contact information 

to Governor DeSantis is a “contribution” because the Commission has historically treated 

“membership lists,” “mailing lists,” and “contributor lists” as contributions. Id. at 5 (“The 

Commission’s regulation specifically identifies ‘membership lists’ and ‘mailing lists’ as examples 

of goods that are in-kind contributions when provided to a candidate . . . without charge . . . .” 

(citing 11 C.F.R. § 100.52(d)(1)); see also id. at 8-9 (“[T]he Commission has previously concluded 

that political committee mailing lists and membership lists have value and that the provision of 

such lists to a candidate . . . at no charge . . . is a contribution.”). The Commission added, “The 

contact information in [RFR’s] petition would be of significant value to Governor DeSantis” 

because of its “expensive development costs” and inclusion of “persons who are advocating in 

favor of Governor DeSantis running for President.” Id. at 7. Neither of the judicial precedents the 

Commission relied upon dealt with signed political petitions, however. See FEC v. Int’l Funding 

Institute, 969 F.2d 1110, 1118 (D.C. Cir. 1992) (en banc), cited by Compl. Exh. 11 at 5 (holding 

the Commission may bar a private entity from reselling contributor information it obtains from 

disclosure reports that political committees file with the FEC); FEC v. Christian Coalition, 52 F. 

Supp. 2d 45, 77, 96 (D.D.C. 1999) (holding the FEC could pursue penalties against a political 

committee for providing a candidate with a list of likely delegates to the 1994 Virginia Republican 

convention who “were highly likely to share [the committee’s] views on a number of issues”). 

The Commission erred by mechanistically treating a signed political petition as if it were 

a commercially purchased or sold contributor, mailing, membership, or distribution list. First, 

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RFR’s signed political petition involves a constitutionally protected communication to Governor 

DeSantis attempting to persuade him to run for President. Cf. Meyer v. Grant, 486 U.S. 414, 421 

(1988) (“[T]he circulation of a petition involves the type of interactive communication concerning 

political change that is appropriately described as ‘core political speech.’”). Contributor, mailing, 

and distribution lists, in contrast, are simple amalgamations of data that do not involve, convey, or 

communicate any political message. It is much more appropriate to treat them as a “good” than a 

political petition. As RFR emphasized at the September 15 Commission hearing, it does not enrich 

or otherwise supplement any of the data provided by signatories into the petition, as it would with 

a commercially mailing or distribution list or other data for RFR’s own internal use. Video of 

Sept. 15, 2022 FEC Hearing at 23:03 to 23:26, 

https://www.youtube.com/watch?v=BWfuTD46wwM. 

Second, the petition reflects the voluntary, affirmative political and expressive association 

of Governor DeSantis’ supporters. “[T]he practice of persons sharing common views banding 

together to achieve a common end is deeply embedded in the American political process. . . . [I]n 

the political process it can focus on a candidate . . . .” Citizens Against Rent Control / Coal. For 

Fair Hous. v. Berkeley, 454 U.S. 290, 294 (1981). The Court explained, “[B]y collective effort 

individuals can make their views known, when, individually, their voices would be faint or lost.” 

Id. at 295; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (“An individual’s freedom 

to speak . . . could not be vigorously protected from interference by the State [if] a correlative 

freedom to engage in group effort toward those ends were not also guaranteed.”). 

The petition is a voluntary association of Governor DeSantis’s supporters who have joined 

together to urge him to become a candidate. People’s names and contact information can wind up 

on many mailing or distribution lists, in contrast, without their knowledge or consent; their 

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inclusion does not constitute joint association to further political goals or the willful expression of 

any political idea. Allowing people to individually encourage Governor DeSantis to run for 

President and provide him with their contact information, while prohibiting them from joining 

together to do so in the context of a petition, seriously burdens associational rights in a way that is 

completely absent from restrictions on mailing, contribution, or distribution lists. See Eu v. San 

Francisco Democratic Cent. Comm., 489 U.S. 214, 224-25 (1989) (“[I]mposing limitations ‘on 

individuals wishing to band together to advance their views on a ballot measure, while placing 

none on individuals acting alone, is clearly a restraint on the right of association.’” (quoting 

Citizens Against Rent Cont., 454 U.S. at 296)). While a third party’s compilation of data might be 

deemed a “good,” a list of voluntary signatories choosing to associate together cannot be. 

Finally, RFR’s petition implicates Governor DeSantis’ fundamental First Amendment 

right to receive information. See Va. State Bd. of Pharmacy v. Va. Citizens Cons. Council, 425 

U.S. 748, 757 (1976) (acknowledging the “First Amendment right to receive information and 

ideas” (quotation marks omitted)); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well 

established that the Constitution protects the right to receive information and ideas.”); see also 

Martin v. Struthers, 319 U.S. 141, 143, 148-49 (1943) (discussing the “right to receive” 

information). The FEC’s Advisory Opinion infringes Governor DeSantis’ right to receive political 

communications and learn the identities of supporters who affirmatively wish to encourage him to 

run for President. 

Thus, the Commission erred in both overlooking the fundamental distinguishing 

characteristics of RFR’s petition and shoehorning it into the regulation declaring “membership 

lists[] and mailing lists” to be things of value and therefore contributions. 11 C.F.R. § 100.52(d)(1). 

Unlike such barren aggregations of information, a signed political petition: (i) conveys an 

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intentional political message implicating the fundamental First Amendment expression rights of 

each individual who signs it; (ii) arises from the knowing, voluntary consent of the petition’s 

supporters to join together in expressive political association; and (iii) implicates the First 

Amendment right of the petition’s intended recipient to receive the political communication 

involved. Thus, the signed petition containing its signatories’ individually provided contact 

information does not constitute an in-kind “contribution” under the FECA and therefore cannot 

run afoul of contribution limits. 

2. Ready for Ron is not the source of any contribution to Governor 

DeSantis, but instead is merely acting as a conduit, providing the 

petition and signatories’ contact information on the signatories’ behalf 

Even 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, rather than RFR. RFR is merely a conduit passing along a message and contact 

information from each signatory, at the signatory’s request, to Governor DeSantis. See 52 U.S.C. 

§ 30116(a)(8); 11 C.F.R. § 110.6(a). 

The FECA provides, “[A]ll contributions made by a person, either directly or indirectly, 

on behalf of a particular candidate, including contributions which are in any way earmarked or 

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

contributions from such person to such candidate.” 52 U.S.C. § 30116(a)(8); accord 11 C.F.R. 

§ 110.6(a). Here, the “thing of value” the FEC concluded constitutes a contribution is the name, 

zip code, e-mail address, and/or phone number of each signatory.1 RFR included messages on its 

1

 The funds RFR spent on advertising and maintaining its website and hotline, in contrast, are not 

contributions to Governor DeSantis. To the contrary, such funds are likely independent 

expenditures since RFR’s communications expressly advocated the defeat of a clearly identified 

federal candidate, President Joe Biden; the funds were not spent “in concert or cooperation with 

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petition webpage and telephone recordings stating, by virtually signing the petition and providing 

their contact information, a signatory is requesting to have R4R provide the information they 

submit to Governor DeSantis. RFR’s website, for example, invites people to sign the petition if 

they wish to express, “I am Ready for Ron! Let Ron know I’m behind him and want to join his 

team!” Llames Decl. ¶ 14. A notice at the bottom of the screen informs users, by virtually signing 

the petition and providing their contact information, they are requesting to have RFR provide it to 

Governor DeSantis. Id. Likewise, when a person calls RFR’s petition hotline or receives a robocall 

from RFR, a prerecorded message invites them to “press 1” to sign the petition and provide their 

contact information, and have RFR provide it to Governor DeSantis. Id. ¶ 15. 

RFR includes a person’s name or contact information on its petition only at that person’s 

express request and direction. Id. ¶ 17. Each signatory makes the decision for him- or herself to 

add their name and contact information to the petition for transmission to Governor DeSantis. 

Thus, the true contributor is the individual providing their contact information; R4R appends the 

signatory’s name and contact information to the petition and passes it along to Governor DeSantis 

on the individual’s behalf.2 In other words, RFRs acts as a conduit through which contact 

or at the request or suggestion of” Governor DeSantis; and Governor DeSantis never had 

possession, custody or control of such funds. See 52 U.S.C. § 30101(17). 

2 Given the de minimis value of each individual signatory’s contact information, it should not count 

against the signatory’s contribution limit. Contact information an individual provides directly to a 

candidate through a web portal or otherwise is not regarded as a “contribution” which counts 

against that person’s contribution limit to the candidate due to the de minimus value of that 

information. Cf. Hon. Cecil Heftel, FEC A.O. 1977-51, at 2 (Nov. 16, 1977) (concluding a Member 

of Congress’ “receipt of macadamia nuts from corporations, trade associations, [or] individuals” 

does not constitute a “contribution,” in part because they “appear to be of minimal value”). 

Likewise, an individual’s submission of their contact information through the website of a thirdparty intermediary such as R4R to send to a potential candidate on their behalf should be subject 

to the de minimus exception to “contributions,” as well. 

Moreover, although a political committee is typically required to itemize each conduit 

contribution it facilitates in its disclosure reports, see 11 C.F.R. § 110.6(c)(1), RFR should not be 

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information for the petition’s signatories is transmitted from those signatories to the petition’s 

recipient. See 52 U.S.C. § 30116(a)(8); 11 C.F.R. § 110.6(a). 

If individuals provided checks to RFR to transmit to Governor DeSantis—even at RFR’s 

behest or as a result of RFR’s solicitations and advertisements—it is undisputed that, under 52 

U.S.C. § 30116(a)(8), those individuals would be the source of any donation or contribution, 

Governor DeSantis would be the recipient, and RFR would be merely the conduit responsible for 

transmitting the checks to him. See ActBlue, FEC A.O. 2006-30, at 6 (Nov. 9, 2006) (“[T]he 

earmarked contributions would be contributions from the original contributor to the Prospective 

Candidate . . . .”); see also WE LEAD, FEC A.O. 2003-23, at 4 (Nov. 7, 2003) (“[C]ontributors 

may earmark contributions to the primary committee of the presumptive nominee through [an 

intermediary committee]. . . .”). 

Likewise, if each petition signatory individually sent their contact information directly to 

Governor DeSantis—even at RFR’s behest or as a result of RFR’s solicitations or 

advertisements—each such person would properly be regarded as the source of that information. 

The FECA does not prohibit them from instead choosing to join together to transmit their 

signatures and contact information to Governor DeSantis through a conduit, RFR. And the identity 

required to individually report to the FEC each individual who signs its petition and provides 

contact information through RFR’s portal for Governor DeSantis. Mandating such disclosure 

would require RFR to list potentially hundreds of thousands of individual transactions with a 

nominal value of approximately $0.05 each. Disclosing such voluminous granular data would not 

help the public decide which candidates to support, prevent corruption, or impede circumvention 

of contribution limits. Cf. Buckley, 424 U.S. at 66-68 (identifying constitutionally permissible 

grounds for disclosure requirements concerning campaign finance funds). Moreover, the FEC has 

recognized de minimis exceptions to other requirements, see, e.g., 11 C.F.R. §§ 100.24(c)(7), 

113.1(g)(1)(i)(C), 114.4(c)(6), 9008.9(c). Imposing such a substantial burden would be an 

unreasonable, unconstitutional application of the FECA. Both the Constitution and principles of 

statutory interpretation exempt R4R from having to report a separate conduit contribution to reflect 

the contact information of each individual signatory it passes along to Governor DeSantis on the 

signatory’s behalf. 

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of the contributor does not change simply because RFR is waiting to amass a substantial number 

of signatures with contact information before delivering its petition to Governor DeSantis to ensure 

the petition has maximum effect, rather than forwarding each signature to Governor DeSantis 

immediately upon its submission. If an individual provides a thing of value—their contact 

information—to RFR with the express request the information be transmitted to Governor 

DeSantis, that individual should be deemed the source of the transaction, Governor DeSantis the 

recipient, and RFR the conduit. 

Indeed, the FEC’s refusal to approve RFR’s conduit activities is particularly objectionable 

given its advisory opinions protecting ActBlue, a non-connected political committee which solicits 

and processes over one billions dollars’ worth of online political contributions for Democratic 

candidates each cycle through its website, http://secure.ActBlue.com.

3 Federal regulations 

generally require a conduit committee to forward an earmarked contribution, along with the name 

and address of the contributor, to the designated recipient candidate within ten days of receipt. 52 

U.S.C. § 30102(b)(1)-(2); 11 C.F.R. § 102.8(a)-(b); see, e.g., ActBlue, A.O. 2006-30, at 6-7 (Nov. 

9, 2006) (discussing ActBlue’s legal obligation to forward the names and addresses of each person 

who made a contribution through ActBlue to the recipient candidate). 

When ActBlue transmits a contribution to the designated recipient candidate, however, it 

provides not only the legally required identifying information about the contributor, but also the 

contributor’s phone number and e-mail address—which the FECA does not require ActBlue to 

3 For example, in the 2020 election cycle, ActBlue processed 15,672,773 contributions totaling 

$647,286,951 to Joe Biden alone; it provided Biden not only with the funds, but the identifying 

information and contact information for each contributor. See Vendor/Recipient Profile: BIDEN 

FOR PRESIDENT, OPEN SECRETS (last referenced Oct. 23, 2022), 

https://www.opensecrets.org/campaign-expenditures/ 

vendor?cycle=2020&vendor=BIDEN+FOR+PRESIDENT 

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provide and the recipient candidate is not required to report to the FEC. See Does ActBlue Share 

My Personal Information, Including Email Address and Phone Number?, ACTBLUE (last 

referenced Sept. 26, 2022) (explaining, in addition to information “[r]equired by federal law,” it 

also “pass[es] along [a contributor’s] email address, as well as your phone number if you choose 

to provide it, to the group [the contributor] gave to . . . so they can stay in touch”), 

https://support.actblue.com/donors/about-actblue/does-actblue-share-my-personal-informationincluding-email-address-and-phone-number/. 

This Commission has repeatedly upheld such arrangements. FEC A.O. 2006-30, at 6-7; 

see also Skimmerhat, FEC A.O. 2012-22, at 3, 5 (Aug. 2, 2012) (approving a website which 

allowed a user to make contributions to the candidates she designates, where the website’s operator 

would “forward all contributions within ten days of receipt along with certain identifying 

information” about the contributors to those candidates); cf. ActBlue, FEC A.O. 2007-27, at 7 

(Dec. 17, 2007) (approving ActBlue’s use of password-protected sites to solicit conduit 

contributions from the restricted classes of corporations’ and unions’ separate segregated funds to 

those funds). 

ActBlue, FEC A.O. 2008-10 (Jan. 15, 2015), is even more closely on point. ActBlue wished 

to establish various “draft fund[s]” where “users would make contributions earmarked for specific 

women who are potential candidates for President in 2016 but who have not yet formed authorized 

presidential campaign committees.” Id. at 2. ActBlue would forward any contributions earmarked 

for an individual to that person if she formed a presidential candidate committee by a specified 

deadline. Id. The Commission concluded ActBlue could accept contributions from users on behalf 

of individuals who are not yet federal candidates, to forward to those individuals once they become 

candidates. Id. at 4; see also id. at 5 (“ActBlue may act as a conduit or intermediary for 

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contributions earmarked for prospective candidates . . . .”); see also A.O. 2006-30, at 3 (“ActBlue 

may solicit and receive contributions from individuals earmarked for Prospective Candidates” and 

“forward the earmarked contributions to the candidates . . . .”). “Contributions that ActBlue 

transfers . . . to the designated candidate . . . would be attributed to the persons who contributed 

[those funds], and not to ActBlue.” A.O. 2008-10, at 4; see also A.O. 2006-30, at 6; Pro-Life 

Democratic Candidate PAC, FEC A.O. 2019-11, at 2, 6 (July 25, 2019) (allowing a draft fund to 

accept conduit contributions to provide to a pro-life Democratic presidential candidate who met 

certain “experience and endorsement criteria” if one were drafted). 

The Commission’s advisory opinion in this case establishes a perverse pay-to-play system 

where an intermediary may gather contact information about a potential candidate’s supporters 

only if those supporters make monetary conduit contributions to the candidate. If RFR required 

people to provide contributions through its website to Governor DeSantis as a condition for signing 

its petition then, like ActBlue, it could collect contributors’ contact information to provide to him. 

It is absurd and constitutionally erroneous for monetary contributions to receive greater protection 

than pure political speech. See Buckley, 424 U.S. at 44-45 (subjecting restrictions on expenditures 

to strict scrutiny, but contribution limits only to intermediate scrutiny because “expenditure 

limitations impose far greater restraints on the freedom of speech and association than do its 

contribution limitations”). RFR should be permitted to provide its signed petition to Governor 

DeSantis without having to charge signatories for the privilege of signing. Cf. A.O. 2006-30, at 6-

7; A.O. A.O. 2008-10, at 5. The FECA’s conduit provision, 52 U.S.C. § 30116(a)(8); accord 11 

C.F.R. § 110.6(a), allows RFR to provide an opportunity for people to join together in collective 

political expression to attempt to draft the presidential candidate of their choice without having to 

provide a monetary contribution. 

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In short, RFR’s signed petition is not a large in-kind contribution from RFR to Governor 

DeSantis simply because it contains signatories’ personally provided contact information. Rather, 

at most, RFR is facilitating a series of miniscule in-kind contributions, each of negligible value, 

from DeSantis supporters who have signed its petition. Accordingly, contribution limits do not bar 

RFR from providing the signed petition with signatories’ contact information, as well as any future 

updates or supplements, to Governor DeSantis. 

B. In the Alternative, Ready for Ron May Provide Its Signed 

Petition to Governor DeSantis Before He Becomes a Candidate, 

Regardless of Whether He Is “Testing the Waters” 

Contribution limits do not prohibit RFR from providing its signed petition to Governor 

DeSantis unless and until he becomes a “candidate” for federal office. Accordingly, RFR may 

provide the signed petition to him at any point before he becomes a candidate, regardless of 

whether the Commission concludes he is “testing the waters.” 

The FECA limits the amount a political committee such as R4R may contribute to a 

“candidate” for federal office (or a candidate’s “authorized political committee[]”). See 52 U.S.C. 

§ 30116(a)(1)(A); 11 C.F.R. § 110.1(b)(1).4 The FECA defines the term “candidate” as someone 

who “seeks nomination for election, or election, to Federal office,” as evidenced by the fact he or 

she has received, spent, or authorized the receipt or expenditure of more than $5,000 to seek a 

federal office. 52 U.S.C. § 30101(2); accord 11 C.F.R. § 100.3(a). A person who has not satisfied 

those requirements is not a “candidate” for purposes of the FECA. By its plain terms, the FECA’s 

contribution limit does not apply to donations, transfers, or other such interactions with a person 

who has not qualified as a “candidate.” 

4 Since R4R is not a multicandidate PAC, it falls within FECA’s definition of “person” for 

purposes of contribution limits. See 52 U.S.C. § 30101(11); accord 11 C.F.R. § 100.10. 

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Governor DeSantis is not presently a candidate for President or any other federal office in 

the 2024 election or any other election. He has not declared his candidacy for any federal office. 

According to the FEC’s online database, see https://www.fec.gov/data/candidates/?q=desantis, he 

has neither created nor authorized any federal candidate committees for the purpose of raising 

funds in connection with any future elections. The FEC has identified no evidence he has raised 

or spent any funds, much less $5,000, in connection with the 2024 presidential election. 

Accordingly, since Governor DeSantis does not presently qualify as a “candidate” for purposes of 

federal campaign finance law, the FECA’s contribution limits do not apply to any donations or 

transfers to him, 52 U.S.C. § 30116(a)(1)(A); 11 C.F.R. § 110.1(b)(1). 

As this Section explains, the D.C. Circuit has repeatedly held the FECA does not allow the 

Commission to regulate efforts to “draft” potential candidates, precisely because such efforts (by 

definition) are aimed at people who are not yet candidates under the FECA. Moreover, the 

Commission has repeatedly implored Congress to extend the statutory definitions of “contribution” 

and “expenditure” to include payments and donations made in connection with efforts to persuade 

someone to become a federal candidate. Congress has repeatedly rejected such proposals. The 

FECA’s “testing the waters” regulation, which purports to expand the reach of the FECA’s 

contribution limits to regulate efforts to “draft” non-candidates by persuading them to run for 

office, is invalid. And in any event the regulation is inapplicable to this case because, by its plain 

terms, it limits only the provision of “funds” to people who are testing the waters, and not in-kind 

contributions of other things of value to them. Thus, RFR may provide its signed petition with 

contact information for its signatories, along with any future updates or supplements, to Governor 

DeSantis at any time before Governor DeSantis becomes a federal candidate under the FECA. 

1. Binding D.C. Circuit precedent precludes the 

FEC from regulating disbursements made in an 

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effort to “draft” someone to become a candidate 

Binding D.C. Circuit precedent holds the FECA does not regulate efforts to “draft” 

candidates for federal office. “[A]t the time [the FECA] was written and amended in 1971, 1974, 

and 1976,’draft’ groups were either unheard of, or else not considered as a factor of sufficient 

importance in the political process to warrant concern by Congress.” Federal Election Comm’n v. 

Machinists Non-Partisan Political League, 655 F.2d 380, 382 (D.C. Cir. 1981) [hereinafter, 

“Machinists”]. Noting the FECA “nowhere mentions ‘draft’ groups,” the D.C. Circuit has refused 

to read the statute to “imply coverage for such groups.” Id. at 394; see also id. (declining to “stretch 

the statutory language, or read into it oblique references of Congressional intent to include ‘draft’ 

groups”). Federal regulations do not discuss “draft” efforts, either. The only reference to 

“draft[ing] an individual . . . to encourage him or her to become a candidate” in the Commission’s 

regulations is to exempt draft committees from the restrictions that typically apply to the use of 

candidates’ names by unauthorized committees. 11 C.F.R. § 102.14(b)(2). 

In Machinists, 655 F.2d at 382, the Machinists Non-Partisan Political League (“the 

League”) was an unauthorized multicandidate political committee. It “encourage[ed] and assist[ed] 

the formation of ‘draft-Kennedy’ groups in several states” for the 1980 election. Id. at 382-83. 

Between May and November 1979, when Senator Ted Kennedy formally announced his candidacy 

for President, the League spent approximately $30,000 in connection with those draft groups. Id. 

at 382-83. The Carter campaign filed an administrative complaint, alleging the draft groups should 

have registered as political committees and the League’s disbursements to them violated 

contribution limits. Id. at 383, 390. The Commission opened an investigation into the groups and 

subpoenaed the League for information. Id. at 384. 

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The D.C. Circuit held the FEC lacked jurisdiction to issue the subpoena because draft 

committees were neither “political committees” under the FECA nor subject to FECA’s 

contribution or expenditure restrictions. Id. at 397. The Machinists Court began by declaring the 

FEC’s “investigation into ‘draft Kennedy’ groups represents an unprecedented assertion of subject 

matter jurisdiction for the FEC.” Id. at 386. The Commission was investigating “political activity 

and association” which had “never before [been] subject to bureaucratic scrutiny.” Id. It was 

targeting “the very heart of the organism which the first amendment was intended to nurture and 

protect: political expression and association concerning federal elections and officeholding.” Id. 

at 388; see also id. at 390 (holding draft committees’ activities involve “centrally important first 

amendment associational and advocacy interests”). 

Machinists went on to hold draft committees do not “fall within the Court’s limited 

definition of political committees.” Id. at 392. “Draft groups . . . aim to produce some day a 

candidate acceptable to them, but they have not yet succeeded. Therefore none is promoting a 

‘candidate’ for office, as Congress uses that term in FECA.” Id. Moreover, because a draft 

committee’s activities “are not related in any way to a person who has decided to become a 

candidate,” it has no “potential for corruption” that has been “specifically identified by Congress.” 

Id.; see also id. at 394 (noting a draft committee’s “contributions and expenditures do not relate to 

an identifiable ‘candidate’”). Machinists concluded, “In this delicate first amendment area, there 

is no imperative to stretch the statutory language, or read into it oblique references of 

Congressional intent to include ‘draft’ groups. . . . [W]e must decline to extend [FECA] to cover 

such groups.” Id.; accord FEC v. Citizens for Democratic Alternatives in 1980, 655 F.2d 397, 398 

(D.C. Cir. 1981); see also FEC v. Florida for Kennedy Comm., 681 F.2d 1281, 1287 (11th Cir. 

1982) (“[U]nauthorized groups electioneering on behalf of someone who is not yet a candidate for 

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federal office cannot be covered by the Act.”). The D.C. Circuit went on to reaffirm and apply 

Machinists as late as 2010. See Unity08 v. FEC, 596 F.3d 861, 867-68 (D.C. Cir. 2010). 

Machinists establishes RFR’s right to provide its signed petition to “draft” Governor 

DeSantis at anytime before he becomes a candidate; the FEC’s advisory opinion to the contrary 

flatly violates this precedent (which the Commission did not even bother mentioning). First, 

Machinists requires the Commission to be cautious in regulating private efforts to draft potential 

federal candidates, since such efforts not only involve the exercise of core First Amendment rights, 

Machinists, 655 F.2d at 388, but generally lie beyond FECA’s bounds, id. at 394. Second, the 

Court repeatedly emphasized the difference between “activities [to] support an existing 

‘candidate’” and “attempts to convince the voters or [the individual himself] that he would make 

a good ‘candidate’ or should become a ‘candidate.’” Id. at 396. Since a person who has not yet 

qualified as a candidate—including a person who may be “testing the waters”—is (by definition) 

not a candidate, disbursements made in the course of attempting to convince him “that he would 

make a good ‘candidate’ or should become a ‘candidate’” cannot qualify as “contributions” under 

FECA and are not subject to regulation. Id.; see also id. at 392 (emphasizing the target of a draft 

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

Third, Machinists rejected the notion efforts to draft a candidate carry a “potential for 

corruption.” Id. The Supreme Court has expressly emphasized preventing actual or apparent 

corruption are the only constitutionally permissible justifications for contribution limits. 

McCutcheon v. FEC, 572 U.S. 185, 191 (2014) (plurality op.) (“Congress may regulate campaign 

contributions to protect against corruption or the appearance of corruption.”); FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 496-97 (1985) (“[P]reventing corruption or 

the appearance of corruption are the only legitimate and compelling government interests thus far 

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identified for restricting campaign finances.”). Given the D.C. Circuit’s binding conclusions 

concerning the absence of corruption in efforts to draft a potential federal candidate, the First 

Amendment bars the Commission from applying contribution limits to prevent RFR from 

providing its signed petition to Governor DeSantis. Under Machinists’s interpretation of the 

FECA, RFR may provide its signed draft petition with signatories’ contact information, along with 

any updates or supplements, to Governor DeSantis before he becomes a candidate. 

2. 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 

This Court should not construe the term “contribution” to include donations or transfers to 

a person who has not yet become a candidate because Congress considered and rejected 

amendments to the FECA to that effect. The Supreme Court has consistently cautioned against 

interpreting statutes in ways which reflect proposals or amendments Congress failed to adopt. See, 

e.g., West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022) (“Congress, however, has consistently 

rejected proposals to amend the Clean Air Act to create such a program.”); City of Maui v. Haw. 

Wildlife Fund, 140 S. Ct. 1462, 1472 (2020) (“Congress did not accept these requests for general 

EPA authority over groundwater.”); Fourth Estate Pub. Ben Corp. v. Wall-street.com LLC, 139 S. 

Ct. 881, 891 (2019) (“Despite proposals to repeal § 411(a)’s registration requirement entirely, 

however, Congress maintained the requirement for domestic works.” (citations omitted)); see also 

Kimble v. Marvel Entm’t LLC, 576 U.S. 446, 458 n.4 (2015) (“Congress declined to enact bills 

that would have modified . . . tying doctrine . . . .”). 

Throughout the 1970s, the Commission itself repeatedly complained draft committees are 

not covered by FECA, and disbursements made for the purpose of inducing someone to run for 

federal office could not be considered “contributions” because the recipient was not yet a 

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“candidate.” For example, in 1976, the Commission stated, “Congress may wish to consider 

amending the Act to bring draft movements within the reporting provisions and contribution 

limits.” FEC, Annual Report 1976, at 74 (quoted in Machinists, 655 F.3d at 395), 

https://www.fec.gov/resources/cms-content/documents/ar76.pdf. It explained, “[P]ersons or 

committees supporting a draft movement on behalf of an individual who is not a candidate within 

the meaning of the Act may not have any reporting requirements.” Id. The Commission further 

recognized FECA’s limits on contributions to candidates were inapplicable during the “draft” stage 

before a person satisfied the statutory definition of “candidate.” It recommended Congress change 

the law to specify someone who contributes to a draft committee knowing a “substantial portion” 

of the contribution “will be expended on behalf of a clearly identified individual . . . be considered 

to have made a contribution to a ‘candidate.’” Id. at 75; see also FEC, Annual Report 1975, at 77 

(“Thought should be given to amending the law to make the contribution limitations applicable to 

draft movements. Under the present law, an individual is not a candidate unless he [satisfies the 

statutory requirements].”) (quoted in Machinists, 655 F.2d at 395), 

https://www.fec.gov/resources/cms-content/documents/ar75.pdf. 

In 1979, Congress followed only part of the Commission’s advice. It amended the FECA’s 

reporting provisions to require draft committees to disclose their receipts and disbursements. 

Machinists, 655 F.3d at 395. The House committee report accompanying the amendments to the 

reporting provisions declared, “The change was made to ensure that organizations set up to ‘draft’ 

individuals who are not actually candidates will be required to report.” Id. (quoting H. Rpt. No. 96-

422, at 15 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2874). The D.C. Circuit observed, 

“[T]here is no indication from the 1979 Amendments or the legislative history that such ‘draft’ 

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groups were to be bound by the contribution limitations. . . . Congress has never acted expressly 

to bring ‘draft’ groups within the coverage of contribution limitations.” Id. 

In 1987, the Commission asked Congress to expand the definition of “contribution” to 

include funds provided in the course of attempting to influence a person to run for federal office. 

See FEC, Legislative Recommendations—1987, reprinted in House Subcomm. on Elections, 

Comm. on House Admin., Hearings on Campaign Finance, 100th Cong., 1st Sess., at 869 (May 21, 

June 2, June 16, June 30, and July 14, 1987) (suggesting Congress amend the definitions of 

“contribution” and “expenditure” to include “funds contributed by persons ‘for the purpose of 

influencing a clearly identified individual to seek nomination for election or election to federal 

office’”). The Commission warned these changes were necessary because “a nonauthorized group 

organized to support someone who has not yet become a candidate may operate completely outside 

the strictures of the Federal Election Campaign Act.” Id. 

Throughout the early 1990s, Congress repeatedly considered legislation to redefine the 

terms “contribution” and “expenditure” in FECA to include payments or disbursements “for the 

purpose of expressly advocating that a clearly identified individual become a candidate for Federal 

office.” H.R. 708, 103rd Cong., § 8(a)(3) (Feb. 2, 1993); S.7, 103rd Cong., § 422(a) (Jan. 21, 

1993); H.R. 4934, 102nd Cong., § 504(a) (Apr. 9, 1992); S.6, 102nd Cong., § 622(a) (Apr. 11, 

1991); S.143, 102nd Cong., § 422(a) (Jan. 14, 1991); S.2595, 101st Cong., § 422(a) (May 12, 

1990); see also S. Comm. on Rules & Admin., Hearings on Proposed Amendments to the Federal 

Election Campaign Act of 1971, S. Hrg. 99-709, at 122, 303, App. 1F at 272 (Nov. 5, 1985; Jan. 22 

& Mar. 27, 1986) (reprinting S. 1891, 99th Cong., § 3(a), 3(d) (Dec. 3, 1985) (containing proposed 

potential amendment to 2 U.S.C. §§ 431(8)(A)(i), 431(9)(A)(i) to redefine “contribution” and 

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“expenditure” to include payments or disbursements “for the purpose of expressly advocating that 

a clearly identified individual become a candidate for Federal office”)). 

In the course of drafting the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-

155 (Mar. 27, 2002), Congress expressly considered and rejected the possibility of limiting 

disbursements to a person for the purpose of influencing them to become a federal candidate. In 

1999, Representative Steny Hoyer, who is presently Majority Leader of the U.S. House of 

Representatives, introduced H.R. 1818, 106th Cong., 1st Sess. (May 14, 1999), as part of 

Congress’ effort to amend the FECA. Section 106 of his bill would have amended the definitions 

of “contribution” to include “any gift, subscription, loan, advance, or deposit of money or anything 

of value made by any person for the purpose of influencing any clearly identified individual to 

seek nomination or election to Federal office.” Id. § 106(a)(1) (emphasis added). It similarly 

would have amended the definition of “expenditure” to include any “purchase, payment, 

distribution, loan, advance, deposit, or gift” made for that purpose. Id. § 106(a)(2). 

RFR’s proposed petition to Governor DeSantis—who presently is not a federal candidate— 

to attempt to “draft” him to run for President falls squarely within the legislative proposals for 

which the FEC repeatedly advocated, that Congress considered and repeatedly declined to adopt. 

The Commission’s advisory opinion inappropriately subjects RFR’s proposed conduct to 

contribution limits as if these legislative changes had been adopted. 

3. There is no legal authority for the FEC’s “testing the waters” regulation 

Despite the D.C. Circuit’s binding ruling, the FECA’s unambiguous text, and the statute’s 

legislative history confirming it neither regulates draft activities nor limits donations to people 

before they qualify as candidates, the FEC has promulgated a regulation purporting to establish 

such limits. 11 C.F.R. § 100.72, the FEC’s “testing the waters” regulation, applies to donations or 

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transfers to an individual who is not a candidate which are made “for the purpose of determining 

whether [they] should become a candidate.” See also Askew, FEC A.O. 1981-32, at 4 (Oct. 2, 

1981) (noting the testing the waters regulation applies to “activities designed to determine whether 

to run”). Examples of “testing the waters” activities include “conducting a poll, telephone calls, 

and travel.” 11 C.F.R. § 100.72(a). The regulation acknowledges such donations and transfers “are 

not contributions,” but nevertheless goes on to nullify that disclaimer by declaring, “Only funds 

permissible under the Act may be used for such [testing-the-waters] activities.” Id. 

The Commission has construed that provision to mean the FECA’s contribution limits 

apply to both monetary and in-kind donations to recipients who are testing the waters at the time 

such donations are made, even before the recipient has decided whether to become a candidate, 

see, e.g., Washington State Federal Comm., FEC A.O. 1998-18, at *3 (Oct. 9, 1998) (“Commission 

regulations provide for adherence to the Act’s limits and prohibitions at the time of the activity, in 

anticipation of the eventual candidacy.”); Congressman Vic Fazio, FEC A.O. 1985-38, at 3 

(Jan. 17, 1986) (“[T]his regulation applies the prohibitions and limitations of the Act to the ‘funds 

received’ and ‘Payments made’ for the purpose of determining whether an individual should 

become a candidate under the Act.”). The Commission explained people must be prohibited from 

making unlimited donations or transfers to individuals who are testing the waters to prevent 

“circumvention” of the FECA’s contribution limits. FEC, Payments Received for Testing the 

Waters Activities; Transmittal to Congress, 50 Fed. Reg. 9992, 9993-94 (Mar. 13, 1985); FEC, 

Effective Date: “Testing the Waters” Regulations, 50 Fed. Reg. 25,698, 25,698-99 (June 21, 

1985). Applying this principle, the Commission’s advisory opinion in this case bars RFR from 

providing its signed petition to Governor DeSantis once he is deemed to be “testing the waters.” 

Compl. Exh. 11 at 8. 

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The Commission lacks any statutory basis for prohibiting RFR from providing its signed 

petition with signatories’ contact information to Governor DeSantis, along with any supplements 

or updates, while the Commission deems him to be “testing the waters.” The FECA’s contribution 

limits apply only to donations or transfers to individuals who are “candidates.” 52 U.S.C. 

§ 30116(a)(1)(A); 11 C.F.R. § 110.1(b)(1). The statute goes on to define the term “candidate” as a 

person who is seeking nomination or election to federal office and has exceeded $5,000 in 

“contributions” or “expenditures.” 52 U.S.C. § 30101(2); 11 C.F.R. § 100.3(a). A person who is 

merely “testing the waters,” by definition, is not a candidate and therefore is not subject to the 

FECA’s contribution limits. 

There is no statutory ambiguity for the FEC to exploit to expand its reach to bar donations 

or transfers to non-candidates, regardless of whether they are “testing the waters.” Cf. Chevron, 

U.S.A., Inc. v. Nat’l Resources Def. Council, 467 U.S. 837, 843 (1984) (holding if Congress has 

“directly addressed the precise question at issue,” the agency and court must “give effect to the 

unambiguously expressed intent of Congress”). Contribution limits are already a prophylactic 

protection against the possibility of corruption, since “few if any contributions to candidates will 

involve quid pro quo corruption.” Citizens United v. FEC, 558 U.S. 310, 357 (2010). Limiting 

contributions—particularly a signed petition—to a person who is not a candidate, in order to 

prevent the possibility of an impermissible quid pro quo in the event the person decides to become 

a candidate, and then goes on to win the election, is exactly the sort of impermissible “prophylaxisupon-prophylaxis approach” the Court has repeatedly condemned. McCutcheon v. FEC, 572 U.S. 

185, 221 (2014) (quoting FEC v. Wis. Right to Life Inc., 551 U.S. 449 (2007) (opinion of Roberts, 

C.J.)); accord FEC v. Ted Cruz for Senate, 142 S. Ct. 1638, 1653 (2022). Accordingly, 11 C.F.R. 

§ 100.72(a) is arbitrary, capricious, contrary to law, invalid, and unenforceable to the extent it 

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purports to regulate donations to someone who is not a candidate at the time those donations are 

made. RFR is free to provide its signed petition to Governor DeSantis, regardless of whether he is 

testing the waters, and the FEC’s Advisory Opinion is invalid insofar as it concludes otherwise. 

The applicability of the “testing the waters” regulation is a particularly important issue due 

to the uncertainty expressed by half the Commissioners about whether Governor DeSantis may 

already be subject to it. As explained above, a person is “testing the waters” under the regulation 

if that person is “determining whether [he or she] should become a candidate.” 11 C.F.R. 

§ 100.72(a). Under this ill-defined and highly subjective standard, it is impossible for the 

Commission to determine whether public figures who have repeatedly affirmed an intent to run 

for President in 2024, such as the incumbent President Joseph Biden, are “testing the waters.”5 In 

the context of this case, several Commissioners emphasized during the Commission’s September 

15, 2022 hearing the difficulty of applying this vague standard to assess whether Governor 

DeSantis may be “testing the waters.” 

FEC Chair Dickerson, for example, suggested it is “unknown” and “speculative” whether 

Governor DeSantis was already “testing the waters,” even before receiving RFR’s signed petition, 

because the Commissioner has not “read every possible press report.” See Video of Sept. 15, 2022 

5 See, e.g., Brett Samuels, Biden Says He Intends to Run in 2024, Has Not Made a “Firm 

Decision,” THE HILL (7:49 P.M. ET, Sept. 18, 2022) (quoting President Biden as saying, “Look, 

my intention as I said to begin with is that I would run again. But it’s just an intention. But is it a 

firm decision that I run again? That remains to be seen.”), https://thehill.com/homenews/ 

administration/3649720-biden-says-he-intends-to-run-in-2024-has-not-made-a-firm-decision/; 

Sebastian Smith, Biden Warns China and Russia, Hedges on Seeking Reelection, BARRON’S (Sept. 

18, 2022) (explaining Biden “surprised many by hedging on whether he’ll seek reelection”), 

https://www.barrons.com/news/biden-hedges-on-seeking-reelection-01663552807; see also Carol 

E. Lee, et al., Biden Aides are Quietly Assembling a 2024 Campaign as They Await a Final 

Decision on His Political Future, FOX NEWS (Sept. 16, 2022), 

https://www.nbcnews.com/politics/joe-biden/biden-aides-are-quietly-assembling-2024-

campaign-await-final-decision-rcna48005. 

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FEC Hearing at 35:35 to 35:55, https://www.youtube.com/watch?v=BWfuTD46wwM. Of course, 

it is absurd to suggest a person must “read every possible press report” to determine whether they 

may submit a signed political petition to a public figure. Commissioner Weintraub later confirmed 

“you don’t know whether [Governor DeSantis] is testing the waters or not.” Id. at 52:44 to 53:56— 

a fact the Commission seemingly needs to know to be able to perform its regulatory functions. 

And – perhaps most shockingly – Commissioner Broussard declared that, merely by accepting the 

signed petition, Governor DeSantis would be deemed to be “testing the waters.” Id. at 46:53 to 

47:02. Particularly as construed by these Commissioners, the “testing the waters” regulation fails 

to give adequate warning to a reasonable person as to whether Governor DeSantis is deemed to be 

“testing the waters” for a potential candidacy at any particular point in time, enhancing the chill to 

RFR’s First Amendment activities. 

4. The “testing the waters” regulation does 

not apply to in-kind contributions 

Even if the “testing the waters” regulation is valid, by its plain terms it is inapplicable to 

this case. On its face, the regulation applies only to “funds” received by a person “for the purpose 

of determining whether [he or she] should become a candidate.” 11 C.F.R. § 100.72(a). The 

regulation is far narrower than the statutory and regulatory definition of “contribution,” which 

expressly includes gifts of either “money” or “anything of value.” 52 U.S.C. § 30101(8)(A)(i); 11 

C.F.R. § 100.52(a). There is no language in the testing-the-waters regulation purporting to regulate 

the provision of anything other than “funds.” This Court must enforce the critical distinction in 

language between §§ 100.52(a) and 110.1(b), which together limit the provision of both “money” 

and “anything of value” to “candidates,” and 11 C.F.R. § 100.72(a), which prohibits the provision 

only of “[f]unds” to a person who is “testing the waters.” See Henson v. Santander Cons. USA, 

Inc., 137 S. Ct. 1718, 1723 (2017) (“[U]sually at least, when we’re engaged in the business of 

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interpreting statutes we presume differences in language like this convey differences in meaning.” 

(citing Loughrin v. United States, 134 S. Ct. 2384 (2014))). Accordingly, the testing-the-waters 

regulation does not empower the Commission to limit non-monetary, in-kind donations to noncandidates who are merely testing the waters. 

Unapologetically ignoring the plain text of its own regulation, the Commission has opined 

that the term “funds” should be understood as including in-kind goods and services, as well. See 

In re Reubin Askew, FEC A.O. 1981-32, at *5 (Oct. 2, 1981) (“The fact that the quoted regulation 

refers specifically to ‘funds received’ was not intended . . . to deny the applicability of the 

exemption to ‘in kind’ donations for testing the water activity.”); see also Republican Majority 

Fund, FEC A.O. 1985-40, at 3 (Jan. 24, 1985) (concluding, under the testing-the-waters regulation, 

“‘funds received’ and ‘payments made’ include in-kind gifts of anything of value”). Reiterating 

these conclusions, the FEC’s advisory opinion in this case concludes RFR may not provide its 

signed petition to Governor DeSantis if he is “testing the waters.” Compl. Exh. 11 at 8 (“[I]f 

Governor DeSantis were to begin testing the waters for a potential federal candidacy . . . RFR 

would not be able to provide [the petition] to [him] without charge.”). To the contrary, since the 

FEC’s testing-the-waters regulation governs the provision only of “funds,” it does not limit RFR’s 

ability to provide its signed petition, along with any supplements and updates, to Governor 

DeSantis regardless of whether he is testing the waters. 

C. The Canons of Statutory Interpretation Counsel in Favor of 

Allowing RFR to Provide Its Signed Petition to Governor DeSantis 

To the extent any ambiguity exists over whether the FECA permits RFR to provide its 

signed petition to Governor DeSantis, regardless of whether he is “testing the waters” or has 

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become a “candidate,” numerous canons of statutory interpretation counsel in favor of construing 

the FECA narrowly, to permit RFR’s political expression and association. First, the constitutional 

avoidance canon requires this Court to construe statutory and regulatory terms narrowly in order 

to avoid unnecessarily raising serious First Amendment concerns. See Nat’l Labor Rel. Bd. v. 

Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (“[I]n the absence of a clear expression of 

Congress’ intent to bring teachers in church-operated schools within the jurisdiction of the Board, 

we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult 

and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.”); 

see also Rust v. Sullivan, 500 U.S. 173, 191 (1991) (noting the presumption “Congress did not 

intend” to authorize the issuance of regulations raising “‘grave and doubtful constitutional 

questions’” (quoting United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366, 

408 (1909))). This canon suggests this Court should interpret terms such as “gift” and “anything 

of value” within the statutory definition of “contribution” narrowly, see 52 U.S.C. § 

30101(8)(A)(i), to exclude political communications and signed draft petitions. It would likewise 

lead this Court to narrowly construe the term “funds” in the Commission’s testing-the-waters 

regulation, 11 C.F.R. § 100.72(a), as referring solely to monetary donations, so the regulation does 

not impede RFR’s ability to engage in political expression by providing its signed petition to 

Governor DeSantis. 

Second, the major questions doctrine allows this Court to reject the Commission’s attempt 

to expand campaign finance law to prohibit pure political speech by American citizens to 

encourage someone to become or remain a federal candidate. W. Va. v. EPA, 142 S. Ct. 2587, 2614 

(2022). “[J]udges presume that Congress does not delegate its authority to settle or amend major 

social and economic policy decisions.” Id. (quoting W. Eskridge, Interpreting Law: A Primer on 

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How to Read Statutes and the Constitution 288 (2016)). It is “‘highly unlikely that Congress would 

leave’ to ‘[the Commission’s] discretion’ the decision” of whether a group may provide a political 

petition to a public figure. Id. at 2613 (quoting MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 

(1994)). Prohibiting political petitions is exactly the type of unusual, sweeping power for which 

this Court must “‘hesitate before concluding that Congress’ meant to confer such authority.” Id. at 

2608 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000)). 

Finally, the rule of lenity requires this Court to resolve any remaining doubts in RFR’s 

favor and interpret ambiguous terms narrowly. The rule of lenity “requires ambiguous criminal 

laws to be interpreted in favor of the defendants subjected to them.” DePierre v. United States, 

564 U.S. 70, 88 (2011) (quoting United States v. Santos, 553 U.S. 507, 514 (2008) (plurality op.)); 

see also McNally v. United States, 483 U.S. 350, 359-60 (2003) (“[W]hen there are two rational 

readings of a criminal statute, one harsher than the other, we are to choose the harsher only when 

Congress has spoken in clear and definite language.”). The rule applies to FECA provisions that 

may be enforced either civilly or criminally. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) 

(“Because we must interpret the statute consistently, whether we encounter its application in a 

criminal or noncriminal context, the rule of lenity applies.”); see also United States v. 

Thompson/Ctr. Arms Co., 504 U.S. 505, 517-18 (1992) (plurality op.). 

In Cleveland v. United States, 531 U.S. 12, 25 (2000), for example, the Court applied the 

rule to narrowly construe the term “property” in the federal mail fraud statute, 18 U.S.C. § 1341. 

It explained, “[T]o the extent that the word ‘property’ is ambiguous as placed in § 1341, we have 

instructed that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of 

lenity.’” Cleveland, 531 U.S. at 25 (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). 

The Court concluded the term did not include licenses the defendant was attempting to procure 

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Case 1:22-cv-03282-RDM Document 8-1 Filed 12/21/22 Page 52 of 58 

from the state. Id. at 26-27 (“[A] Louisiana video poker license in the state’s hands is not ‘property’ 

under § 1341.”); see also Yates, 135 S. Ct. at 1088 (invoking rule of lenity in support of construing 

the term “tangible object” narrowly). Likewise, here, the rule of lenity counsels strongly in favor 

of excluding RFR’s signed petition from the scope of the terms “gift” and “anything of value” in 

52 U.S.C. § 30101(8)(A)(i) (defining “contribution” in relevant part as a “gift” of “money or 

anything of value”), as well as the term “funds” in 11 C.F.R. § 100.72 (applying federal 

contribution limits to donations of “funds” to candidates who are “testing the waters”). 

D. At the Very Least, Ready for Ron May Provide Its Signed Petition 

to Governor DeSantis Before He Begins Testing the Waters 

In its zeal to suppress pure political speech and association under the guise of campaign 

finance regulation, the FEC deadlocked on the question of whether RFR may provide its signed 

petition to Governor DeSantis before he begins “testing the waters” or becomes a “candidate.” See 

Compl. Exh. 11 at 1 (“The Commission could not approve a response by the required four 

affirmative votes as to whether [RFR] may . . . provide the contact information from its petition to 

Governor DeSantis when [he] is neither testing the waters nor a federal candidate.”). In doing so, 

the Commission wrongfully deprived RFR of the statutory safe-harbor (i.e., a reliance defense) an 

advisory opinion would have provided to protect RFR from enforcement actions for engaging in 

such activities. See 52 U.S.C. § 30108(c)(1)(A), (c)(2) (“Any advisory opinion rendered by the 

Commission . . . may be relied upon by any person involved in the specific transaction or activity 

with respect to which such advisory opinion is rendered . . . .”). In Unity08 v. FEC, 596 F.3d 861, 

865 (D.C. Cir. 2010), the D.C. Circuit recognized the FEC’s failure to issue a requested advisory 

opinion “deprives the plaintiff of a legal right—[§ 30108(c)’s] reliance defense, which [the 

plaintiff] would enjoy if it had obtained a favorable resolution in the advisory opinion process.” 

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Even if this Court is not persuaded by RFR’s other arguments, at the very least the 

Commission erred in failing to affirm RFR’s right to provide its signed petition with signatories’ 

contact information to Governor DeSantis before he starts “testing the waters” or becomes a 

candidate. The Commission cannot point to any legal authority in either FECA or its own 

regulations limiting contributions, donations, or transfers to an individual who has not yet even 

begun testing the waters. Neither federal contribution limits, 52 U.S.C. § 30116(a)(1)(A), nor the 

Commission’s “testing the waters” regulation, 11 C.F.R. § 100.72(a), applies to donations or 

transfers from a political committee to an individual who is neither testing the waters nor a 

candidate. Consequently, federal campaign finance law does not bar RFR from providing its 

petition, including contact information for its signatories, to Governor DeSantis to persuade him 

to declare his candidacy for the Republican nomination for President. The Commission’s refusal 

to issue an advisory opinion granting RFR a statutory safe harbor for such activity is arbitrary, 

capricious, and contrary to law. 

The only rationale any of the Commissioners offered in support of its deadlock on this 

issue is that the very act of giving the signed petition to Governor DeSantis—if he accepted it— 

would automatically trigger “testing the waters” status for him. Video of Sept. 15, 2022 FEC 

Hearing, at 46:53 to 47:02 (Commissioner Broussard), 

https://www.youtube.com/watch?v=BWfuTD46wwM. Merely accepting a signed petition, 

however, does not mean a person has begun the process of determining whether to become a 

candidate. Officeholders such as President Joe Biden are frequently asked about whether they 

intend to run for President in an upcoming election, publicly discuss the issue at length, and even 

admit their intention to run.6 The Commission does not treat such conversations or declarations as 

6 See supra note 5. 

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sufficient to constitute “testing the waters.” Although receiving a signed petition may be an 

important factor in convincing a person to begin testing the waters, it is not the sort of affirmative 

act—generally involving the expenditure of funds—sufficient under § 100.72(a) to trigger “testing 

the waters” status. Accordingly, the Commission lacks any valid basis for barring RFR from 

providing its petition to Governor DeSantis before he begins testing the waters.7 

III. THIS COURT SHOULD ISSUE A PRELIMINARY INJUNCTION 

This Court should enter a preliminary injunction barring the Commission, at any time, from 

initiating enforcement proceedings against RFR in connection with either: 

● RFR’s provision of its signed petition with signatories’ contact information to 

Governor DeSantis while the preliminary injunction remains in effect, regardless of whether he is 

deemed to be “testing the waters” for a presidential run or has become a candidate for President 

(or the Republican nomination for President); or 

● RFR’s expenditure of funds from its non-contribution account in connection with 

the petition, including for advertisements, robocalls, and maintenance of the petition website and 

hotline. 

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 

on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 

7 To the extent RFR is permitted to provide its signed petition to Governor DeSantis for any of the 

foregoing reasons at any particular point in time (i.e., before Governor DeSantis begins testing the 

waters, while he is testing the waters, and/or after he becomes a candidate), RFR is likewise 

permitted to make expenditures for that purpose from its non-contribution account. see Carey v. 

Fed. Election Comm’n, 864 F. Supp. 2d 57 (D.D.C. 2002) (recognizing the First Amendment right 

of political committees to establish a separate account for which the committee may accept 

unlimited contributions, and which may be used to subsidize political speech and other electionrelated activities except for making contributions to candidates, political parties, or other 

committees); see also Speechnow.org v. FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) 

(“[T]he government has no anti-corruption interest in limiting contributions to an independent 

expenditure group.”). 

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[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 

Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Defense 

Coun., 555 U.S. 7, 20 (2008)). RFR satisfies all four requirements. 

First, RFR is likely to succeed on the merits of its claims. As discussed above, RFR has a 

fundamental First Amendment right to provide its signed petition with signatories’ contact 

information to Governor DeSantis. See supra Part I; see also Complaint Count I, ¶¶ 93-96. 

Moreover, as a matter of statutory interpretation, the FECA does not prohibit RFR from providing 

its petition to Governor DeSantis. RFR may do so at any time because the signed petition is not a 

“contribution” for purposes of FECA and, see supra Subsection II.A.1. Even if the signed petition 

does constitute a contribution, the source of the contact information which constitutes the 

purported “thing of value” is each individual signatory who provides their phone number and/or 

e-mail address for RFR to provide to Governor DeSantis, not RFR itself. RFR is merely a conduit, 

see supra Subsection II.A.2. 

Alternatively, RFR is entitled to a preliminary injunction allowing it to provide the signed 

petition to Governor DeSantis prior to the time he becomes a candidate, regardless of whether he 

is “testing the waters.” Binding D.C. Circuit precedent, the FECA’s legislative history, and the 

plain text of the FECA itself confirm contribution limits do not apply to “draft” efforts to influence 

someone to run for federal office. See supra Subsections II.B.1 to II.B.2. To the extent the FEC’s 

“testing the waters” regulation purports to limit contributions to individuals who are considering 

whether to run for office, it is without statutory authority and invalid. See supra Subsection II.B.3. 

In any event, the regulation limits the provision only of “funds” to individuals who are testing the 

waters, and does not apply to in-kind contributions. See supra Subsection II.B.4. Any statutory or 

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regulatory ambiguities must be resolved in RFR’s favor under the constitutional avoidance canon, 

major questions doctrine, and rule of lenity. See supra Section II.C. 

For these reasons, RFR is likely entitled to an injunction, see Complaint Count IV, ¶¶ 109-

16, and declaratory judgment, Complaint Count III, ¶¶ 105-08; id. Count V, ¶¶ 117-23, confirming 

its right under the Constitution and/or FECA to provide its signed petition with the signatories’ 

contact information to Governor DeSantis. Moreover, RFR is likely to demonstrate both the FEC’s 

advisory opinion in Ready for Ron, Compl. Exh. 11, see Complaint Count II, ¶¶ 97-104, and its 

“testing the waters” regulation,” 11 C.F.R. § 100.72; see Complaint Count VI, ¶¶ 124-31, are 

arbitrary, capricious, contrary to law, unconstitutional and invalid. 

Second, RFR is likely to suffer irreparable injury in the absence of injunctive relief. In light 

of the FEC’s advisory opinion in this case, RFR faces the serious possibility of both civil and 

criminal punishment if it provides its signed petition—which already has nearly 100,000 

signatures, including signatories’ contact information—to Governor DeSantis at any time, 

including before he starts testing the waters, once he starts testing the waters, and in the event he 

becomes a candidate. This risk is exacerbated by the fact RFR’s signature-gathering efforts were 

funded at least partly through its non-contribution Carey account. This interference with pure 

political speech and association constitutes per se irreparable harm. Mills v. District of Columbia, 

571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It has long been established that the loss of constitutional 

freedoms, ‘for even minimal periods of time unquestionably constitutes irreparable injury.’” 

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.))); see also Davis v. District of 

Columbia, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[A] prospective violation of a constitutional right 

constitutes irreparable injury for these purposes.”). Moreover, to the extent the FEC’s advisory 

opinion improperly chills RFR from engaging in statutorily permitted conduct, RFR will be unable 

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to seek monetary compensation from the Commission for this unwarranted chill on its activities. 

See Odebrecht Constr. v. Sec’y Fla. DOT, 715 F.3d 1268, 1289 (11th Cir. 2013) (“In the context 

of preliminary injunctions, numerous courts have held that the inability to recover monetary 

damages because of sovereign immunity renders the harm suffered irreparable.”). 

Third, the balance of hardships sharply favors RFR. The FEC has no valid interest in either 

enforcing an unconstitutional law or precluding RFR from engaging in conduct that does not 

violate the FECA. See Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). 

Finally, an injunction is in the public interest. “[T]here is no public interest in the 

perpetuation of unlawful agency action.” Texas v. Biden, 10 F.4th 538, 560 (5th Cir. 2021) (per 

curiam) (alteration omitted). More specifically, “enforcement of an unconstitutional law is always 

contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). Thus, this 

Court should grant RFR its requested preliminary injunction. 

CONCLUSION 

For these reasons, this Court should grant Plaintiff RFR’s motion for a preliminary 

injunction barring the FEC, at any point, from commencing enforcement proceedings against RFR 

either for providing Governor DeSantis with its signed petition containing signatories’ contact 

information (or any updates or supplements) while the preliminary injunction remains in effect— 

regardless of whether Governor DeSantis is testing the waters for a presidential run or has become 

a candidate for President—or for funding such efforts from its non-contribution account. 

Dated this 21st day of December, 2022. 

Respectfully submitted, 

/s/ Dan Backer 

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

Chalmers & Adams LLC 

441 N. Lee Street, Suite 300 

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Case 1:22-cv-03282-RDM Document 8-1 Filed 12/21/22 Page 58 of 58 

Alexandria, VA 22314 

(202) 210-5431 

dbacker@ChalmersAdams.com 

Lilian Rodriguez-Baz, Esq.* 

Chief Legal Counsel, Ready for Ron 

66 W Flagler Street, Suite 900 

Miami, FL 33130 

(561) 291-9897 

Lilian@ReadyForRon.com 

*Motion for pro hac vice admission forthcoming 

Attorneys for Plaintiff 

46