ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

No. 23-5161 

_________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________ 

READY TO WIN, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_________________ 

On Appeal from the U.S. District Court for 

the District of Columbia 

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

Moss _________________ 

PLAINTIFF-APPELLANT’S BRIEF

_________________ 

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

CHALMERS, ADAMS, BACKER

& KAUFMAN LLC 

441 N. Lee Street, Suite 300 

Alexandria, VA 22314 

(202) 210-5431

dbacker@ChalmersAdams.com

Attorney for Plaintiff-Appellant 

Ready to Win 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 1 of 82
i 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

 

A. Parties and Amici

 Plaintiff-Appellant Ready to Win is the only plaintiff which appeared before 

the district court. At the time the case was filed, it was called Ready for Ron, see 

Plaintiff Ready for Ron’s Motion to Amend the Case Caption to Reflect Its Name 

Change to “Ready to Win”, Dist. Ct. D.E. #32 (June 23, 2023). 

 Defendant-Appellee Federal Election Commission is the only defendant 

which appeared before the district court. No other plaintiffs, defendants, intervenors, 

other parties, or amici appeared at any time in the district court. No other appellants, 

appellees, intervenors, other parties, or amici are parties in this court. 

B. Rulings Under Review

This appeal is from U.S. District Judge Randolph D. Moss’ ruling denying 

Plaintiff Ready to Win’s Motion for a Preliminary Injunction. See Memorandum 

Opinion and Order, 2023 WL 3539633, Dist. Ct. D.E. #30 (May 17, 2023), A-279. 

C. Related Cases

 

The instant case was never previously before this Court or any court other 

than the U.S. District Court for the District of Columbia, Ready to Win v. Federal 

Election Comm’n, No. 22-3282 (RJM) (filed Oct. 27, 2022). No other related cases

are currently pending before this Court or any other court of which counsel is aware. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 2 of 82
ii 

DISCLOSURE STATEMENT 

 

 Plaintiff-Appellant Ready to Win (“RTW”) is an unauthorized, unaffiliated, 

non-qualified hybrid political committee registered with the Federal Election 

Commission. Pursuant to D.C. Cir. R. 26.1(a), RTW hereby certifies it has no parent 

companies and no publicly held company has any ownership interest in it. 

 RTW seeks to encourage Florida Governor Ron DeSantis to become and 

remain a candidate for President of the United States, including by seeking the 

Republican Party’s presidential nomination. RTW has not issued any shares or debt 

securities to the general public. 

 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 3 of 82
iii 

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............... i 

DISCLOSURE STATEMENT ................................................................................. ii 

TABLE OF CONTENTS ....................................................................................... iii 

TABLE OF AUTHORITIES ................................................................................... vi 

GLOSSARY .......................................................................................................... xiii 

JURISDICTIONAL STATEMENT ......................................................................... 1 

STATUTES AND REGULATIONS ........................................................................ 2 

STATEMENT OF ISSUES ...................................................................................... 2 

STATEMENT OF THE CASE ................................................................................. 3 

 A. Facts ..................................................................................................... 3 

 B. Procedural History ............................................................................... 4 

 C. Ruling Below ....................................................................................... 6 

SUMMARY OF ARGUMENT ................................................................................ 9 

ARGUMENT ......................................................................................................... 13 

I. THE DISTRICT COURT’S CONSTITUTIONAL AND 

 STATUTORY ANALYSIS WAS FLAWED BECAUSE IT 

 REFUSED TO TREAT RTW’S SIGNED POLITICAL 

 PETITION AS A SINGLE INTEGRATED COMMUNICATION ............. 14

II. RTW HAS A FUNDAMENTAL FIRST AMENDMENT 

 RIGHT TO PROVIDE ITS SIGNED POLITICAL 

 PETITION TO GOVERNOR DESANTIS ................................................. 22 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 4 of 82
iv 

 A. RTW’s Signed Petition is a Form of Pure Political Speech 

 and Association Subject to Full First Amendment Protection .......... 22 

 B. The FECA’s Contribution Limits are 

 Unconstitutional As Applied to Pure Political 

 Speech and Association Like RTW’s Petition .................................... 25 

 C. As Applied to RTW’s Signed Petition, the FECA’s Contribution 

 Limits are Unconstitutional Content-Based Discrimination............. 27 

 D. Prohibiting RTW From Providing Its Signed Political 

 Petition to Governor DeSantis Does Not Further an 

 Important or Compelling Governmental Interest.............................. 29 

III. THE DISTRICT COURT ERRED BY TREATING RTW’S 

 SIGNED POLITICAL PETITION AS A “CONTRIBUTION” 

 UNDER THE FEDERAL ELECTION CAMPAIGN ACT ........................ 31 

 A. A Petition is Not a “Contribution” 

 Under the FECA’s Plain Meaning ..................................................... 32 

 B. Canons of Statutory Construction Require 

 “Contribution” to Be Construed Narrowly ...................................... 33 

 C. The FECA’s Legislative History Counsels Against 

 Construing “Contribution” to Include Draft Petitions ..................... 35 

IV. AT MOST, RTW IS A CONDUIT THROUGH 

 WHICH ITS PETITION’S SIGNATORIES HAVE 

 CHOSEN TO PROVIDE THEIR CONTACT 

 INFORMATION TO GOVERNOR DESANTIS ........................................ 37 

V. THE FECA’S CONTRIBUTION LIMITS DO NOT APPLY 

 TO SIGNED DRAFT PETITIONS FOR PEOPLE WHO 

 HAVE NOT YET BECOME FEDERAL CANDIDATES .......................... 45 

VI. IF THIS COURT CONCLUDES PLAINTIFF’S CLAIMS 

 FAIL AS A MATTER OF LAW, IT SHOULD ORDER 

 THE DISTRICT COURT TO DISMISS THIS CASE ................................ 51 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 5 of 82
v 

CONCLUSION ...................................................................................................... 55 

 

CERTIFICATE OF COMPLIANCE...................................................................... 57 

ADDENDUM OF STATUTES AND REGULATIONS 

 

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vi 

TABLE OF AUTHORITIES 

Page(s) 

Cases:

44 Liquormart v. Rhode Island, 

517 U.S. 484 (1996) .................................................................................. 9, 16, 24 

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. 

Att’y Gen. of Mass., 

383 U.S. 413 (1966) ............................................................................................. 15 

ActBlue, 

FEC A.O. 2006-30 (Nov. 9, 2006) ........................................................................ 39 

ActBlue, 

FEC A.O. 2014-19 (Jan. 15, 2015) ................................................................ 38, 39 

Air Transp. Ass’n of Am., Inc. v. USDA, 

37 F.4th 667 (D.C. Cir. 2022) ............................................................................... 48 

Am. for Prosperity Found. v. Bonta, 

141 S. Ct. 2373 (2021) ......................................................................................... 30 

Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agriculture, 

573 F.3d 815 (D.C. Cir. 2009) ................................................................. 12, 52, 53 

Atlatl, Inc., 

FEC A.O. 2007-04 (Apr. 20, 2007) ...................................................................... 42 

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

142 S. Ct. 1464 (2022) ......................................................................................... 27 

Baker Botts L.L.P. v. ASARCO LLC, 

576 U.S. 121 (2015) ............................................................................................. 48 

Barr v. Am. Ass’n of Political Consultants, 

140 S. Ct. 2335 (2020) ......................................................................................... 27 

Brayshaw v. City of Tallahassee, 

709 F. Supp. 2d 1244 (N.D. Fla. 2010) ................................................................ 17 

Brown v. Entertainment Merchants Ass’n, 

564 U.S. 786 (2011) .............................................................................................. 29 

Brown v. Glines, 

444 U.S. 348 (1980) ............................................................................................. 23 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 7 of 82
vii 

Buckley v. Valeo, 

424 U.S. 1 (1976) ........................................................................ 10, 23, 25, 26, 29 

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011) ........................................................................ 3 

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ................................................................................ 33 

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

467 U.S. 837 (1984) ............................................................................................. 48 

Citizens Against Rent Control / Coal. For Fair Hous. v. Berkeley, 

454 U.S. 290 (1981) .................................................................... 13, 22, 23, 45, 50 

Citizens United v. FEC, 

558 U.S. 310 (2010) ............................................................................................. 49 

City & Cnty. of Denver v. N.Y. Trust Co., 

229 U.S. 123 (1913) ...................................................................................... 52, 53 

City of Maui v. Haw. Wildlife Fund, 

140 S. Ct. 1462 (2020) ......................................................................................... 37 

Cleveland v. United States, 

531 U.S. 12 (2000) ............................................................................................... 35 

Cohen v. California, 

403 U.S. 15 (1971) ............................................................................................... 15 

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

518 U.S. 604 (1996) ............................................................................................. 23

Cox v. Louisiana, 

379 U.S. 559 (1965) ...................................................................................... 17, 22 

Davis v. District of Columbia, 

721 F.3d 638 (D.C. Cir. 2013) .............................................................................. 55 

Davis v. FEC, 

554 U.S. 724 (2008) ............................................................................................. 46 

Democracy Engine, 

FEC A.O. 2022-03 (June 27, 2022) ...................................................................... 40 

Distaff, Inc. v. Springfield Contracting Corp., 

984 F.2d 108 (4th Cir. 1993) ................................................................................. 53 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 8 of 82
viii 

District of Columbia v. Heller, 

554 U.S. 570 (2008) ............................................................................................. 23 

Edward J. DeBartolo Corp. v. 

Fla. Gulf Coast Bldg. & Constr. Trades Council, 

485 U.S. 568 (1988) ............................................................................................. 34 

Elrod v. Burns, 

427 U.S. 347 (1976) ............................................................................................. 55 

Eu v. San Francisco Democratic Cent. Comm., 

489 U.S. 214 (1989) ...................................................................................... 10, 22 

FEC v. Akins, 

524 U.S. 11 (1998) ......................................................................................... 10, 21 

FEC v. Christian Coalition, 

52 F. Supp. 2d 45 (D.D.C. 1999) ..................................................................... 7, 44 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) ..................................................8, 11, 12, 33, 35, 47 

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

470 U.S. 480 (1985) ............................................................................................. 38 

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013) .............................................................................. 56 

Holmes v. FEC, 

823 F.3d 69 (D.C. Cir. 2016) ................................................................................ 46 

Hon. Cecil Heftel, 

FEC A.O. 1977-51 (Nov. 16, 1977) ...................................................................... 32 

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

515 U.S. 557 (1995) .................................................................................. 9, 16, 18 

In re McDonald for Congress, 

FEC A.O. 1976-86 (Oct. 6, 1976) ............................................................ 10-11, 32 

In re Reubin Askew, 

FEC A.O. 1981-32 (Oct. 2, 1981) ........................................................................ 49 

KFC Corp., 

FEC A.O. 1984-45 (Oct. 5, 1984) ........................................................................ 43 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 9 of 82
ix 

Lamont v. Postmaster General, 

381 U.S. 301 (1965) ............................................................................................. 21 

Landstar Exp. Am., Inc. v. Fed. Maritime Comm’n, 

569 F.3d 493 (D.C. Cir. 2009) .............................................................................. 48 

Leocal v. Ashcroft, 

543 U.S. 1 (2004) ........................................................................................... 34-35 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ...................................................................................... 30, 49 

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

512 U.S. 218 (1994) ............................................................................................. 34 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) ........................................................................................ 9, 19 

Melinta Therapeutics, LLC v. U.S. FDA, 

No. 22-2190 (RC), 2022 U.S. Dist. LEXIS 184535 

(D.D.C. Oct. 7, 2022) ........................................................................................... 52 

Meyer v. Grant, 

486 U.S. 414 (1988) ...................................................................................... 13, 23 

Mills v. District of Columbia, 

571 F.3d 1304 (D.C. Cir. 2009) ............................................................................ 55 

Morris v. District of Columbia, 

38 F. Supp. 3d 57 (D.D.C. 2014) .......................................................................... 52 

Munaf v. Green, 

553 U.S. 674 (2008) ...................................................................................... 52, 53 

Nat’l Grain & Feed Ass’n v. OSHA, 

845 F.2d 345 (D.C. Cir. 1988) .............................................................................. 32 

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

440 U.S. 490 (1979) ............................................................................................. 33 

Nat’l Mining Ass’n v. Kempthorne, 

512 U.S. 702 (D.C. Cir. 2008) .............................................................................. 34 

NewtWatch PAC, 

FEC A.O. 1995-09 (Apr. 21, 1995) ............................................................ 8, 42-43 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 10 of 82
x 

NLRB v. Burns Int’l Sec. Servs., 

406 U.S. 272 (1972) ............................................................................................. 37 

NORPAC, 

FEC A.O. 2019-15 (June 18, 2020) ............................................................ 8, 11, 43 

Odebrecht Constr. v. Sec’y Fla. DOT, 

715 F.3d 1268 (11th Cir. 2013) ............................................................................. 55 

Org. for a Better Austin v. Keefe, 

402 U.S. 415 (1971) ........................................................................................ 9, 17 

Ostergren v. Cuccinelli, 

615 F.3d 263 (4th Cir. 2010) ............................................................................ 9, 16 

Publius v. Boyer-Vine, 

237 F. Supp. 3d 997 (E.D. Cal. 2017) .................................................................. 17 

Pursuing Am. Greatness v. FEC, 

831 F.3d 500 (D.C. Cir. 2016) .............................................................................. 55 

ReCellular, 

FEC A.O. 2010-21, at 1 (Oct. 8, 2010) ................................................................ 42 

Reed v. Town of Gilbert, 

576 U.S. 155 (2015) ...................................................................................... 10, 27 

Repledge, 

FEC A.O. 2015-08 (Nov. 9, 2015) ........................................................................ 42 

Republican Majority Fund, 

FEC A.O. 1985-40 (Jan. 24, 1985) ....................................................................... 49 

Rubin v. Coors Brewing Co., 

514 U.S. 476 (1995) ...................................................................................... 16, 24 

Sheehan v. Gregoire, 

272 F. Supp. 2d 1135 (W.D. Wash. 2003) ............................................................ 17 

Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 

502 U.S. 105 (1991) ............................................................................................. 27 

Texas v. Biden, 

10 F.4th 538 (5th Cir. 2021) ................................................................................. 56 

UBAAPAC, 

FEC A.O. 2011-14 (Sept. 22, 2011) ..................................................................... 39 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 11 of 82
xi 

United States v. Stevens, 

559 U.S. 460 (2010) ...................................................................................... 10, 24 

Unity08 v. FEC, 

596 F.3d 861 (D.C. Cir. 2010) .............................................................................. 47 

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

425 U.S. 748 (1976) ............................................................................................. 24 

W. Va. v. EPA, 

142 S. Ct. 2587 (2022) ............................................................................. 34, 36-37 

Wagner v. Taylor, 

836 F.2d 578 (D.C. Cir. 1987) ...................................................................... 12, 52 

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

519 U.S. 202 (1997) ............................................................................................. 32 

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 

536 U.S. 150 (2002) ............................................................................................. 29 

WE LEAD, 

FEC A.O. 2003-23 (Nov. 7, 2003) ............................................8, 11, 38, 40, 41, 43 

Statutes & Other Authorities: 

U.S. Const., amend. I ........................................... 1, 2, 3, 4, 5, 6, 8, 9, 10, 14, 15, 16, 

18, 22, 23, 24, 28, 29, 33, 35, 45, 53, 54, 56 

28 U.S.C. § 1292(a)(1) ............................................................................................... 1 

28 U.S.C. § 1331 ........................................................................................................ 1 

52 U.S.C. § 30101(13)(A) ........................................................................................ 20 

52 U.S.C. § 30101(2) .............................................................................. 5, 12, 46, 48 

52 U.S.C. § 30101(2)(A) ............................................................................................ 8 

52 U.S.C. § 30101(8)(A)(i) ......................................................... 6, 10, 19, 28, 31, 49 

52 U.S.C. § 30102(b)(1) ..................................................................................... 7, 39 

52 U.S.C. § 30102(b)(2) ..................................................................................... 7, 39 

52 U.S.C. § 30116(a)(1)(A) ........................................................................ 12, 46, 48 

52 U.S.C. § 30116(a)(8) .................................................... 6, 7, 11, 14, 38, 39, 42, 44 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 12 of 82
xii 

11 C.F.R. § 100.12 .................................................................................................... 20 

11 C.F.R. § 100.3(a) ............................................................................................ 5, 46 

11 C.F.R. § 100.52(a) ............................................................................................... 49 

11 C.F.R. § 100.52(d)(1) .......................................................................................... 31 

11 C.F.R. § 100.72 ......................................................................... 5, 8, 12, 47, 49, 50 

11 C.F.R. § 100.72(a) ............................................................................................... 49 

11 C.F.R. § 102.8(a) ............................................................................................ 7, 39 

11 C.F.R. § 102.8(b) ............................................................................................ 7, 39 

11 C.F.R. § 102.8(b)(1) ............................................................................................ 31 

11 C.F.R. § 102.8(c) ................................................................................................. 39 

11 C.F.R. § 110.1(b)(1) ..................................................................................... 46, 48 

11 C.F.R. § 110.6(a) ................................................................................................. 38 

11 C.F.R. § 110.6(c)(1)(i) .............................................................................. 7, 39, 42 

11 C.F.R. § 110.6(c)(1)(iii) ....................................................................................... 31 

11 C.F.R. § 110.6(c)(1)(iv)(A) ................................................................ 7, 31, 39, 42 

11 C.F.R. § 110.6(d)(1) ...................................................................................... 11, 39 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155 (Mar. 27, 2002) .............. 36 

D.C. Cir. R. 32(a)(1) ................................................................................................ 20 

Fed. R. App. P. 4(a)(1)(B)(ii) ..................................................................................... 1 

Fed. R. Civ. P. 1 ................................................................................................. 52, 54 

Fed. R. Civ. P. 11 ...................................................................................................... 54 

Fed. R. Civ. P. 11(b)(1) ............................................................................................ 52 

Fed. R. Civ. P. 26(a)(1)(A) ....................................................................................... 20 

H.R. 1818, 106th Cong., 1st Sess., § 106(a)(1) (May 14, 1999) ............................. 36 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 13 of 82
xiii 

Emily Hall, Romney Fundraising Organization: “C. Moore Bacon” is 

Real Deal, WASH. POST (Sept. 18, 2013), 

https://www.washingtonpost.com/blogs/in-theloop/wp/2013/09/18/romney-fundraising-organization-c-moore-baconis-real-deal/ ..................................................................................................... 20-21 

FEC, Legislative Recommendations—1987, reprinted in House 

Subcomm. on Elections, House Admin. Comm., Hearings on Campaign 

Finance, 100th Cong., 1st Sess. (1987) ................................................................ 35 

FEC, Priority Legislative Recommendations (2001), 

https://www.fec.gov/resources/cms-content/documents/legrec2001.pdf ............. 36 

Fredreka Schouten, Biden’s Boosters Race to Lock Up Democratic 

Donors, USATODAY (Sept. 2, 2015), 

https://www.usatoday.com/story/news/politics/elections/2015/09/01/ 

some-democratic-donors-open--biden-white-house-bid/71535676/ .................... 13 

Liz Marlantes, Clark’s Fast Political Learning Curve, CHRISTIAN SCI.

MONITOR (Dec. 12, 2003), 

https://www.csmonitor.com/2003/1212/p01s03-uspo.html ................................. 13 

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xiv

GLOSSARY

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

RTW Ready to Win 

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1 

JURISDICTIONAL STATEMENT

 A. The district court had jurisdiction over this case pursuant to 28 U.S.C. 

§ 1331, since the causes of action in the Complaint arose under the First Amendment 

and various federal statutes.1

 

 B. This is an interlocutory appeal from the district court’s denial of 

Plaintiff-Appellant Ready to Win’s (“RTW”) Motion for Preliminary Injunction, see 

Memorandum Opinion and Order, 2023 WL 3539633, D.E. #30 (May 17, 2023), A279,2

 which the district court treated as a motion for summary judgment and a 

permanent injunction as to RTW’s non-constitutional claims, A-291. This Court has 

jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). 

 C. The district court entered its order on May 17, 2023. A-338. RTW filed 

its Notice of Appeal on July 14, 2023, A-346, within the timeframe established by 

Fed. R. App. P. 4(a)(1)(B)(ii). 

 D. This Court has jurisdiction over the district court’s order since it denies 

preliminary injunctive relief as to the First Amendment aspects of RTW’s claims and 

permanent injunctive relief with regard to their statutory aspects, A-291. 28 U.S.C. 

§ 1292(a)(1). 

1

 Plaintiff-Appellant is no longer pursuing Count IV (inherent equitable powers). 

2

 Citations to the Joint Appendix appear in the format “A-[X],” where [X] is the 

Appendix page number. 

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2 

STATUTES AND REGULATIONS

Pertinent statutes and regulations are set forth in an addendum at the end of 

this brief. 

STATEMENT OF ISSUES

 1. Does the First Amendment allow the Government to prohibit a person 

from providing a signed political petition to a candidate (or potential candidate) on 

the grounds the signatories’ contact information has commercial value? 

 2. Is a signed political petition a “contribution” for purposes of the Federal 

Election Campaign Act (“FECA”)? 

 3. Should signatory contact information included within a signed political 

petition be deemed “conduit contributions” from the petition’s signatories to the 

recipient candidate, rather than a contribution from the political committee which 

gathered those signatures? 

 4. Did the district court err by applying the FECA’s contribution limits to 

RTW’s petition to Governor DeSantis before he became a federal candidate? 

 5. In the event Plaintiff-Appellant Ready to Win (“RTW”) is not entitled 

to a preliminary injunction, is the proper remedy dismissal of the complaint because 

RTW’s claims fail as a matter of law? 

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3 

STATEMENT OF THE CASE

 This case is about Plaintiff-Appellant Ready to Win’s (“RTW”) fundamental 

First Amendment right to provide a signed political petition to Florida Governor Ron 

DeSantis encouraging him to become and remain a candidate for President. The 

district court erroneously allowed Defendant-Appellee Federal Election 

Commission (“FEC”) to prohibit RTW from providing its petition to Governor 

DeSantis because it contained the signatories’ self-provided contact information. 

This ruling unconstitutionally restricts pure political speech and association by both 

RTW and the petition’s signatories, and misapplies the Federal Election Campaign 

Act’s (“FECA”) provisions concerning conduit contributions. 

A. Facts 

 RTW is a “hybrid” political committee not authorized by Governor DeSantis 

or any other candidate. A-286.3

 Since May 2022, it has made over $1 million in 

independent expenditures through various mediums urging people to sign its petition 

to encourage Governor DeSantis to become and remain a candidate for President. A279, A-286 to A-287. People may join the petition online, by phone, or by signing a 

petition sheet in person. A-189, A-192. Upon signing the petition, a signatory has 

3 As a hybrid committee, RTW has a traditional account which it may use to make 

contributions to federal candidates. RTW also has a separate, segregated “noncontribution” account which it may use only to fund independent expenditures. RTW 

may accept unlimited contributions to that account. See Carey v. FEC, 791 F. Supp. 

2d 121, 126 (D.D.C. 2011), see A-284. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 18 of 82
4 

the opportunity to provide contact information including their address, phone 

number, and e-mail. A-189. They are notified providing such information constitutes 

a request to have it included within the petition and transmitted to Governor 

DeSantis. Id. 

 RTW filed a request for an advisory opinion from the FEC confirming it could 

provide its petition to Governor DeSantis and use funds from its non-contribution 

Carey account to subsidize the petition’s costs. A-288. The Commission concluded 

the FECA barred RTW from doing so once Governor DeSantis either became a 

candidate or began “testing the waters” for a potential candidacy. A-288. It reasoned 

the signatories’ contact information was an in-kind contribution, and the value of 

that information exceeded applicable contribution limits. Id. The Commission 

deadlocked on whether RTW could provide its petition to him before he began 

testing the waters. A-289. 

B. Procedural History

 In response to the FEC’s ruling, RTW filed a Complaint in the U.S. District 

Court for the District of Columbia on October 27, 2022. A-9. It contained the 

following counts relevant to this appeal, see supra note 2; see also A-289 to A-290: 

 ● First Amendment (Count I), A-39 to A-41; 

 ● Administrative Procedures Act challenge to the FEC’s advisory opinion 

(Count II), A-41 to A-42; 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 19 of 82
5 

 ● Declaratory Judgment concerning RTW’s rights under the First 

Amendment and Federal Election Campaign Act (Counts III and V), A-42 to A-43, 

A-45 to A-47; 

 ● Administrative Procedures Act challenge to applying the FEC’s 

“testing the waters” regulation to RTW’s draft petition before Governor DeSantis 

became a candidate (Count VI), A-47 to A-48. 

 When RTW filed its Complaint, Governor DeSantis had not yet become a 

federal candidate. Accordingly, RTW argued it could provide its petition, as well as 

any updates, to Governor DeSantis at a time of its choosing, including: (i) before he 

began “testing the waters” for a candidacy pursuant to 11 C.F.R. § 100.72; (ii) while 

he was testing the waters under 11 C.F.R. § 100.72; and (iii) even after he became a 

“candidate” under 52 U.S.C. § 30101(2); 11 C.F.R. § 100.3(a). 

 RTW moved for a preliminary injunction prohibiting the FEC from 

commencing enforcement proceedings or imposing fines against it for providing its 

petition to Governor DeSantis or spending money from its non-contribution Carey 

account in connection with the petition. A-183; see also A-290 to A-291. After a 

hearing, see A-225, the district court permitted supplemental briefing. Over the 

course of the proceedings, RTW submitted two declarations with attached exhibits 

from its then-executive director, Gabriel Llanes. See A-187, A-340. The FEC failed 

to adduce any evidence in support of its advisory opinion. 

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6 

 C. Ruling Below

The district court denied RTW’s motion and ruled in the FEC’s favor on all 

counts. A-338.4

 The court began by rejecting the notion this case is about a political 

petition. It held RTW may provide its political message to Governor DeSantis so 

long as it redacts the petition by stripping the signatories’ contact information.5

 A293. Accordingly, the only issue was whether RTW could provide a “contact list” 

containing only the signatories’ contact information to Governor DeSantis. Id. Based 

on this fundamental alteration of RTW’s intended communication, the district court 

easily held such a contact list falls within the FECA’s definition of “contribution,” 

A-294 (citing 52 U.S.C. § 30101(8)(A)(i)). It was unpersuaded by the fact Congress 

has, for decades, rejected the FEC’s repeated recommendation to expand the 

definition of “contribution” to include payments made for the purpose of “drafting” 

someone to run for federal office. A-323 to A-326. 

The court next held RTW is not a “conduit” for transmitting contact 

information from the petition’s signatories to Governor DeSantis pursuant to 52 

4 The district court denied a preliminary injunction with regard to RTW’s First 

Amendment arguments and denied both a permanent injunction and summary 

judgment with regard to its statutory arguments. A-291, A-338. 

5

 The court did not address the inclusion of signatories who chose to identify 

themselves only by providing a phone number or e-mail address. Presumably, the 

petition would not be able to contain any individualized references to them at all. 

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7 

U.S.C. § 30116(a)(8). It explained RTW could not be deemed a conduit since it 

undertook substantial efforts to compile contact information from numerous people 

into its petition. A-305 to A-306, A-308. The only case cited in support of this 

dubious conclusion, FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999), 

see A-306, has nothing to do with conduit contributions and never cited 

§ 30116(a)(8). 

The court further claimed—without citation to any evidence—RTW’s 

compilation of signatories’ contact information was far more “onerous” than the 

administrative burdens of a conduit committee which solicits monetary contributions 

from large numbers of people and compiles them into a single large donation to a 

candidate. A-308 to A-309. The court did not address that such conduit committees 

are subject to comparable burdens to RTW since the FECA requires them to solicit, 

compile, and provide each contributor’s name, address, occupation, and employer to 

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

110.6(c)(1)(i), (iv)(A). 

The district court’s ruling was also based on the erroneous notion conduit 

committees which solicit monetary contributions “do not themselves bear the 

transaction costs associated with the separate payments, which the original 

contributor or the candidate must pay in any event.” A-308. To the contrary, it is 

undisputed conduit committees—as distinct from for-profit corporations—may pay 

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8 

all costs of soliciting, processing, compiling, and transferring monetary conduit 

contributions themselves. See NewtWatch PAC, FEC A.O. 1995-09, at 3 (Apr. 21, 

1995); NORPAC, FEC A.O. 2019-15, at 4-6 (June 18, 2020); cf. WE LEAD, FEC 

A.O. 2003-23, at 5-6 (Nov. 7, 2003). 

Finally, the district court held RTW does not have a First Amendment right to 

provide its purported “contact list” to Governor DeSantis. Rather, the FECA’s 

contribution limits are subject only to intermediate scrutiny and constitutional as 

applied to this case. A-327.6

 The court held the signatories’ contact information has 

too little “expressive value” to trigger full First Amendment protection. A-329. The 

fact it would be impossible for Governor DeSantis to respond to those signatories 

without their contact information did not impact this analysis. A-330. Accordingly, 

the court denied RTW’s motion. A-338. 

6

 The court also held the FECA’s contribution limits applied to transfers to Governor 

DeSantis even before he became a candidate. A-316. It concluded Governor 

DeSantis’ acceptance of RTW’s signed petition would automatically either make him 

a candidate under 52 U.S.C. § 30101(2)(A) or trigger the FEC’s “testing the waters” 

regulation, 11 C.F.R. § 100.72. See A-318 to A-320, A-322. It went on to hold this 

Court’s ruling in FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 

(D.C. Cir. 1981), did not bar the FEC from regulating activity to “draft” potential 

candidates. A-321 to A-322. 

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9 

SUMMARY OF ARGUMENT

 Both the First Amendment and the FECA allow RTW to provide its complete 

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

Governor DeSantis. 

1. The district court erred by treating the petition as two distinct 

documents: (i) a political communication RTW was free to provide to Governor 

DeSantis along with only the names of the petition’s signatories, and (ii) a contact 

list containing the addresses, phone numbers, and/or e-mail addresses signatories 

chose to provide. A speaker has the constitutional right to determine the substantive 

content of their intended communication, Hurley v. Irish-Am. Gay, Lesbian & 

Bisexual Group, 515 U.S. 557, 573 (1995), and the First Amendment extends to 

prosaic factual information, 44 Liquormart v. Rhode Island, 517 U.S. 484, 513 

(1996), including a person’s contact information, Org. for a Better Austin v. Keefe, 

402 U.S. 415, 417, 419-20 (1971); Ostergren v. Cuccinelli, 615 F.3d 263, 271 n.8, 

272 (4th Cir. 2010). 

RTW allowed signatories to include contact information within the petition to 

more fully identify themselves and distinguish themselves from others with the same 

name rather than remaining effectively anonymous, cf. McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 342 (1995). The inclusion of such information bolstered the 

petition’s credibility and allowed signatures’ authenticity to be confirmed. Most 

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10 

importantly, it enabled Governor DeSantis to communicate and associate with the 

petition’s signatories if he wished, see FEC v. Akins, 524 U.S. 11, 29 (1998). 

2. RTW’s petition constituted pure political speech and an important act 

of political association, Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 

224-25 (1989), subject to full First Amendment protection. The district court erred 

in denying such protection to signatories’ contact information due to its supposedly 

minimal expressive value. See United States v. Stevens, 559 U.S. 460, 470 (2010). 

FECA’s contribution limits are generally subject only to intermediate scrutiny and 

constitutionally valid because they typically don’t apply to pure political expression. 

Buckley v. Valeo, 424 U.S. 1, 20, 25 (1976) (per curiam). As applied to the pure 

speech and association in RTW’s petition, however, those limits should be subject to 

strict scrutiny and deemed invalid. Moreover, since the only reason the FECA’s 

contribution limits apply to RTW’s petition is because of the substantive political 

message it contains, they are an impermissible content-based restriction in the 

context of this case. Reed v. Town of Gilbert, 576 U.S. 155, 160, 164, 171-72 (2015). 

3. Neither RTW’s petition nor the signatory contact information contained 

within it is a “contribution” for purposes of the FECA’s contribution limits. The 

FECA defines “contribution” in relevant part as “any gift” of “money or anything of 

value.” 52 U.S.C. § 30101(8)(A)(i). Neither the petition, nor signatories’ contact 

information, would be considered a “gift” in ordinary usage. See In re McDonald for 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 25 of 82
11 

Congress, FEC A.O. 1976-86, at *1 (Oct. 6, 1976). Moreover, Congress has 

repeatedly refused to amend the definition of “contribution” to include payments 

made to “draft” someone to become a candidate. The constitutional avoidance 

canon, Federal Election Comm’n v. Machinists Non-Partisan Political League, 655 

F.2d 380, 392 (D.C. Cir. 1981); major questions canon; and rule of lenity all counsel 

in favor of construing any ambiguity in the definition of “contribution” narrowly, 

rendering the FECA’s contribution limits inapplicable here. 

 4. At the very least, RTW is a conduit committee. It notifies potential 

signatories that, by signing the petition and providing their contact information, they 

are asking RTW to add it to the petition and provide it to Governor DeSantis on their 

behalf. Accordingly, each individual signatory should be deemed the contributor of 

their own contact information. RTW is a mere intermediary soliciting, aggregating, 

and transferring such information as in-kind conduit contributions to Governor 

DeSantis pursuant to 52 U.S.C. § 30116(a)(8), and is not deemed the contributor, 11 

C.F.R. § 110.6(d)(1). RTW’s status as a conduit would be clear if it were soliciting 

monetary contributions. See, e.g., NORPAC, FEC A.O. 2019-15, at 4-6 (June 18, 

2020); WE LEAD, FEC A.O. 2003-23, at 5-6 (Nov. 7, 2003). RTW should not be 

worse off because it is collecting speech and not money. 

 5. RTW could provide its draft petition, including signatory contact 

information, to Governor DeSantis before he became a federal candidate. Under the 

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12 

FECA’s plain text, contribution limits apply only to payments to “candidates.” 52 

U.S.C. § 30116(a)(1)(A). The FECA does not limit transfers to a person who has not 

become a candidate under 52 U.S.C. § 30101(2); see Machinists, 655 F.2d at 386, 

392, 396 (emphasizing the important distinction between “candidates” who are 

subject to FECA’s restrictions and people who have not yet become “candidates,” 

who are not). Accordingly, RTW was free to provide its petition to Governor 

DeSantis both before he began “testing the waters” for a potential candidacy, see 11 

C.F.R. § 100.72, and while he was doing so. Moreover, because the FEC’s “testing 

the waters” regulation limits only the provision of “funds” to a potential candidate, 

id, it did not bar RTW from providing its political petition to Governor DeSantis 

while he was considering a potential candidacy. Governor DeSantis would neither 

automatically become a candidate, nor trigger “testing the waters” status, simply by 

accepting a draft petition containing signatories’ contact information. 

 6. If this Court concludes in the course of considering RTW’s preliminary 

injunction motion its claims fail as a matter of law, it should remand and order 

dismissal of the case. Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agriculture, 573 F.3d 

815, 821 (D.C. Cir. 2009); Wagner v. Taylor, 836 F.2d 578 586 n.49 (D.C. Cir. 1987). 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 27 of 82
13 

ARGUMENT

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

a common end is deeply embedded in the American political process. . . .” Citizens 

Against Rent Control / Coal. For Fair Hous. v. Berkeley, 454 U.S. 290, 294 (1981). 

Americans have long joined together through draft petitions to persuade their 

preferred candidates to run for public office. General Wesley Clark explained he ran 

for the 2004 Democratic nomination for President because “he was responding to 

the call of some 60,000 people who signed an online draft petition.”7

 Likewise, in 

2015, “more than 210,000 people . . . signed [a SuperPAC’s] petition, urging Biden 

to enter the [presidential] race.”8

 Such petitions “involve[] the type of interactive 

communication concerning political change that is appropriately described as ‘core 

political speech.’” Meyer v. Grant, 486 U.S. 414, 421 (1988). 

The district court in this case nevertheless permitted the FEC to prohibit RTW 

from providing its signed political petition to Governor DeSantis to encourage him 

to become and remain a candidate for President, because the petition contains 

contact information voluntarily provided by its signatories. This holding flatly 

7 Liz Marlantes, Clark’s Fast Political Learning Curve, CHRISTIAN SCI. MONITOR

(Dec. 12, 2003), https://www.csmonitor.com/2003/1212/p01s03-uspo.html. 

8 Fredreka Schouten, Biden’s Boosters Race to Lock Up Democratic Donors, USA

TODAY (Sept. 2, 2015), 

https://www.usatoday.com/story/news/politics/elections/2015/09/01/ somedemocratic-donors-open--biden-white-house-bid/71535676/.

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 28 of 82
14 

violates RTW’s rights—and those of the petition’s quarter-million signatories—to 

engage in pure political expression and association; erroneously treats RTW’s 

petition as a “contribution” under the Federal Election Campaign Act (“FECA”); and 

misapplies the FECA’s provisions concerning conduit contributions, 52 U.S.C. 

§ 30116(a)(8). This Court should reverse and order entry of a preliminary injunction 

on RTW’s First Amendment claims and/or a permanent injunction on its statutory 

claims.9

 

I. THE DISTRICT COURT’S CONSTITUTIONAL AND 

STATUTORY ANALYSIS WAS FLAWED BECAUSE IT 

REFUSED TO TREAT RTW’S SIGNED POLITICAL 

PETITION AS A SINGLE INTEGRATED COMMUNICATION 

 The district court repeatedly refused to treat RTW’s signed political petition 

as a single cohesive political communication. Rather, from the very outset, the 

district court conceptually ripped the document into two distinct pieces: (i) a petition 

containing a political message and signatories’ names which RTW may provide to 

Governor DeSantis, and (ii) a completely separate contact list containing signatories’ 

names and contact information, which the court concluded constitutes an illegally 

excessive in-kind “contribution” under the FECA. See, e.g., A-280 (“[T]he Court 

9

 This brief will focus only on the main issue of whether the First Amendment and/or 

the FECA permit RTW to provide its signed political petition, including signatories’ 

contact information, to Governor DeSantis. To the extent RTW is permitted to do so, 

it likewise may make expenditures from its non-contribution Carey account to cover 

the associated costs. See Carey, 864 F. Supp. 2d 57. 

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15 

agrees with the Commission that what [RTW] calls a petition is, in fact, a contact 

list . . . .”); A-293 (“RFR’s framing of this case as one about its ‘petition’ is 

inaccurate. Rather, the dispute is about the contact list. Going forward, then, the 

Court will refer to the operative item as a ‘contact list’ . . . .”); A-297 (“[T]he 

information that the FEC seeks to restrict is not core political speech; it is contact 

information.”); A-303 (“RFR can provide Governor DeSantis with its ‘petition’ 

without also providing him with its contact list.”); A-328 (“[T]he contact list—as 

distinct from the petition—only indirectly or marginally implicates core First 

Amendment values.”). 

 This is not how the First Amendment works. The Supreme Court did not parse 

Robert Cohen’s jacket in the courthouse to conclude “the Draft” is constitutionally 

protected speech, while the word “Fuck” was not. Cohen v. California, 403 U.S. 15, 

23-26 (1971). The Supreme Court did not review Memoirs of a Woman of Pleasure

sentence-by-sentence to determine which passages enjoyed First Amendment 

protection and which sexually explicit scenes could be prohibited as obscene. See A 

Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Att’y Gen. of 

Mass., 383 U.S. 413, 419-20 (1966). 

 The district court, however, empowered the FEC to censor some of RTW’s 

intended political communication to Governor DeSantis. The court justified this on 

the grounds RTW “never explains why ‘John Doe – john.doe@website.com’ or 

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16 

‘John Doe – (123) 867-5309’ carry meaningful expressive value above and beyond 

John Doe.” A-297; see also id. at A-329; A-330 (“Nor is the court persuaded that the 

message of RFR’s petition would be altered or diluted if it would not provide its 

contact list along with its petition.”). This encapsulates the fundamental error which 

pervades the entire district court opinion. 

 “[M]eaningful expressive value” is not a prerequisite for First Amendment 

protection of speech. Rather, even expression that lacks “a narrow, succinctly 

articulable message” is constitutionally protected. Hurley, 515 U.S. at 569. The First 

Amendment protects specific, prosaic, factual statements concerning the price of a 

good, 44 Liquormart v. Rhode Island, 517 U.S. 484, 513 (1996), or the alcoholic 

content of beer, Rubin v. Coors Brewing Co., 514 U.S. 476, 481, 483 (1995). 

Omitting signatories’ contact information quite literally “alter[s]” the 

communication RTW and the petition’s signatories desired to send to Governor 

DeSantis. A-330. 

In other contexts, many courts have held the First Amendment protects the 

right to include identifying information such as phone numbers and e-mail addresses 

in political communications. In Ostergren v. Cuccinelli, 615 F.3d 263, 271 n.8, 272 

(4th Cir. 2010), the Fourth Circuit held the First Amendment protected a person’s 

right to post land records containing unredacted social security numbers as a form 

of political protest. It explained the plaintiff had “freedom to decide how her 

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17 

message should be communicated,” and “partial redaction would diminish the 

documents’ shock value and make [the plaintiff] less credible.” See also Sheehan v. 

Gregoire, 272 F. Supp. 2d 1135, 1139, 1150 (W.D. Wash. 2003) (holding a statute 

prohibiting publication of a police officer’s address, telephone number, birthday, or 

social security number “with the intent to harm or intimidate” prohibited “pure 

speech” in violation of the First Amendment); cf. Org. for a Better Austin v. Keefe, 

402 U.S. 415, 417, 419-20 (1971) (overturning injunction prohibiting dissemination 

of pamphlets containing the name and phone number of a realtor along with a request 

to “call [him] at his home phone number” to protest his “blockbusting” business 

practices).10

The district court dismissed these cases, explaining they dealt with 

“restrictions on the publication of contact information, not the provision of an inkind campaign contribution.” A-329. The First Amendment, however, applies 

equally regardless of whether a communication is broadly published or provided to 

a single recipient. Cox, 379 U.S. at 563 (holding a telegram “by a citizen to a public

10 See, e.g., Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1004 (E.D. Cal. 2017) (“At 

its core, Plaintiffs’ speech is a form of political protest. . . . [T]he legislators’ home 

address and telephone number touch on matters of public concern in the context of 

Plaintiffs’ speech.”); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247, 

1249 (N.D. Fla. 2010) (holding a statute prohibiting a person from maliciously 

disseminating a police officer’s home address or telephone number violated the First 

Amendment). 

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18 

official” is “a pure form of expression” subject to maximum First Amendment 

protection). 

 More broadly, under the First Amendment, it is up to the speaker—not a court 

or federal regulator—to decide what information is sufficiently important to include 

in a communication. “[T]he fundamental rule of protection under the First 

Amendment” is “that a speaker has the autonomy to choose the content of his own 

message.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573 

(1995). A speaker “has the right to tailor speech . . . not only to expressions of value, 

opinion, or endorsement, but equally to statements of fact . . . .” Id. 

Here, RTW invited signatories to include their contact information when 

signing the petition as an integral part of the petition’s substantive content. A-191 to 

A-192. Each signatory individually decided for themselves what information they 

wished RTW to provide to Governor DeSantis on their behalf. RTW adds a 

signatory’s name and contact information to its petition to provide to Governor 

DeSantis, on the signatory’s behalf, only at that signatory’s express direction and 

request. Id. Thus, this case is not about a mere mailing list, but rather deliberately 

chosen political expression and association by the petition’s signatories. 

Perhaps most importantly, the district court cannot separate signatories’ 

contact information from the underlying petition because the only reason the FECA 

applies to that contact information is precisely because of the substantive political 

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19 

message contained within the petition. The district court concluded the FECA’s 

contribution limits apply to RTW’s petition because the petition’s text seeks to 

persuade Governor DeSantis to run for federal office. See A-294; see also A-283 

n.2, A-323. If the petition’s message had concerned a different topic, the FECA’s 

contribution limits would be inapplicable. See 52 U.S.C. § 30101(8)(A)(i) (defining 

“contribution”); cf. infra Section II.C. Accordingly, the signatories’ contact 

information cannot be cleaved from the underlying petition and parceled off into an 

independent communication of ostensibly negligible constitutional value. 

 RTW has repeatedly emphasized that signatories’ contact information 

constitutes an integral, substantive part of its petition. Signatories who chose to 

provide contact information were able to identify themselves much more 

meaningfully and specifically than those who provided only a name, such as “John 

Smith.” Without more, “John Smith” might as well be an “X.” If RTW cannot 

include the contact information signatories chose to provide, they remain effectively 

anonymous, indistinguishable from everyone else in the country or world with the 

same name. The First Amendment, however, guarantees each speaker the right to 

decide whether to engage in political communications anonymously. 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.”). 

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20 

 Indeed, the FECA itself expressly recognizes a person’s contact information 

is necessary to identify them. 52 U.S.C. § 30101(13)(A) (defining “identification” 

to mean, “in the case of any individual, the name, the mailing address, and the 

occupation of such individual, as well as the name of his or her employer”); accord 

11 C.F.R. § 100.12. This Court’s own rules likewise require attorneys to identify 

themselves in part by providing contact information. See D.C. Cir. R. 32(a)(1) 

(requiring an ECF filer to provide not only their name, but “street address, telephone 

number, and e-mail address”); cf. Fed. R. Civ. P. 26(a)(1)(A) (requiring each party 

to automatically disclose “the name and, if known, the address and telephone number 

of each individual likely to have discoverable information”). Almost every candidate 

nominating petition in the country similarly requires a person to provide more 

identifying information than a mere signature. 

 Contact information also bolsters the petition’s credibility, allowing it to carry 

more weight than a hastily scribbled list of random names alone. Additionally, 

including contact information enables Governor DeSantis to confirm the authenticity 

of the petition’s signatures. Should “C. Moore Bacon” appear on the petition, it 

would be difficult to tell whether the signature was legitimate or a prank without any 

accompanying contact information. See Emily Hall, Romney Fundraising 

Organization: “C. Moore Bacon” is Real Deal, WASH. POST (Sept. 18, 2013), 

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21 

https://www.washingtonpost.com/blogs/in-the-loop/wp/2013/09/18/romneyfundraising-organization-c-moore-bacon-is-real-deal/. 

 Most importantly, including signatories’ contact information enables 

Governor DeSantis, if he chooses, to respond to the petition’s signatories, thereby 

associating with them and engaging in political expression with them. Political 

speech should not, and need not, be a one-way street. See Lamont v. Postmaster 

General, 381 U.S. 301, 305-06 (1965). Compelling RTW to omit signatories’ contact 

information makes it effectively impossible for Governor DeSantis to respond to 

them. FEC v. Akins, 524 U.S. 11, 29 (1998) (recognizing “communications” as a 

fundamental component of the “constitutionally protected rights of association”). 

 The district court rejected this argument on the grounds a person is not 

“anonymous” simply because “their name does not include the most convenient way 

to reach them.” A-330; see also A-329. The court ignored the fact that, without the 

inclusion of any contact information whatsoever, there is no way the petition’s 

recipient can determine who a signatory such as “Matt Brown” is, confirm whether 

he is real, and send him a response. This case is not about “the most convenient way 

to reach” someone, but rather a petition signatory’s right to provide at least some 

meaningful way to engage in political expression and association with them. 

 Thus, the district court erred in refusing to consider RTW’s signed political 

petition as a whole, and instead treating this case as if it were about a mailing list. 

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22 

II. RTW HAS A FUNDAMENTAL FIRST AMENDMENT 

RIGHT TO PROVIDE ITS SIGNED POLITICAL 

PETITION TO GOVERNOR DESANTIS 

 RTW’s fundamental First Amendment rights of freedom of speech and 

association entitle it to provide its complete, unredacted signed political petition to 

Governor DeSantis. 

A. RTW’s Signed Petition is a Form of Pure Political Speech 

 and Association Subject to Full First Amendment Protection 

 There is no question a person has a fundamental First Amendment right to 

send a letter to Governor DeSantis, with their contact information, encouraging him 

to become and remain a presidential candidate. Cox v. Louisiana, 379 U.S. 559, 563-

64 (1965) (declaring a “telegram by a citizen to a public official” is “a pure form of 

expression”). A person likewise has the fundamental right to join with others to send 

Governor DeSantis a joint letter—or petition—containing each signatory’s contact 

information. 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 . . . 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)).

As Justice Brennan explained: 

Petitioning involves a bundle of related First Amendment rights: the 

right to express ideas, the right to be exposed to ideas expressed by 

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23 

others, . . . and the right to associate with others in the expression of 

opinion. 

The petition is especially suited for the exercise of all these rights: It 

serves as a vehicle of communication; as a classic means of individual 

affiliation with ideas or opinions; and as a peaceful yet effective method 

of amplifying the views of the individual signers. Indeed, the petition 

is a traditionally favored method of political expression and 

participation. 

Brown v. Glines, 444 U.S. 348, 363 (1980) (Brennan, J., dissenting); see also 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.’”). Petitions allow individuals to “make their 

views known, when, individually, their voices would be faint or lost.” Citizens 

Against Rent Cont., 454 U.S. at 294; see also District of Columbia v. Heller, 554 

U.S. 570, 645 (2008) (Stevens, J., dissenting) (“[I]f they are to be effective, petitions 

must involve groups of individuals acting in concert.”). 

 RTW’s independent expenditures to solicit and gather signatures for the 

petition do not strip away its First Amendment protection. Buckley, 424 U.S. at 16 

(rejecting the notion that “the dependence of a communication on the expenditure of 

money operates itself to introduce a nonspeech element”). Prohibiting RTW 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) (plurality op.). It likewise interferes with Governor DeSantis’ First 

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24 

Amendment right to receive signatories’ voluntarily provided contact information in 

order to communicate with them. 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)). 

 The district court rejected RTW’s constitutional challenge in large part 

because it believed signatories’ contact information had little expressive value. A329. The Court erred in deciding for itself the value of the signatories’ desired speech 

and according reduced First Amendment protections for ostensibly low-value 

speech. United States v. Stevens, 559 U.S. 460, 470 (2010), held that establishing a 

sliding-scale of First Amendment protections based on “the value of the speech” at 

issue would be “startling and dangerous.” A court cannot strip a speaker of First 

Amendment protection because their “speech is not worth it.” Id. 

 The Court has consistently applied First Amendment protection to highly 

specific, purely informational statements. See, e.g., Liquormart, 517 U.S. at 513 

(price); Rubin, 514 U.S. at 481, 483 (alcoholic content). Moreover, as explained 

above, the signatories’ contact information was not “low-value” speech. Rather, such 

information allowed signatories to identify themselves with specificity, distinguish 

themselves from others with the same name, convey the sincerity of their support, 

and invite a response from Governor DeSantis. The district court erred in declining 

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25 

to apply strict scrutiny to the FEC’s application of contribution limits to RTW’s 

political petition containing signatories’ contact information.

B. The FECA’s Contribution Limits are 

 Unconstitutional As Applied to Pure Political 

 Speech and Association Like RTW’s Petition. 

 Although the FECA’s contribution limits are facially constitutional, they are 

unconstitutional when applied as a backdoor restraint upon pure political expression 

such as RTW’s petition. When Buckley v. Valeo, 424 U.S. 1, 20, 25 (1976) (per 

curiam), rejected a facial challenge to contribution limits, it did not view them as 

applying to actual political speech. Rather, the Court held 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.” Id. Buckley explained that, with a 

contribution, the “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. The Court has never allowed contribution 

limits to be applied to prohibit citizens’ pure political speech. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 40 of 82
26 

 As applied to RTW’s petition, the FECA’s contribution limits would impose 

much more than “a marginal restriction upon the contributor’s ability to engage in 

free communication.” Id. at 20–21. Providing contact information from the petition’s 

signatories to Governor DeSantis is not an “undifferentiated, symbolic act,” but 

rather direct, express political speech and association at the heart of the First 

Amendment. Id. at 21. Accordingly, the FECA’s contribution limits 

unconstitutionally imposes a “direct restraint” on the ability of RTW and the 

petition’s signatories “to engage in free communication” with Governor DeSantis. 

Id. at 28. Indeed, Buckley itself recognized 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, the petition’s signatories do not seek to “pool money,” but rather join 

together to amplify their voices through collective speech. 

 The district court rejected this analysis, applying the same intermediate 

(“closely drawn”) scrutiny the Court typically applies to contribution limits. A-327. 

It did so by ignoring the vital expressive and associational aspects of RTW’s petition, 

including its signatories’ self-provided contact information. Cf. Buckley, 424 U.S. 

at 20-21. Thus, the FECA’s contribution limits should be subject to strict scrutiny 

insofar as they apply to RTW’s petition, and held unconstitutional as applied. 

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27 

 C. As Applied to RTW’s Signed Petition, the FECA’s Contribution 

 Limits are Unconstitutional Content-Based Discrimination 

 The FECA’s contribution limits, as applied to RTW’s petition to Governor 

DeSantis, are also unconstitutional content-based restrictions on political expression 

and association subject to strict scrutiny. Content-based restrictions on speech are 

subject to strict scrutiny. Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335, 

2346 (2020). Strict scrutiny applies to such restrictions even if they were enacted for 

unrelated innocuous purposes, Simon & Schuster, Inc. v. Members of the N.Y. State 

Crime Victims Bd., 502 U.S. 105, 117 (1991), and “do[] not discriminate among 

viewpoints within that subject matter,” Austin v. Reagan Nat’l Adver. of Austin, LLC, 

142 S. Ct. 1464, 1472 (2022) (quotation marks omitted). In Reed v. Town of Gilbert, 

576 U.S. 155, 160 (2015), the Court applied strict scrutiny to an ordinance subjecting 

temporary signs to special prohibitions if they were “designed to influence the 

outcome of an election.” The Court recognized the applicability of those restrictions 

“depend[ed] entirely on the communicative content of the sign.” Id. at 164. 

Accordingly, the ordinance was a “content-based regulation of speech,” id., subject 

to strict scrutiny, id. at 171, and unconstitutional, id. at 172. 

The same is true here. As the district court acknowledged, the FEC contends 

the FECA’s contribution limits apply to RTW’s petition only due to its substantive 

content: the petition’s text seeks to persuade Governor DeSantis to run for President. 

A-294 (holding the signatories’ contact information is a “contribution” because RTF 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 42 of 82
28 

“freely acknowledges that its goal is to convince Governor DeSantis to run for 

President, [and] to remain a candidate throughout the election cycle”); see also A283 n.2, A-323. 

If the petition concerned virtually any other issue in the world—urging 

Governor DeSantis to resign and become the Walt Disney Corporation’s next CEO, 

for example—the FECA’s contribution limits would be inapplicable. See 52 U.S.C. 

§ 30101(8)(A)(i) (defining “contribution” as “any gift . . . of money or anything of 

value . . . for the purpose of influencing any election for Federal office”). 

Accordingly, as applied in this case, the FECA’s contribution limits are contentbased restrictions on political expression triggering strict scrutiny under the First 

Amendment. Such a content-based restriction is an impermissibly overbroad method 

of preventing quid pro quo corruption and is therefore unconstitutional. 

The district court rejected this, declaring, “All regulation of campaign 

contributions is content based in the sense that it targets only contributions made for 

the purpose of influencing elections for Federal office . . . .” A-330. But this case 

goes beyond such generalizations. Rather, the FEC is imposing the FECA’s 

contribution limits here only because the petition’s text encourages Governor 

DeSantis to become and remain a candidate. In this unique setting, the FECA’s 

contribution limits raise much more serious First Amendment issues than with regard 

to monetary or conventional in-kind contributions. 

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29 

D. Prohibiting RTW From Providing Its Signed Political 

Petition to Governor DeSantis Does Not Further an 

Important or Compelling Governmental Interest.

 The FEC does not have a compelling, or even a strong, interest in prohibiting 

RTW from providing its petition to Governor DeSantis. First, neither the FECA nor 

any other provision of federal law would prohibit RTW from giving Governor 

DeSantis the petition, including signatories’ contact information, if its text concerned 

virtually any issue other than encouraging him to run for President. The underinclusiveness of the FECA’s contribution limits as applied here undermines the 

notion they are actually furthering an important anti-corruption interest. See Brown 

v. Entertainment Merchants Ass’n, 564 U.S. 786, 805 (2011) (holding laws 

“affect[ing] First Amendment rights . . . must be pursued by means that are neither 

seriously underinclusive nor seriously overinclusive”); see, e.g., Watchtower Bible 

& Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 169 (2002). 

Second, the FEC argued to the district court that, rather than providing the 

signed petition to Governor DeSantis, RTW should post the petition—including 

signatories’ contact information—on the Internet. A-243 to A-244. The FEC offers 

no serious explanation as to how the purported risk of quid pro quo corruption would 

be reduced by notifying Governor DeSantis the information is on a particular 

webpage rather than e-mailing it to him directly. See Buckley, 424 U.S. at 45 

(invalidating easily circumvented restrictions on independent expenditures in 

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30 

substantial part because they did not “sufficiently relate[] to the elimination” of 

“actual or apparent quid pro quo arrangements”). The district court stated only that, 

even though such information is uniquely valuable to Governor DeSantis, see A308, see also A-304, providing it to him by posting it on the Internet avoids potential 

corruption because that does not involve a “direct[] exchange,” A-337. Moreover, 

the FEC’s suggestion would both violate the privacy rights of the petitions’ 

signatories and expose them to harassment and violence by progressive extremists. 

Am. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021). 

Finally, in McCutcheon v. FEC, 572 U.S. 185, 213-14 (2014), the Supreme 

Court held aggregate contribution limits were unconstitutional in part because the 

Court found it “hard to believe that a rational actor would engage in . . . 

machinations” by spending $500,000 “to add just $26,000 to [a candidate’s] 

campaign coffers.” The same is true here. RTW has spent well over a million dollars 

over the course of more than a year to compile a petition with approximately a 

quarter-million unauthenticated signatories. Many signatories provided either no 

contact information at all, or inaccurate or (now) outdated information. Although 

these signatories ostensibly support Governor DeSantis, there is no indication in the 

petition whether any are willing or able to contribute money to him. 

Even if the contact information for these signatories were valued at $1.00 per 

person—a figure twenty times higher than the district court discussed, see A-333—

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31 

more than three-quarters of RTW’s spending would have been wasted. A “rational 

actor” seeking to directly aid Governor DeSantis would have been much more likely 

to solicit monetary conduit contributions rather than petition signatures—which also 

would have enabled it to provide the contributors’ contact information to Governor 

DeSantis. See 11 C.F.R. § 102.8(b)(1), 110.6(c)(1)(iii)-(iv)(A). Thus, compiling a 

petition is an extremely unwieldy, risky, and unlikely mechanism through which to 

attempt corruption. 

For these reasons, this Court should subject the FECA’s contribution limits to 

strict scrutiny as applied to RTW’s petition and invalidate them on the grounds they 

are an overbroad means of preventing actual or apparent quid pro quo corruption. 

III. THE DISTRICT COURT ERRED BY TREATING RTW’S 

SIGNED POLITICAL PETITION AS A “CONTRIBUTION” 

UNDER THE FEDERAL ELECTION CAMPAIGN ACT 

 This Court need not reach the constitutional issues in this case if it concludes 

RTW’s signed political petition does not constitute a “contribution” under the FECA. 

The FECA defines “contribution” as “any gift, subscription, loan, advance, or 

deposit” of either “money or anything of value” which a person makes to influence 

a federal election. 52 U.S.C. § 30101(8)(A)(i). The term includes the provision of 

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

normal charge . . . .” 11 C.F.R. § 100.52(d)(1). The FEC has defined the term to 

include “membership lists” and “mailing lists.” A-282 (quoting id.). 

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A. A Petition is Not a “Contribution” Under the FECA’s Plain Meaning 

 The district court held RTW’s provision of a “contact list to Governor 

DeSantis without compensation” constitutes a “contribution” under this definition 

because it would be a “gift” of “[some]thing of value.” A-294 to A-296. Regardless 

of whether the petition has “value,” it does not constitute a “contribution” because it 

cannot be deemed a “gift.” 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. OSHA, 845 F.2d 

345, 346 (D.C. Cir. 1988) (defining statutory term based on its “plain meaning” and 

“ordinary usage”). Even the FEC has recognized the term “gift” cannot be stretched 

to its outermost limits, but rather must be construed reasonably, in accordance with 

customary practice. In re McDonald for Congress, FEC A.O. 1976-86, at *1 (Oct. 6, 

1976); 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 ordinary parlance, a signed political petition would not be deemed a “gift” 

to the recipient. Rather, it is a collective communication from the petition’s 

signatories to the recipient. Even if one focuses solely on the signatory contact 

information contained within the petition, it would not be considered a “gift.” When 

a person is mailed a greeting card, for example, they would not consider the return 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 47 of 82
33 

address to be a “gift.” Likewise, when public schools distribute rosters containing 

students’ contact information to parents without charge, or employers disseminate 

internal phone directories to their employees, no one seriously considers the contact 

information contained within to be a “gift.” Political petitions from constituents to 

federal officeholders through online mechanisms such as Change.org are not deemed 

to contain “gifts,” either, regardless of how valuable any included contact 

information may be. More broadly, information in general fits uncomfortably, if at 

all, within the ordinary meaning of “gift.” 

B. Canons of Statutory Construction Require 

“Contribution” to Be Construed Narrowly 

The FEC has expressly admitted the definition of “contribution” is ambiguous 

in this context. A-223. Accordingly, the FECA should be construed narrowly, as 

excluding signed political petitions, to avoid unnecessarily raising serious 

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

440 U.S. 490, 507 (1979). This Court has repeatedly construed vague and 

ambiguous terms in the FECA narrowly to avoid unnecessarily raising First 

Amendment questions. See, e.g., Federal Election Comm’n v. Machinists NonPartisan Political League, 655 F.2d 380, 392 (D.C. Cir. 1981) (construing the term 

“political committee” narrowly under the constitutional avoidance principle because 

“[i]n this delicate first amendment area, there is no imperative to stretch the statutory 

language”); Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 48 of 82
34 

(invalidating FEC’s interpretation of the statutory term “member” in part on 

constitutional avoidance grounds). The constitutional avoidance canon even 

“trumps” Chevron deference to administrative agencies. Nat’l Mining Ass’n v. 

Kempthorne, 512 U.S. 702, 711 (D.C. Cir. 2008); see, e.g., Edward J. DeBartolo 

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 572 (1988) 

(holding when an agency’s interpretation of a statute “rais[es] . . . serious 

constitutional concerns,” a court must reject it in favor of an alternate “construction 

that obviates deciding” the constitutional issue). 

 The major questions canon likewise counsels against interpreting the FECA 

as restricting people’s freedom to provide signed political petitions to potential or 

actual federal candidates. W. Va. v. EPA, 142 S. Ct. 2587, 2614 (2022). It is “‘highly 

unlikely that Congress would leave’ to ‘[the agency’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 the type of unusual, sweeping power for which this Court must 

“hesitate before concluding that Congress meant to confer such authority.” Id. 

at 2608 (quotation marks omitted). 

 Finally, any doubts concerning the applicability of the FECA’s contribution 

limits should be resolved in RTW’s favor under the rule of lenity, since those limits 

may be enforced both civilly and criminally. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 49 of 82
35 

(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, 

e.g., Yates, 135 S. Ct. at 1088 (invoking rule of lenity in support of construing the 

term “tangible object” narrowly); Cleveland v. United States, 531 U.S. 12, 25 (2000) 

(construing the term “property” narrowly under the rule of lenity). Here, the rule of 

lenity counsels strongly in favor of excluding RTW’s petition from the scope of the 

term “gift.” 

C. The FECA’s Legislative History Counsels Against 

Construing “Contribution” to Include Draft Petitions. 

 In Machinists, 655 F.2d at 386, this Court held draft activities are at “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”). Congress has 

repeatedly rejected the FEC’s requests to expand the definition of “contribution” to 

include funds provided to influence a person’s decision to run for federal office. See, 

e.g., FEC, Legislative Recommendations—1987, reprinted in House Subcomm. on 

Elections, House Admin. Comm., Hearings on Campaign Finance, 100th Cong., 1st 

Sess., at 869 (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 

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36 

to federal office’”). The FEC unsuccessfully repeated this suggestion over the next 

several years,11 and as late as 2001, see FEC, Priority Legislative Recommendations, 

at 5 (2001), https://www.fec.gov/resources/cms-content/documents/legrec2001.pdf. 

 As the district court outlined, Congress repeatedly considered legislation 

throughout the 1990s to redefine the terms “contribution” and “expenditure” in 

FECA to include payments or disbursements “for the purpose of drafting a clearly 

identified individual as a candidate for Federal office or encouraging a clearly 

identified individual to become a candidate for Federal office.” A-325 (citing 

rejected bills). In the course of drafting the Bipartisan Campaign Reform Act 

(“BCRA”), Pub. L. No. 107-155 (Mar. 27, 2002), Congress expressly considered—

but declined to enact—Rep. Steny Hoyer’s proposal to amend the definition of 

“contribution” to include “any gift . . . 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.” H.R. 1818, 106th Cong., 1st Sess., 

§ 106(a)(1) (May 14, 1999). 

 The Supreme Court has cautioned against interpreting statutes to reflect 

proposals or amendments Congress failed to adopt. See, e.g., West Virginia v. EPA, 

11 https://www.fec.gov/resources/cms-content/documents/legrec1988.pdf; 

https://www.fec.gov/resources/cms-content/documents/legrec1989.pdf; 

https://www.fec.gov/resources/cms-content/documents/legrec1990.pdf; 

https://www.fec.gov/resources/cms-content/documents/legrec1991.pdf. 

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37 

142 S. Ct. 2587, 2614 (2022) (refusing to construe federal statute as authorizing a 

particular program because Congress “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.”); NLRB v. Burns Int’l Sec. Servs., 406 U.S. 272, 

281 (1972) (resolving dispute over a federal statute’s collective bargaining 

requirements based partly on the fact “Congress has consistently declined to 

interfere with free collective bargaining”). Thus, this Court should not stretch the 

statutory definition of “contribution” to extend to RTW’s petition encouraging 

Governor DeSantis to become and remain a presidential candidate. 

IV. AT MOST, RTW IS A CONDUIT THROUGH WHICH ITS 

PETITION’S SIGNATORIES HAVE CHOSEN TO PROVIDE 

THEIR CONTACT INFORMATION TO GOVERNOR DESANTIS. 

Even if this Court views the signatories’ contact information as comprising a 

wholly separate “contact list,” the FECA allows RTW to forward that information to 

Governor DeSantis as conduit contributions from each of the petition’s signatories 

themselves. 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 

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38 

such candidate.” 52 U.S.C. § 30116(a)(8) (emphasis added); accord 11 C.F.R. 

§ 110.6(a). 

Pursuant to § 30116(a)(8), each signatory is the true contributor of his or her 

contact information. RTW includes a person’s name and contact information in its 

petition only at that person’s express request and direction. A-189. At most, RTW is 

a conduit through which each petition signatory makes a de minimis in-kind 

contribution of his or her contact information to Governor DeSantis. 52 U.S.C. 

§ 30116(a)(8); 11 C.F.R. § 110.6(a). 

 The applicability of the FECA’s conduit contribution provisions would be 

clear if RTW were soliciting monetary contributions to Governor DeSantis rather 

than petition signatures and contact information. See ActBlue, FEC A.O. 2014-19, at 

6 (Jan. 15, 2015) (“ActBlue may act as a conduit or intermediary for contributions 

earmarked for prospective candidates . . . .”). All funds RTW spent to solicit 

monetary contributions from individual contributors to Governor DeSantis would be 

independent expenditures—not contributions to Governor DeSantis. See FEC v. 

Nat’l Conservative Political Action Comm., 470 U.S. 480, 496 (1985); see, e.g., WE 

LEAD, FEC A.O. 2003-23, at 5-6 (Nov. 7, 2003) (“If WE LEAD’s solicitations in 

this earmarking program were made independent of any candidate . . . by virtue of 

this independence the direct costs of solicitation incurred by WE LEAD would 

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39 

constitute independent expenditures.”); see also UBAAPAC, FEC A.O. 2011-14, at 2 

(Sept. 22, 2011); A-307. 

Moreover, RTW could aggregate contributions to Governor DeSantis from an 

unlimited number of people and give him a check potentially totaling millions of 

dollars. Such payment would not be deemed an illegal excessive contribution by 

RTW. See 11 C.F.R. § 110.6(d)(1) (“A conduit’s or intermediary’s contribution limits 

are not affected by the forwarding of an earmarked contribution . . . .”); A.O. 2014-

19, at 4 (“Contributions that [a conduit committee] transfers . . . to the designated 

candidates . . . would be attributed to the persons who contributed [those funds], and 

not to [the conduit committee].”). Rather, that check would reflect a series of conduit 

contributions from each person who provided funds to RTW to give to Governor 

DeSantis on their behalf. See, e.g., 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 . . . .”). RTW would merely be the conduit 

transmitting the check to Governor DeSantis. 52 U.S.C. § 30116(a)(8). Indeed, RTW 

would be legally required to provide Governor DeSantis not only the funds provided 

by each contributor, 11 C.F.R. § 102.8(c), but their name, address, occupation, and 

employer, as well, 52 U.S.C. § 30102(b)(1)-(2); 11 C.F.R. §§ 102.8(a)-(b), 

110.6(c)(1)(i), (iv)(A); see, e.g., ActBlue, FEC A.O. 2006-30, at 6-7 (Nov. 9, 2006) 

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40 

(discussing ActBlue’s legal obligation to forward the names and addresses of each 

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

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

system where a political committee may spend unlimited amounts of money to 

solicit, collect, and aggregate millions of dollars from an unlimited number of people 

(subject to each donor’s base contribution limit) to give to a candidate. See WE 

LEAD, FEC A.O. 2003-23, at 5-6 (Nov. 7, 2003) (allowing political committee to 

make independent expenditures to solicit monetary conduit contributions for a 

candidate); Democracy Engine, FEC A.O. 2022-03, at 4-6 (June 27, 2022) (allowing 

a corporation’s separate segregated fund to make independent expenditures to solicit 

monetary conduit contributions for a candidate). Yet such a committee may not 

solicit, collect, and aggregate contact information from the same number of people 

in a petition encouraging a person to become or remain a candidate. It is absurd for 

monetary conduit contributions from a potential or actual candidate’s supporters to 

receive greater protection than contact information from those supporters. 

 The FEC erroneously concluded RTW is not a conduit because it “expend[ed] 

considerable resources to “collect[] and compil[e] . . . information from tens of 

thousands . . . of individuals nationwide.” A-305. The district court agreed, “By 

conducting an expensive campaign of nationwide outreach and compiling the fruits 

of that outreach in a single, useable contact list of motivated supporters, [RTW] 

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41 

created a ‘thing of value’ beyond that which is attributable to the ‘contribution’ of 

each individual petition signatory.” A-305 to A-306; see also A-306 (“It has taken 

[RTW] nearly a year of work, over $1 million, and considerable initiative to identify 

and to solicit hundreds of thousands of signatories of its petition and to amalgamate 

their contact information into a contact list.”). 

 As the court itself recognizes, however, RTW’s solicitations of petition 

signatures are constitutionally protected independent expenditures and may not be 

limited or restricted. See A-307 (citing WE LEAD, FEC A.O. 2003-23, at 6). Thus, 

the only thing that ostensibly prevented the district court from deeming RTW to be 

a “conduit” is the fact RTW “compiled” the signatures and contact information it 

received into a single list. That is exactly what conduits committees do. They take 

large numbers of small contributions—whether monetary or in-kind—from large 

numbers of people, compile them, and make large, aggregated transfers to a 

candidate on behalf of the original contributors (including each contributor’s 

identifying information). 

 The district court rejected this argument, holding soliciting monetary 

contributions is materially different than soliciting contact information. A-307. First, 

without any citation to any evidence, the court simply assumed compiling monetary 

contributions from a large number of people requires only “de minimis” “logistical 

or administrative effort.” A-308. Compiling contact information, in contrast, 

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42 

“require[s] considerable labor” and “onerous . . . organizational effort.” Id. Nothing 

in the conduit statute, however, suggests an intermediary’s status as a conduit 

depends on how much administrative effort is involved, see 52 U.S.C. § 30116(a)(8). 

Moreover, this analysis completely ignores the fact that conduits which collect 

monetary contributions must also collect, compile, and report to the candidate each 

contributor’s name, address, occupation, and employer. 11 C.F.R. § 110.6(c)(1)(i), 

(iv)(A). Thus, even from the district court’s legally erroneous perspective, acting as 

a conduit for monetary contributions is at least as burdensome as RTW’s efforts. 

Second, the district court stated, “conduits do not themselves bear the 

transaction costs associated with the separate payments, which the original 

contributor or the candidate must pay in any event.” A-308. This assertion is flatly 

wrong and the FEC cannot contend otherwise. To be sure, if a corporation wishes 

to provide contribution processing services, it may do so only as part of a 

commercial, for-profit activity and must charge either the contributor, see Repledge, 

FEC A.O. 2015-08, at 5 (Nov. 9, 2015) (citing authorities); ReCellular, FEC A.O. 

2010-21, at 1, 4 (Oct. 8, 2010), cited by A-308, A-314, or the candidate, see Atlatl, 

Inc., FEC A.O. 2007-04, at 3-4 (Apr. 20, 2007), for the processing costs. 

In contrast, the FECA allows political committees to act as conduits and pay 

such administrative, processing, or other such costs themselves, rather than passing 

those expenses along to someone else. See NewtWatch PAC, FEC A.O. 1995-09, at 3 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 57 of 82
43 

(Apr. 21, 1995) (concluding expenses a conduit committee incurs in processing 

online financial transactions “are operating expenditures of the committee”); 

NORPAC, FEC A.O. 2019-15, at 4-6 (June 18, 2020) (holding that, because a conduit 

committee is responsible for paying any administrative or processing expenses it 

incurs in connection with earmarked conduit contributions, a contributor’s payment 

of such expenses counts as a contribution to that committee). A committee’s payment 

of such costs are independent expenditures, which may not be constitutionally 

limited. Cf. WE LEAD, FEC A.O. 2003-23, at 5-6 (Nov. 7, 2003); KFC Corp., FEC 

A.O. 1984-45, at 2 (Oct. 5, 1984) (treating administrative costs associated with 

processing contributions as part of the solicitation costs). 

The district court materially erred in concluding conduit committees may pay 

for solicitations for monetary contributions, but not the administrative and 

processing costs associated with them. Indeed, publicly available FEC reports from 

conduit committees would confirm most conduit committees absorb the 

administrative and processing fees associated with monetary conduit contributions, 

rather than either charging contributors or attempting to withhold such costs from 

recipient candidates. 

Third, the district court held aggregating together numerous small 

contributions into one or more large checks adds less value than aggregating together 

numerous people’s contact information into a petition or mailing list. See A-308 to 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 58 of 82
44 

A-310; see also A-305 (“[T]he whole of RFR’s contact list amounts to more than the 

sum of its parts.”). Regardless of whether these dubious and vague assertions are 

accurate, nothing in the text of 52 U.S.C. § 30116(a)(8) suggests they are relevant to 

determining a political committee’s status as a conduit. 

 The only judicial precedent the district court cited to establish RTW is not a 

conduit is FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999). Christian 

Coalition is completely inapplicable, however, since it did involve any alleged 

conduit contributions. Rather, that court concluded the Christian Coalition had made 

a “contribution” to federal candidate Oliver North by giving him a mailing list. The 

Coalition created that list by cross-referencing a list of delegates to the Virginia 

Republican Convention who supported a particular candidate for lieutenant governor 

against the organization’s own mailing list. Unlike RTW’s petition, not a single 

person on the cross-checked list the Coalition provided to North had provided their 

contact information to the Coalition for the express purpose of being included on 

that list or given to North. In short, the Coalition had neither acted as a conduit nor 

even attempted to argue it had acted as a conduit. Neither the words “conduit” or 

“intermediary,” nor any citation to § 30116(a)(8), appears anywhere in the opinion. 

The whole reason RTW is a conduit is precisely because it did not simply provide 

Governor DeSantis with pre-existing lists, but rather invited like-minded people to 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 59 of 82
45 

sign a petition and provide their contact information to give to Governor DeSantis 

on their behalf. 

Thus, at most, RTW is facilitating a series of in-kind contributions of contact 

information from each petition signatory to Governor DeSantis. The district court’s 

willingness to extend broad protections for conduit committees soliciting monetary 

contributions, while flatly barring a committee soliciting signatures and contact 

information for a political petition from acting as a conduit, see A-310, gets both 

campaign finance law and the First Amendment exactly backwards. If RTW had 

spent its funds persuading hundreds of thousands of people throughout the nation to 

each download an identical form on its website encouraging Governor DeSantis to 

run for President, fill it out with their signature and contact information, and mail it 

to him, neither the First Amendment nor FECA would empower the FEC to prohibit 

it. The FEC may not bar this political expression simply because RTW made the 

independent expenditures necessary to enable people to exercise their right of 

political association, see Citizens Against Rent Cont., 454 U.S. at 294, by compiling 

these signatures and contact information together into a petition. 

V. THE FECA’S CONTRIBUTION LIMITS DO NOT APPLY 

TO SIGNED DRAFT PETITIONS FOR PEOPLE WHO 

HAVE NOT YET BECOME FEDERAL CANDIDATES 

The district court denied RTW’s request for summary judgment and a 

permanent injunction on its non-constitutional, statutory claims, including its 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 60 of 82
46 

argument the FECA did not prohibit it from providing its signed petition to Governor 

DeSantis before he became a “candidate.” A-291. Although Governor DeSantis is 

now a presidential candidate, this issue is capable of repetition, yet evading review. 

There is a reasonable expectation RTW may seek to provide a similar petition to 

draft a qualified conservative to run for office in the next election cycle and will 

again be subject to the challenged contribution limits as they apply to transfers to 

people who are not yet candidates. See Holmes v. FEC, 823 F.3d 69, 71 n.3 (D.C. 

Cir. 2016); see also Davis v. FEC, 554 U.S. 724, 735-36 (2008). Thus, this Court 

may reach the merits of this issue and should conclude the FECA’s contribution 

limits are inapplicable to a draft petition containing signatories’ contact information 

provided to someone who has not yet become a federal candidate. 

The FECA limits contributions to a “candidate” or their authorized political 

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

“candidate” as someone who “seeks nomination for election, or election, to Federal 

office,” as evidenced by having received, spent, or authorized the receipt or 

expenditure of more than $5,000 for the purpose of running for 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 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 61 of 82
47 

interactions to attempt to draft a person who has not yet qualified as a “candidate.” 

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

In Machinists, this Court held a draft effort, by definition, is inherently aimed 

at a person who is not yet “a ‘candidate’ for office, as Congress uses that term in 

FECA.” 655 F.2d at 392; see also id. at 394 (noting a draft committee’s 

“contributions and expenditures do not relate to an identifiable ‘candidate’”). The 

opinion repeatedly distinguishes “activities [to] support an existing ‘candidate,’” to 

which the FECA applies, from “attempts to convince” a person “he would make a 

good ‘candidate’ or should become a ‘candidate.’” Id. at 396. Accordingly, the 

district court’s claim Machinists “does not speak to the definition of ‘candidate,’” A322, is demonstrably incorrect. To the contrary, this Court’s holding suggests the 

FECA does not prohibit a political committee from presenting a draft petition to 

persuade someone to become a candidate. 

The district court, however, concluded the FEC’s “testing the waters” 

regulation, 11 C.F.R. § 100.72, prohibited RTW from providing its petition to 

Governor DeSantis even before he became a federal candidate. See A-319. This 

regulation applies FECA’s contribution limits to people who have not yet become 

candidates but are “testing the waters” for a potential candidacy. The FEC may not 

use this regulation to bar RTW from providing a draft petition to a potential 

candidate, however. The FECA’s plain text limits contributions only to a 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 62 of 82
48 

“candidate,” 52 U.S.C. § 30116(a)(1)(A); 11 C.F.R. § 110.1(b)(1), which is defined 

as someone “seek[ing] nomination . . . or election to federal office,” 52 U.S.C. 

§ 30101(2) (emphasis added). The FEC’s “testing the waters” regulation, in contrast, 

impermissibly extends such limits to anyone who is considering whether to seek 

such nomination or election. As discussed earlier, see Section III.C, Congress has 

repeatedly refused to expand the FECA’s definition of “contribution” to apply to 

draft efforts. 

The FECA’s unambiguous text does not empower the FEC to regulate 

contributions to non-candidates simply because they are considering the possibility 

of running for office. See, e.g., Air Transp. Ass’n of Am., Inc. v. USDA, 37 F.4th 667, 

671-72 (D.C. Cir. 2022) (holding that, where Congress authorized an agency to 

“collect fees to fund a reserve” through 2002, the agency lacked authority to continue 

collecting those fees in later years); see also 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”). Even if this regulation may help 

prevent circumvention of the FECA’s contribution limits, see A-320, “neither courts 

nor federal agencies can rewrite a statute’s plain text to correspond to its supposed 

purposes.” Landstar Exp. Am., Inc. v. Fed. Maritime Comm’n, 569 F.3d 493, 498 

(D.C. Cir. 2009); Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 135 (2015). 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 63 of 82
49 

Additionally, contribution limits are already prophylactic protections 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). 

Prohibiting a political committee from providing a draft petition to someone who is 

not yet a candidate, in order to prevent the possibility of an impermissible quid pro 

quo in the event the person becomes a candidate and goes on to win election, is an 

impermissible “prophylaxis-upon-prophylaxis.” McCutcheon v. FEC, 572 U.S. 185, 

221 (2014). 

 An alternate, narrower basis exists for holding § 100.72 does not bar RTW 

from providing draft petitions with signatories’ contact information to potential 

candidates. The plain text of the FEC’s “testing the waters” regulation applies only 

to “funds” a person receives “for the purpose of determining whether [he or she] 

should become a candidate.” 11 C.F.R. § 100.72(a). The statutory definition of 

“contribution,” in contrast, expressly distinguishes between “money” and “anything 

of value.” 52 U.S.C. § 30101(8)(A)(i); 11 C.F.R. § 100.52(a). Contrary to the 

regulation’s plain text, the FEC subsequently concluded the term “funds” includes 

non-monetary, in-kind goods and services. See In re Reubin Askew, FEC A.O. 1981-

32, at *5 (Oct. 2, 1981); Republican Majority Fund, FEC A.O. 1985-40, at 3 (Jan. 

24, 1985). If this Court construes § 100.72 according to its plain meaning, however, 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 64 of 82
50 

it would not preclude RTW from providing a draft petition to someone who has not 

yet become a candidate because that does not constitute the provision of “funds.” 

 The district court concluded all of this analysis was beside the point because, 

without the “testing the waters” regulation, Governor DeSantis’ acceptance of 

RTW’s draft petition would automatically render him a candidate under the FECA, 

subjecting him to contribution limits. A-318; A-319 (“There is therefore no scenario 

in which Governor DeSantis could accept the contact list without triggering FECA’s 

limitations.”); A-322; see also A-326. Interpreting the FECA and/or FEC regulations 

to prohibit a group from providing a draft petition to someone who has not yet 

become a federal candidate in this Catch-22 manner would substantially interfere 

with a longstanding, traditional form of political expression and association. See 

Citizens Against Rent Control, 454 U.S. at 294. A person should be able to accept 

and consider a petition encouraging them to run for office—even if it contains 

signatories’ contact information to allow that person to respond—without thereby 

being deemed a candidate for that office. Accordingly, if the FEC’s “testing the 

waters” regulation is either invalid or inapplicable to RTW’s petition, the FECA 

itself would not bar RTW from providing that petition to someone who has not yet 

become a candidate. Insofar as 11 C.F.R. § 100.72 purports to apply to RTW’s 

provision of a draft petition to someone who is not a “candidate,” it is arbitrary, 

capricious, in excess of the FEC’s statutory authority, and invalid. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 65 of 82
51 

VI. IF THIS COURT CONCLUDES PLAINTIFF’S CLAIMS 

 FAIL AS A MATTER OF LAW, IT SHOULD ORDER 

 THE DISTRICT COURT TO DISMISS THIS CASE.

 This case involves pure questions of law: 

● whether a signed political petition containing signatories’ contact information 

constitutes a “contribution” under the FECA; 

● if so, whether such a petition should be deemed a series of conduit 

contributions from its signatories, rather than a single large contribution from 

the political committee which compiled it; 

 

● whether the FECA’s contribution limits are constitutional as applied to a 

signed political petition containing signatories’ contact information; 

● whether the FEC may compel RTW to redact signatories’ contact information 

from its political petition; 

● whether the FECA allows the FEC to regulate draft petitions to individuals 

who are not yet federal candidates; and 

● whether receiving a draft petition containing contact information from a 

sufficient number of signatories automatically makes a person a candidate. 

All of these issues turn on pure constitutional and statutory interpretation, as 

well as legislative facts about the world in general. No facts adduced in discovery 

would affect the district court’s resolution of these issues. Accordingly, based on the 

district court’s legal conclusions in assessing RTW’s likelihood of success on the 

merits, it erred in failing to dismiss RTW’s complaint. Should this Court agree with 

the district court that RTW has not presented valid constitutional or statutory claims, 

it should remand this case with an order for dismissal. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 66 of 82
52 

The U.S. Supreme Court has held, when a court denies a preliminary 

injunction, “[a]djudicating of the merits is most appropriate if the injunction rests on 

a question of law and it is plain that the plaintiff cannot prevail.” Munaf v. Green, 

553 U.S. 674, 691 (2008); see also City & Cnty. of Denver v. N.Y. Trust Co., 229 

U.S. 123, 136 (1913) (holding a court may “direct a final decree dismissing” a case 

when “there is any insuperable objection, in point of jurisdiction or merits, to the 

maintenance” of the suit) (emphasis added). This Court expressly embraces this 

principle, declaring a case “may be dismissed in its entirety” when “inquiry 

pertaining to a ruling respecting [a] preliminary injunction reveals that the case is 

entirely without merit,” in order to prevent “a waste of judicial resources.” Wagner 

v. Taylor, 836 F.2d 578 586 n.49 (D.C. Cir. 1987); Morris v. District of Columbia, 

38 F. Supp. 3d 57, 62-63 (D.D.C. 2014). Dismissal may be granted even over an 

opposing party’s objection. See Melinta Therapeutics, LLC v. U.S. FDA, No. 22-

2190 (RC), 2022 U.S. Dist. LEXIS 184535, at *2 n.2 (D.D.C. Oct. 7, 2022). Such 

relief is consistent with Federal Rule of Civil Procedure 1, which requires “the just, 

speedy, and inexpensive determination of every action and proceeding.” See also 

Fed. R. Civ. P. 11(b)(1) (prohibiting litigants from “caus[ing] unnecessary delay, or 

needlessly increas[ing] the cost of litigation”). 

In Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agriculture, 573 F.3d 815, 821 

(D.C. Cir. 2009), the district court denied the plaintiffs’ motion for a preliminary 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 67 of 82
53 

injunction, and they took an interlocutory appeal. This Court held the plaintiffs had 

“no likelihood of success on the merits” and affirmed the denial of a preliminary 

injunction. Id. at 833. It went on to declare “there is an ‘insuperable objection’” to 

several of the plaintiffs’ claims as a matter of law. Id. It concluded “those claims in 

[the] complaint must be dismissed for failure to state a claim” and ordered the district 

court to dismiss them. Id.; see also Distaff, Inc. v. Springfield Contracting Corp., 

984 F.2d 108, 110 (4th Cir. 1993).12 

Neither the FEC nor the district court has identified even a single potential 

fact which may arise in discovery which they contend would affect their analysis 

and entitle RTW to relief on its First Amendment claim. If this Court, regrettably, 

determines RTW’s claims fail as a matter of law, the proper remedy is not simply 

affirming the district court, but rather remanding for entry of an order dismissing the 

complaint as a whole. Dismissal would resolve the unnecessarily complicated 

bifurcated procedural posture in which this case currently stands, promoting judicial 

economy and facilitating a petition for certiorari to the U.S. Supreme Court. 

12 The FEC has argued this Court lacks jurisdiction to consider this issue, without 

engaging with any of the cases in which this Court exercised jurisdiction to order 

dismissal of cases on interlocutory appeal. See Federal Election Commission’s 

Partial Motion to Dismiss, D.C. Cir. Doc #2014480, at 2 (Aug. 28, 2023). A motion 

panel of this Court carried that motion with this case. See Order, D.C. Cir. Doc. 

#2024570 (Oct. 31, 2023) (per curiam). In the event this Court concludes RTW’s 

claims are meritless, RTW seeks the relief the U.S. Supreme Court authorized in N.Y. 

Trust Co., 229 U.S. at 136, and Munaf, 553 U.S. at 691, and this Court applied in 

case such as Ark. Dairy Coop. Ass’n, 573 F.3d at 821. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 68 of 82
54 

Although the FEC believes RTW’s claims are meritless, it has needlessly 

drawn out these proceedings by refusing to file a motion to dismiss to allow the 

district court to resolve this case expeditiously. Rather, the FEC has fought 

vociferously to prevent the district court from entering final judgment in its favor. 

See, e.g., Federal Election Commission’s Opposition to Plaintiff’s Motion for Entry 

of Judgment, D.E. #36 (July 19, 2023). The FEC’s only dubious explanation is that 

it wishes to “develop a factual record” concerning RTW’s First Amendment claims. 

Federal Election Commission’s Partial Motion to Dismiss, D.C. Cir. Doc #2014480, 

at 2 (Aug. 28, 2023). 

Such a “factual record” would be completely superfluous, however, if RTW 

has failed to state valid First Amendment and statutory claims, or those claims 

otherwise fail as a matter of law. RTW’s activities are a matter of public record 

through its detailed FEC filings, online advertisements, and other public solicitations 

for petition signatures. Subjecting RTW to the costs and burdens of a futile yearlong, intrusive fishing expedition in discovery would violate Rules 1 and 11, punish 

RTW for bringing this case, and deter future litigants from pursuing other 

constitutional challenges. Accordingly, this Court should reaffirm that when a 

plaintiff seeking a preliminary injunction has failed to state a valid claim as a matter 

of law, the proper remedy is not merely denial of the preliminary injunction, but 

dismissal of the claim or complaint. 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 69 of 82
55 

CONCLUSION

 The district court’s ruling was based exclusively on RTW’s likelihood of 

success on the merits regarding its claims for a preliminary injunction and actual 

success on the merits regarding its claims for a permanent injunction. A-337 to A338. In the event this Court concludes one or more of RTW’s claims are meritorious, 

it easily satisfies the remaining requirements for injunctive relief. RTW’s inability 

to engage in political speech by providing its signed political petition to Governor 

DeSantis is 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.))); Davis 

v. District of Columbia, 721 F.3d 638, 653 (D.C. Cir. 2013). Moreover, “numerous 

courts have held that the inability to recover monetary damages because of sovereign 

immunity renders the harm suffered irreparable.” Odebrecht Constr. v. Sec’y Fla. 

DOT, 715 F.3d 1268, 1289 (11th Cir. 2013). 

 The balance of hardships favors RTW since the FEC lacks any valid interest 

in either enforcing an unconstitutional law or prohibiting conduct which does not 

actually violate the FECA. See Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 

(D.C. Cir. 2016). And “there is no public interest in the perpetuation of unlawful 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 70 of 82
56 

agency action.” Texas v. Biden, 10 F.4th 538, 560 (5th Cir. 2021) (per curiam) 

(alteration omitted); see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). 

 For these reasons, in light of this case’s unusually complex procedural posture, 

Plaintiff-Appellant Ready to Win respectfully requests this Court either: 

A. REVERSE the District Court’s ruling and ORDER entry of: 

1. a PRELIMINARY INJUNCTION prohibiting the FEC from 

violating RTW’s First Amendment rights, and/or 

2. a PERMANENT INJUNCTION prohibiting the FEC from 

applying the FECA to signed political petitions – either in general, or those addressed 

to people who have not yet become federal candidates – as a matter of statutory 

interpretation, or 

B. REMAND this case and ORDER the district court to DISMISS it. 

 Respectfully submitted, 

 _/s/ Dan Backer_____________________ 

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

 CHALMERS, ADAMS, BACKER 

 & KAUFMAN LLC 

 441 N. Lee Street, Suite 300 

 Alexandria, VA 22314 

 (202) 210-5431 

 dbacker@ChalmersAdams.com 

 Attorney for Plaintiff-Appellant 

 Ready to Win 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 71 of 82
CERTIFICATE OF COMPLIANCE

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

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

App. P. 32(f), this document contains 12,903 words. 

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

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

document has been prepared in a proportionally spaced typeface using Microsoft 

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

 Respectfully submitted, 

 _/s/ Dan Backer_____________________ 

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

 Attorney for Plaintiff-Appellant 

 Ready to Win

 Dated December 18, 2023 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 72 of 82
ADDENDUM

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 73 of 82
ADD-1 

ADDENDUM OF PERTINENT STATUTES AND REGULATIONS 

Table of Contents 

First Amendment ......................................................................................... ADD-3 

 U.S. Const. amend. I ........................................................................... ADD-3 

Definition of “Candidate” .......................................................................... ADD-3 

 52 U.S.C. § 30101(2)(A) – Definitions .............................................. ADD-3 

 11 C.F.R. § 100.3(a)(1) – Candidate (52 U.S.C. 30101(2)) ............... ADD-3 

Definition of “Contribution” ...................................................................... ADD-4 

 

 52 U.S.C. § 30101(8)(A)(i) – Definitions .......................................... ADD-4 

 11 C.F.R. § 100.52(a), (d)(1) – Gift, subscription, loan, 

 advance or deposit of money .............................................................. ADD-4 

Definition of “Identification” ..................................................................... ADD-5

 52 U.S.C. § 30101(13)(A) – Definitions ............................................ ADD-5 

 11 C.F.R. § 100.12 – Identification (52 U.S.C. 30101(13)) ............... ADD-5 

Contribution Limits .................................................................................... ADD-5 

 52 U.S.C. § 30116(a)(1)(A) – Limitations 

 on contributions and expenditures ...................................................... ADD-5 

 11 C.F.R. § 110.1(b)(1) – Contributions by 

 persons other than multicandidate political 

 committees (52 U.S.C. 30116(a)(1)) .................................................. ADD-6 

 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 74 of 82
ADD-2 

Conduit Provisions ...................................................................................... ADD-6 

 52 U.S.C. § 30102(b)(1)-(2) ............................................................... ADD-6 

 52 U.S.C. § 30116(a)(8) – Limitations on 

 contributions and expenditures ........................................................... ADD-7 

 11 C.F.R. §§ 102.8 – Receipt of 

 contributions (52 U.S.C. 30102(b)) .................................................... ADD-7 

 11 C.F.R. 110.6(a), (c)(1)(i), (c)(1)(iv)(A), (d)(1) – 

 Earmarked contributions (52 U.S.C. 30116(a)(8)) ............................. ADD-8 

Testing the Waters Provision ...................................................................... ADD-9 

 11 C.F.R. § 100.72(a) – Testing the waters ......................................... ADD-9 

 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 75 of 82
ADD-3 

PERTINENT STATUTES AND REGULATIONS 

First Amendment

 U.S. Const., amend. I 

Congress shall make no law . . . abridging the freedom of speech . . . . 

Definition of “Candidate”

52 U.S.C. § 30101(2)(A) – Definitions 

(2) The term “candidate” means an individual who seeks nomination 

for election, or election, to Federal office, and for purposes of this 

paragraph, an individual shall be deemed to seek nomination for

election, or election— 

(A) if such individual has received contributions aggregating in 

excess of $5,000 or has made expenditures aggregating in excess

of $5,000; 

* * * 

11 C.F.R. § 100.3(a)(1) – Candidate (52 U.S.C. 30101(2)) 

(a) Definition. Candidate means an individual who seeks nomination 

for election, or election, to federal office. An individual becomes a 

candidate for Federal office whenever any of the following events 

occur: 

(1) The individual has received contributions aggregating in 

excess of $ 5,000 or made expenditures aggregating in excess of

$ 5,000. 

* * * 

 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 76 of 82
ADD-4 

Definition of “Contribution” 

 52 U.S.C. § 30101(8)(A)(i) – Definitions 

(8)(A) The term ‘contribution’ includes— 

(i) any gift, subscription, loan, advance, or deposit of money or 

anything of value made by any person for the purpose of 

influencing any election for Federal office . . . . 

11 C.F.R. § 100.52(a), (d)(1) – Gift, subscription, loan, advance or deposit of 

money 

(a) A 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 is a contribution. 

* * * 

(d)(1) For purposes of this section, the term anything of value includes 

all in-kind contributions. . . . [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. Examples of such 

goods or services include, but are not limited to: Securities, facilities, 

equipment, supplies, personnel, advertising services, membership lists, 

and mailing lists. If goods or services are provided at less than the usual 

and normal charge, the amount of the in-kind contribution is the 

difference between the usual and normal charge for the goods or

services at the time of the contribution and the amount charged the 

political committee. 

* * * 

 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 77 of 82
ADD-5 

Definition of “Identification”

52 U.S.C. § 30101(13)(A) – Definitions 

(13) The term “identification” means— 

(A) in the case of any individual, the name, the mailing address, 

and the occupation of such individual, as well as the name of his 

or her employer; 

* * * 

11 C.F.R. § 100.12 – Identification (52 U.S.C. 30101(13)) 

Identification means, in the case of an individual, his or her full name, 

including: first name, middle name or initial, if available, and last name; 

mailing address; occupation; and the name of his or her employer; and, 

in the case of any other person, the person’s full name and address. 

Contribution Limits

 52 U.S.C. § 30116(a)(1)(A) – Limitations on contributions and expenditures 

 (a) Dollar limits on contributions. 

(1) Except as provided in subsection (i) and section 315A, no 

person shall make contributions— 

(A) to any candidate and his authorized political 

committees with respect to any election for Federal office 

which, in the aggregate, exceed $2,000;1

* * * 

1

 As of February 2, 2023, this limit has been increased to $3,300 due to inflation. 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 88 Fed. Reg. 7088, 7090 (Feb. 2, 2023). 

USCA Case #23-5161 Document #2032050 Filed: 12/18/2023 Page 78 of 82
ADD-6 

11 C.F.R. § 110.1(b)(1) – Contributions by persons other than multicandidate 

political committees (52 U.S.C. 30116(a)(1)) 

* * * 

(b) Contributions to candidates; designations; and redesignations. 

(1) No person shall make contributions to any candidate, his or 

her authorized political committees or agents with respect to any 

election for Federal office that, in the aggregate, exceed $ 2,000. 

(i) The contribution limitation in the introductory text of 

paragraph (b)(1) of this section shall be increased by the 

percent difference in the price index in accordance with 11 

CFR 110.17. 

* * * 

Conduit Provisions

52 U.S.C. § 30102(b)(1)-(2) 

 * * * 

 (b) Account of contributions; segregated funds. 

(1) Every person who receives a contribution for an authorized

political committee shall, no later than 10 days after receiving 

such contribution, forward to the treasurer such contribution, and 

if the amount of the contribution is in excess of $ 50 the name

and address of the person making the contribution and the date 

of receipt. 

(2) Every person who receives a contribution for a political 

committee which is not an authorized committee shall— 

(A) if the amount of the contribution is $ 50 or less, 

forward to the treasurer such contribution no later than 30 

days after receiving the contribution; and 

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(B) if the amount of the contribution is in excess of $ 50, 

forward to the treasurer such contribution, the name and 

address of the person making the contribution, and the date 

of receipt of the contribution, no later than 10 days after 

receiving the contribution. 

 * * * 

52 U.S.C. § 30116(a)(8) – Limitations on contributions and expenditures 

(a)(8) For purposes of the limitations imposed by this section, all 

contributions made by a person, either directly or indirectly, on behalf 

of a particular candidate, including contributions which are in any way 

earmarked or otherwise directed through an intermediary or conduit to 

such candidate, shall be treated as contributions from such person to 

such candidate. The intermediary or conduit shall report the original 

source and the intended recipient of such contribution to the 

Commission and to the intended recipient. 

11 C.F.R. §§ 102.8 – Receipt of contributions (52 U.S.C. 30102(b)) 

(a) Every person who receives a contribution for an authorized political 

committee shall, no later than 10 days after receipt, forward such 

contribution to the treasurer. If the amount of the contribution is in 

excess of $50, such person shall also forward to the treasurer the name 

and address of the contributor and the date of receipt of the contribution. 

If the amount of the contribution is in excess of $200, such person shall 

forward the contribution, the identification of the contributor in 

accordance with 11 CFR 100.12, and the date of receipt of the 

contribution. Date of receipt shall be the date such person obtains 

possession of the contribution. 

(b) 

(1) Every person who receives a contribution of $50 or less for 

a political committee which is not an authorized committee shall 

forward such contribution to the treasurer of the political 

committee no later than 30 days after receipt. 

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(2) Every person who receives a contribution in excess of $50 

for a political committee which is not an authorized committee 

shall, no later than 10 days after receipt of the contribution,

forward to the treasurer of the political committee: the 

contribution; the name and address of the contributor; and the 

date of receipt of the contribution. If the amount of the 

contribution is in excess of $200, such person shall forward the 

contribution, the identification of the contributor in accordance 

with 11 CFR 100.12, and the date of receipt of the contribution. 

Date of receipt shall be the date such person obtains possession 

of the contribution. 

(c) The provisions of 11 CFR 102.8 concerning receipt of contributions 

for political committees shall also apply to earmarked contributions 

transmitted by an intermediary or conduit. 

11 C.F.R. 110.6(a), (c)(1)(i), (c)(1)(iv)(A), (d)(1) – Earmarked contributions 

(52 U.S.C. 30116(a)(8)) 

(a) General. All contributions by a person made on behalf of or to a 

candidate, including contributions which are in any way earmarked or 

otherwise directed to the candidate through an intermediary or conduit, 

are contributions from the person to the candidate. 

* * * 

(c) Reporting of earmarked contributions — 

(1) Reports by conduits and intermediaries 

(i) The intermediary or conduit of the earmarked 

contribution shall report the original source and the 

recipient candidate or authorized committee to the 

Commission and to the recipient candidate or authorized 

committee. 

* * * 

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(iv) The report by the conduit or intermediary shall 

contain the following information: 

(A) The name and mailing address of each 

contributor and, for each earmarked contribution in 

excess of $ 200, the contributor’s occupation and 

the name of his or her employer; 

* * * 

 

 (d) Direction or control. 

(1) A conduit’s or intermediary’s contribution limits are not 

affected by the forwarding of an earmarked contribution except 

where the conduit or intermediary exercises any direction or 

control over the choice of the recipient candidate. 

* * * 

Testing the Waters Provision

11 C.F.R. § 100.72(a) – Testing the waters. 

(a) General exemption. Funds received solely for the purpose of 

determining whether an individual should become a candidate are not 

contributions. Examples of activities permissible under this exemption 

if they are conducted to determine whether an individual should

become a candidate include, but are not limited to, conducting a poll, 

telephone calls, and travel. Only funds permissible under the Act may 

be used for such activities. The individual shall keep records of all such 

funds received. See 11 CFR 101.3. If the individual subsequently 

becomes a candidate, the funds received are contributions subject to the 

reporting requirements of the Act. Such contributions must be reported 

with the first report filed by the principal campaign committee of the 

candidate, regardless of the date the funds were received. 

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