UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________

)

UNITY08 et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 07-0053 (RWR) 

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________ )

MEMORANDUM OPINION

Plaintiffs Unity08, Douglas Baily, Roger Craver, Hamilton

Jordan, Angus King, and Jerry Rafshoon bring this action against

defendant Federal Election Commission (“FEC” or the “Commission”)

seeking declaratory and injunctive relief preventing the FEC from

regulating Unity08 as a political committee under the Federal

Election Campaign Act, 2 U.S.C. §§ 431 et. seq. (“FECA” or “the

Act”). The parties have filed motions for summary judgment. 

Because the FEC’s interpretation of the Act is reasonable and

does not impermissibly infringe on the plaintiffs’ rights under

the First Amendment, the FEC’s motion for summary judgment will

be granted.

BACKGROUND

Unity08 is a not-for-profit corporation organized under the

laws of the District of Columbia, and exempt from federal income

taxation under section 527 of the Internal Revenue Code of 1986

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(Compl. ¶ 3.) It defines itself as a “political movement” aimed

at “getting our country back on track by nominating and electing

a Unity Ticket in the [2008] presidential election.” (Id. ¶ 4-

5.) Unity08 also asserts that it “seeks to effect major change

and reform in the 2008 national elections” through its

organization of voters who share its agenda. (Id. ¶ 11.) It

will use its website to disseminate “its analysis that the

[United States] needs to focus on crucial issues,” and by

“raising and spending money to qualify Unity08 for a position on

the ballot in . . . approximately thirty-seven (37) states.” 

(Id.) To raise the roughly $10 million to $12 million that

Unity08 estimates it would cost to qualify for ballot access in

thirty-seven states, Unity08 would solicit funds “through the

Internet and personal contacts.” (Id. ¶¶ 11-13, 16.) Unity08

planned to hold an “Internet on-line nominating convention” after

qualifying for ballot access to select its candidates for

President and Vice President. (Id. ¶ 18.) 

Unity08 filed an advisory opinion request with the Federal

Election Commission asking whether Unity08 would be considered a

“political committee” before the conclusion of its on-line

convention in the summer of 2008. (See Compl. at ¶ 13; Pls’ Mem.

of Law in Support of Mot. for Summ. J. (“Pls.’ Mem.”) at 5-6.) 

FECA defines a political committee as a group which receives

contributions or makes expenditures over $1,000 in a calendar

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In its Complaint, Unity08 alleges that the individual 1

plaintiffs to this action would have “contributed substantially

more than $5,000" to Unity08 were it not for the threat of

prosecution by the FEC. (Compl. at ¶¶ 27-28.) 

year to influence a federal election. 2 U.S.C. § 431(4)(A),

(8)(A)(i), (9)(A)(i). If Unity08 were defined as a political

committee, Unity08 would be subject to fundraising and spending

restrictions, as well as filing requirements. (Def.’s Mem. of

Law in Support of Mot. for Summ. J. (“Def.’s Mem.”) at 5-6.) 

Before the FEC issued its advisory opinion, Unity08 voluntarily

refused to accept contributions from individuals of more than

$5,000 . (Id.) 1

The FEC issued Advisory Opinion (“AO”) 2006-20, concluding

that Unity08 would be a political committee once it spent more

than $1,000 for ballot access because spending money for ballot

access was an “expenditure” under the Federal Election Campaign

Act (“FECA”), 2 U.S.C. §§ 431 et seq: 

Monies spent by Unity 08 to obtain ballot access

through petition drives will be expenditures. An

“expenditure” is a “purchase, payment, distribution,

loan, advance, deposit, or gift of money or anything

of value, made by any person for the purpose of

influencing any election for Federal office.” 42

U.S.C. 431(9)(A)(i); 11 CFR 100.111(a).

The Commission has previously determined that expenses

incurred in gathering signatures to qualify for a

ballot for Federal office are expenditures. See

Advisory Opinion 1994-05 n.1 (White) ("[E]xpenditures

to influence your election would include amounts you

spend . . . to promote yourself for the general

election ballot by seeking signatures on nomination

petitions"); see also Advisory Opinion 1984-11

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(Serrette) (determining that expenses made to collect

petition signatures for the general election ballot are

expenditures, and therefore are, "qualified campaign

expenses," which are expenses made in connection with a

candidate’s campaign for nomination, see 11 CFR

9032.9). 

Although Unity 08 plans to qualify for ballot access

for itself as an organization, but not yet for any

named candidates, Unity 08 is, in effect, using its

name as a placeholder for its candidates’ names on the

ballot. Moreover, unlike organizations that secure

ballot access for themselves in order to field a slate

of Federal and non-Federal candidates, Unity 08 has

announced that it will field only two candidates - for

the offices of President and Vice President - in the

2008 election only. Thus, in promoting itself through

petition drives to obtain ballot access, Unity 08 is

promoting its presidential and vice-presidential

candidates, and any payments by Unity 08 for these

activities will constitute expenditures.

(AO 2006-20 at 3-4.) The FEC also determined that Unity08 met

the “major purpose” test for a “political committee,” and

therefore the FEC was not prevented by the First Amendment from

exercising jurisdiction over Unity08:

Unity 08’s self-proclaimed major purpose is the

nomination and the election of a presidential candidate

and a vice-presidential candidate. Unity 08 clearly

states this goal in its advisory opinion request and on

its website. While Unity 08 has a subsidiary objective

of influencing the major parties to adopt, in

connection with the 2008 national elections, the core

positions of Unity 08 supporters, your letters of May

30 and August 16, as well as Unity 08's website, state

that Unity 08's first goal is the election “of a Unity

Ticket for President and Vice-President of the United

States in 2008.” 

Therefore, given that Unity 08 is making “expenditures”

under the Act and Commission regulations, Unity 08 will

become a political committee once it makes more than

$1,000 in expenditures. Unity 08 must register with

the Commission by filing a statement of organization

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 Unity08 later suspended its efforts to get on the ballot 2

as a political organization pending this litigation, but said it

might resume its operation if it prevails here. (See Pls.’ Mot.

for Expedited Consideration at 1-3.) 

 Two organizations (Campaign Legal Center and Democracy 21) 3

have filed an opposed motion for leave to file Amici Curiae

briefs. (Mot. for Leave to File as Amici Curiae at 1-3.) 

Because the movants adequately describe their interests in this

case and demonstrate that their perspectives are relevant to the

disposition of the case, their motion for leave to file will be

granted. 

within ten days after becoming a political committee,

and it will be subject to the provisions of the Act and

Commission regulations applicable to political

committees. See 2 U.S.C. 433, 11 CFR 102.1 and 102.2.

(AO 2006-20 at 4.) 

The plaintiffs filed this action seeking to enjoin the FEC

from enforcing AO 2006-20 against them, and seeking a declaratory

judgment that AO 2006-20 violated plaintiffs’ First Amendment

right as applied to them. They have moved for summary judgment,

arguing that, as a matter of law, the FEC’s interpretation of the

Act violated Unity08's rights under the First Amendment. (Pls.’ 2

Mem. at 1-2.) The FEC has cross-moved for summary judgment,

arguing that Unity08 lacks standing to bring this action, and

that even if Unity08 has standing, the challenged interpretation

should be upheld as a matter of law because it was neither

arbitrary nor capricious, and because it did not infringe on the

plaintiffs’ First Amendment rights. (Def.’s Mem. at 1-3.) 3

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DISCUSSION

Federal Rule of Civil Procedure 56 states that summary

judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24

(1986). “When ruling on cross-motions for summary judgment, the

court shall grant summary judgment only if one of the moving

parties is entitled to judgment as a matter of law upon material

facts that are not genuinely in dispute.” Barr Labs., Inc. v.

Thompson, 238 F. Supp. 2d 236, 244 (D.D.C. 2002). 

I. STANDING

"[A] showing of standing is an essential and unchanging

predicate to any exercise of [a court’s] jurisdiction." Fla.

Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)

(citation and internal quotation omitted). “As the party

invoking federal jurisdiction, the plaintiff bears the burden of

establishing standing.” Autozone Dev. Corp. v. Dist. of

Columbia, 484 F. Supp. 2d 24, 28 (D.D.C. 2007). In considering

whether a plaintiff has standing, a court accepts as true all of

the factual allegations contained in the complaint, Artis v.

Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and may also

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consider “undisputed facts evidenced in the record.” Coal. for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.

2003). 

In order to establish standing, the plaintiffs must allege a

personal injury in fact, that is traceable to the defendant's

conduct, and that is redressable by the relief requested by the

plaintiff. See Int’l Bhd. of Teamsters v. Transp. Sec. Admin.,

429 F.3d 1130, 1133 (D.C. Cir. 2005). “Specifically, standing to

bring a constitutional claim requires (1) ‘injury in fact’ which

is (a) ‘concrete and particularized’ and (b) ‘actual and

imminent, not conjectural’ or hypothetical[,]’ . . . (2) a

‘causal connection between the injury and the conduct complained

of[,]’” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d

163, 171 (D.D.C. 2007) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)), and (3) a showing that it is

“‘likely,’ as opposed to merely ‘speculative,’ that the injury

will be ‘redressed by a favorable decision.’” Lujan, 504 U.S.

at 561. “At the pleading stage, general factual allegations of

injury resulting from the defendant’s conduct may suffice[.]” 

Id. at 561.

A. Traceable Injury

The FEC argues that the plaintiffs did not suffer an injury

in fact that was causally connected to the FEC’s administrative

opinion. To vindicate its own rights or entitlements, as opposed

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to those of its members, an organizational plaintiff must

establish that its “discrete programmatic concerns are being

directly and adversely affected by the challenged action.” 

Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (citing

Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d 1428, 1433 (D.C.

Cir. 1995)). This standard may be satisfied only by a showing

that Unity08 has suffered a “concrete and demonstrable injury” to

its organizational activities, in conjunction with a depletion of

resources, that constitutes more than a simple inconvenience to

“abstract social interests.” Id. (citing Nat’l Taxpayers Union,

68 F.3d at 1433). 

The FEC argues that Unity08 did not suffer a concrete injury

that was casually related to AO 2006-20 because Unity08

voluntarily adopted a $5,000 limit on the personal donations it

would accept. The FEC also argues that Unity08 did not produce

evidence of donors who were willing to lend more than $5,000 to

Unity08. (Def.’s Mem. at 9.) However, plaintiffs allege in the

complaint that “each plaintiff would lend or contribute more than

$5,000 to Unity08” if not for AO 2006-20. (See Compl. at ¶¶ 27-

28.) They also provide the affidavit of plaintiff Baily,

Unity08’s President and Chief Executive Officer, who asserted

that in late 2006, Unity08 decided as an organization that it

could no longer successfully limit itself to donations of $5,000

or less from individual donors. Baily also asserted that he

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would have lent more than $5,000 to Unity08 if the FEC had not

issued AO 2006-20, because he feared prosecution by the FEC. 

(See Pls.’ Resp. to Def.’s Mem. (“Pls.’ Resp.”) at 8-9; see also

Pls.’ Mem. Ex. 1 at ¶ 64.) Further, Unity08 has alleged that the

failure to obtain contributions in excess of $5,000 impeded its

ability to organize a campaign to obtain ballot access for the

2008 election by depriving it of the funds necessary to begin its

campaign, and to develop technology necessary for its “online

convention.” (Pls.’ Mem. Ex. 1 at ¶¶ 52-56.) The FEC argues

that the plaintiffs lack standing because, under 11 C.F.R.

100.82, even if Unity08 were defined as a political committee,

Unity08 could obtain “loans” made “by a bank ‘in the ordinary

course of business,’” because that type of loan is not defined as

a “contribution” under the FECA. (Def.’s Reply at 2.) However,

as shown by Baily’s affidavit, Baily is not a “bank” who would be

making a loan in the “ordinary course of business,” and the FEC

does not point to any evidence in the record that such

institutions were willing to lend Unity08 money. Thus, at the

very least, Unity08 has shown that there are sufficient facts in

the record to demonstrate that it suffered a concrete injury that

was fairly traceable to AO 2006-20. See Abigail Alliance for

Better Access to Dev. Drugs v. Von Eschenbach, 469 F.3d 129, 133

(D.C. Cir 2006) (organizational plaintiff had standing where it

alleged that its “counseling, referral and advocacy” activities

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were directly impeded by defendant); A.N.S.W.E.R. Coal. v.

Kempthorne, 493 F. Supp. 2d 34, 45 (D.D.C. 2007) (plaintiff had

organizational standing where organizational plaintiff was “an

object of the action at issue”). 

B. Redressability 

The FEC argues that Unity08 cannot show redressability

because, even if AO 2006-20 were to be invalidated, the FEC would

still find Unity08 to be a political committee since it qualifies

by having exceeded the $1,000 threshold for contributions

received. However, “plaintiffs need not demonstrate that

judicial review of the FEC’s interpretation will lead to the

ultimate relief sought. . . . Rather, ‘[a] remand that would

leave the agency free to exercise its discretion in a proper

manner, then, could lead to agency action that would redress

petitioner’s injury.’” Natural Law Party of the U.S. v. FEC, 111

F. Supp. 2d 33, 50 (D.D.C. 2000) (quoting from Competitive

Enterprise Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d

107, 118 (D. C. Cir. 1990); see also Akins v. FEC, 101 F.3d 731

(D. C. Cir. 1996) (adverse decision by FEC redressible even if

FEC would come to the same decision for other reasons). Thus,

Unity08 has alleged sufficient facts to establish a concrete

injury in fact that is fairly traceable to AO 2006-20 that would

be redressible by a favorable decision in this court. 

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II. FINAL AGENCY ACTION

The FEC argues that the plaintiffs’ claim should be

dismissed as not ripe because AO 2006-20 did not constitute final

agency action. Instead, says the FEC, the AO was a negative

advisory opinion that did not bind the plaintiffs because the

plaintiffs could challenge in court any subsequent prosecution

brought by the FEC. The FEC also argues that a subsequent

prosecution would further clarify its position on the issues

necessary to resolve this challenge. 

An agency action is considered final if it is “definitive"

and has a “‘direct and immediate . . . effect on the day-to-day

business’” of the party challenging it. FTC v. Standard Oil Co.,

449 U.S. 232, 239 (1980) (quoting & citing Abbott Labs. v.

Gardner, 387 U.S. 136, 152 (1967), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99, 105 (1977)). In determining

the fitness of an issue for judicial review, a court examines

whether the issue “is purely legal, whether consideration of the

issue would benefit from a more concrete setting, and whether the

agency’s action is sufficiently final.” Clean Air Implementation

Project v. EPA, 150 F.3d 1200, 1204-1205 (D.C. Cir. 1998)

(quoting Nat. Resources Defense Council, Inc. v. EPA, 22 F.3d

1125, 1133 (D.C. Cir. 1994)). 

Here, the issues in dispute are purely legal. There are no

factual issues left to be determined that would benefit from a

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more concrete setting. The FEC notes that advisory opinions

granted in response to requests are not as final as an

enforcement action. However, the individual plaintiffs’

affidavits demonstrate that, but for AO 2006-20, plaintiffs

intended to contribute more than $5,000 to Unity08. When a

plaintiff has a demonstrable “intent to engage in a course of

conduct arguably affected with a constitutional interest, but

proscribed by a statute, and there exists a credible threat of

prosecution thereunder,” the plaintiff “‘should not be required

to await and undergo a criminal prosecution as the sole means of

seeking relief.’” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979). A credible threat of prosecution

exists where a plaintiff’s desired course of action is covered by

a statute that is generally enforced. Id. at 302. The

plaintiffs correctly argue that actions regulated under the FECA

face a unique threat of enforcement because the statute “permits

a private party to challenge the FEC’s decision not to enforce” a

provision, meaning that a political competitor could challenge

the FEC’s decision not to enforce AO 2006-20. Chamber of

Commerce v. Federal Election Comm’n., 69 F.3d 600, 603 (D.C. Cir.

1995). Further, the FEC’s advisory opinion ostensibly deters the

plaintiffs’ from engaging in behavior protected by the First

Amendment. “A party has standing to challenge, pre-enforcement,

even the constitutionality of a statute if First Amendment rights

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are arguably chilled, so long as there is a credible threat of

prosecution.” Id.; see also Virginia v. Am. Booksellers Ass’n,

Inc., 484 U.S. 383, 395 (1988) (plaintiffs had standing in case

where the “alleged danger of this statute is, in large measure,

one of self-censorship; a harm that can be realized even without

an actual prosecution.”). Therefore, because the plaintiffs

allege that they face a credible threat of prosecution since the

AO 2006-20 would prevent behavior arguably protected by the First

Amendment, and because there is no need to rely upon future

enforcement proceedings to resolve the remaining issues which are

purely legal, the plaintiffs’ challenge is fit for review. 

III. POLITICAL COMMITTEE

The plaintiffs argue that the FEC’s interpretation of

“political committee” and “expenditure” in AO 2006-20 infringe on

the plaintiffs’ First Amendment rights to freedom of political

expression. A “political committee” is “any committee, club,

association, or other group of persons which receives

contributions aggregating in excess of $1,000 during a calendar

year or which makes expenditures aggregating in excess of $1,000

during a calendar year.” 2 U.S.C. § 431(4)(A). Under the Act, a

“contribution” is “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.” Id.

§ 431(8)(A)(i). The Act defines “expenditure” as “any purchase,

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payment, distribution, loan, advance, deposit, or gift of money

or anything of value, made by any person for the purpose of

influencing any election for Federal office.” Id.

§ 431(9)(A)(i). Once a group is found to be a “political

committee,” it is required to “submit to an elaborate panoply of

FEC regulations requiring the filing of dozens of forms, the

disclosing of various activities, and the limiting of the group’s

freedom of political action to make expenditures or

contributions.” FEC v. Machinists Non-Partisan Political League,

655 F.2d 380, 392 (D.C. Cir. 1980).

The plaintiffs do not appear to argue that the FEC’s

interpretation of the term “political committee” is an

unreasonable reading of the FECA, or that this interpretation is

inconsistent with the unambiguous language of the statute. See

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467

U.S. 837 (1984). The FEC argues that its determination of

whether AO 2006-20 infringes the plaintiffs’ First Amendment

rights is entitled to Chevron deference. However, “the

Commission’s advisory opinions are not entitled to Chevron

deference [when] they are necessarily based upon the Commission’s

interpretation of the Constitution as construed by the Supreme

Court and our Court of Appeals.” Federal Election Comm’n v.

GOPAC, 917 F. Supp. 851, 860 (D.D.C. 1996); see also Chamber of

Commerce, 69 F.3d at 604-605 (holding that the FEC was “not

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entitled to Chevron deference with regard to” whether its

interpretation of the FECA infringed the plaintiff’s First

Amendment right to communicate with its members). Therefore, the

question is whether the FEC’s interpretation of FECA infringes on

First Amendment rights. Republican Nat’l Comm. v. Federal

Election Comm’n, 76 F.3d 400, 409 (D.C. Cir. 1996) (citing Rust

v. Sullivan, 500 U.S. 173, 190 (1991).

The Supreme Court has determined that a broad statutory

definition of “political committee,” which turns on the terms

“contribution” and “expenditure,” and on the phrase ”for the

purpose of influencing any election,” can encompass “both issue

discussion and advocacy of a political result,” and therefore

impermissibly encroaches upon First Amendment values. Buckley v.

Valeo, 424 U.S. 1, 79 (1976). As the D.C. Circuit has explained,

the Buckley Court “explicitly recognized the potentially vague

and overbroad character of the ‘political committee’ definition

in the context of [the Act’s] disclosure requirements.” 

Machinists, 655 F.2d at 391. Therefore, the Supreme Court

created the “major purpose” test; to fulfill the purposes of the

Act, the term “political committee” “need only encompass

organizations that are under the control of a candidate or the

major purpose of which is the nomination or election of a

candidate.” Buckley, 424 U.S. at 79. Under the “major purpose”

test, an organization may be considered a “political committee”

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if it “receives contributions and/or makes expenditures of $1,000

or more, and its ‘major purpose’ is the nomination or election of

a particular candidate or candidates for federal office.” GOPAC,

917 F. Supp. at 861. An organization’s public statements of its

purpose, or its expenditures in cash or in kind to or for the

benefit of a particular candidate or candidates, may be used as

evidence of its purpose. Id. at 859. However, even if the

organization’s major purpose is the election of a federal

candidate or candidates, the organization does not become a

“political committee” unless or until it makes expenditures in

cash or in kind to support or for the benefit of a “person who

has decided to become a candidate” for federal office. See

GOPAC, 917 F. Supp. at 859. “‘Political committee’ was defined

in this way by the [Buckley] Court for the purpose of ‘focusing

precisely’ FECA’s broadly worded provisions on ‘the narrow aspect

of political association’ which could constitutionally be

restricted, because its potential for corruption had been

specifically identified by Congress.” Id.; Machinists, 655 F.2d

at 392. Therefore, if a group’s activities are not related in

any way to a candidate, the “actuality and potential for

corruption” are not present. Id. 

The plaintiffs argue that the money spent by Unity08 to

obtain ballot access for its eventual nominees cannot be deemed

to be expenditures without infringing on the plaintiffs’ rights

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under the First Amendment, because Unity08 does not yet have a

clearly identified candidate for federal office, and thus cannot

be deemed a political committee under Buckley. However, Unity08

is indeed using its name as a placeholder for its candidates’

names on the ballot. By the plaintiffs’ own admissions, all of

the money that they spend for ballot access measures will support

candidates who are clearly identified by party affiliation and by

the offices they seek to run for, if not yet by name. Unity08

acknowledged in the material that it provided to the FEC when

requesting the advisory opinion that its “Goal One” was to “elect

a Unity Ticket for President and Vice President of the United

States in 2008.” AO 2006-20 at 2. To that end, allowing the

eventual Unity08 nominees to use Unity08’s ballot access may be

deemed an expenditure by the FEC without running afoul of Buckley

because ballot access will give between $10 million and $12

million worth of support to the nominees who will have decided to

become candidates for federal office when they benefit from this

support. (See Pls.’ Statement Material Facts as to Which There

is No Genuine Dispute at ¶ 27.) The plaintiffs acknowledge that

the “concern that contributions to the candidate could result in

quid pro quo corruption or its appearance is what justifies the

impingement on protected speech.” (Pls.’ Mem. at 10 (emphasis in

original).) Yet they fail to consider that the appearance of

quid pro quo corruption is present when a candidate receives the

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benefit of appearing on a party ballot - - a ten to twelve

million dollar benefit - - solely due to the efforts of Unity08. 

See Buckley, 424 U.S. at 25 (“the appearance of corruption [is]

spawned by the real or imagined coercive influence of large

financial contributions on candidates’ positions and on their

actions if elected to office.”). 

Machinists and GOPAC do not bar the FEC from finding that

Unity08 is a political committee just because its support has

been for candidates who are certain to be clearly identifiable

only in the future. In Machinists, the court of appeals

determined that groups whose sole purpose was to convince a

Senator to attempt to run for his party’s nomination for

President were not political committees. 655 F.2d at 396. 

However, in Machinists, it was not certain that the money that

the defendant organizations spent was going to benefit a person

who would decide to be a candidate for federal office; the money

was intended to convince voters, or the Senator himself, that the

Senator should be a candidate. Id. Unlike the money spent by

Unity08 to provide sure future federal candidates ballot access,

there was no certainty that the Senator would ever run for

President. In GOPAC, the district court determined that money

spent to support state and local candidates who might later

become federal candidates was not an expenditure because of the

uncertainty of whether the state and local candidates receiving

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the support would ever run for federal office, and thus that the

organization providing that money was not a political committee. 

GOPAC, 917 F. Supp. at 858-859. However, Unity08 will be

providing resources that are certain to benefit candidates who

will be identified by party affiliation and office sought, and

who will have declared their intentions to run for federal office

when this benefit is conferred upon them. Therefore, the FEC’s

conclusion that Unity08 is a political committee does not violate

the First Amendment because Unity08’s major purpose is to

influence a federal election by spending money to enable ballot

access for candidates for federal office who are certain to be

clearly identifiable. 

CONCLUSION

Because the FEC is entitled to judgment as a matter of law,

the plaintiffs’ motion for summary judgment will be denied, and

the FEC’s motion for summary judgment will be granted. A final

Order accompanies this Memorandum Opinion.

SIGNED this 16th day of October, 2008.

 /s/ 

RICHARD W. ROBERTS

United States District Judge

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