United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2009 Decided March 2, 2010 

No. 08-5526 

UNITY08, 

APPELLANT

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:07-cv-00053-RWR) 

Alexandra A.E. Shapiro argued the cause for appellant. 

With her on the briefs were Marc E. Isserles and J. Scott 

Ballenger. 

 Adav Noti, Attorney, Federal Election Commission, 

argued the cause for appellee. With him on the brief was 

David B. Kolker, Associate General Counsel. 

 Donald J. Simon, J. Gerald Hebert, and Fred Wertheimer

were on the brief for amici curiae Campaign Legal Center and 

Democracy 21 in support of appellee and urging affirmance. 

 Before: GINSBURG and HENDERSON, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 1
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Unity08 is a kind of 

would-be post-partisan political party, aiming to mobilize 

what it believes to be a vital and viable center in American 

politics. Its plan has been to facilitate an online nominating 

process to choose a mixed ticket of one Republican and one 

Democrat for president and vice president of the United 

States. Until completion of that process, its only political 

activity (other than playing this web-based facilitation role) 

would be to seek state ballot access as a party. 

Unity08 requested an advisory opinion from the Federal 

Election Commission on the question of whether it would be 

required to register as a political committee before selecting 

candidates. It argued that an organization would not be 

subject to regulation as a political committee if it did not seek 

to influence the election of “a particular identified candidate.” 

Since Unity08 was planning to conduct its fundraising and 

other major activities before identifying a particular candidate, 

it argued that it should not be treated as a political committee 

for those activities. 

The Commission rejected Unity08’s suggestion, however, 

reasoning that under the Commission’s precedent “expenses 

incurred in gathering signatures to qualify for a ballot for 

Federal office are expenditures” subject to regulation under 

the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-

457 (“FECA” or the “Act”). See Letter from David M. 

Mason, Vice Chairman, Federal Election Commission, to 

John J. Duffy, Esq., Steptoe & Johnson LLP (Oct. 10, 2006), 

A.O. 2006-20, 2006 WL 2987615, at *3; see also 2 U.S.C. 

§ 431(4) (“The term ‘political committee’ means . . . any 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 2
3

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 . . . .”); id.

§ 431(9)(A)(i) (defining expenditure to include any purchase 

“made by any person for the purpose of influencing any 

election for Federal office”). The Commission also found that 

Unity08 was an “organization[] . . . the major purpose of 

which is the nomination or election of a candidate,” citing the 

words of the gloss that Buckley v. Valeo, 424 U.S. 1, 79 

(1976), put on the Act’s definition of a political committee in 

the interest of partially saving the statute’s constitutionality. 

Unity08 brought suit in the district court under the 

Administrative Procedure Act, seeking to challenge the 

advisory opinion. The district court held that the matter was 

reviewable but granted summary judgment in favor of the 

Commission, finding that the applicable precedent did not 

foreclose the FEC’s position. This appeal followed. We 

agree as to jurisdiction but find for plaintiff on the merits. 

* * * 

At the outset, the Commission objects that the case is 

unreviewable—on the theories that it is moot because Unity08 

has ceased activity; that the Administrative Procedure Act 

does not authorize review because the opinion is not “final 

agency action”; and that the Federal Election Campaign Act 

precludes direct judicial review of Commission advisory 

opinions. 

The Commission rests its mootness claim on a contention 

that Unity08 has “disclaimed any intention of participating in 

any election other than the 2008 presidential race” and 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 3
4

“disavowed any desire to become a permanent political 

party.” Appellee’s Br. at 15. The general principle of course 

is sound. A case may become moot if the party challenging 

the legality of government restrictions on the party’s conduct 

voluntarily forswears any intent to engage in the conduct the 

government has prohibited. See, e.g., City News & Novelty, 

Inc. v. City of Waukesha, 531 U.S. 278, 283 (2001). 

But in this case Unity08 continues to seek to operate—

and to engage in fundraising operations disallowed by the 

Commission’s advisory opinion—if it wins this appeal. The 

chairman of Unity08 filed a sworn declaration unambiguously 

stating a conditional intent to resume activities in a future 

election cycle if the group wins its lawsuit against the 

Commission. See Decl. Peter Ackerman 1 (“If Unity08 is 

successful in this litigation, Unity08 has a clear and definite 

intent to resume its activities—renamed ‘Unity12’—for the 

2012 presidential election. The ‘Unity’ mission remains as 

critical today for the 2012 presidential election as it was in 

2006 for the 2008 presidential election.”). Even the website 

post that the Commission relied on for its claim that Unity08 

has suspended activities blamed the Commission’s ruling at 

issue here for “forc[ing] [Unity08] to scale back—not cease—

[its] operations” and reiterated that the group is “not closing 

[its] doors . . . if (when) [it] win[s] [its] case” in court. See 

FEC’s Motion to Supplement Record, Exhibit at 2-3. 

Unity08’s uncontroverted intention to operate in the future in 

ways that would violate the Commission’s advisory opinion 

keeps the controversy alive. 

The Commission next argues that the Administrative 

Procedure Act does not permit judicial review of the 

challenged advisory opinion in this case, because that opinion 

is not “final agency action,” see 5 U.S.C. § 704, and that, even 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 4
5

if it were, the Federal Election Campaign Act “preclude[s] 

judicial review,” id. § 701(a)(1). 

The Commission concedes that “the issuance of an 

advisory opinion marks the conclusion of FECA’s advisory 

opinion process” and that the Commission’s refusal to issue a 

favorable advisory opinion therefore deprives the organization 

that requested it of a legal reliance defense which it could 

otherwise receive under 2 U.S.C. § 437f(c). See FEC v. Nat’l 

Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) 

(“[A]dvisory opinions have binding legal effect on the 

Commission.”); Appellee’s Br. at 23. But the Commission 

argues a lack of finality because a negative advisory opinion 

“makes no final determination of any ‘rights or obligations’ 

[and does not] change[] any legal relationships.” Id. at 24. In 

the Commission’s view, judicial review of the Commission’s 

legal advice is not available unless and until Unity08 acts in a 

manner inconsistent with the advice and the Commission 

elects to file an enforcement action against Unity08 in district 

court. 

Administrative orders are final when “they impose an 

obligation, deny a right or fix some legal relationship as a 

consummation of the administrative process.” Chicago & 

Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 

U.S. 103, 113 (1948)); see also Bennett v. Spear, 520 U.S. 

154, 177-178 (1997); Franklin v. Massachusetts, 505 U.S. 

788, 797 (1992) (“The core question is whether the agency 

has completed its decisionmaking process, and whether the 

result of that process is one that will directly affect the 

parties.”). 

The fact that the advisory opinion procedure is complete 

and deprives the plaintiff of a legal right—2 U.S.C. 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 5
6

§ 437f(c)’s reliance defense, which it would enjoy if it had 

obtained a favorable resolution in the advisory opinion 

process—“denies a right with consequences sufficient to 

warrant review.” Environmental Defense Fund, Inc. v. 

Ruckelshaus, 439 F.2d 584, 589 n.8 (D.C. Cir. 1971). As we 

have previously noted, agency advisory opinions are final 

agency action where they “constitute[] final and authoritative 

statements of position by the agencies to which Congress 

ha[s] entrusted the full task of administering and interpreting 

the underlying statutes.” Am. Federation of Gov’t Employees, 

AFL-CIO v. O’Connor, 747 F.2d 748, 753 n.10 (D.C. Cir. 

1984) (opinion for the court of then-Judge Ruth B. Ginsburg) 

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

626 F.2d 953 (D.C. Cir. 1980) (per curiam); Nat’l Automatic 

Laundry & Cleaning Council v. Schultz, 443 F.2d 689 (D.C. 

Cir. 1971)). Moreover, contrary to the Commission’s notion, 

parties are commonly not required to violate an agency’s legal 

position and risk an enforcement proceeding before they may 

seek judicial review. See, e.g., Alaska Dep’t of 

Environmental Conservation v. EPA, 540 U.S. 461, 483 

(2004) (holding that the finality requirement in a statute 

governing the Environmental Protection Agency was satisfied 

in a preenforcement challenge where the “EPA had spoken its 

‘last word’” on the legal issue in dispute and the regulated 

party “would risk civil and criminal penalties if it defied” the 

EPA’s directive (internal quotation marks omitted)). Our 

reluctance to require parties to subject themselves to 

enforcement proceedings to challenge agency positions is of 

course at its peak where, as here, First Amendment rights are 

implicated and arguably chilled by a “credible threat of 

prosecution.” Chamber of Commerce of U.S. v. FEC, 69 F.3d 

600, 603 (D.C. Cir. 1995); see also 2 U.S.C. § 437g(d) 

(imposing criminal penalties for “knowing and willful” 

violations of the Act). 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 6
7

Although the Commission pitched this argument as a 

problem of “finality,” the Commission’s objection to 

preenforcement review may resonate more in ripeness 

doctrine than in finality. “Finality, ripeness, and exhaustion 

of administrative remedies are related, overlapping doctrines 

that are analytically . . . distinct.” John Doe, Inc. v. Drug 

Enforcement Admin., 484 F.3d 561, 567 (D.C. Cir. 2007). 

Ordinarily, a claim that a challenge to an agency’s final legal 

position must await an enforcement proceeding is analyzed 

under the ripeness doctrine’s requirements that issues be fit 

for review and (in some cases) that deferral of review would 

pose significant hardship on the complaining party. 

We take it that the Commission did not make a ripeness 

argument because such an argument appears foreclosed by 

precedent in this circuit. See Nat’l Conservative Political 

Action Comm., 626 F.2d at 958 (holding that, where “the 

Commission passed upon the legality of a concrete solicitation 

proposed in some detail by” a political party, a third party’s 

challenge to the advisory opinion was ripe for judicial 

review); see also Chamber of Commerce of U.S., 69 F.3d at 

604 (rejecting the Commission’s argument that its regulation 

and its refusal to issue a favorable advisory opinion to 

plaintiffs were unripe where “[t]he issue presented is a 

relatively pure legal one that subsequent enforcement 

proceedings will not elucidate”). Although not every 

unfavorable advisory opinion issued by the Commission will 

necessarily give the party who requested it a ripe claim, there 

is little to distinguish this case from National Conservative 

Political Action Committee. As there, a specific organization 

has sought advice on the legal consequences of pursuing a 

detailed, concrete course of action, and its only other route for 

seeking judicial review of the unfavorable advice would be to 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 7
8

disregard the Commission’s opinion and risk enforcement 

penalties. 

The Commission finally claims that the FECA implicitly 

precludes direct judicial review of Commission advisory 

opinions, since the Act contains detailed procedural 

provisions but fails to provide any private right of action 

against the Commission except in two circumstances not 

implicated here. See 2 U.S.C. § 437g(a)(8) (permitting suits 

by individuals who have complained to the Commission about 

violations of the Act on which the Commission has failed to 

act); id. § 437g(a)(4)(C)(iii) (permitting judicial review by 

individuals whom the Commission has found committed a 

violation of the Act). 

We do not find this contention persuasive. In asserting 

such a negative pregnant the Commission encounters the 

general presumption in favor of reviewability, see Abbott 

Laboratories v. Gardner, 387 U.S. 136, 140 (1967), a 

presumption at its “apogee” where the complainant raises “a 

credible claim that the agency action violates [its] 

constitutional rights,” Richard J. Pierce, Jr., Administrative 

Law Treatise § 17.9, at 1315 (4th ed. 2002). The absence of 

any “explicit statutory authority” purporting to preclude 

judicial review does not foreclose the Commission’s 

preclusion claim, but it does cut against it. Cf. Abbott 

Laboratories, 387 U.S. at 141. Moreover, the Supreme Court 

rejected in Abbott Laboratories itself the government’s 

argument “that because the statute includes a specific 

procedure for [pre-enforcement] review of certain enumerated 

kinds of regulations, not encompassing those of the kind 

involved here, other types were necessarily meant to be 

excluded from any pre-enforcement review.” Id. (footnote 

call number omitted). That Congress provided for review in 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 8
9

circumstances that may have seemed either exceptionally 

compelling or at risk of being brushed off is feeble support for 

precluding review in a case where standard principles allow it. 

The Commission tries to beef up its claim of implicit 

preclusion by pointing out that Congress set out rather 

detailed procedures as a predicate to the two types of 

decisions marked for review. See 2 U.S.C. § 437g(a); 

Appellee’s Br. at 21. As was true with the specific provision 

for review of such determinations, we see the procedures as 

indicating no more than special sensitivity with respect to 

these two types of decisions. It seems to us utterly 

improbable that Congress’s imposition of some procedural 

rules for investigations should, with little else, be read as an 

intention to implicitly preclude judicial review, particularly in 

contexts implicating First Amendment values. Given “the 

context of the entire legislative scheme,” Abbott Laboratories, 

387 U.S. at 141, we find no congressional intention to 

foreclose judicial review. 

* * * 

Unity08 challenges the reasonableness of the 

Commission’s ruling that it is subject to regulation as a 

political committee, principally in light of our decision in 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 

380 (D.C. Cir. 1981), which held that only organizations 

supporting or opposing a “clearly identified candidate” may 

be regulated as political committees. Unity08 argues that 

because its principal operations would be conducted prior to 

selecting a presidential candidate it would never be in the 

position of supporting or opposing a “clearly identified 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 9
10

candidate,” and therefore should enjoy the protection from 

regulation recognized in Machinists. 

To make the limits of the issue clear, we note that in a 

letter sent to the Commission to supplement its advisory 

opinion request, Unity08 mentioned “plans to help the 

nominated candidate gain ballot access in those states that did 

not allow it to qualify as a party.” J.A. 199. But it added in 

the next sentence that after nomination it would “file another 

Advisory Opinion Request.” Id. In this FEC proceeding, 

then, it sought no advice on the issue of post-selection 

assistance to its nominees, and indeed the Commission’s 

response never alluded to such possible activities. Thus the 

question before us is whether a group that seeks to select (or 

“draft”) candidates, but which has never supported a clearly 

identified candidate in the past and does not have any fixed 

intention of supporting the selected candidates, can avoid 

regulation as a political committee under Machinists. 

In Machinists the Commission had sought to enforce a 

subpoena it had issued to a registered multi-candidate political 

committee that was “encouraging and assisting the formation 

of ‘draft-Kennedy’ groups in several states . . . engaged in 

promoting the acceptance of presidential candidacy by 

Senator Edward Kennedy.” 655 F.2d at 383. Rejecting the 

Commission’s effort, we held “that the Commission lacks 

subject matter jurisdiction over the draft group activities” at 

issue. Id. at 384-85. In our view, “construing the term 

‘political committee’ to include groups whose activities are 

not under the control of a ‘candidate,’ or directly related to 

promoting or defeating a clearly identified ‘candidate’ for 

federal office” created “grave constitutional difficulties.” Id.

at 393. In the absence of any indication in the legislative 

history of FECA that Congress intended to regulate “draft” 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 10
11

groups as political committees and in light of “Buckley’s 

judicial gloss limiting the definition of ‘political committees’ 

which could constitutionally be regulated,” we concluded that 

draft groups were outside the scope of the Act. Id. at 395-96 

(citing Buckley, 424 U.S. 1). 

While we recognized that the statute on its face 

“seem[ed] to include as political committees . . . ‘draft 

candidate’ groups,” id. at 391, we thought it clear that the 

Supreme Court’s Buckley decision had limited the definition 

of “political committee” in order to avoid the constitutional 

problems that a broader definition would present. Id. at 392 

(internal quotation marks omitted) (quoting Buckley, 424 U.S. 

at 12-28). Buckley does not on its face discuss the application 

of FECA to “draft” groups but it consciously narrowed the 

statutory definition of “political committees,” holding that the 

statute “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.” 424 U.S. at 79. The 

Commission argues that Buckley’s “major purpose” test, 

properly understood, encompasses groups such as Unity08 

that intend to nominate or elect a candidate, whether or not the 

group has already “clearly identified” the candidate. But 

Machinists’ reading of Buckley as limited to groups who have 

a “clearly identified” candidate was essential to its outcome in 

Machinists and is therefore binding on us. See LaShawn A. v. 

Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (“One three-judge 

panel . . . does not have the authority to overrule another 

three-judge panel of the court.”). 

It seems hard for the Commission to argue that Unity08’s 

contemplated activities would constitute support or opposition 

of a “clearly identified candidate” more than did the “draft 

Kennedy” groups at issue in Machinists. Those groups, after 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 11
12

all, had the purpose of building a draft movement for a 

particular, named individual to run for a specific office in a 

specific election cycle. Unity08, by contrast, seeks to 

organize voters online based on common views and to 

coordinate a selection process that will culminate in the 

identification of a particular, named individual—but only at 

the very end of the process. 

To avoid this conclusion, the Commission argues that 

Machinists should be read as resting on a distinction between 

groups that seek to encourage someone to become a candidate

and groups that are organized for the purpose of actually 

nominating or electing that individual. In the Commission’s 

view, the raison d’être of the draft groups in Machinists was 

merely to get someone to enter the race—not for that 

individual to be nominated on any particular ticket or to win 

the race. This reading attributes to the Machinists panel a 

strange disaggregation of the aims of draft groups; surely the 

panel understood that a group organized for the purpose of 

drafting Kennedy wanted at least to help bring about 

Kennedy’s nomination. 

The Commission also contends that allowing a group 

such as Unity08 to avoid regulation as a political committee 

creates the kind of opportunity for corruption that the 

Supreme Court recognized in Buckley as sufficient to justify 

the abridgement of First Amendment rights that FECA 

regulation entails. But the Commission fails to explain why 

the opportunity for corruption is any greater in this case than it 

was in Machinists. Indeed, if anything, the opportunity for 

corruption appears to be lesser here: whereas the groups in 

Machinists almost certainly were providing assistance of some 

kind to Senator Kennedy by increasing his name recognition 

and support, Unity08’s proposed method of generating 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 12
13

nominees was such that neither donors nor candidates would 

know at the time of the donations which candidate would 

ultimately benefit from the group’s convention. This would 

appear to significantly lessen the likelihood of a “quid pro 

quo” of the kind that Buckley supposed might undermine the 

integrity of our political process. See 424 U.S. at 26. 

Of course under Unity08’s plans, potential donors can 

anticipate that in due course nominees will emerge and be 

able to benefit from the ballot access that Unity08 will have 

by then secured. The nominees might feel grateful or even 

beholden toward donors who effectively conferred such ballot 

access. However true that may be, it is hard to see how this 

sense of gratitude or obligation would be stronger than that of 

Senator Kennedy under the facts of Machinists.

The Commission’s advisory opinion also asserted that 

Machinists “expressly left open the question of whether draft 

groups could be treated as political committees for purposes 

of the Act’s contribution limits after Congress’s 1979 

amendments to the Act.” See A.O. 2006-20, 2006 WL 

2987615, at *4 n.8. The Commission’s advisory opinion did 

not identify any aspect of the text or legislative history of the 

1979 amendments that might be read to abrogate Machinists. 

And the assertion misreads Machinists, which left open the 

possibility of treating draft groups as political committees 

only for purposes of the disclosure requirements, not for 

purposes of the contribution limits. See 655 F.2d at 395 (“The 

writers of the House report apparently believed that ‘draft’ 

groups should be treated as political committees for some 

purposes, at least. But there is no indication from the 1979 

Amendments or the legislative history that such ‘draft’ groups 

were to be bound by the contribution limitations.” (emphasis 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 13
14

added)). In any event, the Commission evidently abandons 

this argument, as it nowhere mentions it in its brief. 

Absent any compelling ground for distinguishing 

Machinists, we find that Unity08 is not subject to regulation 

as a political committee unless and until it selects a “clearly 

identified” candidate. 

The Commission lastly argues that the reading of 

Machinists that Unity08 proposes, if accepted, would have the 

effect that “all political parties . . . would be constitutionally 

exempt from regulation as political committees in each 

election cycle until they had nominated their candidates for 

federal office.” Appellee’s Br. at 41. But as we noted earlier, 

we regard Unity08’s request for an advisory opinion as 

presenting only the question of whether a group that has never 

supported a clearly identified candidate—and so far as 

appears will not support any candidate after the end of its 

“draft” process—comes within the holding of Machinists. By 

contrast, political parties previously have supported “clearly 

identified” candidates and almost invariably intend to support 

their nominees. The risk of a “quid pro quo” from donations 

to such parties might therefore be materially greater than the 

risks of corruption presented by bona fide draft groups. 

Hence, we need not decide whether there are any varieties of 

“standard” political parties to which Machinists might apply. 

The judgment of the district court is 

Reversed. 

Case: 08-5526 Document: 1232761 Filed: 03/02/2010 Page: 14