ORAL ARGUMENT NOT YET SCHEDULED 

 

No. 08-5526 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

UNITY08, 

Plaintiff-Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

 

On Appeal from the United States District Court for the District of Columbia 

 

BRIEF AMICI CURIAE FOR 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

IN SUPPORT OF DEFENDANT-APPELLEE AND URGING AFFIRMANCE 

 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Democracy 21 

J. Gerald Hebert 

(D.C. Bar No. 447676) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

(202) 736-2200 

Counsel for the Campaign Legal 

 Center 
ii

CERTIFICATE OF COUNSEL FOR AMICI CURIAE CAMPAIGN LEGAL 

CENTER AND DEMOCRACY 21 AS TO PARTIES, RULINGS, RELATED 

CASES AND CORPORATE DISCLOSURE 

I. Parties and Amici

 Unity08, Douglas Bailey, Roger Craver, Hamilton Jordan, Angus King, 

Jerry Rafshoon and Carolyn Tieger were the plaintiffs in the district court. 

Unity08 is the appellant in this Court. The FEC was the defendant below and is 

the appellee in this Court. Amici curiae in the district court and in this Court are 

Democracy 21 and the Campaign Legal Center (CLC). 

II. Ruling Under Review 

 The ruling under review is the opinion and order issued by District Judge 

Richard W. Roberts on October 16, 2008, granting the FEC’s motion for summary 

judgment, and denying Unity08’s motion for summary judgment. The district 

court’s opinion is reported as Unity08 v. Federal Election Comm’n, 583 F. Supp. 

2d 50 (D.D.C. 2008). 

III. Related Cases 

 There are no related cases pending in this Court or in any other court of 

which counsel to amici movants are aware. 

IV. Corporate Disclosure Statement 

 The CLC is a nonprofit, nonpartisan corporation. The CLC has no parent 

corporation and no publicly held corporation has any form of ownership interest in 
iii

the CLC. Democracy 21 is a nonprofit, nonpartisan corporation. Democracy 21 

has no parent corporation and no publicly held corporation has any form of 

ownership interest in Democracy 21. 
iv

TABLE OF CONTENTS 

Page

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

STATUTES AND REGULATIONS...................................................................viii 

STATEMENT OF INTEREST.............................................................................. 1 

SUMMARY OF ARGUMENT.............................................................................. 1 

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

I. Unity08’s Challenge is Moot...................................................................... 6 

II. The FEC Correctly Advised Unity08 That its Activities Render It a 

Federal Political Committee...................................................................... 8 

A. An Entity Whose “Major Purpose” Is “the Nomination or Election of 

a Candidate” and That Makes “Expenditures” or Accepts 

“Contributions” in Excess of $1,000 Is a Political Committee. ................ 9 

B. The FEC Correctly Applied FECA to Determine that Unity08 Meets 

the Definition of “Political Committee.”................................................. 12 

1. The First Prong: Unity08 Meets the “Major Purpose” Test............... 12 

2. The Second Prong: Unity08 Meets the $1,000 Expenditure Test...... 19 

III. The FEC’s Determination that Unity08 Is a “Political Committee” 

Does Not Violate the First Amendment. ................................................ 23 

A. The Supreme Court Has Found That the Regulation of Political 

Committees Is Consistent With the First Amendment............................ 24 

B. The Regulation of Unity08 as a Political Committee Is Justified by 

Important Government Interests.............................................................. 27 

CONCLUSION...................................................................................................... 31 
v

CERTIFICATE OF COMPLIANCE.................................................................. 33 

CERTIFICATE OF SERVICE............................................................................ 34 
vi

TABLE OF AUTHORITIES 

*Authorities upon which we chiefly rely are marked with an asterisk. 

Cases: Page(s)

*Buckley v. Valeo, 424 U.S. 1 (1976) ..................... 2, 4, 9, 10, 14, 20, 21, 23, 25, 31 

Ass’n of Am. Physicians & Surgeons (AAPS) v. Brewer, 486 F. 3d 586 (9th 

Cir. 2007), rev’d in part upon rehearing, 494 F.3d 1145 (9th Cir. 2007).............7-8

California Medical Ass’n v. FEC, 453 U.S. 182 (1981)............................... 5, 23, 26 

Davis v. FEC, 128 S. Ct. 2759 (2008) .................................................................. 5, 7 

FEC v. Florida for Kennedy Committee, 681 F.2d 1281 (11th Cir. 1982)............. 15 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ............................. 12, 16, 17 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 

1981)...................................................................................................... 15, 16, 28, 29 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ............................... 12 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)........................................... 12 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007).............................. 1, 7 

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ........................................... 6 

*McConnell v. FEC, 540 U.S. 93 (2003)......... 1, 6, 10, 11, 12, 13, 18, 26, 27,29, 30 

Statutes, Legislation and Legislative History: 

Federal Election Campaign Act, 2 U.S.C. §§ 431, et seq......................................... 1 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107–155, 116 Stat. 

81 (2002) ................................................................................................................. 10 

2 U.S.C. § 431(4)(A)........................................................................................... 9, 23 

2 U.S.C. § 431(8)(A)(i) ............................................................................................. 9 
vii

2 U.S.C. § 431(9)(A)(i) ....................................................................................... 4, 19 

2 U.S.C. § 431(20)(A)(iii)....................................................................................... 10 

2 U.S.C. § 441a(a)(1)(C)......................................................................................... 26 

2 U.S.C. § 441i(a).................................................................................................... 27 

2 U.S.C. § 441i(b)(1)............................................................................................... 10 

26 U.S.C. § 527(e)................................................................................................... 13 

Regulations and Agency Materials: 

11 CFR § 100.22 ................................................................................................20-21 

11 CFR § 100.111(a)............................................................................................... 19 

11 C.F.R. § 110.6(b)(1)........................................................................................... 22 

Advisory Opinion 1984-11 (May 3, 1984) ............................................................. 19 

Advisory Opinion 1994-05 (April 18, 1994) .......................................................... 19 

Advisory Opinion 2003-23 (November 7, 2003).................................................... 22 

Advisory Opinion Request 2006-20 (March 30, 2006) ............................ 1, 2, 13, 30 

Advisory Opinion 2006-20 (Oct. 10, 2006).............................................. 2, 3, 13, 19 
viii

STATUTES AND REGULATIONS 

 The relevant statutes and regulations are set forth in the addendum to 

Unity08’s brief.
 1

STATEMENT OF INTEREST

Amici curiae the Campaign Legal Center and Democracy 21 are non-profit 

organizations that work for the enactment and effective implementation of 

campaign finance laws. Amici have participated in numerous campaign finance 

cases in federal and state court, including representing intervening defendants in 

McConnell v. FEC, 540 U.S. 93 (2003), and FEC v. Wisconsin Right to Life, Inc., 

127 S. Ct. 2652 (2007) (“WRTL II”). Amici also filed written comments with the 

Federal Election Commission (FEC) in the administrative proceedings that resulted 

in the advisory opinion challenged in this action.1

SUMMARY OF THE ARGUMENT

On May 30, 2006, appellant Unity08, a self-proclaimed “nascent political 

party,” filed an advisory opinion request seeking guidance from the FEC as to 

whether it was a “political committee” under the Federal Election Campaign Act 

(“FECA”), 2 U.S.C. §§ 431, et seq. See Advisory Opinion Request (“AOR”) 

2006-20 (May 30, 2006). 

In its AOR, Unity08 declared that its “Goal One” was “to elect a Unity 

Ticket for President and Vice President of the United States in 2008....” AOR 

2006-20 at 2. Unity08 further explained that it intended “to qualify for ballot 

 

1

 See CLC and Democracy 21 Comments on AOR 2006-20 (June 19, 2006); 

CLC and Democracy 21 Supplemental Comments (August 23, 2006). 
 2

positions” as a party “in certain key states for the offices of President and Vice 

President of the United States,” and then “to select, using a ‘virtual’ convention 

over the Internet, candidates for the office of President and Vice President of the 

United States to run in those ballot positions.” Id. at 3, 4. 

Although Unity08 was thus, by all appearances, organized solely for the 

purpose of running candidates for President and Vice President in the 2008 

election, it wished to be exempt from the campaign finance laws that apply to all 

federal political parties and political committees, until such time as it actually 

nominated its presidential and vice-presidential candidates. To this end, Unity08 

urged the FEC to opine that it was not a political committee and, consequently, 

was not bound by the contribution limits, source prohibitions and disclosure 

requirements that apply under FECA to political committees. 

On October 10, 2006, the FEC issued Advisory Opinion 2006-20 (Oct. 10, 

2006), advising Unity08 that its proposed activities would meet the two-prong test 

for “political committee” status. First, the FEC found that Unity08 met the “major 

purpose” test set forth in Buckley v. Valeo, 424 U.S. 1 (1976), because its “major 

purpose” was “the nomination or election” of a “Unity Ticket” in the 2008 

elections. Id. at 79. Second, the FEC found that Unity08 met the statutory 

definition of “political committee” because it had made over $1,000 in 
 3

“expenditures” in the form of “monies spent by Unity08 to obtain ballot access.” 

See AO 2006-20 at 3-5. 

Unity08 sued the FEC, claiming AO 2006-20 violated its First Amendment 

rights, and was arbitrary and capricious and contrary to law. Complaint, No. 07-

CV-00053 (Jan. 10, 2007). Its theory was that it would not make “expenditures” 

under FECA – a predicate act to establish “political committee” status – until it 

actually nominated its “Unity Ticket,” because until that point, its spending would 

not be connected to a “clearly identified” candidate. See Unity08 v. FEC, 583 F. 

Supp. 2d 50, 60 (D.D.C. 2008); see also Brief of Appellant (Br.) at 35-37. Based 

on the same theory, Unity08 also claimed that it did not have as its “major” 

purpose “the nomination or election of a candidate.” In other words, until it 

nominated its candidates, Unity08 asserted it was not a political committee, and 

therefore had the right to raise and spend “soft money” (i.e., contributions 

unrestricted in source or size) to support its efforts to influence the 2008 

presidential election. 

The district court below rejected this novel theory, holding that the “FEC’s 

interpretation of the Act is reasonable and does not impermissibly infringe on 

[Unity08’s] rights under the First Amendment.” 583 F. Supp. 2d at 54. This 

decision is plainly correct, and should be affirmed. 
 4

As an initial matter, Unity08’s challenge has been rendered moot in the 

course of this appeal. The 2008 presidential election has come to a close, as has 

Unity08’s effort to nominate and elect a Unity President and Vice-President. This 

case thus presents no live controversy and should be dismissed. 

Furthermore, Unity08’s theory that it would not be a “major purpose” group, 

nor would make any “expenditures,” until it nominated a “clearly identified” 

candidate misconstrues the law. The “clearly identified” language is drawn from 

the Supreme Court’s narrow “express advocacy” construction of the statutory 

definition of “expenditure.” Buckley, 424 U.S. at 79-80. It is not a component of 

the “major purpose” test, and thus does not bear upon the question of whether 

Unity08 has as its major purpose the “nomination or election of a candidate.” 

Further, the express advocacy standard – and its “clearly identified” language – 

also does not govern whether “major purpose” groups, such as Unity08, have made 

“expenditures” within the meaning of FECA. Id. Instead, the spending of such 

groups is regulated by the broader statutory definition of “expenditure,” i.e., 

spending “for the purpose of influencing any Federal election.” Id. at 79-80; see 

also 2 U.S.C. § 431(9)(A)(i). Unity08’s spending as a “nascent political party” 

surely falls within that definition, just as the spending by any other political party 

does. 
 5

Moreover, even applying Unity08’s own narrow standard for “expenditure,” 

Unity08 spent funds to support candidates who are “clearly identified” by 

descriptive terms such as election cycle (2008), party affiliation (Unity08) and 

office sought (President). As the district court recognized, these descriptive terms 

are more than sufficient to “clearly identify” specific federal candidates, and 

therefore Unity08’s spending constituted “expenditures” even under an “express 

advocacy” construction of the term. 583 F. Supp. 2d at 60-61. 

In addition to its statutory argument, Unity08 also asserts that application of 

FECA’s contribution restrictions and disclosure requirements to its activities is 

unconstitutional because its “activities pose little risk of corruption.” Br. at 15. In 

so arguing, Unity08 suggests that the FEC must present “evidence” of a particular 

political committee’s corruptive potential before it can require that committee to 

comply with federal law. Br. at 41. But the regulation of political committees as a 

class has long been upheld by the Supreme Court because it furthers compelling 

governmental interests, including the prevention of corruption and the appearance 

of corruption. See, e.g., California Medical Ass’n v. FEC (CalMed), 453 U.S. 182 

(1981). The futility of Unity08’s argument is underscored by the fact that it must 

resort to challenging the constitutionality of Buckley to make its case – a 

foundational decision that was cited and applied as recently as the Supreme 
 6

Court’s decision in the field, Davis v. FEC, 128 S. Ct. 2759, 2771-72 (2008). See

Br. at 42. 

In any event, Unity08’s activities did present the potential for corruption. 

The district court correctly noted that Unity08 had “fail[ed] to consider that the 

appearance of quid pro quo corruption is present when a candidate receives the 

benefit of appearing on a party ballot – a ten to twelve million dollar benefit – 

solely due to the efforts of Unity08.” 583 F. Supp. 2d at 61. The Supreme Court 

recognized in McConnell v. FEC, 540 U.S. 93, 154-61 (2003), that unlimited “soft 

money” contributions to federal political party committees pose a threat of 

corruption to such parties, their candidates and their officeholders – regardless of 

when such funds are raised (e.g., prior to the party’s nomination of its candidates). 

So too would unlimited contributions to Unity08 pose a threat of corruption to 

Unity08’s eventual nominees. 

For all these reasons, the Court should reject Unity08’s attempt to create a 

massive loophole in the campaign finance laws and should affirm the district 

court’s decision.

ARGUMENT 

I. Unity08’s Challenge is Moot. 

Article III courts may only adjudicate “actual, ongoing cases or 

controversies,” and “this case-or-controversy requirement subsists through all 
 7

stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental 

Bank Corp., 494 U.S. 472, 477 (1990). Here, however, in the course of Unity08’s 

appeal, the 2008 election has taken place, and Unity08’s effort to nominate and 

elect a “Unity Ticket” in the 2008 presidential election has concluded. Yet 

Unity08’s claims relate exclusively to this effort in the 2008 election: it challenges 

the constitutionality of FECA as applied to its 2008 effort, as well as AO 2006-20, 

which addresses the unique facts of this effort. Unity08 thus does not present any 

live controversy that this court is able to redress, and its case is moot. 

Nor can Unity08 avail itself of the exception to the mootness doctrine for 

cases “capable of repetition yet evading review.” Davis, 128 S. Ct. at 2769. This 

exception applies only when “(1) the challenged action is in its duration too short 

to be fully litigated prior to cessation or expiration; and (2) there is a reasonable 

expectation that the same complaining party will be subject to the same action 

again.” WRTL II, 127 S. Ct. at 2662. In an election case, the second prong of this 

test is satisfied if the aggrieved party states a credible intention to repeat the action 

that precipitated the controversy. Id. at 2663. For example, in WRTL II, although 

WRTL no longer planned to broadcast the specific political advertisements that 

were the subject of its constitutional challenge, its case was justiciable because it 

had “credibly claimed” that it planned on running “materially similar” 

advertisements in the future. Id. at 2663 (internal quotations omitted). In contrast, 
 8

in Ass’n of Am. Physicians & Surgeons (AAPS) v. Brewer, 486 F.3d 586 (9th Cir. 

2007), the Ninth Circuit ruled that AAPS’s claim was moot because it had 

disbanded its political action committee and had not “unequivocally declared” an 

intention to continue its independent spending. Id. at 89; but see AAPS, 494 F.3d 

1145 (9th Cir. 2007) (reversing upon rehearing mootness judgment as to appellant 

Dean Martin, who had alleged an intent to run again for state office, but not as to 

appellant AAPS). 

Here, Unity08 has not alleged that it intends to continue any political 

activities, much less that it will conduct a “materially similar” campaign to 

nominate a “Unity Ticket” in a future election. Indeed, the founder of Unity08 

admitted in his deposition that Unity08 did not intend to become a permanent 

political party. Bailey Dep. 122:1-14 (JA 334); see also Bailey Dep. 123:9-10 (JA 

334) (“So the answer to the question is what happens to Unity08 beyond ‘08? I 

have no idea.”). There is no reason to believe that Unity08 intends to continue its 

operations in a future election, and thus it is not entitled to the “capable of 

repetition, yet evading review” exception to the mootness doctrine. 

II. The FEC Correctly Advised Unity08 That its Activities Render It 

a Federal Political Committee.

 

As the district court held below, the FEC correctly determined that Unity08 

met the two-part test for “political committee” status: its public statements 
 9

indicated that its “major purpose” was the nomination and election of a “Unity 

Ticket,” and its spending would constitute “expenditures” under FECA. 

A. An Entity Whose “Major Purpose” Is “the Nomination or Election of 

a Candidate” and That Makes “Expenditures” or Accepts 

“Contributions” in Excess of $1,000 Is a Political Committee.

 FECA defines a “political committee” as a group which “receives 

contributions” or “makes expenditures” “aggregating in excess of $1,000 during a 

calendar year....” 2 U.S.C. § 431(4)(A). The statute, in turn, defines 

“contribution” and “expenditure” to encompass any spending or fundraising, 

respectively, “for the purpose of influencing any election for Federal office.” Id. 

§§ 431(8)(A)(i) (defining “contribution”), (9)(A)(i) (defining “expenditure”). 

In Buckley, the Supreme Court addressed constitutional concerns that the 

statutory definition of “political committee” was overbroad and, to the extent it 

incorporated the definition of “expenditure,” vague as well. 424 U.S. at 76-80. 

The Supreme Court feared that the definition of “expenditure” potentially 

“encompass[ed] both issue discussion and advocacy of a political result.” Id. at 79. 

Because the definition of “political committee” relies on the term “expenditure,” 

the Court also worried that the regulation of “political committees” might “reach 

groups engaged purely in issue discussion.” Id. at 79. 

To resolve these constitutional concerns, the Buckley Court imposed two 

different limiting constructions. 
 10

First, it narrowed the definition of “political committee” to encompass only 

“organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.” Id. (emphasis added). 

Second, where the actor is “an individual other than a candidate or a group 

other than a ‘political committee,’” the Court narrowly construed the term 

“expenditure” to reach “only funds used for communications that expressly 

advocate the election or defeat of a clearly identified candidate” Id. at 79-80 

(emphasis added). This narrow “express advocacy” construction of the term 

“expenditure” thus applies only to the spending of groups whose major purpose 

does not relate to elections. Id. See also Shays v. FEC, 511 F. Supp. 2d 19, 27 

(D.D.C. 2007) (“[T]he [Buckley] Court imposed the narrowing gloss of express 

advocacy on the term “expenditure” only with regard to groups other than “major 

purpose” groups.”). By contrast, in the case of a “major purpose” group, the Court 

held that the broader statutory definition of “expenditure” – spending “for the 

purpose of influencing” an election – was not vague because all disbursements by 

such groups “can be assumed to fall within the core area sought to be addressed by 

Congress. They are, by definition, campaign related.” Id. at 79 (emphasis added). 

 The Supreme Court reaffirmed this approach in McConnell in its review of a 

provision of Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 

107-155, 116 Stat. 81 (2002), that requires state parties to use hard money to pay 
 11

for public communications that “promote, “attack,” “support” or “oppose” 

(“PASO”) a federal candidate. McConnell, 540 U.S. at 170 n.64; see also 2 U.S.C. 

§§ 431(20)(A)(iii), 441i(b)(1). The Court rejected the claim that the provision was 

unconstitutionally vague, in part because the PASO language applies only to party 

committees. 540 U.S. at 170 n.64. It quoted Buckley for the principle that “a 

general requirement that political committees disclose their expenditures raised no 

vagueness problems because 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’ and thus a political committee’s 

expenditures ‘are, by definition, campaign related.’” Id. Thus, the Court in 

McConnell reaffirmed that the express advocacy test set forth in Buckley does not 

apply to groups whose major purpose is to influence federal elections. 

 This precedent makes clear that the “express advocacy” test – and its 

“clearly identified candidate” language – is not relevant to the question of whether 

a “major purpose” organization is spending money to influence the election of 

federal candidates, and whether it is, accordingly, making “expenditures.” Instead, 

the determination of whether a major purpose group’s spending constitutes 

“expenditures” is governed by the broader statutory definition of expenditure – 

spending “for the purpose of influencing any Federal election.” 
 12

B. The FEC Correctly Applied FECA to Determine that Unity08 Meets 

the Definition of “Political Committee.”

1. The First Prong: Unity08 Meets the “Major Purpose” Test. 

In its advisory opinion, the FEC determined that Unity08 meets the “major 

purpose” test, and thus the first prong of the definition of “political committee.” 

The district court was right to uphold this determination. 

Several cases have established that a group’s “major purpose” can be 

demonstrated by its public statements or positions. See, e.g., FEC v. Malenick, 310 

F. Supp. 2d 230, 234-36 (D.D.C. 2004) (finding that “major purpose” evidenced 

through organization’s materials that described the organization’s goal of 

supporting the election of Republican candidates); FEC v. GOPAC, Inc., 917 F. 

Supp. 851, 859 (D.D.C. 1996) (finding that the “organization’s [major] purpose 

may be evidenced by its public statements of its purpose or by other means”). A 

group’s actual activities can also evidence its “major purpose.” See, e.g., FEC v. 

Massachusetts Citizens for Life (MCFL), 479 U.S. 238, 262 (1986) (noting that a 

group’s independent spending activities to influence political campaigns can 

“become so extensive that the organization’s major purpose may be regarded as

campaign activity”) (emphasis added); see also McConnell, 540 U.S. at 170 n.64. 

Here, Unity08’s self-proclaimed goal was to nominate and elect candidates 

for President and Vice President in the 2008 election. In 2006, Unity08’s Web site 

stated prominently that “Unity08 is a citizens’ movement to get our country back 
 13

on track by nominating and electing a Unity Ticket in the ‘08 presidential election 

to promote leadership, not partisanship.” See http://www.unity08.com (visited 

August 18, 2006). Similarly, Unity08 stated in its AOR that “Goal One is to elect 

a Unity Ticket for President and Vice President of the United States in 2008....” 

AOR 2006-20, at 2. Given this description of its goals, it cannot be contested that 

Unity08 was a group “the major purpose of which is the nomination or election of 

a candidate,” as set forth by Buckley. 

The FEC’s conclusion regarding Unity08’s “major purpose” is also 

buttressed by Unity08’s decision to register with the Internal Revenue Service 

under section 527 of the Internal Revenue Code. See AO 2006-20, at 1; 

Complaint, ¶ 3. A section 527 “political organization” is “organized and operated 

primarily” for the purpose of “accepting contributions or making expenditures” to 

“influence the selection, nomination, election, or appointment of any individual to 

any Federal, State, or local public office.” See 26 U.S.C. § 527(e)(1), (2). 

Thus, any entity that registers as a section 527 political organization is 

formed for the “primary” purpose of “influencing or attempting to influence the 

selection, nomination, election or appointment of” an individual to public office. 

The Supreme Court in McConnell confirmed that section 527 groups are primarily 

engaged in influencing elections, stating that “section 527 ‘political organizations’ 

are, unlike § 501(c) groups, organized for the express purpose of engaging in 
 14

partisan political activity.” 540 U.S. at 174 n.67. See also Shays, 511 F. Supp. 2d 

at 30 (“[A]n organization’s usage of 527 status is inherently indicative of its choice 

to principally engage in electoral activity....”). Accordingly, Unity08’s 

registration as a “political organization” under section 527 is further confirmation 

that its “major purpose” is the “nomination or election of a candidate.”2

 

Although Unity08 does not dispute its tax status or deny that its “Goal One” 

was the nomination and election of a “Unity Ticket,” it nevertheless attempts to 

argue that it was not a “major purpose” group. It asserts that the “major purpose” 

test “simply must be understood to restrict the constitutional application of FECA 

to groups whose major purpose is the election of a particular, identified

candidate.” Br. at 23 (emphasis in original). Unity 08 then posits that until it 

nominated its candidates, its spending would not relate to a “clearly identified” 

candidate, and thus its “major purpose” would not be the nomination or election of 

candidate. 

The flaw in this argument is that the “major purpose” test does not turn on 

whether a candidate is “clearly identified.” That language originates from the 

 

2

 Of course, if the 527 group is involved in influencing only State and local 

candidate elections or influencing only the nomination or appointment of 

individuals to appointive office, it would not be a federal political committee. 

Here, however, Unity08 indicates that all of its political activity will be directed to 

federal elections. AOR 2006-20, at 2-4. 
 15

express advocacy standard which determines whether a non-major purpose group 

is making “expenditures” – i.e., whether such a group is expressly advocating the 

election or defeat of a “clearly identified candidate.” Buckley, 424 U.S. at 80 

(emphasis added). Unity08 engages in doctrinal sleight-of-hand by excising the 

“clearly identified” language from its proper context and grafting it onto the 

“major purpose” test which, contrary to Unity08’s assertion, asks only whether a 

group’s major purpose relates to the “nomination or election of a candidate” – not 

a “clearly identified candidate.” 

Unity08 offers no valid legal authority for its reading of the “major purpose” 

test, which makes that test far narrower than the Court intended in Buckley. It 

relies almost exclusively upon the “Draft Kennedy” cases, whose facts are clearly 

distinguishable from the instant case. See FEC v. Machinists Non-Partisan 

Political League (Machinists), 655 F.2d 380 (D.C. Cir. 1981); FEC v. Florida for 

Kennedy Committee, 681 F.2d 1281 (11th Cir. 1982). 

 In those cases, the groups at issue were engaged in “attempts to convince the 

voters – or Mr. Kennedy himself – that he would make a good ‘candidate,’ or 

should become a ‘candidate’” for U.S. President. Machinists, 655 F.2d at 396. 

There was no certainty, or even likelihood, that Kennedy would ever become a 

presidential “candidate” under FECA because the “draft” committees had no 

control over whether he would ultimately enter the race. Whether the draft 
 16

committees’ activities – and by extension, major purpose – would ever relate to the 

“the nomination or election of a candidate” was thus entirely speculative. The 

courts therefore found that the draft committees “cannot constitute a ‘political 

committee’ under the Act.” Id. at 392. 

Unity08 argues that it was similarly attempting to “draft” candidates for the 

presidential and vice-presidential nomination – and that consequently, it too should 

not be deemed a “political committee.” Br. at 27-28. In so arguing, however, 

Unity08 overlooks a key distinction between draft committees and its own 

activities. Unlike draft committees, which by definition “have not yet succeeded” 

in producing a “candidate acceptable to them,” Machinists, 655 F.2d at 392, the 

nomination of a “Unity” presidential candidate and vice-presidential candidate was 

wholly within the control of Unity08. There is no doubt that Unity08 was able to 

“produce” a “Unity Ticket,” and Unity08 does not dispute that it was able to do so. 

There is equally no doubt that its expenditures to obtain ballot access for its 

putative nominees therefore furthered “the nomination or election of a candidate.” 

Unity08’s reliance upon GOPAC is similarly misplaced. Br. at 25-26. 

There, GOPAC made expenditures to support state and local candidates for the 

purpose of building a “farm team” that it hoped would some day help the 

Republican Party take over the U.S. House of Representatives. 917 F. Supp. at 

854, 58. GOPAC, however, “did not make any direct contribution to any particular 
 17

federal candidates.” Id. at 858. Because GOPAC avoided directly supporting any 

“person who has decided to become a candidate for federal office,” the Court 

concluded that it had not made expenditures for the purpose of influencing federal

elections, and was not a political committee subject to federal law. Id. at 859 

(emphasis added). 

Unity08 attempts to use GOPAC to argue that political committee status 

requires expenditures in support of an already-nominated candidate. But GOPAC

does not stand for this proposition. The court simply made clear that GOPAC’s 

direct support of state and local candidates would not trigger federal political 

committee status simply because of any indirect effect this support had on federal 

elections. GOPAC thus turned upon the distinction between state and local

election activity and federal election activity. In contrast, Unity08 has stated that 

its only goal is to nominate and elect federal candidates in the 2008 election cycle. 

It is thus indisputable that Unity08’s major purpose relates to influencing federal

elections. 

In addition to lacking legal support, Unity08’s argument also defies common 

sense. Whether a group’s major purpose relates to the nomination and election of 

federal candidates does not depend on its “identification” of particular candidates 

by name. A group that devotes its resources to promoting “Republican 

congressional candidates,” “female candidates for Senate,” or any other class of 
 18

candidates is clearly a “major purpose” group, regardless whether all its 

expenditures expressly support one or more particular “clearly identified” 

candidates. 

The logic of Unity08’s argument also stands for the remarkable proposition 

that funds raised by the national committees of any political party – including the 

Republican National Committee and the Democratic National Committee – cannot 

constitutionally be regulated until the party has held its primary election (or 

nominating convention) and identified by name its nominee to a particular federal 

office. Indeed, Unity08’s theory would mean that the RNC and DNC would not 

themselves be “major purpose” groups – and thus would not be federal “political 

committees” – until they had actually nominated “clearly identified” candidates. 

According to Unity08’s argument, the parties therefore would be permitted to raise 

unlimited soft money for the presidential campaign prior to their nominating 

conventions. Such an absurd result illustrates the flaws of Unity08’s argument. 

The Supreme Court made clear in McConnell that any and all funds raised by 

political parties – even in the period prior to nominating a specific candidate – may 

constitutionally be subject to the contribution limits, source prohibitions and 

disclosure requirements of FECA in order to deter the actuality and appearance of 

corruption. In other words, the parties are “political committees” under FECA, 
 19

even before they nominate their candidates. See McConnell, 540 U.S. at 154-56. 

The same, necessarily, is true of Unity08. 

2. The Second Prong: Unity08 Meets the $1,000 Expenditure 

Test.

Relying on its earlier decisions, the FEC found that Unity08’s proposed 

spending to obtain ballot access through petition drives would constitute 

“expenditures” pursuant to 2 U.S.C. § 431(9)(A)(i) and 11 C.F.R. § 100.111(a). 

See AO 2006-20, at 3-4; see also AO 1994-05 n.1 (April 18, 1994) 

(“[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 AO 1984-11 (May 3, 1984) (determining that 

expenses made to collect petition signatures are expenditures). The district court 

agreed that Unity08’s disbursements for this purpose were “expenditures,” and that 

Unity08 therefore satisfied the second prong of the test for political committee 

status. 583 F. Supp. 2d at 60-61. 

The district court’s decision should be affirmed. Unity08 argues that 

because an “expenditure” under the express advocacy standard must be connected 

to a “clearly identified” federal candidate, it would not make “expenditures” until it 

had nominated its “Unity ticket.” Br. at 35-37. But Unity08 is mistaken on at least 

two counts: first, the definition of “expenditure” in the case of Unity08 is not 

limited by the “express advocacy” test and its “clearly identified candidate” 
 20

language; and second, even under the narrow “express advocacy” construction of 

“expenditures,” Unity08’s spending would still have constituted an “expenditure.” 

First, for the reasons discussed above, the “express advocacy” test is not 

relevant to the question of whether Unity08, a “major purpose” group, had spent 

money “for the purpose of influencing” the election of federal candidates, and 

whether it, accordingly, had made “expenditures.” As Buckley made clear, the 

narrowing construction of the express advocacy test is only necessary to prevent 

vagueness with respect to non-“major purpose” groups. See Buckley, 424 U.S. at 

79-80. As a section 527 “political organization,” and as a group that had 

proclaimed its purpose was to nominate and support candidates for President and 

Vice President, Unity08 was – like any other “major purpose” entity – subject to 

the statutory definition of “expenditure,” without the limiting “express advocacy” 

gloss developed by the Buckley Court. Every penny spent by Unity08 was “for the 

purpose of influencing” the nomination and election of a 2008 presidential ticket 

and, therefore, constituted “expenditures” under FECA. 

Second, even if the express advocacy standard is deemed relevant to the 

evaluation of Unity08’s expenditures, Unity08 met this more stringent standard. 

Unity08 spent monies on behalf of specific candidates – i.e. its Unity presidential 

and vice-presidential nominees – who were clearly identified by election year, 

office sought and party affiliation. “Express advocacy” does not require a 
 21

candidate be identified only by name instead of other “placeholder” attributes. See

11 CFR § 100.22(a) (“Expressly advocating means any communication that ... 

[u]ses phrases such as ... ‘support the Democratic nominee,’ ‘cast your ballot for 

the Republican challenger for U.S. Senate in Georgia’ ... ‘reject the incumbent’”). 

It is difficult to see how a communication to “support the Unity ticket in 08” or 

“elect a Unity President” is any less “express advocacy” than the examples 

provided in Section 100.22, such as “support the Democratic nominee” or “cast 

your ballot for the Republican challenger.” Id.; see also Buckley, 424 U.S. at 44 

n.51. 

Unity08 nonetheless argues that “express advocacy” requires more than 

identification by office and party, claiming that the “candidate” in Machinists, i.e., 

Senator Kennedy, and the Republican “candidates” in GOPAC could also have 

been identified by such attributes, yet the groups at issue in these cases were not 

deemed federal “political committees.” Br. at 33. This argument simply misstates 

the facts of the Machinists and GOPAC cases. Senator Kennedy could not be 

identified by the office of “President” for the obvious reason that he had not 

actually decided to run for such office and the Draft Kennedy committees had no 

control over whether he would do so. The GOPAC candidates, on the other hand, 

could be identified by their “offices,” but these “offices” were state and local 

positions. GOPAC’s spending on their behalf therefore could not constitute 
 22

“express advocacy” as defined by Buckley because it did not expressly advocate 

the election or defeat of a federal candidate. Here, by contrast, the identifying 

attributes of office, party and election cycle did single out federal candidates – i.e., 

Unity08’s presidential and vice-presidential nominees. Unity08’s spending 

therefore satisfied even the express advocacy definition of “expenditure.” 

Finally, the FEC’s position that Unity08’s spending relates to “clearly 

identified” candidates is consistent with longstanding administrative precedent. In 

Advisory Opinion 2003-23 (Nov. 7, 2003), the FEC considered whether to allow a 

political committee to collect “earmarked” contributions for the Democratic 

Party’s “presumptive nominee” pursuant to the FEC’s earmarking rules that 

generally apply to contributions to a “clearly identified candidate.” See 11 CFR § 

110.6(b)(1). The opinion thus deals squarely with the argument raised by Unity08, 

namely whether a specific candidate must be “identified” by name – i.e., already 

nominated – in order for the earmarking rules to apply. The FEC said its rules 

apply to a party’s yet-to-be-selected “presumptive nominee” for a specific federal 

office in a specific federal election: 

In Advisory Opinion 1982-23, the Commission concluded that it was 

permissible for a local committee to earmark $1,000 through a local 

party committee to the as-yet unknown Republican nominee for New 

York’s 24th Congressional District. In Advisory Opinion 1977-16, the 

Commission concluded that it was permissible for a local committee 

to accept contributions and make expenditures on behalf of an 

undetermined Federal candidate. In both instances, the Commission 

concluded that it was permissible to earmark contributions to 
 23

undetermined Federal candidates because the candidates were 

identifiable as to specific office, party affiliation, and election cycle, 

although the names of the eventual nominees were not known. 

Under WE LEAD’s proposal, because the presumptive nominee is 

identifiable as to specific office (President of the United States), party 

affiliation (Democratic Party), and election cycle (2004), the 

Commission concludes that contributors may earmark contributions to 

the presumptive nominee through WE LEAD.... 

AO 2002-23, at 3-4 (emphasis added). 

The same is true here. Although “as-yet unknown,” this “presumptive 

nominee” of the Unity08 committee was “identifiable as to specific office” 

(President) as well as to “party affiliation” (Unity08) and “election cycle” (2008). 

III. The FEC’s Determination that Unity08 Is a “Political Committee” 

Does Not Violate the First Amendment. 

 The Supreme Court has rejected First Amendment challenges to FECA’s 

regulation of “political committees,” as defined by 2 U.S.C. § 431(4)(A), and has 

found that such regulation is supported by important governmental interests, 

including the prevention of corruption and the appearance of corruption. See, e.g.,

Buckley, 424 U.S. at 23-29, 64-68; CalMed, 453 U.S. at 193-99. Because Unity08 

meets the definition of a “political committee,” it follows that it is subject to 

FECA, and that this regulation is supported by the same governmental interests 

found to support FECA in Buckley and CalMed. 

 Unity08 attempts to turn this reasoning on its head, suggesting that Congress 

and the FEC must make a particularized showing that its specific factual situation 
 24

presents the potential for corruption. See Br. at 41 (“There is simply no evidence 

in the record to suggest that Unity08’s activities posed a threat of corruption or the 

appearance of corruption.”). But the First Amendment does not require that the 

government make a case-by-case demonstration of potential corruption before 

regulating a group as a political committee. If an organization meets the federal 

law definition of “political committee,” it can be constitutionally obligated to 

comply with FECA based on the wholly justifiable presumption that unregulated 

fundraising and spending by such entities poses a threat of real and apparent 

corruption of federal candidates. 

 Nevertheless, although the burden does not lie with the FEC to make an 

individualized showing in this case, it is clear that allowing Unity08 to operate 

outside of FECA’s “political committee” disclosure requirements, contribution 

limits and source prohibitions would pose a serious threat of real and apparent 

corruption. Large donations to Unity08 would have created actual or apparent 

indebtedness on the part of the Unity08 presidential and vice-presidential nominees 

– regardless of when the contributions were made. 

A. The Supreme Court Has Found That the Regulation of Political 

Committees Is Consistent With the First Amendment.

Contrary to Unity08’s insistence that only “the prevention of corruption and 

the appearance of corruption” will justify campaign finance regulation, Br. at 19-

20, the Supreme Court has recognized that a number of government interests are 
 25

served by the regulation of political committees, including not only the anticorruption interest noted by Unity08, but also the public’s informational interest in 

disclosure, and the government’s interest in preventing circumvention of campaign 

finance requirements. 

In Buckley, the Supreme Court considered whether the disclosure 

requirements and contribution restrictions imposed by FECA on political 

committees comported with the First Amendment. Even though the Court 

recognized that these legal requirements represented a “significant interference 

with protected rights of political association,” it sustained these requirements as a 

“closely drawn” means to further “sufficiently important interests” of the state. 

424 U.S. at 25 (internal quotations omitted). It recognized that contribution limits 

prevented “corruption and the appearance of corruption spawned by the real or 

imagined coercive influence of large financial contributions on candidates’ 

positions and on their actions if elected to office.” Id. Disclosure was supported 

by a broader array of interests including: “provid[ing] electorate with information 

as to where political campaign money comes from ... [and] the interests to which a 

candidate is most likely to be responsive,” “deter[ing] actual corruption and 

avoid[ing] the appearance of corruption by exposing large contributions and 

expenditures to the light of publicity,” and “gathering the data necessary to detect 
 26

violations of the contribution limitations.” Id. at 66-68 (internal quotations 

omitted). 

The Supreme Court expanded upon its holding in Buckley when it 

considered FECA’s $5,000 annual limit on contributions to independent political 

committees in CalMed. See 2 U.S.C. § 441a(a)(1)(C). As Unity08 does here, the 

appellants in CalMed asserted that the danger of corruption discussed in Buckley

did not apply to contributions to non-candidate-controlled political committees. 

453 U.S. at 197-98. The Supreme Court disagreed. It found that the $5,000 limit 

“further[ed] the governmental interest in preventing the actual or apparent 

corruption of the political process” by “prevent[ing] circumvention of the very 

limitations on contributions [to candidates] that this Court upheld in Buckley.” Id. 

at 197-98. 

In McConnell, the Court further developed its analysis of the government’s 

anti-corruption interest in its consideration of the soft money provisions of BCRA 

that prohibited party committees from raising and spending money that was not in 

compliance with the federal contribution limits and source requirements. 540 U.S. 

at 133-73. Indeed, the political parties in McConnell are the direct analogue to 

Unity08, and the governmental interests identified in McConnell as justifying their 

regulation also justifies the regulation of Unity08. 
 27

The “core” soft money provision at issue in McConnell subjected all funds 

raised and spent by the national political parties to federal contribution limits and 

source prohibitions, regardless of when the funds were raised or spent, or for what 

purposes. See 2 U.S.C. § 441i(a). In reviewing these provisions, the Court noted 

that because of the “close connection and alignment of interests” between parties 

and their affiliated candidates and officeholders, “large soft-money contributions to 

national parties are likely to create actual or apparent indebtedness” on the part of 

such candidates and officeholders. Id. at 155. This sense of indebtedness in turn 

enabled large contributors to the party to gain access to and influence over 

candidates. Id. at 146-48 (influence), 149-51 (access and influence). For this 

reason, the Court found that the soft money ban was justified by the government’s 

interest in preventing actual and apparent corruption. 

B. The Regulation of Unity08 as a Political Committee Is Justified by 

Important Government Interests.

Unity08 has not shown that it is distinguishable from the political 

committees considered in the case law above. Because Unity08 is a political 

committee, regulation of its activities is supported by the strong governmental 

interests articulated in Buckley, CalMed and McConnell. Financial disclosure by 

political committees, such as Unity08, provides the electorate with useful 

information and deters corruption through publicity, while limits on contributions 

to political committees combat corruption and the appearance of corruption in the 
 28

electoral system, and prevent large donors from circumventing the limits on direct 

contributions to candidates by using committees as a pass-through for their 

donations. 

 Unity08 does not explain why these compelling governmental interests are 

relevant only after it nominates its presidential and vice-presidential candidates. 

Its analysis boils down to the claim that “without a candidate, the potential for 

corruption or the appearance of corruption is severely limited.” Br. at 22-23. 

This assertion is at best myopic; at worst, simply untrue. If Unity08 had 

proceeded, as planned, to its online nominating convention in the summer of 2008, 

it would have produced two party nominees who would have been the beneficiaries 

of all activities conducted by Unity08 prior to their nomination, including all 

expenditures made to obtain ballot positions. This situation would have created 

actual or apparent indebtedness on the part of the nominees to Unity08 and its 

financial backers. Indeed, because Unity08 seeks to operate entirely outside the 

campaign finance laws, nothing would prevent it from relying upon only a few 

multi-million-dollar contributors – or alternatively, upon a single huge corporate 

contributor. Unity08 provides no explanation why its nominees would disregard 

these types of contributions solely because they were made prior to their 

nomination. 
 29

Unity08 attempts to analogize its situation to the Draft Kennedy committees 

in Machinists and Florida for Kennedy, arguing that because Unity08 also lacked a 

“clearly identified candidate,” its activities likewise did not “present a risk of 

corruption or the appearance of corruption.” Br. at 28; Machinists, 655 F.2d at 

392. This argument overlooks the radically different relationship between the 

Draft Kennedy committees and their favored candidate and the relationship 

between Unity08 and its eventual nominees. The draft committees operated 

entirely independently from Senator Kennedy, and indeed, had been “formally 

disavowed” by Kennedy, see 655 F.2d at 383. Because the committees did not 

coordinate their activities with Kennedy or directly support Kennedy either before 

or after his decision regarding the presidential race, their independent activities 

posed little “potential for corruption,” as the Machinists court recognized. 655 

F.2d 392. 

Unity08, by contrast, intended to serve as the official political party of the 

“Unity Ticket.” It would have therefore enjoyed the same “close connection and 

alignment of interests” with its Unity Ticket as the major political parties enjoy 

with their candidates and officeholders. McConnell, 540 U.S. at 155. Indeed, 

Unity08 freely admits that it intended to provide direct support to its eventual 

nominees by providing them with a campaign infrastructure, including a 

promotional Web site, as well as the results of Unity08’s $10-million effort to 
 30

secure ballot positions. See, e.g., AOR 2006-20 at 3-4. This is a far cry from the

independent and “disavowed” Draft Kennedy committees. 

Unity08 nevertheless claims that its nominees would not feel obligated to its 

large donors because such donors intended only to support “an abstract and 

idealistic cause.” Br. at 29. This claim, however, even if credited, runs counter to 

the conclusion drawn in McConnell that the “special relationship and unity of 

interest” between political parties and their nominees enabled large contributors to 

the party to obtain undue influence over party nominees and officeholders. 540 

U.S. at 145. There is no reason to believe that that Unity08’s candidates would be 

any less susceptible to the large contributions made to Unity08 than the federal 

candidates considered in McConnell were susceptible to the large contributions 

made to their own parties. After all, the soft money donors to the major parties 

undoubtedly also claimed they wished only to support “an abstract and idealistic 

cause.” As was the case with soft money contributors to party committees prior to 

BCRA, however, large donors to Unity08 can potentially obtain undue access and 

influence over Unity08’s candidates, and thereby pose a threat to the integrity of 

the political system. Id. at 146-51. 

The same is true with regard to public disclosure. If Unity08 had been 

exempt from the campaign finance laws, it would have built the infrastructure for 

its presidential campaign, including securing ballot positions for its nominees, 
 31

without any obligation to report its financial activity to the FEC prior to its 

nominating convention. Upon its nomination of candidates, Unity08 would have 

been the only party committee running federal candidates that would not have 

provided the public with complete information regarding its financial activities. 

This “blackout” in campaign finance disclosure would be particularly troubling 

because Unity08 would have also, under its reasoning, been exempt from 

contribution limits and source prohibitions. The public has a strong interest in 

receiving information about the financial activity of Unity08, including disclosure 

of early contributors to the Unity08, in order to be able to evaluate the “interests to 

which [the Unity08 nominees] would most likely to be responsive” and to make 

“predictions of [their] future performance in office.” Buckley, 424 U.S. at 66-67. 

CONCLUSION

For these reasons, the district court’s decision should be affirmed. 

 
 32

 Respectfully submitted, 

Donald J. Simon (Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

 ENDRESON & PERRY, LLP

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Counsel for Democracy 21

___________________________ 

J. Gerald Hebert (Bar No. 447676) 

Paul S. Ryan (Bar No. 502514) 

CAMPAIGN LEGAL CENTER

1640 Rhode Island Avenue, N.W. 

Suite 650 

Washington, D.C. 20036 

(202) 736-2200 

Counsel for the Campaign Legal 

 Center 

Fred Wertheimer (Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Democracy 21 

 

Dated: July 6, 2009 
 33

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) 

AND CIR. R. 32(a)(2) 

Pursuant to Fed. R. App. P. 29(c)(5) and Fed. R. App. P. 32(a)(7)(C)(i), I 

certify that the foregoing amici brief complies with the length requirements of Fed.

R. App. P. 29(d), Fed. R. App. P. 28.1(e)(2)(A)(i) and Cir. R. 32(a)(2). I have 

relied on the word count feature of Microsoft Word 2000 to calculate that the brief 

contains 6965 words. I further certify that the foregoing brief complies with the 

typeface requirements of Fed. R. App. P. 32(a)(5) and Cir. R. 32(a) and the type 

style requirements of Fed. R. App. P. 32(a)(6). The brief has been prepared in a 

proportionately spaced typeface using Microsoft Word 2000 in Times New Roman 

font size 14. 

____________________________

J. Gerald Hebert 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave. NW, 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Fax: (202) 736-2222 

Dated: July 6, 2009 
 34

CERTIFICATE OF SERVICE 

I hereby certify that on this 6th day of July 2009, I served a copy of the 

foregoing BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT-APPELLEE AND URGING 

AFFIRMANCE on the following counsel of record, via email (where email 

addresses are available and known) and by United States mail, first-class postage 

prepaid: 

Attorneys Representing Appellant Unity08: 

James Scott Ballenger 

 scott.ballenger@lw.com

Latham & Watkins LLP 

555 Eleventh Street, NW 

Suite 1000 

Washington, DC 20004-1304 

Alexandra Anastasia E. Shapiro 

 ashapiro@machtshapiro.com 

Macht, Shapiro, Arato & Isserles, LLP 

1114 Avenue of the Americas 

45th Floor 

New York, NY 10036 

Attorneys Representing Appellee Federal Election Commission: 

David B. Kolker 

 dkolker@fec.gov 

Adav Noti 

 anoti@fec.gov 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

____________________________ 

J. Gerald Hebert