UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 ) 

UNITY08, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civil Action No. 1:07-CV-0053 (RWR) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

 ) 

 Defendant. ) 

 ) 

____________________________________________ 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

____________________________________________ 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Acting Associate General Counsel 

Kevin Deeley 

Acting Assistant General Counsel 

Steve N. Hajjar 

Attorney 

Adav Noti 

Attorney 

FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

May 25, 2007 (202) 694-1650 

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 1 of 31
TABLE OF CONTENTS 

 Page

I. PLAINTIFFS DO NOT MEET THE CONSTITUTIONAL STANDING 

REQUIREMENTS...............................................................................................................1 

A. Unity08 Lacks Article III Standing Because It Has Not Suffered An 

Injury-In-Fact Traceable to AO 2006-20.................................................................1 

1. Unity08’s Alleged Inability to Receive Loans in Excess of $5,000............2 

2. Unity08’s Alleged Inability to Raise and Spend Sufficient Funds to 

Gain Ballot Access.......................................................................................5 

3. Unity08’s Alleged “Competitive Political Disadvantage” ..........................6 

B. Unity08 Has Suffered No Injury Redressable By This Action................................9 

C. The Individual Plaintiffs Do Not Have Standing...................................................10 

II. AO 2006-20 IS NOT SUBJECT TO JUDICIAL REVIEW..............................................10 

A. AO 2006-20 Is Not Final Agency Action Under The APA...................................11 

B. FECA Precludes Judicial Review of Advisory Opinions......................................15 

III. AO 2006-20 IS A REASONABLE CONSTRUCTION OF THE FECA..........................17 

A. AO 2006-20 Is Entitled To Deference ...................................................................17 

B. Unity08 Is No Different From Other Political Committees That Are 

Raising Funds to Support Particular Candidates Who Will Be Identified 

Between Now and Election Day............................................................................19 

C. Unity08 Continues to Misinterpret Supreme Court Precedent ..............................22 

IV. CONCLUSION..................................................................................................................25 

i

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TABLE OF AUTHORITIES 

 Page

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967).................................................................. 11-12, 15 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1997), vacated on other grounds 

 524 U.S. 11 (1998)............................................................................................................... 9-10 

Athens Lumber Co. v. FEC, 689 F.2d 1006 (11th Cir. 1983)..........................................................8 

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979)...............................................8 

Block v. Community Nutrition Inst., 467 U.S. 340 (1984)....................................................... 15-16 

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) ....................................................................6 

Buckley v. Valeo, 424 U.S. 1 (1976).............................................................................. 6, 18, 22-24 

California Medical Ass’n v. FEC, 453 U.S. 182 (1981)................................................................24 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ................................... 4, 7-8, 11, 18 

Common Cause v. Bolger, 512 F. Supp. 26 (D.D.C. 1980).............................................................7 

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)..............................................................17, 19 

Citizens for Responsibility & Ethics in Wash. v. FEC, 401 F. Supp. 2d 115 (D.D.C. 2005) ..........8 

 

Clean Air Implementation Project v. EPA, 150 F.3d 1200 (D.C. Cir. 1998) ................................11 

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)...................................................4 

Diamond v. Charles, 476 U.S. 54 (1986) .......................................................................................7 

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950).......................................................12 

FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996) .................................................................. 21-22 

FEC v. Lance, 635 F.2d 1132, 1142 (5th Cir. 1981) .......................................................................5 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981)............... 20-21 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)..................................................................22 

ii

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FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238 (1986).............................................23 

FEC v. Ted Haley Congressional Comm., 852 F.2d 1111 (9th Cir. 1988)................................5, 24 

FTC v. Std. Oil Co. of Cal., 449 U.S. 232 (1980)..........................................................................13 

Galliano v. United States Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) ......................................16 

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. 1998)..............................................................................7 

In re Carter-Mondale Reelection Comm., 642 F.2d 538 (D.C. Cir. 1980)....................................16 

In re United States Catholic Conference, 885 F.2d 1020 (2d Cir. 1989)........................................7 

Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221 (1986)..........................................11, 15 

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271 (D.C. Cir. 1994)....................................................8 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................. 3-4, 9 

Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C. Cir. 1980)..........................................................17 

McConnell v. FEC, 540 U.S. 93 (2003)...........................................................................................6 

National Conservative Political Action Comm. v. FEC, 626 F.2d 953 (D.C. Cir. 1980)........ 11-12 

 

Natural Law Party of the United States of Am. v. FEC, 111 F. Supp. 2d 33 (D.D.C. 2000)....... 7-8 

 

Pyramid Secs. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)..........................4 

Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 95 (D.D.C. 1998)...................................4 

Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 

324 F.3d 726 (D.C. Cir 2003)..................................................................................................13 

 

Republican National Comm. v. FEC, No. 98-5263, 1998 WL 794896

(D.C. Cir. Nov. 6, 1998) ............................................................................................................8 

Scott v. Harris, 127 S. Ct. 1769 (2007) ...........................................................................................8 

 

Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005).....................................................................8 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...................................................................................7 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002)........................................................................9 

iii

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United States v. Goland, 959 F.2d 1449 (9th Cir. 1992) ...............................................................24 

United States Defense Comm. v. FEC, 861 F.2d 765 (2d Cir. 1988) ........................... 8, 13-14, 17 

STATUTES AND REGULATIONS 

Federal Election Campaign Act, 2 U.S.C. §§ 431-55............................................................ passim

2 U.S.C. § 431(4).....................................................................................................................18, 23 

2 U.S.C. § 431(8)(B)(i)..................................................................................................................10 

2 U.S.C. § 431(8)(B)(vii).................................................................................................................2 

2 U.S.C. § 431(9)...........................................................................................................................18 

2 U.S.C. § 431(18).........................................................................................................................18 

2 U.S.C. § 437f(a)(1) .....................................................................................................................12 

2 U.S.C. § 437f(b)............................................................................................................................8 

2 U.S.C. § 437f(c)(2) .....................................................................................................................12 

2 U.S.C. § 437g(a)(2).....................................................................................................................13 

2 U.S.C. § 437g(a)(4)(A)(i) ...........................................................................................................13 

2 U.S.C. § 437g(a)(6)(A)...............................................................................................................13 

2 U.S.C. § 437g(a)(8).......................................................................................................................8 

5 U.S.C. § 701(a)(1).................................................................................................................11, 15 

5 U.S.C. § 704..........................................................................................................................11, 14 

11 C.F.R. § 100.82...........................................................................................................................2 

11 C.F.R. § 100.82(a).......................................................................................................................2 

MISCELLANEOUS 

FEC Advisory Opinion 1985-33......................................................................................................5 

FEC Advisory Opinion 1984-11....................................................................................................18 

iv

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FEC Advisory Opinion 1994-5......................................................................................................18 

FEC Advisory Opinion 1996-35....................................................................................................13 

FEC Advisory Opinion 2001-13................................................................................................7, 13 

FEC Advisory Opinion 2006-20............................................................................................ passim

FED. R. CIV. P. 30(b)(6)...................................................................................................................4 

General Counsel’s Report #2, MUR 5421 (approved Dec. 12, 2005).............................................2 

Political Committee Status Supplemental Explanation and Justification, 72 Fed. Reg. 

 5595, 5602 (Feb. 7, 2007)........................................................................................................ 24 

 

U.S. CONST. art. III ............................................................................................................ 1-3, 6, 10 

v

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 6 of 31
Plaintiffs’ response brief does not deny that Unity08’s goal is to elect the next President 

and Vice President of the United States by, among other things, spending millions of dollars to 

obtain ballot access and then giving such access to its chosen candidates. Despite these 

uncontroverted facts, Unity08 now claims in its response (at 35) that it “does not seek to 

influence the contest in th[at] arena,” although it also asserts, for standing purposes, that it 

competes with the major political parties and suffers injury from the Commission’s conclusion in 

Advisory Opinion (“AO”) 2006-20 that Unity08 will have to register as a political committee. 

Plaintiffs’ arguments are inconsistent and largely fail even to respond to the arguments in the 

Federal Election Commission’s (“Commission” or “FEC”) opening brief. Plaintiffs devote most 

of their response brief to factually baseless and legally unsupported attempts to address the 

Commission’s showing that jurisdiction and reviewability are each lacking here. Plaintiffs then 

repeat their misinterpretations of Supreme Court precedent — interpretations that would threaten 

the longstanding contribution limits in the Federal Election Campaign Act (“Act” or “FECA”), 

2 U.S.C. §§ 431-55. In this reply memorandum, the Commission shows that plaintiffs have 

failed to demonstrate standing and that the challenged advisory opinion is not subject to judicial 

review. In the alternative, the Commission demonstrates that Advisory Opinion 2006-20 is 

entitled to deference and is a reasonable construction of the FECA. Accordingly, the Court 

should grant the Commission’s motion for summary judgment and deny plaintiffs’ motion. 

I. PLAINTIFFS DO NOT MEET THE CONSTITUTIONAL STANDING 

REQUIREMENTS 

A. Unity08 Lacks Article III Standing Because It Has Not Suffered An 

Injury-In-Fact Traceable to AO 2006-20 

In its opening brief, the Commission demonstrated that Unity08 has voluntarily imposed 

a $5,000 limit on the contributions it accepts and has provided no evidence that anyone was 

willing to lend the organization more than $5,000 when the Complaint was filed. Def.’s Mem. in 

1

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Support of Its Mot. for Summ. J. and in Opp. to Pls.’ Mot. for Summ. J. (“Mem.”) at 8-10. 

Accordingly, Unity08 has suffered no cognizable injury-in-fact from AO 2006-20, and any 

“injury” Unity08 has incurred is traceable to its own actions or the actions of third parties, and 

not to the advisory opinion. In their response, however, plaintiffs allege that Unity08 has 

suffered three injuries traceable to AO 2006-20: (1) inability to receive loans in excess of $5,000 

(Pls.’ Resp. to Def.’s Mem. in Support of its Mot. for Summ. J. and in Opp. to Pls.’ Mot. for 

Summ J. (“Resp.”) at 8-10); (2) inability to raise and spend sufficient funds to gain ballot access 

for its presidential and vice-presidential nominees (id. at 7-8, 10-11); and (3) being placed at a 

“competitive political disadvantage” relative to the major political parties (id. at 16-17). As 

explained below, none of these constitutes injury to Unity08 for purposes of standing under 

Article III of the Constitution, nor is any traceable to AO 2006-20. 

1. Unity08’s Alleged Inability to Receive Loans in Excess of $5,000 

Unity08’s primary allegation of injury — that AO 2006-20 has prevented it from

receiving loans in excess of $5,000 — is legally unfounded and factually unsupported. As a 

matter of law, FECA expressly permits Unity08 to obtain loans in any amount. 2 U.S.C. 

§ 431(8)(B)(vii); 11 C.F.R. § 100.82. The only relevant requirement is that these loans be made 

by a bank “in the ordinary course of business.” 11 C.F.R. § 100.82(a). Indeed, political 

committees frequently take out loans of millions of dollars, and the Commission has expressly 

affirmed their permissibility. See, e.g., General Counsel’s Report #2, MUR 5421, available at

http://eqs.sdrdc.com/eqs/searcheqs (approved Dec. 12, 2005) (finding Kerry for President 

committee did not violate FECA by borrowing approximately $7 million). It is, therefore, 

indisputable that Unity08 is permitted to solicit and receive loans without fear of prosecution, 

and plaintiffs’ injury-in-fact argument must fail because nothing in AO 2006-20 provides (or 

could provide) otherwise. If Unity08 is unwilling to solicit a bank loan or unable to obtain one, 

2

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 8 of 31
those decisions would reflect its own preferences or those of commercial lenders, not anything 

caused by AO 2006-20. 

Unity08’s argument regarding loans also fails because there is no evidence showing that, 

but for AO 2006-20, anyone would have loaned Unity08 more than $5,000 at the time the 

Complaint was filed in this case. Instead, on March 12, 2007, fully two months after the 

Complaint was filed, Unity08’s Chief Executive Officer and Rule 30(b)(6) deponent testified 

that no such lender existed: 

Q. Are you aware of anyone who right now wants to loan 

Unity08 more than $5,000? 

A. No. 

Mem. Exh. 4 (Bailey Dep.) at 44:3-5. Three days later, Unity08’s second Rule 30(b)(6) 

deponent agreed: 

Q. As of today are there any individuals who have indicated 

that they specifically intend to make a loan to Unity08 if 

that’s legally permissible?

A. Not that I’m aware of.... 

Mem. Exh. 14 (Radek Dep.) at 19:4-7. Thus, even as late as March 2007, Unity08’s own 

corporate designees were unaware of anyone who wanted or intended to loan more than $5,000 

to Unity08, regardless of whether such a loan was legal under FECA. Because injury-in-fact is 

determined at the time the complaint is filed, Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 

n.4 (1992), plaintiffs have failed to establish Article III injury. 

Confronted with these deposition admissions, plaintiffs now rely upon (Resp. at 9) their 

own declarations written after the close of discovery, which, despite the benefit of late

submission, still do not meet plaintiffs’ burden. Mr. Bailey declares (¶ 64) that he “would” loan 

Unity08 more than $5,000, but nowhere states that he would have provided a loan as of the date 

of the Complaint. The Craver reply declaration (¶¶ 3-4) and the Rafshoon reply declaration 

3

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(¶12) state that the declarants have been willing to loan Unity08 more than $5,000 “since January 

2007 (the time the complaint was filed in this court).” What these individuals have been willing 

to do “since” the complaint was filed, however, is irrelevant. See Lujan, 504 U.S. at 569 n.4 

(“[P]laintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct.”). 

Thus, despite submitting four new declarations on reply, Unity08 still has not provided factual 

evidence that, as of January 12, 2007, there was anyone who actually would have loaned Unity08 

more than $5,000 but for AO 2006-20.1

 Accordingly, plaintiffs fail to meet their burden of 

demonstrating injury-in-fact from an inability to obtain loans caused by AO 2006-20.2

Finally, despite plaintiffs’ claim (Resp. at 18) that the Commission “ignores the factual 

distinction here between contributions and loans,” it is Unity08 that has blurred this distinction. 

On the one hand, Unity08 has voluntarily decided not to accept contributions more than $5,000 

(see Mem. at 8-10; FEC Facts ¶¶ 12-18), but, on the other hand, alleges that it wants large 

“loans” that are generally indistinguishable from the large contributions it purportedly does not 

want. Unity08’s proposed “Loan Agreement” provides that Unity08 will not pay any interest on 

 

1

 Even if plaintiffs’ vague reply declarations could be construed to refer to the declarants’ 

intentions at the time the Complaint was filed, such declarations should be disregarded because 

they conflict with Unity08’s Rule 30(b)(6) deposition testimony quoted above. As the Supreme 

Court has noted, there is “virtual unanimity [among courts] that a party cannot create a genuine 

issue of fact sufficient to survive summary judgment simply by contradicting his or her own 

previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier 

sworn deposition).” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (collecting 

cases); Pyramid Secs. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991) (“Courts 

have long held that a party may not create a material issue of fact simply by contradicting its 

prior sworn testimony.”). Such exclusion is even more appropriate where, as here, the original 

deposition testimony was given by the proffering party’s own representative under Rule 

30(b)(6). Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 95 (D.D.C. 1998) (refusing to 

consider summary judgment affidavit that conflicted with party’s 30(b)(6) deposition testimony). 

2

 Because FECA permits Unity08 to receive loans, plaintiffs’ reliance (Resp. at 11-16) on 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995), is misplaced. Unlike the Chamber 

of Commerce plaintiff, which was injured by a regulation that specifically prohibited its course 

of conduct, Unity08 is entitled to a safe harbor under a statute and regulation that expressly 

permit the activity Unity08 claims to desire — i.e., to seek bona fide loans. 

4

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the borrowed funds and, in fact, will not repay the loan at all unless “in its absolute discretion” it 

chooses to do so. UNI 1551-53 at 1551 ¶¶ 2, 4 (Exh. 31) (emphasis added). An interest-free 

loan that need not be repaid is not commercially available from any bank, and therefore plaintiffs 

are attempting to claim injury from Unity08’s alleged inability to receive what are actually large 

contributions while Unity08 simultaneously continues to pledge — both publicly and in sworn 

declarations to this Court — never to accept contributions in excess of $5,000. See FEC v. Ted 

Haley Congressional Comm., 852 F.2d 1111, 1115 (9th Cir. 1988) (holding that loan guarantees 

by individuals constituted non-bank loans, and therefore contributions, under FECA); Advisory 

Opinion 1985-33, http://ao.nictusa.com/ao/no/850033.html (Nov. 22, 1985) (advising that loans 

from individuals to committee would be contributions under FECA); see also FEC v. Lance, 635 

F.2d 1132, 1142 (5th Cir. 1981) (en banc) (rejecting constitutional challenge to FECA provision 

that bank loans outside ordinary course of business are contributions). 

2. Unity08’s Alleged Inability to Raise and Spend Sufficient Funds to 

Gain Ballot Access

Unity08’s second alleged injury — its purported inability to spend the $10-$12 million it 

believe it needs to achieve its goals (Resp. at 8) — fails because there is no expenditure limit at 

issue here. The Supreme Court has repeatedly distinguished between contribution and 

expenditure limits and held that FECA’s limits on individual contributions constitute neither a 

limit on the recipient’s total fundraising nor a restriction on its expenditures.3

 See Mem. at 38-39 

& cases cited therein. Thus, despite Unity08’s continuing attempts to equate contribution limits 

with expenditure restrictions, neither AO 2006-20 nor FECA prohibits Unity08 from raising the 

 

3

 Indeed, six different presidential candidate committees, which are subject to lower 

contribution limits than those that would be applicable to Unity08 as a political committee, 

raised over $12 million during the first three months of 2007 alone. See FEC, Summary Reports 

Search, http://www.fec.gov/finance/disclosure/srssea.shtml. 

5

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 11 of 31
funds it needs and spending them as it wishes to, and accordingly Unity08 has suffered no 

cognizable spending-related injury.4

 3. Unity08’s Alleged “Competitive Political Disadvantage” 

Similarly, Unity08’s third alleged injury — its purported “competitive political 

disadvantage” (Resp. at 16-17) relative to the major parties — cannot provide standing under 

Article III. As the Commission explained in its opening brief (at 40-41), the Supreme Court 

expressly considered in Buckley the argument that FECA’s contribution limits would harm minor 

parties and independent candidates, but the Court nonetheless upheld the contribution limits, 

finding that “any attempt to exclude minor parties and independents en masse from the Act’s 

contribution limitations overlooks the fact that minor-party candidates may win elective office or 

have a substantial impact on the outcome of an election.” Buckley v. Valeo, 424 U.S. 1, 33-35 

(1976); see also Mem. at 40-41 & cases cited therein.5

 The Court then reaffirmed this holding in 

McConnell, noting that the purposes behind FECA “appl[y] as much to a minor party that 

manages to elect only one of its members to federal office as it does to a major party whose 

members make up a majority of Congress.” McConnell v. FEC, 540 U.S. 93, 159 (2003). There 

is thus no precedent supporting Unity08’s argument that the Act imposes a greater financial 

burden on Unity08 than it does on any other political committee.6

 

4

 In addition, Unity08’s argument fails as a factual matter because, by its own continuing 

admission, Unity08’s operations were unaffected by AO 2006-20. Don’t Tolerate “Official 

Washington” Trying to Stand in the Way of Unity08!, http://www.unity08.com/takeaction/fec 

(last visited May 22, 2007) (Exh. 32) (“[T]he FEC put in place a strict $5,000 limit on any 

contribution to Unity08 .... Of course, Unity08 had long ago voluntarily instituted a $5,000 cap 

as part of our promise to reduce the influence of money on politics. And as you know, Unity08 

refuses to take money from corporations or special interests. So nothing about our operations 

will change.”). 

5

 The Court expressed further doubt as to whether minor parties were harmed by contribution 

limits at all, given that, prior to FECA, major parties received substantially more contributions 

above the then-$1,000 limit than did minor parties and independents. Buckley, 424 U.S. at 33. 

6

 Indeed, none of the cases that Unity08 cites in support of its argument (Resp. at 16-17) even 

relates to contribution limits or expenditures. See Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 

6

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 12 of 31
Unity08’s alleged (Resp. at 16) “competitive political disadvantage” is also belied by its 

own express disavowal of any desire or intent to become a national political party (FEC

Facts ¶ 31),7 or to “provide any support to candidates for the Unity08 nomination, or to the 

ultimate Unity08 candidates” (Resp. at 2). These disavowals are dispositive, because Unity08 

cannot demonstrate standing as a “competitor” of the national parties unless it competes in the 

same electoral “arena” as those parties. Gottlieb v. FEC, 143 F.3d 618, 621 (D.C. Cir. 1998); see 

Shays v. FEC, 414 F.3d 76, 87 (D.C. Cir. 2005); In re United States Catholic Conference, 885 

F.2d 1020, 1029 (2d Cir. 1989); see also infra p. 19. In effect, therefore, Unity08 seeks standing 

as a competitor of the political parties to request that this Court issue a declaratory judgment 

finding that Unity08 will not be competing with those parties. But plaintiffs cannot have it both 

ways: Unity08’s purported “competitive” standing is contrary to plaintiffs’ own theory of their 

underlying cause of action and therefore bears no logical “nexus” to that action.8

 See Diamond 

v. Charles, 476 U.S. 54, 70 (1986) (“Art. III standing requires an injury with a nexus to the 

substantive character of the statute or regulation at issue.”). 

Finally, plaintiffs’ extensive reliance (Resp. at 11-16) on Chamber of Commerce and the 

“threat of prosecution” at issue there is misplaced. That case involved a challenge to a final 

regulation, not an advisory opinion. 69 F.3d at 601. The court neither decided nor addressed 

whether a plaintiff would have standing to challenge an AO, which, in contrast to a regulation, 

 

2000) (challenging exclusion from presidential debates); Natural Law Party of the United States 

of Am. v. FEC, 111 F. Supp. 2d 33, 46 (D.D.C. 2000) (same); Common Cause v. Bolger, 512 F. 

Supp. 26, 30 (D.D.C. 1980) (challenging franking statute). 

7

 A national political party is an organization that, inter alia, fields candidates for multiple 

federal offices in multiple states. See Advisory Opinion 2001-13 at 2, 

http://saos.nictusa.com/aodocs/2001-13.pdf (Nov 8, 2001). 

8

 This disconnect is further highlighted by Unity08’s requested relief, which is not to be 

subject even to the political party contribution limits; instead, Unity08 seeks to avoid being 

subject to any contribution limits whatsoever. See Compl. at 11, Prayer for Relief ¶ b (seeking 

injunction against contribution limits). 

7

Case 1:07-cv-00053-RWR Document 24 Filed 05/25/2007 Page 13 of 31
does not create a “rule of law.” Compare 2 U.S.C. § 437f(b) (providing that Commission may 

not create “rule of law” through advisory opinions), with Chamber of Commerce, 69 F.3d at 603 

(“The [challenged] rule constitutes the purported legal norm that binds the class regulated by 

statute.”); see also United States Defense Comm. v. FEC (“USDC”), 861 F.2d 765, 771 (2d Cir. 

1988) (discussing § 437f(b)); Mem. at 12-15 (demonstrating that negative AO is not binding or 

final agency action).

9

 Plaintiffs’ citations to Babbitt v. United Farm Workers Nat’l Union, 442 

U.S. 289 (1979), Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), and Athens Lumber Co. 

v. FEC, 689 F.2d 1006 (11th Cir. 1983), are even more attenuated, as those cases involved 

challenges to the constitutionality of federal statutes — two of them criminal statutes — that on

their face created a threat of prosecution. Because Unity08 does not claim to challenge the 

FECA or the Commission’s regulations, none of plaintiffs’ cases is on point, and plaintiffs’ claim

of injury fails for the reasons stated above and in the Commission’s opening brief.10

 

9

 For the same reason, plaintiffs’ argument (Resp. at 13, 15-16) that Unity08 is injured by the 

potential for a third-party challenge to Unity08’s activities under 2 U.S.C. § 437g(a)(8) is 

irrelevant. Chamber of Commerce found that the Commission’s potential decision not to enforce 

the regulation at issue in that case would be contrary to the Commission’s enforcement 

obligations and therefore subject to reversal in a later suit under section 437g(a)(8). Here, in 

contrast, Unity08 challenges an advisory opinion, which the Commission has no legal obligation 

to enforce and therefore could not give rise to a successful section 437g(a)(8) action. The two 

other cases plaintiffs cite for their section 437g(a)(8) argument are also irrelevant: Natural Law 

Party, 111 F. Supp. 2d at 46, involved the propriety of a plaintiff’s standing under section 

437g(a)(8), not because of that section, and Republican National Comm. v. FEC, No. 98-5263, 

1998 WL 794896 (D.C. Cir. Nov. 6, 1998), despite plaintiffs’ creative alteration of a quotation 

from the case, has nothing to do with section 437g(a)(8). See id. at *2.

10 Plaintiffs, quoting Citizens for Responsibility & Ethics in Wash. v. FEC, 401 F. Supp. 2d 115, 

119 (D.D.C. 2005) (“CREW”), assert that the Commission’s motion for summary judgment 

“cannot be granted unless there is absolutely no set of facts that would support the plaintiffs’ 

standing.” Resp. at 6 n.3. The CREW court, however, erred by quoting this language from

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), in which the “no set of 

facts” standard applied because the case was decided on a motion to dismiss. In contrast, the 

well-established standard for summary judgment provides that courts “view the facts and draw 

reasonable inferences in the light most favorable to the party opposing the summary judgment 

motion,” Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (quotation marks and alterations omitted), 

but, as with all jurisdictional matters, the plaintiff must provide “specific facts” demonstrating 

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B. Unity08 Has Suffered No Injury Redressable By This Action 

In its opening brief (at 10-11), the Commission explained that Unity08’s purported 

injuries are not redressable because evidence before this Court demonstrates that Unity08 has 

accepted more than $1,000 in contributions and has thus become a political committee for 

reasons separate and apart from those relied upon in the AO. Therefore, even if the Court were 

to overturn the AO, that decision would not change Unity08’s status as a political committee. 

Rather than deny that Unity08 has received contributions (see Resp. at 19), plaintiffs respond 

only by citing Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1997), vacated on other grounds 524 U.S. 

11 (1998), for the proposition that “just because an agency might reach the same conclusion for a 

different reason, that possibility destroys neither causation nor redressability for the decision 

under review.” Resp. at 19-20 (emphasis added). 

The principle for which plaintiffs cite Akins is accurate, but irrelevant. In both the D.C. 

Circuit and Supreme Court, the question was whether redressability was absent where, even if 

the basis for Commission’s decision not to enforce the Act’s political committee requirements 

against an organization were overturned, the Commission might on remand exercise its prosecutorial discretion and come to the same decision for different reasons. The courts found that the 

agency’s prerogative to reach the same result for other legitimate reasons could not defeat plaintiffs’ showing of redressability. But here, the Commission is not arguing that its own potential 

determination about Unity08’s contributions is what defeats plaintiffs’ claim of redressability. 

Rather, this Court can make that determination because it has sufficient undisputed evidence — 

obtained in discovery and not available to the Commission during the AO process — to decide 

 

that it has standing. Lujan, 504 U.S. at 561; FEC Mem. at 7-8 (setting forth standard of review). 

Plaintiffs’ citation to dictum from Sierra Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002), 

for the proposition that their standing is so “self-evident” so as to not require evidence is 

unavailing, for the court in that case found that the plaintiffs did not have standing and explicitly 

held that a plaintiff “must substantiate its standing ‘with the manner and degree of evidence 

required at the successive stages of litigation.’” Id. (quoting Lujan). 

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itself that Unity08 solicited and received over $1,000 in contributions after AO 2006-20 was 

issued. See FEC Facts ¶¶ 32-39. The reasoning of Akins is thus inapposite here. Because this 

Court can determine that vacating the AO would not change Unity08’s status as a political 

committee, plaintiffs cannot meet the redressability requirement under Article III. 

C. The Individual Plaintiffs Do Not Have Standing 

The individual plaintiffs, who serve as Unity08’s directors and volunteer on the 

organization’s behalf, allege that they have been injured by AO 2006-20’s purported restrictions 

on their “personal efforts” to further “Unity08’s ballot access, American Agenda, and online 

convention initiatives.” Resp. at 20-21. The advisory opinion, however, placed no limit on the 

individuals’ “personal efforts,” which are not subject to restriction under FECA or the 

Commission’s political committee regulations. See 2 U.S.C. § 431(8)(B)(i) (“The term 

‘contribution’ does not include ... the value of services provided without compensation by any 

individual who volunteers on behalf of a ... political committee.”). This allegation, therefore, is 

simply incorrect and cannot serve as the basis for the individual plaintiffs’ standing. 

The individual plaintiffs also claim injury from purportedly being prohibited from

loaning Unity08 more than $5,000. Resp. at 20-21. But, as discussed supra pp. 3-5, this 

argument is belied by the record, which shows only that, since the Complaint was filed, 

individual plaintiffs may have wished to make large contributions in the form of “loans” that do 

not have to be repaid, i.e., the kind of donation that Unity08, for reasons preceding and unrelated

to the advisory opinion, voluntarily refuses to accept. See Mem. at 8-10; FEC Facts ¶¶ 12-18.11

II. AO 2006-20 IS NOT SUBJECT TO JUDICIAL REVIEW 

Plaintiffs concede (Resp. at 27) that FECA does not explicitly provide for judicial review 

of advisory opinions, and therefore AO 2006-20 may be subject to judicial review only if the 

 

11 The individual plaintiffs’ purported injury also is not redressable because Unity08 has 

accepted over $1,000 in contributions and has thus become a political committee for alternative 

reasons. See supra p. 9. 

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Administrative Procedure Act (“APA”) authorizes such review and FECA does not preclude it. 

See 5 U.S.C. § 701(a)(1). As the Commission explained in its opening brief, however, the 

advisory opinion does not meet the APA’s finality requirement, 5 U.S.C. § 704, and FECA 

precludes judicial review of advisory opinions. Mem. at 11-18. 

A. AO 2006-20 Is Not Final Agency Action Under The APA 

In its opening brief, the Commission explained that AO 2006-20 is not “final agency 

action” subject to review under the APA because, as a negative advisory opinion, it neither 

determines the “rights and obligations” of Unity08 nor binds the Commission to take any 

enforcement action in the future. Mem. at 12-15. In response, Unity08 argues that AO 2006-20 

is “final” because it represents a legal conclusion of the Commission that is not fact specific, that 

is unlikely to change in the future, and that the Commission probably cannot be dissuaded from

enforcing. Resp. 22-27. None of these arguments is valid, and their reliance on speculation 

demonstrates precisely why negative advisory opinions are not “final agency action.” 

Plaintiffs do not cite a single case standing for the proposition that negative advisory 

opinions are reviewable under the APA. Instead, plaintiffs rely (Resp. at 24-25) upon cases 

challenging fully-promulgated regulations, which, of course, are final for APA purposes. Abbott 

Labs. v. Gardner, 387 U.S. 136 (1967) (challenging Food and Drug Commission regulation); 

Clean Air Implementation Project v. EPA, 150 F.3d 1200 (D.C. Cir. 1998) (challenging EPA 

regulation); Chamber of Commerce (challenging FEC regulation).12 The sole advisory opinion 

case that plaintiffs cite, National Conservative Political Action Comm. v. FEC, 626 F.2d 953 

(D.C. Cir. 1980) (“NCPAC”), was a third-party challenge to a permissive advisory opinion, i.e., 

an opinion finding that the requester’s proposed activity was lawful. Because such an AO

 

12 Plaintiffs also cite a footnote from Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221 

(1986), in which there was no dispute regarding the finality of the agency’s quasi-adjudicatory 

action. See id. at 230 n.4. 

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precludes the Commission from later bringing an enforcement action against the requester 

regarding the proposed activity, 2 U.S.C. § 437f(c)(2), NCPAC is inapposite to the negative AO 

at issue here. (In addition, NCPAC involved a challenge to the process by which the AO was 

issued, and the court did not address the merits of the AO itself. NCPAC, 626 F.2d at 959.) 

Plaintiffs also rely (Resp. at 24) upon Abbott Labs for a purported list of “factors to 

consider” in determining finality. However, even if that decision’s ripeness analysis were fully 

relevant, application of those factors would demonstrate why the kind of negative AO at issue 

here is not final agency action. When the Court found that the final regulation at issue in Abbott 

Labs was reviewable, it distinguished Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 

(1950), in which the Court had found an agency’s pre-enforcement, probable cause 

determination unreviewable: 

[T]he determination of probable cause in Ewing ha[d] no effect in and of 

itself; only some action consequent upon such a finding could give it legal 

life.... The [plaintiff] in Ewing was quite obviously seeking an unheard-of 

form of relief which, if allowed, would have permitted interference in the 

early stages of an administrative determination as to specific facts, and would 

have prevented the regular operation of ... procedures established by the 

[agency’s enabling act]. 

Abbott Labs, 387 U.S. at 147-48. Unity08’s claim, much like that in Ewing, seeks judicial 

review of a non-binding, fact-specific agency determination based on proposed future activity — 

a form of review that continues to be “unheard-of,” as evidenced by plaintiffs’ inability to cite 

any relevant authority to the contrary. 

Plaintiffs’ specific arguments for APA finality are also based on faulty factual premises. 

First, contrary to plaintiffs’ assertion (Resp. at 24-25) that there is “no indication ... that a 

different conclusion [regarding Unity08’s political committee status] might be reached with 

additional facts,” AO 2006-20 is, by statute, confined to the particular facts that were before the 

Commission when it issued the opinion. 2 U.S.C. § 437f(a)(1) (authorizing Commission to issue 

12

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advisory opinion “with respect to a specific transaction or activity”); see also AO 2006-20 at 6 

(Mem. Exh. 3) (noting that AO “constitutes an advisory opinion concerning ... the specific 

transaction or activity set forth in your request”); Mem. at 12-15.13 Second, in response to the 

Commission’s argument that AO 2006-20 does not bind the Commission to commence an 

enforcement action against Unity08 at any time, plaintiffs argue that there is “every indication 

that the FEC will prosecute based on the position adopted in the AO.” Resp. at 22. Regardless 

of whether any such “indication” exists, however, the FECA establishes a multi-stage 

enforcement process, and each stage requires a majority vote of the Commission to proceed. 

2 U.S.C. § 437g(a)(2) (reason-to-believe determination); § 437g(a)(4)(A)(i) (probable cause 

determination); § 437g(a)(6)(A) (commencement of enforcement action in district court). Thus, 

as a matter of law, AO 2006-20 simply does not require the Commission ever to find reason to 

believe that Unity08 has violated FECA, much less to make a probable cause determination or 

commence a civil enforcement action. Accordingly, the advisory opinion does not determine the 

Commission’s enforcement obligations and cannot be deemed final for APA purposes.14

Finally, when confronted with the holding of United States Defense Comm. v. FEC

(“USDC”), 861 F.2d 765 (2d Cir. 1988), plaintiffs concede that the Second Circuit explicitly 

rejected the claim that negative advisory opinions are sufficiently final to be reviewable. Id. 

 

13 Indeed, the Commission has reached differing conclusions in advisory opinions regarding the 

same entity where relevant facts had changed between the advisory opinion requests. Compare

Advisory Opinion 1996-35, http://ao.nictusa.com/ao/no/960035.html (Nov. 18, 1996) (denying 

national party status to Green Party), with Advisory Opinion 2001-13, 

http://ao.nictusa.com/ao/no/010013.html (Nov. 8, 2001) (granting national party status to Green 

Party). 

14 To the extent that Unity08 implies that the AO is “final” simply because it has been approved 

by a majority of Commissioners (see Resp. at 22, 24), this argument is meritless. Not all actions

approved by the Commission are final; for example, the votes of four Commissioners are 

necessary to find reason to believe that an entity has violated FECA, 2 U.S.C. § 437g(a)(2), but 

an agency’s reason-to-believe finding is not “final agency action.” FTC v. Std. Oil Co. of Cal., 

449 U.S. 232, 241 (1980); Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 

324 F.3d 726 (D.C. Cir. 2003). 

13

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at 771.15 Plaintiffs respond (Resp. at 25) to this holding by stating — with no support from the 

legislative history, statutory text, or case law — that the Second Circuit’s “conclusory statements 

about reviewability are not grounded in FECA.” To the contrary, however, the USDC court 

carefully examined not only FECA’s advisory opinion provisions, but also its enforcement and 

conciliation provisions and legislative history, and found that considering an advisory opinion to 

be final agency action would lead to multiple, duplicative, premature litigation, which is 

precisely what 5 U.S.C. § 704 was intended to prevent. See USDC, 861 F.2d at 770-72. 

Unable to support their claim that USDC was wrongly decided, plaintiffs attempt to 

distinguish it on the grounds that the USDC plaintiff may have been able to change its conduct to 

conform to the AO it had received, while Unity08 “cannot simply change its fundraising 

strategy” because “the ability to obtain loans of more than $5,000 is critical to Unity08’s success 

and probably, to its survival.”16 Resp. at 27. But nowhere did the USDC court rely on (or even 

mention) the plaintiff’s ability to alter its conduct such that this purported difference between the 

cases would be grounds for distinguishing USDC. Furthermore, plaintiffs’ assertion is factually 

unfounded, for neither AO 2006-20 nor any FECA provision prohibits Unity08 from

“obtain[ing] loans of more than $5,000,” and so plaintiffs need not abandon their putative 

“fundraising strategy.” See supra pp. 2-5. In sum, plaintiffs provide no basis in law or fact for 

disregarding the plain and persuasive holding of USDC, or any of the other authority discussed in 

 

15 Plaintiffs’ claim (Resp. at 25) that the Second Circuit limited its holding by stating that an 

advisory opinion is not “automatically” ripe for review ignores the context of that statement; the 

court was simply rejecting the USDC plaintiff’s argument regarding “automatic” ripeness. See

USDC, 861 F.2d at 772-73. 

16 Unity08’s additional argument (Resp. at 27) that USDC is distinguishable because the AO in 

that case was “fact-specific,” while AO 2006-20 involved a “legal question,” fails because AO 

2006-20 — like all advisory opinions — was decided upon the particular facts presented to the 

Commission in the advisory opinion request. See supra pp. 12-13. 

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the Commission’s opening brief (Mem. at 12-15) showing that AO 2006-20 is not final agency 

action under the APA. 

B. FECA Precludes Judicial Review of Advisory Opinions 

In its opening brief, the Commission demonstrated Congress’s intent to preclude direct 

judicial review of advisory opinions. In response, plaintiffs cite (Resp. at 27-28) Abbott Labs

and Japan Whaling for the proposition that “clear and convincing evidence” is required to 

demonstrate preclusion under 5 U.S.C. § 701(a)(1). The Supreme Court “has, however, never 

applied [Abbott Labs’] ‘clear and convincing evidence’ standard in the strict evidentiary sense 

.... Rather, the Court has found the standard met ... whenever the congressional intent to 

preclude judicial review is ‘fairly discernable in the statutory scheme.’” Block v. Community 

Nutrition Inst., 467 U.S. 340, 350-51 (1984) (citation omitted). 

As the Commission has explained (Mem. at 15-18), congressional intent to preclude 

judicial review of advisory opinions is “fairly discernable” in the text, structure, and history of 

the FECA. Plaintiffs provide no contrary authority, and admit that FECA provides for review 

“only ... in two very limited contexts.” Resp. at 29. Plaintiffs claim, however, that “it is 

difficult to see why Congress” would not subject other Commission actions, such as advisory 

opinions, to judicial review. The Commission’s opening brief demonstrated precisely why 

Congress did so: to prevent both circumvention of the Act’s enforcement mechanisms and 

duplicative, premature legal actions. 

In addition, plaintiffs’ efforts to distinguish the Commission’s supporting case law are 

unsuccessful. The question addressed in Block was whether a statute that permitted certain 

challenges to agency action precluded, under 5 U.S.C. § 701(a)(1), a type of challenge to which 

the statute was silent. Block, 467 U.S. at 348-53. Contrary to plaintiffs’ assertion that this was 

merely an inquiry into who might bring suit, the Court examined the structure and purpose of the 

statute and found that the proposed cause of action itself would “frustrate achievement of 

15

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statutory purposes” and “undermine the congressional preference for administrative remedies” 

by interfering with “the complex [regulatory] scheme enacted by Congress” and “provid[ing] a 

mechanism for disrupting administration of the congressional scheme.” Id. at 352. This 

rationale applies fully to the instant case, where the structure and history of FECA manifest 

“fairly discernable” congressional intent to establish a complex regulatory scheme and preclude 

attempts to circumvent that scheme through litigation over non-binding advisory opinions. 

Similarly, the D.C. Circuit’s opinions in In re Carter-Mondale Reelection Comm., 642 

F.2d 538 (D.C. Cir. 1980), and Galliano v. United States Postal Serv., 836 F.2d 1362 (D.C. Cir. 

1988), make clear that FECA vests its civil enforcement power solely in the Commission, and so, 

when the Commission’s enforcement proceedings have not yet run their course, judicial review 

of the Commission’s action is unavailable under the statute. As Galliano notes, the civil 

enforcement provision of FECA “was enacted by Congress to make clear that only the FEC, and 

no other governmental authority, would have jurisdiction to enforce the civil provisions of 

FECA.” 836 F.2d at 1368 (emphasis in original; quotation marks omitted). Therefore, as 

plaintiffs admit, civil enforcement of FECA “must be directed to the FEC because Congress 

specifically set up FECA to govern such issues” (Resp. at 30 (discussing Galliano)), and cannot 

be brought to the courts prematurely. Accordingly, Unity08’s attempt to circumvent the 

Commission’s enforcement authority with a suit that precedes and precludes any of the 

investigations, determinations, and votes that FECA requires the Commission to make during the 

statutory process should be rejected for the reasons set forth in Carter-Mondale and Galliano.

17

 

17 Plaintiffs claim (Resp. at 31) that In re Carter-Mondale is inapposite because, in that case, 

the Commission had not yet acted on the administrative complaint that was the subject of the 

lawsuit. The Commission does not disagree with this characterization of Carter-Mondale; 

indeed, it demonstrates a fortiori that AO 2006-20 is not reviewable, for Unity08 does not allege 

that any complaint has yet been filed against it, and therefore this lawsuit comes even earlier in 

the administrative process than did the suit that Carter-Mondale found premature. 

16

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Finally, plaintiffs appeal for a “practical perspective” on their case, arguing that, although 

all other entities may be subjected to FECA’s normal enforcement process, Unity08’s particular 

claims warrant immediate judicial review.18 See Resp. at 31-32. As the Commission has 

explained (Mem. at 40-42), however, despite plaintiffs’ assertions about their own uniqueness, 

the Supreme Court has made it clear that the FECA can be lawfully applied to Unity08’s 

activities. Thus, regardless of how Unity08 characterizes itself, plaintiffs should not be 

permitted to circumvent the Act’s enforcement procedures by requesting an advisory opinion and 

then challenging that non-binding opinion prematurely in federal court. 

III. AO 2006-20 IS A REASONABLE CONSTRUCTION OF THE FECA 

Unity08 continues to misinterpret Supreme Court precedent in its challenge to the 

Commission’s reasonable interpretation that an organization avowedly committed to electing the 

next President and Vice President of the United States, and which disburses thousands of dollars 

toward that end, is required to register as a federal political committee. In doing so, Unity08 

obscures the fact that it is not materially different from regulated political committees that raise 

and spend millions of dollars to nominate or support their preferred candidates, even if those 

committees have not yet decided precisely which candidates they will nominate or support in the 

next election. 

A. AO 2006-20 Is Entitled To Deference 

As the Commission explained (Mem. at 18-19), its advisory opinions are entitled to 

substantial deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), and Unity08’s 

argument (Resp. at 32-33) that Chevron deference does not apply to agency interpretations of

 

18 Plaintiffs’ claim that the Commission is arguing for “across the board” preclusion of judicial 

review of advisory opinions is overbroad; the question of whether FECA precludes review of 

permissive advisory opinions is not at issue here. In addition, plaintiffs’ assertion that Martin 

Tractor Co. v. FEC, 627 F.2d 375 (D.C. Cir. 1980), stands generally for the proposition that an 

advisory opinion might “ripen[ ]” a matter sufficiently to warrant judicial review was explicitly 

considered and rejected in USDC, 861 F.2d at 772-73. 

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Supreme Court precedent does not alter the normal deference due in this case. In AO 2006-20, 

the Commission concluded that Unity08 would meet the statutory definition of “political 

committee,” 2 U.S.C. § 431(4), once it spent more than $1,000 to obtain ballot access because 

such expenses are for the purpose of influencing a federal election, and hence “expenditures,” 

under the Act, 2 U.S.C. § 431(9). Unity08 has presented no reason to disturb the Commission’s 

decades-old determination that ballot access costs constitute “expenditures.”

19 See Mem. at 22. 

The simple application of that term to Unity08’s activities did not require the Commission to 

interpret Supreme Court precedent, and the Commission did not purport to do so.20

Similarly, when the Commission applied the Supreme Court’s “major purpose” test, see 

Buckley, 424 U.S. at 79, it did not purport to delineate the contours of the major purpose test or 

otherwise “attempt[] an ‘exegesis’” of that test in a manner that would present “constitutional 

difficulties.” Chamber of Commerce, 69 F.3d at 604-05 (citation omitted). Rather, the 

Commission merely applied the plain language of the major purpose test to the facts presented in 

Unity08’s advisory opinion request and concluded that Unity08, whose avowed purpose is to 

 

19 Both advisory opinions on which the Commission relied, AO 1994-5 and AO 1984-11, also 

involved straightforward applications of the statutory term “expenditure” and no application of 

Supreme Court precedent. In addition, Unity08 mistakenly complains (Resp. at 36-37) that these 

two advisory opinions are not on point. As the Commission has described (Mem. at 22-23), 

however, each advisory opinion involved a question strikingly similar to that presented by 

Unity08’s advisory opinion request: whether disbursements for ballot access count as 

expenditures for meeting one of the Act’s definitional thresholds. 

20 In AO 2006-20, the Commission also concluded (Mem. Exh. 3 at 4) that although Unity08 

has not yet named its candidates, “it is, in effect, using its name as a placeholder for its 

candidates’ names on the ballot.” As the Commission has explained (Mem. at 32 n.20), when 

candidates are identified as to specific office, party affiliation, and election cycle, they are 

“clearly identified” within the meaning of the Act. Unity08 does not dispute this. Thus, even if 

Unity08 were correct that expenditures (or the “major purpose” test) must be tied to a “clearly 

identified” candidate, the Commission’s conclusion about the meaning of that statutory term, 

2 U.S.C. § 431(18), is also due substantial deference under Chevron. 

18

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elect the next president and vice president, meets the test. Chevron deference is thus appropriate 

regarding that straightforward application of law to the facts. 

In any event, the Commission’s application of the major purpose test to Unity08 passes 

muster whether reviewed under a deferential or de novo standard. As the Commission has 

explained (Mem. at 20-21), the Commission was entitled to rely on Unity08’s public statements 

of purpose, including that its “Goal One is to elect a Unity ticket for President and VicePresident of the United States in 2008,” to conclude that Unity08’s major purpose was the 

nomination and election of federal candidates. Unity08 does not dispute that an organization’s 

major purpose may be established by, inter alia, its public statements of purpose (Mem. at 20). 

Rather, Unity08 attempts to walk away from its prior statements; it now claims (Resp. at 35) that 

“Unity08 does not seek to influence the contest in the arena.” This unsupported argument, 

however, is belied not only by Unity08’s AO request and other public declarations that Unity08 

wants to win the next presidential election (FEC Facts ¶¶ 7a, 19), but also by testimony in this 

case that it wants to win the election (Mem. Exh. 4 (Bailey Dep.) at 12), as well as references in 

its opposition brief to its “political aspirations” (Resp. at 11) and alleged “competitive political 

disadvantage” relative to major party candidates (id. at 8, 16). See supra pp. 6-8. More 

fundamentally, as discussed below, spending millions of dollars to create an online nomination 

convention, obtain ballot access, and then give that access to its eventual nominees is 

unquestionably activity whose purpose is to nominate and elect federal candidates.

B. Unity08 Is No Different From Other Political Committees That Are Raising 

Funds to Support Particular Candidates Who Will Be Identified Between 

Now and Election Day

Like the major and minor political parties — as well as some of the better-funded 

political committees such as EMILY’s List or the NRA Political Victory Fund — Unity08 plans 

on spending millions of dollars to make possible the election of its favored candidates. Nonetheless, Unity08 argues (Resp. at 39) that it is unique and claims that it does not intend to use the 

19

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money it raises to support or oppose any candidate but intends instead “to use its funds only to 

qualify for the ballot as an organization, to create the technical mechanism for its online convention facility, and to establish its delegate education efforts.” The facts demonstrate otherwise. 

What Unity08 does not deny is that it also intends to allow its eventual nominees to use 

its ballot access, free of charge, for the purpose of helping them get elected as the next President 

and Vice President of the United States. That intention completely undermines Unity08’s claim

that it seeks “only” to qualify for ballot access and that it is materially different from other 

political committees.21 Indeed, Unity08 agrees (Resp. at 39) that other political committees are 

now collecting federal contributions “even though they do not know the specific candidate they 

will support, because they know they want to use the money for the purpose of supporting or 

opposing the nomination or election of particular candidates.” Unity08 thus concedes that other

groups’ status as political committees does not turn on whether they have yet selected their 

nominees or favored candidates, yet it provides no basis for not applying that same reasoning to 

its own conduct. 

 Because Unity08 will be nominating candidates and then giving its nominees the 

expensive ballot access it intends to obtain, its attempt to compare itself favorably to the draft 

groups in FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), 

must fail. See Resp. at 37. As the Commission explained (Mem. at 35-36), Unity08’s activities 

clearly extend, in time and effect, far beyond a draft group’s. The draft-Kennedy groups in 

Machinists sought only to convince Senator Kennedy to run for president, not to nominate or 

 

21 Other than a conclusory assertion that “Unity08 will not provide any support to candidates 

for the Unity08 nomination, or to the ultimate Unity08 candidate” (Resp. at 2), Unity08 has not 

explained how providing its candidates with ballot access — which Unity08 estimates will cost

$7,000,000 — is not providing support, or something of value, to its candidates. Nor has 

Unity08 explained how its eventual nominees would not feel indebted to the large contributors 

who made their appearance on the ballot possible. See Mem. at 40-42 (explaining Supreme 

Court’s anti-corruption rationale for upholding Act’s contribution limits). 

20

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elect him — i.e., for the limited purpose of “attempt[ing] to convince the voters — or [Senator] 

Kennedy himself — that he would make a good ‘candidate,’ or should become a ‘candidate.’” 

655 F.2d at 396. Thus, once Senator Kennedy made his decision, the draft groups had exhausted 

their only purpose.22 Unity08, in contrast, will itself nominate candidates and then give its 

chosen candidates ballot access to run in the general election. Moreover, Unity08 has admitted 

that it is not a draft group (Unity08 Facts ¶ 56), and it has also stated that it will “work with” and 

“support” its ticket after the nomination (Mem. Exh. 4 (Bailey Dep.) at 115-16). 

Thus, rather than being akin to a draft group, Unity08 is no different from other political 

committees that are collecting contributions but that may not know which specific candidates 

they may ultimately nominate or support. In the first quarter of 2007 alone, non-candidate 

political committees have raised and reported over 200 million dollars in contributions. See 

Summary Reports Search, http://www.fec.gov/finance/disclosure/srssea.shtml (FEC search 

engine for political committee contributions and expenditures). But under Unity08’s 

interpretation of the statute, the majority of these contributions are not regulable because such 

organizations have generally not yet identified their preferred candidates. 

In its opposition, Unity08 does not attempt to explain how its statutory interpretation and 

cramped theory of corruption would not, as the Commission explained (Mem. at 34-35), largely 

eviscerate the Act’s contribution limits, other than to discuss (Resp. at 40-41) FEC v. GOPAC, 

917 F. Supp. 851 (D.D.C. 1996). But the court’s concern in that case has no application here. 

As the Commission explained (Mem. at 36 n.23), GOPAC turned on the fact that GOPAC 

supported only candidates at the state and local level and “avoided directly supporting federal 

candidates.” 917 F. Supp. at 857 (emphasis omitted). Because the court noted, and the 

 

22 Without citing anything specific in Machinists, Unity08 sweepingly asserts (Resp. at 37) that 

the decision held that activity prior to a candidate’s announcement is not regulable. Despite 

plaintiffs’ assertion (id.), however, Machinists makes no mention of “contests ... between 

announced candidates.” 

21

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Commission conceded, that there was no evidence that GOPAC had made direct contributions to 

or expenditures for any federal candidates, id. at 857, the court found that the Commission had 

not proven that GOPAC had engaged in sufficient federal campaign activity to qualify as a 

political committee.23 Similarly, although the court noted that GOPAC hoped to eventually and 

indirectly influence the election of Republican candidates to Congress, GOPAC’s actual 

activities demonstrated that its “immediate major purpose” during the years at issue “was to elect 

state and local candidates.” Id. at 851. These facts stand in stark contrast to Unity08’s stated 

purpose of electing the next president and vice president (and no other candidates) in the current 

election cycle and its plans to provide ballot access to its chosen candidates after its nominating 

convention.24

C. Unity08 Continues to Misinterpret Supreme Court Precedent

As the Commission explained (Mem. at 26-27 & n.19), Unity08 erroneously conflates the 

Supreme Court’s “express advocacy” and “major purpose” tests; only the former must involve a 

“clearly identified” candidate. In its opposition brief, without citing any specific language from

Buckley, Unity08 repeatedly suggests (Resp. at 33, 35, 36, 41, 42) that Buckley limits the 

application of the Act’s definition of political committee to organizations whose major purpose 

 

23 Unity08 criticizes (Resp. at 38) the Commission for applying GOPAC in other contexts while 

pointing out in this case (FEC Mem. at 36 n.23) that, to the extent GOPAC interpreted the major 

purpose test to require support for a particular federal candidate, such dicta cannot be reconciled 

with the language and logic of Buckley. There is nothing improper or inconsistent, however, in 

relying on those portions of the GOPAC decision that the Commission maintains were correctly 

decided, while also noting other aspects of the decision that were flawed. 

24 Unity08 again mischaracterizes FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004). 

Contrary to Unity08’s claims (Resp. at 40), the district court in Malenick did not apply the 

GOPAC court’s rationale to conclude that an organization does not become a political committee 

unless it makes expenditures in support of a person who has decided to become a candidate, or 

that Triad, the defendant organization, “funneled” money to candidates. The Malenick court held 

that Triad satisfied the statutory definition of political committee because it had “received 

contributions aggregating more than $1,000 in 1996,” even though the Court did not make any 

findings that the contributor knew that his donations would support or oppose any particular 

candidate. Malenick, 310 F. Supp. 2d at 236 (emphasis added).

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is to nominate or elect a particular identified candidate. As the Commission explained (Mem. 

at 26-29), however, Unity08’s flawed reading of Buckley is not supported by the opinion’s plain 

language: The major purpose test is satisfied if an organization’s major purpose is “the 

nomination or election of a candidate.”25 Buckley, 424 U.S. at 79. The Commission further 

explained (Mem. at 19-20, 26-29) that Buckley and FEC v. Massachusetts Citizens For Life, Inc., 

479 U.S. 238 (1986), demonstrate that the Court adopted the major purpose test to limit the 

scope of the Act’s definition of political committee to avoid improper regulation of groups 

engaged purely in issue discussion. Unity08 does not dispute this or claim that it is primarily an 

issue advocacy group. 

Unity08 also continues to rely on flawed reasoning that renders the Act’s definition of

“political committee” meaningless. It asserts (Resp. at 38) that “[d]onations to or expenses 

incurred by an organization such as Unity08 that is not a political committee are not 

‘contributions’ or ‘expenditures.’” The Act, however, defines a political committee as “any 

committee, club, association, or other group of persons which receives contributions or which 

makes expenditures aggregating in excess of $1,000 during a calendar year.” 2 U.S.C. § 431(4). 

The first step in determining whether an organization meets this standard, therefore, is to 

ascertain whether an organization has received more than $1,000 in contributions or made more 

than $1,000 in expenditures. Yet Unity08’s formulation puts the cart before the horse by first 

 

25 The Commission previously explained (Mem. at 26-27) that Unity08’s theory that an 

organization cannot become a political committee until it has actually selected its candidates 

effectively reads the phrase “nomination or” out of the major purpose test. Unity08 does not 

dispute this point. Nor does it explain how any organization that undertakes a competitive 

nomination process, such as the major political parties, could meet the major purpose test if that 

test required, as it would under Unity08’s view, the organization to have already selected the 

“specific individual” it has yet to nominate. 

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requiring a determination that an organization is a political committee before being able to 

conclude that its donations and expenses are “contributions” or “expenditures.”26

Finally, the Commission also explained at length (Mem. at 30-33, 38-41) that the 

Supreme Court has repeatedly upheld contribution limits to political intermediaries, and 

prophylactic measures designed to foreclose circumvention of those limits, even though such 

contributions do not flow directly to identified candidates. Unity08 disputes none of this. 

Indeed, other than a passing reference (Resp. at 21-22) in its standing argument, Unity08 make 

no mention of the most important case on this point, California Medical Ass’n v. FEC (“CMA”), 

453 U.S. 182, 197-98 (1981). In CMA, the Court upheld the Act’s $5,000 limit on contributions 

to multicandidate political committees to prevent circumvention of the contribution limitations 

upheld in Buckley, even though contributions to such organizations are not earmarked for 

particular candidates. Nonetheless, Unity08 makes no attempt to reconcile this dispositive 

precedent with plaintiffs’ repeated claims that donations are not “contributions” unless they are 

given to support a specified candidate.27

 

26 In a recent Supplementary Explanation and Justification regarding one of its rulemakings, the 

Commission further clarified that it will analyze political committee status by first examining 

whether an organization has met the statutory criteria in 2 U.S.C. § 431(4). See Political 

Committee Status Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 5602 (Feb. 7, 

2007). 

27 The lawful, prophylactic purpose of the contribution limitations is further demonstrated in 

FEC v. Ted Haley Congressional Comm., 852 F.2d 1111 (9th Cir. 1988), and United States v. 

Goland, 959 F.2d 1449, 1453 (9th Cir. 1992), where the Ninth Circuit applied the definition of 

“contribution” in circumstances where the opportunity for corruption was attenuated because the 

contribution was made to a candidate after he lost the election, or because the recipient did not 

know the identity of the contributor. Unity08 points out (Resp. at 39-40) that both cases 

involved “actual” candidates, but does not suggest that this fact was material to the court’s 

decisions or explain how it could undermine the broader anti-corruption principles of these cases 

and CMA. 

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CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court grant 

summary judgment to the Commission and deny summary judgment to plaintiffs on each claim

in plaintiffs’ Complaint.

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker

David Kolker (D.C. Bar No. 394558) 

Acting Associate General Counsel 

/s/ Kevin Deeley 

Kevin Deeley 

Acting Assistant General Counsel 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW

Washington, DC 20463 

May 25, 2007 (202) 694-1650 

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