ORAL ARGUMENT NOT YET SCHEDULED 

No. 08-5526 

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 FOR THE FEDERAL ELECTION COMMISSION 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Adav Noti 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 29, 2009 (202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant D.C. Cir. R. 28(a)(1), the Federal Election Commission 

(“Commission”) submits the following Certificate as to Parties, Rulings, and 

Related Cases. 

(A) Parties and Amici. The parties are plaintiff-appellant Unity08 and 

defendant-appellee Federal Election Commission. Other parties before the district 

court were plaintiffs Douglas Bailey, Roger Craver, Hamilton Jordan, Angus King, 

Jerry Rafshoon, and Carolyn Tieger. Democracy 21 and Campaign Legal Center 

were amici in the district court and are amici in this Court. 

(B) Rulings Under Review. The ruling at issue is reported at Unity08 v. 

FEC, 583 F. Supp. 2d 50 (D.D.C. 2008). (J.A. 548-67.) 

(C) Related Cases. The Commission knows of no “related cases” as that 

term is defined in D.C. Cir. R. 28(a)(1)(C). 

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TABLE OF CONTENTS 

COUNTERSTATEMENT OF JURISDICTION ......................................................1 

COUNTERSTATEMENT OF ISSUES PRESENTED ............................................1 

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

COUNTERSTATEMENT OF THE CASE...............................................................2 

COUNTERSTATEMENT OF FACTS .....................................................................4 

I. STATUTORY AND REGULATORY BACKGROUND ..............................4 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY .................5 

SUMMARY OF THE ARGUMENT ......................................................................12 

ARGUMENT...........................................................................................................14 

I. THIS CASE IS MOOT..................................................................................14 

II. THE COMMISSION’S ADVISORY OPINIONS ARE NOT SUBJECT 

TO DIRECT JUDICIAL REVIEW, AND AO 2006-20 IS NOT FINAL 

AGENCY ACTION UNDER THE APA......................................................20 

 A. FECA Precludes Direct Judicial Review of AO 2006-20...................20 

 B. AO 2006-20 Is Not Reviewable Under the APA Because It Is Not 

“Final Agency Action”........................................................................22 

III. ADVISORY OPINION 2006-20 IS A REASONABLE 

CONSTRUCTION OF FECA.......................................................................27 

 A. Standard of Review .............................................................................27 

 B. The Commission Reasonably Determined that Spending to Gain 

Ballot Access Is an “Expenditure” Under FECA................................29 

 C. The Commission and the District Court Correctly Found that 

Unity08’s Major Purpose Was to Nominate or Elect a Federal 

Candidate.............................................................................................35 

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ii

1. Under the Plain Holding of Buckley, Unity08 Meets the 

Major Purpose Test...................................................................35 

2. The Major Purpose Test Does Not Apply Only to Groups 

that Have Already Selected their Candidates ...........................37 

3. Unity08’s Interpretation of the Major Purpose Test Would 

Create an Opportunity for Massive Corruption........................42 

4. There Is No Constitutional Exception for Self-Proclaimed 

“Nascent” Political Parties........................................................50 

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

EXHIBIT 

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iii

TABLE OF AUTHORITIES 

Cases 

21st Century Telesis Joint Venture v. FCC, 318 F.3d 192 (D.C. Cir. 2003)...........15 

Agostini v. Felton, 521 U.S. 203 (1997) ..................................................................44 

Am. Family Life Assurance Co. v. FCC, 129 F.3d 625 (D.C. Cir. 1997)................15 

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)...............................14 

Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008)................................................18 

Barnhart v. Walton, 535 U.S. 212 (2002)................................................................31 

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................23 

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984)..........................................20, 22 

*Buckley v. Valeo, 424 U.S. 1 (1976).........1, 4, 13, 29, 33-40, 42, 43, 45, 49-51, 55 

C&E Services, Inc. v. D.C. Water and Sewer Auth., 310 F.3d 197 

(D.C. Cir. 2002) ............................................................................................22 

*Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ..........................................43, 45, 46 

Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 

467 U.S. 837 (1984) .................................................................... 13, 27-29, 38 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981)............................44 

City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278 (2001)....................16 

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...................................................19 

Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990)..........................................15 

Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 

452 F.3d 798 (D.C. Cir. 2006)...........................................................23, 24, 26 

DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854 (2006)........................................14 

* Authorities upon which the Commission chiefly relies are marked with asterisks.

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iv

Davis v. FEC, 128 S. Ct. 2759 (2008) .........................................................14, 17, 18 

DRG Funding Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212 

(D.C. Cir. 1996).......................................................................................26, 27 

FEC v. Beaumont, 539 U.S. 146 (2002) ..................................................................49 

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001)..........43, 52 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) .................28 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996)..............................36, 38, 39

*FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 

(D.C. Cir. 1981)....................................................................................... 38-41 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ...........................................36 

FEC v. Mass. Citizens For Life, Inc., 479 U.S. 238 (“MCFL”) ..................36, 42, 47 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001) ......................27, 28 

FEC v. NCPAC, 470 U.S. 480 (1985) ...............................................................43, 49 

FEC v. Ted Haley Congressional Comm., 852 F.2d 1111 (9th Cir. 1988) .............48 

FEC v. Wisc. Right to Life, Inc., 127 S. Ct. 2652 (2007) ..................................17, 18 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ...................................44 

Fund For Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005) .......................17 

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13 

(D.C. Cir. 2006).............................................................................................26 

Galliano v. U.S. Postal Service, 836 F.2d 1362 (D.C. Cir. 1988).....................21, 22 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990).........................................51 

Heckler v. Chaney, 470 U.S. 821 (1985).................................................................20 

Hohn v. United States, 524 U.S. 236 (1998) ...........................................................43 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) .....21 

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v

ITT v. Local 134, Int’l Bhd. of Elec. Workers, 419 U.S. 428 (1975).......................25

Kan. State Network, Inc. v. FCC, 720 F.2d 185 (D.C. Cir. 1983).............................7 

Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990).............................................14, 15 

Liu v. INS, 274 F.3d 533 (D.C. Cir. 2001)...............................................................15 

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)................................................23 

McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders, 

264 F.3d 52 (D.C. Cir. 2001).........................................................................17 

*McConnell v. FEC, 540 U.S. 93 (2003) .................................. 33, 36, 43, 48-52, 55 

Munsell v. Dep’t of Agric., 509 F.3d 572 (D.C. Cir. 2007).....................................16 

Natural Res. Defense Council v. EPA, 559 F.3d 561 (D.C. Cir. 2009)...................26 

Nevada v. Dep’t of Energy, 457 F.3d 78 (D.C. Cir. 2006)......................................27 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)............................................49 

Noramco of Del., Inc. v. DEA, 375 F.3d 1148 (D.C. Cir. 2004) .............................28 

N. Haven Bd. of Ed. v. Bell, 456 U.S. 512 (1982) ...................................................31 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ......................................................28 

PETA, Inc. v. Gittens, 396 F.3d 416 (D.C. Cir. 2005).......................................18, 19

Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627 (D.C. Cir. 2002) .......... 17-19 

PLMRS Narrowband Corp. v. FCC, 182 F.3d 995 (D.C. Cir. 1999)........................7 

Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005)...............................28 

Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003)........................31 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ...............................28 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007)...................................................33 

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) .......................14 

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Sturm, Ruger & Co. v. Chao, 300 F.3d 867 (D.C. Cir. 2002) .................................22 

Texas v. United States, 523 U.S. 296 (1998)...........................................................27 

*U.S. Defense Comm. v. FEC, 861 F.2d 765 (2d Cir. 1988).................20, 21, 24, 25 

United States v. Erika, Inc., 456 U.S. 201 (1982) ...................................................22 

United States v. Fausto, 484 U.S. 439 (1988) ...................................................20, 22 

United States v. Goland, 959 F.2d 1449 (9th Cir. 1992).........................................48 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .............................28 

United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001) ..................................... 43-44 

Statutes and Regulations 

Federal Election Campaign Act (“FECA”): 

2 U.S.C. § 431(4)(A) .......................................................................................4 

*2 U.S.C. § 431(9).................................................................................1, 8, 34 

*2 U.S.C. § 431(9)(A)(i) .....................................................................4, 29, 30 

2 U.S.C. § 431(18).........................................................................................38 

2 U.S.C. § 433 .................................................................................................5 

2 U.S.C. § 434 .................................................................................................5 

2 U.S.C. § 437c(b)(1) ......................................................................................5 

2 U.S.C. § 437d ...............................................................................................5 

2 U.S.C. § 437d(a)(7) ......................................................................................5 

*2 U.S.C. § 437f..................................................................................5, 20, 23 

2 U.S.C. § 437f(b) .........................................................................................24 

2 U.S.C. § 437f(c)............................................................................................5 

2 U.S.C. § 437f(c)(1)(B)................................................................................23 

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2 U.S.C. § 437f(c)(2).....................................................................................23 

2 U.S.C. § 437g(a).............................................................................19, 21, 25 

2 U.S.C. § 437g(a)(4) ....................................................................................24 

2 U.S.C. § 437g(a)(4)(C)(iii).........................................................................21 

2 U.S.C. § 437g(a)(6) ....................................................................................25 

2 U.S.C. § 437g(a)(8) ....................................................................................21 

2 U.S.C. § 441a(a)(1).......................................................................................5 

2 U.S.C. § 441a(a)(1)(C) ...................................................................43, 45, 46 

2 U.S.C. § 441a(f)............................................................................................5 

Administrative Procedure Act (“APA”): 

5 U.S.C. § 701(a)(1) ......................................................................................20 

*5 U.S.C. § 704 ...................................................................................1, 23, 25 

5 U.S.C. § 706(2).............................................................................................8 

26 U.S.C. § 527..........................................................................................................6 

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

11 C.F.R. § 100.5(e)(4)............................................................................................41 

11 C.F.R. Part 104......................................................................................................5 

11 C.F.R. § 2.3(c).......................................................................................................8 

11 C.F.R. § 100.17...................................................................................................38 

11 C.F.R. § 112.4 .......................................................................................................5 

Other Authorities 

Federal Election Commission: 

 *FEC Advisory Opinion 1984-11 ...........................................................30, 32 

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 *FEC Advisory Opinion 1994-05 ........................................................... 30-32 

 FEC Advisory Opinion 2001-13 ...................................................................53 

 FEC Advisory Opinion 2003-23 ...................................................................38 

 *FEC Advisory Opinion 2006-20 ........ 7, 8, 11-13, 16, 20, 22, 26, 27, 29, 30, 

32, 35, 36, 50, 53, 54 

 FEC, 2000 Official Presidential General Election Results, 

http://www.fec.gov/pubrec/2000presgeresults.htm.......................................51 

 FEC, Contribution Limits for 2007-08, 

http://www.fec.gov/info/contriblimits0708.pdf ............................................52 

 Political Committee Status, Supplemental Explanation and Justification, 

72 Fed. Reg. 5595 (Feb. 7, 2007)..................................................................36 

Internal Revenue Service, Basic Search, 

http://forms.irs.gov/politicalOrgsSearch/search/basicSearch.jsp..................10 

Nathan Littlefield, Nader Republicans, THE ATLANTIC, Sept. 2004, available at

http://www.theatlantic.com/doc/200409/littlefield2 .....................................51 

U.S. CONST. art. III, § 2............................................................................................14 

Unity08, http://www.unity08.com.....................................................................10, 11 

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GLOSSARY 

AO Advisory Opinion 

AOR Advisory Opinion Request 

APA Administrative Procedure Act 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

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COUNTERSTATEMENT OF JURISDICTION 

 The final order of the district court granting summary judgment to the 

Commission was entered on October 16, 2008 (J.A. 548-67), and a notice of appeal 

was timely filed on December 15, 2009 (J.A. 568). Appellant Unity08 invokes this 

Court’s jurisdiction under 28 U.S.C. § 1331. Jurisdiction, however, is not proper 

here because this appeal is moot. 

COUNTERSTATEMENT OF ISSUES PRESENTED 

1. Whether Unity08’s permanent cessation of activity rendered this 

appeal moot. 

2. Whether an agency’s prospective advisory opinion that an 

organization’s desired activities would be regulable is subject to direct judicial 

review and constitutes “final agency action” under the Administrative Procedure 

Act, 5 U.S.C. § 704. 

3. Whether funds spent to obtain positions on general election ballots, 

with the intention of later providing those ballot positions to a candidate for 

President of the United States, are spent “for the purpose of influencing” a federal 

election and therefore constitute “expenditures” under 2 U.S.C. § 431(9). 

4. Whether an organization dedicated to nominating and electing the 

next President of the United States has as its major purpose “the nomination or 

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election of a candidate,” such that it constitutionally may be regulated as a political 

committee under Buckley v. Valeo, 424 U.S. 1 (1976). 

STATUTES AND REGULATIONS 

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

Unity08’s brief. 

COUNTERSTATEMENT OF THE CASE 

Under the Federal Election Campaign Act (“FECA”), any organization that 

spends $1,000 or more to influence a federal election and that has the “major 

purpose” of nominating or electing a candidate for federal office must register with 

the Federal Election Commission (“Commission”) as a “political committee.” 

Political committees generally may not accept contributions of more than $5,000 

per contributor per year, and they must file with the Commission reports listing 

their receipts and disbursements. 

Unity08 was a corporation whose primary purpose was to nominate and 

elect the next President and Vice President of the United States in the 2008 

election. To that end, Unity08 intended to spend millions of dollars to select its 

candidates and place them on the general election ballots of as many states as 

possible. Shortly after its formation, Unity08 asked the Commission to opine 

prospectively on whether it would qualify as a political committee under FECA. 

In light of Unity08’s intention to spend more than $1,000 to achieve its avowed 

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purpose of nominating and electing the next President, the Commission opined that 

if Unity08 put its plans into effect it would indeed meet the criteria for political 

committee status. 

Displeased by the prospect of operating within the same legal framework as 

all other political committees, Unity08 challenged the Commission’s opinion in 

court. While the suit was pending below, Unity08 — having gained insufficient 

support from the electorate — ceased its operations due to lack of funds. The 

district court subsequently ruled that because Unity08’s planned ballot-access 

activity was intended to influence a federal election, and because Unity08’s major 

purpose was the nomination or election of a federal candidate, the Commission’s 

advisory opinion was not contrary to law. 

Unity08 cannot demonstrate any factual or legal error in the district court’s 

holding, which accordingly would be entitled to affirmance if this Court were to 

decide this appeal on its merits. But the Court need not and should not reach that 

question, as Unity08’s cessation of activity and the passage of the 2008 elections 

have rendered this case moot. Furthermore, there is no statutory basis for direct 

review of the Commission’s advisory opinion. 

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COUNTERSTATEMENT OF FACTS 

I. STATUTORY AND REGULATORY BACKGROUND 

 FECA defines a “political committee” to include “any committee, club, 

association, or other group of persons which receives contributions aggregating in 

excess of $1,000 during a calendar year or which makes expenditures aggregating 

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

“expenditure” includes “any purchase, payment, distribution, loan, advance, 

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

of influencing any election for Federal office.” 2 U.S.C. § 431(9)(A)(i). 

In Buckley v. Valeo, 424 U.S. 1, 79 (1976), the Supreme Court held that 

defining political committee status “only in terms of amount[s] of annual 

‘contributions’ and ‘expenditures’” might cause “groups engaged purely in issue 

discussion” to be subject to regulation as campaign organizations. Accordingly, to 

avoid “vagueness problems,” the Court concluded that “[t]o fulfill the purposes of 

the Act [the term “political committee”] need only encompass organizations that 

are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Id. (emphasis added). Thus, pursuant to 

Buckley’s interpretation of FECA, an organization is a “political committee” if (a) 

it meets the $1,000 contribution or expenditure threshold, and (b) its “major 

purpose” is the nomination or election of a federal candidate. 

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Political committees must register with the Commission and file periodic 

reports of their receipts and disbursements for disclosure to the public. 2 U.S.C. 

§§ 433, 434; 11 C.F.R. Part 104. FECA provides that no person may contribute 

more than $5,000 per calendar year to any political committee, and no “political 

committee shall knowingly accept any contribution” in violation of those limits, 2 

U.S.C. § 441a(f).1

 

The Commission is the independent agency of the United States government 

with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of FECA. See 2 U.S.C. §§ 437c(b)(1), 437d. The Commission is 

empowered, inter alia, to issue advisory opinions concerning the application of 

FECA and the Commission’s regulations to proposed transactions or activities, 

2 U.S.C. §§ 437d(a)(7), 437f; 11 C.F.R. § 112.4. Any person who engages in a 

specific activity “indistinguishable in all its material aspects” from the activity 

described in the advisory opinion and who acts in good faith in accordance with 

the opinion is not subject to sanction under the Act. 2 U.S.C. § 437f(c). 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 Unity08 was incorporated on May 24, 2006. (J.A. 166.) The next day, 

Unity08 filed with the Internal Revenue Service an application for tax-exempt 

 

1

 Political committees established by a state or national political party are 

subject to higher contribution limits. See 2 U.S.C. § 441a(a)(1)(B)-(D); see also 

infra pp. 50-54 (discussing why Unity08 is not a political party committee). 

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“political organization” status under 26 U.S.C. § 527. (J.A. 423-24.) When 

describing “the purpose of the organization,” Unity08 stated: 

Our goal is the election of a Unity Ticket for President and 

Vice-President of the United States in 2008 to be headed by a 

woman and[/]or man from each major party or by an 

independent who presents a Unity Team from both parties. We 

also aim to effect major change and reform in the 2008 national 

elections by influencing the major parties to adopt the core 

features of our national agenda. 

(J.A. 423; see also J.A. 373 (“Goal One is the election of a Unity Ticket for 

President and Vice-President of the United States in 2008 . . . .”); J.A. 426 (“Our 

Three Goals . . . 1. Elect a truly bipartisan Unity Ticket to the White House team in 

2008 . . . .”); J.A. 428 (“Unity08 has three specific goals: 1. Elect a Unity Ticket to 

the White House in 2008 . . . .”); J.A. 432 (asking for donations to support “our 

goal of electing a bi-partisan Unity Ticket in the 2008 presidential election”).) 

On May 30, 2006, Unity08 filed with the Commission an advisory opinion 

request (“AOR”). (J.A. 156-72; see also J.A. 196-223 (supplemental AOR 

filings).) In its AOR, Unity08 stated that its “Goal One” was to “elect a Unity 

Ticket for President and Vice President of the United States in 2008 that will have 

on the ticket a person from each of the two major parties.” (J.A. 157, 197.) To 

achieve this goal, Unity08 explained, it planned to (1) nominate candidates for 

President and Vice President at an online political convention, and (2) obtain 

placement for those nominees on the 2008 general election ballot in every state 

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where it could. (See J.A. 158-59, 197-99.) The group’s ballot-access activity was 

to consist primarily of “petition drives” through which Unity08, as an organization, 

would obtain placeholder spots on states’ general election ballots — spots that 

ultimately would be given to Unity08’s nominees. (See J.A. 198-99.) Unity08 

specifically disclaimed any intention of becoming a permanent political party or of 

nominating, supporting, or opposing any candidate in any election other than the 

2008 presidential election. (See J.A. 159, 198; see also J.A. 308 (“Q. Does 

Unity08 have any plans to become a permanent political party? A. No.”); J.A. 435 

(“It is not our intention to become a permanent third party.”).) Unity08’s AOR 

asked the Commission to opine, in light of the foregoing, that disbursements to 

further the nomination of Unity08’s candidates and to gain ballot access for them 

would not constitute expenditures under FECA, and that Unity08 would not be 

required to register with the Commission as a political committee. (J.A. 159.) 

 On October 10, 2006, after holding two public meetings and deliberating 

over Unity08’s filings and comments filed by third parties, the Commission issued 

Advisory Opinion (“AO”) 2006-20. (J.A. 54-59.)2

 The AO concluded, inter alia, 

 

2

 Unity08 cites (Unity08 Br. 11) the remarks of a Commissioner during the 

Commission’s meeting to discuss draft AO 2006-20. Under this Circuit’s law and 

the Commission’s regulations, however, pre-decisional views expressed by any 

Commissioner provide no basis for inferring the intent or views of the Commission 

as an agency, or even the final views of the Commissioner. See, e.g., PLMRS 

Narrowband Corp. v. FCC, 182 F.3d 995, 1001 (D.C. Cir. 1999); Kan. State 

Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983) (granting motion to 

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that Unity08’s plan to gain ballot access for its nominees as a “placeholder” and 

then give that access to presidential and vice-presidential candidates would directly 

benefit those candidates. (J.A. 56-57.) These disbursements, therefore, would be 

“for the purpose of influencing [an] election for federal office,” which would make 

them “expenditures” under 2 U.S.C. § 431(9). (J.A. 56-57.) On the question of 

Unity08’s major purpose, the Commission noted that, as demonstrated by the AOR 

and Unity08’s other public statements, “Unity08’s self-proclaimed major purpose 

is the nomination and the election of a presidential candidate and a vicepresidential candidate.” (J.A. 58.) Because any organization that makes 

expenditures of $1,000 or more and whose major purpose is the nomination or 

election of a candidate is a political committee under FECA, the Commission 

opined that “Unity08 will have to register as a political committee once it makes 

expenditures in excess of $1,000.” (J.A. 54, 57-58.) 

 On January 10, 2007, Unity08 and several of its founders filed the 

complaint in this action, arguing that AO 2006-20 was contrary to law in violation 

of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). While this 

action was being litigated, Unity08 began making disbursements to further its goal 

of electing the next President and Vice President of the United States. Specifically, 

 

strike transcript of agency deliberation); see also 11 C.F.R. § 2.3(c) (providing that 

Commission meeting “is not part of the formal or informal record of decision of 

the matters discussed therein,” and “[s]tatements . . . made by Commissioners . . . 

at meetings are not intended to represent final . . . beliefs”). 

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Unity08 disbursed tens of thousands of dollars to create and promote its online 

nomination facility. (See J.A. 249-77 (listing disbursements); J.A. 410-19 

(discussing services received from vendors).) Unity08 also disbursed tens of 

thousands of dollars to recruit “delegates,” whom Unity08 intended to use to meet 

the signature-gathering requirements for achieving ballot access on behalf of 

Unity08’s nominees. (See J.A. 249-77 (listing disbursements); J.A. 410-19 

(discussing services received from vendors); J.A. 435 (“[T]he delegates . . . will 

pick the nominees, and will get them on the ballot in all 50 states . . . .”); J.A. 439 

(“[Q:] How would the ticket get on the ballot? [A:] The millions of Unity08 

convention delegates would be organized to get that job done, state by state.”).) 

By building this ballot-access machinery, which Unity08 anticipated would 

ultimately cost more than $10 million (J.A. 549), the organization hoped to entice 

candidates to seek its nomination. (J.A. 314 (“[T]o the degree that . . . the process 

of ballot access would in turn cause candidates to want to seek the nomination, 

that’s an important part of this process.”)); J.A. 464 (listing, as reason for 

candidates to seek Unity08 nomination, “Ballot Access in all 50 states”).) In all, 

Unity08 raised and spent over $2 million in pursuit of its electoral goal.3

 

3

 When the parties filed their summary judgment briefs below, Unity08’s 

disbursement information was available only for 2006, during which the 

organization received and spent approximately $425,000. (See J.A. 249-77.) 

Unity08 subsequently reported to the IRS that it had received $1.5 million 

(including $1.1 million in putative loans from its principals) and spent $1.7 million 

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10

 In January 2008, after the parties had filed their summary judgment briefs 

below but before the district court had ruled, Unity08 replaced its website with a 

notice stating that it was “scal[ing] back” operations because “we don’t have 

enough members or enough money to take the next necessary step — achieving 

ballot access in 50 states — to reach the goal of establishing our on-line 

convention and nominating a Unity ticket for president and vice president this 

coming fall.” See www.unity08.com (posted on or about January 10, 2008; last 

visited June 23, 2009; text in Exhibit to this brief). As Unity08 then explained to 

the district court, its “severe financial straits” had caused it “to suspend its efforts 

to get on the ballot . . . and to suspend its efforts to prepare for its planned online 

convention.” (Mot. for Expedited Consideration ¶ 2 (Jan. 22, 2008) (Docket No. 

28).) Unity08 did not officially dissolve or disband because of its desire to 

continue this lawsuit (see FEC Exh. at 3 (“We believe it is important to see our 

case against the FEC through . . . .”)), but the group made clear to both the public 

and the district court that Unity08 would not become active again unless it were 

granted relief in time for the 2008 election. (See Mot. for Expedited Consideration 

¶ 4 (“A favorable ruling in the near term may make it possible to revive Unity08 . . 

. . If such a revival is possible, it needs to be undertaken immediately if Unity08 is 

 

during 2007 and early 2008. See

http://forms.irs.gov/politicalOrgsSearch/search/basicSearch.jsp (Unity08’s filings 

available under employer number 20-4931560). 

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11

to return to being a viable and effective organization.”) (emphasis added); see also

FEC Exh. at 3 (stating that Unity08 would be “ready to gear up if (when) we win 

our case and political circumstances warrant later this spring”) (emphasis added).) 

Since April 2008, according to its IRS filings (see supra p. 9 n.3), Unity08 has 

raised no funds and has spent a total of $97. 

 On October 16, 2008, the district court granted summary judgment to the 

Commission. (J.A. 548-67.) Although the court agreed with Unity08 that AO 

2006-20 was “final agency action” under the APA (J.A. 558-60), the court rejected 

Unity08’s claim that the advisory opinion was contrary to law. First, as to 

Unity08’s argument that its ballot-access spending was not an “expenditure,” the 

court held that “allowing the eventual Unity08 nominees to use Unity08’s ballot 

access may be deemed an expenditure by the FEC . . . because ballot access will 

give between $10 million and $12 million worth of support to the nominees.” (J.A. 

564; see also id. at 564-65 (“[T]he appearance of quid pro quo corruption is 

present when a candidate receives . . . a ten to twelve million dollar benefit — 

solely due to the efforts of Unity08.”).) Second, the court rejected Unity08’s 

assertion that its major purpose was anything other than the nomination and 

election of a candidate, noting that Unity08 intended to provide its ballot access to 

the specific individuals who would be chosen during the group’s nominating 

convention. (J.A. 566.) The district court therefore granted summary judgment to 

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12

the Commission, finding AO 2006-20 not contrary to FECA or the Constitution. 

(See J.A. 566-67.) 

SUMMARY OF ARGUMENT 

The Court lacks jurisdiction over this appeal because it is moot. Unity08 has 

ceased its activities and has no intention of restarting them regardless of the 

outcome of this case. Indeed, the organization’s goals expired with the 2008 

election, and there is no possible result here that could affect or influence that 

election. Because federal courts do not have jurisdiction to decide cases lacking 

concrete significance to the parties, this appeal should be dismissed. 

Even if the Court were to have jurisdiction, FECA precludes judicial review 

of the Commission’s advisory opinions. The structure of the Act demonstrates 

clear congressional intent not to permit entities to circumvent FECA’s extensive 

administrative enforcement mechanism by filing a civil action to review an 

advisory opinion. Furthermore, AO 2006-20 is not “final agency action” 

reviewable under the APA: The Commission’s advisory opinion did not determine 

Unity08’s rights or responsibilities, nor did it subject Unity08 to any governmental 

action. AO 2006-20, which only opines on the legality of proposed future activity, 

does not predetermine any decision the Commission might make in the 

enforcement context and is not the culmination of the agency’s decisionmaking as 

to Unity08’s actual activities. 

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13

Even if AO 2006-20 were reviewable, it would be a reasonable construction 

of FECA. The primary question presented to the Commission in Unity08’s AOR 

was whether spending millions of dollars for ballot access for a presidential ticket 

would be activity “for the purpose of influencing” the presidential election, and 

therefore an “expenditure” under FECA. Because Unity08’s ballot-access 

spending was for the purpose not only of influencing — but actually winning — 

the presidency in 2008, the Commission’s interpretation of the statute (which is 

entitled to Chevron deference) deeming such spending to be an “expenditure” was 

not arbitrary, capricious, or contrary to law. 

Finally, there has never been any genuine dispute about the fact that Unity08 

— whose avowed goal was to nominate and elect the next President of the United 

States — meets Buckley’s major purpose test. In seeking to avoid regulation as a 

political committee, Unity08 conflates distinct campaign finance doctrines and 

misreads Buckley, which held that an organization can meet the major purpose test 

even if it has not yet chosen its nominees. Unity08 is materially indistinguishable 

from the thousands of other political committees to which FECA is constitutionally 

applied during every election cycle. 

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ARGUMENT 

I. THIS CASE IS MOOT 

The Court lacks jurisdiction over this appeal because Unity08’s permanent 

cessation of activity has rendered the case moot. Under Article III of the 

Constitution, the judicial power of the federal courts extends only to “cases” and 

“controversies.” See U.S. CONST. art. III, § 2. The party invoking a court’s 

jurisdiction has the burden of showing that its action presents a case or 

controversy. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 

104 (1998); DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 n.3 (2006) 

(“[B]ecause we presume that federal courts lack jurisdiction unless the contrary 

appears affirmatively from the record, the party asserting federal jurisdiction when 

it is challenged has the burden of establishing it.”) (internal citation, quotation 

marks, and alterations omitted). 

“To qualify as a case fit for federal-court adjudication, ‘an actual 

controversy must be extant at all stages of review, not merely at the time the 

complaint is filed.’” Davis v. FEC, 128 S. Ct. 2759, 2768 (2008) (quoting 

Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)); Lewis v. Cont’l 

Bank Corp., 494 U.S. 472, 477 (1990) (“This case-or-controversy requirement 

subsists through all stages of federal judicial proceedings, trial and appellate.”). 

Thus, an “actual controversy” ceases and a case becomes moot if events transpire 

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15

such that the party seeking the court’s ruling cannot demonstrate that it will be 

affected by the outcome of the case. See 21st Century Telesis Joint Venture v. 

FCC, 318 F.3d 192, 198 (D.C. Cir. 2003) (citing Clarke v. United States, 915 F.2d 

699, 701 (D.C. Cir. 1990)) (holding challenge to license cancelation moot where 

challenger had shown no intention of seeking license again); Liu v. INS, 274 F.3d 

533, 535 (D.C. Cir. 2001) (citing Am. Family Life Assurance Co. v. FCC, 129 F.3d 

625, 628 (D.C. Cir. 1997)) (holding challenge to agency’s decision regarding work 

visa moot where challenger could not show that receiving visa would affect his 

employment). The fact that a case may raise constitutional issues does not change 

this analysis: The party bringing the challenge still must show that it has a 

“specific live grievance” against the government’s action; the mere possibility of 

future grievances — or grievances that might be brought by other similarly situated 

entities — does not make a moot case justiciable. See Lewis, 494 U.S. at 479-80 

(“[T]he Article III question is not whether the requested relief would be nugatory 

as to the world at large, but whether [the current party] has a stake in that relief.”). 

No live controversy remains in this case. From its inception, Unity08 

specifically disclaimed any intention of participating in any election other than the 

2008 presidential race. See supra p. 7. It also consistently disavowed any desire to 

become a permanent political party, see id., and noted, when it closed its doors 

almost eighteen months ago, that it would restart its activities only if it were to be 

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afforded relief in time to influence the 2008 campaign. See supra pp. 10-11. 

Because the 2008 elections have passed, and because there is no evidence that 

Unity08 intends — regardless of the outcome of this appeal — to conduct any 

further activity after this lawsuit is concluded, the effect of Unity08’s victory or 

defeat in court would be purely symbolic. See City News & Novelty, Inc. v. City of 

Waukesha, 531 U.S. 278, 283-85 (2001) (dismissing First Amendment challenge 

as moot where appellant went out of business during pendency of appeal and had 

no evidence of plans to reopen); Munsell v. Dep’t of Agric., 509 F.3d 572, 581-

82 (D.C. Cir. 2007) (“[A] controversy may become moot if a regulated business 

challenges a government regulatory policy or action and then terminates its 

operation during the pendency of the litigation.”) (citing City News). 

The district court held that Unity08 had a live grievance against the 

Commission at the time the complaint was filed because AO 2006-20 prevented 

Unity08 from taking certain loans from its principals. (See J.A. 553-57.)4

 But that 

rationale cannot be the basis for jurisdiction in this Court, as Unity08 would have 

no reason to take any such loans now, regardless of AO 2006-20. To the contrary, 

Unity08 ceased its operations in January 2008, and it engaged in no electoral 

activity leading up to the 2008 general election, despite having the legal ability at 

 

4

 This case was not moot when the district court ruled because Unity08 had 

asserted that it might recommence its activities if it were to win its lawsuit prior to 

the 2008 election. See supra pp. 10-11. Thus, the case did not become moot until 

the election passed, which was several weeks after the court issued its opinion. 

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17

all times to raise funds in increments of $5,000 per donor per year (as it had done 

during 2006 and 2007). Nor has Unity08 conducted any activity since the 2008 

election: It has not posted a word on its website or raised a cent. Because there is 

nothing in the factual record indicating how Unity08’s status as a political 

committee has any continuing significance to the appellant, this appeal is moot. 

This case does not qualify for the mootness exception for cases that are 

capable of repetition yet evading review. “That ‘exception applies where (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.’” Davis, 128 S. Ct. at 2769 (quoting 

FEC v. Wisc. Right to Life, Inc., 127 S. Ct. 2652, 2662 (2007)) (emphasis added). 

Neither of these prongs is satisfied here. First, the “duration” requirement applies 

to situations where “the challenged activity is by its very nature short in duration,

so that it could not, or probably would not, be able to be adjudicated while fully 

live.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 633 (D.C. Cir. 2002) 

(internal quotation marks omitted); cf. Fund For Animals, Inc. v. Hogan, 428 F.3d 

1059, 1064 (D.C. Cir. 2005) (“As a general rule, two years is enough time for a 

dispute to be litigated.”); McBryde v. Comm. to Review Circuit Council Conduct & 

Disability Orders, 264 F.3d 52, 53-56 (D.C. Cir. 2001) (noting that Supreme Court 

and this Court generally consider periods “of less than two years’ duration” to 

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18

evade review). Because a presidential election cycle is four years long, there is no 

reason that litigation regarding any such cycle “could not, or probably would not” 

be litigated within the entirety of that cycle.5

Second, there is no “reasonable expectation” that Unity08 will litigate the 

issues in this lawsuit again in the future, given that the group’s entire reason for 

being was the 2008 election. See Armstrong v. FAA, 515 F.3d 1294, 1296 (D.C. 

Cir. 2008) (case was moot where plaintiff failed to show that it was “at all likely” 

that he would again undertake action causing him to be subject to agency action) 

(citing PETA, Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005));6

Pharmachemie, 276 F.3d at 633-34 (although future litigation between same 

parties was possible, extensive series of events that would have to occur for such 

litigation to become reality was too speculative to confer jurisdiction).7

 

5

 Even though this case was filed approximately halfway through a 

presidential election cycle, the instant appeal likely would have been decided 

before the 2008 presidential election if the court below had issued its ruling shortly 

after summary judgment briefing was completed in May 2007. 

6

 In the recent campaign finance cases found by the Supreme Court to be 

capable of repetition yet evading review, the factual record had demonstrated the 

plaintiffs’ intent to repeat their conduct in future election cycles. See Davis, 128 

S. Ct. at 2769 (no mootness where plaintiff political candidate had run for office 

multiple times and planned to do so again); Wisc. Right to Life, 127 S. Ct. at 2652 

(no mootness where plaintiff advertiser “planned on running materially similar 

future . . . ads”) (internal quotation marks omitted). Unity08 has made no 

equivalent demonstration. 

7

 In Pharmachemie, the Court also noted that the interests of entities that had 

been parties to the lower court proceeding but were not parties to the appeal were 

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Moreover, Unity08’s challenge to the Commission’s interpretation of the 

statutory term “expenditure” would not “evade review” because Unity08 could not 

be subject to any adverse action arising from that interpretation unless the 

Commission were to begin an enforcement proceeding under 2 U.S.C. § 437g(a). 

In that event, Unity08 would have multiple opportunities to assert its objections 

both before the Commission and, if necessary, in court. See infra pp. 24-25 

(discussing Commission’s statutory enforcement procedures). As the Supreme 

Court has noted, the availability of such a subsequent forum to raise a claim is fatal 

to the argument that the claim would “evade review” if dismissed. See City of Los 

Angeles v. Lyons, 461 U.S. 95, 109 (1983) (dismissal of plaintiff’s suit for 

injunctive relief would not cause underlying constitutional challenge to “‘evade’ 

review” because that challenge “remain[ed] to be litigated in [plaintiff’s] suit for 

damages”); see also PETA, 396 F.3d at 425 (moot First Amendment challenge 

would not “evade review” because challenger could raise its arguments in 

subsequent litigation if necessary).

In sum, because the record does not demonstrate that Unity08 has either the 

intent or the ability to recommence its electoral activities after this case is 

concluded, the Court lacks jurisdiction over this moot appeal. 

 

irrelevant for determining whether the case was moot or capable of repetition. See 

276 F.3d at 633. Thus, Unity08 cannot rely on the interests of the individual 

plaintiffs below, none of whom chose to join this appeal. 

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20

II. THE COMMISSION’S ADVISORY OPINIONS ARE NOT SUBJECT 

TO DIRECT JUDICIAL REVIEW, AND AO 2006-20 IS NOT FINAL 

AGENCY ACTION UNDER THE APA 

 Even if this appeal were not moot, Unity08’s challenge to AO 2006-20 

would fail because there is no statutory basis for direct judicial review of that 

advisory opinion. In any event, AO 2006-20 is not “final agency action” under the 

APA because it is not a final determination of Unity08’s rights or responsibilities. 

A. FECA Precludes Direct Judicial Review of AO 2006-20 

 “[B]efore any review [under the APA] may be had, a party must . . . clear 

the hurdle of § 701(a),” Heckler v. Chaney, 470 U.S. 821, 828 (1985), which states 

that the APA’s judicial review provisions do not apply if the relevant statutes 

“preclude judicial review.” 5 U.S.C. § 701(a)(1). Here, the structure and 

legislative history of FECA show that Congress did not intend to permit direct 

review of FEC advisory opinions. See Block v. Cmty. Nutrition Inst., 467 U.S. 

340, 345, 349 (1984) (preclusion “is determined not only from [a statute’s] express 

language, but also from the structure of the statutory scheme, its objectives, its 

legislative history, and the nature of the administrative action involved”); United 

States v. Fausto, 484 U.S. 439, 449-52 (1988). As the Second Circuit has noted, 

“[n]othing in the legislative history of section 437f indicates that Congress thought 

advisory opinions would be reviewable.” U.S. Defense Comm. v. FEC, 861 F.2d 

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21

765, 771 (2d Cir. 1988) (no jurisdiction over challenge to advisory opinion due to 

lack of ripeness). 

Congress set out an unusually elaborate framework for the Commission’s 

enforcement of FECA, i.e., a well-defined series of processes — requiring multiple 

majority votes of the Commission — that must be completed before an 

administrative proceeding becomes the subject of a court action. See 2 U.S.C. 

§ 437g(a). These respondent-protective procedures prevent a party from leaping 

directly from an administrative action to the judiciary. See In re Carter-Mondale 

Reelection Comm., Inc., 642 F.2d 538, 542-43, 545 (D.C. Cir. 1980) (FECAmandated enforcement mechanism precluded filing of court action until statutory 

process was complete); cf. Galliano v. U.S. Postal Service, 836 F.2d 1362, 1370 

(D.C. Cir. 1988) (Postal Service could not enforce FECA provisions where there 

was “gap” between Postal Service’s procedures and FEC’s procedures). 

FECA provides a private right of action against the Commission in only two 

specific instances. See 2 U.S.C. § 437g(a)(8) (suits by administrative 

complainants), 437g(a)(4)(C)(iii) (suits regarding administrative fines). There is 

no equivalent provision authorizing judicial review of the Commission’s advisory 

opinions. Congress’s decision not to include in the detailed procedures of FECA 

any provision authorizing judicial review of advisory opinions thus evidences 

congressional intent to preclude direct judicial review of those opinions. See, e.g., 

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Fausto, 484 U.S. at 448-52 (finding preclusion where statute devoted substantial 

“attention” to rights of certain employees but did not include those employees in 

judicial review provision); Block, 467 U.S. at 346-47; United States v. Erika, Inc., 

456 U.S. 201, 207-08 (1982) (availability of review under Medicare Part A 

demonstrated intent to preclude review under Part B). 

Thus, nothing in FECA or its legislative history suggests that Congress 

intended to permit organizations to circumvent the “first-amendment-prompted 

arrangements Congress devised for FECA enforcement actions,” Galliano, 836 

F.2d at 1370, by seeking an advisory opinion and then requesting judicial 

resolution if the answer is unfavorable. Cf. C&E Services, Inc. v. D.C. Water and 

Sewer Auth., 310 F.3d 197, 201-02 (D.C. Cir. 2002) (upholding dismissal where 

lawsuit “would constitute an end-run around Congress’s clear intent that the 

[agency] interpret and enforce the [statute] in the first instance”); Sturm, Ruger & 

Co. v. Chao, 300 F.3d 867, 874-75 (D.C. Cir. 2002) (holding that statute precluded 

suit until enforcement action was actually brought and concluded). This Court 

should therefore reject Unity08’s attempt to obtain direct judicial review of AO 

2006-20. 

B. AO 2006-20 Is Not Reviewable Under the APA Because It Is Not 

“Final Agency Action” 

 Even if FECA did not preclude judicial review of the Commission’s 

advisory opinions, Unity08’s challenge to AO 2006-20 would fail because that 

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advisory opinion is not “final agency action” under the APA. See Lujan v. Nat’l 

Wildlife Fed’n, 497 U.S. 871, 882 (1990) (“When . . . review is sought . . . only 

under the general review provisions of the APA, the ‘agency action’ in question 

must be ‘final agency action.’”) (quoting 5 U.S.C. § 704). For agency action to be 

“final” and reviewable under the APA, it must “‘mark the consummation of the 

agency’s decisionmaking process’ and either determine ‘rights or obligations’ or 

result in ‘legal consequences.’” Ctr. for Auto Safety v. Nat’l Highway Traffic 

Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006) (emphasis in original; quoting 

Bennett v. Spear, 520 U.S. 154, 178 (1997)). 

 Although the issuance of an advisory opinion marks the conclusion of 

FECA’s advisory opinion process, a negative opinion — that is, one that opines 

that the proposed behavior is unlawful or must conform to unwanted restrictions — 

neither determines “rights or obligations” nor results in “legal consequences.” 

Under 2 U.S.C. § 437f, an advisory opinion is binding only in the sense that any 

person involved in the specific activity discussed in the opinion (or in materially 

indistinguishable activity) may rely on the opinion as a defense to a charge of 

violating FECA. See 2 U.S.C. § 437f(c)(1)(B),(2). Thus, if the opinion advises a 

requestor that its proposed actions satisfy the Act’s requirements, and the requestor 

relies in good faith on that advice, the requestor’s reliance protects it from 

sanctions for its actions. See id. In contrast, if the opinion advises that the 

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24

proposed actions would run afoul of FECA, the opinion does not bind the 

Commission or the requestor. See U.S. Defense Comm., 861 F.2d at 771 (“[T]o the 

extent that the advisory opinion does not affirmatively approve a proposed 

transaction or activity, it is binding on no one — not the Commission, the 

requesting party, or third parties.”). 

 Because it is not binding, a negative advisory opinion makes no final 

determination of any “rights or obligations” nor changes any legal relationships. 

See 2 U.S.C. § 437f(b) (providing that Commission may propose “rule of law” 

“only as a rule or regulation”); see also Ctr. for Auto Safety, 452 F.3d at 811 (no 

final agency action where official who issued challenged statement lacked 

authority to make legally binding determinations). When the Commission issues 

such an opinion, it does not bind itself to investigate the requestor’s actions in the 

future or to bring an enforcement action against that person. Rather, the 

Commission retains the discretion to review the activity later, change its view, find 

no violation, or exercise its prosecutorial discretion. Moreover, even if the 

Commission were to adhere to its advisory opinion in an enforcement proceeding, 

it must attempt to resolve alleged violations of the law through conciliation; it has 

no authority to make binding adjudications of liability for violations of the statute.8

 

 

8

 The only exception, not relevant here, concerns the Commission’s 

administrative fines program, 2 U.S.C. § 437g(a)(4), under which the Commission 

informally adjudicates fines for certain reporting violations. 

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If the Commission cannot successfully conciliate, its enforcement authority is 

limited to filing a federal court complaint alleging a violation and litigating de 

novo whether the defendant violated the Act. Only a federal court can issue a final, 

legally binding decision that determines liability under the Act. See 2 U.S.C. 

§ 437g(a)(6). At each stage of this process, the requestor retains its full range of 

rights to defend itself before the Commission, see 2 U.S.C. § 437g(a)(1)-(5), and if 

an enforcement suit is filed, in federal court, see 2 U.S.C. § 437g(a)(6).9

 Thus, as 

the Second Circuit explained in describing a negative advisory opinion, it is 

final only in a “tautological sense.” Indeed, if a person 

proceeded to act contrary to an FEC advisory opinion, she 

would be entitled to all of the enforcement protections, 

including conciliation, conference, persuasion and the like, 

provided under 2 U.S.C. § 437g. How may we call an advisory 

opinion “final” if the FEC might later be convinced to change 

its mind and agree to a compromise? 

U.S. Defense Comm., 861 F.2d at 772 (quoting ITT v. Local 134, Int’l Bhd. of Elec. 

Workers, 419 U.S. 428, 443-44 (1975)); see generally id. at 770-72 (examining 

FECA’s legislative history and AO, enforcement, and conciliation provisions, and 

holding that direct review of AOs would lead to duplicative and premature 

litigation inconsistent with APA’s finality requirement). 

 Unity08’s AOR asked the Commission to opine that Unity08 would not 

become a political committee under FECA, such that the group could receive 

 

9

 Stated in terms of the APA, an advisory opinion is therefore not an “agency 

action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 

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26

larger contributions than political committees are permitted to receive. Relying on 

the facts supplied by Unity08, the Commission opined that the organization would 

become a political committee if it made expenditures of more than $1,000 to gain 

ballot access. Thus, AO 2006-20 is a negative advisory opinion, which neither 

approves any proposed conduct nor binds the Commission to begin a subsequent 

enforcement proceeding.10 Because AO 2006-20 does not mean that Unity08 

would be found in any future proceeding to have violated the law — or that any 

such proceeding will ever occur — the AO does not conclusively determine 

Unity08’s legal rights or obligations, and it is not final agency action. See Natural 

Res. Defense Council v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009) (finding no final 

agency action where “[h]ow [the agency] will use or rely on or interpret what it 

said in the [challenged action] is uncertain. We can see no significant hardship to 

the parties from waiting for a real case to emerge.”) (citation omitted); Fund for 

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C. Cir. 2006) 

(noting “this court’s consistent refusal to review agency orders ‘that do[ ] not 

[themselves] adversely affect complainant but only affect[ ] his rights adversely on 

the contingency of future administrative action’”) (quoting DRG Funding Corp. v. 

 

10 In the district court, the parties disputed whether AO 2006-20 had any 

practical consequences for Unity08 (see J.A. 559 (district court’s holding that 

Unity08 would have received certain large contributions but for the AO)); even if it 

did, however, “this does not demonstrate that the [agency’s action] ha[d] had legal 

consequences” sufficient to meet the standard for “final agency action” under the 

APA. Ctr. for Auto Safety, 452 F.3d at 811 (emphasis in original). 

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27

Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996)); Nevada v. 

Dep’t of Energy, 457 F.3d 78, 85 (D.C. Cir. 2006) (finding no final agency action 

where application of agency’s plan “‘rest[ed] upon contingent future events that 

may not occur as anticipated, or indeed may not occur at all’”) (quoting Texas v. 

United States, 523 U.S. 296, 300 (1998)). 

III. ADVISORY OPINION 2006-20 IS A REASONABLE 

CONSTRUCTION OF FECA 

The Commission concluded in Advisory Opinion 2006-20 that Unity08’s 

planned efforts to achieve ballot access would result in expenditures that would 

require Unity08 to register and report as a political committee. The Commission’s 

conclusions were consistent with its own precedent, as well as with the Supreme 

Court’s major purpose test. Because the Commission reasonably found, in a 

construction entitled to Chevron deference, that Unity08’s ballot-access 

disbursements would be “expenditures” under FECA, and because Unity08 

conceded that its major purpose was to nominate and elect candidates for President 

and Vice President in 2008, AO 2006-20 was not arbitrary, capricious, or contrary 

to law. 

A. Standard of Review 

The Commission’s advisory opinions are entitled to deference under 

Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). 

See FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185-86 (D.C. Cir. 2001); see 

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also FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) 

(“[T]he Commission is precisely the type of agency to which deference should 

presumptively be afforded.”); United States v. Kanchanalak, 192 F.3d 1037, 1049 

(D.C. Cir. 1999) (“[T]his court has noted in several opinions that . . . . ‘the FEC’s 

interpretation of [FECA] should be accorded considerable deference.’”) (quoting 

Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986), and collecting cases). 

Under the “familiar two-step Chevron framework,” the court “first ask[s] 

‘whether Congress has directly spoken to the precise question at issue’ . . . . If the 

‘statute is silent or ambiguous with respect to the specific issue,’ however, [the 

court] move[s] to the second step and defer[s] to the agency’s interpretation as long 

as it is ‘based on a permissible construction of the statute.’” Rhinelander Paper 

Co. v. FERC, 405 F.3d 1, 6 (D.C. Cir. 2005) (quoting Noramco of Del., Inc. v. 

DEA, 375 F.3d 1148, 1152 (D.C. Cir. 2004)). The possibility that other 

interpretations of the statute might be reasonable is irrelevant: “[U]nder Chevron, 

courts are bound to uphold an agency interpretation as long as it is reasonable — 

regardless whether there may be other reasonable, or even more reasonable, 

views.” Nat’l Rifle Ass’n, 254 F.3d at 187 (quoting Serono Labs, Inc. v. Shalala, 

158 F.3d 1313, 1321 (D.C. Cir. 1998)). 

Because FECA is silent as to whether spending to gain ballot access is an 

“expenditure,” this Court reviews the Commission’s construction of that term in 

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AO 2006-20 under the deferential Chevron standard. The question of whether 

regulating Unity08 as a political committee would be constitutional under 

Buckley’s major purpose test is a matter of law that this Court reviews de novo. 

B. The Commission Reasonably Determined that Spending to Gain 

Ballot Access Is an “Expenditure” Under FECA 

 Under FECA, an “expenditure” includes “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by 

any person for the purpose of influencing any election for Federal office.” 

2 U.S.C. § 431(9)(A)(i). In light of this expansive definition and the facts 

presented by Unity08 when it requested the advisory opinion, the Commission 

reasonably concluded in AO 2006-20 that “[m]onies spent by Unity08 to obtain 

ballot access through petition drives will be expenditures.” (J.A. 300.) 

In its advisory opinion request, Unity08 stated that it planned to qualify for 

ballot access in certain key states “through petitions and, if required, litigation.” 

(J.A. 281.) Unity08 anticipated that it would spend $10 million to $12 million to 

complete this activity. (J.A. 549; Unity08 Br. 7-8.) While it was obtaining ballot 

access, Unity08 also intended to nominate its candidates for President and Vice 

President, and then Unity08 would give them the ballot position that the group had 

spent millions of dollars obtaining. (See J.A. 198-99.) Unity08’s avowed “Goal 

One” in conducting this activity, of course, was “to elect [the] President and Vice 

President of the United States in 2008.” (J.A. 280; see supra p. 6.) Not only was 

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ballot access a prerequisite for that goal, but Unity08 also planned to use its ballot 

access to entice established candidates — who might otherwise have been leery of 

abandoning their parties — onto the Unity08 ticket. See supra p. 9. Gaining ballot 

access thereby served to increase the chances both of attracting a viable candidate 

and of that candidate’s becoming the next President of the United States. Thus, on 

its face, Unity08’s ballot-access spending was “for the purpose of influencing an[ ] 

election for Federal office,” 2 U.S.C. § 431(9)(A)(i), i.e., the presidency. Given 

these facts, even if the Commission had decided AO 2006-20 based on no 

authority beyond the text of the statute itself, that decision would have been a 

reasonable construction of FECA. 

The Commission’s construction was bolstered, however, by the same result 

it had reached in two previous advisory opinions. (See J.A. 301.) In Advisory 

Opinion 1994-05, the requestor stated that he intended to “obtain ballot access in 

the general election by gathering the ‘nominating signatures’ of qualified electors,” 

and he asked the Commission to opine on when he would be considered to have 

made $5,000 in expenditures (which is the statutory threshold for “candidate” 

status under FECA). (See J.A. 61.) The Commission responded that the requestor 

would become a “candidate” when he spent $5,000 “to influence [the] election . . . 

includ[ing] amounts you spend . . . seeking signatures on nomination petitions.” 

(J.A. 62, 64 n.1.) In Advisory Opinion 1984-11, the Commission similarly 

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observed that the requestor, who sought to be nominated as a third-party candidate 

for President, would be making “expenditures . . . to collect petition signatures for 

the general election ballot.” (J.A. 69.) Thus, in deciding that Unity08’s spending 

to gain ballot access would be an expenditure under FECA, the Commission 

adhered to the reasonable view it has held for more than two decades. This 

longstanding interpretation is therefore entitled to great deference. Barnhart v. 

Walton, 535 U.S. 212, 220 (2002) (upholding agency’s twenty-year-old statutory 

interpretation and noting that Supreme Court “will normally accord particular 

deference to an agency interpretation of ‘longstanding’ duration”) (citing N. Haven 

Bd. of Ed. v. Bell, 456 U.S. 512, 522 n.12 (1982)); Sec’y of Labor v. Excel Mining, 

LLC, 334 F.3d 1, 7-8 (D.C. Cir. 2003) (“[W]e give weight to the fact that the 

agency that administers the statute . . . has interpreted [it] the same way for more 

than 25 years.”) (citing Barnhart). 

 Unity08 contends that the Commission’s prior advisory opinions are 

inapposite because the requestors in those situations were named candidates, unlike 

Unity08, which had not yet chosen its candidate. (Unity08 Br. 36.) But Unity08’s 

argument is factually incorrect and, in any event, irrelevant. In AO 1994-05, the 

requestor had not become a Senate “candidate” within the meaning of the Act 

because he had not yet met the statutory threshold of expenditures. (See J.A. 

61-62.) To the contrary, his AOR asked the Commission the same question 

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Unity08 presented in AO 2006-20, i.e., whether disbursements for ballot access 

would count as “expenditures” for purposes of meeting a statutory monetary 

threshold. (See J.A. 62 & 64 n.1 (“The question of whether you are a candidate 

under the Act . . . depends upon the amount of financial activity by you . . . .”).) In 

response, AO 1994-05 explicitly found that disbursements for ballot access would 

be treated as “expenditures” before the requestor had become a “candidate,” and 

those expenditures would count towards the statutory requirement to reach 

candidate status. Similarly, in AO 1984-11, the requestor sought the 

Commission’s opinion on when he would become eligible for certain matching 

funds available to candidates for President, which the Commission said would be 

available when his expenditures — including those for ballot access — hit the 

statutory threshold. (See J.A. 69.) Neither of these advisory opinions suggested 

that expenses to achieve ballot access were only “expenditures” if conducted by a 

requestor who had already qualified as a candidate or by a political committee that 

had already chosen its nominees. Thus, the Commission’s opinion in AO 2006-20 

that Unity08’s ballot-access expenses would count as “expenditures” towards the 

$1,000 threshold necessary for political committee status was entirely consistent 

with the Commission’s own prior decisions. 

Unity08 also argues that the Commission erred in finding that spending to 

achieve ballot access was an expenditure because, according to Unity08, the 

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Supreme Court in Buckley limited the definition of “expenditure” to spending that 

supports a “clearly identified” candidate. (Unity08 Br. 35-36.) This simply 

misunderstands Buckley. 

 The “clearly identified” language on which Unity08 relies was part of the 

Supreme Court’s test for “express advocacy,” which has no bearing on this case. 

The express advocacy standard arose out of the Court’s concern that vagueness in 

FECA’s original statutory definition of expenditures might lead to regulation of 

certain communications regarding issues of public concern financed by groups that 

were not political committees. See Buckley, 424 U.S. at 79-80 (noting that statute 

might encompass “issue discussion” by non-political committees); see also id. at 

42-43 (discussing how vagueness might “compel[ ] the speaker to hedge and 

trim”); McConnell v. FEC, 540 U.S. 93, 190-91 (2003) (discussing Buckley). The 

Court therefore held that when funds are spent — by a group “other than a political 

committee” — to finance public communications, those funds are regulable as 

expenditures only when they “expressly advocate the election or defeat of a clearly 

identified candidate.” Buckley, 424 U.S. at 79-80. But Buckley explicitly held that 

this narrowing construction of “expenditure” was unnecessary for political 

committees because their spending “can be assumed to fall within the core area 

sought to be addressed by Congress. They are, by definition, campaign related.” 

Id. at 79; see also Shays v. FEC, 511 F. Supp. 2d 19, 27 (D.D.C. 2007) (“[T]he 

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Court imposed the narrowing gloss of express advocacy on the term ‘expenditure’ 

only with regard to groups other than [political committees].”) (citing Buckley, 424 

U.S. at 80). In other words, because a political committee is, “by definition,” an 

organization whose major purpose is the nomination or election of a candidate, see 

infra pp. 35-37, the law may constitutionally “assume[ ]” that funds spent by such 

committees are spent “for the purpose of influencing” an election. 

 Furthermore, Unity08’s proposed spending on ballot access was not even in 

the category of spending about which Buckley was concerned — i.e., public 

communications — and Unity08 cites no authority holding that the “express 

advocacy” standard applies to the financing of activities other than such 

communications. Indeed, given that it would be nonsensical to analyze whether 

non-communicative spending — such as employee payroll and other expenses for 

distributing, collecting, and submitting ballot-access petitions — “expressly 

advocates” for or against a candidate, Unity08’s novel attempt to graft the express 

advocacy standard onto the entirety of the “expenditure” definition must fail. 

In sum, obtaining a place on the ballot as a choice for voters in a particular 

election is unambiguously an act whose purpose is to influence that election. The 

Commission’s interpretation of 2 U.S.C. § 431(9) was reasonable.

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C. The Commission and the District Court Correctly Found that 

Unity08’s Major Purpose Was to Nominate or Elect a Federal 

Candidate 

The Commission opined in AO 2006-20 that Unity08 would satisfy 

Buckley’s major purpose test because Unity08’s major purpose was to elect the 

next President and Vice President of the United States. (J.A. 58.) Unity08 has 

never disputed that this was, in fact, its primary purpose. Nonetheless, Unity08 

attempts to cobble together an entirely new constitutional doctrine regarding 

political committees — a doctrine under which the First Amendment demands that 

any group devoted to nominating and electing a federal official must be free to 

receive massive (i.e., unlimited) donations until that group has officially chosen its 

nominee, at which point the group must be permitted to transfer to the nominee all 

the goods and services that the group has acquired with its unlimited contributions. 

This construct has no basis in the Constitution, law, or logic. 

1. Under the Plain Holding of Buckley, Unity08 Meets the 

Major Purpose Test 

The only constitutional test relevant here is the major purpose test, which the 

Court adopted in Buckley to limit FECA’s definition of “political committee” to 

avoid improper regulation of “groups engaged purely in issue discussion.” 424 

U.S. at 79. Construing FECA’s statutory definition of political committee 

narrowly to avoid this potential constitutional problem, the Court held that the 

statute “need only encompass organizations that are under the control of a 

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candidate or the major purpose of which is the nomination or election of a 

candidate.” Id. (emphasis added); see also FEC v. Mass. Citizens For Life, Inc., 

479 U.S. 238, 252 n.6 (1986) (“MCFL”); McConnell, 540 U.S. at 170 n.64. 

An organization’s major purpose may be established by, inter alia, its public 

statements of purpose and its organic documents. See FEC v. Malenick, 310 F. 

Supp. 2d 230, 234-37 (D.D.C. 2004) (considering organization’s statements in 

brochures and fax alerts sent to potential and actual contributors); FEC v. GOPAC, 

Inc., 917 F. Supp. 851, 859, 864-66 (D.D.C. 1996); see generally Political 

Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 

5603-05 (Feb. 7, 2007) (explaining Commission’s methodology of determining 

political committee status). Virtually every statement and document in the record 

of this case confirms what Unity08 told the Commission in its AOR: Unity08’s 

“Goal One [was] to elect a Unity Ticket for President and Vice President of the 

United States in 2008.” (J.A. 157, 197 (emphasis in original); see also J.A. 12 ¶ 11 

(defining “Unity08’s . . . goal as getting our country back on track by nominating 

and electing a Unity Ticket in the ’08 presidential election”) (internal quotation 

marks omitted); supra p. 6 (noting Unity08’s other statements of its electoral goal 

in other public statements).) It is difficult to imagine a more clear articulation of a 

stated purpose to nominate and elect a federal candidate. Thus, as the Commission 

correctly noted in AO 2006-20, Unity08’s “self-proclaimed major purpose is the 

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nomination and the election of a presidential candidate and a vice-presidential 

candidate.” (J.A. 58.) 

Because Unity08 has never claimed (nor could it plausibly do so) that it was 

a group “engaged purely in issue discussion,” Buckley, 424 U.S. at 79, the 

vagueness concerns the Court raised in Buckley concerning pure issue advocacy 

groups are simply inapplicable here. Unity08’s statement that it was “[l]ike a 

traditional ‘issue’ group” because it was “designed to avoid entanglement with the 

seamier elements of electoral politics” (Unity08 Br. 32 (emphasis added)) is a nonsequitur: The Court’s distinction between groups engaged in issue advocacy 

versus campaign activity does not turn on how “seamy” their respective practices 

are. In any event, Unity08 vehemently denied that its goal was simply to affect the 

public discourse surrounding the election: “I’ll say it a thousand times, (and have), 

we plan to elect this ticket. . . . We are playing to win.” (J.A. 486 (statement of 

Unity08 co-founder Jerry Rafshoon).) 

2. The Major Purpose Test Does Not Apply Only to Groups 

that Have Already Selected Their Candidates 

Failing to avoid regulation under the plain words of the major purpose test, 

Unity08 asserts a panoply of arguments as to why that test should be construed to 

mean something other than what it says. None of these arguments, however, has 

merit. 

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 Unity08’s primary argument, citing FEC v. GOPAC and FEC v. Machinists 

Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), is that the major 

purpose test is satisfied only by a group that intends to nominate or elect a “clearly 

identified” individual for federal office, i.e., that an organization cannot become a 

political committee until it has already identified the specific candidate whom it 

will nominate or support for a federal office. This “clearly identified” criterion, 

however, is not part of the Court’s “major purpose” test; as discussed previously, 

“clearly identified” is part of the “express advocacy” standard that applies only to 

public communications by groups or individuals other than political committees. 

See supra pp. 33-34.11

The cases Unity08 cites do not provide otherwise. In GOPAC, the district 

court held that an organization did not meet the major purpose test where, although 

it hoped to have a long-term effect on congressional elections, the organization 

limited its direct support to state and local candidates and “avoided directly 

supporting federal candidates.” 917 F. Supp. at 857 (emphasis omitted). Thus, 

 

11 Both the Supreme Court and the Commission have concluded that 

candidates identified by party affiliation, office sought, and election cycle (e.g., 

“the Democratic presidential nominee”) are “clearly identified” within the meaning 

of FECA, 2 U.S.C. § 431(18), and the Commission’s regulations. See Buckley, 

424 U.S. at 43-44 n.51; 11 C.F.R. § 100.17; J.A. 519-20 (FEC Advisory Opinion 

2003-23). Because the “Unity08 candidate for President” would be identifiable in 

this manner — and because the Commission’s interpretation of Section 431(18) is 

entitled to Chevron deference — Unity08’s stated purpose of getting its 

presidential candidate elected would satisfy the major purpose test even if that test 

required a “clearly identified” candidate, as Unity08 proposes. 

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

political committee. See id. Unity08’s methods and goals were the antithesis of 

GOPAC’s: Unity08 sought to nominate and elect only the next President and Vice 

President, and it disavowed any interest in influencing state and local elections. 

See supra p. 7. Furthermore, whereas GOPAC provided no direct support to 

federal candidates, Unity08 planned to give its presidential ticket — at a 

minimum12 — a $10 million gift in the form of ballot access. Because GOPAC’s 

major purpose was to support non-federal candidates, the district court’s single 

statement that it would have preferred, as a policy matter, to interpret the major 

purpose test as requiring support for a “particular” federal candidate is dictum. See 

GOPAC, 917 F. Supp. at 861. Despite Unity08’s focus on it, such dictum from a 

nonbinding decision involving a group nothing like Unity08 does not trump 

Buckley’s clear statement of its own major purpose test. 

 Unity08 relies heavily on Machinists to argue that an organization cannot 

become a political committee until it first identifies a specific candidate to support. 

 

12 Unity08 states that it “did not intend to provide financial support to [its] 

nominated candidates.” (Unity08 Br. 9.) But not only did Unity08 intend to give 

its nominees $10 million worth of ballot access, it also planned to “work with” and 

“support” its ticket after the nomination (J.A. 332), including by soliciting its 

members to donate hundreds of millions of dollars directly to the candidates. (J.A. 

503 (“[W]e do plan to ask all Unity08 delegates after they nominate their ticket to 

contribute $100 to the ticket. If we have ten million delegates and if 25% give, 

that will mean a campaign fund of $250,000,000 for the Unity08 ticket . . . .”); see 

also J.A. 464 (referring to “$200,000,000 campaign fund” as incentive for 

candidates to seek Unity08’s nomination).) 

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In Machinists, this Court held that the Commission lacked subject-matter 

jurisdiction to investigate several organizations seeking to encourage, or “draft,” 

Senator Kennedy to become a candidate for President. 655 F.2d at 396. The Court 

determined that the draft groups were not political committees and, therefore, not 

within the Commission’s statutory jurisdiction. But the Court’s analysis relied 

directly on the language from Buckley discussed above and examined whether the 

draft groups’ “major purpose . . . [wa]s the nomination or election of a candidate.” 

Id. at 392 (quoting Buckley, 424 U.S. at 79). The Court determined that the draft 

groups were not organized to nominate or elect Senator Kennedy, but only for the 

limited purpose of “attempt[ing] to convince the voters — or Mr. Kennedy himself 

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

396. Relying on this distinction, the Court concluded that the draft organizations 

did not fall within the Buckley Court’s limited definition of “political committee.” 

Id. 

 Applying the same analysis here only bolsters the conclusion that Unity08 

meets the major purpose test. The uniqueness of a draft group is that, once it 

succeeds or fails in convincing its favored candidate to run, it has exhausted its 

only purpose; a draft group takes no steps to actually “nominate or elect” the 

candidate. In contrast, Unity08’s whole purpose — even if it truly had planned to 

disband immediately after its convention — would still have been at least to 

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nominate its “unity ticket” for federal office. Furthermore, in reality, Unity08 

planned to go well beyond mere nomination by gaining ballot access for the ticket 

and then giving that access away to help the ticket get elected. In short, not only 

did Unity08 disavow any intention “to draft any candidate” (Pls.’ Statement of 

Material Facts as to Which There Is No Genuine Issue in Dispute ¶ 56 (Docket No. 

17)), its actual plan was to conduct the very activities that a draft group, by 

definition, does not do. Under the reasoning of Machinists, Unity08’s activities to 

influence the outcome of the presidential election therefore satisfy the major 

purpose test. 

Finally, Unity08’s argument that a group cannot have the major purpose of 

nominating a candidate until it has already selected its candidate fails as a plain 

matter of logic. The whole point of a nomination process is to identify which 

candidate a organization will support. Thus, no organization that undertakes a 

competitive nomination process could meet the major purpose test if that test 

required the organization to have already selected the “specific individual” it will 

nominate. Indeed, under Unity08’s reasoning, all political parties (which are one 

type of political committee, see 11 C.F.R. § 100.5(e)(4)), including the Democratic 

and Republican parties, would be constitutionally exempt from regulation as 

political committees in each election cycle until they had nominated their 

candidates for federal office. Under such an interpretation, the parties would be 

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free to solicit donations unlimited in amount for most of each election cycle, and 

they would become subject to the statutory contribution limits only for the 

relatively short period between the primary and general elections. Besides being 

illogical and contrary to the plain language of Buckley, Unity08 completely reads 

the term “nomination” out of the major purpose test, which would undo huge 

amounts of political party activity regulation that the Supreme Court has held to be 

constitutional in their entirety. See infra pp. 43-50 (discussing potential for 

corruption under Unity08’s desired system), 50-54 (discussing political party 

regulation).13

3. Unity08’s Interpretation of the Major Purpose Test Would 

Create an Opportunity for Massive Corruption 

 Unity08 argues that, until it has officially selected its presidential nominee, 

Unity08’s activities raise no possibility of actual or apparent corruption sufficient 

to justify regulating the group as a political committee. This argument has no basis 

 

13 Unity08 also cites MCFL for the proposition that the major purpose test is 

limited to groups whose major purpose is to support “a particular candidate.” 

(Unity08 Br. 32.) But neither party in MCFL contended that MCFL was a political 

committee. See 479 U.S. at 252 n.6 (plurality) (noting that “[i]t is undisputed on 

this record” that MCFL does not meet major purpose test). Indeed, the parties 

agreed that MCFL failed the major purpose test because its major purpose was to 

conduct “issue advocacy,” and any electoral activity it engaged in was only a 

minimal aspect of its overall activities. See id.; see also id. at 262 (noting that 

MCFL would become a political committee if its spending on elections were to 

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

campaign activity”). In short, MCFL did nothing to undermine Buckley’s

explanation of the major purpose test. 

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in law and, factually, ignores the Supreme Court’s view of corruption. Unity08 is 

not materially different from other regulated political committees that raise and 

spend millions of dollars to nominate or support their preferred candidates. 

 The main regulation that Unity08 has sought to avoid is FECA’s $5,000 perperson/per-year limit on contributions to political committees.14 2 U.S.C. 

§ 441a(a)(1)(C). There is no dispute as to the constitutionality of that contribution 

limit, which is closely related to the important governmental interest of preventing 

the actual or apparent corruption that arises from unlimited donations to groups 

whose major purpose is federal election activity. See, e.g., McConnell, 540 U.S. at 

143-45; FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 

(2001); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 197-98 (1981) (upholding 

contribution limits as applied to independent political committees); Buckley, 424 

U.S. at 26-28.15 Rather, Unity08 compares itself to two types of groups that are 

 

14 Unity08’s brief erroneously refers at one point to FECA’s “strict fundraising 

and spending restrictions.” (Unity08 Br. 10 (emphasis added).) FECA imposes no 

spending restrictions whatsoever on political committees. See FEC v. NCPAC, 

470 U.S. 480 (1985) (striking down limits on independent expenditures by political 

committees); see also Buckley, 424 U.S. at 39-59 (striking down expenditure limits 

in earlier version of FECA). 

15 This wealth of precedent belies Unity08’s assertions that FECA is “barely” 

or “marginal[ly]” constitutional. (Unity08 Br. 21, 40.) To the extent Unity08 

seeks to imply that the current Supreme Court would not reach the same result as 

the Buckley and McConnell Courts did (see Unity08 Br. 41-42), such speculation is 

irrelevant. Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions 

remain binding precedent until we see fit to reconsider them, regardless of whether 

subsequent cases have raised doubts about their continuing vitality.”); United 

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not subject to the contribution limit because they are not political committees: 

draft groups and ballot-initiative groups. 

 Unity08, of course, is not a draft group, and it possesses none of the 

characteristics that make such groups unique. See supra pp. 38-41. Nor is it a 

ballot-initiative group, which is an organization dedicated to the success or failure 

of an initiative or referendum submitted to a vote by the public. Indeed, a group 

whose primary objective is to nominate and elect the next President and Vice 

President cannot, by definition, be a ballot initiative group, for “[r]eferenda are 

held on issues, not candidates for public office.” First Nat’l Bank of Boston v. 

Bellotti, 435 U.S. 765, 790 (1978). The Supreme Court has held that ballotinitiative organizations are constitutionally exempt from contribution limits 

because their activity has nothing to do with any candidates; a ballot initiative does 

not produce officeholders beholden to the donors who put them in office. See 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 297-98 (1981) 

(distinguishing initiatives from candidate campaigns); Bellotti, 435 U.S. at 790-91. 

Unity08, in contrast, had everything to do with candidates — indeed, its entire 

premise was that the party affiliation of its candidates (i.e., one from each major 

party, or two independents) would present a new and successful alternative to the 

 

States v. Webb, 255 F.3d 890, 897-98 (D.C. Cir. 2001) (“[Defendant] asks us to 

disregard the earlier [Supreme Court] case because he counts five Justices as no 

longer supporting its holding. That, of course, we may not do.”) (citing Agostini v. 

Felton, 521 U.S. 203, 237 (1997)). 

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major party nominees for the presidency. The vast majority of its spending was 

directed towards developing an online system to nominate its choices for President 

and Vice President, gaining ballot access to elect those nominees, and raising 

money to further these efforts. Thus, there is no basis for treating Unity08 like a 

ballot-initiative group for constitutional purposes. 

Unity08 responds by asking rhetorically: “Why would Unity08’s eventual 

candidate feel compelled to perform political favors for a donor who had not 

known which candidate he was supporting . . . ?” (Unity08 Br. 29.) But courts 

have repeatedly recognized actual and apparent corruption that arises from a 

group’s use of massive contributions to influence federal elections. For example, 

in California Medical, the Supreme Court upheld FECA’s $5,000 limit on 

contributions to political committees as a means of preventing the circumvention 

of the limit on contributions to candidates upheld in Buckley, which otherwise 

“could be easily evaded.” Cal. Med., 453 U.S. at 198 (plurality). In doing so, 

California Medical demonstrated that the Court’s broad concept of corruption has 

nothing to do with whether a donation is made for the purpose of supporting or 

opposing a particular candidate. In that case, the appellant organization argued, 

inter alia, that donations earmarked solely for “administrative support” lacked any 

potential to corrupt the political process and that the Act’s $5,000 contribution 

limitation to political committees — the same statute at issue here, 2 U.S.C. 

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§ 441a(a)(1)(C) — was unconstitutional as applied to this type of non-candidatespecific donation. Cal. Med., 453 U.S. at 198 n.19. The Court rejected that 

argument, holding that donations for administrative support were indeed 

contributions under that Act. Id. at 198 n.19, 201. The Court explained at length 

that due to the fungibility of money, it did not matter that a donation was not made 

to support a specific candidate; it could still be converted into a form with 

corruptive potential: 

If unlimited contributions for administrative support are 

permissible, individuals and groups like CMA could completely 

dominate the operations and contribution policies of [other] 

political committees . . . . Moreover, if an individual or 

association was permitted to fund the entire operation of a 

political committee, all moneys solicited by that committee 

could be converted into contributions, the use of which might 

well be dictated by the committee’s main supporter. In this 

manner, political committees would be able to influence the 

electoral process to an extent disproportionate to their public 

support and far greater than the individual or group that 

finances the committee’s operations would be able to do acting 

alone. In so doing, they could corrupt the political process in a 

manner that Congress, through its contribution restrictions, has 

sought to prohibit. 

Id. at 198 n.19.16 

 

16 Justice Blackmun’s concurrence also concluded that contributions to 

political committees could be limited to prevent evasion of the limitations on 

contributions to a candidate or his authorized committee, Cal. Med., 453 U.S. 

at 203, and his concern that such a limit might be problematic if applied to a 

“political committee established for the purpose of making independent 

expenditures,” id., is not relevant here because Unity08 intended to use the 

contributions it received to nominate its own candidates and directly give them $10 

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 This rationale applies precisely to Unity08, given that it planned to become 

the dominant force in the 2008 presidential election. In other words, if the limits 

on contributions to political committees had not applied to Unity08, one wealthy 

individual (or corporation) could have financed the entirety of its operations, 

including its ballot-access efforts. Unity08’s presidential and vice-presidential 

nominees would doubtless have known the identity of the benefactor who made 

their appearance on the ballot possible.17 Indeed, one of the individuals who 

founded Unity08 and planned to finance much of its activity (see J.A. 35 ¶ 64) was 

also the person who met with potential candidates to convince them that they 

should seek to be on Unity08’s ticket because it would give them ballot access. 

(See J.A. 321 (discussing briefings of candidates); J.A. 464 (listing, as reason for 

candidates to seek Unity08 nomination, “Ballot Access in all 50 states”).) 

Unity08’s ballot-access efforts would have been particularly valuable — and 

therefore gratitude-inducing — to its eventual nominees because they otherwise 

would have been required to expend their own campaign funds to gain it. “It is not 

 

million worth of ballot access. Likewise, MCFL acknowledged that “a contributor 

may not be aware of the exact use to which his or her money ultimately may be 

put, or the specific candidate that it may be used to support. . . . Any contribution 

therefore necessarily involves at least some degree of delegation of authority to use 

such funds in a manner that best serves the shared political purposes of the 

organization and contributor.” 479 U.S. at 261. 

17 Even if Unity08 were not subject to FECA’s disclosure requirements for 

political committees, the identities of its large donors would still be public 

information because they would be disclosed to the IRS. (E.g., J.A. 249-77.) 

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only plausible, but likely, that candidates would feel grateful for such donations 

and that donors would seek to exploit that gratitude,” McConnell, 540 U.S. at 145 

(upholding limits on contributions used for purposes other than direct candidate 

support), thereby giving rise to the actual or apparent corruption that FECA was 

intended to prevent. 

 Courts have also consistently upheld FECA’s contribution limits in 

circumstances that did not involve the specific threat of corruption vis-à-vis an 

identified candidate as posited by Unity08. In FEC v. Ted Haley Congressional 

Comm., 852 F.2d 1111 (9th Cir. 1988), the Ninth Circuit held that the district court 

erred in failing to defer to the Commission’s finding that a donation to a candidate 

was a regulable contribution despite its being made after the election, which the 

candidate had lost. Although the candidate was no longer running for office and 

indicated that he would not be a candidate for public office again, id. at 1112, and 

despite the candidate’s protestations that the timing of the contributions established 

that their purpose was not to influence an election, the court held that the 

Commission’s conclusion that post-election loan guarantees made for him were 

“contributions” was a reasonable construction of FECA. Id. at 1115-16. Similarly, 

in United States v. Goland, 959 F.2d 1449, 1452-53 (9th Cir. 1992), the court 

found that the defendant made excessive campaign contributions to an independent 

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candidate for the Senate, even though the candidate did not know the source of the 

contribution and the contributor was actually trying to elect a different candidate.18 

 Not only is Unity08’s statutory interpretation and theory of corruption 

directly contrary to all of the foregoing authority, but it would also, as a practical 

matter, eviscerate FECA’s contribution limits. Unity08 was no different from 

other political committees that collect hundreds of millions of dollars in 

contributions before they know which specific candidates they may ultimately 

nominate or support. Indeed, thousands of political committees (commonly known 

as PACs) solicit contributions during each election cycle, but very few of these 

committees ever conduct an “official” process to select the candidates they will 

help nominate and/or elect. So, under Unity08’s theory, money received before the 

political committees have formally declared their candidate-support intentions (i.e., 

the majority of each election cycle) would not be regulable. Such a system would 

be utterly unadministrable, and the end result would simply be a massive evasion 

 

18 Unity08 relies on cases, such as NCPAC, involving limits on independent 

expenditures to argue that its receipt of unlimited contributions would not present a 

threat of corruption. (Unity08 Br. 20-22, 29 n.1) Since Buckley, 424 U.S. at 19, 

however, the Supreme Court has subjected limits on contributions to lesser 

scrutiny than the “strict scrutiny” applicable to restrictions on expenditures. See, 

e.g., McConnell, 540 U.S. at 134-37; FEC v. Beaumont, 539 U.S. 146, 161 (2003); 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-88 (2000). And in NCPAC, the 

Court noted that the organizations were challenging “limitations on expenditures 

by PACs, not on the contributions they receive.” 470 U.S. at 495. Thus, Unity08’s 

attempt to import the Court’s reasoning about independent expenditures into 

Unity08’s challenge to contribution limits has no support in any precedent. 

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of FECA’s contribution limits. This is precisely why Unity08’s narrow view of 

corruption, and the appearance thereof, has been rejected by the Supreme Court 

and cannot undermine the reasonableness of the Commission’s decision in 

AO 2006-20. 

4. There Is No Constitutional Exception for Self-Proclaimed 

“Nascent” Political Parties 

 Unity08’s final argument is that regulating it as a political committee would 

be “constitutionally suspect” because, as a “nascent political party,” it required a 

“critical mass” of large contributions to achieve its goals. (See Unity08 Br. 38-40.) 

This argument is contrary to the uniform body of law upholding contribution limits 

to political parties. 

 As noted previously, there is no doubt that Congress may constitutionally 

limit contributions made to political committees, of which political parties are a 

subset. See supra p. 43; see also McConnell, 540 U.S. at 170 n.64 (“[A]ctions 

taken by political parties are presumed to be in connection with election 

campaigns.”). Unity08 does not discuss, or even acknowledge, any of this case 

law but rather implies that there should be different rules for new or small political 

parties than for older or established ones. In Buckley, however, the Court 

specifically upheld FECA’s contribution limits against this precise challenge from 

minor parties and independent candidates, concluding that “the impact of the . . . 

contribution limitation on major-party challengers and on minor-party candidates 

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does not render the provision unconstitutional on its face.” 424 U.S. at 33-35.19 

The Court explained that “any attempt to exclude minor parties and independents 

en masse from the Act’s contribution limitations overlooks the fact that minorparty candidates may win elective office or have a substantial impact on the 

outcome of an election.” Id. at 34-35.20 And more recently, in McConnell, the 

Court again recognized that 

the relevance of the interest in avoiding actual or apparent 

corruption is not a function of the number of legislators a given 

party manages to elect. It applies as much to a minor party that 

 

19 The Court also expressed doubt as to whether minor parties were actually 

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. 

20 The significant influence that third-party candidates can have on elections 

even when they do not win (see, e.g., 2000 Official Presidential General Election 

Results, http://www.fec.gov/pubrec/2000presgeresults.htm), demonstrates the 

fallacy in Unity08’s rhetorical question regarding how a candidate with long odds 

of success might be implicated in corrupt financing. (See Unity08 Br. 29 (“And 

why would anyone seeking to pay for political favors contribute to third-party 

candidates for President and Vice-President, in a country where no third party has 

won a presidential election . . . in over 150 years?”).) Not only might an individual 

or corporation seek to directly bankroll a presidential candidate (a candidate who, 

unlike the well-financed major party candidates, would be hugely dependent on 

that single donor), but a supporter of one of the major-party candidates might also 

bankroll the third-party candidate to draw votes away from the major-party 

candidate s/he opposed. See, e.g., Goland v. United States, 903 F.2d 1247, 

1251 (9th Cir. 1990) (upholding constitutionality of contribution limit where donor 

attempted to assist Democratic candidate for Senate by contributing to “ultraconservative” third-party candidate in order to “divert Republican votes”); Nathan 

Littlefield, Nader Republicans, THE ATLANTIC, Sept. 2004, available at

http://www.theatlantic.com/doc/200409/littlefield2 (discussing major Republican 

donors’ contributing to Ralph Nader to help President Bush and hinder Senator 

Kerry in 2004 presidential election). 

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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. It is therefore reasonable to require that all parties 

and all candidates follow the same set of rules designed to 

protect the integrity of the electoral process. 

540 U.S. at 159 (emphasis added). 

 The alleged purity of Unity08’s intentions and its purported stand against 

“two-party dominance” (Unity08 Br. 40) are irrelevant. In Colorado Republican, 

the Court explained how large donors use intermediaries like political parties to 

exert improper influence on an election and on elected officials, noting that 

“whether they like it or not, [parties] act as agents for spending on behalf of those 

who seek to produce obligated officeholders.” 533 U.S. at 451-52; see also 

McConnell, 540 U.S. at 145 (quoting Colorado Republican). If anything, the 

threat of actual or apparent corruption identified in Colorado Republican is more 

pronounced here. Unlike political parties, which nominate and attempt to elect a 

slate of candidates at multiple levels of government and thereby generally spread 

donor largesse among numerous candidates, Unity08 seeks to nominate and elect 

only two candidates. Thus, large contributors to Unity08 would know that their 

unlimited contributions would be used to help those two candidates alone — 

candidates to whom the donor would otherwise be able to contribute only $4,600. 

See FEC, Contribution Limits for 2007-08, 

http://www.fec.gov/info/contriblimits0708.pdf (noting $2,300 limit on 

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contributions for each of candidate’s primary and general elections). As the 

Commission and the district court each noted, this single-election goal effectively 

rendered Unity08 a “placeholder” for its eventual candidates, such that every 

contributor to Unity08 knew in advance that his or her contribution would be spent 

to benefit those candidates, whether through ballot-access activity or other 

programs. (See J.A. 57 (AO 2006-20 at 4); J.A. 564 (slip op. at 17).)21

This potential for a single-candidate committee to serve as a conduit is a 

major reason why the Commission requires that, in order to take advantage of the 

higher contribution limits available to political parties, a committee must support 

multiple candidates in multiple states. See, e.g., FEC Advisory Opinion 2001-13, 

at 3, http://saos.nictusa.com/aodocs/2001-13.pdf (Nov 8, 2001). Unity08 does not 

challenge this requirement. To the contrary, Unity08 expressly disavowed any 

intention of becoming a political party and pledged never to run any candidates 

besides its unity ticket in 2008. See supra p. 7. Because Unity08 never would 

have qualified — or even tried to qualify — as a political party, its claim that it 

should now be treated like one rings hollow. 

 

21 Indeed, many of Unity08’s solicitations informed donors that their funds 

would be used to further the campaigns of Unity08’s nominees. (E.g., J.A. 432 

(stating that funds will be used to meet “goal of electing a bi-partisan Unity Ticket 

in the 2008 presidential election”); J.A. 492 (“Your financial contribution ... helps 

give us a good chance to win the White House in November 2008 with a Unity 

Ticket.”).) 

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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 J.A. 19, 

Prayer for Relief ¶ b (seeking injunction against contribution limits).) There is no 

warrant in the Constitution for Unity08’s claim that it, as a single-candidate 

organization, is burdened by not having the same resources as political parties that 

support hundreds of candidates nationwide, much less for the assertion that the 

First Amendment requires Unity08 to be given a fundraising advantage over those 

parties. 

* * * 

 In sum, Unity08’s challenges were not unique. Like most political parties 

and other political committees, Unity08 would have preferred to raise money from 

contributions in larger increments.22 Thus, as with every other political committee, 

 

22 In reality, Unity08 presented two distinct pictures of its fundraising desires. 

To the public, Unity08 maintained from its inception that it had voluntarily selfimposed a $5,000 limit on the contributions it would accept because such a limit 

“was appropriate” and “to avoid the appearance of big money ownership of the 

process or the party.” (J.A. 315 at 40:3-11; J.A. 350; J.A. 361; see also J.A. 363 

(“[U]nder the law we can ask for and receive contributions of unlimited amount, 

but frankly we don’t want to slip into the mistakes that the rest of politics has 

embraced. So we are sticking to the $5000 per person limit . . . .”); J.A. 374 

(“Unity08 intends to . . . elect[ ] a bipartisan ‘Unity Ticket’ . . . funded solely by 

small-dollar donations from everyday Americans.”) (emphasis added).) Thus, 

when the Commission issued AO 2006-20, Unity08 reassured its members that it 

“had long ago voluntarily instituted a $5,000 cap as part of our promise to reduce 

the influence of money on politics. . . . So nothing about our operations will 

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the limits forced Unity08 to diversify its fundraising: The “overall effect of the 

Act’s contribution ceilings is merely to require candidates and political committees 

to raise funds from a greater number of persons and to compel people who would 

otherwise contribute amounts greater than the statutory limits to expend such funds 

on direct political expression.” Buckley, 424 U.S. at 21-22. If Unity08 was unable 

to motivate a sufficient number of persons to underwrite its ballot-access efforts 

adequately, that is not an unconstitutional burden. “[P]olitical free trade does not 

necessarily require that all who participate in the political marketplace do so with 

exactly equal resources.” McConnell, 540 U.S. at 227 (internal quotation marks 

omitted). 

CONCLUSION 

 An organization that is avowedly committed to electing the next President 

and Vice President of the United States, and that disburses thousands of dollars 

toward that end, is required to register as a federal political committee. Thus, and 

for all the foregoing reasons, the district court’s grant of summary judgment to the 

Commission should be affirmed, or this appeal should be dismissed. 

 

change.” (J.A. 382 (emphasis added).) It was only in affidavits prepared for this 

litigation that Unity08 stated a desire to take unlimited contributions from its 

principals (see Unity08 Br. 10), as well as “loans” that Unity08 would have no 

legal obligation to repay (J.A. 524). 

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Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 29, 2009 (202) 694-1650 

Case: 08-5526 Document: 01215899300 Page: 67
EXHIBIT 

Case: 08-5526 Document: 01215899300 Page: 68
1

Text of www.unity08.com (originally posted on or about January 10, 2008; 

last visited June 23, 2009): 

Dear fellow members of Unity08, 

One of our principles at the outset of this audacious project was transparency and 

openness. Too often in our recent political history, what you see is not what you 

get. 

For this reason, we are writing you today to lay out the current status of Unity08 

and possible paths going forward. 

First, however, it's important to reflect upon what we - together - have 

accomplished in shaping the current political discussion and building a sense of 

what is possible in this crucial election year. Two of our core ideas - the 

importance of a centrist, bi-partisan approach to the solving of our nation's 

problems and the possibility of an independent, unity ticket for the presidency have 

already gone from far-out to mainstream. 

Barack Obama, for example, has made the theme of unity and the necessity of 

bridging the partisan divide an absolutely central theme of his campaign. And just 

last week, a group of former and present national office holders - independents, 

Republicans and Democrats - met in Oklahoma for the sole purpose of stating their 

belief that at the present perilous moment, a unity government is the only hope of 

solving the nation's mounting problems. When you have agreement among the 

likes of former RNC chairman Bill Brock and Gary Hart, you're onto something. 

And, of course, waiting in the wings should the divide persist, is the potential of a 

serious non-partisan candidacy in the person of the Mayor of New York (two of 

our founders Doug Bailey and Gerald Rafshoon have stepped down from the board 

and may have more to say about their plans in the near future). 

Can Unity08 take full credit for these remarkable developments? Of course not, but 

through this website, your active involvement, innumerable news stories, op-eds, 

and public appearances by friends like Sam Waterston, we certainly have helped to 

bring these ideas to the forefront of the current political discussion. 

Case: 08-5526 Document: 01215899300 Page: 69
2

So in a larger sense, we have accomplished a major portion of what we set out to 

do. But in the specifics and logistics, we have fallen short. 

At the current moment, we don't have enough members or enough money to take 

the next necessary step - achieving ballot access in 50 states - to reach the goal of 

establishing our on-line convention and nominating a Unity ticket for president and 

vice president this coming fall. 

The past year has taught us that it's tough to rally millions to a process as opposed 

to a candidate or an issue. In the past, third party movements that have broken 

through the monopoly of the established parties have always been based on a 

person (Teddy Roosevelt in 1912 or Ross Perot in the last decade) or a burning 

issue (slavery in the case of the insurgent Republican party in 1860). Stirring 

people and moving them to action about a process change - replacing the quirky 

primary system that tends to drive candidates to the extremes with something more 

inclusive and sensible - has proven to be a lot harder than we expected. 

And the Federal Election Commission hasn't helped. The Commission has taken 

the position that we are subject to their jurisdiction (even though two United States 

Supreme Court decisions hold exactly opposite) and, therefore, that we are limited 

to $5000 contributions from individuals (even though the Democrat and 

Republican Parties are able to receive $25,000 from individuals). Needless to say, 

this position by the FEC effectively limited our fundraising potential, especially in 

the crucial early going when we needed substantial money fast to get on with ballot 

access and the publicity necessary to build our membership. 

We were caught in a peculiar catch-22; we wanted to break the dependence on big 

money by getting lots of small contributions from millions of members, but needed 

some up-front big money to help generate the millions of members to make the 

small contributions. And the FEC (in effect, an arm of the parties) didn't let that 

happen. We have challenged this ruling in the federal courts, but are still awaiting 

a decision and time is running out. 

And so reluctantly, especially given the volatility of the present situation, we're 

forced to scale back - not cease - our operations and suspend our ballot access 

project. Our website will become less interactive (it takes staff to answer hundreds 

of e-mails a day) and we can't in good faith make the $5 million commitment 

necessary to make a serious start on ballot access. 

Case: 08-5526 Document: 01215899300 Page: 70
3

But we're not closing our doors. We believe it is important to see our case against 

the FEC through (both for Unity08 and any similar movement in the future) and be 

ready to gear up if (when) we win our case and political circumstances warrant 

later this spring. Unity is in the air right now, and Mayor Bloomberg seems poised 

to run on his own (and the fact is that two independent candidacies wouldn't work) 

if the parties leave the sensible center open - but all this could change in a matter of 

weeks. 

We still believe strongly that we have the right idea, but it just might (emphasize 

might because who knows what can happen in the next month) not be the right 

time. In the meantime, a sincere, profound thanks for your help, involvement and 

support so far and please keep pushin' - for the simple but very powerful idea that 

solutions to our nation's problems are going to take ideas and hard work from all 

sources, and that a political system whose stock-in-trade is division may well be 

the biggest problem of all. 

Please know that you have already made a difference and are at the forefront of a 

movement that may yet save the country. 

Robert Bingham 

Angus King 

Peter Ackerman 

Zach Clayton 

Lindsay Ullman 

Board of Directors, Unity08 

Case: 08-5526 Document: 01215899300 Page: 71
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 13,984 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Cir. R. 32(a). 

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2003 in 14-point Times New Roman font. 

 /s/ Adav Noti 

Adav Noti 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

June 29, 2009 Washington, DC 20463 

Case: 08-5526 Document: 01215899300 Page: 72
CERTIFICATE OF SERVICE 

I hereby certify that on June 29, 2009, I will file the foregoing electronically 

via the Court’s ECF system pursuant to D.C. Cir. R. 25(a), I will cause eight paper 

copies to be hand-delivered to the Court pursuant to D.C. Cir. R. 31(b), and I will 

serve copies on the following by e-mail pursuant to Fed. R. App. P. 25(c)(1)(D): 

J. Scott Ballenger, Scott.Ballenger@LW.com 

Alexandra A.E. Shapiro, ashapiro@machtshapiro.com 

J. Gerald Hebert, ghebert@campaignlegalcenter.org 

 /s/ Adav Noti 

Adav Noti 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Case: 08-5526 Document: 01215899300 Page: 73