UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

UNITY08, et al., ) 

) 

Plaintiffs, ) 

) 

v. ) 

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

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

AS AMICI CURIAE IN SUPPORT OF 

DEFENDANT FEDERAL ELECTION COMMISSION

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

J. Gerald Hebert 

(D.C. Bar No. 447676) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

Case 1:07-cv-00053-RWR Document 32 Filed 10/16/2008 Page 1 of 25
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TABLE OF CONTENTS 

Page

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

ARGUMENT..................................................................................................................................3 

I. The FEC Correctly Advised Unity08 That Its Proposed Activities Would Render 

 It a Federal Political Committee.......................................................................................3 

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

and Which Makes “Expenditures” or Accepts “Contributions” in Excess of 

$1,000 Is a Political Committee.....................................................................................4 

B. The FEC Correctly Interpreted and Applied FECA and FEC Regulations to 

Determine that Unity08 Meets the Definition of “Political Committee.” .....................6 

1. The First Prong: Unity08 Meets the “Major Purpose” Test. ...................................6 

2. The Second Prong: Unity08 Meets the $1,000 Expenditure Test..........................11 

II. The FEC’s Determination that Unity08 Is a “Political Committee” Does Not 

Violate the First Amendment.......................................................................................16 

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

Under FECA Does Not Violate the First Amendment. ...............................................17 

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

Government Interests Recognized in Buckley, CalMed and McConnell.....................19 

CONCLUSION ............................................................................................................................20 

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TABLE OF AUTHORITIES 

Cases: 

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

California Medical Ass’n v. FEC, 453 U.S. 182 (1981)......................................................3, 16, 18 

FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) ..........................19 

FEC v. Florida for Kennedy Committee, 681 F.2d 1281 (11th Cir. 1982)....................................14 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ............................................................7, 15 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981)...............14, 15 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ....................................................7, 9 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)................................................................ 6-7

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ..............................................................................5 

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

Statutes, Legislation and Legislative History: 

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

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107–155, 116 Stat. 81 (2002)..................5 

2 U.S.C. § 431(4)(A)..............................................................................................................1, 4, 16 

2 U.S.C. § 431(8)(A)(i)....................................................................................................................4 

2 U.S.C. § 431(9)(A)(i)..............................................................................................................4, 11 

2 U.S.C. § 431(20)(A)(iii)................................................................................................................5 

2 U.S.C. § 437c(c)..........................................................................................................................14 

2 U.S.C. § 441a(a)(1)(C)................................................................................................................18 

2 U.S.C. § 441i(a) ..........................................................................................................................18 

2 U.S.C. § 441i(b)(1) .......................................................................................................................5 

26 U.S.C. § 501(c)(4).......................................................................................................................9 

26 U.S.C. § 527(e) ...................................................................................................................10, 12 

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Regulations and Agency Materials: 

11 CFR § 100.5(a)............................................................................................................................1 

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

11 CFR § 100.22............................................................................................................................13 

11 C.F.R. § 110.6(b)(1)..................................................................................................................13 

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

Advisory Opinion 1994-05 (April 18, 1994) .................................................................................11 

Advisory Opinion 2003-23 (November 7, 2003).....................................................................13, 14 

Advisory Opinion Request 2006-20 (March 30, 2006) .........................................................1, 7, 11 

Advisory Opinion 2006-20 (Oct. 10, 2006)........................................................................... passim

Additional Materials: 

Memorandum of Law in Support of Plaintiffs’ Motion for Summary 

Judgment................................................................................................2, 7, 8, 9, 12, 14, 16, 17, 19 

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SUMMARY OF THE ARGUMENT

 The question in this case is whether plaintiff Unity08, a self-proclaimed “nascent 

political party,” is a “political committee” under the Federal Election Campaign Act (“FECA”), 

2 U.S.C. §§ 431 et seq. See also 2 U.S.C. § 431(4)(A); 11 CFR § 100.5(a) (defining “political 

committee”). 

On May 30, 2006, Unity08 filed an advisory opinion request seeking the opinion of the 

Federal Election Commission (the “FEC”) as to whether Unity08 is a “political committee” 

under FECA. See Advisory Opinion Request (“AOR”) 2006-20 (March 30, 2006). In the AOR, 

Unity08 stated that its “Goal One” is “to elect a Unity Ticket for President and Vice President of 

the United States in 2008....” AOR 2006-20 at 2. Unity08 explained that its plan is “to qualify 

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

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

candidates for the office of President and Vice President of the United States to run in those 

ballot positions.” Id. at 3, 4. 

Although Unity08 is thus, by all appearances, organized solely for the purpose of running 

candidates for President and Vice President in the 2008 election, it seeks to be exempt from the 

campaign finance laws that apply to all federal political parties and political committees, until 

such time as it actually nominates its presidential and vice-presidential candidates. To this end, 

Unity08 urged the FEC in its AOR to opine that it is not a political committee and, consequently, 

that it is not required to comply with the contribution limits, source prohibitions and disclosure 

requirements that apply under FECA to political committees. In other words, Unity 08 requested 

the right to raise contributions unrestricted in source or size – colloquially, “soft money” – to 

support its efforts to influence the 2008 presidential election. 

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On October 10, 2006, the FEC issued Advisory Opinion 2006-20, advising Unity 08 that 

its proposed activities would meet the test for “political committee” status, because (1) its “major 

purpose” is “the nomination or election” of a “Unity” ticket for President and Vice President in 

the 2008 elections, and (2) it has made or will make over $1,000 in “expenditures,” in the form 

of “monies spent by Unity08 to obtain ballot access.” See AO 2006-20 at 3-5. The FEC’s 

conclusion that Unity 08 must register and operate as a political committee is plainly correct. 

In its summary judgment motion, Unity08 argues that an organization does not receive 

“contributions” or make “expenditures” under FECA—predicate acts to establish “political 

committee” status—until it expressly advocates the election or defeat of a “clearly identified” 

candidate for federal office. See Memorandum of Law in Support of Plaintiffs’ Motion for 

Summary Judgment (“Unity08 SJ Memo”) at 8-12. Until it nominates its candidates and they 

thus become “clearly identified,” Unity08 argues that it can operate outside the law. 

 But this argument misconstrues the term “expenditure,” which is not limited simply to 

“express advocacy” for groups whose “major purpose” is to influence elections, such as Unity08. 

Rather, any spending by such a group “for the purpose of influencing” an election constitutes an 

“expenditure.” Unity08’s spending as, in its own words, a “nascent political party,” surely falls 

within that definition, even though it has not yet nominated its candidates for President and Vice 

President. Furthermore, even applying Unity08’s own standard for what constitutes an 

“expenditure,” Unity08 has spent, is spending, and will continue to spend funds to support 

candidates who are “clearly identified” by descriptive terms such as election cycle (2008), party 

affiliation (Unity08) and office sought (United States President). Because these descriptive 

terms are sufficient to “clearly identify” specific federal candidates, Unity08’s spending 

constitutes “expenditures” even under its narrow definition of the term. 

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Further, this Court should reject Unity08’s argument that no state interests support the 

application of FECA political committee requirements and restrictions to Unity08 and, 

consequently, that the FEC’s opinion violates the First Amendment. The regulation of political 

committees has long been upheld by the Supreme Court because it is supported by compelling 

governmental interests, including the prevention of corruption and the appearance of corruption. 

See, e.g., California Medical Ass’n v. FEC (CalMed), 453 U.S. 182 (1981). 

Just as the Supreme Court recognized in McConnell v. FEC, 540 U.S. 93, 154-61 (2003), 

that unlimited “soft money” contributions to federal political party committees pose a threat of 

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

funds are raised (e.g., prior to the party’s primary) or the purposes for which such funds are spent 

(e.g., so-called “party building”) – so too would unlimited contributions to Unity08 pose a threat 

of real and apparent corruption of Unity08’s eventual nominees. 

For all these reasons, plaintiffs’ motion for summary judgment should be denied, and 

defendant FEC’s cross-motion for summary judgment should be granted.

ARGUMENT

I. The FEC Correctly Advised Unity08 That Its Proposed Activities Would Render It 

a Federal Political Committee.

 

In AO 2006-20, the FEC correctly advised Unity08 that its proposed activities meet the 

two-part test for “political committee” status, because its public statements indicate that its 

“major purpose” is the nomination and election of a “Unity Ticket” for President, and its 

spending constitutes “expenditures,” as defined by the Act. Unity08 has provided no legal 

support for its argument that it is not making “expenditures” simply because it has not yet 

nominated its presidential and vice-presidential candidates. 

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

and Which Makes “Expenditures” or Accepts “Contributions” in Excess of 

$1,000 Is a Political Committee.

 The FECA defines a “political committee” as a group “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). The statute, in turn, 

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

respectively, “for the purpose of influencing any election for Federal office.” Id. §§ 431(8)(A)(i) 

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

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court addressed constitutional 

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

incorporated the definition of “expenditure,” vague as well. Id. at 76-80. The Supreme Court 

found the term “expenditure” caused “line drawing problems” by potentially “encompassing 

both issue discussion and advocacy of a political result,” so that the “political committee” 

definition (which relied on the definition of “expenditure”) might “reach groups engaged purely 

in issue discussion.” Id. at 79. 

To resolve these constitutional concerns, the Buckley Court imposed two different 

limiting constructions. 

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

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

nomination or election of a candidate.” Id. (emphasis added). For such “major purpose” groups,

there was no vagueness concern about the statutory “for the purpose of influencing” definition of 

“expenditure” because, the Supreme Court held, disbursements by such groups “can be assumed 

to fall within the core area sought to be addressed by Congress. They are, by definition, 

campaign related.” Id. (emphasis added). 

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But second, “when the maker of the expenditure is not within these categories – when it 

is an individual other than a candidate or a group other than a ‘political committee,’” the Court 

narrowly construed the term “expenditure” to reach “only funds used for communications that 

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

(emphasis added).1

The importance of this distinction was the Supreme Court’s recognition that the broader, 

statutory definition of “expenditure” as spending “for the purpose of influencing” an election is 

not vague when applied to groups “the major purpose of which is the nomination or election of a 

candidate,” because spending by such groups is “by definition, campaign-related.” Id. at 79. 

The Court imposed the narrowing gloss of “express advocacy” on the term “expenditure” only

with regard to groups other than such “major purpose” groups. Id. at 80. 

 The Supreme Court reaffirmed this approach in McConnell in its consideration of the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 (2002). 

In reviewing a BCRA requirement that state parties use hard money to pay for a public 

communication that “promotes or supports” or “attacks or opposes” a federal candidate, 2 U.S.C. 

§§ 431(20)(A)(iii), 441i(b)(1), the Court rejected a vagueness challenge because the words 

“clearly set forth the confines within which potential party speakers must act in order to avoid

triggering the provision.” McConnell, 540 U.S. at 169 n.64 (emphasis added).2

 Quoting 

Buckley, the Court noted that “a general requirement that political committees disclose their 

 

1

 The Buckley Court defined express advocacy to include phrases such as “vote for,” “vote against,” “elect,” 

“support,” “reject” or “defeat” a clearly identified candidate. 424 U.S. at 44 n.52. In a subsequent case, the Ninth 

Circuit somewhat expanded the definition of express advocacy also to include speech which “when read as a whole, 

and with limited reference to external events, [is] susceptible of no other reasonable interpretation but as an 

exhortation to vote for or against a specific candidate.” FEC v. Furgatch, 807 F.2d 857, 864 (9th Cir. 1987). The 

message must be “unmistakable and unambiguous, suggestive of only one plausible meaning.” Id. The 

Commission has codified the so-called “magic words” standard of Buckley at 11 C.F.R. § 100.22(a), and the 

Furgatch standard at § 100.22(b). 

2

 The “promotes, attacks, supports or opposes” test of BCRA is colloquially known as the “PASO” test.

Case 1:07-cv-00053-RWR Document 32 Filed 10/16/2008 Page 9 of 25
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expenditures raised no vagueness problems because the term ‘political committee’ ‘need only 

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

is the nomination or election of a candidate’ and thus a political committee’s expenditures ‘are, 

by definition, campaign related.’” Id. Thus, the Court in McConnell reaffirmed that the express 

advocacy test set forth in Buckley does not apply to groups whose major purpose is to influence 

federal elections. 

For this reason, the “express advocacy” test is not relevant to the question of whether a 

“major purpose” organization is spending money to influence the election of federal candidates, 

and whether it is, accordingly, making “expenditures.” Because the “express advocacy” standard 

does not apply to the definition of “expenditures” in this context, it follows that it is also 

irrelevant in determining whether a “major purpose” group has made $1,000 in “expenditures” 

for purposes of determining political committee status. Instead, if a group meets the first prong 

of the political committee test (i.e., that it has a “major purpose” to influence elections), the 

second prong of the test (i.e., whether its spending constitutes “expenditures”) is governed by the 

broader statutory definition of expenditure – spending “for the purpose of influencing any 

Federal election,” not by the express advocacy test. 

B. The FEC Correctly Interpreted and Applied FECA and FEC Regulations to 

Determine that Unity08 Meets the Definition of “Political Committee.”

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

The FEC correctly found that Unity08 meets the “major purpose” test. Several cases 

have established that a group’s “major purpose” can be demonstrated not only by its spending, 

but also by its public statements or positions. See, e.g., FEC v. Malenick, 310 F. Supp. 2d 230, 

234-36 (D.D.C. 2004) (finding the organization evidenced its “major purpose” through its own 

materials which stated the organization’s goal of supporting the election of Republican Party 

Case 1:07-cv-00053-RWR Document 32 Filed 10/16/2008 Page 10 of 25
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candidates for Federal office and through efforts to get prospective donors to consider supporting 

Federal candidates); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (finding that the 

“organization’s [major] purpose may be evidenced by its public statements of its purpose or by 

other means”). A group’s actual activities can also evidence its “major purpose.” See, e.g., FEC 

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

independent spending activities to influence political campaigns can “become so extensive that 

the organization’s major purpose may be regarded as campaign activity”) (emphasis added); see 

also McConnell, 540 U.S. at 170 n.64. 

Here, Unity 08’s self-proclaimed goal is to nominate and elect candidates for President 

and Vice President in the 2008 election. In 2006, Unity08’s web site home page stated 

prominently that “Unity08 is a citizens’ movement to get our country back on track by 

nominating and electing a Unity Ticket in the ‘08 presidential election to promote leadership, not 

partisanship.” See http://www.unity08.com (visited August 18, 2006). Similarly, Unity08 stated 

in its AOR that “Goal One is to elect a Unity Ticket for President and Vice President of the 

United States in 2008 . . . .” AOR 2006-20, at 2. Given this description of its goals, it cannot be 

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

candidate,” as set forth by Buckley. 

Although Unity08 does not – and cannot – dispute that its “Goal One” is the nomination 

and election of a “Unity Ticket,” it nevertheless attempts to argue that it is not a “major purpose” 

group. Its argument rests on its unsupported assertion that the “major purpose” test has 

“received a limiting construction pursuant to Buckley” and has been “construed to apply where 

there is an ‘identified candidate.’” Unity08 SJ Memo at 19. Because Unity08 has not yet 

Case 1:07-cv-00053-RWR Document 32 Filed 10/16/2008 Page 11 of 25
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nominated its candidates, its argument continues, it does not yet have a “clearly identified” 

candidate, and its purpose does not relate to candidate advocacy. Unity08 SJ Memo at 20. 

This argument misapprehends the “clearly identified candidate” standard. That test is 

part of the express advocacy standard which determines whether a non-major purpose group is 

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

of a “clearly identified candidate.” Buckley, 424 U.S. at 80. Unity08 engages in doctrinal 

sleight-of-hand by excising that standard from its proper context and grafting it onto the “major 

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

relates to the “nomination or election of a candidate” – not a “clearly identified candidate.” 

There is no support in the law for Unity08’s novel application of the “clearly identified 

candidate” standard to limit the “major purpose” test, which makes that test far narrower than the 

Court intended in Buckley.

Unity08’s argument also defies common sense. Whether a group’s major purpose relates 

to the nomination and election of federal candidates does not depend on its “identification” of 

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

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

clearly a “major purpose” group, regardless whether all its expenditures expressly support one or 

more particular “clearly identified” candidates. 

The logic of Unity08’s argument stands for the remarkable proposition that funds raised 

by the national committees of any political party – including the Republican National Committee 

and the Democratic National Committee – cannot constitutionally be regulated until the party has 

held its primary election (or nominating convention) and identified by name its nominee to a 

particular federal office. Indeed, Unity08’s theory would mean that the Republican Party and 

Case 1:07-cv-00053-RWR Document 32 Filed 10/16/2008 Page 12 of 25
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Democratic Party would themselves not be “political committees” subject to FECA until they 

had actually nominated “clearly identified” candidates – with the result that the party committees 

could raise unlimited soft money for the presidential campaign prior to their nominating 

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

Court made clear in McConnell that any and all funds raised by political party committees – even 

in the period prior to nominating a specific candidate – may constitutionally be subject to the 

amount limits, source prohibitions and disclosure requirements of FECA in order to deter the 

actuality and appearance of corruption; in other words, that the parties are “political committees” 

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

 It is no surprise that Unity08 offers no valid legal authority for its grafting of a “clearly 

identified candidate” requirement onto the “major purpose” test. The cases Unity08 cites, 

Buckley and MCFL, do not support its argument that a group’s “major purpose” depends on 

whether the group has identified by name the candidates it supports or opposes. See Unity08 SJ 

Memo at 19-20. Buckley went no further than to limit the definition of “political committee” to 

groups “the major purpose of which is the nomination or election of a candidate.” 424 U.S. at 

79. The MCFL decision did not address the “major purpose” issue at all, except to note that the 

defendant corporation was not a “major purpose” group because its “central organizational 

purpose is issue advocacy.” 479 U.S. at 253 n.6.3

 It further acknowledged that if the 

defendant’s campaign-related spending “bec[a]me so extensive that the organization’s major 

purpose may be regarded as campaign activity, the corporation would be classified as a political 

committee.” 479 U.S. at 262 (emphasis added). The MCFL Court thus framed the “major 

 

3

 In contrast to Unity08, the not-for-profit corporation in MCFL was organized under section 501(c)(4) of the 

Internal Revenue Code, not section 527. Section 501(c)(4) groups may not lawfully have candidate election-related 

activities as their major purpose, whereas section 527 organizations must have candidate election-related activities as 

their major purpose. Compare 26 U.S.C. § 501(c)(4) with 26 U.S.C. § 527. See infra at 10-11. 

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purpose” test as a broad analysis of “campaign activity,” and not one limited to examining 

activity relating only to specifically identified candidates. 

Therefore, insofar as these two cases touch upon the “major purpose” test at all, they 

make clear that the function of this test is to protect those groups with only minimal campaignrelated activities from being classified as “political committees” – not to provide an exemption 

from federal campaign finance laws for groups such as Unity08 that have the sole purpose of 

influencing a federal election. Contrary to Unity08’s argument, the major purpose test has never 

been construed to apply only to organizations that support a “clearly identified” – i.e. nominated 

– candidate. 

The FEC’s conclusion regarding Unity08’s “major purpose” is also buttressed by the fact 

that Unity08 has registered with the Internal Revenue Service under section 527 of the Internal 

Revenue Code (“IRC”). See AO 2006-20, at 1. A section 527 “political organization” is 

“organized and operated primarily” for the purpose of “accepting contributions or making 

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

to any Federal, State, or local public office.” See 26 U.S.C. § 527(e)(1), (2).4

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

“primary” purpose of “influencing or attempting to influence the selection, nomination, election 

or appointment of” an individual to public office. The Supreme Court in McConnell confirmed 

the proposition that section 527 groups are primarily engaged in influencing elections, stating 

 

4

 Section 527 of the IRC provides tax exempt treatment for “exempt function” income received by any 

“political organization.” The statute defines “political organization” to mean a “party, committee, association, fund, 

or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or 

indirectly accepting contributions or making expenditures, or both, for an exempt function.” 26 U.S.C. § 527(e)(1) 

(emphasis added). An “exempt function” is defined to mean the “function of influencing or attempting to influence 

the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office or 

office in a political organization, or the election of Presidential or Vice Presidential electors....” 26 U.S.C. § 

527(e)(2) (emphasis added). 

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that “section 527 ‘political organizations’ are, unlike § 501(c) groups, organized for the express 

purpose of engaging in partisan political activity.” 540 U.S. at 174 n.67; see also id. at 177 

(noting that 527 groups “by definition engage in partisan political activity”). Accordingly, any 

group that chooses to register as a “political organization” under section 527 – including Unity08 

– is by definition an entity “the major purpose of which is the nomination or election of a 

candidate.” Under the “major purpose” test set forth in Buckley, this is sufficient to meet the first 

prong of the political committee test.5 

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

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

obtain ballot access through petition drives would constitute “expenditures” pursuant to 2 U.S.C. 

§ 431(9)(A)(i) and 11 CFR § 100.111(a). See AO 2006-20, at 3-4; see also AO 1994-05 n.1 

(April 18, 1994) (“[E]xpenditures to influence your election would include amounts you spend 

... to promote yourself for the general election ballot by seeking signatures on nomination 

petitions”); see also AO 1984-11 (May 3, 1984) (determining that expenses made to collect 

petition signatures for the general election ballot are expenditures, and therefore are, “qualified 

campaign expenses” in connection with a candidate’s campaign for nomination). Because 

Unity08 therefore has made, or will make at least $1,000 in “expenditures” for this purpose, it 

satisfies the second prong of the test for political committee status. 

Unity08 argues that because an “expenditure” under an express advocacy standard must 

be connected to a “clearly identified” federal candidate, it will not make “expenditures” until it 

has nominated its “Unity ticket” presidential and vice-presidential candidates. It further argues 

 

5

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

influencing only the nomination or appointment of individuals to appointive office, it would not be a federal 

political committee. In this case, however, Unity08 indicates that all of its electoral activity will be directed to 

federal elections. AO 2006-20, at 2; AOR 2006-20, at 2-4. 

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that current disbursements relating to ballot petitioning activities are on behalf of Unity08 itself, 

and are not connected to any identified candidate. Unity08 SJ Memo at 18-19. The FEC 

correctly rejected this argument in AO 2006-20, observing that unlike most political parties that 

“field a slate of Federal and non-Federal candidates,” Unity08 would only field candidates for 

President and Vice President in the 2008 elections, and thus all of Unity08’s expenditures would 

inure to the benefit of those two Federal candidates. AO 2006-20, at 4. 

Amici support the FEC’s rejection of Unity08’s argument. With regard to the question of 

whether Unity08 has made (or will soon make) $1,000 in “expenditures,” there are two relevant 

issues: first, whether the definition of “expenditure” in the case of Unity08 is limited by the 

“express advocacy” test and its “clearly identified candidate” language, and second, whether 

Unity08’s proposed spending prior to nominating a specific candidate constitutes “expenditures.” 

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

question of whether Unity08, a “major purpose” group, is spending money to influence the 

election of federal candidates, and whether it is, accordingly, making “expenditures.” As 

Buckley made clear, the narrowing construction of the express advocacy test is only necessary to 

prevent vagueness with respect to individuals and non-“major purpose” groups. See Buckley,

424 U.S. at 79-80. Unity08 is thus mistaken in asserting that the “express advocacy” test must 

be applied to judge whether its spending constitutes “expenditures.” As a self-identified section 

527 “political organization” formed “primarily” for the purpose of influencing the nomination 

and election of a 2008 presidential ticket, see 26 U.S.C. § 527(e)(1), and as a group that has 

proclaimed its purpose is to nominate and support candidates for President and Vice President, 

Unity08 is – like any other “major purpose” entity – subject to the facial statutory definition of 

“expenditure,” without the limiting “express advocacy” gloss developed by the Buckley Court. 

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Every penny spent by Unity08 will be “for the purpose of influencing” the nomination and 

election of a 2008 presidential ticket and, therefore, constitutes “expenditures” under FECA. 

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

Unity08’s expenditures, Unity08 meets even this more stringent standard. Unity08 is spending 

monies on behalf of specific candidates – i.e. its “Unity Ticket” presidential and vice-presidential 

candidates – who are clearly identified by election year, office sought and party affiliation, even 

if not yet by name. “Express advocacy” does not require a candidate be identified only by name 

instead of other “placeholder” attributes. See 11 CFR § 100.22 (“Expressly advocating means 

any communication that ... [u]ses phrases such as ... ‘re-elect your Congressman,’ ‘support the 

Democratic nominee,’ ‘cast your ballot for the Republican challenger for U.S. Senate in Georgia’ 

... ‘reject the incumbent’”). It is difficult to see how a communication to “support the Unity 

ticket in 08” or “elect a Unity President” is any less “express advocacy” than the examples of 

express advocacy provided in Section 100.22, such as “support the Democratic nominee.” Id.; 

see also Buckley, 424 U.S. at 44 n.51. 

The FEC’s position that Unity08’s spending relates to “clearly identified” candidates is 

supported both by administrative precedent and by public policy. In Advisory Opinion 2003-23 

(Nov. 7, 2003), the FEC considered whether to allow a political committee to collect 

“earmarked” contributions for the Democratic Party’s “presumptive nominee” pursuant to the 

FEC’s earmarking rules that generally apply to contributions to a “clearly identified candidate.” 

See 11 CFR § 110.6(b)(1). The opinion thus deals squarely with the argument raised by 

Unity08, namely whether a specific candidate must be “identified” by name – i.e., nominated – 

in order for the earmarking rules to apply. The FEC said its rules apply to a party’s yet-to-beselected “presumptive nominee” for a specific federal office in a specific federal election: 

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

for a local committee to earmark $1,000 through a local party committee to the 

as-yet unknown Republican nominee for New York’s 24th Congressional District. 

In Advisory Opinion 1977-16, the Commission concluded that it was permissible 

for a local committee to accept contributions and make expenditures on behalf of 

an undetermined Federal candidate. In both instances, the Commission 

concluded that it was permissible to earmark contributions to undetermined 

Federal candidates because the candidates were identifiable as to specific office, 

party affiliation, and election cycle, although the names of the eventual nominees 

were not known. 

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

to specific office (President of the United States), party affiliation (Democratic 

Party), and election cycle (2004), the Commission concludes that contributors 

may earmark contributions to the presumptive nominee through WE LEAD.... 

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

The same is true here. Unity08’s activity relates to an “as-yet unknown” party nominee 

who, by definition, will be a candidate. Although “as-yet unknown,” this “presumptive 

nominee” of the Unity08 committee “is identifiable as to specific office” (President) as well as to 

“party affiliation” (Unity08) and “election cycle” (2008). These identifying attributes single out 

a specific, “clearly identified” candidate and are therefore sufficient to show that Unity08’s 

spending satisfies even the express advocacy definition of “expenditure.” 

Instead of addressing this FEC precedent,6

 Unity08 relies upon the “Draft Kennedy” cases 

to argue that the definition of “expenditure” in the political committee test is limited by the 

requirement that the spending be relative to a “clearly identified” federal candidate. See FEC v. 

Machinists Non-Partisan Political League (Machinists), 655 F.2d 380 (D.C. Cir. 1981); see also 

FEC v. Florida for Kennedy Committee, 681 F.2d 1281 (11th Cir. 1982). The “Draft Kennedy” 

cases are inapplicable here, however. In those cases, the groups at issue were engaged in 

 

6

 The only mention Unity08 makes of prior FEC decisions is to allege that the “Statement of Reasons” of 

three commissioners in Matter Under Review 395 supported its “clearly identified candidate” limitation of the 

definition of “political committee.” Unity08 SJ memo at 21-22. Even if this Statement of Reasons supported 

Unity08’s argument – which it does not – it does not represent an opinion of the Commission and thus has no 

precedential weight. See 2 U.S.C. § 437c(c) (any decision of Commission requires majority vote of 4 members). 

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“attempts to convince the voters – or Mr. Kennedy himself – that he would make a good 

‘candidate,’ or should become a ‘candidate.’” Machinists, 655 F.2d at 396. There was no 

certainty, or even likelihood, that Kennedy would ever become a candidate within the meaning 

of FECA. The “draft” committees might ultimately never support any “candidate” for federal 

office. Here, by contrast, there is little doubt that the efforts of Unity08 will lead to the 

nomination and promotion of “candidates” for federal office. Indeed, the nomination of a “Unity 

Ticket” candidate is “Goal One” of the organization and is entirely within the control of Unity08. 

This case is thus wholly distinguishable from the “Draft Kennedy” situation. 

 Unity08’s reliance upon FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996) is similarly 

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

purpose of building a “farm team,” id. at 854, that it hoped would some day help the Republican 

Party take over the U.S. House of Representatives. Id. at 858. GOPAC’s theory was that the 

“reverse coattails” of strong Republican state candidates could indirectly boost the party’s 

federal candidates on the same ticket. GOPAC , however, “did not make any direct contribution 

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

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

it had not made expenditures for the purpose of influencing federal elections, and could not be 

deemed a political committee subject to federal law. Id. at 859 (emphasis added). 

 Unity08 attempts to use GOPAC to argue that political committee status requires 

expenditures in support of an already-nominated candidate. But GOPAC does not stand for this 

proposition. In GOPAC, the court simply made clear that GOPAC’s direct support of state and 

local candidates would not trigger political committee status simply because of any indirect

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effect this support had on federal elections. In contrast to GOPAC’s activities, Unity08 has 

stated that its only goal is to nominate and support federal candidates in the 2008 election cycle. 

Thus, the case law cited by Unity08 does not support its argument that its spending prior to 

nominating a specific candidate will not constitute “expenditures.” 

II. The FEC’s Determination that Unity08 Is a “Political Committee” Does Not 

Violate the First Amendment. 

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

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

supported by important governmental interests, including the prevention of corruption and the 

appearance of corruption. See, e.g., Buckley, 424 U.S. at 25-29; CalMed, 453 U.S. at 193-99. 

Because Unity08 meets the definition of a “political committee,” it follows that it is subject to 

FECA, and that this regulation is consistent with the First Amendment and supported by the 

same governmental interests found to support FECA in Buckley. 

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

must make a particularized showing that its specific factual situation presents the potential for 

corruption. See Unity08 SJ Memo at 9 (“Neither Congress nor the FEC has identified any 

potential for corruption or the appearance of corruption where an organization seeks ballot 

access in its own name without supporting a specific candidate.”) But the First Amendment does 

not require that the government make a case-by-case demonstration of potential corruption for 

every group that is deemed a political committee and thus subject to FECA. If an organization 

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

comply with the campaign finance laws based on the wholly justifiable presumption that 

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

corruption of federal candidates and officeholders.

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

showing in this case, it is clear that allowing Unity08 to operate outside of FECA’s “political 

committee” disclosure requirements, contribution limits and source prohibitions would pose a 

serious threat of real and apparent corruption. Large donations to Unity08 will create actual or 

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

regardless whether the contributions are made before or after Unity08 nominates its candidates. 

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

Under FECA Does Not Violate the First Amendment.

Contrary to Unity08’s insistence that only “corruption, the risk of corruption, or 

appearance of corruption” will justify the regulation of election-related activities, Unity08 SJ 

Memo at 9, the Supreme Court has recognized that a number of government interests are served 

by the regulation of political committees, including not only the anti-corruption interest noted by 

Unity08, but also the public’s informational interest in disclosure, and the government’s interest 

in preventing circumvention of campaign finance requirements. 

In Buckley, the Supreme Court considered whether the disclosure requirements and 

contribution restrictions imposed by FECA on political committees comported with the First 

Amendment. Even though the Court recognized that these legal requirements represented a 

“significant interference with protected rights of political association,” it sustained these 

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

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

“corruption and the appearance of corruption spawned by the real or imagined coercive influence 

of large financial contributions on candidates’ positions and on their actions if elected to office.” 

Id. Disclosure was supported by a broader array of interests including: “provid[ing] electorate 

with information as to where political campaign money comes from ... [and] the interests to 

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

the appearance of corruption by exposing large contributions and expenditures to the light of 

publicity,” and “gathering the data necessary to detect violations of the contribution limitations.” 

Id. at 66-68. 

The Supreme Court expanded upon its holding in Buckley when it considered FECA’s 

$5,000 annual limit on contributions to multi-candidate political committees in CalMed. See

also 2 U.S.C. § 441a(a)(1)(C). As Unity08 does here, the appellants in CalMed asserted that the 

danger of actual or apparent corruption discussed in Buckley did not apply to contributions to 

non-candidate-controlled political committees. 453 U.S. at 197-98. The Supreme Court 

disagreed. It found that the $5,000 limit “further[ed] the governmental interest in preventing the 

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

limitations on contributions [to candidates] that this Court upheld in Buckley.” Id. at 197-98. 

Absent the limit on contributions to political committees, an individual “seeking to evade the 

$1,000 limit on [individual] contributions to candidates could do so by channeling funds through 

a [] political committee.” Id. at 198. 

In McConnell, the Court further developed its analysis of the government’s anticorruption interest in the context of upholding provisions banning the raising and spending of 

“soft money” – i.e., federally unregulated funds – by political party committees. 540 U.S. at 

134-73. For instance, the “core” soft money provision at issue in McConnell subjected all funds 

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

prohibitions, regardless of when the funds were raised or spent, or for what purposes. See 2 

U.S.C. § 441i(a). In finding these provisions to be justified by the government’s interest in 

preventing actual and apparent corruption, the Court defined corruption broadly as “undue 

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influence on an officeholder’s judgment, and the appearance of such influence.” Id. at 150, 

quoting FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (2001). The 

Court noted that large contributions made to party committees “are likely to create actual or 

apparent indebtedness” on the part of the parties’ federal candidates and thereby enable 

contributors to gain access and influence over candidates. Id. at 146-48 (influence), 149-51 

(access and influence). 

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

Government Interests Recognized in Buckley, CalMed and McConnell.

Unity08 has not shown that it is distinguishable from the political committees considered 

in the case law detailed above. Because Unity08 is a political committee, regulation of its 

fundraising is supported by the strong governmental purposes articulated in Buckley, CalMed 

and McConnell. Financial disclosure by political committees, such as Unity08, provides the 

electorate with useful information and deters corruption through publicity, while limits on 

contributions to political committees such as Unity08 combat corruption and the appearance of 

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

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

 Unity08 does not explain why these compelling governmental interests are relevant only 

after it nominates its presidential and vice-presidential candidates. Its analysis boils down to the 

claim that “without a candidate, there is no prospect for corruption.” Unity08 SJ Memo at 10. 

This assertion is at best myopic; at worst, simply untrue. After the online nominating 

convention planned for summer of 2008, Unity08 will have two party nominees who will be the 

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

it raised and the expenditures it made to obtain ballot positions for these nominees. This 

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

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financial backers. There is no reason to believe that that Unity08’s candidates will disregard the 

large contributions made to the party solely because they were made prior to their nomination. 

As was the case with soft money contributors to party committees prior to BCRA, large donors 

to Unity08 can potentially obtain undue access and influence over Unity08’s candidates, and 

thereby pose a threat to the integrity of the political system. See McConnell, 540 U.S. at 146-51. 

The same is true with regard to public disclosure. If Unity08 were exempt from the campaign 

finance laws, it would be permitted to build the infrastructure for its presidential/vicepresidential campaign, including securing ballot positions for its nominees, without any 

obligation to report its financial activity to the FEC prior to its nomination of candidates. Upon 

its nomination of candidates, Unity08 would be the only political committee running federal 

candidates that would not have provided the public with complete information regarding its 

financial activities. This “blackout” in campaign finance disclosure would be particularly 

problematic given that Unity08 would also, under its reasoning, be exempt from contribution 

limits and source prohibitions. The public has a strong interest in receiving information about 

the financial activity of Unity08, including disclosure of early contributors to the Unity08, in 

order to be able to evaluate the “interests to which [the Unity08 nominees] would most likely to 

be responsive” and to make “predictions of [their] future performance in office.” Buckley, 424 

U.S. at 66-67. 

CONCLUSION

For the foregoing reasons, Advisory Opinion 2006-20 does not violate the Administrative 

Procedures Act, 5 U.S.C. § 706(2)(A) or the First Amendment. Accordingly, this Court should 

deny plaintiffs’ motion for summary judgment, and grant defendant’s motion for summary 

judgment. 

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Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

PAUL S. RYAN 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., NW 

Suite 650 

Washington, D.C. 20036 

Tel: (202) 736-2200 

Counsel for Amici Curiae

 Campaign Legal Center 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

Dated: April 11, 2007 

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