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Unity08 v. Federal Election Commission

October 16, 2008


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiffs Unity08, Douglas Baily, Roger Craver, Hamilton Jordan, Angus King, and Jerry Rafshoon bring this action against defendant Federal Election Commission ("FEC" or the "Commission") seeking declaratory and injunctive relief preventing the FEC from regulating Unity08 as a political committee under the Federal Election Campaign Act, 2 U.S.C. §§ 431 et. seq. ("FECA" or "the Act"). The parties have filed motions for summary judgment. Because the FEC's interpretation of the Act is reasonable and does not impermissibly infringe on the plaintiffs' rights under the First Amendment, the FEC's motion for summary judgment will be granted.

BACKGROUND Unity08 is a not-for-profit corporation organized under the laws of the District of Columbia, and exempt from federal income taxation under section 527 of the Internal Revenue Code of 1986 (Compl. ¶ 3.) It defines itself as a "political movement" aimed at "getting our country back on track by nominating and electing a Unity Ticket in the [2008] presidential election." (Id. ¶ 4-5.) Unity08 also asserts that it "seeks to effect major change and reform in the 2008 national elections" through its organization of voters who share its agenda. (Id. ¶ 11.) It will use its website to disseminate "its analysis that the [United States] needs to focus on crucial issues," and by "raising and spending money to qualify Unity08 for a position on the ballot in . . . approximately thirty-seven (37) states." (Id.) To raise the roughly $10 million to $12 million that Unity08 estimates it would cost to qualify for ballot access in thirty-seven states, Unity08 would solicit funds "through the Internet and personal contacts." (Id. ¶¶ 11-13, 16.) Unity08 planned to hold an "Internet on-line nominating convention" after qualifying for ballot access to select its candidates for President and Vice President. (Id. ¶ 18.)

Unity08 filed an advisory opinion request with the Federal Election Commission asking whether Unity08 would be considered a "political committee" before the conclusion of its on-line convention in the summer of 2008. (See Compl. at ¶ 13; Pls' Mem. of Law in Support of Mot. for Summ. J. ("Pls.' Mem.") at 5-6.) FECA defines a political committee as a group which receives contributions or makes expenditures over $1,000 in a calendar year to influence a federal election. 2 U.S.C. § 431(4)(A), (8)(A)(i), (9)(A)(i). If Unity08 were defined as a political committee, Unity08 would be subject to fundraising and spending restrictions, as well as filing requirements. (Def.'s Mem. of Law in Support of Mot. for Summ. J. ("Def.'s Mem.") at 5-6.) Before the FEC issued its advisory opinion, Unity08 voluntarily refused to accept contributions from individuals of more than $5,000*fn1 . (Id.)

The FEC issued Advisory Opinion ("AO") 2006-20, concluding that Unity08 would be a political committee once it spent more than $1,000 for ballot access because spending money for ballot access was an "expenditure" under the Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431 et seq:

Monies spent by Unity 08 to obtain ballot access through petition drives will be expenditures. An "expenditure" is a "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." 42 U.S.C. 431(9)(A)(i); 11 CFR 100.111(a).

The Commission has previously determined that expenses incurred in gathering signatures to qualify for a ballot for Federal office are expenditures. See Advisory Opinion 1994-05 n.1 (White) ("[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 Advisory Opinion 1984-11 (Serrette) (determining that expenses made to collect petition signatures for the general election ballot are expenditures, and therefore are, "qualified campaign expenses," which are expenses made in connection with a candidate's campaign for nomination, see 11 CFR 9032.9).

Although Unity 08 plans to qualify for ballot access for itself as an organization, but not yet for any named candidates, Unity 08 is, in effect, using its name as a placeholder for its candidates' names on the ballot. Moreover, unlike organizations that secure ballot access for themselves in order to field a slate of Federal and non-Federal candidates, Unity 08 has announced that it will field only two candidates - for the offices of President and Vice President - in the 2008 election only. Thus, in promoting itself through petition drives to obtain ballot access, Unity 08 is promoting its presidential and vice-presidential candidates, and any payments by Unity 08 for these activities will constitute expenditures. (AO 2006-20 at 3-4.) The FEC also determined that Unity08 met the "major purpose" test for a "political committee," and therefore the FEC was not prevented by the First Amendment from exercising jurisdiction over Unity08:

Unity 08's self-proclaimed major purpose is the nomination and the election of a presidential candidate and a vice-presidential candidate. Unity 08 clearly states this goal in its advisory opinion request and on its website. While Unity 08 has a subsidiary objective of influencing the major parties to adopt, in connection with the 2008 national elections, the core positions of Unity 08 supporters, your letters of May 30 and August 16, as well as Unity 08's website, state that Unity 08's first goal is the election "of a Unity Ticket for President and Vice-President of the United States in 2008."

Therefore, given that Unity 08 is making "expenditures" under the Act and Commission regulations, Unity 08 will become a political committee once it makes more than $1,000 in expenditures. Unity 08 must register with the Commission by filing a statement of organization within ten days after becoming a political committee, and it will be subject to the provisions of the Act and Commission regulations applicable to political committees. See 2 U.S.C. 433, 11 CFR 102.1 and 102.2.

(AO 2006-20 at 4.)

The plaintiffs filed this action seeking to enjoin the FEC from enforcing AO 2006-20 against them, and seeking a declaratory judgment that AO 2006-20 violated plaintiffs' First Amendment right as applied to them. They have moved for summary judgment, arguing that, as a matter of law, the FEC's interpretation of the Act violated Unity08's rights under the First Amendment.*fn2 (Pls.' Mem. at 1-2.) The FEC has cross-moved for summary judgment, arguing that Unity08 lacks standing to bring this action, and that even if Unity08 has standing, the challenged interpretation should be upheld as a matter of law because it was neither arbitrary nor capricious, and because it did not infringe on the plaintiffs' First Amendment rights.*fn3 (Def.'s Mem. at 1-3.)


Federal Rule of Civil Procedure 56 states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). "When ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to ...

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