Unity '08 v. FEC

On January 10, 2007, Unity '08 and individual members of its Board of Directors (the plaintiffs) filed a complaint in the U.S. District Court for the District of Columbia, challenging the FEC's recent Advisory Opinion that concluded that the group's proposed activities would require it to register as a political committee. The plaintiffs ask the court to rule that this conclusion was "arbitrary" and in violation of the First Amendment. The plaintiffs also seek to enjoin the FEC from enforcing the Act's reporting provisions and contribution limitations against Unity '08.

Background

Unity '08 describes itself as a political movement of voters who seek to nominate candidates for a "Unity Ticket" in the 2008 Presidential election through an online nominating convention over the Internet. Unity '08 plans to organize a group of voters to support the candidates selected in this online convention. Currently, Unity '08 maintains a web site that focuses on issue content and describes its plans to nominate candidates via the online convention and to qualify for a place on the ballot in the November 2008 general election.

In Advisory Opinion (AO) 2006-20, the Commission concluded that the ballot access expenditures and activities that Unity '08 will conduct, combined with its stated goal of nominating and electing presidential and vice-presidential candidates, would cause it to qualify as a "political committee" under the Act. As such, it would be subject to the Act's contribution limitations and registration and reporting requirements. For more information, see the November 2006 Record.

Court complaint

The plaintiffs contend that the FEC's conclusion in AO 2006-20 was:

• Arbitrary and not in accordance with law, because the Act regulates as expenditures only those expenses incurred in support or opposition to a clearly identified candidate for federal office, and support for a clearly identified candidate is required by the Supreme Court before the definitions of "expenditure" or "political committee" apply.
• An infringement on the group's First Amendment rights of speech and association and not narrowly tailored to prevent corruption, or the appearance of corruption, in the political process. Unity '08 contends that the registration requirements and contribution limits the Commission determined would apply to Unity '08 would hamper its ability to raise money and burden its ability to engage in core political speech, such as petitioning and other ballot access activities. The group further notes that it does not support or oppose a clearly identified candidate at this time.

As well as alleging a violation of the Administrative Procedure Act (APA), the plaintiffs also contend, among other things, that the Commission's determination was vague and overbroad, thus violating the First Amendment.

Relief

The plaintiffs ask the court to preliminarily and permanently enjoin the FEC from enforcing its ruling in AO 2006-20.

The plaintiffs also ask the court to:

• Declare that AO 2006-20 is unconstitutional on First Amendment grounds, as it applies to Unity '08;
• Declare that the FEC's determination that signature-gathering expenses to qualify Unity '08 for the ballot are "expenditures" is in violation of the APA;
• Declare that the FEC's classification of Unity '08 as a "political committee" is in violation of the APA; and
• Award costs and attorneys' fees.

U.S. District Court for the District of Columbia, 1:07-cv-00053.