Ready for Ron v. Federal Election Commission

• Court: District Court, District of Columbia
• Decided: May 17, 2023
• Docket: Civil Action No. 2022-3282
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

READY FOR RON,

Plaintiff,

v. Civil Action No. 22-3282 (RDM)

FEDERAL ELECTION COMMISSION,

Defendant.

MEMORANDUM OPINION AND ORDER

READY FOR RON (“RFR”) is a political committee that has spent more than $1 million

soliciting and gathering signatures and contact information from over 200,000 people who have

declared themselves “Ready for Ron.” Dkt. 1 at 5 (Compl. ¶ 6); Dkt. 17 at 8. RFR would like to

deliver the “petition” that it has created to Florida Governor Ron DeSantis, along with a letter

urging him to become a candidate for the Republican nomination for President in the 2024

election. Dkt. 1 at 7 (Compl. ¶ 17). Before taking this step, however, RFR sought an advisory

opinion from the Federal Election Commission (“FEC” or “Commission”) addressing whether

and when it could do so consistent with the federal campaign finance laws. Dkt. 23-2 at 1.

According to RFR, presenting Governor DeSantis with a “petition” would constitute pure

political speech beyond the constitutional or statutory reach of these laws. Id. at 12–13.

The FEC declined to bless RFR’s proposal. Id. at 190–200. In particular, the

Commission disapproved of RFR’s insistence that it provide Governor DeSantis not only its

petition but also the e-mail address and/or phone number of every signatory. Id. at 193. The

Commission unanimously concluded that RFR was, in all but name, seeking permission to

provide Governor DeSantis with an in-kind contribution—that is, a contact list in the guise of a petition. Id. at 194. Based on that conclusion, the Commission further held that were Governor

DeSantis to begin to test the waters for a run, and similarly were he to become a candidate, the

campaign finance laws would preclude RFR from delivering that contact list to him because the

market value of the list exceeds the relevant contribution limit and because RFR funded its drive

with a combination of regulated funds (hard money) and unregulated funds (soft money). Id. at

195, 197, 199. The Commission was unable to garner a majority, however, on the question

whether RFR may deliver the list to Governor DeSantis before he begins to test the waters. Id. at

199. It thus left that portion of RFR’s request for an advisory opinion unanswered. Id.

RFR commenced this lawsuit in response, seeking declaratory and injunctive relief that

would permit it to deliver the petition to Governor DeSantis at any time without risking an

enforcement action. Dkt. 1 (Compl.). It subsequently moved for a preliminary injunction. Dkt.

8-1. After oral argument, the parties agreed to treat RFR’s preliminary injunction motion as a

motion for summary judgment, except to the extent that RFR’s claims arise under the First

Amendment. Dkt. 27 at 1, 5. Both of those motions—RFR’s motion for a preliminary

injunction with respect to its First Amendment claims, and its motion for summary judgment

with respect to its other claims—are now ripe for decision.

As explained below, the Court agrees with the Commission that what RFR calls a petition

is, in fact, a contact list and, more importantly, an in-kind contribution. As such, the list is

subject to the contribution limits contained in the Federal Election Campaign Act (“FECA” or

the “Act”), 52 U.S.C. §§ 30101 et seq., and it is now well-trod ground that those limits satisfy

constitutional dictates. Finally, although the Commission did not entirely resolve the question,

the Court concludes that it makes no difference whether Governor DeSantis has declared his

candidacy, whether he has invoked the regulatory exception for “testing the waters,” or whether

2 he has done neither at the point at which he accepts RFR’s contact list. By accepting the list, he

would necessarily commit himself to either a candidacy or testing the waters, both of which

require contributors (including in-kind contributors) to comply with FECA’s contribution

limitations. To hold otherwise would invite massive evasion of the campaign finance laws by

allowing those seeking office simply to wait to declare their candidacies or to invoke the testing-

the-waters exception until after they have assembled war-chests of non-FECA-compliant

contributions. Congress precluded circumvention of this type by defining a candidate as anyone

who receives “contributions aggregating in excess of $5,000,” 52 U.S.C. § 30101(2)(A), and by

defining a “contribution” to include “any gift . . . of money or anything of value made by any

person for the purposes of influencing any election for Federal office,” id. § 30101(8)(A)(i).

The Court will, accordingly, DENY RFR’s motion for summary judgment on its non-

First Amendment claims and will DENY RFR’s motion for a preliminary injunction on its First

Amendment claims.

I. BACKGROUND

A. Statutory and Regulatory Background

The Federal Election Campaign Act sets forth a comprehensive scheme regulating federal

campaign finance. Among other things, FECA limits the amount that a “person” may

“contribut[e]” to a “candidate” with respect to an “election for Federal office” to $3,300. 52

U.S.C. §§ 30116(a)(1)(A), 30116(c), 11 C.F.R. § 110.1(b)(1).1 Because this case turns in

1 At the time the parties initially briefed the pending motion, the limit was $2,900, but it increased to $3,300 on February 2, 2023. Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 88 Fed. Reg. 7088, 7090 (Feb. 2, 2023). 3 considerable part on the meaning and scope of this limitation, the Court describes each of its

components in turn.

Under FECA, a “person” includes, among other things, a political “committee.” 52

U.S.C. § 30101(11), (4). RFR does not dispute that it is a “person” within the meaning of the

Act. Dkt. 8-1 at 36 n.4.

FECA defines a “contribution” to include “any gift, subscription, loan, advance, or

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

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). As the capacious terms “any gift” and

“anything of value” suggest, contributions are not limited to the donation of money and include

“the provision of in-kind assistance.” Buckley v. Valeo, 424 U.S. 1, 36–37 (1976); see also

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 784–88 (D.C. Cir. 2022) (“[U]tilizing political

committee staff time, office space, or other resources in cooperation with a candidate counts as a

contribution.”). FEC regulations define in-kind contributions as “the provision of any goods or

services without charge or at a charge that is less than the usual and normal charge for such

goods or services.” 11 C.F.R. § 100.52(d)(1). Such “goods or services” include “membership

lists” and “mailing lists.” Id.

FECA defines a “candidate” as “an individual who seeks nomination for election, or

election, to Federal office.” 52 U.S.C. § 30101(2). And FECA “deem[s]” an individual to be

“seek[ing] nomination for election, or election, to Federal office”—i.e., to be a candidate—if

“such individual has received contributions aggregating in excess of $5,000 or has made

expenditures aggregating in excess of $5,000.” Id. § 30101(2)(A). So under the statute, the

“recei[pt]” of over $5,000 in “contributions” makes a person a “candidate.” Id. But not

everyone who receives $5,000 is a candidate, only those who receive $5,000 (or $5,000 worth of

4 in-kind assistance) that was provided “for the purpose of influencing any election for Federal

office.” Id.; id. § 30101(8)(A)(i).

Although FECA’s definition of “candidate” does not admit of obvious exceptions, the

FEC has recognized a limited one “for individuals wishing to ‘test the waters’ of a potential

candidacy.” Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 43 (D.D.C. 2021). Under the

FEC’s testing-the-waters regulations, “[f]unds received” or “[p]ayments made” “solely for the

purpose of determining whether an individual should become a candidate” are not treated as

immediately reportable contributions or expenditures. 11 C.F.R. §§ 100.72(a), 100.131(a).

Instead, the recipient need not report the contributions or expenditures unless and until the “the

principal campaign committee of the candidate” files its “first report,” “regardless of the date the

funds were received” or “the payments were made.” 11 C.F.R. §§ 100.72(a), 100.131(a). These

regulations, then, are an exemption from that which FECA would otherwise require: if an

individual accepts “contributions aggregating in excess of $5,000,” 52 U.S.C. § 30101(2)(A), she

automatically becomes a “candidate” under the statute, subject to all related obligations, unless

the testing-the-waters exceptions offers shelter from some such requirements.2

This exemption is valuable, because it allows those considering candidacies to do so

discretely. If funds raised and expended for the purpose of exploring a candidacy—conducting

preliminary polling and travel, for instance—were treated as reportable contributions or

expenditures under the Act, they would have to be publicly disclosed. The testing-the-waters

regulations “permit individuals to conduct certain activities while deciding whether to become a

2 As explained further below, RFR does not dispute that it seeks to deliver its petition and contact list to Governor DeSantis “for the purpose of influencing an[] election for Federal office,” 52 U.S.C. § 30101(8)(A)(i), or, more precisely, “to persuade Governor DeSantis to become and remain a candidate for the Republican nomination for President in the 2024 election,” Dkt. 1 at 5 (Compl. ¶ 9). 5 candidate for Federal office, without making their activities immediately public.” Payments

Received for Testing the Waters Activities, 50 Fed. Reg. 9993 (Mar. 13, 1985).

But testing the waters does not mean that anything goes. Recognizing that permitting an

individual to receive (and to expend) contributions in excess of the contribution limits and from

prohibited sources while “testing the waters” would invite “circumvention of the prohibitions

and limitations of the Act,” the FEC revised the exemption in 1985 to “require that all funds

received” under the exemption remain “subject to the Act’s limitations and prohibitions.” Id. at

9994. The revised rule was “intended to clear up any misconceptions that the ‘testing the waters’

provisions may be used,” for example, “to raise ‘seed money’ for prospective candidates.” Id.

As a result, large donors cannot use the exemption to evade contribution limits, and prohibited

sources (including foreign interests, corporations, and unions) cannot use the exemption to make

otherwise unlawful contributions. Thus, although by their terms the testing-the-waters

regulations provide that certain (but not all) funds received by an individual considering a run for

office “are not contributions” (at least until the person declares her candidacy), 11 C.F.R.

§§ 100.72(a), 100.131(a), in practice the regulations carve out a limited exception to the Act’s

disclosure requirements for those who receive contributions in excess of $5,000 (and who,

accordingly, are technically “candidates” under FECA) while they consider a candidacy.

FECA does not regulate all money spent in politics to the same degree. Contributions to

candidates—as those terms have been defined above—must be made with money subject to

FECA’s disclosure requirements and source and amount limitations. See McConnell v. FEC, 540

U.S. 93, 122 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310

(2010). These FECA-compliant funds are known as “hard money.” Id. Conversely, funds that

are not subject to FECA’s strictures are known as “soft money.” See Carey v. FEC, 791 F. Supp.

6 2d 121, 126 (D.D.C. 2011). Political committees may raise and spend unlimited quantities of

soft money, subject to two constraints: (1) such committees must not be connected to or

authorized by a particular candidate, and (2) the soft money must be spent on “independent

expenditures”—expenditures that are not made to or spent in coordination with a candidate, a

candidate’s authorized committee, or a political party committee. See id.

In order to allow participants in the political process to operate with substantial certainty

regarding their legal obligations, the Act permits people to request advisory opinions from the

FEC regarding whether a “specific [proposed] transaction or activity by the person” is legally

permissible. 52 U.S.C. § 30108(a)(1). The FEC is required to accept comments on the request

and to issue a response within sixty days. Id. § 30108(a)(1), (d). FECA specifies, however, that

no advisory opinion shall issue absent “the affirmative vote of 4 members of the Commission.”

Id. § 30106(c). If four commissioners are unable to agree on the content of an advisory opinion,

the FEC issues a response stating that it was “unable to approve an advisory opinion by the

required affirmative vote of 4 members.” 11 C.F.R. § 112.4(a). But if at least four

commissioners agree to approve the proposed course of action—so a favorable advisory opinion

issues—the party who requested the opinion, “and any person involved in an identical

transaction or activity to that described in the request, may rely in good faith on the opinion and

will be protected from any sanction under FECA that might otherwise attach to the transaction or

activity.” McCutcheon v. FEC, 496 F. Supp. 3d. 318, 324–25 (D.D.C. 2020) (citing 52 U.S.C.

§ 30108(c)). Only a favorable advisory opinion provides this safe harbor. Both the issuance of

an opinion disapproving the proposed action and the failure to issue an opinion because of

disagreement amongst commissioners deprive the requester of any protection against subsequent

7 enforcement. See Unity08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010); Chamber of Com. of the

U.S. v. FEC, 69 F.3d 600, 603–04 (D.C. Cir. 1995).3

B. Factual Background

RFR is a political committee “formed for the purpose of drafting [Florida Governor] Ron

DeSantis as a candidate for the Republican nomination for President in the 2024 election.” Dkt.

23-2 at 2. It has not been authorized by Governor DeSantis and is not acting in coordination

with him or any political committees he has authorized. Id. at 1, 3. RFR is a “hybrid”

committee, meaning that it raises and spends both hard and soft money. Dkt. 1 at 5 (Compl. ¶ 7).

RFR has devoted itself to the compilation of what it refers to as a “petition” encouraging

Governor DeSantis to run for president.4 As of February of this year, RFR had expended over $1

3 Both the issuance of an unfavorable advisory opinion and the non-issuance of an opinion create a justiciable controversy for Article III purposes. In either case, the requester has been “deprive[d] . . . of a legal right” that “it would enjoy if it had obtained a favorable resolution in the advisory opinion process.” Unity08 v. FEC, 596 F.3d 681, 865 (D.C. Cir. 2010). As a result, “[n]othing . . . prevents the Commission from” instituting an enforcement action “at any time,” including after, “perhaps, another change of mind of one of the Commissioners” in the case of a deadlocked non-opinion. Chamber of Com. of the U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995). What is more, FECA “permits a private party to challenge the FEC’s decision not to enforce,” so “even without a Commission enforcement decision,” a requester is “subject to litigation challenging the legality of [its] actions.” Id. (emphasis in original). Finally, FECA’s restrictions bear on First Amendment interests, and “[a] party has standing to challenge, pre- enforcement, . . . the constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a credible threat of prosecution.” Id. (emphasis omitted). 4 The petition reads:

America is in grave danger from the Radical Left and their failed, socialist, woke policies. The America-First agenda MUST be revived. Governor Ron DeSantis is the next Great American President—like Ronald Reagan and Donald Trump—who will turn our country around. We must organize NOW—we cannot wait and let the Left take another election. I am Ready for Ron! Let Ron know I’m behind him and want to join his team!

Dkt. 8-3 at 1.

8 million “soliciting and gathering over 200,000 real, electronic, and telephonic signatures with

contact information” for this petition. Dkt. 17 at 8. It expects to spend a further $25,000-50,000

per week for the duration of the 2024 election. Dkt. 1 at 9 (Compl. ¶ 25). RFR has spent both

hard and soft money on this project, purchasing television, social media, and other

advertisements and acquiring contact lists that it has used for robocalls and mass e-mail

campaigns. Dkt. 1 at 8–9 (Compl. ¶¶ 21, 23, 25); Dkt. 8-2 at 2–3, 5 (Llanes Decl. ¶¶ 9, 16, 25).

These communications explain the purpose of the petition and urge recipients to add their names

and contact information. Dkt. 1 at 8–9 (Compl. ¶ 21). RFR requires signatories to provide either

an e-mail address or phone number. Id. at 9 (Compl. ¶ 26); Dkt. 8-2 at 3 (Llanes Decl. ¶ 13).

RFR would like to present its petition, complete with the names and contact information

of the signatories, to Governor DeSantis at a time to be determined. Dkt. 23-2 at 4.5 After doing

so, it wants to continue to provide him regular updates, with new names and contacts it has

compiled, for the duration of any presidential campaign he might undertake. Id.

5 RFR’s proposed letter to Governor DeSantis states:

Please accept this petition to express the widespread public support to draft you to become, and remain, a candidate for the Republican nomination for President in the 2024 election and, when nominated, a candidate for the office of President of the United States.

All of the signatories below have virtually signed this petition to demonstrate their support. They provided Ready for Ron with their names and contact information to convey to you as part of this petition on their behalf. They have endorsed the following message:

[Text of the petition]

Thank you for your continued leadership. Enclosed as part of this petition are the virtual signatures and contact information of the signatories who have joined together to express their political beliefs and persuade you to run for President.

Dkt. 8-4 at 1–2. 9 By RFR’s own admission, the petition it has created has a market value of greater than

$3,300. Id.; Dkt. 1 at 9–10 (Compl. ¶ 26). The value lies in the contact information: RFR

estimates that “[a] reasonable sample market value of contact information in political distribution

lists is presently approximately 5 cents each,” Dkt. 23-2 at 4; Dkt. 8-2 at 5 (Llanes Decl. ¶ 27),

meaning that RFR’s list hit the $3,300 threshold when it reached 66,000 signatories, a number it

has now well surpassed. RFR believes that it “will likely amass well over a million . . .

signatures” before all is said and done. Dkt. 23-2 at 4.

In May 2022, RFR submitted a request for an advisory opinion to the FEC. Dkt. 23-2 at

1. It sought guidance on whether it could present its “petition” to Governor DeSantis and, if so,

whether it was required to do so either before Governor DeSantis began testing the waters or

before he became a candidate. Id. at 4–5.

After considerable back and forth between RFR and the FEC and a public hearing, the

FEC issued an opinion that largely disapproved RFR’s proposed course of action. Id. at 190–

200. The FEC unanimously concluded that RFR could not give the “petition” to Governor

DeSantis if he becomes a candidate or begins testing the waters. Id. at 193. According to the

FEC, this was so for two reasons: First, the “petition”—or, more precisely, the contact

information that RFR plans to include—constitutes a contact list that is a “thing of value” worth

more than $2,900 (the then-applicable limit). Id. at 194–96. In the Commission’s view, because

the petition contains the contact information of signatories (and has been compiled at

considerable expense), it is indistinguishable from well-established categories of in-kind

contributions like mailing and contributor lists. Id. at 194–95. As such, providing it to Governor

DeSantis free of charge when he is a candidate or is testing the waters would either constitute an

unlawful campaign contribution or would violate the testing-the-waters exception. Id. at 195–97.

10 Second, because RFR has funded the creation of the petition in part with soft money, providing

the petition to Governor DeSantis would violate the restriction on making contributions of soft

money to candidates. Id. at 198–99 (citing 52 U.S.C. § 30125(e)(1)(A)). The FEC, however,

was unable to obtain the requisite four affirmative votes for an advisory opinion addressing

whether RFR could provide the petition to Governor DeSantis before he begins testing the

waters, so it issued no decision on that score. Id. at 199.

C. Procedural Background

RFR filed this lawsuit on October 27, 2022. Dkt. 1 (Compl.). It brings six claims for

relief: (1) a First Amendment claim brought directly under the Constitution, the gravamen of

which is that the FEC’s advisory opinion violates the First Amendment as do FECA’s

contribution limits (and associated regulations) as applied to RFR’s proposed course of action;

(2) an Administrative Procedure Act (“APA”) challenge to the FEC’s advisory opinion (and

failure to issue a favorable advisory opinion) as arbitrary, capricious, and contrary to law; (3) a

claim under the Declaratory Judgment Act seeking a declaration that the advisory opinion is

unenforceable and that the First Amendment and FECA permit RFR to fund and submit its

petition to Governor DeSantis as it wishes; (4) an “Equitable Claim for Injunctive Relief”

seeking a permanent injunction barring the FEC from enforcing FECA’s contribution limits

against it in connection with its providing the petition to Governor DeSantis; (5) a statutory

claim brought directly under FECA seeking a “declaration of right” that its proposed actions are

permissible under the statute and an injunction prohibiting the FEC from bringing an

enforcement action related to its proposed conduct; and (6) an APA challenge to the testing-the-

waters regulation. Dkt. 1 at 31–40 (Compl. ¶¶ 93–131).

11 RFR has since conceded that its “equitable claim for injunctive relief” does not constitute

a distinct claim but, instead, is merely a request for relief on its other claims, and it has

essentially conceded (as it must) that FECA does not establish an independent cause of action

applicable here. Dkt. 17 at 12 n.1. In addition, although RFR does not concede the point, RFR’s

Declaratory Judgment Act claim is not substantively distinct from its constitutional, statutory,

and regulatory claims, and thus that claim is best viewed as a request for declaratory relief

should RFR prevail on its substantive arguments.6 Cf. Malek v. Flagstar Bank, 70 F. Supp. 3d

23, 28 (D.D.C. 2014). In substance, then, RFR has brought (1) an as-applied First Amendment

challenge to the advisory opinion and FECA’s contribution limits, (2) an APA challenge to the

advisory opinion (which implicates the interpretation of FECA and FEC regulations), and (3) an

APA challenge to the testing-the-waters regulation. If successful on any of these claims, RFR

then requests appropriate declaratory and injunctive relief.

Approximately two months after filing suit, RFR moved for a preliminary injunction.

Dkt. 8. It asks the Court to enjoin the FEC from instituting enforcements proceedings against it

related to its plan to give its petition to Governor DeSantis at any time (before or after Governor

DeSantis tests the waters or becomes a candidate), providing Governor DeSantis periodic

updates to the petition thereafter, and accepting unlimited soft money and spending this money

in connection with the petition. Id. at 1–2. It also requests an injunction against the enforcement

of the testing-the-waters regulations. Id. at 2. The Court held a motion hearing on February 28,

6 RFR seems to treat its statutory FECA arguments as substantively distinct from its APA claim, Dkt. 17 at 12 n.1. But in the Court’s view, RFR’s APA claim turns at least in part on the correct interpretation of FECA and the FEC’s regulations.

12 2023, Min. Entry (Feb. 28, 2023), at which it requested supplemental briefing on certain issues,

which the parties have now provided, Dkt. 24; Dkt. 25; Dkt. 26; Dkt. 28.

Following the motion hearing, the parties consented to treating RFR’s motion for a

preliminary injunction as one for summary judgment and a permanent injunction for all counts

except Count I, RFR’s constitutional claim. Dkt. 27 at 1–2. Because portions of RFR’s APA

claims assert essentially the same First Amendment challenge, the Court also considers those

portions outside the scope of the parties’ consent to resolution for summary judgment purposes.

RFR would also treat its preliminary injunction motion as one for summary judgment as to the

First Amendment issues, but the FEC has requested discovery as to these issues. Id. at 2. RFR

contends that discovery is unnecessary and would needlessly delay resolution of this matter. Id.

The Court will, accordingly, treat RFR’s preliminary injunction motion as a motion for

summary judgment and a permanent injunction as to all non-First Amendment claims, whether

asserted directly under the Constitution or pursuant to the APA. This will require the Court to

apply the preliminary injunction standard to RFR’s First Amendment claims, and the summary

judgment standard to its remaining claims.

II. STANDARD OF REVIEW

A preliminary injunction is an “extraordinary remedy,” Singh v. Berger, 56 F.4th 88, 95

(D.C. Cir. 2022), and in deciding whether to grant it the Court must ask four questions: Is the

movant likely to succeed on the merits of its claims? Will the movant likely suffer “irreparable

harm in the absence of preliminary relief”? Does the balance of equities favor preliminary

relief? And is an injunction in the public interest? Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). “In First Amendment cases, the likelihood of success will often be the

determinative factor in the preliminary injunction analysis.” Green v. United States Dep’t of

13 Just., 54 F.4th 738, 745 (D.C. Cir. 2022) (quoting Pursuing America’s Greatness v. FEC, 831

F.3d 500, 511 (D.C. Cir. 2016)).

At one time the courts in this circuit applied a “sliding-scale” approach under which “a

strong showing” on one of the preliminary injunction factors could make up for a “weaker

showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). But after the

Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7

(2008), the D.C. Circuit has suggested although never squarely held that this approach is no

longer appropriate, at least as to likelihood of success, which is a “free-standing requirement” for

a preliminary injunction. Sherley, 644 F.3d at 393 (quoting Davis v. Pension Benefit Guar.

Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)). As noted, because

irreparable injury is typically presumed when the moving party has established a likelihood of

success on the merits of a First Amendment challenge, the availability (or not) of the sliding-

scale approach is of little consequence in this case.

RFR’s other claims—those that the Court will resolve under the summary judgment

standard—are APA claims seeking equitable and declaratory relief. The Court will, accordingly,

consider these claims under the familiar APA standard of review, which requires the Court to

“hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In an APA case, summary

judgment “serves as a ‘mechanism for deciding, as a matter of law, whether the agency action is

. . . consistent with the APA standard of review.’” Fisher v. Pension Benefit Guar. Corp., 468 F.

Supp. 3d 7, 18 (D.D.C. 2020) (quoting Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 9

(D.D.C. 2019)). In essence, “the district judge sits as an appellate tribunal,” and “the entire case

14 on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.

Cir. 2001) (internal quotation marks omitted).

III. ANALYSIS

RFR raises a host of statutory and constitutional challenges. The Court starts with RFR’s

statutory challenges, which take a variety of forms, and then turns to its constitutional claims.

A.

RFR’s lead argument is that its petition is not a contribution under FECA and thus is not

subject to FECA’s contribution limitations. The Court is unpersuaded.

Some clarification is in order at the outset. The FEC stresses that it sees no problem with

RFR providing its petition—complete with the list of signatures—to Governor DeSantis. Dkt.

16 at 29 (“[T]he contribution limit applies only to restrict the private transfer of the mailing list

with contact information, not the petition to which it is attached.”); Dkt. 22 at 36 (noting that

RFR “has many alternative avenues for communicating its message” including through “a

petition without the contact information”); id. at 39–40 (“[W]e are concerned not with the

message that Ready for Ron is trying to communicate at all . . . we have gone specifically for the

contact information . . . .”). Its only concern arises from RFR’s plan to provide Governor

DeSantis with the contact information of the signatories, because that compilation of contact

information is, in all but name, a mailing or contact list. Id. As a result, RFR’s framing of this

case as one about its “petition” is inaccurate. Rather, the dispute is about the contact list. Going

forward, then, the Court will refer to the operative item as a “contact list,” unless the

accompanying petition is somehow relevant.

Whether the FEC correctly determined that RFR’s contact list falls within FECA’s

definition of a “contribution” is a question of statutory construction. The D.C. Circuit has held

15 that FEC advisory opinions interpreting FECA are entitled to Chevron deference, FEC v. Nat’l

Rifle Ass’n of Am., 254 F.3d 173, 184–86 (D.C. Cir. 2001); see also FEC v. Democratic

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (stating that the FEC is “precisely the type

of agency to which deference should presumptively be afforded”), so the Court would typically

review the agency’s interpretation of FECA under the familiar Chevron framework. Here,

however, although Chevron applies, pacing through the Chevron two-step is unnecessary

because the FEC’s conclusion that RFR’s contact list constitutes a “contribution” under FECA is

“not only reasonable but also the best interpretation of the statute,” and it is the one the Court

would adopt irrespective of Chevron. Wash. Reg’l Medicorp v. Burwell, 813 F.3d 357, 362

(D.C. Cir. 2015); cf. Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 45 F.4th

306, 314 (D.C. Cir. 2022) (“[T]here is no need to decide what deference, if any, a regulation

should receive where we can conclude that the agency’s interpretation of the statute is the best

one.”). So the Court need only interpret FECA using the traditional tools of statutory

construction and leave it at that.

The contact list that RFR proposes to give to Governor DeSantis easily falls within the

Act’s definition of a “contribution.” Under that definition, a contribution is, in relevant part,

“any gift . . . of money or anything of value made by any person for the purpose of influencing

any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). RFR does not contest that it would

like to provide its petition and contact list to Governor DeSantis in order to “influenc[e] an[]

election for Federal office.” Id. Quite the opposite; it freely acknowledges that its goal is to

convince Governor DeSantis to run for President, to remain a candidate throughout the election

cycle, and, one can only assume, to prevail in that effort. Dkt. 1 at 5–7 (Compl. ¶¶ 9–17). The

petition itself declares that “Governor Ron DeSantis is the next Great American President . . .

16 who will turn our country around,” and it invites signatories to “[l]et Ron know [they are] behind

him and want to join his team!” Dkt. 8-3 at 1. The FEC, moreover, soundly concluded that the

contact list constitutes more than unadorned advocacy urging Governor DeSantis to join the race

or urging others to support him. Rather, it is a uniquely effective, tangible tool designed to assist

him in pursing the presidency. Dkt. 23-2 at 195–96.7 So, the question is whether the contact list

is a “gift” of “anything of value.” 52 U.S.C. § 30101(8)(A)(i).

Begin with the word gift, which means “something that is voluntarily transferred by one

person to another without compensation.” Gift, Webster’s Third New International Dictionary

(2d ed. 1976) (def. 2); accord Gift, Webster’s Third New International Dictionary (3d ed. 1993)

(identical definition); Gift, Oxford English Dictionary (3d ed. Mar. 2023) (def. II.3.a

“Something, the possession of which is transferred to another without the expectation or receipt

of an equivalent; a donation, present”); Gift, Oxford English Dictionary (2d ed. 1989) (identical

definition); Gift, Black’s Law Dictionary (10th ed. 2014) (“The voluntary transfer of property to

another without compensation”; “A thing so transferred”). Thus if RFR voluntarily transfers its

7 The Court notes that the implicit position the FEC has taken in this case with respect to what sorts of transfers are made “for the purpose of influencing any election for Federal office,” 52 U.S.C. § 30101(8)(A)(i), is consistent with that which it has taken previously. In ActBlue, FEC Advisory Op. 2006-30 (Nov. 9, 2006), https://www.fec.gov/files/legal/aos/2006-30/2006-30.pdf, the FEC approved a proposal by ActBlue to solicit and receive funds for prospective candidates for the 2008 presidential election and to withhold remitting those funds to the prospective candidates until they in fact registered as candidates. Id. at 1. But it cautioned that if these earmarked contributions were forwarded “to a Prospective Candidate before that person register[ed]” their candidacy, “both ActBlue and the Prospective candidate should recognize that a Prospective Candidate who receives contributions aggregating in excess of $5,000 becomes a candidate under the Act and . . . must register [as such].” Id. at 5. This analysis presumes that transfers made for the purpose of supporting the potential candidacy of a prospective candidate can constitute contributions within the meaning of the Act and thus are made “for the purpose of influencing an[] election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). That assumption is equally apt here, where RFR seeks to provide something to a prospective candidate in order to induce and then to support his potential candidacy. 17 contact list to Governor DeSantis without compensation, it is a gift. Not only is that result

consistent with the term’s ordinary meaning, it is the only one that is plausible in context.

FECA’s concern is the provision of benefits to candidates—i.e. the giving of things to

candidates—in ways that might give rise to corruption or its appearance. Buckley, 424 U.S. at

25–26. The plain meaning of “gift” addresses precisely this concern.

The contact list is also a “[]thing of value” such that the giving (or “gift[ing]”) of it

makes it a contribution. 52 U.S.C. § 30101(8)(A)(i). Something is a “thing of value”—it is

“valuable”—if it has “financial or market value.” Valuable, Black’s Law Dictionary, supra; see

also Value, Black’s Law Dictionary, supra (def. 2 “The monetary worth or price of something;

the amount of goods, services, or money that something commands in an exchange”); Valuable,

Webster’s Third New International Dictionary (2d. ed. 1976) (def.1 “possessing monetary value

in use or exchange”); Value, Webster’s Third New International Dictionary (2d ed. 1976) (def. 2

“the monetary worth of something”). There is no dispute that RFR’s contact list has

considerable financial or market value. RFR has spent over $1 million creating it, Dkt. 17 at 8,

and by RFR’s own estimate, its fair market value is greater than $11,000, Dkt. 23-2 at 4; Dkt. 25

at 33.

The reason RFR’s contact list is so valuable—and this is in many ways the crux of the

case—is that it is indistinguishable from a mailing list, a well-established “thing of value” the

provision of which for less than its ordinary price constitutes a “contribution” under FECA. As

this Court recognized in Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45

(D.D.C. 1999), “mailing lists have commercial value and are routinely rented for fundraising or

other solicitation purposes.” Id. at 96; see also FEC v. Int’l Funding Inst., Inc., 969 F.2d 1110,

1116 (D.C. Cir. 1992) (recognizing that lists of donors are “the product of time-consuming,

18 labor-intensive activities that can cost a political committee thousands, even millions, of dollars”

(internal quotation marks omitted)). RFR understands this; RFR itself spent thousands of dollars

to rent mailing lists to use for soliciting signatories for its petition. Dkt. 1 at 9 (Compl. ¶ 23);

Dkt. 23-2 at 18. Any doubt regarding the status of mailing lists, moreover, is put soundly to rest

by an FEC regulation providing that “the provision of any goods or services,” including, for

example, “membership lists[] and mailing lists,” “without charge . . . is a contribution.” 11

C.F.R. § 100.52(d)(1). Notably, RFR does not challenge the reasonableness or constitutionality

of this regulation.

In short, then, RFR seeks to give Governor DeSantis a valuable contact list, and its

purpose in doing so is to influence the 2024 election by inducing Governor DeSantis to become a

candidate in that election and supporting him in his candidacy. Such a conveyance is a

contribution under 52 U.S.C. § 30101(8)(A)(i).

RFR urges the Court to reject these commonsense interpretations of both “gift” and

“thing of value,” but its reasons are unpersuasive.

RFR first argues that whatever the word “gift” encompasses, it cannot include a petition,

because a petition is “[p]ure political speech.” Dkt. 8-1 at 23. That contention rests on a faulty

premise. Although the text of the petition and the list of associated names constitute core

political speech, the same cannot be said for the contact information. RFR never explains why

“John Doe – john.doe@website.com” or “John Doe – (123) 867–5309” carry meaningful

expressive value above and beyond “John Doe.” And, as explained, the FEC has indicated that it

would not object to RFR presenting the petition without the associated contact information. Dkt.

16 at 29; Dkt. 22 at 36, 39–40. So the information that the FEC seeks to restrict is not core

political speech; it is contact information.

19 The notion that the presence of a significant speech component exempts an item from the

ambit of “gift” and thus FECA more generally is also a non-sequitur. Campaign finance

regulation, in general, involves some regulation of political speech. Buckley, 424 U.S. at 16.

But as the Supreme Court has held time and again, because “contributions lie closer to the edges

than to the core of political expression,” FEC v. Beaumont, 539 U.S. 146, 161 (2003),

contribution limits—like those at play here—may permissibly be regulated, see McCutcheon v.

FEC, 572 U.S. 185, 197 (2014). RFR’s contention that items with speech components are “not

ordinarily characterized as [] ‘gift[s]’ and therefore do[] not constitute [] ‘contribution[s],’” Dkt.

8-1 at 24, ignores the history of campaign finance regulation and dozens of opinions from the

Supreme Court, the D.C. Circuit, and this Court that approve the regulation of speech in the form

of campaign contributions. RFR’s construction also contradicts the plain language of FECA and

the “cardinal principle of statutory construction” that a court must “give effect, if possible, to

every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000) (cleaned up).

Failing to make headway on plain meaning, RFR invokes other canons of construction,

none of which sheds meaningful light on the interpretive questions presented here. RFR first

cites to the noscitur a sociis semantic canon—“a word is known by the company it keeps,” Ali v.

Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (quoting S.D. Warren Co. v. Maine Bd. Of

Env’t Prot., 547 U.S. 370, 378 (2006))—as a basis to read “gift” to exclude contact lists, at least

if they are appended to “petitions.” It notes that the definition of contribution includes a list of

terms in addition to “gift”—“subscription, loan, advance, or deposit,” 52 U.S.C.

§ 30101(8)(A)(i)—and that each of these terms has some financial connotation. Dkt. 8-1 at 25.

Applying the noscitur canon, then, RFR maintains that the Court should read the term “gift” to

cover only “transfers with a financial aspect.” Id. at 24–25. This argument does bring several

20 additional words of the statute into the picture, but, more importantly, it leaves critical ones out.

In full, the provision says that the word “contribution includes . . . any gift, subscription, loan,

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

influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). The disjunctive phrase

“money or anything of value” lays plain that “contribution[s],” and thus “gift[s],” are not limited

to money or other forms of currency or things with a defined transactional value. Id. (emphasis

added); see Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “‘or’

is ‘almost always disjunctive’” (quoting United States v. Woods, 571 U.S. 31, 45 (2013)). And,

as recounted above, courts have long read the word “gift” to include in-kind contributions that do

not have a “financial aspect” as RFR would narrowly define that concept. Buckley, 424 U.S. at

36–37 (discussing “food or beverages” and “travel” as types of in-kind contributions); Campaign

Legal Ctr., 31 F.4th at 784 (describing in-kind contributions to include “committee staff time,

office space, or other resources”).

Lest there be any doubt, the statute does not merely refer to “gift[s]” or “things of value”

but rather “any gift” and “anything of value.” 52 U.S.C. § 30101(8)(A)(i) (emphasis added).

“Any,” whether used on its own or as part of another word, “has an expansive meaning, that is,

‘one or some indiscriminately of whatever kind.’” United States v. Gonzalez, 520 U.S. 1, 5

(1997) (quoting Any, Webster’s Third New International Dictionary (2d ed. 1976)). Such broad

language cannot plausibly be construed as limited to items with a transactional or “financial

aspect.” To conclude otherwise would deprive the Act’s contribution limits of any practical

meaning. Under RFR’s reading of the statute, large contributors could easily evade the statutory

limits by purchasing all of the supplies a campaign might need. RFR fails to explain, for

example, whether or how its reading of the statute would preclude a contributor with sufficient

21 resources from buying an airplane (and all the necessary fuel) to allow the candidate to travel the

country. Airplanes are not financial instruments, but they are certainly things of value.

RFR also looks for support in three substantive canons: constitutional avoidance, the

major questions doctrine, and the rule of lenity. Taking these in order, the canon of

constitutional avoidance applies only if one potential interpretation of a statute would raise

“grave and doubtful constitutional questions.” Rust v. Sullivan, 500 U.S. 173, 191 (1991)

(quoting United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)). As

the Court explains in more detail below, the FEC’s interpretations of “any gift” and “anything of

value” do not give rise to any “grave” constitutional doubts, so the canon is inapplicable. Next,

the major questions doctrine addresses those “‘extraordinary cases’ in which the ‘history and the

breadth of the authority that [the agency] has asserted,’ and the ‘economic and political

significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’

meant to confer such authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022) (alteration

in original) (some internal quotation marks omitted) (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159–60 (2000)). It applies in particular when such authority

“lack[s] historical precedent,” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

505 (2010) (internal quotation marks omitted), in the face of ambiguous statutory language, see

West Virginia, 142 S. Ct. at 2608. Nothing like that is presented here. The authority the FEC

asserts is no different than the authority it has always asserted and that the Courts have

recognized and upheld since FECA’s inception. See Buckley, 424 U.S. at 29, 36–37. “Any gift”

and “anything of value” also reside in the definition of one of FECA’s core provisions, hardly

the sort of “cryptic” statutory language with which the major questions doctrine is most

concerned. West Virginia, 142 S. Ct. at 2608 (quoting Brown & Williamson Tobacco Corp., 529

22 U.S. at 160). Lastly, the rule of lenity applies only where a statute presents a “grievous

ambiguity.” Shaw v. United States, 580 U.S. 63, 71 (2016) (quoting Muscarello v. United States,

524 U.S. 125, 138–39 (1998)). For reasons already provided, the relevant statutory text is not

ambiguous, much less grievously so.

To be sure, the FEC itself asserts that the definition of contribution is ambiguous, hence

its invocation of Chevron deference. But not all ambiguity is of the same stripe. The Supreme

Court made this point in a related context in Buckley v. Valeo, 424 U.S. 1 (1976), where it

observed that any uncertainty regarding the meaning of the phrase “for the purpose of

influencing” an election “presents fewer problems in connection with the definition of a

contribution” than in other contexts, “because of the limiting connotation created by the general

understanding of what constitutes a political contribution.” 424 U.S. at 23 n.24. This is just such

a circumstance, where the provision of mailing lists and the like without charge has long been

understood to qualify as an in-kind contribution. Christian Coalition, 552 F. Supp. 2d at 96; Int’l

Funding Inst., 969 F.2d at 1116. Moreover, the relevant inquiry—at Chevron step one and when

applying other ambiguity-dependent interpretative canons—is not whether there lurks some

ambiguity in a statutory provision when that provision is read in a void or is applied to

circumstances not raised in the case. Brown & Williamson Tobacco Corp., 529 U.S. at 132–33.

Rather, the question is whether a statutory term is ambiguous as to the particular application at

issue. Calif. Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C. Cir. 2004) (“The

issue is not so much whether the word ‘practice’ is, in some abstract sense, ambiguous, but rather

whether, read in context and using the traditional tools of statutory construction, the term

‘practice’ encompasses the procedures [that were challenged in the case].”). This is because

“[t]he meaning—or ambiguity—of certain words or phrases may only become evident when

23 placed in context.” Brown & Williamson Tobacco Corp., 529 U.S. at 131; Brown v. Gardner,

513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of

statutory context.”). The question here is thus whether FECA’s definition of “contribution” is

ambiguous as applied to RFR’s contact list. It is not, and RFR cites to no precedent, dictionary,

or alternative reading of the text that could plausibly support excluding mailing or contact lists

from the statutory definition of in-kind contributions.

RFR next endeavors to distinguish its contact list from a mailing or contributor list. It

emphasizes first that unlike a more typical mailing list, the item it proposes to provide also

contains political speech, namely, the content of the petition and the names of the signatories.

This boils down to the unsupportable submission that if expressive content it attached to a

contact list, it is no longer a contact list. More generally, RFR’s argument seems to be that if

expression is added to a “thing of value,” it becomes something other than a “thing of value.”

That contention does not pass the straight-face test. The hypothetical airplane described above is

still an airplane (and still an in-kind contribution), even if the donor stencils a “petition” on the

back of every seat. So too with contact lists. If it were otherwise, FECA would be a nullity; all

contributions could become non-contributions so long as an expressive element is added.

Buckley famously held that “the dependence of a communication on the expenditure of

money . . . [does not] introduce a nonspeech element [to the communication] or [] reduce the

exacting scrutiny required by the First Amendment.” Id. at 16. But the converse is also true: the

combination of a speech element with an item of monetary value does not eliminate the

monetary value of the latter nor the ability of the government to regulate it consistent with the

First Amendment. Cf. United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[W]hen ‘speech’

and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important

24 governmental interest in regulating the nonspeech element can justify incidental limitations on

First Amendment freedoms.”). This is particularly true where the core political speech (here, the

petition itself) and the in-kind contribution are not unavoidably linked; RFR can provide

Governor DeSantis with its “petition” without also providing him with its contact list.

It also bears mention that when given the opportunity to engage in the core political

speech that it invokes here, while excluding the valuable contact list, RFR declined. In

explaining its refusal to yield on this point, RFR contends that the inclusion of phone numbers

and e-mail addresses is necessary to demonstrate to Governor DeSantis that the signatures are

authentic. Dkt. 8-1 at 21; Dkt. 17 at 10, 28. That is a doubtful proposition, because it is no more

difficult to make up phone numbers than it is to make up names and only slightly more work to

generate fake e-mail addresses. Perhaps RFR envisions that Governor DeSantis or his staff will

call or e-mail a random sample of signatories to make sure they are real. But if that is what RFR

has in mind, it has offered no support for the assumption that its petition will carry greater First

Amendment punch if it includes the contact information needed for such efforts. More

importantly, however, even if RFR’s justification was more plausible, it would not change the

statutory analysis. That a petition is more resonant or verifiable if it includes a contact list does

transform an in-kind contribution into unregulatable, core political speech. Applying RFR’s

reasoning, Governor DeSantis might be better able to assess whether the petition signatories are

really committed to him—or whether, for example, they signed the petition in the hopes of

inviting a primary fight that might weaken all of the Republican candidates—if each signatory

also made a modest financial contribution to him. But that increased certainty regarding the

bona fides of each signatory would not permit the FEC to ignore those contributions. The same

is true of RFR’s in-kind contribution of a contact list.

25 The proposition that a list of names, e-mail addresses, and phone numbers is a contact list

(and the corollary that whatever else it might accompany cannot change that fact) dispenses with

RFR’s other arguments as well. For instance, RFR asserts that its contact list is not a contact list

because it “reflects the voluntary, affirmative political and expressive association of Governor

DeSantis’ supporters.” Dkt. 8-1 at 28. But RFR fails to explain why this is so. RFR also has it

exactly backward as a practical matter. One of the things that makes RFR’s contact list so

valuable is that, at substantial expense, RFR has identified those voters most likely to support

Governor DeSantis’ candidacy. These are the individuals who, if contacted, will presumably be

most likely to make contributions to his campaign, to volunteer, and to show up at the polls. If

any contact lists should be treated as in-kind contributions, surely those that are crafted to

provide the most benefit to their recipients should be. In any event, to sound a by-now-familiar

note, the FEC has no quarrel with the “voluntary, affirmative political and expressive

association” of RFR’s signatories, only the provision of the valuable contact information that

RFR collected at considerable expense and using, at least in part, soft money. Dkt. 8-1 at 28;

Dkt. 16 at 29; Dkt. 22 at 36, 39–40.

B.

Changing tack, RFR attempts to reframe the issue: it argues that, if anything, RFR should

be treated as a conduit for the contributions of the petition’s signatories. The signatories are, after

all, the ones who are providing their contact information, which RFR is merely passing along to

Governor DeSantis. Dkt. 8-1 at 30–36. RFR then maintains that the contribution of each

signatory—their name and contact information—should be considered de minimis and therefore

should not count against their own contribution limits. Id. at 31 n.2. The Court is not convinced.

26 FECA recognizes the concept of conduits and conduit contributions, also known as

“earmarked” contributions. It provides:

For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate.

52 U.S.C. § 30116(a)(8). The FEC, in turn, has promulgated regulations that impose certain

requirements on conduits, including (1) that conduit contributions must be forwarded to their

ultimate recipient “no later than 10 days after receipt,” 11 C.F.R. §§ 110.6(b)(2)(iii), 102.8(a),

(c); (2) that a conduit must “report the original source” of the contribution to the FEC, id.

§ 110.6(c)(1)(i); and (3) that if the conduit exercises “any direction or control over the choice of

recipient,” the contribution shall be treated as one from the conduit as well as the original source,

id. § 110.6(d)(2).

Here, the FEC concluded that RFR’s contact list was not properly considered a series of

individual contributions from each signatory because “the ‘thing of value’ that R[F]R proposes

to provide to Governor DeSantis does not consist solely, or even primarily, of any individual

signatory’s name or contact information.” Dkt. 23-2 at 198. “Instead,” the FEC reasoned, “it

lies in R[F]R’s collection and compilation of information from tens of thousands, if not

‘millions,’ of individuals nationwide who would have already demonstrated their support for

Governor DeSantis and his potential presidential campaign by participating in R[F]R’s petition

project—a project on which R[F]R plans to expend considerable resources of its own.” Id. In

other words, the FEC concluded that the whole of RFR’s contact list amounts to more than the

sum of its parts. By conducting an expensive campaign of nationwide outreach and compiling

the fruits of that outreach in a single, useable contact list of motivated supporters, RFR created a

27 “thing of value” beyond that which is attributable to the “contribution” of each individual

petition signatory.

That determination was not only reasonable but unassailable. It has taken RFR nearly a

year of work, over $1 million, and considerable initiative to identify and to solicit the hundreds

of thousands of signatories of its petition and to amalgamate their contact information into a

contact list. Dkt. 17 at 8; Dkt. 1 at 8–9 (Compl. ¶¶ 21, 23, 25). Had RFR not expended that time

and money, no such list would exist. RFR’s labor and expenditures have thus created a uniquely

valuable asset, the value of which cannot be attributed to the individual signatories.

Christian Coalition endorsed this theory of value. At issue in that case was a list of

delegates from the 1993 Republican Convention in Virginia who had supported a particular

candidate, Mike Farris, for Lieutenant Governor (the “Farris List”). 52 F. Supp. 2d at 77. The

defendant, the Christian Coalition, had taken that list and cross-checked it against its own

mailing list to determine which individuals were on both lists. Id. The court explained that

“[t]he Farris list”—as augmented by the Christian Coalition’s cross-check—“would be valuable

to a [1994 Republican] campaign because those on the list were highly likely to share the

Coalition’s views on a number of issues . . . and many of the 1993 delegates would likely be

delegates to the 1994 Virginia Republican convention.” Id. Against this backdrop, the Court

concluded that the Coalition’s provision of the list free of charge to Oliver North’s 1994 senate

campaign constituted a “contribution.” Id. at 49, 96. As the Court explained, “[e]ven if the

names on the Farris list were publicly available, the fact that the Coalition expended resources to

compile the list and cross-check it with the Coalition’s house file, created value that was passed

on to the North campaign.” Id. at 96. Here, as in Christian Coalition, RFR has “expended

resources to compile” the “Ready for Ron” contact list, and, in so doing, it has created an

28 independent “thing of value.” The FEC’s determination that providing this “thing of value” to

Governor DeSantis would constitute a contribution from RFR is consistent with precedent,

makes eminent sense, and was not, by any stretch, arbitrary and capricious.

To be clear, the Court does not hold, as RFR seems to suggest, Dkt. 25 at 12–13, that

were RFR to provide its contact list to Governor DeSantis, that would amount to an in-kind

contribution of the full value of RFR’s solicitation expenses—$1 million or more, Dkt. 17 at 8.

The FEC has held that third-party expenditures soliciting contributions to a candidate do not

count directly as contributions by the third party to the candidate, and the Court does not disturb

that conclusion. WE LEAD, FEC Advisory Op. 2003-23, at 5 (Nov. 7, 2003),

https://saos.fec.gov/aodocs/2003-23.pdf; see also 52 U.S.C. § 30101(17) (defining independent

expenditure). Rather, the list as a whole has value—created by means of RFR’s independent

expenditures but distinct from those expenditures—that all agree exceeds FECA’s contribution

limits and that the FEC reasonably held is distinct from the value of each separate name and e-

mail address or phone number. That “thing of value” is what RFR seeks to contribute to

Governor DeSantis.

RFR offers four arguments in support of its conduit theory, none of which is availing.

The first is that compiling a mailing list is no different than compiling financial

contributions, so RFR is no different than a more typical contribution conduit. Dkt. 8-1 at 32;

Dkt. 25 at 19–21. The FEC reasonably rejected this comparison. The following hypothetical

illustrates the difference between one who compiles and passes along monetary donations and

one who does the same with contact list information. Imagine an ordinary conduit who spends

$20,000 soliciting contributions for a candidate, yielding contributions from 100 individuals of

$100 each, which the conduit passes along to the candidate. The $10,000 the conduit remits to

29 the candidate is worth $10,000 to the candidate—exactly the sum of the individual contributions.

And, as long as the candidate receives the $10,000, the risk of actual or apparent corruption is

minimal: a $100 contribution is worth $100 regardless of who collects it. To be sure, by

physically collecting and passing along contributions, the conduit has saved the candidate some

logistical or administrative effort, but only a de minimis amount. It requires little additional

effort for a candidate to accept 100 $100 payments versus one $10,000 payment, and conduits do

not themselves bear the transaction costs associated with the separate payments, which the

original contributor or the candidate must pay in any event. See ReCellular, FEC Advisory Op.

2010-21, at 7–8 (Oct. 8, 2010), https://saos.fec.gov/aodocs/AO%202010-21.pdf.

A contact list is different. To start, the contact information of an identified supporter is

far more valuable than the contact information of anyone else. See Christian Coalition, 52 F.

Supp. 2d at 77, 96; see also Dkt. 17-1 at 4 (Llanes Decl. ¶ 11) (noting that the value of a person’s

contact information depends in part on “the amount that is known about [the person’s] political

beliefs, affiliations, or leanings” and “how reliably the [person] contribut[es] or otherwise

respond[s] to solicitations”). RFR has spent significant resources making sure it has a list only

of the former. Moreover, much of the value of a contact list lies in the fact that someone has

engaged in the effort to compile the list in a useful manner. If 200,000 individuals individually

sent their contact information through letters, e-mails, text messages, and phone calls to

Governor DeSantis, it would require considerable labor on his part to intake and organize that

information in a usable form. RFR has done that work for him. Indeed, RFR seems to recognize

just how onerous such an organizational effort is: it asks that, if it is treated as a conduit, it not be

subjected to conduit reporting requirements, in part because “listing potentially hundreds of

thousands” of contributions would be a “substantial burden” that is “unreasonable” and even

30 “unconstitutional.” Dkt. 8-1 at 31–32 n.2. The FEC, accordingly, reasonably concluded that a

compiled contact list of avowed supporters is different than a series of monetary contributions.

This same reasoning applies to RFR’s second contention. RFR notes that if each

signatory independently sent their contact information directly to Governor DeSantis—even at

RFR’s prompting—the signatories would be treated as the source of the “contributions,” not

RFR. Dkt. 8-1 at 32–33; Dkt. 25 at 16–17. That is true but, for the reasons just provided, beside

the point. Through its efforts, RFR has created a campaign tool of distinct value.

Third, RFR argues that the FEC’s advisory opinion in this case is inconsistent with prior

opinions that blessed various conduit contribution arrangements. But RFR has failed to identify

a prior advisory opinion that is in actual conflict with the one at issue here. It first cites to

several opinions approving conduit contribution arrangements under which conduits would

solicit contributions for identified candidates or potential candidates and remit those

contributions to the candidates (or potential candidates when they declared their candidacies).

ActBlue, FEC Advisory Op. 2006-30 (Nov. 9, 2006), https://www.fec.gov/files/legal/aos/2006-

30/2006-30.pdf; ActBlue, FEC Advisory Op. 2007-27 (Dec. 17, 2007), https://saos.fec.gov/

aodocs/2007-27.pdf; ActBlue, FEC Advisory Op. 2014-19 (Jan. 15, 2015), https://saos.fec.gov/

aodocs/AO_2014-19_(ActBlue)_Final_(1.15.15).pdf; Skimmerhat, FEC Advisory Op. 2012-22

(Aug. 2, 2012), https://saos.fec.gov/aodocs/AO%202012-22.pdf; WE LEAD, FEC Advisory Op.

2003-23, supra. Many, although not all, of these opinions concern ActBlue, a political

committee and major contribution conduit. But each of these opinions deals only with the

remittance of money which, for the reasons discussed above, differs in material respects from the

compilation of a contact list. Notably, there is no suggestion in any of the opinions that the

conduit was adding value to the contributions in a manner anything like what RFR proposes to

31 do. Because these opinions dealt with a very different question from that raised here, they

neither compelled a result different from that which the FEC reached nor obligated the FEC to

offer a reasoned basis for departing from prior practice or precedent. See Hall v. McLaughlin,

864 F.2d 868, 873 (D.C. Cir. 1989) (“[I]f the court itself finds the past decisions to involve

materially different situations, the agency’s burden of explanation about any alleged ‘departures’

is considerably less.”).

RFR also highlights that in most of these opinions the FEC approved—indeed,

required—that each conduit provide to the recipients of contributions not only the funds

contributed but also the name and physical mailing address of the original contributor. Dkt. 8-1

at 33–35. This information, it maintains, is no different than that which it seeks to give to

Governor DeSantis. See id. But there is an essential difference: FEC regulations require

conduits to pass along the names and mailing addresses of contributors to the ultimate recipients

in order to enforce the relevant contribution limits and FECA’s other prohibitions, 11 C.F.R.

§§ 110.6(c)(1)(iv), 102.8(a)–(b), whereas RFR seeks to provide Governor DeSantis with a

distinct thing of value in excess of those very contribution limits. It goes without saying that a

conduit’s compliance with a regulatory requirement is far less likely to give rise to an appearance

of corruption than is a political committee’s effort to give a contact list to a candidate or

prospective candidate. In the former scenario, the names and addresses are provided to prevent

the violation of FECA, while in the latter, the contact list serves no countervailing regulatory

purpose and is indistinguishable from the types of lists that the FEC has consistently treated as

in-kind contributions. See, e.g., Ryan, FEC Advisory Op. 2014-06, at 8 (July 24, 2014),

https://saos.fec.gov/aodocs/2014-06.pdf; Brown, FEC Advisory Op. 2011-02, at 7–8 (Feb. 17,

2011), https://saos.fec.gov/aodocs/AO%202011-02.pdf; Dellums, FEC Advisory Op. 1981-46, at

32 2 (Nov. 16, 1981), https://saos.fec.gov/aodocs/1981-46.pdf. In the usual course, moreover,

conduits like ActBlue are generally required to provide contribution recipients with any conduit

contributions (and the required identifying information) within ten days of receiving them, 11

C.F.R. § 102.8(a), making it unlikely that the conduit could, in effect, provide the candidate with

a contact list under the guise of the regulatory identification requirements.8 And as noted above,

RFR acknowledges that compiling disparate contact information as it comes in is highly

burdensome. Dkt. 8-1 at 31–32 n.2; Dkt. 25 at 38 n.6.

In response, RFR notes that ActBlue does provide the e-mail addresses and phone

numbers of contributors to candidates free of charge when it remits those contributors’ financial

contributions. Dkt. 8-1 at 33–34. But the permissibility of that practice has never been before

the FEC, and it has never approved it. Dkt. 24 at 3. There is at least a fair question whether that

practice is permissible under the RFR advisory opinion. The legality vel non of ActBlue’s

8 In some prior opinions, including ActBlue, FEC Advisory Op. 2006-30, supra, at 1, and WE LEAD, Advisory Op. 2003-23, supra, at 4, the FEC arguably approved arrangements closer to that which RFR is proposing. The ActBlue opinion, for instance, concluded that ActBlue could collect conduit contributions for potential candidates for the 2008 presidential election and postpone forwarding those contributions to the prospective candidates until 10 days after they formally registered. ActBlue, FEC Advisory Op. 2006-30, supra, at 1. Because ActBlue was required to include the mailing addresses of the contributors when it forwarded the monetary contributions, it was arguably permitted to provide contact information to candidates in bulk after they registered, rather than piecemeal as is typically the case. Nevertheless, this advisory opinion (and the WE LEAD opinion, which approved a similar arrangement) remains distinguishable because of the fundamental difference between the compelled provision of certain contributor information that the FEC has concluded is necessary to enforce FECA’s prohibitions and the gratuitous provision of additional contributor information for purposes unrelated to the enforcement of the Act. More still, on the Court’s reading of these advisory opinions, the FEC had no cause to and did not consider squarely whether the contact information at issue constituted a separate thing of value provided to the potential candidates, distinct from the monetary contributions that were the subject of the opinions. So, although in a sense the FEC approved, in particular contexts, the bulk provision of contact information, it is more accurate to say that the FEC did not on its own initiative consider whether approving the monetary contribution scheme at issue created a separate potential problem. 33 activities, however, is not before the Court. Instead, the Court may only consider—among

RFR’s other challenges—whether the FEC acted in an arbitrary and capricious manner by

disapproving conduct by RFR that it has actually approved in other contexts. Because the FEC

has never approved ActBlue’s provision of e-mail addresses and phone numbers to candidates,

whatever ActBlue may (or may not) do in this regard has no bearing on the Court’s decision.

In any event, these opinions are distinguishable in other ways as well. Advisory Opinion

2006-30, for instance, the ActBlue advisory opinion most cited in subsequent opinions on these

issues, emphasizes that ActBlue may serve as a conduit only if it adheres to conduit reporting

requirements, most notably that it “report the original . . . source[]” of the contribution “to the

Commission.” ActBlue, FEC Advisory Op. 2006-30, supra, at 6; 11 C.F.R. § 110.6(c)(1)(i). The

opinion even states that the FEC “consider[ed] the fact that ActBlue is a political committee

subject to the reporting requirements of the Act to be significant to [its] determination”

approving ActBlue’s proposal. ActBlue, FEC Advisory Op. 2006-30, supra, at 6 n.4 (emphasis

added). But RFR argues that, even if it is treated as a conduit, it should not be required to adhere

to this requirement, because compliance would be unduly and even unconstitutionally

burdensome on RFR and the signatories of the petition. Dkt. 8-1 at 31–32 n.2; Dkt. 25 at 38–39

n.6. RFR is, of course, correct that whether it is appropriately considered a conduit is an

antecedent inquiry to whether it is entitled to an exemption from conduit reporting requirements,

Dkt. 28 at 9–10, and the Court does not express a view on the latter issue, which is not before it

and was not before the FEC. But it is notable that RFR is not seeking to operate like any other

34 conduit committee. Simply put, it wants the benefit of the ActBlue precedents without the

burden.9

Finally, in its supplemental briefing, the FEC forthrightly surfaced two other advisory

opinions, at least one of which, ReCellular, arguably presents a closer analog to RFR’s proposal

than do the precedents discussed above. As an initial matter, the Court notes that RFR never

raised ReCellular before the FEC, so the Commission can hardly be faulted for failing to address

an argument that was never made or for failing to distinguish a precedent that RFR did not itself

consider sufficiently on point to raise before the agency. Although an agency “cannot ignore its

own relevant precedent,” B B & L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995), it is “by no

means required to distinguish” every one of its prior decisions, LeMoyne-Owen College v. NLRB,

357 F.3d 55, 60 (D.C. Cir. 2004). The D.C. Circuit has held, instead, that “where . . . a party

makes a significant showing that analogous cases have been decided differently, the agency must

do more than simply ignore that argument.” Id. at 61 (emphasis added). A corollary of this

9 The Court is likewise unmoved by RFR’s contention that, even if it were a conduit passing along contact information to Governor DeSantis, treating the signatories’ submission of contact information as non de minimis conduit contributions would be untenable, because it would “make it impossible for RFR or any other entity to actually compile a political petition.” Dkt. 25 at 18. The reason, says RFR, is that it would have to “forward each signatory’s name and contact information to Governor DeSantis within ten days of receiving it once [h]e becomes a candidate,” rather than present all of the information at once at the time of its choosing. Id. But this assertion assumes that a political petition is only a political petition if it includes e-mail and phone information. That assumption is baseless. To state the obvious, petitions long pre-date modern modes of communication, and the advent of telecommunications technologies such as the cell phone and e-mail has not changed the essence of what makes something a petition. Petition, Oxford English Dictionary (3d ed. Dec. 2022), https://www.oed.com/view/Entry/ 141858 (def. 1 “A supplication, entreaty, or prayer”; def. 2 “A written or formal request”; def. 2.b “[A] formal written request or supplication, [especially] one signed by many people, appealing to an individual or group in authority . . . for some favour, right, or mercy, or in respect of a particular cause”); Petition, Merriam-Webster, https://www.merriam- webster.com/dictionary/petition (last visited Apr. 10, 2023) (def. 1.a “a formal written request made to an authority or organized body (such as a court)”; def. 1.b “a written request or call for change signed by many people in support of a shared cause or concern”).

35 proposition is that if a party made no such showing before the agency—and the precedent is not

so obviously on point that one would have expected the agency to consider the precedent on its

own accord—the agency is not obligated to identify and to discuss it or every other relevant prior

decision. This is a variation of the more general rule that “parties seeking judicial review of

agency action [must] raise their issues before the agency during the administrative process in

order to preserve those issues for judicial review.” Advocs. for Highway and Auto Safety v. Fed.

Motor Carrier Safety Admin., 429 F.3d 1136, 1148 (D.C. Cir. 2005).

In any event, the fact pattern addressed in ReCellular has little bearing on RFR’s

proposed course of action. In ReCellular, the FEC approved a plan under which ReCellular, a

company that purchased used cell phones from individuals, would offer its customers the option

of having the proceeds from the phones they sold to the company sent to political candidates and

committees rather than remitted to them. ReCellular, FEC Advisory Op. 2010-21, supra, at 1–2.

As part of each such transaction, ReCellular proposed to send e-mails to both the customer and

to the recipient political committee confirming the contribution. Id. at 3. The e-mail to the

political committee would also include the contact information of the contributor, including his

or her e-mail address. Id. at 5. So ReCellular, unlike the other advisory opinions discussed

above, approved the provision of contributor e-mail addresses to candidates. ReCellular,

however, differs from the FEC’s Ready for Ron opinion in two significant respects. First, the

FEC held that ReCellular was required to charge either the recipients of contributions or the

contributors themselves “for the cost of the notification e[-]mails.” Id. at 7. As the agency

explained, “[u]nder ReCellular’s proposal, the cost of the notification e-mails would be the only

cost borne by ReCellular,” and it was—as the FEC understood the proposal—the only “service”

or “[]thing of value” that ReCellular proposed to give to the candidates. Id. (internal quotation

36 marks omitted). As such, ReCellular was not permitted to bear that cost without becoming a

contributor itself. Id. Here, in contrast, the FEC correctly concluded, based on years of

precedent, that the contact list that RFR proposes to provide to Governor DeSantis is itself a

“thing of value” and thus an in-kind contribution, and RFR’s proposal does not contemplate RFR

charging Governor DeSantis for providing it to him.

Second, and relatedly, the FEC required ReCellular to provide the contributor

information to recipients on a contribution-by-contribution basis, “within ten days of confirming

that the consumer’s phone was worth the quoted price.” Id. at 8 (internal quotation marks

omitted). So, although ReCellular was permitted to provide candidates the component pieces of

a contact list, it was not permitted to provide candidates with a mailing list or its functional

equivalent. That differs in material respects from what RFR proposes to give Governor

DeSantis. As the FEC interpreted the statute—correctly, in the Court’s view—the “thing of

value” that RFR aims to provide is the compilation of names of supporters accompanied by their

contact information: a contact list. And ReCellular says nothing about whether a contact list is a

thing of value subject to FECA’s contribution limits.

The other advisory opinion that the FEC references in its supplemental brief, Democracy

Engine, FEC Advisory Op. 2022-03 (June 27, 2022), https://www.fec.gov/files/legal/aos/2022-

03/2022-03.pdf, is even less on point. In that case, a conduit contributor proposed to collect the

e-mail addresses of contributors but stated only that, at the time it remitted contributions to their

ultimate recipients, it “would provide the recipient[s] . . . with the information necessary to

properly report the contribution to the Commission.” Id. at 3. Only names and mailing

addresses (and in some cases employer names) are “necessary to properly report” contributions

to the FEC. 11 C.F.R. §§ 110.6(c)(1)(iv), 102.8(a)–(b). So, Democracy Engine endorsed only

37 the type of information sharing that the FEC approved in its ActBlue opinions: that which is

necessary to comply with regulatory requirements, and nothing more. For the reasons explained

above, providing a candidate with information needed to comply with FECA’s reporting

requirements and contribution limits simply is not analogous to what RFR proposes to do.

The Court, accordingly, concludes that the FEC reasonably decided that RFR is not

acting as a mere conduit for the contributions of others and that its decision is not inconsistent

with any prior advisory opinions that either party has brought to the Court’s attention.

C.

It follows from the foregoing that RFR may not provide its contact list to Governor

DeSantis free of charge—at any time. First and most obviously, if Governor DeSantis becomes

a candidate for president, RFR may not give him the contact list for free. This is because: (1) the

contact list constitutes a contribution under FECA; (2) that contribution would be from RFR, not

the signatories of RFR’s petition; (3) the market value of the contact list is greater than FECA

permits; and (4) the contact list has been funded in part with soft money. For the same reasons,

RFR may not provide the contact list to Governor DeSantis if he is testing the waters (setting

aside for the moment RFR’s challenge to the testing-the-waters regulation). As explained above,

although the FEC’s testing-the-waters regulation provides a limited exemption from FECA’s

disclosure requirements, it still requires that transfers comply with the Act’s contribution limits.

See 11 C.F.R § 100.72(a).

The last question—and the one on which the FEC was unable to reach a majority

decision—is whether RFR may provide the contact list to Governor DeSantis before he begins

testing the waters (if, in fact, he has not already begun to do so). In the Court’s view, the

premise of this question is confused, because FECA contemplates no scenario in which an

38 individual may accept contributions in excess of $5,000 (which RFR’s contact list is) without

either becoming a candidate or, under FEC regulations, testing the waters. The answer to this

question is thus no different from the answer to the preceding questions: RFR may not provide

its contact list to Governor DeSantis. The Court is unpersuaded by RFR’s arguments to the

contrary.

First a word on the standard of review. What standard the Court should apply in

reviewing the FEC’s failure to issue an advisory opinion for want of a majority is a difficult

question. One possibility is that the Court should review a non-decision in the same way it

reviews a decision on the merits: under the APA and with appropriate deference. See Nat’l Rifle

Ass’n of Am., 254 F.3d at 184–86. But the APA’s arbitrary and capricious or contrary to law

standard, 5 U.S.C. § 706(2)(A), and interpretive deference both seem an ill fit where, as here, the

agency has reached no decision and has provided no reasoning to evaluate or interpretation to

which to defer. Just as a court “cannot uphold silence,” it cannot defer to it. Cleveland Constr.

Co. v. NLRB, 44 F.3d 1010, 1016 (D.C. Cir. 1995). On the opposite end of the spectrum, one

might by analogy apply the standard used to evaluate agency action unlawfully withheld. 5

U.S.C. § 706(1). After all, RFR contends that the FEC should have issued an advisory opinion

approving RFR’s proposed actions but declined to act. But this standard too is an ill fit: RFR has

not actually brought a § 706(1) claim, and, when the FEC issues decisions contrary to a

requester’s position, courts do not apply the § 706(1) standard, even though the agency has also

in some sense “withheld” the relief the requester sought. The Court also sees no reason why a

more demanding standard of review should apply when the agency deadlocks than when it

rejects the requester’s position on the merits.

39 Given the absence of agency reasoning to review and mindful of the oddity of applying

§ 706(1) here, the Court concludes that the best course is to review de novo the legal question on

which the FEC failed to issue an opinion. In so doing, however, the Court must still defer, as

appropriate, to other agency determinations and pronouncements—relevant regulations, prior

advisory opinions, and the like. Based on its de novo review, the Court concludes that, if

Governor DeSantis were to accept RFR’s contact list, he would become a candidate for federal

office or would at least be testing the waters.10 Either way, providing the contact list to

Governor DeSantis for free would constitute an excessive and thus unlawful contribution.

One might reasonably argue that anyone who accepts a contact list like RFR’s—an item

that meets the statutory definition of a contribution with a value over $5,000—necessarily

becomes a candidate in all relevant respects. That is, after all, what FECA says: a “candidate” is

one who “seeks nomination for election, or election, to Federal office,” and an individual “shall

be deemed to seek nomination for election, or election . . . if such individual has received

contributions aggregating in excess of $5,000.” 52 U.S.C. § 30101(2)(A). Under the statute,

then, the default is that acceptance of a contribution greater than $5,000 equals a candidacy. The

only possibly applicable carve-out from FECA’s plain language is the testing-the-waters

exception. And this exception might apply if Governor DeSantis accepts the contact list as part

of an effort to “determin[e] whether [he] should become a candidate.” 11 C.F.R. § 100.72(a). In

10 Of course, if RFR offered the petition to Governor DeSantis and he chose not to accept it, he would not thereby be testing the waters or become a candidate. But the only sensible way to evaluate RFR’s request is to assume that Governor DeSantis would accept what is offered. To hold otherwise would deprive RFR of any possible access to the safe harbor, since RFR does not know (and has no reason to know) whether Governor DeSantis would accept the contact list, and thus RFR would send it to him at its peril. And it would deprive Governor DeSantis of the ability to test the waters without the fanfare of a public campaign to require RFR to obtain a commitment from him of his intentions before requesting an advisory opinion or before seeking review in this Court. 40 analogous circumstances, the FEC has concluded, for example, that the “[r]ental and purchase of

office equipment for the purpose of compiling the names and addresses of individuals who

indicate an interest in organizing a national campaign” was a permissible testing-the-waters

activity that would not make the recipient a candidate for all purposes. See Askew, FEC

Advisory Op. 1981-32, at 2, 4 (Oct. 2, 1981), https://www.fec.gov/files/legal/aos/1981-32/1981-

32.pdf. But whether accepting the contact list would make Governor DeSantis a candidate for all

purposes or whether he would fall within the limited testing-the-waters “exemption,” 11 C.F.R.

§ 100.72(a), the result is the same: FECA’s contribution limits apply, and the value of the contact

list exceeds those limits. There is therefore no scenario in which Governor DeSantis could

accept the contact list without triggering FECA’s limitations.

RFR’s contrary position stems from a misunderstanding of the statute. RFR posits that

there exists a sequential continuum of campaign phases: a pre-testing the waters period, in which

someone can accept contributions from any source and without limitation; a testing the waters

phase, in which someone can accept contributions subject to most of FECA’s restrictions but

exempt from its disclosure requirements; and a candidacy phase, in which FECA’s full

complement of restrictions attach. See Dkt. 8-1 at 52–54. But that view of campaign finance

law finds no support in FECA, which sets forth a clear rule: a person is a candidate if he or she

accepts more than $5,000 in contributions. 52 U.S.C. § 30101(2)(A). The only exception to this

rule is found in the testing-the-waters regulation. 11 C.F.R. § 100.72(a). There is no third,

regulation-free option for those who accept more than $5,000 in contributions. RFR’s third

option is not only atextual but also would open a gaping hole in the campaign finance laws and

would render the balance struck in the testing-the-waters regulation meaningless. A

“prospective” candidate would be free to accept contributions of any amount from any source by

41 the simple artifice of waiting to declare his or her candidacy or to invoke the testing-the-waters

exception. Avoiding that type of wholesale circumvention of the law is precisely why the FEC

amended the testing-the-waters regulation in 1985 to subject “all funds received for ‘testing the

waters’ . . . to the Act’s limitations and prohibitions.” Payments Received for Testing the Waters

Activities, 50 Fed. Reg. at 9994.

RFR protests that the mere acceptance of its contact list is insufficient to constitute

testing the waters, Dkt. 8-1 at 53–54; Dkt. 17 at 12–13, and, it would seem to follow, insufficient

to make someone a candidate. Rather, RFR insists, testing the waters (and presumably a

candidacy) requires “affirmative act[s].” Dkt. 8-1 at 54. But that contention is at odds with

FECA, which repeatedly attaches legal consequences to the receipt of certain things. For

instance, the Act “deem[s]” anyone who receives “contributions aggregating in excess of

$5,000” to be a “candidate,” 52 U.S.C. § 30101(2)(A), makes it unlawful for any “candidate” to

“receive . . . funds for any Federal election activity, unless the funds are subject to the

limitations, prohibitions, and reporting requirements of th[e] Act,” id. § 30125(e)(1)(A), and

prohibits the “accept[ance] [] or recei[pt]” of a “contribution or donation” from a foreign

national, id. § 30121(a)(2). RFR’s “affirmative acts” test appears nowhere in the statutory text or

governing regulations and, if adopted, would open the floodgates to circumvention of the

statutory requirements.

The Court thus has no difficulty concluding that Governor DeSantis would become a

candidate or at least begin testing the waters were he to accept RFR’s contact list.

D.

RFR also attacks the testing-the-waters regulation as an impermissible interpretation of

FECA and as inconsistent with the law in this circuit. This is a puzzling argument coming from

42 RFR. As explained above, the testing-the-waters regulation is a limited exemption from FECA’s

otherwise applicable disclosure requirements. So, it is a mystery how RFR would benefit from a

decision setting that exemption aside; if anything, it would mean that Governor DeSantis would

qualify as a “candidate” for all statutory purposes were he to accept RFR’s proposed in-kind

contribution.

But, in any event, RFR’s challenges to the testing-the-waters regulation are unavailing.

RFR relies in large part on the D.C. Circuit’s decision in Federal Election Commission v.

Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), which held that only

organizations supporting or opposing a “candidate” are subject to regulation as political

committees. Id. at 393–94. In Machinists, the FEC sought to exercise jurisdiction over certain

“draft-Kennedy” groups—organizations formed to encourage Senator Edward Kennedy to run

for president—after the Machinists Non-Partisan Political League allegedly made contributions

to these groups in excess of FECA’s contribution limits. Id. at 383–84. The D.C. Circuit held

that the FEC could not permissibly do so. Id. at 396. As Machinists explains, in Buckley the

Supreme Court interpreted FECA’s 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. at 391 (emphasis added) (quoting Buckley, 424 U.S.

at 79). And, Machinists points out, a committee seeking to draft a “candidate” for office

necessarily is not “promoting a ‘candidate’ for office,” because the individual it hopes to draft is

not yet a candidate. Id. at 392. For these reasons, Machinists concludes that draft groups are not

political committees and fall outside of the scope of the Act. Id. at 396.

RFR reads Machinists to stand for the sweeping proposition that “FECA does not

regulate efforts to ‘draft’ candidates for federal office,” Dkt. 8-1 at 38, and argues that the

43 decision “establishes RFR’s right to provide its signed petition to ‘draft’ Governor DeSantis at

any[] time before he becomes a candidate,” id. at 40. But in pressing this point, RFR yet again

ignores a crucial fact: if Governor DeSantis accepts RFR’s contact list—an in-kind contribution

worth more than $5,000—he will become a candidate for federal office, 52 U.S.C.

§ 30101(2)(A), unless he is deemed to be testing the waters, 11 C.F.R. § 100.72(a). As the Court

has explained, the testing-the-waters regulation does not regulate those who do not qualify as

candidates; it exempts those who would otherwise be candidates from certain disclosure

requirements. Id.

Machinists casts no doubt on this straightforward reading of FECA. The D.C. Circuit’s

decision dealt only with FECA’s definition of “political committee” and expressed no view

regarding the entirely distinct question of whether “an individual” who “receive[s]” an in-kind

contribution worth more than $5,000 is properly “deemed” to be a “candidate” for purposes of

the Act. 52 U.S.C. § 30101(2)(A). Machinists speaks to the relationship between “political

committees” and draft groups, the arguable vagueness of the statutory definition of “political

committee,” the way in which Buckley and other prior cases had interpreted “political

committee,” the constitutional doubts that a broad construction of “political committee” might

engender, and the history of legislative action and inaction with respect to the treatment of draft

groups as political committees. Machinists, 655 F.2d at 391–96. But it does not speak to the

definition of “candidate.” Notably, although Machinists declined to adopt the most obvious (and

expansive) reading of FECA’s definition of “political committee,” it merely quoted the definition

of “candidate” without any suggestion that it should be similarly narrowed. Id. at 392 n.24.

Applying Machinists in the way RFR proposes would also make FECA circular: the statute

would make the receipt of “contribution[s]” a trigger for becoming a “candidate,” but it would

44 only treat the transfer of a thing of value as a “contribution” if it were provided to someone who

was already a “candidate.”

RFR’s resort to the legislative history of FECA is no more availing. As an initial matter,

reliance on legislative history is unnecessary where statutory text is clear. See Milner v. Dep’t of

Navy, 562 U.S. 562, 572 (2011). And, although the statutory definition of “contribution” is

arguably ambiguous, it is not ambiguous as relevant here. FECA defines “contribution” as “ any

gift . . . of money or anything of value made by any person for the purpose of influencing any

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). Buckley recognized that the phrase

“for the purpose of influencing any election for federal office” admits of some ambiguity, 424

U.S. at 23 n.4, and the FEC asserts that it is this ambiguity that creates space for the testing-the-

waters regulation, Dkt. 16 at 42–43. The idea seems to be that if an individual spends money

testing the waters and ultimately decides not further to pursue a candidacy, no harm and no foul.

No damage has been done to the anti-corruption interests FECA serves by allowing that

individual to proceed anonymously. And, because the funds expended on the abortive candidacy

had at most a negligible “influenc[e] [on] any election for Federal office,” the FEC deems them

as not having been expended “for th[at] purpose.” 52 U.S.C. § 30101(8)(A)(i).11 But this

ambiguity has no bearing on the situation presented in this case. RFR does not dispute that it

wants to provide its petition and contact list to Governor DeSantis “for the purpose of

influencing an[] election for Federal office,” a sensible concession given the substance of the

petition. Dkt. 8-3 at 1. The point it presses is more fundamental: it contends that FECA permits

individuals to receive items provided “for the purpose of influencing any election for Federal

11 If the individual does decide to run, the anti-corruption interest is still fully vindicated, because funds used for testing the waters must retroactively be reported. 11 C.F.R. § 100.72(a).

45 office” without restriction, if they have not yet declared a candidacy. As explained, FECA

unambiguously forbids such a maneuver through the $5,000 trigger in its definition of

“candidate.” See 52 U.S.C. § 30101(2)(A). Thus because the statute is unambiguous in relevant

respects, there is no reason to turn to legislative history, which is a tool for resolving ambiguity,

not creating it. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1749 (2020).

But even if the Court were to consider it, this legislative history provides no meaningful

support for RFR’s contention. It appears to pertain to efforts to bring contributions to draft

committees within the scope of the Act and does not address the regulation of contributions from

draft committees to individuals. As Machinists recognized, the FEC had for years recommended

without success that contributions to draft committees be limited. Machinists, 655 F.2d at 395–

96 (citing FEC annual report recommendations). Machinists then held definitively that such

contributions were beyond the scope of the Act. Id. at 391–96. Some of the legislative history

RFR cites expressly involves post-Machinists efforts to abrogate that decision and to bring draft

groups within FECA. See FEC, Legislative Recommendations—1987, at 2–3 (1987),

https://www.fec.gov/resources/cms-content/documents/legrec1987.pdf.

The remainder of the legislative history that RFR invokes involves failed attempts to

amend FECA’s definition of “contribution” in the following manner:

(A) The term “contribution” includes—

(i) any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office; or (ii) the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose.; and (iii) any gift, subscription, loan, advance, or deposit of money or

46 anything of value made by any person for the purpose of drafting a clearly identified individual as a candidate for Federal office or encouraging a clearly identified individual to become a candidate for Federal office.

See, e.g., H.R. 708, 103rd Cong., § 8(a) (1993); S.7, 103rd Cong., § 422 (1993); H.R. 4934,

102nd Cong., § 504(a) (1992); S.6, 102nd Cong., § 622(a) (1991); S.143, 102nd Cong., § 422(a)

(1991); S.2595, 101st Cong., § 422(a) (1990); see also Dkt. 8-1 at 43–44 (citing similar proposed

amendments). These bills also proposed adding a clarification that a contribution made under

the newly proposed sub-section shall be treated as a “contribution” to the recipient, “whether or

not the [recipient] becomes a candidate.” See, e.g., H.R. 708, § 8(b); S.2595, § 422(b); S.6,

§ 622(b).

RFR urges the Court to infer that these proposed amendments reflect a congressional

understanding that FECA’s contribution limits do not currently apply to donations made for the

purpose of influencing an individual to run for office. But it is far from clear that the inference

RFR would have the Court draw from the legislative history is the right one. These proposed

amendments could also be understood as further efforts to reverse Machinists and to regulate

contributions to draft committees in the same way as contributions to “political committees.” Or

perhaps these proposals failed because some legislators understood FECA in the way RFR does,

but others disagreed and thought an amendment was unnecessary because the Act already

covered the sort of transfers at issue. Or perhaps some legislators understood the Act in the way

the Court does yet sought to add additional clarity to “in Macbeth’s words[,] . . . make

assurances double sure.” Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1243 (D.C. Cir. 2020)

(quoting Fla. Health Scis. Ctr., Inc. v. Sec’y of Health & Human Servs., 830 F.3d 515, 520 (D.C.

Cir. 2016)). Or “[m]aybe still others, occupied by other concerns, didn’t consider the issue at

all.” Bostock, 140 S. Ct. at 1747. There is no authoritative explanation for the proposed

47 amendments and why they failed to become law, so it is impossible to know. The only thing the

Court can conclude from this uncertainty is that the Supreme Court was correct to caution that

“speculation about why a later Congress declined to adopt new legislation offers a ‘particularly

dangerous’ basis on which to rest an interpretation of an existing law a different and earlier

Congress did adopt.” Bostock, 140 S. Ct. at 1747 (quoting Pension Benefit Guar. Corp. v. LTV

Corp., 496 U.S. 633, 650 (1990)).

Beyond Machinists and legislative history, RFR makes one further argument relating to

the testing-the-waters regulation: it points out that the regulation says that “[f]unds received

solely for the purpose of determining whether an individual should become a candidate are not

contributions,” yet it goes on to state that “[o]nly funds permissible under the Act may be used

for such activities.” 11 C.F.R. § 100.72(a); Dkt. 8-1 at 44–45. How, RFR asks, can funds that

are not a “contribution” be limited by the Act’s other requirements, which pertain only to

contributions? RFR may be right that this is clumsy drafting. But that does not change the result

here. RFR can hardly claim that the testing-the-waters regulation is invalid and then turn around

and say that, because of the testing-the-waters regulation’s exemption from the definition of

contribution, testing the waters funds are not subject to FECA’s contribution limits. Either the

concept of testing the waters is permissible under the statute or it is not. Which leads to a more

basic point: if the Court were to set aside the testing-the-waters regulation, RFR would be no

closer to the relief that it seeks. If there were no testing-the-waters exemption, that would mean

that Governor DeSantis would automatically become a candidate if he accepted the contact list,

and the contact list would still constitute an improper contribution under the statute. 52 U.S.C.

§ 30116(a)(1)(A). Thus, to the extent that there are problems with how the regulation is cast,

that does not help RFR.

48 RFR’s final argument that the testing-the-waters regulation does not cover in-kind

contributions because it speaks only of “[f]unds” suffers from the same defect. 11 C.F.R.

§ 100.72(a). If RFR were to prevail on that argument, the exception would not apply, and thus

any prospective candidate who accepts an in-kind contribution worth more than $5,000 would,

by virtue of the statute, become a candidate. So, regardless of whether the regulation covers in-

kind contributions, RFR cannot provide its contact list to Governor DeSantis.

E.

The final question is whether RFR is entitled to a preliminary injunction on its First

Amendment challenges to the advisory opinion and FECA’s contribution limits. Once the nature

of its proposed conduct is understood, RFR’s arguments reduce to the contention that the First

Amendment does not permit the FEC to treat a contact list as a contribution, so long as a

“petition” is attached.12 Because this argument is unlikely to succeed on the merits and RFR’s

arguments with respect to the other preliminary injunction factors all rise and fall with the merits,

the Court will deny RFR’s request for a preliminary injunction. Green, 54 F.4th at 747.

1.

To begin, the “closely drawn” standard of First Amendment scrutiny applies to RFR’s as-

applied challenge to FECA’s contribution limits and the application of those limits in the

advisory opinion. McCutcheon, 572 U.S. at 197 (quoting Buckley, 424 U.S. at 25). “Under that

standard, ‘[e]ven a significant interference with protected rights of political association may be

sustained if the State demonstrates a sufficiently important interest and employs means closely

12 Notwithstanding its challenge to the testing-the-waters regulation as a statutory matter, the Court does not understand RFR to bring a First Amendment challenge to FECA’s definition of “candidate” as one who receives more than $5,000 in contributions. Rather, it focuses its fire on whether the petition can be treated as a “contribution.”

49 drawn to avoid unnecessary abridgment of associational freedoms.’” Id. (alteration in original)

(emphasis added) (quoting Buckley, 424 U.S. at 25). The closely drawn standard is less

demanding than strict scrutiny but is nevertheless a “rigorous standard of review. Id. (quoting

Buckley, 424 U.S. at 29). Courts have applied the “closely drawn” standard to many different

forms of contribution limits, recognizing that “[t]o protect contributors’ heterogeneous First

Amendment interests in making political donations, . . . the [Supreme] Court has announced a

single unified test that applies an intermediate level of scrutiny to contribution limits.”

Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 533, 541 (D.C. Cir. 2019).13

RFR offers three arguments for why the Court should nevertheless apply strict scrutiny

here, none of which is convincing.

First, RFR contends that the Court should apply strict scrutiny because RFR’s proposed

contribution “is, itself, political speech,” namely, a “signed political petition.” Dkt. 8-1 at 19.

The Court does not agree, because in fact the FEC seeks to apply FECA’s contribution limits

only to a contact list, not a petition. Dkt. 16 at 29; Dkt. 22 at 37, 39–40. “[T]he level of [First

Amendment] scrutiny is based on the importance of the ‘political activity at issue’ to effective

speech or political association,” Beaumont, 539 U.S. at 161 (quoting FEC v. Mass Citizens for

Life, Inc., 479 U.S. 238, 259 (1986)), and the contact list—as distinct from the petition—only

indirectly or marginally implicates core First Amendment values. Although like all political

13 See, e.g., McCutcheon, 572 U.S. at 199–227 (aggregate contribution limits); Randall v. Sorrell, 548 U.S. 230, 246–63 (2006) (plurality opinion) (state contribution limits); McConnell, 540 U.S. at 231–32 (2003) (ban on contributions by minors); FEC v. Beaumont, 539 U.S. 146, 161–63 (2003) (ban on corporate contributions); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456–65 (2001) (limits on party expenditures that are coordinated with candidates); SpeechNow.org v. FEC, 599 F.3d 686, 692 (D.C. Cir. 2010) (en banc) (contribution limits as applied to unincorporated nonprofit); Wagner v. FEC, 793 F.3d 1, 5–8 (D.C. Cir. 2015) (en banc) (prohibition on government contractor contributions). 50 contributions, monetary and in-kind, there is some expressive element to providing a candidate

(or potential candidate) with a contact list, a restriction on the provision of e-mail addresses and

phone numbers “entails only a marginal restriction upon the contributor’s ability to engage in

free communication.” Buckley, 424 U.S. at 20. RFR is still free to provide Governor DeSantis

with its petition, and that petition would still demonstrate the depth of support for Governor

DeSantis through its list of names. The challenged limitation thus “involves little direct restraint

on . . . political communication” and does not “in any way infringe” on RFR’s ability to “discuss

candidates and issues” or the ability of the petition’s signatories to do the same. Id. at 21.

Second, RFR maintains that its contact list has independent expressive value so

significant as to justify the application of strict scrutiny. Dkt. 25 at 26–29. But the cases RFR

cites for this proposition deal with restrictions on the publication of contact information, not the

provision of an in-kind campaign contribution.14 That distinction matters. As the FEC

acknowledged at oral argument, “it would alleviate a lot of [the FEC’s] concerns if the list that

Ready for Ron wants to provide were just published online, and Governor DeSantis, along with

other people, were able to look at that list and contact who they wanted to.” Dkt. 22 at 38–39.

In the same vein, RFR argues that a petition without a contact list would be less informative and

thus less useful to Governor DeSantis because he could not employ the contact information to

verify and contact signatories. Dkt. 25 at 26–27, 28–29. True, but as explained above, even if

Governor DeSantis wanted to use the contact information for this purpose, the list would still

constitute a thing of value, and the same rationale that supports other contribution limits would

14 See, e.g., Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247, 1249 (N.D. Fla. 2010); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1139, 1150 (W.D. Wash. 2003); Ostergren v. Cuccinelli, 615 F.3d 263, 271 n.8, 272 (4th Cir. 2010); Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1004 (E.D. Cal. 2017); Org. for a Better Austin v. Keefe, 402 U.S. 415, 417, 419–20 (1971). 51 apply here with equal force. RFR next insists that by limiting RFR’s ability to share its contact

list with Governor DeSantis, the FEC is requiring the signatories of RFR’s petition to be

“anonym[ous],” which would “alter or dilute” the petition’s message. Dkt. 8-1 at 21. This too is

incorrect. The FEC does not object to the provision of the petition inclusive of the names of its

signatories. Dkt. 16 at 29; Dkt. 22 at 37, 39–40. Despite the ubiquity of electronic

communication, it can hardly be said that someone is “anonymous” if their name does not

include the most convenient way to reach them. Nor is the Court persuaded that the message of

RFR’s petition would be altered or diluted if it could not provide its contact list along with its

petition. RFR’s expression of support does not turn on ten digits of a phone number or an e-mail

address, and none of the cases RFR cites are to the contrary.

Third, RFR argues that strict scrutiny should apply because the application of FECA to

its contact list is a content-based restriction. It notes that the FEC only seeks to regulate its

provision of the contact list to Governor DeSantis because RFR wants to provide with him the

list “for the purpose of influencing an[] election for Federal office.” Dkt. 25 at 30 (quoting 52

U.S.C. § 30101(8)(A)(i)). This, RFR contends, is a content-based regulation subject to strict

scrutiny. Id. at 30–32. But that argument proves far too much. All regulation of campaign

contributions is content based in the sense that it targets only contributions made for the purpose

of influencing elections for Federal office, not all transfers of money or things of value at any

time for any reason. Yet Buckley held and the Supreme Court has many times affirmed that strict

scrutiny does not apply to contribution limits. See supra, at 50 n.13. RFR offers no persuasive

reason why the same principles should not apply here.

52 2.

Under the “closely drawn” standard, the Court must first “determine whether the

government has advanced a sufficiently important interest in support of” the application of

FECA’s contribution limits to RFR’s mailing list. Wagner v. FEC, 793 F.3d 1, 8 (D.C. Cir.

2015) (en banc) (internal quotation marks omitted). The FEC asserts an interest in “preventing

quid pro quo corruption [and] its appearance.” Dkt. 16 at 26 (quoting McCutcheon, 572 U.S. at

199). It is, of course, well-established that “‘the Government’s interest in preventing quid pro

quo corruption and its appearance is sufficiently important’ to justify the regulation of campaign

contributions.” Wagner, 793 F.3d at 8 (cleaned up) (quoting McCutcheon, 572 U.S. at 199).

Indeed, the Supreme Court has gone further, calling the interest “compelling” and sufficient to

“satisfy even strict scrutiny.” McCutcheon, 572 U.S. at 199 (internal quotation marks omitted).

This is all for good reason: quid pro quo corruption subverts “the integrity of our system of

representative democracy,” and “the appearance of corruption” undermines “confidence in the

system of representative Government.” Buckley, 424 U.S. at 26–27 (internal quotation marks

omitted).

3.

The Court next concludes that the FEC is likely to demonstrate on the merits that

applying FECA’s contribution limits to RFR’s proposed activity furthers the government’s

interest in preventing quid pro quo corruption and its appearance. This follows from three

settled propositions.

First, as noted above, contribution limits in general further the interest in combatting quid

pro quo corruption and its appearance. Buckley, 424 U.S. at 25–30. As such, “Congress was

surely entitled to conclude . . . that contribution ceilings were a necessary legislative concomitant

53 [to disclosure requirements] to deal with the reality or appearance of corruption inherent in a

system permitting unlimited financial contributions.” Id. at 28; id. (“The Act’s . . . contribution

limitation focuses precisely on the problem of large campaign contributions—the narrow aspect

of political association where the actuality and potential for corruption have been identified . . .

.”); see also McConnell, 540 U.S. at 136 (“Our treatment of contribution restrictions . . . reflects

the importance of the interests that underlie contribution limits—interests in preventing ‘both the

actual corruption threatened by large financial contributions and the eroding of public confidence

in the electoral process through the appearance of corruption.’” (quoting FEC v. Nat’l Right to

Work Comm., 459 U.S. 197, 208 (1982))).

Second, “the provision of in-kind assistance” can “provide[] material financial assistance

to a candidate” such that “the ultimate effect is the same as if the person had contributed the

dollar amount [of the in-kind assistance] to the candidate.” Buckley, 424 U.S. at 36–37. Thus

contribution limits further the government’s anti-corruption interest even when applied to in-kind

assistance.

Finally, as discussed above, a contact list is a form of in-kind contribution that is

typically of significant value to a candidate. See Christian Coalition, 552 F. Supp. 2d at 96; Int’l

Funding Institute, 969 F.2d at 1116. Indeed, in upholding FECA’s contribution limits Buckley

noted that, among other things, “sophisticated mass-mailing . . . operations” were one of the

reasons that “raising large sums of money” was “an ever more essential ingredient of an effective

candidacy.” 424 U.S. at 26. And if limitations on providing money to fund mass mailings

further Congress’s anti-corruption interest, surely providing mailing lists directly does so as well.

RFR questions this rationale, arguing that the risk of corruption in this context is minimal

because compiling a contact list for a candidate would be a “terrible way of attempting to make

54 an excessive in-kind contribution” and thus an ineffective instrument for corruption. Dkt. 25 at

32–33. It notes that it has spent over $1 million to create its contact list, but, based on its own

estimates as of March 14, 2023, the list is worth approximately $11,250. Id. at 33. This, RFR

says, would be an “extraordinarily poor investment” if the goal was to funnel value to a

candidate in return for improper favors once the candidate takes office. Id. It purports to find

support for this argument in McCutcheon, which invalidated aggregate contribution limits in part

because the scenarios in which exceeding such limits would give rise to apparent or actual

corruption were implausibly uneconomic for the would-be contributor. See 572 U.S. at 212–14.

The Court rejects this argument for several reasons.

In the first place, whatever might be true of the market value of RFR’s contact list, it is

unlikely that the poor economic returns RFR describes are true of contact lists in general. There

would be little market for selling contact lists if doing so was financial folly, and RFR’s own

activities demonstrate that such a market exists. Dkt. 1 at 9 (Compl. ¶ 23) (noting that RFR has

rented mailing lists for its own use); Dkt. 23-2 at 18 (stating that RFR has spent thousands of

dollars renting a contact list). The caselaw also recognizes that campaigns spend enormous sums

on such lists, not the comparative pittance that RFR contends that its list is worth. See, e.g.,

Christian Coalition, 552 F. Supp. 2d at 96; Int’l Funding Inst., 969 F.2d at 1116; cf. Buckley, 424

U.S. at 26. In any event, even if, as RFR claims, it has engaged in “[r]idiculously [i]nefficient”

spending, Dkt. 25 at 32, that does not undermine the justification for applying FECA’s

contribution limits to contact lists in general, cf. Buckley, 424 U.S. at 29–30 (recognizing that

“most large contributors do not seek improper influence over a candidate’s position or an

officeholder’s action” but nevertheless upholding contribution limits).

55 Nor does Congress’s anti-corruption interest turn on the savvy of the contributor.

Assuming that RFR is correct about the market value of its contact list, the number of signatures

it has amassed—one of the primary determinants of its value, Dkt. 17-1 at 4 (Llanes Decl.

¶ 11)—is a function of RFR’s outreach strategy. It may have been possible using different

methods to generate an asset of considerably greater or lesser value for the same cost that RFR

has incurred. Similarly, the return on a political committee’s expenditures in creating a contact

list depends on the public’s reaction to the message promoted. There may be candidates for

whom the same amount of outreach would have generated many more or many fewer signatures

and thus a mailing list of greater or lesser value. It would make little sense—and it would raise

far more serious constitutional difficulties—for the First Amendment analysis to vary with the

popularity of a candidate or political message. Yet that is a consequence of RFR’s position.

Putting contact lists aside, there are innumerable things of value that can be purchased or created

for a candidate, some with more substantial returns than others. The Court is unpersuaded that

the risk of apparent or actual quid pro quo corruption turns on the Court’s assessment of the

economic wisdom of an investment.

McCutcheon does not suggest otherwise. It considered whether aggregate contribution

limits (limits on the total amount a donor may contribute to all candidates) served the

government’s interest in preventing circumvention of base contribution limits (limits on the

amount a donor may contribute to a single candidate—what RFR challenges here). 572 U.S. at

210–15. It held that they did not, because base limits and other associated rules and regulations

are sufficiently comprehensive that efforts to avoid base limits by funneling many individual

contributions through different entities back to a single candidate are unlikely to be worth the

candle, even absent aggregate contribution limitations. Id. at 213–14. McCutcheon’s argument

56 from impracticality was aimed at the possible circumvention of base limits, and its reasoning

does not translate to the direct violation of those limits that RFR asks the Court to permit. Far

from casting doubt on any application of base limits, McCutcheon reaffirmed that they are “the

primary means of regulating campaign contributions” and the bulwark against corruption that

made aggregate limits unnecessary. Id. at 209.

4.

Finally, the Court holds that the FEC is likely to prevail on its contention that applying

FECA’s contribution limits to RFR’s contact list is “closely drawn to avoid unnecessary

abridgement of associational freedoms.” Id. at 218 (quoting Buckley, 424 U.S. at 25). Under the

“closely drawn” standard, the government need not demonstrate a perfect fit between its interest

and its proposed means of addressing that interest but rather one that is “reasonable.” Id.

(quoting Bd. of Trs. of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989)). The “means”

need not represent “the single best disposition,” but it must be “narrowly tailored to achieve the

desired objective.” Id. (quoting Fox, 492 U.S. at 480).

The FEC is likely to establish that treating RFR’s contact list as a contribution in excess

of the contribution limits is a narrowly tailored means of preventing actual or apparent quid pro

quo corruption. This limited restriction “leaves untouched” RFR’s ability to circulate its

petition, to spend unlimited amounts of hard and soft money soliciting signatures for it, and to

present it to Governor DeSantis. Wagner, 793 F.3d at 25. It also permits any individual who

determines that they are Ready for Ron to sign the petition and to have that signature be provided

to the Governor. And it allows RFR to collect contact information so that it can itself validate

the signatures and ensure that it is only presenting Governor DeSantis with the names of

authentic supporters. The FEC’s advisory opinion thus places no serious burden on anyone’s

57 ability to express their support for Governor DeSantis and to join together with others in so

doing. All it prevents is RFR from providing to Governor DeSantis free of charge a classic

campaign asset that cost it over $1 million to compile.

RFR offers only one argument in response: It contends that the limitation the FEC seeks

to apply is fatally underinclusive because it leaves RFR so many other options. Dkt. 25 at 34. In

particular, it notes that at oral argument the FEC suggested that it might be permissible for RFR

to post its petition—contact information and all—on a public website, such that Governor

DeSantis or anyone else could review it. Id. As RFR sees it, this argument “give[s] away the

ballgame” because the purported risk of corruption is no less if it posts its petition and contact

list on the internet than if it provides it directly to Governor DeSantis. Id.

This argument fails for four reasons. First, a passing comment at oral argument does not

suffice to bind the Commission to a theoretical course of action it has yet squarely to consider,

nor does it undermine the validity of the Commission’s opinion on matters on which it has

formally opined. Second, underinclusivity is problematic in the First Amendment context only

to the extent that it “raise[s] ‘doubts about whether the government is in fact pursuing the interest

it invokes, rather than disfavoring a particular speaker or viewpoint,’” or “reveal[s] that a law

does not actually advance a compelling interest.” Williams-Yulee v. Fl. Bar, 575 U.S. 433, 448–

49 (2015) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011)). RFR does not even

suggest that the FEC’s true interest was to disfavor its speech, and its contention that one

attorney’s comment proves that treating its contact list as an excessive contribution does not

actually advance the government’s anticorruption interest is weak. For all the reasons already

provided, applying FECA to contact lists does advance this interest, even if “imperfectly.”

Wagner, 793 F.3d at 28. Third, and relatedly, the Court disagrees with RFR that there is no

58 relevant difference between posting a contact list on the internet and providing it to Governor

DeSantis. Quid pro quo corruption is “a direct exchange of an official act for [a contribution].”

McCutcheon, 572 U.S. at 192. If RFR does not “direct[ly] exchange” anything of value with

Governor DeSantis by giving him a contact list, the risk of actual or apparent quid pro quo

corruption is diminished. At the very least, the appearance of corruption is less if RFR does not

provide its contact list to Governor DeSantis directly.

Finally, the line that RFR deems insignificant also resembles perhaps the most

fundamental line in campaign finance law: the one between contributions and independent

expenditures. Whereas Buckley upheld contribution limits as a permissible means of combatting

corruption, 424 U.S. at 29, it reached the opposite conclusion with respect to independent

expenditures, id. at 45. The Court reasoned that “[t]he absence of prearrangement and

coordination of an expenditure with the candidate or his agent not only undermines the value of

the expenditure to the candidate, but also alleviates the danger that expenditures will be given as

a quid pro quo for improper commitments from the candidate.” Id. at 47. The same logic

supports the distinction the FEC has suggested that it might draw between a “prearrange[d] and

coordinat[ed]” transfer of a contact list to Governor DeSantis and the making of the entire list

available to the public. Id.

* * *

The Court “ha[s] little left to say because ‘[i]n First Amendment cases, the likelihood of

success will often be the determinative factor in the preliminary injunction analysis.’” Green, 54

F.4th at 747 (second alteration in original) (quoting Pursuing America’s Greatness, 831 F.3d at

511). “That is especially true here,” because RFR’s arguments on the remaining preliminary

injunction factors “rest entirely on [its] flawed claim” that the FEC’s advisory opinion and the

59 application of FECA’s contribution limits to its proposed course of action “imperils [its] First

Amendment rights.” Id.

CONCLUSION

For these reasons, it is hereby ORDERED that RFR’s motion for a preliminary

injunction, which the Court treats in part as one for summary judgment, Dkt. 8, is DENIED.15

SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: May 17, 2023

15 It is ORDERED that both RFR’s consent motion to strike declaration, Dkt. 18, and motion to file supplemental declaration, Dkt. 19, are GRANTED. 60