Posted June 21, 2006 by Paul S. Ryan

Unity 08 Political Committee Status is a Slam Dunk

Though there may be close calls regarding the question of whether a particular organization is a “political committee” under federal campaign finance law, Unity 08 isn’t one of them.  As sure as the sun rises in the east, Unity 08 is a federal “political committee.”

Yet Unity 08 recently submitted an advisory opinion request to the FEC (AOR 2006–20), asking the Commission to publicly declare that the organization is not a “political committee,” and that it won’t become a “political committee” until the summer of 2008 when it formally endorses a presidential ticket.  Prior to that time, Unity 08 wishes to raise and spend funds to influence the 2008 presidential election without complying with federal contribution limits and disclosure requirements applicable to “political committees.”  The Campaign Legal Center, together with Democracy 21, submitted comments to the FEC in response to AOR 2006-20 explaining in detail why Unity 08’s request should be denied.

Federal law defines the term “political committee” to mean any “group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year.”  2 U.S.C. § 431(4).  The terms “contribution” and “expenditure,” in turn, are defined to include the receipt or payment of anything of value “for the purpose of influencing any election for Federal office.”  2 U.S.C. §§ 431(8)(A) and (9)(A).

In Buckley, the Supreme Court construed the term “political committee” to “only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.”  424 U.S. 1, 79 (1976) (emphasis added).  The Court in McConnell, restated the “major purpose” test for political committee status as iterated in Buckley.  540 U.S. 93, 170 n.64 (2003).

In other words, the Supreme Court has added a “major purpose” test to the statutory definition of “political committee.”  Therefore, Unity 08 is a federal “political committee” if it meets both parts of the two-prong test for political committee status: (1) it has a “major purpose” to influence candidate elections and (2) it receives $1,000 in contributions or makes $1,000 in “expenditures,” defined by statute to mean receipt or payment of money for the purpose of influencing federal elections.

Regarding the threshold “major purpose” question, Unity 08 leaves no doubt that its “major purpose” is to influence the 2008 presidential election.  Unity 08 states that its “Goal One” is “to elect a Unity Ticket for President and Vice President of the United States in 2008….”  AOR at 2.  It intends “to qualify for ballot positions in certain key states for the offices of President and Vice President of the United States through petitions, and if required, litigation….”  Id. at 3.  And it intends “to select, using a ‘virtual’ convention over the Internet, candidates for the office of President and Vice-President of the United States to run in those ballot positions.”  Id. at 4.

This conclusion is buttressed by the fact that Unity 08 has registered with the IRS under section 527 of the tax code.  Section 527 provides tax exempt status for “political organizations,” defined to mean groups “organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures, or both, for … [the] function of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office or office in a political organization, or the election of Presidential or Vice Presidential electors….”  26 U.S.C. §§ 527(e)(1) and (2) (emphasis added).

Accordingly, any group that chooses to register as a “political organization” under section 527—including Unity 08—by definition meets the Buckley “major purpose” test (with one rare exception inapplicable to Unity 08 being a 527 group devoted to influencing the appointment of individuals to non-elective office, such as a judicial appointment).

Unity 08 likewise meets the $1,000 expenditure or contribution test.  With regard to the question of whether Unity 08 has made (or soon will make) $1,000 in “expenditures,” Unity 08 mistakenly argues that only payments for “express advocacy” fall within the definition of “expenditure.”  The Supreme Court made clear in Buckley that the test of whether a group has made $1,000 in “expenditures” is not limited by the “express advocacy” standard when applied to a “major purpose” group, such as Unity 08.  Rather, the test for “expenditure” is the broader statutory standard of whether disbursements are made “for the purpose of influencing” any federal election, regardless of whether the disbursements are for an “express advocacy” communication.

The Buckley Court made clear that “major purpose” groups are not vulnerable to concerns of vagueness in drawing a line between issue discussion and electioneering activities because their activities “can be assumed to fall within the core area sought to be addressed by Congress.  They are, by definition, campaign related.” 424 U.S. at 79.  By contrast, the Court developed and applied the “express advocacy” test only to non-“major purpose” spenders, reasoning that when the maker of the expenditure is an individual or non-“major purpose” group, “the relation of the information sought to the purposes of the Act may be too remote.”  To insure that the reach of FECA’s disclosure provisions was not impermissibly broad, the Court construed the term “expenditure” to “reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.”  Id. at 79–80.

The Court affirmed this analysis in McConnell, where it cited and quoted the same language from Buckley in rejecting a vagueness challenge to the “promote, support, attack or oppose” standard in BCRA as applied to political party committees. 540 U.S. at 170 n.64.

For this reason, the “express advocacy” test, which the Supreme Court deemed to be “functionally meaningless,” McConnell, 540 U.S. at 218, is not relevant to the question of whether Unity 08 is spending money to influence the election of federal candidates, and whether it is, accordingly, making “expenditures.”

Instead, because Unity 08’s goal is electing a Unity Ticket for president and vice president in 2008, all of its disbursements are “for the purpose of influencing” a federal election and clearly meet the statutory definition of “expenditure.”  Therefore, when Unity 08’s spending exceeds $1,000, the organization will have met the second prong of the test for “political committee” status and, at that time, must register with the FEC as a “political committee.”  Federal statutes, as interpreted by the Supreme Court, demand this result—and the FEC should advise Unity 08 accordingly.