Unity ’08 Lives!

March 18, 2010   •  By Brad Smith
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We’re a bit late in finding some time to comment on Unity08, the non-party political party that scored a surprising victory over the Federal Election Commission in the United States Court of Appeals for the District of Columbia earlier this month.  It is an important case, because, as the Unity08 organizers had found, under the Bipartisan Campaign Reform Act of 2002 (“McCain-Feingold”) it had been made all but de facto illegal to start a new national political party in the U.S.  Unity08 v. FEC thus is the latest in a series of federal court opinions to reassert the primacy of political speech and association under the First Amendment.

Unity08 (which, by the way, needs to update its website) is, as the Court of Appeals called it, “a kind of would-be post-partisan political party.”  The idea is to create a system that would allow voters, through a web-based voting process, to nominate a presidential ticket, hopefully one of strong non-partisan or bipartisan credentials.  The party would have ballot access in all 50 states (or at least as close to that goal as possible) for the winners, and would provide financial support as well, thus freeing the candidates from the need to be constantly raising funds.  And in an era in which it has been demonstrated that large sums can be raised from small donors via the internet and social media, and in which both confidence in the established political parties and identification as members of the two traditional parties are at record lows, it seems at least plausible that Unity08 could do what no group has done since the Republican Party over 150 years ago – emerge as a major, long-term political force. 

What stymied Unity08 were federal campaign finance laws.  As recently as the 1990s, political parties could accept unlimited contributions for “party building” activities, which is how Ross Perot’s money got the Reform Party off the ground.  McCain-Feingold, seeking to purify the system, prohibited parties from raising this “soft money.”  And political committees – that is PACs, or non-party committees – face even tougher limits.  Despite the potential of the internet as a tool for raising small contributions, Unity08 found that it needed to raise up front capital in larger amounts.  As the organizers of Unity08 came to realize, in their own words, “we wanted to break the dependence on big money by getting lots of small contributions from millions of members, but needed some up-front big money to help generate the millions of members to make the small contributions.”  As a practical matter, McCain-Feingold made it impossible to launch a new national political party, as surely as a law prohibiting a business from raising more than $5000 in capital from any one investor would make it impossible to launch any but the smallest business.

The Court of Appeals (Unity08 drew a dream panel of Judges Stephen Williams, Karen Henderson, and Doug Ginberg), however, held that until it actually had candidates, Unity08 was outside the jurisdiction of the FEC.  The decision goes further than perhaps even Unity ’08 had imagined – essentially, it leaves Unity08’s funding totally unregulated until it actually picks and supports a particular candidate. The Court relies on Buckley v. Valeo for the proposition that only organizations “that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate” can be regulated as political committees.  Although Unity08 seeks to eventually facilitate the nomination of a candidate, at this point it is not supporting any particular named candidate.  Thus, in accordance with FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), the Court found that Unity08 was outside the FEC’s jurisdiction.  Importantly, the Court emphasizes – as did the same Court’s recent opinion in Emily’s List v. FEC and the Supreme Court’s opinion in Citizens United v. FEC – that regulation can only be justified by the threat or appearance of actual, quid pro quo corruption.  Gratitude alone, says the Court, is clearly not enough, nor should the statutes be read technically where there is no danger of such corruption. 

Whether Unity08 will now be able to succeed, we don’t know.  But this is an important decision because it makes it possible, once again, for a new party to get off the ground.  Indeed, looking at the case in conjunction with Emily’s List, it would seem that a new party could support state and local candidates in a state without limits on contributions to committees – such as Virginia or Utah – while building a party infrastructure nationally, using large start up contributions. 

Of course, we note again a certain irony here, in that Unity08’s early messages included support for campaign contribution limits. When Unity08 first began, it had supported a “Clean Money Pledge,” in which citizens would pledge, “I will only vote for a presidential candidate who has raised more than half of his/her funds through small contributions of $250 or less.”  Perhaps as a voluntary theory, that is a good idea, but such voluntary pledges have a tendency to quickly morph into laws prohibiting contributions above that size.  Again, we have no idea if Unity08 will succeed – I have talked to some organizers of the effort and they do recognize that it is a long shot.  But we hope if it does succeed, it will keep in mind that big money is by no means intrinsically evil, and often necessary, particularly for those who would challenge an entrenched political structure.  Meantime, by litigating this case (one that, in all honesty, I thought they would lose), Unity08 has already performed a valuable public service.

The complete opinion can be found here.

Brad Smith

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