Posted March 5, 2010 by J Gerald Hebert
Law in the Rabbit Hole 
Yesterday, the D.C. Circuit Court of Appeals decided that Unity08, a self-described "nascent political party," was not a political committee subject to federal campaign finance law.
To understand just how absurd this decision is, consider this.
Under federal law and Supreme Court precedent, a political committee is a group whose major purpose is to influence any election for federal office and which makes expenditures in excess of $1000 (or receives contributions over that amount). [1]
Unity08's self-proclaimed main goal was to nominate and elect a Presidential and Vice-Presidential candidate in the 2008 elections. It also said it would spend in excess of $1000 on petition drives to gain ballot access for its nominees.
Now one might wonder, how could the Court of Appeals decide that Unity08 was not a political committee when it claimed its main goal was to nominate and elect candidates to federal office and it would spend more than $1000 for this purpose?
Unfortunately, in the law of campaign finance today, we find ourselves living in an Alice in Wonderland world where 'up is down, and down is up': Supreme Court Justices and lower court judges willing to ignore the clear language of the campaign finance laws and decades of legal precedent to reach a desired result.
Yesterday's Court of Appeals decision could have been written by the Mad Hatter himself. It uses a doctrinal sleight of hand to reach a result that makes a mockery out of the plain meaning of the statute and undermines the anti-corruption purpose underlying the campaign finance laws. Indeed, the Court of Appeals implicitly conceded that the loophole it created in the law might lead to political corruption, noting that Unity08's eventual Presidential and Vice-Presidential nominees "might feel grateful or even beholden toward donors" to Unity08 who "effectively conferred" ballot positions to such nominees.
President Obama possesses the power to nominate judges willing to respect precedent, the law, and Congress's intent. The Senate, which must confirm those nominees, would be wise to take note of the public backlash against the recent activist decision by the U.S. Supreme Court in Citizens United. The High Court may not be answerable to voters, but
United States Senators can still be held accountable by their constituents.
The sooner we have judges who follow the straightforward language of the laws and refuse to engage in blatant judicial activism, the better.
[1] [1] FECA defines a "political committee" as a group which "receives contributions" or "makes expenditures" "aggregating in excess of $1,000 during a calendar year…." 2 U.S.C. § 431(4)(A). The statute, in turn, defines "contribution" and "expenditure" to encompass any spending or fundraising, respectively, "for the purpose of influencing any election for Federal office."
Id. §§ 431(8)(A)(i) (defining "contribution"), (9)(A)(i) (defining "expenditure").
