On June 29, the Federal Election Commission filed this brief in the U.S. Court of Appeals, D.C. Circuit. The issue is whether the federal government can prohibit donations of more than $5,000 apiece from individuals to a new political party that says it intends to qualify for the ballot and then nominate a presidential candidate.

The FEC attorney who wrote this brief doesn’t appear to understand that in most states, a group can qualify itself as a new political party before it has chosen any candidates. The brief says on page 7 and 8 that Unity08 planned to place “placeholders” on the ballot, before it chose its actual presidential candidate. But in 38 states, a group doesn’t need “placeholder” candidates; it doesn’t need any candidates; it simply qualifies itself as a party.

The FEC brief can’t seem to make up its mind as to whether it considers Unity08 a political party. Pages 13 and 41 discuss the nominees of Unity08. Any group with “nominees” is a political party, by definition. Yet pages 50-54 argue that Unity08 is not a political party.

The brief on page 16 says Unity08 “engaged in no electoral activity leading up to the 2008 general election”, yet in truth Unity08 qualified itself as a ballot-qualified party in both Florida and Mississippi. The brief says that Unity08 would not have had any candidates for office other than president and vice-president, but that statement isn’t necessarily true. In nine states in which Unity08 expected to qualify itself as a political party, it would have been entitled to a government-provided primary for all partisan office, and anyone who registered in the party would have been free to run in its primaries for Congress or state office. These nine states were, or would have been, Arizona, California, Florida, Hawaii, Mississippi, Montana, North Dakota, Oklahoma, and South Dakota.