On October 15, the U.S. Court of Appeals, D.C. Circuit, heard oral arguments in Unity08 v Federal Election Commission, no. 08-5526. The issue is whether the Federal Election Commission was wrong when it told Unity08 during 2006 that no one could give more than $5,000 to Unity08. At the time Unity08 was hoping to raise a considerable amount of contributions, so that it could afford to hire paid petitioners to get Unity08 on the ballot in as many states as possible. Then, in June of 2008, it was going to hold an on-line “presidential primary” and let all voters choose its presidential ticket.

The U.S. District Court ruled last year that the FEC was correct, because if large contributors could donate to Unity08, the eventual presidential nominee might be bribed or unduly influenced by the people who had made his or her nomination possible. But Unity08 argued in the D.C. Appeals Court that this fear is unfounded, because the donors to the petitioning effort wouldn’t know who the eventual presidential nominee was going to be.

The Appeals Court decision will turn on whether Unity08’s situation is similar to the situation of the people in mid-1979 who organized a committee to draft U.S. Senator Ted Kennedy for the Democratic nomination for president in 1980. The D.C. Circuit had ruled in that case, FEC v Machinists Non-Partisan Political League, 655 F 2d 380, that the Draft Kennedy committee should have been allowed to raise unlimited money from individuals, because there was threat that large donors were bribing Senator Kennedy. The Court in that 1981 decision said, “Draft groups aim to produce some day a candidate acceptable to them, but they have not yet succeeded. Therefore none are promoting a ‘candidate’ for office, as Congress uses the term in FECA.”

In the Unity08 hearing, Judge Stephen Williams seemed to believe that if draft committees can raise unlimited money, Unity08 should also. Judge Douglas Ginsburg seemed less persuaded. Judge Karen Henderson did not ask any questions or make any comments. A decision is likely in a few months.