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Transcript and Review of Unity08 Online Chat

Yesterday afternoon, one of the lawyers working for Unity08, Thomas Collier, held an online chat in which the main topic was set to “be Unity08’s recent challenge to an advisory opinion about our status issued by the FEC last fall,” but also to cover “ballot access drive, Rules Committee and other topics.” I prepared a broad set of questions accordingly. When the chat began, the U08Moderator (revealed later to be Unity08 Communications Director Shane Kinkennon) restricted the topic and process further:

u08moderator: Hello again everyone. This is the moderator for today’s chat. Just so you know, today’s live chat with Tom Collier will be a moderated discussion, because we are expecting far more questions than Tom can answer in the hour we have available. We’re going to try to get to as many questions as possible, and type as fast as we can, but we undoubtedly won’t get to all of them. Thank you in advance for your understanding in that regard.

u08moderator: And a point of clarification up front. As you know, the subject of today’s chat is Unity08’s recent challenge to the FEC about our Unity08’s election law. Our intent is to focus only on those questions, ones in which Tom is ideally suited to answer. We know there are a number of great questions on this topics, and we want to be sure those get answered.

u08moderator: correction: Unity08’s classification under election law. Sorry for the confusion.

So this wasn’t really a “chat” in the classic sense of people sitting down and having a back-and-forth conversation about the range of topics described when people signed up. It was moderated, so that people had to submit questions for approval, and only those questions that Thomas Collier wished to answer were answered. Other questions were not even made visible for the rest of us to see. So what you’ll see below is really just a partial transcript. I have no idea what everybody really asked, just what the questions were that Thomas Collier chose to answer.

On the left below is a transcript of the results, and below on the right are my comments regarding them.

Transcript of Chat

Comments

Jim_Cook: In seeking an official Advisory Opinion on its correct designation as an organization (527 vs. PAC), Unity08 specifically stated that “The FEC will determine whether or not we are a political committee for FEC purposes. Obviously we will follow their opinion.” On another page, Unity08 posed and answered its own question: “Would you and your candidates have to abide by FEC regulations? Of course.” Yet when the FEC’s advisory opinion was issued, informing Unity08 of the need to register as a PAC within 10 days, Unity08 ignored it for two months, and then filed a lawsuit against the FEC.

tom_collier: Recently, we filed an appeal of the FEC advisory opinion in Federal Court in Washington, D.C. Until the Court has ruled on that appeal, it is not appropriate to register with the FEC. Therefore, as soon as the Court has ruled on our appeal, we will comply with the results of that decision.

This is actually only one-third of one of the fourteen questions I posed at the beginning of the chat (see the full list here). There was an additional question I posed during the chat that also went unanswered.

And notice that this is a non-answer, not an answer. The question (which was cut off by Collier’s editing) asked about the breaking of the pledge to follow the FEC’s opinion, and to “of course” abide by FEC regulations. The non-answer merely noted that Unity08 had decided not to follow the FEC’s opinion or to abide by FEC regulations, and had filed a lawsuit instead.

Wendy: In how many states is the ballot access drive currently active? How critical is this project to Unity08 success?

tom_collier: We have been concentrating on developing the specific criteria for getting on the ballot in all fifty states. We have not yet begun collecting signatures in any state, but intend to do so very shortly. This effort is critical to the ultimate success of Unity08 as our candidates will want assurance that they will be listed on the ballots of every state.

In other words, the ballot access drive is currently active in NO states, and the drive is critical.

Thomas Collier describes a ballot access drive for “all fifty states,” and says that “our candidates will want assurance that they will be listed on the ballots of every state.” Yet in Unity08’s lawsuit (DC District Court, Case 1:07-cv-00053-RWR) filed by three colleagues of Thomas Collier at Steptoe & Johnson LLP (Robert E. Jordan, John J. Duffy and Anthony A. Onorato) on behalf of five Unity08 plaintiffs (Douglas L. Bailey, Roger Craver, Hamilton Jordan, Angus King and Carolyn Tieger), Unity08 clearly declares its intention to pursue ballot access in fewer than 50 states:

Unity08’s present efforts focus on two things: (1) disseminating through a website of its analysis that the country needs to focus on crucial issues, and its intention to select and elect a Unity08 ticket; and (2) raising and spending money to qualify Unity08 for a position on the ballot in the approximately thirty-seven (37) states that permit a new political organization to qualify as a political organization for a place on the ballot in a general election and field candidates for the offices of President and Vice President.

and also:

Unity08 estimates that qualifying for ballot access in all thirty-seven (37) states could cost as much as $10 million

and also:

…in order to have the best possible chance of raising sufficient monies to defray the cost of obtaining ballot access as an organization in thirty-seven (37) states prior to the 2008 election, it should accept donations from individuals, which may be in the form of loans, without limitation as to the amount.

That’s three (3) references to obtaining ballot access as an organization in thirty-seven (37) states.

northwiguy: On the whole FEC challenge, I understand that there are contribution limits if their decision stands. Why is this a problem? I read somewhere on unity08.com that we’ve only raised $77,000 in the bigger donations. Are we expecting huge donations from altruistic billionaires? Should we even be accepting large donations? If this is really going to challenge the system, shouldn’t we start by differentiating our fundraising from that of the corporate-run major parties?

tom_collier: We’re very prepared to defend our petition-gatering efforts against attacks from the major parties or any other parties. As we’re planning to organize these efforts we will also be especially careful to make sure that we comply with all requirements and that we provide more than enough signatures to qualify. Finally, we will have a legal team available in each state ready and willing to meet any legal challenges that are leveled at our ballot access petitions.

[Later, Thomas Collier recognizes that this doesn’t answer northwiguy’s question at all, and he types in:

tom_collier: Sorry, NorthWiGuy. I answered a different question of yours. I think this answer applies to your question as well. An excellent question, MFV! It’s one that has caused all of us associated with Unity08 a great deal of concern. It’s important to us that Unity08 set a new level of appropriateness in raising money to make our efforts successful. We have, from the beginning, set individual contribution limits of $5,000. It is our current plan to keep that contribution limit for individuals. We have discovered, however, that initial start-up and investment costs are very difficult, if not impossible, to raise in $5,000 increments. Therefore, we may need to seek some start-up loans in excess of $5,000, which we would intend to repay through $5,000 contributions. The FEC $5,000 contribution limit precludes the acceptance of such loans. It is our intent to increase the importance of small dollar donations by everyday Americans and to decrease the importance of bigger, special interest contributions.]

With his second answer, Thomas Collier doesn’t directly address whether Unity08 is “expecting huge donations from altruistic billionaires.” (That may be a good thing. Unity08 has been in negotiations with Republican Senator Chuck Hagel and Republican Mayor Michael Bloomberg to run for the presidency under the Unity 08 banner. Republican Chuck Hagel was worth as much as $7.4 Million in 2005, and Republican Michael Bloomberg was worth $5.3 Billion in 2006.

Collier seems to be saying in his second comment:

1. We will not in “our current plan” accept contributions above the level of $5,000.
2. We will take loans from people above the level of $5,000, then pay them back.

In the filing by his law firm on behalf of Unity08, the following claim is made:

The individual Plaintiffs to this suit are contributors to Unity08 and would all have contributed substantially more than $5,000 except for the threat of prosecution by the FEC that could result in civil or criminal penalties.

This appears to be inconsistent with Thomas Collier’s description of “our current plan.” Such apparent inconsistency requires explanation from Unity08.

chiripero: When the NEC allowed Unity08 a spot on the 2008 election ballot there was a stipulation restricting the amount of money Unity08 could accept from donors. What was the amount? How does it compare to that allowed other parties? If it differs from the Democrats and Republicans, why is that legal ?

tom_collier: The FEC didn’t actaully allow us a place on the ballot, instead it required us to register as an independent political committee and to limit our contributions to $5,000 from each individual. The Republican and Democratic parties have a $25,000 individual contribution limit. We don’t think this is legal and that is one of the reasons why we have filed an appeal of the FEC advisory opinion.

No comment. I don’t know enough about the legal distinction between political parties to say anything here without faking it.
Dave_Hamlin: Since the FEC is comprised if only Democrats and/or Republicans how can a third party get any fair ruling from a group that see’s its possible demise coming from a third party ?

tom_collier: In fact, it appears that it’s very difficult to get a fair hearing from a commission made up entirely of the competition. That is the reason why we are appealing the decision of the FEC to Federal Court where we hope to get an unbiased review.

You’re not going to see me argue that the Democrats and Republicans don’t have a lock on the political system. But Unity08 previously said that it would follow FEC regulations, and that it would follow the FEC’s Final Advisory Opinion. Why would it have said these things before the issuing of the Final Advisory Opinion, and then have changed its tune afterwards?
MFV: Why does u08 waant higher contributions while asking other candidates to sign the clean money pledge?

tom_collier: Sorry, NorthWiGuy. I answered a different question of yours. I think this answer applies to your question as well. An excellent question, MFV! It’s one that has caused all of us associated with Unity08 a great deal of concern. It’s important to us that Unity08 set a new level of appropriateness in raising money to make our efforts successful. We have, from the beginning, set individual contribution limits of $5,000. It is our current plan to keep that contribution limit for individuals. We have discovered, however, that initial start-up and investment costs are very difficult, if not impossible, to raise in $5,000 increments. Therefore, we may need to seek some start-up loans in excess of $5,000, which we would intend to repay through $5,000 contributions. The FEC $5,000 contribution limit precludes the acceptance of such loans. It is our intent to increase the importance of small dollar donations by everyday Americans and to decrease the importance of bigger, special interest contributions.

This is not an answer to MFV’s question. The Clean Money Pledge to which MFV refers has a standard not of $5,000, but of $250: “I will only vote for a presidential candidate who has raised half of his/her funds through small contributions of $250 or less.” The clear implication is that contributions of more than $250 are not “clean money,” but rather “dirty money.” By its own standard, Unity08 is arguing that it needs to collect a large amount of “dirty money” in order to survive.
u08moderator: Thanks for all the great questions. Please be sure Tom is typing as fast as he can. We appreciate your patience.

MikeThebado: How realistic is it to expect the federal court system to overturn the FEC’s campaign contribution limit, taking into account the 9th Circuit’s recent opinion in Citizens for Clean Government v City of San Diego?

tom_collier: It is very realistic to expect that we will win this litigation. The Supreme Court in Buckley vs. Valeo established the bedrock first amendment principle that guarantees that individuals can raise money to promote their first amendment views without restriction unless they have identified and are supporting a specific candidate. As you know, we are looking to the Unity08 Delegates at our virtual convention during the spring of 2008 to select our candidates. Until that time, Buckley should preclude imposing FEC contribution limits on Unity08. We are very confident of our legal position and look forward to the ruling on our appeal.

No comment. Let’s see what the court itself says.
MFV: Why doesn’t u08 just register as a third party? It seems to me that is really what you are.

tom_collier: That is exactly what we’re trying to do. But, the FEC maintains we are not a third national party and instead are a smaller, independent party. As such, we are limited to $5,000 individual contributions instead of the $25,000 limit that is imposed on national parties.

Actually, the Federal Election Commission Final Advisory Opinion does not refer to Unity08 as a “smaller, independent party.” It refers to Unity08 as a “political committee”, which is also known as a PAC (Political Action Committee).
Otto_Phteebox: A quick synopsis of the FEC issues with Unith08 would be a good backgrouder to start… what exactly are the legal challenges they (FEC) are presenting and perhaps a few quick option on how we (Unity08) might respond (I am not a lawyer) and would need this info. Thnks

tom_collier: The primary issue presented by the recent FEC advisory opinion relates to when we should be subjected to individual contribution limits and what those limits should be. Supreme Court cases have held that organizations are not subject to contribution limits until they identify a specific candidate. The basis of these cases is that individuals should be free to raise and spend money to support their first amendment views. At the current time, Unity08’s efforts are focused on organizational issues and ballot access issues. We do not yet support any specific candidate. Under those Supreme Court cases, we should not be subjected to spending limits as the FEC advisory opinion attempted to do. In addition, if spending limits are imposed, we should not be restricted to much lower limits than are imposed upon our competition, the Democratic and Republican parties. Those major parties have $25,000 contribution limits while the FEC attempted to impose a $5,000 contribution limit on Unity08.

Thomas Collier now appears to be stating that Unity08 should be able to collect $25,000 contributions, not the $5,000 contributions he earlier referred to as the limit in Unity08’s “current plan.” Unity08 needs to explain this apparent contradiction.

Unity08 does not present the FEC case as Otto Phteebox requests. The FEC, in its Final Advisory Opinion, does not characterize the Supreme Court as Thomas Collier says it does: that, according to the Supreme Court, “organizations are not subject to contribution limits until they identify a specific candidate.” In actuality, the FEC’s Advisory Opinion states:

The Supreme Court has held that, “[t]o fulfill the purposes of the Act,” and to avoid “reach[ing] groups
engaged purely in issue discussion,” only organizations whose major purpose is campaign activity can be considered
political committees under the Act. See e.g., Buckley v. Valeo, 424 U.S. 1, 79; FEC v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238, 262 (1986). An organization’s “major purpose” may be established through its own public statements. See e.g., FEC v. Malenick, 310 F. Supp. 2d 230, 234-36 (D.D.C. 2004) (finding the organization evidenced its “major purpose” through its own materials which stated the organization’s goal of supporting the election of Republican Party candidates for Federal office and through efforts to get prospective donors to consider supporting Federal candidates); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (finding that the “organization’s [major] purpose may be evidenced by its public statements of its purpose or by other means. . . .”).

Lee_Mortimer: Electronic signatures are legally binding in some cases. Would it be possible for people to sign an on-line ballot access petition using their electronic signature? Would state boards of election have to accept such petitions?

tom_collier: We are actually taking a look at whether we can use something like electronic signatures to allow for electronic petitions. We don’t yet have a clear answer, but hope to soon.

This is off the topic stated by the U08Moderator. It seems that’s allowed for some questions, but not for others.
adamdibiase: Once we decide on candidates, what kinds of legal problems will we have given that we lack any sort of 50-state party structure for support? Even 3rd party candidates like Ralph Nader have had organizations behind them in each state.

tom_collier: I don’t think this presents any legal questions. We will have a legal team available to deal with issues in every state. The initial types of legal issues we will face will deal with defending attacks that will be brought by the major parties on our petition gathering and ballot access efforts. But, you raise a good point. And we intend to form Unity08 organizations in every state to support our candidates as they run for office.

More of the same.
Dave_Hamlin: The FEC is made up of Republicans and Democrats they used there will to keep things strictly on a two party basis in the past what is to prevent them from trying to exclude us going forward ?

tom_collier: Nothing. In fact, we are already suffering from this phenomenon. That’s why we’re headed to Federal Court where we can get an unbiased review of the FEC’s recent actions.

Didn’t we see this question before? What other questions were punted to let Dave Hamlin make the same point twice?
IndieRalph: OK…is this a political party or simply a ‘movement’ to circumvent the major political entities?

tom_collier: In our view, this is a movement. We are not asking that our Delegates or candidates leave their established parties. In fact, we intend that our candidates represent each of the major parties, or at least one of the major parties with the other candidate being an Independent. However, as we seek to comply with the various federal laws, those laws tend to categorize us in ways we might not prefer. For example, the FEC now calls us an independent political committee. We still think of ourselves as a movement.

Is Unity08 a party or not? Good question, IndieRalph. Thomas Collier here says not, that it’s a “movement.” But above he said Unity08 should be treated like a political party, just like the Democrats and the Republicans. And Unity08 refers to itself as a “party” in multiple places in its lawsuit (see, for example, pages 8 and 9). What is behind the equivocation here? I do not understand.
Citizen21: Will these be bank loans or private loans?

tom_collier: We’re not sure. For some purposes, we may be able to get bank loans. For others, I suspect they will be private. These are issues that we have not yet completely resolved and probably won’t until we get a favorable decision from the Federal District Court.

Citizen21 is right on track here. If Unity08 receives private loans, who will they be from? On what terms? With what future expectations?
Lize1979: Can they refuse to review the decision?

tom_collier: No. Although, as with any technical legal issue, they may try to find a way to avoid dealing with the specific issue which we have raised in our appeal. I think the way we have postured this case, however, we will get a decision on the merits and get one promptly. I also am confident that it will be favorable.

No comment.
rcfc: What is the difference between a third party and an independent party?

tom_collier: Nothing. The problem with all of the terminology we are using is that much of it only has a technical meaning for some very limited statutory purpose. When in fact, many of the terms in non-technical settings are really interchangeble. As I said a few minutes ago, we really think we are a movement, not a party. The FEC is calling us an independent political committee. In shorthand, some tend to call us a third party, or an independent party, but it really depends upon the context as to whether any of those is technically incorrect. The only time this really matters is when we are dealing with a specific statutory provision that requires us to be pigeon-holed by some name already listed in the statute.

Collier corrects himself here. Good.
dgooding: While the $25,000 limit puts Unity08 at a potential disadvantage, we also say that we’ll keep the limits to $5,000 per individual. Is challenging this issue meant to keep our options open? To show that discrimination against “third parties” (which we sort of are, sort of aren’t) is not legal?

tom_collier: To some extent, our challenge is to show just how unfair this process is on new comers like Unity08. But, it’s also important that we be able to maintain our flexibility and, as I explained before, we may need to seek some start-up loans which are precluded by the $5,000 contribution limit. We will repay those loans with $5,000 contributions if we are ever able to make use of them.

No comment.
Jorge: Maybe you should educate us on the history of other relatively successful third party campaigns in the history of national American politics. Why did they have success and more importantly why they did not continue.

tom_collier: In my opinion, there really have not been any successful third party efforts. At least not in the last 100 years. Instead, there have been some relatively successful third party presidential candidates. The difference is that those efforts were focused entirely on the candidate, not on the party. Here, we are really trying to do something that is different from both a third party and a third party candidacy. We are looking to nominate a Unity Ticket, one that includes candidates that do not come from the same major party. We want our candidates to be able to reach across the aisle and work with the other parties so that America can move forward on the vital issues that face our country.

No comment.
cleveoh1: Did any mainstream media pick up the fact the the FEC made up of the 2 parties is basically trying to throw obtacles against another party trying to make a run?

tom_collier: No. We’re hopeful that this point will be so obvious that it cannot be ignored by the mainstream media when the Federal District Court overrules the FEC’s advisory opinion.

I don’t think Unity08 wants to complain about how it has been treated by the mainstream media. I have yet to read a single critical piece.
EAGERWJ: Was the $5000 limit self-imposed by Unity08 as I perceived from the website that it was for good reason?

tom_collier: Yes. We thought there was very good reason to impose upon ourselves a $5,000 contribution limit. We want Unity08 to be funded by the people and not by special interests. Establishing that limit helps ensure that goal.

To quote the same passage again from Unity08’s lawsuit:

The individual Plaintiffs to this suit are contributors to Unity08 and would all have contributed substantially more than $5,000 except for the threat of prosecution by the FEC that could result in civil or criminal penalties.

Dave_Hamlin: If the courts rule in our favor can the FEC keep us out of the Presidential Debates ?

tom_collier: The rules for presidential debate participation really focus on the amount of support independent candidates have at the time of the debate as measured by various public opinion polls. We are confident that Unity08’s candidates, especially given the fact that they will have been chosen by millions of Delegates during our virtual convention, will have more than adequate support to qualify for the presidential debates.

u08moderator: Thank you everyone for participating. We appreciate your questions.

The FEC does not decide who gets to participate in presidential debates. The League of Women voters used to, but now the Commission on Presidential Debates does. This organization is headed by Republicans and Democrats, and it excludes third parties. Here’s one place where some serious ire should be directed.

I still have those 14 questions (and soon will have more… there’s some other shenanigans going on here that I’m working on). I’m still waiting for answers to them.

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