Pursuing America’s Greatness v. FEC (District court)

On September 24, 2015, the U.S. District Court for the District of Columbia denied a motion by Pursuing America's Greatness (PAG) for a preliminary injunction to prevent the Commission from enforcing against it restrictions on unauthorized committees’ use of a candidate’s name.

Background
PAG is a nonconnected independent expenditure-only committee (Super PAC) supporting Governor Mike Huckabee’s 2016 campaign for president. PAG controls a website and a Facebook page that use Gov. Huckabee’s name and indicate PAG's support for his candidacy. PAG maintains, however, that it does not intend to use these pages to solicit contributions to PAG or otherwise engage in fundraising activities.

The Federal Election Campaign Act (the Act) states that "any political committee which is not an authorized committee [of a federal candidate]…shall not include the name of any candidate in its name." 52 U.S.C. § 30102(e)(4). Commission regulations further state that any political committee that is not the authorized committee of a candidate shall not include the name of any candidate in its name, which also includes "any name under which a committee conducts activities, such as solicitations or other communications, including a special project name or other designation." 11 CFR 102.14(a). Commission regulations, however, do state that an unauthorized committee may include the name of a candidate in the title of a special project name or other communication if the title clearly and unambiguously shows opposition to the named candidate. 11 CFR 102.14(b)(3).

On July 27, 2015, Pursuing America’s Greatness (PAG) filed suit in the U.S. District Court for the District of Columbia challenging Commission regulations at 11 CFR 102.14 and a recently-issued advisory opinion (AO 2015-04 (Collective Actions PAC)) that restrict an unauthorized committee’s use of a candidate’s name in the committee’s special projects including websites supporting that candidate, and seeking a preliminary injunction to prevent the Commission from enforcing those restrictions against PAG. PAG maintains that the challenged restrictions are an unconstitutional violation of its First Amendment guarantee of freedom of speech. It also challenged AO 2015-04 as invalid under the Administrative Procedure Act (APA).

District Court Decision
The district court found that PAG failed to demonstrate that it is likely to succeed on the merits of its APA and First Amendment claims and declined to grant the motion for a preliminary injunction that would prevent the Commission from enforcing those restrictions against PAG.

APA Challenge. PAG challenged the naming restrictions under the Administrative Procedure Act as arbitrary and capricious and in excess of the Commission’s statutory authority. PAG argued that the Commission’s naming restrictions were promulgated based on concerns about fraud and confusion in fundraising activities. PAG contended that it will not conduct fundraising activities through its websites and social media pages, and that the Commission’s application of the rules to PAG is arbitrary, capricious and contrary to law.

The district court rejected PAG's suggestion that the naming restrictions could only extend to special fundraising projects, explaining that the rulemaking record supported the Commission's concern for confusion in all types of communications, and not just fundraising solicitations. Slip op. at 15. For example, the court noted that the Facebook page PAG controls itself contained numerous comments that were directly addressed to the candidate supported by PAG, thus illustrating confusion by readers about whether the committee operating the Facebook page was authorized by the candidate. Slip op. at 18.

In examining the Commission's past deliberations on the naming restriction, the district court found there was "a rational connection between the facts found" by the FEC during the rulemaking processes and "the choice[s] made" by the FEC in promulgating the current version of 11 CFR 102.14 and issuing AO 2015-04. The court also found that there is no indication that the Commission’s interpretation of section 102.14 in AO 2015-04 is contrary to law or to the agency’s intent at the time it revised the regulation. Thus, the court found that PAG did not establish that it is likely to succeed in its case on the merits of its APA claim.

First Amendment Challenge. PAG also argued that prohibiting it from using a candidate’s name in the name of its websites and other social media platforms when the name of such media do not clearly show opposition to that named candidate amounts to an unconstitutional prior restraint, in violation of the First Amendment. PAG further argued that the exception in 11 CFR 102.14(b)(3), which permits an unauthorized committee to use a federal candidate’s name in a special project name that clearly and unambiguously shows opposition to the named candidate, renders the general naming requirements an unconstitutional content-based restriction on speech, which should not withstand strict scrutiny.

The court disagreed, stating that the naming restrictions in question are "part and parcel of FECA’s disclosure regime" and "‘substantially related to the government’s interests in limiting confusion, fraud, and abuse’" by "‘serv[ing] to clarify the candidate-authorization status of political committees.’" Slip op. at 23, 29. The court again pointed to the above-referenced public comments posted on the Facebook page PAG controls as an example of the need for such a regulation that avoids confusion as to whether the communication is made by a campaign or not by restricting the use of a candidate's name by an unauthorized committee in its name or the names or titles of its communications or projects.

Moreover, as the naming restriction does not actually prevent the committee from supporting or opposing candidates, but merely from using the name of a candidate in the name of the committee or the names of its special projects, the court noted that it only "minimally burdens political committee speech" while satisfying legitimate government interests in ensuring the public knows "who is speaking about a candidate shortly about an election" (Citizens United, 558 U.S. at 369) and limiting "the possibility of fraud, confusion and abuse in federal elections." The court thus found that the naming restrictions satisfied constitutional scrutiny.

Because the court found that PAG's claims did not establish a likelihood of success for its challenge to the naming restrictions of 11 CFR 102.14 and AO 2015-04, it declined to grant PAG's motion for an injunction to enjoin the Commission from enforcing those restrictions on PAG and its projects and communications. The court also briefly addressed the other factors needed to prevail on a preliminary injunction, noting the reliance by PAG on its First Amendment claims was insufficient to demonstrate that:

• PAG would suffer irreparable injury if the injunction was not granted;
• PAG had established that the balance of equities tips in its favor; and
• The public interest would be furthered by the issuance of the injunction.

PAG filed a notice of appeal on September 28, 2015, with the U.S. Court of Appeals for the D.C. Circuit.

Resources:

• Pursuing America's Greatness v. FEC litigation page
  
• Record article on AO 2015-04