Pursuing America’s Greatness v. FEC (New)

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 and a recently-issued advisory opinion that restrict an unauthorized committee’s use of a candidate’s name in social media and other Internet activities supporting that candidate. PAG also seeks a preliminary injunction to prevent the Commission from enforcing those restrictions. PAG maintains that the challenged regulations are an unconstitutional violation of their First Amendment guarantee of freedom of speech. It also challenges the Commission’s Advisory Opinion (AO) 2015-04 as invalid under the Administrative Procedure Act.

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). However, Commission regulations 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 16, 2015, the Commission applied these provisions in an advisory opinion issued to Collective Actions PAC, a Super PAC that supports the presidential campaign of Senator Bernie Sanders. In AO 2015-04, the Commission concluded that Collective Actions PAC’s use of Senator Sanders’s name in the Committee’s websites and social media pages is inconsistent with 11 CFR 102.14 and thus impermissible. PAG maintains that it is similarly situated to Collective Actions PAC. It is an unauthorized political committee that maintains a website and other online media that advocate independently the election of a candidate for president (Gov. Huckabee) and wants to use the candidate’s name in the name of its website and other online media, but is precluded from doing so by the Commission’s naming requirements for unauthorized political committees.

Legal Challenge
PAG challenges Advisory Opinion 2015-04 under the Administrative Procedure Act as arbitrary and capricious and in excess of the Commission’s statutory authority. PAG argues that the Commission’s naming regulation was promulgated based on concerns about fraud and confusion in fundraising activities. Since it will not conduct fundraising activities through its websites and social media pages, PAG contends the Commission’s application of the rules is arbitrary, capricious and contrary to law.

PAG also challenges the political committee naming requirements under the First Amendment. It argues 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 also argues 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.

PAG seeks a declaratory judgment from the court that the challenged naming requirements for unauthorized political committees are void under the Administrative Procedure Act and unconstitutional under the First Amendment. PAG also seeks a preliminary injunction which would prevent the Commission from enforcing the general naming requirements for unauthorized committees against PAG and its intended activities.

Resources:

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