Brown v. Federal Election Commission ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEIGH BROWN et al.,
Plaintiffs,
v. Civil Action No. 19-1021 (TJK)
FEDERAL ELECTION COMMISSION,
Defendant.
MEMORANDUM OPINION
Does the First Amendment permit the Federal Election Commission to regulate, through
disclaimer and disclosure requirements, long-running radio ads for a person’s eponymous
business once that person decides to run for federal office? Leigh Brown, a realtor and recent
entrant into a primary race for a House of Representatives seat, argues it does not, largely
because those requirements allegedly function as an outright ban on her ability to run them under
the circumstances here. The crux of this case is whether that is so and, even if it is not, whether
the FEC can regulate Brown’s ads in the same way it does other speech about federal candidates
shortly before elections.
Brown and her business, known as Leigh Brown & Associates, seek a preliminary
injunction preventing the FEC from applying these disclaimer and disclosure requirements to
radio ads for the business. But because they have neither shown a likelihood of success on the
merits of the claims they have pled, nor demonstrated that they are likely to suffer irreparable
harm in the absence of preliminary relief, the Court declines to issue an injunction. As explained
below, only one set of Brown’s ads are subject to the disclaimer and disclosure requirements
under the statute at issue. And those requirements do not ban Brown or her business from
speaking. Further, even when, as here, the regulated speech “only pertain[s] to a commercial
transaction,” those requirements still serve the voting public’s “interest in knowing who is
speaking about a candidate shortly before an election.” Citizens United v. FEC, 558 U.S. 310,
369 (2010).
Background
A. Statutory and Regulatory Framework
The Federal Election Campaign Act (FECA), 52 U.S.C. § 30101 et seq., established the
Federal Election Commission (FEC) and empowered it to interpret and enforce various campaign
finance restrictions. See Van Hollen, Jr. v. FEC, 811 F.3d 486, 489 (D.C. Cir. 2016). The
Supreme Court upheld most of FECA’s spending limitations in Buckley v. Valeo, 424 U.S. 1(1976), and adopted a narrowing construction of FECA’s disclosure requirements such that they
would only reach those ads that “expressly advocate[d] the election or defeat of a clearly
identified candidate.” Van Hollen, 811 F.3d at 489 (quoting Buckley, 424 U.S. at 80). After
several decades, during which political advertisers developed creative workarounds to FECA’s
disclosure requirements, Congress passed the Bipartisan Campaign Reform Act (BCRA), Pub. L.
No. 107-155, 116 Stat. 81, in 2002. Van Hollen, 811 F.3d at 489.
1. Electioneering Communications
The statutory and regulatory provisions primarily at issue here regulate speech about
federal candidates shortly before elections. “BCRA recognized and regulated a new category of
political advertising called ‘electioneering communications,’” id., and required certain
disclaimers and disclosures to accompany electioneering communications to “provid[e] the
electorate with information,” Citizens United, 558 U.S. at 367 (quoting Buckley, 424 U.S. at 66).
An electioneering communication is:
any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office;
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(II) is made within—
(aa) 60 days before a general, special, or runoff election for the office sought by the
candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of
a political party that has authority to nominate a candidate, for the office sought by
the candidate; and
(III) in the case of a communication which refers to a candidate for an office other
than President or Vice President, is targeted to the relevant electorate.
52 U.S.C. § 30104(f)(3)(A)(i). Relevant to the first element, BCRA defines “clearly identified”
to mean that “the name of the candidate involved appears,” “a photograph or drawing of the
candidate appears,” or “the identity of the candidate is apparent by unambiguous reference.” Id.§ 30101(18). The third element, targeting to the relevant electorate, is satisfied “if the
communication can be received by 50,000 or more persons . . . in the district the candidate seeks
to represent.” 52 U.S.C. § 30104(f)(3)(C).
When a communication falls within this definition, two requirements for the person
airing the ad are triggered. The first is a disclaimer notice. See 11 C.F.R. § 110.11(a). The ad
must include a “clear and conspicuous” disclaimer that specifies who paid for the ad and whether
the candidate it mentions authorized it. Id. § 110.11(b), (c)(1). For radio ads authorized by the
candidate, the ad “must include an audio statement by the candidate that identifies the candidate
and states that he or she has approved the communication.” Id. § 110.11(c)(3)(i).
The second requirement is a report to the FEC disclosing various financial information
about the ad. See 52 U.S.C. § 30104(f); 11 C.F.R. § 104.20. If a corporation paid for the ad, it
must identify its corporate officers, the amount it has paid for electioneering communications,
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and the candidates that they clearly identify. 11 C.F.R. § 104.20(a)(3), (c). 1 This requirement
only applies once a corporation has spent more than $10,000 on electioneering communications
in a calendar year. Id. § 104.20(b).
BCRA authorizes the FEC to promulgate regulations exempting communications from
these disclaimer and disclosure requirements as long as the communications do not “promote[]
or support[] a candidate for that office, or attack[] or oppose[] a candidate for that office
(regardless of whether the communication expressly advocates a vote for or against a
candidate).” See 52 U.S.C. §§ 30101(20)(A)(iii), 30104(f)(3)(B)(iv). The FEC has suggested
that it might also be able to create such exemptions on a case-by-case basis through the issuing
of advisory opinions, which require the vote of four Commissioners. See 52 U.S.C. §§ 30106(c),
30108; Advisory Op. Request 2012-20 (Mullin), https://www.fec.gov/files/legal/
aos/2012-20/AO-2012-20.pdf.
2. Coordinated Communications
Also relevant to the instant motion are a set of restrictions on corporations’ campaign-
related activity. Campaign finance law has long prohibited corporations from donating to
campaigns. See FEC v. Beaumont, 539 U.S. 146, 152–53 (2003). In BCRA, Congress specified
that any electioneering communication that a corporation makes in coordination with a campaign
constitutes a prohibited donation. 52 U.S.C. § 30116(a)(7)(C). This effectively bans
“coordinated communications,” as the FEC calls them. 11 C.F.R. § 109.21(a).
The ban has a few, narrow exceptions. See 11 C.F.R. § 109.21(f)–(i). Relevant here is
the “[s]afe harbor for commercial transactions,” which reads:
1
A corporation must also disclose the identity of donors who have given over $1,000 “for the
purpose of furthering electioneering communications,” 11 C.F.R. § 104.20(c)(9), but neither
party suggests that there are any such donors to Mallard Creek Properties, Inc.
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A public communication in which a Federal candidate is clearly identified only in
his or her capacity as the owner or operator of a business that existed prior to the
candidacy is not a coordinated communication with respect to the clearly identified
candidate if:
(1) The medium, timing, content, and geographic distribution of the public
communication are consistent with public communications made prior to the
candidacy; and
(2) The public communication does not promote, support, attack, or oppose that
candidate or another candidate who seeks the same office as that candidate.
11 C.F.R. § 109.21(i).
B. Leigh Brown’s Business and Candidacy
Brown is a realtor in the Charlotte, North Carolina metropolitan area. ECF No. 11 (“Am.
Compl.”) ¶¶ 45–46. Since 2003, her corporation, Mallard Creek Properties, Inc., has done
business as Leigh Brown & Associates, and employs eight people besides Brown herself. Id. ¶
46. For the past thirteen years, Brown has recorded and aired radio ads for the business. Id. ¶¶
47–48. She typically runs two ads at a time, recording new ones every 60 to 90 days. Id. ¶ 48.
These ads
generally are 60 seconds in length, and typically feature discussion of a real estate
issue specific to the Charlotte real estate market (e.g., local property values and
trends in housing prices). For the past several years, the advertisements typically
note how many houses her team sells and consistently include two closing slogans:
“I’m interviewing for a job[;] I want to be your realtor” and “There is a difference
when you call Leigh Brown.”
Id. ¶ 51. She has contracted to air 706 ads for $48,204 in 2019. Id. ¶ 47.
Earlier this year, Brown entered the primary for the special election for the seat in the
U.S. House of Representatives representing North Carolina’s Ninth Congressional District. Id.
¶¶ 34, 45. That primary election will take place on May 14, 2019. 2 Id. ¶ 34.
2
The timing of the general election—a special election held off-cycle—will depend on the
results of the May 14 primary. If any candidate obtains more than thirty percent of the vote, the
5
C. FEC Proceedings
Shortly after announcing her candidacy, Brown sought an advisory opinion from the FEC
about four radio ads for Leigh Brown & Associates. Id. ¶ 33. The first two were ads Brown was
already airing on the radio. They read as follows:
In a world where everything seems to be online and at the click of a button, you
have to realize that real estate pricing is just not an exact science. I’m Leigh Brown
with RE/MAX and I’m getting a lot of phone calls about the current tax valuations
and the updates to the process. My clients need help with disputing that number
because occasionally it’s wrong. I also have folks that want to know what their
property is worth based on their upgrades and condition and I can give a more
accurate ballpark than a website can. Frankly, y’all, the reason you have a trusted
Realtor is that we are there for you between the buying and the selling and all steps
in between. My team and I sell a house every two days, y’all, and that’s not
bragging. That’s interviewing for a job. In fact, the job I want is to be your Realtor
for life. For more information, visit my website at leighsells.com or call anytime
at 704-705-7036, that’s 705-7036. There is a difference when you call Leigh
Brown.
...
I believe it’s a natural human reflex to see a Realtor and ask, “Hey, how’s the
market?” I’m Leigh Brown with RE/MAX and I can tell y’all that is the number
one question I’m being asked right now by folks considering buying or selling real
estate in the Charlotte market. Sellers should know that while prices are still
creeping upward, so are days on market. That’s reducing the number of multiple
offer situations although frankly it all depends on what zip code you’re in and your
price point. Now, let’s look at those factors differently and realize it creates a
favorable situation for buyers. Add great interest rates to the normalization of the
market and you probably should consider calling me for an evaluation on buying
and selling. You can always get information on my website at leighsells.com and
find out why my team and I are selling a house every two days. I’m not bragging
about that statistic, y’all, I’m interviewing for a job. I want to be your Realtor. Call
me anytime at 704-705-7036, that’s 705-7036. There is a difference when you call
Leigh Brown.
general election will be in September 2019; if not, a runoff election will be in September and the
general election will be in November 2019. See Def.’s Opp’n at 41; FEC, Special election report
notice: North Carolina Special Election 9th Congressional District, https://www.fec.gov/help-
candidates-and-committees/dates-and-deadlines/2019-reporting-dates/special-election-report-
notice-nc09/.
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ECF No. 12-1 (“Pls.’ Mot.”) at 4–5. Brown asked the FEC for an advisory opinion exempting
these two ads from the disclaimer and disclosure requirements related to electioneering
communications. Am. Compl. Ex. A.
Brown proposed a set of alternative ads should the FEC not exempt the original ones. Id.
at 7. These alternative ads made two changes to the original scripts: (1) they substituted “Leigh
Brown & Associates” for any instance of “Leigh Brown”; and (2) they substituted either “we”,
“we’re” or “our” for any instance of “I”, “I’m” or “my.” Id. at 7–8. Brown asked that the FEC
issue an advisory opinion that these alternative ads were not electioneering communications
because they did not refer to a clearly identify a candidate. Id. at 8–9. Because Brown planned
to voice these alternative ads herself, she also requested that the FEC determine that her voice
alone would refer to a clearly identified candidate. Id.On April 11, 2019, the FEC held a hearing on Brown’s request. Am. Compl. ¶ 32.
Because no draft advisory opinion received four votes, the FEC did not issue any advisory
opinion. Id. ¶ 59; see 52 U.S.C. §§ 30106(c), 30107(a)(7).
D. The Instant Case
Brown initiated this action and moved for a temporary restraining order the same day of
the FEC hearing. After the government responded and the Court heard argument, it denied the
motion and set an expedited schedule for her anticipated preliminary injunction motion.
Thereafter, Brown and Mallard Creek Properties, Inc., (collectively, “Plaintiffs”) filed an
amended complaint as well as a motion for a preliminary injunction; the Court heard argument
on that motion on April 26, 2019. 3
3
Plaintiffs on the original complaint included Brown, her campaign, and Leigh Brown &
Associates. See ECF No. 1. Mallard Creek Properties, Inc., joined this action, and Brown’s
campaign and Leigh Brown & Associates departed it, in the amended complaint. See Am.
Compl.
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In their amended complaint, Plaintiffs bring three counts: (1) a claim that the
electioneering communications rules are unconstitutional under the First Amendment as applied
to Brown’s original ads; (2) a claim that the electioneering communications rules are
unconstitutional under the First Amendment as applied to Brown’s alternative ads; and (3) a
claim urging the Court to employ the canon of constitutional avoidance to determine that none of
the ads are electioneering communications under the statute. They have moved for a preliminary
injunction on each count.
Plaintiffs insist that neither set of ads meets the statutory definition of electioneering
communication. Pls.’ Mot. at 24–26. But, assuming they do, Plaintiffs’ motion characterizes the
relevant rules as creating a “quandary” for them that effectively bans them from speaking. E.g.,
Pls.’ Mot. at 14. If her radio ads are electioneering communications, they say, Brown must
include a disclaimer saying that she either did or did not authorize the ads. Id. The latter would
be untrue because she wrote and recorded them; the former would, they contend, make the ad a
coordinated communication and therefore an illegal campaign contribution by her company. Id.at 14–15. Her choice, as they see it, is to lie or to not air her ads at all. Id. at 15–16, 19–20.
The FEC argues that there is no quandary. ECF No. 14 (“Def.’s Opp’n”) at 21. To
comply with the disclaimer requirement, the FEC says, all Brown has to do is state at the end of
her ad that she authorized the ad but her business paid for it. Id. at 22–23. The FEC posits that
she will probably not spend the $10,000 required to trigger the reporting requirement but that,
were she to, her company would merely have to submit a standard form. Id. And the FEC says
she need not do anything at all to avoid the coordinated communications ban because her ads fall
within the safe harbor for those proposing commercial transactions under 11 C.F.R. § 109.21(i).
Id. at 22.
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Legal Standard
A preliminary injunction is an “extraordinary remedy.” Winter v. NRDC, 555 U.S. 7, 22
(2008). To receive it, Plaintiffs “must make a ‘clear showing’ that four factors, taken together,
warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary
relief, a balance of the equities in [their] favor, and accord with the public interest.” Pursuing
Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016) (quoting Winter, 555 U.S. at 20,
22). When the government is the party opposing a preliminary injunction, the Court analyzes the
latter two factors as one “because the government’s interest is the public interest.” Id. at 511
(citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
Before the Supreme Court decided Winter, courts in this Circuit analyzed these factors on
a sliding scale, so that a plaintiff’s weak showing on one could be overcome by a strong showing
on the others. Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011). The D.C. Circuit
“has suggested, without deciding, that Winter should be read to abandon the sliding-scale
analysis in favor of a ‘more demanding burden’ requiring plaintiffs to independently demonstrate
both a likelihood of success on the merits and irreparable harm.” Standing Rock Sioux Tribe v.
U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (quoting Sherley, 644 F.3d at
392). In any event, the Court need not determine the continued validity of the sliding-scale
approach because, without a likelihood of success on the merits, Plaintiffs are not entitled to a
preliminary injunction regardless of their showing on the other factors. See Ark. Dairy Coop
Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009).
Analysis
A. Jurisdiction
Before turning to the merits of Plaintiffs’ request for a preliminary injunction, the Court
must briefly address a few jurisdictional matters. Both BCRA and FECA offer special review
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procedures when certain plaintiffs bring constitutional challenges to their provisions. See 52
U.S.C. § 30110 & note. The Court therefore ordered the parties to address at the preliminary
injunction hearing whether either procedure deprived this Court of jurisdiction over Plaintiffs’
constitutional claims or their motion for a preliminary injunction. The Court is satisfied that
neither does.
BCRA’s special review procedure permits plaintiffs to request three-judge panels to hear
their constitutional claims. See Indep. Inst. v. FEC, 816 F.3d 113, 115 (D.C. Cir. 2016). When a
plaintiff does not make such a request, however, a district court retains jurisdiction. See 52
U.S.C. § 30110 note. At the hearing on Plaintiffs’ preliminary injunction motion, Plaintiffs
expressly disclaimed any request for a three-judge panel.
FECA’s special review procedure applies to individuals’ constitutional challenges to the
Act’s provisions (although not to the regulations promulgated under it). See id. § 30110; Wagner
v. FEC, 717 F.3d 1007, 1010–11 (D.C. Cir. 2013) (per curiam). This deprives a district court of
jurisdiction over the merits and requires that the court “immediately certify the record and all
non-frivolous constitutional questions to the en banc court of appeals.” Wagner, 717 F.3d at
1009, 1011. At the hearing, the parties disagreed on whether this provision governs any piece of
Plaintiffs’ complaint: Plaintiffs asserted it covers Brown’s challenge to the statutory provisions
about electioneering communications, and the FEC asserted that Plaintiffs’ FECA claims are too
frivolous to warrant certification. But they both insisted that even if this procedure applies, it
does not deprive the Court of its jurisdiction to rule on Plaintiffs’ preliminary injunction motion.
The Court agrees. And district courts in this Circuit have decided preliminary injunction
motions under these circumstances. See, e.g., Holmes v. FEC, 71 F. Supp. 3d 178, 181–82 & n.3
(D.D.C. 2014) (denying preliminary injunction despite applicability of FECA’s special review
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procedure); Rufer v. FEC, 64 F. Supp. 3d 195, 203–06 (D.D.C. 2014) (denying preliminary
injunction after concluding that the constitutional claims must be certified to the en banc D.C.
Circuit).
Therefore, although the Court may yet have to certify some portion of Plaintiffs’
constitutional claims to the en banc D.C. Circuit, it determines that it can decide their request for
a preliminary injunction.
B. Plaintiffs’ Likelihood of Success on the Merits
Counts I and II of Plaintiffs’ amended complaint are as-applied First Amendment
challenges to the electioneering communications rules. See Am. Compl. ¶¶ 71–88. Count III
contains no cognizable cause of action, as discussed in more detail below, but Plaintiffs frame
the relief they are seeking through Count III as a declaration that Brown’s ads are not
electioneering communications under the statute. Pls.’ Mot. at 24 (“[T]his Court can grant an
injunction pursuant to Count Three as the advertisements at issue are not electioneering
communications because they do not refer to a clearly identified candidate[.]”).
Whether Brown’s ads are in fact electioneering communications bears on the merits of all
three counts in Plaintiffs’ amended complaint, so the Court will address that question first.
Indeed, one court framed the question of whether a plaintiff’s ads were electioneering
communications as a predicate to reaching its as-applied constitutional challenges. See Hispanic
Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407, 431 (E.D. Va. 2012) (“Given that three of
[the plaintiff’s] five proposed advertisements constitute electioneering communications, it is
appropriate next to consider [its] as-applied challenges to the electioneering communication
statutes.”).
For the reasons explained below, the Court determines that Brown’s original ads likely
are electioneering communications and that her alternative ads likely are not. As for the original
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ads, then, the Court proceeds with the constitutional analysis in evaluating the merits of Count I.
The Court must first determine the level of scrutiny to apply in evaluating the constitutionality of
the electioneering communications rules. Because the Court rejects Plaintiffs’ argument that the
electioneering communications rules function as an outright ban on their speech, the Court
applies exacting scrutiny. Finally, the Court finds that the disclaimer and disclosure
requirements that apply to electioneering communications likely withstand exacting scrutiny as
applied to Brown’s original ads under the rationale expounded by the Supreme Court in Citizens
United. For these reasons, Plaintiffs are not likely to succeed on the merits of Count I. In
addition, Plaintiffs cannot show a likelihood of success on Count III as to the original ads both
because that count does not plead a cause of action and because, in any event, it appears
predicated on a determination that the original ads are not electioneering communications.
Plaintiffs have also not shown a likelihood of success on either of the counts related to
the alternative ads. Because Brown’s alternative ads likely are not electioneering
communications, Plaintiffs cannot show a likelihood of success on their as-applied constitutional
challenge to those ads in Count II. And notwithstanding the Court’s determination that the
alternative ads likely are not electioneering communications, because Count III contains no
discernible cause of action, Plaintiffs have not shown a likelihood of success on that count as to
the alternative ads. Ultimately, then, the Court concludes that Plaintiffs are unlikely to succeed
on the merits of any of their claims.
1. Whether Brown’s Ads Are Electioneering Communications
An electioneering communication has three elements: it refers to a clearly identified
candidate, airs within 30 days before a primary election, and targets the relevant electorate. 52
U.S.C. § 30104(f)(3)(A). Plaintiffs appear to have conceded that the original ads meet all three
elements both before the FEC and in their original complaint in this case. See Am. Compl. Ex. A
12
at 1; ECF No. 1 ¶¶ 25–26. They retracted that concession in their amended complaint, but the
parties still agree that, for both sets of ads, only the first element is at issue. See Pls.’ Mot. at 24;
Def.’s Opp’n at 34.
a. Brown’s Original Ads
For the original ads, Plaintiffs maintain that they refer to Brown “as a realtor and not as a
clearly identified candidate.” Pls.’ Mot. at 24. But this argument rewrites the statute in a subtle
but significant way. The definition of electioneering communication requires only that ads
“refer[] to a clearly identified candidate.” 52 U.S.C. § 30104(f)(3)(A)(i)(I). The statute does not
require that the ads refer to the candidate as a candidate, or even that they reference an election. 4
Both of Brown’s original ads include the phrases, “I’m Leigh Brown,” and “when you call Leigh
Brown.” Pls.’ Mot. at 4–5. By any measure, these ads refer to Brown, who is “clearly
identified” because her name appears in them. 52 U.S.C. § 30101(18)(A).
The Court thus concludes Brown’s original ads likely are electioneering communications,
and to the extent they target the relevant electorate and air within 30 days of the primary election,
they would likely be subject to the disclaimer and disclosure requirements. Thus, the Court will
proceed below to the constitutional analysis applicable to the original ads in evaluating
Plaintiffs’ likelihood of success on Count I. In addition, Plaintiffs are unlikely to succeed on
Count III as to the original ads both because that count appears to be predicated on a
4
Plaintiffs argue that “there is no suggestion anywhere in the legislative record that Congress
intended to include bona fide commercial advertisements for commercial products and services
in the definition of electioneering communications.” Pls.’ Mot. at 21. But their speculation
about what Congress might have intended is of no moment, given that “[t]he best evidence of
[Congress’s] purpose is the statutory text.” W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98–
99 (1991). Plaintiffs also argue that because Brown’s ads are commercial speech unrelated to an
election, they are outside the FEC’s authority to regulate. See Pls.’ Mot. at 25–26. But Congress
gave the FEC the authority to regulate all speech within the scope of BCRA’s definition of
electioneering communications. There is no basis, as a matter of statutory interpretation, for the
Court to conclude otherwise.
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determination that the ads are not electioneering communications, and, as discussed in more
detail below, because Count III does not contain a cognizable cause of action.
b. Brown’s Alternative Ads
Brown’s alternative ads make only small changes to the original ads, but those changes
make all the difference for purposes of determining whether they are electioneering
communications under the statute. The FEC asserts that the ads “can be viewed as referring to a
clearly identified candidate” because “they feature Brown’s actual voice” and the ad “twice
references her firm which includes her name.” Def.’s Opp’n at 37–38. But neither of those
factors, separately or together, cause the alternative ads to “refer[] to” Brown. 52 U.S.C.
§ 30104(f)(3)(A)(i)(I). They refer, instead, to her business.
The FEC spends most of its effort arguing the significance of Brown’s voicing the
alternative ads herself, but it never persuasively explains why that makes them electioneering
communications. It argues that “it is permissible to find that listeners in the Charlotte area would
recognize” Brown as the speaker, Def.’s Opp’n at 38, thus causing the ad to refer to her by
“unambiguous reference,” 52 U.S.C. § 30101(18)(c). But the ad itself does not provide the Court
the basis to so conclude. And neither does the current record, even assuming it were proper for
the Court to consider evidence relating to the recognizability of Brown’s voice.
The FEC’s back-up argument gets it no further. The alterative ads refer to “Leigh Brown
& Associates,” the business, not to “Leigh Brown” the person. See Pls.’ Mot. at 5–6. In fact, the
FEC’s characterization of its own argument aptly demonstrates why it fails. The FEC argues that
the alternative ads “twice reference[] her firm which includes her name,” Def.’s Opp’n at 37,
and “refer to the company which includes the candidate’s name,” Def.’s Opp’n at 38 (emphasis
14
added). The FEC is right. Because the alternative ads “refer[] to” Brown’s business and not to
her, they are not electioneering communications. 5 52 U.S.C. § 30104(f)(3)(A)(i)(I).
Despite this determination, the Court concludes that Plaintiffs are unlikely to succeed on
either Count II or Count III as to the alternative ads.
Given that the alternative ads likely are not electioneering communications, Plaintiffs
have not shown a likelihood of success on their as-applied First Amendment claims related to
those ads. “[A] plaintiff generally cannot prevail on an as-applied challenge without showing
that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him.”
McCullen v. Coakley, 573 U.S. 464, 485 n.4 (2014) (emphasis in original). That is, Plaintiffs
must demonstrate “a credible threat of enforcement” against their alternative ads by the FEC.
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014). That requires a showing both that
the “intended future conduct is ‘arguably . . . proscribed by [the] statute’ they wish to challenge”
and that the threat of future enforcement against that conduct is “substantial.” Id. at 162–64
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). In light of
those standards, the Court cannot conclude that it is “sufficiently likely” that the FEC will
impose the disclaimer and disclosure requirements on the alternative ads such that they would be
entitled to judgment on Count II.
The Court finds it reasonably clear that Plaintiffs’ alternative ads likely do not fall within
the statute’s definition of an electioneering communication. To be sure, the argument that those
5
The FEC does not argue that the alternative ads refer to Brown by operation of 52 U.S.C.
§ 30101(18)(a). That provision of the BCRA provides that one of the ways a candidate is
“clearly identified” is if “the name of the candidate involved appears” in the communication.
But there is no need to determine if a candidate is “clearly identified” if the communication does
not “refer[] to” a candidate in the first place. 52 U.S.C. § 30104(f)(3)(A)(i)(I). And for the
reasons explained above, Brown’s alternative ads refer to her business, and not to her.
15
ads do in fact fit within that definition and thus are subject to the disclaimer and disclosure
requirements is “arguable”; indeed, when Plaintiffs sought an advisory opinion from the FEC
finding that the ads were not electioneering communications, it declined to issue it. But
declining to issue an advisory opinion is a far cry from undertaking enforcement action.
Particularly telling is that, even before the Court’s determination, three of the four
commissioners concluded that the alternative ads were not electioneering communications. See
Am. Compl. Ex. C at 2; Audio of FEC Consideration of AOR 2019-06 at Its April 11, 2019
Open Meeting, https://www.fec.gov/resources/cms-content/documents/2019041105.mp3
(relevant discussion from 41:40 to 42:09). Otherwise, Plaintiffs have not pointed to any instance
in which the FEC took such action against comparable ads. And the Court, especially in light of
its conclusions here, has no reason to suspect that the FEC will engage in enforcement action
under these circumstances.
It is not enough to simply show a colorable argument that intended future conduct might
be subject to a challenged statutory provision. To ultimately succeed on their constitutional
claim, Plaintiffs must demonstrate that there actually exists a likelihood that the FEC will
undertake enforcement action if they engage in that conduct, and the record before the Court is
simply insufficient to so conclude. Thus, without any reasonable expectation that the FEC will,
in fact, apply the disclaimer and disclosure rules against the alternative ads, the Court cannot
conclude that Plaintiffs have demonstrated a likelihood of success on Count II. 6
Plaintiffs are also unlikely to succeed on the merits of Count III as to the alternative ads,
but for a much more elementary reason. Count III contains no discernible cause of action. In
6
Cf. Hispanic Leadership Fund, 897 F. Supp. 2d at 431 (declining to reach analysis of plaintiff’s
as-applied First Amendment claims upon concluding that certain ads were not electioneering
communications under the statute).
16
that count, Plaintiffs request a judgment from the Court declaring that the ads are not
electioneering communications under the statute. See Am. Compl. at 23. And to be sure, in
undertaking the analysis relevant to the constitutional causes of action pled in Count II, the Court
has in effect agreed with Plaintiffs on this point. But that does not relieve Plaintiffs of their
burden to show a likelihood of success on a cause of action pled in the amended complaint,
which is, beyond any doubt, required for a preliminary injunction. And simply put, Count III
does not aid them in meeting that burden. The thrust of Count III is that the ads are not
electioneering communications under BCRA for various reasons, but it alleges no underlying
legal right that would entitle Plaintiffs to a judgment reflecting a freestanding determination that
that is so. Id. ¶¶ 89–104. Plaintiffs purport to base their entitlement to such a judgment on the
canon of constitutional avoidance, but that is a principle of statutory construction, not a cause of
action. See Am. Compl. at 23 (“To Avoid First and Fourteenth Amendment Problems, this Court
Should Find that the Advertisements are not Electioneering Communications and issue an
Injunction”). Perplexingly, at both hearings, Plaintiffs disclaimed any attempt to rely on the
Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., and there is no reference to the
APA in the amended complaint. Cf. Hispanic Leadership Fund, 897 F. Supp. 2d 407 (entering
declaratory judgment that advertisements were not electioneering communications on a pre-
enforcement APA claim). Accordingly, because there is no cognizable cause of action on which
Plaintiffs could succeed in Count III, Plaintiffs have not demonstrated that they are likely to
succeed on it, even regarding the alternative ads. 7
7
In contrast to Counts I and II, Count III is not pled as a constitutional claim. It does mention in
passing Plaintiffs’ rights under the First and Fifth Amendments, but only, it appears, in
connection with the Plaintiffs’ exhortation that the Court should invoke the canon of
constitutional avoidance. See Am. Compl. ¶¶ 90–93, 100–04. And in their hodgepodge of
17
2. Whether the FEC Rules Are a Ban on Plaintiffs’ Speech
Count I remains. Having decided that the disclaimer and disclosure requirements likely
apply to Brown’s original ads, the Court next looks to the consequences of that application. As
explained above, Plaintiffs argue that the electioneering communications rules and the
coordinated communications ban put them in a quandary; they contend that the only way they
can comply with all of them is to not run the ads at all. Pls.’ Mot. at 14. The disclaimer they
would have to include at the end of the radio ads would, Plaintiffs assert, cause them to be
subject to the ban on coordinated communications. Id. at 15. And as such, because the
electioneering communications rules function as an outright ban on her speech, they must be
subject to strict scrutiny, which they cannot survive. See id. at 12, 20.
The FEC argues that Brown’s ads fall within the safe harbor to the coordinated
communications ban for ads proposing commercial transactions, so there is no quandary. Def.’s
Opp’n at 22. But Plaintiffs protest that the safe harbor cannot relieve them of the coordinated
communications ban because the safe harbor does not apply to ads that promote, attack, support,
or oppose the candidate they identify. ECF No. 15 at 10–11; see 11 C.F.R. § 109.21(i). And as
Plaintiffs’ counsel clarified at the hearing on the instant motion, Plaintiffs contend that merely
adding the electioneering communications disclaimer to the end of the original ads—that is,
saying that Brown had authorized them—would necessarily promote or support Brown as a
candidate and therefore disqualify them from the safe harbor.
The Court agrees with the parties that whether Brown’s original ads fall within the safe
harbor dictates whether she can lawfully air them under the coordinated communications rules.
arguments related to the merits of Count III in their motion, Plaintiffs do not argue that Count III
alleges a violation of the First or Fifth Amendments. See Pls.’ Mot. at 24 (“Plaintiffs’ Speech is
Commercial and the FEC is Without Power to Regulate Purely Commercial Speech, and These
Advertisements are Not Electioneering Communications”).
18
But the answer to that question does not dictate whether a preliminary injunction is warranted
here. Plaintiffs have challenged only the disclaimer and disclosure requirements for
electioneering communications and ask only for an injunction that would prohibit the FEC from
applying them to the ads. See Am. Compl. ¶ 1; ECF No. 12-2 at 1. Moreover, at the hearing on
the instant motion, Plaintiffs’ counsel explicitly disclaimed challenging the coordinated
communications ban or the safe harbor. 8 Thus, the coordinated communications ban and the safe
harbor are before the Court only to the extent that the disclaimer and disclosure requirements
impact their application to Brown’s ads.
As described above, Plaintiffs argue that the disclaimer and disclosure rules impact the
application of the coordinated communications ban and safe harbor to Brown’s original ads in
two ways: (1) if Plaintiffs include a disclaimer saying that Brown authorized the ads and file a
report saying she helped create them, the ads will become coordinated communications and
therefore be prohibited; and (2) the disclaimer would necessarily promote or support Brown, so
that they could not then rely on the safe harbor. But neither theory withstands scrutiny. First,
whether the ads are coordinated has nothing to do with what Brown says in the ad or reports to
the FEC about the ad; all that matters is whether Brown did, in fact, work with her company to
create the ad. See 11 C.F.R. § 109.21(d)(2) (treating communications as coordinated if the
candidate is “materially involved in decisions regarding” the ad). Here, Brown has “written and
recorded” both sets of ads, Am. Compl. Ex. D ¶ 39, so the coordinated communications ban
applies irrespective of any disclaimer she includes or report she files.
8
Plaintiffs also declined to seek an advisory opinion from the FEC related to its application of
the coordinated communications ban and the safe harbor to the circumstances here. See Am.
Compl. Ex. A. at 5–6.
19
Nor do the disclaimer and disclosure requirements affect the availability of the safe
harbor for commercial transactions. To comply with the disclaimer rule for electioneering
communications, Brown merely has to say that she authorized the ad and her business paid for it.
11 C.F.R. § 110.11(c). Neither statement “promotes” or “supports” her in any way.
Because the disclaimer and disclosure requirements challenged by Plaintiffs do not affect
whether the coordinated communications ban applies to them, the quandary that purportedly
censors their speech arises from a regulatory scheme entirely separate from the one they have
challenged here. Put another way, even if the Court granted a preliminary injunction enjoining
the FEC from applying the disclaimer and disclosure rules to Brown’s original ads, it would not
affect whether these communications were coordinated, or whether the safe harbor applied to
them. The constitutionality of the coordinated communications ban and its effect on Plaintiffs
here are simply not before the Court.
The only parts of the purported quandary that are before the Court, as pled in the
amended complaint and as reflected in the preliminary relief sought by Plaintiffs, are the
application of BCRA’s disclaimer and disclosure requirements to Brown’s original ads. And the
Supreme Court has determined that because those rules do not prohibit speech, they are subject
only to exacting scrutiny. 9 Citizens United, 558 U.S. at 366.
3. Whether the Electioneering Communications Rules Survive Exacting
Scrutiny
Although almost all of Plaintiffs’ argument focuses on this purported quandary, they also
contend, presumably as part of Count I, that even if the disclaimer and disclosure rules are not a
ban on speech, they are still unconstitutional as applied to the original ads. See Am. Compl. ¶ 8
(“In the alternative, if this Court determines that FECA and the FEC’s parallel implementing
9
Plaintiffs’ arguments about other levels of scrutiny, Pls.’ Mot. 8–14, are therefore inapposite.
20
regulations do not operate a prior restraint on speech, which they do, Plaintiffs still challenge the
disclaimer and disclosure requirements as overbroad under ‘exacting scrutiny.’”); Pls.’ Mot. at
23–24. The Court will thus turn to the question of whether the disclaimer and disclosure rules,
operating on their own, unconstitutionally burden Plaintiffs’ speech.
Courts “view disclosure rules far less skeptically than [they] do bans on speech.”
Pursuing Am.’s Greatness, 831 F.3d at 507. To comport with the First Amendment, a disclosure
requirement must pass “exacting scrutiny,” which requires the disclosure requirement to be
substantially related to a sufficiently important government interest. See Citizens United, 558
U.S. at 366–67.
The Supreme Court first applied exacting scrutiny to BCRA’s electioneering
communications rules in McConnell. There, the Court upheld the definition of electioneering
communications, which it described as “easily understood and objectively determinable.” 540
U.S. at 194. It then upheld the disclosure requirements as substantially related to the government
interest in “‘provid[ing] the electorate with information’ about the sources of election-related
spending.” Citizens United, 558 U.S. at 367 (alteration in original) (quoting Buckley, 424 U.S. at
66); see McConnell, 540 U.S. at 196. Because “independent groups were running election-
related advertisements ‘while hiding behind dubious and misleading names,’” the Court reasoned
that the disclaimer and disclosure requirements “would help citizens ‘make informed choices in
the political marketplace.’” Citizens United, 558 U.S. at 367 (quoting McConnell, 540 U.S. at
197).
McConnell explicitly left open the possibility for an as-applied challenge to the
electioneering communications rules if a plaintiff could show that revealing the names of its
donors would likely “subject them to threats, harassment, or reprisals from either Government
21
officials or private parties.” 10 McConnell, 540 U.S. at 198 (quoting Buckley, 424 U.S. at 74).
Then, in Wisconsin Right to Life v. FEC, 546 U.S. 410, 412 (2006) (per curiam), the Supreme
Court reaffirmed that McConnell “did not purport to resolve future as-applied challenges.”
The Supreme Court considered another as-applied challenge to the electioneering
communications rules in Citizens United. See 558 U.S. at 366–71. In Citizens United, the
plaintiff nonprofit corporation challenged the application of those rules to two types of
electioneering communications: first, a movie about then-presidential candidate Hillary Clinton,
and second, television ads for the movie that “include[d] a short (and, in [the Court’s] view,
pejorative) statement about Senator Clinton, followed by the name of the movie and the movie’s
Web site address.” Id. at 320. The Court, following the logic of McConnell, upheld the
disclaimer and disclosure requirements as applied to both types of electioneering
communications. Id. at 368–70. Most relevant here, the Court considered the requirements
constitutional as applied to the ads despite their commercial nature. As the Court held, “[e]ven if
the ads only pertain to a commercial transaction, the public has an interest in knowing who is
speaking about a candidate shortly before an election.” Id. at 369.
Plaintiffs argue that the Supreme Court’s reasoning in upholding the electioneering
communications rules does not extend to the circumstances here. See Pls.’ Mot. at 23–24. They
contend that the ads in Citizens United are distinguishable from Brown’s ads because they
advertised a movie that was critical of Clinton’s record and candidacy and “were not long
standing.” Id. In contrast, they argue, Brown’s original ads have been on the air for many years
10
As noted above, Plaintiffs do not assert that they would be required to disclose any donors’
names at all, let alone that doing so would subject them to harassment.
22
and are unrelated to the election. See id. at 26. Plaintiffs urge the Court not to decide this case
based on the “broad sounding language” in prior cases. Id. at 24.
Despite Plaintiffs’ arguments to the contrary, though, the reasoning of the Court in
Citizens United in upholding the disclaimer and disclosure requirements under exacting scrutiny
applies equally to Brown’s original ads. This is so because they refer to her—the candidate—
regardless of the nature of any message they may convey to the electorate. In Citizens United,
the Court held that the disclaimer requirement was substantially related to an informational
interest because it “avoid[s] confusion” and “mak[es] clear that the ads are not funded by a
candidate or political party.” Citizens United, 558 U.S. at 368. That interest is served here as
well: a disclaimer stating that Leigh Brown & Associates paid for the ads clarifies for listeners
that they were not paid for by Brown’s campaign, an opponent, or some other third party. The
Court also concluded that the disclaimer and disclosure requirements served this informational
interest by informing voters “who is speaking about [the] candidate shortly before [the] election”
even though the speech at issue was related to “a commercial transaction.” Id. at 369. That
interest is also satisfied in this case—again, notwithstanding the fact that the ads are commercial
in nature. And, it bears repeating, the disclaimer and disclosure requirements here, as in Citizens
United, do not prevent anyone from speaking. Id. at 366.
Although Plaintiffs argue that Brown’s original ads are “plainly and unquestionably not
related to the election,” Pls.’ Mot at 26, there is no indication in McConnell or Citizens United
that the Court considered a communication’s message in applying exacting scrutiny to the
electioneering communications rules. 11 It was enough to serve the public’s informational
11
As the FEC points out, a member of Congress used this language to describe the authority that
BCRA provides the FEC to exempt certain communications from these disclaimer and disclosure
23
interest, it appears, that the communication referred to a clearly identified candidate shortly
before an election. Admittedly, in Citizens United, the Court twice alluded to the ads as
conveying a message about Clinton’s candidacy: it described them as “includ[ing] a short (and,
in our view, pejorative) statement about Senator Clinton,” 558 U.S. at 320, and “contain[ing]
pejorative references to her candidacy,” id. at 368. But this Court does not read those
descriptions of the ads to limit the Supreme Court’s holding, as neither appears directly relevant
to its reasoning. See id. at 367–71.
Other courts have read Citizens United similarly by holding that the disclaimer and
disclosure requirements pass exacting scrutiny irrespective of the nature of the message
conveyed by the communications at issue. Judge Millett, writing for a three-judge panel in this
Circuit, noted that “the Supreme Court and every court of appeals to consider the question have
already largely, if not completely, closed the door to the [plaintiff’s] argument that the
constitutionality of a disclosure provision turns on the content of the advocacy accompanying an
explicit reference to an electoral candidate.” Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 187
(D.D.C. 2016), aff’d, 137 S. Ct. 1204 (2017). In applying exacting scrutiny to the electioneering
communications disclosure rules, the panel underscored that it was the mention of a candidate,
rather than the purpose of the ad, that justified the burden of disclosure. Id. at 190–91; see also
Citizens for Responsibility & Ethics in Wash. v. FEC, 299 F. Supp. 3d 83 (D.D.C. 2018) (“[T]he
Supreme Court has seen no problem with disclosure requirements triggered solely by an
electioneering communication’s context: its timing, its reference to a candidate, and its
viewership.”).
requirements. Def.’s Opp’n at 13 (citing 148 Cong. Rec. H410-411 (Feb. 13, 2002) (statement
of Rep. Shays)). But the Court does not possess any such authority.
24
Additionally, the Tenth Circuit came to a similar conclusion, after carefully laying out its
reasoning, in Independence Institute v. FEC, 812 F.3d 787 (10th Cir. 2016). The speech in that
case consisted of ads about an issue that also referred to an elected official (who happened to be
up for reelection). Id. at 790. The plaintiff argued that the ads were “unambiguously not
campaign-related,” and therefore “exempt from disclosure requirements.” Id. at 796. In an
opinion authored by Judge Tymkovich, the Tenth Circuit rejected the argument. First, it held
that the reasoning of Citizens United precluded the distinction urged by the plaintiff:
The Court did not rest its holding on the ground that the public only has an
interest in knowing who references a campaign shortly before an election.
Rather, the Court upheld the application of the statute because of the public’s
interest “in knowing who is speaking about a candidate shortly before an
election.” Citizens United, 558 U.S. at 369, 130 S. Ct. 876 (emphasis added).
Thus, in insisting that its ad is not “related to” a campaign . . . the [plaintiff] begs
the question. The logic of Citizens United is that advertisements that mention a
candidate shortly before an election are deemed sufficiently campaign-related to
implicate the government’s interests in disclosure.
Id.Second, the Tenth Circuit noted that whether an ad is “campaign-related” was not, in any
event, a workable constitutional test: “The difficulty of reliably distinguishing between
campaign-related speech and non-campaign-related speech is why courts must look only to
whether the specific statutory definitions before them are sufficiently tailored to the
government’s legitimate interests.” Id. The Court shares this concern about drawing the same
sorts of distinctions Plaintiffs urge upon it here, even though the speech at issue is commercial,
and not issue-related. For example, Plaintiffs characterize Brown’s ads as “wholly unrelated to
any election activity.” Id. But at the same time, as the FEC points out, Brown’s campaign
website touts her successful realty business as one of her qualifications for elected office. Def.’s
Opp’n at 36–37.
25
For all these reasons, the Court finds that the disclaimer and disclosure requirements for
electioneering communications likely are constitutional as applied to Brown’s original ads.
Plaintiffs are thus unlikely to succeed on the merits of Count I.
C. Plaintiffs’ Irreparable Harm in the Absence of Preliminary Relief
Although the Court need not reach the other preliminary injunction factors, see Ark.
Dairy Coop Ass’n, 573 F.3d at 832, it notes that Plaintiffs also have not demonstrated irreparable
harm because of the way in which that factor is intertwined with the merits, see Pursuing Am.’s
Greatness, 831 F.3d at 511. When plaintiffs who bring First Amendment claims show a
likelihood of success on the merits, they also typically prevail “because ‘the loss of constitutional
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”
Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018)
(quoting Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)). “Conversely, the
deprivation of constitutional rights constitutes irreparable injury only to the extent such
deprivation is shown to be likely.” Id.Here, because Plaintiffs are unlikely to succeed on the merits of their constitutional
claims, they cannot show irreparable injury through the “loss of constitutional freedoms.” Mills,
571 F.3d at 1312; see Pls.’ Mot. at 26. The only harm Plaintiffs identify that might flow from
the disclaimer and disclosure requirements is that “adding a disclaimer to the end of the
Advertisements would confuse the public and destroy any commercial value those
Advertisements have for Plaintiffs.” Pls.’ Mot. at 19; Am. Compl. Ex. D ¶¶ 41–43. But this risk
of confusion and decreased commercial value does not meet the “high standard” that the D.C.
Circuit has set for irreparable injury: that it “must be both certain and great” and “actual and not
theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). The
26
Court has no information about the nature of this risk beyond Brown’s own generalized
speculation. Moreover, it is “well settled that economic loss does not, in and of itself, constitute
irreparable harm.” Wisc. Gas Co., 758 F.2d at 674. Further, to the extent that Brown decides not
to run the original ads rather than to include a disclaimer that she believes risks confusing her
customers, that is a self-imposed restriction. See Am. Compl. Ex. D ¶ 43. Ultimately, on this
record, the Court cannot conclude that Brown and her business will suffer irreparable harm in the
absence of the preliminary relief they seek.
For all these reasons, Plaintiffs have not made the requisite showing for a preliminary
injunction. Accordingly, the Court will deny their motion.
Conclusion
For all of the above reasons, the Court will deny Plaintiffs’ Motion for a Preliminary
Injunction, ECF No. 12. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 13, 2019
27