Pursuing America's Greatness v. Federal Election Commission , 132 F. Supp. 3d 23 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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PURSUING AMERICA’S GREATNESS, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-cv-1217 (TSC)
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FEDERAL ELECTION COMMISSION, )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff Pursuing America’s Greatness (“PAG”) brings this action against the Federal
Election Commission (the “FEC” or the “Commission”) for violations of the Administrative
Procedure Act (the “APA”) and PAG’s First Amendment rights.
PAG challenges an FEC advisory opinion interpreting and applying a provision of the
Federal Election Campaign Act of 1971, as amended (“FECA”), and its implementing
regulations to prohibit unauthorized, independent expenditure-only political committees like
itself from including the names of federal candidates in website Universal Resource Locators
(“URLs”), the titles of Facebook pages and Twitter account handles without clearly expressing
opposition to those candidates, even when such websites, Facebook pages and Twitter accounts
do not engage in fundraising solicitations. See FEC Advisory Opinion 2015-04.
Before the court is PAG’s motion for preliminary injunction. Because PAG has failed to
demonstrate that it is likely to succeed on the merits of its APA and First Amendment claims,
and for the other reasons set forth herein, the motion is DENIED.
I. BACKGROUND
PAG is an unauthorized, independent, expenditure-only political committee founded in
2015 to advocate for the election of former Governor of Arkansas Mike Huckabee as President
of the United States. (Compl. ¶¶ 25, 27). Since July 9, 2015, PAG has operated the website
located at www.ilikemikehuckabee.com and the Facebook page “I Like Mike Huckabee,” which
is located at www.facebook.com/ilikemikehuckabee. (Id. ¶¶ 10-11). PAG also intends to
establish and operate a Twitter account utilizing a “handle” that includes the name “Huckabee.”
(Id. ¶ 13). PAG has not used any of its internet properties to solicit contributions or to otherwise
engage in fundraising activities, and it does not intend to do so in the future. (Mot. at 15).
The FEC is the independent agency of the United States government with exclusive
jurisdiction to administer, interpret and civilly enforce FECA, 52 U.S.C. §§ 30101-30146.1(Opp. at 1-2). The FEC is specifically empowered to “formulate policy” with respect to FECA
(52 U.S.C. § 30106(b)(1)); “to make, amend, and repeal such rules . . . as are necessary to carry
out the provisions of” FECA (id. § 30107(a)(8)); to issue advisory opinions construing FECA
(id. §§ 30107(a)(7), 30108); and to civilly enforce FECA (id. § 30109). (Opp. at 2).
This case arises from PAG’s allegation that the FEC’s interpretation and application of
FECA provision 52 U.S.C. § 30102(e)(4) and its implementing regulations at 11 C.F.R.
§§ 102.14(a)-(b) violate the APA and PAG’s First Amendment rights.
1
Effective September 1, 2014, the provisions of FECA formerly codified in Title 2 of the United
States Code were recodified in Title 52. The specific FECA provision at issue in this litigation –
52 U.S.C. § 30102(e)(4) – was previously codified at 2 U.S.C. § 432(e)(4). The text of this
provision has not changed since it was first enacted in 1980. This Memorandum Opinion will
refer only to the present-day codification of the provision.
2
U.S. federal election law is complex, and the court will provide here only a brief synopsis
of the statutes, regulations, case law and FEC advisory opinions that are applicable to PAG’s
motion for preliminary injunction.
a. Section 30102(e)(4)
Section 30102(e)(4) of FECA, which is codified by regulation at 11 C.F.R. § 102.14(a),
requires that the name of an authorized political committee “shall include the name of the
candidate who authorized such committee.” It also provides that, “[i]n the case of any political
committee which is not an authorized committee, such political committee shall not include the
name of any candidate in its name.” PAG – as an independent, unauthorized political
committee – is therefore prohibited from including Governor Huckabee’s name in its committee
name.2
b. Common Cause v. FEC
In 1980, two groups, one of which was Common Cause, filed administrative complaints
with the FEC alleging, inter alia, that several unauthorized, independent political committees
had violated § 30102(e)(4)’s “ban against the use of a candidate’s name in the name of an
unauthorized committee” by using the name “Reagan” in the titles of fundraising projects related
to the 1980 U.S. Presidential election, in which former Governor of California Ronald Reagan
was a candidate. Common Cause v. Fed. Election Comm’n, 842 F.2d 436, 438 (D.C. Cir. 1988).
The FEC General Counsel suggested further investigation into these allegations and, pursuant to
the Commission’s statutory enforcement process, “[b]y a 4-2 vote the Commission found ‘reason
to believe’ a violation had taken place and ordered further inquiry.” Id.2
PAG does not challenge this prohibition in its Complaint or motion.
3
The evidence subsequently showed that, in several campaign communications, a number
of unauthorized committees had “included the name of candidate Reagan in letterheads and
return addresses and, in some of the communications, asked for contributions with checks made
payable to accounts bearing Reagan’s name.” Id. at 439. At the time, however, the FEC
narrowly construed § 30102(e)(4) “as applying only to the name of [a] committee itself and not
to the names of any fundraising projects that [a] committee sponsors.” Id. at 437. Thus, because
the names at issue in the administrative complaints “referred only to fundraising projects and not
to the committees themselves . . . the General Counsel recommended that the Commission find
no probable cause to believe that a violation had occurred.” Id. at 439. “On the General
Counsel’s recommendation, a 4-2 Commission majority voted to take no further action.” Id.
Common Cause subsequently challenged the Commission’s dismissal of its complaint in
federal district court. District Court Judge John Garrett Penn held that “[b]oth the plain
understanding of the word ‘name’ in the context of elections” and Congress’ “intent to safeguard
against confusion” led to the conclusion that the FEC’s narrow reading of the statutory language
as applying only to a committee’s official, registered name defied “common sense” and was
“contrary to law.” Common Cause v. Fed. Election Comm’n, 655 F. Supp. 619, 621-22 (D.D.C.
1986) rev’d, 842 F.2d 436 (D.C. Cir. 1988). Noting that “[t]he political machinery is powered
by names and what those names symbolize and identify,” Judge Penn held that “whatever names
[a] committee[] present[s] to the public for identification must also constitute a ‘name’ within the
meaning of” § 30102(e)(4) because to allow otherwise “would be to allow political committees
to emasculate the effectiveness of the rule.” Id. at 621. The district court analogized its rationale
to that applied to situations where a company “may register under one name but be known to the
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public or ‘trade’ under a different name” and determined that, in such a circumstance, “the
publicly used name is as important as the company’s ‘official’ name.” Id. at 621 n.5.
The D.C. Circuit subsequently reversed the district court. It found that “[t]he bare text”
of § 30102(e)(4) “could conceivably accommodate either the construction adopted by the
FEC” – i.e., that the statute applied “only to the official or formal name under which a political
committee must register” – “or that proposed by Common Cause” – i.e., that the statute did not
refer only to “the officially registered ‘name’ of a political committee but rather any title under
which such a committee holds itself out to the public for solicitation or propagandizing
purposes.” Common Cause, 842 F.2d at 440-41. It also reviewed the statute’s “sparse legislative
history,” id. at 443, concluding that “little” in that legislative history threw doubt “on the
reasonableness of the FEC’s narrower interpretation” of § 30102(e)(4), id. at 447, and that the
Commission, “on balance,” had “the better of the argument.” Id. at 440.
Having found that “[n]either the plain language of [the statute] nor its legislative history
unambiguously resolve[d] the dispute” as to whether the word “name” in § 30102(e)(4) referred
to only a committee’s official name or also encompassed the names of a committee’s special
projects, id. at 440, the Court moved on to determining whether the FEC’s narrower
interpretation was based on a permissible construction of the statute under the second step of the
two-step rubric of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
See Common Cause, 842 F.2d at 448. Noting that “[d]eference is particularly appropriate in the
context of the FECA, which explicitly relies on the bipartisan Commission as its primary
enforcer,” and that the FEC’s dismissal of a complaint should be reversed only if contrary to law,
the Court determined that the FEC’s interpretation was not unreasonable and was, in fact, “the
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better interpretation . . . in light of [§ 30102(e)(4)’s] language and legislative history.” Id. (citing
Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)).
Notably for purposes of the instant case, the D.C. Circuit also explicitly stated that
“subsection (e)(4) is directed solely at disclosure of whether a political committee that solicits
funds from the public is part of the authorized campaign machinery of a candidate,” and that it
acts, along with FECA’s provision requiring committees to state whether or not certain
communications are authorized, to “clarify[] for readers and potential contributors the candidate
authorization status of the political committees who sponsor advertisements and fund
solicitations.” Id. at 442; see also id. at 440 (noting that “the avowed purpose” of the statute is
“to eliminate confusion”). The Court also found that the statute “mainly supplements” the
identification of authorization provision of FECA “by ensuring that once a contributor learns
who is paying for the advertisements or who is to be the recipient of his funds, he simultaneously
learns by a glance at the title whether that recipient is an authorized or unauthorized vehicle of
the candidate. Thus, [the statute] avoids the kind of confusing disclaimer previously possible,
‘Paid for by Reagan for President. Not authorized by President Reagan,’ and makes [FECA’s
authorization] disclaimers more effective.” Id. at 442. The D.C. Circuit also acknowledged the
possibility that adopting Common Cause’s reading of the statute “might prevent campaign
literature employing candidates’ names from misleading some members of the public who,
despite proper . . . disclaimers, will not realize that the candidate’s name in the solicitation
‘project’ does not necessarily mean he will get the money,” while adopting the FEC’s reading
“may leave some confusion unabated.” Id. at 448.
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c. The Special Projects Name Regulation
In 1992, prompted by concern about “the potential for confusion or abuse in . . .
situation[s] where an unauthorized committee uses a candidate’s name in the title of a special
fundraising project,” the FEC promulgated a Notice of Proposed Rulemaking (“NPRM”)
regarding proposed amendments to 11 C.F.R. § 102.14, the regulation implementing
§ 30102(e)(4). FEC, Special Fundraising Projects by Political Committees, 57 Fed. Reg.
13,056, 13,057 (Apr. 15, 1992) (the “1992 NPRM”). Following the receipt of comments
responding to the 1992 NPRM, and consideration of those comments and “the entire rulemaking
record,” the FEC decided “to adopt in its final rule a ban on the use of candidate names in the
titles of all communications by unauthorized committees” (the “Special Projects Name
Regulation”). FEC, Special Fundraising Projects and Other Use of Candidate Names by
Unauthorized Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992) (the “1992 Explanation
and Justification”). The new rule thus amended 11 CFR § 102.14(a) “to define ‘name’ for the
purpose of the [§ 30102(e)(4)] prohibition to include ‘any name under which a committee
conducts activities, such as solicitations or other communications, including a special project
name or other designation.’” Id.
The 1992 Explanation and Justification further stated that, since Common Cause had
been decided several years earlier,
the Commission ha[d] become more concerned about the potential for confusion
or abuse when an unauthorized committee uses a candidate’s name in the title of a
special fundraising project. A person who receives such a communication may
not understand that it is made on behalf of the committee rather than the candidate
whose name appears in the project’s title. It is possible in these instances that
potential donors think they are giving money to the candidate named in the
project’s title, when this is not the case.
Id. at 31,424. The FEC also pointed out that, in the years leading up to the promulgation of the
Special Projects Name Regulation,
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the use of candidate names in the titles of projects or other unauthorized
communications ha[d] increasingly become a device for unauthorized committees
to raise funds or disseminate information. Under the [Commission’s] former
interpretation, a candidate who objected to the use of his or her name in this
manner, who shared in none of the funds received in response to the solicitation,
or who disagreed with the views expressed in the communication, was largely
powerless to stop it.
Id.
Citing examples from the 1992 NPRM, as well as examples in the rulemaking record of
unauthorized committees using candidates’ names to fundraise large sums of money – and doing
so despite, in at least one case, a “candidate’s disavowal of and efforts to stop these activities” –
the Commission concluded that FECA’s disclaimer requirement was not, “in and of itself,
sufficient to deal with th[e] situation[s]” that the Special Projects Name Regulation was designed
to protect against. Id. at 31,424-25. The Commission also determined that “the potential for
confusion is equally great in all types of committee communications,” not just fundraising
solicitations, and noted that the Common Cause court had “equated solicitations with other
committee communications” for purposes of § 30102(e)(4). Id. at 31,425. The FEC also noted
that the Special Projects Name Regulation’s “total ban” was “more directly responsive to the
problem at issue, and easier to monitor and enforce,” than other restrictions proposed in the
1992 NPRM, and that unauthorized committees would remain “free to choose whatever project
title they desire, as long as it does not include the name of a federal candidate,” and could “freely
discuss any number of candidates, by name, in the body of” any special project communications.
Id.
d. The Opposition Exception
In 1994, the FEC promulgated a new exception to the Special Projects Name Regulation.
See FEC, Special Fundraising Projects and Other Use of Candidate Names by Unauthorized
Committees, 59 Fed. Reg. 17,267 (April 12, 1994) (the “1994 Explanation and Justification”).
8
This exception, which remains in place today, provides that “[a]n unauthorized political
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”
(the “Opposition Exception” and, collectively with § 30102(e)(4) and the Special Projects Name
Regulation, the “Name Identification Requirement”). Id. at 17,269. In promulgating the
Opposition Exception, the FEC recognized “that the potential for fraud and abuse is significantly
reduced in the case of” special project names clearly expressing opposition to the named
candidate. Id.
The 1994 Explanation and Justification reiterated much of what was in the
1992 Explanation and Justification for the Special Projects Name Regulation regarding the
“substantial evidence that potential contributors often confuse an unauthorized committee’s
registered name with the names of its fundraising projects, and wrongly believe that their
contributions will be used in support of the candidate(s) named in the project titles.” Id. at
17,267-69. The 1994 Explanation and Justification also reiterated the constitutionality of the
Special Projects Name Regulation, which it described as being “narrowly designed to further the
legitimate governmental interest in minimizing the possibility of fraud and abuse,” and noted that
the new Opposition Exception “further enhance[d] unauthorized committees’ constitutional
rights by exempting from the [Special Projects Name Regulation] those titles that clearly indicate
opposition to the named candidate.” Id. at 17,268.
e. The CAP Advisory Opinion
In June 2015, Collective Actions PAC (“CAP”), an unauthorized, independent
expenditure-only political committee that advocates for the election of U.S. Senator from
Vermont Bernie Sanders as President of the United States, filed an advisory opinion request with
the FEC asking whether it was permitted to include Senator Sanders’ name in the names of its
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internet properties – namely, (i) the websites RunBernieRun.com, ProBernie.com and
BelieveInBernie.com; (ii) the Facebook page “Run Bernie Run”; and (iii) the Twitter accounts
@Bernie_Run and @ProBernie. (Mot. at 11-14). CAP did not use these internet properties to
solicit donations for itself, but it did use them to disseminate information about Senator Sanders
and to provide links to Senator Sanders’ official campaign website, including his official
donation page. (Opp. at 14).
On July 16, 2015, the FEC determined via advisory opinion that CAP was not permitted
to use Senator Sanders’ name in the names of its internet properties because doing so would run
afoul of the Name Identification Requirement. See FEC Advisory Opinion 2015-04 (the “CAP
Advisory Opinion”). Specifically, the Commission found that, “[b]ecause the names of [CAP’s]
websites and social media accounts that include Senator Sanders’s name do not clearly express
opposition to him, those sites and accounts are impermissible under 11 C.F.R. § 102.14.” Id.
at 4. The Commission noted, however, “that this restriction only applie[d] to the titles of
[CAP’s] projects,” and that CAP was “free to promote Senator Sanders (or any other candidate)
by name in the body of any website or other communication. Id. (citing 1994 Explanation and
Justification at 17,268). The Commission’s vote adopting the CAP Advisory Opinion was a
unanimous 6-0. (Opp. at 13).
The CAP Advisory Opinion also stated that, “[w]hen the Commission revised the
definition of ‘name’ in section 102.14 to include ‘any name under which a committee conducts
activities,’ the Commission rejected a proposal to limit the restriction to fundraising projects;
instead, the Commission noted that ‘the potential for confusion is equally great in all types of
committee communications’” and “therefore determined that a ‘total ban’ on the use of candidate
names in committee names was more ‘responsive to the problem,’ as well as easier to monitor
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and enforce.” CAP Advisory Opinion at 3 (quoting 1992 Explanation and Justification at
31,425). The CAP Advisory Opinion also noted that the Commission had “amended the
regulation to apply to ‘solicitations or other communications,’ . . . which necessarily means that
communications need not be solicitations in order to fall within” the Special Projects Name
Regulation. Id. (quoting 11 C.F.R. § 102.14(a)).
f. PAG’s Cessation of Activity on Its Website and Facebook Page
On July 17, 2015, the day after the CAP Advisory Opinion was issued, PAG ceased
updating its website and Facebook page. (Compl. ¶ 18).
Ten days later, on July 27, 2015, PAG filed its Complaint and motion for preliminary
injunction, alleging that its internet properties are materially indistinguishable from the internet
properties at issue in the CAP Advisory Opinion, and that the FEC must be enjoined from
applying the Name Identification Requirement to its internet properties because it violates the
APA, as well as the First Amendment. (Id. ¶¶ 17, 32-36, 41; Mot. at 1, 14-16). The FEC does
not dispute PAG’s standing to bring a pre-enforcement challenge as applied to its own
circumstances, and has formally endorsed the challenged interpretation of the Name
Identification Requirement. (Opp. at 22 n.4).
II. LEGAL STANDARD
In order to prevail on a motion for preliminary injunction, a movant must demonstrate the
following: (i) a substantial likelihood of success on the merits; (ii) that the movant would suffer
irreparable injury if the injunction is not granted; (iii) that the balance of equities tips in the
movant’s favor; and (iv) that the public interest would be furthered by the issuance of the
injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary
injunction is an “extraordinary and drastic remedy” that is “never awarded as of right,” Munaf v.
11
Geren, 553 U.S. 674, 689-90 (2008) (internal quotation and citations omitted), and “that should
be granted only when the party seeking the relief, by a clear showing, carries the burden of
persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citation omitted).
In the past, courts in this Circuit used a “sliding scale” approach in analyzing the four
preliminary injunction factors, meaning that a particularly strong showing on one factor could
make up for a weaker showing on another. See, e.g., Davenport v. Int’l Bhd. of Teamsters,
AFL-CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1999). Under this approach, “even if [a] plaintiff
only raises a serious legal question on the merits, rather than a likelihood of success on the
merits, a strong showing on all three of the other factors [could] warrant entry of injunctive
relief.” Arpaio v. Obama, 27 F. Supp. 3d 185, 196-98 (D.D.C. 2014) (internal quotation, citation
and bracket omitted).
It is not clear whether this approach survives after the Supreme Court’s 2008 decision in
Winter, which suggested that a likelihood of success on the merits must always be shown. See,
e.g., Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (reading Winter “at least to suggest
if not to hold” that plaintiffs face a more demanding burden under which “a likelihood of success
is an independent, free-standing requirement for a preliminary injunction”) (internal quotation
and citation omitted); Perry v. Perez, 132 S.Ct. 934, 942 (2012) (“Plaintiffs seeking a
preliminary injunction of a statute must normally demonstrate that they are likely to succeed on
the merits of their challenge to that law.”) (citing Winter, 555 U.S. at 20). While this Circuit
“has repeatedly declined to take sides . . . on the question of whether likelihood of success on the
merits is a freestanding threshold requirement to [the] issuance of a preliminary injunction,” Am.
Meat Inst. v. U.S. Dep’t of Agric., 746 F.3d 1065, 1074 (D.C. Cir. 2014), reinstated in relevant
part by 760 F.3d 18 (D.C. Cir. 2014) (en banc), it is nevertheless clear that a plaintiff’s
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likelihood of success on the merits is a “key issue [and] often the dispositive one” at the
preliminary injunction stage. Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of
Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011). At a minimum, “[e]ven if the
sliding scale approach to assessing eligibility for preliminary injunctions survived Winter,”
where a movant makes “a weak showing on the first factor,” the movant must “show that all
three of the other factors so much favor the [movant] that they need only have raised a serious
legal question on the merits.” Am. Meat Inst., 746 F.3d at 1074 (internal quotation and citations
omitted).
III. ANALYSIS
a. Likelihood of Success on the Merits
For the reasons set forth below, the court finds that PAG has not established a likelihood
of success on the merits of either its APA claim or its First Amendment claims.
i. Likelihood of Success on the Merits of PAG’s APA Claim
PAG’s first merits argument is that the Name Identification Requirement “is arbitrary,
capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act.”
(Mot. at 21; see also id. at 20-22).
This court’s limited function in reviewing a final agency action under the APA is “to
determine whether or not as a matter of law the evidence in the administrative record permitted
the agency to make the decision it did.” Kaiser Found. Hosps. v. Sebelius, 828 F.Supp.2d 193,
198 (D.D.C. 2011) (internal quotation and citation omitted). This standard of review is
“narrow,” and a court applying it “is not to substitute its judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
13
Under the APA, a reviewing court must set aside an agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). This standard requires the agency to examine the relevant evidence and “articulate
a satisfactory explanation for its action[,] including a rational connection between the facts found
and the choice made.” State Farm, 463 U.S. at 43 (quotation and citation omitted). But this
explanation “need not be a model of analytic precision to survive a challenge.” Coburn v.
McHugh, 679 F.3d 924, 934 (D.C. Cir. 2012) (internal quotation and citation omitted). Thus, a
court “must uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” Am. Radio Relay League, Inc. v. Fed. Commc’n Comm’n, 524 F.3d 227, 248 (D.C.
Cir. 2008) (internal quotation and citation omitted).
Additionally, when an agency interprets its own rules and regulations, as the FEC did
here in the CAP Advisory Opinion, a court must, “as a general rule, defer[] to it unless that
interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def.
Ctr., 133 S. Ct. 1326, 1337 (2013) (internal quotation and citation omitted); see also K N Energy,
Inc. v. Fed. Energy Regulatory Comm’n, 968 F.2d 1295, 1300 (D.C. Cir. 1992) (an agency is
entitled to “even more deference in its interpretation of its own regulations than in the reading of
its statutory mandate”). Thus, if the Special Projects Name Regulation and Opposition
Exception do not themselves violate the APA, this court must defer to the FEC’s interpretation
and application of them in the CAP Advisory Opinion “unless an ‘alternative reading is
compelled by [their] plain language or by other indications of the [FEC’s] intent at the time of
[their] promulgation.’” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)).
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In support of its APA claim, PAG argues that, by applying the Name Identification
Requirement to internet properties that do not engage in fundraising solicitations, the CAP
Advisory Opinion applied the Name Identification Requirement “to a context not contemplated
in the FEC’s 1992 and 1994 rulemakings, and in a manner that goes far beyond the FEC’s
asserted justification for those rulemakings.” (Mot. at 20). It is clear from the rulemaking
record, however, that while the 1992 and 1994 rulemakings that resulted in the promulgation of
the Special Projects Name Regulation and Opposition Exception were primarily focused on
fundraising-related fraud, abuse and confusion, they were by no means exclusively concerned
with fundraising-related dangers. PAG acknowledges this fact in its reply brief, where it states
that the 1992 and 1994 rulemakings were focused “almost exclusively” on fundraising. (Reply
at 8; see also id. at 8-9 (acknowledging that “the 1992 and 1994 rulemakings also assert that
avoiding ‘confusion’ was one of the government’s interests that justified expanding the scope” of
§ 30102(e)(4))).
For example, the 1992 Explanation and Justification explicitly stated that “the use of
candidate names in the titles of projects or other unauthorized communications has increasingly
become a device for unauthorized committees to . . . disseminate information,” and noted that the
Commission’s former interpretation would have left “a candidate who objected to the use of his
or her name in this manner, . . . or who disagreed with the views expressed in the
communication, . . . largely powerless to stop it.” 1992 Explanation and Justification at 31,424.
The Commission also determined that “the potential for confusion is equally great in all types of
committee communications,” not just fundraising solicitations. Id. at 31,425 (emphasis added).
Thus, when the FEC added the Special Projects Name Regulation to the regulatory framework in
1992, it “specifically considered and rejected the distinction that [PAG now] proposes.” CAP
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Advisory Opinion at 3. And while PAG reads “[t]he title of the FEC’s 1992 and 1994
rulemakings (‘Special Fundraising Projects and Other Use of Candidate Names by Unauthorized
Committees’)” as support for the proposition that the rulemakings were focused on fundraising
(Mot. at 21), this reading ignores the fact that the words “Other Use of Candidate Names” clearly
reveal a “focus” on the use of candidate names in the titles of things other than special
fundraising projects.
This court therefore finds that the relevant evidence from the 1992 and 1994 rulemakings
establishes the requisite “rational connection between the facts found and the choice made” in
promulgating the Special Projects Name Regulation and the Opposition Exception, as well as in
issuing the CAP Advisory Opinion. State Farm, 463 U.S. at 43. And even if “the FEC’s
asserted justification for [the 1992 and 1994] rulemakings” was, in fact, limited exclusively to
the fundraising context (Mot. at 20), the court notes that it is at least conceivable that special
project communications that do not include explicit solicitations could nevertheless impact
fundraising. For example, permitting unauthorized committees to include a candidate’s name in
the name of their special projects may allow those committees to “exploit ambiguity” about their
candidate authorization status and “take advantage of confusion created by their project names,”
with the result that “a contributor [may] think[] that a $50,000 contribution to a project such as
‘I Like Mike Huckabee’ is a contribution to Mr. Huckabee, even though it is not, . . . even in the
absence of any solicitation.” (Opp. at 28-29).3
3
At the hearing on PAG’s motion, the court noted that even if PAG is “not explicitly making
fundraising solicitations through [its] Internet properties, people do still donate to” PAG, and
asked counsel the following question:
[I]f someone donates to Pursuing America’s Greatness thinking that they’re
actually donating to Governor Huckabee because they had been led to Pursuing
America’s Greatness’ donation page after visiting [the website or the Facebook
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The court also finds that the FEC’s interpretation of the Name Identification Requirement
in the CAP Advisory Opinion is not contrary to law, nor is it contrary to the FEC’s intent at the
time of the adoption of the Special Projects Name Regulation and the Opposition Exception. See
Thomas Jefferson Univ., 512 U.S. at 512. The court credits the fact that “the Commission
specifically considered whether it could accomplish its goals through alternative means, and
concluded . . . that its approach was necessary.” (Opp. at 21). The court also agrees with the
FEC about “how limited the effect of the [Name Identification Requirement is] in practice,”
given that an unauthorized committee can still use a candidate’s name in a special project’s
subheading and urge that candidate’s “election, by name, in large, highlighted type, throughout
the communication.” (Id. at 22) (quoting 1994 Explanation and Justification at 17,268-69).
page], isn’t the confusion being caused by those Internet properties having an
effect on fundraising even without direct solicitation?
Transcript of August 20, 2015 Preliminary Injunction Hearing (the “Hearing Transcript”) at
11:17-12:4.
Counsel for PAG responded that there was “nothing” on the website or Facebook page “that
would lead a voter directly to where they could make a donation” to PAG, but acknowledged
that a voter could still go to the website or Facebook page, “read the disclaimer” identifying
PAG, and then “separately locate the URL for” PAG’s official website, where that voter could
make a donation to PAG. Id. at 12:5-21. Counsel stated that such a voter would be “very aware”
that the donation page on PAG’s official website “is not Governor Huckabee’s presidential
campaign donation page,” presumably because the voter had read the disclaimers on the website
or the Facebook page, as well as those on PAG’s donation page. Id.
This argument presupposes, however, that these disclaimers, taken alone, would be sufficient to
dispel the kind of confusion that the court’s question concerned. This presupposition is belied by
Exhibit A to the FEC’s opposition brief, which is discussed in detail below. It is also belied by
the D.C. Circuit’s decision in Common Cause, where it acknowledged the possibility that
“campaign literature employing candidates’ names” could “mislead[] some members of the
public who, despite proper . . . disclaimers, will not realize that the candidate’s name in the
solicitation ‘project’ does not necessarily mean he will get the money.” 842 F.2d at 448.
17
The court also agrees with the Commission that its “anti-confusion rationale” is easily
discernible, and that permitting unauthorized committees to include a candidate’s name in the
name of their special projects could permit such committees to “hold themselves out as agents of
particular candidates,” thereby increasing “opportunities for confusion, fraud, and abuse.” (Id.
at 23). The court also agrees with the FEC that the messages that unauthorized committees and
their special projects disseminate “directly implicate the government’s anti-confusion interest
even if they merely present ‘information’ and do not request money.” (Id. at 23-24). This is
because “voters may fail to distinguish between projects of the actually authorized ‘Huckabee for
President, Inc.’ committee and an unauthorized committee’s project that might be named, say,
‘Huckabee for America’ or ‘Citizens for Huckabee.’” (Id. at 23).
Exhibit A to the FEC’s opposition brief – which identifies hundreds of comments on the
Facebook page that appear to be directed to Governor Huckabee himself – illustrates this
potential for confusion. PAG responds to these comments by noting that many of them were
posted prior to PAG taking over the Facebook page on July 9, 2015, and by stating that the FEC
failed “to put the number or content of these comments in any context.” (Reply at 11-12).
This response is unavailing.
As an initial matter, while many of these comments were, indeed, posted prior to PAG
taking over the Facebook page on July 9, 2015, a significant number of them were posted after
that date. (See Opp. Ex. A). Additionally, when the court invited counsel for PAG to put these
Facebook comments in “the proper context” and “explain why it’s not a problem that these
people are confused in thinking that [the Facebook page] is associated [with] and run by
Governor Huckabee,” counsel responded that “if voters looked at the [Facebook page] and didn’t
read the disclaimer, that’s not the fault of Pursuing America’s Greatness. That is a consequence
18
of a voter not reading the complete content before they post something.” Hearing Transcript at
7:24-8:17. While it is certainly true that the confusion on display throughout the Facebook page
stems in part from commenters not reading the Facebook page’s disclaimers before posting their
comments, this fact does not help PAG’s argument. Rather, it reinforces the FEC’s finding in
the 1992 Explanation and Justification for the Special Projects Name Regulation that FECA’s
disclaimer requirement is not, on its own, sufficient to address the kind of confusion that the
Special Projects Name Regulation was designed to protect against. See 1992 Explanation and
Justification at 31,424-25. In other words, the comments on the Facebook page directed towards
Governor Huckabee clearly demonstrate that “proper disclaimers” do not always suffice to dispel
the confusion wrought by a confusing or misleading special project name, and that rules and
regulations restricting the use of confusing or misleading names are needed to limit voter
confusion. Hearing Transcript at 8:9-11.
In sum, PAG has offered nothing that would suggest that the FEC is incorrect in asserting
that “confusion, fraud, and abuse plainly can occur outside of the context of fundraising.” (Opp.
at 29). PAG has also failed to explain why the Common Cause court’s acknowledgement of the
possibility that the FEC’s present reading of the statute “might prevent campaign literature
employing candidates’ names from misleading some members of the public,” while adopting the
equivalent of PAG’s reading of it “may leave some confusion unabated,” does not apply equally
to fundraising projects and non-fundraising projects alike. Common Cause, 842 F.2d at 448.
Indeed, the court agrees with the FEC that
[j]ust as an unauthorized project that trades on a candidate’s name in its title can
divert dollars away from a candidate’s message, it can also divert (or distort)
information, confusing readers into believing, say, that PAG’s message is
Mr. Huckabee’s. Mr. Huckabee may disagree with everything that appears on the
Huckabee Facebook page PAG operates, and PAG is free to say whatever it wants
about Mr. Huckabee. But permitting PAG to imply that its speech is
19
Mr. Huckabee’s by using the candidate’s name in the title to present PAG’s
messages would disserve the public.
(Opp. at 29) (citation omitted).
Because this court finds that there is “a rational connection between the facts found” by
the FEC during the 1992 and 1994 rulemakings and “the choice[s] made” by the FEC in
promulgating the Special Projects Name Regulation and Opposition Exception and issuing the
CAP Advisory Opinion, State Farm, 463 U.S. at 43, and because there is no indication that the
Commission’s interpretation of the Name Identification Requirement in the CAP Advisory
Opinion is contrary to law or to the agency’s intent at the time of its adoption, PAG has not
established that it is likely to succeed on the merits of its APA claim. See Thomas Jefferson
Univ., 512 U.S. at 512.4
4
There is also an issue in this case regarding whether a website’s URL constitutes the “name” or
“title” of that website, such that the Name Identification Requirement even applies. PAG cites a
2011 FEC matter under review in which a footnote to a “Statement of Reasons” authored by
three FEC Commissioners reflects those Commissioners’ view that, while a website constitutes a
special project of an unauthorized committee, the URL of that website is not the special project’s
name or title. (Mot. at 10-11). However, because the CAP Advisory Opinion, which was
approved unanimously (including by two of the Commissioners who had authored the 2011
Statement of Reasons), found that a website’s URL is that website’s name or title (see CAP
Advisory Opinion at 3 (referring to the “names of [CAP’s] websites” as those websites’ URL
addresses)), this court need not wade into the question of whether the agency is somehow bound
by dictum in a Statement of Reasons authored by only three of its Commissioners. Rather, the
question before the court on this point is a narrow one: Was it “plainly erroneous or
inconsistent” with the Name Identification Requirement for the FEC to find in the CAP Advisory
Opinion that a website’s URL constitutes that website’s name or title? Decker, 133 S. Ct. at
1337. The court holds that it was not, and finds no basis for upsetting the common sense
conclusion reached in the CAP Advisory Opinion that a website’s name or title is its URL.
The parties also dispute whether and how the D.C. Circuit’s decision in Common Cause impacts
PAG’s APA claim. Because the court finds, for the reasons set forth above, that there is a
“rational connection between the facts found” by the FEC regarding the risk of voter confusion
and “the choice[s] made” by the FEC in enacting the Special Projects Name Regulation and
Opposition Exception and issuing the CAP Advisory Opinion, it need not determine whether,
under the circumstances present in this case, the step one Chevron analysis applied to the FEC’s
20
ii. Likelihood of Success on the Merits of PAG’s First Amendment Claims
PAG argues that the FEC’s interpretation of the Name Identification Requirement acts as
a prior restraint because it “explicitly forbids speech prior to that speech occurring, and if
someone does speak that person is subject to prison for knowing and willful violations [of]
FECA.” (Reply at 14-15). PAG also argues that the Name Identification Requirement
impermissibly regulates “speech on the basis of ‘the idea or message expressed’” because it
creates two categories of speech: (i) oppositional speech, which is permitted, and
(ii) non-oppositional speech, which is prohibited. (Mot. at 30-31) (quoting Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2227 (2015)). Therefore, PAG argues that the FEC’s interpretation
should be subject to strict scrutiny because it prohibits political speech as both a prior restraint
and an impermissible content-based speech regulation. (Mot. at 18) (citing Citizens United v.
Fed. Election Comm’n, 558 U.S. 310, 340 (2010)). Under this view, the FEC would be required
to prove that the Name Identification Requirement furthers a compelling government interest and
is narrowly tailored to achieve that interest.
The FEC contends that PAG’s First Amendment-based arguments in favor of strict
scrutiny are incorrect because the Name Identification Requirement “is an integral part of
FECA’s disclosure regime” and is therefore “reviewed for ‘exacting scrutiny,’ which requires a
‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’
governmental interest.” (Opp. at 24-25) (quoting Citizens United, 558 U.S. at 366-67). In
support, the FEC cites Common Cause, 842 F.2d at 442, which refers to § 30102(e)(4) as one of
the ways in which FECA “require[s] political bodies to disclose the identity of persons
present interpretation of § 30102(e)(4) in Common Cause independently requires it to find that
PAG is unlikely to succeed on the merits of its APA claim. State Farm, 463 U.S. at 43.
21
associated with them,” and Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1367-68 (D.C. Cir.
1988), which characterizes § 30102(e)(4) as part of FECA’s “specific disclosure requirements”
and “extensive disclosure requirements.” (Id. at 24). The FEC also argues that the Name
Identification Requirement’s disclosure function is “apparent from the purpose of the provision,”
which is to disclose whether a given political committee is an authorized committee or an
unauthorized committee. (Id. at 24-25; see also Common Cause, 842 F.2d at 442 (noting that
§ 30102(e)(4) “avoids the kind of confusing disclaimer previously possible, ‘Paid for by Reagan
for President. Not authorized by President Reagan,’ and makes § [30120(a)’s] disclaimers more
effective”)).
In response to PAG’s First Amendment arguments, the FEC contends that the Name
Identification Requirement is not a prior restraint, but rather, provides for a subsequent
punishment. (Opp. at 29-31). Additionally, it asserts that PAG does not have standing to bring a
content-based challenge to the Name Identification Requirement, because even if this court held
that the Opposition Exception was unconstitutional under Reed, PAG would nevertheless still be
in violation of the Special Projects Name Regulation. (Id. at 32-33). The FEC also argues that
even if PAG could demonstrate standing to challenge the Opposition Exception, its
content-based challenge would still fail because neither the Opposition Exception nor the Name
Identification Requirement are content-based restrictions. (Id. at 33-37). Finally, the FEC
argues that even if the court were to find that the Name Identification Requirement was not a part
of FECA’s disclosure regime subject to intermediate or exacting scrutiny, and that it was either
a prior restraint or an impermissible content-based restriction, the Name Identification
Requirement would nevertheless still satisfy strict scrutiny, citing Burson v. Freeman, 504 U.S.
22191, 199 (1992), which held that the government has a compelling interest in protecting voters
from confusion and undue influence. (Id. at 38-40).
The court finds that § 30102(e)(4) and the other components of the Name Identification
Requirement are part and parcel of FECA’s disclosure regime because they are “directed solely
at disclosure of whether a political committee that solicits funds from the public is part of the
authorized campaign machinery of a candidate,” Common Cause, 842 F.2d at 442, and “only
appl[y] to the titles” of an unauthorized committee’s projects, leaving any such committee “free
to promote [any candidate] by name in the body of any website or other communication,” such
as those posted on Facebook pages or Twitter accounts. CAP Advisory Opinion at 4.5 Thus,
while the Special Projects Name Regulation, like other “[d]isclaimer and disclosure
requirements[,] may burden the ability to speak” by prohibiting certain limited categories of
speech (i.e., the names of federal candidates) in certain limited areas (i.e., the names or titles of
unauthorized committees’ special projects), it “impose[s] no ceiling on campaign-related
activities . . . and do[es] not prevent anyone from speaking.” Citizens United, 558 U.S. at 366(internal quotations and citations omitted). Such limited burdens on speech “often represent[] a
less restrictive alternative to flat bans on certain types or quantities of speech,” and are subject to
intermediate or exacting scrutiny. McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1460
5
See also 1992 Explanation and Justification at 31,425 (“Committees are not barred from
establishing specially designated projects: they are free to choose whatever project title they
desire, as long as it does not include the name of a federal candidate. Also, committees may
freely discuss any number of candidates, by name, in the body of a communication.”);
1994 Explanation and Justification at 17,268-69 (“Unauthorized committees remain free to
discuss candidates throughout [any special project] communication[s]; and to use candidates’
names as frequently, and highlight them as prominently (in terms of size, typeface, location, and
so forth) as they choose. In other words, while a committee could not establish a fundraising
project called ‘Citizens for Doe,’ if Doe is a federal candidate, it could use a subheading such as
‘Help Us Elect Doe to Federal Office,’ and urge Doe’s election, by name, in large, highlighted
type, throughout the communication.”).
23
(2014) (plurality opinion) (citation omitted); see also Citizens United, 558 U.S. at 369 (“The
Court has explained that disclosure is a less restrictive alternative to more comprehensive
regulations of speech.”) (citation omitted).
The Name Identification Requirement simply (i) requires a political committee to
disclose whether that committee is authorized or unauthorized, and (ii) dictates that such
disclosure be made in the name of the committee itself, or in any name under which the
committee conducts activities, including a special project name. The Name Identification
Requirement is therefore best construed as a disclosure provision that requires disclosure of the
candidate authorization status of a political committee and its special projects to be made in a
particular place, just as do other disclosure and disclaimer regulations concerning publicly
disseminated political committee communications.6 The Opposition Exception, in particular,
exists because the clear expression of opposition to a named candidate in the title of an
unauthorized committee’s special project suffices to disclose the fact that the special project is
not authorized by the named candidate, hence the FEC’s determination “that the potential for
fraud and abuse is significantly reduced in the case of” special project names clearly expressing
opposition to the named candidate. 1994 Explanation and Justification at 17,269.
6
See, e.g., 52 U.S.C. §§ 30120(a)(1)-(3), 30120(c)(1)-(3) (requiring political committees that
make disbursements “for the purpose of financing any communication through any . . . type of
general public political advertising” to “clearly state” on any such communication whether that
communication has been paid for and/or authorized by a candidate or that candidate’s authorized
committee, and requiring such statement to be “of sufficient type size to be clearly readable,”
“contained in a printed box set apart from the other contents of the communication” and “printed
with a reasonable degree of color contrast between the background and the printed statement”);
see also Citizens United, 558 U.S. at 366 (holding that disclaimer and disclosure provisions of
the Bipartisan Campaign Reform Act of 2002 did not violate the First Amendment by requiring
that, inter alia, “televised electioneering communications funded by anyone other than a
candidate must include a disclaimer that ‘_______ is responsible for the content of this
advertising’ . . . made in a ‘clearly spoken manner,’ and displayed on the screen in a ‘clearly
readable manner’ for at least four seconds”) (citations omitted).
24
At the hearing on PAG’s motion, the court asked counsel for PAG about the Common
Cause and Galliano courts’ clear references to § 30102(e)(4) being a part of FECA’s disclosure
regime, and counsel responded as follows:
[W]e’re not here challenging 30102(e)(4) as it’s written. We’re bringing an
as-applied challenge to the limitation on names in URLs and social media
identifiers where there’s no fundraising. In that context, in terms of disclosure
requirements, there is no disclosure that we could make that would make this
permissible.
In all of the disclosure cases where courts review things with respect to
intermediate scrutiny, there is some disclosure or disclaimer that can be on the
communication, incorporated into the communication, or documentation or
paperwork filed with the body that is governing the disclosure that allows the
speech to happen. In this case, what they’re doing is actually saying – they use
the phrase “total ban,” and they’re saying you can’t use it.
Hearing Transcript at 21:19-22:12. But this argument ignores the fact that the Special Projects
Name Regulation does require a disclosure to “be on” or “incorporated into the communication”
by requiring disclosure in the name or title of the special project that is disseminating that
communication, and that doing so is precisely what “allows the speech to happen” in the body of
that special project communication, rendering such communications “permissible.” Id. PAG’s
reliance on the fact that the FEC has referred to the Special Projects Name Regulation as a “ban”
or “total ban” is unavailing. Despite the FEC’s use of the word “ban,” the Special Projects Name
Regulation does not “ban” any speech outright. Rather, it burdens speech slightly by restricting
a limited class of speech (candidate names) only as to a particular location (the names of
unauthorized committees and their special projects), and relegating that speech to another
location (the body of special project communications made by unauthorized committees).
The Supreme Court’s opinion in Burson is instructive here. The Court held in that case
that a Tennessee statute prohibiting the solicitation of votes and the display or distribution of
campaign materials within 100 feet of the entrance to a polling place was narrowly tailored to
25
serve the compelling state interest in preventing voter intimidation and election fraud, as required
by the First Amendment. See Burson, 504 U.S. at 199 (“Tennessee argues that its restriction
protects the right to vote in an election conduced with integrity and reliability. The interests
advanced by Tennessee obviously are compelling ones. This Court has recognized that the right
to vote freely for the candidate of one’s choice is of the essence of a democratic society. Indeed,
no right is more precious in a free country than that of having a voice in the election of those
who make the laws under which, as good citizens, we must live. Other rights, even the most
basic, are illusory if the right to vote is undermined. Accordingly, this Court has concluded that
a State has a compelling interest in protecting voters from confusion and undue influence . . .
[and] indisputably has a compelling interest in preserving the integrity of its election process.”)
(internal quotations, citations and brackets omitted). When counsel for PAG was asked at the
hearing whether Burson (which was raised in the FEC’s opposition brief but was not addressed
in PAG’s reply brief), was “fatal to [PAG’s] First Amendment claim insofar as it indicates that
measures designed to avoid election-related confusion satisf[y] strict scrutiny as long as they’re
narrowly tailored,” counsel responded that
the questions about electioneering outside of polling places have been essentially
viewed under time, place, and manner restrictions, because what they’re trying to
avoid is essentially somebody plastering the door of the entrance to a polling
place with a candidate’s signs.
So at 101 feet, you can engage in the same speech; you just can’t engage in it at
99 feet out. So it doesn’t prohibit the speech at all, the restriction [in Burson].
It just prohibits where you can make the speech. So you can’t hand out the flyer
98 feet from the polling place, but you can hand it out 102 feet from the polling
place. There’s nothing in what the FEC does here that allows us to engage in our
same speech no matter what we do.
Hearing Transcript at 24:18-25:5.
The parallel between Burson and the instant case is readily evident, however. Here, just
as in Burson, PAG can say whatever it wants about Governor Huckabee in the body of its special
26
project communications, including referring to him by name and using the “I Like Mike
Huckabee” slogan. It just cannot do so in the names or titles of those communications. Thus, to
use counsel for PAG’s own words, the Name Identification Requirement “doesn’t prohibit the
speech at all[,] . . . [i]t just prohibits where you can make the speech.” Id.
The same parallel can be seen in Christian Knights of the Ku Klux Klan Invisible Empire,
Inc. v. District of Columbia, 919 F.2d 148 (D.C. Cir. 1990) (per curiam) (which, like Burson,
was raised in the FEC’s opposition brief but was not addressed in PAG’s reply brief).
In Christian Knights, the Ku Klux Klan applied for a permit “to march from the Washington
Monument to Capitol Hill,” but the District of Columbia only “agreed to issue a permit . . .
allowing them to march over a shorter route.” 919 F.2d at 148. The Klan “sought an injunction
compelling the District of Columbia to issue a permit allowing them to march the full distance
from the Monument to the Capitol.” Id. at 148-49. The D.C. Circuit held that the case did not
“involve an effort by the District of Columbia to prohibit [the Klan’s] freedom of expression”
given that the Klan had “been given a permit to march and to demonstrate,” and would therefore
have “the opportunity to convey their message along the approved route and at a permitted
demonstration on the Capitol grounds.” Id. at 149. The D.C. Circuit also found that Elrod v.
Burns, 427 U.S. 347 (1976) (cited by PAG in its motion), did not apply, because that was a “case
in which [the] petitioners’ First Amendment rights were totally denied by the disputed
Government action,” while the Klan was still permitted to march, albeit along a shorter route.
Id.; see also id. at 150 (noting that certain “heckler’s veto” cases cited by the Klan were not
dispositive of its claims because those cases all “involved situations in which petitioners ha[d]
been totally denied an otherwise available forum for expression”).
27
The absence here of a total denial of any speech rights is precisely how the FEC
distinguished Buckley v. Valeo, 424 U.S. 1 (1976) and Fed. Election Comm’n v. Nat’l
Conservative Political Action Comm., 470 U.S. 480 (1985) during the rulemaking process back
in the early 1990s, noting that both of those cases “involved total bans on independent
expenditures, or certain types of independent expenditures,” whereas the Special Projects Name
Regulation did not. 1992 Explanation and Justification at 31,425. Additionally, in Buckley, the
Supreme Court “explained that disclosure could be justified based on a governmental interest in
providing the electorate with information about the sources of election-related spending,” and the
Court again applied this same interest in McConnell v. Fed. Election Comm’n, 540 U.S. 93(2003), where there was “evidence in the record that independent groups were running election-
related advertisements while hiding behind dubious and misleading names.” Citizens United,
558 U.S. at 367 (internal quotations, citations and brackets omitted). The rulemaking record in
this case contains the same kind of evidence as in McConnell, and the disclosures required by the
Name Identification Requirement are therefore justified because they “provid[e] the electorate
with information,” McConnell, 540 U.S. at 196, and “insure that the voters are fully informed”
about the person or group who is speaking in special project communications of unauthorized
committees. Buckley, 424 U.S. at 76; see also First Nat. Bank of Boston v. Bellotti, 435 U.S.
765, 792 n.32 (1978) (“Identification of the source of advertising may be required as a means of
disclosure, so that the people will be able to evaluate the arguments to which they are being
subjected.”) (citations omitted); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 698
(D.C. Cir. 2010) (en banc), cert. denied, 562 U.S. 1003 (2010) (holding that political committee
disclosure requirements further the public’s “interest in knowing who is speaking about a
candidate and who is funding that speech,” and “deter[] and help[] expose violations of other
28
campaign finance restrictions”). “At the very least,” the Name Identification Requirement helps
to “avoid confusion by making clear” to the voting public that communications disseminated via
unauthorized committees’ special projects “are not funded by a candidate or political party.”
Citizens United, 558 U.S. at 368.
The Name Identification Requirement is therefore “substantially related to the
government’s interests in limiting confusion, fraud, and abuse” because it “serve[s] to clarify the
candidate-authorization status of political committees.” (Opp. at 27). The court agrees with the
FEC that “the positive requirement of including candidate names in [the names of] authorized
committees cannot function without the corresponding restriction for unauthorized committees,”
and that permitting “unauthorized political committees to establish special projects that use
candidate names under the shell of the actual committee would vitiate” § 30102(e)(4). (Id.
at 27-28). This court finds no reason to doubt or question the conclusion reached by the FEC,
after “two rounds of full-bore notice-and-comment rulemaking” (id. at 21), that permitting
unauthorized committees to use candidate names in their special project titles in a way that does
not clearly express opposition to the named candidates would create opportunities for those
projects “to exploit ambiguity about their identity” and “take advantage of confusion created by
their project names – even in the absence of any solicitation.” (Id. at 28-29). The court also
agrees with the FEC that, “[j]ust as an unauthorized project that trades on a candidate’s name in
its title can divert dollars away from a candidate’s message, it can also divert (or distort)
information, confusing readers into believing, say, that PAG’s message is Mr. Huckabee’s,” and
that “permitting PAG to imply that its speech is Mr. Huckabee’s by using the candidate’s name
in the title to present PAG’s messages would disserve the public.” (Id. at 29). “[P]reventing the
use of candidate names in the names of unauthorized political committee projects is thus
29
‘responsive to the problem’ of confusion, and therefore is substantially related to the
government’s important disclosure interests.” (Id.) (quoting CAP Advisory Opinion at 3).
The need for FECA disclosure provisions like the Name Identification Requirement is
particularly apparent in the context of dissemination of communications via internet-based
special projects like websites, Facebook pages and Twitter accounts. The hundreds of comments
posted on PAG’s Facebook page that appear to be directed to Governor Huckabee highlight the
need for such disclosures, and belie PAG’s arguments that clarifying the authorization status of
an unauthorized committee’s special projects could constitute a legitimate government interest
only in the fundraising context. (See Opp. Ex. A). And, as the Supreme Court explained in its
plurality opinion in McCutcheon, “[w]ith modern technology, disclosure now offers a
particularly effective means of arming the voting public with information. . . . Today, given the
Internet, disclosure offers much more robust protections against corruption” and “is effective to a
degree not possible at the time Buckley, or even McConnell, was decided.” 134 S. Ct. at 1460.
In sum, “the public has an interest in knowing who is speaking about a candidate shortly
before an election.” Citizens United, 558 U.S. at 369. This interest is a legitimate government
interest as well, and goes hand-in-hand with the legitimate government interest in limiting the
possibility of fraud, confusion and abuse in federal elections. Because the Name Identification
Requirement is substantially related to these legitimate government interests, and only minimally
burdens political committee speech, it satisfies the intermediate level of constitutional scrutiny to
which FECA’s disclosure and disclaimer rules are to be subjected.
b. The Other Preliminary Injunction Factors
The court need not address the other preliminary injunction factors in light of PAG’s
failure to demonstrate likelihood of success on the merits of its claims. See Comm. of 100 on the
30
Fed. City v. Foxx, 2015 WL 3377835, at *5 (D.D.C. May 26, 2015); Winstead v. EMC Mortgage
Corp., 621 F. Supp. 2d 1, 4-5 (D.D.C. 2009); see also Mot. at 31-32 (citing Joelner v. Vill. of
Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (“When a party seeks a preliminary
injunction on the basis of a potential First Amendment violation, the likelihood of success on the
merits will often be the determinative factor.”); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d
483, 488 (2d Cir. 2013) (“Consideration of the merits is virtually indispensable in the First
Amendment context, where the likelihood of success on the merits is the dominant, if not the
dispositive, factor.”)).
Nevertheless, the court finds it worthwhile to briefly address the three remaining factors,
as they reinforce its finding that the entry of a preliminary injunction is not warranted here.
i. The Threat of Irreparable Harm
PAG’s irreparable harm argument relies exclusively on its First Amendment claims, and
essentially presupposes a finding that it is likely to succeed on the merits of those claims. (Mot.
at 31-33; see also Opp. at 40 (“PAG simply repeats its merits arguments and assumes that
irreparable harm flows from its contentions that its First Amendment rights have been
infringed.”)). Specifically, PAG argues that it faces irreparable harm “each and every day that it
is threatened by the FEC’s unconstitutional speech ban.” (Mot. at 33). Because this court has
found that PAG is not likely to succeed on the merits of its First Amendment claims, however, it
follows that PAG has not “demonstrate[d] that [its] ‘First Amendment interests [are] either
threatened or in fact being impaired.’” (Id. at 32) (quoting Wagner v. Taylor, 836 F.2d 566, 576
(D.C. Cir. 1987)).
Additionally, because PAG has not demonstrated that that it will be prevented from
speaking, as opposed to merely having one aspect of its speech – the referencing of candidate
31
names – relegated from the titles of its special project communications to the bodies of those
communications, it has not demonstrated that it will be irreparably harmed absent the issuance of
a preliminary injunction. See Christian Knights, 919 F.2d at 149-50 (finding that the issuance of
a parade permit for a shorter route than requested “does not constitute irreparable harm for the
appellees” because appellees would still “have the opportunity to convey their message along the
approved route,” and distinguishing Elrod on the ground that, in that case, “petitioners’ First
Amendment rights were totally denied by the disputed Government action”).
Based on these findings, PAG has failed to establish the irreparable harm prong of the
preliminary injunction analysis.
ii. The Balance of Equities
PAG argues that the balance of equities favors its claim, since, while it “seeks to exercise
its First Amendment[]” rights, the FEC “has no interest in the enforcement of an unconstitutional
law.” (Mot. at 33). Again, PAG attempts here to bootstrap its balance of equities argument to its
First Amendment arguments, which the court has already found unlikely to succeed.
The court finds that the “presumption of constitutionality which attaches to every Act of
Congress” is “an equity to be considered in favor of [the government] in balancing hardships,”
Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984), and that whenever
the government “is enjoined by a court from effectuating statutes enacted by representatives of
its people, it suffers a form of irreparable injury.” See New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers).
In light of these findings, the court holds that PAG has not established the balance of
equities prong of the preliminary injunction analysis.
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iii. The Public Interest
As to the public interest prong, PAG again relies on a presumption that the Name
Identification Requirement violates its First Amendment rights, arguing that securing First
Amendment rights and stopping the unconstitutional application of a statute are in the public
interest. (Mot. at 24). PAG also claims that “[t]here can be no public interest in prohibiting
certain speakers from referencing candidates for public office in website URLs or on social
media platforms in a manner that expresses support for those candidates, and where no
solicitation of funds is involved.” (Id.).
The FEC argues that it is in the public interest for courts to carry out the will of Congress
and for an agency to implement properly the statutes it administers, and that enjoining it from
performing its statutory duty would constitute a substantial public injury. (Opp. at 42-43) (citing
Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000); Christian Civic League of
Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006) (per curiam)). The FEC also argues that
upsetting its regulatory framework with the upcoming Presidential election just over the horizon,
and after the Name Identification Requirement “has been law for twenty-one years,” would “‘be
imprudent, to say the least, and certainly not in the public interest.’” (Id.) (quoting Rufer v. Fed.
Election Comm’n, 64 F. Supp. 3d 195, 206 (D.D.C. 2014)).
Having determined that PAG is not likely to succeed on the merits of its First
Amendment claims and having credited the aforementioned FEC arguments, the court holds that
PAG has failed to satisfy the public interest prong of the preliminary injunction analysis.
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IV. CONCLUSION
For the foregoing reasons, PAG’s Motion for Preliminary Injunction is denied.
An appropriate Order accompanies this Memorandum Opinion.
Date: September 24, 2015
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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