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  • FEC Record: Litigation

Court declares regulation unconstitutional in Pursuing America’s Greatness v. FEC (D.D.C. 1:15-cv-01217-TSC)

March 28, 2019

On March 21, 2019, the U. S. District Court for the District of Columbia declared 11 CFR 102.14(a) unconstitutional and permanently enjoined the Commission from enforcing it.

Background

In July 2015, Pursuing America’s Greatness (Plaintiff) sought a preliminary injunction to prevent the Commission from enforcing among other things 11 CFR 102.14, which interprets the Federal Election Campaign Act (the Act) to prohibit not only an unauthorized political committee's use of a federal candidate's name in its official name, but also any name under which it conducts activities, such as website or social media page titles. The regulation permits an unauthorized committee to use a candidate's name in all names under which it operates that "clearly and unambiguously" show opposition to the named candidate. The district court denied the motion in September 2015 and Plaintiff appealed to the U.S. Court of Appeals for the District of Columbia Circuit. In August 2016, the Court of Appeals found that this regulation is a content-based ban on speech that likely violates the First Amendment because of its opposition exception, reversing the district court’s denial of the motion for a preliminary injunction and remanding for the district court to enter a preliminary injunction enjoining the application of section 102.14(a) against Plaintiff’s website and social media pages. Plaintiff then filed a motion for summary judgment arguing that 11 CFR 102.14(a) is an unconstitutional content-based speech ban.

Analysis

The Act and Commission regulations require a political committee authorized by a federal candidate to include the name of that candidate in its official name. Conversely, "unauthorized" political committees are expressly prohibited from using the name of any federal candidate in their official names. Commission regulations at 11 CFR 102.14(a) state "any name under which a[n unauthorized] committee conducts activities, such as solicitations or other communications, including a special project name" shall not include the name of any candidate. As an exception, an unauthorized committee may use a candidate's name in the title of a communication or special project that "clearly and unambiguously" shows opposition to the named candidate. 11 CFR 102.14(b)(3).

A content-based speech ban is constitutional only if it survives strict scrutiny. Strict scrutiny requires that the provision furthers a compelling government interest and is narrowly tailored to achieve that interest. The court found that the evidence established that an unauthorized committee’s use of a candidate’s name in an operating name such as a fundraising project name could confuse voters, and that the government has a compelling interest in preventing such confusion. However, the court concluded that section 102.14(a) was not narrowly tailored because the evidence was insufficient to establish that less restrictive alternatives would not be equally effective in achieving the government’s interest. Therefore, the regulation fails strict scrutiny and violates the First Amendment of the Constitution.

As a result of the court’s decision, unauthorized committees are no longer prohibited from using a candidate’s name in all names under which they conduct activities, including how they identify themselves or their projects in solicitations or other communications. However, the statutory ban on an unauthorized committee’s use of a candidate’s name in its official name remains in place. 52 U.S.C. § 30102(e)(4).

Resources

  • Author 
    • Mary Ann Baker
    • Communications Specialist