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  • FEC Record: Litigation

Court denies preliminary injunction in challenge to electioneering communications requirements (D.D.C. 19-1021)

May 28, 2019

On May 13, 2019, the U.S. District Court for the District of Columbia denied a motion by Leigh Brown and Leigh Brown & Associates (plaintiffs) for a preliminary injunction to prevent the Commission from enforcing the application of electioneering communications disclaimer and disclosure requirements to plaintiffs’ business advertisements.

Background

The Federal Election Campaign Act and Commission regulations define an electioneering communication as any broadcast or satellite communication that (1) refers to a clearly identified federal candidate; (2) is publicly distributed within 30 days before a primary election or a convention or caucus of a political party or 60 days before a general election; and (3) is targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A)(i); 11 CFR 100.29(a). The electioneering communications provisions include requirements for disclaimers and disclosure reports.

Leigh Brown was a candidate for the United States House of Representatives in the May 14, 2019, special primary election in North Carolina’s Ninth Congressional District. On April 11, 2019, the Commission considered an advisory opinion request from Leigh Brown asking the Commission to determine whether radio advertisements promoting her business to be aired during the pre-primary period constituted electioneering communications or were exempt from the definition. The Commission was unable to render an opinion by the required four affirmative votes and concluded its consideration of the request.

On the evening of April 11, 2019, plaintiffs requested a temporary restraining order from the court enjoining the application of the electioneering communications disclaimer and disclosure requirements to plaintiffs’ advertisements. The court denied that motion two days later. On April 17, 2019, plaintiffs filed an amended complaint requesting a preliminary injunction enjoining the Commission from applying any electioneering communications rules to Brown’s advertisements. The complaint also challenged the rules’ constitutionality and asked the court to find that none of the four advertisements at issue constitute electioneering communications.

District court decision

The district court declined to issue a preliminary injunction because plaintiffs were unlikely to succeed on the merits of their constitutional claims, and could not show irreparable injury through the loss of constitutional freedoms. The court held that two of plaintiffs’ four radio advertisements likely are electioneering communications and the associated disclaimer and disclosure requirements are likely constitutional as applied to them. The other two ads in question likely were not electioneering communications. Without any reasonable expectation that the FEC would undertake enforcement action against these ads, the court could not conclude that plaintiffs had shown a likelihood of success on their First Amendment claims related to them. Finally, the court held that plaintiffs would be unsuccessful on their third claim because it was predicated on a determination that all four advertisements were not electioneering communications and it lacked a cognizable cause of action.

The court also determined that plaintiffs did not suffer irreparable harm. The only harm plaintiffs identify from the disclaimer and disclosure requirements is that adding a disclaimer to the end of the advertisement would confuse the public and destroy the advertisements' value. The court found plaintiffs' reasoning did not meet the high standard for irreparable injury.

For all of these reasons, the court denied plaintiffs' motion for a preliminary injunction.

Following the May 14, 2019, special primary election, the plaintiffs filed a Notice of Voluntary Dismissal.

Resources

  • Author 
    • Mary Ann Baker
    • Communications Specialist
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