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  • FEC Record: Litigation

Pursuing America's Greatness v. FEC (Appeals court)

August 9, 2016

On August 2, 2016, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court’s denial of Pursuing America's Greatness's (PAG) request for a preliminary injunction against the application of a Commission regulation, 11 CFR 102.14(a), to PAG’s websites and social media pages. As interpreted by the Commission, the regulation in section 102.14(a) prohibits an unauthorized political committee's use of a federal candidate's name in its official name or in the titles of special projects such as websites or social media pages. The panel concluded that this regulation, as applied to PAG, is a content-based ban on speech that likely violates the First Amendment.

Background and district court decision

The Federal Election Campaign Act and Commission regulations require political committees that are authorized by a federal candidate to include the name of that candidate in their official names. Conversely, "unauthorized" political committees are expressly prohibited from using the name of any federal candidate in their official names. Additionally, "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 unless one of three exceptions applies. 11 CFR 102.14(a). Under one of those exceptions, an unauthorized committee is permitted to 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).

PAG is an unauthorized political committee. In the 2016 presidential primaries, PAG supported former Governor Mike Huckabee and wished to support Governor Huckabee’s bid through a website and a Facebook page titled "I Like Mike Huckabee." However, under the Commission's regulations and interpretations, PAG would have likely violated the committee naming restrictions by doing so. In July 2015, PAG sought a preliminary injunction to prevent the Commission from enforcing the name requirement against it. The district court denied the motion in September 2015 and PAG appealed to the Court of Appeals.

Court of appeals decision

Standing. The Court of Appeals panel first addressed whether PAG had a continuing interest in this case because Governor Huckabee has suspended his 2016 presidential campaign and is no longer a federal candidate. Based on PAG’s stated intent to support other federal candidates in the 2016 elections, the panel concluded that PAG could maintain its challenge to the naming regulation.

Administrative Procedure Act challenge. PAG argued that the Commission had violated the Administrative Procedure Act (APA) by extending 11 CFR 102.14(a)'s naming restrictions to websites and social media pages that do not solicit contributions to the committee. Citing Commission Advisory Opinion 2015-04 (Collective Actions PAC), PAG argued that by applying the regulation to activities such as websites and social media pages lacking such fundraising requests, the Commission was going beyond the regulation's purpose, which was to avoid potential fraud in fundraising.

The panel concluded that it is required to give "substantial deference" to the Commission's interpretation of its own regulation and that the Commission had reasonably applied the regulation to the facts and circumstances presented in the Advisory Opinion request. As a result, the panel held that PAG was unlikely to succeed on its APA challenge.

First Amendment challenge. With respect to PAG's First Amendment challenge to the regulation, the Commission argued that the name regulation was not a restriction on speech but a disclosure requirement that quickly and easily communicates whether a political committee or special project is authorized by any candidate or candidates. The panel did not agree that the name requirement “compels disclosure.” The regulation, it wrote, “does not obligate PAG to say anything.”

Based on this conclusion, the panel viewed the regulation as a content-based restriction on PAG's political speech that "prevents PAG from conveying information to the public." It found that the appropriate level of constitutional scrutiny is “strict scrutiny.” Under that standard, the government must demonstrate that the regulation is narrowly tailored to a compelling governmental interest. The panel ultimately held that the name regulation likely would not satisfy strict scrutiny because, even assuming that the government had a compelling interest in avoiding the type of voter confusion the Commission had identified, the panel found it difficult to assess the Commission’s conclusions about the tailoring of the regulation. It concluded that “[b]ecause the [Commission] has not shown that its” method of regulation “is the least restrictive means of achieving the government’s interest, there is a substantial likelihood that [the regulation] fails strict scrutiny and violates the First Amendment as applied to PAG.”

After analyzing the other preliminary injunction factors, the panel reversed the district court's denial of PAG's motion for a preliminary injunction and remanded the case to the district court to enjoin the Commission from enforcing the committee name regulation at 11 CFR 102.14(a) against PAG’s websites and social media pages.