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  • FEC Record: Litigation

Stop Hillary PAC v. FEC (District court 2015)

December 29, 2015

On December 21, 2015, the U.S. District Court for the Eastern District of Virginia denied plaintiffs Stop Hillary PAC and Dan Backer's Motion for Preliminary Injunction. The plaintiffs had sought an interim order enjoining the FEC from taking any action to enforce the naming restriction for unauthorized political committees in section 52 U.S.C. § 30102(e)(4) against plaintiffs throughout the duration of their lawsuit challenging the constitutionality of that provision. The plaintiffs had also sought to enjoin the FEC from enforcing section 30102(e)(4) either facially or as applied to nonconnected political committees with names that clearly and unambiguously oppose a candidate. The court held that the plaintiffs did not show a likelihood of success on the merits of their claims that the naming restrictions for unauthorized political committees in 52 U.S.C. § 30102(e)(4) and 11 CFR 102.14 are a content-based restriction on speech or violate their First Amendment rights.

Background
The Federal Election Campaign Act (the "Act") states that "any political committee which is not an authorized committee [of a federal candidate]…shall not include the name of any candidate in its name." 52 U.S.C. § 30102(e)(4). Commission regulations further state that any political committee that is not the authorized committee of a candidate shall not include the name of any candidate in its name, which also includes "any name under which a committee conducts activities, such as solicitations or other communications, including a special project name or other designation." 11 CFR 102.14(a). However, Commission regulations state that an unauthorized 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. 11 CFR 102.14(b)(3).

Plaintiff Stop Hillary PAC is a nonconnected, unauthorized committee that maintains a non-contribution account (Hybrid PAC). Its stated mission is "to engage in political advocacy, make political contributions and expenditures, and organize supporters to help stop Hillary Rodham Clinton from becoming President of the United States." Plaintiff Dan Backer serves as its attorney and treasurer.

The committee registered with the FEC on May 16, 2013. After Hillary Rodham Clinton registered as a candidate for president in April 2015, the FEC asked Stop Hillary PAC and Mr. Backer to amend the committee’s Statement of Organization so that its name would not include the name of a federal candidate. Mr. Backer and Stop Hillary PAC refused to change the committee’s name.

On September 22, 2015, the plaintiffs filed suit in the U.S. District Court for the Eastern District of Virginia challenging the Act and Commission regulations' naming restrictions. On October 6, 2015, the plaintiffs filed a Motion for Preliminary Injunction asking the court to prohibit the FEC from taking any action to enforce section 30102(e)(4) against plaintiffs throughout the duration of their lawsuit and from enforcing the political committee naming requirements either facially or as applied to non-connected political committees with names that clearly and unambiguously oppose a candidate.

District court decision
The court explained that "a party 'seeking a preliminary injunction must establish that 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of the equities tips in his favor; and 4) an injunction is in the public interest.'" The court held that the plaintiffs did not show a likelihood of success on the merits to justify granting the Motion for Preliminary Injunction.

In this case, the plaintiffs claimed that a political committee's name is a protected form of political speech, and that the naming restrictions impose a substantial burden on their First Amendment rights without furthering an important or compelling government interest. However, the court held that there was no showing that the Act restricts plaintiffs' speech or that the naming restrictions were enacted because of the content of their speech.

The court first recounted the naming restrictions' long history of alleviating "the constant public confusion surrounding [PACs]." The court noted that, prior to the naming restrictions, the name of unauthorized PACs could contain a candidate's name without being authorized or endorsed by that candidate. "The voting public would mistake such unauthorized PACs as a candidate's official authorized PAC, resulting in misdirected campaign contributions and increased voter confusion." The court found that such confusion is still likely and "is exactly why 30102(e)(4)'s mandate why should not be disturbed."

The court rejected the plaintiffs' argument that section 30102(e)(4) is content based and subject to strict scrutiny and, citing Citizens United and McConnell, explained that section 30102(e)(4) "'does not prevent anyone from speaking.'" The court found that, on the contrary, the naming restrictions allow unauthorized PACs "all forms of political speech" by allowing them "[the freedom] to discuss candidates—even by using a candidate's name—throughout their website, solicitations, special projects and various other communications," and even in the titles of their special projects "if the title clearly and unambiguously shows opposition to the named candidate." The court pointed out that the only area where the plaintiffs are not allowed to use a candidate's name is in the official title of the unauthorized PAC. The court found this "narrow and specific" requirement does not prohibit speech but limits potential confusion about which person, group or candidate the PAC represents and ensures transparency.

Instead, the court found section 30102(e)(4) requires "exacting" or intermediate scrutiny since it is part of the Act's disclosure regime. The court found the naming restrictions are "tailored to the governmental interest of limiting confusion, fraud and abuse of the political process." "Further, the fact that the government's interest only impedes on Plaintiffs' ability to include a candidate's name in its title alone, further demonstrates that 30102(e)(4) is the least restrictive means of accomplishing the government's interest for transparency in PACs."

Given the court's finding that the naming restrictions for unauthorized political committees are disclosure requirements that are substantially related to important government interests, the court found the plaintiffs unable to satisfy the first prong required for a preliminary injunction. The court also briefly noted that, in light of the fact that the requirements only require plaintiff Stop Hillary PAC to change its official committee name, it was not convinced that plaintiffs would suffer irreparable harm if the Motion is not granted or that the balance of hardships tips in the plaintiffs' favor. The court noted that, despite having to change the PAC's name, the plaintiffs are afforded, under the statute, "the unique ability to retain their official website, Facebook, and Twitter page." Finally, the court noted that, with the election approaching, "it is not in the public's interest to upend a statute that was created for the very purpose of ensuring the public are clearly informed." 

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