Stop Hillary PAC v. FEC (New 2015)

On September 22, 2015, Stop Hillary PAC and Dan Backer filed suit in the U.S. District Court for the Eastern District of Virginia challenging provisions of the Act and Commission regulations that prohibit an unauthorized political committee from using a federal candidate’s name in the committee’s name. Plaintiffs seek a declaratory judgment that the naming restrictions are unconstitutional under the First Amendment and seek an injunction barring the FEC from enforcing the provisions.

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).

Stop Hillary PAC is a nonconnected 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." The committee registered with the FEC on May 16, 2013. Dan Backer serves as its attorney and treasurer.

After Hillary Rodham Clinton registered as a candidate for president in April 2015, the FEC asked Mr. Backer and Stop Hillary PAC to amend the committee’s Statement of Organization (FEC Form 1) 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.

Legal challenge
The Plaintiffs make several facial and as-applied challenges to the naming restrictions set forth in the Act and Commission regulations. First, the plaintiffs claim that the name of a political committee is a constitutionally 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. They state that "Stop Hillary PAC" reflects the PAC’s mission, purpose and values and that no other name would have a comparable effect. They also state that the name shows clear opposition to Hillary Rodham Clinton and that no reasonable person would believe that the name "Stop Hillary PAC" is Hillary Rodham Clinton’s authorized committee.

Plaintiff Dan Backer also alleges that he intends to serve as treasurer of other unauthorized committees that will include the names of federal candidates. He alleges that the naming restrictions, as-applied to the plaintiffs’ current and future conduct, substantially burden their First Amendment rights and chill future speech.

Finally, the Plaintiffs allege that the exceptions to the naming restrictions (allowing for the use of a federal candidate’s name in the title of a special project name or other communication if the title shows opposition to the named candidate) are unconstitutional speaker- and content-based exceptions that violate their Equal Protections rights by allowing some committees to use a candidate’s name while prohibiting other committees from doing the same.

The Plaintiffs seek a declaratory judgment that the naming restrictions violate the First Amendment and an injunction prohibiting the FEC from enforcing the naming restrictions against unauthorized committees whose names show clear opposition to a federal candidate.

Resources:

• Stop Hillary PAC, et al. v. FEC litigation page
• Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992)
• Record article: Pursuing America's Greatness v. FEC

  /updates/pursuing-americas-greatness-v-fec-district-court/

  (District Court)