United States District Court, D. Columbia
Pursuing America's Greatness, Plaintiff: Jason B.
Torchinsky, HOLTZMAN VOGEL JOSEFIAK, PLLC, Warrenton, VA USA.
Federal Election Commission, Office of General Counsel,
Defendant: Charles Kitcher, Erin R Chlopak, Kevin Deeley,
LEAD ATTORNEYS, FEDERAL ELECTION COMMISSION, Washington, DC
S. CHUTKAN, United States District Judge.
Pursuing America's Greatness (" PAG" ) brings
this action against the Federal Election Commission (the
" FEC" or the " Commission" ) for
violations of the Administrative Procedure Act (the "
APA" ) and PAG's First Amendment rights.
challenges an FEC advisory opinion interpreting and applying
a provision of the Federal Election Campaign Act of 1971, as
amended (" FECA" ), and its implementing
regulations to prohibit unauthorized, independent
expenditure-only political committees like itself from
including the names of federal candidates in website
Universal Resource Locators (" URLs" ), the titles
of Facebook pages and Twitter account handles without clearly
expressing opposition to those candidates, even when such
websites, Facebook pages and Twitter accounts do not engage
in fundraising solicitations. See FEC Advisory
the court is PAG's motion for preliminary injunction.
Because PAG has failed to demonstrate that it is likely to
succeed on the merits of its APA and First Amendment claims,
and for the other reasons set forth herein, the motion is
an unauthorized, independent, expenditure-only political
committee founded in 2015 to advocate for the election of
former Governor of Arkansas Mike Huckabee as President of the
United States. (Compl. ¶ ¶ 25, 27). Since July 9,
2015, PAG has operated the website located at
www.ilikemikehuckabee.com and the Facebook page " I Like
Mike Huckabee," which is located at
www.facebook.com/ilikemikehuckabee. ( Id. ¶
¶ 10-11). PAG also intends to establish and operate a
Twitter account utilizing a " handle" that includes
the name " Huckabee." ( Id. ¶ 13).
PAG has not used any of its internet properties to solicit
contributions or to otherwise engage in fundraising
activities, and it does not intend to do so in the future.
(Mot. at 15).
is the independent agency of the United States government
with exclusive jurisdiction to administer, interpret and
civilly enforce FECA, 52 U.S.C. § §
30101-30146. (Opp. at 1-2). The FEC is specifically
empowered to " formulate policy" with respect to
FECA (52 U.S.C. § 30106(b)(1)); " to make, amend,
and repeal such rules . . . as are necessary to carry out the
provisions of" FECA ( id. § 30107(a)(8));
to issue advisory opinions construing FECA ( id.
§ § 30107(a)(7), 30108); and to civilly enforce
FECA ( id. § 30109). (Opp. at 2).
case arises from PAG's allegation that the FEC's
interpretation and application of FECA provision 52 U.S.C.
§ 30102(e)(4) and its implementing regulations at 11
C.F.R. § § 102.14(a)-(b) violate the APA and
PAG's First Amendment rights.
federal election law is complex, and the court will provide
here only a brief synopsis of the statutes, regulations, case
law and FEC advisory opinions that are applicable to
PAG's motion for preliminary injunction.
30102(e)(4) of FECA, which is codified by regulation at 11
C.F.R. § 102.14(a), requires that the name of an
authorized political committee " shall include the name
of the candidate who authorized such committee." It also
provides that, " [i]n the case of any political
committee which is not an authorized committee, such
political committee shall not
include the name of any candidate in its name." PAG --
as an independent, unauthorized political committee -- is
therefore prohibited from including Governor Huckabee's
name in its committee name.
Common Cause v. FEC
1980, two groups, one of which was Common Cause, filed
administrative complaints with the FEC alleging, inter
alia, that several unauthorized, independent political
committees had violated § 30102(e)(4)'s " ban
against the use of a candidate's name in the name of an
unauthorized committee" by using the name "
Reagan" in the titles of fundraising projects related to
the 1980 U.S. Presidential election, in which former Governor
of California Ronald Reagan was a candidate. Common Cause
v. Fed. Election Comm'n, 842 F.2d 436, 438, 268
U.S.App.D.C. 440 (D.C. Cir. 1988). The FEC General Counsel
suggested further investigation into these allegations and,
pursuant to the Commission's statutory enforcement
process, " [b]y a 4-2 vote the Commission found
'reason to believe' a violation had taken place and
ordered further inquiry." Id.
evidence subsequently showed that, in several campaign
communications, a number of unauthorized committees had
" included the name of candidate Reagan in letterheads
and return addresses and, in some of the communications,
asked for contributions with checks made payable to accounts
bearing Reagan's name." Id. at 439. At the
time, however, the FEC narrowly construed § 30102(e)(4)
" as applying only to the name of [a] committee itself
and not to the names of any fundraising projects that [a]
committee sponsors." Id. at 437. Thus, because
the names at issue in the administrative complaints "
referred only to fundraising projects and not to the
committees themselves . . . the General Counsel recommended
that the Commission find no probable cause to believe that a
violation had occurred." Id. at 439. " On
the General Counsel's recommendation, a 4-2 Commission
majority voted to take no further action." Id.
Cause subsequently challenged the Commission's dismissal
of its complaint in federal district court. District Court
Judge John Garrett Penn held that " [b]oth the plain
understanding of the word 'name' in the context of
elections" and Congress' " intent to safeguard
against confusion" led to the conclusion that the
FEC's narrow reading of the statutory language as
applying only to a committee's official, registered name
defied " common sense" and was " contrary to
law." Common Cause v. Fed. Election Comm'n,
655 F.Supp. 619, 621-22 (D.D.C. 1986) rev'd, 842
F.2d 436, 268 U.S.App.D.C. 440 (D.C. Cir. 1988). Noting that
" [t]he political machinery is powered by names and what
those names symbolize and identify," Judge Penn held
that " whatever names [a] committee present[s] to the
public for identification must also constitute a
'name' within the meaning of" § 30102(e)(4)
because to allow otherwise " would be to allow political
committees to emasculate the effectiveness of the rule."
Id. at 621. The district court analogized its
rationale to that applied to situations where a company
" may register under one name but be known to the public
or 'trade' under a different name" and
determined that, in such a circumstance, " the publicly
used name is as important as the company's
'official' name." Id. at 621 n.5.
D.C. Circuit subsequently reversed the district court. It
found that " [t]he bare text" of § 30102(e)(4)
" could conceivably accommodate either the construction
adopted by the FEC" -- i.e., that the statute
applied " only to the official or formal
name under which a political committee must register" --
" or that proposed by Common Cause" --
i.e., that the statute did not refer only to "
the officially registered 'name' of a political
committee but rather any title under which such a
committee holds itself out to the public for solicitation or
propagandizing purposes." Common Cause, 842
F.2d at 440-41. It also reviewed the statute's "
sparse legislative history," id. at 443,
concluding that " little" in that legislative
history threw doubt " on the reasonableness of the
FEC's narrower interpretation" of §
30102(e)(4), id. at 447, and that the Commission,
" on balance," had " the better of the
argument." Id. at 440.
found that " [n]either the plain language of [the
statute] nor its legislative history unambiguously resolve[d]
the dispute" as to whether the word " name" in
§ 30102(e)(4) referred to only a committee's
official name or also encompassed the names of a
committee's special projects, id. at 440, the
Court moved on to determining whether the FEC's narrower
interpretation was based on a permissible construction of the
statute under the second step of the two-step rubric of
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). See Common Cause, 842 F.2d at 448.
Noting that " [d]eference is particularly appropriate in
the context of the FECA, which explicitly relies on the
bipartisan Commission as its primary enforcer," and that
the FEC's dismissal of a complaint should be reversed
only if contrary to law, the Court determined that the
FEC's interpretation was not unreasonable and was, in
fact, " the better interpretation . . . in light of
[§ 30102(e)(4)'s] language and legislative
history." Id. (citing Fed. Election
Comm'n v. Democratic Senatorial Campaign Comm., 454
U.S. 27, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981)).
for purposes of the instant case, the D.C. Circuit also
explicitly stated that " subsection (e)(4) is directed
solely at disclosure of whether a political committee that
solicits funds from the public is part of the authorized
campaign machinery of a candidate," and that it acts,
along with FECA's provision requiring committees to state
whether or not certain communications are authorized, to
" clarify for readers and potential contributors the
candidate authorization status of the political committees
who sponsor advertisements and fund solicitations."
Id. at 442; see also id. at 440
(noting that " the avowed purpose" of the statute
is " to eliminate confusion" ). The Court also
found that the statute " mainly supplements" the
identification of authorization provision of FECA " by
ensuring that once a contributor learns who is paying for the
advertisements or who is to be the recipient of his funds, he
simultaneously learns by a glance at the title whether that
recipient is an authorized or unauthorized vehicle of the
candidate. Thus, [the statute] avoids the kind of confusing
disclaimer previously possible, 'Paid for by Reagan
for President. Not authorized by President Reagan,'
and makes [FECA's authorization] disclaimers more
effective." Id. at 442. The D.C. Circuit also
acknowledged the possibility that adopting Common Cause's
reading of the statute " might prevent campaign
literature employing candidates' names from misleading
some members of the public who, despite proper . . .
disclaimers, will not realize that the candidate's name
in the solicitation 'project' does not necessarily
mean he will get the money," while adopting the
FEC's reading " may leave some confusion
unabated." Id. at 448.
The Special Projects Name Regulation
1992, prompted by concern about " the potential for
confusion or abuse in . . .
situation[s] where an unauthorized committee uses a
candidate's name in the title of a special fundraising
project," the FEC promulgated a Notice of Proposed
Rulemaking (" NPRM" ) regarding proposed amendments
to 11 C.F.R. § 102.14, the regulation implementing
§ 30102(e)(4). FEC, Special Fundraising Projects by
Political Committees, 57 Fed.Reg. 13,056, 13,057 (Apr.
15, 1992) (the " 1992 NPRM" ). Following the
receipt of comments responding to the 1992 NPRM, and
consideration of those comments and " the entire
rulemaking record," the FEC decided " to adopt in
its final rule a ban on the use of candidate names in the
titles of all communications by unauthorized committees"
(the " Special Projects Name Regulation" ). FEC,
Special Fundraising Projects and Other Use of Candidate
Names by Unauthorized Committees, 57 Fed.Reg. 31,424,
31,425 (July 15, 1992) (the " 1992 Explanation and
Justification" ). The new rule thus amended 11 CFR
§ 102.14(a) " to define 'name' for the
purpose of the [§ 30102(e)(4)] prohibition to include
'any name under which a committee conducts activities,
such as solicitations or other communications, including a
special project name or other designation.'"
1992 Explanation and Justification further stated that, since
Common Cause had been decided several years earlier,
the Commission ha[d] become more concerned about the
potential for confusion or abuse when an unauthorized
committee uses a candidate's name in the title of a
special fundraising project. A person who receives such a
communication may not understand that it is made on behalf of
the committee rather than the candidate whose name appears in
the project's title. It is possible in these instances
that potential donors think they are giving money to the
candidate named in the project's title, when this is not
Id. at 31,424. The FEC also pointed out that, in the
years leading up to the promulgation of the Special Projects
the use of candidate names in the titles of projects or other
unauthorized communications ha[d] increasingly become a
device for unauthorized committees to raise funds or
disseminate information. Under the [Commission's] former
interpretation, a candidate who objected to the use of his or
her name in this manner, who shared in none of the funds
received in response to the solicitation, or who disagreed
with the views expressed in the communication, was largely
powerless to stop it.
examples from the 1992 NPRM, as well as examples in the
rulemaking record of unauthorized committees using
candidates' names to fundraise large sums of money -- and
doing so despite, in at least one case, a "
candidate's disavowal of and efforts to stop these
activities" -- the Commission concluded that FECA's
disclaimer requirement was not, " in and of itself,
sufficient to deal with th[e] situation[s]" that the
Special Projects Name Regulation was designed to protect
against. Id. at 31,424-25. The Commission also
determined that " the potential for confusion is equally
great in all types of committee communications," not
just fundraising solicitations, and noted that the Common
Cause court had " equated solicitations with other
committee communications" for purposes of §
30102(e)(4). Id. at 31,425. The FEC also noted that
the Special Projects Name Regulation's " total
ban" was " more directly responsive to the problem
at issue, and easier to monitor and enforce," than other
restrictions proposed in the 1992 NPRM, and that unauthorized
committees would remain " free to choose whatever
project title they desire, as long as it does not include the
name of a federal candidate," and could " freely
discuss any number of candidates, by name, in the body
of" any special project communications. Id.
The Opposition Exception
1994, the FEC promulgated a new exception to the Special
Projects Name Regulation. See FEC, Special
Fundraising Projects and Other Use of Candidate Names by
Unauthorized Committees, 59 Fed.Reg. 17,267 (April 12,
1994) (the " 1994 Explanation and Justification" ).
This exception, which remains in place today, provides that
" [a]n unauthorized political 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" (the "
Opposition Exception" and, collectively with §
30102(e)(4) and the Special Projects Name Regulation, the
" Name Identification Requirement" ). Id.
at 17,269. In promulgating the Opposition Exception, the FEC
recognized " that the potential for fraud and abuse is
significantly reduced in the case of" special project
names clearly expressing opposition to the named candidate.
1994 Explanation and Justification reiterated much of what
was in the 1992 Explanation and Justification for the Special
Projects Name Regulation regarding the " substantial
evidence that potential contributors often confuse an
unauthorized committee's registered name with the names
of its fundraising projects, and wrongly believe that their
contributions will be used in support of the candidate(s)
named in the project titles." Id. at 17,267-69.
The 1994 Explanation and Justification also reiterated the
constitutionality of the Special Projects Name Regulation,
which it described as being " narrowly designed to
further the legitimate governmental interest in minimizing
the possibility of fraud and abuse," and noted that the
new Opposition Exception " further enhance[d]
unauthorized committees' constitutional rights by
exempting from the [Special Projects Name Regulation] those
titles that clearly indicate opposition to the named
candidate." Id. at 17,268.
The CAP Advisory Opinion
2015, Collective Actions PAC (" CAP" ), an
unauthorized, independent expenditure-only political
committee that advocates for the election of U.S. Senator
from Vermont Bernie Sanders as President of the United
States, filed an advisory opinion request with the FEC asking
whether it was permitted to include Senator Sanders' name
in the names of its internet properties -- namely, (i) the
websites RunBernieRun.com, ProBernie.com and
BelieveInBernie.com; (ii) the Facebook page " Run Bernie
Run" ; and (iii) the Twitter accounts @Bernie_Run and
@ProBernie. (Mot. at 11-14). CAP did not use these internet
properties to solicit donations for itself, but it did use
them to disseminate information about Senator Sanders and to
provide links to Senator Sanders' official campaign
website, including his official donation page. (Opp. at 14).
16, 2015, the FEC determined via advisory opinion that CAP
was not permitted to use Senator Sanders' name in the
names of its internet properties because doing so would run
afoul of the Name Identification Requirement. See
FEC Advisory Opinion 2015-04 (the " CAP Advisory
Opinion" ). Specifically, the Commission found that,
" [b]ecause the names of [CAP's] websites and social
media accounts that include Senator ...