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Pursuing America's Greatness v. Federal Election Commission

United States District Court, D. Columbia

September 24, 2015


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          For Pursuing America's Greatness, Plaintiff: Jason B. Torchinsky, HOLTZMAN VOGEL JOSEFIAK, PLLC, Warrenton, VA USA.

         For Federal Election Commission, Office of General Counsel, Defendant: Charles Kitcher, Erin R Chlopak, Kevin Deeley, LEAD ATTORNEYS, FEDERAL ELECTION COMMISSION, Washington, DC USA.

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         TANYA S. CHUTKAN, United States District Judge.

         Plaintiff 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.

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          PAG 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 Opinion 2015-04.

         Before 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 DENIED.

         I. BACKGROUND

         PAG 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 and the Facebook page " I Like Mike Huckabee," which is located at ( 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).

         The FEC 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.[1] (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).

         This 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.

         U.S. 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.

         a. Section 30102(e)(4)

         Section 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

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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.[2]

         b. Common Cause v. FEC

         In 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.

         The 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.

         Common 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.

         The 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

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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.

         Having 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)).

         Notably 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.

         c. The Special Projects Name Regulation

         In 1992, prompted by concern about " the potential for confusion or abuse in . . .

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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.'" Id.

         The 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 the case.

Id. at 31,424. The FEC also pointed out that, in the years leading up to the promulgation of the Special Projects Name Regulation,

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.


         Citing 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

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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.

         d. The Opposition Exception

         In 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. Id.

         The 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.

         e. The CAP Advisory Opinion

         In June 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, and; (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).

         On July 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 ...

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