United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
October 12, 2016, this court issued a preliminary injunction
enjoining Defendant Federal Election Commission
(“FEC”) from enforcing 11 C.F.R. § 102.14(a)
against Plaintiff Pursuing America's Greatness
(“PAG”) “in connection with its ownership
and operation of certain websites, none of which will solicit
contributions or otherwise conduct fundraising
activities.” ECF No. 31. Section 102.14(a) prohibits
unauthorized political committees from using the names of
federal candidates in any name under which the political
committee conducts activities, including the titles of
websites and social media pages. PAG now requests that this
court hold that section 102.14(a) violates the First
Amendment of the U.S. Constitution because the regulation is
not narrowly tailored to promote a compelling governmental
interest. The FEC seeks a finding that the regulation is
lawful and a dissolution of the preliminary injunction
currently in place.
court has considered the parties' pleadings, including
PAG's Motion for Summary Judgment, ECF No. 38 (“Pl.
Mot.”); FEC's Cross-Motion for Summary Judgment and
Opposition to PAG's Motion for Summary Judgment, ECF Nos.
40 & 41 (“Def. Mot.”); PAG's Opposition
to FEC's Motion for Summary Judgment and Reply in Support
of its Motion for Summary Judgment, ECF Nos. 42 & 43
(“Pl. Rep.”); and FEC's Reply in Support of
its Motion for Summary Judgment, ECF No. 45 (“Def.
Rep.”). Because the court finds that the FEC's
regulation is not narrowly tailored to promote a compelling
governmental interest, and that 11 C.F.R. § 102.14(b)(3)
is not severable from the remainder of the regulation, the
court hereby GRANTS PAG's motion for
summary judgment and DENIES FEC's
cross-motion for summary judgment.
LEGAL STANDARD FOR SUMMARY JUDGMENT
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular
parts of materials in the record.” Fed.R.Civ.P.
56(c)(1)(A). “A fact is ‘material' if a
dispute over it might affect the outcome of a suit under the
governing law; factual disputes that are ‘irrelevant or
unnecessary' do not affect the summary judgment
determination.” Holcomb, 433 F.3d at 895
(quoting Liberty Lobby, 477 U.S. at 248). “An
issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Id. (quotation marks and citation omitted); see
also Scott v. Harris, 550 U.S. 372, 380 (2007)
(“[W]hen the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the materials facts .
. . . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.”) (quotation marks and
REGULATORY AND PROCEDURAL BACKGROUND
Federal Election Campaign Act (“FECA”) requires
that an authorized political committee use the
candidate's name in its registered name but forbids an
unauthorized committee from using the candidate's name in
its registered name. Specifically, 52 U.S.C. §
30102(e)(4) provides: “The name of each authorized
committee shall include the name of the candidate who
authorized such committee . . . . In 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.” In enacting this provision,
Congress intended that “the average contributor or
voter be able to determine, by reading the committee's
name, on whose behalf the committee is operating.” H.R.
Rep. No. 95-982, at 11-12, 46 (1978).
implementing regulations, the FEC originally interpreted the
statutory provision as limiting the use of a candidate's
name only in the formal name under which the Political Action
Committee (“PAC”) registers with the FEC, and not
the names of its fundraising projects. Pursuing
America's Greatness v. FEC, 132 F.Supp.3d 23, 27
(D.D.C. 2016) (“PAG I”). The D.C.
Circuit upheld that construction as a reasonable
interpretation of the statute in Common Cause v.
FEC, 842 F.2d 436, 440-41 (D.C. Cir.
in 1992, based on concerns 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 amendments to § 102.14.
Special Fundraising Projects by Political Committees, 57 Fed.
Reg. 13, 056, 13, 057 (proposed Apr. 15, 1992). After it
considered the comments submitted in response to the NPRM,
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.” Special
Fundraising Projects and Other Use of Candidate Names by
Unauthorized Committees, 57 Fed. Reg. 31, 424, 31, 425 (July
15, 1992) (“1992 Explanation &
Justification”). As revised, 11 C.F.R. §
102.14(a), known as the PAC Name Prohibition, prohibits
unauthorized political committees, like PAG, from using:
“the name of any candidate in its name. For purposes of
this paragraph, ‘name' includes any name under
which a committee conducts activities, such as solicitations
or other communications, including a special project name or
years later, the FEC promulgated an exception to the PAC Name
Prohibition. See Special Fundraising Projects and
Other Use of Candidate Names by Unauthorized Committees, 59
Fed.Reg. 17, 267 (April 12, 1994) (“1994 Explanation
& Justification”). The exception, §
102.14(b)(3), allows an unauthorized committee to use a
candidate's name in its special project name if
“the title clearly and unambiguously shows opposition
to the named candidate.” In enacting this exception,
the FEC explained “that the potential for fraud and
abuse is significantly reduced in the case of such titles
[that clearly indicate opposition].” Id. at
court initially denied PAG's request for a preliminary
injunction, concluding that § 102.14(a) was neither a
prior restraint on speech nor a content-based speech
regulation, but instead was a permissible component of
“FECA's disclosure regime, ” imposing a
limited burden on speech. PAG I, 132 F.Supp.3d at
37-39. This court also rejected PAG's argument that the
regulation violated the Administrative Procedure Act
(“APA”). Id. at 36.
D.C. Circuit reversed and remanded, finding that the
regulation was a content-based speech ban. PAG II,
831 F.3d at 512. It explained:
On its face, section 102.14 draws distinctions based solely
on what PAG says. As an unauthorized committee, PAG can use a
candidate's name in a title of a communication only if
the title demonstrates opposition to the candidate. In other
words, to know whether to apply section 102.14, the FEC must
examine the content of the title of PAG's website or
Facebook page and ask whether the title supports or opposes
the candidate. That is content-based discrimination pure and
Id. at 509. (quotation marks and citations omitted).
The Court further found that “[b]ecause section
102.14(a) restricts political speech based on its content,
the FEC may enforce the regulation only if it passes strict
scrutiny.” Id. at 510.
analyzing the first strict scrutiny requirement-that the law
advances a compelling governmental ...