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Pursuing America's Greatness v. Federal Election Commission

United States District Court, District of Columbia

March 21, 2019

PURSUING AMERICA'S GREATNESS, Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         On 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.

         The 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.

         I. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Summary 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 citation omitted).

         II. REGULATORY AND PROCEDURAL BACKGROUND[1]

         A. Regulatory Background

         The 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).

         In its 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. 1988).[2]

         Subsequently, 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 other designation.”

         Two 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 17, 269.

         B. Procedural Background

         This 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.

         The 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 simple.

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.

         In analyzing the first strict scrutiny requirement-that the law advances a compelling governmental ...


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