Pursuing America's Greatness v. Federal Election Commission

831 F.3d 500, 2016 U.S. App. LEXIS 13979, 2016 WL 4087943
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 2, 2016
Docket15-5264
StatusPublished
Cited by214 cases

This text of 831 F.3d 500 (Pursuing America's Greatness v. Federal Election Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pursuing America's Greatness v. Federal Election Commission, 831 F.3d 500, 2016 U.S. App. LEXIS 13979, 2016 WL 4087943 (D.C. Cir. 2016).

Opinion

GRIFFITH, Circuit Judge:

The Federal Election Commission prohibits unauthorized political committees, like Pursuing America’s Greatness, from using candidates’ names in the titles of their websites and social media pages. Pursuing America’s Greatness sought a preliminary injunction against this rule, which the district court denied. We reverse the district court because the restriction, as applied to Pursuing America’s Greatness, is a content-based ban on speech that likely violates the First Amendment.

I

Pursuing America’s Greatness (PAG) is a political committee that works for the election of federal officeholders. As a political committee, PAG must comply with the Federal Election Campaign Act (FECA), 52 U.S.C. §§ 30101-26, 30141-46, and the FEC’s implementing regulations. This case deals with one set of those rules: naming restrictions for political committees.

FECA creates two baskets of naming restrictions, one for committees that are “authorized” by a candidate to receive or spend money on his behalf, and another for committees that are not so authorized. Id. § 30101(6) (defining “authorized committee”). An authorized committee must use the candidate’s name in its name. Id. § 30102(e)(4). Unauthorized committees may not. Id. PAG is an unauthorized committee and cannot include any candidate’s *504 name in its own name. To illustrate the difference, consider two committees that supported the presidential bid of former Governor Mike Huckabee this election cycle. Huckabee’s authorized committee is called “Huckabee for President.” In contrast, Huckabee’s name appears nowhere in PAG’s name, even though PAG also supported the former Governor’s bid.

Although FECA’s naming rules reach only committee names, the FEC also restricts the names of committee projects. 11 C.F.R. § 102.14(a) (extending FECA’s naming requirements to “any name under which a committee conducts activities, such as solicitations or other communications, including a special project name”). According to the FEC, a committee’s projects include online projects, such as websites or social media pages. See FEC Advisory Op. 2015-04, 2015 WL 4480266, at *2 (July 16, 2015); FEC Advisory Op. 1995-09, 1995 WL 247474, at *5 (Apr. 21, 1995). The naming restrictions apply whether or not a committee’s project involves fundraising, because the FEC sees the “potential for confusion” as “equally great in all types of committee communications.” FEC Advisory Op. 2015-04, 2015 WL 4480266, at *2 (quoting Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 57 Fed. Reg. 31,424, 31,425 (July 15,1992)).

But the FEC does not apply these rules to all committee projects. There is an exception that allows unauthorized committees to use candidate names in titles that “clearly and unambiguously” show opposition to the named candidate, 11 C.F.R. § 102.14(b)(3), because “the potential for fraud and abuse is significantly reduced.” Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 59 Fed. Reg. 17,267, 17,269 (Apr. 12, 1994). For instance, the FEC gave the example of a project titled “Citizens Fed Up with Doe.” Id. There would be little risk that the public would think candidate Doe authorized the project’s work.

Which brings us to the instant dispute. To support Governor Huckabee’s most recent run for the White House, PAG used a website and a Facebook page named “I Like Mike Huckabee,” which PAG worried would run afoul of the FEC’s naming rules. PAG sought a preliminary injunction to prevent the FEC from enforcing those rules, invoking the First Amendment and the Administrative Procedure Act. The district court denied PAG’s motion. Pursuing America’s Greatness v. FEC, 132 F.Supp.3d 23, 44 (D.D.C. 2015). .

PAG timely appealed, and we have jurisdiction under 28 U.S.C. § 1292(a)(1). We reverse the district court, concluding that PAG is entitled to a preliminary injunction because there is a substantial likelihood that, as applied to PAG, the FEC’s naming restrictions in section 102.14(a) violate the First Amendment.

II

At the outset, we must address two threshold issues. First, the FEC contends that PAG lacks a continuing interest in this case because Governor Huckabee has suspended his presidential campaign and PAG may now use his name in its online activities. Because our jurisdiction is limited to live cases or controversies, U.S. Const, art. Ill, § 2, cl. 1, we cannot “retain jurisdiction over cases in which one ' or both of the parties plainly lack a continuing interest.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (“[A]n appeal should ... be dismissed as moot when, by virtue *505 of an intervening event, a court of appeals cannot grant ‘any effectual relief whatever’ in favor of the appellant.” (citation omitted)).

We disagree with the FEC. Governor Huckabee is not the only candidate that PAG hopes to support this cycle. Rather, PAG intends to use the names of candidates still running for federal office in the titles of several other websites and Face-book pages. For example, PAG will use the title “I Like Kelly Ayotte” in its online support for Senator Kelly Ayotte and similar titles for Senator Richard Burr and Congressman David Young. Although the FEC argues that PAG has not financially supported Senator Ayotte, Senator Burr, or Congressman Young as it did Governor Huckabee, PAG’s expenditures are irrelevant to PAG’s interest in this case: its ability to operate websites and social media pages with titles forbidden by the FEC. PAG’s intent to continue violating section 102.14(a) keeps this case alive. Cf. Unity08 v. FEC, 596 F.3d 861, 864 (D.C. Cir. 2010) (holding that controversy was not moot even though group stopped participating in 2008 election because group had a “clear and definite intent to resume its activities ... for the 2012 presidential election”).

We also conclude that PAG has standing to challenge section 102.14. To have standing, PAG must show, among other things, that its injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). PAG asks us to redress its injury by striking section 102.14’s naming restrictions, which prevent PAG from using candidate names as it would like. The FEC recasts PAG’s challenge, however, as contesting only a subset of section 102.14.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
831 F.3d 500, 2016 U.S. App. LEXIS 13979, 2016 WL 4087943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pursuing-americas-greatness-v-federal-election-commission-cadc-2016.