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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

PURSUING AMERICA’S GREATNESS, )

)

Plaintiff, )

)

v. ) Civil Action No. 15-cv-1217 (TSC)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

MEMORANDUM OPINION

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 

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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). 

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II. REGULATORY AND PROCEDURAL BACKGROUND1

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

 

 1 Most of the relevant background is contained in Pursuing America’s Greatness v. FEC, 132 F. 

Supp. 3d 23, 26–31 (D.D.C. 2015) (“PAG I”) and Pursuing America’s Greatness v. FEC, 831 

F.3d 500, 503–04 (D.C. Cir. 2016) (“PAG II”) and will not be repeated here. 

2 The Court of Appeals in Common Cause 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.’” PAG I, 132 F. Supp. 

3d at 27–28 (quoting Common Cause, 842 F.2d at 440–41). 

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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 

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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 interest—the Court of Appeals stated: 

We assume that the government has a compelling interest in avoiding the type of voter 

confusion identified by the FEC. Here, the FEC reasonably fears that voters might 

mistakenly believe an unauthorized committee’s activities are actually approved by a 

candidate if the committee uses the candidate’s name in its title. 

Id. (citation omitted). However, the Court found that the regulation likely failed the second strict 

scrutiny requirement—that the law is narrowly tailored—because there was “a substantial 

likelihood that section 102.14 [was] not the least restrictive means to achieve the government’s 

interest.” Id. Narrow tailoring requires that “[i]f a less restrictive alternative for achieving that 

interest exists, the government must use that alternative.” Id. (quotation marks and citation

omitted). As the Court of Appeals noted, “the FEC could require a large disclaimer at the top of 

the websites and social media pages of unauthorized committees that declares, ‘This Website Is 

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Not Candidate Doe’s Official Website.’ The Supreme Court regularly views such disclosure 

requirements as less restrictive alternatives to ‘flat bans’ on speech.” Id. (citations omitted). The 

Court of Appeals found “no evidence that larger or differently worded disclosures would be less 

effective at curing fraud or abuse than a ban on speech” and that “the FEC [did not] make an 

effort to explain why such disclosures would be more burdensome.” Id. at 511. Explaining that 

“[w]here the ‘record is silent as to the comparative effectiveness of . . . two alternatives’—one of 

which burdens more speech than the other—the more burdensome restriction cannot survive 

strict scrutiny,” id. (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803, 826 (2000)), the 

Court of Appeals concluded that “there is a substantial likelihood that section 102.14 fails strict 

scrutiny and violates the First Amendment as applied to PAG.” Id. 

The Court of Appeals also found that because “the FEC reasonably applied the naming 

requirements of section 102.14 to an unauthorized committee’s websites and social media 

pages,” PAG was “unlikely to succeed on its APA challenge.” Id. at 506.

Accordingly, the Court of Appeals reversed this court’s denial of the motion for a 

preliminary injunction and remanded “for the district court to enter a preliminary injunction 

enjoining the application of 11 C.F.R. § 102.14(a) against PAG’s websites and social media 

pages.” Id. at 512. 

In its motion for summary judgment, PAG has not pursued either its prior restraint or 

APA claims. PAG’s motion for summary judgment argues only that section 102.14 is an 

unconstitutional content-based speech ban. Accordingly, PAG’s APA and prior restraint claims

are waived. See Evans v. Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013). Therefore, the sole 

question before the court on summary judgment is whether the FEC has carried its burden of 

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proving that section 102.14(a) is narrowly tailored to promote a compelling governmental

interest.3 

III. ANALYSIS

A. Strict Scrutiny

A content-based law is constitutional only if it survives strict scrutiny. Reed v. Town of 

Gilbert, 135 S. Ct. 2218, 2231 (2015). Strict scrutiny requires that the law “furthers a 

compelling interest and is narrowly tailored to achieve that interest.” Id. (quotation marks and 

citations omitted). “A statute is narrowly tailored if it targets and eliminates no more than the 

exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988)

(citation omitted). “[I]t is the rare case in which a State demonstrates that a speech restriction is 

narrowly tailored to serve a compelling interest.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 

1665–66 (2015) (quotation marks and citations omitted). “If a less restrictive alternative would 

serve the [g]overnment’s purpose, the legislature must use that alternative.” Playboy Entm’t 

Grp., Inc., 529 U.S. at 813. “When the government restricts speech, the government bears the 

burden of proving the constitutionality of its actions,” id. at 816, by showing both that the law 

furthers a compelling governmental interest and that the law is narrowly tailored. “When a 

plausible, less restrictive alternative is offered to a content-based speech restriction, it is the 

[g]overnment's obligation to prove that the alternative will be ineffective to achieve its goals.” 

Id. The government “‘must present more than anecdote and supposition’ to support [its] 

 3 The FEC has preserved “its argument that the regulation is a disclosure provision that is 

reviewed for exacting scrutiny, which requires a substantial relation between the disclosure 

requirement and a sufficiently important governmental interest until such time as the Court of 

Appeals has an opportunity to consider the question on full merits review.” Def. Mot. at 15–16 

(internal quotation marks and citations omitted). 

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regulation subject to strict scrutiny.” PAG II, 831 F.3d at 511 (quoting Playboy Entm’t Grp., 

Inc., 529 U.S. at 822). 

B. The FEC Has Demonstrated A Compelling Interest 

In promulgating section 102.14, the FEC determined that it had “substantial evidence” 

that the use of a candidate’s name in the fundraising project of an unauthorized committee often 

leads potential contributors to “wrongly believe that their contribution will be used in support of 

the candidate(s) named in the project titles.” 1994 Explanation & Justification, 59 Fed. Reg. at 

17,268. The rulemaking record amply supports this conclusion, and the case law warrants a 

finding that avoiding this potential for voter confusion is a compelling governmental interest. 

Numerous examples in the record support the FEC’s decision to revise § 102.14, after 

Common Cause, in response to its “increasing[] concern[s] over the possibility for confusion or 

abuse.” Id. For example, the title “American’s [sic] for Reagan” misled a United States Senator 

into believing that the group was associated with Ronald Reagan’s presidential campaign, even 

though the unauthorized committee “Americans for Change” was unaffiliated with the campaign. 

ECF No. 40, Defendant’s Statement of Material Facts (“Def. SMF”) ¶¶ 43–44. In another 

example, in 1988 President George H.W. Bush’s campaign committee reported that an 

unauthorized committee had created a program named “Americans for Bush” which raised over 

$10 million, despite the efforts of the candidate’s authorized committee to prevent the 

unauthorized committee from using the name “Americans for Bush.” The authorized committee 

expressed its “concern [] that these projects have the potential to mislead contributors into 

believing that the money raised will go directly to the candidate for whom they are named.” Id.

¶ 47. Similarly, President Bush’s authorized committee demanded that another unauthorized 

group, Presidential Victory Committee, which was operating a project called “Citizens for Bush”

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and had raised over a quarter million dollars using that name, cease all activities under that name 

or any other name that would confuse people into believing that its activities were associated 

with the official campaign. Id. ¶ 48. A similar tactic was used in 1988 when Representative 

Jack P. Kemp was a presidential candidate. Id. ¶ 45. An unauthorized committee, the 

Conservative Victory Committee, raised hundreds of thousands of dollars through a project 

called “Americans for Kemp.” Id. None of the money raised actually supported Mr. Kemp’s 

candidacy. Id. 

The rulemaking record also included a 1992 NBC Dateline report, which stated “that 

thousands of Americans, most of them elderly, ha[d] been fooled” by a man who raised more 

than $9 million through committees using candidates’ names. Id. ¶ 49. For instance, Dateline 

investigators found that an elderly woman “sent the Reagan Political Victory Fund almost 

$25,000 after receiving [a]ppeals for money to help keep the legacy of Ronald Reagan alive 

. . . .” Id. (internal quotation marks omitted) (alteration in original). The Reagan Political 

Victory Fund was not authorized to use Reagan’s name. Id. Similarly, “95-year-old Dana 

Chatlin of Iowa . . . reportedly sent the Reagan Political Victory Fund all the money she had put 

aside for a nursing home,” id. ¶ 125 (internal quotation marks omitted), and Dagmar Cantola sent 

the Reagan Political Victory Fund more than $3,000 after receiving letters from the person who 

ran the fund stating that he would be forced to resign unless he got more money, id. ¶ 126. The 

Dateline report “found that only about one percent of the $9 million dollars that the committees 

raised went directly to any candidate.” Id. ¶ 127. 

Therefore, the FEC justifiably believed that the evidence showed “the potential for 

confusion or abuse when an unauthorized committee uses a candidate’s name in the title of a 

special fundraising project, or other designation under which the committee operates.” 1994 

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Explanation & Justification, 59 Fed. Reg. at 17,268 (discussing these examples). See also PAG 

II, 831 F.3d at 510 (“Here, the FEC reasonably fears that voters might mistakenly believe an 

unauthorized committee’s activities are actually approved by a candidate if the committee uses 

the candidate’s name in its title.”). 

PAG essentially concedes that the record demonstrates that people are confused when 

unauthorized committees use candidates’ names in special projects. It mainly argues that the 

justification for the PAC Name Prohibition does not extend “beyond the fundraising context.” 

Pl. Mot at 26. See also Pl. Rep. at 6–7 (asserting that “the FEC has not proven the existence of a 

problem in need of a content-based speech ban, namely, confusion among the electorate related 

to the use of candidate names in ‘special projects’ that do not fundraise or solicit contributions”). 

This argument has two weaknesses. First, PAG never explains, as a logical matter, why 

an unauthorized committee’s ultimate goal—whether to solicit funds or to prime people to 

support a candidate—affects the likelihood that a reader will be confused. If someone is misled

by a project’s name because it includes the candidate’s name, confusion will result whether or 

not funds are being solicited. Thus, PAG identifies a distinction between fundraising and nonfundraising projects without demonstrating a functional difference between the two categories.

Second, the evidence shows that the type of confusion that could occur in the fundraising 

context from the use of a candidate’s name also arises in the purely informational context. As 

noted previously, the record is replete with numerous comments on the “I like Mike Huckabee” 

Facebook page directed towards Governor Huckabee. PAG I, 132 F. Supp. 3d at 35.4

 Examples 

of the posts include: “Amen! You would really change some things, in Washington. God bless 

 4 While many of these comments were posted before PAG took over the Facebook page, a 

significant number were posted after PAG took control. PAG I, 132 F. Supp. 3d at 35. 

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you.”; “We just need a leader and you are the leader we need!!!!”; “You have my vote for 

President”; “You are a good man Mike, you have my vote!!!!!”; “Mike we would have been 

better off years ago with you in the White House.” Def. SMF ¶ 95. These examples demonstrate

that viewers of the “I like Mike Huckabee” Facebook page confused it with an authorized 

Huckabee committee on a purely informational basis. Although PAG argues it is unclear

“whether persons who posted these comments were actually confused by PAG’s Facebook 

page,” Pls. Mot. at 28, the comments themselves show an attempt to communicate with Mr. 

Huckabee. 

Section 102.14 reflects the FEC’s well-grounded concern that people will be misled by 

unauthorized committees using a candidate’s name, and advances the government’s “compelling 

interest in protecting voters from confusion and undue influence.” Burson v. Freeman, 504 U.S. 

191, 199 (1992) (plurality opinion). In Burson, the Supreme Court, applying strict scrutiny,

upheld a Tennessee statute prohibiting solicitation of votes and the display or distribution of 

campaign materials within 100 feet of the entrance to a polling place. The Court explained: 

Tennessee argues that its restriction protects the right to vote in an election conduced 

with integrity and reliability. The interests advanced by Tennessee obviously are 

compelling ones. This Court has recognized that the right to vote freely for the candidate 

of one's choice is of the essence of a democratic society. Indeed, no right is more 

precious in a free country than that of having a voice in the election of those who make 

the laws under which, as good citizens, we must live. Other rights, even the most basic, 

are illusory if the right to vote is undermined. Accordingly, this Court has concluded that 

a State has a compelling interest in protecting voters from confusion and undue influence. 

See Eu [v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 228–229

(1989)]. The Court also has recognized that a State ‘indisputably has a compelling 

interest in preserving the integrity of its election process.’ Id., at 231. The Court thus has 

‘upheld generally applicable and evenhanded restrictions that protect the integrity and 

reliability of the electoral process itself.’” Anderson v. Celebrezze, 460 U.S. 780, 788, 

n.9 (1983) (collecting cases). 

Id. (plurality opinion) (various internal quotations, citations and brackets omitted) (footnotes 

omitted). The Court noted that the government has an “important and legitimate interest in voter 

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education.” Anderson, 460 U.S. at 796 (1983). In furtherance of these goals, the Supreme Court 

has emphasized that the government also has an interest in “provid[ing] the electorate with 

information about the sources of election-related spending.” McCutcheon v. FEC, 572 U.S. 185, 

223 (2014) (internal quotation marks omitted) (alteration in original). Therefore, 

“[i]dentification of the source of advertising may be required as a means of disclosure, so that the 

people will be able to evaluate the arguments to which they are being subjected.” First Nat’l 

Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978). 

Section 102.14(a) advances the goal of preventing confusion about whether a candidate 

supports a message communicated by an unauthorized committee and whether a monetary 

contribution in response to an appeal by an unauthorized committee will be directed to the 

candidate’s official campaign. These interests fit squarely within the Supreme Court’s firmly 

established tradition of finding a compelling governmental interest in protecting the “integrity 

and reliability of the electoral process” by eliminating voter confusion, including through a 

requirement that the electorate be informed accurately about the source of a political message. 

Although PAG argues that Burson’s concern with avoiding voter confusion is limited to 

the polling place, see Pl. Rep. at 7–8, the interests identified by the Supreme Court indicate a 

broader appreciation of the compelling interest in protecting the electorate from confusion. See, 

e.g., Eu, 489 U.S. at 228 (noting that “the State has a legitimate interest in fostering an informed 

electorate” by protecting “voters from confusion and undue influence”); Anderson, 460 U.S. at

796 (“There can be no question about the legitimacy of the State’s interest in fostering informed 

and educated expressions of the popular will in a general election.”). The government’s interest 

in preventing confusion in the voting process surely extends to combating subtle yet effective 

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forms of confusion about a candidate’s position and who will benefit from a monetary 

contribution. 

In arguing that § 102.14(a) does not advance a compelling interest, PAG misreads United 

States v. Alvarez, 567 U.S. 709 (2012). See Pl. Rep. at 8. The Supreme Court in Alvarez held 

that the speech restrictions imposed by the Stolen Valor Act (which made it a crime to 

fraudulently claim to be a recipient of certain military decorations or awards) were not actually 

necessary to achieve the government’s interest in promoting respect and gratitude for military 

service. Alvarez, 567 U.S. at 725 (“The link between the Government's interest in protecting the 

integrity of the military honors system and the Act's restriction on the false claims of liars like 

respondent has not been shown.”) (plurality opinion); id. at 739 (“The Government has provided 

no convincing explanation as to why a more finely tailored statute would not work.”) (Breyer, J., 

concurring in judgment). This holding does not call into question the Supreme Court’s repeated 

acknowledgement that preventing electorate confusion is a compelling governmental interest. 

Similarly, PAG’s reliance on McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), is

unavailing. In McIntyre the Supreme Court struck down a state disclosure statute because of its 

“extremely broad prohibition.” Id. at 351. The almost limitless statute in McIntyre is not 

comparable to a regulation designed to prevent a demonstrated type of voter confusion. 

C. The Regulation Is Not Narrowly Tailored 

In PAG II the D.C. Circuit held that because the FEC had “not shown that its speech ban 

is the least restrictive means of achieving the government’s interest, there is a substantial 

likelihood that section 102.14 fails strict scrutiny and violates the First Amendment as applied to 

PAG.” PAG II, 831 F.3d at 511. The Circuit found that “[t]he FEC offered no evidence that 

larger or differently worded disclosures would be less effective at curing fraud or abuse than a 

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ban on speech.” Id. at 510–11. Therefore, the decisive question is whether the FEC has 

sufficiently expanded the record, beyond what it presented to the Court of Appeals, with 

evidence demonstrating that such disclosures would be a less effective or more burdensome

alternative to § 102.14. 

PAG has proposed two examples of additional or different disclosure requirements. First, 

PAG suggests “an additional disclaimer at the top of a website (in addition to the ‘paid for by’ 

and ‘not authorized by any candidate or candidate’s committee’ disclaimers required at the 

bottom of the website) declaring: ‘This Website Is Not Candidate Doe’s Official Website.’” Pl. 

Mot. at 31 (citations omitted). Alternatively, PAG points to amici’s proposal during litigation 

before the Court of Appeals that “the FEC could require that an unauthorized committee’s use of 

a candidate’s name must clearly indicate it is a third party.” Id. (citations omitted). 

In claiming that it has successfully expanded the record, the FEC points out that during 

the rulemaking: 1) a national committee observed that a disclaimer would have to be large to be 

effective; 2) one Commissioner expressed concern that some disclaimers could be effectively 

buried; and 3) Commission staff warned that requiring a larger disclosure might upset the 

regulated community by telling them “how to draft [their] letters.” Def. Mot. at 32. These 

observations are anecdotal, not based on empirical evidence, and simply speculate about 

potential problems rather than analyze whether the proposed procedures would be feasible and/or 

effective. Moreover, a concern that some political parties or candidates might object to 

disclosures does not constitute evidence that those disclosures would be ineffective. 

The FEC also notes that the Commission agreed with its staff that larger disclaimers 

“‘could be more burdensome . . . while still not solving the potential for fraud and abuse in this 

area.’” Id. (quoting 1994 Explanation & Justification, 59 Fed. Reg. at 17,268). However, the 

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FEC has not shown that these conclusions were based on any actual evidence or study of larger 

and different disclosures. In addition to the rulemaking evidence, the FEC identifies several 

instances in which some disclaimers failed to prevent viewer confusion. See id. at 34. But even 

if true, such isolated, anecdotal evidence is insufficient for the FEC to carry its burden. “[T]he 

FEC must present more than anecdote and supposition to support a regulation subject to strict 

scrutiny.” PAG II, 831 F.3d at 511 (quotation marks and citations omitted). 

The FEC cannot offset its failure to present evidence that its regulation is the least 

restrictive means of achieving the government’s interest by relying on “common sense” to 

demonstrate that different or additional disclosures would not effectively prevent confusion. See 

Def. Mot. at 30 (arguing that “the Commission may rely on ‘common sense’ and need not 

‘empirically’ prove that the regulation advances its compelling interest”). The role of common 

sense in this context is more limited than the FEC supposes. As the D.C. Circuit has explained,

common sense is useful in showing the validity of “unprovable assumptions”:

Furthermore, while [i]t is true that in some First Amendment cases the Supreme Court 

has demanded an evidentiary showing in support of a state's law, [i]t is also true that in 

other First Amendment cases the Supreme Court has found various unprovable 

assumptions sufficient to support the constitutionality of state and federal laws. 

Nat'l Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 15–16 (D.C. Cir. 2009) (quotation marks omitted) 

(citations omitted) (alterations in original). For instance, in Burson, on which the FEC relies, the 

Supreme Court used “simple common sense” to find that “some restricted zone around polling 

places is necessary to protect” ballot secrecy. Burson, 504 U.S. at 211 (plurality opinion). See 

id. at 208 (holding “that some restricted zone around the voting area is necessary to secure the 

State’s compelling interest”) (plurality opinion) (emphasis in original). Unlike in Burson—

where the need for some restricted zone around the ballot box is obvious—the crucial 

determination in this case—whether different disclosures would eliminate confusion as 

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effectively as the name prohibition—is not “unprovable,” but susceptible to empirical analysis. 

Accordingly, the FEC has failed to carry its burden to demonstrate that the regulation is narrowly 

tailored. 

D. 11 C.F.R. § 102.14(b)(3) Is Not Severable 

The FEC argues that even if this court finds § 102.14 constitutionally infirm, the 

appropriate remedy would be to strike § 102.14(b)(3) and uphold the remainder of the regulation 

because without subsection (b)(3) the regulation is no longer a content-based restriction on 

speech. “Whether the offending portion of a regulation is severable depends upon the intent of 

the agency and upon whether the remainder of the regulation could function sensibly without the 

stricken provision.” MD/DC/DE Broadcasters Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001) 

(citation omitted) (emphasis in original). When evaluating the intent of the agency, the court 

must be able to find “without any substantial doubt that the agency would have adopted the 

severed portion on its own.” ACA Int'l v. FCC, 885 F.3d 687, 708 (D.C. Cir. 2018) (quotation 

marks and citation omitted) (emphasis added).

Although the FEC originally promulgated the regulation without the exception to the 

general name prohibition, it subsequently concluded that its regulation, without the exception, 

reached too far, and revised the regulation to add subsection (b)(3) after finding that “[t]here is 

no danger of confusion or abuse inherent in the use of a candidate’s name by a committee or 

project which opposes the candidate.” 59 Fed. Reg. at 17,269 (quotation marks omitted).

Accordingly, the court cannot find “without any substantial doubt,” ACA Int’l, 885 F.3d at 708,

that the FEC would have adopted the remaining portion of the regulation on its own. 

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IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is hereby 

GRANTED and Defendant’s Motion for Summary Judgment is hereby DENIED. The court 

hereby declares that 11 C.F.R. § 102.14(a) violates the First Amendment of the U.S. 

Constitution. The court further permanently enjoins the FEC from enforcing 11 C.F.R. § 

102.14(a). 

A corresponding order will issue separately. 

Date: March 21, 2019

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge

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