ORAL ARGUMENT SCHEDULED FOR FEBRUARY 23, 2016

No. 15-5264

_______________________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

PURSUING AMERICA’S GREATNESS,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

_______________________________________________

On Appeal from the United States District Court 

for the District of Columbia

_______________________________________________

BRIEF FOR THE FEDERAL ELECTION COMMISSION

_______________________________________________

Daniel A. Petalas

Acting General Counsel

dpetalas@fec.gov

Lisa J. Stevenson 

Deputy General Counsel – Law

lstevenson@fec.gov

Kevin Deeley 

Acting Associate General Counsel

kdeeley@fec.gov

January 13, 2016

Erin Chlopak 

Acting Assistant General Counsel

echlopak@fec.gov 

Charles Kitcher

Attorney

ckitcher@fec.gov

FEDERAL ELECTION 

COMMISSION

999 E Street, NW

Washington, DC 20463 

(202) 694-1650

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), appellee the Federal Election Commission 

submits this Certificate as to Parties, Rulings, and Related Cases.

(A) Parties and Amici. Pursuing America’s Greatness (“PAG”) is the 

plaintiff before the district court and is the appellant in this Court. The Federal 

Election Commission (“Commission”) is the defendant before the district court and 

is the appellee in this Court. The Pacific Legal Foundation and James Madison 

Center for Free Speech have filed an amicus brief in support of PAG in this Court.

(B) Rulings Under Review. PAG appeals the September 24, 2015 

Memorandum Opinion and Order of the Honorable Tanya S. Chutkan of the 

United States District Court for the District of Columbia denying PAG’s motion 

for a preliminary injunction. The Memorandum Opinion is reported at ___ F. 

Supp. 3d ___, 2015 WL 5675428 (D.D.C. Sept. 24, 2015). A copy of the slip 

opinion is included in the Joint Appendix at pages J.A. 258-91.

(C) Related Cases. The Commission knows of no related cases. Stop 

Hillary PAC v. FEC, No. 15-1208 (E.D. Va.), identified in PAG’s Certificate as to 

Parties, Rulings, and Related Cases, is not a related case under Circuit Rule 

28(a)(1)(C), as PAG acknowledges, because it is not currently pending before the 

Fourth Circuit Court of Appeals. 

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TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF JURISDICTION .................................................1

COUNTERSTATEMENT OF ISSUE PRESENTED..........................................1

APPLICABLE STATUTES AND REGULATIONS ..........................................1

COUNTERSTATEMENT OF THE CASE..........................................................1

I. STATUTORY AND REGULATORY BACKGROUND .........................1

A. The Federal Election Commission ..................................................1

B. FECA’s Name Identification Requirement.....................................2

C. Common Cause v. FEC ...................................................................4

D. The Commission’s Revisions of 11 C.F.R. § 102.14......................7

E. The FEC’s Application of the Name Identification 

 Requirement ....................................................................................9

II. FACTUAL AND PROCEDURAL BACKGROUND............................ 12

A. PAG .............................................................................................. 12

B. Procedural History........................................................................ 14

SUMMARY OF ARGUMENT......................................................................... 18

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ARGUMENT..................................................................................................... 22

I. STANDARD OF REVIEW..................................................................... 22

II. THE DISTRICT COURT CORRECTLY DETERMINED THAT 

PAG IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS 

FIRST AMENDMENT CLAIMS ........................................................... 23

A. The Name Regulation Is a Disclosure Requirement..................... 24

B. The District Court Correctly Found That the Name 

Identification Requirement Is Substantially Related to the 

Government’s Important Interests in Limiting Confusion, 

Fraud, and Abuse........................................................................... 27

1. Disclosing to Voters and Contributors Whether a 

Political Committee Is Authorized by a Candidate 

Serves Important Governmental Interests........................... 28

2. The Name Identification Requirement is Substantially 

Related to the Government’s Important Interests in 

Limiting Confusion, Fraud, and Abuse Relating to 

Whether Committees Speak on Behalf of Candidates........ 36

C. PAG’s Challenge to the Regulation as a Content-Based 

Speech Restriction Fails................................................................ 40

1. PAG’s Content-Based Argument Seeks Relief That 

Will Not Redress Its Purported Injury ................................ 41

2. The Regulation is Not a Content-Based Speech 

Restriction ........................................................................... 43

D. The Regulation Is Not a Prior Restraint........................................ 49

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III. THE DISTRICT COURT CORRECTLY FOUND THAT PAG 

WAS UNLIKELY TO SUCCEED ON ITS APA CHALLENGE ......... 52

IV. THE DISTRICT COURT CORRECTLY FOUND THAT NONE 

OF THE OTHER FACTORS SUPPORTED ENTERING A

PRELIMINARY INJUNCTION............................................................. 56

A. PAG Failed to Demonstrate Irreparable Injury............................. 56

B. The Relief PAG Requests Would Harm the Government 

and Undercut the Public Interest................................................... 59

CONCLUSION.................................................................................................. 61

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TABLE OF AUTHORITIES

Page

Cases

Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014)...................................... 22, 23

Alexander v. United States, 509 U.S. 544 (1993).............................................. 50

Am. Frozen Food Inst. v. Mathews, 413 F. Supp. 548 (D.D.C. 1976),

 aff’d sub nom., Am. Frozen Food Inst. v. Califano, 555 F.2d 1059 

 (D.C. Cir. 1977) ............................................................................................ 52 

Am. Library Ass’n v. Barr, 956 F.2d 1178 (D.C. Cir. 1992)............................. 50

Am. Meat Inst. v. U.S. Dep’t of Agric., 746 F.3d 1065 (D.C. Cir. 2014), 

 reinstated in relevant part by 760 F.3d 18 (D.C. Cir. 2014)........................ 23

Anderson v. Celebrezze, 460 U.S. 780 (1983)................................................... 36

Buckley v. Valeo, 424 U.S. 1 (1976).................................... 20, 27, 39, 44, 46, 52

Burson v. Freeman, 504 U.S. 191 (1992).................................................... 36, 46

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 

 (D.C. Cir. 2006) ............................................................................................ 57

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 467 U.S. 837 (1984).................................................................................. 6, 55

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

 Columbia, 919 F.2d 148 (D.C. Cir. 1990).................................................... 58

*Citizens United v. FEC, 558 U.S. 310 (2010) ............. 25, 27, 28, 31, 34, 35, 36

 43, 50-51

*Common Cause v. FEC, 842 F.2d 436

(D.C. Cir. 1988).................... 4, 5, 6, 16, 18, 24, 25, 26, 28, 31, 37, 44, 53, 55

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Davenport v. Int’l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356

 (D.C. Cir. 1999) ....................................................................................... 22-23

Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009)............... 22

Elrod v. Burns, 427 U.S. 347 (1976) ................................................................. 57

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27(1981) ........ 6, 55

FEC v. National Conservative Political Action Committee, 

 470 U.S. 480 (1985)...................................................................................... 39

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).............................. 35

*Galliano v. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) .......... 16, 24, 26

John Doe No. 1 v. Reed, 561 U.S. 186 (2010)................................................... 34

K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988).......................................... 42

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................... 42-43

McConnell v. FEC, 540 U.S. 93 (2003)................................................. 27, 34, 42

*McCutcheon v. FEC, 134 S. Ct. 1434 (2014).................... 28, 32, 34, 35, 36, 46

Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147 (D.C. Cir. 2010) ................. 43

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

 463 U.S. 29 (1983)........................................................................................ 56

Nat’l Treasury Emps. Union v. United States, 927 F.2d 1253 

 (D.C. Cir. 1991) ............................................................................................ 57

Near v. Minnesota, 283 U.S. 697 (1931)..................................................... 50, 51

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................ 19, 40, 45, 46

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 1996) ................ 44, 45

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Sampson v. Murray, 415 U.S. 61 (1974) ........................................................... 56

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)..................................... 22, 23

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), 

cert. denied, 131 S. Ct. 553 (2010)............................................................... 35

*Stop Hillary PAC v. FEC, No. 15-1208, Mem. Op. and Order 

 (E.D. Va. Dec. 21, 2015) ............................................................ 26, 28, 39, 46

Stop This Insanity, Inc. Emp. Leadership Fund v. FEC, 902 F. Supp. 2d 23 

 (D.D.C. 2012), aff’d, 761 F.3d 10 (D.C. Cir. 2014)..................................... 60

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ............................................. 60

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), petition for cert. 

 filed sub. nom., Miller v. FEC, No. 15-428 (S. Ct. Oct. 2, 2015)................. 47

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984).............. 60

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)..................... 22, 23

Statutes and Regulations

Federal Election Campaign Act, 52 U.S.C. §§ 30101-30146...............................2

Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 

 § 102, 93 Stat. 1339 (1980)..............................................................................3

2 U.S.C. § 432(e)(4)..............................................................................................4

5 U.S.C. § 706.......................................................................................................1

28 U.S.C. § 1292(a)(1)..........................................................................................1

28 U.S.C. § 1331...................................................................................................1

52 U.S.C. § 30101(6)............................................................................................3

52 U.S.C. § 30101(17)....................................................................................... 12

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52 U.S.C. § 30102(e)(1)........................................................................................2

*52 U.S.C. § 30102(e)(4).........3, 4, 5, 6, 7, 16, 23, 26, 29, 31, 34, 46, 53, 54, 55

52 U.S.C. § 30106(a)(1)........................................................................................2

52 U.S.C. § 30106(b)(1) .......................................................................................2

52 U.S.C. § 30106(c) ............................................................................................2

52 U.S.C. § 30107(a)(7)........................................................................................2

52 U.S.C. § 30107(a)(8)........................................................................................2

52 U.S.C. § 30108.................................................................................................2

52 U.S.C. § 30109.................................................................................................2

52 U.S.C. § 30109(a)(8)(C) ..................................................................................4

52 U.S.C. § 30120.................................................................................................5

52 U.S.C. § 30120(a) ................................................................................... 24, 53

11 C.F.R. § 100.16 ............................................................................................. 12

11 C.F.R. § 100.5(e)(5).........................................................................................4

*11 C.F.R. § 102.14 ................................................................................. 7, 29, 43

11 C.F.R. § 102.14(a) (1980)......................................... 4, 7, 8, 15, 41, 48, 51, 56

11 C.F.R. § 102.14 (b) (1980)........................................................ 4, 8, 15, 41, 56

11 C.F.R. § 102.14(b)(2).......................................................................................4

11 C.F.R. § 102.14(b)(3)........................................................................ 41, 42, 48

11 C.F.R. § 104.7(b)(2)...................................................................................... 44

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11 C.F.R. § 110.11 ............................................................................................. 54

11 C.F.R. § 110.11(a)......................................................................................... 54

Miscellaneous

*FEC Advisory Op. 2015-04 (Collective Actions PAC), 2015 WL 4480266 

(July 16, 2015) ............................................................... 11, 15, 16, 25, 53, 54, 56

*FEC Advisory Op. 1995-09 (NewtWatch PAC), 1995 WL 247474 

 (Apr. 21, 1995)..................................................................................... 9-10, 54

FEC Advisory Op. 2013-13 (Freshman Hold’em JFC),

 2013 WL 6094229, (Nov. 14, 2013)............................................................. 10

*FEC, Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 57 Fed. Reg. 31,424 

(July 15, 1992) ....................................................................7, 8, 20-21, 31, 37, 38

*FEC, Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 59 Fed. Reg. 17,267 

(Apr. 12, 1994)....................................................... 8, 9, 29, 33, 38, 39, 45, 51, 55

Federal Election Campaign Act Amendments, 1979: 

 Hearing Before the Senate Comm. on Rules and Administration, 

 96th Cong., 1st Sess. 23 (1979) ............................................................... 3-4, 4

FEC, MUR 5889 (Republicans for Trauner), Conciliation Agreement (2007), 

http://eqs.fec.gov/eqsdocsMUR/0000677E.pdf............................................ 10

FEC, MUR 6213 (Decidedly Unhappy Mainstream Patriots Rejecting Evilmongering Incompetent Democrats PAC), Letter from Susan L. Lebeaux, 

FEC, to Benjamin L. Ginsberg, Patton Boggs, LLP, 

http://eqs.fec.gov/eqsdocsMUR/10044271813.pdf...................................... 11

FEC, MUR 6399 (Yoder for Congress), Certification (Apr. 28, 2011), 

 http://eqs.fec.gov/eqsdocsMUR/11044292473.pdf ...................................... 10

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Colby Itkowitz, Report: Actor Daniel Craig, a.k.a James Bond, donated to Bernie 

 Sanders’ super PAC. Where did his money go?, Wash. Post (Sept. 10, 2015), 

 https://www.washingtonpost.com/news/powerpost/wp/2015/09/10/ reportactor-daniel-craig-a-k-a-james-bond-donated-to-bernie-sanders-superpac-or-a-fraud/ ......................................................................................... 32-33

Alan Rappeport, Bernie Sanders Has a Fan in the James Bond Actor Daniel 

Craig, N.Y. Times (First Draft) (Sept. 10, 2016 3:58 p.m.), 

 http://www.nytimes.com/politics/first-draft/2015/09/10/bernie-sandershas-a-fan-in-the-james-bond-actor-daniel-craig/?_r=0 ................................ 33

D.C. Cir. R. 32(a)(2).......................................................................................... 44

_____________________

* Authorities upon which we chiefly rely are marked with asterisks.

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GLOSSARY

Administrative Procedure Act = APA

CAP Advisory Opinion = Federal Election Commission’s Advisory 

Opinion 2015-04 (Collective Actions PAC)

FEC = Federal Election Commission

FECA or Act = Federal Election Campaign Act

J.A. = Joint Appendix

PAG = Pursuing America’s Greatness

PAG’s Br. = Appellant Pursuing America’s Greatness’s 

Opening Brief

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COUNTERSTATEMENT OF JURISDICTION 

The district court has jurisdiction over this action pursuant to 28 U.S.C. 

§ 1331 and 5 U.S.C. § 706. On September 24, 2015, the district court denied 

Pursuing America’s Greatness’s (“PAG”) motion for a preliminary injunction. 

(J.A. 258-91.) PAG filed a timely notice of appeal on September 28, 2015. (J.A. 

296.) This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

COUNTERSTATEMENT OF ISSUE PRESENTED

Whether the district court abused its discretion or otherwise erred in denying

PAG’s motion for a preliminary injunction in light of PAG’s failure to demonstrate 

that it was likely to succeed on the merits of its claims, that it will be irreparably 

injured absent an injunction, that the balance of equities favored granting the 

injunction, and that an injunction would be in the public interest.

APPLICABLE STATUTES AND REGULATIONS

All applicable statutory provisions and regulations are contained in the Brief 

for PAG at pp. 3-12 of the Addendum.

COUNTERSTATEMENT OF THE CASE

I. STATUTORY AND REGULATORY BACKGROUND

A. The Federal Election Commission

The Federal Election Commission is the independent agency of the United 

States government with exclusive jurisdiction to administer, interpret, and civilly 

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enforce the Federal Election Campaign Act (“FECA” or “Act”), 52 U.S.C. 

§§ 30101-30146. The Commission is specifically empowered to “formulate 

policy” with respect to the Act, 52 U.S.C. § 30106(b)(1); “to make, amend, and 

repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” id.

§ 30107(a)(8); to issue advisory opinions construing the Act, id. §§ 30107(a)(7), 

30108; and to civilly enforce the Act, id. § 30109. By statute, no more than three 

of the FEC’s six Commissioners may be members of the same political party, and 

at least four votes are required for certain Commission actions, including, inter 

alia, rendering advisory opinions and developing and amending rules to implement 

FECA. Id. § 30106(a)(1), (c); id. § 30107(a)(7), (8).

B. FECA’s Name Identification Requirement

For thirty-five years, FECA has contained a name identification requirement 

compelling political committees to disclose, within very broad boundaries, whether 

they speak on behalf of a particular candidate or candidates. Under the Act, each 

candidate for federal office (other than a nominee for Vice President) is required to 

“designate in writing a political committee . . . to serve as the principal campaign 

committee of such candidate” within “15 days after becoming a candidate.” 52 

U.S.C. § 30102(e)(1). Candidates may also designate other “authorized” 

committees. Id. An “authorized committee” is “the principal campaign committee 

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or any other political committee authorized by a candidate . . . to receive 

contributions or make expenditures on behalf of such candidate.” Id. § 30101(6).

Given this central focus of the statutory framework on disclosing whether a 

political committee is speaking on behalf of a candidate, Congress mandated that, 

if a political committee is an authorized committee — i.e., it is a principal 

campaign committee or another authorized committee — then its name “shall 

include the name of the candidate who authorized” it. 52 U.S.C. § 30102(e)(4). 

And for the same reason, the statute correspondingly provides that “any political 

committee which is not an authorized committee . . . shall not include the name of 

any candidate in its name.” Id. The names “Huckabee for President, Inc.” and 

“Pursuing America’s Greatness” thus convey that while the former is an authorized 

committee of Mr. Huckabee, the latter is not.

When Congress added the name identification provision to the Act in 1980, 

it did so premised on the specific experience of the agency charged with 

administering the Act. Federal Election Campaign Act Amendments of 1979, Pub. 

L. No. 96-187, § 102, 93 Stat. 1339, 1346 (1980). Based on its past experience, 

the FEC had alerted Congress that “in some cases, it is difficult to determine which 

candidate a principal campaign committee supports. In such cases the committee 

name does not contain the candidate’s name as, for example, ‘Good Government 

Committee’ or ‘Spirit of ’76.’” Federal Election Campaign Act Amendments, 

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1979: Hearing Before the Senate Comm. on Rules and Administration, 96th 

Cong., 1st Sess. 23 (1979) (FEC’s Legislative Recommendations) (Appendix to 

Statement of Robert Tiernan, Chairman of the FEC). “In order to avoid 

confusion,” the Commission recommended that Congress amend FECA to “require 

[that] the name of [a] principal campaign committee . . . include in its name the 

name of the candidate which designated the committee.” Id.; see Common Cause 

v. FEC, 842 F.2d 436, 445-46 (D.C. Cir. 1988) (quoting same).

After Congress enacted the provision, now codified at 52 U.S.C. 

§ 30102(e)(4),

1 the FEC largely echoed the statutory provision in its implementing

regulation, but carved out exceptions for unauthorized “delegate” and “draft” 

committees. 11 C.F.R. § 102.14(a)-(b) (1980). Delegate committees are groups 

solely dedicated to “influencing the selection of one or more delegates to a national 

nominating convention.” 11 C.F.R. § 100.5(e)(5). Draft committees are groups 

solely established “to draft an individual or to encourage him or her to become a 

candidate.” Id. § 102.14(b)(2).

C. Common Cause v. FEC

In 1988, this Court considered whether the FEC had acted “contrary to law,” 

52 U.S.C. § 30109(a)(8)(C), in declining to pursue allegations that several 

 1 Effective September 1, 2014, the provisions of FECA formerly codified in 

Title 2 of the United States Code were recodified in Title 52. Section 30102(e)(4) 

was previously codified as 2 U.S.C. § 432(e)(4).

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unauthorized political committees had violated section 30102(e)(4)’s name 

identification requirement. “[T]he evidence showed that in several campaign 

communications the unauthorized committees included the name of candidate 

[Ronald] 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.” Common Cause, 842 F.2d at 439.

In evaluating the Commission’s argument that “‘name’ in [§ 30102(e)(4)] 

. . . refer[s] only to the official or formal name under which a political committee 

must register,” against Common Cause’s interpretation that “‘name’ . . . does not 

mean only 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,” the Court addressed the purpose of the name 

identification provision. Common Cause, 842 F.2d at 440-41. “[S]ubsection 

(e)(4),” it explained, “serves, in conjunction with § [30120]” — requiring 

committees to state whether certain communications are authorized or not — to 

“clarify[] for readers and potential contributors the candidate authorization status 

of the political committees who sponsor advertisements and fund solicitations.” Id.

at 442; 52 U.S.C. § 30120. 

The Court found that although the FEC’s view “obviously comport[ed] with 

the plain language of § [30102(e)(4)],” Common Cause’s interpretation “could also 

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be accommodated within the provision’s literal language.” Common Cause, 842 

F.2d at 440-41. It then analyzed the legislative history of section 30102(e)(4), 

concluding that there was “little” in that history which “explicitly touches on the 

precise scope of § [30102(e)(4)’s] candidate name provision.” Id. at 447. 

Ultimately, the Court concluded that the provision was ambiguous and deferred to 

the agency’s interpretation, explaining that the FEC’s interpretation of FECA is a 

context “particularly appropriate” for deference under Chevron U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Id. at 448 (citing 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)).

Then-Circuit Judge Ruth Bader Ginsburg dissented in part from the decision. 

In her view, a narrow interpretation of FECA’s name identification provision 

“defie[d] common sense and [would] foster[] the very confusion Congress sought 

to prevent when it decreed” that a “‘political committee which is not an authorized 

committee shall not include the name of any candidate in its name.’” Id. at 451 

(R.B. Ginsburg, J., dissenting in part) (quoting section 30102(e)(4)). Then-Judge 

Ginsburg explained that because of the “overriding and unambiguous legislative 

purpose ‘to avoid confusion,’ . . . ‘name’ for § [30102(e)(4)] purposes must mean 

whatever name a committee presents to the public for identification, and not 

simply the committee’s formal, registered name.” Id. Her opinion contended that 

confusing naming practices by the subject committees and actual confusion by 

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“[e]ven the politically astute” was “abundantly documented in the record.” Id. at 

452. It concluded that “[s]ensibly and purposively construed, the § [30102(e)(4)] 

prohibition covers not only the formal, registered name . . . , but also the name the 

committee actually uses to identify itself in communications with the public.” Id.

D. The Commission’s Revisions of 11 C.F.R. § 102.14

Following the Common Cause decision, the Commission found that “the use 

of candidate names in the titles of projects or other unauthorized communications 

[was] increasingly becom[ing] a device for unauthorized committees to raise funds 

or disseminate information.” FEC, Special Fundraising Projects and Other Use of 

Candidate Names by Unauthorized Committees, 57 Fed. Reg. 31,424, 31,424 (July 

15, 1992) (“1992 Rule”). Explaining that circumstances in the early 1990s 

“differ[ed] significantly from that of the early 1980’s,” the FEC chose to revise its 

regulation implementing the Act’s name identification, 11 C.F.R. § 102.14,

through two notice-and-comment rulemakings. 

First, in 1992, the Commission revised subsection 102.14(a) to provide that 

“‘name’” for purposes of the regulation “includes any name under which a 

committee conducts activities, such as solicitations or other communications, 

including a special project name or other designation.” 1992 Rule, 57 Fed. Reg. at 

31,426. 

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Two years later, after further experience, the FEC revised subsection 

102.14(b) to add a third exception to the existing ones for draft and delegate 

committees, providing 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.” 

FEC, Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 59 Fed. Reg. 17,267, 17,269 (Apr. 12, 1994) (“1994 

Rule”). The FEC recognized “that the potential for fraud and abuse is significantly 

reduced” where a candidate’s name is used in a project name clearly and 

unambiguously opposing that candidate. Id.

The Commission modified subsection 102.14(a) because of its “increasing[] 

concern[s] over the possibility for confusion or abuse” under the original (1980) 

version of the regulation upheld by this Court in Common Cause. 1994 Rule, 59 

Fed. Reg. at 17,268. Based on the rulemaking records, which contained 

“substantial evidence that potential contributors often confuse an unauthorized 

committee’s registered name with the names of its fundraising projects,” id., the 

FEC found that “the potential for confusion is equally great in all types of 

committee communications,” not merely solicitations, 1992 Rule, 57 Fed. Reg. at 

31,425. It rejected the idea of limiting the issue to the fundraising context by 

focusing only on “check payees” as “proposed in the NPRM,” among other 

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proposals. Id. In explaining the revised rule, the FEC emphasized that 

“[u]nauthorized committees remain free to discuss candidates . . . and to use 

candidates’ names as frequently, and highlight them as prominently (in terms of 

size, typeface, location, and so forth) as they choose.” 1994 Rule, 59 Fed. Reg. at 

17,268-69. “In other words, while a committee could not establish a fundraising 

project called ‘Citizens for Doe,’ if Doe is a federal candidate, it could use a 

subheading such as ‘Help Us Elect Doe to Federal Office,’ and urge Doe’s 

election, by name, in large, highlighted type, throughout the communication.” Id.

at 17,269. 

E. The FEC’s Application of the Name Identification Requirement 

A number of FEC advisory opinions and enforcement matters under review 

(“MURs”) demonstrate the Commission’s application of the name identification 

requirement. In 1995, in response to an advisory opinion request from an 

unauthorized committee named “NewtWatch PAC,” the FEC explained that 

although “NewtWatch” could not be used as part of the committee’s name because 

it clearly conveyed the identity of then-Speaker Newt Gingrich, “the Act and 

Commission regulations do not prohibit the Committee from using the name 

‘NewtWatch’ as a project name” under the opposition exception it created in 1994. 

FEC Advisory Op. 1995-09 (NewtWatch PAC), 1995 WL 247474, at *5 (Apr. 21, 

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1995). The committee had also used NewtWatch in its website’s uniform resource 

locator (“URL”). Id. at *1.

Since the NewtWatch advisory opinion, the FEC has issued a number of 

other advisory opinions and proceeded on various MURs applying the name 

identification requirement. For example, in FEC Advisory Opinion 2013-13 

(Freshman Hold’em JFC), the agency concluded that a joint fundraising committee 

could not use the name “Freshman Hold’em JFC” due to the failure to include the 

names of the candidates who had authorized it. 2013 WL 6094229, at *1-2 (Nov. 

14, 2013). In MUR 5889 (Republicans for Trauner), the FEC found that an 

unauthorized committee had violated, inter alia, the name prohibition by including 

the name of Gary Trauner, a candidate for Congress, in its name and entered into a 

conciliation agreement requiring the committee to pay a civil penalty and cease 

and desist from further violations. FEC, MUR 5889 (Republicans for Trauner), 

Conciliation Agreement at 2, 8 (2007), 

http://eqs.fec.gov/eqsdocsMUR/0000677E.pdf. In MUR 6399 (Yoder for 

Congress), the Commission voted 2-3 on whether to find “reason to believe” on a 

matter in which an authorized candidate’s committee used the candidate’s

opponent’s name in the URL of its website. FEC, MUR 6399, Certification at 1 

(Apr. 28, 2011), http://eqs.fec.gov/eqsdocsMUR/11044292473.pdf. Because the 

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Commission lacked the required four votes to proceed, it dismissed the matter. Id.

at 2.2

 

More recently, in Advisory Opinion 2015-04 (Collective Actions PAC), 

2015 WL 4480266 (July 16, 2015) (“CAP Advisory Opinion”), the FEC 

unanimously concluded that Collective Actions PAC, an unauthorized political 

committee, could not use 2016 presidential candidate Bernie Sanders’s name in the 

names or URLs of its websites or social media pages that failed to clearly express 

opposition to Senator Sanders. (J.A. 14.) Although the committee did not intend 

to solicit donations to itself, the FEC explained that it had “specifically considered 

and rejected” this proposed fundraising “distinction” in 1992: “When the 

Commission revised the definition of ‘name’ . . . to include ‘any name under which 

a committee conducts activities,’ the Commission rejected a proposal to limit the 

restriction to fundraising projects; instead, [it] noted that ‘the potential for 

confusion is equally great in all types of committee communications.’” (J.A. 15.)

 2 The Commission also addressed another administrative complaint alleging a 

violation of the name identification requirement by issuing a cautionary warning to 

the respondent “to take steps to ensure that its conduct is in compliance with the 

Act and the Commission’s Regulations, by amending its Form 1 to remove the 

parenthetical ‘(DUMPREID PAC)’ [which included the name of a candidate] from 

its official name, and by including the Committee’s full name in the ‘paid for by’ 

section of its website disclaimer and in any future public communications.” See

MUR 6213 (Decidedly Unhappy Mainstream Patriots Rejecting Evil-mongering 

Incompetent Democrats PAC), Letter from Susan L. Lebeaux, FEC, to Benjamin 

L. Ginsberg, Patton Boggs, LLP 

http://eqs.fec.gov/eqsdocsMUR/10044271813.pdf.

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II. FACTUAL AND PROCEDURAL BACKGROUND

A. PAG

PAG is an independent-expenditure-only political committee (also known as 

a “super PAC”) that was formed in 2015 to “independently advocate for the 

election of Mike Huckabee as President of the United States.” (J.A. 23 ¶ 6; J.A. 28 

¶ 27.)3

 It describes itself on its website as “the Super PAC supporting former 

Arkansas Governor Mike Huckabee in his candidacy for President.” (J.A. 95.) 

PAG is “not authorized by any candidate or candidate’s committee.” (Appellant 

PAG’s Opening Brief (“PAG’s Br.”) at 7; see also J.A. 23 ¶ 6.) It “intends to 

make independent expenditures, and . . . intends to raise funds in unlimited 

amounts. [It] will not use those funds to make contributions, whether direct, inkind, or via coordinated communications, to federal candidates or committees.” 

FEC, Statement of Organization (PAG) at 1, 2, 5 (Mar. 11, 2015), 

http://docquery.fec.gov/pdf/823/15950859823/15950859823.pdf.

In July 2015, PAG entered into a contract with another entity, Strategic 

Media 21, pursuant to which PAG now controls the operation and maintenance, 

including the content, of the website www.ilikemikehuckabee.com and Facebook 

page “I Like Mike Huckabee,” which are both owned by Strategic Media 21. (J.A. 

 3 An “independent expenditure” is a communication “expressly advocating 

the election or defeat of a clearly identified candidate” and that is made without 

coordinating with the candidate or a political party. 52 U.S.C. § 30101(17); 11 

C.F.R. § 100.16. 

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24 ¶¶ 10-11.) PAG alleges that on July 17, 2015 it “ceased any further work on 

updating, maintaining, promoting or changing” the “I Like Mike Huckabee” 

Facebook page and website in response to the FEC’s issuance of the CAP 

Advisory Opinion. (J.A. 26 ¶ 18.) Both the Facebook page and website remain 

publicly available at https://www.facebook.com/ilikemikehuckabee and 

http://www.ilikemikehuckabee.com. PAG also alleges that it wishes to establish a 

Twitter account with a name that incorporates Mr. Huckabee’s name, but it has not 

yet done so. (J.A. 24 ¶ 13; J.A. 26 ¶ 19.)

According to PAG’s FEC filings, as of mid-2015 it had received 

contributions of at least $3.6 million from seven individuals. FEC, Report of 

Receipts and Disbursements (PAG) at 2, 6-8, 

http://docquery.fec.gov/pdf/553/201507319000480553/201507319000480553.pdf. 

Since October 2015, it has spent at least $1,289,905.60 on independent 

expenditures of direct mail, radio advertisements, or other media advertising

supporting Mr. Huckabee and at least $115,643.44 more on expenditures opposing 

the candidacies of Marco Rubio and Ted Cruz.4 PAG has also established other 

 4 FEC, 24/48 Hour Report of Independent Expenditures at 1 (PAG), 

http://docquery.fec.gov/pdf/486/201510299003253486/201510299003253486.pdf, 

http://docquery.fec.gov/pdf/487/201510299003253487/201510299003253487.pdf, 

http://docquery.fec.gov/pdf/964/201511109003298964/201511109003298964.pdf, 

http://docquery.fec.gov/pdf/134/201511199003384134/201511199003384134.pdf, 

http://docquery.fec.gov/pdf/179/201511279004120179/201511279004120179.pdf, 

http://docquery.fec.gov/pdf/937/201512029004124937/201512029004124937.pdf, 

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websites and social media accounts to use to disseminate its messages of support 

for Mr. Huckabee, including its own website, pagpac.com, its Facebook page 

“Pursuing America’s Greatness,” 

https://www.facebook.com/PursuingAmericasGreatness, its Twitter account 

“AmericasGreatness,” https://twitter.com/PAGPAC, and its YouTube channel

“Pursuing America’s Greatness,” https://www.youtube.com/channel/UCZBI2mNaC1l2n9OaMbhHgw. 

B. Procedural History

After the FEC issued the CAP Advisory Opinion, PAG sued the agency and 

moved for a preliminary injunction. PAG claims that the FEC’s interpretation of 

FECA’s name identification requirement in its regulations and the CAP Advisory 

 

http://docquery.fec.gov/pdf/944/201512029004124944/201512029004124944.pdf, 

http://docquery.fec.gov/pdf/838/201512089004153838/201512089004153838.pdf, 

http://docquery.fec.gov/pdf/983/201512129004175983/201512129004175983.pdf, 

http://docquery.fec.gov/pdf/547/201512159004210547/201512159004210547.pdf, 

http://docquery.fec.gov/pdf/171/201512189004315171/201512189004315171.pdf, 

http://docquery.fec.gov/pdf/183/201512189004315183/201512189004315183.pdf,

http://docquery.fec.gov/pdf/171/201512189004315171/201512189004315171.pdf, 

http://docquery.fec.gov/pdf/548/201512239004414548/201512239004414548.pdf, 

http://docquery.fec.gov/pdf/619/201512299004424619/201512299004424619.pdf, 

http://docquery.fec.gov/pdf/405/201512309004425405/201512309004425405.pdf, 

http://docquery.fec.gov/pdf/380/201512319004426380/201512319004426380.pdf, 

http://docquery.fec.gov/pdf/931/201601019004426931/201601019004426931.pdf, 

http://docquery.fec.gov/pdf/933/201601019004426933/201601019004426933.pdf, 

http://docquery.fec.gov/pdf/494/201601029004427494/201601029004427494.pdf, 

http://docquery.fec.gov/pdf/496/201601029004427496/201601029004427496.pdf, 

http://docquery.fec.gov/pdf/215/201601089004444215/201601089004444215.pdf.

(Because PAG’s reports are not providing calendar year-to-date aggregate totals, 

the FEC has calculated PAG’s total expenditures using its individual reports.)

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Opinion are invalid under the Administrative Procedure Act (“APA”) and 

unconstitutional under the First Amendment as an impermissible prior restraint or 

content-based restriction on speech. (See generally J.A. 31-39 ¶¶ 44-70.)

The district court denied PAG’s motion after briefing and oral argument. 

(J.A. 258-91.) After setting out the history of the regulation (J.A. 260-68), the 

court found that PAG was unlikely to succeed on its APA claim because “the 

relevant evidence from the 1992 and 1994 rulemakings establishes the requisite 

rational connection between the facts found and the choice made in promulgating 

the [revisions to 11 C.F.R. § 102.14(a)-(b)], as well as in issuing the CAP Advisory 

Opinion.” (J.A. 273 (internal quotation marks omitted).) The court credited the 

Commission’s assessment of whether it could use alternative means, agreed that 

the name identification requirement has a limited effect in practice, and found that 

the agency’s concerns regarding confusion as to the sources of election-related 

speech were justified, especially in light of the “hundreds of comments on the

Facebook page [PAG controls] that appear to be directed to Governor Huckabee 

himself.” (J.A. 273-77 (citing “Exhibit A to the FEC’s opposition brief” which 

“illustrates the potential for confusion”); see also J.A. 107-110, Decl. of Jayci A. 

Sadio, August 10, 2015 ¶ 4 (identifying 779 separate comments directed “to” Mr. 

Huckabee himself on the “I Like Mike Huckabee” Facebook page).)

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The district court also found that PAG was unlikely to succeed on its First 

Amendment claims because the name identification requirement it challenges is 

“part and parcel of FECA’s disclosure regime.” (J.A. 280 (citing Common Cause, 

842 F.2d at 442); J.A. 282 (noting the “clear references to § 30102(e)(4) being a 

part of FECA’s disclosure regime” in Common Cause and Galliano v. U.S. Postal 

Serv., 836 F.2d 1362, 1367-68 (D.C. Cir. 1988)).) The requirement “‘only

appl[ies] to the titles’ of an unauthorized committee’s projects, leaving any such 

committee ‘free to promote [any candidate] by name in the body of any website or 

other communication,’ such as those posted on Facebook pages or Twitter 

accounts.” (J.A. 280 (quoting CAP Advisory Opinion at 4).) “[T]o use counsel for 

PAG’s own words” at oral argument, the requirement “‘doesn’t prohibit the speech 

at all[,] . . . [i]t just prohibits where you can make the speech.’” (J.A. 284 (quoting 

argument transcript).) The district court thus concluded that the requirement is 

“substantially related to the government’s interests in limiting confusion, fraud, 

and abuse because it . . . clarif[ies] the candidate-authorization status of political 

committees.” (J.A. 286 (internal quotation marks omitted).)

The district court’s analysis of the remaining factors “reinforce[d] its finding 

that the entry of a preliminary injunction [wa]s not warranted.” (J.A. 288.) It

observed that “PAG has not demonstrated that it will be prevented from speaking, 

as opposed to merely having one aspect of its speech . . . relegated from the titles 

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of its special project communications to the bodies of those communications.” 

(J.A. 288-89.) It further found that the balance of equities did not favor granting 

the injunction and “credited the . . . FEC[’s] arguments” that enjoining the agency 

from performing its duties and “upsetting its regulatory framework” would not be 

in the public interest. (J.A. 289-90.)

After the district court issued its decision, PAG moved for an injunction 

pending appeal. The district court denied that motion. (J.A. 333.)5

 PAG then 

moved for an injunction pending appeal in this Court and, alternatively, for 

resolution of the merits in its favor. Following briefing, a motions panel of this 

Court denied the motion and established an expedited merits briefing schedule. 

(J.A. 334-35.) PAG then sought an emergency injunction pending appeal in the 

Supreme Court and gave notice of its intent to petition that Court for certiorari

review prior to judgment. Chief Justice Roberts denied PAG’s motion. (J.A. 336.) 

PAG then informed the Supreme Court’s emergency applications clerk of its 

decision not to seek certiorari prior to judgment and intent to proceed in this Court. 

(J.A. 340.)

 5 Although PAG includes this order in its recitation of the rulings under 

review (PAG’s Br. at i-ii), PAG never noticed an appeal of the order and instead 

sought the same relief by separate motions, as discussed in the text. 

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SUMMARY OF ARGUMENT

The district court’s decision should be affirmed. Its opinion denying PAG’s 

request for a preliminary injunction thoroughly explains why PAG is unlikely to 

succeed on any of its claims and why none of the other remaining factors support 

such relief. (J.A. 258-91.) PAG offers no basis for this Court to find that the 

district court abused its discretion or otherwise erred. Instead, PAG repeats the 

erroneous arguments that the district court rightly rejected, continuing its attempt

to transform a necessary and constitutional disclosure requirement that does not 

prevent PAG from speaking into a “speech ban.”

The district court correctly determined that PAG is unlikely to succeed on 

the merits of its First Amendment claims because the name identification 

requirement is part of FECA’s disclosure regime and satisfies the applicable level 

of “exacting” intermediate scrutiny. The requirement helps disclose the sources of 

election-related spending and ensures 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.” Common Cause, 842 F.2d at 442. At the 

same time, the FEC has carefully calibrated the regulation in order to provide 

committees flexibility while still serving the government’s important interests in 

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limiting opportunities for confusion, fraud, and abuse resulting from committees’ 

use of candidate names in their own names and special project names.

PAG does not attempt to argue that the name regulation fails intermediate 

scrutiny. It instead argues that the Court should use strict scrutiny to evaluate its 

First Amendment challenges because the name regulation is a content-based 

restriction or prior restraint. Not so. As an initial matter, PAG lacks standing to 

challenge a portion of the regulation that, if severed and struck, would not affect 

whether PAG can use Mr. Huckabee’s name. Even assuming it has standing, 

PAG’s content-based argument is flawed because the requirement does not restrict 

speech on the basis of content. As the district court explained, the name 

identification requirement is like FECA’s other disclaimer requirements and 

simply compels PAG to disclose (i) “whether [it] . . . is authorized” by Mr. 

Huckabee, and “(ii) dictates that such disclosure be made in the name of the 

committee itself, or in any name under which the committee conducts activities, 

including a special project name.” (J.A. 281.) The Supreme Court’s decision in 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) is therefore inapplicable. And 

contrary to PAG’s sensational claim that the situation presented by this case is 

analogous to repressive governmental book banning, the FEC’s name regulation 

plainly would not prevent PAG from publishing a book, chapter, or film entitled “I 

Like Mike Huckabee.” This is not a book banning case. 

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PAG’s prior restraint argument suffers from the analogous fundamental 

problem that the name regulation is not a prior restraint — or even the equivalent 

of a prior restraint. PAG has not been restrained from making any speech. As the 

district court agreed, “PAG is free to say whatever it wants about Mr. Huckabee.” 

(J.A. 276 (internal quotation marks omitted).) Moreover, the Supreme Court long 

ago rejected the idea that the burdens imposed by disclosure requirements like the 

name requirement are prior restraints. Rather, they are “a reasonable and 

minimally restrictive method of furthering First Amendment values by opening the 

basic processes of our federal election system to public view.” Buckley v. Valeo, 

424 U.S. 1, 82 (1976) (per curiam).

PAG’s APA challenge is also meritless. PAG argues that the name 

identification regulation cannot be applied to it because it does not intend to use 

the “I Like Mike Huckabee” website and Facebook page to solicit contributions. 

This challenge depends upon PAG’s premise that the FEC’s justification for the 

regulation was confined to addressing fundraising confusion, abuse, and fraud. 

But the Commission expressly declined to so limit the regulation’s application. It

considered a potential fundraising “distinction” at the time it was amending the

regulation and instead crafted the regulation to limit the potential for confusion, 

fraud, and abuse resulting from “‘all types of committee communications,’” not 

just those regarding “fundraising projects.” (J.A. 15 (quoting 1992 Rule, 57 Fed. 

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Reg. at 31,425).) The FEC thus “specifically considered and rejected” the grounds

upon which PAG stakes its APA claim (id.), and the Court must defer to the 

agency’s reasonable judgment.

Finally, PAG has failed to demonstrate that any of the other preliminary 

injunction factors weigh in its favor. PAG is not being injured by the name 

requirement; having to disclose that its speech is not Mr. Huckabee’s speech does 

not prevent it from communicating its messages. Furthermore, PAG has raised 

millions of dollars and can spend as much as it wants on social media posts and 

print and radio advertisements supporting Mr. Huckabee. Indeed, since October 

2015, PAG already has spent more than one million dollars on independent 

expenditures of direct mail and other advertisements supporting Mr. Huckabee. Its 

histrionic claim that it cannot speak at all except through websites and social media 

pages that include Mr. Huckabee’s name in their titles is untrue. Moreover,

enjoining the name regulation would harm the government and the public by 

increasing the potential for confusion, fraud, and abuse resulting from committees’ 

uses of candidate names. As the evidence in the district court showed, the 

hundreds of comments on the “I Like Mike Huckabee” Facebook page PAG 

operates directed to Mr. Huckabee indicate that viewers of that page incorrectly 

believe its communications are on behalf of Mr. Huckabee when they are not. 

(J.A. 107-110.) 

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ARGUMENT

I. STANDARD OF REVIEW

This Court reviews “the district court’s balancing of the[] four [preliminary 

injunction] factors for abuse of discretion, while reviewing de novo the questions 

of law involved in that inquiry.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 

2014); Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011); Davis v. Pension 

Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). 

A preliminary injunction is “an extraordinary remedy that may only be 

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. 

Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a 

preliminary injunction must establish [1] that he is likely to succeed on the merits, 

[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 

[3] that the balance of equities tips in his favor, and [4] that an injunction is in the 

public interest.” Id. at 20. A plaintiff must make a “clear showing” that the 

extraordinary remedy is necessary, and it cannot be “based only on a possibility of 

irreparable harm.” Id. at 22. 

As the district court explained, this Court has “used a ‘sliding scale’ 

approach in analyzing the four preliminary injunction factors, meaning that a 

particularly strong showing on one factor could make up for a weaker showing on 

another.” (J.A. 269 (quoting Davenport v. Int’l Bhd. of Teamsters, AFL-CIO, 166 

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F.3d 356, 360-61 (D.C. Cir. 1999).) It is “not clear whether this approach survives 

. . . Winter, which suggested that a likelihood of success on the merits must always 

be shown.” (Id. (citing Sherley, 644 F.3d at 393.) While in this Circuit “it remains 

an open question whether the likelihood of success factor is an independent, freestanding requirement,” Aamer, 742 F.3d at 1043 (internal quotation marks 

omitted), even if the sliding-scale approach does survive, “where a movant makes 

‘a weak showing on the first factor,’ the movant must ‘show that all three of the 

other factors so much favor the [movant] that they need only have raised a serious 

legal question on the merits.’” (J.A. 270 (quoting Am. Meat Inst. v. U.S. Dep’t of 

Agric., 746 F.3d 1065, 1074 (D.C. Cir. 2014), reinstated in relevant part by 760 

F.3d 18 (D.C. Cir. 2014) (en banc)).) 

The Court need not resolve which approach must be used in this case 

because PAG’s claim fails under either.

II. THE DISTRICT COURT CORRECTLY DETERMINED THAT PAG 

IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS FIRST 

AMENDMENT CLAIMS

PAG is unlikely to prevail on its First Amendment claims because, as the 

district court found, the name identification requirement is a FECA disclosure 

requirement that satisfies the intermediate level of constitutional scrutiny 

applicable to campaign-finance disclosure requirements. (J.A. 278-87.) PAG’s

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contentions that the requirement constitutes content-based discrimination or acts as 

an impermissible prior restraint are meritless.

A. The Name Regulation Is a Disclosure Requirement

Relying on this Court’s precedents, the district court concluded that 

“§ 30102(e)(4) and the other components of the Name Identification Requirement 

are part and parcel of FECA’s disclosure regime because they are ‘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.’” (J.A. 280 (quoting

Common Cause, 842 F.2d at 442 (emphasis added)).) The committee name 

provision is among those in FECA that “require political bodies to disclose the 

identity of persons associated with them.” Common Cause, 842 F.2d at 442 

(emphasis added); Galliano, 836 F.2d at 1367-68 (characterizing section 

30102(e)(4) as part of the Act’s “specific disclosure requirements” or “extensive 

disclosure requirements”).

As this Court explained in Common Cause, “[s]ection [30102(e)(4)] mainly

supplements § [30120(a)] 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.” 842 F.2d at 442; see also 52 U.S.C. 

§ 30120(a). Section 30102(e)(4) thus “avoids the kind of confusing disclaimer 

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previously possible, ‘Paid for by Reagan for President. Not authorized by 

President Reagan,’ and makes § [30120(a)’s] disclaimers more effective.” 

Common Cause, 842 F.2d at 442; id. at 447 n.31 (“Congress’s general intent [was] 

to prevent confusion arising from misleading committee names”); cf. Citizens 

United v. FEC, 558 U.S. 310, 368 (2010) (explaining that other disclaimer and 

disclosure provisions in FECA similarly serve to “‘insure that the voters are fully 

informed’ about the person or group who is speaking” about a candidate (quoting 

Buckley, 424 U.S. at 76)). In its recent CAP Advisory Opinion, the Commission 

reiterated that it is precisely to “limit ‘[such] potential for confusion’” that the 

regulation mandates a floor level of disclosure about the relationship of the speaker 

to messages of candidates, including those it may be speaking about —

independently, against, or on behalf of. (J.A. 15.)

Accordingly, the district court found that “[t]he Name Identification 

Requirement simply (i) requires a political committee to disclose whether that 

committee is authorized or unauthorized, and (ii) dictates that such disclosure be 

made in the name of the committee itself, or in any name under which the

committee conducts activities, including a special project name.” (J.A. 281.) In a 

case PAG has highlighted (PAG’s Br. at ii-iii) in which other plaintiffs are 

separately challenging the name identification requirement, the United States 

District Court for the Eastern District of Virginia reached the same conclusion. 

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Stop Hillary PAC v. FEC, No. 15-1208, Mem. Op. and Order (E.D. Va. Dec. 21, 

2015) (“Stop Hillary PAC”), Supp. Add. 13 (“The name identification requirement 

is an integral part of FECA’s disclosure regime.”); Supp. Add. 6 (“The purpose of 

§ 30102(e)(4) . . . is simple: to alleviate the constant public confusion surrounding 

[political committees].”). 

Although PAG acknowledges that this Court has described FECA’s name 

provision as “‘mainly supplement[ing]’ FECA’s statutory disclaimer provisions”

(PAG’s Br. at 37 (quoting Common Cause, 842 F.2d at 442)), it nevertheless 

contends that the requirement is “not . . . itself a disclosure provision (id. at 37-39). 

PAG is incorrect. In Common Cause, the Court explained that section 30102(e)(4) 

by itself compels political groups to “disclose” the identity of persons associated

with them. 842 F.2d at 442. In Galliano, which PAG’s brief does not mention, the 

Court likewise characterized the provision as part of FECA’s “disclosure 

requirements.” 836 F.2d at 1367-68. While the name identification requirement 

does reinforce FECA’s other disclosure provisions (as part of the Act’s 

comprehensive regime), and vice-versa, it is not merely supplementary.

PAG posits that “‘disclosure’ exists in [only] two forms: (1) disclaimers 

required to be included on communications; and (2) public reports filed that 

disclose a person’s or committee’s address, directors/officers, contributions, and 

expenditures.” (PAG’s Br. at 38; id. at 39 & n.14.) But “disclosure” is not limited 

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to these “two forms” of disclaimer and reporting requirements. PAG’s brief cites 

Buckley, 424 U.S. at 66-67, and Citizens United, 558 U.S. at 366-67, in purported 

support of this proposition, (PAG’s Br. at 38), but neither of these passages 

supports PAG’s contention. See also infra p. 44 (discussing another disclosure 

provision this Court upheld that does not fall into PAG’s posited two categories).

Its argument is also belied by the fact that the name identification requirement is, 

in PAG’s words, a “disclaimer[] required to be included on communications.” 

(PAG’s Br. at 38.) As the district court explained in rejecting this argument, “the 

[name regulation] does require a disclosure to ‘be on’ or ‘incorporated into the 

communication’ by requiring disclosure in the name or title of the special project 

that is disseminating that communication.” (J.A. 282 (quoting argument 

transcript).)

B. The District Court Correctly Found That the Name Identification 

Requirement Is Substantially Related to the Government’s 

Important Interests in Limiting Confusion, Fraud, and Abuse

As a disclosure provision, the name identification requirement is reviewed 

for “‘exacting scrutiny,’ which requires a ‘substantial relation’ between the 

disclosure requirement and a ‘sufficiently important’ governmental interest.” 

Citizens United, 558 U.S. at 366-67 (quoting Buckley, 424 U.S. at 64, 66; 

McConnell v. FEC, 540 U.S. 93, 231-32 (2003), overruled in part by Citizens 

United, 558 U.S. 310)). “[L]ike other ‘[d]isclaimer and disclosure

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requirements[,]’” the name requirement “‘do[es] not prevent anyone from 

speaking.’” (J.A. 280 (quoting Citizens United, 558 U.S. at 366).) Accordingly, 

“[s]uch limited burdens on speech ‘often represent[] a less restrictive alternative to 

flat bans on certain types or quantities of speech,’ and are subject to intermediate 

or exacting scrutiny.” (Id. (quoting McCutcheon v. FEC, 134 S. Ct. 1434, 1460

(2014)).) Applying intermediate scrutiny, the district court properly determined 

that the requirement is “substantially related to the government’s interests in 

limiting confusion, fraud, and abuse because it serve[s] to clarify the candidateauthorization status of political committees.” (J.A. 286 (internal quotation marks 

omitted).) 

1. Disclosing to Voters and Contributors Whether a Political 

Committee Is Authorized by a Candidate Serves Important 

Governmental Interests

As this Court recognized almost thirty years ago, section 30102(e)(4) 

permits listeners and contributors to “learn[] by a glance” if a political committee 

or its special project “is an authorized or unauthorized vehicle of the candidate.” 

Common Cause, 842 F.2d at 442. In adding the provision to FECA, Congress 

recognized that “the positive requirement of including candidate names in [the 

names of] authorized committees cannot function without the corresponding 

restriction for unauthorized committees.” J.A. 286 (internal quotation marks 

omitted); Stop Hillary PAC, Supp. Add. 5-6. Otherwise, the candidate’s 

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authorized committee could be lost in a sea of similarly titled groups — e.g., 

“Huckabee for America,” “We Want Huckabee,” etc. Thus, section 30102(e)(4) 

both requires authorized committees to use the candidate’s name and prohibits 

unauthorized committees from doing so.

 Evidence has continued to confirm the need for such disclosures. In 

revising 11 C.F.R. § 102.14 in the 1990s, the Commission was presented with 

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.” 1994 Rule, 59 Fed. Reg. at 17,268. One example 

from the rulemaking records included “a comment from an authorized committee 

of a major party presidential candidate stat[ing] that an unauthorized project using

that candidate’s name raised over $10,000,000 during the 1988 presidential 

election cycle, despite the candidate’s disavowal of and efforts to stop these 

activities.” 1994 Rule, 59 Fed. Reg. at 17,268. A television documentary included 

in the record also detailed how an unauthorized committee “had, over several 

election cycles, established numerous projects whose titles included the names of 

federal candidates. The named candidates had no connection with the projects, had 

not authorized the use of their names in this manner, and received no money from 

the $9 million raised in response to these appeals.” Id. “Such cases,” the 

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Commission concluded, “point up 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.” Id.

The evidence before the court below similarly demonstrated that “[t]he 

hundreds of comments posted on” the “I Like Mike Huckabee” Facebook page 

“that appear to be directed to Governor Huckabee highlight the need for such 

disclosures.” (J.A. 287 (citing J.A. 107-95).) Even a cursory review of such

comments illustrates this potential for confusion. Comments such as “Amen! You 

would really change some things, in Washington. God bless 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” appear throughout the page, 

demonstrating that many viewers of the “I Like Mike Huckabee” Facebook page 

apparently believe that the advocacy on that page is not independent but rather on 

behalf of Mr. Huckabee himself. (J.A. 107-09 ¶¶ 4-5 (identifying 779 separate 

comments directed “to” Mr. Huckabee himself on the Facebook page); see also 

J.A. 110-95.) Based on this evidence, the district court found that the regulation is

particularly important “in the context of dissemination of communications via 

internet-based special projects like websites, Facebook pages and Twitter 

accounts,” because “‘the public has an interest in knowing who is speaking about a 

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candidate shortly before an election.’” (J.A. 287 (quoting Citizens United, 558 

U.S. at 369).)

6 This “legitimate . . . interest . . . goes hand-in-hand with the 

legitimate government interest in limiting the possibility of fraud, confusion and 

abuse in federal elections.” (J.A. 287.)

Contrary to PAG’s mantra that the FEC’s justification for the regulation is 

limited to “preventing confusion, fraud, and abuse in the fundraising context” (e.g., 

PAG’s Br. at 41 (emphasis added)), when the FEC proposed the enactment of 

section 30102(e)(4) to Congress it articulated the goal of “‘avoid[ing] confusion’” 

without mentioning fundraising. Common Cause, 842 F.2d at 445-46 (quoting the 

FEC’s proposal). The Commission revised its regulation in 1992 to “‘minimiz[e] 

the possibility of fraud and abuse’” and limit “‘the potential for confusion’” 

resulting from “‘all types of committee communications,’” not just those regarding 

“fundraising projects.” (J.A. 15 (quoting 1992 Rule) (emphasis added).) The FEC 

 6 PAG’s amici contend that the many comments on the “I Like Mike 

Huckabee” Facebook page evidencing confusion should be understood as 

“‘parasocial interactions,’” arguing that comments addressed to fictional characters 

or public figures on other websites do not reflect confusion. (Brief Amicus Curiae 

of Pacific Legal Foundation and James Madison Center for Free Speech in Support 

of Plaintiff-Appellant and Reversal (“PLC and JMC Br.”) at 14-15.) In addition to 

being dubious on its face, this unqualified faux expert theory is outside the record 

and fails to demonstrate that the district court’s factual determination that there is 

“confusion on display throughout the Facebook page” was clearly erroneous. (J.A. 

276.) Moreover, as referenced below, see infra pp. 32-33, the confusion apparent 

on the “I Like Mike Huckabee” Facebook page is consistent with other 

documented instances of confusion resulting from other groups’ violations of the 

name identification requirement.

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thus “specifically considered and rejected” the fundraising distinction upon which 

PAG premises its arguments. Id.

Indeed, the district court found that the record evidence “belie[d] PAG’s 

arguments [(PAG’s Br. at 41-45)] that clarifying the authorization status of an 

unauthorized committee’s special projects could constitute a legitimate 

government interest only in the fundraising context.” (J.A. 287.) Without the 

name identification requirement, the attractiveness of using large contributions to 

secure quid pro quos from candidates, see, e.g., McCutcheon, 134 S. Ct. at 1450, 

could create similar opportunities for committees through their special projects to 

“exploit ambiguity about their candidate authorization status.” (J.A. 273 (internal 

quotation marks omitted).) Unlike a candidate, an independent-expenditure-only 

committee like PAG can receive contributions of any size. “[P]ermitting 

unauthorized committees to include a candidate’s name in the name of their special 

projects may allow those committees to . . . take advantage of confusion created by 

their project names.” (J.A. 273 (internal quotation marks omitted).) For example, 

“a contributor [may] think[] that a $50,000 contribution to a project such as ‘I Like 

Mike Huckabee’ is a contribution to Mr. Huckabee, even though it is not.” Id.

(internal quotation marks omitted); cf. Colby Itkowitz, Report: Actor Daniel Craig, 

a.k.a James Bond, donated to Bernie Sanders’ super PAC. Where did his money 

go?, Wash. Post (Sept. 10, 2015), 

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https://www.washingtonpost.com/news/powerpost/wp/2015/09/10/report-actordaniel-craig-a-k-a-james-bond-donated-to-bernie-sanders-super-pac-or-a-fraud/

(last visited Jan. 8, 2016) (super PAC originally named “Ready for Bernie Sanders 

2016” and “Bet on Bernie 2016” before the FEC required that the name be 

changed received contributions from donors “who believed they were giving to the 

Sanders campaign”); Alan Rappeport, Bernie Sanders Has a Fan in the James 

Bond Actor Daniel Craig, N.Y. Times (First Draft) (Sept. 10, 2016 3:58 p.m.), 

http://www.nytimes.com/politics/first-draft/2015/09/10/bernie-sanders-has-a-fanin-the-james-bond-actor-daniel-craig/?_r=0 (last visited Jan. 8, 2016) (“[M]any 

people have given to [the] super PAC by coming across it online and thinking it 

was the official way to donate to Mr. Sanders.”).

Because confusion, fraud, and abuse plainly can occur outside of the context 

of fundraising, the FEC’s regulation not only covers “[s]pecial [f]undraising 

[p]rojects,” but also “[o]ther [u]se” of candidate names in the operating titles of

unauthorized committees. 1994 Rule, 59 Fed. Reg. at 17,267; J.A. 273 (PAG’s 

“reading ignores the fact that the words ‘Other Use of Candidate Names’ clearly

reveal a ‘focus’ on the use of candidate names in the titles of things other than 

special fundraising projects.”). “[J]ust as an unauthorized project that trades on a 

candidate’s name in its title can divert dollars away from a candidate’s message, it 

can also divert (or distort) information, confusing readers into believing, say, that 

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PAG’s message is Mr. Huckabee’s.” (J.A. 286 (internal quotation marks 

omitted).) Mr. Huckabee may disagree with everything that appears on the “I Like 

Mike Huckabee” Facebook page PAG operates, and PAG can say what it wants to 

about Mr. Huckabee. But permitting PAG to imply that its speech is Mr. 

Huckabee’s by using the candidate’s name in the title to present PAG’s messages

undermines the important interest in the public knowing who is speaking in the 

context of an election. Cf. John Doe No. 1 v. Reed, 561 U.S. 186, 228 (2010) 

(Scalia, J., concurring) (“Requiring people to stand up in public for their political 

acts fosters civic courage, without which democracy is doomed.”). 

Importantly, many courts, including the Supreme Court and this Court, have 

repeatedly embraced the important interests that FECA’s disclosure provisions

such as section 30102(e)(4) support. In McCutcheon, the Supreme Court’s 

plurality opinion reiterated that “[d]isclosure requirements are in part justified 

based on a governmental interest in provid[ing] the electorate with information 

about the sources of election-related spending.” 134 S. Ct. at 1459 (internal 

quotation marks omitted); J.A. 285 (same) (quoting Citizens United, 558 U.S. at 

367); Citizens United, 558 U.S. at 367 (noting that in McConnell, “[t]here was 

evidence in the record that independent groups were running election-related 

advertisements while hiding behind dubious and misleading names” (internal 

quotation marks omitted)). “With modern technology, disclosure now offers a 

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particularly effective means of arming the voting public with information.” 

McCutcheon, 134 S. Ct. at 1460. 

In Citizens United, eight Justices agreed that the challenged disclosure 

provisions were constitutional, observing that “the public has an interest in 

knowing who is speaking about a candidate shortly before an election,” even when 

such speech occurs in communications that lack express candidate advocacy. 558 

U.S. at 368-69; see also J.A. 285 (citing First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 792 n.32 (1978) (“Identification 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.” (citations omitted))); Buckley, 424 

U.S. at 68 (holding that the Act’s disclosure requirements for political committees 

“directly serve substantial governmental interests”). Similarly, in SpeechNow.org 

v. FEC, this Court unanimously held that political committee disclosure 

requirements further the public’s “interest in knowing who is speaking about a 

candidate and who is funding that speech,” and “deter[] and help[] expose 

violations of other campaign finance restrictions.” 599 F.3d 686, 698 (D.C. Cir. 

2010) (en banc), cert. denied, 131 S. Ct. 553 (2010). “‘At the very least,’ the 

Name Identification Requirement helps to ‘avoid confusion by making clear’ to the 

voting public that communications disseminated via unauthorized committees’ 

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special projects ‘are not funded by a candidate or political party.’” (J.A. 286 

(quoting Citizens United, 558 U.S. at 368).)

Accordingly, the government’s interests in preventing confusion, fraud, and 

abuse through the name identification requirement easily meet the “‘sufficiently 

important’ governmental interest” standard. Citizens United, 558 U.S. at 366-67. 

This interest “may properly be labeled ‘compelling.’” Cf. McCutcheon, 134 S. Ct. 

at 1445-46 (explaining that although government’s interest in preventing quid pro 

quo corruption needed to be only “sufficiently important” to satisfy the closely 

drawn scrutiny that applies to contribution limits, the Court had itself previously

stated that that “interest may properly be labeled ‘compelling’”). The Supreme 

Court has already “concluded that a State has a compelling interest in protecting 

voters from confusion and undue influence.” Burson v. Freeman, 504 U.S. 191, 

199 (1992); J.A. 282-84 (explaining why Burson is “instructive here”); Anderson 

v. Celebrezze, 460 U.S. 780, 796 (1983) (“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.”).

2. The Name Identification Requirement is Substantially 

Related to the Government’s Important Interests in 

Limiting Confusion, Fraud, and Abuse Relating to Whether 

Committees Speak on Behalf of Candidates

In revising the name identification regulation in the 1990s, the Commission 

sought to ensure that it was “narrowly designed to further [its] legitimate 

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governmental interest[s].” 1992 Rule, 57 Fed. Reg. at 31,425. That narrow 

tailoring is evident in the both the extremely limited scope of the rule, which 

applies only to committee and project names, and not to any content, and in the 

extensive care with which the FEC crafted and revised the regulation over time. 

See supra pp. 2-9; accord Common Cause, 842 F.2d at 448 (noting that the FEC 

“must allow the maximum of first amendment freedom of expression in political 

campaigns commensurate with Congress’ regulatory aims”). 

PAG itself suggests no less restrictive means of tailoring. (J.A. at 236-37 

(“THE COURT: So you can’t suggest to this court any less restrictive suggestions 

how to calm the kind of confusion the FEC is attempting to protect against? MR. 

TORCHINSKY: In URLs and social media, no, Your Honor.”); PAG’s Br. at 47 

(vaguely suggesting that “a narrowly tailored approach to this supposed problem 

would seek to identify and target the specific contexts in which the use of a 

candidate’s name causes confusion”).)7

 PAG instead simply repeats that it prefers

the Commission’s initial 1980s-era interpretation. But the FEC’s decision to revise

that regulation was based upon the agency’s recognition that “the situation today 

 7 The brief filed by PAG’s amici illustrates why PAG may be reluctant to 

move beyond generalities about the regulation’s tailoring. That brief’s evidencefree assurances about what names might “theoretically” be confusing to 

“inexperienced Facebook users,” as opposed to supposedly “nonconfusing, 

accurate” names like “‘Mike Huckabee Fans’” (PLC and JMC Br. at 11), reveals 

that further tailoring would require more of the kind of subjective analysis by FEC 

Commissioners PAG says it dislikes.

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differs significantly from that of the early 1980’s” and “increasing[] concern[] over 

the possibility for confusion or abuse inherent in [the] interpretation” PAG favors. 

1992 Rule, 57 Fed. Reg. at 31,424. PAG notes that “Facebook, Twitter, and other

forms of ‘social media’ did not exist” during the 1980s (PAG’s Br. at 22 & n.11), 

yet it seeks to reintroduce that era’s obsolete regulatory approach.

The record shows that the Commission specifically considered whether it 

could accomplish its goals through alternative means, and it contains the agency’s 

explanation why the regulation it adopted was superior to alternate proposals, such 

as “stronger,” “larger,” and “bold typeface” disclaimers. 1994 Rule, 59 Fed. Reg.

at 17,268. The Commission thought that those requirements “could be more 

burdensome . . . while still not solving the potential for fraud and abuse in this 

area.” Id. It likewise rejected a proposal to create an exemption for groups “which 

will not actively mislead the public or injure the candidate,” believing this standard

(similar to what PAG suggests) to be vague. Id. at 17,269. And it rejected the idea 

of limiting the issue to the fundraising context by focusing only on “check payees” 

as “proposed in the NPRM.” 1992 Rule, 57 Fed. Reg. at 31,425. 

The Commission also took pains to note how limited the effect of the 

regulation would be in practice: “[W]hile a committee could not establish a 

fundraising project called ‘Citizens for Doe,’ if Doe is a federal candidate, it could 

use a subheading such as ‘Help Us Elect Doe to Federal Office,’ and urge Doe’s 

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election, by name, in large, highlighted type, throughout the communication.” 

1994 Rule, 59 Fed. Reg. at 17,269. Indeed, “[t]he absence here of a total denial of 

any speech rights is precisely how the FEC distinguished” Buckley and FEC v. 

National Conservative Political Action Committee, 470 U.S. 480 (1985), “during 

the rulemaking process back in the early 1990s, noting that both of those cases 

involved total bans on independent expenditures, or certain types of independent 

expenditures, whereas the Special Projects Name Regulation did not.” (J.A. 285 

(internal quotation marks omitted).) The district court rightly agreed that the 

regulation thus has a “limited . . . effect . . . in practice, given that an unauthorized 

committee can still use a candidate’s name in a special project’s subheading and 

urge that candidate’s election, by name, in large, highlighted type, throughout the 

communication.” (J.A. 274 (internal quotation marks omitted).)

Accordingly, “preventing the use of candidate names in the names of 

unauthorized political committee projects is thus ‘responsive to the problem’ of 

confusion, and therefore is substantially related to the government’s important 

disclosure interests.” J.A. 286-87 (internal quotation marks omitted); see also Stop 

Hillary PAC, Supp. Add. 16 (“[T]he fact that the government’s interest only 

impedes on Plaintiffs’ ability to include a candidate’s name in its title alone, 

further demonstrates that § 30102(e)(4) is the least restrictive means of 

accomplishing the government’s interest for transparency in [political 

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committees].” (second emphasis added)). Moreover, the district court correctly 

found that permitting unauthorized political committees to establish special 

projects that use candidate names as PAG desires under the “shell of the actual 

committee would vitiate [the provision].” (J.A. 286 (internal quotation marks 

omitted).) The name identification regulation is substantially related to the

government’s important interest in limiting confusion, fraud, and abuse resulting 

from committee and project names.

C. PAG’s Challenge to the Regulation as a Content-Based Speech 

Restriction Fails

PAG does not dispute the district court’s analysis of the regulation using 

intermediate scrutiny. Instead, it argues that the name identification regulation is 

an impermissible content-based restriction that should be reviewed for strict 

scrutiny. Although the foregoing analysis indicates that the regulation could also 

survive strict scrutiny, that level of scrutiny does not apply. 

Initially, PAG lacks standing to maintain this challenge because, even if the 

Court agreed with PAG and enjoined the allegedly offending portion of the 

regulation, PAG would still not be able to use Mr. Huckabee’s name. And in any 

event, because the regulation is not a content-based restriction, the Supreme 

Court’s decision in Reed is inapplicable and strict scrutiny does not apply.

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1. PAG’s Content-Based Argument Seeks Relief That Will Not 

Redress Its Purported Injury

PAG’s content-based challenge is wholly premised on the notion that 11 

C.F.R. § 102.14(b)(3) “is a content-based speech restriction that prohibits the use 

of a candidate’s name” for “communications that support the candidate’s election, 

but allows other committees to use the candidate’s name in the same manner so 

long as the committees’ communications evidence opposition to the candidate.” 

(PAG’s Br. at 5 (emphasis added).) Again and again, PAG returns to this basis for 

its content-based claim, arguing that the regulation “require[s]” the FEC “to 

examine the content of the communication to discern whether the speech opposes

or supports the candidate whose name appears in the communication” (id. at 26-

27), and that the FEC has created “two categories of speech: (1) speech that shows 

opposition; and (2) speech that does not show opposition. Oppositional speech is 

permitted, while non-oppositional speech is prohibited” (id. at 35). 

PAG is plainly incorrect in suggesting that the content of any committee’s 

communications matter for purpose of the regulation. The name regulation applies 

only to committee and special project names. 11 C.F.R. § 102.14(a)-(b). 

But even if PAG’s argument were corrected to focus on the regulatory 

distinction between the “content” of supportive vs. oppositional project names, 

what is clear is that PAG’s content-based challenge is exclusively to subsection 

102.14(b)(3), the opposition exception the Commission added to the regulation in 

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1994. (For example, PAG does not challenge the different “content” that applies to 

committee names depending upon whether they are authorized or not — i.e., that 

authorized committees must use the “content” of a candidate’s name and 

unauthorized committees must not. (J.A. 260 n.2.)) The remedy to PAG’s claim is 

therefore for the Court to strike subsection 102.14(b)(3), because that judicial 

action would remove the supportive vs. oppositional element of the name rule that 

PAG finds objectionable. PAG’s view is that neither oppositional nor “nonoppositional” names should be permitted.

That remedy would fail to redress PAG’s injury, however. Subsection 

102.14(b)(3) “is severable,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 

(1988), having been separately added to the previously functioning version of the 

regulation by the Commission in its effort for ever more narrow tailoring. Striking 

that severed portion of the regulation would not enable PAG to use Mr. 

Huckabee’s name in its project titles because such use would still violate 

subsection 102.14(a)’s requirement that committees not use candidate names in 

their project titles. Ironically, then, the remedy for this portion of PAG’s challenge 

would be stricter regulation of special project names and, if successful, would not 

allow it to do what it desires. McConnell, 540 U.S. at 229 (“A ruling in the . . . 

plaintiffs’ favor, therefore, would not redress their alleged injury, and they 

accordingly lack standing.”). PAG thus lacks standing to bring this claim. Lujan 

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v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (the “irreducible 

constitutional minimum” of Article III standing contains three elements: (1) 

injury-in-fact, (2) causation, and (3) redressability).8

2. The Regulation is Not a Content-Based Speech Restriction

Even if the standing problem were overlooked, PAG’s content-based 

challenge still fails because section 102.14 is not a content-based restriction. 

(Contra PAG’s Br. at 32-48.) The regulation was not promulgated to “prevent[] 

general confusion” by “ban[ning]” references to candidate names, as PAG 

incorrectly suggests. (Id. at 34; id. at 46 (contending that the regulation is a 

“complete and indiscriminate speech ban”).) Rather, it effectively furthers the 

FEC’s narrower objective of limiting confusion “about the person or group who” is 

making election-related speech and helps make clear that such groups’ 

communications “are not funded by a candidate” or its authorized campaign 

apparatus. Citizens United, 558 U.S. at 368. And “[d]espite the FEC’s use of the 

word ‘ban,’” the district court rightly concluded that the “Name Regulation does 

not ‘ban’ any speech outright.” (J.A. 282.) 

The regulation does not control PAG’s expression any more than FECA’s 

other disclaimer requirements — or even this Court’s commonsense rules 

 8 The district court did not address this argument (J.A. 279), but this Court is 

required “‘to satisfy itself . . . of its own jurisdiction.’” Micei Int’l v. Dep’t of 

Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010). 

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requiring, e.g., the cover of PAG’s brief to be blue and the cover of this brief to be 

red, see D.C. Cir. R. 32(a)(2), thereby helping the Court to distinguish between the 

parties’ briefs at a “glance,” Common Cause, 842 F.2d at 442. 

Indeed, this Court rejected an analogous argument that another FEC 

disclosure regulation wrongly banned content by requiring that a committee’s 

follow-up request seeking a contributor’s information could “not contain anything 

other than the request for the missing information, [a] mandatory statement, and an 

expression of gratitude.” Republican Nat’l Comm. v. FEC, 76 F.3d 400, 404, 409-

10 (D.C. Cir. 1996); see also 11 C.F.R. § 104.7(b)(2) (“The written or oral request 

shall not include material on any other subject or any additional solicitation, except 

that it may include language solely thanking the contributor for the contribution.”). 

Just as PAG believes that the name regulation distinguishes between speech that 

does or “does not show opposition” (PAG’s Br. at 35), the same could be said of a 

follow-up letter requesting information that does or does not show the group’s 

“thank[s],” 11 C.F.R. § 104.7(b)(2). Yet the “simple answer” to the plaintiffs’ 

challenge in that case — and this one — is “Buckley’s holding that the Act’s 

disclosure requirements are not inconsistent with the First Amendment.” 

Republican Nat’l Comm. v. FEC, 76 F.3d at 409. Republican National Committee

is on all fours.

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Contrary to PAG’s emphasis on Reed v. Town of Gilbert, that case does not 

apply here. Reed concerned an Arizona town’s imposition of varying restrictions 

on how, where, and for how long individuals were permitted to display outdoor 

signs, and, in particular, the regulation’s distinct requirements for different 

categories of signs. 135 S. Ct. at 2224-25. All of the Justices agreed that the 

challenged restrictions were unconstitutional and three of them thought that the 

restrictions even failed the “laugh test.” Id. at 2239 (Kagan, J., concurring). The 

law restricted the amount, location, and duration of certain speech on the basis of 

what kind of message the sign communicated. “Ideological messages [we]re given 

more favorable treatment than messages concerning a political candidate, which 

[we]re themselves given more favorable treatment than messages announcing an 

assembly of like-minded individuals.” Id. at 2230. 

The “paradigmatic example of content-based discrimination” at issue in 

Reed, id., is wholly absent from the FEC’s regulation, which permits unauthorized 

committees the unfettered ability to “discuss candidates throughout” the content of 

their “communication; and to use candidates’ names as frequently, and highlight 

them as prominently . . . as they choose,” 1994 Rule, 59 Fed. Reg. at 17,268-69; 

see Republican Nat’l Comm., 76 F.3d at 410 (the regulation leaves committees 

“free to express their views . . . in other communications”); J.A. 284 (the 

requirement “‘doesn’t prohibit the speech at all[,] . . . [i]t just prohibits where you 

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can make the speech’” (using PAG’s counsel’s “own words” attempting to 

distinguish Burson)). That is why the district court correctly determined that Reed

was inapplicable, and why the only other court to consider the question has 

similarly found that, contrary to the sign law at issue in “Reed, § 30102(e)(4) is not 

a content based restriction because it does not ‘target[] speech based on its 

communicative content.’” Stop Hillary PAC, Supp. Add. 11 (quoting Reed, 135 S. 

Ct. at 2226). (Contra PAG’s Br. at 39 (“Every court that has addressed restrictions 

on the content of speech following Reed in the election context has found that Reed

controls.”).)9

Reed is inapposite for the additional reason that the sign law at issue there —

like the regulations involving robocalls, “ballot selfies,” credit card surcharges, and 

advice column at issue in other cases PAG mentions (PAG’s Br. at 40) — did not 

promote any disclosure interest. Nor was it “part and parcel of FECA’s disclosure 

regime” (J.A. 280) that has been deemed constitutional since Buckley and 

overwhelmingly supported by eight current Supreme Court Justices and the 

entirety of this Court as recently as 2010. See supra pp. 34-36 (discussing cases 

from Buckley to McCutcheon). The district court correctly determined that Reed

should not be interpreted to silently displace this longstanding precedent. Cf. 

 9 Even PAG’s amici acknowledge that the regulation may be viewed as 

content-neutral, and accordingly devote the bulk of their brief to analyzing the 

requirement under intermediate scrutiny. (PLC and JMC Br. at 9-21.)

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Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (en banc) (unanimously upholding 

FECA’s provision banning solicitations of, and contributions by, federal 

contractors and not interpreting Reed to alter the intermediate “closely drawn” 

scrutiny the Court has long used to evaluate such contribution restrictions), petition 

for cert. filed sub. nom. Miller v. FEC, No. 15-428 (S. Ct. Oct. 2, 2015); Wagner, 

793 F.3d at 28 & n.33 (citing Reed as an example where the “statutory purpose” 

was “vitiated” by its design, contrasting the upheld FECA provision).

Most fundamentally, PAG’s content-based argument errs by failing to 

recognize the essence of disclosure. FECA’s requirements that committees must 

state “whether [a certain] communication has been paid for and/or authorized by a 

candidate or that candidate’s authorized committee,” or that certain televised 

advertisements “must include a disclaimer that ‘_______ is responsible for the 

content of this advertising’” (J.A. 281 n.6), compel committees to say some things 

and not others. (Contra PAG’s Br. at 39 (asserting that “[n]o disclaimer or 

reporting provision prohibits the use of certain words”).) That PAG must state that 

it is “not authorized” by Mr. Huckabee in certain communications, even though it 

might prefer to state that it “is authorized” or leave the matter ambiguous, does not 

restrict speech based on content. Similarly, PAG’s inability to imply authorization 

by using Mr. Huckabee’s name in the title of its special project does not transform 

the name identification requirement into a content-based restriction.

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Finally, PAG’s contention that the name identification requirement could be 

thought to “apply with equal force to the titles of books or documentary movies” 

(PAG’s Br. at 48) is incorrect. Contrary to its claims, PAG could “legally produce 

a book or movie titled ‘I Like Mike Huckabee’” (id.) because the Commission has 

never determined that a published book (or chapter in a book) or feature-length 

film like “Hillary: The Movie” is a special project of a committee. The regulation 

at issue here refers to “any name under which a committee conducts activities, 

such as solicitations or other communications, including a special project name or

other designation,” 11 C.F.R. § 102.14(a) (emphases added), and thus does not 

apply to every project or communication done under the committee’s own name.

10 

PAG’s hypothetical book or movie “I Like Mike Huckabee” would not be

confusing with respect to who is speaking, because unless PAG (fraudulently) uses 

Mr. Huckabee’s name as the author of the book or script, it would not be 

understood to be by Mr. Huckabee; it would be by PAG. There is also no record 

evidence here — or in the FEC’s 1992 and 1994 rulemakings — that books or 

 10 PAG also errs in contending that the permissibility of the title “Hillary: The 

Movie” turns on whether “that film evidenced clear opposition to Hillary Clinton.” 

(PAG’s Br. at 28.) Setting aside the fact that Citizens United is not a political 

committee, even if “Hillary: The Movie” were an operating name of an 

unauthorized committee, it would be impermissible because it does not “clearly 

and unambiguously show[] opposition” to Hillary Clinton. 11 C.F.R. 

§ 102.14(b)(3). But “Hillary: The Movie” was a film produced by Citizens 

United, and was not a name under which Citizens United was conducting 

activities.

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feature-length films raise the same concerns of confusion, abuse, or fraud 

addressed by the name requirement. 

D. The Regulation Is Not a Prior Restraint

PAG alternatively argues (PAG’s Br. at 48-53) that the name identification 

requirement should be reviewed using strict scrutiny because it operates as a prior 

restraint on its speech. This is also wrong. First, as the district court found in 

agreeing with the FEC, “PAG is free to say whatever it wants about Mr. 

Huckabee.” (J.A. 276 (internal quotation marks omitted).) PAG’s speech cannot 

have been restrained if it is free to say whatever it wants, and PAG is plainly 

wrong in contending that the FEC has “acted as a censor.” (PAG’s Br. at 31.) 

Second, PAG’s prior restraint argument asks the Court to accept the self-defeating

notion that it is being restrained from publishing communications that it has, as a 

matter of fact, already published and is presently publishing by maintaining them 

on the subject websites, as well as its other sites. See

https://www.facebook.com/ilikemikehuckabee; 

http://www.ilikemikehuckabee.com; see also J.A. 69 (“We like Mike Huckabee for 

his integrity, leadership and all that he stands for!”); supra pp. 13-14 (listing 

PAG’s sites, which have been frequently updated during the pendency of this suit).

“The term prior restraint is used to describe administrative and judicial 

orders forbidding certain communications when issued in advance of the time that 

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such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 

(1993) (internal quotation marks omitted) (Supreme Court’s emphasis). 

“Temporary restraining orders and permanent injunctions — i.e., court orders that 

actually forbid speech activities — are classic examples of prior restraints.” Id. 

As the Supreme Court pointed out, at considerable length in the case PAG 

itself cites to define the term, there is a “distinction, solidly grounded in our cases, 

between prior restraints and subsequent punishments.” Id. A subsequent RICO 

forfeiture order, as in Alexander, or a subsequent enforcement proceeding under 

FECA (see J.A. 30-31 ¶¶ 41-42 (PAG’s allegations of fear of future prosecution)), 

is “no prior restraint,” and accepting PAG’s vague characterization would 

“undermine the time-honored distinction between barring speech in the future and 

penalizing past speech.” Alexander, 509 U.S. at 550-53; accord Am. Library Ass’n 

v. Barr, 956 F.2d 1178, 1190 (D.C. Cir. 1992) (“[T]here is nothing ‘previous’ 

about this sanction, not in the respect Near v. Minnesota, 283 U.S. 697, 715 

(1931), used the term.”).

Citizens United, upon which PAG also relies (PAG’s Br. at 49-50), similarly 

fails to support PAG’s characterization of the requirement and advisory opinion as 

a prior restraint. Indeed, the Court in Citizens United confirmed that the regulatory 

scheme under discussion was “not . . . a prior restraint on speech in the strict sense 

of that term, for prospective speakers are not compelled by law to seek an advisory 

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opinion from the FEC before the speech takes place.” 558 U.S. at 335 (emphasis 

added) (comparing Near, 283 U.S. at 712-13). 

The Court did criticize an FEC “two-part, 11-factor balancing test” 

implementing another ruling, cited “the complexity of the regulations,” and said 

that they (along with other aspects of regulation) “function[ed] as the equivalent of 

[a] prior restraint.” Id. But here there is no complex, multi-factor balancing test, 

id., or injunction against the publication of future “malicious, scandalous or 

defamatory” material, Near, 283 U.S. at 706. As we explained to the district court, 

the rule the Commission adopted is deliberately crystalline: subject to three brightline exceptions, “no unauthorized committee shall include 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.” 11 C.F.R. 

§ 102.14(a). The regulation applies only to the name of an unauthorized 

committee and its special projects; it does not restrain any content of such 

committees’ activities or communications. 1994 Rule, 59 Fed. Reg. at 17,268-69; 

contra PAG’s Br. at 3 (arguing that the permissibility of project names depends 

upon whether “the FEC believes the communication adequately evidences 

opposition to the named candidate”); id. at 27 (suggesting that the permissibility of 

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the name turns on whether “PAG’s communications are (or would be) in support” 

of Mr. Huckabee).

Buckley itself rejected an argument attempting to challenge disclosure 

requirements for political committees on the ground that they operated as 

unconstitutional prior restraints. 424 U.S. at 80-83. There, the Supreme Court 

explained that such disclosure requirements bear “a sufficient relationship to a 

substantial governmental interest.” Id. at 80. They serve an “informational 

interest” and increase “the fund of information concerning those who support the 

candidates.” Id. at 81. “The burden [they] impose[],” the Court said, “is no prior 

restraint, but a reasonable and minimally restrictive method of furthering First 

Amendment values by opening the basic processes of our federal election system 

to public view.” Id. at 82 (emphasis added); accord Am. Frozen Food Inst. v. 

Mathews, 413 F. Supp. 548, 555 (D.D.C. 1976) (holding that Food and Drug 

Administration regulation concerning disclosures on food labels did not “constitute 

a prior restraint in violation of the First Amendment”), aff’d sub nom. Am. Frozen 

Food Inst. v. Califano, 555 F.2d 1059 (D.C. Cir. 1977). The name identification 

requirement is no prior restraint.

III. THE DISTRICT COURT CORRECTLY FOUND THAT PAG WAS 

UNLIKELY TO SUCCEED ON ITS APA CHALLENGE 

PAG does not seriously challenge the district court’s finding that it is 

unlikely to succeed on the merits of its APA challenge. (PAG’s Br. at 54-56.) 

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PAG concedes that the FEC is owed “‘substantial deference’” in interpreting its 

own regulation (see also J.A. 271), but argues that the CAP Advisory Opinion is 

arbitrary, capricious, and contrary to law because it applied the rule “in a manner 

that goes far beyond the FEC’s asserted justification and intent,” relying on its ipse 

dixit that there is “no potential for fundraising fraud, abuse or confusion” in such 

circumstances. (PAG’s Br. at 55 (emphasis added).) 

The district court correctly rejected PAG’s incorrect premise that the 

agency’s justification was limited to fundraising abuses. (J.A. 272-77.) It credited 

the FEC’s actual explanations; it observed that “the words ‘Other Use of Candidate 

Names’” in the titles of the FEC’s explanations and justifications “clearly

reveal[ed] a ‘focus’ on the use of candidate names in the titles of things other than 

special fundraising projects”; and it found that PAG’s interpretation could allow 

unauthorized committees to exploit ambiguity about their candidate-authorization 

statuses even in non-solicitation communications. Id.; see supra pp. 15-17. It also 

agreed with the FEC (J.A. 275-76) that the evidence showing confusion on the “I 

Like Mike Huckabee” Facebook page validated the concerns regarding confusion 

shared by Congress, the FEC, and this Court. Common Cause, 842 F.2d at 442

(section 30102(e)(4) “avoids the kind of confusing disclaimer previously possible, 

‘Paid for by Reagan for President. Not authorized by President Reagan,’ and 

makes [52 U.S.C. § 30120(a)’s] disclaimers more effective”).

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PAG is wrong that, prior to the CAP Advisory Opinion, the “FEC previously 

evidenced no intent to apply the [regulation] to modern social media platforms, and 

subsequently expressed an intent not to regulate such Internet communications.” 

(PAG Br. at 55.) PAG’s assertion is belied by the agency’s application of the 

name regulation in the NewtWatch Advisory Opinion, in which the agency 

determined in 1995 that “[t]he operation of a World Wide Web site would be 

considered a project of the Committee.” 1995 WL 247474, at *5 (emphasis 

added).

PAG further errs in contending that the name identification requirement 

“cannot be applied to [its] Facebook or Twitter communications” under 11 C.F.R. 

§ 110.11(a) because such messages are not “‘public communications.’” (PAG’s 

Br. at 55-56.) Nothing in section 110.11 “conflict[s] with” (id. at 51) or relieves 

political committees of their obligation to comply with FECA’s name 

identification requirement. And for good reason. (See J.A. 276 (noting that the 

confusion on the “I Like Mike Huckabee” Facebook page exists despite other 

disclaimers, “reinforc[ing] the FEC’s finding” that the other disclaimers such as 

those imposed by section 110.11 are “not, on [their] own, sufficient to address the 

kind of confusion that the” regulation “was designed to protect against”).)

The FEC’s regulation reflects a considered, well-reasoned, and measured 

approach to implementing section 30102(e)(4). Consistent with its mandate to 

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“protect[] the integrity of the electoral process,” and to prevent confusion, fraud, 

and abuse, 1994 Rule, 59 Fed. Reg. at 17,267-68, the FEC broadened its 

interpretation of section 30102(e)(4) in a deliberate, bipartisan manner. See 

Common Cause, 842 F.2d at 440-41 (observing that an interpretation similar to the 

one the FEC adopted in 1992 could “be accommodated within the provision’s 

literal language” under Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984)); accord FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981) (“[T]he Commission is precisely the 

type of agency to which deference should presumptively be afforded.”). The rule 

was revised based upon the “substantial evidence” in the record, which established 

both the increasing “use of candidate names in the titles of projects or other 

unauthorized communications . . . for unauthorized committees to raise funds or 

disseminate information” and actual instances in which contributors had apparently 

been confused by the use of candidate names in fundraising projects by 

unauthorized committees. 1994 Rule, 59 Fed. Reg. at 17,268 (emphasis added). 

Indeed, “[p]rogram investigators found that elderly people are particularly 

vulnerable to being misled in this manner.” Id.

Accordingly, the district court found “no reason to doubt or question the 

conclusion reached by the FEC, after two rounds of full-bore notice-and-comment 

rulemaking.” (J.A. 286 (internal quotation marks omitted).) The Commission was 

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reasonably concerned that voters may fail to distinguish between projects of the 

actually authorized “Huckabee for President, Inc.” committee and an unauthorized 

committee’s project that might be named, say, “Huckabee for America” or 

“Citizens for Huckabee.” Because “the relevant evidence from the 1992 and 1994 

rulemakings thus establishe[d] the requisite ‘rational connection between the facts 

found and the choice made’ in promulgating the [revisions to 11 C.F.R. 

§ 102.14(a)-(b)], as well as in issuing the CAP Advisory Opinion” (J.A. 273 

(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29, 43 (1983))), the district court rightly determined that PAG is unlikely 

to succeed on the merits of its APA challenge. 

IV. THE DISTRICT COURT CORRECTLY FOUND THAT NONE OF 

THE OTHER FACTORS SUPPORTED ENTERING A

PRELIMINARY INJUNCTION

PAG’s cursory treatment of the other preliminary injunction elements 

incorrectly presumes the validity of its invalid merits arguments. (PAG’s Br. 52-

53.) But consideration of these factors “reinforce[s the district court’s] finding that 

the entry of a preliminary injunction [wa]s not warranted here.” (J.A. 288.)

A. PAG Failed to Demonstrate Irreparable Injury

“[T]he basis of injunctive relief in the federal courts has always been 

irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation and 

internal quotation marks omitted). This Court “has set a high standard for 

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irreparable injury,” underscoring that the injury “must be both certain and great . . . 

actual and not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 

F.3d 290, 297 (D.C. Cir. 2006) (internal quotation marks omitted). Here, “PAG 

has not demonstrated that . . . it will be prevented from speaking, as opposed to 

merely having . . . [its] referencing of candidate names . . . relegated from the titles 

of its special project communications to the bodies of those communications.” 

(J.A. 288-89.) 

PAG purports to rely on Elrod v. Burns, 427 U.S. 347 (1976) (plurality), but 

Elrod held that conditioning municipal employment on membership in a particular 

political party was an unconstitutional infringement on First Amendment rights. 

Id. at 372. That holding rested on the finding that government employees had 

already been “threatened with discharge or had agreed to provide support for the 

Democratic Party in order to avoid discharge,” and it was “clear therefore that First 

Amendment interests were either threatened or in fact being impaired at the time 

relief was sought.” Id. at 373. Elrod thus did not eliminate a First Amendment 

plaintiff’s burden to show that its interests are actually threatened or being 

impaired. Nat’l Treasury Emps. Union v. United States, 927 F.2d 1253, 1254-55 

(D.C. Cir. 1991).

PAG’s claim (PAG’s Br. at 53) that it has “‘los[t]’” its First Amendment 

freedoms is incorrect. In contrast to PAG’s assertion that not being able to use Mr. 

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Huckabee’s name “prohibits [its] speech advocating for the nomination and 

election of” Mr. Huckabee (PAG’s Br. at 1 (emphasis added)), PAG is in fact “free 

to say whatever it wants about Mr. Huckabee” (J.A. 276 (internal quotation marks 

omitted)). If it does not want to bring the “I Like Mike Huckabee” website and 

Facebook page into compliance by moving its use of Mr. Huckabee’s name to a 

subheading, it can simply continue to use its other websites, Facebook pages, 

Twitter accounts, or YouTube channel. See supra pp. 13-14; see also J.A. 284, 

290 (discussing Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. 

District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (per curiam)

(issuance of permit for shorter than requested parade route did “not constitute 

irreparable harm” because group could still “convey their message”)). There are 

no reasons for PAG to have stopped updating the Huckabee website and Facebook 

page yet leave them publicly available other than litigation-driven ones. The 

Facebook page and website remain in plain violation of the name regulation 

because the titles still improperly include the name of a candidate, while the 

regulation has never restricted their content. All the name identification 

requirement does is limit the extent to which PAG can suggest through the names 

under which it operates that its speech is Mr. Huckabee’s when it is not. 

PAG is also free to spend the millions of dollars it has raised on as many 

social media posts and communications supporting Mr. Huckabee’s candidacy as it 

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wishes. Super PACs like PAG routinely raise millions of dollars. In the current 

presidential election cycle, for example, the super PAC “Right to Rise” has already 

raised more than $100 million. FEC, Candidate and Committee Viewer (Right to 

Rise), http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do.

11 PAG itself 

has raised millions of dollars and has spent more than $1.4 million on direct mail 

and other advertising supporting Mr. Huckabee or opposing one of his rivals. See 

supra pp. 13-14 & n.4. PAG is not being harmed by having to identify itself in a 

way that is not misleading, and its assertion that it has “stopped speaking” (PAG’s 

Br. at 53) is specious.

B. The Relief PAG Requests Would Harm the Government and 

Undercut the Public Interest

Permitting PAG’s unauthorized desired use of Mr. Huckabee’s name would 

undermine the government’s interests in limiting fraud, abuse, and confusion, 

thereby harming the public and the government. This harm is evident from the 

confusion shown on the unauthorized “I Like Mike Huckabee” Facebook page. 

(J.A. 275-76.)

 11 Contrary to PAG’s contention that the use of a candidate’s name is 

necessary to enable an authorized committee that supports a candidate to be “easily 

found” on the Internet (PAG’s Br. at 47-48), a Google search for “Jeb Bush super 

PAC” returns Right to Rise’s website as the first listed result. A search for “Mike 

Huckabee super PAC” returns PAG’s website as the second listed result. (Exh. 1 

(Google searches as of January 8, 2016).)

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The current version of the name identification requirement has been law for 

twenty-one years. There is a “presumption of constitutionality which attaches to 

every Act of Congress,” and that presumption is “an equity to be considered in 

favor of [the government] in balancing hardships.” Walters v. Nat’l Ass’n of 

Radiation Survivors, 468 U.S. 1323, 1324 (1984); Stop This Insanity, Inc. Emp. 

Leadership Fund v. FEC, 902 F. Supp. 2d 23, 50 (D.D.C. 2012) (same), aff’d, 761 

F.3d 10 (D.C. Cir. 2014). Furthermore, “upsetting [the FEC’s] regulatory 

framework with the upcoming Presidential election just over the horizon. . . would 

be imprudent, to say the least, and certainly not in the public interest.” (J.A. 290 

(internal quotation marks omitted).) The Supreme Court has made clear that “[t]he 

purpose of a preliminary injunction is merely to preserve the relative positions of 

the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 

U.S. 390, 395 (1981). Granting preliminary relief in this case would do precisely 

the opposite.

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CONCLUSION

For the foregoing reasons, the decision below should be affirmed. 

Respectfully submitted,

Daniel A. Petalas

Acting General Counsel

Lisa J. Stevenson 

Deputy General Counsel — Law

Kevin Deeley

Acting Associate General Counsel

January 13, 2016 

Erin Chlopak 

Acting Assistant General Counsel

/s/ Charles Kitcher 

Charles Kitcher 

Attorney

COUNSEL FOR APPELLEE

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

Washington, DC 20463

(202) 694-1650

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 13,731 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman.

/s/ Charles Kitcher 

Charles Kitcher

Attorney

Federal Election Commission

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of January, 2016, I electronically filed 

the Brief for the Federal Election Commission with the Clerk of the United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through CM/ECF:

Jason Torchinsky 

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

jtorchinsky@hvjlaw.com

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk.

/s/ Charles Kitcher 

Charles Kitcher

Attorney

Federal Election Commission

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SUPPLEMENTAL ADDENDUM 

TABLE OF CONTENTS

Stop Hillary PAC v. FEC, No. 15-1208, 

Mem. Op. and Order (E.D. Va. Dec. 21, 2015)...................... Supp. Add. 1

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Supp. Add. 1

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Supp. Add. 3

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Supp. Add. 4

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EXHIBIT 1 

 

USCA Case #15-5264 Document #1593393 Filed: 01/13/2016 Page 1 of 5

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1/8/2016 Jeb Bush super PAC ­ Google Search

https://www.google.com/?gws_rd=ssl#q=Jeb+Bush+super+PAC 1/2

About 722,000 results (0.35 seconds)

In the news

Elizabeth Warren slams former AIG CEO over

huge political donation

TheStreet.com ­ 6 hours ago

Elizabeth Warren is no fan of Hank

Greenberg, and on Friday, she took to Twitter

to let the ...

Hank Greenberg Gives $10 Million to Super PAC Backing Jeb

Bush

Wall Street Journal ­ 1 day ago

The biggest donor to Jeb Bush's super PAC says Bush is 'not

living up to expectations' Washington Post ­ 1 day ago

More news for Jeb Bush super PAC

Support Jeb in 2016 ­ Don’t let Trump or Hillary win

Ad www.jeb2016.com/

Show your support, donate now!

Right to Rise PAC

https://righttorisepac.org/

Contributions to Right to Rise PAC, Inc. are not tax deductible.

Contributions to Right to Rise PAC, Inc. will be used in

connection with federal elections and are ...

How Jeb Bush's Super PAC Will Spend $103 Million | TIME

time.com/3951931/jeb­bush­super­pac­fundraising/

Jul 9, 2015 ­ GOP presidential candidate Jeb Bush's super

PAC raised a record $103 million—more than nine times what

his campaign reported raising.

Time

Hank Greenberg Gives $10 Million to Super PAC Backing ...

www.wsj.com/.../hank­greenberg­gives­10­million­t...

1 day ago ­ Hank Greenberg Gives $10 Million to Super PAC

Backing Jeb Bush. Contribution to Right to Rise USA marks

milestone in unprecedented flow ...

The Wall Street Journal

Jeb Bush SuperPAC Going Up With $24 Million In TV Ads ...

www.npr.org/sections/.../jeb­bush­superpac­to­spend­24­million­on­ad...

Sep 15, 2015 ­ The ad wars are about to start in earnest. And

the best­funded superPAC is about to dominate the airwaves in

support of Jeb Bush.

NPR

Warren rips into Jeb Bush and Hank Greenberg over super ...

www.politico.com/.../elizabeth­warren­jeb­bush­hank­greenberg­...

20 hours ago ­ Warren rips into Jeb Bush and Hank Greenberg

over super PAC donation ... million to the super PAC

Politico

All News Videos Images Shopping More Search tools

Jeb Bush super PAC Sign in

USCA Case #15-5264 Document #1593393 Filed: 01/13/2016 Page 2 of 5

(Page 95 of Total)
1/8/2016 Jeb Bush super PAC ­ Google Search

https://www.google.com/?gws_rd=ssl#q=Jeb+Bush+super+PAC 2/2

right to rise super pac

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jeb bush fundraising

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Searches related to Jeb Bush super PAC

1 2 3 4 5 6 7 8 9 10 Next

supporting what she called Bush's “dying ...

You Won't Believe How Much Money Jeb Bush's Super­PAC ...

www.motherjones.com/.../jeb­bush­super­pac­right­to­rise­...

Jul 9, 2015 ­ Right to Rise, the super­PAC backing former

Florida governor Jeb Bush, reported raising $103 million in the

first six months of this year.

Mother Jones

That $10 Million Super PAC Donation Jeb's ... ­ Slate

www.slate.com/.../jeb_bush_campaign_over_hypes_hank_greenber...

1 day ago ­ The Wall Street Journal on Thursday offered up

what seemed like some desperately needed good news for Jeb

Bush: former AIG chief Hank ...

Slate

Jeb Bush super PAC drops $24 million on ads ­ CNNPolitics ...

www.cnn.com/2015/09/.../jeb­bush­right­to­rise­ad­buy­24­million/

Sep 15, 2015 ­ (CNN) Let the air wars begin. Right to Rise, the

super PAC supporting former Florida Gov. Jeb Bush's

presidential campaign, is laying down ...

CNN

Jeb Bush 2016: Right to Rise super PAC, his big­money ...

www.politico.com/story/.../jeb­bush­right­to­rise­super­pac­campaign­1177...

Jeb Bush is putting in motion an ambitious plan to develop a

super PAC that would be unprecedented in its size and scope

— a blueprint ...

Mike Murphy: Rubio's Campaign is 'Cynical,' ­ Bloomberg

www.bloomberg.com/.../mike­murphy­rubio­s­campaign­is­cynical­kasich­...

Jeb Bush's super­PAC chief on campaign strategy and tactics

—and, oh yes, on his competitors' shortcomings. Part two of a

frank Q&A.

Who's Behind the Ghost Companies Funding Jeb Bush's ...

www.motherjones.com/.../ghost­companies­funding­jeb­bush­super­pac­rig...

In February, a limited liability company called TH Holdings LLC

donated $100,000 to Right to Rise, the super­PAC supporting

Jeb Bush's bid ...

Arlington, VA ­ From your Internet address ­ Use precise location ­ Learn more

Help Send feedback Privacy Terms

USCA Case #15-5264 Document #1593393 Filed: 01/13/2016 Page 3 of 5

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1/8/2016 Mike Huckabee super PAC ­ Google Search

https://www.google.com/webhp?hl=en#hl=en&q=Mike+Huckabee+super+PAC 1/2

About 342,000 results (0.35 seconds)

Huckabee super PAC raises $3.6 million, mostly from one ...

www.politico.com/.../mike­huckabee­super­pac­raises­36­million...

Jul 31, 2015 ­ Almost all the money raised by the super PAC

supporting former Arkansas Gov. Mike Huckabee came from

one donor: Ronald Cameron of ...

Politico

Pursuing America's Greatness: Mike Huckabee | Super PAC

pagpac.com/

Pursuing America's Greatness is the Super PAC supporting

former Arkansas Governor Mike Huckabee for President.

Mike Huckabee super PAC pays Mike Huckabee's company ...

https://www.opensecrets.org/.../mike­hucka...

Aug 11, 2015 ­ Republican presidential candidate Mike

Huckabee serves as president of Blue Diamond Travel, which

received nearly $30,000 from a super ...

Center for Responsive Politics

Mike Huckabee super PAC launched | OnPolitics

onpolitics.usatoday.com/.../mike­huckabee­super­pac­launch...

Apr 2, 2015 ­ Super PACs that can raise unlimited donations

have become the must­have accessory in many 2016

presidential campaigns. Republican Mike ...

USA Today

Huckabee Super PAC Tries to Regain Hold on Iowa ... ­ Time

time.com/4164738/mike­huckabee­super­pac­ad­iowa/

Dec 30, 2015 ­ The super PAC supporting former Arkansas

Gov. Mike Huckabee is launching a new ad campaign in Iowa

this week, hoping to help the ...

Time

Iowa Operative Will Run Mike Huckabee Super PAC ­ First ...

www.nytimes.com/.../iowa­operative­will­run­mike...

Apr 2, 2015 ­ Nick Ryan, who worked on a “super PAC” in

support of Rick Santorum's caucuses victory over Mitt Romney

in Iowa in 2012, will be the ...

The New York Times

The 2016 presidential contenders and their big­money ...

https://www.washingtonpost.com/apps/.../1677/

Eighteen White House hopefuls have ties to super PACs or

other groups that can raise unlimited donations ... Mike

Huckabee (R), former Arkansas governor.

The Washington Post

Mega­Donor Keeps Super PAC Supporting Mike Huckabee ...

www.nationaljournal.com/.../mega­donor­keeps­super­p...

Jul 31, 2015 ­ Mega­Donor Keeps Super PAC Supporting Mike

Huckabee Afloat. One donor gave $3 million to a committee

backing the Republican ...

National Journal

The big money behind the super PACs ­ CNNPolitics.com

www.cnn.com/2015/07/30/.../super­pac­fundraising­filing­fec/ CNN

All News Videos Images Shopping More Search tools

Mike Huckabee super PAC Sign in

USCA Case #15-5264 Document #1593393 Filed: 01/13/2016 Page 4 of 5

(Page 97 of Total)
1/8/2016 Mike Huckabee super PAC ­ Google Search

https://www.google.com/webhp?hl=en#hl=en&q=Mike+Huckabee+super+PAC 2/2

pursuing america's greatness pac

ronald cameron

bobby jindal super pac

mountaire

chris christie super pac

believe again pac

rand paul super pac

ben carson super pac

Searches related to Mike Huckabee super PAC

1 2 3 4 5 6 7 8 9 10 Next

Jul 31, 2015 ­ Carly for America ­­ which is the super PAC, not

the campaign ... The independent group supporting Mike

Huckabee raised $3.6 million.

Huckabee Backer Forms Super PAC to Support Ex ...

blogs.wsj.com/.../huckabee­backer­forms­super­pac...

Apr 2, 2015 ­ Former Arkansas Gov. Mike Huckabee is the

latest potential 2016 candidate to get his own super PAC. The

committee, called Pursuing ...

The Wall Street Journal

Arlington, VA ­ From your Internet address ­ Use precise location ­ Learn more

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USCA Case #15-5264 Document #1593393 Filed: 01/13/2016 Page 5 of 5

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