1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

PURSUING AMERICA’S GREATNESS )

) Civil Case No. 15-1217 (TSC)

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

)

Defendant. )

_________________________________________ )

PLAINTIFF’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY 

JUDGMENT

Jason Torchinsky (D.C. Bar No. 976033)

J. Michael Bayes (D.C. Bar No. 501845)

Shawn Sheehy

Steven P. Saxe

Phillip M. Gordon 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Counsel for Plaintiff Pursuing America’s Greatness

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 1 of 42
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................2

STATEMENT OF FACTS ..............................................................................................................4

STANDARD OF REVIEW.............................................................................................................7

ARGUMENT...................................................................................................................................8

I. HISTORY OF THE PAC NAME PROHIBITION....................................................10

1. The FEC’s Original View of the PAC Name Prohibition (1980-1992)............11

2. The FEC’s 1992 Rulemaking Expanded the Scope of the PAC Name 

Prohibition.........................................................................................................12

3. The FEC’s 1994 Rulemaking Recognized the Overbreadth of the 1992 

Rule ...................................................................................................................14

4. FEC Application of the PAC Name Prohibition to Website URLs..................15

II. THE FEDERAL ELECTION COMMISSION’S CURRENT 

FORMULATION OF THE PAC NAME PROHIBITION AS APPLIED TO 

PLAINTIFF. ...............................................................................................................19

1. Collective Actions PAC’s Advisory Opinion Request. ....................................19

2. Application of Advisory Opinion 2015-04 (Collective Actions PAC) to 

Plaintiff..............................................................................................................22

III. THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT HELD THAT 

THE PAC NAME PROHIBITION IS A CONTENT-BASED SPEECH BAN 

AND THAT PAG WAS SUBSTANTIALLY LIKELY TO SUCCEED ON 

THE MERITS BECAUSE THE PAC NAME PROHIBITION IS NOT 

NARROWLY TAILORED. .......................................................................................23

IV. THE FEC’S CONTENT-BASED PAC NAME PROHIBITION CANNOT 

SURVIVE STRICT SCRUTINY. ..............................................................................25

1. The PAC Name Prohibition Is Disconnected From the FEC’s Asserted 

Compelling Interest...........................................................................................25

2. The PAC Name Prohibition Is Not Narrowly Tailored ....................................29

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 2 of 42
ii

i. The FEC Could Achieve Its Goals With Larger Disclaimers or 

More Precise Name Requirements..........................................................31

ii. It Is Insufficient to Sustain the FEC’s Content-Based Speech Ban 

Because Disclaimers on Facebook Sponsored Ads and Twitter 

are Impracticable .....................................................................................33

iii. The FEC’s Content-Based Speech Ban Is Not Saved Because 

PAG Still Actively Advocated for the Nomination and Election 

of Mike Huckabee for President, Despite Not Speaking Through 

the I Like Mike Huckabee Website and Facebook Page.........................35

CONCLUSION..............................................................................................................................36

CERTIFICATE OF SERVICE ......................................................................................................37

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 3 of 42
iii

TABLE OF AUTHORITIES 

CASES 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................7, 8

Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)...............................8

Brown v. Entm't Merchs. Ass'n, 564 U.S. 786 (2011) .......................................................15, 25, 28

Brown v. Hartlage, 456 U.S. 45 (1982).........................................................................................29

Burson v. Freeman, 504 U.S. 191 (1992)................................................................................25, 26

Citizens United v. FEC, 558 U.S. 310 (2010)..................................................................................9

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................11, 12

Frisby v. Schultz, 487 U.S. 474 (1988)....................................................................................29, 30

Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006) ........................................................................8

McConnell v. FEC, 540 U.S. 93 (2003).........................................................................................23

*McCullen v. Coakley, 134 S. Ct. 2518 (2014) .....................................................10, 23, 25, 28, 30

McCutcheon v. FEC, 134 S. Ct. 1434 (2014)......................................................................3, 24, 30

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000) ............................................................26, 28

Police Dep't of Chi. v. Mosley, 408 U.S. 92 (1972)........................................................................9

Pursuing America's Greatness v. FEC, 132 F. Supp. 3d 23, 36, 42 (D.D.C. 2015)........................6

*Pursuing America's Greatness v. FEC, 831 F.3d 500

(D.C. Cir. 2016)....................................................2, 3, 6, 8, 10, 23, 24, 25, 26, 29, 30, 31, 35

Pursuing America's Greatness v. FEC, No. 15-5264 (D.C. Cir. Jan. 13, 2016)

(Doc. No. 1593393)............................................................................................27, 31, 32, 34

R. A. V. v. St. Paul, 505 U.S. 377 (1992).........................................................................................9

*Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)...........................................................2, 9, 24, 29

Republican Party of Minn. v. White, 536 U.S. 765 (2002)............................................................29

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 4 of 42
iv

Scott v. Harris, 550 U.S. 372 (2007) ...............................................................................................7

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .............................................................................9

*United States v. Playboy Entm't Grp., 529 U.S. 803

(2000) .......................................................................2, 3, 8, 25, 26, 28, 29, 30, 31, 32, 33, 35

United States v. Virginia, 518 U.S. 515 (1996) .............................................................................26

Ward v. Rock Against Racism, 491 U.S. 781 (1989).....................................................................35

Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109 (D.C. Cir. 2016)...........................................8

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015)........................................................................2

CONSTITUTIONS AND STATUTES

U.S. Const. amend. I........................................................................................................................8

2 U.S.C. § 432................................................................................................................................12

52 U.S.C. § 30102........................................................................................................10, 11, 12, 16

52 U.S.C. § 30108..........................................................................................................................22

RULES AND REGULATIONS

11 C.F.R. § 102.14.............................................2, 4, 6, 9, 10, 12, 14, 15, 16, 18, 20, 21, 22, 23, 25

11 C.F.R. § 110.11...................................................................................................................31, 33

57 Fed. Reg. 31,424 (July 15, 1992)......................................................................12, 13, 27, 28, 32

59 Fed. Reg. 17,267 (April 12, 1994)..........................................................................11, 14, 24, 27

67 Fed. Reg. 49,064, 49,072 (July 29, 2002).................................................................................17

71 Fed. Reg. 18,589 (April 12, 2006)............................................................................................17

Fed. R. Civ. P. 56(a) ........................................................................................................................7

OTHER AUTHORITIES

FEC Advisory Opinion Request 1995-09 (NewtWatch PAC) ..............................15, 16, 18, 20, 21

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 5 of 42
v

FEC Advisory Opinion 2010-19 (Google, Inc.) ......................................................................17, 34

FEC Advisory Opinion 2011-09 (Facebook, Inc.).............................................................17, 33, 34

FEC Advisory Opinion 2015-04 (Collective Actions PAC)..........................2, 4, 18, 19, 20, 21, 22

MUR 6399 (Yoder), Statement of Reasons of Vice Chair Hunter and Commissioners 

McGahn and Petersen (June 23, 2011).................................................................................18

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 6 of 42
2

INTRODUCTION

Pursuing America’s Greatness (“PAG”) challenges the constitutionality of the FEC’s 

PAC Name Prohibition, a regulation that the U.S. Court of Appeals has already ruled is subject 

to strict scrutiny because it is a content-based speech ban, “pure and simple.” See Pursuing 

America's Greatness v. FEC, 831 F.3d 500, 509-10 (D.C. Cir. 2016). The PAC Name Prohibition 

prohibits unauthorized political committees from using a candidate’s name in its website URL, 

Twitter handle, or in the name of the committee’s Facebook page, unless the name 

unambiguously expresses opposition to the candidate. See 11 C.F.R. § 102.14(a) and (b)(3); FEC 

AO 2015-04 (Collective Actions PAC) (Ver. Compl. Ex. 2) (Dkt. No. 1-2). 

The FEC bears the burden of proving that the PAC Name Prohibition furthers a 

compelling governmental interest and is narrowly tailored to achieve the government’s identified 

compelling interest. See Pursuing America’s Greatness, 831 F.3d at 510 (citing Reed v. Town of 

Gilbert, 135 S. Ct. 2218, 2231 (2015)). As the Supreme Court has stated on several occasions, “it 

is the ‘rare case[ ] in which a speech restriction withstands strict scrutiny.’” Reed, 135 S. Ct. at 

2236 (Kagan, J., concurring) (alteration in original) (quoting Williams-Yulee v. Fla. Bar, 135 S. 

Ct. 1656, 1666 (2015)); see also United States v. Playboy Entm’t Grp., 529 U.S. 803, 818 (2000)

(“It is rare that a regulation restricting speech because of its content will ever be permissible.”). 

The FEC cannot meet its burden and this Court should grant PAG’s Motion for Summary 

Judgment. 

First, the D.C. Circuit assumed, without examining the record evidence, that the FEC has

a compelling interest in “avoiding” voter confusion. After eight months of discovery, however, 

the FEC has no record evidence, from this litigation or in the Federal Register, to support its 

argument that “voter confusion” actually occurs as a result of an unauthorized political 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 7 of 42
3

committee’s use of a candidate’s name in a special project website, Twitter handle, or Facebook 

page where the committee is not soliciting campaign contributions. In other words, while there 

may be a compelling interest in avoiding voter confusion, there is no evidence of any actual 

voter confusion resulting from the type of activity at issue here. The FEC’s regulation is a 

solution to a problem that does not exist, meaning the FEC’s compelling interest argument is 

inapplicable. 

Second, even if there were sufficient evidence to demonstrate an actual voter confusion 

problem, the PAC Name Prohibition is not narrowly tailored to address the government’s 

compelling interest. The PAC Name Prohibition is a content-based ban on speech. See Pursuing 

America’s Greatness, 831 F.3d at 508, 510. The U.S. Supreme Court has repeatedly stated that 

disclaimers and disclosure requirements are less restrictive means than flat bans on speech. See 

McCutcheon v. FEC, 134 S. Ct. 1434, 1460 (2014). There is, however, nothing in the record 

demonstrating that disclaimers are somehow insufficient to address the purported compelling 

interest of preventing voter confusion. Playboy Entm’t Grp., 529 U.S. at 813 (“If a less 

restrictive alternative for achieving that interest exists, the government must use that 

alternative.”). “The FEC offered no evidence that larger or differently worded disclosures would 

be less effective at curing fraud or abuse than a ban on speech. Nor did the FEC make an effort 

to explain why such disclosures would be more burdensome.” Pursuing America's Greatness, 

831 F.3d at 510-11. The FEC’s “anecdote and supposition” is insufficient “to support a 

regulation subject to strict scrutiny.” Id. at 511 (citation omitted). Accordingly, the FEC’s PAC 

Name Prohibition is not narrowly tailored. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 8 of 42
4

STATEMENT OF FACTS

In the months preceding the Republican primary elections, PAG sought to exercise its 

First Amendment rights in a revolutionary manner. Statement of Material Facts ¶¶ 10-11

[hereinafter SMF]. In July 2015, PAG associated with Strategic Media 21, which had cultivated 

more than 170,000 individuals who had affirmatively indicated support for Mike Huckabee, so 

that PAG could disseminate its message directly to those 170,000 individuals through a 

Facebook page and website titled “I Like Mike Huckabee”. SMF ¶ 10-11. By comparison,

approximately 10,000 individuals had affirmatively “liked” PAG’s Facebook page. SMF ¶ 11. 

Under the arrangement with Strategic Media 21, PAG would craft and approve the content to be 

placed on the “I Like Mike Huckabee” websites. SMF ¶ 10. The content on the “I Like Mike 

Huckabee” sites would be positive in nature, which is unique to Super PACs in the current 

political climate. SMF ¶ 11. This is in contrast to PAG’s own speech, which did speak 

negatively about Mike Huckabee’s primary opponents. SMF ¶ 11. 

Before PAG could fully implement its plans, however, the FEC issued an advisory 

opinion to a similarly-situated organization. In Advisory Opinion 2015-04 (Collective Actions

PAC) (July 16, 2015), the FEC determined that an unauthorized committee’s use of a candidate’s 

name in special project website URLs, Facebook page names, and Twitter handles violated the 

FEC’s PAC Name Prohibition unless unambiguous opposition to the named candidate is 

expressed. SMF ¶ 13. See also 11 C.F.R. § 102.14(a)-(b) (2017). The FEC’s advisory opinion 

served to prohibit PAG from speaking directly to the 170,000 individual known supporters of 

Mike Huckabee through its “I like Mike Huckabee” Facebook page, website URL at

www.ilikemikehuckabee.com, and Twitter handle. SMF ¶¶ 13-14.

PAG registered with the FEC as an unauthorized independent expenditure committee on 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 9 of 42
5

March 11, 2015. SMF ¶ 1. PAG is an Arkansas corporation organized under Section 527 of the 

Internal Revenue Code. SMF ¶ 2. Although now PAG advocates for candidates who promote 

conservative principles, when it was first organized, PAG focused its efforts on independently 

advocating for the nomination and election of Mike Huckabee for President. SMF ¶¶ 3-4.

To advocate for the nomination and election of Mike Huckabee, PAG used several tools 

that it had at its disposal. SMF ¶ 9. These tools include television and radio advertisements, 

direct mail, and online marketing. SMF ¶ 9. PAG owns and operates a Facebook page, Twitter 

account, and website. SMF ¶¶ 5-7. PAG spent $3.5 million in independent expenditure 

advertisements advocating for Mike Huckabee. SMF ¶ 9. 

On approximately July 9, 2015, PAG added additional tools to its toolbox, namely, the 

use of special project Facebook pages and websites bearing the title “I Like Mike Huckabee.”

SMF ¶ 10. These pages and websites were revolutionary and the Facebook page already 

contained approximately 170,000 individuals who had already affirmatively “liked” Mike 

Huckabee. SMF ¶ 11. PAG does not and will not use these pages for soliciting contributions. 

SMF ¶ 19. It was also revolutionary because PAG would use these special projects to speak in a 

positive manner. SMF ¶ 11. In fact, PAG intended to brand and market the “I Like Mike 

Huckabee” website and Facebook page as well as develop a strategy for the page’s positive 

messaging. SMF ¶ 11. A Super PAC developing a strategy around positive messaging for a 

candidate it supports is a unique approach in today’s political climate. SMF ¶ 11. 

Approximately one week later, however, the FEC issued its advisory opinion to the 

Collective Actions PAC. The FEC concluded that Collective Actions PAC—a pro-Bernie 

Sanders Super PAC—was prohibited from using Bernie Sander’s name in its special project

website URLs, Twitter handles, and Facebook page names under the PAC Name Prohibition. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 10 of 42
6

SMF ¶ 13. Because the advisory opinion involved substantially similar material facts, PAG 

immediately halted all speech through its special project name websites, Facebook page, and 

Twitter handle. SMF ¶¶ 12-14, 16-17. 

On July 27, 2015, PAG filed its verified complaint in this Court seeking a declaratory 

judgment that 11 C.F.R. § 102.14(a) and (b)(3) are unconstitutional under the First Amendment. 

SMF ¶ 15. PAG also sought to enjoin the FEC from enforcing its unconstitutional regulation. 

SMF ¶ 15. The FEC opposed PAG’s Motion for Preliminary Injunction. SMF ¶ 15. 

On September 24, 2015, this Court declined to enter an injunction because the Court 

found that PAG had not demonstrated that it was likely to succeed on the merits of its 

Administrative Procedure Act (“APA”) or First Amendment claims. (Dkt. No. 21); Pursuing 

America's Greatness v. FEC, 132 F. Supp. 3d 23, 36, 42 (D.D.C. 2015). Four days later, PAG 

filed its Notice of Appeal. (Dkt. No. 23). 

Nearly one year later, and approximately six months after Governor Mike Huckabee 

withdrew from the Republican presidential primary contest, the United States Court of Appeals 

for the District of Columbia Circuit reversed this Court’s denial of the injunction and ordered 

this Court to enter an injunction “enjoining the application of 11 C.F.R. ¶ 102.14(a) against 

PAG’s websites and social media pages.” See Pursuing America’s Greatness, 831 F.3d at 512. 

On remand, on October 12, 2016, this Court entered an injunction prohibiting the FEC 

from enforcing 11 C.F.R. § 102.14(a) against PAG’s websites and Facebook pages titled

ilikekellyayote.com, ilikerichardburr.com, ilikedavidyoung.com, and any other similar

ilike[name of candidate for federal office].com formulation. SMF ¶ 18. Following the issuance of 

the injunction, PAG’s special project name websites were activated and became viewable to the 

public. SMF ¶ 18. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 11 of 42
7

Both before and after the initiation of this lawsuit, PAG has not received any evidence 

suggesting that persons who visited PAG’s special project websites using the “I Like [Name of 

Candidate for Federal Office]” formulation have ever confused those websites as being 

authorized, controlled, or operated by the named candidate or that candidate’s campaign. SMF ¶ 

20. Additionally, PAG has never received any cease or desist demand letter from Mike 

Huckabee, Kelly Ayotte, David Young, or Richard Burr. SMF ¶ 20. PAG still operates 

ilikedavidyoung.com and has the clear and definite intent to use the “I like [Name of Candidate 

for Federal Office]” located at the www.ilike[name of candidate for federal office].com

formulation in the future. SMF ¶¶ 24-25. 

STANDARD OF REVIEW

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). 

Although the facts in the summary judgment proceedings are viewed in the light most 

favorable to the nonmoving party, the nonmoving party only obtains this favorable standard if 

there is a genuine dispute as to those facts. See Scott v. Harris, 550 U.S. 372, 380 (2007). The 

mere allegation of a factual dispute is insufficient; the factual dispute must be genuine. Id. This 

means that even if the parties tell two completely different stories, but the record contradicts one 

story such that “no reasonable jury could believe it,” this Court should not view that version of 

events in the light most favorable to the nonmoving party. Id. Thus a dispute is genuine only if 

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 12 of 42
8

Likewise, facts are material only if those facts “might affect the outcome of the suit under 

the governing law[,] . . . [f]actual disputes that are irrelevant or unnecessary will not be counted.” 

Id.; see also Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016); 

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (“A fact is ‘material’ if a dispute over it 

might affect the outcome of a suit under governing law[.]”). 

Therefore, the judge’s function at this stage of the proceedings is to determine whether 

there is a “genuine issue for trial.” See Liberty Lobby, Inc., 477 U.S. at 249. There is no such 

issue absent “sufficient evidence favoring the nonmoving party” that would allow “for a jury to 

return a verdict for that party.” Id. Thus, if the nonmoving party presents evidence that is only 

“merely colorable” or “not significantly probative,” this Court may grant PAG’s Motion for 

Summary Judgment. Id. at 249-250. 

Finally, because the FEC’s PAC Name Prohibition is a content-based ban on speech, the 

FEC bears the burden of proving that the PAC Name Prohibition furthers a compelling 

governmental interest and is narrowly tailored to address that interest. See Pursuing America’s 

Greatness, 831 F.3d at 510 (citing Reed, 135 S. Ct. at 2231); Playboy Entm't Grp., 529 U.S. at

816 (“[W]hen the government restricts speech, the government bears the burden of proving the 

constitutionality of its actions.”).

ARGUMENT

The First Amendment requires that “Congress shall make no law . . . abridging the 

freedom of speech.” U.S. Const. amend. I. “The First Amendment has its fullest and most urgent 

application to speech uttered during a campaign for political office.” Pursuing America’s 

Greatness, 831 F.3d at 508 (quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 

U.S. 721, 734 (2011)). The First Amendment is “[p]remised on mistrust of governmental power. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 13 of 42
9

. . stand[ing] against attempts to disfavor certain subjects or viewpoints.” Citizens United v. FEC, 

558 U.S. 310, 340 (2010). The First Amendment prohibits the government from restricting 

speech “because of its message, its ideas, its subject matter, or its content.” Police Dep't of Chi.

v. Mosley, 408 U.S. 92, 95 (1972). Thus, “restrictions distinguishing among different speakers, 

allowing speech by some but not others” is prohibited. Citizens United, 558 U.S. at 340.

Similarly, laws that “target speech based on its communicative content—are presumptively 

unconstitutional and may be justified only if the government proves that they are narrowly 

tailored to serve compelling state interests.” Reed, 135 S. Ct. at 2226. Content-based speech bans 

are presumptively unconstitutional because the government “has no such authority to license one 

side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry 

rules.” R. A. V. v. St. Paul, 505 U.S. 377, 392 (1992). This presumption is so strong that once a 

law is shown to be content-based, that determination is ordinarily all but dispositive. See Sorrell 

v. IMS Health Inc., 564 U.S. 552, 571 (2011). 

The FEC’s PAC Name Prohibition prohibits unauthorized political committees from 

using:

[T]he 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). There is, however, an “opposition” exception to the PAC Name 

Prohibition. An unauthorized committee may use a candidate’s name in its special project name 

if “the title clearly and unambiguously shows opposition to the named candidate.” 11 C.F.R. § 

102.14(b)(3).

In practice, the PAC Name Prohibition permits a PAC to maintain and use a special 

project website titled www.iloathedavidyoung.com, while banning PAG from using the website 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 14 of 42
10

www.ilikedavidyoung.com. Another PAC may develop and use a Facebook page titled “I Loathe 

Richard Burr,” but PAG is banned from using a Facebook page titled “I Like Richard Burr.” To 

enforce the PAC Name Prohibition, the FEC must necessarily “examine the content of the 

message that is conveyed to determine whether a violation has occurred.” McCullen v. Coakley, 

134 S. Ct. 2518, 2531 (2014). The PAC Name Prohibition is therefore a content-based speech 

ban, “pure and simple.” Pursuing America’s Greatness, 831 F.3d at 509-10.

I. HISTORY OF THE PAC NAME PROHIBITION

The Federal Election Campaign Act (“FECA”) provides, “[i]n the case of any political 

committee which is not an authorized committee, such political committee shall not include the 

name of any candidate in its name.” 52 U.S.C. § 30102(e)(4) (2012).

1

 This statutory language is 

implemented by FEC regulation at 11 C.F.R. § 102.14. Specifically, 

Except as provided in paragraph (b) of this section, 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). Under paragraph (b), so-called “draft committees” are excepted from this 

prohibition.2 11 C.F.R. § 102.14(b)(2). The FEC’s regulations also create an exception for 

certain uses of candidate names where opposition to that candidate is demonstrated: “An 

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.” 11 C.F.R. § 102.14(b)(3).

																																																												 1 This provision was adopted as part of the 1979 amendments to FECA.

2 A “draft committee” is “[a] political committee established solely to draft an individual or to 

encourage him or her to become a candidate . . . .” 11 C.F.R. § 102.14(b)(2).

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 15 of 42
11

1. The FEC’s Original View of the PAC Name Prohibition (1980-1992).

From 1980 to 1992, the FEC took the position that the PAC Name Prohibition meant 

what it said. That is, the FEC interpreted the provision to prohibit an unauthorized political 

committee from including a federal candidate’s name in the committee’s actual name under 

which its registers.3 See Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 59 Fed. Reg. 17,267 (April 12, 1994) (“Prior to the 1992 revision, the 

Commission had construed this prohibition as applying only to the name under which a 

committee registers with the Commission.”). As the D.C. Circuit explained, 

The Commission interprets “name” in § [30102](e)(4) to refer only to the official 

or formal name under which a political committee must register. Following this 

interpretation, a political committee has only one “name,” even though it may rely 

on various “project” names to help collect money and achieve its other goals. This 

view obviously comports with the plain language of § [30102](e)(4), which refers 

to the “name” of a political committee in the singular. It is also consistent with 

the avowed purpose of § [30102](e)(4), to eliminate confusion; each committee 

has only one official name, which identifies it immediately either as an authorized 

or unauthorized committee, and which it must use in disclosing its sponsorship of 

all paid advertisements.

Common Cause v. FEC, 842 F.2d 436, 440 (D.C. Cir. 1988) (emphasis in the original). 

In 1988, the D.C. Circuit upheld the FEC’s original understanding of the PAC Name

Prohibition against a challenge brought by Common Cause, which argued that the provision must 

be read to extend beyond the PAC’s formal (registration) name and also include “any title under 

which such a committee holds itself out to the public for solicitation or propagandizing 

purposes.” Id. at 441. The D.C. Circuit determined that Common Cause’s preferred construction 

was “not a totally implausible interpretation of the statute’s language,” but after extensively 

reviewing the legislative history of the relevant statutory provision and determining that “[i]t 

																																																												 3 For example, in 2012, unauthorized political committees could not register themselves with the 

FEC as “Americans for Obama PAC” or “United for Romney PAC.” PAG does not seek to 

include any portion of the name “Mike Huckabee” in its registered PAC name. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 16 of 42
12

seems downright unlikely that Congress would have enacted so broad a reform affecting the 

projects of unauthorized committees without a single word of explanation or debate[,]” the court

ultimately concluded the FEC’s understanding “is the better interpretation.” Id. at 444, 448.

2. The FEC’s 1992 Rulemaking Expanded the Scope of the PAC Name 

Prohibition.

In 1992, the FEC conducted a rulemaking and adopted the position it litigated against in 

Common Cause v. FEC, despite having been told by the D.C. Circuit in 1988 that the agency’s 

longstanding interpretation of the PAC name provision was “the better interpretation.” See id. at 

448; see also Special Fundraising Projects and Other Use of Candidate Names by Unauthorized 

Committees, 57 Fed. Reg. 31,424 (July 15, 1992). The FEC claimed that since the 1988 

decision, “the Commission has become increasingly concerned over the possibility for confusion 

or abuse inherent in [the agency’s original] interpretation.” Id. at 31,424. 

The FEC acknowledged that the Common Cause “court noted that the Commission has a 

responsibility to ‘allow the maximum of first amendment freedom of expression in political 

campaigns commensurate with Congress’ regulatory authority.’” Id. (citing Common Cause, 842 

F.2d at 448). Nevertheless, the FEC’s 1992 rule added new, restrictive language to 11 C.F.R. § 

102.14, indicating that “‘name’ for the purpose of the 2 U.S.C. § 432(e)(4) [now 52 U.S.C. § 

30102(e)(4)] prohibition . . . include[s] ‘any name under which a committee conducts activities, 

such as solicitations or other communications, including a special project name or other 

designation.’” Id. at 31,425. The FEC explained that:

[Since] the early 1980’s . . . the use of candidate names in the titles of projects or 

other unauthorized communications has increasingly become a device for 

unauthorized committees to raise funds or disseminate information . . . a 

candidate who objected to the use of his or her name in this manner . . . or who 

disagreed with the views expressed in the communication, was largely powerless 

to stop it . . . . For this reason, the Commission has become more concerned about 

the potential for confusion or abuse when unauthorized committee uses a 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 17 of 42
13

candidate’s name in the title of a special fundraising project. . . . It is possible in 

these instances that potential donors think they are giving money to the candidate 

named in the project’s title, when this is not the case . . . . [Accordingly,] the 

Commission has decided to adopt in its final rule a ban on the use of candidate 

names in the titles of all communications by unauthorized committees.

Id. at 31,424-25 (emphasis added). 

The 1992 Final Rule applied not only to the fundraising scenarios that the FEC found 

troubling, but also to “all communications by unauthorized committees.” Id. at 31,425. As the 

agency explained, “[t]he Commission believes the potential for confusion is equally great in all 

types of committee communications. . . . A total ban is also more directly responsive to the 

problem at issue, and easier to monitor and enforce” than other, less restrictive options 

considered. Id. (emphasis added). While the FEC’s rule extended beyond fundraising appeals, 

nearly every rationale and example presented in the Final Rule involved potential fraud and 

confusion in the specific context of fundraising.

The FEC dismissed comments that raised First Amendment objections, noting without 

any analysis or further explanation that “it is well established that First Amendment rights are 

not absolute when balanced against the government’s interest in protecting the integrity of the 

electoral process.” Id. The FEC asserted that its new rule was “narrowly designed to further the 

legitimate governmental interest in minimizing the possibility of fraud and abuse in this 

situation.” Id. As the FEC put it, “[c]ommittees are not barred from establishing specially 

designated projects: they are free to choose whatever project title they desire, as long as it does 

not include the name of a federal candidate.” Id. Thus, committees were “free” to speak to their 

supporters, and “free” to title their projects as they wished, so long as they respected the FEC’s 

new content-based restrictions.

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 18 of 42
14

3. The FEC’s 1994 Rulemaking Recognized the Overbreadth of the 1992 

Rule.

In 1994, the FEC reconsidered its 1992 regulation, and adopted the exemption now found 

at 11 C.F.R. § 102.14(b)(3), which allows an unauthorized committee to “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.” 11 C.F.R. § 102.14(b)(3); see also

Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 

59 Fed. Reg. 17,267 (April 12, 1994). The “opposition” exemption was adopted after the 

Commission received a request to which it was sympathetic in the form of a Petition for 

Rulemaking from “Citizens Against David Duke,” a proposed project of the American Ideas 

Foundation. 59 Fed. Reg. at 17,267. The FEC “acceded to the petitioner’s main concern, 

amending the rules to permit the American Ideas Foundation to use the names of federal 

candidates in titles that clearly indicate opposition to such candidates.” Id. at 17,269.4 Less than 

two years after insisting that a “total ban” was necessary, the Commission changed its mind and 

“recognize[d] that the potential for fraud and abuse is significantly reduced in the case of such 

titles [that clearly indicate opposition].” Id. 

As was the case in the 1992 rulemaking, the 1994 rulemaking focused on the possibility 

of fraud and confusion in the context of fundraising. See id. at 17,268 (“The rulemaking record 

contains 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.”). The 

																																																												 4 The FEC acknowledged that petitioner’s request had become moot because “David Duke is not 

currently a candidate for federal office, so the use of his name in a project title is not prohibited 

by these rules.” The rule was adopted anyway, and the FEC noted that “[s]hould [David Duke] 

again become a federal candidate, such use of his name would be governed by these revised 

rules.” 59 Fed. Reg. at 17,269.

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 19 of 42
15

FEC once again claimed that its regulatory scheme, which now included an exemption where 

opposition to a candidate is evident in a committee’s speech, was “narrowly designed to further 

the legitimate governmental interest in minimizing the possibility of fraud and abuse.” Id. 

Importantly, the FEC merely asserted that it was adopting a complete ban as opposed to 

disclaimer requirements because it “believed that such an approach could be more burdensome 

than the current ban, while still not solving the potential for fraud and abuse in this area.” See id. 

Without supporting this belief with sufficient evidence required to support its compelling interest 

burden – a demanding standard – see Brown v. Entm't Merchs. Ass’n, 564 U.S. 786, 799 (2011),

the FEC promulgated a complete ban on using candidate’s name in a special project name unless 

the special project unambiguously demonstrates opposition to the candidate. See id. 

Additionally, neither FECA, nor the FEC’s regulations, nor the explanations and 

justifications contained in the FEC’s Final Rules referenced above contain any mention of the 

use of a candidate’s name in a website URL or social media platform. 

4. FEC Application of the PAC Name Prohibition to Website URLs.

In 1995, NewtWatch PAC requested an advisory opinion from the FEC regarding the 

operation of a website and fundraising operations conducted on that website. NewtWatch PAC 

operated a website located at www.cais.com/newtwatch. NewtWatch PAC did not ask the FEC 

for its opinion on the application of 11 C.F.R. § 102.14(a)–(b) to its activities.5 The FEC 

nevertheless addressed the application of 11 C.F.R. § 102.14(a)–(b) to the requestor in the 

agency’s response, and concluded that NewtWatch’s activities were permissible under the FEC’s 

PAC Name Prohibition. The FEC wrote: 

																																																												 5 See Advisory Opinion Request 1995-09 (NewtWatch PAC), 

http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=908. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 20 of 42
16

In contrast to the committee name restrictions, a candidate’s name may be used in 

the title of a special project operated by an unauthorized committee if the project 

title clearly and unambiguously shows opposition to the named candidate. 11 

CFR 102.14(b)(3). The operation of a World Wide Web site would be considered 

a project of the Committee. Here, the Commission notes that under the 

regulations, phrases showing clear and unambiguous opposition to a candidate are 

not limited to specific words such as “defeat” or “oppose.” The use of the term 

“watch,” when coupled with a candidate’s name, conveys clear and unambiguous 

opposition to the candidate being watched. “NewtWatch” connotes the view that 

Speaker Gingrich needs to be kept under careful and constant close scrutiny, and 

your view that users need to be on the alert or to be on their guard with respect to 

Speaker Gingrich. Accordingly, the Act and Commission regulations do not 

prohibit the Committee from using the name “NewtWatch” as a project name.

Advisory Opinion 1995-09 (NewtWatch PAC).

The FEC did not issue another advisory opinion considering the application of the PAC 

Name Prohibition to an unauthorized committee’s activities until 2015. To the best of counsel’s 

knowledge, the FEC has never undertaken an enforcement action against a political committee 

for using the name of a candidate in a special project website URL or other Internet-based 

platform, including social media accounts, on the grounds that the use does not adequately 

demonstrate opposition to the named candidate.6 

																																																												 6 The FEC has issued “Requests for Additional Information” to CARLY for America, which 

received this letter from the FEC:

http://docquery.fec.gov/pdf/011/15330083011/15330083011.pdf. CARLY for America 

subsequently changed its name to Conservative, Authentic, Responsive, Leadership for You and 

for America (CARLY FOR AMERICA). These letters were issued by the FEC’s Reports 

Analysis Division, which cannot take further enforcement action on its own. The Reports 

Analysis Division may refer potential violations to the Office of General Counsel, which may 

then consider enforcement action that the Commissioners must approve. This past February, the 

FEC entered into a conciliation agreement with an unauthorized committee whose official 

political committee name was Stop Hillary PAC. See Stop Hillary PAC, FEC MUR 7086 (Feb 

23, 2017) (available at https://www.fec.gov/files/legal/murs/current/118627.pdf) (last visited 

Sept. 9, 2017) (noting that because the name of a candidate appeared in the name of the political 

committee, the committee violated 52 U.S.C. § 30102(e)(4)). This is distinct from the FEC’s 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 21 of 42
17

In the years following 1995, the Commission explicitly adopted a “hands off” approach 

to the Internet. For example, in 2002, the Commission adopted new regulations defining the 

term “public communication,” and expressly excluded the Internet from that definition. The FEC 

explained:

[T]he Internet is excluded from the list of media that constitute public 

communication under the statute. . . . Perhaps most important, there are 

significant policy reasons to exclude the Internet as a public communication. The 

Commission fails to see the threat of corruption that is present in a medium that 

allows almost limitless, inexpensive communication across the broadest possible 

cross-section of the American population. Unlike media such as television and 

radio, where the constraints of the medium make access financially prohibitive for 

the general population, the Internet is by definition a bastion of free political 

speech, where any individual has access to almost limitless political expression 

with minimal cost. As one public interest group who favors campaign finance 

reform argued: “There are good policy reasons for leaving the Internet out of the 

definition, as it is cheap and widely available. Internet communications are not 

part of the campaign finance problem, and should not be regulated as such unless 

Congress specifically mandates it.”

Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 Fed. Reg. 

49,064, 49,072 (July 29, 2002). In response to litigation, the FEC revised its regulations slightly 

in 2006 to treat paid Internet advertising as a “public communication,” but maintained its general 

policy of not regulating Internet communications.7 Generally speaking, Internet-based “social 

media” remains unregulated.8 

																																																																																																																																																																																																			

regulatory prohibition that prevents unauthorized committees from using a candidate’s name in a 

special project name, including a website URL, Facebook page name, and Twitter handle. 

7 See Internet Communications, 71 Fed. Reg. 18,589 (April 12, 2006) (“Through this 

rulemaking, the Commission recognizes the Internet as a unique and evolving mode of mass 

communication and political speech that is distinct from other media in a manner that warrants a 

restrained regulatory approach.”).

8 See, e.g., Advisory Opinion 2010-19 (Google) (concluding that Google search ads are not 

required to comply with full FECA disclaimer requirements); Advisory Opinion Request 2011-

09 (Facebook) (FEC unable to reach decision on question of whether FECA-mandated 

disclaimers are required on Facebook advertising).

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 22 of 42
18

In 2011, in Matter Under Review 6399 (Yoder), the FEC’s six Commissioners divided 

over the scope of the PAC Name Prohibition, leaving its application entirely unclear. The FEC’s 

Office of General Counsel and three Commissioners supported applying the PAC Name

Prohibition to an authorized campaign committee, Yoder for Congress, that operated a website 

located at www.StepheneMoore.com (Stephene Moore was Kevin Yoder’s general election 

opponent). Three Commissioners rejected this position on the grounds that the PAC Name

Prohibition, by its own terms, applies only to unauthorized political committees. See MUR 6399 

(Yoder), Statement of Reasons of Vice Chair Hunter and Commissioners McGahn and Petersen 

(June 23, 2011). Of particular significance to the present matter, these Commissioners also 

explained:

No Commission precedent supports the notion that an unauthorized 

committee’s web address constitutes the title of a special project. Advisory 

Opinion 1995-09 (NewtWatch), which OGC cites in its analysis, merely 

establishes that a website operated by an unauthorized committee can be 

considered a committee special project that is subject to the naming 

requirements in 11 C.F.R. § 102.14(b)(3). This opinion makes no statement 

that the site’s web address is the project’s title. (And even if it did, an 

advisory opinion cannot establish a new rule but only provides protection to a 

requester against potential liability.)

Id. at 4 n.16 (internal citation omitted). Two of the Commissioners who signed this Statement of 

Reasons subsequently voted in favor of Advisory Opinion 2015-04.

Thus, until 2015, the only FEC statement regarding the application of the PAC Name

Prohibition to an Internet communication that reflected majority support was the unrequested 

dicta regarding websites found at the end of Advisory Opinion 1995-09, which was subsequently 

placed in question by the FEC’s later rulemakings implementing the FEC’s general policy of not 

regulating activities on the Internet. Then, in 2011, three Commissioners expressed the view that 

a website URL was not the “title of a special project,” and read Advisory Opinion 1995-09 in a 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 23 of 42
19

way that did not apply to a website’s URL, but to the website as a whole. Following this 

sequence of events, it was entirely unclear how a majority of the FEC would apply the PAC 

Name Prohibition in the future.

II. THE FEDERAL ELECTION COMMISSION’S CURRENT FORMULATION 

OF THE PAC NAME PROHIBITION AS APPLIED TO PLAINTIFF. 

1. Collective Actions PAC’s Advisory Opinion Request.

Collective Actions PAC is an unauthorized, independent expenditure-only political 

committee whose goal was “to help Sen. Bernie Sanders in his bid to win the Democratic

nomination for President.” FEC Advisory Opinion 2015-04 at 1.

9

 On or about June 3, 2015, 

Collective Actions PAC filed a written advisory opinion request with the FEC asking whether

the PAC’s inclusion of the word “Bernie” in certain website URLs and in the titles of two social 

media accounts it operates is permissible under the PAC Name Prohibition. See id. at 2. 

Specifically, Collective Actions PAC’s request inquired about its operation of three websites, 

“RunBernieRun.com,” “ProBernie.com,” “BelieveInBernie.com,” the Facebook page “Run 

Bernie Run,” and the Twitter accounts (“handles”) “@Bernie_Run” and “@ProBernie.” See id. 

Collective Actions PAC specified that it did not wish to use these platforms to raise money or 

solicit contributions but only to disseminate information about Senator Sanders’s campaign. See 

id. 

The FEC considered the request in an open session public meeting on July 16, 2015. At 

that meeting, FEC Commissioner Goodman asked:

The use of the name of a candidate in a URL website, that’s not in our regulation, 

is it? That’s the creation of a former advisory opinion applying the regulation. 

Am I right about that? As a general rule, treating a URL of a website as an 

activity . . . the regulation speaks of programs, activities, and what have you. The 

																																																												 9 United States Senator Bernard (“Bernie”) Sanders was a declared candidate for President of the 

United States in the 2016 election.

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 24 of 42
20

application of these terms that our regulation prohibits to the use of a URL that 

has the name “Newt” in it, or “Bernie,” was an application out of an advisory 

opinion, right?

A representative from the FEC’s Office of General Counsel responded, “[t]he first time that 

came up was in the NewtWatch advisory opinion.”

Commissioner Goodman then indicated that he would support the Advisory Opinion 

because it was “based on the precedents of the Commission,” but also added:

I do think however that every reference in a URL website where you might land 

on a website that makes it very clear that you are not Bernie [Sanders], you’re a 

third party group that supports Bernie [Sanders], avoids the fundamental reason 

why we have this rule in the first instance, which is to avoid fraud and confusion. 

And so if there is no fraud or confusion once you land on that website, I’m 

concerned that we may have applied this rule and restriction in an overbroad 

way . . . . I would support looking again at this restriction and tailoring it to 

situations that apply directly to fraud and confusion.

Audio of the FEC’s consideration of Advisory Opinion 2015-04, Draft A, is available at 

http://www.fec.gov/audio/2015/2015071604.mp3 (emphasis added). 

Following Commissioner Goodman’s statements, the FEC voted 6 to 0 to adopt Advisory 

Opinion 2015-04. Advisory Opinion 2015-04 (Collective Actions PAC) concludes that 

Collective Actions PAC “may not use Senator Sanders’s name in the names of [Collective 

Actions PAC’s] websites or social media pages.” FEC AO 2015-04 at 2. Citing Advisory 

Opinion 1995-09, the FEC asserts “[a] committee’s online activities are ‘projects’ that fall within 

the scope of section 102.14.” See id. at 3. Accordingly, “[b]ecause the names of [Collective 

Actions PAC’s] websites and social media accounts that include Senator Sanders’s name do not 

clearly express opposition to him, those sites and accounts are impermissible under 11 C.F.R. § 

102.14.” Id. at 4. 

While the FEC asserts in Advisory Opinion 2015-04 that Advisory Opinion 1995-09 

determined that “[a] committee’s online activities are ‘projects’ that fall within the scope of 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 25 of 42
21

section 102.14[,]” id. at 3 (emphasis added), this is actually a very broad reading of Advisory 

Opinion 1995-09. Advisory Opinion 1995-09 did not address “online activities” as that term is 

understood today. Facebook, Twitter, and other forms of “social media” did not exist in 1995.10 

Advisory Opinion 2015-04 is a significant expansion of Advisory Opinion 1995-09, and is the 

first instance in which the FEC has considered the application of the PAC Name Prohibition to 

“online activities” other than a traditional website. As noted above, the FEC has generally 

declined in recent years to apply heavy-handed regulation to political activity on the Internet. 

Advisory Opinion 2015-04 is at odds with this general trend. 

In issuing Advisory Opinion 2015-04, the FEC formally opined that its regulations did

not permit Collective Actions PAC to communicate with supporters through websites with URLs 

of www.RunBernieRun.com, www.ProBernie.com, www.BelieveInBernie.com, or speak via a 

Facebook page titled “Run Bernie Run,” or Twitter accounts with the handles of 

“@Bernie_Run” and “@ProBernie.” Under Advisory Opinion 2015-04, it made no difference 

whether Collective Actions PAC utilized these online assets for advocacy purposes, fundraising 

efforts, or some other purpose; rather, it was simply the inclusion of the word “Bernie” in the 

titles or headings of these webpages and social media accounts that was deemed offensive and 

not permitted under FEC regulations, which impose a “total ban” on Collective Actions PAC’s 

proposed uses of the word “Bernie.”11

																																																												 10 The earliest version of Facebook was created in 2004, while Twitter dates to 2006. Advisory 

Opinion 1995-09 (NewtWatch PAC) could not have considered either one.

11 Advisory Opinion 2015-04 emphasizes that the 1992 version of the PAC Name Prohibition 

was “a ‘total ban’ on the use of candidate names in committee names.” FEC AO 2015-04 at 3.

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 26 of 42
22

2. Application of Advisory Opinion 2015-04 (Collective Actions PAC) to 

Plaintiff.

Under FECA, 

Any advisory opinion rendered by the Commission . . . may be relied upon by –

(A) any person involved in the specific transaction or activity with respect to 

which such advisory opinion is rendered; and (B) any person involved in any 

specific transaction or activity which is indistinguishable in all its material aspects 

from the transaction or activity with respect to which such advisory opinion is 

rendered.

 

52 U.S.C. § 30108(c)(1). Any person who relies upon an advisory opinion in this manner, “and 

who acts in good faith in accordance with the provisions and findings of such advisory opinion 

shall not, as a result of any such act, be subject to any sanction provided by this Act . . . .” 52 

U.S.C. § 30108(c)(2).

For purposes of 11 C.F.R. § 102.14(a)–(b), the website URLs

www.ilikemikehuckabee.com or www.ilikedavidyoung.com and other “www.ilike[name of 

candidate for federal office].com,” are materially indistinguishable from 

www.RunBernieRune.com, www.ProBernie.com, and www.BelieveInBernie.com. The 

Facebook page “I Like Mike Huckabee,” “I Like David Young,” and “I Like Richard Burr” are

materially indistinguishable from the Facebook page “Run Bernie Run” for purposes of 11 

C.F.R. § 102.14(a)–(b). A Twitter account that utilizes the “I Like Mike Huckabee” or “I Like 

David Young” branding of the website and Facebook page in its “handle” would be materially 

indistinguishable from the Twitter accounts “@Bernie_Run” and “@ProBernie” for purposes of 

11 C.F.R. § 102.14(a)–(b). Thus, under Advisory Opinion 2015-04, the PAG activities discussed 

above are impermissible under the FEC’s current interpretation of the PAC Name Prohibition. 

As a result, prior to the entry of the injunction on October 12, 2016, PAG ceased speaking 

through its candidate name special projects website, Facebook page names, and Twitter handles. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 27 of 42
23

SMF ¶¶ 13-14, 16-17. PAG was therefore unable to implement its strategy of branding the I 

Like Mike Huckabee website and Facebook page and developing a strategy to disseminate 

positive messages through those special projects. SMF ¶¶ 11, 16-17. 

III. THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT HELD THAT THE 

PAC NAME PROHIBITION IS A CONTENT-BASED SPEECH BAN AND 

THAT PAG WAS SUBSTANTIALLY LIKELY TO SUCCEED ON THE 

MERITS BECAUSE THE PAC NAME PROHIBITION IS NOT NARROWLY 

TAILORED.

The United States Court of Appeals for the District of Columbia Circuit reversed this 

Court’s denial of PAG’s request for a preliminary injunction. In its opinion, the D.C. Circuit 

rejected the argument that the PAC Name Prohibition was a disclosure provision. See Pursuing 

America’s Greatness, 831 F.3d at 508. The PAC Name Prohibition “does not require PAG to 

provide somewhat more information than it otherwise would.” Id. at 507. Instead, the PAC Name

Prohibition “prevents PAG from conveying information to the public.” Id. “Disclosure 

requirements . . . do not prevent anyone from speaking.” Id. at 508 (quoting McConnell v. FEC, 

540 U.S. 93, 201 (2003) (alteration in Pursuing America’s Greatness opinion)). Thus, in 

enforcing the PAC Name Prohibition, the FEC “banned more speech than that covered by 

FECA’s provisions requiring disclosure.” Id. at 508. Therefore, the D.C. Circuit concluded “that 

section 102.14(a) is a restriction on PAG’s political speech, not a disclosure requirement.” Id.

The D.C. Circuit next concluded that the PAC Name Prohibition is a “content-based 

discrimination pure and simple,” because on its face the PAC Name Prohibition “draws 

distinctions based solely on what PAG says.” Id. at 509 (emphasis added). Under the PAC 

Name Prohibition, PAG cannot use Congressman David Young’s name in its special project 

name, “ilikedavidyoung.com,” but another PAC could use “iloathedavidyoung.com.” See id.

Thus, to enforce the PAC Name Prohibition, the FEC “must examine the content of the title of 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 28 of 42
24

PAG’s website or Facebook page and ask whether the title supports or opposes the candidate.” 

Id. (citing McCullen, 134 S. Ct. at 2531). Therefore, to survive PAG’s constitutional challenge, 

the FEC must prove that it satisfies strict scrutiny. See id. at 510 (“Accordingly, the government 

must show the restriction is narrowly tailored to a compelling governmental interest.”) (citing 

Reed, 135 S. Ct. at 2231). 

The D.C. Circuit assumed that the FEC’s PAC Name Prohibition satisfied the compelling 

interest prong of strict scrutiny. The FEC claims that the PAC Name Prohibition is necessary to 

avoid voter confusion because voters “might mistakenly believe an unauthorized committee’s 

activities are actually approved by a candidate if the committee uses the candidate’s name in its 

title.” Pursuing America’s Greatness, 831 F.3d at 510. But the D.C. Circuit concluded that 

there is a substantial likelihood that the PAC Name Prohibition is “not the least restrictive means 

to achieve the government’s interest.” Id. Rather than a complete content-based speech ban, the 

FEC could achieve its interests requiring instead larger disclaimers at the top of special project 

websites that read “This Website Is Not Candidate Doe’s Official Website.” Id. The Supreme 

Court has repeatedly stated that disclaimer and disclosure requirements are “less restrictive 

alternatives to ‘flat bans’ on speech.” Id. (citing McCutcheon, 134 S. Ct. at 1460). 

Importantly, in its Explanations and Justifications proffered as the reasons for the PAC 

Name Prohibition the FEC rejected larger disclaimers, saying that it “believed that such an 

approach could be more burdensome than the current ban, while still not solving the potential for 

fraud and abuse in this area.” See id. (quoting 59 Fed. Reg. at 17,268). But the FEC “offered no 

evidence that larger or differently worded disclosures would be less effective at curing fraud or 

abuse than a ban on speech.” See id. at 510-11. Because the FEC “must present more than 

anecdote and supposition to support a regulation subject to strict scrutiny,” the clear lack of 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 29 of 42
25

evidence provided by the agency is insufficient to support the ban. Id. at 511 (quoting Playboy 

Entm’t Grp., 529 U.S. at 822).

IV. THE FEC’S CONTENT-BASED PAC NAME PROHIBITION CANNOT 

SURVIVE STRICT SCRUTINY.

The D.C. Circuit ruled, “[o]n its face, section 102.14 ‘draws distinctions’ based solely on 

what PAG says.” Pursuing America’s Greatness, 831 F.3d at 509. The PAC Name Prohibition 

prohibits PAG from having special project websites like “I Like David Young” but permits “I 

Loathe David Young.” Thus, PAG’s political adversaries can speak through their special project 

names but PAG cannot. Therefore, for the FEC to enforce the PAC Name Prohibition, the FEC 

must “examine the content of the message that is conveyed to determine whether a violation has 

occurred.” Id. (quoting McCullen, 134 S. Ct. at 2531). Accordingly, the D.C. Circuit concluded 

that the PAC Name Prohibition is “content-based discrimination pure and simple.” Id. Strict 

scrutiny therefore applies. Id. at 510. 

1. The PAC Name Prohibition Is Disconnected From the FEC’s Asserted 

Compelling Interest.

To demonstrate that an interest is compelling is a demanding standard. See Brown, 564

U.S. at 799. Here, the FEC must demonstrate that it identified an actual, recognizable problem

that the government has a compelling interest in addressing, and that its content-based PAC

Name Prohibition was enacted to specifically address that compelling interest. See id.; see also

Playboy Entm't Grp., 529 U.S. at 820-23 (stating that Congress did not sufficiently prove a 

nationwide problem to justify its nationwide daytime speech ban); Burson v. Freeman, 504 U.S. 

191, 199-200 (1992) (“To survive strict scrutiny, however, a State must do more than assert a

compelling state interest -- it must demonstrate that its law is necessary to serve the asserted 

interest.”). Ambiguous proof is insufficient. See Brown, 564 U.S. at 800. The FEC must present 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 30 of 42
26

evidence that “an actual problem in need of solving” existed at the time it adopted the PAC 

Name Prohibition in order to satisfy the compelling interest standard. See Playboy Entm't Grp., 

529 U.S. at 820-23; Brown, 564 U.S. at 799 (to satisfy the compelling interest inquiry, the 

government must have evidence of “an actual problem in need of solving . . . and the curtailment 

of free speech must be actually necessary to the solution . . . .”); cf. United States v. Virginia, 518 

U.S. 515, 533 (1996) (“The justification must be genuine, not hypothesized or invented post hoc 

in response to litigation.”). Conclusory statements, anecdotes, and supposition about the need to 

ban non-fundraising special project website names bearing the candidate’s name will not satisfy 

the compelling interest standard. Playboy Entm't Grp., 529 U.S. at 823; Nixon v. Shrink Mo. 

Gov't PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to 

carry a First Amendment burden . . . .”).

The D.C. Circuit “assume[d] that the government has a compelling interest in avoiding 

the type of voter confusion identified by the FEC.” Pursuing America’s Greatness, 831 F.3d at 

510 (citing Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion)). The D.C. Circuit 

stated “the FEC reasonably fears that voters might mistakenly believe an unauthorized 

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

name in its title.” Id. 

But the record is silent on the specific point at issue in this case, namely, the use of a 

candidate’s name in a special project name that is not conducting fundraising. See SMF ¶ 19. The 

FEC does not provide sufficient evidence in support of applying the PAC Name Prohibition

beyond the fundraising context. Rather, the FEC’s so-called evidence that was identified during 

the rulemaking was limited to the use of candidate’s names in special project names where 

fundraising was conducted. See, e.g., 57 Fed. Reg. at 31,425 (“[T]he Commission has become 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 31 of 42
27

more concerned about the potential for confusion or abuse when an unauthorized committee uses 

a candidate’s name in the title of a special fundraising project . . . .”) (emphasis added); 59 Fed. 

Reg. at 17,268 (“The rulemaking record contains 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.”) (emphasis added). Even the title of the FEC’s 1992 and 1994 

rulemakings (“Special Fundraising Projects and Other Use of Candidate Names by Unauthorized 

Committees”) reinforces this focus on fundraising, as do the examples included in the two Final 

Rules.12 Even when given an opportunity in its briefs before the D.C. Circuit, the FEC could not 

marshal examples of confusion or fraud not connected to fundraising. See Pursuing America’s 

Greatness v. FEC, No. 15-5264, FEC Br. at 29, 32-33 (D.C. Cir. Jan. 13, 2016) (Doc. No.

1593393) (discussing rulemaking examples all related to fundraising and current examples, 

including Daniel Craig making a $50 million contribution to a Super PAC that Craig thought was 

																																																												 12 See 1992 Final Rule, 57 Fed. Reg. at 31,424 (“For example, in 1984 a United States Senator 

requested, and received, permission to obtain from Commission records the names and addresses 

of those who had responded to unauthorized solicitations made in his name, to inform those 

contributors that he had not authorized the solicitation.”); id. (“For example, assume that the 

‘XYZ Committee,’ a committee registered under that name with the Commission, establishes a 

special fundraising project called ‘Americans for Q.’ . . . Even if the solicitation contains the 

proper disclaimer, a potential donor might believe he or she was contributing to Q’s campaign, 

when this was not so.”); id. at 31,425 (“For example, a comment from an authorized committee 

of a major party presidential candidate stated 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.”); id. (“two other unauthorized projects by that 

same committee raised over $4,000,000 and nearly $400,000 in the name of two other 

presidential candidates in the 1988 election cycle”); id. (“[A]n authorized Political Action 

Committee has, over several election cycles, established numerous projects whose titles included 

the names of federal candidates. The named candidates . . . received no money from the $9 

million raised in response to these appeals.”); 59 Fed. Reg. at 17,267 (“The rulemaking record 

contains 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.”).

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 32 of 42
28

Bernie Sanders’ campaign). The D.C. Circuit did not even address the FEC’s contention that the 

comments made on the “I Like Mike Huckabee” Facebook page indicated that the commenters 

thought that the page was run by Mike Huckabee’s campaign. See id. at 30. Neither PAG nor the 

FEC knows whether persons who posted these comments were actually confused by PAG’s 

Facebook page. SMF ¶ 26. PAG has done absolutely nothing to mask itself as the source of any 

of its communications, and before the FEC issued the Collective Actions PAC advisory opinion, 

PAG’s Facebook page even included a disclaimer identifying PAG as the payor that was not 

legally required. SMF ¶ 26.

The “actual problem” in need of correcting—confusion from special project names on 

social media websites and URL addresses that do not include fundraising—has not been proven 

by the FEC. See, e.g., Brown, 564 U.S. at 799. The FEC’s asserted problem in need of 

correcting appears to rest solely on conclusory assertions, anecdote, supposition, and 

administrative convenience. The FEC

[D]ecided to adopt in its final rule a ban on the use of candidate names in the titles 

of all communications by unauthorized committees. The Commission believes the 

potential for confusion is equally great in all types of committee communications. 

. . . A total ban is also more directly responsive to the problem at issue, and 

easier to monitor and enforce than the restrictions on check payees proposed 

in the NPRM.

1992 Final Rule, 57 Fed. Reg. at 31,425 (emphasis added). Administrative convenience does not 

save a content-based statute from the shoals of strict scrutiny. See McCullen, 134 S. Ct. at 2534 

(“[B]y demanding a close fit between ends and means [in strict scrutiny], the tailoring 

requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”). 

Nor do conclusory assertions, supposition, and anecdotes. Playboy Entm't Grp., 529 U.S. at 822-

23, 25 (holding that conclusory assertions are insufficient to satisfy strict scrutiny); Shrink Mo. 

Gov't PAC, 528 U.S. at 392 (“We have never accepted mere conjecture as adequate to carry a 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 33 of 42
29

First Amendment burden . . . .”); Pursuing America’s Greatness, 831 F.3d at 511. But there is 

nothing in the 1992 or 1994 rulemakings, other than conclusory assertions, about “confusion”

outside the fundraising context. 

The Explanations and Justifications cited above demonstrate conclusively that the FEC 

did not have record evidence sufficient to justify a content-based speech ban prohibiting 

unauthorized political committees from using candidate names in special project website URLs 

and social media websites where no fundraising was conducted. There is today no evidence to 

support a compelling interest in preventing the use of a candidate’s name in website URLs and 

social media websites. The FEC is therefore without a compelling interest. 

2. The PAC Name Prohibition Is Not Narrowly Tailored. 

“A statute is narrowly tailored if it targets and eliminates no more than the exact source

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

cannot be “underinclusive,” meaning that it cannot leave appreciable damage to the

government’s purported interest unprohibited. Reed, 135 S. Ct. at 2232. Nor can it be

overinclusive by “unnecessarily circumscrib[ing] protected expression.” Republican Party of

Minn. v. White, 536 U.S. 765, 775 (2002) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)). 

Additionally, “when the government restricts speech, the government bears the burden of

proving the constitutionality of its actions.” Playboy Entm’t Grp., 529 U.S. at 816. “If a less

restrictive alternative would serve the [g]overnment’s purpose, the legislature must use that

alternative.” Id. at 813. “When a plausible, less restrictive alternative is offered to a contentbased speech restriction it is the Government’s obligation to prove that the alternative will be

ineffective to achieve its goals.” Id. at 816. “Where the record is silent as to the comparative

effectiveness of . . . two alternatives”—one of which burdens more speech than the other—the

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 34 of 42
30

more burdensome restriction cannot survive strict scrutiny. Pursuing America’s Greatness, 831

F.3d at 511 (quoting and citing Playboy Entm’t Grp., 529 U.S. at 826) (internal quotation marks

omitted). 

Where, as here, the government has enacted a speech ban, a court can uphold it “only if

each activity within the proscription's scope is an appropriately targeted evil.” Frisby, 487 U.S.

at 485. Accordingly, in the narrowly tailoring analysis, the FEC must provide sufficient evidence

to justify that its content-based speech ban is narrowly tailored. Mere supposition, anecdote, and

conclusory assertions are insufficient. See Pursuing America’s Greatness, 831 F.3d at 511.

Administrative convenience is also an insufficient justification. See McCullen, 134 S. Ct. at

2534.

The D.C. Circuit held that PAG was substantially likely to succeed on the merits in 

proving that the PAC Name Prohibition is not narrowly tailored because the FEC did not, in its 

Explanation and Justification for the PAC Name Prohibition, provide any evidence that 

disclaimer provisions were less effective at preventing confusion than the ban. See Pursuing 

America’s Greatness, 831 F.3d at 510-11. Furthermore, the FEC did not adduce evidence that 

disclaimers were more burdensome than the ban. See id. at 510. Because the “‘record is silent as 

to the comparative effectiveness of . . . two alternatives’—one of which burdens more speech 

than the other—the more burdensome restriction cannot survive strict scrutiny.” Id. at 511 (citing 

and quoting Playboy Entm't, 529 U.S. at 826). Furthermore, the D.C. Circuit ruled that the PAC 

Name Prohibition is a ban and “[t]he Supreme Court regularly views such disclosure 

requirements as less restrictive alternatives to ‘flat bans’ on speech. See id. at 510 (citing

McCutcheon, 134 S. Ct. at 1460).

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 35 of 42
31

i. The FEC Could Achieve Its Goals With Larger Disclaimers or More 

Precise Name Requirements.

As PAG maintained in its Rule 30(b)(6) deposition, the FEC could achieve its claimed 

goal of preventing voter confusion and fraud through additional or different disclaimer 

requirements. See, e.g., SMF ¶ 21. For example, Congress or the FEC might require an

additional disclaimer at the top of a website (in addition to the “paid for by” and “not authorized 

by any candidate or candidate’s committee” disclaimers required at the bottom of the website)

declaring: “This Website Is Not Candidate Doe's Official Website.” Pursuing America’s 

Greatness, 831 F.3d at 510; see generally 11 C.F.R. § 110.11 (requiring disclaimers on the 

internet websites of political committees and specifying the precise content and appearance of

those disclaimers, including, inter alia, the phrase “not authorized by any candidate or 

candidate’s committee,” the requirement that the disclaimer be placed in a clear and conspicuous 

manner in a box set apart from the communication, and use contrasting color). 

Additionally, as Amici suggested before the D.C. Circuit, the FEC could require that an 

unauthorized committee’s use of a candidate’s name must clearly indicate it is a third party. See 

Pursuing America’s Greatness v. FEC, No. 15-5264, Br. of amici curiae Pacific Legal 

Foundation and the James Madison Center for Free Speech at 11 (D.C. Cir. Dec. 23, 2015) (Doc. 

No. 1590287). For example, the FEC could require that unauthorized committees use titles such 

as “Conservatives Who Like Mike Huckabee” or “Farmers Who Like David Young.” This would 

indicate to the reader that the organization is not a campaign committee but a group supporting 

the candidate. This approach would also be less restrictive than a complete ban on using a 

candidate’s name in a special project unless you clearly and unambiguously show opposition. 

The FEC has the burden to adduce sufficient evidence that these two less restrictive alternatives 

would be ineffective at preventing confusion. See Playboy Entm’t Grp., 529 U.S. at 813 (“If a

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 36 of 42
32

less restrictive alternative would serve the [g]overnment’s purpose, the legislature must use that

alternative.”); see also id. at 816 (“When a plausible, less restrictive alternative is offered to a

content-based speech restriction it is the Government’s obligation to prove that the alternative

will be ineffective to achieve its goals.”); Pursuing America’s Greatness, 831 F.3d at 511. The

FEC has never attempted to do so, and when confronted with the issue, the FEC simply noted

that it “believes the potential for confusion is equally great in all types of committee 

communications[,]” 57 Fed. Reg. at 31425, and in any event, a “total ban” is easier to monitor

and enforce. Id.

Even without additional disclaimers or different project name wording requirements,

PAG explained that Facebook and Twitter have both addressed confusion concerns arising from

whether a Facebook page or Twitter handle is an “official page” of a public figure. Facebook and

Twitter both indicate whether a Facebook page or Twitter handle is the official page or Twitter

handle of a public figure by placing a blue check mark next to the page or handle name. SMF ¶ 

22; see also Pursuing America’s Greatness v. FEC, No. 15-5264, Br. of amici curiae Pacific 

Legal Foundation and the James Madison Center for Free Speech at 17 (D.C. Cir. Dec. 23, 2015) 

(Doc. No. 1590287) (“Someone interested in Mike Huckabee could type his name in the search 

bar and quickly find two pertinent pages—his verified page (indicated with the blue checkmark) 

and the now unused page, I Like Mike Huckabee, belonging to Pursuing America’s Greatness.”).

Both of these policies have been in effect since at least 2013. SMF ¶ 22. Thus, a Facebook

and/or Twitter user can quickly and easily know whether a page is Mike Huckabee’s official

page, David Young’s official page or Richard Burr’s official page because Facebook and Twitter

would place a blue check mark next to these page names. These examples of technological

innovation address the FEC’s ostensible compelling interest in a manner that is effective and

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 37 of 42
33

which does not ban speech. It is the FEC’s burden to prove these various less restrictive means

are ineffective at preventing confusion and fraud. See Playboy Entm’t Grp., 529 U.S. at 813, 816.

ii. It Is Insufficient to Sustain the FEC’s Content-Based Speech Ban Because

Disclaimers on Facebook Sponsored Ads and Twitter are Impracticable.

During PAG’s deposition, the FEC examined how disclaimers might work for Facebook 

sponsored advertisements and Twitter messages. See generally (PAG Dep. Tr. at 89-95). A 

sponsored advertisement from PAG through its “I like [name of candidate for federal office]” 

Facebook page would appear on a Facebook user’s page as coming from “I Like [name of 

candidate for federal office].” SMF ¶ 23. Facebook’s sponsored advertisements, like Twitter, are 

character limited, which prevents a full disclaimer from being placed in the sponsored post itself.

SMF ¶ 23. However, an ad sponsor, such as PAG, would still provide a link within the sponsored 

ad for readers to click and that would then take the reader to the “I Like [name of candidate for 

federal office]” Facebook page or website where a full, FEC-compliant disclaimer would be 

located. SMF ¶ 23.

In FEC Advisory Opinion 2011-09 (Facebook, Inc.), all six Commissioners 

acknowledged the character limitations on Facebook sponsored messages. See FEC AO 2011-09, 

Draft B (three Commissioners finding that Facebook sponsored ads are character limited, which

makes providing a disclaimer impracticable, and therefore such ads are exempt from the 

disclaimer requirements under 11 C.F.R. § 110.11(f)(1)(ii)); see also FEC AO 2011-09, Draft C 

(three Commissioners explained that Facebook sponsored ads are character limited but 

advertisement sponsors may satisfy the FEC’s disclaimer requirements by providing a link to a 

website that contains the full disclaimer); see also FEC AO 2011-09 (Facebook) (June 17, 2011) 

(Certification stating that three Commissioners voted for Draft B and the remaining three 

Commissioners voted for Draft C). Notably, no Commissioner suggested that the solution to this 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 38 of 42
34

disclaimer issue was to ban political speech on Facebook. Rather, three Commissioners 

concluded that Facebook and Twitter messages fall within an exemption for disclaimers where

placing a disclaimer on an item is impracticable. See FEC AO 2011-09, Draft B at 1. Three other

Commissioners proposed that the disclaimer requirement could be satisfied by providing a link

in a character-limited sponsored ad that would lead to a webpage that included a full, FECcompliant disclaimer. PAG takes no position on which group of Commissioners is correct. PAG 

has never sought to confuse any reader and will voluntarily include a link to a webpage that 

includes a full, FEC-compliant disclaimer that would provide additional assurance that the public 

may know who is speaking. 

Not one of the six Commissioners even suggested prohibiting Facebook sponsored ads 

due to fear of confusion because a disclaimer was not readily visible on the sponsored ad itself. 

Instead, the Commissioners disagreed over whether a disclaimer was required at all, or whether 

the disclaimer requirement could be satisfied by providing a link to a webpage that included a 

full disclaimer. See also AO 2010-19 (Google) (A unanimous Commission agreed that Google’s 

proposed activity of allowing text ads—which are limited to 95 characters—on Google’s search 

engine did not violate the FEC’s disclaimer requirements when the text ad provided a link to a 

website containing the full disclaimer. The Commission did not, however, agree on the 

rationale). PAG’s speech through its candidate name special projects should likewise not be 

prohibited because disclaimers cannot fit within a posting. Rather, any resulting potential

confusion can be cured through less restrictive, alternate means. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 39 of 42
35

iii. The FEC’s Content-Based Speech Ban Is Not Saved Because PAG Still 

Actively Advocated for the Nomination and Election of Mike Huckabee for 

President, Despite Not Speaking Through the I Like Mike Huckabee 

Website and Facebook Page.

The FEC has previously argued that PAG did not suffer any injury because PAG spent 

millions of dollars advocating for Mike Huckabee during the Republican presidential nomination 

process. See Pursuing America’s Greatness v. FEC, No. 15-5264, FEC Br.at 21, 58-59 (D.C. Cir. 

Jan. 13, 2016) (Doc. No. 1593393). During PAG’s deposition, the FEC persisted with this point,

that PAG spent $3.5 million in independent expenditures supporting Mike Huckabee’s 

nomination. See, e.g., (PAG Dep. Tr. at 69:15-18). 

The fact that PAG was able to speak through its Facebook page, radio, and television 

advertisements and not through its special project website and Facebook page is a factual 

distinction without a legal difference. The Supreme Court has ruled that there is no difference 

between a content-based law that burdens speech and a content-based law that prohibits speech. 

Both must satisfy the same strict scrutiny analysis. See Playboy Entm’t Grp., 529 U.S. at 812

(“The distinction between laws burdening and laws banning speech is but a matter of degree. 

The Government’s content-based burdens must satisfy the same rigorous scrutiny as its contentbased bans.”). Furthermore, whether a person can speak through other avenues is a relevant 

inquiry only when a statute is content-neutral subject to intermediate scrutiny. See, e.g., Ward v. 

Rock Against Racism, 491 U.S. 781, 791 (1989). But the D.C. Circuit has ruled that strict 

scrutiny applies to the FEC’s PAC Name Prohibition because it is a content-based speech ban 

“pure and simple.” See Pursuing America’s Greatness, 831 F.3d at 509-10. The fact that PAG 

still spoke during the 2016 nomination process is irrelevant to this Court’s analysis. 

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 40 of 42
36

CONCLUSION

This Court should grant the Motion for Summary Judgment and hold that the FEC’s PAC 

Name Prohibition is a content-based ban on speech that violates the First Amendment to the U.S. 

Constitution.

Respectfully Submitted,

September 11, 2017

/s/ Jason Torchinsky

Jason Torchinsky (D.C. Bar No. 976033)

J. Michael Bayes (D.C. Bar No. 501845)

Shawn Sheehy

Steven P. Saxe

Phillip M. Gordon 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Counsel for Plaintiff Pursuing America’s Greatness

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 41 of 42
37

Certificate of Service

I hereby certify that the foregoing document was filed with the Clerk of the Court via the 

CM.ECF filing system which served the foregoing document on all counsel required to be 

served. 

_____/s/_Jason Torchinsky______

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjt.law

J. Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjt.law

Shawn Sheehy

ssheehy@hvjt.law

Steven P. Saxe

spsaxe@hvjt.law

Phillip M. Gordon

pgordon@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY

PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Pursuing America’s Greatness

Case 1:15-cv-01217-TSC Document 38-1 Filed 09/11/17 Page 42 of 42