1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

) 

PURSUING AMERICA’S GREATNESS, )

)

Plaintiff, ) Civ. No. 15-1217 (TSC) 

) 

v. )

)

FEDERAL ELECTION COMMISSION, ) SUMMARY JUDGMENT

) MOTION

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission (“Commission”) respectfully cross-moves this 

Court for an order (1) granting summary judgment to the Commission pursuant to Rule 56 of the 

Federal Rules of Civil Procedure and Local Civil Rule 7(h), (2) denying plaintiff’s summary 

judgment motion (Docket No. 38), and (3) dissolving the preliminary injunction order (Docket 

No. 31). In support of this motion, the Commission is filing a Memorandum in Support of Its 

Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment, 

Responses to Plaintiff’s Statement of Undisputed Facts and Defendant’s Further Statement of 

Material Facts and accompanying Exhibits, and a Proposed Order. The Commission requests 

oral argument on this motion. 

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 Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel 

ckitcher@fec.gov

/s/ Tanya Senanayake 

Tanya Senanayake (D.C. Bar No. 1006218)

Attorney

tsenanayake@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

Washington, DC 20463

(202) 694-1650

October 23, 2017

Case 1:15-cv-01217-TSC Document 40 Filed 10/23/17 Page 2 of 193
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

PURSUING AMERICA’S GREATNESS, )

)

Plaintiff, ) Civ. No. 15-1217 (TSC)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) SUMMARY JUDGMENT

) MEMORANDUM

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND 

IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

 

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel 

ckitcher@fec.gov

Tanya Senanayake (D.C. Bar No. 1006218)

Attorney

tsenanayake@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

Washington, DC 20463

(202) 694-1650

October 23, 2017

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TABLE OF CONTENTS

 Page

INTRODUCTION .....................................................................................................................1

BACKGROUND .......................................................................................................................2

I. STATUTORY AND REGULATORY BACKGROUND .............................................2

A. The Federal Election Commission .....................................................................2

B. The Enactment of the Name Requirement Provision in FECA..........................2

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

D. The FEC’s 1992 Revision of the Regulation......................................................5

E. The FEC’s 1994 Revision of the Regulation......................................................8

F. The FEC’s Application of the Name Identification Requirement......................9

II. PLAINTIFF’S CLAIMS AND ACTIVITIES..............................................................10

III. PROCEDURAL HISTORY..........................................................................................12

ARGUMENT...........................................................................................................................13

I. STANDARD OF REVIEW.........................................................................................14

A. Summary Judgment Standard ..........................................................................14

B. Standard of Scrutiny.........................................................................................14

II. THE NAME REGULATION IS CONSTITUTIONAL BECAUSE IT IS 

NARROWLY TAILORED TO SERVE THE COMPELLING INTERESTS 

OF LIMITING CONFUSION, FRAUD, AND ABUSE.............................................17

A. Limiting Confusion, Fraud, and Abuse Are Compelling 

Governmental Interests....................................................................................17

1. The Record Contains Substantial Evidence of Confusion, Fraud, and 

 Abuse Resulting from Political Committees’ Use of Candidate Names 

 in the Names They Use to Conduct Their Affairs................................18

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2. The FEC’s Compelling Interests Underlying the Name 

 Regulation Are Not Confined to the Context of Solicitations..............24

3. The Potential for Confusion, Fraud, and Abuse are Amplified in 

 Today’s Political and Technological Landscape ..................................28

 B. Section 102.14 is Narrowly Tailored to Limit Confusion, Fraud, and 

Abuse ...............................................................................................................29

1. The Record Demonstrates that Section 102.14 is Narrowly 

 Tailored.................................................................................................30

2. Section 102.14 Has Been Refined to be as Least Restrictive as 

 Possible .................................................................................................35

3. The Alternatives that PAG Proposes Would Be Ineffective at 

 Addressing Voter Confusion ................................................................38

III. UPHOLDING THE CONSTITUTIONALITY OF SECTION 102.14 IS 

CONSISTENT WITH THE D.C. CIRCUIT’S ANALYSIS OF PAG’S 

REQUEST FOR A PRELIMINARY INJUNCTION..................................................43

IV. EVEN IF SECTION 102.14 POSSESSED A CONSTITUTIONAL INFIRMITY,

THE APPROPRIATE REMEDY WOULD BE TO STRIKE 102.14(B)(3) AND 

AFFIRM THE SEVERED PORTION ........................................................................44

V. PAG HAS FAILED TO ADVANCE ITS APA AND “PRIOR RESTRAINT” 

CLAIMS AND HAS THEREFORE WAIVED THESE CLAIMS.............................45

CONCLUSION........................................................................................................................45

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TABLE OF AUTHORITIES

Cases Page

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................................16

Am. Petroleum Inst. v. EPA, 862 F.3d 50 (2017).....................................................................45

Anderson v. Celebrezze, 460 U.S. 780 (1983).........................................................................17

Ark. Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99 (D.C. Cir. 2003).......................................45

Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) ..............................................................26

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, (2011) .......................................................21

*Buckley v. Valeo, 424 U.S. 1 (1976)....................................................................18, 28, 33, 36

*Burson v. Freeman, 504 U.S. 191 (1992)................................................16, 17, 18, 21, 30, 43

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................14

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)........................... 4-5

Citizens for Responsibility and Ethics in Washington, et al. v. Cheney,

 593 F. Supp. 2d 194 (D.D.C. 2009)..................................................................................44

Citizens United v. FEC, 558 U.S. 310 (2010)............................................ 15-16, 16, 17, 18, 33

*Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................4, 5, 15, 17, 19, 39

Commc’ns Maint., Inc. v. Motorola, Inc., 761 F.2d 1202 (7th Cir. 1985)...............................44

Conax Fla. Corp. v. U.S., 824 F.2d 1124 (D.C. Cir. 1987).....................................................44

Evans v. Sebelius, 716 F.3d 617 (D.C. Cir. 2013)...................................................................45

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001)................................21

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)....................................5

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)....................................................17

Galliano v. U.S. Postal Service, 836 F.2d 1362 (D.C. Cir. 1988)...........................................15

McConnell v. FEC, 540 U.S. 93 (2003).............................................................................16, 33

Case 1:15-cv-01217-TSC Document 40 Filed 10/23/17 Page 6 of 193
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McCutcheon v. FEC, 134 S. Ct. 1434 (2014)....................................................................17, 21

Nat. Res. Def. Council v. Pena, 147 F.3d 1012 (D.C. Cir. 1998)............................................44

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)...............................................30

*Pursuing America’s Greatness v. FEC,

 132 F. Supp. 3d 23 (D.D.C. 2015)..........................................12, 17, 18, 25, 26, 28, 36, 38

*Pursuing America’s Greatness v. FEC,

 831 F.3d 500 (D.C. Cir. 2016)........................12, 15, 16, 18, 25, 30, 36, 37, 38, 39, 43, 45

R.A.V. v. St. Paul, 505 U.S. 377 (1992)...................................................................................16

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015)...........................................................15

STOP Hillary PAC v. FEC, 166 F. Supp. 3d 643 (E.D. Va. 2015) .........................................38

*Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)..................................................................44

U.S. v. Playboy Entm’t Grp., 529 U.S. 803 (2000)..................................................................21

*Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015)................................16, 30, 36, 37, 38, 43

Statutes and Regulations

Federal Election Campaign Act, 52 U.S.C. §§ 30101-146........................................................2

Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 102, 

 93 Stat. 1339 (1980)............................................................................................................3

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

11 C.F.R. § 102.14(a)-(b) (1980)...............................................................................................4

11 C.F.R. § 102.14(b) (1980).....................................................................................................4

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

11 C.F.R. § 102.14(b)(3)..........................................................................................................35

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

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

52 U.S.C. § 30102(e)(4).........................................................................................................3, 4

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

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

52 U.S.C. § 30109(a)(8).............................................................................................................2

52 U.S.C. § 30109(a)(2).............................................................................................................2

52 U.S.C. § 30109(a)(6).............................................................................................................2

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

52 U.S.C. § 30111(a)(8).............................................................................................................2

52 U.S.C. § 30120......................................................................................................................4

Miscellaneous

Fed R. Civ. P. 56......................................................................................................................14

FEC Advisory Op. 1995-09 (NewtWatch PAC), 1995 WL 247474 (Apr. 21, 1995) ...............9

FEC Advisory Op. 2010-19 (Google, Inc.),

 https://www.fec.gov/files/legal/aos/76083.pdf.................................................................40

FEC Advisory Op. Request 2011-09 (Facebook), 

 https://www.fec.gov/data/legal/advisory-opinions/2011-09/............................................40

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

 2013 WL 6094229 (Nov. 14, 2013)....................................................................................9

FEC Advisory Opinion 2015-04 (Collective Actions PAC), 

 2015 WL 4480266 (July 16, 2015)...................................................................................10

Rulemaking Petition: Citizens Against David Duke; Notice of Availability,

 58 Fed. Reg. 12,189 (Mar. 3, 1993)....................................................................................8

Special Fundraising Projects and Other Use of Candidate Names by 

 Unauthorized Committees, 57 Fed. Reg. 31,424 (July 15, 1992)......7-8, 31, 33, 34, 36-37

Special Fundraising Projects and Other Use of Candidate Names by 

 Unauthorized Committees, 58 Fed. Reg. 65,559 (Dec. 15, 1993)......................................8

Special Fundraising Projects and Other Use of Candidate Names by 

 Unauthorized Committees, 59 Fed. Reg. 17,267 (Apr. 12, 1994) ........8, 18, 21, 31, 32, 34

Case 1:15-cv-01217-TSC Document 40 Filed 10/23/17 Page 8 of 193
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Special Fundraising Projects by Political Committees, 

 57 Fed. Reg. 13,056 (Apr. 15, 1992) ..................................................................................6

U.S. House of Representatives Committee on Ethics, 

 House Ethics Manual (2008 ed.) ............................................................................... 39-40

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INTRODUCTION

Pursuing America’s Greatness (“PAG”) challenges as unconstitutional under the First 

Amendment a longstanding regulation that the Federal Election Commission (“FEC” or 

“Commission”) has narrowly crafted to implement the Federal Election Campaign Act’s 

(“FECA” or “Act”) requirement that unauthorized political committees not use any candidate’s 

name in their own names. PAG, an unauthorized and largely defunct super PAC that supported 

Governor Mike Huckabee’s 2016 presidential campaign, thus asks this Court to declare 

11 C.F.R. § 102.14(a)-(b) unconstitutional so that it — and other committees — may conduct 

activities and receive donor contributions using confusing operating names like “Conservatives 

for Huckabee” without candidate authorization. PAG contends that the regulation impedes its 

First Amendment rights of expression.

The First Amendment is not a suicide pact, however, and even applying strict scrutiny, 

courts have upheld narrowly tailored regulations affecting First Amendment rights when those 

regulations serve compelling governmental interests. Just like restrictions on politicking in the 

immediate vicinity around polling places, or judges personally soliciting campaign contributions, 

section 102.14 is narrowly tailored to further the compelling interests of limiting confusion, 

fraud, and abuse resulting from political committees’ use of candidate names in their operating 

names. Overwhelming evidence demonstrates how the use of names like “Reagan Political 

Victory Committee” by entities having nothing to do with the actual campaign causes harmful 

informational confusion, interception of donations, and even shameful scams inflicted on elderly 

supporters across the political spectrum. More recent examples, using modern modes of 

communication, are no less compelling. In addition, the record on the comparative effectiveness 

of alternative forms of regulation thoroughly demonstrates the correctness of the Commission’s 

conclusion that other alternatives, including disclaimers, are inadequate to combat these harms. 

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As the D.C. Circuit itself indicated decades ago, PAG’s proposal would lead to confusing and 

ineffective disclaimers such as a committee operating as “Reagan for President” but “not 

authorized by President Reagan.” Particularly now, with the advent of online fundraising and 

heightened concerns about identifying the sources of political information on social media 

platforms, the concerns addressed by section 102.14 are as acute as ever. Because section 

102.14 is constitutional, the Court should grant summary judgment to the Commission.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

A. The Federal Election Commission

The FEC is an independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA, 52 U.S.C. §§ 30101-146. 

Congress authorized the Commission to “formulate policy” with respect to FECA, 52 U.S.C. 

§ 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry out the 

provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of 

the Act, id. § 30109(a)(1)-(2). The FEC has exclusive jurisdiction to initiate civil enforcement 

actions for violations of FECA in the United States district courts. Id. §§ 30106(b)(1), 

30109(a)(6).

B. The Enactment of the Name Requirement Provision in FECA

FECA has for decades contained a name identification requirement for political 

committees. This requires committees to disclose, within very broad boundaries, whether they 

speak on behalf of a particular candidate or group of 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 

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

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

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

“authorized” political committee “shall include the name of the candidate who authorized” it. Id.

§ 30102(e)(4). In contrast, “any political committee which is not an authorized committee . . . 

shall not include the name of any candidate in its name.” Id. The names of the committees 

“Huckabee for President, Inc.” and “Pursuing America’s Greatness” accordingly convey that 

while the former was an authorized committee for Mike Huckabee’s 2016 campaign that was 

permitted to receive contributions and make expenditures on his behalf, the latter was not.1

 

Congress added the name identification provision to the Act in 1980. Federal Election 

Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 102, 93 Stat. 1339, 1346 (1980). 

Congress enacted the provision in response to the Commission’s experience. See FEC’s 

Responses to Pl.’s Statement of Undisputed Facts and Defendant’s Further Statement of Material 

Facts ¶¶ 27-32 (describing legislative history) (“SMF”). The Commission 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. In order to avoid confusion,” the 

agency recommended that “the Act should require the name of the principal campaign committee 

to include in its name the name of the candidate which designated the committee.” SMF ¶ 28. 

Following passage of this amendment, the FEC codified the name identification 

requirement in a regulation that largely mirrored the statutory provision, but carved out 

 1 Because Mr. Huckabee is not presently a candidate, his name may be used in any 

political committee’s formal or operating names.

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exceptions for “delegate” and “draft” committees in order to permit such groups to use the names 

of candidates in their committee names. 11 C.F.R. § 102.14(a)-(b) (1980).2 

C. Common Cause v. FEC

In 1988, the D.C. Circuit considered whether the FEC had erred in declining to pursue 

allegations that several unauthorized political committees had violated section 30102(e)(4)’s 

name regulation. Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988). 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 the challengers’ 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 D.C. Circuit 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. Consistent with the extremely deferential review 

required in connection with the FEC’s decisions not to pursue enforcement, 52 U.S.C. 

§ 30109(a)(8), the D.C. Circuit 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 

 2 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); see also 11 C.F.R. § 102.14(b) (1980).

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Defense Council, Inc., 467 U.S. 837 (1984). Common Cause, 842 F.2d 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 “[would] foster[] the very 

confusion Congress sought to prevent.” Id. at 451 (R.B. Ginsburg, J., dissenting in part). ThenJudge 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. She observed that confusing naming practices by the subject committees 

and actual confusion by “[e]ven the politically astute” was “abundantly documented in the 

record.” Id. at 451-52. Her opinion 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. at 452.

D. The FEC’s 1992 Revision of the Regulation 

In 1991, two Republican national party committees requested an FEC advisory opinion 

regarding whether they could, through a proposed joint fundraising committee to be called the 

“Committee for a Republican Congress,” use the name “Americans for Bush” as a title for a 

special fundraising project. SMF ¶ 195. During the deliberations about the request, FEC 

Commissioners expressed concern about the potential for confusion arising from an unauthorized 

committee’s use of a candidate’s name in the title of its operating name. Id. ¶ 196-97. For 

instance, Commissioner Trevor Potter expressed his “very serious concerns in this whole area 

about the potential for contributors being confused about who they’re giving to. . . . I think a 

common understanding of what has gone on over the last ten years indicates that there are many 

committees that have solicited in ways that have left contributors confused.” Id. ¶ 196. Another 

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Commissioner noted the “repugnance of the practice and the overwhelming public policy,” and 

referenced then-Judge Ginsburg’s Common Cause dissent about “how people were misled,”

including “a distinguished former member of the United States Senate, who was a member of our 

Oversight Committee.” Id. Ultimately, the Commission did not issue an advisory opinion in the 

matter, instead concluding that exploring the use of a candidate’s name in an unauthorized 

committee’s project name should be addressed through a rulemaking, in which the Commission 

could develop and consult a record. Id. ¶ 197-98.

In 1992, the Commission accordingly promulgated a Notice of Proposed Rulemaking 

(“NPRM”) regarding proposed amendments to 11 C.F.R. § 102.14, its regulation implementing 

section 30102(e)(4). FEC, Special Fundraising Projects by Political Committees, 57 Fed. Reg. 

13,056 (Apr. 15, 1992). The Commission explained in the NPRM that it was “concerned about 

the potential for confusion or abuse” in “the situation where an unauthorized committee uses a 

candidate’s name in the title of a special fundraising project.” Id. at 13,057. “[A] person who 

receives the communication might not understand that it is made on behalf of the committee 

rather than the candidate whose name appears in the project’s title.” Id. Specifically noting that 

the “court in [Common Cause] indicated that this approach, as well as the Commission’s current 

approach, would be valid under [52 U.S.C. § 30102(e)(4)],” the FEC “welcome[d] comments on 

whether this broader approach is now preferable.” Id.

The Commission at this time considered substantial evidence of voter confusion, fraud, 

and abuse that resulted from unauthorized committees using candidate names in the names under 

which they conducted their affairs. For instance, the Commission included in the rulemaking 

record a television documentary that “discovered that thousands of Americans, most of them 

elderly, have been fooled” by committees using names of politicians and that raised more than $9 

million. SMF ¶¶ 49, 124-27, 219, 235. The Commission also considered comments evidencing 

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this widespread problem, see SMF ¶¶ 45-49, 116-128, including one from an authorized 

committee that wrote about a group called the “National Security Political Action Committee”

which had raised $10,277,264 in 1988 with its “Americans for Bush” fundraising program. Id.

¶¶ 46-47. The agency considered a statement from Senator Bob Dole and Representative 

Christopher Shays, who described direct experience with misleading committee project names 

and explained that they had “long been concerned” with the issue of “helping to ensure that the 

public is not misled by unauthorized fundraising solicitations,” because “many Americans who 

thought they were contributing to legitimate campaigns were actually donating to an 

unauthorized committee. . . . [S]enior citizens on fixed incomes are especially vulnerable to 

unauthorized solicitations.” Id. ¶ 121. 

During the course of the rulemaking and over a series of meetings, the Commission 

discussed several avenues for addressing the problem of contributor and voter confusion. In 

particular, and as discussed in greater detail below, see infra pp. 30-35, the Commission 

considered (1) requiring checks to be payable to the reporting committee; (2) requiring a 

disclaimer that was “clearer on its face” than that required at the time; (3) requiring unauthorized 

committees to obtain consent from the candidate before using his or her name in a special project 

title; (4) allowing the use of candidate names only by party committees of the same party as the 

candidate, and (5) regulating the use of candidates’ names in special project titles. SMF ¶ 204. 

The Commission found that all but the last of these alternatives would be insufficient or 

ineffective to respond to the concerns that had been documented in the record. Id. ¶¶ 204-235.

Consequently, in consideration of the comments received and “the entire rulemaking 

record,” the agency decided to revise section 102.14 to regulate “the use of candidate names in 

the titles of all communications by unauthorized committees.” FEC, Special Fundraising 

Projects and Other Use of Candidate Names by Unauthorized Committees, 57 Fed. Reg. 31,424, 

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31,425 (July 15, 1992) (“1992 Explanation & Justification”). The new rule provided that, 

subject to the same exceptions for delegate and draft committees, “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.” Id. at 31,426.

E. The FEC’s 1994 Revision of the Regulation

In 1993, the agency received a Petition for Rulemaking asking that the Commission

reconsider the new regulation it had just passed. The agency published a Notice of Availability 

inviting public comments on the petition. FEC, Rulemaking Petition: Citizens Against David 

Duke; Notice of Availability, 58 Fed. Reg. 12,189 (Mar. 3, 1993).

After considering the rulemaking petition, the Commission issued a new NPRM 

concerning the name regulation. FEC, Special Fundraising Projects and Other Use of 

Candidate Names by Unauthorized Committees, 58 Fed. Reg. 65,559 (Dec. 15, 1993). 

Recognizing that “the focus of the earlier rulemaking was on titles that indicate support for a 

named candidate, and that the potential for fraud and abuse is significantly reduced in the case of 

those titles that indicate opposition,” the Commission “decided to open a rulemaking on the 

narrow question of whether the current rules should be revised to permit the use of candidate 

names in titles that clearly indicate opposition to named candidates.” Id.

The Commission received comments providing “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.” FEC, Special Fundraising Projects and Other Use of 

Candidate Names by Unauthorized Committees, 59 Fed. Reg. 17,267, 17,268 (Apr. 12, 1994) 

(“1994 Explanation & Justification”). The record also indicated, however, “that the potential for 

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fraud and abuse is significantly reduced in the case of” the use of a candidate’s name by a 

committee or project which opposes the candidate. Id. The FEC “accordingly revised its rules to 

permit” such names, promulgating a new exception to the regulation. Id. at 17,269. Adding to 

the longstanding delegate and draft exceptions, 11 C.F.R. § 102.14(b)(1)-(2), the agency added a 

third exception: “(3) 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.” Id. at 17,269. The language of 

11 C.F.R. § 102.14(b)(3) remains the same today.

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

Since its revisions to the regulation in the early 1990s, the FEC has issued a number of 

advisory opinions and proceeded on various enforcement matters, called matters under review 

(“MURs”), applying the name identification requirement. In 1995, for example, the Commission 

held in response to an advisory opinion request that the use of the name “NewtWatch” for the 

“operation of a World Wide Web site” and in the uniform resource locator (“URL”) for its 

website would constitute a special project within the clear and unambiguous opposition 

exception. FEC Advisory Op. 1995-09 (NewtWatch PAC), 1995 WL 247474, at *1, *5 

(Apr. 21, 1995); see also FEC Advisory Opinion 2013-13 (Freshman Hold’em JFC), 2013 WL 

6094229, at *1-2 (Nov. 14, 2013) (requiring a joint fundraising committee to include the names 

of the group of candidates who had authorized it); Conciliation Agreement, ¶¶ IV.4., V.1., 

Republicans for Trauner, MUR 5889 (2007) https://www.fec.gov/files/legal/murs/current/62337

.pdf (finding use of the name of a candidate in a non-authorized committee’s name a violation). 

Most recently, in FEC Advisory Opinion 2015-04 (Collective Actions PAC) (“CAP 

Advisory Opinion”), the FEC unanimously concluded that the group making the request, 

Collective Actions PAC (“CAP”), an unauthorized political committee, was not permitted to use 

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the name of a candidate for federal office in the name of its proposed websites or social media 

pages such as RunBernieRun.com, ProBernie.com, the Facebook page Run Bernie Run, and the 

Twitter accounts @Bernie_Run and @ProBernie. 2015 WL 4480266, at *1 (July 16, 2015). 

The agency explained that “[b]ecause the names of the Committee’s websites and social media 

accounts that include Senator [Bernie] 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 *3. The 

Commission also reiterated, “however, that this restriction only applies to the titles of the 

Committee’s projects. The Committee is free to promote Senator Sanders (or any other 

candidate) by name in the body of any website or other communication.” Id.

II. PLAINTIFF’S CLAIMS AND ACTIVITIES

PAG is an independent-expenditure-only political committee (or “super PAC”) that 

“independently advocate[d] for the election of Mike Huckabee as President of the United States”

in 2015 and 2016. SMF ¶ 2. PAG is not authorized by any candidate or candidate’s committee, 

and registered with the FEC as an “unauthorized” political committee. Id. ¶ 3.

In 2015, a company named Strategic Media 21 approached PAG about coordinating their 

efforts to support Mr. Huckabee. SMF ¶ 4. Specifically, Strategic Media 21 proposed 

associating PAG with an “I Like Mike Huckabee” Facebook page and website that Strategic 

Media 21 had created. Id. After a period of negotiations, PAG and Strategic Media 21 entered 

into a contract pursuant to which PAG “control[led] the operation and maintenance, including 

the content, of the website www.ilikemikehuckabee.com and Facebook page ‘I Like Mike 

Huckabee.’” Id. ¶¶ 5-6. PAG began operating and maintaining the website and social media 

account around July 9, 2015. Id. ¶ 7. 

Following the issuance of the CAP Advisory Opinion on July 16, 2015, instead of 

moving PAG’s use of Mr. Huckabee’s name to a subheading such as “America’s Greatness: We 

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Like Mike Huckabee” and proceeding with PAG’s claimed strategy of continuing to build on 

what it has characterized as the uniquely positive Facebook community Strategic Media 21 had 

built (Pl.’s Mem. in Supp. of Its Mot. for Summ J. at 4 (Docket No. 38-1) (“Pl.’s Mem.”)), PAG 

chose to keep Mr. Huckabee’s name in the title of the website and Facebook page and in the 

URLs. Strategic Media 21 questioned this decision, asking PAG’s principals “whether we can 

use the name I Like Mike Huckabee or need to switch to another name,” explaining that its team 

could “reach 82 million people using social media,” and that with funding “[w]e can start a tidal 

wave using social media,” including potentially if they “just switch to another name.” SMF 

¶¶ 8-9, 13-15. PAG instead ordered Strategic Media 21“to suspend and cease postings” on the “I 

Like Mike Huckabee” website and Facebook page. Id. ¶ 9. PAG and Strategic Media 21 thus

ceased any further work on updating, maintaining, promoting or changing these pages. Id.

However, they left the website and Facebook Page publicly accessible in largely the same form 

as they were left on July 17, 2015. Id. PAG and Strategic Media 21 later parted ways. Id. ¶ 16.

PAG initiated this lawsuit in July 2015. PAG’s complaint asserts three claims: (1) that 

11 C.F.R. § 102.14, the Commission’s regulation implementing the statutory naming 

requirements for political committees, 52 U.S.C. § 30102(e)(4), and the agency’s interpretation 

of that regulation in the CAP Advisory Opinion, are “arbitrary, capricious, an abuse of 

discretion, and contrary to law under the Administrative Procedure Act”; (2) that the FEC’s

interpretation of the statutory naming requirements for political committees acts as a “prior 

restraint on speech that violates the First Amendment”; and (3) that section 30102(e)(4) and its 

implementing regulation are “impermissibly content-based,” because while “an unauthorized 

political committee is restricted in its ability to communicate with respect to federal candidates it 

supports,” the “same unauthorized political committee is free to use the name of a federal 

candidate it opposes.” Compl. ¶¶ 44-70. 

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III. PROCEDURAL HISTORY

Concurrent with the filing of its complaint in July 2015, PAG sought a preliminary 

injunction to prevent the Commission from enforcing the name regulation. (Docket No. 2.) This

Court denied PAG’s motion, finding that it was unlikely to succeed on the merits of its claims.

Pursuing America’s Greatness v. FEC, 132 F. Supp. 3d 23, 44 (D.D.C. 2015) (“PAG I”). 

On appeal, a panel of the D.C. Circuit Court of Appeals affirmed the Court’s finding that 

PAG was not entitled to a preliminary injunction with respect to its Administrative Procedure 

Act (“APA”) claim, finding that “the FEC reasonably applied the naming requirements of section 

102.14 to an unauthorized committee’s websites and social media pages,” including “more than 

just fundraising activities.” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 506 (D.C. Cir. 

2016) (“PAG II”). The D.C. Circuit panel reversed, however, with respect to PAG’s First 

Amendment claim. Id. at 505-512. In evaluating the name regulation under strict scrutiny,

although it could be assumed that the FEC has a compelling interest “in avoiding the type of 

voter confusion” it had identified, the panel found “a substantial likelihood” that the regulation 

“is not the least restrictive means to achieve the government’s interest.” Id. at 507-10. The 

panel found that the record at the preliminary injunction stage was insufficient with respect to the 

FEC’s determination that a disclaimer approach — which the panel believed could be less 

“burdensome” — would not be as effective as the challenged approach of regulating committees’ 

use of candidate names directly. Id. at 510-11. Thus, based on what the Court concluded was

the “silen[ce]” of the preliminary-injunction record “as to the comparative effectiveness of . . .

two alternatives,” id. at 511 (internal quotation marks omitted), the panel found that PAG was 

likely to succeed on the merits and was entitled to a preliminary injunction, id. at 512.

The preliminary injunction order permitted PAG to establish websites and social media 

pages, including on the Facebook and Twitter platforms, using the names of federal candidates in 

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the titles of the pages. (Order (Docket No. 31).) PAG has since launched no new Facebook 

pages and no Twitter accounts. SMF ¶ 24. Despite its view of the limited value of websites, due 

to their “static” nature and relative lack of “effective[ness]” vis-à-vis “other forms of 

communication[],” id. ¶ 187, PAG’s only present exercise of the rights the preliminary injunction 

provided has been to establish and maintain one website, id. ¶¶ 23-24. This website,

ilikedavidyoung.com, consists of a single webpage duplicating a mailer that PAG created. Id. 

¶ 25. It has only been accessed by a total of 8 users as of March 2017, most or all of them 

counsel and persons associated with PAG or this case. Id. Of the nearly $5 million PAG raised 

in 2016, it has spent almost everything. Id. ¶ 21. It has collected $0 in new contributions in the 

present election cycle and may exist only to pursue this litigation with its remaining cash on hand 

of less than $50,000. Id.

On September 11, 2017, PAG filed its motion for summary judgment, pressing only its 

First Amendment claim. 

ARGUMENT

The FEC’s committee name regulation, 11 C.F.R. § 102.14(a)-(b), is constitutional. Even 

if reviewed under strict scrutiny, the rule passes muster because it is narrowly tailored to serve 

the government’s compelling interests in limiting confusion, fraud, and abuse. Section 102.14 

clarifies for donors and supporters whether a political committee is part of a candidate’s 

authorized campaign machinery. It does so by regulating committees’ use of candidate names in 

the names under which they communicate information to, and receive funds from, the public. 

The record abundantly demonstrates that the dangers section 102.14 directly targets include

everything from harmful informational confusion and interception of donations intended for 

candidates to outright fraudulent profiteering. The regulation is also exceptionally narrowly 

tailored. The record that the Court of Appeals panel found to be lacking when it issued its 

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preliminary PAG II opinion has been supplemented by the more substantial record the 

Commission is presenting at this merits stage. This more fulsome record demonstrates that when 

the Commission revised its regulations, it explicitly considered many past instances of abuse and 

the agency’s experience with the regulated community objecting to increased space and time for 

disclaimers in communications. The Commission evaluated alternatives, including larger, or 

differently-worded disclaimers, and concluded that enhanced disclaimers would be more 

burdensome and not effective in addressing the problems that had been raised. Considerable 

evidence and technological developments from the intervening years confirms that disclaimers

and other alternatives would not be sufficient to address concerns of confusion and diversion of 

funds. Furthermore, by carefully calibrating section 102.14 to regulate as minimally as possible, 

the Commission chose the least restrictive, effective approach. In contrast, PAG’s other 

proposed alternatives are manifestly flawed, and it has waived the other claims asserted in its 

complaint. The Court should grant summary judgment to the FEC and dissolve the preliminary 

injunction order PAG does not need. And even if the Court were to find some constitutional 

infirmity in the name identification regulation, the proper course would be to strike only any

severable portions of it found to be problematic.

I. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

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

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

B. Standard of Scrutiny

The Court of Appeals panel in PAG II concluded that PAG’s First Amendment challenge 

to section 102.14 should be reviewed using “strict scrutiny” because the panel viewed the 

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challenged regulation as a content-based restriction on speech. 831 F.3d at 510 (citing Reed v. 

Town of Gilbert, Ariz., 135 S. Ct. 2218, 2231 (2015)). This determination, including the panel’s 

finding that section 102.14 is “not a disclosure requirement,” contrary to the conclusion of this 

Court, PAG I, 132 F. Supp. 3d at 38, is arguably in tension with the D.C. Circuit’s decisions in 

Common Cause, 842 F.2d at 442 and Galliano v. U.S. Postal Service, 836 F.2d 1362, 1367-68

(D.C. Cir. 1988), both of which described the name regulation, including the statutory provision 

section 102.14 implements, 52 U.S.C. § 30102(e)(4), as a disclosure provision. 

The panel’s analysis in distinguishing Common Cause and Galliano, on the basis that 

these earlier decisions concerned only the constitutionality of the statutory provision, PAG II,

831 F.3d at 508 n.4, appears to have overlooked the fact that the predecessor version of

regulatory section 102.14 was at issue in Common Cause, see 842 F.2d at 440 (explaining that 

the analysis that was subject to the Court’s review was the FEC’s interpretation of the language 

of section 30102(e)(4) “and the Commission’s implementing regulation”). The panel’s analysis

is also arguably inconsistent with the lengthy Chevron analysis in Common Cause — in which 

the question was whether the statutory provision mandated that the name regulation apply to all 

of a political committee’s operating names — and the Court’s indication that such an approach 

would survive Chevron review. Common Cause, 842 F.2d at 440-41. The panel’s conclusion is 

also in tension with the Congressional drafting committee’s statement of its “intent” that “the 

average contributor or voter be able to determine, by reading the committee’s name, on whose 

behalf the committee is operating.” SMF ¶ 30.

The Commission incorporates by reference and preserves its argument that the regulation 

is a disclosure provision that “is reviewed for ‘exacting scrutiny,’ which requires a ‘substantial 

relation’ between the disclosure requirement and a ‘sufficiently important’ governmental 

interest” (see FEC’s Opp. to Mot. for Prelim. Inj. at 25 (Docket No. 13) (quoting Citizens United 

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v. FEC, 558 U.S. 310, 366-67 (2010))), until such time as the Court of Appeals has an 

opportunity to consider the question on full merits review. In any event, the name regulation

also passes review under strict scrutiny, as shown below.

In PAG II, the panel stated that strict scrutiny here requires the Commission to “show 

[that] the restriction is narrowly tailored to a compelling governmental interest.” 831 F.3d at 

510. But even under strict scrutiny, “[t]he First Amendment requires that [the regulation] be 

narrowly tailored, not that it be ‘perfectly tailored.’” Williams-Yulee v. Fla. Bar, 135 S. Ct. 

1656, 1671 (2015) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992) (plurality op.). 

Importantly, the “First Amendment imposes no freestanding ‘underinclusiveness limitation,’” 

because “[a] State need not address all aspects of a problem in one fell swoop; policymakers may 

focus on their most pressing concerns. We have accordingly upheld laws — even under strict 

scrutiny — that conceivably could have restricted even greater amounts of speech in service of 

their stated interests.” Id. at 1668 (quoting R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992)). And 

although PAG treats the application of strict scrutiny as dispositive, there are cases in which “a

speech restriction” is upheld as “narrowly tailored to serve a compelling interest.” Id. at 1666; 

see also Burson, 504 U.S. at 211 (citing cases in which the Court upheld rules under strict 

scrutiny); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel 

the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” (citation omitted)); McConnell 

v. FEC, 540 U.S. 93, 314 (2003), overruled in part by Citizens United, 558 U.S. 310 (opinion of 

Kennedy, J.) (explaining that Justice Kennedy would have applied strict scrutiny to portions of 

the Bipartisan Campaign Finance Reform Act (“BCRA”) and upheld them). Such cases “do 

arise,” Williams-Yulee, 135 S. Ct. at 1666, and this is one of them. 

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II. THE NAME REGULATION IS CONSTITUTIONAL BECAUSE IT IS 

NARROWLY TAILORED TO SERVE THE COMPELLING INTERESTS OF 

LIMITING CONFUSION, FRAUD, AND ABUSE

Section 102.14 passes constitutional review under strict scrutiny because the FEC has 

compelling interests in limiting confusion, fraud, and abuse, and section 102.14 is narrowly 

tailored to further those interests. The requirement clarifies 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. PAG does not directly contend that the interests served by section 102.14 are not 

compelling. Rather, it erroneously argues that the record lacks such evidence. 

A. Limiting Confusion, Fraud, and Abuse Are Compelling Governmental 

Interests

The Supreme Court has already “concluded that a State has a compelling interest in 

protecting voters from confusion and undue influence.” Burson, 504 U.S. at 199; 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.”); PAG I, 132 F. Supp. 3d at 40 (explaining why Burson is “instructive here”). These 

interests are consistent with the Supreme Court’s reiterations of the importance of “provid[ing] 

the electorate with information about the sources of election-related spending.” McCutcheon v. 

FEC, 134 S. Ct. 1434, 1459 (2014) (internal quotation marks omitted); 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)); 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 . . . so that the 

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people will be able to evaluate the arguments to which they are being subjected.”); Buckley v. 

Valeo, 424 U.S. 1, 68 (1976) (per curiam) (holding that the Act’s reporting requirements for 

political committees “directly serve substantial governmental interests”). “‘At the very least,’ 

the [regulation] helps to ‘avoid confusion by making clear’ to the voting public that 

communications disseminated via unauthorized committees’ special projects ‘are not funded by a 

candidate or political party.’” PAG I, 132 F. Supp. 3d at 41-42 (quoting Citizens United, 558 

U.S. at 368). In accordance with this precedent, the PAG II panel “assume[d] that the 

government has a compelling interest in avoiding the type of voter confusion identified by the 

FEC.” PAG II, 831 F.3d at 510 (citing Burson, 504 U.S. at 199). It explained: “[h]ere, 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. The 

PAG II panel was correct that the evidence demonstrates that the interests in limiting confusion, 

fraud, and abuse are compelling.

1. The Record Contains Substantial Evidence of Confusion, Fraud, and 

Abuse Resulting from Political Committees’ Use of Candidate Names

in the Names They Use to Conduct Their Affairs

Congress enacted 52 U.S.C. § 30102(e)(4) based on the FEC’s informed opinion that

committee names should be regulated in order “to avoid confusion,” as well as the drafting 

committee’s expressly stated goal that “the average contributor or voter be able to determine, by 

reading the committee’s name, on whose behalf the committee is operating.” SMF ¶¶ 30

(emphasis added), ¶¶ 28-31. In the early 1990s, the Commission revised section 102.14 in 

response to its “increasing[] concern[s] over the possibility for confusion or abuse” under the 

original (1980) version of the regulation upheld by the D.C. Circuit in Common Cause. 1994 

Explanation & Justification, 59 Fed. Reg. at 17,268. 

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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.” Id. This evidence was not subtle. Confusion arising from an 

unauthorized committee’s use of a candidate name — in this case then-Governor Ronald Reagan

— arose in the same year Congress enacted section 30102(e)(4). In 1980, after the unauthorized 

committee Americans for Change sent a telegram to individuals under the banner title 

“American’s [sic] for Reagan,” seeking volunteers for a steering committee, a United States 

Senator first responded to the telegram in the affirmative, and then retracted his response once he 

realized that this group was organized independently of Reagan’s presidential campaign. SMF 

¶¶ 43-44.

3

 The principal campaign committee of President George Bush reported that, in 1988, 

the unauthorized National Security Political Action Committee created a program named 

“Americans for Bush” that raised $10,277,264, and that the candidate’s authorized George Bush 

for President Committee made numerous efforts to prevent the unauthorized committee from 

using the name “Americans for Bush.” Id. ¶ 47. The committee emphasized to the Commission 

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

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

committee also reported that another unauthorized group, Presidential Victory Committee, had 

created a project called “Citizens for Bush,” through which it raised $251,626. Id. ¶ 48. The 

committee explained that it had not authorized this group’s activity and that in fact it had 

demanded that the group cease all activities undertaken in the name of “‘Citizens for Bush,’ 

 3 Hence then-Judge-Ginsburg’s observation that “[e]ven the politically astute missed the 

‘project’/‘committee’ distinction. Former Senator Robert Griffin of Michigan, for example, 

initially agreed to join [Americans for Change] not realizing it was ‘an ‘independent’ fundraising 

committee,’ and believing it to be part of the Reagan campaign.” Common Cause, 842 F.2d at

452.

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‘Presidential Victory Committee,’ or any similar designation that raises the possibility of 

confusing their efforts with those of Bush-Quayle 92.” Id. A similar effort made use of 1988 

presidential candidate Jack Kemp’s name. Id. ¶ 45; see also id. ¶¶ 45-49, 116-128 (examples). 

A 1992 NBC Dateline report included in the rulemaking record further revealed “that 

thousands of Americans, most of them elderly, ha[d] been fooled” by a man named Robert E. 

Dolan who established committees using candidate names and that raised more than $9 million. 

SMF ¶ 49. For example, program investigators found that 79-year-old Ruth Heaton sent the 

Reagan Political Victory Fund almost $25,000 after receiving “[a]ppeals for money to help keep 

the legacy of Ronald Reagan alive,” signed by Dolan. Id. As Dateline reported, “[o]ver the last 

two years, Mrs. Heaton, a lifelong Republican, who thinks the world of Ronald Reagan, has sent 

Chairman Dolan and the Reagan Political Victory Fund much of her life savings, almost 

$25,000.” Id. (emphasis added). But “[i]n a . . . statement to ‘Dateline NBC,’ Mr. Reagan said 

Dolan had no authorization to use Reagan’s name and that he has been ordered to stop it.” Id. 

Dolan also received contributions from 95-year-old Dana Chatlin of Iowa, who was “proud to be 

helping Republican causes,” and “sent the Reagan Political Victory Fund all the money she had 

put aside for a nursing home.” Id. ¶ 125 (emphasis added). The fund also “got more than 

$3,000 out of Mrs. Dagmar Cantola of Lantana, Florida, after [Dolan] sent her letters claiming he 

might be forced to resign from his Reagan fund unless he got more money.” Id. ¶ 126. As 

Senator Bob Dole stated, summarizing the actions of another one of Dolan’s committees: 

“Americans for Dole was really an effort to deceive Americans for someone else’s gain. I have 

seen heartbreaking videotapes of elderly people, convinced they were giving to someone they 

respected, only to learn that they had fallen into a fundraising fraud.” Id. ¶ 260; id. ¶ 121

(comment of Senator Dole and Representative Christopher Shays seeking that the FEC “ensure 

that the public is not misled by unauthorized fundraising solicitations” because “many 

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Americans who thought they were contributing to legitimate campaigns were actually donating 

to an unauthorized committee”).

Discussing “[s]uch cases” in its explanation for revising the regulation, the Commission 

concluded that they “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.” 1994 Explanation & Justification, 59 Fed. 

Reg. at 17,268 (discussing these examples). 

Even in the period after the FEC revised section 102.14 to curb such abuses, the record 

contains substantial evidence demonstrating that these interests remain as compelling as ever. 

This is despite the Supreme Court’s recognition of the difficulty of providing evidence from “the 

counterfactual world in which” the regulation PAG challenges “do[es] not exist.” McCutcheon, 

134 S. Ct. at 1457; Burson, 504 U.S. at 208 (“The fact that these laws have been in effect for a 

long period of time also makes it difficult for the States to put on witnesses who can testify as to 

what would happen without them.”); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 

431, 457 (2001) (noting the “difficulty of mustering evidence to support long-enforced statutes” 

because “there is no recent experience” without them).

Contrary to PAG’s inaccurate claim of a lack of evidence (e.g., Pl.’s Mem. at 2-3, 25-

29),4 the record demonstrates that confusion, fraud, and abuse resulting from political 

 4 PAG is also wrong in arguing that the Commission must provide “evidence that ‘an 

actual problem in need of solving’ existed at the time” that the FEC revised the rule. (Pl.’s Mem. 

at 25-26 (emphasis added).) Neither of PAG’s cited cases supports the contention that the only 

evidence relevant to a constitutional strict scrutiny inquiry is that from the time of rulemaking. 

In fact, in both U.S. v. Playboy Entm’t Grp., 529 U.S. 803, 820-22 (2000), and Brown v. 

Entertainment Merchants Ass’n, 564 U.S. 786, 800-04 (2011), which PAG cites for this 

proposition, the Court considered evidence that post-dated, respectively, the regulation and state 

law at issue in these cases. In any event, the record reflects ample evidence of voter confusion, 

fraud, and abuse motivating the Commission to promulgate the rule at issue. See supra p. 6-7, 

18-21; SMF ¶¶ 45-49, 116-128. 

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committees’ use of candidate names remains a problem today. In 2014, Dr. Raymond Bellamy 

was confused by the National Republican Congressional Committee’s website using the name of 

a Democratic candidate (“Alex Sink for Congress”). SMF ¶ 50-52. Dr. Bellamy’s declaration

attests: “[t]ogether, the website address, using Alex Sink’s name (‘sinkforcongress2014’), the 

name of the page ‘Alex Sink for Congress,’ displayed prominently at the top of the page, the 

words ‘Alex Sink’ and ‘Congress’ in large blue and green text, and the smiling photo of Alex 

Sink made me think that the website was Alex Sink’s campaign website, or that it was done with 

her approval.” Id. ¶ 51. In September 2015, President Trump’s campaign sent cease and desist 

letters to “Patriots for Trump” and “Great America PAC” (formerly “TrumPAC”), specifically 

noting that “[p]otential supporters could be easily confused that when they make a contribution 

to your organization, they are supporting Donald J. Trump for President’s campaign, or that your 

efforts have been sanctioned or otherwise authorized by him, whereas in reality they are 

supporting your independent effort.” Id. ¶¶ 59-60, 64, 66. In response to this letter, Scott 

MacKenzie, the treasurer for “Patriots for Trump,” noted that he had worked on five presidential 

campaigns and, “[h]aving that experience,” conceded “that donors may be confused when 

making a contribution to Patriots for Trump, thinking that they may be donating directly to 

Donald J. Trump for President.” Id. ¶ 61. The Trump campaign identified numerous other 

entities that used the Trump name in potentially misleading ways, writing to the FEC that “we 

must ensure our supporters are protected and there is no confusion about the unauthorized nature 

of such efforts (from which we have received no money, goods or services), especially when 

they use Mr. Trump’s name, slogan, or likeness in their name or solicitation materials.” Id. ¶ 56.

Additionally, in 2015, the unauthorized committee Americans Socially United created 

and maintained websites containing Bernie Sanders’s name in the URL, such as 

www.BetonBernie.com and www.VoteBernieSanders2016.com. SMF ¶ 70-72. Several 

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supporters of Senator Sanders have attested that they donated to Americans Socially United 

thinking the money was going to the Sanders campaign. Id. ¶ 73-75, 77-78. For example, Mark 

Sherman, who “decided to contribute to the Bernie Sanders campaign with a financial 

contribution,” conducted a search on Google for “Bernie Sanders,” and then he “clicked on the 

website that looked like his [Sanders’s] official campaign website,” which was located at 

www.VoteBernieSanders2016.com. Id. ¶ 78. Mr. Sherman “assumed this website was the 

Bernie Sanders campaign website because the URL had Bernie Sanders’s name in it and looked 

like a campaign address, and there was a logo at the top of the page that said ‘Ready for Bernie 

Sanders 2016’ with Senator Sanders’s photo that looked like an official campaign logo.” Id. 

Only after making his contribution did Mr. Sherman realize that the website was not that of the 

Bernie Sanders campaign, and subsequently struggled to obtain a refund from Americans 

Socially United. Id. Kostas Panagopoulos was another supporter of Senator Sanders who was 

confused by Americans Socially United’s “Bet on Bernie” website. Id. ¶ 77. At the “time [he] 

made the contribution to ‘BetonBernie.com,’” Mr. Panagopoulos “thought [he] was contributing 

to Bernie directly.” Id. Mr. Panagopoulos further attested: “If I had thought that the group 

wasn’t actually him, I wouldn’t have given this money. ‘BetonBernie.com’ was using Bernie’s 

name to create access to me and my funds.” Id. As counsel for Senator Sanders’s campaign 

wrote to Americans Socially United and at least two other similar organizations, these activities 

“creat[ed] supporter confusion because they appear to be official pages for the Bernie Sanders 

2016 U.S. presidential campaign, and are therefore intercepting donations which are likely 

intended for the official campaign.” SMF ¶¶ 71, 81, 83.

An unauthorized political committee’s use of a candidate’s name can result in big 

donations. As detailed in a 2016 insider account published by Politico, committees use “names 

and images of political figures the prospects [i.e., recipients] admire (or detest)” to “accompany 

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. . . solicitation[s], giving the illusion of imprimatur. Those people are almost never actually 

involved and little money ends up supporting candidates.” SMF ¶ 150. Because committees 

have wide discretion in how funds are spent, id. ¶¶ 147-49, 151, there have been articles and 

analyses how such groups — often referred to as “scam PACs” — may imply association with a 

candidate but do not necessarily use the donations they receive on activities supporting the 

candidate, instead using it for self-enrichment, id. ¶¶ 150-64. According to the former employee 

who in Politico described his old firm as associated with such operations, the aggregated efforts

by national political committees “[k]illed the Tea Party” by “dunn[ing] the movement’s true 

believers endlessly for money to support its candidates and causes. The PACs used that money 

first to enrich themselves and their vendors and then deployed most of the rest to search for more 

‘prospects.’” Id. ¶ 150. There is no prohibition on political committees spending funds they 

raise on entities in which the committee’s principals have a financial stake. Here, for example, 

PAG spent funds it raised on at least two vendors that were businesses established by its 

principals. Id. ¶ 149. The record thus squarely demonstrates the danger of unauthorized 

committees raising funds using the names of galvanizing candidates such as Donald Trump and 

Bernie Sanders as “brand[s]” and then using the donations collected for the enrichment of the 

committees’ principals and not on any bona fide political activity.5

 

2. The FEC’s Compelling Interests Underlying the Name Regulation Are

Not Confined to the Context of Solicitations

Contrary to PAG’s claims that section 102.14 is “a solution to a problem that does not 

exist” and that the FEC is “without a compelling interest” here (Pl.’s Mem. at 3, 29), the Court 

 5 In its deposition, PAG offered a telling example about the power of branding and names, 

observing that “this cup of coffee is more valuable because it says Dunkin Donuts than if it was 

just in a styrofoam cup because of the brand.” SMF ¶ 181. Here, PAG agrees with the 

Commission that the “I Like Mike Huckabee” Facebook page derives value from its 

appropriation of Mr. Huckabee’s name. 

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has already observed that the record evidence “belie[s] PAG’s arguments that clarifying the 

authorization status of an unauthorized committee’s special projects could constitute a legitimate 

government interest only in the fundraising context,” PAG I, 132 F. Supp. 3d at 42. The PAG II

panel similarly refused to confine the governmental interest to the fundraising context, as PAG 

had urged in claiming that its challenge is as-applied, noting that “[h]ere, the substantive law 

requires us to look at what the regulation says” on its “face.” 831 F.3d at 509 n.5. 

In any event, PAG’s claim that there are no “examples of confusion or fraud not 

connected to fundraising” (Pl.’s Mem. at 27) is untrue. The record contains numerous examples 

of supporters who were not responding to any solicitation but who still became confused when

they attempted to locate the website of a candidate or the candidate’s authorized committee and 

instead found a candidate-named website of an unauthorized committee. For instance, none of 

the examples of Dr. Bellamy’s contribution to the “Alex Sink for Congress” website, or the 

contributions to Americans Socially United by Mr. Sherman and Mr. Panagopoulos, were in 

response to solicitations — each one of these supporters decided to engage politically prior to 

encountering any fundraising pleas by the unauthorized committees. Id. ¶¶ 142-47.

6

 Thus, as 

the Court already found, “permitting unauthorized committees to include a candidate’s name in 

the name of their special projects may allow those committees to exploit ambiguity about their 

candidate authorization status” — i.e., whether they are in fact the actual campaign — “and take 

advantage of confusion created by their project names, with the result that a contributor [may] 

think [ ] that a $50,000 contribution to a project such as ‘I Like Mike Huckabee’ is a contribution 

 6 PAG’s own reference to articles discussing a contribution made by Daniel Craig to a 

super PAC (Pl.’s Mem. at 27-28) include evidence of confusion in a non-solicitation context. 

The referenced article observed that “many people have given to [the] super PAC [operating the 

Bet on Bernie website] by coming across it online and thinking it was the official way to donate 

to Mr. Sanders.” SMF ¶ 75 (emphasis added).

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to Mr. Huckabee, even though it is not, . . . even in the absence of any solicitation.” PAG I, 132 

F. Supp. 3d at 34 (citation and internal quotation marks omitted).

Even in the purely informational context, a political committee’s unauthorized use of a 

candidate’s name in its operating name can create informational harm. As the Court observed, 

“hundreds of comments on the [“I Like Mike Huckabee”] Facebook page . . . appear to be 

directed to Governor Huckabee himself.” PAG I, 132 F. Supp. 3d at 35.7 Such comments

demonstrate that those viewers mistakenly believed that the messaging on the page was on behalf 

of the candidate Mike Huckabee and not independent of his campaign. PAG’s response to this 

evidence is to protest that it does not know if these commenters “were actually confused” (Pl.’s 

Mem. at 28), but the nature and extent of the comments does not require the Court to see into the

minds of the commentators. The comments themselves plainly reveal that such posters believed 

the “I Like Mike Huckabee” Facebook page to be part of Mr. Huckabee’s authorized campaign. 

And as PAG itself observes (see id.), the PAG II panel did not disturb this Court’s conclusions 

regarding these comments, which is consistent with an appellate court’s deference to a district 

court’s factual findings. E.g., Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010)

(explaining that a trial court’s factual findings are reviewed for “clear error” and are not reversed

even if the Court of Appeals “would have weighed the evidence differently” if it “had been 

sitting as the trier of fact” (citation and internal quotation marks omitted)).

Moreover, the confusion created by PAG’s unauthorized use of Mike Huckabee’s name 

is not unique, and a review of similar Facebook pages — those pages named after a candidate but 

which appear to be operated without that candidate’s authorization — reveals that they contain 

 7 Viewers left 779 comments “to” Mike Huckabee on the “I Like Mike Huckabee” page 

that PAG operated, including: “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!!!!!”; and “Mike we would have 

been better off years ago with you in the White House.” SMF ¶ 95.

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the same kinds of comments directed “to” the candidate after which the page is named 

throughout those pages. SMF ¶¶ 96-101. For example, a “Gowdy Now” Facebook Page 

received more than 2,220 comments in a span of six months that indicated confusion about 

whether the page was the candidate’s. Id. ¶ 96. Twitter appears to present the same issue, with 

at least one example of an account holder whose user name includes a candidate’s name 

engaging in Twitter conversations with viewers without ever disabusing them of the 

misimpression that the account holder is the candidate. Id. ¶¶ 114-15. A Twitter user tweeted to 

the unauthorized “Donald Trump” account @RealTrump2016, “Congratz Mr. President. I knew 

you are the chosen one. Like King Cyrus.[] Proud of you.” Id. The @RealTrump2016 account 

holder responded, “Thank you. Only chosen by the American people though . . . .” Id.

Messaging that does not center on solicitations — for instance, in 1980, when 

American’s for Reagan distributed its call for members for its steering committee — still can 

confuse the public when recipients of the message form the misimpression that it is the candidate 

or his or her authorized campaign speaking. SMF ¶ 165. President Bush was “improperly linked 

to the ‘Americans for Bush’ group in the popular media” due to that entity’s actions. Id. ¶ 166. 

More recently, when “Patriots for Trump” and “TrumPAC” solicited contributions despite 

Trump’s statements that he was not relying on super PAC money, it understandably caused 

confusion about his stance. Id. ¶¶ 167-68. Indeed, when “Patriots for Trump” acceded to the 

campaign’s request to shut down, its treasurer acknowledged that the super PAC’s actions had 

been inconsistent with statements the campaign had made opposing super PAC assistance. Id.

¶ 168. Recent ads aired by the “Committee to Defend the President” have caused similar 

confusion. Id. ¶ 171 (observing that “[m]any outraged commenters believe that Trump himself 

— or those within Trump’s inner circle — were responsible for the ad”). As the Coalition 

Against Domain Name Abuse found in a 2012 study, “identity squatting,” or the “act of 

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registering domain names containing famous individuals’ names in bad faith with the intention 

of profiting from them,” may be “extremely damaging to an individual’s reputation and can lead 

to confusion and distrust on the part of Internet users.” Id. ¶ 176. In particular, “[g]overnment 

representatives have a great deal at stake,” as “[m]any of them use the Internet to make 

information about themselves, their work, and their promises available to the public, as well as to 

maintain an accurate and accessible source of information” about their candidacies. Id. 

Regardless of any money exchanged, the FEC’s name regulation “helps to avoid 

confusion by making clear to the voting public that communications disseminated via 

unauthorized committees’ special projects are not funded by a candidate or political party.” 

PAG I, 132 F. Supp. 3d at 41-42 (citation and internal quotation marks omitted). Members of the 

public and candidates also have rights of association and expression under the First Amendment, 

e.g., Buckley, 424 U.S. at 20-23, and when political committees intercept donations and confuse 

voters by speaking in a candidate’s voice without authorization, they interfere with those rights. 

Accord PAG I, 132 F. Supp. 3d at 42 (agreeing that “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 would 

disserve the public” (internal quotation marks omitted)). As PAG itself admitted, it is 

undesirable for a political committee to speak in a way that makes it seem like the political 

committee is the candidate, and it is undesirable for donors to be confused in giving money to a 

political committee when they think they are giving to the candidate. See SMF ¶¶ 145-46, 177. 

Yet that would be the effect were PAG to succeed in this lawsuit.

3. The Potential for Confusion, Fraud, and Abuse are Amplified in 

Today’s Political and Technological Landscape 

The dangers addressed by section 102.14 are heightened in current times. The ubiquity 

of Internet and social media usage amplifies the potential harm resulting from voter confusion. 

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SMF ¶¶ 182-94. Candidates now publicize domain names “with the hope that voters will type 

that name directly into their Internet browsers in order to access more information about the 

candidate and his or her views.” Id. ¶ 185. When candidate names are appropriated as the 

operational names of unauthorized committees, “websites that visitors assumed were endorsed 

by candidates can create an environment where misinformation and misdirection abound.” Id. 

This threat is especially true today, as many internet and social media platforms operate 

character- and space-limited means of communication, and there has been considerable public 

concern that the sources of messaging in connection with the 2016 presidential election may not 

have been sufficiently apparent earlier, including in particular some that were perpetuated and 

amplified in web-based and social media platforms. Id. ¶ 194. 

Furthermore, research suggests that people rely on cues to facilitate their political 

decision-making. SMF ¶ 178. Well-documented social science has shown that voters behave as 

“cognitive misers” when they politically engage, wherein they minimize the time and effort that 

they spend on evaluating information while perceiving that their decisions are still accurate. Id.

¶ 179. Thus, voters can make decisions about which candidates to support based on perceptions 

of the candidates’ character or messaging, or in the candidates’ association with a party or 

platform. Id. ¶¶ 178-81. When unauthorized committees use candidates’ names in their publicfacing titles, creating the impression that they act on behalf of the candidate when they do not, 

these unauthorized committees can create widespread confusion and undermine the 

determinations that voters make about candidates. 

B. Section 102.14 is Narrowly Tailored to Limit Confusion, Fraud, and Abuse

Not only does section 102.14 directly serve compelling interests in limiting confusion, 

fraud, and abuse in connection with U.S. elections, but it is also narrowly tailored to those 

interests. In the early 1990s, the Commission modified the regulation to better respond to the 

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problems of confusion, fraud, and abuse. It considered and rejected alternatives that would not 

have been as effective. It further revised the regulation to be as least restrictive as possible, 

allowing maximum freedoms for political committees. In contrast, PAG’s principally proposed 

alternative of a disclaimer would not be sufficiently effective in preventing the harm Congress 

and the Commission has identified. Its other proposals — third-party signifiers and relying on 

inapposite verification systems used by for-profit entities such as Facebook and Twitter — are 

unserious and meritless.

1. The Record Demonstrates that Section 102.14 is Narrowly Tailored

In proving that the regulation furthers the government’s interest, the Commission may 

rely on “common sense” and need not “empirically” prove that the regulation advances its 

compelling interest. See, e.g., Burson, 504 U.S. at 211 (relying on “[a] long history, a substantial 

consensus, and simple common sense” to find a regulation sufficiently narrowly tailored to 

survive strict scrutiny). Here, both common sense and the evidentiary record demonstrate that, 

just as regulation of personal solicitations by judges and certain kinds of activities around polling 

places can be constitutional, Williams-Yulee, 135 S. Ct. at 1673; Burson, 504 U.S. at 211, the 

same is true with respect to an unauthorized political committee’s use of a candidate’s name in 

its operating name.

In supposing otherwise, the Court of Appeals grounded its preliminary decision on the 

silence of the record before it at the time as to the comparative effectiveness of disclaimers. 

PAG II, 831 F.3d at 510-11. The record before this Court is no longer silent, however. It 

demonstrates that the Commission carefully considered several alternatives to the current rule 

but rejected each proposal after applying the Commissioners’ “practical . . . expertise,” which is 

the basis for judicial deference to agency decision-making. Pension Ben. Guar. Corp. v. LTV 

Corp., 496 U.S. 633, 651-52 (1990). In addition to the current regulation, the FEC discussed 

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(1) requiring checks to be payable to the reporting committee; (2) requiring a different disclaimer 

than that required at the time; (3) requiring unauthorized committees to obtain consent from the 

candidate before using his or her name in a special project title; and (4) allowing the use of 

candidate names only by party committees of the same party as the candidate. SMF ¶¶ 204-35. 

The Commission found that the check payee proposal was less “responsive to the 

problem at issue,” 1992 Explanation & Justification, 57 Fed. Reg. at 31,425 — confusion 

resulting from the unauthorized use of a candidate’s name — and would pose administrative 

challenges because “nothing on the public record reflects who the payee is on a contributor’s 

check,” 1994 Explanation & Justification, 59 Fed. Reg. at 17,268. Thus, “[t]he requirement that 

checks be made only to the sponsoring committee’s registered name would . . . not ensure that 

the contributor did not erroneously believe the money would be used to support the candidate(s) 

named in the project’s title.” Id. The Commission rejected the authorization proposal as 

unresponsive to the problem at issue, explaining that “if a candidate authorizes the use of his or 

her name in a fundraising project, the committee becomes an authorized committee, and this rule 

would not apply.” Id. at 17,269. And, as to the party/non-party distinction, it “agree[d]that the 

potential for confusion in this context is not significantly different whether a party or a non-party 

committee is involved.” 1992 Explanation & Justification, 57 Fed. Reg. at 31,425.

The Commissioners also specifically considered and addressed information in the record 

regarding whether a disclaimer, including with respect to “size and/or location requirements,” 

1992 Explanation & Justification, 57 Fed. Reg. at 31,424, or simply “stronger, or larger, 

disclaimers,” 1994 Explanation & Justification, 59 Fed. Reg. at 17,268, would be an adequate 

alternative. SMF ¶ 219. In the “American’s [sic] for Reagan” mailgram, discussed above, the 

committee had included the disclaimer “Paid for by Americans for Change not authorized by any 

candidate,” but that did not stop Senator Griffin from being confused. Id. ¶ 259. Similarly, the 

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“Americans for Dole” effort had at the bottom of a mailing “a disclaimer saying that Americans 

for Dole was ‘not authorized by any candidate or candidates’ committee’” that was “no doubt 

unnoticed by the addressee, many of whom are elderly.” Id. ¶ 260. 

There was a recognition by a commenter and Commissioners that a large disclaimer 

would help reduce confusion but only in some circumstances, and a further recognition that the 

regulated community would view such an approach as taking control over their communications 

to too great of an extent. A national party committee commented that, “the disclaimer must be 

highly visible to the potential contributor” in order for a revised disclaimer rule to have some 

effect. SMF ¶ 218. As the Commission deliberated whether it should “enact[] specific rules that 

would regulate the disclaimers that are required on solicitations by nonauthorized committees 

using a candidate’s name,” Commissioner Trevor Potter expressed a concern that such 

communications can be “pages” long and “it is possible to bury” a disclaimer “where the average

reader isn’t going to find it,” in contrast with the “Americans for Smith in huge letters at the 

top.” Id. ¶¶ 210, 252. Regarding the possibility of requiring a larger disclaimer, Commission 

staff noted that in their experience that approach would be viewed by the regulated community 

as “really affecting the way we put our letters together. ‘You are telling us how to draft our 

letters.’” Id. ¶ 253. The Court of Appeals did not have these comments and exchanges or the 

other parts of the administrative record outside of the Federal Register in the court record when 

rendering its preliminary decision. 

The Commission ultimately agreed with its staff that “such a [larger disclaimer] approach 

could be more burdensome” than the adopted approach by dictating how communications must 

be constructed, “while still not solving the potential for fraud and abuse in this area.” 1994 

Explanation & Justification, 59 Fed. Reg. at 17,268. Requiring the minority of committees 

focused on a single candidate to avoid titles with the candidate’s name is far less of a regulatory 

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imposition than requiring all unauthorized committees, from the National Rifle Association of 

America Political Victory Fund to the League of Conservation Voters Action Fund, to employ 

additional, more noticeable disclaimers. Disclaimers have been upheld by the Supreme Court 

against repeated challenges where Congress had sufficiently confined the required time and 

space. Buckley, 424 U.S. at 75-76 (upholding disclosure requirement for independent 

expenditures), McConnell, 540 U.S. at 321 (opinion of Kennedy, J., joined by Rehnquist, C.J., 

and Scalia, J.) (three Justices who believed 52 U.S.C. § 30118 to be unconstitutional upheld

BCRA’s disclosure and disclaimer requirements); Citizens United, 558 U.S. at 366-71 

(upholding BCRA’s disclaimer and disclosure provisions as applied to movie and advertisements 

at issue). An enhanced disclaimer requirement via regulation could face First Amendment 

challenges of its own. 

The Commission also explained that a disclaimer requirement would “still not solv[e] the 

potential for fraud and abuse in this area” and “is not, in and of itself, sufficient to deal with this 

situation.” 1992 Explanation & Justification, 57 Fed. Reg. at 31,424. As the Commission 

elaborated:

[A]ssume that the “XYZ Committee,” a committee registered 

under that name with the Commission, establishes a special 

fundraising project called “Americans for Q.” Although Q is a 

federal candidate, he has not authorized the XYZ Committee to use 

his name in this manner; and the committee plans to use 

contributions received from the special project for purposes other 

than the support of 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. The Commission’s explanation also referenced the Dateline Report that was included in the 

record, see supra p. 20, explaining that “[p]rogram investigators found that elderly people are 

particularly vulnerable to being misled in this manner, since they may not notice or fail to fully 

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comprehend the disclaimers included with the solicitations,” 1992 Explanation & Justification, 

57 Fed. Reg. at 31,425 (emphasis added). Thus, even the use of a different disclaimer such as 

that proposed by the PAG II panel would “still not solv[e] the potential for fraud and abuse in 

this area.” 1994 Explanation & Justification, 59 Fed. Reg. at 17,268. Based on the substantial 

evidence before it, the Commission thus concluded that “a stronger disclaimer requirement 

would not be sufficient in and of itself to meet this concern.” Id. at 17,269; accord SMF ¶ 232

(one comment noted that “[t]here is little potential for misleading a contributor when a political 

committee solicits contributions using [sic] its own name, and a much higher risk when an 

unauthorized committee solicits in the name of a candidate”). 

Not only does the rulemaking record establish that a disclaimer was insufficient, but the 

record following the revisions of the regulation continues to demonstrate that it was correct, 

despite the absence of direct experience with the counterfactual scenario in which a disclaimer 

requirement was adopted. See supra p. 21. Indeed, the very recent record demonstrates that 

viewers of websites often fail to perceive disclaimers. For example, in Dr. Bellamy’s case, the 

disclaimer on the webpage and the large text “Make a Contribution Today to Help Defeat Alex 

Sink and candidates like her” was still insufficient to clarify that the website was not operated by 

the candidate — the disclaimer was not enough to overcome the initial impression that, in part, 

“the website address, using Alex Sink’s name (‘sinkforcongress2014’),” left with Dr. Bellamy. 

SMF ¶¶ 263-64. The same was true of disclaimers on the “Bet on Bernie” website (“This 

website was paid for by Americans Socially United . . . and is not authorized by any political 

candidate or party”) that failed to convey to Mr. Sherman and Mr. Panagopoulos that the website 

was not authorized by Senator Sanders. Id. ¶¶ 265-66. In yet another example, Ken Cuccinelli 

supporter Lucille Maloney failed to notice Conservative StrikeForce’s disclaimer (“We are not 

raising funds in conjunction with any campaign”) when she received an ad from the committee 

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with Mr. Cuccinelli’s “name and picture on it,” and contributed $500 in response, thinking that it 

was “directly to Ken’s campaign.” Id. ¶ 262. Most critically, the inadequacy of disclaimers in 

this context is all too apparent even with PAG’s own “I Like Mike Huckabee” Facebook page. 

The hundreds of comments directed “to” the candidate on the page reflect that those commenters 

never perceived PAG’s disclaimer, despite its placement at the top of the page in the banner. Id.

¶¶ 10-11, 267.

2. Section 102.14 Has Been Refined to be as Least Restrictive as Possible

Section 102.14 is also narrowly tailored because the Commission modified the rule 

subsequent to the 1992 revision to restrict even less speech than initially revised, by including an 

exception in the rule for those instances that do not implicate the voter confusion, fraud, and 

abuse that motivated the rule in the first place. As the Commission recognized, “the focus of the 

earlier rulemaking was on titles that indicate support for a named candidate, and that the 

potential for fraud and abuse is significantly reduced in the case of those titles that indicate 

opposition.” SMF ¶ 240; 11 C.F.R. § 102.14(b)(3). This revision maintains the effectiveness of 

section 102.14 by making it clear to “the average contributor or voter” who is speaking, SMF

¶ 30, while allowing political committees like PAG as much flexibility as possible. PAG 

contends that the opposition exception makes the regulation an impermissible content-based 

restriction (Pl.’s Mem. at 10), but by removing the constraint of the name identification 

requirement in circumstances where the compelling interest was not implicated, the Commission 

did precisely what is required to satisfy strict scrutiny.

In addition, section 102.14 restricts only the titles of communications, but it leaves 

untouched the content of those communications. As the Court has explained, “[t]he parallel 

between Burson and the instant case is readily evident. . . . Here, just as in Burson, PAG can say 

whatever it wants about Governor Huckabee in the body of its” Facebook page, “including 

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referring to him by name and using the ‘I Like Mike Huckabee’ slogan. It just cannot do so in 

the names or titles of those communications. Thus, to use counsel for PAG’s own words,” 

section 102.14 “‘doesn’t prohibit the speech at all[,] . . . [i]t just prohibits where you can make 

the speech.’” PAG I, 132 F. Supp. 3d at 40. The parallel in Williams-Yulee is similarly evident. 

As Chief Justice Roberts explained, the challenged judicial solicitation rule “restricts a narrow 

slice of speech.” 135 S. Ct. at 1670. 

[It] leaves judicial candidates free to discuss any issue with any 

person at any time. Candidates can write letters, give speeches, 

and put up billboards. They can contact potential supporters in 

person, on the phone, or online. They can promote their 

campaigns on radio, television, or other media. They cannot say, 

“Please give me money.” They can, however, direct their 

campaign committees to do so. Whatever else may be said of the 

[challenged law], it is surely not a “wildly disproportionate 

restriction upon speech.”

Id.

8

 Indeed, in Buckley, the Court found that the availability of avenues for “independent 

political expression” in the analogous context of the Act’s contribution limits were evidence of a 

close fit, explaining that the contribution limits “focus[] precisely on the problem of large 

campaign contributions” but “do not undermine to any material degree the potential for robust 

and effective discussion of candidates and campaign issues by individual citizens, associations, 

the institutional press, candidates, and political parties.” 424 U.S. 28-29.

Here, too, PAG’s own actions demonstrate the correctness of the Commission’s 

observation that the regulation leaves committees free to “discuss any number of candidates, by 

name, in the body of a communication.” 1992 Explanation & Justification, 57 Fed. Reg. at 

 8 The Court of Appeals concluded in its preliminary review that “the availability of 

alternative avenues of expression” is not relevant to determining whether a law is content-based, 

PAG II, 831 F.3d at 509, but this discussion in Williams-Yulee illustrates that alternatives are 

relevant to determining whether a law subject to strict scrutiny is narrowly tailored.

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31,425. PAG admitted that it could communicate the “I Like Mike Huckabee” message on its 

Pursuing America’s Greatness Facebook page. SMF ¶ 249 (describing how PAG repeatedly

posted an “I Like Mike Huckabee” button on the Pursuing America’s Greatness Facebook page 

that it believed communicated that message). PAG not only communicated through this other 

Facebook page, it availed itself of many other modes of communication, including $3.5 million 

in independent expenditures, digital and mail advertising, television advertising, generalized 

online marketing, and a tele-town hall meeting. Id. ¶ 245. Its manifest failure to avail itself of 

the injunction it claimed it needed demonstrates that section 102.14 is “surely not a wildly 

disproportionate restriction upon speech.”9

 Williams-Yulee, 135 S. Ct. at 1670 (internal 

quotation marks omitted). Strategic Media 21 itself simply suggested that PAG just change the 

name. SMF ¶ 15.

Moreover, as the record reflects, unauthorized committees do not require the use of a 

candidate’s name to effectively build large followings. Unauthorized committees such as Right 

to Rise, Priorities USA, and Restore Our Future have successfully identified themselves with a 

candidate even while abiding by the name regulation, and they have been described as advancing 

the candidacies and platforms of those candidates to varying degrees of effectiveness, none of 

which relate to their ability to become associated with the supported candidate. SMF ¶ 244. 

PAG itself “believed that the Pursuing America’s Greatness Facebook page . . . was effective in 

communicating PAG’s messages,” despite not using Mike Huckabee’s name in the title of the 

page. Id. ¶ 245. 

 9 Despite the conclusion of the candidacy to which PAG had been devoted, the Court of 

Appeals held that PAG maintained an interest in the case because its “intent to continue violating 

section 102.14(a) keeps this case alive.” PAG II, 831 F.3d at 505. For purposes of assessing 

PAG’s as applied challenge, however, the absence of activity by the group under the preliminary 

injunction order indicates that section 102.14 has placed only very limited burdens on PAG’s

First Amendment rights. See supra p. 12-13.

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Section 102.14 restricts the least amount of speech while effectively furthering the 

government’s interest in limiting confusion, fraud, and abuse. Cf. PAG I, 132 F. Supp. 3d at 42

(agreeing that “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” (internal quotation marks omitted)); 

STOP Hillary PAC v. FEC, 166 F. Supp. 3d 643, 653 (E.D. Va. 2015) (concluding that “the 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 PACs.”). In sum, because section 

102.14 is narrowly tailored to serve compelling government interests, “the First Amendment 

poses no obstacle to its enforcement in this case.” Cf. Williams-Yulee, 135 S. Ct. at 1672.

3. The Alternatives that PAG Proposes Would Be Ineffective at 

Addressing Voter Confusion 

Despite having conceded in oral argument before this Court that “‘there is no disclosure 

that we could make that would make this permissible,’” PAG I, 132 F. Supp. 3d at 39, PAG now 

offers three allegedly less restrictive alternatives: (1) “larger disclaimers,” (2) third-party 

signifiers, and (3) relying on the voluntary but ever-changing authentication marks Facebook and 

Twitter have used (Pl.’s Mem. at 31-33.). PAG was right the first time. There is no less 

restrictive alternative because none of these suggestions would be sufficiently effective. Burson, 

504 U.S. at 208-09 (explaining that the 100-foot boundary was well tailored and that the 

“government has such a compelling interest in securing the right to vote freely and effectively”); 

accord PAG II, 831 F.3d at 510-11 (recognizing that alternative means of regulation must be 

equally effective); Pl.’s Mem. at 29.

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PAG mainly argues that “larger disclaimers” would be a less restrictive alternative to the 

regulation at issue. (Pl.’s Mem. at 31.) As explained above, however, the Commission was 

amply justified in considering and rejecting this alternative for the record demonstrates that 

disclaimers of varying sizes and types are insufficient in this context. SMF ¶¶ 259-67 (examples 

of confusion despite disclaimer). PAG’s own disclaimer was insufficient. Id. ¶ 267.

PAG’s proposal is fundamentally ineffective because it requires that the viewer receive 

conflicting signals. See Burson, 504 U.S. at 211 (relying on “common sense” to evaluate 

regulation). A regulatory system premised on the idea of allowing for the use of a misleading 

committee name, but then contradicting that name in a disclaimer, is unlikely to be successful. 

As the D.C. Circuit observed decades ago, regulating through the name, as in section 102.14,

“avoids the kind of confusing disclaimer 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. Yet this is precisely the confusing regime PAG now suggests. 

A Facebook page entitled “The Official Trump for President Page” accompanied by a large 

disclaimer stating that “This is not President Trump’s Official Facebook Page” (e.g., Pl.’s Mem. 

at 31) presents obviously conflicting signals to a viewer of the page. On the one hand, the name 

“Trump for President” conveys that the page is authorized by Trump, and a viewer could 

reasonably conclude that use of the name signals authorization. That is the way the law currently 

works. On the other hand, the disclaimer conveys that there is another, more relevant Facebook 

page for the viewer to see (the “official” one).

10 The result would be confusion and 

 10 The PAG II panel’s reference to whether a page is “official,” 831 F.3d at 510, would also 

fail to alleviate all confusion. Indeed, FECA’s statutory and regulatory regime uses the term 

“authorized,” while “official” in ethics, bribery, and other similar contexts is indicated to connote 

a connection to officeholder duties, in contrast with an officeholder’s capacity as a candidate. 

See, e.g., U.S. House of Representatives Committee on Ethics, House Ethics Manual 121-84 

(2008 ed.) (distinguishing actions taken in an “official” capacity with those taken in a campaign 

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opportunities for fraud and abuse, precisely the opposite of the interests that are intended to be 

served by the regulation.

PAG’s disclaimer proposal is also ineffective for technological reasons. Disclaimers in 

social media and internet contexts can be unlike those in print or television advertisements, 

where, like a committee’s operating name, a disclaimer is contiguous in time or space with the 

content of the advertisement. But PAG’s disclaimer proposal would in many instances require 

viewers of social media to further engage by clicking or scrolling in order to access any

disclaimer, which viewers often fail to do.11 For example, if a Facebook user engages with a 

page by “liking” the page or commenting on a page post, that activity may be shared on the feeds

 

or political capacity). And Members of Congress are required to keep their campaign websites 

distinct from websites associated with their office and thus maintain both, further clouding the 

meaning of “official.” See, e.g., id. at 131.

11 Disclaimers on each post or news item would be insufficient in many internet and social 

media contexts that are character-limited. For example, the FEC permitted Google 

advertisements that were limited to 95 characters, including the headline, to not themselves carry 

a disclaimer, with the ads containing a URL to another page that did contain a disclaimer. FEC 

Advisory Op. 2010-19 (Google, Inc.), https://www.fec.gov/files/legal/aos/76083.pdf. An attempt 

to require disclaimer language in similarly character-limited social media contexts would restrict 

more language than regulating the use of the candidate’s name in the title of such a social media 

account. And titles typically travel throughout social media environments with posts, reposts, 

and replies. Twitter has been character limited to 140 characters until recently, when it has 

experimented with some users being permitted to use 280 characters. SMF ¶ 102. No matter the 

ultimate limit, space- and character-limited views will undoubtedly be a feature of web and 

social media platforms making difficult contemporaneous viewing of any disclaimer with much 

content. Additionally, Twitter confounds the placement of disclaimer language on the 

underlying Twitter account. A Twitter profile page contains a “bio,” which is a “personal 

description” up to only 160 characters in length that would presumably contain the disclaimer 

language. Id. ¶ 104. If the Commission were to require a disclaimer on Twitter accounts, that 

disclaimer could consume much of the character-limited “bio” section. Id. With regard to 

Facebook, the Commission evenly split regarding whether the size of ads permitted in 2011 

permitted a disclaimer. FEC Advisory Op. Request 2011-09 (Facebook), https://www.fec.gov/

data/legal/advisory-opinions/2011-09/. The manner in which Facebook typically displays posts 

does not permit space to accommodate a disclaimer that is viewable and effective as users scroll 

through their timeline. PAG takes the position that Facebook would not currently allow for 

disclaimer text to be placed effectively in a sponsored post because Facebook staffers may deem 

the post to have “excessive text” and that a disclaimer could unduly fill the allotment of text on 

some sponsored posts. SMF ¶ 256. 

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of the user’s Facebook friends, “increasing the Page’s exposure and reach.” SMF ¶ 89. 

Facebook and Twitter also allow for promoted or “boost[ed]” content, another way that posts can

appears on the feeds of other users. Id. ¶ 90. In such instances, viewers only see the name of the 

Facebook page or Twitter user (such as “I Like Mike Huckabee”) and the thumbnail photo 

selected for the organization’s profile photo, which, for many unauthorized committees who 

attempt to identify with a candidate, is a photo of the candidate. Id. ¶¶ 91-92, 108-12. An online 

marketing company found that the average “click-through” rate, or “the number of clicks 

advertisers receive on their ads per number of impressions,” for eighteen industries with 

Facebook advertisements was 0.90%, ranging from 0.47% to 1.61%. Id. ¶ 93. The average 

click-through rate for Twitter advertisements ranges from one to three percent. Id. ¶ 113. That 

data suggests that the vast majority of users would never see the type of disclaimer PAG 

proposes. And the FEC found during the rulemaking more than 20 years ago that even 

disclaimers that are within a person’s visual field may not be noticed or understood by viewers, 

particularly the elderly. The result of PAG’s proposal would be an explosion of the kind of 

confusion and profiteering fraud and abuse that is well documented in the record.12 

PAG’s other proposed alternatives merit little consideration. PAG’s proposal (Pl.’s 

Mem. at 31) that the Commission could require unauthorized committees to use third-party 

designations in the titles of their activities (i.e., “‘Conservatives Who Like Mike Huckabee’”), 

rather than regulating the use of the candidate’s name, is directly contrary to the hundreds of

 12 PAG inappositely argues that “[n]ot one of the six Commissioners even suggested 

prohibiting Facebook sponsored ads.” (Pl.’s Mem. at 34.) This diversion mischaracterizes the 

Commission’s deliberations about disclaimers in Internet communications. The Commission has 

never considered banning the use of Facebook sponsored posts or websites by unauthorized 

committees. The issue here is the name regulation’s effectiveness at clarifying candidate-status 

authorization for the activities of unauthorized committees, and its narrow tailoring to the 

nuanced technology of platforms that committees utilize. The rule does not restrict speech in the 

content of communications. See supra pp. 35-37.

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authorized committees using such third-party designations this way. See SMF ¶¶ 268-70 (listing 

examples). According to FEC records, 624 principal campaign committees and other authorized 

committees that are registered with the Commission and have been active between 2011 and

2017 contain the words “friends of” in their official names, and include the name of the 

candidate by whom they are authorized. Id. ¶ 268. PAG does not explain how all of these 

authorized committees would fit within its proposed rule, which plainly would not serve the 

intended purposes in contrast with the current rule.

PAG’s other idea of outsourcing campaign finance disclosure to the for-profit internet

and social media platforms of the day (Pl.’s Mem. at 32-33) is poorly timed, coming at a moment 

when concerns about foreign interference in the 2016 election — in the context of political 

advertising on those platforms — are so substantial that multiple Congressional committees have 

been holding hearings on the subject. SMF ¶ 194. It would also be plainly ineffective because 

the verification marks on those platforms do not mean what PAG suggests they do. Unlike 

section 102.14, which serves to clarify a committee’s candidate-authorization status through the 

committee’s operating name, the verification marks offered by Facebook and Twitter appear to 

be obtainable simply by demonstrating that one’s page is authentic or legitimate, neither of 

which is the same as being authorized by a candidate. See id. ¶¶ 272-88. Hence, an 

unauthorized Twitter account named “Students for Trump” (“@TrumpStudents”) has a blue 

verification badge. Id. ¶ 274. An unauthorized Facebook page named “The People for Bernie 

Sanders” has a blue verification badge. Id. ¶ 285. PAG’s “I Like Mike Huckabee” Facebook 

page could probably have had a verification badge. Id. ¶ 288. Additionally, both of these 

platforms’ verification systems are voluntary and may be changed at any time without notice to 

the public. In fact, Twitter has modified its verification system repeatedly since 2009, when it

first instituted a version of the system. Id. ¶¶ 275-79. And finally, despite PAG’s focus on 

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Facebook and Twitter, unauthorized committees use other platforms such as Instagram and 

Snapchat and may use others in the future as they become popular. PAG’s suggestion that the 

Commission rely on a third party to “verify” accounts is wholly unworkable. 

III. UPHOLDING THE CONSTITUTIONALITY OF SECTION 102.14 IS 

CONSISTENT WITH THE D.C. CIRCUIT’S ANALYSIS OF PAG’S REQUEST 

FOR A PRELIMINARY INJUNCTION 

For the reasons explained above, the Court should uphold the constitutionality of the 

name regulation and, contrary to PAG’s argument (Pl.’s Mem. at 22-25), such action would be 

consistent with the PAG II panel’s analysis of PAG’s request for a preliminary injunction. To 

reiterate, the panel itself recognized that the preliminary injunction posture precluded a complete 

analysis of PAG’s constitutional claim because the record was “‘silent’” as to the comparative 

effectiveness of alternatives, and that the Commission had not yet “offered . . . evidence that 

larger or differently worded disclosures would be less effective.” PAG II, 831 F.3d at 510-11. 

Following the Court’s entry of a schedule allowing the Commission to prepare this needed

record, the Commission has now presented the complete rulemaking record and other evidence 

that was not available when the case was at the expedited preliminary injunction stage. See 

supra pp. 17-43. This evidence fully demonstrates that the tailoring in section 102.14 is 

“narrowly tailored,” about as “‘perfectly’” as is possible. Williams-Yulee, 135 S. Ct. at 1661

(quoting Burson, 504 U.S. at 209).

Upholding the regulation would also be consistent with the purpose of a preliminary 

injunction, which is to “preserve the relative positions of the parties until a trial on the merits,” 

and courts’ recognition that, “[g]iven this limited purpose, and given the haste that is often 

necessary if those positions are to be preserved, a preliminary injunction is customarily granted 

on the basis of procedures that are less formal and evidence that is less complete than in a trial on 

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the merits.” Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1022-23 (D.C. Cir. 1998) (quoting 

University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). Indeed, the Court now looks to 

the record afresh because “findings of fact and conclusions of law made by a court granting a 

preliminary injunction are not binding at trial on the merits.” Camenisch, 451 U.S. at 395. This 

is because, where a court has granted a preliminary injunction, “the parties generally will have 

had the benefit neither of a full opportunity to present their cases nor of a final judicial decision 

based on the actual merits of the controversy.” Id. at 396. Second, the postures of a request for a 

preliminary injunction and summary judgment diverge in material respects: “‘In the former, a 

court considers whether there is a reasonable likelihood that the moving party will prevail on the 

merits; in the latter a court’” applies the familiar summary judgment standard. Nat. Res. Def.

Council, 147 F.3d at 1023 (quoting Commc’ns Maint., Inc. v. Motorola, Inc., 761 F.2d 1202, 

1205 (7th Cir. 1985)); see also Conax Fla. Corp. v. U.S., 824 F.2d 1124 (D.C. Cir. 1987) 

(affirming grant of summary judgment to government defendant that was preceded by entry of 

plaintiff’s requested preliminary injunction); Citizens for Responsibility and Ethics in Wash. v. 

Cheney, 593 F. Supp. 2d 194 (D.D.C. 2009) (ruling in defendants’ favor on summary judgment

after having granted plaintiffs’ request for a preliminary injunction).

IV. EVEN IF SECTION 102.14 POSSESSED A CONSTITUTIONAL INFIRMITY,

THE APPROPRIATE REMEDY WOULD BE TO STRIKE 102.14(B)(3) AND 

AFFIRM THE SEVERED PORTION

PAG’s challenge is premised on the notion that 11 C.F.R. § 102.14 is “content-based” 

because its application varies depending on whether the group’s operating name “unambiguously 

expresses opposition” to the candidate. (Pl.’s Mem. at 2.) But even if that challenge were 

successful, the remedy to PAG’s claim would be for the Court to simply strike subsection 

102.14(b)(3). Section 102.14 is severable in that way since there is no doubt the agency would 

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have adopted the rest of the regulation on its own. Am. Petroleum Inst. v. EPA, 862 F.3d 50, 71 

(2017). Indeed it did, having separately added 102.14(b)(3) to the previously functioning version 

of the regulation. Striking that subsection would remove the supportive vs. oppositional element 

of the name rule and cure any constitutional defect. Valid portions of administrative regulations 

that would have been enacted independently are affirmed after being severed from the struck 

portions. Id. Striking section 102.14(b)(3) would not enable PAG to use candidate names in its 

operating names because such use would still violate subsection 102.14(a)’s requirement that 

committees not use candidate names in their project titles. But that limited relief is a result of

PAG’s theory and black letter law regarding remedies. PAG’s challenge to the name 

identification requirement was broad enough to obtain standing, PAG II, 831 F.3d at 505, but 

that does not entitle it to a remedy departing from severability principles.

V. PAG HAS FAILED TO ADVANCE ITS APA AND “PRIOR RESTRAINT” 

CLAIMS AND HAS THEREFORE WAIVED THESE CLAIMS

PAG’s summary judgment motion focuses exclusively on its claim that section 102.14 is 

an impermissible “content-based speech ban.” (E.g., Pl.’s Mem. at 2.) Accordingly, PAG has 

waived its APA and prior restraint claims by making no effort to advance them. Evans v. 

Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013) (citing Ark. Las Vegas Rest. Corp. v. NLRB, 334 

F.3d 99, 108 n.4 (D.C. Cir. 2003) (noting that arguments not raised in briefs are waived)). 

CONCLUSION

For the foregoing reasons, the Court should grant the FEC’s motion for summary 

judgment, deny PAG’s motion for summary judgment, and dissolve the preliminary injunction.

 Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

/s/ Tanya Senanayake 

Tanya Senanayake (D.C. Bar No. 1006218)

Attorney

tsenanayake@fec.gov

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Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel 

ckitcher@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

Washington, DC 20463

(202) 694-1650

October 23, 2017

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