UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 ) 

PURSUING AMERICA’S GREATNESS, ) 

) 

Plaintiff, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

Defendant. ) 

 ) 

MEMORANDUM OPINION

Plaintiff Pursuing America’s Greatness (“PAG”) brings this action against the Federal 

Election Commission (the “FEC” or the “Commission”) for violations of the Administrative 

Procedure Act (the “APA”) and PAG’s First Amendment rights. 

PAG challenges an FEC advisory opinion interpreting and applying a provision of the 

Federal Election Campaign Act of 1971, as amended (“FECA”), and its implementing 

regulations to prohibit unauthorized, independent expenditure-only political committees like 

itself from including the names of federal candidates in website Universal Resource Locators 

(“URLs”), the titles of Facebook pages and Twitter account handles without clearly expressing 

opposition to those candidates, even when such websites, Facebook pages and Twitter accounts 

do not engage in fundraising solicitations. See FEC Advisory Opinion 2015-04. 

Before the court is PAG’s motion for preliminary injunction. Because PAG has failed to 

demonstrate that it is likely to succeed on the merits of its APA and First Amendment claims, 

and for the other reasons set forth herein, the motion is DENIED. 

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I. BACKGROUND 

PAG is an unauthorized, independent, expenditure-only political committee founded in 

2015 to advocate for the election of former Governor of Arkansas Mike Huckabee as President 

of the United States. (Compl. ¶¶ 25, 27). Since July 9, 2015, PAG has operated the website 

located at www.ilikemikehuckabee.com and the Facebook page “I Like Mike Huckabee,” which 

is located at www.facebook.com/ilikemikehuckabee. (Id. ¶¶ 10-11). PAG also intends to 

establish and operate a Twitter account utilizing a “handle” that includes the name “Huckabee.” 

(Id. ¶ 13). PAG has not used any of its internet properties to solicit contributions or to otherwise 

engage in fundraising activities, and it does not intend to do so in the future. (Mot. at 15). 

The FEC is the independent agency of the United States government with exclusive 

jurisdiction to administer, interpret and civilly enforce FECA, 52 U.S.C. §§ 30101-30146.1

 

(Opp. at 1-2). The FEC is specifically empowered 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)); to issue advisory opinions construing FECA 

(id. §§ 30107(a)(7), 30108); and to civilly enforce FECA (id. § 30109). (Opp. at 2). 

This case arises from PAG’s allegation that the FEC’s interpretation and application of 

FECA provision 52 U.S.C. § 30102(e)(4) and its implementing regulations at 11 C.F.R. 

§§ 102.14(a)-(b) violate the APA and PAG’s First Amendment rights. 

 

1

 Effective September 1, 2014, the provisions of FECA formerly codified in Title 2 of the United 

States Code were recodified in Title 52. The specific FECA provision at issue in this litigation – 

52 U.S.C. § 30102(e)(4) – was previously codified at 2 U.S.C. § 432(e)(4). The text of this 

provision has not changed since it was first enacted in 1980. This Memorandum Opinion will 

refer only to the present-day codification of the provision. 

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U.S. federal election law is complex, and the court will provide here only a brief synopsis 

of the statutes, regulations, case law and FEC advisory opinions that are applicable to PAG’s 

motion for preliminary injunction. 

a. Section 30102(e)(4) 

Section 30102(e)(4) of FECA, which is codified by regulation at 11 C.F.R. § 102.14(a), 

requires that the name of an authorized political committee “shall include the name of the 

candidate who authorized such committee.” It also provides that, “[i]n the case of any political 

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

name of any candidate in its name.” PAG – as an independent, unauthorized political 

committee – is therefore prohibited from including Governor Huckabee’s name in its committee 

name.2

 

b. Common Cause v. FEC 

In 1980, two groups, one of which was Common Cause, filed administrative complaints 

with the FEC alleging, inter alia, that several unauthorized, independent political committees 

had violated § 30102(e)(4)’s “ban against the use of a candidate’s name in the name of an 

unauthorized committee” by using the name “Reagan” in the titles of fundraising projects related 

to the 1980 U.S. Presidential election, in which former Governor of California Ronald Reagan 

was a candidate. Common Cause v. Fed. Election Comm’n, 842 F.2d 436, 438 (D.C. Cir. 1988). 

The FEC General Counsel suggested further investigation into these allegations and, pursuant to 

the Commission’s statutory enforcement process, “[b]y a 4-2 vote the Commission found ‘reason 

to believe’ a violation had taken place and ordered further inquiry.” Id. 

 

2

 PAG does not challenge this prohibition in its Complaint or motion. 

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The evidence subsequently showed that, in several campaign communications, a number 

of unauthorized committees had “included the name of candidate Reagan in letterheads and 

return addresses and, in some of the communications, asked for contributions with checks made 

payable to accounts bearing Reagan’s name.” Id. at 439. At the time, however, the FEC 

narrowly construed § 30102(e)(4) “as applying only to the name of [a] committee itself and not 

to the names of any fundraising projects that [a] committee sponsors.” Id. at 437. Thus, because 

the names at issue in the administrative complaints “referred only to fundraising projects and not 

to the committees themselves . . . the General Counsel recommended that the Commission find 

no probable cause to believe that a violation had occurred.” Id. at 439. “On the General 

Counsel’s recommendation, a 4-2 Commission majority voted to take no further action.” Id. 

Common Cause subsequently challenged the Commission’s dismissal of its complaint in 

federal district court. District Court Judge John Garrett Penn held that “[b]oth the plain 

understanding of the word ‘name’ in the context of elections” and Congress’ “intent to safeguard 

against confusion” led to the conclusion that the FEC’s narrow reading of the statutory language 

as applying only to a committee’s official, registered name defied “common sense” and was 

“contrary to law.” Common Cause v. Fed. Election Comm’n, 655 F. Supp. 619, 621-22 (D.D.C. 

1986) rev’d, 842 F.2d 436 (D.C. Cir. 1988). Noting that “[t]he political machinery is powered 

by names and what those names symbolize and identify,” Judge Penn held that “whatever names 

[a] committee[] present[s] to the public for identification must also constitute a ‘name’ within the 

meaning of” § 30102(e)(4) because to allow otherwise “would be to allow political committees 

to emasculate the effectiveness of the rule.” Id. at 621. The district court analogized its rationale 

to that applied to situations where a company “may register under one name but be known to the 

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public or ‘trade’ under a different name” and determined that, in such a circumstance, “the 

publicly used name is as important as the company’s ‘official’ name.” Id. at 621 n.5. 

The D.C. Circuit subsequently reversed the district court. It found that “[t]he bare text” 

of § 30102(e)(4) “could conceivably accommodate either the construction adopted by the 

FEC” – i.e., that the statute applied “only to the official or formal name under which a political 

committee must register” – “or that proposed by Common Cause” – i.e., that the statute did not 

refer only to “the officially registered ‘name’ of a political committee but rather any title under 

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

purposes.” Common Cause, 842 F.2d at 440-41. It also reviewed the statute’s “sparse legislative 

history,” id. at 443, concluding that “little” in that legislative history threw doubt “on the 

reasonableness of the FEC’s narrower interpretation” of § 30102(e)(4), id. at 447, and that the 

Commission, “on balance,” had “the better of the argument.” Id. at 440. 

Having found that “[n]either the plain language of [the statute] nor its legislative history 

unambiguously resolve[d] the dispute” as to whether the word “name” in § 30102(e)(4) referred 

to only a committee’s official name or also encompassed the names of a committee’s special 

projects, id. at 440, the Court moved on to determining whether the FEC’s narrower 

interpretation was based on a permissible construction of the statute under the second step of the 

two-step rubric of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 

See Common Cause, 842 F.2d at 448. Noting that “[d]eference is particularly appropriate in the 

context of the FECA, which explicitly relies on the bipartisan Commission as its primary 

enforcer,” and that the FEC’s dismissal of a complaint should be reversed only if contrary to law, 

the Court determined that the FEC’s interpretation was not unreasonable and was, in fact, “the 

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better interpretation . . . in light of [§ 30102(e)(4)’s] language and legislative history.” Id. (citing 

Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)). 

Notably for purposes of the instant case, the D.C. Circuit also explicitly stated that 

“subsection (e)(4) is directed solely at disclosure of whether a political committee that solicits 

funds from the public is part of the authorized campaign machinery of a candidate,” and that it 

acts, along with FECA’s provision requiring committees to state whether or not certain 

communications are authorized, to “clarify[] for readers and potential contributors the candidate 

authorization status of the political committees who sponsor advertisements and fund 

solicitations.” Id. at 442; see also id. at 440 (noting that “the avowed purpose” of the statute is 

“to eliminate confusion”). The Court also found that the statute “mainly supplements” the 

identification of authorization provision of FECA “by ensuring that once a contributor learns 

who is paying for the advertisements or who is to be the recipient of his funds, he simultaneously 

learns by a glance at the title whether that recipient is an authorized or unauthorized vehicle of 

the candidate. Thus, [the statute] avoids the kind of confusing disclaimer previously possible, 

‘Paid for by Reagan for President. Not authorized by President Reagan,’ and makes [FECA’s 

authorization] disclaimers more effective.” Id. at 442. The D.C. Circuit also acknowledged the 

possibility that adopting Common Cause’s reading of the statute “might prevent campaign 

literature employing candidates’ names from misleading some members of the public who, 

despite proper . . . disclaimers, will not realize that the candidate’s name in the solicitation 

‘project’ does not necessarily mean he will get the money,” while adopting the FEC’s reading 

“may leave some confusion unabated.” Id. at 448. 

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c. The Special Projects Name Regulation 

In 1992, prompted by concern about “the potential for confusion or abuse in . . . 

situation[s] where an unauthorized committee uses a candidate’s name in the title of a special 

fundraising project,” the FEC promulgated a Notice of Proposed Rulemaking (“NPRM”) 

regarding proposed amendments to 11 C.F.R. § 102.14, the regulation implementing 

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

13,056, 13,057 (Apr. 15, 1992) (the “1992 NPRM”). Following the receipt of comments 

responding to the 1992 NPRM, and consideration of those comments and “the entire rulemaking 

record,” the FEC decided “to adopt in its final rule a ban on the use of candidate names in the 

titles of all communications by unauthorized committees” (the “Special Projects Name 

Regulation”). FEC, Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992) (the “1992 Explanation 

and Justification”). The new rule thus amended 11 CFR § 102.14(a) “to define ‘name’ for the 

purpose of the [§ 30102(e)(4)] prohibition to include ‘any name under which a committee 

conducts activities, such as solicitations or other communications, including a special project 

name or other designation.’” Id.

The 1992 Explanation and Justification further stated that, since Common Cause had 

been decided several years earlier, 

the Commission ha[d] become more concerned about the potential for confusion 

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

special fundraising project. A person who receives such a communication may 

not understand that it is made on behalf of the committee rather than the candidate 

whose name appears in the project’s title. It is possible in these instances that 

potential donors think they are giving money to the candidate named in the 

project’s title, when this is not the case. 

Id. at 31,424. The FEC also pointed out that, in the years leading up to the promulgation of the 

Special Projects Name Regulation, 

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

communications ha[d] increasingly become a device for unauthorized committees 

to raise funds or disseminate information. Under the [Commission’s] former 

interpretation, a candidate who objected to the use of his or her name in this 

manner, who shared in none of the funds received in response to the solicitation, 

or who disagreed with the views expressed in the communication, was largely 

powerless to stop it. 

Id. 

Citing examples from the 1992 NPRM, as well as examples in the rulemaking record of 

unauthorized committees using candidates’ names to fundraise large sums of money – and doing 

so despite, in at least one case, a “candidate’s disavowal of and efforts to stop these activities” – 

the Commission concluded that FECA’s disclaimer requirement was not, “in and of itself, 

sufficient to deal with th[e] situation[s]” that the Special Projects Name Regulation was designed 

to protect against. Id. at 31,424-25. The Commission also determined that “the potential for 

confusion is equally great in all types of committee communications,” not just fundraising 

solicitations, and noted that the Common Cause court had “equated solicitations with other 

committee communications” for purposes of § 30102(e)(4). Id. at 31,425. The FEC also noted 

that the Special Projects Name Regulation’s “total ban” was “more directly responsive to the 

problem at issue, and easier to monitor and enforce,” than other restrictions proposed in the 

1992 NPRM, and that unauthorized committees would remain “free to choose whatever project 

title they desire, as long as it does not include the name of a federal candidate,” and could “freely 

discuss any number of candidates, by name, in the body of” any special project communications. 

Id.

d. The Opposition Exception

In 1994, the FEC promulgated a new exception to the Special Projects Name Regulation. 

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

Committees, 59 Fed. Reg. 17,267 (April 12, 1994) (the “1994 Explanation and Justification”). 

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This exception, which remains in place today, provides that “[a]n unauthorized political 

committee may include the name of a candidate in the title of a special project name or other 

communication if the title clearly and unambiguously shows opposition to the named candidate” 

(the “Opposition Exception” and, collectively with § 30102(e)(4) and the Special Projects Name 

Regulation, the “Name Identification Requirement”). Id. at 17,269. In promulgating the 

Opposition Exception, the FEC recognized “that the potential for fraud and abuse is significantly 

reduced in the case of” special project names clearly expressing opposition to the named 

candidate. Id.

The 1994 Explanation and Justification reiterated much of what was in the 

1992 Explanation and Justification for the Special Projects Name Regulation regarding the 

“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. at 

17,267-69. The 1994 Explanation and Justification also reiterated the constitutionality of the 

Special Projects Name Regulation, which it described as being “narrowly designed to further the 

legitimate governmental interest in minimizing the possibility of fraud and abuse,” and noted that 

the new Opposition Exception “further enhance[d] unauthorized committees’ constitutional 

rights by exempting from the [Special Projects Name Regulation] those titles that clearly indicate 

opposition to the named candidate.” Id. at 17,268. 

e. The CAP Advisory Opinion 

In June 2015, Collective Actions PAC (“CAP”), an unauthorized, independent 

expenditure-only political committee that advocates for the election of U.S. Senator from 

Vermont Bernie Sanders as President of the United States, filed an advisory opinion request with 

the FEC asking whether it was permitted to include Senator Sanders’ name in the names of its 

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internet properties – namely, (i) the websites RunBernieRun.com, ProBernie.com and 

BelieveInBernie.com; (ii) the Facebook page “Run Bernie Run”; and (iii) the Twitter accounts 

@Bernie_Run and @ProBernie. (Mot. at 11-14). CAP did not use these internet properties to 

solicit donations for itself, but it did use them to disseminate information about Senator Sanders 

and to provide links to Senator Sanders’ official campaign website, including his official 

donation page. (Opp. at 14). 

On July 16, 2015, the FEC determined via advisory opinion that CAP was not permitted 

to use Senator Sanders’ name in the names of its internet properties because doing so would run 

afoul of the Name Identification Requirement. See FEC Advisory Opinion 2015-04 (the “CAP 

Advisory Opinion”). Specifically, the Commission found that, “[b]ecause the names of [CAP’s] 

websites and social media accounts that include Senator Sanders’s name do not clearly express 

opposition to him, those sites and accounts are impermissible under 11 C.F.R. § 102.14.” Id. 

at 4. The Commission noted, however, “that this restriction only applie[d] to the titles of 

[CAP’s] projects,” and that CAP was “free to promote Senator Sanders (or any other candidate) 

by name in the body of any website or other communication. Id. (citing 1994 Explanation and 

Justification at 17,268). The Commission’s vote adopting the CAP Advisory Opinion was a 

unanimous 6-0. (Opp. at 13). 

The CAP Advisory Opinion also stated that, “[w]hen the Commission revised the 

definition of ‘name’ in section 102.14 to include ‘any name under which a committee conducts 

activities,’ the Commission rejected a proposal to limit the restriction to fundraising projects; 

instead, the Commission noted that ‘the potential for confusion is equally great in all types of 

committee communications’” and “therefore determined that a ‘total ban’ on the use of candidate 

names in committee names was more ‘responsive to the problem,’ as well as easier to monitor 

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and enforce.” CAP Advisory Opinion at 3 (quoting 1992 Explanation and Justification at 

31,425). The CAP Advisory Opinion also noted that the Commission had “amended the 

regulation to apply to ‘solicitations or other communications,’ . . . which necessarily means that 

communications need not be solicitations in order to fall within” the Special Projects Name 

Regulation. Id. (quoting 11 C.F.R. § 102.14(a)). 

f. PAG’s Cessation of Activity on Its Website and Facebook Page

On July 17, 2015, the day after the CAP Advisory Opinion was issued, PAG ceased 

updating its website and Facebook page. (Compl. ¶ 18). 

Ten days later, on July 27, 2015, PAG filed its Complaint and motion for preliminary 

injunction, alleging that its internet properties are materially indistinguishable from the internet 

properties at issue in the CAP Advisory Opinion, and that the FEC must be enjoined from 

applying the Name Identification Requirement to its internet properties because it violates the 

APA, as well as the First Amendment. (Id. ¶¶ 17, 32-36, 41; Mot. at 1, 14-16). The FEC does 

not dispute PAG’s standing to bring a pre-enforcement challenge as applied to its own 

circumstances, and has formally endorsed the challenged interpretation of the Name 

Identification Requirement. (Opp. at 22 n.4). 

II. LEGAL STANDARD 

In order to prevail on a motion for preliminary injunction, a movant must demonstrate the 

following: (i) a substantial likelihood of success on the merits; (ii) that the movant would suffer 

irreparable injury if the injunction is not granted; (iii) that the balance of equities tips in the 

movant’s favor; and (iv) that the public interest would be furthered by the issuance of the 

injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary 

injunction is an “extraordinary and drastic remedy” that is “never awarded as of right,” Munaf v. 

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Geren, 553 U.S. 674, 689-90 (2008) (internal quotation and citations omitted), and “that should 

be granted only when the party seeking the relief, by a clear showing, carries the burden of 

persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citation omitted). 

In the past, courts in this Circuit used a “sliding scale” approach in analyzing the four 

preliminary injunction factors, meaning that a particularly strong showing on one factor could 

make up for a weaker showing on another. See, e.g., Davenport v. Int’l Bhd. of Teamsters, 

AFL-CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1999). Under this approach, “even if [a] plaintiff 

only raises a serious legal question on the merits, rather than a likelihood of success on the 

merits, a strong showing on all three of the other factors [could] warrant entry of injunctive 

relief.” Arpaio v. Obama, 27 F. Supp. 3d 185, 196-98 (D.D.C. 2014) (internal quotation, citation 

and bracket omitted). 

It is not clear whether this approach survives after the Supreme Court’s 2008 decision in 

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

e.g., Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (reading Winter “at least to suggest 

if not to hold” that plaintiffs face a more demanding burden under which “a likelihood of success 

is an independent, free-standing requirement for a preliminary injunction”) (internal quotation 

and citation omitted); Perry v. Perez, 132 S.Ct. 934, 942 (2012) (“Plaintiffs seeking a 

preliminary injunction of a statute must normally demonstrate that they are likely to succeed on 

the merits of their challenge to that law.”) (citing Winter, 555 U.S. at 20). While this Circuit 

“has repeatedly declined to take sides . . . on the question of whether likelihood of success on the 

merits is a freestanding threshold requirement to [the] issuance of a preliminary injunction,” Am. 

Meat Inst. v. U.S. Dep’t of Agric., 746 F.3d 1065, 1074 (D.C. Cir. 2014), reinstated in relevant 

part by 760 F.3d 18 (D.C. Cir. 2014) (en banc), it is nevertheless clear that a plaintiff’s 

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likelihood of success on the merits is a “key issue [and] often the dispositive one” at the 

preliminary injunction stage. Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of 

Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011). At a minimum, “[e]ven if the 

sliding scale approach to assessing eligibility for preliminary injunctions survived Winter,” 

where a movant makes “a weak showing on the first factor,” the movant must “show that all 

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

legal question on the merits.” Am. Meat Inst., 746 F.3d at 1074 (internal quotation and citations 

omitted). 

III. ANALYSIS 

a. Likelihood of Success on the Merits 

For the reasons set forth below, the court finds that PAG has not established a likelihood 

of success on the merits of either its APA claim or its First Amendment claims. 

i. Likelihood of Success on the Merits of PAG’s APA Claim 

PAG’s first merits argument is that the Name Identification Requirement “is arbitrary, 

capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act.” 

(Mot. at 21; see also id. at 20-22). 

This court’s limited function in reviewing a final agency action under the APA is “to 

determine whether or not as a matter of law the evidence in the administrative record permitted 

the agency to make the decision it did.” Kaiser Found. Hosps. v. Sebelius, 828 F.Supp.2d 193, 

198 (D.D.C. 2011) (internal quotation and citation omitted). This standard of review is 

“narrow,” and a court applying it “is not to substitute its judgment for that of the agency.” Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

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Under the APA, a reviewing court must set aside an agency action that is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). This standard requires the agency to examine the relevant evidence and “articulate 

a satisfactory explanation for its action[,] including a rational connection between the facts found 

and the choice made.” State Farm, 463 U.S. at 43 (quotation and citation omitted). But this 

explanation “need not be a model of analytic precision to survive a challenge.” Coburn v. 

McHugh, 679 F.3d 924, 934 (D.C. Cir. 2012) (internal quotation and citation omitted). Thus, a 

court “must uphold a decision of less than ideal clarity if the agency’s path may reasonably be 

discerned.” Am. Radio Relay League, Inc. v. Fed. Commc’n Comm’n, 524 F.3d 227, 248 (D.C. 

Cir. 2008) (internal quotation and citation omitted). 

Additionally, when an agency interprets its own rules and regulations, as the FEC did 

here in the CAP Advisory Opinion, a court must, “as a general rule, defer[] to it unless that 

interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. 

Ctr., 133 S. Ct. 1326, 1337 (2013) (internal quotation and citation omitted); see also K N Energy, 

Inc. v. Fed. Energy Regulatory Comm’n, 968 F.2d 1295, 1300 (D.C. Cir. 1992) (an agency is 

entitled to “even more deference in its interpretation of its own regulations than in the reading of 

its statutory mandate”). Thus, if the Special Projects Name Regulation and Opposition 

Exception do not themselves violate the APA, this court must defer to the FEC’s interpretation 

and application of them in the CAP Advisory Opinion “unless an ‘alternative reading is 

compelled by [their] plain language or by other indications of the [FEC’s] intent at the time of 

[their] promulgation.’” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting 

Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)). 

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In support of its APA claim, PAG argues that, by applying the Name Identification 

Requirement to internet properties that do not engage in fundraising solicitations, the CAP 

Advisory Opinion applied the Name Identification Requirement “to a context not contemplated 

in the FEC’s 1992 and 1994 rulemakings, and in a manner that goes far beyond the FEC’s 

asserted justification for those rulemakings.” (Mot. at 20). It is clear from the rulemaking 

record, however, that while the 1992 and 1994 rulemakings that resulted in the promulgation of 

the Special Projects Name Regulation and Opposition Exception were primarily focused on 

fundraising-related fraud, abuse and confusion, they were by no means exclusively concerned 

with fundraising-related dangers. PAG acknowledges this fact in its reply brief, where it states 

that the 1992 and 1994 rulemakings were focused “almost exclusively” on fundraising. (Reply 

at 8; see also id. at 8-9 (acknowledging that “the 1992 and 1994 rulemakings also assert that 

avoiding ‘confusion’ was one of the government’s interests that justified expanding the scope” of 

§ 30102(e)(4))). 

For example, the 1992 Explanation and Justification explicitly stated that “the use of 

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

become a device for unauthorized committees to . . . disseminate information,” and noted that the 

Commission’s former interpretation would have left “a candidate who objected to the use of his 

or her name in this manner, . . . or who disagreed with the views expressed in the 

communication, . . . largely powerless to stop it.” 1992 Explanation and Justification at 31,424. 

The Commission also determined that “the potential for confusion is equally great in all types of 

committee communications,” not just fundraising solicitations. Id. at 31,425 (emphasis added). 

Thus, when the FEC added the Special Projects Name Regulation to the regulatory framework in 

1992, it “specifically considered and rejected the distinction that [PAG now] proposes.” CAP 

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Advisory Opinion at 3. And while PAG reads “[t]he title of the FEC’s 1992 and 1994 

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

Committees’)” as support for the proposition that the rulemakings were focused on fundraising 

(Mot. at 21), this reading ignores the fact that the words “Other Use of Candidate Names” clearly 

reveal a “focus” on the use of candidate names in the titles of things other than special 

fundraising projects. 

This court therefore finds that the relevant evidence from the 1992 and 1994 rulemakings 

establishes the requisite “rational connection between the facts found and the choice made” in 

promulgating the Special Projects Name Regulation and the Opposition Exception, as well as in 

issuing the CAP Advisory Opinion. State Farm, 463 U.S. at 43. And even if “the FEC’s 

asserted justification for [the 1992 and 1994] rulemakings” was, in fact, limited exclusively to 

the fundraising context (Mot. at 20), the court notes that it is at least conceivable that special 

project communications that do not include explicit solicitations could nevertheless impact 

fundraising. For example, 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 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 to Mr. Huckabee, even though it is not, . . . even in the 

absence of any solicitation.” (Opp. at 28-29).3

 

 

3

 At the hearing on PAG’s motion, the court noted that even if PAG is “not explicitly making 

fundraising solicitations through [its] Internet properties, people do still donate to” PAG, and 

asked counsel the following question: 

[I]f someone donates to Pursuing America’s Greatness thinking that they’re 

actually donating to Governor Huckabee because they had been led to Pursuing 

America’s Greatness’ donation page after visiting [the website or the Facebook 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 16 of 34
17 

The court also finds that the FEC’s interpretation of the Name Identification Requirement 

in the CAP Advisory Opinion is not contrary to law, nor is it contrary to the FEC’s intent at the 

time of the adoption of the Special Projects Name Regulation and the Opposition Exception. See 

Thomas Jefferson Univ., 512 U.S. at 512. The court credits the fact that “the Commission 

specifically considered whether it could accomplish its goals through alternative means, and 

concluded . . . that its approach was necessary.” (Opp. at 21). The court also agrees with the 

FEC about “how limited the effect of the [Name Identification Requirement is] in practice,” 

given that an unauthorized committee can still use a candidate’s name in a special project’s 

subheading and urge that candidate’s “election, by name, in large, highlighted type, throughout 

the communication.” (Id. at 22) (quoting 1994 Explanation and Justification at 17,268-69). 

 

page], isn’t the confusion being caused by those Internet properties having an 

effect on fundraising even without direct solicitation? 

Transcript of August 20, 2015 Preliminary Injunction Hearing (the “Hearing Transcript”) at 

11:17-12:4. 

Counsel for PAG responded that there was “nothing” on the website or Facebook page “that 

would lead a voter directly to where they could make a donation” to PAG, but acknowledged 

that a voter could still go to the website or Facebook page, “read the disclaimer” identifying 

PAG, and then “separately locate the URL for” PAG’s official website, where that voter could 

make a donation to PAG. Id. at 12:5-21. Counsel stated that such a voter would be “very aware” 

that the donation page on PAG’s official website “is not Governor Huckabee’s presidential 

campaign donation page,” presumably because the voter had read the disclaimers on the website 

or the Facebook page, as well as those on PAG’s donation page. Id. 

This argument presupposes, however, that these disclaimers, taken alone, would be sufficient to 

dispel the kind of confusion that the court’s question concerned. This presupposition is belied by 

Exhibit A to the FEC’s opposition brief, which is discussed in detail below. It is also belied by 

the D.C. Circuit’s decision in Common Cause, where it acknowledged the possibility that 

“campaign literature employing candidates’ names” could “mislead[] some members of the 

public who, despite proper . . . disclaimers, will not realize that the candidate’s name in the 

solicitation ‘project’ does not necessarily mean he will get the money.” 842 F.2d at 448. 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 17 of 34
18 

The court also agrees with the Commission that its “anti-confusion rationale” is easily 

discernible, and that permitting unauthorized committees to include a candidate’s name in the 

name of their special projects could permit such committees to “hold themselves out as agents of 

particular candidates,” thereby increasing “opportunities for confusion, fraud, and abuse.” (Id.

at 23). The court also agrees with the FEC that the messages that unauthorized committees and 

their special projects disseminate “directly implicate the government’s anti-confusion interest 

even if they merely present ‘information’ and do not request money.” (Id. at 23-24). This is 

because “voters may fail to distinguish between projects of the actually authorized ‘Huckabee for 

President, Inc.’ committee and an unauthorized committee’s project that might be named, say, 

‘Huckabee for America’ or ‘Citizens for Huckabee.’” (Id. at 23). 

Exhibit A to the FEC’s opposition brief – which identifies hundreds of comments on the 

Facebook page that appear to be directed to Governor Huckabee himself – illustrates this 

potential for confusion. PAG responds to these comments by noting that many of them were 

posted prior to PAG taking over the Facebook page on July 9, 2015, and by stating that the FEC 

failed “to put the number or content of these comments in any context.” (Reply at 11-12). 

This response is unavailing. 

As an initial matter, while many of these comments were, indeed, posted prior to PAG 

taking over the Facebook page on July 9, 2015, a significant number of them were posted after 

that date. (See Opp. Ex. A). Additionally, when the court invited counsel for PAG to put these 

Facebook comments in “the proper context” and “explain why it’s not a problem that these 

people are confused in thinking that [the Facebook page] is associated [with] and run by 

Governor Huckabee,” counsel responded that “if voters looked at the [Facebook page] and didn’t 

read the disclaimer, that’s not the fault of Pursuing America’s Greatness. That is a consequence 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 18 of 34
19 

of a voter not reading the complete content before they post something.” Hearing Transcript at 

7:24-8:17. While it is certainly true that the confusion on display throughout the Facebook page 

stems in part from commenters not reading the Facebook page’s disclaimers before posting their 

comments, this fact does not help PAG’s argument. Rather, it reinforces the FEC’s finding in 

the 1992 Explanation and Justification for the Special Projects Name Regulation that FECA’s 

disclaimer requirement is not, on its own, sufficient to address the kind of confusion that the 

Special Projects Name Regulation was designed to protect against. See 1992 Explanation and 

Justification at 31,424-25. In other words, the comments on the Facebook page directed towards 

Governor Huckabee clearly demonstrate that “proper disclaimers” do not always suffice to dispel 

the confusion wrought by a confusing or misleading special project name, and that rules and 

regulations restricting the use of confusing or misleading names are needed to limit voter 

confusion. Hearing Transcript at 8:9-11. 

In sum, PAG has offered nothing that would suggest that the FEC is incorrect in asserting 

that “confusion, fraud, and abuse plainly can occur outside of the context of fundraising.” (Opp. 

at 29). PAG has also failed to explain why the Common Cause court’s acknowledgement of the 

possibility that the FEC’s present reading of the statute “might prevent campaign literature 

employing candidates’ names from misleading some members of the public,” while adopting the 

equivalent of PAG’s reading of it “may leave some confusion unabated,” does not apply equally 

to fundraising projects and non-fundraising projects alike. Common Cause, 842 F.2d at 448. 

Indeed, the court agrees with the FEC that 

[j]ust as an unauthorized project that trades on a candidate’s name in its title can 

divert dollars away from a candidate’s message, it can also divert (or distort) 

information, confusing readers into believing, say, that PAG’s message is 

Mr. Huckabee’s. Mr. Huckabee may disagree with everything that appears on the 

Huckabee Facebook page PAG operates, and PAG is free to say whatever it wants 

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

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 19 of 34
20 

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

messages would disserve the public. 

(Opp. at 29) (citation omitted). 

Because this court finds that there is “a rational connection between the facts found” by 

the FEC during the 1992 and 1994 rulemakings and “the choice[s] made” by the FEC in 

promulgating the Special Projects Name Regulation and Opposition Exception and issuing the 

CAP Advisory Opinion, State Farm, 463 U.S. at 43, and because there is no indication that the 

Commission’s interpretation of the Name Identification Requirement in the CAP Advisory 

Opinion is contrary to law or to the agency’s intent at the time of its adoption, PAG has not 

established that it is likely to succeed on the merits of its APA claim. See Thomas Jefferson 

Univ., 512 U.S. at 512.4

 

4

 There is also an issue in this case regarding whether a website’s URL constitutes the “name” or 

“title” of that website, such that the Name Identification Requirement even applies. PAG cites a 

2011 FEC matter under review in which a footnote to a “Statement of Reasons” authored by 

three FEC Commissioners reflects those Commissioners’ view that, while a website constitutes a 

special project of an unauthorized committee, the URL of that website is not the special project’s 

name or title. (Mot. at 10-11). However, because the CAP Advisory Opinion, which was 

approved unanimously (including by two of the Commissioners who had authored the 2011 

Statement of Reasons), found that a website’s URL is that website’s name or title (see CAP 

Advisory Opinion at 3 (referring to the “names of [CAP’s] websites” as those websites’ URL 

addresses)), this court need not wade into the question of whether the agency is somehow bound 

by dictum in a Statement of Reasons authored by only three of its Commissioners. Rather, the 

question before the court on this point is a narrow one: Was it “plainly erroneous or 

inconsistent” with the Name Identification Requirement for the FEC to find in the CAP Advisory 

Opinion that a website’s URL constitutes that website’s name or title? Decker, 133 S. Ct. at 

1337. The court holds that it was not, and finds no basis for upsetting the common sense 

conclusion reached in the CAP Advisory Opinion that a website’s name or title is its URL. 

The parties also dispute whether and how the D.C. Circuit’s decision in Common Cause impacts 

PAG’s APA claim. Because the court finds, for the reasons set forth above, that there is a 

“rational connection between the facts found” by the FEC regarding the risk of voter confusion 

and “the choice[s] made” by the FEC in enacting the Special Projects Name Regulation and 

Opposition Exception and issuing the CAP Advisory Opinion, it need not determine whether, 

under the circumstances present in this case, the step one Chevron analysis applied to the FEC’s 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 20 of 34
21 

ii. Likelihood of Success on the Merits of PAG’s First Amendment Claims 

PAG argues that the FEC’s interpretation of the Name Identification Requirement acts as 

a prior restraint because it “explicitly forbids speech prior to that speech occurring, and if 

someone does speak that person is subject to prison for knowing and willful violations [of] 

FECA.” (Reply at 14-15). PAG also argues that the Name Identification Requirement 

impermissibly regulates “speech on the basis of ‘the idea or message expressed’” because it 

creates two categories of speech: (i) oppositional speech, which is permitted, and 

(ii) non-oppositional speech, which is prohibited. (Mot. at 30-31) (quoting Reed v. Town of 

Gilbert, 135 S. Ct. 2218, 2227 (2015)). Therefore, PAG argues that the FEC’s interpretation 

should be subject to strict scrutiny because it prohibits political speech as both a prior restraint 

and an impermissible content-based speech regulation. (Mot. at 18) (citing Citizens United v. 

Fed. Election Comm’n, 558 U.S. 310, 340 (2010)). Under this view, the FEC would be required 

to prove that the Name Identification Requirement furthers a compelling government interest and 

is narrowly tailored to achieve that interest. 

The FEC contends that PAG’s First Amendment-based arguments in favor of strict 

scrutiny are incorrect because the Name Identification Requirement “is an integral part of 

FECA’s disclosure regime” and is therefore “reviewed for ‘exacting scrutiny,’ which requires a 

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

governmental interest.” (Opp. at 24-25) (quoting Citizens United, 558 U.S. at 366-67). In 

support, the FEC cites Common Cause, 842 F.2d at 442, which refers to § 30102(e)(4) as one of 

the ways in which FECA “require[s] political bodies to disclose the identity of persons 

 

present interpretation of § 30102(e)(4) in Common Cause independently requires it to find that 

PAG is unlikely to succeed on the merits of its APA claim. State Farm, 463 U.S. at 43. 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 21 of 34
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associated with them,” and Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1367-68 (D.C. Cir. 

1988), which characterizes § 30102(e)(4) as part of FECA’s “specific disclosure requirements” 

and “extensive disclosure requirements.” (Id. at 24). The FEC also argues that the Name 

Identification Requirement’s disclosure function is “apparent from the purpose of the provision,” 

which is to disclose whether a given political committee is an authorized committee or an 

unauthorized committee. (Id. at 24-25; see also Common Cause, 842 F.2d at 442 (noting that 

§ 30102(e)(4) “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”)). 

In response to PAG’s First Amendment arguments, the FEC contends that the Name 

Identification Requirement is not a prior restraint, but rather, provides for a subsequent 

punishment. (Opp. at 29-31). Additionally, it asserts that PAG does not have standing to bring a 

content-based challenge to the Name Identification Requirement, because even if this court held 

that the Opposition Exception was unconstitutional under Reed, PAG would nevertheless still be 

in violation of the Special Projects Name Regulation. (Id. at 32-33). The FEC also argues that 

even if PAG could demonstrate standing to challenge the Opposition Exception, its 

content-based challenge would still fail because neither the Opposition Exception nor the Name 

Identification Requirement are content-based restrictions. (Id. at 33-37). Finally, the FEC 

argues that even if the court were to find that the Name Identification Requirement was not a part 

of FECA’s disclosure regime subject to intermediate or exacting scrutiny, and that it was either 

a prior restraint or an impermissible content-based restriction, the Name Identification 

Requirement would nevertheless still satisfy strict scrutiny, citing Burson v. Freeman, 504 U.S. 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 22 of 34
23 

191, 199 (1992), which held that the government has a compelling interest in protecting voters 

from confusion and undue influence. (Id. at 38-40). 

The court finds that § 30102(e)(4) and the other components of the Name Identification 

Requirement are part and parcel of FECA’s disclosure regime because they are “directed solely 

at disclosure of whether a political committee that solicits funds from the public is part of the 

authorized campaign machinery of a candidate,” Common Cause, 842 F.2d at 442, and “only 

appl[y] to the titles” of an unauthorized committee’s projects, leaving any such committee “free 

to promote [any candidate] by name in the body of any website or other communication,” such 

as those posted on Facebook pages or Twitter accounts. CAP Advisory Opinion at 4.5

 Thus, 

while the Special Projects Name Regulation, like other “[d]isclaimer and disclosure 

requirements[,] may burden the ability to speak” by prohibiting certain limited categories of 

speech (i.e., the names of federal candidates) in certain limited areas (i.e., the names or titles of 

unauthorized committees’ special projects), it “impose[s] no ceiling on campaign-related 

activities . . . and do[es] not prevent anyone from speaking.” Citizens United, 558 U.S. at 366 

(internal quotations and citations omitted). Such limited burdens on speech “often represent[] a 

less restrictive alternative to flat bans on certain types or quantities of speech,” and are subject to 

intermediate or exacting scrutiny. McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1460 

 

5 See also 1992 Explanation and Justification at 31,425 (“Committees are not barred from 

establishing specially designated projects: they are free to choose whatever project title they 

desire, as long as it does not include the name of a federal candidate. Also, committees may 

freely discuss any number of candidates, by name, in the body of a communication.”); 

1994 Explanation and Justification at 17,268-69 (“Unauthorized committees remain free to 

discuss candidates throughout [any special project] communication[s]; and to use candidates’ 

names as frequently, and highlight them as prominently (in terms of size, typeface, location, and 

so forth) as they choose. In other words, while a committee could not establish a fundraising 

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

‘Help Us Elect Doe to Federal Office,’ and urge Doe’s election, by name, in large, highlighted 

type, throughout the communication.”). 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 23 of 34
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(2014) (plurality opinion) (citation omitted); see also Citizens United, 558 U.S. at 369 (“The 

Court has explained that disclosure is a less restrictive alternative to more comprehensive 

regulations of speech.”) (citation omitted). 

The Name Identification Requirement simply (i) requires a political committee to 

disclose whether that committee is authorized or unauthorized, and (ii) dictates that such 

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

committee conducts activities, including a special project name. The Name Identification 

Requirement is therefore best construed as a disclosure provision that requires disclosure of the 

candidate authorization status of a political committee and its special projects to be made in a 

particular place, just as do other disclosure and disclaimer regulations concerning publicly 

disseminated political committee communications.6 The Opposition Exception, in particular, 

exists because the clear expression of opposition to a named candidate in the title of an 

unauthorized committee’s special project suffices to disclose the fact that the special project is 

not authorized by the named candidate, hence the FEC’s determination “that the potential for 

fraud and abuse is significantly reduced in the case of” special project names clearly expressing 

opposition to the named candidate. 1994 Explanation and Justification at 17,269. 

 

6 See, e.g., 52 U.S.C. §§ 30120(a)(1)-(3), 30120(c)(1)-(3) (requiring political committees that 

make disbursements “for the purpose of financing any communication through any . . . type of 

general public political advertising” to “clearly state” on any such communication whether that 

communication has been paid for and/or authorized by a candidate or that candidate’s authorized 

committee, and requiring such statement to be “of sufficient type size to be clearly readable,” 

“contained in a printed box set apart from the other contents of the communication” and “printed 

with a reasonable degree of color contrast between the background and the printed statement”); 

see also Citizens United, 558 U.S. at 366 (holding that disclaimer and disclosure provisions of 

the Bipartisan Campaign Reform Act of 2002 did not violate the First Amendment by requiring 

that, inter alia, “televised electioneering communications funded by anyone other than a 

candidate must include a disclaimer that ‘_______ is responsible for the content of this 

advertising’ . . . made in a ‘clearly spoken manner,’ and displayed on the screen in a ‘clearly 

readable manner’ for at least four seconds”) (citations omitted). 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 24 of 34
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At the hearing on PAG’s motion, the court asked counsel for PAG about the Common 

Cause and Galliano courts’ clear references to § 30102(e)(4) being a part of FECA’s disclosure 

regime, and counsel responded as follows: 

[W]e’re not here challenging 30102(e)(4) as it’s written. We’re bringing an 

as-applied challenge to the limitation on names in URLs and social media 

identifiers where there’s no fundraising. In that context, in terms of disclosure 

requirements, there is no disclosure that we could make that would make this 

permissible. 

In all of the disclosure cases where courts review things with respect to 

intermediate scrutiny, there is some disclosure or disclaimer that can be on the 

communication, incorporated into the communication, or documentation or 

paperwork filed with the body that is governing the disclosure that allows the 

speech to happen. In this case, what they’re doing is actually saying – they use 

the phrase “total ban,” and they’re saying you can’t use it. 

Hearing Transcript at 21:19-22:12. But this argument ignores the fact that the Special Projects 

Name Regulation does require a disclosure to “be on” or “incorporated into the communication” 

by requiring disclosure in the name or title of the special project that is disseminating that 

communication, and that doing so is precisely what “allows the speech to happen” in the body of 

that special project communication, rendering such communications “permissible.” Id. PAG’s 

reliance on the fact that the FEC has referred to the Special Projects Name Regulation as a “ban” 

or “total ban” is unavailing. Despite the FEC’s use of the word “ban,” the Special Projects Name 

Regulation does not “ban” any speech outright. Rather, it burdens speech slightly by restricting 

a limited class of speech (candidate names) only as to a particular location (the names of 

unauthorized committees and their special projects), and relegating that speech to another 

location (the body of special project communications made by unauthorized committees). 

The Supreme Court’s opinion in Burson is instructive here. The Court held in that case 

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

campaign materials within 100 feet of the entrance to a polling place was narrowly tailored to 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 25 of 34
26 

serve the compelling state interest in preventing voter intimidation and election fraud, as required 

by the First Amendment. See Burson, 504 U.S. at 199 (“Tennessee argues that its restriction 

protects the right to vote in an election conduced with integrity and reliability. The interests 

advanced by Tennessee obviously are compelling ones. This Court has recognized that the right 

to vote freely for the candidate of one’s choice is of the essence of a democratic society. Indeed, 

no right is more precious in a free country than that of having a voice in the election of those 

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

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

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

[and] indisputably has a compelling interest in preserving the integrity of its election process.”) 

(internal quotations, citations and brackets omitted). When counsel for PAG was asked at the 

hearing whether Burson (which was raised in the FEC’s opposition brief but was not addressed 

in PAG’s reply brief), was “fatal to [PAG’s] First Amendment claim insofar as it indicates that 

measures designed to avoid election-related confusion satisf[y] strict scrutiny as long as they’re 

narrowly tailored,” counsel responded that 

the questions about electioneering outside of polling places have been essentially 

viewed under time, place, and manner restrictions, because what they’re trying to 

avoid is essentially somebody plastering the door of the entrance to a polling 

place with a candidate’s signs. 

So at 101 feet, you can engage in the same speech; you just can’t engage in it at 

99 feet out. So it doesn’t prohibit the speech at all, the restriction [in Burson]. 

It just prohibits where you can make the speech. So you can’t hand out the flyer 

98 feet from the polling place, but you can hand it out 102 feet from the polling 

place. There’s nothing in what the FEC does here that allows us to engage in our 

same speech no matter what we do. 

Hearing Transcript at 24:18-25:5. 

The parallel between Burson and the instant case is readily evident, however. Here, just 

as in Burson, PAG can say whatever it wants about Governor Huckabee in the body of its special 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 26 of 34
27 

project communications, including 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, the Name Identification Requirement “doesn’t prohibit the 

speech at all[,] . . . [i]t just prohibits where you can make the speech.” Id. 

The same parallel can be seen in Christian Knights of the Ku Klux Klan Invisible Empire, 

Inc. v. District of Columbia, 919 F.2d 148 (D.C. Cir. 1990) (per curiam) (which, like Burson, 

was raised in the FEC’s opposition brief but was not addressed in PAG’s reply brief). 

In Christian Knights, the Ku Klux Klan applied for a permit “to march from the Washington 

Monument to Capitol Hill,” but the District of Columbia only “agreed to issue a permit . . . 

allowing them to march over a shorter route.” 919 F.2d at 148. The Klan “sought an injunction 

compelling the District of Columbia to issue a permit allowing them to march the full distance 

from the Monument to the Capitol.” Id. at 148-49. The D.C. Circuit held that the case did not 

“involve an effort by the District of Columbia to prohibit [the Klan’s] freedom of expression” 

given that the Klan had “been given a permit to march and to demonstrate,” and would therefore 

have “the opportunity to convey their message along the approved route and at a permitted 

demonstration on the Capitol grounds.” Id. at 149. The D.C. Circuit also found that Elrod v. 

Burns, 427 U.S. 347 (1976) (cited by PAG in its motion), did not apply, because that was a “case 

in which [the] petitioners’ First Amendment rights were totally denied by the disputed 

Government action,” while the Klan was still permitted to march, albeit along a shorter route. 

Id.; see also id. at 150 (noting that certain “heckler’s veto” cases cited by the Klan were not 

dispositive of its claims because those cases all “involved situations in which petitioners ha[d] 

been totally denied an otherwise available forum for expression”). 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 27 of 34
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The absence here of a total denial of any speech rights is precisely how the FEC 

distinguished Buckley v. Valeo, 424 U.S. 1 (1976) and Fed. Election Comm’n v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480 (1985) during the rulemaking process back 

in the early 1990s, noting that both of those cases “involved total bans on independent 

expenditures, or certain types of independent expenditures,” whereas the Special Projects Name 

Regulation did not. 1992 Explanation and Justification at 31,425. Additionally, in Buckley, the 

Supreme Court “explained that disclosure could be justified based on a governmental interest in 

providing the electorate with information about the sources of election-related spending,” and the 

Court again applied this same interest in McConnell v. Fed. Election Comm’n, 540 U.S. 93 

(2003), where there was “evidence in the record that independent groups were running electionrelated advertisements while hiding behind dubious and misleading names.” Citizens United, 

558 U.S. at 367 (internal quotations, citations and brackets omitted). The rulemaking record in 

this case contains the same kind of evidence as in McConnell, and the disclosures required by the 

Name Identification Requirement are therefore justified because they “provid[e] the electorate 

with information,” McConnell, 540 U.S. at 196, and “insure that the voters are fully informed” 

about the person or group who is speaking in special project communications of unauthorized 

committees. Buckley, 424 U.S. at 76; see also First Nat. Bank of Boston v. Bellotti, 435 U.S. 

765, 792 n.32 (1978) (“Identification of the source of advertising may be required as a means of 

disclosure, so that the people will be able to evaluate the arguments to which they are being 

subjected.”) (citations omitted); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 698 

(D.C. Cir. 2010) (en banc), cert. denied, 562 U.S. 1003 (2010) (holding that political committee 

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

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

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 28 of 34
29 

campaign finance restrictions”). “At the very least,” the Name Identification Requirement helps 

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

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

Citizens United, 558 U.S. at 368. 

The Name Identification Requirement is therefore “substantially related to the 

government’s interests in limiting confusion, fraud, and abuse” because it “serve[s] to clarify the 

candidate-authorization status of political committees.” (Opp. at 27). The court agrees with the 

FEC that “the positive requirement of including candidate names in [the names of] authorized 

committees cannot function without the corresponding restriction for unauthorized committees,” 

and that permitting “unauthorized political committees to establish special projects that use 

candidate names under the shell of the actual committee would vitiate” § 30102(e)(4). (Id.

at 27-28). This court finds no reason to doubt or question the conclusion reached by the FEC, 

after “two rounds of full-bore notice-and-comment rulemaking” (id. at 21), that permitting 

unauthorized committees to use candidate names in their special project titles in a way that does 

not clearly express opposition to the named candidates would create opportunities for those 

projects “to exploit ambiguity about their identity” and “take advantage of confusion created by 

their project names – even in the absence of any solicitation.” (Id. at 28-29). The court also 

agrees with the FEC that, “[j]ust as an unauthorized project that trades on a candidate’s name in 

its title can divert dollars away from a candidate’s message, it can also divert (or distort) 

information, confusing readers into believing, say, that PAG’s message is Mr. Huckabee’s,” and 

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.” (Id. at 29). “[P]reventing the 

use of candidate names in the names of unauthorized political committee projects is thus 

Case 1:15-cv-01217-TSC Document 21 Filed 09/24/15 Page 29 of 34
30 

‘responsive to the problem’ of confusion, and therefore is substantially related to the 

government’s important disclosure interests.” (Id.) (quoting CAP Advisory Opinion at 3). 

The need for FECA disclosure provisions like the Name Identification Requirement is 

particularly apparent in the context of dissemination of communications via internet-based 

special projects like websites, Facebook pages and Twitter accounts. The hundreds of comments 

posted on PAG’s Facebook page that appear to be directed to Governor Huckabee highlight the 

need for such disclosures, and belie 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. (See Opp. Ex. A). And, as the Supreme Court explained in its 

plurality opinion in McCutcheon, “[w]ith modern technology, disclosure now offers a 

particularly effective means of arming the voting public with information. . . . Today, given the 

Internet, disclosure offers much more robust protections against corruption” and “is effective to a 

degree not possible at the time Buckley, or even McConnell, was decided.” 134 S. Ct. at 1460. 

In sum, “the public has an interest in knowing who is speaking about a candidate shortly 

before an election.” Citizens United, 558 U.S. at 369. This interest is a legitimate government 

interest as well, and goes hand-in-hand with the legitimate government interest in limiting the 

possibility of fraud, confusion and abuse in federal elections. Because the Name Identification 

Requirement is substantially related to these legitimate government interests, and only minimally 

burdens political committee speech, it satisfies the intermediate level of constitutional scrutiny to 

which FECA’s disclosure and disclaimer rules are to be subjected. 

b. The Other Preliminary Injunction Factors 

The court need not address the other preliminary injunction factors in light of PAG’s 

failure to demonstrate likelihood of success on the merits of its claims. See Comm. of 100 on the 

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Fed. City v. Foxx, 2015 WL 3377835, at *5 (D.D.C. May 26, 2015); Winstead v. EMC Mortgage 

Corp., 621 F. Supp. 2d 1, 4-5 (D.D.C. 2009); see also Mot. at 31-32 (citing Joelner v. Vill. of 

Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (“When a party seeks a preliminary 

injunction on the basis of a potential First Amendment violation, the likelihood of success on the 

merits will often be the determinative factor.”); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 

483, 488 (2d Cir. 2013) (“Consideration of the merits is virtually indispensable in the First 

Amendment context, where the likelihood of success on the merits is the dominant, if not the 

dispositive, factor.”)). 

Nevertheless, the court finds it worthwhile to briefly address the three remaining factors, 

as they reinforce its finding that the entry of a preliminary injunction is not warranted here. 

i. The Threat of Irreparable Harm 

PAG’s irreparable harm argument relies exclusively on its First Amendment claims, and 

essentially presupposes a finding that it is likely to succeed on the merits of those claims. (Mot. 

at 31-33; see also Opp. at 40 (“PAG simply repeats its merits arguments and assumes that 

irreparable harm flows from its contentions that its First Amendment rights have been 

infringed.”)). Specifically, PAG argues that it faces irreparable harm “each and every day that it 

is threatened by the FEC’s unconstitutional speech ban.” (Mot. at 33). Because this court has 

found that PAG is not likely to succeed on the merits of its First Amendment claims, however, it 

follows that PAG has not “demonstrate[d] that [its] ‘First Amendment interests [are] either 

threatened or in fact being impaired.’” (Id. at 32) (quoting Wagner v. Taylor, 836 F.2d 566, 576 

(D.C. Cir. 1987)). 

Additionally, because PAG has not demonstrated that that it will be prevented from 

speaking, as opposed to merely having one aspect of its speech – the referencing of candidate 

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names – relegated from the titles of its special project communications to the bodies of those 

communications, it has not demonstrated that it will be irreparably harmed absent the issuance of 

a preliminary injunction. See Christian Knights, 919 F.2d at 149-50 (finding that the issuance of 

a parade permit for a shorter route than requested “does not constitute irreparable harm for the 

appellees” because appellees would still “have the opportunity to convey their message along the 

approved route,” and distinguishing Elrod on the ground that, in that case, “petitioners’ First 

Amendment rights were totally denied by the disputed Government action”). 

Based on these findings, PAG has failed to establish the irreparable harm prong of the 

preliminary injunction analysis. 

ii. The Balance of Equities 

PAG argues that the balance of equities favors its claim, since, while it “seeks to exercise 

its First Amendment[]” rights, the FEC “has no interest in the enforcement of an unconstitutional 

law.” (Mot. at 33). Again, PAG attempts here to bootstrap its balance of equities argument to its 

First Amendment arguments, which the court has already found unlikely to succeed. 

The court finds that the “presumption of constitutionality which attaches to every Act of 

Congress” is “an equity to be considered in favor of [the government] in balancing hardships,” 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984), and that whenever 

the government “is enjoined by a court from effectuating statutes enacted by representatives of 

its people, it suffers a form of irreparable injury.” See New Motor Vehicle Bd. of Cal. v. Orrin 

W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). 

In light of these findings, the court holds that PAG has not established the balance of 

equities prong of the preliminary injunction analysis. 

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iii. The Public Interest 

As to the public interest prong, PAG again relies on a presumption that the Name 

Identification Requirement violates its First Amendment rights, arguing that securing First 

Amendment rights and stopping the unconstitutional application of a statute are in the public 

interest. (Mot. at 24). PAG also claims that “[t]here can be no public interest in prohibiting 

certain speakers from referencing candidates for public office in website URLs or on social 

media platforms in a manner that expresses support for those candidates, and where no 

solicitation of funds is involved.” (Id.). 

The FEC argues that it is in the public interest for courts to carry out the will of Congress 

and for an agency to implement properly the statutes it administers, and that enjoining it from 

performing its statutory duty would constitute a substantial public injury. (Opp. at 42-43) (citing 

Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000); Christian Civic League of 

Me., Inc. v. FEC, 433 F. Supp. 2d 81, 90 (D.D.C. 2006) (per curiam)). The FEC also argues that 

upsetting its regulatory framework with the upcoming Presidential election just over the horizon, 

and after the Name Identification Requirement “has been law for twenty-one years,” would “‘be 

imprudent, to say the least, and certainly not in the public interest.’” (Id.) (quoting Rufer v. Fed. 

Election Comm’n, 64 F. Supp. 3d 195, 206 (D.D.C. 2014)). 

Having determined that PAG is not likely to succeed on the merits of its First 

Amendment claims and having credited the aforementioned FEC arguments, the court holds that 

PAG has failed to satisfy the public interest prong of the preliminary injunction analysis. 

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IV. CONCLUSION 

For the foregoing reasons, PAG’s Motion for Preliminary Injunction is denied. 

An appropriate Order accompanies this Memorandum Opinion. 

Date: September 24, 2015 

Tanya S. Chutkan 

TANYA S. CHUTKAN 

United States District Judge 

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