UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP HILLARY PAC, et al., ) 

 ) Civ. No. 1:15-1208 (GBL-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) OPPOSITION 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 

Daniel A. Petalas* 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson* 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley* 

Acting Associate General Counsel 

kdeeley@fec.gov 

November 3, 2015 

Erin Chlopak* 

Acting Assistant General Counsel 

echlopak@fec.gov 

Steve Hajjar* 

Attorney 

shajjar@fec.gov 

Esther D. Gyory (VA Bar #76826) 

Attorney 

egyory@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

Washington, DC 20463 

(202) 694-1650 

*Admitted pro hac vice

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TABLE OF CONTENTS 

 Page 

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

I. RELEVANT STATUTORY AND REGULATORY PROVISIONS ...........................2 

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

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

II. PLAINTIFFS .................................................................................................................6 

ARGUMENT .............................................................................................................................7 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES PLAINTIFFS TO MEET A HEAVY BURDEN...........................7 

II. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS ..........................9 

A. The Name Identification Requirement Is an Important Part of FECA’s 

Disclosure Regime and Is Facially Constitutional .............................................9 

1. The Name Identification Requirement Is a Disclosure Rule .......................9 

2. The Name Identification Requirement Advances the Government’s 

Important Interests in Limiting Confusion, Fraud, and Abuse ..................10 

B. The Name Identification Requirement Is Not Overbroad ................................16 

C. FECA’s Name Identification Requirement Is Not Unconstitutionally 

Vague ...............................................................................................................17 

D. The Name Identification Requirement Is Not a Content-Based Restriction ....19 

E. The Name Identification Requirement Is Constitutional As Applied ..............23 

III. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE HARM .......................25 

IV. THE REQUESTED RELIEF WOULD HARM THE PUBLIC INTEREST ..............28 

CONCLUSION ........................................................................................................................30 

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TABLE OF AUTHORITIES 

Cases 

Anderson v. Celebrezze, 460 U.S. 780 (1983) .........................................................................23 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .........................................................................16 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .................................................10, 11, 21, 23 

Burson v. Freeman, 504 U.S. 191 (1992) ................................................................................23 

Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010) ..................................27 

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004) ...................26 

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................10, 11, 12, 20 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................9, 11, 21, 23 

Cornwell v. Sachs, 99 F. Supp. 2d 695 (E.D. Va. 2000) ..........................................................8

Dewhurst v. Century Aluminum Co., 649 F.3d 287 (4th Cir. 2011) ..........................................8 

Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991) .........................8 

Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................27, 28 

Galliano v. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) ................................................9

Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074 (4th Cir. 2006) .............................................17 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................17 

Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................................18 

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .................................................18, 19 

Holmes v. FEC, 71 F. Supp. 3d 178 (D.D.C. 2014) ................................................................29 

Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010)..............................................16 

Legend Night Club v. Miller, 637 F.3d 294 (4th Cir. 2011) ....................................................16 

McConnell v. FEC, 540 U.S. 93 (2003) .......................................................................10, 12, 20

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McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ..............................................................10, 11, 23

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ..........................29 

Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) .............27 

Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation, 

715 F.3d 1268 (11th Cir. 2013) ...................................................................................27 

Purcell v. Gonzalez, 549 U.S. 1 (2006) .....................................................................................8 

Pursuing America’s Greatness v. FEC, __ F. Supp. 3d __, No. 15-1217, 

2015 WL 5675428 (D.D.C. Sept. 24, 2015) ................................................5, 10, 14, 24 

 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), 

cert. denied, 133 S. Ct. 841 (2013) ..............................................................................11 

Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009), vacated by 130 S. Ct. 

2371 (2010), reinstated in relevant part by 607 F.3d 355 (4th Cir. 2010) ..............8, 28 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ...............................................................22, 23 

Republican National Committee v. FEC, 76 F.3d 400 (D.C. Cir. 1996) ...........................20, 21 

Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) .........................................................................27 

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) ....................................................29 

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ..............................................................28, 29 

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................25 

Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) ............................................25 

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007) ............................................................................28 

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10 (D.C. Cir. 2014) ...........25 

Tenacre Found. v. INS, 78 F.3d 693 (D.C. Cir. 1996) .............................................................26 

Tiffany v. Forbes Custom Boats, Inc., 959 F.2d 232 (table), 

No. 91-3001 (4th Cir. Apr. 6, 1992) ..............................................................................8 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) ............................................................8 

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United States v. Chappell, 691 F.3d 388 (4th Cir. 2012)...........................................................9 

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................18 

United States v. Whorley, 550 F.3d 326 (4th Cir. 2008) ..........................................................18 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ......................................................................8 

Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) .........................30 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) ..........................................................................21 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ..............................29, 30 

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .........................................................20, 21 

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ......................9, 16 

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ............................................................29 

Winter v. NRDC, 555 U.S. 7 (2008) ..............................................................................7, 25, 29 

Statutes and Regulations 

52 U.S.C. §§ 30101-30146 ........................................................................................................2 

52 U.S.C. § 30101(6) .................................................................................................................2 

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

52 U.S.C. § 30102(e)(4) ...............................................................................................3, 4, 6, 21 

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

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

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

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

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

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

11 C.F.R. § 102.14 .....................................................................................................................5 

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11 C.F.R. § 102.14(a).................................................................................................................3 

11 C.F.R. § 102.14(b) ........................................................................................................3, 4, 6 

11 C.F.R. § 102.14(b)(3) ..........................................................................................5, 12, 13, 24 

11 C.F.R. § 104.7(b)(2) ......................................................................................................20, 21 

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

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

Miscellaneous

Federal Election Campaign Act Amendments, 1979: Hearing Before the Senate Comm. on 

 Rules and Administration, 96th Cong., 1st Sess. 23 (1979) .........................................3 

FEC Advisory Op. 1995-09 (NewtWatch PAC), 1995 WL 247474 (Apr. 21, 1995) .....4, 5, 24 

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

 2015 WL 4480266 (July 16, 2015) ....................................................................5, 11, 24 

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

Committees, 57 Fed. Reg. 31,424 (July 15, 1992) ..................................................... 3-4 

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

Committees, 59 Fed. Reg. 17,267 (Apr. 12, 1994) ...........................................4, 17, 22 

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Plaintiffs’ claims do not warrant the extraordinary remedy of a preliminary injunction. 

For decades, the Federal Election Campaign Act (“FECA” or “Act”) and Federal Election 

Commission (“FEC”) regulations have required a federal candidate’s official committee to 

include in the committee name the name of the candidate who authorized it, and, 

correspondingly, prohibited independent committees not authorized by any candidate from using 

any candidate’s name in their official, registered committee names. Plaintiffs are unlikely to 

succeed on the merits of their facial and as applied constitutional challenges to this 

commonsense name identification requirement, which is substantially related to the 

government’s important interests in limiting confusion, fraud, and abuse in federal elections. 

The bright-line requirement is straightforward and precise. It is an integral part of 

FECA’s disclosure regime, enabling a contributor to learn at a glance whether a particular 

political committee is an authorized vehicle of a candidate. It is neither vague, overbroad, nor 

restrictive of the content of plaintiffs’ or anyone else’s speech, as demonstrated by the record in 

this preliminary proceeding. The real world examples cited in this memorandum also underscore 

how the FEC has interpreted the statutory requirement in a narrowly tailored way, advancing the 

government’s important disclosure interests while minimizing burdens. 

Plaintiffs have made no real effort to demonstrate any irreparable harm and instead offer 

tendentious overstatements of the efforts they would have to undertake to comply with a 

longstanding provision they “intentionally” defied. These self-inflicted injuries are not the type 

of irreparable harm that warrants the extraordinary relief of a preliminary injunction, particularly 

when compared to the public’s interest in a presumptively constitutional statute that furthers the 

government’s important and compelling interests in limiting election-related fraud, abuse, and 

confusion. Plaintiffs’ motion should be denied. 

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BACKGROUND 

I. RELEVANT STATUTORY AND REGULATORY PROVISIONS 

A. The Federal Election Commission

The FEC is the independent federal agency with exclusive jurisdiction to administer, 

interpret, and civilly enforce FECA, 52 U.S.C. §§ 30101-30146.1 The Commission is 

specifically empowered to “formulate policy” with respect to the Act, 52 U.S.C. § 30106(b)(1); 

“to make, amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] 

Act,” id. § 30107(a)(8); to issue advisory opinions construing FECA, id. §§ 30107(a)(7), 30108; 

and to civilly enforce the Act, id. § 30109. By statute, no more than three of the FEC’s six 

Commissioners may be members of the same political party, and at least four votes are required 

for certain Commission actions, including, inter alia, rendering advisory opinions and 

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

B. FECA’s Name Identification Requirement

FECA has for decades required political 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 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). 

                                                           

1

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

United States Code were recodified in Title 52. 

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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. 

Congress added FECA’s 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). Its 

wording has remained unchanged for the past 35 years. 

Congress enacted the provision due to a problem identified by the FEC from experience. 

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.” 

Federal Election Campaign Act Amendments, 1979: Hearing Before the Senate Comm. on Rules 

and Administration, 96th Cong., 1st Sess. 23 (1979) (FEC’s Legislative Recommendations) 

(Appendix to Statement of Robert Tiernan, Chairman of the FEC). “[T]o avoid confusion,” the 

FEC 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.” Id.

Following passage of the 1979 Amendments to FECA, the FEC implemented the name 

identification requirement in a regulation largely echoing the statutory provision, but carving out 

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). In 1992, the 

Commission revised subsection 102.14(a) of the regulation to provide that “‘name’” for purposes 

of the regulation “include[s] ‘any name under which a committee conducts activities, such as 

solicitations or other communications, including a special project name or other designation.’” 

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

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Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992). In 1994, the Commission added 

another exception to subsection 102.14(b), allowing unauthorized committees more flexibility to 

use the name of a candidate in the title of a special project name or other communication “if the 

title clearly and unambiguously shows opposition to the named candidate.” FEC, Special 

Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 59 Fed. 

Reg. 17,267, 17,269 (Apr. 12, 1994) (“1994 Rule”); 11 C.F.R. § 102.14(b)(3). 

Accordingly, while unauthorized committees like Stop Hillary PAC “shall not include the 

name of any candidate in its name” 52 U.S.C. § 30102(e)(4), such committees are free to express 

their opposition to any candidate in the title of any special projects the committees operate if 

such titles unambiguously show opposition to the named candidate. And all “[u]nauthorized 

committees remain free to discuss candidates throughout the[ir] 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.” 1994 Rule, 59 Fed. Reg. at 17,268-69. 

Subsequent applications by the Commission of the name identification requirement 

illustrate the substantial flexibility unauthorized committees have to discuss candidates, 

including in their special projects and communications. In 1995, in response to an advisory 

opinion request made by a political committee named “NewtWatch PAC,” the Commission 

explained that a “committee’s online activities are projects that fall within the scope of section 

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

1995) (“NewtWatch Advisory Op.”). The Commission explained that although “NewtWatch” 

could not be used as part of the committee’s registered name because the candidate’s first name 

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

regulations do not prohibit the Committee from using the name ‘NewtWatch’ as a project name.” 

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Id. The committee had used NewtWatch in the name of the uniform resource locator (“URL”) 

for its website. Id. at *1. Applying the new exception it had created in the 1994 revision of the 

regulation, 11 C.F.R. § 102.14(b)(3), the Commission determined that “[t]he use of the term 

‘watch,’ when coupled with a candidate’s name, conveys clear and unambiguous opposition to 

the candidate being watched.” 1995 WL 247474, at *5. For this reason, NewtWatch was 

acceptable as a project name, including as the URL of the project’s website. Id. 

By contrast, in a recent advisory opinion, the FEC concluded that an unauthorized 

political committee was not permitted to use the name of 2016 presidential candidate Bernie 

Sanders in the name of its website and social media pages that did not clearly express opposition 

to Sanders. FEC Advisory Op. 2015-04 (Collective Actions PAC), 2015 WL 4480266, at *1 

(July 16, 2015) (“CAP Advisory Op.”). The FEC noted that, “[b]ecause the names of the 

Committee’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 *3. The Commission 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 

Just last month, a district court in the District of Columbia held that another unauthorized 

political committee was unlikely to succeed on the merits of a similar constitutional challenge to 

the FEC’s name identification regulation, which the court recognized is an integral part of 

FECA’s disclosure regime. Pursuing America’s Greatness v FEC, __ F. Supp. 3d __, 2015 WL 

5675428, at *11-12 (D.D.C. Sept. 24, 2015) (“PAG”). The court explained that the regulation 

“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 

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concerning publicly disseminated political committee communications.” Id. at *12 (emphasis 

added). 

II. PLAINTIFFS

Plaintiffs are Stop Hillary PAC, an unauthorized political committee with an Alexandria, 

Virginia address, and its treasurer/counsel/member/supporter Dan Backer. (Verified Compl. for 

Declaratory and Injunctive Relief (Docket No. 1) (“Compl.”) ¶¶ 4-5; Pl.’s Mem. of Law in Supp. 

of Pl.’s Mot. for Prelim. Inj. (“Mem.”), Backer Decl. ¶ 3 (Docket No. 3-4).) 

Backer has been involved in the operation of approximately 40 political committees over 

the past five years, many of which are groups that raise money by “claiming to represent” certain 

candidates or claiming that they will “Stop” other candidates. See Kenneth P. Vogel, The Rise of 

‘Scam PACs’, Politico (Jan. 26, 2015, 5:35 AM), http://www.politico.com/story/2015/01/superpac-scams-114581 (“Scam PACs”), attached as Exhibit A to the Declaration of Jayci A. Sadio, 

Nov. 3, 2015. Backer seeks to participate in the formation and operation of other “political 

committees that include the names of candidates in their names.” (Compl. ¶ 27.) 

Plaintiffs assert facial First Amendment challenges to the disclosure regime regulating 

the names identifying authorized and unauthorized political committees. Specifically, plaintiffs 

challenge the statutory requirement, 52 U.S.C. § 30102(e)(4), Compl. ¶¶ 28-41, and part of the 

FEC’s regulation implementing section 30102(e)(4), 11 C.F.R. § 102.14(b) (Compl. ¶¶ 61-62).2

Backer registered Stop Hillary PAC with the FEC in May 2013. (Backer Decl. ¶ 4.) The 

committee’s website states that its mission is to “ensure Hillary Clinton never becomes President 

of the United States.” (Id. ¶ 6; Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Prelim. Inj. (Docket 

No. 3-1) (“Mem.”) at 2.) In addition to its website, the committee also operates an email 

                                                           

2

 The complaint also asserts Fifth Amendment equal protection claims (Compl. ¶¶ 63-70), 

but plaintiffs’ preliminary-injunction motion does not address such claims. 

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account, Facebook page, and Twitter handle that include the committee’s “Stop Hillary” slogan. 

(Backer Decl. ¶ 8; Mem. at 2-3.) At the time Backer registered the committee with the FEC, he 

“was aware” of the Act’s “prohibition on including candidate names in the names of PACs,” and 

“believed that Hillary Rodham Clinton was certain to seek the 2016 Democratic Party 

nomination for the office of President.” (Compl. ¶ 13.) Backer “intentionally ... failed to 

comply” with FECA’s prohibition on the use of candidate names and refuses to change the 

committee’s name. (Id. ¶¶ 13, 17.) 

In addition to their facial claims, plaintiffs also challenge the name identification 

requirements as applied to political committees like Stop Hillary PAC with names that 

unambiguously oppose a federal candidate (id. ¶¶ 50-53, 61-62), as well as such committees’ 

treasurers (id. ¶¶ 54-57). 

ARGUMENT 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES PLAINTIFFS TO MEET A HEAVY BURDEN

Plaintiffs’ request for a preliminary injunction should be denied. The name identification 

requirement is an integral part of FECA’s disclosure regime that is substantially related to 

important government interests in limiting confusion, fraud, and abuse, and has been refined and 

construed by the Commission in a manner that is narrowly tailored to address the government’s 

compelling interests. Moreover, plaintiffs’ claimed injuries are self-inflicted, do not demonstrate 

irreparable harm, and do not meet the other requirements for the drastic relief it seeks. 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 

v. NRDC, 555 U.S. 7, 24 (2008). A party “seeking a preliminary injunction must establish that 

he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 

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public interest.” Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). In this 

Circuit, each of the four requirements for a preliminary injunction “must be satisfied as 

articulated.” Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009) 

(“RTAO”), vacated by 130 S. Ct. 2371 (2010), reinstated in relevant part by 607 F.3d 355 (4th 

Cir. 2010). And plaintiffs bear the burden of proving each factor. See Direx Israel, Ltd. v. 

Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). 

The purpose of a preliminary injunction “is merely to preserve the relative positions of 

the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 

395 (1981). Plaintiffs misapprehend the status quo (Mem. at 8) as their continued flagrant 

violation of the law. In fact, plaintiffs seek not to preserve the status quo but rather to “upend” it 

by eviscerating the longstanding rules governing political committees’ use of candidate names. 

Cf. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) (Rehnquist, C.J., in chambers) 

(refusing to enjoin enforcement of congressional Act despite First Amendment claim because 

“[b]y seeking an injunction, applicants request that I issue an order altering the legal status 

quo”). Such injunctions are “‘disfavored’” and require the movant to “‘satisfy an even heavier 

burden of showing that the four factors listed above weigh heavily and compellingly in movant’s 

favor.’” Cornwell v. Sachs, 99 F. Supp. 2d 695, 704 (E.D. Va. 2000) (quoting Tiffany v. Forbes 

Custom Boats, Inc., 959 F.2d 232 (table), No. 91-3001 (4th Cir. Apr. 6, 1992)). 

“[C]onsiderations specific to election cases” weigh even further against the issuance of 

injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (vacating lower court’s 

injunction against enforcement of election statute and noting potential for pre-election 

injunctions to cause confusion among voting public). Plaintiffs cannot prevail on their motion 

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absent a clear showing in their favor sufficient to justify bringing to a halt the enforcement of a 

two-decades-old federal election requirement as the primary election season fast approaches.

II. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS 

A. The Name Identification Requirement Is an Important Part of FECA’s 

Disclosure Regime and Is Facially Constitutional 

To prevail on their facial challenge, plaintiffs must show that the name identification 

requirement, in all of its applications, lacks a “legitimate sweep.” Wash. State Grange v. Wash. 

State Republican Party, 552 U.S. 442, 449 (2008) (“[A] facial challenge must fail where the 

statute has a plainly legitimate sweep.” (internal quotation marks omitted)); United States v. 

Chappell, 691 F.3d 388, 392 (4th Cir. 2012) (“As the Supreme Court has repeated, facial 

invalidation of legislation is disfavored.”). 

1. The Name Identification Requirement Is a Disclosure Rule 

The name identification requirement is an integral part of FECA’s disclosure regime. As 

the D.C. Circuit has explained, section 30102(e)(4) “require[s] political bodies to disclose the 

identity of persons associated with them.” Common Cause v. FEC, 842 F.2d 436, 442 (D.C. Cir. 

1988) (emphasis added); Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1367-68 (D.C. Cir. 1988) 

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

“extensive disclosure requirements”). 

The requirement enables a contributor to learn “by a glance” whether a particular 

political committee “is an authorized or unauthorized vehicle of the candidate.” Common Cause, 

842 F.2d at 442. Recognizability at a glance is similar to the reason that players on opposing 

sports teams wear uniforms with contrasting colors. The name identification requirement 

“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.” Id.

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at 442; cf. Citizens United v. FEC, 558 U.S. 310, 368 (2010) (explaining that other disclaimer 

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

about the person or group who is speaking” about a candidate and “avoid confusion by making 

clear that the ads are not funded by a candidate” (quoting Buckley v. Valeo, 424 U.S. 1, 76 

(1976) (per curiam)). 

As another district court thus recently observed, the name identification requirement is 

“part and parcel of FECA’s disclosure regime.” PAG, 2015 WL 5675428, at *11. The 

requirement does not prohibit speech; it simply requires political committees to disclose their 

“candidate authorization status . . . in a particular place, just as do other disclosure and disclaimer 

regulations concerning publicly disseminated political committee communications.” 

2. The Name Identification Requirement Advances the Government’s 

Important Interests in Limiting Confusion, Fraud, and Abuse 

Like FECA’s other disclosure rules, the name identification requirement is reviewed for 

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

and a ‘sufficiently important’ governmental interest.” Citizens United, 558 U.S. at 366-67 

(quoting Buckley, 424 U.S. at 64, 66; McConnell v. FEC, 540 U.S. 93, 231-32 (2003), overruled 

in part by Citizens United, 558 U.S. 310); PAG, 2015 WL 5675428, at *11 (applying exacting 

scrutiny). The name identification requirement easily satisfies this intermediate level of 

constitutional review. 

As explained in a number of binding precedents, FECA’s disclosure provisions further 

important interests. In McCutcheon v. FEC, the Supreme Court’s plurality opinion generally 

explained that “[d]isclosure requirements are in part justified based on a governmental interest in 

provid[ing] the electorate with information about the sources of election-related spending.” 134 

S. Ct. 1434, 1459 (2014) (internal quotation marks omitted). “With modern technology, 

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disclosure now offers a particularly effective means of arming the voting public with 

information.” Id. at 1460. In Citizens United, eight Justices agreed that the challenged 

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

who is speaking about a candidate shortly before an election,” even when such speech lacks 

express candidate advocacy. 558 U.S. at 368-69; see also Buckley, 424 U.S. at 68 (holding that 

the Act’s disclosure requirements for political committees “directly serve substantial 

governmental interests”). And in Real Truth About Abortion, Inc. v. FEC (“RTAA”), the Fourth 

Circuit catalogued the Supreme Court’s “routine[]” recognition that disclosure requirements are 

“the least restrictive means of curbing the evils of campaign ignorance and corruption that 

Congress found to exist” and are constitutionally permissible for a wide variety of speech. 681 

F.3d 544, 549, 553 (4th Cir. 2012) (collecting cases), cert. denied, 133 S. Ct. 841 (2013). 

The statutory and regulatory components of the name identification requirement work in 

tandem to enable contributors and others to learn “by a glance” whether a particular political 

committee “is an authorized or unauthorized vehicle of the candidate.” Common Cause, 842 

F.2d at 442. Without both the positive requirement of including candidate names in authorized 

committee names, and the corresponding restriction for unauthorized committees, a candidate’s 

authorized committee could be lost in a sea of other groups including the candidate’s name. The 

rules mandate a floor level of disclosure about the relationship, or lack thereof, between the 

speaker and any candidate mentioned by the speaker in order to “limit ‘the potential for 

confusion.’” CAP Advisory Op., 2015 WL 4480266, at *2. Plaintiffs challenge only whether 

the interest in avoiding confusion is served in the context of groups with names of unambiguous 

opposition (addressed infra pp. 23-25), and fail to even allege that the rules do not serve their 

intended purpose in the majority of applications. See infra p. 17. 

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Moreover, the name identification requirement leaves unauthorized committees entirely 

free to discuss candidates throughout their websites, solicitations, and other communications, and 

even to establish special projects whose titles include candidate names “if the title clearly and 

unambiguously shows opposition to the named candidate,” 11 C.F.R. § 102.14(b)(3). The 

requirement thus “‘do[es] not prevent anyone from speaking,’” Citizens United, 558 U.S. at 366 

(quoting McConnell, 540 U.S. at 201), and plaintiffs easily could comply with it, as Backer has 

done on behalf of other committees that advocate for or against candidates, by omitting the name 

of a candidate from the committee’s registered name, while continuing to use the “Stop Hillary” 

logo in its website, social media pages, and other communications.3

 Indeed, the Commission’s 

                                                           

3

 For example, the Tea Party Leadership Fund PAC, for which Backer serves as treasurer 

and counsel, operates a website entitled “Remove John Boehner,” at the URL, 

http://primaryboehner.com, as well as a website entitled “BOOT BOEHNER,” at the URL, 

http://www.theteapartyleadershipfund.com/boot-boehner. (See Sadio Decl. Exhs. I & J.) The 

same committee has a Facebook application entitled “DRAFT SARAH PALIN,” 

https://www.facebook.com/TheTeaPartyLeadershipFund/app_285790518222439 (Sadio Decl. 

Exh. K). The Constitutional Rights PAC, for which Backer serves as treasurer, has a website 

entitled “END JEB 2016,” at the URL, http://endjeb2016.com/ (Sadio Decl. Exh. L). 

Conservative Action Fund, for which Backer also serves as treasurer, operates a website that 

unambiguously opposes the same candidate at 

http://www.conservativeactionfund.com/stopbush/1/ (Sadio Decl. Exh. M), and has sent 

numerous emails asking recipients to “Stand with Governor Mike Pence” or to draft Allen West 

or Condoleeza Rice. Matt Lewis, The Conservative PACs Trolling for Your Money, Wall Street 

J. (May 7, 2015, 7:18), http://www.wsj.com/articles/the-conservative-pacs-trolling-for-yourmoney-1431040712 (“PACs Trolling for Your Money”) (Sadio Decl. Exh. C). In 2014, 

Conservative Action Fund raised more than $240,000. Id. In addition, several unauthorized 

committees that comply with the name identification requirement operate websites whose titles 

clearly and unambiguously oppose Hillary Clinton’s candidacy. America Rising PAC operates a 

website that raises money “to ensure we never see another Clinton administration.” See

https://www.stophillary2016.org/donations/home/ (Sadio Decl. Exh. N). The Republican 

National Committee itself also operates an unambiguously anti-Clinton website at 

http://poorhillaryclinton.com/ (Sadio Decl. Exh. O). Moreover, the unauthorized ActBlue 

committee has a fundraising page where it asks viewers to “Contribute Now to Stop Paul Ryan, 

https://secure.actblue.com/contribute/page/stoppaulryan (Sadio Decl. Exh. P), and the Let’s Fire 

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narrowly tailored interpretive regulation targets the more acute situations of potential confusion 

and fraud, while construing the statutory name requirement to allow groups and individuals like 

plaintiffs here to include candidate names in special project titles that are unambiguously in 

opposition to the named candidate. 11 C.F.R. § 102.14(b)(3). 

Invalidating the requirement, as plaintiffs seek to do, would enable authorized 

committees to adopt names that do not identify the candidate on whose behalf the committee 

acts, while also permitting unauthorized committees to adopt misleading committee and special 

project names that suggest such committees are acting on behalf of a candidate. In other words, 

the relief plaintiffs seek would facilitate the very concerns that Congress and the FEC sought to 

address in establishing the name identification requirement in the first place. 

Recent examples confirm that such concerns are justified. Earlier this year, 

plaintiff/counsel Backer changed the registered name of another unauthorized committee he 

counsels that had originally been named “Stand With Rand.” Byron Tau, PAC Backing Rand 

Paul Changes Its Name to Avoid Tangle With Election Rules, Wall Street J. – Wash. Wire (Apr. 

9, 2015, 11:23 AM), http://blogs.wsj.com/washwire/2015/04/09/pac-backing-rand-paul-changesits-name-to-avoid-tangle-with-election-rules/ (Sadio Decl. Exh. D). In explaining the decision to 

change the committee’s registered name to “SWR PAC,” Backer reportedly admitted that “‘there 

is a legitimate basis for confusion in the name, and the client doesn’t want to interfere with Rand 

Paul’s messaging, so they decided a change was appropriate.’” Id. 

Also this year, the Center for Public Integrity reported “numerous instances” of donors 

“who believed they were giving to the Sanders campaign” when they actually contributed to an 

                                                                                                                                                                                               

Terrible Radicals Undermining Middle-Class People PAC operates a website entitled “LET’S 

FIRE DONALD TRUMP,” at http://letsfiretrump.com/, which it operates as a special project of 

the committee (Sadio Decl. Exh. Q). 

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unauthorized political committee that operates a website entitled “BET ON BERNIE!” at the 

URLs http://BetonBernie.com and http://pledgesanders2016.com. Colby Itkowitz, Report: Actor 

Daniel Craig, A.K.A. James Bond, Donated to Bernie Sanders’ Super PAC. Where Did His 

Money Go?, Wash. Post (Sept. 10, 2015), 

https://www.washingtonpost.com/news/powerpost/wp/2015/09/10/report-actor-daniel-craig-a-ka-james-bond-donated-to-bernie-sanders-super-pac-or-a-fraud/ (Sadio Decl. Exh. E). The 

committee exacerbated the confusion caused by its websites by initially naming itself “Ready for 

Bernie Sanders 2016,” and “Bet on Bernie 2016,” before modifying its registered name to 

Americans Socially United. Michael Beckel, Did This Shady Pro-Bernie Sanders Super PAC 

Just Dupe James Bond?, Ctr. for Public Integrity (Sept. 17, 2015, 6:50 PM), 

http://www.publicintegrity.org/2015/09/10/17947/did-shady-pro-bernie-sanders-super-pac-justdupe-james-bond (Sadio Decl. Exh. F) (“Several Sanders supporters confirmed they donated to 

Americans Socially United thinking the money was going to Sanders’ campaign.”). 

The potential for confusion is also clear from the preliminary record in the pending PAG 

case. The plaintiff there seeks to use candidate Mike Huckabee’s name in the title and URLs of 

its website and social media pages, in violation of FEC regulations that prohibit unauthorized 

committees from using a candidate’s name in the title of a special project, unless the title clearly 

demonstrates opposition to the candidate. PAG, 2015 WL 5675428, at *2. The district court 

observed that “hundreds of comments on the [“I Like Mike Huckabee” Facebook page] that 

appear to be directed to Governor Huckabee himself” illustrated “the potential for confusion” 

when an unauthorized committee can hold itself out as an agent of the candidate. Id. at *9. 

Notably, even under the existing disclosure regime, significant concerns about groups 

purporting to speak and solicit money on behalf of and in opposition to named candidates — 

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including many of Backers’ groups — are well documented. See, e.g., Vogel, Scam PACs

(reporting on growing concerns that such groups raise funds with candidate-centered pitches but 

spend little on the promised advocacy or candidate contributions)4; Eric Lipton and Jennifer 

Steinhauer, ‘Fire Paul Ryan’? Rebel PACs Hit Republicans, and It Pays, N.Y. Times (Oct. 23, 

2015), http://www.nytimes.com/2015/10/24/us/politics/conservative-pacs-turn-attack-on-gopleaders-into-fund-raising-tool.html (summarizing similar criticism and analyzing the spending of 

PACs Backer helps run) (Sadio Decl. Exh. B); Betsy Woodruff and David M. Drucker, Why 

These Republicans Weren’t Happy With a Plan to Draft Sarah Palin, Wash. Examiner (June 9, 

2014, 4:45 PM), http://www.washingtonexaminer.com/why-these-republicans-werent-happywith-a-plan-to-draft-sarah-palin/article/2549494 (Sadio Decl. Exh. G) (suggesting that an 

unauthorized political committee’s “draft Palin” campaign may reflect “a growing trend of 

shadowy political action committees that . . . often spend minimally on the campaigns and 

candidates they purport to champion, while succeeding in enriching the PAC and the organizers 

and consultants behind it”); Factual and Legal Analysis, In re Patriot Super PAC, et al., MUR 

6643 (Mar. 7, 2014), http://eqs.fec.gov/eqsdocsMUR/14044352360.pdf (Sadio Decl. Exh. U) 

(describing a group’s use of a candidate’s “likeness to raise funds independently to support his 

candidacy” and spending of “very little of the money it raised to support” the candidate, and 

finding that the conduct did not constitute fraudulent misrepresentation); Lewis, PACs Trolling 

for Your Money (discussing rise of “scam PACs” that “spend[] far more on the professional 

political operatives who manage them than on the candidates who well-meaning donors give 

money to support”). 

                                                           

4

 See id. (finding that fifteen of Backer’s groups had spent “less than 12 percent of their 

total fundraising haul” on ads and contributions in 2014).

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Plaintiffs thus plainly cannot meet the exceedingly high burden of showing that the name 

identification requirement, in all of its applications, lacks a “legitimate sweep.” Wash. State 

Grange, 552 U.S. 442 at 449. The name identification requirement is a bright-line rule that 

advances the government’s important disclosure interests in a minimally burdensome manner, as 

Backer’s extensive experience complying with the requirement confirms, see supra n.3. The 

relief plaintiffs seek would make it more difficult for contributors to distinguish between 

authorized and unauthorized political committees, while making it easier for unauthorized 

political committees to use candidates’ names in manners that mislead supporters of such 

candidate and misdirect contributions intended for the candidates. The examples of confusion 

under existing rules documented above demonstrate the confusion that would dramatically 

increase if the requested relief is granted. Both the statutory and regulatory components of the 

name identification requirement have a plainly legitimate sweep and the provisions thus easily 

survive plaintiffs’ facial challenges. 

B. The Name Identification Requirement Is Not Overbroad 

 Plaintiffs cannot meet their heavy burden to demonstrate that the name identification 

requirement is facially overbroad. A law cannot be found facially invalid on overbreadth 

grounds unless “its overbreadth is ‘substantial . . . judged in relation to the statute’s plainly 

legitimate sweep.’” Imaginary Images, Inc. v. Evans, 612 F.3d 736, 751 (4th Cir. 2010) (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); Legend Night Club v. Miller, 637 F.3d 294, 

297 (4th Cir. 2011) (“[T]he Supreme Court has counseled lower courts to declare statutes 

facially overbroad ‘sparingly and only as a last resort.’”) (quoting Broadrick, 413 U.S. at 613). 

As explained supra pp. 12-13 & n.3, the name identification requirement is a minimally 

burdensome, bright-line requirement that facilitates quick and easy distinctions between an 

authorized committee that acts on behalf of a candidate and an unauthorized committee that does 

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not. It thus serves the government’s important and compelling interests in limiting fraud, abuse, 

and confusion, while instances of fraud, abuse, and confusion would greatly increase in the 

absence of the requirement. See supra pp. 13-15. 

Importantly, even if plaintiffs are correct that there is less potential for fraud, abuse, and 

confusion in the context of certain unauthorized committees with names that unambiguously 

indicate opposition to a named candidate, cf. 1994 Rule, 59 Fed. Reg. at 17,269, plaintiffs 

apparently do not dispute that the name identification requirement advances the government’s 

important interests in the many other contexts in which the requirement applies. The other 

contexts include all authorized political committees and all unauthorized political committees 

whose names do not unambiguously indicate opposition to a federal candidate. Because the 

name identification requirement’s legitimate sweep is substantial and undisputed, plaintiffs’ 

facial overbreadth claim is plainly unavailing. 

C. FECA’s Name Identification Requirement Is Not Unconstitutionally Vague 

 Plaintiffs’ vagueness arguments fair no better. A statute is unconstitutionally vague only 

if it fails to give a “person of ordinary intelligence a reasonable opportunity to know what is 

prohibited, so that he may act accordingly” and permit “arbitrary and discriminatory 

enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Courts evaluating 

vagueness claims “must ask whether the statutory prohibitions are set out in terms that the 

ordinary person exercising ordinary common sense can sufficiently understand and comply 

with.” Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074, 1079 (4th Cir. 2006). The name 

identification requirement clearly meets this standard. The phrase “name of any candidate” is 

sufficiently precise to give a person of ordinary intelligence fair notice of what is proscribed. A 

reasonable officer of a political committee exercising common sense should know that “the name 

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of a candidate” includes both a candidate’s legal name (e.g., Bernard Sanders or William 

Clinton) or a commonly used variant (e.g., Bernie Sanders or Bill Clinton). 

 That there may exist closer questions hardly demonstrates that the name identification 

requirement is impermissibly vague. “A statute need not spell out every possible factual 

scenario with celestial precision to avoid being struck down on vagueness grounds.” United 

States v. Whorley, 550 F.3d 326, 334 (4th Cir. 2008) (internal quotation marks omitted); see Hill 

v. Colorado, 530 U.S. 703, 733 (2000) (“[S]peculation about possible vagueness in hypothetical 

situations not before the Court will not support a facial attack on a statute when it is surely valid 

in the vast majority of its intended applications.”) (internal quotation marks omitted); United 

States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the 

statute is directed is plainly within its terms, the statute will not be struck down as vague even 

though marginal cases could be put where doubts might arise.”). 

 Plaintiffs have evidently scoured the roster of current and potential candidates to pose 

myriad hypothetical applications of the name identification requirement. But hypotheticals are 

irrelevant. “[A] plaintiff who engages in some conduct that is clearly proscribed cannot 

complain of the vagueness of the law as applied to the conduct of others.” Holder v. 

Humanitarian Law Project, 561 U.S. 1, 18-19 (2010). There is no dispute that Stop Hillary PAC 

refers to candidate Hillary Clinton, and no suggestion that a reasonable voter would not 

understand that the committee refers to her and not, for example, actresses Hillary Duff or 

Hillary Swank.5

 And far from being uncertain, Backer “intentionally” failed to comply (Compl. 

                                                           

5

 It was equally clear to any person of ordinary intelligence that the name of Backer’s 

former “Stand with Rand PAC,” which operated a website displaying photos, quotations, and a 

silhouette of Senator Rand Paul, contained the name of a federal candidate and not the name of 

“Ayn Rand,” as Backer initially suggested, before later acknowledging a danger of confusion 

with Senator Paul’s messaging and agreeing to revise the committee’s name. Compare Aaron 

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¶ 14) with the unambiguous requirement by choosing to include in the committee’s name “a 

reference to ‘Hillary,’ which was intended as a reference” to Hillary Rodham Clinton, whom 

Backer “believed . . . was certain to” be a candidate in the 2016 presidential election (id. ¶ 13). 

Since the name identification requirement is not vague as applied to plaintiffs, they “cannot raise 

a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of 

notice. And [they] certainly cannot do so based on the speech of others.” Humanitarian Law 

Project, 561 U.S. at 20 (distinguishing overbreadth and vagueness doctrines and clarifying that 

“a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial 

amount of protected expression. Otherwise the doctrines would be substantially redundant.” 

(internal citations omitted)). 

D. The Name Identification Requirement Is Not a Content-Based Restriction 

Plaintiffs’ contention (Mem. at 13-14) that the name identification requirement operates 

as a content-based restriction on speech is erroneous, and their demand for strict scrutiny is 

misguided. The requirement that political committees must disclose the status of their 

authorization by candidates in their registered names is not a ban on the content of their 

communications. Like other disclosure requirements, the name identification requirement limits 

opportunities for confusion, fraud, and abuse by making it easier for anyone to immediately 

determine if a committee is an authorized committee or not. The name identification 

requirement merely requires disclosure of whether an organization speaks independently or on a 

candidate’s behalf — if a candidate’s name is present in the committee’s registered name the 

                                                                                                                                                                                               

Blake, After FEC Inquiry, ‘Stand with Rand’ PAC Says It Backs Ayn Rand, Not Rand Paul, 

Wash. Post (Sept. 24, 2013), https://www.washingtonpost.com/news/postpolitics/wp/2013/09/24/after-fec-inquiry-stand-with-rand-pac-says-it-backs-ayn-rand-not-randpaul/ (Sadio Decl. Exh. H), with Tau, PAC Backing Rand Paul Changes Its Name to Avoid 

Tangle With Election Rules, supra p. 13. 

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committee must be the candidate’s authorized committee. The requirement does not prohibit any 

speech; it limits confusion “about the person or group who is speaking” and helps make clear 

that the groups’ communications “are not funded by a candidate,” Citizens United, 558 U.S. at 

368 — important governmental interests that eight Justices of the Supreme Court have 

repeatedly embraced. See id.; McConnell, 540 U.S. at 196-97. The requirement does not control 

content any more than do the rules requiring small disclaimers on communications. 

In Republican National Committee v. FEC (“RNC”), the D.C. Circuit rejected an 

analogous claim that another FEC disclosure regulation was a content-based speech prohibition. 

76 F.3d 400 (D.C. Cir. 1996). The regulation at issue in RNC implemented FECA’s requirement 

that political committees use their “best efforts” to provide information about donors who give 

more than $200 in a single year. Id. at 403. The rule required committees claiming “best 

efforts” to have made a separate follow-up request to contributors that had failed to disclose all 

the needed information. The follow-up request could “not contain anything other than the 

request for the missing information, [a] mandatory statement [regarding the request for 

information], and an expression of gratitude.” Id. at 404; 11 C.F.R. § 104.7(b)(2). The plaintiffs 

challenged this “restriction on additional speech” as content based. 76 F.3d at 409. 

The D.C. Circuit rejected this contention. It explained that in order “[t]o determine 

whether the regulation is content-based (in which case we would apply strict scrutiny) or 

content-neutral (in which case we would apply intermediate scrutiny), we ask whether ‘the 

government has adopted a regulation of speech because of disagreement with the message it 

conveys,’ or whether ‘[The] regulation . . . serves purposes unrelated to the content of 

expression.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Applying 

that standard, the Court of Appeals concluded that the “regulation is content-neutral” and merely 

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“ensure[s] that a written request for the information is not overlooked.” Id. at 410 (internal 

quotation marks omitted). It then held that the regulation satisfied intermediate scrutiny. Id.

The analysis in RNC is on all fours with this case. Like the name identification 

requirement, the “best efforts” regulation at issue in RNC is part of FECA’s disclosure regime. 

The D.C. Circuit thus said that the “simple answer” to the plaintiffs’ challenge was “Buckley’s 

holding that the Act’s disclosure requirements are not inconsistent with the First Amendment.” 

RNC, 76 F.3d at 409. Plaintiffs here argue that the name identification requirement’s purpose is 

directed to “the content of the expression,” (Mem. at 14), but precisely the same could be said of 

follow-up letters requesting information that do or do not show the group’s “thank[s].” 11 

C.F.R. § 104.7(b)(2). Yet the Court of Appeals rejected the same argument when it concluded 

that section 104.7(b)(2) is simply a content-neutral means of “ensur[ing] that a written request 

for the information is not overlooked.” RNC, 76 F.3d at 410 (internal quotation marks omitted). 

Here, as in RNC, the name identification requirement is “justified without reference to the 

content of the regulated speech.” Ward, 491 U.S. at 791 (internal quotation marks omitted). “A 

regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it 

has an incidental effect on some speakers or messages but not others.” Id.; cf. Wagner v. FEC, 

793 F.3d 1, 28 (D.C. Cir. 2015) (en banc) (finding no hint of “any purpose to disfavor” some 

individuals affected by a contribution prohibition “as against the categories proffered by the 

plaintiffs”). Even plaintiffs do not suggest that their challenge to the name identification 

requirement is based upon the FEC’s supposed disagreement with any particular committee 

names. There is no dispute that Congress enacted section 30102(e)(4) to limit confusion by 

making it possible to immediately identify whether a committee is authorized or not. See 

Common Cause, 842 F.2d at 447. Importantly, the provisions challenged here leave 

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unauthorized political committees entirely free to express their views about any particular 

candidate in any communication. 

Plaintiffs’ content-based claims are premised almost exclusively on Reed v. Town of 

Gilbert, 135 S. Ct. 2218 (2015). (See Mem. at 13-14.) In fact, Reed does not apply here at all. 

Reed concerned an Arizona town’s imposition of varying size, location, and duration restrictions 

on the manner in which individuals could display outdoor signs, including distinct requirements 

for directional and other categories of signs. Id. at 2224-25. The Court unanimously agreed that 

the challenged restrictions were unconstitutional and three Justices thought that the restrictions 

even failed the “laugh test.” Id. at 2239 (Kagan, J., concurring). The rules restricted the amount, 

location, and duration of certain speech based on the nature of the message the sign 

communicated. “Ideological messages [we]re given more favorable treatment than messages 

concerning a political candidate, which [we]re themselves given more favorable treatment than 

messages announcing an assembly of like-minded individuals.” Id. at 2230. But that 

“paradigmatic example of content-based discrimination,” id. at 2230, is wholly absent from the 

name identification requirement, which permits all unauthorized political committees unfettered 

freedom to “discuss candidates throughout” the content of their “communication; and to use 

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

location, and so forth) as they choose.” 1994 Rule, 59 Fed. Reg. at 17,268-69; see also RNC, 76 

F.3d at 410 (regulation left committees “free to express their views . . . in other 

communications”). Unlike the law at issue in Reed, the name identification requirement 

challenged here does not restrict the content of any group’s speech. 

In addition, Reed is inapposite because the sign law at issue in that case did not promote 

any disclosure interest, let alone constitute an integral part of FECA’s comprehensive disclosure 

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program that has been deemed constitutional since Buckley and overwhelmingly supported by 

eight current Supreme Court Justices and the Fourth Circuit Court of Appeals in 2012. See supra

pp. 10-11. Reed should not be read to silently displace this longstanding precedent. 

Regardless, even if this Court accepts plaintiffs’ argument that their constitutional 

challenge requires more stringent, “strict” scrutiny, the name identification requirement is 

narrowly tailored to serve a compelling government interest and it thus satisfies that test as well. 

The government’s interests in limiting confusion, fraud, and abuse and preserving the integrity of 

American elections are important interests. See supra pp. 11-12. They are also compelling. 

Indeed, the Supreme Court has already “concluded that a State has a compelling interest in 

protecting voters from confusion and undue influence.” Burson v. Freeman, 504 U.S. 191, 199 

(1992); Anderson v. Celebrezze, 460 U.S. 780, 796 (1983); accord McCutcheon, 134 S. Ct. at 

1445-46 (explaining that although government’s anti-corruption interest needed to be only 

“sufficiently important” to satisfy the closely drawn scrutiny that applies to contribution limits, 

the Court had itself already stated that that “interest may properly be labeled ‘compelling’”). 

E. The Name Identification Requirement Is Constitutional As Applied 

 As applied here, the name identification requirement is substantially related to the 

government’s important interest in limiting the fraud, abuse, and confusion that would result if 

committees like Stop Hillary PAC could include a candidate’s name in its registered name. Even 

if the potential for confusing unauthorized committees with authorized ones may be diminished 

where a committee name conveys unambiguous opposition to a named candidate, a proliferation 

of unauthorized committee names that include candidate names would undermine Congress’s 

objective of facilitating “immediate identification of a candidate’s authorized committee” by a 

simple “glance” at the committee’s name. Common Cause, 842 F.2d at 442, 447. 

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 The name identification requirement is also constitutional as applied because of its 

extremely limited scope that poses no more than a de minimis burden on plaintiffs. The 

requirement is narrowly tailored to pass even strict constitutional scrutiny. As detailed supra pp. 

3-5, the Commission has narrowly construed the statutory requirement to allow unauthorized 

committees like Stop Hillary PAC the freedom to use candidate names in the titles of special 

projects — including websites, social media pages, and other communications — “if the title 

clearly and unambiguously shows opposition to the named candidate.” 11 C.F.R. § 102.14(b)(3); 

see NewtWatch Advisory Op., 1995 WL 247474, at *5. Unauthorized committees are also 

entirely free to promote or oppose candidates to whatever extent they desire in the “body of any 

website or other communication.” CAP Advisory Op., 2015 WL 4480266, at *3; see PAG, 2015 

WL 5675428, at *11 (same). 

 Plaintiff/counsel Backer’s own declaration underscores just how miniscule of a burden is 

at issue here. Even setting aside that the burden was “intentionally” self-imposed (Compl. ¶ 14), 

it is simply not true that complying with the narrow name identification requirement would cause 

the committee “to squander the goodwill and name recognition” of its “Stop Hillary” logo 

(Backer Decl. ¶ 14). Plaintiffs could choose any committee name that does not include candidate 

Hillary Clinton’s name while still expressing their desire to “Stop Hillary” in the title of any 

special project or anywhere in the body of any of its communications, as other unauthorized 

committees have done. See supra pp. 12-13 & n.3. Indeed, with the exception of the 

committee’s registered name, plaintiffs have the unrestrained ability to use their “Stop Hillary” 

logo not only in the body of the committee’s websites, social media pages, and other 

communications but also in the titles and URLs of any such “special projects.” It is thus not true 

that the requirement challenged here would require the committee to obtain new website 

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25

domains or modify “the dozens of websites that currently link to its various web pages,” nor is it 

true that the committee would be required to obtain a new Twitter handle, Facebook page, or 

revise the names of any other “special projects” that the committee may operate. (Contra Backer 

Decl. ¶ 14.) 

 The limited changes plaintiffs would have to make for the committee’s registered name 

to comply with the challenged requirement could easily have been avoided if Backer had not 

chosen to “intentionally” violate the law (Compl. ¶ 14), and instead had acted consistent with his 

extensive experience with other committees, see supra pp. 12-13 & n.3. Although plaintiffs may 

not be able to “get what [they] want,” they can easily “get what [they] need” — the freedom to 

oppose Clinton (and discuss any other candidate) at will without eviscerating a reasonable, 

longstanding, bright-line disclosure requirement that limits the potential for confusion, fraud, and 

abuse and helps preserve the integrity of American elections. Cf. Stop This Insanity Inc. Emp. 

Leadership Fund v. FEC, 761 F.3d 10, 11, 14 (D.C. Cir. 2014) (quoting The Rolling Stones, You 

Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969), and rejecting 

constitutional challenge brought by Backer in part due to the plaintiffs’ voluntary choice to 

pursue a more “burdensome” course of action), cert. denied, 135 S. Ct. 949 (2015). 

III. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE HARM 

Plaintiffs fail to demonstrate that they will suffer irreparable harm without an injunction. 

Winter, 555 U.S. at 22. “[T]he basis of injunctive relief in the federal courts has always been 

irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation and internal quotation 

marks omitted). “The plaintiff must make a clear showing of irreparable harm . . ., and the 

required irreparable harm must be neither remote nor speculative, but actual and imminent.” 

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26

Scotts Co. v. United Indus. Corp., 315 F.3d 264, 283 (4th Cir. 2002) (internal quotation marks 

omitted). 

Plaintiffs offer no evidence of irreparable harm that they have suffered or will suffer as a 

result of their intentional violation. Indeed, as explained supra pp. 24-25, the narrow name 

identification requirement would not require plaintiffs to take many of the supposed actions 

Backer claims would be necessary to bring the committee into compliance. Moreover, as also 

explained supra pp. 7, 25, the limited burdens plaintiffs would face were “intentionally” selfimposed (Compl. ¶ 13) and easily could have been avoided. Indeed, the limited record the 

Commission has developed at this preliminary stage demonstrates plaintiff/counsel Backer’s 

extensive experience promoting committees’ candidate-centered messages while complying with 

the minimal limitations of the name identification requirement. See supra n.3.6

Furthermore, in light of Backer’s admission that he knew he was flouting federal 

law since at least April 2015, when Clinton announced her candidacy (Compl. ¶ 14), 

plaintiffs plainly could have brought their challenge to the decades-old name identification 

requirement sooner. Courts have found that irreparable injury is not present in the event 

of self-created urgency. See Tenacre Found. v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) 

(finding that seven-month delay before filing suit “undermines any assertions that 

[plaintiff] will suffer irreparable harm if the Court does not grant preliminary injunctive 

                                                           

6

 To the extent plaintiffs are serious in suggesting that their harm was unanticipated 

because they named the committee before Clinton announced her candidacy (e.g. Mem. at 7-8), 

they have entirely undermined such a suggestion by asserting (1) the committee name was 

intended to reference “Hillary Rodham Clinton,” whom Backer “believed . . . was certain to 

seek” election as President of the United States in 2016 (Compl. ¶ 13); (2) the exclusive purpose 

of the committee has always been “to ensure Hillary Clinton never becomes President of the 

United States” (Mem. at 2); and (3) “Backer intentionally” violated the name identification 

requirement (Compl. ¶ 14). 

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relief”); cf. Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 163 (1st Cir. 

2004) (“[Plaintiff’s] cries of urgency are sharply undercut by its own rather leisurely 

approach to the question of preliminary injunctive relief.”). 

Plaintiffs’ authorities do not help them. Both Odebrecht Construction, Inc. v. Secretary, 

Florida Department of Transportation, 715 F.3d 1268 (11th Cir. 2013) and Chamber of 

Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010) involved challenges to newly enacted 

state statutes and did not involve intentional, self-inflicted harm as a result of a purposeful 

violation of the law. 

 Plaintiffs’ purported reliance on Elrod v. Burns, 427 U.S. 347 (1976) (plurality) is also 

misplaced. In Elrod, the Supreme Court affirmed the order of the Court of Appeals instructing 

the district court to enter appropriate injunctive relief. The Court’s statement that loss of First 

Amendment rights for even minimal periods of time constituted irreparable harm was premised 

on its finding that the government employees had shown that they were likely to succeed on the 

merits of their First Amendment claims. 427 U.S. at 374 (“[S]ince respondents sufficiently 

demonstrated a probability of success on the merits, the Court of Appeals might properly have 

held that the District Court abused its discretion in denying preliminary injunctive relief.”). See 

also Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) 

(explaining that defendant was “is in no way harmed by issuance of a preliminary injunction 

which prevents it from enforcing a regulation” where the record suggested the rule was likely 

unconstitutional). 

Here, by contrast, plaintiffs have not established their likely success on the merits. See 

supra pp. 9-25. They simply assume that which they have not established — that the name 

identification requirement likely violates their constitutional rights. See Ross v. Meese, 818 F.2d 

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1132, 1135 (4th Cir. 1987) (“[T]he denial of a constitutional right, if denial is established, 

constitutes irreparable harm for purposes of equitable jurisdiction.”) (emphasis added). 

 Plaintiffs’ mere allegations of harm under the First Amendment are insufficient, 

especially where the challenged statute and regulation poses no more than de minimis burdens. 

See RTAO, 575 F.3d at 351 (finding Elrod inapplicable and no threat of irreparable harm where 

plaintiff is “free to disseminate its message and make [any] expenditures as it wished” and 

subject only to “constitutionally permitted restrictions”); Smith v. Frye, 488 F.3d 263, 271 (4th 

Cir. 2007) (allegation does not “necessarily, by itself, state a First Amendment claim under 

Elrod”). Plaintiffs’ overwrought allegations of “FEC threats” are also insufficient to show 

irreparable harm, especially given their failure to even suggest that they have been singled out or 

that the Commission’s routine inquiries and notifications are capricious, irregular, or certain to 

result in concrete injury.7

 In fact, “plaintiffs will not ‘suffer irreparable harm in the absence of 

preliminary relief’; they will simply be required to adhere to the regulatory regime that has 

governed campaign finance for decades.” Rufer v. FEC, 64 F. Supp. 3d 195, 206 (D.D.C. 2014). 

IV. THE REQUESTED RELIEF WOULD HARM THE PUBLIC INTEREST

 The current version of the name identification requirement has been law for twenty-one 

years. Enjoining enforcement of this long-standing requirement would substantially harm the 

                                                           

7

 The lack of any irreparable harm here is further reflected in the Commission’s past 

handling of other alleged violations of the name identification requirement. In Matter Under 

Review 6213, the Commission dismissed an administrative complaint alleging a violation of the 

name identification requirement and issued a cautionary warning to the respondent, the 

Decidedly Unhappy Mainstream Patriots Rejecting Evil-mongering Incompetent Democrats 

Political Action Committee, “to take steps to ensure that its conduct is in compliance with the 

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

‘(DUMPREID PAC)’ from its official name, and by including the Committee’s full name in the 

‘paid for by’ section of its website disclaimer and in any future public communications.” See

MUR 6213 (Decidedly Unhappy Mainstream Patriots Rejecting Evil-mongering Incompetent 

Democrats PAC), http://eqs.fec.gov/eqsdocsMUR/10044271813.pdf, at 2 (Sadio Decl. Exh. U). 

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29

public’s and government’s important and compelling interests in limiting election-related fraud, 

abuse, and confusion. “[A]ny time a State is enjoined by a court from effectuating statutes 

enacted by representatives of its people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. 

Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). A “presumption of 

constitutionality [] attaches to every Act of Congress,” and that presumption is “an equity to be 

considered in favor of [the government] in balancing hardships.” Walters v. Nat’l Ass’n of 

Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). “In exercising 

their sound discretion, courts of equity should pay particular regard for the public consequences 

in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting 

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)); R.R. Comm’n of Tex. v. Pullman 

Co., 312 U.S. 496, 500 (1941) (“The history of equity jurisdiction is the history of regard for 

public consequences in employing the extraordinary remedy of the injunction.”). 

Plaintiffs seek to alter the “federal campaign finance framework only months prior to the 

next federal election based on an as yet untested legal theory. Permitting that to happen would 

be imprudent, to say the least, and certainly not in the public interest.” Rufer, 64 F. Supp. 3d at 

206; Holmes v. FEC, 71 F. Supp. 3d 178, 188 (D.D.C. 2014) (“Plaintiffs’ attempt to locate a 

problem of constitutional proportions in the [challenged provision] would upset settled 

expectations immediately before the vote itself.”). Indeed, enjoining the name identification 

requirement would likely lead to more of the confusion and abuse that has already resulted from 

the violations of the requirement described above, see supra pp. 13-15. 

At bottom, plaintiffs’ argument that the public interest favors a preliminary injunction in 

their favor is the superficial notion that enforcing constitutional rights is always in the public 

interest. But their argument assumes that which they seek to prove — that they have a 

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constitutional right to include a candidate’s name in their committee’s name. Because plaintiffs 

are not likely to succeed on the merits of their claims, it can hardly be said that a preliminary 

injunction would be in the public interest compared with the “presumption of constitutionality 

[that] attaches to every Act of Congress.” Walters, 468 U.S. at 1324 (Rehnquist, J., in chambers). 

The balance of harms and the public interest weigh heavily in favor of preserving the status quo 

and denying plaintiff’s request for the extraordinary injunctive relief they seek.8 

CONCLUSION 

For the foregoing reasons, the Court should deny the preliminary-injunction motion. 

Respectfully submitted, 

Daniel A. Petalas* Steve N. Hajjar* 

Acting General Counsel Attorney 

dpetalas@fec.gov shajjar@fec.gov 

Lisa J. Stevenson* /s/ Esther D. Gyory 

Deputy General Counsel — Law Esther D. Gyory (VA Bar #76826) 

lstevenson@fec.gov egyory@fec.gov 

Kevin Deeley* COUNSEL FOR DEFENDANT 

Acting Associate General Counsel 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

Erin Chlopak* 999 E Street N.W. 

Acting Assistant General Counsel Washington, DC 20463 

echlopak@fec.gov (202) 694-1650 

November 3, 2015 *Admitted Pro Hac Vice 

                                                           

8

 Even if this Court agrees that plaintiffs are entitled to preliminary relief, they are not 

entitled to the nationwide injunction they appear to request. In Virginia Society for Human Life, 

Inc. v. FEC, 263 F.3d 379, 393-94 (4th Cir. 2001), overruled on other grounds by RTAA, 681 

F.3d 544 (4th Cir. 2012), the Fourth Circuit remanded the case for modification of a nationwide 

injunction the district court had entered against the FEC, explaining that “the district court 

abused its discretion by issuing a nationwide injunction.” It further explained that a nationwide 

injunction “is broader than necessary to afford full relief to [the plaintiffs] . . . [and] . . . 

encroaches on the ability of other circuits to consider the constitutionality of [the challenged 

regulation].” Id.

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