ORAL ARGUMENT SET FOR FEBRUARY 23, 2016

____________________________________________________

No. 15-5264

_________________________________________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________

PURSUING AMERICA’S GREATNESS,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

_________________________________________________

On Appeal from the United States District Court 

for the District of Columbia

_________________________________________________

APPELLANT PURSUING AMERICA’S GREATNESS

REPLY BRIEF

_________________________________________________

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

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

Shawn Sheehy

Steven P. Saxe

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100 Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

jt@hvjt.law

Counsel for Appellant Pursuing America’s Greatness

January 20, 2016

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF ABBREVIATIONS.......................................................................v

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

STATUTES AND REGULATIONS.........................................................................2

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT.............................................................................................................5

I. THE PAC NAME PROHIBITION IS A SPEECH BAN AND 

NOT A DISCLOSURE REGULATION ..............................................5

II. THE DISTRICT COURT ERRED IN NOT ANALYZING 

THE PAC NAME PROHIBITION UNDER STRICT 

SCRUTINY BECAUSE THE REGULATION IS A

CONTENT-BASED SPEECH BAN ..................................................12

A. PAG HAS STANDING TO BRING THIS CLAIM..................13

B. THE REGULATION IS A CONTENT-BASED SPEECH 

BAN ............................................................................................15

i. The PAC Name Prohibition Is Not A Disclosure 

Regulation...........................................................................15

ii. Reed Controls the Outcome Of This Case..........................17

iii. The PAC Name Prohibition Is Not Analogous To 

Disclaimers .........................................................................18

iv. There Is No Distinction Between Regulating Website 

URLs, Facebook Page Titles, Or Twitter Handles 

And The Title Of A Book...................................................18

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III. THE PAC NAME PROHIBITION IS A PRIOR RESTRAINT 

BECAUSE THE REGULATION IS VAGUE REQUIRING 

POTENTIAL SPEAKERS TO SEEK AN ADVISORY 

OPINION PRIOR TO SPEAKING ....................................................22

IV. PAG WILL BE IRREPARABLY HARMED ABSENT THE 

ISSUANCE OF AN INJUNCTION....................................................26

V. ISSUING AN INJUNCTION IS IN THE PUBLIC’S 

INTEREST AND THE BALANCE OF THE HARMS 

WEIGHS IN FAVOR OF PAG ..........................................................27

CONCLUSION........................................................................................................29

CERTIFICATE OF COMPLIANCE.......................................................................30

CERTIFICATE OF SERVICE ................................................................................31

ADDENDUM ..........................................................................................................32

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TABLE OF AUTHORITIES 

CASES 

Page

Buckley v. Valeo, 

424 U.S. 1 (1976)...............................................................................10, 16, 24

Carey v. FEC, 

91 F. Supp. 2d 121 (D.D.C. 2011).....................................................27, 28, 29

Davis v. FEC, 

554 U.S. 724 (2008).......................................................................................27

*Citizens United v. FEC, 

558 U.S. 310 (2010)...................................................... 5, 6, 10, 19, 22, 24, 25

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988)...........................................................6, 7, 9, 10

Elrod v. Burns, 

427 U.S. 347 (1976).................................................................................26, 27

FEC v. NRA of Am., 

254 F.3d 173 (D.C. Cir. 2001) ........................................................... ..........23

Galliano v. U.S. Postal Service, 

836 F.2d 1362 (D.C. Cir. 1988)...............................................................7, 8, 9

Local 144 Nursing Home Pension Fund v. Demisay, 

508 U.S. 581 (1993).........................................................................................9

MD/DC/DE Broadcasters Association v. FCC, 

236 F.3d 13 (D.C. Cir. 2001)...................................................................13, 14

McConnell v. FEC, 

540 U.S. 93 (2003).........................................................................................10

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)...................................................................................10

*Authorities upon which we chiefly rely are marked with asterisks

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Mills v. District of Columbia, 

571 F.3d 1304 (D.C. Cir. 2009).....................................................................26

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 

692 F.3d 864 (8th Cir. 2012).........................................................................11

*R. A. V. v. St. Paul, 

505 U.S. 377 (1992).................................................................................15, 22

Republican Nat'l Comm. v. Federal Election Comm'n, 

76 F.3d 400 (D.C. Cir. 1996).........................................................................16

*Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015)...........................................................................5, 6, 27

U.S. v. Swisher, 

No. 11-35796, 2016 U.S. App. LEXIS 375 (9th Cir. Jan. 11, 2016)............22

Unity08 v. FEC, 

596 F.3d 861(D.C. Cir. 2010)........................................................................23

Virginia v. Hicks, 

539 U.S. 113 (2003).......................................................................................26

STATUTES 

2 U.S.C. § 432(e)(4)...................................................................................................7

52 U.S.C. § 30102(e)(4).............................................................................................7

52 U.S.C. § 30102(i)................................................................................................16

52 U.S.C. § 30108(c)(1-2) .......................................................................................23

52 U.S.C. § 30109(d)...............................................................................................23

52 U.S.C. § 30120(a)(3)...........................................................................................18

FEDERAL REGULATIONS

11 C.F.R. § 100.26 .............................................................................................21, 25

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11 C.F.R. § 102.14(a).........................................................................................2, 3, 6

11 C.F.R. § 102.14(b)(3)....................................................... 2, 3, 4, 6, 11, 12, 13, 18

11 C.F.R. § 104.7(b)(2)............................................................................................16

11 C.F.R. § 110.11(a)...................................................................................21, 23, 25

OTHER AUTHORITIES 

FEC Final Rule on Special Fundraising Projects and Other Use of Candidate 

Names by Unauthorized Committees, 57 Fed. Reg. 31,424 (July 15, 

1992)................................................................................................................12

FEC Final Rule on Special Fundraising Projects and Other Use of Candidate 

Names by Unauthorized Committees, 59 Fed. Reg. 17,267 (April 12, 

1994)................................................................................................................12

Final Rule on Internet Communications, 71 Fed. Reg. 18,589 (April 12, 

2006)..........................................................................................................21, 25

GLOSSARY OF ABBREVIATIONS

“FEC”...........................................................................Federal Election Commission

“PAC” ............................................................................. Political Action Committee

“PAG” .........................................................................Pursuing America’s Greatness

“URL”...............................................................................Uniform Resource Locator

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INTRODUCTION

The FEC approaches this case from a starting point that fundamentally 

violates the First Amendment. The agency contends that it may regulate the 

content of a political committee’s website Uniform Resource Locator (‘URLs’), 

Facebook page titles, and Twitter handles, and prohibit a committee from using 

certain words or phrases, so long as it refers to this content regulation as 

“disclosure.” The FEC’s regulation, however, is self-evidently a content-based 

speech restriction that permits a political opponent of Governor Huckabee to use 

the phrase “I loathe Mike Huckabee” in its website URL, Facebook page title, and 

Twitter handle, while Pursuing America’s Greatness (‘PAG’) is prohibited from 

using the phrase “I like Mike Huckabee.” To the FEC, the regulation presents no 

constitutional problem because PAG can speak “freely” elsewhere, and in any 

event, this prohibition of messages in PAG’s website URL, Facebook page title, 

and Twitter handle is just “disclosure.” Unfortunately for the FEC’s position, the 

First Amendment prohibits the federal government from policing the content of 

speech on political issues.

The FEC concedes, as it must, that expressing support for Mike Huckabee in 

the title of a book or movie is perfectly acceptable – not because of basic First 

Amendment principles, but because the author’s name would dispel any confusion 

over the author’s identity. Somehow, the same is not true of the title of a Facebook 

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page, a website URL, or Twitter handle. Somehow, the FEC explains, the title of a 

book or movie is a “project or communication done under the committee’s own 

name,” whereas the title of a Facebook page is a “name under which a committee 

conducts activities.” See (FEC Oppn. Br. at 60).1 The FEC’s “deliberately 

crystalline” regulation is, it now seems, anything but crystalline, and is instead 

simply a vesting of paternalistic authority to determine when American voters—

already supplied with disclaimers and in possession their own common sense—can 

actually discern who is speaking to them. See (Op. Br. at 51). 

None of the FEC’s arguments converts the PAC Name Prohibition2from a 

content-based speech ban into a “disclosure” provision. No other disclosure 

provision prohibits PAG from communicating its support of Mike Huckabee in its 

website URL, Facebook page title, and Twitter handle while permitting other 

political committees to oppose Mike Huckabee in their website URLs, Facebook 

page titles, and Twitter handles. The reason is obvious: the PAC Name Prohibition 

is not disclosure; it is a content-based speech ban.

 

1 Citations of the FEC’s and PAG’s briefs are to the ECF generated pagination.

2

The PAC Name Prohibition is the regulation codified at 11 C.F.R. § 102.14(a) 

and (b)(3). 

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STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the addendum to this 

brief. 

SUMMARY OF THE ARGUMENT

The PAC Name Prohibition is a content-based speech ban and not a 

disclosure regulation. If an unauthorized political committee wants to 

communicate support of a candidate in its special project name, i.e., website URL, 

Facebook page title, or Twitter handle, then the regulation is applicable and 

prohibits the activity. See 11 C.F.R. § 102.14(a). But if the ideological opponents 

of that political committee want to communicate opposition in those same 

mediums, the regulation permits it. See id. § 102.14(b)(3). Essentially, PAG cannot 

have www.ilikemikehuckabee.com but its ideological opponent can have 

www.iloathemikehuckabee.com. 

The PAC Name Prohibition is not a disclosure regulation because it does 

prohibit political committees, like PAG, from communicating support for a 

political candidate in its special project names. The Supreme Court has 

consistently stated that disclosure regulations do not prohibit anyone from 

speaking. 

The district court erred in that it did not analyze the PAC Name Prohibition 

under strict scrutiny because it is a content-based speech ban. Even the FEC’s own 

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regulation confirms special project names can communicate political positions. See

11 C.F.R. § 102.14(b)(3) (permitting the use of a candidate’s name in a special 

project name if the special project name clearly communicates opposition to the 

candidate). 

PAG has standing to bring this claim as PAG challenges the PAC Name 

Prohibition as a unified whole. The opposition exception is not severable because 

the FEC has not demonstrated that it intended the regulation to be severable. 

Furthermore, when the FEC amended the regulation in 1994, it added the 

opposition exception because the PAC Name Prohibition prohibited too much 

speech. This demonstrates that the FEC did not intend the PAC Name Prohibition 

to be severable but intended it to operate as a coherent whole. 

The Supreme Court’s recent opinion in Reed v. Town of Gilbert controls the 

outcome of this case. To determine whether the PAC Name Prohibition applies, the 

FEC is required to look at the content of a political committee’s special project 

name to determine if it uses a candidate’s name and then whether it communicates 

support or opposition for that candidate. If the special project name communicates 

support, the FEC prohibits it. If the special project name communicates opposition, 

the FEC permits it. Under Reed, this is a content-based speech ban.

The FEC’s PAC Name Prohibition is a prior restraint because PAG is 

restrained from expressing its support for Mike Huckabee in its website URL, 

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Facebook title page, and Twitter handle. Due to the FEC’s advisory opinion issued 

to Collective Actions PAC, PAG is on notice for criminal sanctions for knowing 

and willful violations of the PAC Name Prohibition. PAG is therefore forced to 

choose between foregoing First Amendment speech or risking protracted litigation, 

civil penalties, and criminal sanctions. As the Supreme Court recognized in 

Citizens United, this is the functional equivalent of a prior restraint and is 

prohibited under the First Amendment. 

PAG is irreparably harmed because it cannot communicate its support of 

Mike Huckabee in its website URL, Facebook page title, and Twitter handle. An 

injunction is in the public’s interest because the time to speak is now, as the

presidential primaries are ongoing. The FEC’s excuse that its PAC Name 

Prohibition should not be upended so close to a presidential election should be 

rejected because it is contrary to the First Amendment’s protection of political 

speech. 

ARGUMENT

I. THE PAC NAME PROHIBITION IS A SPEECH BAN AND NOT 

A DISCLOSURE REGULATION.

The Supreme Court recently explained that a regulation is content-based if 

the regulation, on its face, makes distinctions based on the message the speaker 

conveys. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). A regulation 

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based regulation. See id. See also (Op. Br. at 46-51). The PAC Name Prohibition 

regulates speech on the basis of content because it applies only to unauthorized 

committees who communicate support for a particular candidate in their “special 

project names.” See 11 C.F.R. § 102.14(a). If another unauthorized committee 

communicates opposition to the same candidate, the PAC Name Prohibition does 

not apply. Id. § 102.14(b)(3). Under Reed, the PAC Name Prohibition qualifies as 

a content-based speech regulation. 

While the statutory provision from which the PAC Name Prohibition stems 

has been referred to as supplementary to FECA’s disclosure provisions, Common 

Cause v. FEC, 842 F.2d 436, 442 (D.C. Cir. 1988), the PAC Name Prohibition, in 

and of itself, is not a disclosure provision. Eight Supreme Court justices agreed that 

disclosure does not prevent anyone from speaking. See Citizens United v. FEC, 

558 U.S. 310, 366 (2010) (“Disclaimer and disclosure requirements may burden 

the ability to speak, but they impose no ceiling on campaign-related activities and 

do not prevent anyone from speaking.”) (emphasis added) (internal quotation 

marks and citations omitted). The PAC Name Prohibition prevents PAG from

communicating its support of Mike Huckabee through its website URL, Facebook 

page title, and Twitter handle. See 11 C.F.R. § 102.14(a). Worse, the PAC Name

Prohibition permits PAG’s political opponents to use the phrase “I loathe Mike 

Huckabee” in the very same mediums. See id. § 102.14(b)(3). This is not 

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disclosure. See PAG Op. Br. at 51-53. This is a content-based speech ban. See id. 

at 46-51.

The FEC insists that the PAC Name Prohibition is simply a disclosure 

regulation. (FEC Oppn. Br. at 36-39). The FEC cites Common Cause and Galliano

because, according to the FEC, those cases held that the PAC Name Prohibition is 

a disclosure regulation. (FEC Oppn. Br. at 36-37). Of course, both Galliano and 

Common Cause were decided six years before the current PAC Name Prohibition 

was adopted, and both cases considered only the FECA provision at 2 U.S.C. § 

432(e)(4) (now, 52 U.S.C. § 30102(e)(4)) that requires that an unauthorized 

“political committee shall not include the name of any candidate in its name.” 

Neither decision considered, or has any bearing on, the content-based distinctions 

found in the existing PAC Name Prohibition. The FEC’s interpretation of the 

current regulatory PAC Name Prohibition was not before the court.

At best, the language cited by the FEC was dicta. In neither case was the 

court asked whether FECA’s PAC naming provision was a disclosure provision, 

and in neither case was the court presented with a case in which the FEC regulated 

committees’ “special project names” differently on the basis of their content. The 

issue before the court in Common Cause has been extensively briefed. The issue in 

Galliano was whether specific FECA provisions regarding “the names and 

disclaimers of unauthorized political committees” trumped the Postal Service’s 

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general false representation statute, as applied to mailed solicitations of an 

unauthorized political committee that the Postal Service found 

“misrepresentational.” See Galliano v. U.S. Postal Service, 836 F.2d 1362, 1367-

69 (D.C. Cir. 1988).

First, and most fundamentally, the FEC confuses the source of the 

description contained in the Galliano opinion that the FECA’s statutory PAC 

naming provision is part of the FECA’s disclosure regime. See (FEC Oppn. Br. at 

36 and 38). The FEC claims that the court in Galliano characterized the FECA’s 

PAC naming provision as part of FECA’s disclosure requirements and that the 

FECA’s PAC naming provision is part of FECA’s specific disclosure 

requirements. Id. In fact, it appears that it was the FEC’s and appellant’s briefs

that described FECA’s PAC naming provision as a disclosure statute, and the court 

merely recounted the FEC’s and appellant’s position. Galliano, 836 F.2d at 1368. 

The Galliano court did not hold that the FECA’s PAC naming provision is part of 

FECA’s disclosure regime. Rather, the Court held, unremarkably, that the FEC 

“[i]s the exclusive administrative arbiter of questions concerning the name 

identifications and disclaimers of organizations soliciting political contributions.” 

Id. at 1370. 

Second, even if the court did describe FECA’s PAC naming provision as 

part of FECA’s disclosure provisions, that passing reference was dicta because it 

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was not necessary to determine that FECA vests the FEC with exclusive civil 

enforcement authority with respect to federal campaign finance laws. See Local 

144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592 n.5 (1993)

(describing dicta as that which is “uninvited, unargued, and unnecessary to the 

court’s holding.”). Whether or not FECA’s PAC naming provision, much less the 

current regulatory PAC Name Prohibition, is a disclosure provision has no bearing 

on whether FECA’s civil enforcement procedures in FECA preempt the postal 

fraud statute. 

Next, the FEC relies on this Court’s decision in Common Cause. (FEC 

Oppn. Br. at 36-37). While PAG has acknowledged that this Court described 

FECA’s PAC naming provision as a supplement to FECA’s disclaimer 

requirements, the FEC does not address PAG’s primary point that no court has 

ruled that FECA’s PAC naming provision, or the FEC’s regulatory PAC Naming 

Prohibition, is itself a disclosure regulation subject to exacting scrutiny. See id. The 

U.S. District Court for the Eastern District of Virginia agreed with the Common 

Cause court that FECA’s PAC naming provision supplemented FECA’s disclosure 

regime. But the Stop Hillary PAC court did not rule that FECA’s PAC naming 

provision was itself a disclosure regulation. (FEC Oppn. Br. at 89). Furthermore, 

the Eastern District of Virginia adopted the FEC’s mischaracterization of Galliano

by suggesting that it was this Court, rather than the FEC itself, that characterized 

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the PAC Name Prohibition as part of FECA’s disclosure requirements. (FEC 

Oppn. Br. at 36-37, 89).3 Moreover, the Stop Hillary PAC court’s reliance on 

Buckley, McConnell, Citizens United, and McCutcheon is misplaced because those 

cases concerned only the disclosure of information about the sources of candidate 

or committee funding and “paid for by” disclaimers. See Buckley v. Valeo, 424 

U.S. 1, 64 (1976) (disclosure of campaign contributions); McConnell v. FEC, 540 

U.S. 93, 200-02 (2003) (disclosure of contributors who contributed $1,000 or more 

annually when the recipient committee spends $10,000 or more on electioneering 

communications); Citizens United, 558 U.S. at 366-67 (disclosure and disclaimer 

requirements for electioneering communications); McCutcheon v. FEC, 134 S. Ct. 

1434, 1459 (2014) (disclosure of contributions). (FEC Oppn. Br. at 90). The FEC’s 

current regulatory PAC Name Prohibition does not provide any information to 

readers; it simply prohibits PAG from conveying the message “I Like Mike 

Huckabee” via its website URL, Facebook page title, and Twitter handle. 

The PAC Name Prohibition is a content-based speech ban and this Court 

should declare it unconstitutional. See Common Cause, 842 F.2d at 448 (the FEC

“[m]ust allow the maximum of first amendment freedom of expression in political 

 

3 Additionally, we note that Stop Hillary PAC is a somewhat different case than the 

challenge PAG brings. First, Stop Hillary PAC is directly challenging the 

constitutionality of the statutory PAC naming provision. PAG only challenges the 

FEC’s application of its PAC Name Prohibition. Furthermore, PAG’s name does 

not include the name of a candidate.

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campaigns commensurate with Congress’ regulatory aims).” The FEC’s regulation 

permits political committees to communicate opposition to a candidate, but 

prohibits committees from communicating support. This is a content-based 

restriction of First Amendment freedoms. 

Finally, even if FECA’s PAC Name Prohibition is a disclosure regulation, 

this Court should still analyze it as a content-based speech restriction under strict 

scrutiny. See Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 

864, 875 (8th Cir. 2012) (en banc). It is possible that FECA’s statutory PAC 

naming provision passes constitutional muster while the FEC’s regulatory PAC 

Name Prohibition does not. This case does not challenge FECA’s statutory 

provision – it challenges only the FEC’s current interpretation and application of 

the regulatory PAC Name Prohibition to PAG’s website URL, Facebook page title, 

and Twitter handle. With respect to PAG’s website URL, Facebook page title, and 

Twitter handle, the effect of the FEC’s PAC Name Prohibition is not to provide 

information to the public, but to prohibit certain speech because it does not “clearly 

and unambiguously show[] opposition to the named candidate.” 11 C.F.R. § 

102.14(b)(3).

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II. THE DISTRICT COURT ERRED IN NOT ANALYZING THE 

PAC NAME PROHIBITION UNDER STRICT SCRUTINY 

BECAUSE THE REGULATION IS A CONTENT-BASED 

SPEECH BAN.

The FEC contends that PAG’s speech is not limited by the PAC Name

Prohibition because the FEC is only regulating PAG’s “special project names.” 

(FEC Oppn. Br. at 57). This is, of course, a limitation on PAG’s speech, even if the 

FEC believes it to be a minor or insignificant one. The FEC refuses to recognize 

that PAG uses its website URL, Facebook page title, and Twitter handle to convey 

a message. Ironically, the FEC’s opposition exception itself recognizes that special 

project names communicate messages as that exception permits political 

committees to use a candidate’s name if the message conveyed is one of 

opposition. See 11 C.F.R. § 102.14(b)(3). 

The FEC also attempts to rewrite the regulatory record by claiming that the 

PAC Name Prohibition is not a “ban.” (FEC Oppn. Br. at 55). The FEC itself 

referred to the PAC Name Prohibition as a “total ban” in 1992, and then explained 

that the 1994 rulemaking operated by “exempting from the ban those titles that 

clearly indicate opposition to the named candidate.” See FEC Final Rule on 

Special Fundraising Projects and Other Use of Candidate Names by Unauthorized 

Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992) (emphasis added); FEC

Final Rule on Special Fundraising Projects and Other Use of Candidate Names by 

Unauthorized Committees, 59 Fed. Reg. 17,267, 17,268 (April 12, 1994)

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(emphasis added); (see also JA 15). The FEC has twice justified the PAC Name

Prohibition as a “ban” in the Federal Register. 

A. PAG HAS STANDING TO BRING THIS CLAIM. 

The FEC claims that PAG lacks standing to challenge the PAC Name

Prohibition because even if PAG were successful and the PAC Name Prohibition’s

opposition exception were declared unconstitutional, this would not redress PAG’s 

challenge since PAG wishes to express support for Mike Huckabee, not opposition. 

(FEC Oppn. Br. at 53-54). 

First, the FEC mischaracterizes the nature of PAG’s challenge. PAG’s 

challenge is to the FEC’s PAC Name Prohibition as a whole, which makes contentbased regulatory distinctions based on whether an unauthorized committee uses a 

candidate’s name in a “special project name or other designation,” or in the “title 

of a special project name or other communication,” in a manner that shows support 

or opposition. PAG has never, in any document filed during this litigation, limited 

its challenge to the opposition exception at 11 C.F.R. § 102.14(b)(3).

Second, the FEC argues that Section 102.14(b)(3) is severable from the 

remainder of the PAC Name Prohibition. This is not the case because the 

underlying requisite intent for severability is absent. See MD/DC/DE Broadcasters 

Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001). The FEC’s 1994 rulemaking, 

which yielded the current PAC Name Prohibition, acknowledged that the 1992 

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version of the regulation was overbroad and applied to situations in which the 

government’s purported interests were not advanced – namely, where an 

unauthorized political committee uses the name of a candidate in project titles that 

demonstrate opposition to that candidate. See 1994 Final Rule, 59 Fed. Reg. at

17,269. Accordingly, the FEC took the position in 1994 that the PAC Name

Prohibition cannot function properly (in its view) without the opposition exception.

The current version of the regulation operates as a coherent whole because the 

exemption at subsection (b)(3) attempts to tailor the regulation to the government’s 

claimed interests. It is this coherent whole that PAG challenges.

In its opposition brief, the FEC does not assert that the agency intended the 

opposition exception to be severable. The FEC merely asserts that the opposition 

exception was an attempt to narrowly tailor the regulation. (FEC Oppn. Br. at 54). 

Based on the current administrative record, subsection (b)(3) cannot be regarded as 

severable. See MD/DC/DE Broadcasters Ass'n, 236 F.3d at 22. The PAC Name

Prohibition, including its opposition exception, must be taken together as a whole, 

and declaring the FEC’s current interpretation of the PAC Naming Prohibition

(with its content-based regulation of “special projects names”) unconstitutional

would redress PAG’s injuries. 

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B. THE REGULATION IS A CONTENT-BASED SPEECH BAN. 

It is difficult to comprehend how a regulation that censors speech that 

communicates support of a candidate, but permits speech in opposition to a 

candidate, is “disclosure.”

i. The PAC Name Prohibition Is Not A Disclosure Regulation.

The FEC fancifully analogizes its PAC Name Prohibition to this Court’s 

rules concerning the assignment of the color blue to the briefs from appellants and 

red to appellee’s briefs. (FEC Oppn. Br. at 56). The FEC contends that its PAC 

Name Prohibition is like the color of briefs that help identify who is speaking. (Id.)

But this Court’s assignment of cover colors in briefs is based solely on whether the 

party won or lost at the district court below. 

By contrast, the PAC Name Prohibition distinguishes based on the content 

of the message conveyed. The FEC would permit PAG’s ideological opponents to 

maintain a website URL of www.iloathemikehuckabee.com, because “I loathe 

Mike Huckabee” is a clear expression of opposition. But the FEC prohibits PAG 

from using www.ilikemikehuckabee.com solely because the message “I like Mike 

Huckabee” communicates support for Mike Huckabee. The FEC has no authority 

to license those who oppose candidates to use candidate’s names at will while 

prohibiting those expressing support for candidates from using the same

candidate’s name. See R. A. V. v. St. Paul, 505 U.S. 377, 392 (1992) (“[The FEC] 

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has no such authority to license one side of a debate to fight freestyle, while 

requiring the other to follow Marquis of Queensberry rules.”).

The FEC also analogizes the PAC Name Prohibition to the FEC’s regulation 

that provides a “safe harbor” procedure to treasurers using their best efforts to 

obtain required identifying information from contributors. See 11 C.F.R. § 

104.7(b)(2); see also (FEC Oppn. Br. at 56-57) (relying on Republican Nat'l 

Comm. v. Federal Election Comm'n, 76 F.3d 400 (D.C. Cir. 1996)). RNC v. FEC

is materially distinguishable because the safe harbor provision at issue was not 

mandatory. Treasurers are required to use their “best efforts” to obtain, maintain, 

and report certain contributors’ names, addresses, occupations, and employers’ 

names on disclosure reports submitted to the FEC. See 52 U.S.C. § 30102(i). 

Congress did not define “best efforts.” The FEC created a “safe harbor” that 

provides an optional method that committee treasurers may use to inoculate 

themselves from accusations that they failed to use their “best efforts” to obtain 

donor information. RNC, 76 F.3d at 409. The Court reasoned that if the Buckley

Court upheld mandatory disclosure requirements, then an optional safe harbor 

pertaining to these disclose requirements also passed constitutional muster. Id. The 

court treated safe harbor regulation as content-neutral because it applies to all 

committees equally, without regard to any messages conveyed. See id. at 410. By 

contrast, the PAC Name Prohibition is not a safe harbor, but a mandatory 

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prohibition that applies to committees that express support for a candidate in a 

special project title, but not to a committee expressing opposition.

The PAC Name Prohibition prohibits political committees like PAG from

using its website URL, title of its Facebook page, and Twitter handle to 

communicate support of the committee’s preferred candidate. Any other person 

could use the identifiers that PAG is prohibited from using. At the same time, a 

similar unauthorized political committee is permitted to express opposition to a 

candidate with a website entitled www.iloathemikehuckabee.com, the I Loathe 

Mike Huckabee Facebook page, and the Twitter handle “ILoatheHuckabee.”

Because the PAC Name Prohibition prohibits PAG’s expression of support for 

Mike Huckabee, it is a content-based regulation and is therefore unconstitutional. 

See (Op. Br. at 48-51).

ii. Reed Controls the Outcome Of This Case. 

The FEC contends that Reed v. Town of Gilbert is inapplicable because the 

PAC Name Prohibition permits PAG to discuss candidates and use the candidate’s 

name throughout the communication and even highlight the candidate’s name. 

(FEC Oppn. Br. at 57). The FEC fails to recognize Reed’s most basic points. This 

case is not about what PAG is permitted to say on its web page, on its Facebook 

page, or in its Twitter feed. Rather, this case is about what PAG is prohibited from 

saying in its website URL, Facebook page title, and Twitter handle. The Supreme 

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Court did not condition its decision in Reed on the availability of other speech 

outlets.

iii. The PAC Name Prohibition Is Not Analogous To Disclaimers

The FEC contends that the PAC Name Prohibition is no different than 

FECA’s compelled speech disclaimers. (FEC Oppn. Br. at 55 and 59). What

distinguishes compelled speech disclaimers from the PAC Name Prohibition is that 

the compelled speech disclaimers apply to all unauthorized political committees 

regardless of the content of the message. See 52 U.S.C. § 30120(a)(3). By 

contrast, the PAC Name Prohibition applies only to political committees that do 

not unambiguously show opposition to a candidate in a special project name. See

11 C.F.R. § 102.14(b)(3). 

iv. There Is No Distinction Between Regulating Website URLs, 

Facebook Page Titles, Or Twitter Handles And The Title Of A 

Book. 

The FEC turns the supposedly “crystalline” PAC Name Prohibition into an 

indecipherable regulatory morass in an effort to explain why its PAC Name 

Prohibition does not apply to book or documentary titles. (FEC Oppn. Br. at 60). 

After reading the FEC’s explanation, it is altogether unclear why a website URL, 

Facebook page title, or Twitter handle is a “special project” whereas a book or 

movie title is not. 

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According to the FEC, PAG could in fact “legally produce a book or movie 

titled ‘I Like Mike Huckabee.’ First, the FEC explains that the PAC Name

Prohibition “refers to ‘any name under which a committee conducts activities.’” 

Id. (emphasis in original). However, the PAC Naming Prohibition “does not apply

to every project or communication done under the committee’s own name.” Id. 

(emphasis in original). A book or movie is, apparently, the latter. For example, 

“‘Hillary: The Movie’ was a film produced by Citizens United, and was not a name 

under which Citizens United was conducting activities.” Id. at 60 n. 10 (emphasis 

in original). 

The FEC also explains that “PAG’s hypothetical book or movie ‘I Like 

Mike Huckabee’ would not be confusing with respect to who is speaking, because 

unless PAG (fraudulently) uses Mr. Huckabee’s name as the author of the book or 

script, it would not be understood to be by Mr. Huckabee; it would be by PAG.” 

(FEC Oppn. Br. at 60) (emphasis in original). The exact same rationale could be 

applied to PAG’s website URL, Facebook page title, and Twitter handle, and it is 

entirely unclear why the FEC respects the intelligence of the American people 

enough to determine who produced a book or movie, but not enough to determine 

who produced a webpage, Facebook page, or Twitter account. PAG’s website 

URL—just like the title of a book—could not cause confusion because PAG puts 

at the bottom of its web page the disclaimer ‘Paid for by Pursuing America’s 

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Greatness. Not authorized by any candidate or candidate’s committee. 

www.ilikemikehuckabee.com.’ This disclaimer serves the exact same function as 

the identification of the author at the bottom of a typical book cover. In neither 

case would anyone mistake the title for the author. Cf. (FEC Oppn. Br. at 60). The 

same is true of a Facebook page title or Twitter handle – neither serves as the 

“name under which a committee conducts activities.”

Furthermore, the FEC contends that “the Commission has never determined 

that a published book (or chapter in a book) or feature-length film like ‘Hillary: 

The Movie’ is a special project of a committee.” (FEC Oppn. Br. at 60). That the 

FEC has never considered the issue is no guarantee that it will not apply its 

regulation to book and movie titles in the future. The FEC contends that there is no 

record in the 1992 rulemakings or in the 1994 rulemakings that the PAC Naming 

Prohibition was intended to regulate books. (Id.). Of course, there is also no record 

in those rulemakings of any consideration of websites, Facebook pages, or Twitter 

handles. Yet, in the Collective Actions PAC advisory opinion, the FEC 

nevertheless applied the PAC Name Prohibition to a website URL, Facebook page 

title, and Twitter handles. The FEC made this decision despite the fact that the 

1992 and 1994 rulemakings never addressed internet communications, despite a 

2006 rulemaking that announced a general policy of non-regulation of the internet, 

and despite a regulation that does not require disclaimers on most internet 

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communications. See 11 C.F.R. § 110.11(a); 11 C.F.R. § 100.26; Final Rule on 

Internet Communications, 71 Fed. Reg. 18,589 (April 12, 2006). See (Op. Br. at 

65). 

The FEC’s stumbling response makes clear that there is no principled 

distinction to be made between book and movie titles, and website URLs, 

Facebook page, and Twitter handles. Yet the PAC Name Prohibition somehow 

requires different results. This Court should declare the PAC Name Prohibition 

unconstitutional. 

Moreover, it is—to say the least—confusing when the government says that

in order to prevent fraud and confusion, a committee may not use a candidate’s 

name to communicate support for that candidate in the URL of a website or title 

of a Facebook pages, but the committee may use the candidate’s name in the title 

of a book or movie. In this case, the FEC’s own hypothetical clearly and plainly 

demonstrates that the FEC’s position in this case is wholly inconsistent with what 

is permissible under the First Amendment. The FEC’s litigating position with 

respect to whether the PAC Name Prohibition applies to book and movie titles is 

entirely different from its legal position in the Collective Actions PAC advisory 

opinion regarding website URLs, Facebook page titles, and Twitter handles. It 

cannot be that the former are not “special project names” while the latter are. 

This irreconcilable difference strongly suggests that one or the other position is 

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arbitrary and capricious. See Citizens United, 558 U.S. at 326 (stating that courts 

must decline to draw constitutional lines based on the media used to disseminate 

speech from a particular speaker).

Finally, the FEC contends that courts have declined to apply Reed to 

campaign finance statutes. (FEC Oppn. Br. at 57-58) (citing Wagner v. FEC 793 

F.3d 1 (D.C. Cir. 2015) and Stop Hillary PAC). As PAG noted in its opening 

brief, (Op. Br. at 55 n.16), the parties in Wagner did not brief Reed or its 

application to the case. In cases where Reed is plainly applicable, courts have 

applied Reed’s framework, including in cases involving statutes that seek to 

regulate speech in order to prevent fraud. See, e.g., U.S. v. Swisher, No. 11-35796, 

2016 U.S. App. LEXIS 375 *40 (9th Cir. Jan. 11, 2016) (en banc).

Once it is determined that the PAC Name Prohibition is content-based, the 

prohibition must be subjected to strict scrutiny, and declared unconstitutional. 

Fighting words, defamation, and obscenity are the only types of content-based 

regulations the Supreme Court has allowed. See R.A.V., 505 U.S. at 382-83. The 

PAC Name Prohibition is not any of these. 

III. THE PAC NAME PROHIBITION IS A PRIOR RESTRAINT 

BECAUSE THE REGULATION IS VAGUE REQUIRING 

POTENTIAL SPEAKERS TO SEEK AN ADVISORY OPINION 

PRIOR TO SPEAKING.

PAG is restrained from communicating its support of Mike Huckabee in its 

website URL, Facebook page, and Twitter handle. The FEC’s argument that the

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PAC Name Prohibition does not prevent PAG from speaking—as evidenced by 

PAG’s published communications—is not correct. (FEC Oppn. Br. at 25-26, 61).

PAG is not challenging its ability to speak on its website and Facebook page. PAG

is challenging the FEC’s regulation that prohibits PAG from communicating its 

support for Mike Huckabee in its website address, and Facebook page title, and 

potentially with the Twitter handle @ ilikemikehuckabee. The PAC Name

Prohibition restrains PAG’s speech on its website URL, Facebook page, and 

Twitter handle. 

Second, an FEC advisory opinion is an administrative order that constitutes 

final agency action and provides a safe harbor to those in materially 

indistinguishable circumstances. See 52 U.S.C. § 30108(c)(1-2); see Unity08 v. 

FEC, 596 F.3d 861, 864-65 (D.C. Cir. 2010); FEC v. NRA of Am., 254 F.3d 173, 

185 (D.C. Cir. 2001) (“[A]dvisory opinions have binding legal effect on the 

Commission”). The Collective Actions PAC Advisory Opinion—which 

apparently contradicts FEC regulations exempting internet communications from 

disclosure and disclaimer rules, 11 C.F.R. § 110.11(a)—constitutes final agency 

action. Because PAG is in a materially indistinguishable position, PAG is on notice 

for potential criminal sanctions for willful and knowing violations. See 52 U.S.C. § 

30109(d); see (Op. Br. at 67). Thus, PAG’s desire to communicate its support for 

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Mike Huckabee through PAG’s website URL, Facebook page, and Twitter handle 

is restrained. 

The FEC does not deny this line of reasoning. Instead, the FEC advances its 

own reasoning that prior restraints rely on the distinction between barring speech 

in the future and penalizing past speech. (FEC Oppn. Br. at 62). But this 

distinction does not address PAG’s concern that the FEC issued a final 

administrative order that could be used as evidence against PAG for a knowing and 

willful violation if PAG were to continue using www.ilikemikehuckabee.com as its 

website address. PAG is forced to choose between foregoing speech or risking 

protracted litigation, civil penalties and criminal sanctions. See Citizens United, 

558 U.S. at 335 (noting that because federal campaign finance regulations are 

complex, and that courts show great deference to FEC determinations, the speaker 

who wishes to avoid criminal prosecution and expenses of defending oneself in an 

FEC proceeding “[m]ust ask a governmental agency for prior permission to 

speak....”).

Further, the FEC mistakenly relies on Buckley’s determination that the 

disclosure requirements do not constitute a prior restraint. But as Buckley itself 

made clear, the disclosure regulations do not impose a ceiling on campaign related 

activities, Buckley, 424 U.S. at 64, and do not prevent anyone from speaking. 

Citizens United, 558 U.S. at 366. Reliance on Buckley here is misplaced because 

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the PAC Name Prohibition does prohibit PAG from communicating its support for 

Mike Huckabee on its website URL, Facebook page title, and Twitter handle. 

Although—as PAG acknowledged in its opening brief at 63-64—it is true

that the Supreme Court in Citizens United determined that the regulation at issue 

there was not a prior restraint, the Court still said that the regulation functioned

“[a]s the equivalent of prior restraint....” See Citizens United, 558 U.S. at 335. The 

FEC’s sole defense to this point is that the regulation at issue in Citizens United

was a two-part 11-factor balancing test. By contrast, according to the FEC, the 

PAC Name Prohibition is “deliberately crystalline.” (FEC Oppn. Br. at 63). 

But as PAG demonstrated in its opening brief, and the FEC demonstrated in 

its opposition brief, the PAC Name Prohibition is not crystalline. The PAC Name

Prohibition, as applied in the Collective Actions PAC Advisory Opinion, now 

applies to websites where previously disclosure and disclaimer regulations did not 

apply. See 11 C.F.R. § 110.11(a); 11 C.F.R. § 100.26;

4

Final Rule on Internet 

Communications, 71 Fed. Reg. 18,589 (April 12, 2006). Furthermore, the FEC 

now says that books and movies would not be regulated because the 1992 and 

 

4

The FEC contends that 11 C.F.R. 110.11 does not conflict with the PAC Name

Prohibition because nothing in that regulation exempts PAG from compliance with 

the PAC Name Prohibition. (FEC Oppn. Br. at 66). PAG’s point here is if the FEC 

is correct that the PAC Name Prohibition is a disclosure regulation, then the FEC 

cannot regulate PAG’s internet activities because the FEC has largely exempted 

website communications from the disclosure requirements.

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1994 administrative records did not discuss regulating book titles and movies. 

(FEC Oppn. Br. at 60-61). But the record is also bereft of applying the PAC Name

Prohibition to the internet. Finally, the FEC says that it would not regulate books 

because it would be clear to the reader that the author of I Like Mike Huckabee is 

not Mike Huckabee. (FEC Oppn. Br. at 60). But the same could be said of the 

website URL that is www.ilikemikehuckabee.com coupled with the disclaimer at 

the bottom of the website that reads “Paid for by Pursuing America’s Greatness. 

Not authorized by any candidate or candidate’s committee. 

www.ilikemikehuckabee.com.” It is not clear what is covered under the PAC 

Name Prohibition and thus speakers must silence themselves or seek an advisory 

opinion. This is functionally a prior restraint. 

IV. PAG WILL BE IRREPARABLY HARMED ABSENT THE 

ISSUANCE OF AN INJUNCTION. 

It is undisputed that “[t]he loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. 

Burns, 427 U.S. 347, 373 (1976); see also Mills v. District of Columbia, 571 F.3d 

1304, 1312 (D.C. Cir. 2009). The PAC Name Prohibition bars PAG from 

communicating its support for Mike Huckabee in its website URL, Facebook page

title, and Twitter handle. This deprivation of its First Amendment rights is

irreparable harm to PAG. Cf. Virginia v. Hicks, 539 U.S. 113, 119 (2003). 

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The FEC’s contention that PAG may speak through direct mail or other 

websites that comply with the PAC Name Prohibition is of no constitutional 

significance. (FEC Oppn. Br. at 70-71). See Carey v. FEC, 791 F. Supp. 2d 121, 

134 (D.D.C. 2011) (rejecting the FEC’s argument that Plaintiff could convey its 

message in four obvious ways that would comply with FEC regulations because it 

required Plaintiff to forego First Amendment rights). PAG wishes to communicate 

support for Mike Huckabee in its website URL, Facebook page title, and Twitter 

handle. The FEC prohibits this while permitting others to oppose Mike Huckabee 

in those same mediums. The First Amendment does not condone the imposition of 

different rules for people supporting competing candidates for the same office. Cf. 

Davis v. FEC, 554 U.S. 724, 744 (2008); see also Reed, 135 S. Ct. at 2227. This 

issue cannot be resolved by changing the subject to whether PAG may speak in 

other ways, and PAG’s inability to communicate support through certain avenues 

that are open to others constitutes irreparable harm. See Elrod, 427 U.S. at 373.

V. ISSUING AN INJUNCTION IS IN THE PUBLIC’S INTEREST 

AND THE BALANCE OF THE HARMS WEIGHS IN FAVOR 

OF PAG.

The FEC offers two harms as reasons for why it is in the public’s interest for

this Court to deny PAG’s request for an injunction. 

First, the FEC claims there is already confusion as evidenced in the 

comments left on the Facebook page, and makes the baseless accusation that what 

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PAG really seeks is the ability to “imply authorization by using Mr. Huckabee’s 

name.” (FEC Oppn. Br. at 59, 71). Neither PAG nor the FEC knows whether 

persons who posted these comments were actually confused by PAG’s Facebook 

page. PAG has done absolutely nothing to mask itself as the source of any of its 

communications, and before the FEC issued the Collective Actions PAC advisory 

opinion, PAG’s Facebook page even included a disclaimer identifying PAG as the 

payor that was not legally required. The FEC’s suggestion that PAG wishes to

actively foster confusion is without any evidence. This Court should not ascribe 

constitutional significance to comments posted on a Facebook page in order to 

justify government restrictions on speech. To do so would simply open a new 

avenue for the government to regulate social media communications. 

Second, the FEC claims that enjoining the FEC from enforcing this 

regulation during the presidential election season would be imprudent. (FEC Oppn. 

Br. at 72). Courts have rejected the excuse that a campaign finance regulation was 

challenged during the presidential campaign season because “[s]tifling citizens’

speech rights during a Presidential campaign runs contrary to the entire history of 

First Amendment jurisprudence in this country.” Carey, 791 F. Supp. 2d at 132-

133 (enjoining the FEC from enforcing contribution limits against a hybrid PAC 

17 months prior to the presidential election). The fact that the presidential election 

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29

is eleven months away, and the first primaries are less than two weeks from now,

only means that the opportunity to speak is now. See id. at 134. 

CONCLUSION

For these reasons and for those stated in PAG’s opening brief, this Court 

should enjoin the FEC’s enforcement of its PAC Name Prohibition against PAG’s 

website URL, Facebook title page, and Twitter handle. 

Respectfully submitted January 20, 2016:

/s/ Jason Torchinsky

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

jtorchinsky@hvjt.law

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

jmbayes@hvjt.law

Shawn Toomey Sheehy

ssheehy@hvjt.law

Steven P. Saxe

spsaxe@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

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30

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:

This brief complies with the type-volume limitations set forth in Fed. R. 

App. P. 32(a)(7)(b)(i) because it contains 6,522 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 

been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 

Times New Roman 14-point font.

/s/ Jason Torchinsky

Jason Torchinsky

USCA Case #15-5264 Document #1594735 Filed: 01/20/2016 Page 36 of 51
31

CERTIFICATE OF SERVICE

I hereby certify that on January 20, 2016, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served.

Dated: January 20, 2016

 Respectfully submitted,

/s/ Jason Torchinsky

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

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

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ADDENDUM

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TABLE OF CONTENTS

Page

Federal Statutes

 52 U.S.C. § 30102(e)(4) ............................................................ 2

 52 U.S.C. § 30102(i) ................................................................ 2

 52 U.S.C. § 30108(c) ............................................................... 2

 52 U.S.C. § 30109(a) ............................................................... 3

 52 U.S.C. § 30109(d) ............................................................... 8

 52 U.S.C. § 30120(a)(3) ........................................................... ..9

Federal Regulations

 11 C.F.R. § 102.14 ................................................................. 10

 11 C.F.R. § 100.26 ................................................................. 11

 11 C.F.R. § 110.11 ................................................................. 11

 11 C.F.R. § 104.7 ....................................................................11

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FEDERAL STATUTES

52 U.S.C. § 30102(e)(4)

The name of each authorized committee shall include the name of the candidate 

who authorized such committee under paragraph (1). In the case of any political 

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

not include the name of any candidate in its name. 

52 U.S.C. § 30102(i)

Reports and records, compliance with requirements based on best efforts. When 

the treasurer of a political committee shows that best efforts have been used to 

obtain, maintain, and submit the information required by this Act for the political 

committee, any report or any records of such committee shall be considered in 

compliance with this Act or chapter 95 or chapter 96 of the Internal Revenue Code 

of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.].

52 U.S.C. § 30108(c)

(c) Persons entitled to rely upon opinions; scope of protection for good faith 

reliance.

 (1) Any advisory opinion rendered by the Commission under subsection (a) may 

be relied upon by--

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

which such advisory opinion is rendered; and

 (B) any person involved in any specific transaction or activity which is 

indistinguishable in all its material aspects from the transaction or activity with 

respect to which such advisory opinion is rendered.

 (2) Notwithstanding any other provisions of law, any person who relies upon any 

provision or finding of an advisory opinion in accordance with the provisions of 

paragraph (1) and who acts in good faith in accordance with the provisions and 

findings of such advisory opinion shall not, as a result of any such act, be subject 

to any sanction provided by this Act or by chapter 95 or chapter 96 of the Internal 

Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.].

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52 U.S.C. § 30109(a) and (d)

(a) Administrative and judicial practice and procedure.

 (1) Any person who believes a violation of this Act or of chapter 95 or chapter 96 

of the Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et 

seq.] has occurred, may file a complaint with the Commission. Such complaint 

shall be in writing, signed and sworn to by the person filing such complaint, shall 

be notarized, and shall be made under penalty of perjury and subject to the 

provisions of section 1001 of title 18, United States Code. Within 5 days after 

receipt of a complaint, the Commission shall notify, in writing, any person alleged 

in the complaint to have committed such a violation. Before the Commission 

conducts any vote on the complaint, other than a vote to dismiss, any person so 

notified shall have the opportunity to demonstrate, in writing, to the Commission 

within 15 days after notification that no action should be taken against such person 

on the basis of the complaint. The Commission may not conduct any investigation 

or take any other action under this section solely on the basis of a complaint of a 

person whose identity is not disclosed to the Commission.

 (2) If the Commission, upon receiving a complaint under paragraph (1) or on the 

basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its 

members, that it has reason to believe that a person has committed, or is about to 

commit, a violation of this Act or chapter 95 or chapter 96 of the Internal Revenue 

Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], the Commission 

shall, through its chairman or vice chairman, notify the person of the alleged 

violation. Such notification shall set forth the factual basis for such alleged 

violation. The Commission shall make an investigation of such alleged violation, 

which may include a field investigation or audit, in accordance with the provisions 

of this section.

 (3) The general counsel of the Commission shall notify the respondent of any 

recommendation to the Commission by the general counsel to proceed to a vote on

probable cause pursuant to paragraph (4)(A)(i). With such notification, the general 

counsel shall include a brief stating the position of the general counsel on the legal 

and factual issues of the case. Within 15 days of receipt of such brief, respondent 

may submit a brief stating the position of such respondent on the legal and factual 

issues of the case, and replying to the brief of general counsel. Such briefs shall be 

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4

filed with the Secretary of the Commission and shall be considered by the 

Commission before proceeding under paragraph (4).

 (4) (A) (i) Except as provided in clauses [clause] (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there is 

probable cause to believe that any person has committed, or is about to commit, a 

violation of this Act or of chapter 95 or chapter 96 of the Internal Revenue Code of 

1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], the Commission shall 

attempt, for a period of at least 30 days, to correct or prevent such violation by 

informal methods of conference, conciliation, and persuasion, and to enter into a 

conciliation agreement with any person involved. Such attempt by the Commission 

to correct or prevent such violation may continue for a period of not more than 90 

days. The Commission may not enter into a conciliation agreement under this 

clause except pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by the 

Commission, including the bringing of a civil proceeding under paragraph (6)(A).

 (ii) If any determination of the Commission under clause (i) occurs during the 

45-day period immediately preceding any election, then the Commission shall 

attempt, for a period of at least 15 days, to correct or prevent the violation involved 

by the methods specified in clause (i).

 (B) (i) No action by the Commission or any person, and no information 

derived, in connection with any conciliation attempt by the Commission under 

subparagraph (A) may be made public by the Commission without the written 

consent of the respondent and the Commission.

 (ii) If a conciliation agreement is agreed upon by the Commission and the 

respondent, the Commission shall make public any conciliation agreement signed 

by both the Commission and the respondent. If the Commission makes a 

determination that a person has not violated this Act or chapter 95 or chapter 96 of 

the Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et 

seq.], the Commission shall make public such determination.

 (C) (i) Notwithstanding subparagraph (A), in the case of a violation of a 

qualified disclosure requirement, the Commission may--

 (I) find that a person committed such a violation on the basis of information 

obtained pursuant to the procedures described in paragraphs (1) and (2); and

 (II) based on such finding, require the person to pay a civil money penalty 

in an amount determined, for violations of each qualified disclosure requirement, 

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under a schedule of penalties which is established and published by the 

Commission and which takes into account the amount of the violation involved, 

the existence of previous violations by the person, and such other factors as the 

Commission considers appropriate.

 (ii) The Commission may not make any determination adverse to a person 

under clause (i) until the person has been given written notice and an opportunity 

to be heard before the Commission.

 (iii) Any person against whom an adverse determination is made under this 

subparagraph may obtain a review of such determination in the district court of the 

United States for the district in which the person resides, or transacts business, by 

filing in such court (prior to the expiration of the 30-day period which begins on 

the date the person receives notification of the determination) a written petition 

requesting that the determination be modified or set aside.

 (iv) In this subparagraph, the term "qualified disclosure requirement" means 

any requirement of--

 (I) subsections (a), (c), (e), (f), (g), or (i) of section 304 [52 USCS § 

30104]; or

 (II) section 305 [52 USCS § 30105].

 (v) This subparagraph shall apply with respect to violations that relate to 

reporting periods that begin on or after January 1, 2000, and that end on or before 

December 31, 2018.

 (5) (A) If the Commission believes that a violation of this Act or of chapter 95 or 

chapter 96 of the Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. 

or 9031 et seq.] has been committed, a conciliation agreement entered into by the 

Commission under paragraphs (4)(A) may include a requirement that the person 

involved in such conciliation agreement shall pay a civil penalty which does not 

exceed the greater of $ 5,000 or an amount equal to any contribution or 

expenditure involved in such violation.

 (B) If the Commission believes that a knowing and willful violation of this Act 

or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 

USCS §§ 9001 et seq. or 9031 et seq.] has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may require 

that the person involved in such conciliation agreement shall pay a civil penalty 

which does not exceed the greater of $ 10,000 or an amount equal to 200 percent of 

any contribution or expenditure involved in such violation (or, in the case of a 

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violation of section 320 [52 USCS § 30122], which is not less than 300 percent of 

the amount involved in the violation and is not more than the greater of $ 50,000 or 

1,000 percent of the amount involved in the violation).

 (C) If the Commission by an affirmative vote of 4 of its members, determines 

that there is probable cause to believe that a knowing and willful violation of this 

Act which is subject to subsection (d), or a knowing and willful violation of 

chapter 95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 USCS 

§§ 9001 et seq. or 9031 et seq.], has occurred or is about to occur, it may refer such 

apparent violation to the Attorney General of the United States without regard to 

any limitations set forth in paragraph (4)(A).

 (D) In any case in which a person has entered into a conciliation agreement 

with the Commission under paragraph (4)(A), the Commission may institute a civil 

action for relief under paragraph (6)(A) if it believes that the person has violated 

any provision of such conciliation agreement. For the Commission to obtain relief 

in any civil action, the Commission need only establish that the person has 

violated, in whole or in part, any requirement of such conciliation agreement.

 (6) (A) If the Commission is unable to correct or prevent any violation of this 

Act or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 [1986] 

[26 USCS §§ 9001 et seq. or 9031 et seq.], by the methods specified in paragraph 

(4), the Commission may, upon an affirmative vote of 4 of its members, institute a 

civil action for relief, including a permanent or temporary injunction, restraining 

order, or any other appropriate order (including an order for a civil penalty which 

does not exceed the greater of $ 5,000 or an amount equal to any contribution or 

expenditure involved in such violation) in the district court of the United States for 

the district in which the person against whom such action is brought is found, 

resides, or transacts business.

 (B) In any civil action instituted by the Commission under subparagraph (A), 

the court may grant a permanent or temporary injunction, restraining order, or 

other order, including a civil penalty which does not exceed the greater of $ 5,000 

or an amount equal to any contribution or expenditure involved in such violation, 

upon a proper showing that the person involved has committed, or is about to 

commit (if the relief sought is a permanent or temporary injunction or a restraining 

order), a violation of this Act or chapter 95 or chapter 96 of the Internal Revenue 

Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.].

 (C) In any civil action for relief instituted by the Commission under 

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subparagraph (A), if the court determines that the Commission has established that 

the person involved in such civil action has committed a knowing a willful 

violation of this Act or of chapter 95 or chapter 96 of the Internal Revenue Code of 

1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], the court may impose a 

civil penalty which does not exceed the greater of $ 10,000 or an amount equal to 

200 percent of any contribution or expenditure involved in such violation (or, in 

the case of a violation of section 320 [52 USCS § 30122], which is not less than 

300 percent of the amount involved in the violation and is not more than the 

greater of $ 50,000 or 1,000 percent of the amount involved in the violation).

 (7) In any action brought under paragraph (5) or (6), subpenas for witnesses who 

are required to attend a United States district court may run into any other district.

 (8) (A) Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party under paragraph (1), or by a failure of the 

Commission to act on such complaint during the 120-day period beginning on the 

date the complaint is filed, may file a petition with the United States District Court 

for the District of Columbia.

 (B) Any petition under subparagraph (A) shall be filed, in the case of a 

dismissal of a complaint by the Commission, within 60 days after the date of the 

dismissal.

 (C) In any proceeding under this paragraph the court may declare that the 

dismissal of the complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 days, failing which the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.

 (9) Any judgment of a district court under this subsection may be appealed to the 

court of appeals, and the judgment of the court of appeals affirming or setting 

aside, in whole or in part, any such order of the district court shall be final, subject 

to review by the Supreme Court of the United States upon certiorari or certification 

as provided in section 1254 of title 28, United States Code.

 (10) [Repealed]

 (11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph (6), 

it may petition the court for an order to hold such person in civil contempt, but if it 

believes the violation to be knowing and willful it may petition the court for an 

order to hold such person in criminal contempt.

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 (12) (A) Any notification or investigation made under this section shall not be 

made public by the Commission or by any person without the written consent of 

the person receiving such notification or the person with respect to whom such 

investigation is made.

 (B) Any member or employee of the Commission, or any other person, who 

violates the provisions of subparagraph (A) shall be fined not more than $ 2,000. 

Any such member, employee, or other person who knowingly and willfully 

violates the provisions of subparagraph (A) shall be fined not more than $ 5,000

Subsection (d)

(d) Penalties; defenses; mitigation of offenses.

 (1) (A) Any person who knowingly and willfully commits a violation of any 

provision of this Act which involves the making, receiving, or reporting of any 

contribution, donation, or expenditure--

 (i) aggregating $ 25,000 or more during a calendar year shall be fined under 

title 18, United States Code, or imprisoned for not more than 5 years, or both; or

 (ii) aggregating $ 2,000 or more (but less than $ 25,000) during a calendar 

year shall be fined under such title, or imprisoned for not more than 1 year, or both.

 (B) In the case of a knowing and willful violation of section 316(b)(3) [52 

USCS § 30118(b)(3)], the penalties set forth in this subsection shall apply to a 

violation involving an amount aggregating $ 250 or more during a calendar year. 

Such violation of section 316(b)(3) [52 USCS § 30118(b)(3)] may incorporate a 

violation of section 317(b), 320, or 321 [52 USCS § 30119(b), 30122, or 30123].

 (C) In the case of a knowing and willful violation of section 322 [52 USCS § 

30124], the penalties set forth in this subsection shall apply without regard to 

whether the making, receiving, or reporting of a contribution or expenditure of $ 

1,000 or more is involved.

 (D) Any person who knowingly and willfully commits a violation of section 

320 [52 USCS § 30122] involving an amount aggregating more than $ 10,000 

during a calendar year shall be--

 (i) imprisoned for not more than 2 years if the amount is less than $ 25,000 

(and subject to imprisonment under subparagraph (A) if the amount is $ 25,000 or 

more);

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 (ii) fined not less than 300 percent of the amount involved in the violation 

and not more than the greater of--

 (I) $ 50,000; or

 (II) 1,000 percent of the amount involved in the violation; or

 (iii) both imprisoned under clause (i) and fined under clause (ii).

 (2) In any criminal action brought for a violation of any provision of this Act or 

of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 USCS 

§§ 9001 et seq. or 9031 et seq.], any defendant may evidence their lack of 

knowledge or intent to commit the alleged violation by introducing as evidence a 

conciliation agreement entered into between the defendant and the Commission 

under subsection (a)(4)(A) which specifically deals with the act or failure to act 

constituting such violation and which is still in effect.

 (3) In any criminal action brought for a violation of any provision of this Act or 

of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 USCS 

§§ 9001 et seq. or 9031 et seq.], the court before which such action is brought shall 

take into account, in weighing the seriousness of the violation and in considering 

the appropriateness of the penalty to be imposed if the defendant is found guilty, 

whether--

 (A) the specific act or failure to act which constitutes the violation for which 

the action was brought is the subject of a conciliation agreement entered into 

between the defendant and the Commission under subparagraph (a)(4)(A);

 (B) the conciliation agreement is in effect; and

 (C) the defendant is, with respect to the violation involved, in compliance with 

the conciliation agreement.

52 U.S.C. § 30120(a)(3)

(3) if not authorized by a candidate, an authorized political committee of a 

candidate, or its agents, shall clearly state the name and permanent street address, 

telephone number, or World Wide Web address of the person who paid for the 

communication and state that the communication is not authorized by any 

candidate or candidate's committee.

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FEDERAL REGULATIONS

11 C.F.R. § 102.14

(a) The name of each authorized committee shall include the name of the 

candidate who authorized such committee. Except as provided in paragraph (b) of 

this section, no unauthorized committee shall include the name of any candidate in 

its name. For purposes of this paragraph, "name" includes any name under which a 

committee conducts activities, such as solicitations or other communications, 

including a special project name or other designation.

(b)(1) A delegate committee, as defined at 11 CFR 100.5(e)(5), shall include the 

word delegate(s) in its name and may also include in its name the name of the 

presidential candidate which the delegate committee supports.

(2) A political committee established solely to draft an individual or to encourage 

him or her to become a candidate may include the name of such individual in the 

name of the committee provided the committee's name clearly indicates that it is a 

draft committee.

(3) An unauthorized political committee may include the name of a candidate in 

the title of a special project name or other communication if the title clearly and 

unambiguously shows opposition to the named candidate.

(c) The name of a separate segregated fund established pursuant to 11 CFR 

102.1(c) shall include the full name of its connected organization. Such fund may 

also use a clearly recognized abbreviation or acronym by which the connected 

organization is commonly known. Both the full name and such abbreviation or 

acronym shall be included on the fund's Statement of Organization, on all reports 

filed by the fund, and in all notices required by 11 CFR 109.11 and 110.11. The 

fund may make contributions using its acronym or abbreviated name. A fund 

established by a corporation which has a number of subsidiaries need not include 

the name of each subsidiary in its name. Similarly, a separate segregated fund 

established by a subsidiary need not include in its name the name of its parent or 

another subsidiary of its parent.

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11 C.F.R. § 100.26

 Public communication means a communication by means of any broadcast, 

cable, or satellite communication, newspaper, magazine, outdoor advertising 

facility, mass mailing, or telephone bank to the general public, or any other form of 

general public political advertising. The term general public political advertising 

shall not include communications over the Internet, except for communications 

placed for a fee on another person's Web site.

11 C.F.R. § 110.11

 (a) Scope. The following communications must include disclaimers, as specified 

in this section:

(1) All public communications, as defined in 11 CFR 100.26, made by a political 

committee; electronic mail of more than 500 substantially similar communications 

when sent by a political committee; and all Internet websites of political 

committees available to the general public.

(2) All public communications, as defined in 11 CFR 100.26, by any person that 

expressly advocate the election or defeat of a clearly identified candidate.

(3) All public communications, as defined in 11 CFR 100.26, by any person that 

solicit any contribution.

(4) All electioneering communications by any person.

11 C.F.R. § 104.7

(a) When the treasurer of a political committee shows that best efforts have 

been used to obtain, maintain and submit the information required by the Act for 

the political committee, any report of such committee shall be considered in 

compliance with the Act.

(b) With regard to reporting the identification as defined at 11 CFR 

100.12 of each person whose contribution(s) to the political committee and its 

affiliated political committees aggregate in excess of $ 200 in a calendar year (or in 

an election cycle in the case of an authorized committee) (pursuant to 11 CFR 

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104.3(a)(4)), the treasurer and the political committee will only be deemed to have 

exercised best efforts to obtain, maintain and report the required information if:

(1)

(i) All written solicitations for contributions include a clear request for 

the contributor's full name, mailing address, occupation and name of employer, and 

include an accurate statement of Federal law regarding the collection and reporting 

of individual contributor identifications.

(A) The following are examples of acceptable statements for 

unauthorized committees, but are not the only allowable statements: "Federal law 

requires us to use our best efforts to collect and report the name, mailing address, 

occupation and name of employer of individuals whose contributions exceed $ 200 

in a calendar year;" and "To comply with Federal law, we must use best efforts to 

obtain, maintain, and submit the name, mailing address, occupation and name of 

employer of individuals whose contributions exceed $ 200 per calendar year."

(B) The following are examples of acceptable statements for 

authorized committees, but are not the only allowable statements: "Federal law 

requires us to use our best efforts to collect and report the name, mailing address, 

occupation and name of employer of individuals whose contributions exceed $ 200 

in an election cycle;" and "To comply with Federal law, we must use best efforts to 

obtain, maintain, and submit the name, mailing address, occupation and name of 

employer of individuals whose contributions exceed $ 200 per election cycle."

(ii) The request and statement shall appear in a clear and conspicuous 

manner on any response material included in a solicitation. The request and 

statement are not clear and conspicuous if they are in small type in comparison to 

the solicitation and response materials, or if the printing is difficult to read or if the 

placement is easily overlooked.

(2) For each contribution received aggregating in excess of $ 200 per 

calendar year (or per election cycle, in the case of an authorized committee) which 

lacks required contributor information, such as the contributor's full name, mailing 

address, occupation or name of employer, the treasurer makes at least one effort 

after the receipt of the contribution to obtain the missing information. Such effort 

shall consist of either a written request sent to the contributor or an oral request to 

the contributor documented in writing. The written or oral request must be made 

no later than thirty (30) days after receipt of the contribution. The written or oral 

request shall not include material on any other subject or any additional 

solicitation, except that it may include language solely thanking the contributor for 

the contribution. The request must clearly ask for the missing information, and 

must include the statement set forth in paragraph (b)(1) of this section. Written 

requests must include this statement in a clear and conspicuous manner. If the 

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request is written, it shall be accompanied by a pre-addressed return post card or 

envelope for the response material;

(3) The treasurer reports all contributor information not provided by 

the contributor, but in the political committee's possession, or in its connected 

organization's possession, regarding contributor identifications, including 

information in contributor records, fundraising records and previously filed reports, 

in the same two-year election cycle in accordance with 11 CFR 104.3; and

(4)

(i) If any of the contributor information is received after the 

contribution has been disclosed on a regularly scheduled report, the political 

committee shall either:

(A) File with its next regularly scheduled report, an amended memo 

Schedule A listing all contributions for which contributor identifications have been 

received during the reporting period covered by the next regularly scheduled report 

together with the dates and amounts of the contribution(s) and an indication of the 

previous report(s) to which the memo Schedule A relates; or

(B) File on or before its next regularly scheduled reporting date, 

amendments to the report(s) originally disclosing the contribution(s), which 

include the contributor identifications together with the dates and amounts of the 

contribution(s).

(ii) Amendments must be filed for all reports that cover the two-year 

election cycle in which the contribution was received and that disclose itemizable 

contributions from the same contributor. However, political committees are not 

required to file amendments to reports covering previous election cycles.

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