UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

PURSUING AMERICA’S GREATNESS )

1130 Cantrell Road, Suite 301 )

Little Rock, Arkansas 72212, ) Civil Case No. 

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

999 E Street, NW )

Washington, DC 20463, )

)

Defendant. )

_________________________________________ )

MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65 and Local Rules 7 and 65.1, Plaintiff 

Pursuing America’s Greatness (“Plaintiff”) hereby moves for a preliminary injunction in this

case enjoining enforcement of 52 U.S.C. § 30102(e)(4) and 11 C.F.R. § 102.14(a), as 

interpreted and applied by Defendant in Advisory Opinion 2015-04 (collectively, the “PAC 

Naming Prohibition”), against Plaintiff with respect to Plaintiff’s website URLs, Facebook 

page, and Twitter handles, as described in Plaintiff’s Complaint and Memorandum of Points 

and Authorities in Support of Plaintiff’s Motion for Preliminary Injunction.

As more fully set forth in the accompanying Memorandum of Points and 

Authorities in Support of Motion for Preliminary Injunction and the Verified Complaint,

preliminary relief enjoining enforcement of the PAC Naming Prohibition is necessary to

allow Plaintiff to exercise its First Amendment freedoms of speech and association.

Plaintiffs seek a declaration that: (1) the FEC’s application of the PAC Naming 

Case 1:15-cv-01217 Document 2 Filed 07/27/15 Page 1 of 3
Prohibition in Advisory Opinion 2015-04 to Plaintiff’s proposed communications is void 

under 5 U.S.C. § 706 and is unconstitutional under the First Amendment. 

Plaintiffs are entitled to a preliminary injunction because: (1) Plaintiff “is likely to

succeed on the merits” in proving that the naming prohibition violates the Administrative 

Procedures Act and the First Amendment; (2) Plaintiff is “likely to suffer irreparable harm in

the absence of preliminary relief”; (3) “the balance of equities tips in [Plaintiffs’] favor”; and

(4) “an injunction is in the public interest.” See Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008).

Plaintiffs have established likely success on the merits, demonstrated that they will be 

irreparably harmed, that an injunction will not substantially harm the Defendant, the Federal 

Election Commission, that an injunction serves the public interest and there is no adequate 

remedy at law. Because a preliminary injunction sets forth no monetary risk to the FEC, 

Plaintiff requests that any bond requirement should be waived. In accord with Local Rule of 

Civil Procedure 65.1(c), Plaintiffs have filed a Verified Complaint contemporaneously with 

this request for injunctive relief. Verified Complaints are the legal equivalent of an affidavit. 

See Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992); Mallick v. lnt'l Broth. of Elec. Workers, 

814 F.2d 674, 680 (D.C. Cir. l 987).

Pursuant to Local Rule 7(m), Plaintiffs hereby state that their counsel conferred

with counsel for the Defendant, who indicated that Defendants intend to oppose Plaintiffs'

Motion for a Preliminary Injunction.

As detailed in the accompanying Memorandum, Plaintiffs request that this Court

grant its preliminary injunction motion and preliminarily enjoin the FEC from enforcing the 

PAC Naming Prohibition to Plaintiff’s current and proposed activities until a final hearing on 

the merits of this matter.

Case 1:15-cv-01217 Document 2 Filed 07/27/15 Page 2 of 3
Request for oral argument

Pursuant to Local Rule 7(f), Plaintiffs respectfully submit that oral argument will assist

the Court’s resolution of these issues. 

Respectfully submitted,

/s/ Jason Torchinsky

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

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

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

jtorchinsky@hvjlaw.com

mbayes@hvjlaw.com

ssheehy@hvjlaw.com

Counsel for Plaintiff Pursuing America’s Greatness

Dated: July 27, 2015 

Case 1:15-cv-01217 Document 2 Filed 07/27/15 Page 3 of 3
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

PURSUING AMERICA’S GREATNESS )

11300 Cantrell Road, Suite 301 )

Little Rock, Arkansas 72212, ) Case No. 

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

999 E Street, NW )

Washington, DC 20463, )

)

Defendant. )

_________________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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

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

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Counsel for Plaintiff Pursuing America’s Greatness

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 1 of 46
i

TABLE OF CONTENTS

Page(s)

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

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

STATEMENT OF FACTS........................................................ 1

I. Background........................................................ 1

II. The PAC Naming Prohibition Regulation................... 2

A. The FEC’s Original View of the PAC Naming 

Prohibition (1980-1992)................................. 3

B. The FEC’s 1992 Rulemaking Expanded The

Scope of the PAC Naming Prohibition.............. 4

C. The FEC’s 1994 Rulemaking Recognized The 

Overbreadth of the 1992 Rule........................ 6

D. FEC Application of PAC Naming Prohibition

to Website URLs......................................... 8

III. FEC Advisory Opinion 2015-04 (Collective Actions 

PAC)................................................................. 11

IV. Application of Advisory Opinion 2015-04 to Plaintiff..... 14

STANDARD OF REVIEW....................................................... 16

ARGUMENT......................................................................... 18

I. Plaintiff Is Likely To Succeed On The Merits............... 18

A. Plaintiff’s Administrative Procedure Act 

Challenge to the PAC Naming Prohibition......... 18

1. Advisory Opinion 2015-04 is a Final 

Agency Action Upon Which PAG May 

Legally Rely....................................... 18

2. The FEC’s Interpretation and Application

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 2 of 46
ii

of the PAC Naming Prohibition in 

Advisory Opinion 2015-04 is Arbitrary,

Capricious, and In Excess of the FEC’s

Statutory Authority............................. 20

B. The FEC’s PAC Naming Prohibition is an Impermissible Prior Restraint on Speech and an Impermissible Content-Based Speech Restriction......... 22

1. The PAC Naming Prohibition Is An

Unconstitutional Prior Restraint............. 23

a. The Law of Prior Restraints......... 23

b. Application to PAC Naming 

Prohibition.............................. 25

2. The PAC Naming Prohibition is an 

Impermissible Content-Based Speech 

Restriction........................................ 28

a. Content-Based Speech Regulation... 28

b. Application to PAC Naming 

Prohibition................................ 29

II. Threat of Irreparable Harm...................................... 31

III. Balance of Harms................................................... 33

IV. Public Interest....................................................... 34

PLAINTIFF SATISFIES THE REQUIREMENTS OF STANDING...... 34

REQUEST FOR NOMINAL BOND UNDER RULE 65(c).................. 37

CONCLUSION........................................................................ 38

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 3 of 46
iii

TABLE OF AUTHORITIES

Cases Page(s)

Alexander v. United States, 509 U.S. 544 (1993)........................ 23

Alliance for Community Media v. FCC, 

56 F.3d 105 (D.C. Cir. 1995)................................................ 23

Am. Civil Liberties Union v. Ashcroft, 

322 F.3d 240 (3d Cir. 2003)................................................ 33

Am. Federation of Gov’t Employees, AFL-CIO v. O’Connor, 

747 F.2d 748 (D.C. Cir. 1984)............................................. 19

Am. Freedom Defense Initiative v. Wash. Metro. Area Transit 

Auth., 898 F. Supp. 2d 73 (D.D.C. 2012)................................. 29, 34

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004).......... 17

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979).. 35

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)..................... 24, 25

Bennett v. Spear, 520 U.S. 154 (1997).................................... 19

Buckley v. Valeo, 424 U.S. 1 (1976)....................................... 2, 21

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C 2011)....................... 18, 34

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)......... 35

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006).............................................. 32

Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 

333 U.S. 103 (1948).......................................................... 19

Church of Scientology Flag Serv. v. City of Clearwater, 

2 F.3d 1514 (11th Cir. 1993)................................................ 27-28

Citizens United v. FEC, 558 U.S. 310 (2010)............................. 2, 18, 21, 24

Cobell v. Norton, 225 F.R.D. 41 (D.D.C. 2004).......................... 37

Common Cause v FEC, 842 F.2d 436 (D.C. Cir. 1988)................. 3-5

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 4 of 46
iv

Comm. on Jobs Candidate Advocacy Fund v. Herrera, 

2007 U.S. Dist. LEXIS 73736 (N.D. Cal. Sept. 20, 2007)............. 37

Davis v. Billington, 

2014 U.S. Dist. LEXIS 175213 (D.D.C. Dec. 19, 2014)............... 33

Davis v. Pension Benefit Guaranty Corp., 

571 F.3d 1288 (D.C. Cir. 2009)............................................ 17

Dombrowski v. Pfister, 380 U.S. 479 (1965)............................. 35

Elec. Privacy Info. Ctr. v. Dep’t of Justice, 

15 F. Supp. 3d 32 (D.D.C. 2014).......................................... 16, 17

Elrod v. Burns, 427 U.S. 347 (1976)...................................... 32

Environmental Defense Fund, Inc. v. Ruckelshaus, 

439 F.2d 584 (D.C. Cir. 1971)............................................. 20

FCC v. League of Women Voters of California, 

468 U.S. 364 (1984)......................................................... 29

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001)...... 19, 36

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)............ 18

Fischer v. City of St. Paul, 894 F. Supp. 1318 (D. Minn. 1995)....... 23

Franklin v. Massachusetts, 505 U.S. 788 (1992)........................ 19

Hispanic Leadership Fund, Inc. v. FEC, 

897 F. Supp. 2d 407 (E.D.Va. 2012)....................................... 20

Illinois ex rel. Madigan v. Telemarketing Assocs., 

538 U.S. 600 (2003)......................................................... 27

Indian River Cnty. v. Rogoff, 

2015 U.S. Dist. LEXIS 74895 (D.D.C. June 10, 2015)................. 17

Joelner v. Village of Washington Park, 

378 F.3d 613 (7th Cir. 2004)............................................... 32

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009)......... 32

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 5 of 46
v

Lebron v. Wash. Metro. Area Transit Auth., 

749 F.2d 893 (D.C. Cir. 1984)............................................. 34

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................... 34

Martin-Marietta Corp. v. Bendix Corp., 

690 F.2d 558 (6th Cir. 1982)............................................... 34

McCullen v. Coakley, 134 S. Ct. 2518 (2014)........................... 29

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974)........ 27

Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009)........ 32

National Conservative Political Action Committee v. FEC, 

626 F.2d 953 (D.C. Cir. 1980)............................................. 20

Near v. Minnesota, 283 U.S. 697 (1931)................................. 24

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)........... 25

New York Progress & Prot. PAC v. Walsh, 

733 F.3d 483 (2d Cir. 2013)................................................ 32, 33, 34

New York Times Co. v. United States, 403 U.S. 713 (1971)........... 24

Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003).............. 37

Organization for a Better Austin v. Keefe, 402 U.S 415 (1971)....... 24

Perry Educ. Ass’n v. Perry Local Educators Ass’n, 

460 U.S. 37 (1983)........................................................... 29

Pittsburgh Press Co. v. Pittsburgh Com. On Human Relations, 

413 U.S. 376 (1973)......................................................... 24

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972)................ 27, 29

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)........................ 28-29, 30-31

Secretary of Maryland v. Joseph H. Munson Co., 

467 U.S. 947 (1984)......................................................... 27

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)...................... 17

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 6 of 46
vi

Sierra Club v. United States Army Corps of Eng’rs, 

990 F. Supp. 2d 9 (D.D.C. 2013).......................................... 33

Smith v. Board of Election Comm’rs, 

591 F. Supp. 70 (N.D. Ill. 1984)........................................... 37

SpeechNow.org v. FEC, 599 F.3d 686 (2010)........................... 2, 22

Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991).................... 37

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2009)......................... 19, 20, 36

U.S. v. National Treasury Employee Union, 513 U.S. 454 (1995).... 27

U.S. v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000).............. 17

U.S. v. Raines, 362 U.S. 17 (1960)......................................... 34

Vance v. Universal Amusement Co., 445 U.S. 308 (1980).............. 24

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988)... 35

Virginia Soc’y for Human Life, Inc. v. FEC, 

263 F.3d 379 (4th Cir. 2001)................................................ 35, 36

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987)........................ 32

Wash. Metro. Area Transit Auth. v. Local 689, Amalgamated 

Transit Union, 2015 U.S. Dist. LEXIS 83838 

(D.D.C. June 29, 2015)....................................................... 16-17, 33

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)........... 16, 17, 33

Statutes

52 U.S.C. § 30102............................................................ 1, 2, 15

52 U.S.C. § 30108............................................................ 14

Regulations

11 C.F.R. § 102.14............................................................ passim

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 7 of 46
vii

Other

Federal Election Commission Advisory Opinion 1995-09 

(NewtWatch PAC)........................................................... 8

Federal Election Commission Advisory Opinion 2010-09 

(Google)....................................................................... 10

Federal Election Commission Advisory Opinion 2011-09 

(Facebook)................................................................... 10

Federal Election Commission Advisory Opinion 2015-04 

(Collective Actions PAC)................................................... passim

Federal Election Commission Final Rules on Internet Activity, 

71 Fed. Reg. 18,589 (April 12, 2006)..................................... 9-10

Federal Election Commission Final Rule on Prohibited and 

Excessive Contributions: Non-Federal Funds or Soft Money, 

67 Fed. Reg. 49,064 (July 29, 2002)...................................... 9

Federal Election Commission Final Rule on Special Fundraising 

Projects and Other Use of Candidate Names by Unauthorized 

Committees, 57 Fed. Reg. 31,424 (July 15, 1992)...................... passim

Federal Election Commission Final Rule on Special Fundraising 

Projects and Other Use of Candidate Names by Unauthorized 

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

Federal Election Commission Matter Under Review 6399 (Yoder), 

Statement of Reasons of Vice Chair Caroline C. Hunter and 

Commissioners Donald F. McGahn and Matthew S. Petersen.......... 10, 13

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 8 of 46
1

INTRODUCTION

Pursuing America’s Greatness (“PAG”) requests that this Court issue a 

preliminary injunction enjoining Defendant Federal Election Commission (the “FEC”) 

from applying its political committee naming prohibition at 52 U.S.C. § 30102(e)(4) and 

11 C.F.R. § 102.14 (the “PAC Naming Prohibition”) to PAG’s use of a website Uniform 

Resource Locator (“URL”) and social media accounts in a manner that restricts PAG’s 

ability to communicate with its supporters about matters related to the election of 

candidates to federal office. The FEC’s regulation is a complete ban on speech that 

inhibits the ability of certain political committees to engage in constitutionally-protected 

independent expenditures. The FEC’s recent Advisory Opinion interpreting and applying 

the PAC Naming Prohibition violates the Administrative Procedures Act (APA), as well 

as the First Amendment insofar as it is a prior restraint and a content-based speech 

restriction. Because Plaintiffs are likely to prevail on the merits, and the other 

requirements for preliminary relief are satisfied, this Court should preliminarily enjoin 

application of the PAC Naming Prohibition to PAG’s activities, as set forth herein.

STATEMENT OF FACTS

I. BACKGROUND

Pursuing America’s Greatness (PAG) is a non-profit organization that operates 

pursuant to Section 527 of the Internal Revenue Code of 1986, as amended. PAG filed 

Articles of Incorporation in the State of Arkansas on March 5, 2015, and registered with 

the FEC as an independent expenditure-only committee on March 11, 2015, when it filed 

FEC Form 1 (Statement of Organization). PAG is not authorized by any candidate or 

candidate’s committee, and is considered an “unauthorized” political committee by the 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 9 of 46
2

FEC.

The Federal Election Commission (FEC) is the independent federal regulatory 

agency charged with civil enforcement of the Federal Election Campaign Act of 1971, as 

amended. The FEC is located in Washington, D.C.

An independent political committee’s independent expenditure activities are 

constitutionally protected under Buckley v. Valeo, 424 U.S. 1 (1976), Citizens United v. 

FEC, 558 U.S. 310 (2010), and SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

The First Amendment protects PAG’s right to make independent expenditures, engage in 

independent political activities, and otherwise exercise its rights to free speech and 

association. PAG wishes to exercise its First Amendment rights by engaging in certain 

speech activity with the advance knowledge that its activities comply with the 

requirements of FECA and that the FEC will not pursue enforcement action against PAG.

II. THE PAC NAMING PROHIBITION REGULATION

FECA provides: “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(e)(4).1 This statutory language is 

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

Except as provided in paragraph (b) of this section, no unauthorized 

committee shall include the name of any candidate in its name. For 

purposes of this paragraph, ‘name’ includes any name under which a 

committee conducts activities, such as solicitations or other 

communications, including a special project name or other designation.

 

11 C.F.R. § 102.14(a). Under paragraph (b), so-called “draft committees” are exempt 

from this prohibition.2 11 C.F.R. § 102.14(b)(2). In addition, the FEC’s regulations 

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

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

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 10 of 46
3

create an exception for certain uses of candidate names where opposition to that 

candidate is demonstrated: “An unauthorized political committee may include the name 

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

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

102.14(b)(3).

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

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

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

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

name under which its registers.

3 See Federal Election Commission Final Rule on Special 

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

59 Fed. Reg. 17,267 (April 12, 1994) (the “1994 Final Rule”) (“Prior to the 1992 

revision, the Commission had construed this prohibition as applying only to the name 

under which a committee registers with the Commission.”). As the D.C. Circuit 

explained, 

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

official or formal name under which a political committee must register. 

Following this interpretation, a political committee has only one “name,” 

even though it may rely on various “project” names to help collect money 

and achieve its other goals. This view obviously comports with the plain 

language of § [30102](e)(4), which refers to the “name” of a political 

committee in the singular. It is also consistent with the avowed purpose 

of § [30102](e)(4), to eliminate confusion; each committee has only one 

official name, which identifies it immediately either as an authorized or 

unauthorized committee, and which it must use in disclosing its 

sponsorship of all paid advertisements.

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

																																																																																																																																																																																				

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

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

“Americans for Obama PAC” or “United for Romney PAC.” 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 11 of 46
4

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

Naming Prohibition against a challenge brought by Common Cause, which argued that 

the provision must be read to extend beyond the PAC’s formal (registration) name and 

also include “any title under which such a committee holds itself out to the public for 

solicitation or propagandizing purposes.” Common Cause v. FEC, 842 F.2d 436, 441 

(D.C. Cir. 1988). The D.C. Circuit determined that Common Cause’s preferred 

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

after extensively reviewing the legislative history of the relevant statutory provision, 

ultimately concluded that “[i]t seems downright unlikely that Congress would have 

enacted so broad a reform affecting the projects of unauthorized committees without a 

single word of explanation or debate,” and the FEC’s interpretation “is the better 

interpretation.” Id. at 444, 448.

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

Naming Prohibition

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

against in Common Cause v. FEC, despite having been told by the D.C. Circuit in 1988 

that the agency’s longstanding interpretation of the PAC naming provision was “the 

better interpretation.” See Federal Election Commission Final Rule on Special 

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

57 Fed. Reg. 31,424 (July 15, 1992) (the “1992 Final Rule”). The FEC claimed that 

since the 1988 decision, “the Commission has become increasingly concerned over the 

possibility for confusion or abuse inherent in [the agency’s original] interpretation.” Id. 

at 31,424. 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 12 of 46
5

The FEC acknowledged that the Common Cause “court noted that the 

Commission has a responsibility to ‘allow the maximum of first amendment freedom of 

expression in political campaigns commensurate with Congress’ regulatory authority.’” 

Id. citing Common Cause, 842 F.2d at 448. Nevertheless, the FEC’s 1992 rule added 

new language to 11 C.F.R. § 102.14, indicating that “‘name’ for the purpose of the 2 

U.S.C. 432(e)(4) [now 52 U.S.C. § 30102(e)(4)] prohibition [] include[s] ‘any name’

under which a committee conducts activities, such as solicitations or other 

communications, including a special project name or other designation.” Id. at 31,425. 

The FEC explained that since “the early 1980’s ... the use of candidate names in the titles 

of projects or other unauthorized communications has increasingly become a device for 

unauthorized committees to raise funds or disseminate information,” and “a candidate 

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

views expressed in the communication, was largely powerless to stop it.” Id. “For this 

reason, the Commission has become more concerned about the potential for confusion or 

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

fundraising project. . . . It is possible in these instances that potential donors think they 

are giving money to the candidate named in the project’s title, when this is not the case.” 

Id. Accordingly, the FEC explained that it “has decided to adopt in its final rule a ban on 

the use of candidate names in the titles of all communications by unauthorized 

committees.” Id. at 31,425 (emphasis added). 

The 1992 Final Rule’s ban applied not only to the fundraising scenarios that the 

FEC found troubling, but to “all communications by unauthorized committees.” Id. 

(emphasis added). As the agency explained, “[t]he Commission believes the potential for 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 13 of 46
6

confusion is equally great in all types of committee communications. . . . A total ban is 

also more directly responsive to the problem at issue, and easier to monitor and enforce” 

than other, less restrictive options considered. Id. at 31,425 (emphasis added). While the 

FEC’s rule extended beyond fundraising appeals, nearly every rationale and example 

presented in the Final Rule involved potential fraud and confusion in the specific context 

of fundraising.

The FEC dismissed comments that raised First Amendment objections, noting 

that “it is well established that First Amendment rights are not absolute when balanced 

against the government’s interest in protecting the integrity of the electoral process.” Id. 

The FEC asserted that its new ban was “narrowly designed to further the legitimate 

governmental interest in minimizing the possibility of fraud and abuse in this situation.”

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

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

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

speak to their supporters, and free to title their projects as they wished, so long as they 

respected the FEC’s ban on certain content.

C. The FEC’s 1994 Rulemaking Recognized The Overbreadth of the 

1992 Rule

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

now found at 11 C.F.R. § 102.14(b)(3), which allows an unauthorized committee to 

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

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

candidate.” See 1994 Final Rule, 59 Fed. Reg. 17,267; 11 C.F.R. § 102.14(b)(3). The 

“opposition” exemption to the ban was adopted after the Commission received a request 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 14 of 46
7

to which it was sympathetic in the form of a Petition for Rulemaking from “Citizens 

Against David Duke,” a proposed project of the American Ideas Foundation. Id. at 

17,267. The FEC “acceded to the petitioner’s main concern, amending the rules to 

permit the American Ideas Foundation to use the names of federal candidates in titles that 

clearly indicate opposition to such candidates.” Id. at 17,269.4 Less than two years after 

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

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

such titles [that clearly indicate opposition].” Id. 

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

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

rulemaking record contains substantial evidence that potential contributors often confuse 

an unauthorized committee’s registered name with the names of its fundraising projects, 

and wrongly believe that their contributions will be used in support of the candidate(s) 

named in the project titles.”). The FEC once again claimed that its general ban, which 

now included an exemption where opposition to a candidate is evident in a committee’s 

speech, was “narrowly designed to further the legitimate governmental interest in 

minimizing the possibility of fraud and abuse.” Id. at 17,268.

Neither FECA, nor the FEC’s ban, nor the explanations and justifications 

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

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

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

a candidate for federal office, so the use of his name in a project title is not prohibited by these rules.” The 

rule was adopted anyway, and the FEC noted that “[s]hould [David Duke] again become a federal 

candidate, such use of his name would be governed by these revised rules.” 1994 Final Rule, 59 Fed. Reg. 

at 17,269.

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8

D. FEC Application of PAC Naming Prohibition to Website URLs

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

the operation of a website and fundraising operations conducted on that website. 

NewtWatch PAC operated a website located at www.cais.com/newtwatch. NewtWatch 

PAC did not ask the FEC for its opinion on the application of 11 C.F.R. § 102.14(a) – (b)

to its activities.

5

 The FEC nevertheless addressed the application of 11 C.F.R. § 

102.14(a) – (b)’s ban to the requestor in the agency’s response, and concluded that 

NewtWatch’s activities were permissible under the FEC’s PAC Naming Prohibition. The 

FEC wrote: 

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

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

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

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

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

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

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

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

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

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

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

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

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

Advisory Opinion 1995-09 (NewtWatch PAC).

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

PAC Naming Prohibition to an unauthorized committee’s activities until 2015. To the 

best of our knowledge, the FEC has never undertaken enforcement action against a 

political committee for using the name of a political candidate in a website URL or other 

Internet-based platform, including social media accounts, on the grounds that the use

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

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

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 16 of 46
9

does not adequately demonstrate opposition to the named candidate.6 Moreover, in the 

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

Internet. For example, in 2002, the Commission adopted new regulations that interpreted 

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

explained:

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

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

significant policy reasons to exclude the Internet as a public 

communication. The Commission fails to see the threat of corruption that 

is present in a medium that allows almost limitless, inexpensive 

communication across the broadest possible cross-section of the American 

population. Unlike media such as television and radio, where the 

constraints of the medium make access financially prohibitive for the 

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

speech, where any individual has access to almost limitless political 

expression with minimal cost. As one public interest group who favors 

campaign finance reform argued: “There are good policy reasons for 

leaving the Internet out of the definition, as it is cheap and widely 

available. Internet communications are not part of the campaign finance 

problem, and should not be regulated as such unless Congress specifically 

mandates it.”

FEC Final Rule on Prohibited and Excessive Contributions: Non-Federal Funds or Soft 

Money, 67 Fed. Reg. 49,064, 49,072 (July 29, 2002). In response to a decision of this 

court, the FEC revised its regulations slightly in 2006 to include paid Internet advertising 

within the scope of its regulation, but maintained its general policy of not regulating 

Internet communications.

7

 Generally speaking, “social media” remains unregulated.8 

																																																												 6 The FEC has issued “Requests for Additional Information” to political committees about their names. 

Examples include Stop Hillary PAC which received this letter from the FEC: 

http://docquery.fec.gov/pdf/454/15330081454/15330081454.pdf and CARLY for America which received 

this letter from the FEC: http://docquery.fec.gov/pdf/011/15330083011/15330083011.pdf. CARLY for 

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

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

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

refer potential violations to the Office of General Counsel, which may then consider enforcement action

that the Commissioners must approve.

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

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 17 of 46
10

In 2011, in Matter Under Review 6399 (Yoder), the FEC considered the 

application of the PAC Naming Prohibition to an authorized campaign committee. The 

FEC’s Office of General Counsel and three Commissioners supported applying the PAC 

Naming Prohibition to an authorized campaign committee, Yoder for Congress, that 

operated a website located at www.StepheneMoore.com. (Stephene Moore was Kevin 

Yoder’s general election opponent.) Three Commissioners rejected this view on the 

grounds that the PAC Naming Prohibition, by its own terms, applies only to unauthorized 

political committees. See MUR 6399 (Yoder), Statement of Reasons of Vice Chair 

Caroline C. Hunter and Commissioners Donald F. McGahn and Matthew S. Petersen 

(June 23, 2011). These three Commissioners concluded that “neither the Act nor 

Commission regulations prohibit an unauthorized committee from using an opponent’s 

name in its website’s URL.” Id. at 5. In a footnote, these Commissioners added:

No Commission precedent supports the notion that an unauthorized committee’s 

web address constitutes the title of a special project. Advisory Opinion 1995-09 

(NewtWatch), which OGC cites in its analysis, merely establishes that a website 

operated by an unauthorized committee can be considered a committee special 

project that is subject to the naming requirements in 11 C.F.R. § 102.14(b)(3). 

This opinion makes no statement that the site’s web address is the project’s title. 

(And even if it did, an advisory opinion cannot establish a new rule but only 

provides protection to a requester against potential liability. 

Id. at 4 n.16. Two of the Commissioners who produced this Statement of Reasons 

subsequently voted in favor of Advisory Opinion 2015-04.

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

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

																																																																																																																																																																																				

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

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

regulatory approach.”).

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

comply with full FECA disclaimer requirements); Advisory Opinion Request 2011-09 (Facebook) (FEC 

unable to reach decision on question of whether FECA-mandated disclaimers are required on Facebook 

advertising).

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 18 of 46
11

unrequested dicta regarding website URLs found at the end of Advisory Opinion 1995-

09, which was subsequently placed in question by the FEC’s later rulemaking decisions

regarding regulation of Internet activities. Then, in 2011, three Commissioners expressed 

the view that a website URL was not the “title of a special project,” and read Advisory 

Opinion 1995-09 in a way that did not apply to a website’s URL, but to the website as a 

whole. Following this sequence of events, it was entirely unclear how a majority of the 

FEC would apply the PAC Naming Prohibition in the future.

III. FEC ADVISORY OPINION 2015-04 (COLLECTIVE ACTIONS PAC)

Collective Actions PAC is an unauthorized, independent expenditure-only 

political committee whose goal is “to help Sen. Bernie Sanders in his bid to win the 

Democratic nomination for President.” Advisory Opinion Request of Collection Actions 

PAC (June 3, 2015) at 1, Complaint Exhibit 1.

9

 On or about June 3, 2015, Collective 

Actions PAC filed a written advisory opinion request with the FEC asking if the PAC’s 

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

media accounts it operates is permissible under the PAC Naming Prohibition. See

Advisory Opinion Request of Collective Actions PAC (June 3, 2015). Specifically, 

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

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

“Run Bernie Run,” and the Twitter accounts (“handles”) “@Bernie_Run” and 

“@ProBernie.” Advisory Opinion Request of Collective Actions PAC (June 3, 2015) at 

1. Collective Actions PAC specified that it did not wish to use these platforms to raise 

money or solicit contributions. Rather, the PAC “hope[d] to reach millions of voters and 

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

States in the 2016 election.

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 19 of 46
12

believe[d] being active online is the way to achieve our goal.” Advisory Opinion 

Request of Collective Actions PAC (June 3, 2015) at 1.

The FEC accepted the Advisory Opinion Request for review, designated the 

matter Advisory Opinion Request 2015-04, and posted it to the FEC’s website for public 

comment. On July 13, 2015, the FEC’s Office of General Counsel issued a draft 

Advisory Opinion in response to Collective Action PAC’s Advisory Opinion Request.

The draft Advisory Opinion, labeled Draft A, concluded that Collective Action PAC’s 

use of website URLs, a Facebook page, and Twitter handles that include the word 

“Bernie” violate the PAC Naming Prohibition. See Advisory Opinion 2015-04, Draft A, 

attached as Exhibit 3. 

The FEC considered the draft advisory opinion in an open session public meeting 

on July 16, 2015. At that meeting, FEC Commissioner Goodman asked:

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

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

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

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

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

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

opinion, right?

A representative from the FEC’s Office of General Counsel responded, “The first time 

that came up was in the NewtWatch advisory opinion.”

Commissioner Goodman then indicated that he would support the Advisory 

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

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

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

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

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

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

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

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 20 of 46
13

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

that apply directly to fraud and confusion.

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

http://www.fec.gov/audio/2015/2015071604.mp3.) No Commissioner mentioned MUR 

6399 (Yoder).

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

Advisory Opinion 2015-04, Draft A, Agenda Document No. 15-39-A (Complaint Exhibit 

3). Advisory Opinion 2015-04 (Complaint Exhibit 2) concludes that Collective Actions 

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

websites or social media pages.” FEC Advisory Opinion 2015-04 at 2. Citing Advisory 

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

that fall within the scope of section 102.14.” Id. at 3. Accordingly, “[b]ecause the names 

of [Collective Action PAC’s] websites and social media accounts that include Senator 

Sanders’s name do not clearly express opposition to him, those sites and accounts are 

impermissible under 11 C.F.R. § 102.14.” Advisory Opinion 2015-04 at 4. 

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

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

scope of section 102.14” (emphasis added), this reading is debatable, as Advisory 

Opinion 1995-09 specifically addressed a website in terms of its URL. Advisory Opinion 

1995-09 did not address “online activities” as that term is understood today. Facebook, 

Twitter, and other forms of “social media” did not exist in 1995.10 Advisory Opinion 

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

instance in which the FEC has considered the application of the PAC Naming Prohibition 

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

1995-09 could not have considered either one.

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 21 of 46
14

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

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

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

As a result of Advisory Opinion 2015-04, the FEC has now formally opined that 

its regulations ban Collective Actions PAC from communicating with supporters through

websites with URLs of www.RunBernieRun.com, www.ProBernie.com, 

www.BelieveInBernie.com, or speak via a Facebook page titled “Run Bernie Run,” or 

Twitter accounts with the handles of “@Bernie_Run” and “@ProBernie.” Under 

Advisory Opinion 2015-04, it makes no difference whether Collective Actions PAC 

utilizes these online assets for advocacy purposes, fundraising efforts, or some other 

purpose; rather, it is simply the inclusion of the word “Bernie” in the titles or headings of 

these webpages and social media accounts that is deemed offensive and therefore banned

under FEC regulations, which impose a “total ban” on Collective Actions PAC’s

proposed uses of the word “Bernie.”11

IV. APPLICATION OF ADVISORY OPINION 2015-04 TO PLAINTIFF

Under FECA, 

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

by – (A) any person involved in the specific transaction or activity with 

respect to which such advisory opinion is rendered; and (B) any person 

involved in any specific transaction or activity which is indistinguishable 

in all its material aspects from the transaction or activity with respect to 

which such advisory opinion is rendered.

 

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

manner, “and who acts in good faith in accordance with the provisions and findings of 

																																																												 11 Advisory Opinion 2015-04 emphasizes that the 1992 version of the PAC Naming Prohibition was “a 

‘total ban’ on the use of candidate names in committee names.” Advisory Opinion 2015-04 at 3.

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 22 of 46
15

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

provided by this Act ....” 52 U.S.C. § 30108(c)(2).

Strategic Media 21, of San Jose, California, registered the website URL

www.ilikemikehuckabee.com and created a Facebook page titled “I Like Mike 

Huckabee,” which is accessed on the social media platform Facebook and located at 

www.facebook.com/ilikemikehuckabee. On or about July 9, 2015, PAG entered into a 

contract with Strategic Media 21 whereby PAG controls the operation and maintenance 

of the aforementioned website URL and Facebook page as part of PAG’s independent 

efforts in support of former Arkansas Governor Mike Huckabee, who is now a candidate 

for President of the United States in 2016. By operating and maintaining 

www.ilikemikehuckabee.com and the Facebook page “I Like Mike Huckabee,” available 

at facebook.com/ilikemikehuckabee, PAG is able to communicate with large numbers of 

individual, grassroots supporters of Governor Huckabee. As of July 24, 2015, the “I Like 

Mike Huckabee” Facebook page had received 181,679 “likes,” which means that those 

persons visited the Facebook page and indicated they “liked” its contents. 

Pursuant to its contract with Strategic Media 21, PAG began operating 

www.ilikemikehuckabee.com and the Facebook page “I Like Mike Huckabee” on or 

about July 9, 2015. PAG wishes to develop a related Twitter account that utilizes and 

incorporates the “I Like Mike Huckabee” branding of the website and Facebook page

into a Twitter “handle” (such handle would include the name “Mike Huckabee” or 

“Huckabee”). PAG has not, and does not intend to use any of these platforms to solicit 

contributions or to otherwise engage in fundraising activities. PAG wishes to use these 

platforms solely as a means of communicating with supporters to advocate the election of 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 23 of 46
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Mike Huckabee.

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

www.ilikemikehuckabee.com is materially indistinguishable from 

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

Facebook page “I Like Mike Huckabee” is materially indistinguishable from the 

Facebook page “Run Bernie Run” for purposes of 11 C.F.R. § 102.14(a) – (b). A Twitter 

account that utilizes the “I Like Mike Huckabee” branding of the website and Facebook 

page in its “handle” would be materially indistinguishable from the Twitter accounts 

“@Bernie_Run” and “@ProBernie” for purposes of 11 C.F.R. § 102.14(a) – (b). Thus, 

under Advisory Opinion 2015-04, the PAG activities discussed above are impermissible 

under the FEC’s current interpretation of the PAC Naming Prohibition. As a result, and 

while pursuing this litigation, PAG has ceased any further work on updating, 

maintaining, promoting, or otherwise changing or altering these online pages and 

communications.

STANDARD OF REVIEW

This Court recently explained that “[a] preliminary injunction is ‘an extraordinary

remedy that may only be awarded upon a clear showing that the plaintiff is entitled to

such relief.’” Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 38 (D.D.C. 2014)

citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “To demonstrate 

entitlement to a preliminary injunction, a litigant must show: (1) a substantial likelihood 

of success on the merits; (2) that it would suffer irreparable injury if the injunction is not 

granted; (3) that the balance of equities tips in its favor; and (4) that the public interest 

would be furthered by the injunction.” Wash. Metro. Area Transit Auth. v. Local 689, 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 24 of 46
17

Amalgamated Transit Union, 2015 U.S. Dist. LEXIS 83838, *11-12 (D.D.C. June 29, 

2015) citing Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). 

“In conducting an inquiry into these four factors, ‘[a] district court must 'balance

the strengths of the requesting party's arguments in each of the four required areas.’”

Elec. Privacy Info. Ctr, 15 F. Supp. 3d at 38 (internal citation omitted). “The District of 

Columbia Circuit applies a ‘sliding-scale’ approach to the preliminary injunction factors, 

meaning that ‘a strong showing on one factor could make up for a weaker showing on 

another.’” Indian River Cnty. v. Rogoff, 2015 U.S. Dist. LEXIS 74895, *17 (D.D.C. June 

10, 2015) (citation omitted).12

The PAC Naming Prohibition infringes on First Amendment rights, meaning the 

burden shifts to the FEC to justify its regulatory actions. See U.S. v. Playboy Entm’t 

Group, Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the 

Government bears the burden of proving the constitutionality of its actions.”). When the 

government bears the ultimate burden of proof demonstrating a statute’s constitutionality, 

a movant in a preliminary injunction setting must be deemed likely to succeed on the 

merits unless the government is able to demonstrate the statute’s constitutionality. See 

Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).

																																																												 12 The D.C. Circuit noted that Winter may be read “at least to suggest if not to hold ‘that a likelihood of 

success is an independent, free-standing requirement for a preliminary injunction.’” Sherley v. Sebelius, 

644 F.3d 388, 393 (D.C. Cir. 2011) citing Davis v. Pension Benefit Guaranty Corp., 571 F.3d 1288, 1296 

(D.C. Cir. 2009) (concurring opinion).

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 25 of 46
18

ARGUMENT

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS

Plaintiff is likely to succeed on the merits on its claim under the Administrative 

Procedure Act that the PAC Naming Prohibition, as interpreted and applied in Advisory 

Opinion 2015-04, exceeds the agency’s statutory authority. Plaintiff is also likely to 

succeed on the merits of its claim that the PAC Naming Prohibition, as interpreted and 

applied in Advisory Opinion 2015-04, violates the First Amendment of the U.S. 

Constitution. “Plaintiff’s probability of success on the merits is the most critical of the 

criteria when considering a motion for preliminary injunction.” Carey v. FEC, 791 F. 

Supp. 2d 121, 128 (D.D.C. 2011). The Supreme Court explained,

political speech must prevail against laws that would suppress it, whether 

by design or inadvertence. Laws that burden political speech are “subject 

to strict scrutiny” which requires the Government to prove that the 

restriction “furthers a compelling interest and is narrowly tailored to 

achieve that interest.”

 

Citizens United v. FEC, 130 S. Ct. 876, 898 (U.S. 2010) citing FEC v. Wisconsin Right to

Life, Inc., 551 U.S. 449, 464 (2007) (opinion of Roberts, C. J.).

A. Plaintiff’s Administrative Procedure Act Challenge to the PAC 

Naming Prohibition

1. Advisory Opinion 2015-04 is a Final Agency Action Upon 

Which PAG May Legally Rely

FEC Advisory Opinion 2015-04 is a final agency action, and the agency’s

interpretation of the PAC Naming Prohibition prevents Plaintiff from engaging in the 

speech activities detailed herein. Advisory Opinion 2015-04 deprives PAG of the legal 

right to rely upon an advisory opinion creating a “safe harbor” for Collective Action 

PAC’s materially indistinguishable activities. See 52 U.S.C. § 30108(c)(1)(B) (“Any 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 26 of 46
19

advisory opinion rendered by the Commission . . . may be relied upon by . . . 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.”). 

The D.C. Circuit has previously determined that a FEC advisory opinion is “final 

agency action” for purposes of the APA. See Unity08 v. FEC, 596 F.3d 861, 864-865 

(D.C. Cir. 2009); FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) 

(“advisory opinions have binding legal effect on the Commission”). “[A]gency advisory 

opinions are final agency action where they ‘constitute[] final and authoritative 

statements of position by the agencies to which Congress ha[s] entrusted the full task of 

administering and interpreting the underlying statutes.’” Unity08, 596 F.3d at 865 

quoting Am. Federation of Gov’t Employees, AFL-CIO v. O’Connor, 747 F.2d 748, 753 

n.10 (D.C. Cir. 1984). “Administrative orders are final when ‘they impose an obligation, 

deny a right or fix some legal relationship as a consummation of the administrative 

process.’” Id. citing Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.,

333 U.S. 103, 113 (1948)) and Bennett v. Spear, 520 U.S. 154, 177-178 (1997); Franklin 

v. Massachusetts, 505 U.S. 788, 797 (1992) (“The core question is whether the agency 

has completed its decisionmaking process, and whether the result of that process is one 

that will directly affect the parties.”).

The advisory opinion procedure in this matter is complete. “The fact that the 

advisory opinion procedure is complete and deprives the plaintiff of a legal right – [52 

U.S.C. § 30108(c)(1)]’s reliance defense, which it would enjoy if it had obtained a 

favorable resolution in the advisory opinion process – ‘denies a right with consequences 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 27 of 46
20

sufficient to warrant review.’” Unity08, 596 F.3d at 865 quoting Environmental Defense 

Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 589 n.8 (D.C. Cir. 1971). 

A pre-enforcement action is permitted because a credible threat of prosecution or 

civil enforcement action against PAG exists. As the D.C. Circuit explained, “parties are 

commonly not required to violate an agency’s legal position and risk an enforcement 

proceeding before they may seek judicial review.” Unity08, 596 F.3d at 865. There is no 

bar to a similarly-situated third party bringing suit to challenge an advisory opinion of the 

FEC. See National Conservative Political Action Committee v. FEC, 626 F.2d 953, 958 

(D.C. Cir. 1980); Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D.Va. 

2012) (upholding standing and ripeness where third party that planned to engage in 

identical activity challenged FEC advisory opinion).

2. The FEC’s Interpretation and Application of the PAC Naming 

Prohibition in Advisory Opinion 2015-04 is Arbitrary, 

Capricious, and in Excess of the FEC’s Statutory Authority

The FEC impermissibly interpreted and applied the PAC Naming Prohibition in 

Advisory Opinion 2015-04 when it determined that Collective Actions PAC may not 

operate websites with URLs of www.RunBernieRun.com, www.ProBernie.com, 

www.BelieveInBernie.com, or a Facebook page titled “Run Bernie Run,” or Twitter 

accounts with the handles of “@Bernie_Run” and “@ProBernie.” Advisory Opinion 

2015-04 applies the PAC Naming Prohibition to a context not contemplated in the FEC’s 

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

justification for those rulemakings. 

In Advisory Opinion 2015-04, the FEC explained: “To limit ‘the potential for 

confusion’ and ‘minimize[e] [sic] the possibility of fraud and abuse,’ the Act and 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 28 of 46
21

Commission regulations generally prohibit an unauthorized committee from including the 

name of a candidate in the name of the committee.” Advisory Opinion 2015-04 at 3. 

In the 1992 and 1994 rulemakings, the FEC identified an interest in preventing 

fraud, abuse, and confusion among “potential donors [who] think they are giving money 

to the candidate named in the project’s title, when this is not the case.” 1992 Final Rule, 

57 Fed. Reg. at 31,424. The title of the FEC’s 1992 and 1994 rulemakings (“Special 

Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees”) 

reinforces this focus on fundraising, as does every example included in the two Final 

Rules.13

The FEC’s application of the PAC Naming Prohibition in Advisory Opinion 

2015-04, in a context where there is no potential for fundraising fraud, abuse or 

confusion, is arbitrary, capricious, an abuse of discretion, and contrary to law under the 

Administrative Procedure Act (5 U.S.C. §§ 551-706). 

There is no dispute that PAG may engage in unlimited independent expenditures 

in support of Mike Huckabee’s candidacy for President of the United States. See Buckley 

v. Valeo, 424 U.S. 1 (1976), Citizens United v. FEC, 558 U.S. 310 (2010), and 

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

and received, permission to obtain from Commission records the names and addresses of those who had 

responded to unauthorized solicitations made in his name, to inform those contributors that he had not 

authorized the solicitation.”); id. (“For example, assume that the ‘XYZ Committee,’ a committee registered 

under that name with the Commission, establishes a special fundraising project called ‘Americans for Q.’ 

... Even if the solicitation contains the proper disclaimer, a potential donor might believe he or she was 

contributing to Q’s campaign, when this was not so.”); id. at 31,425 (“For example, a comment from an 

authorized committee of a major party presidential candidate stated that an unauthorized project using that 

candidate’s name raised over $10,000,000 during the 1988 presidential election cycle, despite the 

candidate’s disavowal of and efforts to stop these activities.”); id. (“two other unauthorized projects by that 

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

candidates in the 1988 election cycle”); id. (“[A]n authorized Political Action Committee has, over several 

election cycles, established numerous projects whose titles included the names of federal candidates. The 

named candidates ... received no money from the $9 million raised in response to these appeals.”); 1994 

Final Rule, 59 Fed. Reg. at 17,267 (“The rulemaking record contains substantial evidence that potential 

contributors often confuse an unauthorized committee’s registered name with the names of its fundraising 

projects, and wrongly believe that their contributions will be used in support of the candidate(s) named in 

the project titles.”).

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 29 of 46
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SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). PAG may, among other 

activities, produce and distribute television advertisements that include the words “I Like 

Mike Huckabee” in text across the top of the screen for the duration of the advertisement, 

produce and distribute radio advertisements that include the message “I Like Mike 

Huckabee”, and send mailers that say “I Like Mike Huckabee” across the front – subject 

to the FEC’s reporting and disclaimer requirements.

The FEC’s application of the PAC Naming Prohibition in Advisory Opinion 

2015-04 goes far beyond the FEC’s justifications for that rule. The FEC previously 

claimed that the PAC Naming Prohibition was “narrowly designed to further the 

legitimate governmental interest in minimizing the possibility of fraud and abuse.” 1994 

Final Rule, 59 Fed. Reg. at 17,268. There is no evidence or “possibility of fraud and 

abuse” in the scenarios presented in Advisory Opinion 2015-04. PAG wishes to 

independently advocate in support of a candidate for U.S. President and does not propose 

to engage in any fundraising solicitations through use of the website URL, Facebook 

page, or planned Twitter account at issue in this manner. There is no possibility of fraud 

and abuse that the PAC Naming Prohibition might prevent under the interpretation and 

application supplied in Advisory Opinion 2015-04.

B. The FEC’s PAC Naming Prohibition is an Impermissible Prior

Restraint on Speech and an Impermissible Content-Based Speech 

Restriction

While this matter involves the FEC and FECA, this is not a campaign finance

case that involves speech and/or associational limitations in the form of contribution 

limits or expenditures restrictions. Rather, the PAC Naming Prohibition is a ban on pure 

political speech that is imposed on the basis of the content of that speech. Under 

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Advisory Opinion 2015-04, Plaintiff is prohibited by the FEC from incorporating certain 

crucial terms (i.e., a candidate’s name) in its website URLs or social media efforts (such 

as the title of a Facebook page) because PAG supports that candidate. This prohibition 

infringes on PAG’s unquestioned right to communicate with the public on matters of 

public importance. Namely, PAG is an independent expenditure-only committee that 

exercises its constitutional right to make independent expenditures, yet the FEC’s PAC

Naming Prohibition restricts PAG’s ability to utilize the name of a candidate it supports 

in a website URL and on a Facebook page. The FEC’s PAC Naming Prohibition 

functions both as a prior restraint on PAG’s speech, and as an impermissible contentbased speech restriction. 

1. The PAC Naming Prohibition Is An Unconstitutional Prior 

Restraint 

a. The Law of Prior Restraints

A “prior restraint” is a government prohibition - statutory, administrative, judicial, 

or otherwise - that forecloses speech before it takes place. Alexander v. United States, 

509 U.S. 544, 550 (1993) citing M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-

14 (1984) (“The term ‘prior restraint’ is used ‘to describe administrative and judicial 

orders forbidding certain communications when issued in advance of the time that such 

communications are to occur.’”); Alliance for Community Media v. FCC, 56 F.3d 105, 

128 (D.C. Cir. 1995) (“A prior restraint is an administrative or judicial order restraining 

future speech.”); Fischer v. City of St. Paul, 894 F. Supp. 1318, 1325 (D. Minn. 1995)

(“A prior restraint is generally any governmental action that would prevent a 

communication from reaching the public.”). The Supreme Court Reporter is replete with 

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24

decisions invalidating prior restraints.

14

The Supreme Court has also warned of the dangers of functional prior restraints in 

the context of complex FEC regulations that afford significant discretion to the FEC. In 

Citizens United v. FEC, the Court wrote:

This regulatory scheme may not be a prior restraint on speech in the strict 

sense of that term, for prospective speakers are not compelled by law to 

seek an advisory opinion from the FEC before the speech takes place. . . . 

As a practical matter, however, given the complexity of the regulations 

and the deference courts show to administrative determinations, a speaker 

who wants to avoid threats of criminal liability and the heavy costs of 

defending against FEC enforcement must ask a governmental agency 

for prior permission to speak. . . . These onerous restrictions thus 

function as the equivalent of prior restraint by giving the FEC power 

analogous to licensing laws implemented in 16th- and 17th-century 

England, laws and governmental practices of the sort that the First

Amendment was drawn to prohibit. . . . Because the FEC's “business is to 

censor, there inheres the danger that [it] may well be less responsive than a 

court--part of an independent branch of government--to the 

constitutionally protected interests in free expression.” . . . When the FEC 

issues advisory opinions that prohibit speech, “[m]any persons, rather than 

undertake the considerable burden (and sometimes risk) of vindicating 

their rights through case-by-case litigation, will choose simply to abstain 

from protected speech--harming not only themselves but society as a 

whole, which is deprived of an uninhibited marketplace of ideas.”

Citizens United v. FEC, 558 U.S. 310, 335 (2010) (internal citations omitted) (emphasis 

added).

																																																												 14 See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (striking down a statute authorizing 

courts to indefinitely enjoin exhibition of films that had not yet been found to be obscene); Pittsburgh Press 

Co. v. Pittsburgh Com. on Human Relations, 413 U.S. 376, 390 (1973) (holding city ordinance, as 

construed to forbid newspapers from publishing sex-designated help wanted ads for jobs where gender was 

not a bona fide occupational qualification, did not violate the First Amendment, but unequivocally 

reaffirming the protection afforded to editorial judgment and to the free expression of views, however 

controversial.); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (vacating an order enjoining 

petitioners from distributing leaflets anywhere in their town); New York Times Co. v. United States, 403 

U.S. 713 (1971) (reiterating the heavy presumption against Constitutional validity of prior restraint and 

holding that the government had not met its heavy burden to justify a prior restraint against publication of 

classified information); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (invalidating a state antiobscenity commission that only had the authority to issue informal sanctions because the record 

demonstrated that the Commission set about to suppress publication of materials it deemed objectionable, 

with no safeguards to prevent suppression of constitutionally protected materials); Near v. Minnesota, 283 

U.S. 697 (1931) (holding that a state may punish “abuses” of the freedom of the press-such as the illegal 

publication of malicious or defamatory material-but that a permanent injunction prohibiting all future 

publication of a newspaper was an unconstitutional prior restraint on the freedom of the press).

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“Any system of prior restraints comes to this Court bearing a heavy presumption 

against its constitutional validity.” Bantam Books, 372 U.S. 58, 70. “[P]rior restraints on 

speech and publication are the most serious and the least tolerable infringement on First 

Amendment rights.” Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

b. Application to PAC Naming Prohibition

Both the FEC’s 1992 and 1994 rulemakings premise the PAC Naming Prohibition 

on “the legitimate governmental interest in minimizing the possibility of fraud and abuse 

in this situation.” See 1992 Final Rule, 57 Fed. Reg. at 31,425; 1994 Final Rule, 59 Fed. 

Reg. at 17,268 (emphasis added). The 1994 rulemakings indicates that “this situation” is 

the situation in which “potential contributors often confuse an authorized committee’s 

registered name with the names of its fundraising projects and wrongly believe that their 

contributions will be used in support of the candidate(s) named in the project titles.” 

1994 Final Rule, 59 Fed. Reg. at 17,268. The reference to “this situation” in the 1992 

rulemaking is less clear. Other language in the 1992 and 1994 rulemakings suggest the 

FEC rule is somehow related to “the government’s interest in protecting the integrity of 

the electoral process.” 1992 Final Rule, 57 Fed. Reg. at 31,425; 1994 Final Rule, 59 Fed. 

Reg. at 17,267.

In Advisory Opinion 2015-04, the FEC explained: “To limit ‘the potential for 

confusion’ and ‘minimize[e] [sic] the possibility of fraud and abuse,’ the Act and 

Commission regulations generally prohibit an unauthorized committee from including the 

name of a candidate in the name of the committee.” Advisory Opinion 2015-04 at 3.

To the extent that the FEC has clearly identified the government interest that 

allegedly justifies the PAC Naming Prohibition, it appears to have expressed and 

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identified an interest solely in preventing of fraud, abuse, and confusion among “potential 

donors [who] think they are giving money to the candidate named in the project’s title, 

when this is not the case.” 1992 Final Rule, 57 Fed. Reg. at 31,424. The title of the 

FEC’s 1992 and 1994 rulemakings (“Special Fundraising Projects and Other Use of 

Candidate Names by Unauthorized Committees”) reinforces this focus on fundraising, as 

do the examples included in the two Final Rules.15 In spite of this emphasis on 

fundraising fraud, the Commission nevertheless,

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

titles of all communications by unauthorized committees. The 

Commission believes the potential for confusion is equally great in all 

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

responsive to the problem at issue, and easier to monitor and enforce than 

the restrictions on check payees proposed in the NPRM.

1992 Final Rule, 57 Fed. Reg. at 31,425 (emphasis added). There is simply nothing in 

the 1992 or 1994 rulemakings, other than the FEC’s conclusory assertions, about 

“confusion” beyond the fundraising context. In the context of regulating charitable 

solicitations, the Supreme Court recently noted that its cases draw a line “’between 

regulation aimed at fraud and regulation aimed at something else in the hope that it would 

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

and received, permission to obtain from Commission records the names and addresses of those who had 

responded to unauthorized solicitations made in his name, to inform those contributors that he had not 

authorized the solicitation.”); id. (“For example, assume that the ‘XYZ Committee,’ a committee registered 

under that name with the Commission, establishes a special fundraising project called ‘Americans for Q.’ 

... Even if the solicitation contains the proper disclaimer, a potential donor might believe he or she was 

contributing to Q’s campaign, when this was not so.”); id. at 31,425 (“For example, a comment from an 

authorized committee of a major party presidential candidate stated that an unauthorized project using that 

candidate’s name raised over $10,000,000 during the 1988 presidential election cycle, despite the 

candidate’s disavowal of and efforts to stop these activities.”); id. (“two other unauthorized projects by that 

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

candidates in the 1988 election cycle”); id. (“[A]n authorized Political Action Committee has, over several 

election cycles, established numerous projects whose titles included the names of federal candidates. The 

named candidates ... received no money from the $9 million raised in response to these appeals.”); 59 Fed. 

Reg. at 17,267 (“The rulemaking record contains substantial evidence that potential contributors often 

confuse an unauthorized committee’s registered name with the names of its fundraising projects, and 

wrongly believe that their contributions will be used in support of the candidate(s) named in the project 

titles.”).

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sweep fraud in during the process.’” Illinois ex rel. Madigan v. Telemarketing Assocs., 

538 U.S. 600, 619-620 (2003) citing Secretary of Maryland v. Joseph H. Munson Co., 

467 U.S. 947, 969-970 (1984). The FEC’s PAC Naming Prohibition appears to be latter.

The 1992 rulemaking contains two justifications for expanding the PAC Naming 

Prohibition beyond the fundraising context. First, the FEC explained that under its 

original interpretation of the PAC Naming Prohibition, “a candidate who objected to the 

use of his or her name in this manner . . . or who disagreed with the views expressed in 

the communication was largely powerless to stop it.” 1992 Final Rule, 57 Fed. Reg. at 

31,424. This concern plainly cannot justify a speech ban. An independent expenditure, 

of course, cannot be limited or banned because a candidate disagrees with the message. 

Second, the FEC cited administrative convenience. Id. at 31, 425 (“A total ban is ... 

easier to monitor and enforce....”). “Administrative convenience” is not a valid 

justification for a ban on speech. See, e.g., U.S. v. National Treasury Employee Union, 

513 U.S. 454, 473 (1995) (“A blanket burden on the speech of nearly 1.7 million federal 

employees requires a much stronger justification than the Government’s dubious claim of 

administrative convenience.”); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 102 n. 9 

(1972) (“This attenuated interest, at best a claim of small administrative convenience and 

perhaps merely a confession of legislative laziness, cannot justify the blanket permission 

given to labor picketing and the blanket prohibition applicable to others.”); Memorial 

Hospital v. Maricopa County, 415 U.S. 250, 267-269 (1974) (concluding that convenient 

prevention of fraud did not justify denying health care benefits to all out of state 

immigrants in the first year of residency); Church of Scientology Flag Serv. v. City of 

Clearwater, 2 F.3d 1514, 1545 (11th Cir. 1993) (“any City interest in the 

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administrative convenience of dispensing with an individualized determination 

concerning the sincerity of particular religious beliefs is not compelling”).

Advisory Opinion 2015-04 applies the PAC Naming Prohibition to Collective 

Actions PAC’s activities even though the PAC explained that it would not use its 

websites and social media accounts “to solicit donations for itself.” Advisory Opinion 

2015-04 at 2. The FEC’s asserted interest in preventing fraud, abuse, and confusion in 

the context of unauthorized political committee fundraising was not present in in 

Advisory Opinion 2015-04, yet the FEC applied the PAC Naming Prohibition anyway. 

In this matter, the FEC’s asserted governmental interest is not present. PAG does 

not wish to use the website www.ilikemikehuckabee.com, the Facebook page “I Like 

Mike Huckabee,” or any associated Twitter handles to solicit funds. In the absence of 

any identified governmental interest, the FEC’s ban on PAG’s speech cannot withstand

scrutiny. The PAC Naming Prohibition is a prior restraint that cannot be constitutionally 

applied to website URLs and social media identifiers that incorporate the name of a 

candidate but that do not solicit funds or money of any type. PAG is entitled to a 

preliminary injunction on this count.

2. The PAC Naming Prohibition Is An Impermissible ContentBased Speech Restriction 

a. Content-Based Speech Regulation

“Government regulation of speech is content based if a law applies to particular 

speech because of the topic discussed or the idea or message expressed.” Reed v. Town 

of Gilbert, 135 S. Ct. 2218, 2227 (2015). “Content-based laws ... target speech based on 

its communicative content.” Id. at 2226. As the Court explained, 

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This commonsense meaning of the phrase “content based” requires a court

to consider whether a regulation of speech “on its face” draws distinctions

based on the message a speaker conveys. Sorrell, supra, at ___, 131 S. Ct.

2653, 2663, 180 L. Ed. 2d 544 555. Some facial distinctions based on a 

message are obvious, defining regulated speech by particular subject 

matter, and others are more subtle, defining regulated speech by its 

function or purpose. Both are distinctions drawn based on the message a 

speaker conveys, and, therefore, are subject to strict scrutiny.

Id. at 2227. A statute or regulation is “content based if it require[s] ‘enforcement 

authorities’ to ‘examine the content of the message that is conveyed to determine 

whether’ a violation has occurred.” McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) 

citing FCC v. League of Women Voters of California, 468 U.S. 364, 383, 377 (1984). 

“[A]bove all else, the First Amendment means that government has no power to restrict 

expression because of its message, its ideas, its subject matter, or its content.” Police 

Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

“Content-based laws ... are presumptively unconstitutional and may be justified 

only if the government proves that they are narrowly tailored to serve compelling state 

interests.” Reed, 135 S. Ct. at 2226; see also American Freedom Defense Initiative v. 

Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 73, 80 (D.D.C. 2012) citing Perry 

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“A content-based 

restriction must meet strict constitutional scrutiny to stand, i.e., the restriction must be 

‘necessary to serve a compelling state interest . . . [and be] narrowly drawn to achieve 

that end.’”).

b. Application to PAC Naming Prohibition

The FEC’s PAC Naming Prohibition is a content-based speech regulation. Very 

simply, the FEC permits an unauthorized political committee to “include the name of a 

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

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 37 of 46
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and unambiguously shows opposition to the named candidate,” but not if the title 

demonstrates support for (or even neutrality toward) that candidate. Advisory Opinion

2015-04 has eliminated any doubt that the FEC would apply the PAC Naming 

Prohibition to PAG’s activities, as described herein, on the basis of the content of PAG’s 

speech. That is, the PAC Naming Prohibition bars PAG’s activities PAG’s speech 

demonstrates support for Governor Mike Huckabee. The PAC Naming Prohibition 

restricts PAG’s speech on the sole basis of the message expressed. 

In Reed v. Town of Gilbert, the Town of Gilbert created various sign categories, 

including “ideological,” “political,” and “temporary directional” signs, and applied 

different regulatory standards to these different types of signs, based on their content. 

See Reed, 135 S. Ct. at 2224-2225. Here, the FEC has created two categories of speech: 

(1) speech that shows opposition; and (2) speech that does not show opposition. 

Oppositional speech is permitted, while non-oppositional speech is prohibited. In Reed, 

“[t]he restrictions in the Sign Code that apply to any given sign thus depend entirely on 

the communicative content of the sign.” Reed, 135 S. Ct. at 2227. The same is true of 

the FEC’s PAC Naming Prohibition – restrictions apply based “entirely on the 

communicative content of the” political committee’s speech.

PAG wishes to communicate with supporters using a website with a URL of 

www.ilikemikehuckabee.com. The phrase “I Like Mike Huckabee” expresses support 

for Mike Huckabee, and consequently, it is prohibited by the PAC Naming Prohibition. 

If PAG’s website URL incorporated the words “I Don’t Like Mike Huckabee,” PAG’s 

speech would be permissible. The FEC regulates PAG’s speech on the basis of “the idea 

or message expressed.” Reed, 135 S. Ct. at 2227.

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 38 of 46
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Similarly, PAG wishes to communicate with supporters via a Facebook page 

titled “I Like Mike Huckabee.” The FEC prohibits this because the phrase “I Like Mike 

Huckabee” expresses support for Mike Huckabee. Under the PAC Naming Prohibition, 

PAG is free to create a Facebook page titled “I Don’t Like Mike Huckabee.” The PAC 

Naming Prohibition regulates PAG’s speech on the basis of “the idea or message 

expressed.” Reed, 135 S. Ct. at 2227.

Lastly, PAG wishes to communicate with supporters via Twitter using a “handle” 

that incorporates the “I Like Mike Huckabee” phrasing. The FEC prohibits this because 

the phrase “I Like Mike Huckabee” expresses support for Mike Huckabee. Under the 

PAC Naming Prohibition, PAG is free to create and use a Twitter handle that expresses 

opposition to Mike Huckabee. The PAC Naming Prohibition regulates PAG’s speech on 

the basis of “the idea or message expressed.” Reed, 135 S. Ct. at 2227.

As explained above, the FEC’s purported governmental interest is inapplicable 

here. PAG does not wish to use the website www.ilikemikehuckabee.com, the Facebook 

page “I Like Mike Huckabee,” or any associated Twitter handles to solicit funds. In the 

absence of any identified governmental interest, the FEC’s content-based ban on PAG’s 

speech cannot withstand scrutiny. The PAC Naming Prohibition is a content-based ban 

on speech that cannot be constitutionally applied to website URLs and social media 

identifiers that incorporate the name of a candidate but that do not solicit funds or money 

of any type. PAG is entitled to a preliminary injunction on this count.

II. THREAT OF IRREPARABLE HARM

In First Amendment challenges, once likelihood of success on the merits is 

established, the other preliminary injunction elements follow as a result. “When a party 

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seeks a preliminary injunction on the basis of a potential First Amendment violation, the 

likelihood of success on the merits will often be the determinative factor.” Joelner v. 

Village of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004); see also N.Y. Progress & 

Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (“Consideration of the merits is 

virtually indispensable in the First Amendment context, where the likelihood of success 

on the merits is the dominant, if not the dispositive, factor.”). 

The Supreme Court has held 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). The D.C. Circuit applies Elrod v. Burns with the 

understanding that “[t]he Supreme Court has instructed that injunctive relief is not 

appropriate unless the party seeking it can demonstrate that ‘First Amendment interests 

[are] either threatened or in fact being impaired at the time relief [is] sought.’” Wagner v. 

Taylor, 836 F.2d 566, 576 (D.C. Cir. 1987) citing Elrod v. Burns, 427 U.S. 347, 373-374 

(1976); see also Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It 

has long been established that the loss of constitutional freedoms, ‘for even minimal 

periods of time, unquestionably constitutes irreparable injury.’”); Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) (“Where a plaintiff 

alleges injury from a rule or regulation that directly limits speech, the irreparable nature 

of the harm may be presumed.”); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 

(2d Cir. 2013) citing Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) 

(“The harm is particularly irreparable where, as here, a plaintiff seeks to engage in 

political speech, as timing is of the essence in politics and a delay of even a day or two 

may be intolerable.”).

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In addition, “[a]ny alleged irreparable harm ‘must be both certain and great; it 

must be actual and not theoretical,’ and be ‘of such imminence that there is a clear and 

present need for equitable relief.’” Davis v. Billington, 2014 U.S. Dist. LEXIS 175213, 

*10 (D.D.C. Dec. 19, 2014) (internal citation omitted); see also Sierra Club v. United 

States Army Corps of Eng'rs, 990 F. Supp. 2d 9, 38 (D.D.C. 2013) (discussing 

“irreparable harm” standard).

The Plaintiff faces irreparable harm – actual and not merely theoretical harm –

each and every day that it is threatened by the FEC’s unconstitutional speech ban. 

III. BALANCE OF HARMS

“In evaluating whether a preliminary injunction should issue, courts ‘must 

balance the competing claims of injury and must consider the effect on each party of the 

granting or withholding of the requested relief.’” Wash. Metro. Area Transit Auth. v. 

Local 689, Amalgamated Transit Union, 2015 U.S. Dist. LEXIS 83838, *18-19 (D.D.C. 

June 29, 2015) citing Winter, 555 U.S. at 24. 

“[S]ecuring First Amendment rights is in the public interest.” N.Y. Progress & 

Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. N.Y. 2013); see also Am. Civil Liberties 

Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003) (“[T]he Government does not have 

an interest in the enforcement of an unconstitutional law.”) (internal quotation marks 

omitted).

The Plaintiff seeks to exercise its First Amendments; the Defendant has no 

interest in the enforcement of an unconstitutional law. Accordingly, the balance of harms 

favors the Plaintiff.

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IV. PUBLIC INTEREST

The public interest favors Plaintiffs. “[S]ecuring First Amendment rights is in the 

public interest.” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013). 

“The public interest is supported by protecting the right to speak, both individually and 

collectively.” Carey v. FEC, 791 F. Supp.2d 121, 136 (D.D.C. 2011). “It is in the public 

interest not to perpetuate the unconstitutional application of a statute.” Martin–Marietta 

Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982). “To assess speech in a public 

forum some balancing may be necessary, but the ‘thumb of the court should always be on 

the speech side of the scales.’” Am. Freedom Def. Initiative v. Wash. Metro. Area Transit 

Auth., 898 F. Supp.2d 73, 84 (D.D.C. 2012) quoting Lebron v. Wash. Metro. Area Transit 

Auth., 749 F.2d 893, 898 (D.C. Cir. 1984). “[T]here is the highest public interest in the 

due observance of all the constitutional guarantees[.]” U.S. v. Raines, 362 U.S. 17, 27 

(1960).

There can be no public interest in prohibiting certain speakers from referencing 

candidates for public office in website URLs or on social media platforms in a manner 

that expresses support for those candidates, and where no solicitation of funds is 

involved. The public interest favors entry of a preliminary injunction.

PLAINTIFF SATISFIES THE REQUIREMENTS OF STANDING

To establish standing, plaintiffs must demonstrate three elements: an injury in 

fact, a causal connection between the injury and the defendant's conduct, and a likelihood 

that the injury will be redressed by a decision favorable to the plaintiff. See Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An injury in fact is satisfied when

plaintiffs make a showing of an “an invasion of a legally protected interest which is (a)

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35

concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”

Id. at 560. (internal quotation marks and citations omitted). Plaintiffs have established

an injury in fact capable of relief issued by this court. Moreover, there exists a causal

connection between the PAC Naming Prohibition and the Plaintiffs’ injuries, and a 

decision issued by this court will redress those injuries.

Within the context of the First Amendment, the Supreme Court has announced

relaxed standing requirements for pre-enforcement challenges. See, e.g., Dombrowski v.

Pfister, 380 U.S. 479 (1965) (detailing expanded standing principles for pre-enforcement 

First Amendment challenges); Virginia v. American Booksellers Ass’n, Inc., 484 U.S.

383, 393 (1988) (self-censorship is a harm that can be alleged without actual

prosecution); Chamber of Commerce v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (“A 

party has standing to challenge, pre-enforcement, even the constitutionality of a statute if 

First Amendment rights are arguably chilled, so long as there is a credible threat of 

prosecution”). Would-be speakers bringing pre-enforcement challenges must allege “an 

intention to engage in a course of conduct arguably affected with a constitutional 

interest,” and illustrate that there exists a “credible threat of prosecution” under the law in 

question. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). In the 

First Amendment, where a challenged action on its face “restricts a party from engaging 

in expressive activity, there is a presumption of a credible threat of prosecution.” Virginia 

Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 388 (4th Cir. 2001).

Here, PAG has alleged an “intention to engage in a course of conduct arguably 

affected with a constitutional interest, but proscribed” by the PAC Naming Prohibition. 

Babbitt, 442 U.S. at 298. Specifically, PAG owns and would like to operate and update 

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websites at the specified URLs, Facebook pages at the specified URL, and certain other 

social media properties it has yet to acquire. PAG cannot engage in these activities due 

to the operation of the PAC Naming Prohibition.

PAG suffers injuries against its First Amendment protected interests that are 

imminent as well since it obtained the website and Facebook pages prior to the issuance 

of Advisory Opinion 2015-04 and now cannot operate them for fear of civil and criminal 

enforcement. By operation of the PAC Naming Prohibition, PAG must refrain exercising 

its speech and associational rights until this court can act to protect those rights. Because 

ballots are approximately 150 days from being mailed to voters in elections PAG seeks to 

influence, its injuries are ongoing. See Virginia Soc’y for Human Life, Inc., 263 F.3d at 

389 (First Amendment injury is ongoing where it relates to proscribed speech concerning 

federal elections). PAG has established concrete plans to engage in constitutionally 

protected conduct that is subject to the reach of the challenged laws. PAG’s speech and 

association are chilled due to fear of prosecution by the Federal Election Commission.

Most recently, the Commission reinforced and expanded the reach of the PAC 

Naming Prohibition in Advisory Opinion 2015-04. The FEC’s decision to issue this 

advisory opinion deprives PAG of a legal reliance defense which it could otherwise 

receive under 2 U.S.C. § 437f(c) if the outcome of the advisory opinion request had been 

different. See FEC v. Nat'l Rifle Ass'n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) (noting 

that “advisory opinions have binding legal effect on the Commission”). Because of this, 

and as the D.C. Circuit recognized in Unity ’08 v. FEC, this matter is ripe for review. 

PAG’s only other course of action is to risk enforcement penalties—a jeopardy never 

required by the First Amendment.

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REQUEST FOR NOMINAL BOND UNDER RULE 65(c)

Federal Rule of Civil Procedure 65(c) provides that no preliminary injunction 

shall issue without the giving of security by the applicant in an amount determined by the 

court. However, “[i]t is within the Court's discretion to waive Rule 65(c)'s security 

requirement where it finds such a waiver to be appropriate in the circumstances.” Cobell 

v. Norton, 225 F.R.D. 41, 50 n.4 (D.D.C. 2004). In non-commercial cases, courts often 

waive the bond requirement where the likelihood of harm to the non-moving party is 

slight and the bond requirements would impose a significant burden on the moving party. 

See, e.g., Temple Univ. v. White, 941 F.2d 201, 219 (3d Cir. 1991); Comm. on Jobs

Candidate Advocacy Fund v. Herrera, 2007 U.S. Dist. LEXIS 73736, at * 17-* 18 (N.D. 

Cal. Sept. 20, 2007). Cases raising constitutional issues are particularly appropriate for a 

waiver of the bond requirement. See Odgen v. Marendt, 264 F. Supp. 2d 785, 795 (S.D. 

Ind. 2003); Smith v. Bd. of Election Comm'rs, 591 F. Supp. 70, 71 (N.D. Ill. 1984). 

Accordingly, Plaintiffs respectfully request that the court waive the bond requirement in 

the event that it grants Plaintiffs’ motion for preliminary injunction.

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 45 of 46
38

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for preliminary injunction should be 

granted.

Respectfully submitted,

/s/ Jason Torchinsky

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

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

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

 Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

jtorchinsky@hvjlaw.com

mbayes@hvjlaw.com

ssheehy@hvjlaw.com

Counsel for Plaintiff Pursuing America’s 

 Greatness

Dated: July 27, 2015 

Case 1:15-cv-01217 Document 2-1 Filed 07/27/15 Page 46 of 46
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

PURSUING AMERICA’S GREATNESS )

11300 Cantrell Road, Suite 301 )

Little Rock, Arkansas, 72212, ) Civil Case No. 

)

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

999 E Street, NW )

Washington, DC 20463, )

)

Defendant. )

_________________________________________ )

[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION

Based upon the pleadings, motions, and evidence received by the Court, the Court hereby

GRANTS the motion filed by Plaintiff Pursuing America’s Greatness seeking a preliminary

injunction and ORDERS as follows:

1. The Federal Election Commission is hereby enjoined from enforcing 52 U.S.C. §

30102(e)(4) and 11 C.F.R. § 102.14(a), as interpreted and applied in FEC Advisory Opinion 

2015-04, to Plaintiff with respect to Plaintiff’s website www.ilikemikehuckabee.com, Plaintiff’s 

Facebook page “I Like Mike Huckabee,” and to any Twitter account created by Plaintiff that 

incorporates the name “Mike Huckabee” into its account name (“handle”), so long as these 

webpages and social media accounts are not used for fundraising purposes.

2. This Order shall remain in effect through the remainder of these proceedings until

such time as the Court enters a subsequent Order dissolving the preliminary injunction and/or

awarding permanent relief.

Date:

United States District Judge

Case 1:15-cv-01217 Document 2-2 Filed 07/27/15 Page 1 of 1