ORAL ARGUMENT SET FOR FEBRUARY 23, 2016

____________________________________________________

No. 15-5264

_________________________________________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________

PURSUING AMERICA’S GREATNESS,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

_________________________________________________

On Appeal from the United States District Court 

for the District of Columbia

_________________________________________________

APPELLANT PURSUING AMERICA’S GREATNESS

OPENING BRIEF

_________________________________________________

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

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

Shawn Sheehy

Steven P. Saxe

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100 Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

jt@hvjt.law

Counsel for Appellant Pursuing America’s Greatness

December 16, 2015

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I. Parties and Amici

Pursuing America’s Greatness (“PAG”) and the Federal Election 

Commission (“FEC”) were parties before the District Court. PAG appeared as the 

Plaintiff before the District Court, while the FEC appeared as the defendant. 

Before this Court, PAG appears as the Appellant and the FEC is the Appellee. 

No amicus curiae entered an appearance or filed briefs with the District 

Court. 

Pursuant to Circuit Rule 26.1, PAG certifies that no publicly-held company 

owns ten percent or more of PAG. Furthermore, PAG itself has no parent company 

as that term is defined in the Circuit Rules. PAG filed Articles of Incorporation as 

a non-profit corporation in the State of Arkansas on March 5, 2015. PAG 

registered with the FEC as an unauthorized, independent expenditure-only political 

committee on March 11, 2015 by filing FEC Form 1 (Statement of Organization). 

PAG operates pursuant to Internal Revenue Code Section 527 as a “political 

organization” for federal tax purposes. 

II. Rulings Under Review

On September 24, 2015, the District Court issued an order and memorandum 

opinion in case number 15-1217 denying Plaintiff Pursuing America’s Greatness’ 

Motion for Preliminary Injunction. JA257; JA258. The District Court’s order 

appears at Dist. Ct. Dkt. 22. JA257. On October 2, 2015, the District Court denied 

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PAG’s motion for an injunction pending appeal in a brief order at Dist. Ct. Dkt. 27. 

JA333.

III. Related Cases

PAG is not aware of any current related case as strictly defined by Circuit 

Rule 28. However, the FEC (Defendant-Appellee in this matter) is also the 

defendant in Stop Hillary PAC et. al. v. Federal Election Commission (Case No. 

1:15-cv-01208-GBL-IDD, filed September 22, 2015) pending in the Eastern 

District of Virginia. The Plaintiffs in Stop Hillary PAC challenge the 

constitutionality of 52 U.S.C. § 30102(e)(4). Pursuant to the special review 

provisions of 52 U.S.C. § 30110, Plaintiffs seek certification of constitutional 

questions to the United States Court of Appeals for the Fourth Circuit for 

resolution en banc. 

The United States District Court for the Eastern District of Virginia held a 

hearing on December 4, 2015 to address the Motion for Certification of 

Constitutional Claims to En Banc Circuit Court and plaintiff’s motion for a 

preliminary injunction. No opinion or order has issued.

If a decision on whether Stop Hillary PAC will be certified to the United 

States Court of Appeals for the Fourth Circuit en banc is made while this matter is 

pending, and if Plaintiff’s motion is granted, this case would fall within the 

disclosure requirements of Circuit Rule 28. Counsel intends to monitor the 

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proceedings in Stop Hillary PAC v. FEC and will notify this Court of the outcome 

of the pending motion in that case. 

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TABLE OF CONTENTS

 Page

I. Parties and Amici ....................................................................................... i

II. Rulings Under Review ............................................................................... i

III. Related Cases ............................................................................................ii

TABLE OF CONTENTS......................................................................................... iv

TABLE OFAUTHORITIES ................................................................................... vii

GLOSSARY OF ABREVIATIONS......................................................................xiii

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

JURISDICTIONAL STATEMENT ......................................................................... 3

STANDING.............................................................................................................. 4

STATEMENT OF THE ISSUES ............................................................................. 4

STATUTES AND REGULATIONS........................................................................ 6

STATEMENT OF THE CASE................................................................................. 6

I. Statutory and Regulatory History................................................................... 6

A. PAG’s Intended Speech ....................................................................... 7

B. History of the PAC Naming Prohibition Regulation ........................... 8

1. The FEC’s Original View of the PAC Naming Prohibition 

(1980-1992)................................................................................ 9

2. The FEC’s 1992 Rulemaking Expanded the Scope of the 

PAC Naming Prohibition......................................................... 11

3. The FEC’s 1994 Rulemaking Recognized the Overbreadth 

of the 1992 Rule....................................................................... 13

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4. FEC Application of PAC Naming Prohibition to Website 

URLs........................................................................................ 15

C. Collective Actions PAC’s Advisory Opinion Request ...................... 19

D. Application of Advisory Opinion 2015-04 (Collective Actions 

PAC) to Plaintiff................................................................................. 23

II. Procedural History........................................................................................ 25

SUMMARY OF THE ARGUMENT ..................................................................... 26

STANDARD OF REVIEW.................................................................................... 30

ARGUMENT.......................................................................................................... 31

I. The FEC’s Interpretation of the PAC Naming Prohibition Restricts 

Speech Based Upon the Content of the Speech and Therefore Cannot 

Survive Strict Scrutiny.................................................................................. 32

A. The FEC’s PAC Naming Prohibition Is a Content-Based Speech 

Prohibition.......................................................................................... 34

B. The PAC Naming Prohibition Is Not a Disclosure Provision; 

Rather, the PAC Naming Prohibition Is a Content-Based Speech 

Prohibition.......................................................................................... 37

C. The District Court Committed Reversible Error When It Did Not 

Apply Strict Scrutiny to the PAC Naming Prohibition ...................... 39

D. The PAC Naming Prohibition Does Not Satisfy Strict Scrutiny ....... 41

i. The PAC Naming Prohibition Is Not Narrowly Tailored........ 41

E. The PAC Naming Prohibition Is Akin to Government Regulation 

of Book Titles and Is Unconstitutional Under the First Amendment 47

II. The FEC's Name Prohibition Regulation Functions As a Prior Restraint 

on Speech...................................................................................................... 48

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A. The FEC Wrongly Described the PAC Naming Prohibition As 

Providing for Subsequent Punishment Instead of Requiring 

Clarification and Permission Prior to Speaking ................................. 51

III. The District Court Should Have Granted the Injunction ............................. 53

IV. The FEC’s Application of the PAC Naming Prohibition in Advisory 

Opinion 2015-04 Is Invalid Under the Administrative Procedure Act......... 54

CONCLUSION....................................................................................................... 56

CERTIFICATE OF COMPLIANCE...................................................................... 57

CERTIFICATE OF SERVICE ............................................................................... 58

ADDENDUM ......................................................................................................... 59

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 TABLE OF AUTHORITIES 

CASES 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003)...................................................................... 46

Alexander v. United States, 

509 U.S. 544 (1993) ..................................................................................... 48

Alliance for Community Media v. FCC, 

56 F.3d 105 (D.C. Cir. 1995)........................................................................ 48

Bantam Books, Inc. v. Sullivan, 

372 U.S. 58 (1963) ....................................................................................... 49

Buckley v. Valeo, 

424 U.S. 1 (1976) ................................................................................... 27, 38

Burson v. Freeman, 

504 U.S. 191 (1992) ..................................................................................... 36

Carey v. FEC, 

791 F. Supp.2d 121 (D.D.C. 2011) ...................................................54

Cahaly v. Larosa, 

796 F.3d 399 (4th Cir. 2015)........................................................................ 40

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. 

v. District of Columbia, 

919 F.2d 148 (D.C. Cir. 1990)...................................................................... 36

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

2 F.3d 1514 (11th Cir. 1993)........................................................................ 45

*Citizens United v. FEC, 

558 U.S. 310 (2010) ....................................................... 27, 31, 39, 48, 49, 50

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ............................................................... 10, 11

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* Authorities upon which we chiefly rely are marked with asterisks

Dana's R.R. Supply v. AG, 

No. 14-14426, 2015 U.S. App. LEXIS 19201 (11th Cir. Nov. 4, 2015)...... 40

Davis v. Pension Benefit Guaranty Corp., 

571 F.3d 1288 (D.C. Cir. 2009).................................................................... 30

Elrod v. Burns, 

427 U.S. 347 (1976) ....................................................................... 53

FEC v. National Rifle Association of America, 

254 F.3d 173 (D.C. Cir. 2001)........................................................................ 7

FTC v. H.J. Heinz Co., 

246 F.3d 708 (D.C. Cir. 2001)...................................................................... 30

FTC v. Whole Foods Market, Inc., 

533 F.3d 869 (D.C. Cir. 2008)...................................................................... 30

First National Bank v. Bellotti, 

435 U.S. 765 (1978) ..................................................................................... 33

Fischer v. City of St. Paul, 

894 F. Supp. 1318 (D. Minn. 1995).............................................................. 48

Gardebring v. Jenkins, 

485 U.S. 415 (1988) ..................................................................................... 55

Hispanic Leadership Fund, Inc. v. FEC, 

897 F. Supp. 2d 407 (E.D. Va. 2012)........................................................... 52

Illinois ex rel. Madigan v. Telemarketing Associates, 

538 U.S. 600 (2003) ..................................................................................... 44

Indiana Civil Liberties Union v. Indiana Secretary of State, 

No. 15-01356 (S.D. Ind. Oct. 19, 2015) ...................................................... 40

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Linmark Associates, Inc. v. Willingboro, 

431 U.S. 85 (1977) ................................................................................. 33, 38

McCullen v. Coakley, 

134 S. Ct. 2518 (2014)............................................................................ 26, 33

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014).................................................................................. 46

Memorial Hospital v. Maricopa County, 

415 U.S. 250 (1974) ..................................................................................... 45

Mills v. District of Columbia, 

571 F.3d 1304 (D.C. Cir. 2009) ......................................................54

Near v. Minnesota, 

283 U.S. 697 (1931) ..................................................................................... 49

Neb. Press Association v. Stuart, 

427 U.S. 539 (1976) ..................................................................................... 50

New York Times Co. v. United States, 

403 U.S. 713 (1971) ..................................................................................... 49

N.Y. Progress & Prot. PAC v. Walsh,

733 F.3d 483 (2d Cir. 2013) ......................................................... 54

Organization for a Better Austin v. Keefe, 

402 U.S. 415 (1971) ..................................................................................... 49

Perry Education Association v. Perry Local Educators' Association, 

460 U.S. 37 (1983) ....................................................................................... 32

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

413 U.S. 376 (1973) ..................................................................................... 49

Police Department of Chicago v. Mosley, 

408 U.S. 92 (1972) ................................................................................. 33, 44

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Population Institute v. McPherson, 

797 F.2d 1062 (D.C. Cir. 1986).................................................................... 30

Pursuing America’s Greatness v. FEC,

-- F. Supp. 2d -- 2015 U.S. Dist. LEXIS 128250 

(D.D.C. Sept. 24, 2015)................................................................................... i

*Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015).............................................................. 2, 5, 26, 28, 34

Rideout v. Gardner, 

No. 14-489, 2015 U.S. Dist. LEXIS 105194 (D.N.H. Aug. 11, 2015)......... 40

Riley v. National Federation of Blind, 

487 U.S. 781 (1988) ............................................................................... 33, 38

Rosemond v. Markham, 

No. 13-42, 2015 U.S. Dist. LEXIS 134214 (E.D. Ky. Sept. 30, 2015)........ 40

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

467 U.S. 947 (1984) ..................................................................................... 44

Stop Hillary PAC et. al. v. Federal Election Commission, 

No. 1:15-cv-01208-GBL-IDD (Sept. 22, 2015) ........................................ii, iii

Tashjian v. Republican Party of Connecticut, 

479 U.S. 208 (1987) ............................................................................... 33, 38

Thomas Jefferson University v. Shalala, 

512 U.S. 504 (1994) ..................................................................................... 54

U.S. v. National Treasury Employee Union, 

513 U.S. 454 (1995) ..................................................................................... 44

U.S. v. Playboy Entertainment Group, Inc., 

529 U.S. 803 (2000) ..................................................................................... 36

Unity08 v. FEC, 

596 F.3d 861 (D.C. Cir. 2009).................................................................. 7, 52

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Vance v. Universal Amusement Co., 

445 U.S. 308 (1980) ..................................................................................... 49

Wagner v. FEC, 

793 F.3d 1 (D.C. Cir. 2015).......................................................................... 41

STATUTES 

2 U.S.C. § 432(e)(4) .......................................................................................... 12

5 U.S.C. § 706 ................................................................................................... 55

28 U.S.C. § 1292(a)(1) .................................................................................. 3, 30

28 U.S.C. § 1331.................................................................................................. 4

52 U.S.C. § 30102(e)(4) ..............................................................ii, 1, 6, 8, 11, 37

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

52 U.S.C. § 30108(c)(1-2)............................................................................. 7, 52

52 U.S.C. § 30108(c)(2) .................................................................................... 24

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

52 U.S.C. § 30109(a)(5)(C) ............................................................................... 31

52 U.S.C. § 30109(d)......................................................................................... 53

52 U.S.C. § 30110................................................................................................ii

FEDERAL REGULATIONS

11 C.F.R. § 100.26....................................................................................... 51, 55

11 C.F.R. § 102.14..................................................................................... 1, 9, 22

11 C.F.R. § 102.14(a) ...................................................................................... 6, 8

11 C.F.R. § 102.14(a) - (b) .................................................................... 15, 25, 34

11 C.F.R. § 102.14(b)(2) ..................................................................................... 8

11 C.F.R. § 102.14(b)(3) ......................................................................... 9, 13, 18

11 C.F.R. § 110.11(a) .................................................................................. 54, 57

1992 Final Rule, 57 Fed. Reg. ......................................................... 41, 42, 43, 44

1994 Final Rule, 59 Fed. Reg. ..................................................................... 41, 42

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

Funds or Soft Money, 

67 Fed. Reg. 49,064, 49,072 (July 29, 2002) ............................................... 17

FEC Final Rules on Internet Communications, 

71 Fed. Reg. 18,589 (April 12, 2006)........................................................... 17

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Final Rule on Internet Communications, 

71 Fed. Reg. 18,589 (April 12, 2006)........................................................... 51

Final Rule on Internet Communications, 

71 Fed. Reg. 18,589 (April 12, 2006)........................................................... 56

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)............................................................. 9

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)........................................................... 13

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) ............................................................ 11

UNITED STATES CONSTITUTIONAL AMENDMENTS

US Const. amend. 1 ..................................................................... 2, 4, 5, 7, 49, 52

OTHER AUTHORITIES

Advisory Opinion Request of Collective Actions PAC (June 3, 2015) ........ 6, 19

M. Nimmer, Nimmer on Freedom of Speech § 4.03 ......................................... 48

MUR 6399 (Yoder), Statement of Reasons of Vice Chair Caroline C. 

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

(June 23, 2011) ............................................................................................ 18, 21

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GLOSSARY OF ABBREVIATIONS

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

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

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

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INTRODUCTION

The Federal Election Commission (“FEC”)

1 prohibits Pursuing America’s 

Greatness’s (“PAG”) speech advocating for the nomination and election of Mike 

Huckabee for President. The FEC prohibits PAG from using Mike Huckabee’s 

name in its URL website address, Facebook page, and Twitter handle. PAG used—

and wishes to use again—Mike Huckabee’s name in PAG’s efforts to advocate the 

election of Governor Mike Huckabee for President of the United States. 

Just as a regulation prohibiting the use of Mike Huckabee’s name in the title 

of a book or in the chapter headings contained in that book would be declared 

unconstitutional, so too should this Court declare unconstitutional the FEC’s 

regulation prohibiting the use of Mike Huckabee’s name in PAG’s website 

addresses, Facebook page, and Twitter handles. 

PAG requests that this Court enjoin 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 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 

																																																						 1 The FEC is the independent federal regulatory agency tasked with civil

enforcement of the Federal Election Campaign Act of 1971, as amended 

(“FECA”).

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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 Procedure Act 

(APA), as well as the First Amendment insofar as it is a prior restraint and a 

content-based speech restriction. 

As more fully set forth below, the FEC’s announced interpretation of a 

certain regulation prohibits PAG from maintaining a Facebook page with the title 

“I Like Mike Huckabee”; prohibits PAG from maintaining a corresponding 

website at www.ilikemikehuckabee.com; and prohibits PAG from establishing a 

Twitter account with an identifying “handle” that incorporates some or all of the 

name “Mike Huckabee.” 

First, the FEC’s PAC Naming Prohibition, as applied to PAG’s 

communications, is a content-based speech restriction that cannot withstand the 

applicable level of constitutional scrutiny under the Supreme Court’s analysis in 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Since the Court’s Reed decision, 

every court that has considered an election or political advocacy-related case

involving restrictions on the content of speech – with the notable exception of the 

lower court in this case – has found that Reed’s framework controls. This Court

should review the PAC Naming Prohibition under the analytical framework set 

forth in Reed. 

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Second, the FEC recently issued an Advisory Opinion that prohibits political 

committees like PAG from using the name of a federal candidate in a website URL 

address, Facebook page heading, or Twitter handle, unless the FEC believes the 

communication adequately evidences opposition to the named candidate. This 

interpretation and application of the PAC Naming Prohibition acts as a prior 

restraint of PAG’s speech, because if PAG maintains and uses its website, 

Facebook page, and Twitter handles, it will be subject to criminal penalties for 

knowing and willful violations. It is well established that prior restraints on

protected speech are presumptively invalid. 

Third, the FEC’s Advisory Opinion, a final agency action, violated the 

Administrative Procedure Act because it was arbitrary, capricious, an abuse of 

discretion, and contrary to law. The Collective Actions PAC Advisory Opinion for 

the first time, and without rulemaking notice and comment, applied the PAC 

Naming Prohibition to the Internet and social media platforms in a manner never 

before contemplated by the FEC, and in a manner inconsistent with the FEC’s 

approach to Internet regulation since 2006.

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). PAG

timely filed its notice of appeal on September 28, 2015, four days after the denial 

of PAG’s Motion for a preliminary injunction. JA296; JA257. The District Court

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had jurisdiction pursuant to 28 U.S.C. § 1331.

STANDING

PAG has standing to bring its constitutional and APA claims. The FEC’s 

PAC Naming Prohibition prohibits PAG from using Governor Huckabee’s name in 

its website address, Facebook page heading, and Twitter handles. Thus, the FEC’s 

prohibition injures PAG’s First Amendment rights. Additionally, the FEC 

Advisory Opinion at issue in this case for the first time, without rulemaking notice 

and comment, expands the PAC Naming Prohibition to website addresses, 

Facebook pages, and Twitter handles. The Advisory Opinion, a final agency 

action, directly impacts PAG’s speech. 

STATEMENT OF THE ISSUES

In the decision below, the United States District Court for the District of 

Columbia failed to apply strict scrutiny to a content-based government prohibition 

on speech, and denied a preliminary injunction. This prohibits PAG from engaging 

in its preferred speech in advance of the rapidly approaching presidential primary 

elections. PAG has indicated it will not fundraise on the web pages and social 

media outlets it desires to use. Nevertheless, the FEC has imposed a prohibition 

under threat of criminal penalties on PAG’s use of certain words in its web 

addresses and social media identifiers.

First, under the First Amendment of the United States Constitution, did the 

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District Court err when it failed to analyze the FEC’s PAC Naming Prohibition 

under the Supreme Court’s Reed v. Town of Gilbert ruling—and consequently not 

issue the injunction—because the FEC’s regulation is a content-based speech 

restriction that prohibits the use of a candidate’s name in PAG’s website URL 

address, Facebook page heading, and Twitter handle, in communications that 

support the candidate’s election, but allows other committees to use the candidate’s 

name in the same manner so long as the committees’ communications evidence 

opposition to the candidate?

Second, under the First Amendment of the United States Constitution, does

the FEC’s Advisory Opinion issued to Collective Actions PAC act as an 

unconstitutional prior restraint wherein it prohibits PAG from using a candidate’s 

name in a website URL address, Facebook page, and Twitter handle?

Third, did the District Court err when it ruled that PAG was not irreparably 

harmed, and that the public was not harmed, when it denied PAG’s motion to 

enjoin the FEC from applying the PAC Naming Prohibition to PAG’s specified 

communications?

Fourth, under the Administrative Procedure Act, did the FEC act arbitrarily 

and capriciously, and/or abuse its discretion, or act contrary to law when, without 

rulemaking notice and comment, it applied the PAC Naming Prohibition to 

Internet and social media platforms in a manner not previously contemplated or 

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announced by the FEC, and in a manner inconsistent with the approach taken by 

the FEC to Internet regulation since 2006?

STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the addendum to this 

brief. 

STATEMENT OF THE CASE

I. Statutory and Regulatory History

Before the District Court, PAG sought a preliminary injunction enjoining 

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

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

Naming Prohibition”), against PAG’s website URL, Facebook page, and Twitter 

handles. See FEC Advisory Opinion 2015-04 and Advisory Opinion Request of 

Collective Actions PAC. JA13; JA12. Under Advisory Opinion 2015-04, the PAC 

Naming Prohibition prohibits PAG from maintaining a Facebook page titled “I 

Like Mike Huckabee,” and a corresponding website with the web address 

www.ilikemikehuckabee.com, and PAG may not establish a Twitter account with 

an identifying or locating “handle” that includes all or part of the name “Mike 

Huckabee.”

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A. PAG’s Intended Speech

PAG registered with the FEC as an independent expenditure-only committee 

on March 11, 2015. JA22, 23 at ¶6. PAG is not authorized by any candidate or 

candidate’s committee, and the FEC classifies PAG as an “unauthorized” political 

committee. 

PAG seeks to exercise its First Amendment rights by advocating for the 

nomination and election of Mike Huckabee as President of the United States. The 

FEC’s Advisory Opinion 2015-04 chills PAG’s speech insofar as it prohibits PAG 

from maintaining and operating a Facebook page titled “I Like Mike Huckabee,” a 

corresponding website with a URL address of www.ilikemikehuckabee.com, and a 

Twitter account with a “handle” that incorporates all or some of the name “Mike 

Huckabee.” PAG faces the threat of an enforcement action, with potential criminal 

penalties, if it exercises its First Amendment rights as described. See 52 U.S.C. § 

30108(c)(1-2); see also 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) (“[A]dvisory 

opinions have binding legal effect on the Commission.”). 

On or about July 9, 2015, and prior to the FEC’s issuance of Advisory 

Opinion 2015-04, PAG began operating and maintaining a Facebook page titled “I 

Like Mike Huckabee” and a corresponding website with the address 

www.ilikemikehuckabee.com, as part of PAG’s independent efforts in support of 

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the presidential campaign of Governor Mike Huckabee. JA22, 24 at ¶11. Through 

these platforms, PAG can advocate the nomination and election of Mike Huckabee 

by communicating with large numbers of individual, grassroots supporters of 

Governor Huckabee. PAG wishes to develop a related Twitter account that 

incorporates some or all of the name “Mike Huckabee.” JA22, 24 at ¶13. PAG has 

not used, and does not intend to use, any of these platforms to solicit contributions 

or to otherwise engage in fundraising activities. 

B. History of 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).2 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 

excepted from this prohibition.3 11 C.F.R. § 102.14(b)(2). The FEC’s regulations 

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

3 A “draft committee” is “[a] political committee established solely to draft an 

individual or to encourage him or her to become a candidate.” 11 C.F.R. § 

102.14(b)(2).

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also 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). 

1. 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. 4 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) (“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 

																																																						 4 For example, in 2012, unauthorized political committees could not register 

themselves with the FEC as “Americans for Obama PAC” or “United for Romney 

PAC.” PAG does not seek to include any portion of the name “Mike Huckabee” in 

its registered PAC name. 

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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) (emphasis in the 

original). 

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.” Id. at 441. 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.

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2. 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 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. 

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, restrictive 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:

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[T]he 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...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....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...[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 applied not only to the fundraising scenarios that the 

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

Id. As the agency explained, “[t]he 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 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 without any analysis or further explanation that “it is well established that 

First Amendment rights are not absolute when balanced against the government’s 

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interest in protecting the integrity of the electoral process.” Id. The FEC asserted 

that its new rule 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 new content-based restrictions.

3. 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 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); 11 C.F.R. § 102.14(b)(3). The 

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

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

titles that clearly indicate opposition to such candidates.” Id. at 17,269.5 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 regulatory scheme, 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 regulations, nor the explanations and 

justifications contained in the FEC’s Final Rules referenced above contain any 

																																																						 5 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.” 59 Fed. Reg. at 

17,269.

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mention of the use of a candidate’s name in a website URL or social media 

platform. 

4. 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.6 The FEC nevertheless addressed the 

application of 11 C.F.R. § 102.14(a) – (b) 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.

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

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

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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 counsel’s knowledge, the FEC has never undertaken 

enforcement action against a political committee for using the name of a candidate 

in a website URL or other Internet-based platform, including social media 

accounts, on the grounds that the use does not adequately demonstrate opposition 

to the named candidate.7 

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 defining the term “public communication,” and expressly excluded the 

Internet from that 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 

																																																						 7 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.

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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 litigation, 

the FEC revised its regulations slightly in 2006 to treat paid Internet advertising as 

a “public communication,” but maintained its general policy of not regulating 

Internet communications. 8 Generally speaking, Internet-based “social media” 

remains unregulated.9 

In 2011, in Matter Under Review 6399 (Yoder), the FEC’s six 

Commissioners divided over the scope of the PAC Naming Prohibition – leaving 

																																																						 8 See FEC Final Rules on Internet Communications, 71 Fed. Reg. 18,589 (April 12, 

2006) (“Through this 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.”).

9 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).

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its application entirely unclear. 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 position 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). Of particular significance to the present matter, these 

Commissioners also explained:

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 signed 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 unrequested dicta regarding websites found at the end of Advisory 

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Opinion 1995-09, which was subsequently placed in question by the FEC’s later 

rulemakings implementing the FEC’s general policy of not regulating activities on 

the Internet. 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.

C. Collective Actions PAC’s Advisory Opinion Request

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.” JA12.10 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. 

JA12. 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.” JA12. Collective 

																																																						 10 United States Senator Bernard (“Bernie”) Sanders is a declared candidate for 

President of the United States in the 2016 election.

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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 

believe[d] being active online is the way to achieve our goal.” JA12.

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. JA22, 56.

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.”

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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. . . . 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.

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) (there 

was no mention of MUR 6399 (Yoder) at the FEC’s hearing, or of certain 

Commissioners’ conclusion in that matter that a website URL is not subject to the 

PAC Naming Prohibition). Advisory Opinion 2015-04 (Collective Actions PAC) 

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.” JA13, 

14. 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.” JA13, 

15. Accordingly, “[b]ecause the names of [Collective Action PAC’s] websites and 

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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.” JA13, 16. 

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 is, in fact, a very broad 

reading of Advisory Opinion 1995-09. 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 1995.11 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 to “online activities” other than a traditional website. 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 do not permit Collective Actions PAC to communicate with 

supporters through websites with URLs of www.RunBernieRun.com, 

																																																						 11 The earliest version of Facebook was created in 2004, while Twitter dates to 

2006. Advisory Opinion 1995-09 (NewtWatch PAC) could not have considered 

either one.

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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 not permitted under FEC regulations, which 

impose a “total ban” on Collective Actions PAC’s proposed uses of the word 

“Bernie.”12

D. Application of Advisory Opinion 2015-04 (Collective Actions 

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

																																																						 12 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.” JA13, 15.

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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 

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“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 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.

II. Procedural History

On September 24, 2015, the District Court declined to enter an order 

enjoining the FEC from applying its regulation to PAG’s communications. JA257; 

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JA258. Four days later, PAG filed a Notice of Appeal and shortly thereafter sought 

a Motion for Injunction Pending Appeal from the District Court. JA296. 

The District Court denied this motion by Order dated October 2, 2015. 

JA333. On November 18, 2015, this Court denied a Motion for Injunction Pending 

Appeal and instead granted expedited review, and on November 23, 2015, this 

Court set oral argument for February 23, 2016. JA334. On December 1, 2015, the 

United States Supreme Court denied PAG’s emergency application for an 

injunction pending appeal. JA336.

SUMMARY OF THE ARGUMENT

The District Court erred when it failed to apply strict scrutiny to the FEC’s 

content-based PAC Naming Prohibition, as the Supreme Court required in Reed v. 

Town of Gilbert. 

First, the PAC Naming Prohibition is a content-based speech regulation. A 

regulation is content-based if it requires those in charge of enforcing the statute to 

“[e]xamine the content of the message that is conveyed to determine whether a 

violation has occurred.” McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). The 

PAC Naming Prohibition permits “unauthorized” political committees to use the 

name of a candidate in its website address, Facebook page, and Twitter handle so 

long as those communications evidence opposition to the named candidate. To 

determine whether the PAC Naming Prohibition applies, the FEC is required to 

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examine the content of the communication to discern whether the speech opposes 

or supports the candidate whose name appears in the communication. Under 

Advisory Opinion 2015-04, PAG is prohibited from using Governor Huckabee’s 

name in a website address, Facebook page, or Twitter handle because PAG’s 

communications are (or would be) in support of the nomination and election of 

Mike Huckabee for President. PAG’s speech is restricted on the basis of its 

content. 

The District Court erred when it ruled that the PAC Naming Prohibition was 

a disclosure regulation. Disclosure regulations require the dissemination of 

information whether in the form of reports or in the form of compelled speech. The 

PAC Naming Prohibition is not a form of disclosure; it is a form of censorship. As 

the Supreme Court has recognized since Buckley, disclosure provides information, 

imposes no ceiling on speech, and does not prevent anyone from speaking. See 

Buckley v. Valeo, 424 U.S. 1, 64 (1976); Citizens United v. FEC, 558 U.S. 310, 

366 (2010). The PAC Naming Prohibition does not satisfy this formulation. 

Had the District Court analyzed the PAC Naming Prohibition under Reed’s 

framework it would have found the restriction unconstitutional. The PAC Name 

Prohibition is a “total ban” that is not narrowly tailored. The FEC’s only 

justification for imposing a “total ban” is administrative convenience.

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Finally, the PAC Naming Prohibition is a speech ban. Permitting the FEC’s 

PAC Naming Prohibition to stand makes the FEC the arbiters of how speakers may 

permissibly present and frame their messages. The PAC Naming Prohibition could 

be applied with equal force to the titles and chapter headings of books or 

documentary movies. Under this regulation, the FEC could prohibit PAG from 

publishing a book entitled “I Like Mike Huckabee,” while it was (presumably) 

permissible for Citizens United—another unauthorized political committee—to 

produce a documentary film entitled “Hillary: The Movie,” because that film 

evidenced clear opposition to Hillary Clinton. In short, the PAC Naming 

Prohibition is an unconstitutional content-based speech prohibition. 

Second, the PAC Naming Prohibition functions as an unconstitutional prior 

restraint of PAG’s speech. The Supreme Court has warned of the dangers of 

regulatory regimes that function as prior restraints due to the complex regulations 

that grant substantial discretion to the responsible agency. This is the case here. 

The FEC characterizes the PAC Naming Prohibition as ‘deliberately crystalline’ 

but Collective Actions PAC still sought an advisory opinion to determine if the 

PAC Naming Prohibition permitted certain speech through specific website 

addresses, Facebook pages, and Twitter handles. 

Because advisory opinion are final agency actions and have binding effect 

on those who are in materially indistinguishable circumstances, the consequences 

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of the FEC ensnaring PAG in an enforcement proceeding that could include 

criminal sanctions are onerous. Thus, for PAG and any other political committee to 

use a candidate’s name and avoid the FEC enforcement process, those potential 

speakers will need to first obtain an advisory opinion.

Third, because the PAC Naming Prohibition constitutes an unconstitutional 

content-based speech prohibition and because it constitutes an unconstitutional 

prior restraint, the District Court should have found that PAG was likely to succeed 

on the merits of its First Amendment claims. The District Court should have found 

that absent granting PAG’s requested injunction, PAG would suffer irreparable 

harm, that the balance of the hardships tips decidedly in PAG’s favor, and that 

granting the injunction is in the public interest. This Court should enjoin the FEC 

from enforcing its PAC Naming Prohibition against PAG’s speech.

Fourth, the FEC’s advisory opinion violates the Administrative Procedure 

Act. In Advisory Opinion 2015-04, the FEC, for the first time, prohibited the use 

of a candidate’s name in a website address, Facebook page, and Twitter handles. 

This application of the PAC Naming Prohibition expands the PAC Naming 

Prohibition beyond the asserted justification and intent expressed in prior 

rulemakings. Finally, even if the PAC Naming Prohibition is a “mere” disclosure 

provision, the application of the PAC Naming Prohibition in Advisory Opinion 

2015-04 is contrary to law because the FEC does not require the placement of 

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disclaimers on Internet communications that do not constitute paid advertising 

placed on third party websites. 

STANDARD OF REVIEW

“The denial (or grant) of a preliminary injunction is classified as an 

immediately appealable interlocutory order. 28 U.S.C. § 1292(a)(1).” Davis v. 

Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). “The factors 

to be considered in determining whether injunctive relief pending appeal is 

warranted are: (1) the likelihood that the party seeking the injunction will prevail 

on the merits of the appeal; (2) the likelihood that the moving party will be 

irreparably harmed absent an injunction; (3) the prospect that others will be 

harmed if the court issues the injunction; and (4) the public interest.” Population 

Institute v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986). The Court of 

Appeals “review[s] a district court’s weighing of the four preliminary injunction 

factors and its ultimate decision to issue or deny such relief for abuse of 

discretion...Legal conclusions...are reviewed de novo.” Davis, 571 F.3d at 1291. 

“[I]f the district court’s decision ‘rests on an erroneous premise as to the pertinent 

law,’ we will review the denial de novo ‘in light of the legal principles we believe 

proper and sound.’” FTC v. Whole Foods Mkt., Inc., 533 F.3d 869, 875 (D.C. Cir. 

2008) (citing FTC v. H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001)).

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ARGUMENT

This appeal presents three questions that this Court should unequivocally 

resolve in favor of free speech. 

First, the decision of the District Court in this case is not consistent with the 

Supreme Court’s decision in Reed, and is inconsistent with decisions rendered by

at least two Circuit Courts and several district courts since June 2015 that follow 

Reed. The District Court failed to properly analyze a content-based restriction on 

speech. 

Second, the Supreme Court has cautioned the FEC against imposing prior 

restraints on speech, whether through regulations that operate as prior restraints “in 

the strict sense” or through regulations that “[a]s a practical matter ... function as 

the equivalent of prior restraint by giving the FEC power equivalent to licensing 

laws.” See Citizens United v. FEC, 558 U.S. 310, 335 (2010). Yet, in this case, the 

FEC’s interpretation of its rules does precisely what the Supreme Court has 

prohibited. The government has acted as a censor, and has prohibited speech in 

advance under threat of criminal sanction. See 52 U.S.C. § 30109(a)(5)(C) (stating 

that the Commission can refer knowing and willful violations of FECA to the 

Attorney General for criminal prosecution). 

Third, the FEC violated the Administrative Procedure Act when it, for the 

first time, and without rulemaking notice and comment, applied the PAC Naming 

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Prohibition to the Internet and social media platforms in a manner never before 

contemplated by the FEC, and in a manner inconsistent with the approach taken by 

the FEC to Internet regulation since 2006.

I. The FEC’s Interpretation of the PAC Naming Prohibition Restricts 

Speech Based Upon the Content of the Speech and Cannot Survive 

Strict Scrutiny. 

“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 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.”). 

“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, 135 S. Ct. at 2227. “Content-based laws ... target speech based on its 

communicative content.” Id. at 2226. As the Supreme Court explained:

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...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. 

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Id. at 2227. A statute 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). 

“[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). 

A content-based regulation does not satisfy judicial scrutiny where the 

government’s proffered interest is merely a paternalistic one. See Linmark 

Associates, Inc. v. Willingboro, 431 U.S. 85, 96-97 (1977) (declaring 

unconstitutional a local ordinance banning real-estate ‘For Sale’ signs that the 

township enacted with the paternalistic purpose of reducing public concern over 

increasing home sales); Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 790-791 (1988) 

(holding that the government may not substitute its judgment for that of speakers 

and listeners); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 224

(1987) (criticizing State’s claimed interest in protecting the Republican Party on 

the ground that it viewed a particular expression as unwise or irrational); First 

Nat'l Bank v. Bellotti, 435 U.S. 765, 792 and n.31 (1978) (declaring 

unconstitutional Massachusetts criminal statute prohibiting banks and corporations 

from making independent expenditures and rejecting Massachusetts’ ‘highly 

paternalistic’ rationale and ruling that “[t]he people in our democracy are entrusted 

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with the responsibility for judging and evaluating the relative merits of conflicting 

arguments.”). 

A. The FEC’s PAC Naming Prohibition Is a Content-Based 

Speech Prohibition.

The FEC’s PAC Naming Prohibition is self-evidently a content-based 

speech ban and the agency’s paternalistic rationale of preventing general confusion 

is insufficient to satisfy strict scrutiny. Under the PAC Naming Prohibition, an 

unauthorized 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,” but not if the title demonstrates support 

for that candidate. 11 C.F.R. § 102.14(a) – (b). Appellant’s “I Like Mike 

Huckabee” Facebook page, corresponding website at 

www.ilikemikehuckabee.com, and any Twitter account handle that includes all or 

part of the name “Mike Huckabee” are, according to the FEC, titles of special 

project names which do not demonstrate opposition to Governor Huckabee’s 

candidacy, and are therefore banned by the PAC Naming Prohibition. See JA13. 

If Appellant sought to oppose Mike Huckabee’s election, a completely different 

result would obtain.

In Reed, 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 

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Reed, 135 S. Ct. at 2224-25. 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.

The District Court disregarded the content-based speech prohibition inherent 

in the PAC Naming Prohibition, and instead treated the PAC Naming Prohibition 

as a simple disclosure provision. According to the District Court, “[t]he Name 

Identification Requirement simply (i) requires a political committee to disclose 

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

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

which the committee conducts activities, including a special project name.” JA258, 

281. This innocuous sounding summary of the PAC Naming Prohibition omits any 

mention of what the FEC’s regulation actually does: impose upon unauthorized 

committees a “total ban” on the use of a candidate’s name in a special project title, 

except when the use of that name evidences opposition to the candidate. 

The District Court arrived at its conclusion even after acknowledging that 

the PAC Naming Prohibition does, in fact, impose a content-based “burden” on 

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speech. See JA258, 282 (the PAC Naming Prohibition “burdens speech slightly by 

restricting a limited class of speech (candidate names)”). The District Court 

nevertheless concluded that “[t]he Name Identification Requirement is therefore 

best construed as a disclosure provision.” JA258, 281. This constitutes clear error 

by the District Court in light of the Supreme Court’s opinion in Reed.

The District Court analogized the PAC Naming Prohibition to two cases 

having nothing to do with disclosure: Burson v. Freeman, 504 U.S. 191 (1992), 

regarding a state law barring campaign speech within 100 feet of a polling place, 

and Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

Columbia, 919 F.2d 148 (D.C. Cir. 1990), regarding a parade route shortened due 

to concerns for violence.

In the District Court’s view, “[t]he absence here of a total denial of any

speech rights,” and the characterization of the PAC Naming Prohibition as a 

“disclosure” mechanism, serves to immunize the PAC Naming Prohibition from 

Reed’s required strict scrutiny analysis. See JA258, 285 (emphasis added). No 

such exception exists in Reed, nor does Supreme Court precedent support excusing 

“slight” burdens on speech. See U.S. v. Playboy Entertainment Group, Inc., 529 

U.S. 803, 812 (2000) (“The distinction between laws burdening and laws banning 

speech is but a matter of degree. The Government’s content-based burdens must 

satisfy the same rigorous scrutiny as its content-based bans.”). 

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PAG acknowledges that the D.C. Circuit previously described 52 U.S.C. § 

30102(e)(4) as “mainly supplement[ing]” FECA’s statutory disclaimer provisions. 

See Common Cause, 842 F.2d at 442. This description of a statutory provision that 

“mainly supplements” a disclaimer requirement is not, however, a conclusion that 

52 U.S.C. § 30102(e)(4) is itself a disclosure provision that is indistinguishable 

from FECA’s disclaimer and reporting requirements. Common Cause did not 

consider either version of the FEC’s PAC Naming Prohibition regulation,13 and 

this Court has never held that the FEC’s current regulation, which imposes a ban 

on speech on the basis of content, should be scrutinized as “mere disclosure” rather 

than as a content-based restriction on speech that is subject to strict scrutiny. 

B. The PAC Naming Prohibition Is Not a Disclosure Provision; 

Rather, the PAC Naming Prohibition Is a Content-Based 

Speech Prohibition. 

The PAC Naming Prohibition may serve some indirect, supplemental 

disclosure value, but any “disclosure” obtained from this speech ban is highly 

attenuated at best, and the allegedly “disclosed” information is conveyed only 

through the non-use of certain words in certain situations. A court’s focus should 

not fall on what the PAC Naming Prohibition may perhaps do, or even on what it is

allegedly intended to do, but rather, on what it very clearly and actually does. The 

																																																						 13 In fact, the regulation before that court in 1988 mirrored the statutory language 

(which Appellant is not challenging) – namely, the direct prohibition on the use of 

a candidate’s name in the name of a committee that is not an authorized committee 

of a candidate.

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PAC Naming Prohibition bans speech by prohibiting unauthorized committees 

from using the names of federal candidates in a certain manner. 

The District Court seized on the perceived need for the “disclosure” that 

occurs when an unauthorized committee refrains from using Mike Huckabee’s 

name in a website URL, Facebook page, or Twitter handle, which in turn 

supposedly rescues the general public from being confused about the source of the 

communication. According to the District Court, such confusion was evidenced in 

Facebook posts that, ostensibly, directed comments to Mike Huckabee. JA258,

273-4 n.3, 275, and 287. The Supreme Court has declared similar speech bans 

unconstitutional and found that the proper response to the government’s concerns 

is not censorship but more speech. See Linmark Associates, Inc., 431 U.S. at 96-97; 

Riley, 487 U.S. at 790-791; Tashjian, 479 U.S. at 224. 

Furthermore, the idea that the non-use of certain words constitutes 

“disclosure” is contrary to Supreme Court precedent. No Supreme Court case has 

ever recognized that a prohibition on the use of certain words constitutes a 

disclosure of information. Rather, “disclosure” exists in two forms: (1) disclaimers 

required to be included on communications; and (2) public reports filed that 

disclose a person’s or committee’s address, directors/officers, contributions, and 

expenditures. See Buckley v. Valeo, 424 U.S. 1, 66-67 (1976); Citizens United, 558 

U.S. at 366-67. FECA’s disclosure provisions require additional speech in the 

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form of a written or oral disclaimer, or through the filing of a 

contribution/expenditure report. These provisions do not, however, regulate the 

content of the underlying speech. No disclaimer or reporting provision prohibits 

the use of certain words, and no disclosure provision seeks to “inform the public” 

by censoring what may be communicated to the public.

14 The Supreme Court 

made this clear in Citizens United v. FEC, when it explained that disclosure 

requirements “impose no ceiling on campaign-related activities ... and do not 

prevent anyone from speaking.” Citizens United, 558 U.S. at 366 (emphasis 

added). By contrast, the PAC Naming Prohibition imposes a ceiling on campaignrelated activities and prevents speech unless the content of that speech expresses 

opposition to a candidate. Citizens United makes clear that disclosure is the 

dissemination of information, not the suppression of speech. 

C. The District Court Committed Reversible Error When It Did 

Not Apply Strict Scrutiny to the PAC Naming Prohibition. 

Every court that has addressed restrictions on the content of speech 

following Reed in the election context has found that Reed controls. In each of 

these cases, the court struck down the challenged provision. 

																																																						 14 As was noted at oral argument before the District Court, and highlighted in its 

Memorandum Opinion denying the injunction below, a traditional disclosure 

requirement would allow specified language to be included in the communication 

(a disclaimer) or a document to be filed with the FEC (a disclosure report). See

JA212. In this case, these options are simply not present, and the FEC instead 

prohibits the speech at issue.

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On August 6, 2015, the United States Court of Appeals for the Fourth 

Circuit applied the Supreme Court’s Reed framework to South Carolina’s ban on 

political robocalls, and declared that prohibition unconstitutional. See Cahaly v. 

Larosa, 796 F.3d 399 (4th Cir. 2015). On August 11, 2015, the United States 

District Court for the District of New Hampshire declared New Hampshire’s ban 

on so-called “ballot selfies” unconstitutional under Reed. Rideout v. Gardner, No. 

14-489, 2015 U.S. Dist. LEXIS 105194 (D.N.H. Aug. 11, 2015). The United States 

District Court for the Northern District of Indiana reached the same conclusion. 

Indiana Civil Liberties Union v. Indiana Secretary of State, No. 15-01356, Slip Op. 

(S.D. Ind. Oct. 19, 2015) (Dkt. No. 32) (granting preliminary injunction enjoining 

enforcement of ‘ballot-selfie’ prohibition under Reed framework). 

Other courts have struck down governmental restrictions on speech beyond 

the signage context in Reed. See, e.g., Dana's R.R. Supply v. AG, No. 14-14426,

2015 U.S. App. LEXIS 19201 (11th Cir. Nov. 4, 2015) (analyzing credit card 

discount/surcharge restrictions under Reed, but striking down the restriction 

without relying on Reed);

15 Rosemond v. Markham, No. 13-42, 2015 U.S. Dist. 

LEXIS 134214 (E.D. Ky. Sept. 30, 2015) (prohibiting state board from regulating 

advice column and striking the restriction under Reed). This case is the only case 

																																																						 15 Judge Sentelle participated on the panel deciding this case. 

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where a clearly content based restriction in the election context has been upheld 

following this Court’s decision in Reed.

16 

D. The PAC Naming Prohibition Does Not Satisfy Strict Scrutiny. 

The PAC Naming Prohibition must be narrowly tailored in order to 

withstand strict scrutiny. The PAC Naming Prohibition does not satisfy this 

standard. The FEC’s interest in preventing confusion, fraud, and abuse in the 

fundraising context is not implicated by Appellant’s communications, because 

PAG does not seek to solicit funds through the communications at issue. JA13. 

What remains is an asserted interest in preventing general confusion. If preventing 

general confusion is a “compelling interest,”, which is far from self-evident, the 

PAC Naming Prohibition is not narrowly tailored to advance this interest. 

i. The PAC Naming Prohibition Is Not Narrowly Tailored. 

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 rulemaking 

indicates that “this situation” is the situation in which “potential contributors often 

confuse an authorized committee’s registered name with the names of its 

																																																						 16 This Court cited Reed in a footnote for a different proposition of law in Wagner 

v. FEC, 793 F.3d 1, 28 n.33 (D.C. Cir. 2015). The parties in Wagner did not 

provide any analysis under Reed in their respective briefs. 

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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.” JA13, 15. 

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 

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 

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focus on fundraising, as do the examples included in the two Final Rules.17 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). But there is nothing in 

the 1992 or 1994 rulemakings, other than conclusory assertions, about “confusion” 

outside the fundraising context. In the context of regulating charitable 

																																																						 17 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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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 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 fall in the latter category.

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 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 

U.S. v. National Treasury Employee Union, 513 U.S. 454, 473 (1995) (“A blanket 

burden of 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, 408 U.S. at 102 n. 9 (“This attenuated 

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45

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, 415 U.S. at 267-269 (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) (“[A]ny City interest in the administrative 

convenience of dispensing with an individualized determination concerning the 

sincerity of particular religious beliefs is not compelling). Administrative 

convenience is the only concrete justification the FEC has offered in support of 

extending the PAC Name Prohibition beyond the fundraising context. See JA13,

15. (“The Commission therefore determined that a “total ban” on the use of

candidate names in committee names was more “responsive to the problem, as well 

as easier to monitor and enforce.”) (emphasis added). 

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, 

meaning there is no possibility whatsoever that any person might be confused by a 

fundraising solicitation. In the absence of any identified governmental interest, the 

FEC’s ban on PAG’s speech cannot withstand scrutiny. 

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The FEC maintains that it must ban all references to candidates in special 

project titles where the use of the candidate’s name does not evidence opposition to 

prevent public confusion about the source of the communication and whether or 

not the communication was authorized by the named candidate. This complete and 

indiscriminate speech ban is not narrowly tailored. See, e.g., McCutcheon v. FEC, 

134 S. Ct. 1434, 1457-58 (2014) (rejecting FEC’s argument that aggregate 

contribution limits are sufficiently tailored to prevent the recontribution of funds 

because “[t]he indiscriminate ban on all contributions above the aggregate limits is 

disproportionate to the Government’s interest in preventing circumvention.”); 

AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003) (holding that the FEC 

violated the First Amendment rights of appellants because “the Commission failed 

to tailor its disclosure policy to avoid unnecessarily infringing upon First 

Amendment rights.”). 

The FEC has never attempted to clarify the actual cause of the allegedly 

rampant confusion it claims exists, although the FEC indirectly acknowledged in 

its 1994 rulemaking that it is not the use of a candidate’s name per se that may 

cause confusion, but rather, it is the context or manner in which that candidate’s 

name is used that may lead to confusion. The 1994 rulemaking, in which the FEC 

permitted the use of a candidate’s name where opposition was clearly shown, 

undermines the FEC’s claims that its categorical approach is narrowly tailored 

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because it is a frank acknowledgment that any “confusion” is the result of the 

reader’s reaction to the use of a candidate’s name as presented in the full context of 

the communication. It logically follows, then, that a narrowly tailored approach to 

this supposed problem would seek to identify and target the specific contexts in 

which the use of a candidate’s name causes confusion. It cannot be that any and

all non-oppositional uses of a candidate’s name by an unauthorized committee in a 

project title necessarily leads to confusion.

E. The PAC Naming Prohibition Is Akin to Government 

Regulation of Book Titles and Is Unconstitutional Under the 

First Amendment.

The PAC Naming Prohibition’s content-based regulation of website URLs, 

Facebook pages, and Twitter handles makes the FEC the arbiter of how speakers

may permissibly present and frame their messages. PAG wishes to use the website 

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

Twitter handle that incorporates some or all of the name “Mike Huckabee” to 

attract participants in the marketplace of ideas to hear PAG’s message. For an 

individual seeking information about Mike Huckabee on the Internet or on social 

media platforms, the most logical way to find that information is by searching the 

term “Mike Huckabee.” If PAG cannot use the name “Mike Huckabee” in the 

titles to, and headings of, its internet-based materials, those materials cannot be 

easily found. Similarly, one would locate a book about Mike Huckabee by 

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searching for “Mike Huckabee” in the card catalog; books with “Mike Huckabee” 

in the title would be easily found. 

If the FEC can dictate that PAG may not use certain words in its website 

URL, Facebook page headings, and Twitter handles, then there is no reason the 

PAC Naming Prohibition would not also apply with equal force to the titles of 

books or documentary movies. Under the PAC Naming Prohibition, PAG cannot 

legally produce a book or movie titled “I Like Mike Huckabee,” although Citizens 

United (also an unauthorized political committee) is free to produce “Hillary: The 

Movie,” because that film evidenced clear opposition to Hillary Clinton. See

Citizens United v. FEC, 558 U.S. 310 (2010).

II. The FEC's PAC Naming Prohibition Functions As a Prior Restraint 

on Speech.

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 

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any governmental action that would prevent a communication from reaching the 

public.”). The Supreme Court Reporter is replete with decisions invalidating prior 

restraints.18

The Supreme Court has also warned of the dangers of regulatory regimes 

that function as prior restraints in the context of considering 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 

																																																						 18 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 anti-obscenity 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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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). The PAC Naming Prohibition, coupled with necessity of 

seeking an advisory opinion from the FEC in order to understand the contours of 

the regulation, creates precisely the same situation the Supreme Court found 

intolerable in Citizens United. 

“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).

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A. The FEC Wrongly Described the PAC Naming Prohibition As 

Providing for Subsequent Punishment Instead of Requiring 

Clarification and Permission Prior to Speaking.

The FEC attempts to distinguish the PAC Naming Prohibition from the 11-

factor test at issue in Citizens United. (Dist. Ct. Dkt. 13) (FEC Oppn. to Pl.’s Mot. 

Prelim. Inj. at 38). Despite the FEC’s confidence in its ‘deliberately crystalline’ 

regulation, (Dist. Ct. Dkt. 13) (FEC Oppn. to Pl.’s Mot. Prelim. Inj. at 39), 

Collective Actions PAC still felt compelled to obtain an Advisory Opinion because 

the FEC had never before applied its PAC Name Prohibition regulation to 

Facebook Pages and Twitter handles. In fact, the CAP Advisory Opinion was 

shocking since—assuming the PAC Naming Prohibition is a disclosure 

provision—disclosure requirements do not apply to internet communications. This 

is because those communications are not considered public communications where 

no third-party advertising is involved. See 11 C.F.R. § 110.11(a); 11 C.F.R. § 

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

2006). A ‘deliberately crystalline’ regulation should not conflict with another 

regulation.

The FEC also contends that the PAC Naming Prohibition is not a prior 

restraint because the Prohibition provides for subsequent punishment. JA258, 279. 

The FEC continues noting that temporary restraining orders, permanent injunctions 

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and administrative orders forbidding certain speech are classic examples of prior 

restraints. (Dist. Ct. Dkt. 13) (FEC Oppn. to Pl.’s Mot. Prelim. Inj. at 37-38). 

But this is precisely what the PAC Naming Prohibition does, particularly the 

Collective Actions Advisory Opinion. First, the Advisory Opinions are final 

agency actions. See Unity08, 596 F.3d at 864-865; Nat’l Rifle Ass’n of Am., 254 

F.3d at 185 (“[A]dvisory 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). 

Second, those acting in reliance on an FEC Advisory Opinion in materially 

indistinguishable circumstances are not subject to an enforcement action. See 52 

U.S.C. § 30108(c)(1-2). Consequences of violating FECA are onerous and include 

FEC enforcement actions, federal criminal actions, and private party complaints. 

See generally 52 U.S.C. § 30109(a). Thus, FEC advisory opinions provide a safe 

harbor or forecast warnings. See Hispanic Leadership Fund, Inc. v. FEC, 897 F. 

Supp. 2d 407, 415 (E.D. Va. 2012); see also Citizens United, 558 U.S. at 335 

(noting that because federal campaign finance regulations are complex, and that 

courts show great deference to FEC determinations, the speaker who wishes to 

avoid criminal prosecution and expenses of defending oneself in an FEC 

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proceeding “[m]ust ask a governmental agency for prior permission to speak....”).

Thus, an FEC advisory opinion is an administrative order and, in the case of the 

Collective Actions PAC Advisory Opinion, the FEC explicitly prohibited 

Collective Actions PAC from using Bernie Sanders name in the URL, on subject 

headings, and the Twitter handles. Because PAG is in a materially 

indistinguishable position, the Collective Actions PAC Advisory Opinion, an 

administrative final order of the FEC, applies with equal force to PAG. Therefore, 

if PAG speaks, it is subject to criminal prosecution for knowing and willful 

violations. See 52 U.S.C. § 30109(d). 

PAG has therefore stopped speaking to avoid potential enforcement actions.

This has harmed not only PAG’s First Amendment rights, but the public as well 

who is deprived of PAG’s speech. See Citizens United, 558 U.S. at 335. The PAC 

Naming Prohibition is a prior restraint on speech just as the Supreme Court feared 

in Citizens United. 

III. The FEC Should Be Enjoined From Applying the PAC Naming 

Prohibition to PAG’s Communications. 

The PAC Naming Prohibition is an unconstitutional content-based speech 

prohibition, and the District Court erred in ruling that the PAC Naming Prohibition 

does not irreparably harm PAG. As both the Supreme Court and this Court have 

recognized that “[t]he loss of First Amendment freedoms, for even minimal 

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

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427 U.S. 347, 373 (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.’”). 

Further, “[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). This Court 

should therefore enjoin the FEC from applying its PAC Naming Prohibition to 

PAG’s speech.

IV. The FEC’s Application of the PAC Naming Prohibition in Advisory 

Opinion 2015-04 Is Invalid Under the Administrative Procedure Act.

A court “shall ... hold unlawful and set aside agency action, findings, and 

conclusions found to be -- (A) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; (B) contrary to constitutional right, power, 

privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right.” 5 U.S.C. § 706. While “substantial 

deference” is afforded “to an agency interpretation’s of its own regulations,” courts 

“must defer to the [agency’s] interpretation unless an ‘alternative reading is

compelled by the regulation's plain language or by other indications of the

[agency’s] intent at the time of the regulation’s promulgation.’” Thomas Jefferson 

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Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citing Gardebring v. Jenkins, 485 U.S.

415, 430 (1988)). 

The FEC issued an administrative final order prohibiting—for the first time 

and without rulemaking notice and comment—the use of a candidate’s name in a 

website URL address, Facebook page heading, and Twitter handles. The FEC 

impermissibly interpreted and applied the PAC Naming Prohibition to Collective 

Action PAC’s Internet assets in Advisory Opinion 2015-04 in a manner that goes 

far beyond the FEC’s asserted justification and intent expressed in two

rulemakings. The FEC’s application of the PAC Naming Prohibition to a context 

where there is no potential for fundraising fraud, abuse or confusion, is arbitrary, 

capricious, an abuse of discretion, and contrary to law. The FEC previously 

evidenced no intent to apply the PAC Naming Prohibition to modern social media 

platforms, and subsequently expressed an intent not to regulate such Internet 

communications. 

In addition, if the PAC Naming Prohibition is a “disclosure” provision, as 

the FEC contends and the District Court concluded, then it cannot be applied to 

PAG’s Facebook or Twitter communications. Disclaimers are required only on 

“public communications,” and internet communications on Facebook and Twitter 

that do not involve paid third party advertising (such as Appellant’s) are not 

“public communications.” See 11 C.F.R. § 110.11(a); 11 C.F.R. § 100.26; Final 

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Rule on Internet Communications, 71 Fed. Reg. 18,589 (April 12, 2006). 

Advisory Opinion 2015-04 is contrary to law. 

CONCLUSION

The FEC’s prohibition of PAG’s use of Mike Huckabee’s name in PAG’s 

website addresses, Facebook page, and Twitter handle(s) is an unconstitutional

prohibition on speech based solely on the content of that speech. This is an 

anathema to the First Amendment. Just as this Court would not permit 

governmental censorship in the contexts of books or movies, it should not allow 

the FEC to declare that certain speakers may not use certain words in their web 

addresses, Facebook page headings, and Twitter handles. This Court should enjoin 

the FEC from enforcing the PAC Naming Prohibition against PAG’s speech.

Respectfully submitted December 16, 2015:

/s/ Jason Torchinsky

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

jtorchinsky@hvjt.law

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

jmbayes@hvjt.law

Shawn Toomey Sheehy

ssheehy@hvjt.law

Steven P. Saxe

spsaxe@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

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57

CERTIFICATE OF COMPLIANCE

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

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

App. P. 32(a)(7)(b)(i) because it contains 13,460 words, excluding the parts of the 

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

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

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

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

Times New Roman 14-point font.

/s/ Jason Torchinsky

Jason Torchinsky

USCA Case #15-5264 Document #1589061 Filed: 12/16/2015 Page 71 of 84
58

CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2015, I electronically filed the 

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

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

thereby serving all persons required to be served.

Dated: December 16, 2015

 Respectfully submitted,

/s/ Jason Torchinsky

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

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

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1

ADDENDUM

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TABLE OF CONTENTS

Page

Federal Statutes

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

• 52 U.S.C. § 30108(c) ............................................................... 3

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

• 52 U.S.C. § 30109(d) ............................................................... 9

Federal Regulations

• 11 C.F.R. § 102.14 ................................................................. 11

• 11 C.F.R. § 100.26 ................................................................. 12

• 11 C.F.R. § 110.11 ................................................................. 12

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FEDERAL STATUTES

52 U.S.C. § 30102(e)(4)

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

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

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

not include the name of any candidate in its name. 

52 U.S.C. § 30108(c)

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

reliance.

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

be relied upon by--

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

which such advisory opinion is rendered; and

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

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

respect to which such advisory opinion is rendered.

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

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

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

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

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

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

52 U.S.C. § 30109(a) and (d)

(a) Administrative and judicial practice and procedure.

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

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

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

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

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

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

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

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

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

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

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

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

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

person whose identity is not disclosed to the Commission.

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

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

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

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

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

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

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

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

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

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

of this section.

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

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

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

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

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

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

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

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

Commission before proceeding under paragraph (4).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by the methods specified in clause (i).

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

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

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

consent of the respondent and the Commission.

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

respondent, the Commission shall make public any conciliation agreement signed 

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

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

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

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

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

qualified disclosure requirement, the Commission may--

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

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

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

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

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

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

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

Commission considers appropriate.

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

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

to be heard before the Commission.

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

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

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

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

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

requesting that the determination be modified or set aside.

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

any requirement of--

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

30104]; or

 (II) section 305 [52 USCS § 30105].

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

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

December 31, 2018.

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

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

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

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

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

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

expenditure involved in such violation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resides, or transacts business.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

for the District of Columbia.

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

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

dismissal.

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

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

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

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

the violation involved in the original complaint.

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

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

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

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

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

 (10) [Repealed]

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

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

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

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

order to hold such person in criminal contempt.

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

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

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

investigation is made.

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

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

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

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

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Subsection (d)

(d) Penalties; defenses; mitigation of offenses.

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

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

contribution, donation, or expenditure--

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

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

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

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

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

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

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

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

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

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

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

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

1,000 or more is involved.

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

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

during a calendar year shall be--

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

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

more);

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

and not more than the greater of--

 (I) $ 50,000; or

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

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

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

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

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

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

conciliation agreement entered into between the defendant and the Commission 

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

constituting such violation and which is still in effect.

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

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

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

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

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

whether--

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

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

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

 (B) the conciliation agreement is in effect; and

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

the conciliation agreement.

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FEDERAL REGULATIONS

11 C.F.R. § 102.14

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

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

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

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

committee conducts activities, such as solicitations or other communications, 

including a special project name or other designation.

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

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

presidential candidate which the delegate committee supports.

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

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

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

draft committee.

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

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

unambiguously shows opposition to the named candidate.

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

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

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

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

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

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

fund may make contributions using its acronym or abbreviated name. A fund 

established by a corporation which has a number of subsidiaries need not include 

the name of each subsidiary in its name. Similarly, a separate segregated fund 

established by a subsidiary need not include in its name the name of its parent or 

another subsidiary of its parent.

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11 C.F.R. § 100.26

 Public communication means a communication by means of any broadcast, 

cable, or satellite communication, newspaper, magazine, outdoor advertising 

facility, mass mailing, or telephone bank to the general public, or any other form of 

general public political advertising. The term general public political advertising 

shall not include communications over the Internet, except for communications 

placed for a fee on another person's Web site.

11 C.F.R. § 110.11

		 (a) Scope. The following communications must include disclaimers, as specified 

in this section:

(1) All public communications, as defined in 11 CFR 100.26, made by a political 

committee; electronic mail of more than 500 substantially similar communications 

when sent by a political committee; and all Internet websites of political 

committees available to the general public.

(2) All public communications, as defined in 11 CFR 100.26, by any person that 

expressly advocate the election or defeat of a clearly identified candidate.

(3) All public communications, as defined in 11 CFR 100.26, by any person that 

solicit any contribution.

(4) All electioneering communications by any person.

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