Pursuing America's Greatness v. Federal Election Commission
831 F.3d 500
D.C. Cir.2016Background
- Pursuing America’s Greatness (PAG) is an unauthorized political committee that created websites/Facebook pages titled like "I Like Mike Huckabee" to support candidates.
- FECA and FEC regulation 11 C.F.R. § 102.14(a) prohibit unauthorized committees from using a candidate’s name in committee or project titles; an exception allows clearly oppositional titles.
- FEC interpreted §102.14(a) (via Advisory Opinion 2015-04) to extend the naming restriction to websites and social media pages whether or not they solicit funds.
- PAG sought a preliminary injunction preventing the FEC from applying §102.14(a) to its online titles; the district court denied the motion.
- The D.C. Circuit held PAG has standing and a live controversy and reversed, finding the rule likely violates the First Amendment as applied to PAG.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PAG has standing and the case is live | PAG will continue using candidate names for other sites; injury not moot | Huckabee’s suspension moots PAG’s Huckabee claim | PAG has standing and controversy is live because PAG intends similar future uses |
| Whether FEC’s advisory extending §102.14 to non-fundraising websites violates the APA | FEC exceeded the regulation’s purpose by applying it beyond fundraising | FEC reasonably read §102.14(a)’s "communications" language to include websites/social media | APA claim fails; FEC’s interpretation is reasonable under Auer/Thomas Jefferson deference |
| Whether §102.14(a) is a disclosure requirement or a content-based speech ban | PAG: rule is a ban on speech (prevents use of candidate names), not a disclosure | FEC: rule implements FECA disclosure regime to prevent confusion; should be reviewed less stringently | Court: §102.14(a) is a content-based restriction (not mere disclosure) because it forbids certain titles rather than requiring additional information |
| If content-based, whether §102.14(a) withstands strict scrutiny as applied to PAG | PAG: even assuming a compelling interest, the ban is not narrowly tailored; disclaimers and other less-restrictive measures available | FEC: compelling interest in avoiding voter confusion and fraud justifies the ban; alternative measures insufficient | Court: government interest plausible but FEC failed to show the ban is the least restrictive means; likely fails strict scrutiny, so preliminary relief warranted |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (political speech receives highest First Amendment protection)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (laws that draw distinctions based on message are content-based and trigger strict scrutiny)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (distinguishing disclosure requirements from bans on speech)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standards for granting preliminary injunctions)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements)
- United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) (strict scrutiny requires least restrictive means)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (content-based inquiry and assessment of alternative channels)
- Burson v. Freeman, 504 U.S. 191 (1992) (governmental interest in preventing voter confusion may be compelling)
- Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (burden of proof when strict scrutiny applies)
- McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (disclosure as less restrictive alternative to speech bans)