Pursuing America's Greatness v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
PURSUING AMERICA’S GREATNESS, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-cv-1217 (TSC)
)
FEDERAL ELECTION COMMISSION, )
)
Defendant. )
)

MEMORANDUM OPINION

On October 12, 2016, this court issued a preliminary injunction enjoining Defendant

Federal Election Commission (“FEC”) from enforcing 11 C.F.R. § 102.14(a) against Plaintiff

Pursuing America’s Greatness (“PAG”) “in connection with its ownership and operation of

certain websites, none of which will solicit contributions or otherwise conduct fundraising

activities.” ECF No. 31. Section 102.14(a) prohibits unauthorized political committees from

using the names of federal candidates in any name under which the political committee conducts

activities, including the titles of websites and social media pages. PAG now requests that this

court hold that section 102.14(a) violates the First Amendment of the U.S. Constitution because

the regulation is not narrowly tailored to promote a compelling governmental interest. The FEC

seeks a finding that the regulation is lawful and a dissolution of the preliminary injunction

currently in place.

The court has considered the parties’ pleadings, including PAG’s Motion for Summary

Judgment, ECF No. 38 (“Pl. Mot.”); FEC’s Cross-Motion for Summary Judgment and

Opposition to PAG’s Motion for Summary Judgment, ECF Nos. 40 & 41 (“Def. Mot.”); PAG’s

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Opposition to FEC’s Motion for Summary Judgment and Reply in Support of its Motion for

Summary Judgment, ECF Nos. 42 & 43 (“Pl. Rep.”); and FEC’s Reply in Support of its Motion

for Summary Judgment, ECF No. 45 (“Def. Rep.”). Because the court finds that the FEC’s

regulation is not narrowly tailored to promote a compelling governmental interest, and that 11

C.F.R. § 102.14(b)(3) is not severable from the remainder of the regulation, the court hereby

GRANTS PAG’s motion for summary judgment and DENIES FEC’s cross-motion for summary

judgment.

I. LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by[] citing to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the

outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’

do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895 (quoting Liberty

Lobby, 477 U.S. at 248). “An issue is genuine if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. (quotation marks and citation omitted); see

also Scott v. Harris, 550 U.S. 372, 380 (2007) (“[W]hen the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that there is some metaphysical

doubt as to the materials facts . . . . Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial.”) (quotation

marks and citation omitted).

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 II. REGULATORY AND PROCEDURAL BACKGROUND 1

A. Regulatory Background

The Federal Election Campaign Act (“FECA”) requires that an authorized political

committee use the candidate’s name in its registered name but forbids an unauthorized

committee from using the candidate’s name in its registered name. Specifically, 52 U.S.C.

§ 30102(e)(4) provides: “The name of each authorized committee shall include the name of the

candidate who authorized such committee . . . . 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.” In enacting this provision, Congress intended that “the average

contributor or voter be able to determine, by reading the committee’s name, on whose behalf the

committee is operating.” H.R. Rep. No. 95-982, at 11–12, 46 (1978).

In its implementing regulations, the FEC originally interpreted the statutory provision as

limiting the use of a candidate’s name only in the formal name under which the Political Action

Committee (“PAC”) registers with the FEC, and not the names of its fundraising projects.

Pursuing America’s Greatness v. FEC, 132 F. Supp. 3d 23, 27 (D.D.C. 2016) (“PAG I”). The

D.C. Circuit upheld that construction as a reasonable interpretation of the statute in Common

Cause v. FEC, 842 F.2d 436, 440–41 (D.C. Cir. 1988). 2

1
Most of the relevant background is contained in Pursuing America’s Greatness v. FEC, 132 F.
Supp. 3d 23, 26–31 (D.D.C. 2015) (“PAG I”) and Pursuing America’s Greatness v. FEC, 831
F.3d 500, 503–04 (D.C. Cir. 2016) (“PAG II”) and will not be repeated here.
2
The Court of Appeals in Common Cause found that “‘[t]he bare text’ of § 30102(e)(4) ‘could
conceivably accommodate either the construction adopted by the FEC’—i.e., that the statute
applied ‘only to the official or formal name under which a political committee must register’—
‘or that proposed by Common Cause’—i.e., that the statute did not refer only to ‘the officially
registered “name” of a political committee but rather any title under which such a committee
holds itself out to the public for solicitation or propagandizing purposes.’” PAG I, 132 F. Supp.
3d at 27–28 (quoting Common Cause, 842 F.2d at 440–41).
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 Subsequently, in 1992, based on concerns about “the potential for confusion or abuse in

. . . situation[s] where an unauthorized committee uses a candidate’s name in the title of a special

fundraising project,” the FEC promulgated a Notice of Proposed Rulemaking (“NPRM”)

regarding amendments to § 102.14. Special Fundraising Projects by Political Committees, 57

Fed. Reg. 13,056, 13,057 (proposed Apr. 15, 1992). After it considered the comments submitted

in response to the NPRM, the FEC decided “to adopt in its final rule a ban on the use of

candidate names in the titles of all communications by unauthorized committees.” Special

Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 57 Fed.

Reg. 31,424, 31,425 (July 15, 1992) (“1992 Explanation & Justification”). As revised, 11 C.F.R.

§ 102.14(a), known as the PAC Name Prohibition, prohibits unauthorized political committees,

like PAG, from using: “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.”

Two years later, the FEC promulgated an exception to the PAC Name Prohibition. See

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

59 Fed. Reg. 17,267 (April 12, 1994) (“1994 Explanation & Justification”). The exception,

§ 102.14(b)(3), allows an unauthorized committee to use a candidate’s name in its special project

name if “the title clearly and unambiguously shows opposition to the named candidate.” In

enacting this exception, the FEC explained “that the potential for fraud and abuse is significantly

reduced in the case of such titles [that clearly indicate opposition].” Id. at 17,269.

B. Procedural Background

This court initially denied PAG’s request for a preliminary injunction, concluding that

§ 102.14(a) was neither a prior restraint on speech nor a content-based speech regulation, but

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instead was a permissible component of “FECA’s disclosure regime,” imposing a limited burden

on speech. PAG I, 132 F. Supp. 3d at 37–39. This court also rejected PAG’s argument that the

regulation violated the Administrative Procedure Act (“APA”). Id. at 36.

The D.C. Circuit reversed and remanded, finding that the regulation was a content-based

speech ban. PAG II, 831 F.3d at 512. It explained:

On its face, section 102.14 draws distinctions based solely on what PAG says. As
an unauthorized committee, PAG can use a candidate’s name in a title of a
communication only if the title demonstrates opposition to the candidate. In other
words, to know whether to apply section 102.14, the FEC must examine the content
of the title of PAG’s website or Facebook page and ask whether the title supports
or opposes the candidate. That is content-based discrimination pure and simple.

Id. at 509. (quotation marks and citations omitted). The Court further found that “[b]ecause

section 102.14(a) restricts political speech based on its content, the FEC may enforce the

regulation only if it passes strict scrutiny.” Id. at 510.

In analyzing the first strict scrutiny requirement—that the law advances a compelling

governmental interest—the Court of Appeals stated:

We assume that the government has a compelling interest in avoiding the type of voter
confusion identified by the FEC. Here, the FEC reasonably fears that voters might
mistakenly believe an unauthorized committee’s activities are actually approved by a
candidate if the committee uses the candidate’s name in its title.

Id. (citation omitted). However, the Court found that the regulation likely failed the second strict

scrutiny requirement—that the law is narrowly tailored—because there was “a substantial

likelihood that section 102.14 [was] not the least restrictive means to achieve the government’s

interest.” Id. Narrow tailoring requires that “[i]f a less restrictive alternative for achieving that

interest exists, the government must use that alternative.” Id. (quotation marks and citation

omitted). As the Court of Appeals noted, “the FEC could require a large disclaimer at the top of

the websites and social media pages of unauthorized committees that declares, ‘This Website Is

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Not Candidate Doe’s Official Website.’ The Supreme Court regularly views such disclosure

requirements as less restrictive alternatives to ‘flat bans’ on speech.” Id. (citations omitted). The

Court of Appeals found “no evidence that larger or differently worded disclosures would be less

effective at curing fraud or abuse than a ban on speech” and that “the FEC [did not] make an

effort to explain why such disclosures would be more burdensome.” Id. at 511. Explaining that

“[w]here the ‘record is silent as to the comparative effectiveness of . . . two alternatives’—one of

which burdens more speech than the other—the more burdensome restriction cannot survive

strict scrutiny,” id. (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803, 826 (2000)), the

Court of Appeals concluded that “there is a substantial likelihood that section 102.14 fails strict

scrutiny and violates the First Amendment as applied to PAG.” Id.

The Court of Appeals also found that because “the FEC reasonably applied the naming

requirements of section 102.14 to an unauthorized committee’s websites and social media

pages,” PAG was “unlikely to succeed on its APA challenge.” Id. at 506.

Accordingly, the Court of Appeals reversed this court’s denial of the motion for a

preliminary injunction and remanded “for the district court to enter a preliminary injunction

enjoining the application of 11 C.F.R. § 102.14(a) against PAG’s websites and social media

pages.” Id. at 512.

In its motion for summary judgment, PAG has not pursued either its prior restraint or

APA claims. PAG’s motion for summary judgment argues only that section 102.14 is an

unconstitutional content-based speech ban. Accordingly, PAG’s APA and prior restraint claims

are waived. See Evans v. Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013). Therefore, the sole

question before the court on summary judgment is whether the FEC has carried its burden of

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proving that section 102.14(a) is narrowly tailored to promote a compelling governmental

interest. 3

III. ANALYSIS

A. Strict Scrutiny

A content-based law is constitutional only if it survives strict scrutiny. Reed v. Town of

Gilbert, 135 S. Ct. 2218, 2231 (2015). Strict scrutiny requires that the law “furthers a

compelling interest and is narrowly tailored to achieve that interest.” Id. (quotation marks and

citations omitted). “A statute is narrowly tailored if it targets and eliminates no more than the

exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988)

(citation omitted). “[I]t is the rare case in which a State demonstrates that a speech restriction is

narrowly tailored to serve a compelling interest.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,

1665–66 (2015) (quotation marks and citations omitted). “If a less restrictive alternative would

serve the [g]overnment’s purpose, the legislature must use that alternative.” Playboy Entm’t

Grp., Inc., 529 U.S. at 813. “When the government restricts speech, the government bears the

burden of proving the constitutionality of its actions,” id. at 816, by showing both that the law

furthers a compelling governmental interest and that the law is narrowly tailored. “When a

plausible, less restrictive alternative is offered to a content-based speech restriction, it is the

[g]overnment's obligation to prove that the alternative will be ineffective to achieve its goals.”

Id. The government “‘must present more than anecdote and supposition’ to support [its]

3
The FEC has preserved “its argument that the regulation is a disclosure provision that is
reviewed for exacting scrutiny, which requires a substantial relation between the disclosure
requirement and a sufficiently important governmental interest until such time as the Court of
Appeals has an opportunity to consider the question on full merits review.” Def. Mot. at 15–16
(internal quotation marks and citations omitted).
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regulation subject to strict scrutiny.” PAG II, 831 F.3d at 511 (quoting Playboy Entm’t Grp.,

Inc., 529 U.S. at 822).

B. The FEC Has Demonstrated A Compelling Interest

In promulgating section 102.14, the FEC determined that it had “substantial evidence”

that the use of a candidate’s name in the fundraising project of an unauthorized committee often

leads potential contributors to “wrongly believe that their contribution will be used in support of

the candidate(s) named in the project titles.” 1994 Explanation & Justification, 59 Fed. Reg. at

17,268. The rulemaking record amply supports this conclusion, and the case law warrants a

finding that avoiding this potential for voter confusion is a compelling governmental interest.

Numerous examples in the record support the FEC’s decision to revise § 102.14, after

Common Cause, in response to its “increasing[] concern[s] over the possibility for confusion or

abuse.” Id. For example, the title “American’s [sic] for Reagan” misled a United States Senator

into believing that the group was associated with Ronald Reagan’s presidential campaign, even

though the unauthorized committee “Americans for Change” was unaffiliated with the campaign.

ECF No. 40, Defendant’s Statement of Material Facts (“Def. SMF”) ¶¶ 43–44. In another

example, in 1988 President George H.W. Bush’s campaign committee reported that an

unauthorized committee had created a program named “Americans for Bush” which raised over

$10 million, despite the efforts of the candidate’s authorized committee to prevent the

unauthorized committee from using the name “Americans for Bush.” The authorized committee

expressed its “concern [] that these projects have the potential to mislead contributors into

believing that the money raised will go directly to the candidate for whom they are named.” Id.

¶ 47. Similarly, President Bush’s authorized committee demanded that another unauthorized

group, Presidential Victory Committee, which was operating a project called “Citizens for Bush”

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and had raised over a quarter million dollars using that name, cease all activities under that name

or any other name that would confuse people into believing that its activities were associated

with the official campaign. Id. ¶ 48. A similar tactic was used in 1988 when Representative

Jack P. Kemp was a presidential candidate. Id. ¶ 45. An unauthorized committee, the

Conservative Victory Committee, raised hundreds of thousands of dollars through a project

called “Americans for Kemp.” Id. None of the money raised actually supported Mr. Kemp’s

candidacy. Id.

The rulemaking record also included a 1992 NBC Dateline report, which stated “that

thousands of Americans, most of them elderly, ha[d] been fooled” by a man who raised more

than $9 million through committees using candidates’ names. Id. ¶ 49. For instance, Dateline

investigators found that an elderly woman “sent the Reagan Political Victory Fund almost

$25,000 after receiving [a]ppeals for money to help keep the legacy of Ronald Reagan alive

. . . .” Id. (internal quotation marks omitted) (alteration in original). The Reagan Political

Victory Fund was not authorized to use Reagan’s name. Id. Similarly, “95-year-old Dana

Chatlin of Iowa . . . reportedly sent the Reagan Political Victory Fund all the money she had put

aside for a nursing home,” id. ¶ 125 (internal quotation marks omitted), and Dagmar Cantola sent

the Reagan Political Victory Fund more than $3,000 after receiving letters from the person who

ran the fund stating that he would be forced to resign unless he got more money, id. ¶ 126. The

Dateline report “found that only about one percent of the $9 million dollars that the committees

raised went directly to any candidate.” Id. ¶ 127.

Therefore, the FEC justifiably believed that the evidence showed “the potential for

confusion or abuse when an unauthorized committee uses a candidate’s name in the title of a

special fundraising project, or other designation under which the committee operates.” 1994

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Explanation & Justification, 59 Fed. Reg. at 17,268 (discussing these examples). See also PAG

II, 831 F.3d at 510 (“Here, the FEC reasonably fears that voters might mistakenly believe an

unauthorized committee’s activities are actually approved by a candidate if the committee uses

the candidate’s name in its title.”).

PAG essentially concedes that the record demonstrates that people are confused when

unauthorized committees use candidates’ names in special projects. It mainly argues that the

justification for the PAC Name Prohibition does not extend “beyond the fundraising context.”

Pl. Mot at 26. See also Pl. Rep. at 6–7 (asserting that “the FEC has not proven the existence of a

problem in need of a content-based speech ban, namely, confusion among the electorate related

to the use of candidate names in ‘special projects’ that do not fundraise or solicit contributions”).

This argument has two weaknesses. First, PAG never explains, as a logical matter, why

an unauthorized committee’s ultimate goal—whether to solicit funds or to prime people to

support a candidate—affects the likelihood that a reader will be confused. If someone is misled

by a project’s name because it includes the candidate’s name, confusion will result whether or

not funds are being solicited. Thus, PAG identifies a distinction between fundraising and non-

fundraising projects without demonstrating a functional difference between the two categories.

Second, the evidence shows that the type of confusion that could occur in the fundraising

context from the use of a candidate’s name also arises in the purely informational context. As

noted previously, the record is replete with numerous comments on the “I like Mike Huckabee”

Facebook page directed towards Governor Huckabee. PAG I, 132 F. Supp. 3d at 35. 4 Examples

of the posts include: “Amen! You would really change some things, in Washington. God bless

4
While many of these comments were posted before PAG took over the Facebook page, a
significant number were posted after PAG took control. PAG I, 132 F. Supp. 3d at 35.
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you.”; “We just need a leader and you are the leader we need!!!!”; “You have my vote for

President”; “You are a good man Mike, you have my vote!!!!!”; “Mike we would have been

better off years ago with you in the White House.” Def. SMF ¶ 95. These examples demonstrate

that viewers of the “I like Mike Huckabee” Facebook page confused it with an authorized

Huckabee committee on a purely informational basis. Although PAG argues it is unclear

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

page,” Pls. Mot. at 28, the comments themselves show an attempt to communicate with Mr.

Huckabee.

Section 102.14 reflects the FEC’s well-grounded concern that people will be misled by

unauthorized committees using a candidate’s name, and advances the government’s “compelling

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

191, 199 (1992) (plurality opinion). In Burson, the Supreme Court, applying strict scrutiny,

upheld a Tennessee statute prohibiting solicitation of votes and the display or distribution of

campaign materials within 100 feet of the entrance to a polling place. The Court explained:

Tennessee argues that its restriction protects the right to vote in an election conduced
with integrity and reliability. The interests advanced by Tennessee obviously are
compelling ones. This Court has recognized that the right to vote freely for the candidate
of one's choice is of the essence of a democratic society. Indeed, no right is more
precious in a free country than that of having a voice in the election of those who make
the laws under which, as good citizens, we must live. Other rights, even the most basic,
are illusory if the right to vote is undermined. Accordingly, this Court has concluded that
a State has a compelling interest in protecting voters from confusion and undue influence.
See Eu [v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 228–229
(1989)]. The Court also has recognized that a State ‘indisputably has a compelling
interest in preserving the integrity of its election process.’ Id., at 231. The Court thus has
‘upheld generally applicable and evenhanded restrictions that protect the integrity and
reliability of the electoral process itself.’” Anderson v. Celebrezze, 460 U.S. 780, 788,
n.9 (1983) (collecting cases).

Id. (plurality opinion) (various internal quotations, citations and brackets omitted) (footnotes

omitted). The Court noted that the government has an “important and legitimate interest in voter

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education.” Anderson, 460 U.S. at 796 (1983). In furtherance of these goals, the Supreme Court

has emphasized that the government also has an interest in “provid[ing] the electorate with

information about the sources of election-related spending.” McCutcheon v. FEC, 572 U.S. 185,

223 (2014) (internal quotation marks omitted) (alteration in original). Therefore,

“[i]dentification of the source of advertising may be required as a means of disclosure, so that the

people will be able to evaluate the arguments to which they are being subjected.” First Nat’l

Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978).

Section 102.14(a) advances the goal of preventing confusion about whether a candidate

supports a message communicated by an unauthorized committee and whether a monetary

contribution in response to an appeal by an unauthorized committee will be directed to the

candidate’s official campaign. These interests fit squarely within the Supreme Court’s firmly

established tradition of finding a compelling governmental interest in protecting the “integrity

and reliability of the electoral process” by eliminating voter confusion, including through a

requirement that the electorate be informed accurately about the source of a political message.

Although PAG argues that Burson’s concern with avoiding voter confusion is limited to

the polling place, see Pl. Rep. at 7–8, the interests identified by the Supreme Court indicate a

broader appreciation of the compelling interest in protecting the electorate from confusion. See,

e.g., Eu, 489 U.S. at 228 (noting that “the State has a legitimate interest in fostering an informed

electorate” by protecting “voters from confusion and undue influence”); Anderson, 460 U.S. at

796 (“There can be no question about the legitimacy of the State’s interest in fostering informed

and educated expressions of the popular will in a general election.”). The government’s interest

in preventing confusion in the voting process surely extends to combating subtle yet effective

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forms of confusion about a candidate’s position and who will benefit from a monetary

contribution.

In arguing that § 102.14(a) does not advance a compelling interest, PAG misreads United

States v. Alvarez, 567 U.S. 709 (2012). See Pl. Rep. at 8. The Supreme Court in Alvarez held

that the speech restrictions imposed by the Stolen Valor Act (which made it a crime to

fraudulently claim to be a recipient of certain military decorations or awards) were not actually

necessary to achieve the government’s interest in promoting respect and gratitude for military

service. Alvarez, 567 U.S. at 725 (“The link between the Government's interest in protecting the

integrity of the military honors system and the Act's restriction on the false claims of liars like

respondent has not been shown.”) (plurality opinion); id. at 739 (“The Government has provided

no convincing explanation as to why a more finely tailored statute would not work.”) (Breyer, J.,

concurring in judgment). This holding does not call into question the Supreme Court’s repeated

acknowledgement that preventing electorate confusion is a compelling governmental interest.

Similarly, PAG’s reliance on McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), is

unavailing. In McIntyre the Supreme Court struck down a state disclosure statute because of its

“extremely broad prohibition.” Id. at 351. The almost limitless statute in McIntyre is not

comparable to a regulation designed to prevent a demonstrated type of voter confusion.

C. The Regulation Is Not Narrowly Tailored

In PAG II the D.C. Circuit held that because the FEC had “not shown that its speech ban

is the least restrictive means of achieving the government’s interest, there is a substantial

likelihood that section 102.14 fails strict scrutiny and violates the First Amendment as applied to

PAG.” PAG II, 831 F.3d at 511. The Circuit found that “[t]he FEC offered no evidence that

larger or differently worded disclosures would be less effective at curing fraud or abuse than a

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ban on speech.” Id. at 510–11. Therefore, the decisive question is whether the FEC has

sufficiently expanded the record, beyond what it presented to the Court of Appeals, with

evidence demonstrating that such disclosures would be a less effective or more burdensome

alternative to § 102.14.

PAG has proposed two examples of additional or different disclosure requirements. First,

PAG suggests “an additional disclaimer at the top of a website (in addition to the ‘paid for by’

and ‘not authorized by any candidate or candidate’s committee’ disclaimers required at the

bottom of the website) declaring: ‘This Website Is Not Candidate Doe’s Official Website.’” Pl.

Mot. at 31 (citations omitted). Alternatively, PAG points to amici’s proposal during litigation

before the Court of Appeals that “the FEC could require that an unauthorized committee’s use of

a candidate’s name must clearly indicate it is a third party.” Id. (citations omitted).

In claiming that it has successfully expanded the record, the FEC points out that during

the rulemaking: 1) a national committee observed that a disclaimer would have to be large to be

effective; 2) one Commissioner expressed concern that some disclaimers could be effectively

buried; and 3) Commission staff warned that requiring a larger disclosure might upset the

regulated community by telling them “how to draft [their] letters.” Def. Mot. at 32. These

observations are anecdotal, not based on empirical evidence, and simply speculate about

potential problems rather than analyze whether the proposed procedures would be feasible and/or

effective. Moreover, a concern that some political parties or candidates might object to

disclosures does not constitute evidence that those disclosures would be ineffective.

The FEC also notes that the Commission agreed with its staff that larger disclaimers

“‘could be more burdensome . . . while still not solving the potential for fraud and abuse in this

area.’” Id. (quoting 1994 Explanation & Justification, 59 Fed. Reg. at 17,268). However, the

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FEC has not shown that these conclusions were based on any actual evidence or study of larger

and different disclosures. In addition to the rulemaking evidence, the FEC identifies several

instances in which some disclaimers failed to prevent viewer confusion. See id. at 34. But even

if true, such isolated, anecdotal evidence is insufficient for the FEC to carry its burden. “[T]he

FEC must present more than anecdote and supposition to support a regulation subject to strict

scrutiny.” PAG II, 831 F.3d at 511 (quotation marks and citations omitted).

The FEC cannot offset its failure to present evidence that its regulation is the least

restrictive means of achieving the government’s interest by relying on “common sense” to

demonstrate that different or additional disclosures would not effectively prevent confusion. See

Def. Mot. at 30 (arguing that “the Commission may rely on ‘common sense’ and need not

‘empirically’ prove that the regulation advances its compelling interest”). The role of common

sense in this context is more limited than the FEC supposes. As the D.C. Circuit has explained,

common sense is useful in showing the validity of “unprovable assumptions”:

Furthermore, while [i]t is true that in some First Amendment cases the Supreme Court
has demanded an evidentiary showing in support of a state's law, [i]t is also true that in
other First Amendment cases the Supreme Court has found various unprovable
assumptions sufficient to support the constitutionality of state and federal laws.

Nat'l Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 15–16 (D.C. Cir. 2009) (quotation marks omitted)

(citations omitted) (alterations in original). For instance, in Burson, on which the FEC relies, the

Supreme Court used “simple common sense” to find that “some restricted zone around polling

places is necessary to protect” ballot secrecy. Burson, 504 U.S. at 211 (plurality opinion). See

id. at 208 (holding “that some restricted zone around the voting area is necessary to secure the

State’s compelling interest”) (plurality opinion) (emphasis in original). Unlike in Burson—

where the need for some restricted zone around the ballot box is obvious—the crucial

determination in this case—whether different disclosures would eliminate confusion as

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effectively as the name prohibition—is not “unprovable,” but susceptible to empirical analysis.

Accordingly, the FEC has failed to carry its burden to demonstrate that the regulation is narrowly

tailored.

D. 11 C.F.R. § 102.14(b)(3) Is Not Severable

The FEC argues that even if this court finds § 102.14 constitutionally infirm, the

appropriate remedy would be to strike § 102.14(b)(3) and uphold the remainder of the regulation

because without subsection (b)(3) the regulation is no longer a content-based restriction on

speech. “Whether the offending portion of a regulation is severable depends upon the intent of

the agency and upon whether the remainder of the regulation could function sensibly without the

stricken provision.” MD/DC/DE Broadcasters Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001)

(citation omitted) (emphasis in original). When evaluating the intent of the agency, the court

must be able to find “without any substantial doubt that the agency would have adopted the

severed portion on its own.” ACA Int'l v. FCC, 885 F.3d 687, 708 (D.C. Cir. 2018) (quotation

marks and citation omitted) (emphasis added).

Although the FEC originally promulgated the regulation without the exception to the

general name prohibition, it subsequently concluded that its regulation, without the exception,

reached too far, and revised the regulation to add subsection (b)(3) after finding that “[t]here is

no danger of confusion or abuse inherent in the use of a candidate’s name by a committee or

project which opposes the candidate.” 59 Fed. Reg. at 17,269 (quotation marks omitted).

Accordingly, the court cannot find “without any substantial doubt,” ACA Int’l, 885 F.3d at 708,

that the FEC would have adopted the remaining portion of the regulation on its own.

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 IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is hereby

GRANTED and Defendant’s Motion for Summary Judgment is hereby DENIED. The court

hereby declares that 11 C.F.R. § 102.14(a) violates the First Amendment of the U.S.

Constitution. The court further permanently enjoins the FEC from enforcing 11 C.F.R. §

102.14(a).

A corresponding order will issue separately.

Date: March 21, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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