Pursuing America's Greatness v. Fed. Election Comm'n

• Decision Date: 02 August 2016
• Docket Number: No. 15-5264,15-5264
• Citation: 831 F.3d 500
• Parties: Pursuing America's Greatness, Appellant v. Federal Election Commission, Office of General Counsel, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

831 F.3d 500

Pursuing America's Greatness, Appellant
v.
Federal Election Commission, Office of General Counsel, Appellee

No. 15-5264

United States Court of Appeals, District of Columbia Circuit.

Argued February 23, 2016
Decided August 2, 2016

Jason Torchinsky, Warrenton, VA, argued the cause and filed the briefs for appellant.

Christina M. Martin was on the brief for amicus curiae Pacific Legal Foundation and James Madison Center for Free Speech in support of plaintiff-appellant.

Charles Kitcher, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Daniel A. Petalas, Acting General Counsel, Kevin Deeley, Acting Associate General Counsel, and Erin Chlopak, Acting Assistant General Counsel.

Before: Griffith and Kavanaugh, Circuit Judges, and Randolph, Senior Circuit Judge.

Griffith, Circuit Judge:

The Federal Election Commission prohibits unauthorized political committees, like Pursuing America's Greatness, from using candidates' names in the titles of their websites and social media pages. Pursuing America's Greatness sought a preliminary injunction against this rule, which the district court denied. We reverse the district court because the restriction, as applied to Pursuing America's Greatness, is a content-based ban on speech that likely violates the First Amendment.

I

Pursuing America's Greatness (PAG) is a political committee that works for the election of federal officeholders. As a political committee, PAG must comply with the Federal Election Campaign Act (FECA), 52 U.S.C. §§ 30101 -26, 30141-46, and the FEC's implementing regulations. This case deals with one set of those rules: naming restrictions for political committees.

FECA creates two baskets of naming restrictions, one for committees that are “authorized” by a candidate to receive or spend money on his behalf, and another for committees that are not so authorized. Id. § 30101(6) (defining “authorized committee”). An authorized committee must use the candidate's name in its name. Id. § 30102(e)(4). Unauthorized committees may not. Id. PAG is an unauthorized committee and cannot include any candidate's

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name in its own name. To illustrate the difference, consider two committees that supported the presidential bid of former Governor Mike Huckabee this election cycle. Huckabee's authorized committee is called “Huckabee for President.” In contrast, Huckabee's name appears nowhere in PAG's name, even though PAG also supported the former Governor's bid.

Although FECA's naming rules reach only committee names, the FEC also restricts the names of committee projects. 11 C.F.R. § 102.14(a) (extending FECA's naming requirements to “any name under which a committee conducts activities, such as solicitations or other communications, including a special project name”). According to the FEC, a committee's projects include online projects, such as websites or social media pages. See FEC Advisory Op. 2015-04, 2015 WL 4480266, at *2 (July 16, 2015) ; FEC Advisory Op. 1995-09, 1995 WL 247474, at *5 (Apr. 21, 1995). The naming restrictions apply whether or not a committee's project involves fundraising, because the FEC sees the “potential for confusion” as “equally great in all types of committee communications.” FEC Advisory Op. 2015-04, 2015 WL 4480266, at *2 (quoting Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 57 Fed. Reg. 31,424, 31,425 (July 15, 1992) ).

But the FEC does not apply these rules to all committee projects. There is an exception that allows unauthorized committees to use candidate names in titles that “clearly and unambiguously” show opposition to the named candidate, 11 C.F.R. § 102.14(b)(3), because “the potential for fraud and abuse is significantly reduced.” Special Fundraising Projects and Other Use of Candidate Names by Unauthorized Committees, 59 Fed. Reg. 17,267, 17,269 (Apr. 12, 1994). For instance, the FEC gave the example of a project titled “Citizens Fed Up with Doe.” Id. There would be little risk that the public would think candidate Doe authorized the project's work.

Which brings us to the instant dispute. To support Governor Huckabee's most recent run for the White House, PAG used a website and a Facebook page named “I Like Mike Huckabee,” which PAG worried would run afoul of the FEC's naming rules. PAG sought a preliminary injunction to prevent the FEC from enforcing those rules, invoking the First Amendment and the Administrative Procedure Act. The district court denied PAG's motion. Pursuing America's Greatness v. FEC , 132 F.Supp.3d 23, 44 (D.D.C. 2015).

PAG timely appealed, and we have jurisdiction under 28 U.S.C. § 1292(a)(1). We reverse the district court, concluding that PAG is entitled to a preliminary injunction because there is a substantial likelihood that, as applied to PAG, the FEC's naming restrictions in section 102.14(a) violate the First Amendment.

II

At the outset, we must address two threshold issues. First, the FEC contends that PAG lacks a continuing interest in this case because Governor Huckabee has suspended his presidential campaign and PAG may now use his name in its online activities. Because our jurisdiction is limited to live cases or controversies, U.S. CONST . art. III, § 2, cl. 1, we cannot “retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; Calderon v. Moore , 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (“[A]n appeal should ... be dismissed as moot when, by virtue

831 F.3d 505

of an intervening event, a court of appeals cannot grant ‘any effectual relief whatever’ in favor of the appellant.” (citation omitted)).

We disagree with the FEC. Governor Huckabee is not the only candidate that PAG hopes to support this cycle. Rather, PAG intends to use the names of candidates still running for federal office in the titles of several other websites and Facebook pages. For example, PAG will use the title “I Like Kelly Ayotte” in its online support for Senator Kelly Ayotte and similar titles for Senator Richard Burr and Congressman David Young. Although the FEC argues that PAG has not financially supported Senator Ayotte, Senator Burr, or Congressman Young as it did Governor Huckabee, PAG's expenditures are irrelevant to PAG's interest in this case: its ability to operate websites and social media pages with titles forbidden by the FEC. PAG's intent to continue violating section 102.14(a) keeps this case alive. Cf. Unity08 v. FEC , 596 F.3d 861, 864 (D.C. Cir. 2010) (holding that controversy was not moot even though group stopped participating in 2008 election because group had a “clear and definite intent to resume its activities ... for the 2012 presidential election”).

We also conclude that PAG has standing to challenge section 102.14. To have standing, PAG must show, among other things, that its injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). PAG asks us to redress its injury by striking section 102.14's naming restrictions, which prevent PAG from using candidate names as it would like. The FEC recasts PAG's challenge, however, as contesting only a subset of section 102.14. The agency argues that enjoining the FEC from enforcing only that subset would not redress PAG's injury because the remaining portions of section 102.14 would still prevent PAG from using candidate names in its project titles. But the FEC is incorrect that PAG's challenge targets only a portion of section 102.14. Instead, PAG has clearly asked us to enjoin the FEC from enforcing the entirety of section 102.14 against it. Were we to grant PAG that relief, its injury would undoubtedly be redressed. As a result, PAG has standing.

III

To receive the “extraordinary remedy” of a preliminary injunction, PAG must make a “clear showing” that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). We review the district court's weighing of these factors for abuse of discretion, but its legal conclusions de novo. Davis , 571 F.3d at 1291.

A

PAG has shown a substantial likelihood of success on the merits of its First Amendment claim.¹

831 F.3d 506

i

Before we reach PAG's First Amendment arguments, we first consider whether PAG's alternative APA claim has merit. See Lyng v. Nw. Indian Cemetery Protective Ass'n , 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). It does not.

PAG argues that the FEC violated the APA in extending section 102.14(a)'s...