Aug. 2 — A federal appeals court has struck down long-standing Federal Election Commission rules restricting use of a candidate's name by a political action committee ( Pursuing America's Greatness v. FEC, D.C. Cir., No. 15-5264, 8/2/16 ).
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in a challenge to the FEC rules brought by a super PAC that supported the Republican presidential campaign of former Arkansas Gov. Mike Huckabee. Although Huckabee dropped out of the presidential race months ago, the pro-Huckabee super PAC, called Pursuing America's Greatness (PAG), said it would continue to operate and support Republican congressional candidates.
The court granted a preliminary injunction preventing the FEC from enforcing rules that would bar the super PAC from using a candidate's name in a website or social media platform, such as Facebook or Twitter. The D.C. Circuit panel reversed a lower court ruling and said the FEC restrictions on use of a candidate's name was a ban on speech that likely violates the First Amendment.
Lawyers for the pro-Huckabee super PAC argued in the case that the FEC's restrictions on the PAC's use of a candidate's names violates free speech rights.
The FEC countered that its rules are constitutional and needed to prevent fraud and tell voters who is sponsoring campaign messages.
The appellate panel rejected FEC arguments that its rules should be upheld as a disclosure requirement, rather than a restriction on speech.
“By prohibiting the use of a candidate’s name in the titles of PAG’s websites and social media pages, the FEC banned more speech than that covered by [Federal Election Campaign Act’s] provisions requiring disclosure,” said the panel's 18-page opinion written by U.S. Circuit Judge Thomas Griffith and joined by Judges Brett Kavanaugh and Raymond Randolph.
The panel remanded the case to federal district court to enjoin enforcement against Pursuing America's Greatness of the FEC's PAC-naming regulation—11 C.F.R. Section 102.14(a)—“against PAG’s websites and social media pages.”
The panel's opinion came more than five months after the case was argued before the appellate judges in February (See previous story, 02/24/16).
During the argument of the case, the appellate panel indicated the FEC's strongest argument supporting restrictions on use of candidates' names is that it helps prevent confusion and fraud in fundraising.
A lawyer for the super PAC, Jason Torchinsky of the firm Holtzman Vogel Josefiak, responded that the PAC did not plan to conduct fundraising on the proposed websites and played down concerns about voter confusion or fraud. He said the FEC's “total ban” on using a candidate's name in a website address or social media platform was unconstitutional.
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