Super PAC Seeks Final Ruling on Using Candidate's Name(1)

Money & Politics Report provides comprehensive behind-the-scenes coverage of campaign finance, lobbying, and government ethics issues at the federal, state, and local levels.

By Kenneth P. Doyle

Oct. 13 — A super political action committee seeking to overturn Federal Election Commission restrictions on a super PAC's use of a candidate's name is urging a federal court to move quickly toward a final ruling on the issue ( Pursuing America's Greatness v. FEC, D.D.C., Civ. No. 15-1217, meet and confer statement filed 10/11/16 ).

In an Oct. 11 filing with the U.S. District Court for the District of Columbia, lawyers for the super PAC, called Pursuing America's Greatness (PAG), urged the court to adopt a schedule that would complete briefing on summary judgment by early 2017.

Meanwhile, lawyers for the FEC asked for an extended briefing schedule, including discovery, which would extend the case through most of next year.

The district court filings followed a recent federal appeals court ruling that enjoined the FEC from enforcing the PAC naming restrictions against PAG, at least temporarily. The U.S. Court of Appeals for the District of Columbia Circuit ruled in August that restrictions on the super PAC's use of a candidate's name in a website or social media platform was an unconstitutional restriction on speech, not a disclosure requirement, as the FEC had contended.

No Appeal by FEC, DOJ

The six FEC commissioners deadlocked 3-3 in a vote last month on whether to appeal the D.C. Circuit panel ruling to the full appeals court (4348 Money & Politics Report, 9/21/16).

The Justice Department has not moved to file a petition for Supreme Court review.

The August ruling by a three-judge panel of the D.C. Circuit overturned rules that the FEC commissioners previously had supported unanimously and that agency lawyers fought in court to preserve. The agency said that rules were needed on use of a candidate's name in order to prevent public confusion and possible fraud.

The current election cycle has seen more attention paid to PACs that purport to raise money to support specific candidates but have been disavowed by those candidates—widely known as “scam PACs.”

Ellen Weintraub, a Democratic FEC commissioner, proposed during a commission meeting last month that the FEC launch a new staff working group to examine ways to deal with scam PACs. Weintraub's call for a working group was backed by FEC Chairman Matthew Petersen following a discussion of proposals on the issue by Weintraub and fellow Democratic Commissioner Ann Ravel.

New Disclaimer Requirement?

A memo from Weintraub and Ravel said efforts to control scam PACs have been complicated by the recent appeals court decision striking down restrictions on PACs use of candidate names. However, the memo noted that the D.C. Circuit decision said the FEC has “extensive” power to require that PACs include disclaimers on their communications stating that they do not speak for a candidate.

Weintraub and Ravel suggested the FEC could require a PAC's web disclaimers to be placed at the top of a web page and state clearly to donors and other viewers that, despite the names or references they see, they are not looking at information provided by a candidate's campaign committee.

The ongoing court case on PAC name restrictions arose from a plan by PAG to use the name of Republican presidential contender and former Arkansas Gov. Mike Huckabee in the name of a website and on Facebook and Twitter. After Huckabee dropped out of the presidential race, the super PAC said it had similar plans to use the names of several Republican congressional candidates, including Sens. Kelly Ayotte (N.H.) and Richard Burr (N.C.).

The super PAC raised nearly $5 million in the current election cycle, according to FEC disclosure filings, and reported about $3.5 million in independent expenditures for messages promoting Huckabee's presidential candidacy. The super PAC has made no further expenditures after Huckabee dropped out of the race earlier this year, but it has continued spending money on consulting and legal fees.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

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