The Federal Elections Commission (FEC) lost its bid to regulate certain forms of super PAC communications Tuesday, after the D.C. Circuit Court of Appeals found in favor of a former Arkansas Gov. Mike Huckabee-aligned super PAC objecting to the regulations.
At issue in the litigation was an FEC rule restricting uses of a candidate’s name by unauthorized super PACs. A super PAC officially authorized by a candidate’s campaign may (and in some cases must) make use of the candidate’s name. A super PAC not officially authorized by a candidate, but which still supports said candidate, cannot use the candidate’s name in its own name or in many of its projects, including websites, social media accounts and official communiques.
Pursuing America’s Greatness (PAG), an unauthorized super PAC which supported Huckabee, brought a challenge against the FEC rule. The group argued the regulation prohibited it from using a Facebook page called “I Like Mike Huckabee” to support Huckabee’s 2016 presidential campaign. PAG claimed the FEC rule ran afoul of the First Amendment and the Administrative Procedure Act (APA). The APA challenge stemmed from the fact that FEC chose to extend the rule banning candidate names in the title of unauthorized super PACs to an outright ban on said committee invoking the candidate’s name in a bevy of communications without following a legal procedure. (RELATED: What’s Behind The FEC’s Inquiries Into The Bernie Sanders Campaign?)
Though a lower court found in favor of the FEC, a three judge panel on the D.C. Circuit found in favor of PAG. The court rejected the group’s APA challenge, but agreed that the FEC rule violated First Amendment protections, concluding that whatever the government’s valid interest in policing super PAC communications, it did not pursue its goal by the least restrictive means.
The Pacific Legal Foundation filed an amicus brief in support of PAG, arguing a rule forbidding a candidate’s name from usage on websites by unauthorized super PACs was analogous to forbidding an entrepreneur from hanging a sign outside his place of business.
“Like a sign hanging outside of a brick-and-mortar business, the title or domain name of a website will determine who chooses to visit the site,” the brief read.
The D.C. Circuit applied this analogy approvingly.
“The title is a critical way for committees to attract support and spread their message because it tells users that the website or Facebook page is about the candidate,” the court ruled. “Without a candidate’s name, the title does not provide the same signaling to the audience. Allowing a committee to talk about a candidate in the body of a website is of no use if no one reaches the website.”
The court granted a preliminary injunction suspending the rule’s enforcement while a lower court will make a final determination as to the rule’s constitutionality.
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