August 2, 2016

DC Circuit stops another unconstitutional FEC action

By Christina M. Martin Attorney

Today, the DC Circuit put the brakes on yet another unconstitutional regulation from a federal government agency—this time the Federal Election Commission (FEC).  Last year, the FEC banned Super PACs from using the name of the candidate it supports in a website domain name or the title of a social media page.  Pursuing America’s Greatness, a Super PAC, sued the FEC because the regulation meant that it could no longer use its popular “I like Mike Huckabee” Facebook page.  As I explained in the friend-of-the-court brief filed on behalf of PLF and the James Madison Center for Free Speech, the naming prohibition made it difficult for political committees to attract traffic to their pages. Like a sign hanging outside of a brick-and-mortar business, the title or domain name of a website will often determine who chooses to visit the site.

Without evidence, the FEC claimed that the naming prohibition was necessary to protect voters from confusing a candidate’s official page (or the page of its authorized political committee) with an unauthorized political committee page. But while the government certainly has an interest in preventing fraud, the naming prohibition went too far, when many less restrictive means were available that would achieve that same end. The DC Circuit cited approvingly to PLF’s brief, explaining, for example, that “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 Not Candidate Doe’s Official Website.’” Because the government failed to prove that its restriction was “narrowly tailored” the court granted a preliminary injunction against the rule, meaning that the government must stop enforcing it until the parties have a chance to submit more evidence.  While the government will still have an opportunity in the trial court to try and muster evidence supporting its naming prohibition, the opinion makes it clear that government will most likely fail at offering anything strong enough to overcome the protections of the First Amendment.

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