Judge Nixes Candidate-Naming Bar on Super PACs

Former Arkansas Governor Mike Huckabee speaks at the 2011 Republican Leadership Conference in New Orleans.

WASHINGTON (CN) – A federal judge found it unconstitutional Thursday to bar super PACs from touting the names of individual candidates.

U.S. District Judge Tanya Chutkan found that the regulation by the Federal Election Commission “is not narrowly tailored to promote a compelling governmental interest.”

Pursuing America’s Greatness, a super PAC that supported Mike Huckabee’s 2016 presidential bid, brought the lawsuit back in July 2015 after the FEC applied the regulation to its social media pages and websites.

Though Chutkan refused to give the challenger an injunction in 2015, the D.C. Circuit reversed that decision a year later, finding that the regulation constituted a ban on content-based speech and remanded the case.

The D.C. Circuit also held that the regulation was likely “not the least restrictive means to achieve the government’s interest.”

On remand, the agency failed to sway Chutkan that there were problems with the additional disclosure requirements proposed by the super PAC.

The super PAC said it could inform visitors that they had not reached an official candidate website, but the FEC said any disclaimers would need to be large and thus burdensome. Were the disclaimers too small, one commissioner warned that the super PAC could effectively bury it.

The FEC also argued that the demand would be seen as an unfair regulation.

Chutkan denied each in turn.

“These observations are anecdotal, not based on empirical evidence, and simply speculate about potential problems rather than analyze whether the proposed procedures would be feasible and/or effective,” the 17-page opinion says. “Moreover, a concern that some political parties or candidates might object to disclosures does not constitute evidence that those disclosures would be ineffective.”

Jason Torchinsky, an attorney for the super PAC with Holtzman Vogel, welcomed Thursday’s ruling.

“We are grateful that after nearly four years of litigation we finally have a judgment concluding the FEC regulation limiting the use of candidate names violates the First Amendment,” Torchinsky said in an email.

A spokeswoman for the FEC declined to comment.

The opinion notes that Congress included a provision in the Federal Election Campaign Act that requires authorized political committees to incorporate that candidate’s name into its own registered name to allow voters and donors to easily determine on whose behalf a political committee is operating.

That meant unauthorized committees were barred from using the names of federal candidates in their formal names. In 1992 the FEC enacted a rule that expanded the prohibition to bar the use of candidate names in all of its communications, including projects, programs and fundraising efforts.

The only exception prior exception was when “the title clearly and unambiguously shows opposition to the named candidate.”

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