Thread by @EllenLWeintraub

OK, for true #campaignfinance nerds, here's a short explainer on the effect of today's ruling in “Pursuing America's Greatness v. @FEC.”

In short: Unauthorized committees *still* can’t have candidate names in their formal names. But now they can use them everywhere else.

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Here’s why:

In 1992, @FEC adopted 11 CFR 102.14(a). It has three parts:

1. An authorized committee (a candidate’s own campaign committee) *must* have the candidate's name in it.

2. Unauthorized committees (PACs, superPACs, etc) *cannot* have a candidate's name in them.

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3. The "name" of a committee, according to the regulation, “includes any name under which a committee conducts activities, such as solicitations or other communications, including a special project name or other designation."

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Two years after writing those regs, @FEC added §102.14(b)(3): “An unauthorized political committee may include the name of a candidate in the title of a special project name or other communication if the title clearly & unambiguously shows opposition to the named candidate.”

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@FEC This was the regulation at issue in the lawsuit, and I won’t get into the merits here.

The court today struck down 102.14(a) in its entirety. It’s important to note, however, that the first two parts of the regulation are also in the statute, which was untouched:

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@FEC 52 USC §(e)(4): “The name of each authorized committee shall include the name of the candidate who authorized such committee under paragraph (1). In the case of any political committee which is not an authorized committee, such political committee…

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…shall not include the name of any candidate in its name.”

So, according to the statute that underlies the regulations:

• Authorized committees: still required to include candidate names.
• Unauthorized committees: still forbidden from including candidate names.

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But! Lots of mischief comes in the third part, which barred unauthorized committees from using candidate names in solicitations, other communications, & special projects.

This is the part that was enjoined by the court that doesn’t have backup in the underlying statute.

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So! Committees somewhere need to include on their communications a conspicuous disclaimer with their formal name (“Americans for a Better Tomorrow, Tomorrow”).

But unscrupulous committees are likely to then *wallpaper* their communications with candidate names.

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This can be grossly misleading, and this is the hole scam PACs are going to drive a truck through.

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