Citizens for Responsibility and Ethics in Washington v. FEC (ORDER IN SLIP OPINION FORMAT) , 923 F.3d 1141 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: May 14, 2019
No. 17-5049
CITIZENS FOR RESPONSIBILITY AND ETHICS IN
WASHINGTON AND MELANIE T. SLOAN,
APPELLANTS
v.
FEDERAL ELECTION COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02038)
On Petition for Rehearing En Banc
Before: GARLAND, Chief Judge; HENDERSON,
ROGERS, TATEL, GRIFFITH***, SRINIVASAN, MILLETT,
PILLARD***, WILKINS**, KATSAS, and RAO*, Circuit Judges
ORDER
Appellants’ petition for rehearing en banc and
the response thereto were circulated to the full court, and a
vote was requested. Thereafter, a majority of the judges
eligible to participate did not vote in favor of the petition.
Upon consideration of the foregoing, it is
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ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken R. Meadows
Deputy Clerk
* Circuit Judge Rao did not participate in this matter.
** Circuit Judges Pillard and Wilkins would grant the
petition for rehearing en banc.
*** A statement by Circuit Judge Griffith, concurring in the
denial of rehearing en banc, is attached.
*** A statement by Circuit Judge Pillard, dissenting from the
denial of rehearing en banc, is attached.
GRIFFITH, Circuit Judge, concurring in the denial of
rehearing en banc:
The Federal Election Campaign Act (FECA) requires that
“[a]ll decisions of the” Federal Election Commission (FEC)
“with respect to the exercise of its duties and powers under the
provisions of this Act shall be made by a majority vote of the
members of the Commission.” 52 U.S.C. § 30106(c). Because
the FEC is comprised of three Democratic appointees and three
Republican appointees, see id. § 30106(a)(1), FECA thus
requires that all actions by the Commission occur on a
bipartisan basis. The statute does not instruct how to handle a
“deadlock vote,” that is, a vote in which three members wish to
proceed on a given enforcement action and three oppose such
action. This situation, as one might expect, occurs with some
frequency. We and the FEC have, however, provided guidance.
The FEC has said that if “the Commission lacks majority
support for proceeding with a matter,” “the Commission will
dismiss” it as an “exercise of its prosecutorial discretion.”
Statement of Policy Regarding Commission Action in Matters
at the Initial Stage in the Enforcement Process, 72 Fed. Reg.
12,545, 12,546 (Mar. 16, 2007). As for us, because the initial
deadlock triggered this dismissal, we review—and treat as
controlling—the rationale offered by the Commissioners who
voted not to proceed. Common Cause v. FEC, 842 F.2d 436,
449 (D.C. Cir. 1988). The majority opinion here added one
more parameter: deadlock votes premised on prosecutorial
discretion are insulated from judicial review, with limited
exceptions. Citizens for Responsibility and Ethics in
Washington v. FEC (CREW), 892 F.3d 434, 438-42, 440 n.9,
441 n.11 (D.C. Cir. 2018).
Given FECA’s silence on deadlocks, it is no surprise that
the statute also does not instruct how to differentiate between a
deadlock vote that prompts a dismissal and a vote by four or
more Commissioners to dismiss the action outright. Should we
treat a deadlock-then-dismissal and an outright dismissal by
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four or more Commissioners differently, even when both rest
on identical “prosecutorial discretion” grounds? The purposes
underlying FECA would suggest as much, as the fourth vote—
necessarily from a Commissioner who crossed party lines—
makes us less worried about partisan gamesmanship. See 52
U.S.C. § 30106(a)(1), (c); FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27, 37 (1981). To that end, the
majority’s opinion, which indicates that when three
Commissioners invoke “prosecutorial discretion” they
foreclose both the FEC enforcement action and our review of
the decision not to proceed, certainly seems contrary to
Congress’s intent.
Then again, nothing in FECA provides an easy way to
distinguish these two types of dismissals. Maybe, in keeping
with FECA’s bipartisan emphasis and the FEC’s guidance,
only four or more Commissioners may invoke “prosecutorial
discretion” to dismiss a case. See FEC, Guidebook for
Complainants and Respondents on the FEC Enforcement
Process 12 (May 2012),
http://fec.gov/em/respondent_guide.pdf (“Pursuant to an
exercise of its prosecutorial discretion, the Commission may
dismiss a matter when, in the opinion of at least four
Commissioners, the matter does not merit further use of
Commission resources.” (emphasis added)). Or maybe any
Commissioner can invoke this reasoning, but it is only
unreviewable pursuant to Heckler v. Chaney, 470 U.S. 821(1985), when articulated by four or more. But even assuming
this kind of rationale is reviewable in some instances, the scope
and content of that review remains unclear. Is it unlimited?
Cabined to situations in which the Commissioners incorrectly
interpret and apply FECA? Or perhaps this is just a hole in the
statutory scheme that only Congress can fill.
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While these questions are important, this is not the case to
decide them. There is a factual dispute over whether the three
Commissioners who voted not to proceed even made a legal
decision. Neither party argued before the panel that decisions
rooted in prosecutorial discretion are insulated from our
review; indeed, the FEC conceded that “Commission decisions
not to prosecute . . . remain subject to judicial review.” FEC Br.
27. Nor is it clear how a rule articulated in this context might
play out elsewhere. What if the Commission split 3-3, refused
to dismiss the case, and 120 days later, the petitioner brought
suit in this court. See 52 U.S.C. § 30109(a)(8)(A). What
standard applies? Or what if we are faced with a deadlock-then-
dismissal and the three naysayers explain that because a
violation occurred but the statute of limitations is about to
expire, they exercised their prosecutorial discretion not to
proceed. Can we review this exercise of prosecutorial
discretion premised on a legal determination? See CREW, 892
F.3d at 441 n.11, 441-42 (leaving open the possibility that “if
the Commission declines to bring an enforcement action on the
basis of its interpretation of FECA, the Commission’s decision
is subject to judicial review” but noting that we may not
“carv[e] reviewable legal rulings out from the middle of non-
reviewable actions” (citation and quotation marks omitted)).
It is unlikely that a future case will implicate—or
answer—all of these concerns. But I hope that in the right case,
with adequate briefing from interested parties, we can better
grapple with these questions and the consequences of a
potential holding. Perhaps at that time, we will need to
reconsider the majority’s holding en banc; perhaps not. For
now, however, we have before us only these issues, briefs, and
parties. And on this record, I do not think rehearing en banc is
warranted.
PILLARD, Circuit Judge, dissenting from denial
of rehearing en banc:
Who pays for the messages we hear about candidates for
federal office? Federal election law gives the public a right to
know. But today we let stand a divided panel decision that
effectively scuttles that law. Congress established the Federal
Election Commission at the front line of campaign finance law
enforcement. To avoid agency capture, it made the
Commission partisan balanced, allowing no more than three of
the six Commissioners to belong to the same political party.
That balance created a risk of partisan reluctance to apply the
law, so Congress provided for judicial review of non-
enforcement, and citizen suits to press plausible claims the
Commission abandons. But the decision we leave in place
today eliminates those legal checks against enforcement-
shirking. It empowers any partisan bloc of the Commission to
cut off investigation and stymie review of even the most serious
violations of federal campaign finance law by uttering “magic
words” of enforcement discretion.
The panel majority held that the Commission’s refusal-by-
deadlock to investigate a complaint against a claimed political
committee, the Commission on Hope, Growth and Opportunity
(CHGO), was an exercise of “unreviewable prosecutorial
discretion.” Citizens for Responsibility & Ethics in
Washington v. FEC (CREW), 892 F.3d 434, 438 (D.C. Cir.
2018). That broad holding is sufficiently wrong and important
that it warrants en banc review. The majority opinion
contravenes the statute and binding precedent, undercuts the
design Congress devised to avoid both partisan domination and
partisan deadlock in the Commission’s enforcement process,
and has already been applied by the Commission and district
court to truncate other cases.
The Federal Election Campaign Act (FECA) invites “any
person” to file a complaint with the Commission (FEC or
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Commission), and provides that the Commission “shall make
an investigation” of any complaint supported by “reason to
believe” that the statute is violated. 52 U.S.C. § 30109(a)(2)
(emphasis added). It further provides that “any party
aggrieved” by an order dismissing a complaint, or by a failure
of the Commission to act on a complaint within 120 days, “may
file a petition” for judicial review by this court. Id. §
30109(a)(8)(A). If the court holds that “the dismissal of the
complaint or the failure to act is contrary to law,” the
Commission has 30 days to conform, failing which the
complainant may file a civil action to remedy the alleged
violation. Id. § 30109(a)(8)(C). In Orloski v. FEC, we held
that a “decision is ‘contrary to law’ if (1) the FEC dismissed
the complaint as a result of an impermissible interpretation of
the Act, or (2) if the FEC’s dismissal of the complaint, under a
permissible interpretation of the statute, was arbitrary or
capricious, or an abuse of discretion.” 795 F.2d 156, 161 (D.C.
Cir. 1986) (citation omitted).
If a partisan bloc of the FEC can thwart a case like this one,
FECA’s controls on campaign money, including the political-
committee registration and disclosure requirements here, are
not worth much. CHGO sprang into existence in 2010 as the
brainchild of political operatives. Internally and to potential
donors it described its mission as collecting money to spend on
federal campaigns while making sure that donor names would
be kept secret. The group falsely claimed tax-exempt status,
raised and spent millions of dollars to influence campaigns, and
never registered as a political committee or reported its
contributors or spending. When it learned of an FEC complaint
by Citizens for Responsibility and Ethics in Washington
(CREW), CHGO responded with evasion and dissimulation
and, by early 2012, scurried to dissolve itself. The FEC’s
Office of General Counsel concluded that CHGO easily met
the FECA threshold for political-committee status and
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recommended three times that the Commission find “reason to
believe” that CHGO was an unregistered political committee—
a preliminary finding that would have authorized a full
investigation. The Commissioners persistently deadlocked.
CREW filed in federal court claiming the blocking
Commissioners’ position was contrary to law. I believe the law
entitled CREW to a judicial ruling on that question.
In the panel majority’s view, however, three out of six
Commissioners have peremptory enforcement discretion to
block investigation of a complaint and cut off judicial review,
even where there may be ample “reason to believe” that FECA
was violated. It held that the blocking Commissioners’ mere
assertion of discretion—invoking concerns like the best use of
agency resources and an expiring statute of limitations—
eliminates our review to determine whether the asserted
discretion was itself “contrary to law.” And it treated an
invocation of discretion as a shield against review of the
blocking Commissioners’ non-discretionary errors as well.
Under settled precedent, the Commission’s enforcement
discretion cannot block review of legal errors. That means that
courts may review the kinds of errors CREW points to in the
blocking Commissioners’ conclusions about the statute of
limitations and their own equitable enforcement powers against
a dissolving CHGO, on which the blocking Commissioners
purported to rest their discretion. Appellant’s Br. 44-45. And
courts may review errors CREW identifies in the grounds those
Commissioners gave for refusing to investigate CHGO as a
possible “political committee” in the face of direct admissions
and circumstantial evidence of its “major purpose” to win
Senate seats. Id. at 49. The panel majority’s contrary holding
conflicts with the statute’s terms, structure, and purpose; with
the Supreme Court’s decision in FEC v. Akins, 524 U.S. 11(1998); and with our decisions in Chamber of Commerce v.
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FEC, 69 F.3d 600 (D.C. Cir. 1995), Democratic Congressional
Campaign Committee v. FEC (DCCC), 831 F.2d 1131 (D.C.
Cir. 1987), and Orloski, 795 F.2d 156.
Our en banc court will have to resolve these conflicts. I
would have done so here, despite some questions about the way
the petition was framed. See Concurring Op. 3. The panel’s
significant disregard of circuit precedent calls for prompt
correction. In the meantime, to the extent the majority opinion
conflicts with earlier decisions, it is not binding. See Sierra
Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). Our
district courts and future panels must continue to follow
precedent the panel would sweep aside, including Akins,
Chamber of Commerce, DCCC, and Orloski.
* * *
Given the contrary message of the panel majority,
embraced by the blocking Commissioners and at least one
district court, it is worth pinpointing how the majority errs. In
brief, it defies settled law in two ways: First, it holds that
dismissals based on the FEC’s exercises of enforcement
discretion are entirely beyond our review—a position contrary
to FECA’s express terms and judicial precedent. And, second,
it deems any invocation of enforcement discretion, even when
accompanied by reasons that are contrary to law, sufficient to
shield those legal defects from review. Together, those
holdings allow a non-majority of Commissioners to insulate
any decision from the judicial review that FECA provides, just
by invoking “prosecutorial discretion.” The majority errs in a
third way by treating a deadlock in the statutorily required vote
not as a vote of “no reason to believe” FECA was violated,
subject to judicial review as such, but as an operative (and
unreviewable, it says) exercise of enforcement discretion.
In the interest of clarity, let me spell out these three points.
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First, the majority held that the presumption in Heckler v.
Chaney, 470 U.S. 821, 64 (1985), that agency non-enforcement
actions are unreviewable “controls this case,” via the panel’s
assertion that nothing in FECA “overcomes the presumption
against judicial review.” CREW, 892 F.3d at 439. That
assertion conflicts with the statutory text, the Supreme Court’s
holding in Akins, and several of our circuit decisions.
FECA’s authorization of judicial review differs from
typical provisions for review of agency decisions. Congress
acknowledged that the FEC’s politically balanced composition,
designed to avoid partisan domination, created a risk of
political deadlock and non-enforcement of the law. To prevent
any reluctant three-member bloc of a divided Commission
from defeating enforcement of FECA by scuttling plausible
complaints, the Act contains an unusual provision for judicial
review:
Any party aggrieved by an order of the
Commission dismissing a complaint filed by
such party . . . or by a failure of the Commission
to act on such complaint during the 120-day
period beginning on the date the complaint is
filed, may file a petition with the United States
District Court for the District of Columbia.
52 U.S.C. § 30109(a)(8)(A). The reviewing court decides
whether the dismissal was “contrary to law.” Id. §
30109(a)(8)(C). If the Commission does not take up the case
again within thirty days of a ruling that the dismissal was
contrary to law, the aggrieved party may bring a citizen suit to
enforce FECA. Id. The Commission thus retains its primacy
as enforcer of federal campaign finance law, with
complainants’ petitions for review of dismissals or failures to
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act and, if necessary, citizen suits providing judicial checks
against passivity or stonewalling.
The Supreme Court in Akins accordingly held inapplicable
to the FEC Chaney’s rebuttable presumption against judicial
review of agency non-enforcement decisions, declaring: “We
deal here with a statute that explicitly indicates the contrary.”
524 U.S. at 26. The Court confirmed the common-sense
conclusion we had already drawn. As Judge Silberman
described it in the Akins opinion for our en banc court,
Section 30109(a)(8) is “an unusual statutory provision which
permits a complainant to bring to federal court an agency’s
refusal to institute enforcement proceedings.” 101 F.3d 731,
734 (D.C. Cir. 1996) (distinguishing Chaney), vacated on other
grounds, 524 U.S. 11 (1998); see also Chamber of Commerce,
69 F.3d at 603 (describing FECA as “unusual in that it permits
a private party to challenge the FEC’s decision not to enforce”).
Indeed, the FEC acknowledged to the panel here that
“Commission decisions not to prosecute, unlike those of most
agencies, remain subject to judicial review.” Appellee Br. 27.
The panel majority attempted to distinguish Akins by
saying that “[t]he only issue the Court decided in Akins dealt
with standing.” CREW, 892 F.3d at 438 n.6. But Akins’
standing holding is, a fortiori, support for reviewability here.
Akins squarely rejected the contention that, because the FEC’s
“decision not to undertake an enforcement action” was an
action “not subject to judicial review,” the court could not
redress the claim of injury. Akins, 524 U.S. at 26. In
recognizing that the injury would be redressable in response to
a private “complain[t] that the agency based its decision upon
an improper legal ground,” the Court necessarily (and
unequivocally) decided that the non-enforcement decision by
the FEC was subject to judicial review. Id. at 20, 25-26.
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Contrary to the majority’s theory that the FEC’s
prosecutorial discretion is unreviewable, precedent holding
Chaney inapposite to FECA applies no less to non-enforcement
decisions that Commissioners frame in discretionary terms. In
DCCC, this court held that deadlocks at the “reason to believe”
stage are reviewable even if cast as exercises of prosecutorial
discretion. 831 F.2d at 1133-34. Rebuffing the Commission’s
invocation of Chaney, we explained that, “[b]ecause
§ [30109](a)(8)(A) provides broadly for court review of an
FEC order dismissing a complaint, we resist confining the
judicial check to cases in which . . . the Commission ‘act[s] on
the merits.’” Id. (second alteration in original) (citation
omitted). We reaffirmed our DCCC holding the following year
in Common Cause v. FEC, emphasizing that reviewability was
not limited to “deadlock dismissals which run contrary to
General Counsel’s recommendations based on clear legal
precedent,” but extended to those that run contrary to
“recommendations based on the General Counsel’s less
definitive assessment of what the law requires in light of the
factual allegations in the case”—even though the latter
involved more contextual and discretionary judgments. 842
F.2d 436, 449 (D.C. Cir. 1988). Similarly, in Orloski, which
has for decades set the standard for review of a Commission
decision not to investigate, we explained that a decision
dismissing a complaint “is ‘contrary to law’” even “under a
permissible interpretation of the statute” if it involves “an
abuse of discretion.” 795 F.2d at 161.
Second, the majority erroneously—if somewhat
ambivalently—says that the FEC’s enforcement discretion is
not only unreviewable, but that it broadly shields other, non-
discretionary grounds from review. That contradicts Akins’
recognition that, even when the FEC has “discretion about
whether or not to take a particular action,” aggrieved parties
can “complain that the agency based its decision upon an
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improper legal ground.” 524 U.S. at 25. “If a reviewing court
agrees that the agency misinterpreted the law, it will set aside
the agency’s action and remand the case—even though the
agency . . . might later, in the exercise of its lawful discretion,
reach the same result for a different reason.” Id. Because “we
cannot know that the FEC would have exercised its
prosecutorial discretion in this way” in the absence of the
erroneous ingredients, we review the legal ground even if the
discretionary ground is legitimate, and remand if the former is
tainted by error. Id.In my original dissent, I thought my disagreement with the
majority on this point might be confined to the facts before us.
We agreed that “[t]he interpretation an agency gives to a statute
is not committed to the agency’s unreviewable discretion” and
therefore that, “if the Commission declines to bring an
enforcement action on the basis of its interpretation of FECA,
the Commission’s decision is subject to judicial review to
determine whether it is ‘contrary to law.’” CREW, 892 F.3d at
441 n.11. My colleagues thought the blocking Commissioners
made no legal decision, while I thought they drew a legal
conclusion that was contrary to FECA—namely, that there was
no “reason to believe” CHGO may have operated as an
unregistered “political committee.” See id. at 443 (Pillard, J.,
dissenting). Elsewhere, however, the majority was more
sweeping. It said that review was unavailable under FECA
unless “the agency’s action was based entirely on its
interpretation of the statute,” suggesting that any discretionary
reason could insulate a dismissal from review, even if it were
based on or appended to statutory interpretations that were
“contrary to law.” Id. at 441 n.11 (majority opinion) (emphasis
added). Similarly, it opined that “even if some statutory
interpretation could be teased out of the Commissioners’
statement of reasons,” the action would not be subject to
judicial review, because “[t]he law of this circuit ‘rejects the
9
notion of carving reviewable legal rulings out from the middle
of non-reviewable actions.’” Id. at 441-42 (quoting Crowley
Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir.
1994)).
To the extent that the majority meant that any mention of
enforcement discretion renders otherwise-reviewable
Commission action unreviewable, it misread the cases it cited.
Even if the majority were right that enforcement discretion is
an unreviewable reason for dismissing complaints,
Commission decisions to dismiss complaints are undeniably
reviewable actions under the plain text of FECA (confirmed by
decisions of the Supreme Court and this circuit). The cases on
which the majority relies differ from our case in that they
concern unreviewable categories of agency action—for
instance, actions governed by Chaney (such as Crowley’s
waiver denial, 37 F.3d at 676), or actions as to which a statute
explicitly strips courts’ jurisdiction (as in Association of
Civilian Technicians, Inc. v. Federal Labor Relations
Authority, 283 F.3d 339, 341-42 (D.C. Cir. 2002)). See also
ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281 (1987)
(the agency’s “formal action, rather than its discussion,” was
“dispositive,” because the challenged action was unreviewable
regardless of the reasons given for it). Those cases merely
mean that if an agency justifies an unreviewable action with a
legal reason, the action itself does not thereby become
reviewable. Likewise, however, if an agency justifies a
reviewable action with a discretionary reason—as the blocking
Commissioners purported to do here—the action itself does not
thereby become unreviewable. “[J]udicial review of a final
agency action by an aggrieved person will not be cut off unless
there is persuasive reason to believe that such was the purpose
of Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967). Whereas in Association of Civilian Technicians, for
example, there was “‘clear and convincing evidence’ of
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Congressional intent to preclude judicial review,” 283 F.3d at
342 (quoting Abbott Labs, 387 U.S. at 141), congressional
direction here is to the contrary. The majority does not explain
how one drop of discretion transforms a reviewable action into
an unreviewable one.
Whatever the majority intended, its holding has already
been interpreted to allow a perfunctory recitation of
“prosecutorial discretion” to shield legal holdings from the
“contrary-to-law” review FECA provides. In Citizens for
Responsibility & Ethics in Washington v. FEC (CREW/New
Models), the district court concluded (with evident reluctance)
that the panel majority opinion in this case “holds that the
Controlling Commissioners’ legal analyses are reviewable
only if they are the sole reason for the dismissal of an
administrative complaint.” No. 1:18-cv-00076-RC, 2019 WL
1429552, at *8 (D.D.C. Mar. 29, 2019). In the deadlock under
review in CREW/New Models, the blocking Commissioners
conducted extensive legal analysis explaining why they
believed the group at issue was not a “political committee,” in
part because they thought it lacked a “major purpose” of
nominating or electing candidates for federal elections. Joint
App’x (J.A.) 108-21, CREW/New Models, 2019 WL 1429552.
The last sentence of the thirty-two-page Statement of Reasons
added the drop of discretion: “For these reasons, and in
exercise of our prosecutorial discretion, we voted against
finding reason to believe that New Models violated the Act by
failing to register and report as a political committee and to
dismiss the matter.” Id. at 121 (footnote omitted). The 139th
and final footnote of the Statement of Reasons said that
“proceeding further would not be an appropriate use of
Commission resources.” Id.When CREW challenged as contrary to FECA the
blocking Commissioners’ statement that there was no reason to
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believe that New Models was a political committee, the FEC
argued and the district court agreed that our panel majority’s
opinion in this case was dispositive. The district court read our
opinion to mean that case “beg[an] and end[ed] with the
Controlling Commissioners’ prosecutorial discretion,” even
though “the Controlling Commissioners’ decision at issue
[t]here involved a robust interpretation of statutory text and
case law, with a brief mention of prosecutorial discretion
sprinkled in.” CREW/New Models, 2019 WL 1429552, at *6-
7. I had anticipated that courts would at least continue to
review undisputedly legal analyses, but the CREW/New
Models district court read our panel’s decision to “squash this
approach.” Id. at *7. The destructive promise of the panel’s
approach has a broader reach, too: CREW reports that the
Commissioners have cited prosecutorial discretion in every
statement of reasons for no “reason to believe” since the district
court decision in this case. Pet. Reh’g En Banc 14.
Third, the majority made another significant misstep on a
point our circuit has not yet squarely addressed, but which also
warrants resolution: It treated a deadlock at the reason-to-
believe stage as an exercise of enforcement discretion, while
FECA requires at least four Commissioners to concur for their
enforcement discretion to be operative as such. This matters
because, as we have recognized, the Act contemplates some
engagement with the merits of the questions on which the
Commission votes. The statute forces that engagement by
making the discretionary exit ramp accessible only to a bloc of
at least four Commissioners. The majority requirement is in
the Act, and its application to dismissing a case in an exercise
of discretion at the reason-to-believe stage is spelled out in
Commission guidance. The statute recognizes a “vote to
dismiss,” 52 U.S.C. § 30109(a)(1), and says that “[a]ll
decisions of the Commission with respect to the exercise of its
duties and powers under the provisions of this Act shall be
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made by a majority vote of the members of the Commission,”
id. § 30106(c). When presented with a General Counsel
recommendation, the Commissioners vote on whether there is
or is not reason to believe that a violation may have occurred.
Alternatively, “[p]ursuant to an exercise of its prosecutorial
discretion, the Commission may dismiss a matter,” but only
when, “in the opinion of at least four Commissioners, the
matter does not merit further use of Commission resources.”
FEC, Guidebook for Complainants and Respondents on the
FEC Enforcement Process 12 (May 2012) (emphasis added),
https://transition.fec.gov/em/respondent_guide.pdf. If a
complaint passes through all the prescribed checkpoints, from
a reason-to-believe vote to a probable-cause vote, together with
conciliation efforts at one or both stages, the statute only then
confers discretion on fewer than four members to halt the case.
It provides that “the Commission may, upon an affirmative vote
of 4 of its members, institute a civil action for relief,” meaning
that three may decide not to move forward with a civil action.
52 U.S.C. § 30109(a)(6)(A) (emphasis added). As FECA
frames it, if the Commission is evenly divided at that stage,
there is no review. But this case stalled at the earlier, reason-
to-believe stage, and only three voted “no” on that question, so
that action was not operative as an exercise of the
Commission’s enforcement discretion.
FECA’s effectiveness depends on the FEC’s duty to
engage with complaints. Congress created the Commission to
correct for underenforcement of campaign finance laws, even
as it sought to curb potential partisan excesses by channeling
citizen complaints to the FEC as the first arbiter. Several
authorities have implicitly or expressly recognized that duty.
The Supreme Court has described the complaint system as
“ask[ing] the FEC to find [whether a respondent] . . . had
violated the Act.” Akins, 524 U.S. at 16. The FEC
acknowledged in its briefing that it is “required” to “determine
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whether any civil FECA violations have occurred.” Appellee
Br. 6. And in Chamber of Commerce—which the panel does
not address—we acknowledged the obligation to pass on the
merits of a complaint when we held that the Commission’s
unwillingness to apply the law violates FECA. 69 F.3d at 603.
There, we said that “it would be easy to establish” that agency
action refusing to process a potentially meritorious case “was
contrary to law; the Commission’s refusal to enforce would be
based not on a dispute over the meaning or applicability of the
rule’s clear terms, but on the Commission’s unwillingness to
enforce its own rule.” Id. If three Commissioners could vote
“no” at the reason-to-believe stage on grounds of prosecutorial
discretion, there would be little to check “the Commission’s
unwillingness to enforce its own rule,” id., even if the panel
decision’s other errors were corrected.
Giving a non-majority of Commissioners enforcement
discretion removes an institutional check on political deadlock
that Congress wrote into FECA. The power of a majority of
Commissioners to dismiss a complaint at the reason-to-believe
stage as an exercise of enforcement discretion does not
implicate the same concern about partisan underenforcement.
Requiring four Commissioners to agree to discretionary
dismissals keeps complaints from being jettisoned by a partisan
bloc: The Commission’s structure means that a vote of four or
more Commissioners is necessarily bipartisan; if a three-
member “no” vote cannot be justified on the merits, a court can
call on the Commission to either move forward with its
investigation or cede enforcement to a private party. Non-
majority discretion to block action is fatal to FECA if that
enforcement discretion is—as the panel would have it—both
judicially unreviewable, and effective in shielding all other
grounds from review. I fear that FEC Chair (then-Vice Chair)
Weintraub did not exaggerate when she described the panel
decision as giving the Commission “a superpower . . . to kill
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any FEC enforcement matter, wholly immune from judicial
review.” FEC, Statement of Vice Chair Ellen L. Weintraub on
the D.C. Circuit’s Decision in CREW v. FEC 1 (June 22,
2018), https://go.usa.gov/xmWC2.
CREW/New Models provides a stark illustration of that
superpower. As Chair Weintraub said about that case, “that
139th footnote was all that mattered. They literally could have
skipped everything before and after it and the statement would
be equally bulletproof under” the majority opinion. FEC,
Statement of Chair Ellen L. Weintraub on the D.C. District
Court Decision in CREW v. FEC (New Models) 3 (Apr. 15,
2019), https://go.usa.gov/xmWC4. The district court itself
described the law it applied as a “‘magic words’ standard,”
noting that it was “sympathetic to Plaintiffs’ concerns” about
such a standard. CREW/New Models, 2019 WL 1429552 at *1.
But it concluded that, per the panel decision in this case,
“because the Controlling Commissioners invoked
prosecutorial discretion, the Court is also foreclosed from
evaluating the Controlling Commissioners’ otherwise
reviewable interpretations of statutory text and case law.” Id.
at *10. If such an invocation does bar evaluation of the
Commissioners’ legal conclusions, it guts the case-by-case
approach the FEC has adopted for determining when groups
qualify as “political committees.” The Commission has
declined to define “political committee” by rule, choosing
instead a “fact-intensive” inquiry into each group’s “overall
conduct.” Political Committee Status, 72 Fed. Reg. 5,595,
5,601-02, 5,597 (Feb. 7, 2007). If it needs neither promulgate
rules nor adjudicate the merits of individual cases, any partisan,
non-majority bloc of the Commission can indefinitely avoid
developing law defining political committees.
FECA cannot be interpreted to, in effect, invite any three-
member bloc of the Commission to refuse to consider
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complaints, free from the judicial scrutiny Congress wrote into
the statute. I understand my colleagues’ hesitation to review
this case en banc given that some of the strongest arguments
that the blocking Commissioners acted contrary to law did not
appear in the briefs, and that CREW’s panel briefs were not
entirely consistent with its petition for rehearing en banc.
Compare Appellant’s Br. 26 (asserting that “the FEC d[id] not
reach the merits but dismisse[d] based on its prosecutorial
discretion”), with Pet. Reh’g En Banc 2-3 (describing the
Commissioners as making a “decision that there was no reason
to believe CHGO violated the FECA . . . based on their
interpretation of the law”). But other important issues at stake
in this case were unbriefed simply because the parties could not
anticipate that the majority would adopt a novel position that
no party advanced. I would not wait for a perfect case to come
along to correct the majority’s interpretation.