Citizens for Responsibility and Ethics in Washington v. FEC (ORDER IN SLIP OPINION FORMAT)

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

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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.