United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2017 Decided June 15, 2018

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)

Stuart C. McPhail argued the cause for appellants. With

him on the briefs was Adam J. Rappaport.

Paul M. Smith was on the brief for amicus curiae Campaign

Legal Center and Dēmos in support of appellants.

Jacob S. Siler, Attorney, Federal Election Commission,

argued the cause for appellee. With him on the brief were Kevin

Deeley, Associate General Counsel, and Harry J. Summers,

Assistant General Counsel. Greg J. Mueller, Attorney, entered

an appearance.

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Before: KAVANAUGH and PILLARD, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Dissenting opinion filed by Circuit Judge PILLARD.

RANDOLPH, Senior Circuit Judge: This is an appeal from

the district court’s grant of summary judgment in favor of the

Federal Election Commission. Petitioners are Citizens for

Responsibility and Ethics in Washington (CREW), and its

executive director, Melanie Sloan, a registered voter in the

District of Columbia. They brought this action1 alleging that the

Commission acted “contrary to law” in 2015 when it dismissed

their administrative complaint against an unincorporated

association whose name is too cumbersome to condense.2

CREW’s charges against the association, filed in 2011, were that

the association had violated the federal election laws in 2010.

In the district court, and now in this court, CREW invoked

the judicial review provision of the Federal Election Campaign

Act, or “FECA” as it is sometimes called. The provision states

that the district court “may declare that the dismissal of the

complaint . . . is contrary to law,” and, if the Commission fails

to correct the illegality on remand, the “complainant may bring”

1

 CREW and Sloan mislabeled their pleading a “Complaint for

Injunctive and Declaratory Relief.” The Administrative Procedure

Act, 5 U.S.C. § 703, required the “form of proceeding for judicial

review” to be the special statutory review relating to Commission

dismissals of complaints—namely, a “petition” filed in the district

court. 52 U.S.C. § 30109(a)(8)(A). See FEC v. Democratic

Senatorial Campaign Committee, 454 U.S. 27, 31 & n.3 (1981).

2

 The Commission on Hope, Growth, and Opportunity. 

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an action in its own name against the alleged violator “to

remedy the violation involved in the original [administrative]

complaint.” 52 U.S.C. § 30109(a)(8)(C). 

CREW’s petition in the district court also invoked the

Administrative Procedure Act. The APA, enacted in 1946,

states that a later statute—FECA is one—“may not be held to

supersede or modify . . . chapter 7 . . . except to the extent that

it does so expressly.” 5 U.S.C. § 559. APA Chapter 7 contains

the APA’s judicial review provisions. See 5 U.S.C. §§ 701–706. 

Rather than “expressly” contradicting those provisions, FECA

is consistent with them. FECA’s “contrary to law” formulation,

for example, reflects APA § 706(2)(A), which requires the court

to “hold unlawful and set aside agency action” that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law . . ..”3 We will have more to say about

APA § 706 later in this opinion. 

The Commission’s dismissal of CREW’s complaint

constituted the “agency action” supporting the district court’s

jurisdiction. See 52 U.S.C. § 30109(a)(8)(A). After the

Commissioners voted 3 to 3 on whether to begin enforcement

proceedings, the Commission closed the administrative file on

the case. The deadlock meant that the Commission could not

proceed: under FECA, the Commission may pursue enforcement

only upon “an affirmative vote of 4 of its members.” 52 U.S.C.

§ 30109(a)(2), (a)(4)(A)(i), (a)(6)(A).

The district court held that the Commission’s explanation

of its failure to prosecute was a “rational exercise of

3

 In Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986), the

court repeated this language from the APA, stating that the

Commission would have acted “contrary to law” if its dismissal of a

complaint “was arbitrary or capricious, or an abuse of discretion.” See

also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). 

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prosecutorial discretion.” Citizens for Responsibility and Ethics

in Washington v. FEC, 236 F. Supp. 3d 378, 397 (D.D.C. 2017). 

This raises a question: how can a court attribute to “the

Commission” any particular rationale when the Commissioners

were evenly split? The answer comes from Democratic

Congressional Campaign Committee v. FEC, 831 F.2d 1131

(D.C. Cir. 1987), and its expansion in Common Cause v. FEC,

842 F.2d 436 (D.C. Cir. 1988). Together, these cases establish

two propositions of circuit law. The first is that if the

Commission fails to muster four votes in favor of initiating an

enforcement proceeding, the Commissioners who voted against

taking that action should issue a statement explaining their

votes. Common Cause, 842 F.2d at 449. The second is that, for

purposes of judicial review, the statement or statements of those

naysayers—the so-called “controlling Commissioners”—will be

treated as if they were expressing the Commission’s rationale

for dismissal, a rather apparent fiction raising problems of its

own.4

 Id.

Here, the three Commissioners who voted not to begin

enforcement proceedings issued a joint statement explaining

their votes.5 These Commissioners were concerned that the

4

 For instance, what if the three Commissioners each

expressed a different reason for voting against enforcement

proceedings? One Commissioner may have believed that FECA did

not cover the activities alleged in the complaint. Another may have

believed that the evidence of a violation was too weak. The third

Commissioner may have concluded that the alleged violations were

too trivial to warrant the Commission’s attention. 

5

 About the same time, two of the Commissioners who voted

to proceed with enforcement issued a joint statement of their own.

The third Commissioner who voted to proceed issued his statement of

reasons on March 21, 2016, nearly four months after CREW filed its

complaint in the district court. An agency cannot sua sponte update

the administrative record when an action is pending in court. See, e.g.,

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statute of limitations had expired or was about to; that the

association named in CREW’s complaint no longer existed; that

the association had filed termination papers with the IRS four

years earlier; that it had no money; that its counsel had resigned;

that the “defunct” association no longer had any agents who

could legally bind it; and that any action against the association

would raise “novel legal issues that the Commission had no

briefing or time to decide.” For these reasons, the “case did not

warrant further use of Commission resources.”

In short, these Commissioners would have exercised the

agency’s prerogative not to proceed with enforcement. There is

no doubt the Commission possesses such prosecutorial

discretion. Although today “prosecutorial” usually refers to

criminal proceedings, it was not always so. Under the APA,

agency attorneys who bring civil enforcement actions are

engaged in “prosecuting functions,” 5 U.S.C. § 554(d). See 3M

Co. v. Browner, 17 F.3d 1453, 1456–57 (D.C. Cir. 1994). The

Supreme Court has recognized that federal administrative

agencies in general, Heckler v. Chaney, 470 U.S. 821, 831

(1985), and the Federal Election Commission in particular, FEC

v. Akins, 524 U.S. 11, 25 (1998), have unreviewable

prosecutorial discretion to determine whether to bring an

enforcement action. See CREW v. FEC, 475 F.3d 337, 340

(D.C. Cir. 2007).6

Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—of

Politics and Law, Young Lawyers and the Highway Goliath, in

Administrative Law Stories 259, 322 (2006); Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 422 (1971) (Black, J.,

dissenting). We have refused to consider a district court’s opinion

issued while the case was pending on appeal and after appellate briefs

had been filed. See United States v. Hallford, 816 F.3d 850, 855 n.4

(D.C. Cir. 2016).

6

 The dissent thinks the Supreme Court held in Akins that

FECA cabins “the agency’s exercise of prosecutorial discretion at

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As to an agency’s prosecutorial discretion, Heckler v.

Chaney is the leading case. Chaney interpreted APA

§ 701(a)(2), which bars judicial review of agency action

“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

Under § 701(a)(2), “certain categories of administrative

decisions are unreviewable,” among which are “agency

decisions not to institute enforcement proceedings.” Secretary

of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir.

2006). In a frequently quoted passage, which is set forth in the

margin,7

 the Supreme Court recited many of the reasons why an

various decisional stages.” Dis. Op. 5–6. That is not correct. The

only issue the Court decided in Akins dealt with standing. The Federal

Election Commission issued an interpretation of § 431(4)(A) of FECA

to dismiss one of two charges in a complaint. (The Commission,

relying on Heckler v. Chaney, invoked prosecutorial discretion to

dismiss the other charge, which alleged a violation of § 441b of

FECA; this Commission action was not at issue in the Supreme Court.

See 524 U.S. at 25; Akins v. FEC, 736 F. Supp. 2d 9, 13–15 (D.D.C.

2010).) The Court held only that the complainants had standing even

though, on remand, the Commission might invoke its prosecutorial

discretion to dismiss the remaining charge, as it had done with respect

to the § 441b allegation. 524 U.S. at 25.

7 Chaney, 470 U.S. at 831–32:

[A]n agency decision not to enforce often involves a

complicated balancing of a number of factors which

are peculiarly within its expertise. Thus, the agency

must not only assess whether a violation has

occurred, but whether agency resources are best spent

on this violation or another, whether the agency is

likely to succeed if it acts, whether the particular

enforcement action requested best fits the agency’s

overall policies, and, indeed, whether the agency has

enough resources to undertake the action at all. An

agency generally cannot act against each technical

violation of the statute it is charged with enforcing. 

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agency’s exercise of its prosecutorial discretion cannot be

subjected to judicial scrutiny. At this point in its Chaney

opinion, the Court added a caveat. An agency’s decision not to

undertake enforcement “is only presumptively unreviewable; the

presumption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers.” Chaney, 470 U.S. at 832–33; see also

Webster v. Doe, 486 U.S. 592, 600 (1988) (“§ 701(a)(2) requires

careful examination of the statute on which the claim of agency

illegality is based . . ..”).

Chaney controls this case. The three naysayers on the

Commission placed their judgment squarely on the ground of

prosecutorial discretion. Nothing in the substantive statute

overcomes the presumption against judicial review. FECA 

provides that “the Commission may, upon an affirmative vote of

4 of its members, institute a civil action . . ..” 52 U.S.C.

§ 30109(a)(6)(A). To state the obvious, the word “may”

imposes no constraints on the Commission’s judgment about

whether, in a particular matter, it should bring an enforcement

action. Nor do the adjacent sections directing that the

The agency is far better equipped than the courts to

deal with the many variables involved in the proper

ordering of its priorities.

See also Wayte v. United States, 470 U.S. 598, 607 (1985):

This broad discretion rests largely on the recognition

that the decision to prosecute is particularly ill-suited

to judicial review. Such factors as the strength of the

case, the prosecution’s general deterrence value, the

Government’s enforcement priorities, and the case’s

relationship to the Government’s overall enforcement

plan are not readily susceptible to the kind of analysis

the courts are competent to undertake.

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Commission “shall” take specific actions after making certain

threshold legal determinations. 52 U.S.C. § 30109(a)(2),

(a)(4)(A)(i). Neither of those sections constrain the

Commission’s discretion whether to make those legal

determinations in the first instance. The consequence is that the

operative “statute is drawn so that a court would have no

meaningful standard against which to judge the agency’s

exercise of discretion.” Chaney, 470 U.S. at 830.

Rather than confronting Chaney and the many other cases

applying § 701(a)(2), CREW sweeps these precedents off the

table. With the way thus cleared, it argues that whenever the

Commission exercises its prosecutorial discretion to decline an

enforcement action, it acts “contrary to law.” Implicit is the idea

that even if the Commission’s exercise of prosecutorial

discretion is immune from judicial questioning, this does not

close the door. Instead, it triggers FECA’s “citizen-suit”

provision, which entitles a private entity to bring an enforcement

action when the Commission has declined to do so. 52 U.S.C.

§ 30109(a)(8)(C).

CREW’s argument contradicts the principle that an

agency’s exercise of prosecutorial discretion is not subject to

judicial review. It contradicts this principle because a court may

not authorize a citizen suit unless it first determines that the

Commission acted “contrary to law” under FECA or under the

APA’s equivalent “not in accordance with law.” 52 U.S.C.

§ 30109(a)(8)(C); 5 U.S.C. § 706(2)(A). Yet to make this

determination, a court necessarily must subject the

Commission’s exercise of discretion to judicial review, which it

cannot do. That is enough to reject CREW’s argument, but two

other dispositive points deserve mention. While insisting that

the Commission’s discretionary decisions not to prosecute are

per se “contrary to law,” CREW never identifies what “law” it

has in mind. For the reasons already given, the “law” cannot be

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FECA. And it cannot be the APA.8 CREW’s argument also

flies in the face of Chaney’s holding that § 701(a)(2) bars

judicial review when there is no “law” to apply in judging how

and when an agency should exercise its discretion, 470 U.S. at

830.9 See also Overton Park, 401 U.S. at 410; Webster v. Doe,

486 U.S. at 600; Lincoln v. Vigil, 508 U.S. 182, 191 (1993).

Before we end this opinion, several additional subjects need

to be addressed. The district court held that an agency’s

“absolute discretion” to decide whether to bring an enforcement

action will be sustained unless the petitioner shows that the

Commission abused its discretion. Citizens for Responsibility

and Ethics in Washington, 236 F. Supp. 3d at 391. Both

Commission counsel and CREW have accepted the district

court’s formulation. We do not. The district court’s statement

of law is inconsistent with the precedents of this court and of the

Supreme Court. Our duty in conducting de novo review on

appeal is to resolve the questions of law this case presents. See

Elder v. Holloway, 510 U.S. 510, 516 (1994). “When an issue

or claim is properly before the court, the court is not limited to

8

 One might suppose that under § 701(a)(2), an agency’s

exercise of prosecutorial discretion merely renders the APA

inapplicable. But our decisions hold that even if the APA is out of the

picture, an agency’s prosecutorial discretion is still presumptively

immune from judicial review. See Steenholdt v. FAA, 314 F.3d 633,

638–39 (D.C. Cir. 2003); Twentymile Coal Co., 456 F.3d at 160.

9 Chaney left open the possibility that an agency

nonenforcement decision may be reviewed if “the agency has

‘consciously and expressly adopted a general policy’ that is so

extreme as to amount to an abdication of its statutory responsibilities.” 

Chaney, 410 U.S. at 833 n.4 (citing Adams v. Richardson, 480 F.2d

1159 (D.C. Cir. 1973) (en banc)). CREW cites this footnote but its

own submissions show that the Commission routinely enforces the

election law violations alleged in CREW’s administrative complaint. 

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the particular legal theories advanced by the parties, but rather

retains the independent power to identify and apply the proper

construction of governing law.” Kamen v. Kemper Financial

Services, Inc., 500 U.S. 90, 99 (1991); see also U.S. National

Bank of Oregon v. Independent Insurance Agents of America,

Inc., 508 U.S. 439, 446 (1993).

The district court’s statement embodies a contradiction: as

the court put it, an agency has “absolute discretion” when it

comes to enforcement decisions, but it is up to the court to

decide whether the agency abused its absolute discretion. The

Court in Chaney took notice of the same ostensible contradiction

between the “abuse of discretion” standard in APA § 706 and

§ 701(a)(2)’s bar against review to the extent the action is

“committed to agency discretion.” The Court then resolved the

conflict on this basis: “if no judicially manageable standards are

available for judging how and when an agency should exercise

its discretion, then it is impossible to evaluate agency action for

‘abuse of discretion.’” Chaney, 470 U.S. at 830.10

Following Chaney, this court has held that if an action is

committed to the agency’s discretion under APA

§ 701(a)(2)—as agency enforcement decisions are—there can be

no judicial review for abuse of discretion, or otherwise. 

Examples include Drake v. FAA, 291 F.3d 59, 69–72 (D.C. Cir.

2002); Steenholdt v. FAA, 314 F.3d 633, 638–39 (D.C. Cir.

2003); Secretary of Labor v. Twentymile Coal Co., 456 F.3d

151, 156 (D.C. Cir. 2006); Association of Irritated Residents v.

10 Justice Scalia, dissenting in Webster v. Doe, 486 U.S. at

609–10, offered a more detailed explanation of the “seeming

contradiction” between § 701(a)(2) and § 706. A unanimous Supreme

Court later endorsed Justice Scalia’s explanation. Lincoln v. Vigil, 508

U.S. at 191. 

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EPA, 494 F.3d 1027, 1031–33 (D.C. Cir. 2007); and Sierra Club

v. Jackson, 648 F.3d 848, 855–56 (D.C. Cir. 2011).

The upshot is that agency enforcement decisions, to the

extent they are committed to agency discretion,11 are not subject

to judicial review for abuse of discretion. It follows that CREW

is not entitled to have the court evaluate for abuse of discretion

the individual considerations the controlling Commissioners

gave in support of their vote not to initiate enforcement

proceedings. 

The dissent goes off in a different direction, one that neither

CREW nor the Commission ever argued. As the dissent sees it,

the controlling Commissioners must have rendered an

interpretation—or rather, a misinterpretation—of “political

committee” as used in FECA.12 The vote of these

Commissioners had that effect because, according to the dissent,

each Commissioner is obliged to issue or join an opinion

reaching the merits before the Commission may, in the exercise

of its prosecutorial discretion, dismiss a complaint to avoid

11 The interpretation an agency gives to a statute is not

committed to the agency’s unreviewable discretion. See Chaney, 470

U.S. at 833 n.4; Akins, 524 U.S. at 26. Thus, 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.” See FEC

v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981). 

This is what the Court meant in Akins when it wrote that although “an

agency’s decision not to undertake an enforcement action” is

“generally not subject to judicial review,” there may be such review

under FECA if—as in Akins, see note 6 supra—the agency’s action

was based entirely on its interpretation of the statute. Akins, 524 U.S.

at 26.

12 See 52 U.S.C. § 30101(4)(A); Buckley v. Valeo, 424 U.S.

1, 79 (1976).

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reaching the merits. Dis. Op. 13–17. The dissent’s position

contradicts the record, which is doubtless why neither party

mentioned it.13 But even if some statutory interpretation could

be teased out of the Commissioners’ statement of reasons, the

dissent would still be mistaken in subjecting the dismissal of

CREW’s complaint to judicial review. The law of this circuit

“rejects the notion of carving reviewable legal rulings out from

the middle of non-reviewable actions.” Crowley Caribbean

Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994); see

also Association of Civilian Technicians, Inc. v. Federal Labor

Relations Authority, 283 F.3d 339, 343–44 (D.C. Cir. 2002). In

so holding, we followed the Supreme Court’s decisions in ICC

v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 282–83

(1987), and Chaney, 470 U.S. at 827–28. (The agency in

Chaney had determined that it lacked jurisdiction but that even

if it had enforcement jurisdiction it would not exercise it. 470

U.S. at 824–25.) As to this firmly-established principle, the

dissent has nothing to say. This is odd because the principle, as

applied to this case, renders the dissent’s novel theory

superfluous.

Affirmed.

13 These Commissioners explained that they had “concluded

that any conciliation effort would be futile, and the most prudent

course was to close the file consistent with the Commission’s exercise

of its discretion in similar matters” (citing Heckler v. Chaney, 470

U.S. at 832, quoted in note 7 supra and setting forth many reasons for

an agency’s declining to bring an enforcement action). 

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PILLARD, Circuit Judge, dissenting: 

Voters have the right to know who contributes—and how 

much—to the campaigns of federal office-seekers. That right 

is only as effective as the agency that enforces it.

Congress enacted the Federal Election Campaign Act 

(FECA or Act), 52 U.S.C. §§ 30101 et seq., to prevent money 

from corrupting or appearing to corrupt candidates’ positions 

and actions in office. See generally Citizens United v. FEC, 

558 U.S. 310, 371 (2010). FECA, in turn, makes the Federal 

Election Commission (FEC, Commission, or agency) the 

primary protector of voters’ entitlement to “information ‘as to 

where political campaign money comes from and how it is 

spent by the candidate.’” Buckley v. Valeo, 424 U.S. 1, 66-67 

(1976) (quoting H.R. Rep. No. 92-564, at 4 (1971)).

But the Commission’s partisan-balanced composition and 

the political nature of the matters it regulates raise risks of

inaction. Congress wanted to prevent the agency’s frequent 

deadlock from sweeping under the rug serious campaign 

finance violations—turning a blind eye to illegal uses of money 

in politics, and burying information the public has a right to 

know. To that end, Congress provided for judicial review of 

Commission decisions not to enforce FECA.

Thus, the Act retains its bite by calling on the Commission 

to address complaints through a series of judicially reviewable 

legal determinations in sequential votes on whether there is

“reason to believe,” and then “probable cause to believe,” that 

campaign finance violations occurred. 52 U.S.C. §§

30109(a)(2), (a)(4)(A)(i). If the Commissioners deadlock on a 

vote and, consequently, dismiss the matter, the Commissioners

who vote not to proceed (Controlling Commissioners) must

explain their reasons. FEC v. Nat’l Republican Sen. Comm., 

966 F.2d 1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC, 

842 F.2d 436, 448-49 (D.C. Cir. 1988); Democratic Cong. 

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Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. 

Cir. 1987). When the Commission dismisses all or part of a 

complaint, a complainant who believes it did so in error may 

file a petition in the U.S. District Court for the District of 

Columbia. 52 U.S.C. § 30109(a)(8)(A). Courts routinely 

review such dismissals. See, e.g., Citizens for Responsibility & 

Ethics in Wash. v. FEC, 209 F. Supp. 3d. 77 (D.D.C. 2016). 

They may declare that the Commission acted “contrary to law,”

and direct the Commission to conform to that declaration. 52 

U.S.C § 30109(a)(8)(C). If the Commission fails to conform 

to the court’s order within thirty days, the statute does not force 

the agency’s hand; rather, it permits the complainant to bring a 

civil action in its own name to remedy the claimed violation. 

Id. 

My disagreement with my colleagues is, at its core, 

specific to this case—we see the facts differently. My 

colleagues do not believe that the Commission made any legal 

decision, so a fortiori they see nothing “contrary to law” and 

no reason to remand. But the Commissioners voted on a legal 

recommendation by the General Counsel and explained their 

rejection of that recommendation: According to the 

Controlling Commissioners, the facts did not add up to legal

“reason to believe” that the investigated organization—the 

Commission for Hope, Growth & Opportunity (CHGO)—may 

have operated as a “political committee.” Because it was, in 

my view, clearly contrary to FECA to find no “reason to 

believe” on these facts, I would reverse the district court’s grant 

of summary judgment and remand to the Commission. I 

believe that it is evident from the Controlling Commissioners’ 

finding and reasoning that their dismissal of CHGO’s case

depended materially on an erroneous legal view of the 

organization’s political-committee status. If, as my colleagues 

think, the Commissioners did not base their dismissal on a legal 

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interpretation, the agency could readily explain as much on 

remand.

The majority also makes a broader legal error not teed up 

by any party. The FEC, defending its action as legally correct 

and reasonable, nevertheless acknowledged that “Commission 

decisions not to prosecute, unlike those of most agencies, 

remain subject to judicial review.” FEC Br. 27. The majority, 

unbidden, departs from that well-established principle. 

Because this case, properly understood, is an unremarkable 

subject for judicial review under settled law, I spell out the 

nature of my disagreement. The court’s energetic defense of 

the FEC’s enforcement discretion in rejecting Citizens for 

Responsibility and Ethics in Washington (CREW)’s particular 

theory of this case should not be taken to foreclose judicial 

review in similar cases in the future.

Starting with a few key points of agreement will help to 

clarify where we differ:

First, as the court acknowledges, and in keeping with our 

precedent, “[t]he interpretation an agency gives to a statute is 

not committed to the agency’s unreviewable discretion.” Maj. 

Op. 11 n.11. So, when “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.” Id.; 

see id. at 7. Even as my colleagues rely on Heckler v. Chaney, 

470 U.S. 821 (1985), they note that Heckler’s brand of 

unreviewability is inapplicable “where the substantive statute 

has provided guidelines for the agency to follow in exercising 

its enforcement powers.” Maj. Op. 7 (quoting Heckler, 470 

U.S. at 833).

Second, when the FEC is deadlocked, the Controlling 

Commissioners must issue a statement of reasons explaining 

their votes, and we, the reviewing court, look to that statement 

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to assess the lawfulness of the dismissal. See Maj. Op. 4; 

Common Cause, 842 F.2d at 449; Democratic Cong. Campaign 

Comm., 831 F.2d at 1135 & n.5.

Third, when we discern legal error, we should remand to 

allow the FEC to decide how to conform. “[I]t is possible that 

even had the FEC agreed with [the correct] view of the law, it 

would still have decided in the exercise of its discretion not to”

pursue enforcement. FEC v. Akins, 524 U.S. 11, 25 (1998). 

But because “we cannot know that the FEC would have 

exercised its prosecutorial discretion in this way,” remand is 

the appropriate course. Id.

I read the Commissioners as having dismissed the case 

based on a legally erroneous view of the law. I believe we have 

an obligation to review that decision, identify the error, and 

remand to the Commission either to conform to the court’s 

declaration, or to let CREW pursue the case through a private 

right of action.

The majority, however, like the district court, sees no legal 

error because it assumes that the Commission took “no stance” 

on whether there was reason to believe that CHGO operated as 

a political committee. Citizens for Responsibility & Ethics in 

Wash. v. FEC, 236 F. Supp. 3d 378, 394 (D.D.C. 2017); see

Maj. Op. 4-5. Indeed, CREW invites that reading to the extent 

that it suggests the FEC somehow sidestepped making a no

“reason to believe” determination and dismissed “based solely 

on a choice to preserve its resources.” Appellant’s Br. 31; see 

id. at 26 (charging the district court’s approach as producing 

the “absurd” result of barring citizen suits “where the FEC does 

not reach the merits but dismisses based on its prosecutorial 

discretion”) (emphasis added).

But the majority takes an unwarranted and incorrect 

further step, parting ways with the parties and the district court,

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5

by finding the Commission’s dismissal of the complaint to be 

entirely unreviewable under Heckler, 470 U.S. 821. Compare 

Maj. Op. 7, with Citizens for Responsibility & Ethics in Wash., 

236 F. Supp. 3d at 390 (“When the FEC exercises prosecutorial 

discretion, its controlling statement of reasons must be 

sufficiently detailed so as to allow a reviewing court to 

determine why the controlling commissioners decided to 

forego prosecution.”); FEC Br. 27 (“Commission decisions not 

to prosecute, unlike those of most agencies, remain subject to 

judicial review.”); Appellant’s Br. 21 (“The standard for 

judicial review under the FECA is whether the dismissal was 

‘contrary to law.’”).

In my view, the Commission’s dismissal of the complaint 

was based on legal error and is reviewable on that ground. Per 

Section 30109(a)(2), the Commission took a statutorily defined 

action in response to the complaint and the General Counsel’s 

report: an up-or-down vote on whether there was “reason to 

believe” that CHGO had violated FECA. It was at this stage 

that the three Controlling Commissioners voted that there was 

no “reason to believe.” The Controlling Commissioners

concluded both (a) that the information before them “did not 

definitely resolve whether there was reason to believe CHGO 

was a political committee,” and (b) that, because the claims 

were also growing stale and CHGO was defunct, the case was 

not worth the FEC’s effort. Joint App’x (J.A.) 769. The

dismissal that the majority reads as based on reasons entirely 

unrelated to the strength of the evidence against CHGO appears 

on its face to have rested on the Controlling Commissioners’

antecedent legal conclusion that the record as it stood failed to 

show “reason to believe” a FECA violation occurred. J.A. 757, 

769. That conclusion can only be seen as “contrary to law.” 

52 U.S.C. § 30108(a)(9)(C).

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More fundamentally and importantly, any FEC dismissal 

based on a no “reason to believe” vote is reviewable to the 

extent that such determination was contrary to law. The way 

my colleagues avoid recognizing the legal constraints on the 

Commission is to skip over the several steps that the Act spells 

out for the FEC. See 52 U.S.C. § 30109(a)(2)-(4). Instead, 

they analyze the Controlling Commissioners’ dismissal as if it 

were a different kind of non-enforcement altogether: an 

unconstrained choice, under a different provision of the Act, 

which becomes relevant only after the FEC has passed through 

various defined steps. See id. § 30109(a)(6)(A). Viewing the 

case through that lens, the majority sees it as “obvious,” that 

“the word ‘may’” in that section of the Act “imposes no 

constraints on the Commission’s judgment about whether, in a 

particular matter, it should bring an enforcement action.” Maj. 

Op. 7. But this case stalled out on an earlier statutory 

threshold—a no “reason to believe” vote. See 52 U.S.C. § 

30109(a)(2). The law is clear that, at that earlier stage, the 

agency does not have wholly unfettered—or unreviewable—

choice as to how it proceeds. See Federal Election 

Commission, Guidebook for Complainants and Respondents of 

the FEC Enforcement Process at 12 (May 2012), 

http://fec.gov/em/respondent_guide.pdf (FEC Process 

Guidebook) (setting out Commissioners’ three choices at that 

stage: find reason to believe, exercise prosecutorial discretion 

by an affirmative vote of four Commissioners not to proceed, 

or find no reason to believe).

The Supreme Court and this court have acknowledged that 

FECA channels the agency’s exercise of prosecutorial 

discretion at various decisional stages. Arguing against 

judicial redressability in FEC v. Akins, the FEC there, like the 

majority here, contended that its dismissal of the complaint at 

issue lay in “an area generally not subject to review.” 524 U.S.

at 26. But the Supreme Court rejected that stance: It made 

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clear that, while “Heckler . . . noted that agency enforcement 

decisions have traditionally been committed to agency 

discretion, . . . [w]e deal here with a statute that explicitly 

indicates the contrary.” Id. (internal citations, quotation marks,

and alterations omitted). In so holding, the Supreme Court 

sustained the understanding of this court sitting en banc. We, 

too, had expressly distinguished Heckler, describing FECA as

having “an unusual statutory provision which permits a 

complainant to bring to federal court an agency’s refusal to 

institute enforcement proceedings challenging the 

Commission’s interpretation of the term ‘political 

committee.’” Akins v. FEC, 101 F.3d 731, 738 (D.C. Cir. 

1996) (en banc) (citations omitted); see Orloski v. FEC, 795 

F.2d 156, 161 (D.C. Cir 1986). 

The FEC enjoys considerable discretion. It has discretion 

in promulgating regulations and policies to effectuate the 

statutory provisions governing campaign finance. It has 

discretion in how it reasonably applies those rules to the facts 

of the cases that come before it. And, where it finds violations, 

it has discretion to decide whether, at the end of the day, to file 

suit. See 52 U.S.C. § 30109(a)(6)(A); Maj. Op. 7. But the 

agency’s discretion is less than absolute at several points, 

including the one at issue in this case. When the agency votes

on whether there is “reason to believe” that a violation of FECA 

has occurred, it must give reasons for that action that are 

subject to judicial review. See U.S.C. § 30109(a)(2)-(4). 

Given everything that was not before us in this case (due to the 

mismatch between the opinion and what was briefed), today’s 

majority should not be read to shut down that review.

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I. The Federal Election Commission Acted Contrary to 

Law

The FEC came to consider the case of the Commission on 

Hope, Growth and Opportunity when it received a complaint 

alleging that the organization, which registered as a 501(c) nonprofit, was operating as a fly-by-night political committee, in 

contravention of FECA. The FEC General Counsel 

recommended that the Commission find reason to believe that 

CHGO was a political committee that violated its obligations 

under the Act.

A. The Federal Election Campaign Act Supplies Law 

to Apply

Since its enactment in 1972 and amendment in 1974, 

FECA has promoted transparency of funding in federal 

elections. See McConnell v. FEC, 540 U.S. 93, 117-19 (2003). 

The law requires, for example, “[e]very person” who engages 

in independent campaign-related expenditures to make certain 

disclosures and disclaimers. See 52 U.S.C. § 30104(c)(1), 

(f)(1); see generally Citizens United, 558 U.S. at 366-71. 

Groups acting as “political committees” must make “similar”

disclosures and disclaimers. SpeechNow.org v. FEC, 599 F.3d 

686, 696 (D.C. Cir. 2010); see Supplemental Explanation & 

Justification, Political Committee Status, 72 Fed. Reg. 5595, 

5596 (Feb. 7, 2007) (2007 E&J). Any such group must also 

register and keep records of its contributions, and disclose 

donors of more than $200. 52 U.S.C. § 30104(b)(3); see id. §§ 

30103-30104. 

FECA defines as a “political committee” any organization 

that receives or spends more than $1,000 annually, id. 

§ 30101(4)(A); see id. §§ (8)(A), (9)(A), and has a “major 

purpose” of nominating or electing federal candidates, 2007 

E&J, 72 Fed. Reg. at 5601, 5605. In applying the so-called 

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“major purpose test,” the agency is committed to a “factintensive inquiry” into each group’s “overall conduct.” 2007 

E&J at 5601-02, 5605; id. at 5597; see also Shays v. FEC, 511 

F. Supp. 2d 19, 24 (D.D.C. 2007) (Shays II); id. at 31 (referring 

to political committee status is a “legal issue” that is 

“multifaceted”). The test requires the Commission to examine 

direct and indirect evidence of purpose, including the 

organization’s “public statements” and “organizational 

statements of purpose,” together with its “contribution[s] and 

“expenditure[s]” related to “federal campaign activity.” 2007 

E&J, 72 Fed. Reg. at 5595, 5597, 5601, 5605. The FEC looks 

to how the group’s overall “campaign activities compare[] to 

its activities unrelated to campaigns.” Id. at 5601-02; see Shays 

II, 511 F. Supp. 2d at 30; see also Free Speech v. FEC, 720 

F.3d 788, 798 (10th Cir. 2013); Real Truth About Abortion, Inc. 

v. FEC, 681 F.3d 544, 556-57 (4th Cir. 2012); Citizens for 

Responsibility & Ethics in Wash., 209 F. Supp. 3d. at 93.

The fact that the Commission makes its legal 

determinations in the form of a “reason to believe” or “probable

cause” inquiry does not place such actions among “those rare 

instances where ‘statutes are drawn in such broad terms that in 

a given case there is no law to apply.’” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). Neither

does the fact-intensive character of those determinations make 

them non-legal. A decision that there is no “reason to believe”

that an entity is a political committee is no less a determination 

of law—and no less subject to judicial review—than a simple 

determination that it is not a political committee. See Ornelas 

v. United States, 517 U.S. 690, 699 (1996) (holding that 

“determinations of reasonable suspicion and probable cause 

should be reviewed de novo”). Courts routinely review no

“reason to believe” dismissals. See, e.g., Common Cause, 842 

F.2d at 449; Democratic Cong. Campaign Comm., 831 F.2d at 

1133; Citizens for Responsibility & Ethics in Wash, 209 F. 

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Supp. 3d. 77. And we have expressly “decline[d] . . . to 

distinguish deadlock dismissals which run contrary to General 

Counsel recommendations based on clear legal precedent and 

[those that run contrary to] General Counsel’s less definitive 

assessment of what the law requires in light of the factual 

allegations in the case.” Common Cause, 842 F.2d at 449.

It is beyond debate that Congress, in enacting FECA, 

supplied meaningful standards against which it expected courts 

to evaluate the Commission’s no “reason to believe”

dismissals.

B. The Facts the FEC General Counsel Uncovered 

About CHGO Provide “Reason to Believe”

The following facts about the Commission on Hope, 

Growth and Opportunity, as reported by the FEC General 

Counsel, are largely undisputed. Citizens for Responsibility & 

Ethics in Wash., 236 F. Supp. 3d at 384.

For an organization that apparently had no records 

retention policy, see J.A. 551, the direct evidence here was 

telling. In planning documents, CHGO declared its goal to 

“make a measurable impact on the election outcome in 

selectively identified Senate races,” J.A. 520, “us[ing] express 

advocacy in targeted Senate races,” J.A. 514, and “focusing on 

. . . key districts to support the election of Republican 

candidates,” J.A. 578; see generally J.A. 514-15, 652. The 

FEC General Counsel meanwhile found no documents

“reflect[ing] that CHGO’s purpose was, as it claimed [in its 

filings before the FEC], solely to educate the public on matters 

of economic policy formulation.” J.A. 653.

Other evidence supplied yet more reason to suspect that 

CHGO was concealing its true nature. In response to 

questioning from the FEC, CHGO’s general counsel 

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represented that he had “no relevant information or records” 

and “did not know who would have that information” in spite 

of repeated notices, previously sent by the Commission,

instructing the organization to “preserve records . . . as required 

by law.” J.A. 644 & n.9. When the FEC tried to subpoena a 

vendor CHGO had identified as producing non-campaignrelated communications, the putative vendor’s offices were 

vacant. J.A. 505. No such vendor had “[]ever rented [that] 

office space.” J.A. 505. Instead, the tenant was a well-known 

political strategist. J.A. 505.

What is more, the people CHGO named in its IRS filings 

as its leadership denied to the FEC General Counsel having any 

real authority over CHGO’s actions; and the people they

identified as really running the show were political operatives. 

See J.A. 493-94, 546-52, 808-09. The man listed on CHGO’s

tax filings as its President and Executive Director told 

investigators that he had “been associated” with the group but 

had not exercised control over its activities. J.A. 493-94, 809. 

He said he was just the “creative person” and described his job

as “plac[ing] . . . TV ads.” J.A. 493-94, 547. The man listed 

as CHGO’s Treasurer in its IRS application for tax-exempt 

status, J.A.794, reported that he handled some “accounting and 

tax work” for CHGO, but “probably” never interacted with the 

organization’s putative president, J.A. 496. CHGO’s general 

counsel, meanwhile, said he “just handled compliance issues” 

and disavowed any role in reviewing or preparing documents 

relating to the “funding, production or placement” of 

advertisements CHGO ran. J.A. 500-01, 555. This lawyer 

reported that he “did not know” who was in charge. J.A. 501. 

Looking also at the organization’s balance sheet for insight 

into its major purpose, the FEC General Counsel was able to 

confirm that a significant majority—at minimum 61 percent—

of the organization’s expenditures went to federal election 

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related communications. J.A. 737. “[O]ne thing is clear,” 

wrote the General Counsel, “a definite majority of CHGO’s 

spending was on activities that reflect the major purpose of 

influencing federal elections.” J.A. 738. 

Putting that 61 percent expenditure figure together with 

the direct and other circumstantial evidence, the General 

Counsel recommended that the Commission find “reason to 

believe” that CHGO may have been a political committee. 

C. The Federal Election Commission’s Legal Error at 

the “Reason to Believe” Stage

FECA calls on the FEC Commissioners to vote, based on 

the recommendation of the General Counsel, as to whether 

there is “reason to believe that a person has committed, or is 

about to commit, a violation of th[e] Act.” 52 U.S.C. §

30109(a)(2); see FEC Process Guidebook at 12. The

Controlling Commissioners here voted that there was no 

“reason to believe” that CHGO was a political committee and 

issued a statement of reasons. J.A. 757-58.

That statement makes clear that the Controlling 

Commissioners, in evaluating the strength of the claim against 

CHGO, did not correctly apply the Commission’s own “major 

purpose” test. They did not consider the organization’s direct 

statements that CHGO had a “goal” of affecting federal races,

the conduct of CHGO’s leadership, or the overwhelming 

suggestions that everyone involved was trying to hide 

something. Ignoring that direct and circumstantial evidence 

runs contrary to the FEC’s rule, see 2007 E&J at 5595-97, as 

well as the precedent that the Controlling Commissioners cited 

for support, J.A. 768 & n.13 (Statement of Reasons of 

Chairman Lee E. Goodman and Commissioners Caroline C. 

Hunter and Matthew S. Peterson, MUR 6538 (Americans for 

Job Security) (analyzing organizational statements in 

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13

determining major purpose) (AJS Statement)); J.A. 769 & n.17.

Even looking only to the balance sheet, the Commissioners’

conclusion—that 61 percent of total spending on express 

advocacy for federal candidates did not evince a “major 

purpose”—runs counter to FEC precedent and applicable law. 

See, e.g., AJS Statement at 12; compare J.A. 769 n.16 

(suggesting that certain commission payments to political 

strategists might raise “novel” legal issues), with 11 C.F.R. 

§ 100.111(a) (counting as a relevant expenditure “any 

purchase, payment, distribution, loan . . . , advance, deposit, or 

gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office”). 

Informed by their fundamentally flawed “major purpose” 

analysis, the Controlling Commissioners reasoned that any 

violations of FECA’s political-committee requirements were 

not “obvious” and that “the information learned during [the 

investigation] did not definitely resolve whether there was 

reason to believe CHGO was a political committee . . . .” J.A. 

769. In fact, there was no reason to believe anything else.

II. This Case is Subject to Judicial Review under the 

Federal Election Campaign Act

The court today declares the unreviewability of the FEC’s 

dismissal. My colleagues see no “law” that the Controlling 

Commissioners could have contravened (and, admittedly, 

CREW was less than crystalline on the point). See Maj. Op. 8. 

But the law itself is clear: After receiving a complaint and a 

General Counsel report recommending further proceedings (or 

not), the Commission votes on whether there is “reason to 

believe” that a violation of FECA has occurred. See 52 U.S.C. 

§ 30109(a)(2); FEC Process Guidebook, at 12-13. In cases in 

which the Commissioners find no reason to believe and dismiss 

the complaint, they must explain the basis of their action to

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enable judicial review. See Common Cause, 842 F.2d at 449; 

Democratic Cong. Campaign Comm, 831 F.2d at 1135 & n.5. 

The Commission’s action dismissing a complaint in those 

circumstances is “contrary to law” when it is based on a failure 

to faithfully apply FECA to the facts. See 52 US.C. 

§ 30109(a)(8)(C). FECA provides that, “[i]f the Commission . 

. . determines . . . that it has reason to believe that a person has 

committed . . . a violation of [FECA],” such as by unlawfully 

operating as a political committee, “the Commission shall” 

provide notice and “shall make an investigation.” Id. 

§ 30109(a)(2). If, when considering whether there is “reason 

to believe” that an organization operates as a political 

committee, the Commission does not evaluate the 

organization’s “major purpose” as shown by its “overall 

conduct”—including “public statements,” “internal 

documents,” official filings, and “expenditures,” 2007 E&J, 72 

Fed. Reg. at 5597, 5605—then the Commission has acted 

contrary to law.

Here, the Commission voted on whether there was “reason 

to believe” that CHGO was a political committee. J.A. 757. 

Totality-of-the-circumstances decisions whether there is 

reason to believe a group may have been a political committee 

are reviewed as questions of law. The Controlling 

Commissioners answered the “reason to believe” question in 

the negative—voting that there was no “reason to believe” that 

CHGO may have been a political committee and dismissing the 

case—because they thought the evidence was insufficient to 

“resolve” the question. J.A. 757, 769. On this record, that 

result cannot be squared with the law.

Where the FEC makes a determination about the law in 

finding no “reason to believe,” we may review the dismissal. 

In FEC v. Akins, the Supreme Court rejected the notion that the 

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FEC’s dismissal of a complaint upon a finding of no “probable 

cause to believe” that the organization at issue was a political 

committee would be an unreviewable exercise of enforcement 

discretion, so unredressable. 524 U.S. at 25-26. “We deal 

here,” the Court wrote, “with a statute that explicitly indicates 

the contrary.” Id. at 26. Far from “committing” FEC nonenforcement decisions to the agency’s discretion, the FECA

requires the agency to take certain steps where there is “reason 

to believe” a violation has occurred. See 52 U.S.C. § 

30109(a)(2). And it establishes judicial review of dismissals.

52 U.S.C. § 30109(a)(8)(A). The Act provides that “[a]ny 

party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . may file a petition with the 

United States District Court for the District of Columbia.” Id.

Further, “the court may declare that the dismissal of the 

complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 

days, failing which the complainant may bring . . . a civil action 

to remedy the violation involved in the original complaint.” Id.

§ 30109(a)(8)(C).

In a series of decisions, we have explained the importance 

of this judicial check. In Democratic Congressional Campaign 

Committee v. FEC, we held that FECA’s “judicial review 

prescription” calls for review of an FEC dismissal that is, as 

here, “due to a deadlock”—that is, a three-to-three tie vote by 

the Commissioners. 831 F.2d at 1133. In so doing, this court 

expressly rejected the FEC’s argument, “citing Heckler v. 

Chaney, that deadlocks on the Commission are immunized 

from judicial review because they are simply exercises of 

prosecutorial discretion” rather than legal determinations 

whether there is “reason to believe.” Id. This court instead 

suggested that FECA calls for judicial review: “[W]here the 

Commission is unable or unwilling to apply settled law to clear 

facts, judicial intervention serves as a necessary check against 

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arbitrariness.” Id. at 1135 n.5 (internal quotation marks 

omitted).

The next year, in Common Cause v. FEC, 842 F.2d 436, 

we reaffirmed the crucial role of judicial review in FECA’s 

scheme. The Commission there had dismissed a complaint via

deadlocked vote, contrary to the General Counsel’s 

recommendation to find “reason to believe.” We held that the 

Act requires the FEC to provide a statement of reasons even 

where the implicated questions of campaign finance are 

unsettled or fact-intensive; such a statement is necessary “to 

allow meaningful judicial review of the Commission’s decision 

not to proceed.” Id. at 449. Judicial review ensures that the 

agency does not, by unlawfully dismissing complaints, 

frustrate the statutory scheme and undermine enforcement.

So, too, here, the Commission’s decision to dismiss as a 

result of the deadlocked “reason to believe” vote is not a matter 

“committed to agency discretion” under FECA. There is a 

strong presumption that agency action is reviewable. Abbott 

Labs. v. Gardner, 387 U.S. 136, 140 (1967); see also Citizens 

to Preserve Overton Park, Inc., 401 U.S. at 410. Heckler is the 

exception, and its “non-reviewability only applies where the 

governing statute’s enforcement provision describes the 

agency’s role as discretionary.” Ass’n of Irritated Residents v. 

EPA, 494 F.3d 1027, 1032 (D.C. Cir. 2007). The Supreme 

Court, in Heckler, acknowledged reviewability of nonenforcement where the relevant statute constrains the agency’s 

discretion. 470 U.S. at 833-34. The Court in Heckler

distinguished Dunlop v. Bachowski, 421 U.S. 560 (1975), 

where the statute directed the Secretary to investigate 

complaints and provided that “if he finds probable cause to 

believe that a violation . . . has occurred . . . he shall” pursue 

enforcement. Heckler, 470 U.S. 833-34 (alterations in original) 

(quoting 29 U.S.C. § 482(b)); see also Dunlop, 421 U.S. at 562-

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63 & n.2. Where the Secretary declined to proceed through the

defined statutory checkpoint, “‘the principle of absolute 

prosecutorial discretion’ [was] inapplicable.” Id. at 834 

(quoting Bachowski v. Brennan, 502 F.2d 79, 87 (3d Cir. 

1974)).

As was the case in Dunlop, the FECA provision at issue 

here provides law for the agency and the court to apply, and 

calls for judicial review of dismissals. See supra Part I.A. 

After it receives a General Counsel recommendation regarding

a complaint, the agency votes on whether there is “reason to 

believe” that a violation of FECA may have occurred. See 52 

U.S.C. § 30109(a)(2); FEC Process Guidebook, at 12-13. If 

there is reason to believe, the Commission must take further 

steps. See 52 U.S.C. § 30109(a)(2)-(4); FEC Process 

Guidebook, at 12. The Commission may depart from the 

General Counsel’s recommendation to find “reason to believe,” 

but it must explain any decision to do so. See Common Cause, 

842 F.2d at 449; Democratic Cong. Campaign Comm., 831 

F.2d at 1135 & n.5. Judicial review ensures that, if the 

Commission erred in its reasoning—dismissing a matter under 

a faulty view of the law where there is, in fact, “reason to 

believe” that a violation may have occurred—the matter is 

remanded to the agency so that it may reconsider its decision. 

See Akins, 470 U.S. at 25-26.

The statute elsewhere compensates in various ways for 

those curtailments of enforcement discretion. If it chooses not

to vote “yes” or “no” on “reason to believe,” the Commission 

has a third option: “Pursuant to an exercise of 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.” FEC Process

Guidebook at 12. If a court declares a Commission’s dismissal

to be “contrary to law,” the statute contemplates that the 

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Commission may decline to act in accordance with that 

directive. 52 U.S.C. § 30109(a)(8)(C). The complainant may

then sue in his or her own name to remedy the claimed 

violation. Id. As CREW observes, the Act’s limited private 

right of action helps to prevent cooptation of agency resources. 

Id. Finally, if a complaint passes through all the prescribed 

checkpoints—from “reason to believe” to conciliation—the 

Commission enjoys ultimate non-enforcement discretion: It is 

the Commissioners’ option whether to institute a civil action in 

court. See 52 U.S.C. § 30109(a)(6)(A).

As the Supreme Court explained in Akins—and the FEC 

confirmed at oral argument, Oral Arg. Rec. at 44:03-44:18—

courts may review for legal error dismissals at FECA’s defined 

steps. 524 U.S. at 26. Where the court finds legal error, the 

statute provides that the court should remand so that the 

Commissioners may reassess their action with a correct view 

of the law in mind: While “it is possible that even had the FEC 

agreed with [the correct] view of the law, it would still have 

decided in the exercise of its discretion not to” pursue 

enforcement, “we cannot know that the FEC would have 

exercised its prosecutorial discretion in this way.” Id. 

Here, as in Akins, we cannot know the counterfactual. We 

cannot be certain what the FEC would have done had it 

correctly applied the legal definition of political committee. In 

this case, all six commissioners voted to investigate the 

“obvious” violations of the requirement to disclose 

independent expenditures. If the Controlling Commissioners 

had not labored under a view of CHGO’s political-committee 

status that was contrary to law, a majority might well have 

proceeded with that claim, too, as “obvious.” J.A. 769.

The majority miscasts this case in the Heckler mold. 

CREW admittedly sidestepped any argument on the “reason to 

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19

believe” question—instead framing its case as a direct and 

wholesale challenge to the agency’s enforcement discretion. 

So it is perhaps understandable that my colleagues turn to

FECA Section 30109(a)(6)(A)’s separate provision granting 

the FEC discretion whether to file suit in federal court. The 

parties did not focus on, and the court leaves untouched, how

the action the Commission took here—a vote keyed to a 

specific legal question, i.e., “reason to believe”—calls for 

judicial review. I trust that, in future cases, the court will

continue, consistent with existing law, to review legal 

determinations that the Commissioners make when they vote 

on the merits of “reason to believe” or “probable cause” 

questions, see 52 U.S.C. § 30109(a)(2)-(6); R. Sam Garrett, 

Cong. Res. Serv., The Federal Election Commission: 

Enforcement Process and Selected Issues for Congress 5-6 

(Dec. 22, 2015) (citing 52 U.S.C. § 30109; FEC Process 

Guidebook), and that they will continue to explain their 

decisions, see Common Cause, 842 F.2d at 449; Democratic 

Cong. Campaign Comm., 831 F.2d at 1135 & n.5. After all, 

these constraints reflect Congress’s judgment that judicial 

review is required, in part, “to assure . . . that the Commission 

does not shirk its responsibility” to pass on the merits of 

complaints. Democratic Cong. Campaign Comm., 831 F.2d at

1134 (quoting 125 Cong. Rec. 36,754 (1979)); see id. at 1135 

& n.5. 

My colleagues do not grapple with these questions—they 

remain for future cases. Instead, the court points to non-FECA 

decisions readily distinguishable from this one and to which no 

party cited. E.g. Maj. Op. 10-12 (citing Ass’n of Irritated 

Residents, 494 F.3d at 1032 (holding non-enforcement decision 

unreviewable where statute provided that Secretary “‘may’

take any number of enforcement actions”); Sec’y of Labor v. 

Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C. Cir. 2006) 

(vacating Mining Commission’s reversal of Labor Secretary’s 

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citation of mine operator under statute that “provides no 

meaningful standard against which to judge the Secretary’s 

decision regarding which party to cite”); Steenholdt v. FAA, 

314 F.3d 633, 638 (D.C. Cir 2003) (denying review of agency’s 

nonrenewal of petitioner’s authorization under provision 

granting the Administrator authority to rescind such 

authorization “for any reason the Administrator considers

appropriate” (quoting 49 U.S.C. § 44,702(d)(2)); Drake v. 

FAA, 291 F.3d 59, 69-72 (D.C. Cir 2002) (affirming agency 

dismissal of complaint without investigation under provision 

authorizing dismissal when Secretary “is of the opinion that the

complaint does not . . . warrant investigation or action” 

(quoting 49 U.S.C. § 46,101(a)(3)) (emphasis in Drake)); 

Sierra Club v. Jackson, 648 F.3d 848, 856 (upholding agency 

inaction where the statute tasks the administrator to “take such 

measures . . . as necessary” but without “guidance . . . as to 

what action is ‘necessary’”); Crowley Caribbean Transp., Inc. 

v. Peña, 37 F.3d 671, 672, 676 (D.C. Cir. 1994) (reading 

Heckler to apply where “the relief sought by petitioner” was 

the initiation of a discretionary “enforcement action,” but the 

Administrator did not view the complained-of conduct as 

properly within the statute).

The myriad statutes that permit largely unfettered, and 

therefore unreviewable, discretion do not speak to FECA. 

There can be no serious claim that FECA equates a “no reason 

to believe” vote to an exercise of unfettered enforcement 

discretion. To the contrary, the Act explicitly provides for 

judicial review of dismissals based on those votes. On

Heckler’s own logic, then, FECA’s constrained agency nonenforcement is judicially reviewable and, if contrary to law, 

subject to remand. Heckler, 470 U.S. at 833-34. It remains for 

us to conduct such review in future cases that warrant it.

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III. Conclusion

Under the correct standards, undeniable “reason to 

believe” that CHGO operated unlawfully as a political 

committee should have prompted further investigation and 

perhaps enforcement by the FEC. The court rests its decision 

today on its view that the FEC sidestepped the merits wholesale 

and exercised prosecutorial discretion untainted by an 

erroneous view of the law. Critically, the majority preserves

judicial review where “the Commission declines to bring an 

enforcement action on the basis of its interpretation of FECA.” 

Maj Op. 11 n.11. I think this is such a case. I read the 

Controlling Commissioners as having held a clear but incorrect 

view of the law that informed their dismissal. That decision 

should have been reviewed, reversed, and remanded to the 

FEC.

Absent argument from any party, my colleagues have 

reached out to suggest that any Commission dismissal guided 

by discretionary considerations is unreviewable. I have here

explained why FECA’s statutory scheme—and its various 

limitations on non-enforcement discretion—place cases like 

this one outside Heckler’s ambit. I believe that, in future cases

where the parties tee up this issue, Heckler will not bar our 

review.

The end of CHGO’s story remains a mystery. The group 

dissolved within several months of learning that it remained the 

subject of FEC investigation. Political operatives involved 

with the group exchanged frantic emails stating that it was 

urgent to “shut it down” and “[r]eally important . . . to get this 

terminated ASAP.” J.A. 636. The organization lasted only one 

federal election cycle and managed to slip into the shadows 

without the scrutiny FECA requires. But the court’s holding 

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today should not be mistaken to mean that other organizations 

may do the same.

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