USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 1 of 66 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5277 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

END CITIZENS UNITED PAC, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

NEW REPUBLICAN PAC, 

Intervenor-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:21-cv-2128-RJL 

Before the Honorable Richard J. Leon 

PETITION FOR REHEARING EN BANC 

Adav Noti 

Kevin P. Hancock 

Alexandra Copper 

CAMPAIGN LEGAL CENTER ACTION 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

khancock@campaignlegalcenter.org 

Counsel for Petitioner 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 2 of 66 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................... iii 

GLOSSARY OF ABBREVIATIONS.......................................................................v 

INTRODUCTION AND RULE 35(b) STATEMENT..............................................1 

BACKGROUND .......................................................................................................3 

REASONS FOR GRANTING REHEARING EN BANC........................................7 

I. Immunizing the Commission’s Legal Errors from Review Contravenes 

FECA and Controlling Precedent....................................................................7 

II. The Split-Panel Decision Vitiates FECA’s Enforcement Scheme and the 

Critically Important Interests It Serves..........................................................15 

CERTIFICATE OF COMPLIANCE.........................................................................a 

CERTIFICATE OF SERVICE ..................................................................................b 

ADDENDUM ............................................................................................................c 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............d 

CONCLUSION....................................................................................................... 18 

CORPORATE DISCLOSURE STATEMENT ......................................................... f 

PANEL DECISION ...................................................................................................g 

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TABLE OF AUTHORITIES 

*Authorities upon which appellant principally relies are marked with an asterisk 

Cases: Page 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc)..........................................14 

Buckley v. Valeo, 424 U.S. 1 (1976)........................................................................17 

Campaign Legal Ctr. v. FEC, 89 F.4th 936 (D.C. Cir. 2024) ...................................2 

Campaign Legal Ctr. & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020)......................................................................11, 12 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995).............................2, 9 

CREW v. Am. Action Network, 590 F. Supp. 3d 164 (D.D.C. 2022).......................11 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”)......................1, 3, 8, 12 

CREW v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) (“Commission on Hope II”) .......... 1-2, 3, 12, 15 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) (“New Models”)...........................1, 10, 11, 12, 13 

CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) (“New Models II”)........... 2, 3, 4, 9, 12, 13, 16, 17 

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018)....................................................................11 

*Democratic Congressional Campaign Committee v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”)......................................................2, 9 

End Citizens United PAC v. FEC, 

90 F.4th 1172 (D.C. Cir. 2024).................... 1, 2, 4, 7, 8, 9, 10, 12, 13, 14, 15, 16 

*FEC v. Akins, 524 U.S. 11 (1998) ...........................................................2, 9, 10, 14 

Heckler v. Chaney, 470 U.S. 821 (1985)...........................................1, 5, 7, 8, 10, 11 

I.C.C. v. Bhd. of Locomotive Engineers, 482 U.S. 270 (1987)................................14 

Lieu v. FEC, 370 F. Supp. 3d 175 (D.D.C. 2019) ...................................................11 

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)............................................. 2, 9-10 

Pub. Citizen v. FEC, 547 F. Supp. 3d 51 (D.D.C. 2021).........................................11 

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SEC v. Chenery Corp., 332 U.S. 194 (1947)...........................................................14 

Statutes: 

52 U.S.C. § 30102(e)(1)............................................................................................ 4 

52 U.S.C. § 30103(a) ................................................................................................ 4 

52 U.S.C. § 30104(a) ................................................................................................ 4 

*52 U.S.C. § 30109(a)(8).......................................................................... 3, 4, 10, 11 

52 U.S.C. § 30109(a)(8)(A) .................................................................................... 15 

52 U.S.C. § 30109(a)(8)(C) ................................................................................ 9, 15 

Other Materials: 

Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (No. 96-1590), 1997 WL 

523890 (Aug. 21, 1997)......................................................................................10 

Reply Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (No. 96-1590), 1997 

WL 675443 (Oct. 30, 1997)................................................................................10 

Statement of Reasons of Chair Lee Goodman & Comm’rs Caroline C. 

Hunter and Matthew S. Petersen, MUR 6396 (Crossroads GPS) (Jan. 8, 

2014), https://www.fec.gov/files/legal/murs/6396/14044350970.pdf ...............11 

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GLOSSARY OF ABBREVIATIONS 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

PAC Political Committee 

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INTRODUCTION AND RULE 35(b) STATEMENT 

Rehearing is necessary to correct a line of decisions that eviscerates a critical 

Federal Election Campaign Act (FECA) provision allowing courts to review Federal 

Election Commission (FEC) decisions not to enforce the campaign-finance laws. 

Congress designed the FEC so that it could not act without bipartisan agreement 

among a majority of its six members. As “the countermeasure to otherwise 

predictable deadlock” created by that structure, Congress also empowered courts to 

“prod a reluctant FEC to act” on plausible claims, and private actors to pursue such 

claims when the FEC refuses. End Citizens United PAC v. FEC, 90 F.4th 1172, 1188 

(D.C. Cir. 2024) (ECU) (Pillard, J., dissenting). 

For decades, the Supreme Court and this Court have interpreted FECA’s 

judicial-review provision as rebutting the presumption of nonreviewability 

established in Heckler v. Chaney, 470 U.S. 821 (1985). But starting in 2018, splitpanel rulings in CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models”), and 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”),1 took a 

“wrong turn.” ECU, 90 F.4th at 1188 (Pillard, J., dissenting). Simply put, the CREW 

cases went wrong by “[g]iving a non-majority of the [c]ommissioners enforcement 

discretion,” CREW v. FEC, 923 F.3d 1141, 1144 (D.C. Cir. 2019) (en banc) (Pillard, 

To differentiate between cases brought by CREW, this petition refers to each 

by the name of the administrative respondent, and to the decisions collectively as the 

“CREW” cases. 

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J., dissenting from denial of rehr’g en banc) (“Commission on Hope II”), thereby 

“arm[ing] an agency minority with what is in effect a judicial-review kill switch,” 

CREW v. FEC, 55 F.4th 918, 922 (D.C. Cir. 2022) (“New Models II”) (Millet, J., 

dissenting from denial of rehr’g en banc). Exercising this new-found power granted 

by the CREW cases, partisan-aligned non-majority blocs may now vanquish 

challenges to their legal interpretations by simply cloaking them in the “magic 

words” of prosecutorial discretion. 

As this case and others demonstrate, the CREW rulings “continue to call out 

for correction.” ECU, 90 F.4th at 1188 (Pillard, J., dissenting).2 First, like the CREW 

rulings on which it relies, the split-panel decision here “[c]onflict[s] with FECA’s 

terms, structure, and purpose; with the Supreme Court’s decision in [FEC v.] Akins, 

524 U.S. 11 [(1998]; and with [this Circuit’s] decisions in Chamber of Commerce v. 

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 v. FEC, 

795 F.2d 156 (D.C. Cir. 1986).” ECU, 90 F.4th at 1184 (Pillard, J., dissenting). 

Second, restoring FECA’s judicial-review provision is an issue of exceptional 

importance. By “effectively scuttl[ing] FECA’s enforcement mechanism,” id., the 

Contemporaneously with this petition, appellant in Campaign Legal Center v. 

FEC, No. 22-5339, is also seeking en banc review of the panel decision in 89 F.4th 

936 (D.C. Cir. 2024), which, like the split-panel ruling here, applies and extends the 

CREW cases. 

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CREW decisions gut FECA’s campaign-finance restrictions and transparency 

requirements—“laws that protect the electoral building blocks of our democracy,” 

New Models II, 55 F.4th at 932 (Millett, J., dissenting from denial of rehr’g en banc). 

The Court should grant rehearing en banc. 

BACKGROUND 

1. “The Federal Election Commission is entrusted with the weighty 

responsibility of ensuring public transparency and accountability by those 

individuals and entities expending significant sums of money on our Nation’s 

elections.” New Models II, 55 F.4th at 922 (Millett, J., dissenting from denial of 

rehr’g en banc). Congress, mindful that the Commission’s partisan-balanced 

structure created a propensity for gridlock, gave the agency initial enforcement 

responsibility under FECA but crafted an unusual judicial-review provision, 52 

U.S.C. § 30109(a)(8), to ensure proper implementation of the Act. 

As a bulwark against “partisan gamesmanship,” Commission on Hope II, 923 

F.3d at 1142 (Griffith, J., concurring), and to “prevent the agency’s frequent 

deadlock from sweeping under the rug serious campaign finance violations,” 

Commission on Hope, 892 F.3d at 442 (Pillard, J., dissenting), Congress authorized 

complainants to seek judicial review when “aggrieved by” the dismissal of their 

enforcement complaints, and created a private right of action triggered only if, 

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following review, the Commission fails to conform to a court order holding the 

challenged agency decision “contrary to law.” See 52 U.S.C. § 30109(a)(8). 

The special review provision Congress devised thus bears two unique 

features. First, “to avoid nullification of FECA by a non-majority bloc of 

commissioners refusing to act on apparent violations of campaign-finance laws, 

Congress made such refusals to act—no matter the reason—reviewable in court.” 

ECU, 90 F.4th at 1184 (Pillard, J., dissenting). Second, if the reviewing Court 

“detect[s] statutory misreading” but the agency fails to correct its error, “the court’s 

ruling paves the way for private enforcement.” Id. at 1187. Under this scheme, the 

Commission enjoys “the right of first refusal on enforcement,” but “no court will 

force it” to bring an enforcement action if it declines to do so following judicial 

review. New Models II, 55 F.4th at 929 (Millett, J., dissenting from denial of rehr’g 

en banc). 

2. In 2018, Plaintiff-Appellant End Citizens United PAC filed an FEC 

complaint alleging that U.S. Senator Rick Scott, his campaign, and New Republican 

PAC (a Scott-aligned super PAC) violated FECA during Scott’s 2018 Senate 

campaign. JA118-22. Under FECA, once a person receives or spends more than 

$5,000 for the purpose of influencing a federal election, that person must file a 

statement of candidacy and create a campaign committee, which must file regular 

disclosure reports with the FEC. 52 U.S.C. §§ 30102(e)(1), 30103(a), 30104(a). In 

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addition, the candidate becomes subject to FECA’s soft-money ban, which bars 

candidates and their agents from raising and spending money that is not restricted 

by FECA’s limits on contribution sources and amounts. 52 U.S.C. § 30125(e)(1). As 

the complaint alleges, Scott violated these provisions by delaying his statement of 

candidacy and other related filings (“Filing Claims”) while outsourcing his putative 

campaign’s fundraising to New Republican, which raised millions outside FECA’s 

limits that would later be spent on the Scott campaign (“Soft-Money Claims”). 

JA118-22. 

The FEC’s General Counsel recommended finding reason to believe the 

respondents violated FECA. JA210. The FEC deadlocked 3-3 on a motion to 

approve that recommendation, with the agency’s three Republican commissioners 

voting against. JA270-71. A month later, the FEC again deadlocked along partisan 

lines on whether to dismiss the Filing Claims “under Heckler v. Chaney.” JA272. 

(The agency did not vote whether to dismiss the Soft-Money Claims under Chaney. 

See id.) In light of these deadlocks, the FEC then voted 5-1 to “[c]lose the file” on 

the administrative complaints, thereby dismissing them. JA273. 

Later, the three “controlling” commissioners, who voted against reason-tobelieve and for the failed Heckler v. Chaney motion, issued a Statement of Reasons 

(“Statement”) explaining the basis for their decision. JA281-91. The Statement 

provides more than five pages of “Legal Analysis” claiming FECA was not violated. 

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JA285-90. That analysis acknowledges that “significant evidence of Scott’s potential 

earlier candidacy” exists given that Scott served as chair of New Republican for 

seven months while the super PAC raised funds that were later spent on Scott’s 

campaign. JA290. Even though FECA and FEC regulations allow such objective 

evidence to support a candidacy finding, the Statement incorrectly concludes that 

the FEC would be required to “probe [Scott’s] subjective intent” to determine when 

he became a candidate during his seven months at New Republican PAC. Id. 

Premised solely on that incorrect legal interpretation, the controlling commissioners 

then purported to invoke “our prosecutorial discretion,” claiming that an 

investigation into Scott’s subjective intent would be too costly and “invasive.” Id. 

Two of the three dissenting commissioners who voted for reason-to-believe 

also issued a statement explaining their votes. JA274-80. They criticized the 

controlling commissioners’ failure to pursue End Citizens United PAC’s “wellsupported allegations.” JA280. As they explained, whether a person has become a 

candidate turns on the person’s “objectively deliberate actions,” not subjective 

intent, and the evidence before the agency shows that Scott “trigger[ed] candidacy 

months earlier” than his official announcement. JA275-76. 

3. End Citizens United PAC sued the FEC, challenging the dismissal as 

“contrary to law. JA006. The FEC failed to appear and defend the action, and New 

Republican intervened. JA097. The district court granted summary judgment for 

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New Republican PAC. JA097-115. Relying on the split-panel decision in New 

Models, the district court concluded that the FEC’s dismissal was unreviewable 

because the controlling commissioners invoked prosecutorial discretion. JA107-10. 

A divided panel of this Court affirmed. ECU, 90 F.4th at 1172. The panel 

majority relied on the split decisions in the CREW cases in claiming that “FECA’s 

contrary to law review does not eliminate the Commission’s prosecutorial 

discretion.” Id. at 1178 (citing Chaney, 470 U.S. at 831-32). The majority then found 

that review was foreclosed even though the controlling commissioners’ Statement 

“provided legal reasons . . . for declining enforcement in addition to invoking 

prosecutorial discretion.” Id. at 1180 (internal quotation marks omitted). The divided 

panel also rejected the argument that the CREW cases are not binding because they 

conflict with earlier D.C. Circuit and Supreme Court rulings. Id. 

Judge Pillard dissented, explaining that “[t]he majority repeats the mistakes 

from Commission on Hope and New Models, which continue to call out for 

correction.” Id. at 1188. As Judge Pillard explained, “[i]t is perverse to treat a nonmajority’s statement of reasons, elicited to facilitate judicial review, as instead its 

ticket to bypass judicial review altogether.” Id. at 1189. By doing so, the CREW 

cases “make[] a mockery of the carefully balanced bipartisan structure which 

Congress has erected.” Id. (internal quotation marks omitted). 

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REASONS FOR GRANTING REHEARING EN BANC 

En banc review is reserved for exceptional cases that break from established 

precedent or present urgent issues meriting the full Court’s consideration. Fed. R. 

App. P. 35(a). The decision here compels rehearing for both reasons. Like the CREW 

cases on which it relies, the decision directly contravenes binding Supreme Court 

and Circuit precedent and vitiates the statutory enforcement scheme. The full Court’s 

intervention is needed to resolve the deepening conflict created by this line of 

decisions and restore the effective operation of a vitally important statute. 

I. Immunizing the Commission’s Legal Errors from Review Contravenes 

FECA and Controlling Precedent. 

As affirmed by the Supreme Court in Akins and in the long-established law of 

this Circuit, FEC enforcement dismissals, unlike the nonenforcement decisions of 

most other agencies, are subject to judicial oversight—because Congress expressly 

provided for such review in the FEC’s governing statute. In nevertheless applying 

the CREW cases to bar review here, the panel decision directly contravenes this 

authority. 

A. Like the CREW decisions it follows, the split-panel opinion rests on a 

premise flatly contradicted by governing precedent: that FEC dismissal decisions are 

“control[led]” by Chaney and its “presumption” that “an agency’s decision not to 

undertake enforcement” is not reviewable, Commission on Hope, 892 F.3d at 439. 

See ECU, 90 F.4th at 1178. As the Supreme Court held in Akins, FECA “explicitly 

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indicates the contrary.” 524 U.S. at 26. Therefore, “[a]s the Supreme Court has 

specifically held, ‘reason-to-believe’ assessments under [FECA] are expressly 

excepted from the general presumption that decisions not to enforce the law are 

unreviewable.” New Models II, 55 F.4th at 927 (Millett, J., dissenting from denial of 

rehr’g en banc). 

Until “the wrong turn in Commission on Hope,” ECU, 90 F.4th at 1187 

(Pillard, J., dissenting), this Circuit’s decisions had uniformly recognized the same. 

In DCCC, the Court rejected the FEC’s argument “that deadlocks on the 

Commission are immunized from judicial review because they are simply exercises 

of prosecutorial discretion.” 831 F.2d at 1133-34 (citing Br. for the FEC at 17-20). 

In so doing, the Court expressly declined to “confin[e] the judicial check [in 

§ 30109(a)(8)(C)] to cases in which . . . the Commission acts on the merits.” Id. at 

1134-35 & n.5. 

Likewise, in Chamber of Commerce, the Court affirmed the reviewability of 

the FEC’s “unwillingness to enforce” the law, noting that FECA “is unusual in that 

it permits a private party to challenge the FEC’s decision not to enforce,” such that 

“even without a Commission enforcement decision, [administrative respondents] are 

subject to litigation.” 69 F.3d at 603. 

Finally, Orloski—which articulated the test courts have applied for decades 

when reviewing whether FEC dismissals are “contrary to law” under 

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§ 30109(a)(8)—also affirmed that FEC nonenforcement decisions are reviewable. 

Under the standard it established, an FEC dismissal is contrary to law if it was either 

based on an impermissible interpretation of the statute or, “under a permissible 

interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” 

795 F.2d at 161. 

B. The panel’s disregard for Akins and Circuit authority is not excused 

because the New Models majority “addressed the same argument.” 90 F.4th at 1180. 

New Models did try to justify its radical departure from precedent, but not 

successfully. The New Models majority suggested that Akins can be limited to its 

facts, but that requires ignoring the Supreme Court’s clear holding that the 

presumption of nonreviewability is inapplicable in the FECA context. Akins, 524 

U.S. at 26. And its assertion that Akins can be disregarded because the FEC 

nonenforcement decision it reviewed “did not invoke enforcement discretion as a 

basis for dismissal,” New Models, 993 F.3d at 893, is equally unavailing. Indeed, in 

its briefing to the Court in Akins, the FEC relied on Chaney, invoked its “authority 

to exercise prosecutorial discretion” as the reason plaintiffs lacked a redressable 

injury, and characterized the underlying administrative decision as “a discretionary 

judgment.” Br. for Pet’r, FEC v. Akins, 524 U.S. 11 (No. 96-1590), 1997 WL 

523890, 23, 29 (Aug. 21, 1997); Reply Br. for Pet’r, FEC v. Akins, 524 U.S. 11 (No. 

96-1590), 1997 WL 675443, 9 n.8 (Oct. 30, 1997). 

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The significant inconsistency and conflict in decisions since Commission on 

Hope also belies the suggestion in New Models that its rule “readily conforms with 

[the Court’s] earlier cases.” 993 F.3d at 893. Compare, e.g., Campaign Legal Ctr. 

and Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (declining to decide 

whether to follow Commission on Hope and proceeding to consider the merits of a 

“discretion[ary]” dismissal), Lieu v. FEC, 370 F. Supp. 3d 175, 183 (D.D.C. 2019) 

(noting that “FECA’s express provision for the judicial review of FEC dismissal 

decisions” rendered Chaney “inapposite”), and CREW v. FEC, 316 F. Supp. 3d 349, 

421-22 (D.D.C. 2018) (same), aff’d, 971 F.3d 340 (D.C. Cir. 2020), with CREW v. 

Am. Action Network, 590 F. Supp. 3d 164, 173 (D.D.C. 2022) (dismissing citizen 

suit on reconsideration of defendant’s motion to dismiss following New Models, 

reversing initial ruling that “FEC dismissals based on [prosecutorial] discretion 

rooted entirely in legal conclusions are reviewable” under Commission on Hope), 

appeal docketed, No. 22-7038 (D.C. Cir. Mar. 31, 2022); Pub. Citizen v. FEC, 547 

F. Supp. 3d 51, 54-55 (D.D.C. 2021) (declining to review FEC dismissal where a 

single footnote in the controlling statement3 merely “note[d] that the Commission 

maintains broad discretion” that it “could” have applied).4 

3 See Statement of Reasons of Chair Lee Goodman & Comm’rs Caroline C. 

Hunter and Matthew S. Petersen, MUR 6396 (Crossroads GPS) (Jan. 8, 2014), 

https://www.fec.gov/files/legal/murs/6396/14044350970.pdf. 

4 Tellingly, even the FEC itself—at least before Commission on Hope— 

recognized “that when FEC Commissioners purport to invoke prosecutorial 

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Instead, as multiple members of this Court have recognized, the unbounded 

rule of nonreviewability first pronounced in Commission on Hope conflicts with 

binding precedent, countermands Congress’s directive in section 30109(a)(8), and 

“opens the door to the dangerously easy evasion of judicial review.” New Models, 

993 F.3d at 905 (Millett, J., dissenting). See also ECU, 90 F.4th at 1189 (Pillard, J., 

dissenting) (“Commission on Hope and New Models squarely contravene the 

Supreme Court’s and our own views in Akins, and multiple other decisions of our 

circuit affirming the reviewability of the Commission’s non-enforcement 

decisions.”); New Models II, 55 F.4th at 926 (Millett, J., dissenting from denial of 

rehr’g en banc) (“As Judge Griffith worried, Judge Pillard predicted, and Judge 

Edwards has since echoed, the Commission on Hope chickens have come home to 

roost. The court’s decision in this case renders for naught statutorily mandated 

judicial review.”); Democracy 21, 952 F.3d at 360 (Edwards, J., concurring); 

Commission on Hope II, 923 F.3d at 1142 (Griffith, J., concurring in denial of rehr’g 

en banc); Commission on Hope, 892 F.3d at 442 (Pillard, J., dissenting). 

C. The panel here erroneously embraced and extended the rule of 

unconditional immunity created by the CREW cases, confirming that the decisions 

cannot be harmonized with FECA or prior controlling precedent. As now extended, 

discretion in dismissing a complaint, the matter in dispute is subject to judicial 

review.” Democracy 21, 952 F.3d at 361 (Edwards, J., concurring) (citing the FEC’s 

briefing in Commission on Hope). 

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the CREW cases threaten to shield any Commission decision that utters the phrase 

“prosecutorial discretion”—however contingent or pretextual the reference, and 

regardless of what else the decision says—from all scrutiny. 

Crucially, the split-panel decision here appears to slam shut the one narrow 

window left open by New Models for finding that an FEC dismissal invoking 

discretion is not immune from congressionally mandated review. While the New 

Models majority suggested that FECA review would remain available in 

circumstances where the controlling commissioners “reference their merits analysis 

as a ground for exercising prosecutorial discretion,” New Models II, 55 F.4th at 920-

21 (Rao, J., concurring in denial of rehearing en banc) (citation omitted), the decision 

here reveals how little of the statutory review mechanism that caveat preserves. 

Even assuming it were possible, as the panel majority believed, to pinpoint 

any discretionary concerns in the Statement that theoretically stand apart from the 

commissioners’ overarching merits analysis, 90 F.4th at 1178-79, that still does not 

justify shielding their legal conclusions—the only aspect of the decision End 

Citizens United PAC seeks to challenge—from review. Cf. New Models, 993 F.3d 

at 905 (Millett, J., dissenting). 

The mere act of undertaking this fraught interpretive exercise only drives 

home its conflict with Akins and Circuit authority. It is a bedrock principle of 

administrative law that an agency’s “formal action, rather than its discussion . . . is 

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dispositive” of whether the action is reviewable. I.C.C. v. Bhd. of Locomotive 

Engineers, 482 U.S. 270, 281 (1987). The formal agency action taken here was the 

dismissal of End Citizens United PAC’s complaint following a failed reason-tobelieve vote, and the statute makes that action reviewable. Whether an FEC 

dismissal withstands review, or what degree of deference its decisionmaking is due, 

are altogether different questions. But it cannot be the case, as the panel majority 

held, that an FEC dismissal escapes statutorily directed review wherever some 

notionally independent, “discretionary factors” can be gleaned from an otherwise 

reviewable legal analysis. 90 F.4th at 1179. 

Indeed, New Models inappropriately authorizes courts to guess, when 

reviewing an FEC decision based on multiple grounds, what the agency would do 

on remand if its legal basis for dismissal is held invalid. As in Akins, however, “we 

cannot know,” and the panel was not permitted to assume, “that the FEC would have 

exercised its prosecutorial discretion in this way” if the commissioners’ dispositive 

legal conclusions were held contrary to law. 524 U.S. at 25. The role of the courts is 

to “correct[] a legal error—if error is committed—in the agency decision,” provided 

the error is “one upon which the agency decision rests.” Akins v. FEC, 101 F.3d 731, 

738 (D.C. Cir. 1996) (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947)). 

Because of the CREW decisions, that judicial backstop is now routinely unavailable. 

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* * * 

The rule of automatic and absolute nonreviewability heralded by the CREW 

decisions and embraced by the panel here cannot be squared with FECA’s text, the 

Supreme Court’s holding in Akins, or longstanding Circuit precedent. As confirmed 

in Akins and controlling D.C. Circuit decisions, the Act expressly subjects 

Commission nonenforcement decisions to judicial scrutiny under a “contrary to law” 

standard. See 52 U.S.C. § 30109(a)(8)(A), (C). The CREW panels were not 

authorized to overrule this authority. 

II. The Split-Panel Decision Vitiates FECA’s Enforcement Scheme and the 

Critically Important Interests It Serves. 

FECA’s review provision is an integral component of the statutory 

enforcement scheme. Judicial review provides the “countermeasure to otherwise 

predictable deadlock at the Commission,” ECU, 90 F.4th at 1187 (Pillard, J., 

dissenting), and safeguards the vital transparency and anti-corruption laws the FEC 

is charged to enforce. The statute cannot be reconciled with a rule that empowers a 

partisan-aligned non-majority bloc to unilaterally preclude review of their 

decisions—including decisions, as in this case, based on extensive legal analysis and 

involving “the most serious violations of federal campaign finance law”—by 

summoning the “magic words” of enforcement discretion. Commission on Hope II, 

923 F.3d 1141, 1144 (D.C. Cir. 2019) (Pillard, J., dissenting from denial of rehr’g 

en banc). 

15 
 

 

 

 

 

 

 

 

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The CREW rulings have already had profoundly damaging effects on the 

operation of federal campaign finance law. Since Commission on Hope, 

commissioners “have routinely cited ‘prosecutorial discretion’ to stymie judicial 

scrutiny of apparently serious FECA violations.” ECU, 90 F.4th at 1184. And, 

predictably, the impetus to tack on a “discretionary” ground for dismissal and 

thereby defeat judicial review has proven most irresistible in cases where the 

controlling bloc lacks a defensible legal basis for refusing to proceed. See, e.g., id. 

Worse still, the rulings allow partisan FEC minorities to entrench impermissible 

statutory interpretations without recourse to the judicial check that Congress 

authorized. “[T]hese legal pronouncements, while walled off from judicial review, 

directly influence the conduct of regulated parties, who regularly rely on and invoke 

them in subsequent proceedings before the Commission.” New Models II, 55 F.4th 

at 931 (Millett, J., dissenting from denial of rehr’g en banc). 

The panel majority’s endorsement of an unqualified barrier to review thus 

perversely shields the very legal interpretations that are most in need of judicial 

correction. Under New Models, the panel held the controlling commissioners’ 

unsustainable legal interpretations beyond all scrutiny. The commissioners’ analysis 

relied on an erroneous legal test that contravenes the relevant standard, and indeed, 

opens a massive and readily exploited loophole in FECA’s candidate reporting 

requirements and contribution limits. Letting these legal errors go unchallenged 

16 
 

 

 

 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 22 of 66 

seriously frustrates FECA’s core purpose of informing voters about “where political 

campaign money comes from and how it is spent,” Buckley v. Valeo, 424 U.S. 1, 66 

(1976) (per curiam), and is precisely the kind of impermissible statutory 

interpretation that FECA’s judicial review provision exists to correct. By refusing to 

review the adequacy of the controlling commissioners’ interpretations of FECA, the 

panel decision leaves that faulty legal analysis in place—imperiling FECA’s 

requirements and the voting public’s right to know how political campaign money 

is raised and spent. 

The split-panel decision, like the CREW cases, is irreconcilable with the 

balanced statutory scheme that Congress devised. In allowing one partisan nonmajority faction of commissioners to dictate the law’s requirements and thwart any 

accountability for their decisions, these rulings “turn[] the rule of law upside down 

and render[] the statutory provision for review of dismissal decisions a dead letter.” 

New Models II, 55 F.4th at 932 (Millett, J., dissenting from denial of rehr’g en banc). 

The federal campaign finance laws are too important to let this damaging line of 

decisions stand uncorrected. 

17 
 

 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 23 of 66 

CONCLUSION 

For the foregoing reasons, this Court should grant rehearing en banc. 

Dated: February 20, 2024 

Respectfully submitted, 

/s/ Kevin P. Hancock 

Adav Noti 

Kevin P. Hancock 

Alexandra Copper 

CAMPAIGN LEGAL CENTER ACTION 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(202) 736-2000 

khancock@campaignlegalcenter.org 

Counsel for Petitioner 

18 
 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 24 of 66 

CERTIFICATE OF COMPLIANCE 

This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) 

because, excluding the parts of the document exempted under Fed. R. App. P. 32(f), 

this document contains 3,881 words. 

This filing complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this 

response has been prepared using Microsoft Office Word 2016 in Times New 

Roman 14-point font. 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

a 
 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 25 of 66 

CERTIFICATE OF SERVICE 

I certify that on February 20, 2024, I electronically filed this brief with the 

Clerk of Court for the United States Court of Appeals for the District of Columbia 

Circuit using the appellate CM/ECF system, thereby serving all persons required to 

be served. 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

b 
USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 26 of 66 

ADDENDUM 

1. Certificate as to Parties, Ruling, Related Cases, and Amici 

2. Corporate Disclosure Statement 

3. Panel Decision 

c 
 

 

 

 

 

 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 27 of 66 

CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), Petitioner End Citizens United PAC hereby 

certifies as follows: 

(A) Parties and Amici. Petitioner is Plaintiff-Appellant End Citizens United 

PAC. End Citizens United PAC is a political action committee whose mission is to 

get big money out of politics and protect the right to vote by working to elect reformoriented politicians, pass meaningful legislative reforms, and elevate electoral issues 

in the national conversation. 

The Federal Election Commission is the defendant in the district court but 

defaulted and has not appeared in the district court or in this Court. New Republican 

PAC was granted leave by the district court to intervene in the action as a defendant 

and is an appellee in this Court. 

There were no amici curiae in the district court. Citizens for Responsibility 

and Ethics in Washington appeared as amicus curiae in this Court in support of 

Appellant End Citizens United PAC. 

(B) Rulings Under Review. End Citizens United PAC appeals the September 

16, 2022 memorandum opinion (Doc. 36) and order (Doc. 37) of the U.S. District 

Court for the District of Columbia (Leon, J.) granting Defendant-Intervenor New 

Republican PAC’s Cross-Motion for Summary Judgment and denying Plaintiff End 

Citizens United PAC’s Motion for Default Judgment, or, in the Alternative, for 

d 
 

 

 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 28 of 66 

Summary Judgment. The September 16, 2022 opinion is not published in the federal 

reporter but is available at 2022 WL 4289654 and attached to End Citizens United 

PAC’s Notice of Appeal, which was entered on this Court’s docket on October 20, 

2022. 

(C) Related Cases. The appealed ruling has not previously been before this 

Court or any other court. There are no related cases pending in this Court or any 

other court of which counsel are aware. 

e 
 

 

USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 29 of 66 

CORPORATE DISCLOSURE STATEMENT 

Pursuant to D.C. Circuit Rule 35(c), Petitioner End Citizens United PAC 

submits its corporate disclosure statement. 

(a) End Citizens United PAC certifies that it has no parent companies and no 

publicly held company with a 10% or greater ownership interest. 

(b) End Citizens United PAC is a political action committee whose mission is 

to get big money out of politics and protect the right to vote by working to elect 

reform-oriented politicians, pass meaningful legislative reforms, and elevate 

electoral issues in the national conversation. 

f 
USCA Case #22-5277 Document #2041239 Filed: 02/20/2024 Page 30 of 66 

PANEL DECISION 

g 
 

 

 

 

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United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued April 26, 2023 Decided January 19, 2024 

No. 22-5277 

END CITIZENS UNITED PAC, 

APPELLANT 

v. 

FEDERAL ELECTION COMMISSION AND NEW REPUBLICAN 

PAC, 

APPELLEES 

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:21-cv-02128) 

Kevin P. Hancock argued the cause for appellant. With 

him on the briefs were Adav Noti, Alexandra Copper, and 

Allison Walter. Molly Danahy entered an appearance. 

Stuart C. McPhail and Adam J. Rappaport were on the 

brief for amicus curiae Citizens for Responsibility and Ethics 

in Washington in support of appellant. 

Jason B. Torchinsky argued the cause for intervenorappellee New Republican PAC. With him on the brief were 
 

 

 

 

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2 

Edward M. Wenger, Phillip M. Gordon, and Kenneth C. 

Daines. 

Before: PILLARD, KATSAS, and RAO, Circuit Judges. 

Opinion for the Court filed by Circuit Judge RAO. 

Opinion concurring in part and dissenting in part filed by 

Circuit Judge PILLARD. 

RAO, Circuit Judge: This case concerns the Federal 

Election Commission’s dismissal of two administrative 

complaints alleging that New Republican PAC and Senator 

Rick Scott violated various election laws. The Commission 

dismissed the first complaint on the ground of prosecutorial 

discretion, and it dismissed the second after concluding the 

record provided no “reason to believe” the alleged violation 

occurred. End Citizens United PAC filed suit, challenging both 

dismissals. The district court dismissed the suit, and we affirm. 

The Commission’s first dismissal is unreviewable because it 

was based on prosecutorial discretion, and the second dismissal 

was not contrary to law. 

I. 

A. 

New Republican is a “Super PAC,” meaning a political 

action committee “that makes only independent expenditures

and cannot contribute to candidates.” See McCutcheon v. FEC, 

572 U.S. 185, 193 n.2 (2014) (plurality opinion). Rick Scott 

became New Republican’s chairman in May 2017 and formally 

stepped down in December 2017. He officially declared his run 

for Senate in April 2018. 
 

 

 

 

 

 

 

 

 

 

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End Citizens United filed two administrative complaints 

with the Commission, alleging New Republican and Scott1 

violated several requirements of the Federal Election 

Campaign Act of 1971 (“FECA”). See Pub. L. No. 92-225, 86 

Stat. 3 (codified as amended at 52 U.S.C. § 30101 et seq.). 

According to End Citizens United, before officially declaring 

his Senate run, Scott began informal campaign activities and 

used New Republican’s resources to support his nascent 

candidacy. He also allegedly continued to exert control over 

New Republican into 2018—well after his chairmanship 

ended. He purportedly did this by fundraising for New 

Republican, participating in conference calls, and interacting 

with political allies connected to the PAC, among other things. 

Immediately after Scott officially declared his candidacy in 

April 2018, New Republican revamped its website and issued 

a press release to announce its “focus[] on the election of Rick 

Scott in the race for Florida United States Senate.”

Based on this timeline, End Citizens United’s first 

complaint maintained that Scott became a “candidate” in May

2017, the same month he became chairman of New 

Republican, and that he failed to register his campaign until 

nearly a year later. Complaint at 1–5, FEC Matter Under 

Review 7370 (“Complaint One”) (Apr. 23, 2018); see also 52 

U.S.C. § 30101(2) (defining “candidate”); 11 C.F.R. 

§ 100.72(a) (outlining permissible activities and reporting 

requirements for individuals “determining whether ... [to] 

become a candidate”). As a consequence of the alleged failure 

to timely register his campaign, Scott failed to make the 

necessary filings and reports to the FEC. See 52 U.S.C. 

§§ 30102–04. The complaint also alleged that New Republican 

1 End Citizens United also alleged Scott’s campaign had violated

FECA. For purposes of this case, we do not distinguish between 

Scott and his campaign because the distinction is not relevant here. 
 

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4 

unlawfully raised and spent funds while under Scott’s control,

because all candidate controlled entities are subject “to 

[FECA’s] limitations, prohibitions, and reporting 

requirements.” Id. § 30125(e)(1)(A). 

The second complaint alleged unlawful coordination 

between Scott and New Republican. Complaint at 1–8, FEC 

Matter Under Review 7496 (“Complaint Two”) (Sept. 14, 

2018). New Republican launched two television commercials, 

in May and June 2018, against Scott’s opponent in the Senate 

race. End Citizens United alleged that New Republican had 

impermissibly contributed to Scott’s campaign by coordinating 

with Scott to purchase the commercials. See 52 U.S.C. 

§ 30116(a)(7)(B)(i), (f) (specifying that, when a Super PAC 

makes an expenditure “in cooperation, consultation, or

concert[] with” a candidate, that expenditure “shall be

considered” an impermissible contribution even if the Super 

PAC never transferred funds directly to the candidate); see also 

11 C.F.R. § 109.21 (defining “coordinated communication”).

In support of this claim, End Citizens United emphasized that 

Scott had continued his involvement with New Republican for 

months after formally stepping down, including during the 

period when the advertisements were booked and paid for. 

Scott and New Republican denied the allegations in both 

complaints. 

B. 

After reviewing the complaints and responses, the 

Commission’s general counsel recommended the Commission 

find “reason to believe” Scott and New Republican committed 

some of the Complaint One violations. See 11 C.F.R. 

§ 111.7(a). With respect to the Complaint Two coordination 

claim, the general counsel relied on the sworn statement of 

Blaise Hazelwood, who took over New Republican after 
 

 

 

 

 

 

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5 

Scott’s departure. Hazelwood stated that she had directed the 

advertisement placements without coordinating with Scott or 

his campaign. The general counsel noted that End Citizens 

United’s complaint almost exclusively relied on the timing of 

the campaign commercials, inferring coordination from the fact 

that the commercials aired shortly after Scott stepped down 

from New Republican and formally announced his candidacy. 

Aside from this “mere temporal relationship,” however, the 

general counsel concluded there was “no information available

suggesting” coordination had occurred. The general counsel 

recommended the Commission take no action on Complaint 

Two and wait to see whether the recommended investigation 

into Complaint One uncovered facts that would provide reason 

to believe New Republican had unlawfully coordinated with 

Scott. 

Under FECA, the Commission will begin an investigation 

only if four commissioners determine there is “reason to 

believe” a violation has occurred. 52 U.S.C. § 30109(a)(2). 

“[A]n affirmative vote of four commissioners is required for 

the agency to initiate enforcement proceedings.” Citizens for 

Resp. & Ethics in Wash. v. FEC (“New Models”), 993 F.3d 880,

883 (D.C. Cir. 2021); see 52 U.S.C. § 30109(a)(2). A split vote 

of the six commissioners means no investigation may go 

forward. See Combat Veterans for Cong. PAC v. FEC, 795 

F.3d 151, 153 (D.C. Cir. 2015). Here, three commissioners 

voted to find reason to believe the violations had occurred, and 

the other three voted to dismiss both complaints. Lacking the 

four votes necessary to begin an investigation, the Commission 

voted five to one to close the file and dismiss the complaints. 

The three commissioners voting against enforcement, the 

so-called controlling commissioners, issued a Statement of 
 

 

 

 

 

 

 

 

 

 

 

 

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6 

Reasons.

2 Statement of Reasons of Vice Chair Allen Dickerson 

and Commissioners Sean J. Cooksey and James E. “Trey”

Trainor III, FEC Matters Under Review 7370 and 7496 

(“Statement of Reasons”) (July 21, 2021). With respect to 

Complaint One, they offered legal and evidentiary grounds for 

dismissal. They also explicitly “invoked ... prosecutorial 

discretion pursuant to Heckler v. Chaney,” concluding it would 

be unwise to “authoriz[e] an expensive and resourceconsuming investigation while the Commission is ... working 

through a substantial backlog of cases.” Id. at 10 (citing 

Heckler v. Chaney, 470 U.S. 821 (1985)). As to Complaint 

Two, the controlling commissioners offered two independent 

reasons for dismissal. First, they suggested the coordination 

allegation could not go forward without “a threshold finding”

that Scott or New Republican had violated FECA’s campaign

registration, filing, reporting, or spending requirements, as 

alleged in Complaint One. Id. at 2 n.2. Second, they 

incorporated by reference the general counsel’s evidentiary 

analysis, agreeing the record did not support a reason to believe 

coordination had occurred. Id. at 5 n.25. 

End Citizens United filed suit in 2021, challenging the 

Commission’s dismissals as “contrary to law.” See 52 U.S.C. 

§ 30109(a)(8)(C). The Commission did not defend its 

dismissals in district court. After allowing New Republican to 

intervene as a defendant, the district court granted summary 

judgment in New Republican’s favor. End Citizens United 

2 The commissioners voting against enforcement are called 

“controlling [c]ommissioners,” and their stated reasons are “treated

as if they were expressing the Commission’s rationale for dismissal.”

New Models, 993 F.3d at 883 n.3 (cleaned up); see also Democratic 

Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir. 

1987) (establishing the requirement for the controlling 

commissioners to issue a statement of reasons). 
 

 

 

 

 

 

 

 

 

 

 

 

 

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7 

PAC v. FEC, No. 21-2128, 2022 WL 4289654, at *1 (D.D.C. 

Sept. 16, 2022). The district court concluded the Commission’s

dismissal of the first complaint was unreviewable because that 

dismissal was based in part on prosecutorial discretion. Id. at 

*5 (citing New Models, 993 F.3d at 889). And it concluded the 

Commission’s dismissal of the second complaint was 

reviewable but not contrary to law. Id. at *6–7. End Citizens 

United timely appealed. Our review is de novo. Citizens for 

Resp. & Ethics in Wash. v. FEC (“Commission on Hope”), 892 

F.3d 434, 440 (D.C. Cir. 2018). 

II. 

End Citizens United argues the dismissal of Complaint 

One was contrary to law because the controlling 

commissioners erroneously interpreted FECA to require a 

showing of Scott’s “subjective intent” to become a candidate. 

And, it argues, the Complaint Two dismissal was also contrary 

to law because the controlling commissioners applied FECA to 

the facts in an arbitrary and irrational way. 

FECA allows a court to “declare that the dismissal of [a]

complaint ... is contrary to law.” 52 U.S.C. § 30109(a)(8)(C). 

Under our precedents, a dismissal is “contrary to law” if “(1)

the FEC dismissed the complaint as a result of an 

impermissible interpretation of [FECA] ... 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.”3 Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 

3 Since Orloski v. FEC, this circuit has included arbitrary and 

capricious review, as well as abuse of discretion review, under 

FECA’s “contrary to law” standard. 795 F.2d 156, 161 (D.C. Cir.

1986). But prior decisions did not conflate these different forms of 

review. For instance, the Supreme Court explained that given the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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1986). To the extent we review dismissals for arbitrariness, our 

review is “[h]ighly deferential,” “presumes the validity of 

agency action[,] and permits reversal only if the agency’s

decision is not supported by substantial evidence, or the agency 

has made a clear error in judgment.” Hagelin v. FEC, 411 F.3d 

237, 242 (D.C. Cir. 2005) (cleaned up); accord Campaign 

Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 357 (D.C. 

Cir. 2020) (per curiam). 

discretionary enforcement powers of the Commission, “Congress

wisely provided that the Commission’s dismissal of a complaint

should be reversed only if ‘contrary to law.’” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (cleaned up) 

(emphasis added); see also In re Carter-Mondale Reelection Comm., 

Inc., 642 F.2d 538, 542 (D.C. Cir. 1980) (per curiam) (accepting the 

parties’ “agree[ment] that the standard of review was whether the

FEC has acted arbitrarily, capriciously, or contrary to law,” without 

opining on whether that stipulation was legally correct); Orloski, 795 

F.2d at 161 (citing these two cases). 

We have since suggested that Orloski was attempting to 

harmonize FECA with the Administrative Procedure Act’s judicial 

review provisions, which allow for arbitrary and capricious review. 

See Comm’n on Hope, 892 F.3d at 437 & n.3 (explaining the APA, 

5 U.S.C. § 559, allows a later statute to modify its judicial review 

provisions only expressly). The APA’s judicial review framework,

however, does not apply to agency actions “committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). And FECA commits 

nonenforcement decisions to the Commission’s discretion except to 

the extent that they are “contrary to law.” See New Models, 993 F.3d 

at 884. Neither Orloski nor the cases following it have explained why 

the APA’s arbitrary and capricious and abuse of discretion standards

of review should be imported into FECA’s “contrary to law”

standard. Until reconsideration by the full court, Orloski is binding 

precedent, and we follow it here. 
 

 

 

 

 

 

 

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9 

FECA’s contrary to law review does not eliminate the 

Commission’s prosecutorial discretion. “[T]he [Administrative 

Procedure Act] and longstanding ... precedents rooted in the 

Constitution’s separation of powers recognize that

enforcement decisions are not ordinarily subject to judicial 

review.” New Models, 993 F.3d at 888; see also Chaney, 470 

U.S. at 831–32. And “[t]he Supreme Court in Akins recognized 

that the Commission, like other Executive agencies, retains 

prosecutorial discretion.” Citizens for Resp. & Ethics in Wash. 

v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (citing FEC v. 

Akins, 524 U.S. 11, 25 (1998)). It follows that the 

Commission’s “exercise of its prosecutorial discretion cannot 

be subjected to judicial scrutiny.” Comm’n on Hope, 892 F.3d 

at 439. Furthermore, we recently reiterated that a Commission 

dismissal is unreviewable if it “turn[s] in whole or in part on

enforcement discretion.” New Models, 993 F.3d at 894. A 

dismissal is reviewable “only if the decision rests solely on 

legal interpretation.” Id. at 884; see also Akins, 524 U.S. at 25–

26 (explaining that “[i]f a reviewing court agrees that the 

agency misinterpreted the law, it will set aside the agency’s 

action and remand the case” and that the petition can seek only 

“a declaration that the FEC’s dismissal ... was unlawful”). 

A. 

The Commission’s dismissal of the first complaint is an 

unreviewable exercise of its prosecutorial discretion. As End 

Citizens United concedes, the controlling commissioners 

expressly invoked their prosecutorial discretion when 

dismissing the complaint. They cited Chaney repeatedly, 

discussed the time and expense an investigation would involve, 

and mentioned the Commission’s “substantial backlog of

cases.” Statement of Reasons at 2, 10. Prioritizing particular 

cases and considering limited time and resources are 

quintessential elements of prosecutorial discretion. When the 
 

 

 

 

 

 

 

 

 

 

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Commission’s dismissal rests even in part on prosecutorial 

discretion, it is not subject to judicial review. New Models, 993 

F.3d at 884, 893–95; see also Comm’n on Hope, 892 F.3d at 

439. 

Resisting the straightforward conclusion from our 

caselaw, End Citizens United asserts the invocation of 

prosecutorial discretion is not determinative because the 

controlling commissioners relied on an interpretation of FECA. 

The controlling commissioners concluded that whether Scott 

violated FECA would turn on his “subjective intent” during the 

relevant timeframe—an apparent reference to whether Scott 

formed an intention to launch a Senate campaign while he was 

the chairman of New Republican. Statement of Reasons at 10. 

Because the dismissal rested in part on this legal analysis, End 

Citizens United contends we can review whether the dismissal 

was contrary to law. 

We have repeatedly declined to review dismissals in 

similar circumstances because we will not “carve out the 

Commission’s statutory interpretation from its exercise of 

enforcement discretion” in order to review a dismissal. New 

Models, 993 F.3d at 886; Comm’n on Hope, 892 F.3d at 442 

(“The law of this circuit rejects the notion of carving 

reviewable legal rulings out from the middle of non-reviewable 

actions.”) (cleaned up). The Supreme Court has similarly 

rejected “the principle that if [an] agency gives a ‘reviewable’

reason for otherwise unreviewable action, the action becomes 

reviewable.” ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 

283 (1987). Nonenforcement decisions often turn on both 

discretionary factors and legal determinations, but a dismissal 

is entirely unreviewable if it depends even in part on 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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enforcement discretion.4 See Chaney, 470 U.S. at 831 

(acknowledging unreviewable enforcement decisions “often 

involve[] a complicated balancing of a number of factors”). 

End Citizens United’s approach flies in the face of binding 

precedent by demanding this court review nonenforcement 

4 Unable to rebut this established caselaw, the dissent maintains that 

some of the “claims” in Complaint One were dismissed on the merits,

not on prosecutorial discretion. Dissenting Op. 13–14. This splicing 

of the Statement of Reasons fails for multiple reasons. To begin with, 

End Citizens United did not raise this argument on appeal and 

repeatedly recognizes that the controlling commissioners relied on 

prosecutorial discretion to dismiss the first complaint. See, e.g., 

Appellant’s Brief at 5. “[W]e rely on the parties to frame the issues 

for decision and assign to courts the role of neutral arbiter of matters 

the parties present.” United States v. Sineneng-Smith, 140 S. Ct. 

1575, 1579 (2020) (cleaned up). 

In any event, on the merits, the dissent’s interpretation misreads 

the Statement of Reasons. When concluding the Statement, the 

controlling commissioners explicitly state, “[u]ltimately, we

determined that this Matter merited the invocation of our 

prosecutorial discretion.” Statement of Reasons at 10. And, contrary 

to the dissent, “this Matter” was previously defined to include “the

complaints received by the Commission on April 23, 2018,” id. at 2 

(emphasis added), which is all of Complaint One, not just the “filing” 

claims. Moreover, the Statement does not clearly separate its analysis 

of the “soft money” claims and the “filing” claims. Rather, the

controlling commissioners explain the claims are inextricably 

connected because “[u]nder [FECA], New Republican can commit a 

soft money violation only if Scott is a candidate. But if Scott was not 

a candidate, then there can be no soft money violation.” Id. at 7. The 

discussion of the “soft money” issue was predicated on “assuming

arguendo that Scott had become a candidate at some point prior to 

his formal announcement.” Id. But on that threshold question, and 

therefore with respect to all the claims in “this Matter,” the

controlling commissioners invoked prosecutorial discretion. 
 

 

 

 

 

 

 

 

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decisions that turn even in part on legal interpretation. But the 

analysis in the Statement of Reasons, which discussed legal 

reasons as well as prosecutorial discretion, cannot be 

distinguished from the statement we found unreviewable in 

New Models. That statement, like the one at issue here, 

“provided legal reasons ... for declining enforcement” in 

addition to invoking prosecutorial discretion. New Models, 993 

F.3d at 885–86. There are no grounds for distinguishing the two 

cases, so we cannot review the dismissal. 

End Citizens United also explicitly asks us to depart from 

Commission on Hope and New Models because they conflict 

with earlier decisions. We addressed the same argument at 

length in New Models, explaining why that decision was 

consistent with the text and structure of FECA, as well as with 

the cases on which End Citizens United now relies. Id. at 892–

95 (explaining consistency with Akins, 524 U.S. 11; 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 

(D.C. Cir. 1987); Chamber of Com. v. FEC, 69 F.3d 600 (D.C. 

Cir. 1995); and Orloski, 795 F.2d 156). Commission on Hope 

and New Models accord with our prior case law and are binding 

on this panel. 

Our dissenting colleague similarly seeks to relitigate these 

settled decisions.

5 In FECA, Congress specifically “required

5 A judge’s disagreement with settled law does not make it any less

settled. This court has consistently followed New Models and 

Commission on Hope. See, e.g., Campaign Legal Ctr. v. FEC, 22-

5339, 2024 WL 57355, at *11 (D.C. Cir. Jan. 5, 2024); see also End 

Citizens United PAC v. FEC, 69 F.4th 916, 920–21 (D.C. Cir. 2023). 

And we have twice denied full court rehearing on the issue. See 

Citizens for Resp. & Ethics in Wash. v. FEC (“Commission on Hope 

II”), 923 F.3d 1141, 1142 (D.C. Cir. 2019); Citizens for Resp. & 

Ethics in Wash. v. FEC (“New Models II”), 55 F.4th 918, 919 (D.C. 

Cir. 2022). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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the Commission to clear a series of bipartisan vetogates before 

commencing an enforcement action.” Citizens for Resp. & 

Ethics in Wash. v. FEC (“New Models II”), 55 F.4th 918, 920 

(D.C. Cir. 2022) (Rao, J., concurring in denial of rehearing en 

banc). This means, of course, that three commissioners may 

block the investigation and enforcement of a complaint.6 

Unable to abide the “Commission’s passivity,” the dissent 

envisions a dynamic role for the courts to encourage, prompt, 

and prise open the courthouse doors to the enforcement of 

campaign finance laws. Dissenting Op. 11. When the 

Commission invokes prosecutorial discretion, the dissent sees 

this as an attempt to “evade the stimulus to move forward to 

enforce the law.” Id. at 3. Moreover, “[i]t is the court’s role to 

detect statutory misreading and thereby prod a reluctant FEC 

to act.” Id. at 7. And it is apparently also the court’s role to

determine whether a complaint is “legally sufficient to 

proceed.” Id. at 12. 

Contrary to the dissent’s assertions, the statute provides 

only a modest role for the courts in determining whether a 

6 The dissent maintains the Commission may rely on prosecutorial 

discretion only when four commissioners agree. See Dissenting Op. 

9–11. Yet no provision in FECA requires four votes to dismiss a 

complaint. See New Models, 993 F.3d at 891 & n.10. In fact, thenJudge Ruth Bader Ginsburg specifically emphasized that when the 

Commission “deadlocks and for that reason dismisses a complaint,” 

the dismissal is judicially reviewable. Democratic Cong. Campaign 

Comm., 831 F.2d at 1132 (cleaned up). Judge Ginsburg highlighted 

that although a 6-0 decision “might represent a firmer exercise of

prosecutorial discretion,” the 6-0 decision and a deadlocked one were 

both reviewable because “we resist confining the judicial check to 

cases in which ... the Commission ‘act[s] on the merits.’” Id. at 

1134. The dissent agrees that Commission deadlocks are reviewable, 

and nothing in our caselaw suggests we must turn a blind eye to the 

invocation of prosecutorial discretion in a deadlock dismissal. 
 

 

 

 

 

 

 

 

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dismissal or failure to act is “contrary to law.” See 52 U.S.C. 

§ 30109(a)(8)(C). As we have long recognized, the 

Commission, “not a court of review,” must “serve as the

primary decisionmaker in the area Congress has 

committed ... to the FEC’s charge.” Democratic Cong. 

Campaign Comm., 831 F.2d at 1133; see also FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 

(1981) (explaining the Commission has the “sole discretionary 

power to determine in the first instance whether or not a civil 

violation of [FECA] has occurred”) (cleaned up). When the 

Commission cannot garner four votes for an investigation, and 

dismissal of the complaint turns on prosecutorial discretion, 

there is simply no legal reasoning to review. FECA does not 

confer on the courts a general power to enforce the law, which 

instead belongs to the Commission in the exercise of its 

executive power. 

Although the district court correctly held the dismissal of 

Complaint One was not reviewable because the Commission’s

decision rested in part on prosecutorial discretion, the court 

mistakenly characterized this as a jurisdictional issue. The nonreviewability of prosecutorial discretion under Chaney is not 

jurisdictional; rather, it deprives the plaintiff of a cause of 

action. Oryszak v. Sullivan, 576 F.3d 522, 524–26 (D.C. Cir. 

2009). We therefore modify the district court’s judgment and 

affirm. 

B. 

1. 

The dismissal of Complaint Two is reviewable. Without 

any reliance on prosecutorial discretion, the controlling 

commissioners offered two legal determinations to support the 

dismissal, and we review these conclusions under the contrary 

to law standard. The first reason for dismissal was that if none 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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of the “threshold” violations alleged in Complaint One had 

occurred, then illegal coordination (as alleged in Complaint 

Two) also could not have occurred as a matter of law. 

Statement of Reasons at 2 n.2. That was “a legal determination

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

Models, 993 F.3d at 884–85 (cleaned up). The second reason 

for dismissal was that there was not enough evidence to find 

reason to believe a violation of FECA had occurred. Statement 

of Reasons at 5 n.25. 

Assessing whether certain acts constitute FECA violations 

and whether the facts in the record provide reason to believe a 

violation occurred are treated as judicially reviewable under the 

contrary to law standard.

7 See Hagelin, 411 F.3d at 242–44 

(reviewing the FEC’s determination that there was insufficient 

evidence for a reason to believe finding); Orloski, 795 F.2d at 

167 (same). 

Under our precedents, a dismissal is contrary to law if it 

misinterprets the statute, is arbitrary or capricious, or is an 

abuse of discretion. See, e.g., Hagelin, 411 F.3d at 242. This 

review is “extremely deferential” when the Commission finds

no reason to believe a violation has occurred. Orloski, 795 F.2d 

at 167; see Hagelin, 411 F.3d at 242 (rejecting the argument 

that “a less deferential standard of review” applies to reason to

believe dismissals and observing “we have held just the

7 We reject New Republican’s suggestion in passing that—because 

the first complaint was dismissed on the basis of prosecutorial 

discretion—the dismissal of the second complaint is also 

unreviewable. Enforcement discretion not to pursue one complaint 

does not necessarily apply to another complaint, even when multiple 

dismissals are explained in a single statement of reasons. See 52 

U.S.C. § 30109(a)(8)(C) (“In any proceeding under this paragraph 

the court may declare that the dismissal of the complaint or the failure 

to act is contrary to law.”) (emphasis added).
 

 

 

 

 

 

 

 

 

 

 

 

 

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opposite”). Commission dismissals at the reason to believe

stage are highly context specific and involve detailed 

consideration of the record, so we will not lightly disturb them. 

2. 

The controlling commissioners found no reason to believe 

there was a violation of FECA and, therefore, declined to 

investigate the allegations made in Complaint Two. The 

controlling commissioners based their dismissal on the general 

counsel’s report, which “customarily provides the basis for [the

Commission’s] action” for purposes of judicial review. 

Hagelin, 411 F.3d at 239 (cleaned up). The report referred to 

Hazelwood’s sworn assertion that, as the new chairwoman of 

New Republican, she had placed the television advertisements 

without coordinating with Scott or his campaign. That 

conclusion comported with the record, especially given 

Complaint Two’s heavy reliance on the “mere temporal 

relationship” between Scott’s leaving New Republican and the 

placement of the commercials. The general counsel also 

pointed to the lack of other evidence suggesting coordination. 

At this threshold stage, the Commission was voting on whether 

to begin an investigation, and “[b]efore it may act, the

Commission must find ‘reason to believe’ that a violation of

[FECA] has occurred.” Combat Veterans, 795 F.3d at 153 

(quoting 52 U.S.C. § 30109(a)(2)). Relying on the record and 

the determinations of the general counsel, the controlling 

commissioners reasonably dismissed Complaint Two. 

End Citizens United raises various objections, primarily 

attempting to show the dismissal of Complaint Two was 

contrary to law because it was inadequately reasoned. End 

Citizens United first suggests the controlling commissioners 

should have offered a more detailed explanation rather than 

relying on the general counsel’s findings. But where the 
 

 

 

 

 

 

 

 

 

 

 

 

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controlling commissioners’ “reliance on the General Counsel’s

recommendation and analysis of the relevant statutory 

provisions [is] sufficiently reasonable to be accepted,” this

court “will not disturb their decision.” Democracy 21, 952 F.3d 

at 358 (cleaned up). Second, End Citizens United notes the 

general counsel doubted Hazelwood’s credibility on some 

points. These concerns, however, do not undermine the fact 

that the general counsel did not doubt Hazelwood’s statements 

about the television advertisements that were the subject of the 

coordination claim. And the controlling commissioners 

reasonably concluded the credibility of Hazelwood’s 

statements was bolstered by the fact she made them under 

penalty of perjury. 

Third, End Citizens United points out the general 

counsel’s ultimate recommendation was to defer action on the 

second complaint rather than dismissing it outright. But the 

general counsel also concluded there was insufficient evidence 

to support a reason to believe finding for the second complaint. 

The general counsel’s additional recommendation to defer 

action assumed the Commission would investigate the first 

complaint allegations, which might, in turn, uncover evidence 

of unlawful coordination. But the controlling commissioners 

correctly recognized that their dismissal of the first complaint 

foreclosed any further investigation, which meant no additional 

facts would come to light. And as already discussed, the record 

did not otherwise provide reason to believe a coordination 

violation occurred. The controlling commissioners accordingly 

voted to dismiss for insufficient evidence. That was both 

reasonable and lawful. 

Finally, End Citizens United presses a more conventional 

contrary to law challenge, faulting the controlling 

commissioners for their apparent view that a coordination 

violation was impossible as a matter of law unless at least one 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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“threshold” Complaint One violation also occurred. We need 

not address this parallel reason for dismissal. Even if the 

controlling commissioners were wrong to treat a Complaint 

One violation as a threshold issue, End Citizens United has not 

carried its “burden to demonstrate prejudicial error.” Jicarilla 

Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121 

(D.C. Cir. 2010). The APA directs courts to take “due

account ... of the rule of prejudicial error,” and that principle 

applies in this context. 5 U.S.C. § 706; Comm’n on Hope, 892 

F.3d at 437 (explaining the APA continues to apply absent a 

clear statement to the contrary). “[W]hen an agency relies on 

multiple grounds for its decision, some of which are invalid, 

we may nonetheless sustain the decision as long as one is valid 

and the agency would clearly have acted on that ground even if 

the other were unavailable.”8 Bally’s Park Place, Inc. v. NLRB, 

646 F.3d 929, 939 (D.C. Cir. 2011) (cleaned up). 

As already discussed, the three controlling commissioners 

determined there was no reason to believe impermissible 

coordination had occurred. With a deadlocked Commission 

and short of the four votes necessary for an investigation, 

dismissal was required under FECA. See Combat Veterans, 

795 F.3d at 153; see also Public Citizen, Inc. v. FERC, 839 F.3d 

1165, 1170 (D.C. Cir. 2016) (explaining that, unlike in the 

context of FERC deadlocks, FECA “compels [the] FEC to 

dismiss complaints in deadlock situations”). 

8 End Citizens United also asserts the controlling commissioners’

evidentiary conclusion cannot have been an independent basis for 

dismissal because their discussion cross-referenced the discussion 

about “threshold” violations. But the failure to find reason to believe 

was sufficient for dismissal as a matter of law, and a mere crossreference does not change that conclusion. See Combat Veterans, 

795 F.3d at 153. Nothing in the Statement of Reasons suggests the 

controlling commissioners thought otherwise. 
 

 

 

 

 

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While the dismissal of Complaint Two is reviewable, End 

Citizens United has failed to show the dismissal was contrary 

to law. The controlling commissioners reasonably credited the 

general counsel’s careful evidentiary determinations and 

concluded the record provided no reason to believe a violation 

had occurred. 

* * * 

The Commission’s dismissal of Complaint One was an 

unreviewable exercise of prosecutorial discretion. The 

dismissal of Complaint Two was reviewable, and the district 

court correctly held the Commission’s dismissal was not 

contrary to law. We therefore affirm the district court’s 

judgment as modified. 

So ordered. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PILLARD, Circuit Judge, concurring in part and dissenting 

in part: The Federal Election Commission (FEC or 

Commission) dismissed two complaints. I agree with the 

majority that the Commission’s dismissal of the second 

complaint is reviewable and that it was not contrary to law. 

Accordingly, I join Part II.B. of the majority opinion. I dissent 

from the majority’s ruling that an invocation of enforcement 

discretion by a non-majority of commissioners as to certain 

claims in the first complaint prevents us from reviewing that 

complaint. Even if I agreed that such a non-majority statement 

barred judicial review, I would dissent from the court’s 

decision to apply that bar more broadly than did the 

commissioners themselves. 

Congress passed the Federal Elections Campaign Act 

(FECA) to address corrosive influences of money in politics. 

Responsive to the distinctive challenges of regulating political 

activity, FECA is unique among federal laws in three important 

ways. First, to prevent partisan domination, the law’s primary 

enforcer—the six-member Commission—has no partisan 

majority or chair and cannot officially take enforcement actions 

without a bipartisan majority. Second, to avoid nullification of 

FECA by a non-majority bloc of commissioners refusing to act 

on apparent violations of campaign-finance laws, Congress 

made such refusals to act—no matter the reason—reviewable 

in court. If a court holds that the allegations or evidence before 

the FEC present a legally tenable claim, the Commission gets 

another chance to enforce. Recognizing that the Commission 

might still deadlock, FECA includes a third distinctive feature, 

available only if the Commission fails to move forward: a 

private right of action to take up the case independent of FEC 

resources or initiative. 

Five years ago, a divided panel of this court in Citizens for 

Resp. & Ethics in Washington v. FEC (Commission on Hope 

I), 892 F.3d 434 (D.C. Cir. 2018), upended this carefully 

crafted statutory scheme. Embracing a position that no party 
 

 

 

 

 

 

 

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2 

had even briefed and that the FEC disclaimed, the court held 

that Heckler v. Chaney, 470 U.S. 821 (1985), enables a nonmajority bloc of commissioners to shield nonenforcement 

decisions from judicial review, and thereby extinguish the 

private right of action, just by invoking the words 

“prosecutorial discretion.” Three years later, another divided 

panel embraced that misguided decision. Citizens for Resp. & 

Ethics in Wash. v. FEC (New Models I), 993 F.3d 880, 882 

(D.C. Cir. 2021). 

I have explained elsewhere why those rulings conflict with 

FECA’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. 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 v. FEC, 795 F.2d 156 (D.C. Cir. 1986). See 

Citizens for Resp. & Ethics in Wash. v. FEC (Commission on 

Hope II), 923 F.3d 1141, 1145 (D.C. Cir. 2019) (Pillard, J., 

dissenting from denial of rehearing en banc); see also 

Commission on Hope I, 892 F.3d at 442-46 (Pillard, J., 

dissenting). My colleagues have voiced similar concerns. See 

Citizens for Resp. & Ethics in Wash. v. FEC (New Models II), 

55 F.4th 918, 922-32 (D.C. Cir. 2022) (Millett, J., dissenting 

from the denial of rehearing en banc); New Models I, 993 F.3d 

at 895-906 (Millett, J., dissenting); Campaign Legal Ctr. & 

Democracy 21 v. FEC, 952 F.3d 352, 358-63 (D.C. Cir. 2020) 

(Edwards, J., concurring); Commission on Hope II, 923 F.3d at 

1142 (Griffith, J., concurring in the denial of rehearing en 

banc). 

Since our court’s wrong turn in applying Heckler to 

effectively scuttle FECA’s enforcement mechanism, partisan 

blocs of commissioners have taken advantage of the error. 

They have routinely cited “prosecutorial discretion” to stymie 
 

 

 

 

 

 

 

 

 

 

 

 

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3 

judicial scrutiny of apparently serious FECA violations, evade 

the stimulus to move forward to enforce the law that a correct 

legal interpretation could provide, and annul the private right 

of action that Congress authorized. As Judge Millett has noted, 

“[s]ince Commission on Hope, approximately two-thirds of 

Commission cases dismissed contrary to the General Counsel’s 

reason-to-believe recommendation have included a reference 

to prosecutorial discretion.” New Models II, 55 F.4th at 929 

(Millett, J., dissenting from the denial of rehearing en banc). 

Today, the majority triples down. In applying the two 

mistaken rulings, it compounds their error: The opinion 

incorrectly concludes that the commissioners invoked 

enforcement discretion as to all the claims in the first 

complaint, Maj. Op. 9, when in reality they did so only with 

respect to a portion of them. Because Commission on Hope 

and New Models flout binding precedent, they are not 

themselves “binding on this panel.” Maj. Op. 12. And even if 

they were, nothing in those cases prevents us from considering 

the claims the blocking commissioners dismissed on their 

merits. I respectfully dissent in part. 

I. 

The majority obscures important components of the statute 

we are tasked with interpreting, so I begin with a fuller recap. 

A. 

To protect the democratic process and bolster public 

confidence in it, FECA “seeks to remedy any actual or 

perceived corruption of the political process.” Akins, 524 U.S. 

at 14. One of the ways it does so is by limiting the sources and 

amounts of expenditures and contributions made “for the 

purpose of influencing any election for Federal office.” 52 

U.S.C. § 30101(8)(a)(i), (9)(A)(i); id. § 30116. Soon after 
 

 

 

 

 

 

 

 

 

 

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Congress enacted FECA, however, the Supreme Court began 

to invalidate many of the Act’s expenditure limits as contrary 

to the First Amendment’s guarantee of freedom of speech. See 

Buckley v. Valeo, 424 U.S. 1, 58 (1976) (declaring 

unconstitutional various limits on individual, candidate, and 

campaign expenditures); see also, e.g., Citizens United v. FEC, 

558 U.S. 310, 365 (2010) (declaring unconstitutional the limit 

on corporate expenditures now codified at 52 U.S.C. 

§ 30118(b)). Those decisions leave FECA’s other primary 

tool—disclosure requirements, see, e.g., 52 U.S.C. § 30104— 

to do much of the work of addressing corrosive influences of 

money in politics. Even as the Court struck down expenditure 

limits, it sustained disclaimer, registration, and disclosure 

requirements, approving of them as less restrictive ways to 

“enable[] the electorate to make informed decisions and give 

proper weight to different speakers and messages.” Citizens 

United, 558 U.S. at 371. 

Compliance with campaign finance rules depends on 

effective enforcement and its deterrent effects. Primary 

enforcement responsibility lies with the FEC. See 52 U.S.C. 

§ 30107(a)(6). The Commission is composed of six members, 

no more than three of whom may be affiliated with a single 

political party. Id. § 30106(a)(1). All decisions must “be made 

by a majority vote of the members of the Commission,” with 

the important enforcement decisions specifically requiring a 

bipartisan majority of four or more votes. Id. § 30106(c). That 

means it always takes a majority—indeed, assuming no 

abstentions, a bipartisan majority—to “exercise” the 

Commission’s “duties and powers.” See id. 

In addition to conducting its own investigations, the 

Commission can act on complaints from “[a]ny person” 

alleging campaign finance violations. Id. § 30109(a)(1), (2). 
5 

FECA maps out a four-step enforcement process for the 

Commission to follow in response to a complaint. 

• First, the Commission votes on whether there is “reason to 

believe” that a violation has occurred. Id. § 30109(a)(2). 

To tee up such a vote, the Commission’s Office of General 

Counsel reviews the submissions—including the complaint 

(with any attached materials such as sworn affidavits) and 

response—and offers its recommendations. Guidebook for 

Complainants and Respondents on the FEC Enforcement 

Process, FEC, at 11-12 (May 2012).1 If four 

commissioners vote that there is reason to believe, the 

Commission “shall make an investigation of such alleged 

violation.” 52 U.S.C. § 30109(a)(2) (emphasis added). 

• Second, after the investigation, the Commission votes on 

whether there is “probable cause to believe” that a violation 

has occurred. Id. § 30109(a)(4)(A)(i). If four 

commissioners agree there is probable cause, the 

Commission “shall attempt” informal conciliation efforts. 

Id. (emphasis added). 

• Third, the Commission votes on whether to approve a 

conciliation agreement. Id. 

• Finally, if the conciliation agreement fails to garner four 

votes, “the Commission may, upon an affirmative vote of 4 

of its members, institute a civil action for relief” in federal 

district court. Id. § 30109(a)(6)(A). 

But the Commission need not follow this four-step process 

in every case. It has the power to “vote to dismiss” a complaint 

at any time. Id. § 30109(a)(1). As with “[a]ll decisions of the 

Commission,” dismissal requires a “majority vote.” Id. 

§ 30106(c). One reason the Commission might dismiss a 

1 https://www.fec.gov/resources/cms-content/documents/policyguidance/respondent_guide.pdf. 

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complaint is if the commissioners deadlock—that is, fail to 

obtain a majority as to whether (or how) to proceed. As a 

safeguard against unreasoned deadlocks by commissioners not 

enforcing the law, Congress explicitly provided for judicial 

review of both “dismissal” decisions and “failure[s] to act.” Id. 

§ 30109(a)(8)(C). If the Commission dismisses a complaint or 

fails to act on it within 120 days, an aggrieved party “may file 

a petition” in federal district court. Id. § 30109(a)(8)(A). The 

court may then “declare [whether] the dismissal of the 

complaint or the failure to act is contrary to law.” Id. 

§ 30109(a)(8)(C). A dismissal is “contrary to law” if, among 

other things, the Commission relied on an impermissible 

construction of FECA or if the dismissal was otherwise 

arbitrary, capricious, or an abuse of discretion. Orloski, 795 

F.2d at 161.2 

B. 

As noted above, FECA’s judicial review provision is 

“unusual.” Chamber of Commerce, 69 F.3d at 603. Generally, 

as the Supreme Court has explained, “an agency’s decision not 

to undertake an enforcement action . . . [is] not subject to 

judicial review.” Akins, 524 U.S. at 26 (citing Heckler, 470 

U.S. at 832). But FECA “explicitly indicates the contrary”— 

i.e., that the Commission’s decision not to undertake an 

enforcement action is subject to judicial review. Id. 

To facilitate that review, commissioners voting against the 

General Counsel’s enforcement recommendation have an 

2 The majority suggests in dicta that Orloski and its progeny 

wrongly incorporate arbitrary-and-capricious and abuse-ofdiscretion review into FECA’s contrary-to-law standard. Maj. Op. 

7-8 n.3. I would not wander so far afield. The appellee raised no 

objection to those standards of review, instead quoting as governing 

law the very standards the majority would reject. Appellee Br. 6, 28. 

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opportunity to issue one or more statements explaining the 

reasons for their votes. Common Cause v. FEC, 842 F.2d 436, 

449 (D.C. Cir. 1988). Blocking commissioners’ statements of 

reasons help “to make judicial review a meaningful exercise,” 

FEC v. Nat’l Republican Sen. Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992). A non-majority cannot speak for the 

Commission, 52 U.S.C. § 30106(c), but non-majority 

statements can cast light on the reasons for those members’ 

votes. We have long considered both statements of reasons and 

FEC General Counsel’s reports in determining whether a 

Commission action in dismissing a case is “contrary to law.” 

DCCC, 831 F.2d at 1132, 1134-35. 

FECA’s judicial review provision is unusual for another 

reason. Even when a court determines that a dismissal or 

failure to act is contrary to law, the Commission retains the 

option not to move forward with enforcement. It has 30 days 

to “conform” with the court’s declaration by, for example, 

proceeding to investigate, 52 U.S.C. § 30109(a)(2), or seeking 

to conciliate as to, id. § 30109(a)(4)(i), an apparent FECA 

violation, see id. § 30109(a)(8)(C). If it declines to do so—for 

whatever reason—FECA empowers the original complainant 

to bring a “civil action to remedy the violation involved in the 

original complaint.” Id. In other words, a court cannot force 

the Commission to enforce the law; the statute instead 

authorizes a private litigant to do so, and, even then, only 

following a judicial determination that the Commission’s 

refusal to proceed was contrary to law. 

In sum, judicial review under FECA is the countermeasure 

to otherwise predictable deadlock at the Commission. It is the 

court’s role to detect statutory misreading and thereby prod a 

reluctant FEC to act. And, where the Commission remains 

inert, the court’s ruling paves the way for private enforcement. 

But the court today continues along the path marked by the 
 

 

 

 

 

 

 

 

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wrong turn in Commission on Hope, enabling a non-majority 

of the Commission to diminish the court’s role under FECA 

and to eliminate the private right of action. 

II. 

For our purposes, the facts of this case can be briefly 

summarized. End Citizens United filed two administrative 

complaints against then-candidate Rick Scott, his campaign, 

and New Republican Political Action Committee (New 

Republican). Because I agree with the majority’s treatment of 

the second complaint, I focus on the first. As relevant here, the 

first complaint contained four allegations: (1) that Scott failed 

to timely file a statement of candidacy in violation of 52 U.S.C. 

§ 30102(e)(1); (2) that Scott’s campaign failed to timely file 

the relevant organizational paperwork and disclosure reports in 

violation of 52 U.S.C. §§ 30103(a), 30104; (3) that New 

Republican impermissibly raised and spent money in violation 

of 52 U.S.C. § 30125(e); and (4) that Scott impermissibly 

raised and spent money in violation of 52 U.S.C. § 30125(e). I 

refer to the first two allegations as “Filing Claims,” and the 

latter two as “Soft-money Claims.” 

The Commission held four substantive votes. First, it 

voted on whether there was “reason to believe” that the Filing 

Claims stated FECA violations. The Commission split 3-3, so 

the vote “failed.” J.A. 270 (May 28, 2021, Vote Certification). 

A few weeks later, the Commission voted on: (1) whether to 

dismiss the Filing Claims “under Heckler v. Chaney”; (2) 

whether there was “no reason to believe” the Soft-money 

Claim against New Republican stated a FECA violation; and 

(3) whether to dismiss the Soft-money Claim against Scott. 

Again, the Commission was evenly divided, so those votes also 

“failed.” J.A. 272 (June 14, 2021, Vote Certification). 

Deadlocked, the Commission agreed to “[c]lose the file,” 
 

 

 

 

 

 

 

 

 

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which administratively closed the case. J.A. 273 (June 14, 

2021, Vote Certification). Later, the so-called controlling 

commissioners—the ones who voted against moving forward 

with enforcement—issued a statement of reasons. They 

explained that they (1) “exercised [their] prosecutorial 

discretion regarding” the Filing Claims; (2) “voted to find no 

reason to believe” that New Republican violated the softmoney ban; and (3) “dismissed [the Soft-money Claim against 

Scott] for lack of evidence.” J.A. 290-91. 

III. 

The majority concludes that the dismissal of the first 

complaint is “unreviewable” under “binding precedent” 

because “the controlling commissioners expressly invoked 

their prosecutorial discretion.” Maj. Op. 9, 11. I disagree. 

First, Commission on Hope and New Models are not binding 

precedent because, as noted above, they conflict with earlier 

decisions of the Supreme Court and this court. See Sierra Club 

v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“[W]hen a 

decision of one panel is inconsistent with the decision of a prior 

panel, the norm is that the later decision, being in violation of 

that fixed law, cannot prevail.”). Second, even assuming 

Commission on Hope and New Models are binding precedent, 

the majority is wrong that all of the dismissals are 

unreviewable. 

A. 

The majority repeats the mistakes from Commission on 

Hope and New Models, which continue to call out for 

correction. Those cases held that, when a non-majority 

partisan bloc of commissioners invokes enforcement discretion 

to justify dismissing a complaint, courts cannot review that 

decision under Heckler v. Chaney, 470 U.S. 821. For at least 

three reasons, that is incorrect. 
 

 

 

 

 

 

 

 

 

 

 

 

 

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First, Heckler teaches that an “agency’s decision not to 

prosecute or enforce . . . is a decision generally committed to 

an agency’s absolute discretion.” 470 U.S. at 831 (emphasis 

added). To count as action by the Commission, a decision to 

“dismiss” a claim must “be made by a majority vote.” 52 

U.S.C. §§ 30106(c), 30109(a)(1). A dismissal vote predicated 

on prosecutorial discretion by a majority of commissioners, for 

example, would amount to an agency decision to refuse 

enforcement. If Heckler applied to FECA, that decision might 

be unreviewable. In this case, though, the Commission 

deadlocked; it could not garner a majority vote to do anything 

other than close the file. 

Relying on Commission on Hope and New Models, the 

majority erroneously treats the three controlling 

commissioners’ statement explaining their votes against 

enforcement as the Commission’s decision to refuse 

enforcement. Maj. Op. 9-10. A statement of reasons, even by 

a non-majority causing a deadlock, explains the standstill and 

helps “make judicial review a meaningful exercise.” Nat’l 

Republican Sen. Comm., 966 F.2d at 1476. But we do not— 

and cannot—treat the controlling commissioners’ rationales or 

votes as an “exercise” of the Commission’s “duties and 

powers.” 52 U.S.C. § 30106(c). To the contrary, we have 

explained that a statement of reasons for a non-majority’s vote 

cannot be an “official Commission decision,” since the latter 

requires “at least a 4-2 majority vote.” Common Cause, 842 

F.2d at 449 n.32 (emphasis in original). What is more, FECA 

also provides for review of a “failure to act” on a complaint 

within 120 days, 52 U.S.C. § 30109(a)(8)(C), implying that a 

court may evaluate the legality of inaction even in the absence 

of any vote or statement of reasons. 

Under the majority’s view, it would make no difference 

whether a partisan bloc of three commissioners or a bipartisan 
 

 

 

 

 

 

 

 

 

 

 

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majority of four commissioners voted to dismiss a claim based 

on prosecutorial discretion—both would be unreviewable. But 

under FECA, there is a critically important difference between 

partisan and bipartisan action. Even assuming a bipartisan 

majority’s vote to exercise prosecutorial discretion defeats 

judicial review, affording that power to a non-majority makes 

a mockery of the “carefully balanced bipartisan structure which 

Congress has erected.” Common Cause, 842 F.2d at 449 n.32. 

It is perverse to treat a non-majority’s statement of reasons, 

elicited to facilitate judicial review, as instead its ticket to 

bypass judicial review altogether. That alone shows that 

Commission on Hope and New Models are wrong. 

Second, even if it were appropriate to treat a non-majority 

invocation of prosecutorial discretion as an official 

Commission decision, Heckler still would not apply. Heckler’s 

presumption of non-reviewability is just that: a presumption. 

470 U.S. at 831. It “may be rebutted where the substantive 

statute has provided guidelines for the agency to follow in 

exercising its enforcement powers.” Id. at 833. In Akins, the 

Supreme Court ruled that FECA categorically rebuts that 

presumption because it “explicitly indicates” that the 

Commission’s decision “not to undertake an enforcement 

action” is subject to judicial review to determine whether the 

Commission’s passivity is contrary to law. 524 U.S. at 26. 

Judge Silberman, speaking for our en banc court in Akins, 

described judicial review under FECA as “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). Commission on 

Hope and New Models squarely contravene the Supreme 

Court’s and our own views in Akins, and multiple other 

decisions of our circuit affirming the reviewability of the 

Commission’s non-enforcement decisions. See, e.g., Chamber 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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of Commerce, 69 F.3d at 603; DCCC, 831 F.2d at 1133; 

Orloski, 795 F.2d at 161. 

Third, Heckler emphasizes that an agency’s nonenforcement decision is generally unreviewable because its 

enforcement activity should be “committed to an agency’s 

absolute discretion.” 470 U.S. at 831. That is so because the 

agency must itself assess “whether agency resources are best 

spent on this violation or another, whether the agency is likely 

to succeed if it acts, [and] whether the particular enforcement 

action requested best fits the agency’s overall policies.” Id. 

But judicial review under FECA need not intrude on the 

Commission’s discretion to balance those factors. To the 

contrary, FECA’s creation of a private right of action means 

that, if the Commission declines to investigate a complaint that 

a court holds legally sufficient to proceed, private citizens may 

take up the task without the Commission having to use its own 

resources or act under court direction. See 52 U.S.C. 

§ 30109(a)(8)(C). For this reason, too, the separation-ofpowers concerns that animated Heckler (and that my 

colleagues referenced in New Models I, see 993 F.3d at 888) 

are wholly misplaced in the context of FECA. 

Crucially, the case before us does not raise the question 

whether there may be some circumstances in which FECA 

authorizes the Commission to exercise unreviewable 

enforcement discretion. For example, a bipartisan majority of 

commissioners might be able to shut down the enforcement 

process at the reason-to-believe phase by explicitly dismissing 

a complaint on enforcement-discretion grounds. 52 U.S.C. 

§ 30109(a)(1); Guidebook at 12. In this case, though, the vote 

over whether to dismiss the Filing Claims “under Heckler v. 

Chaney” “failed”—it deadlocked 3-3. J.A. 272 (June 14, 2021, 

Vote Certification). And the commissioners never even held 

such a vote with respect to the Soft-money Claims. So, 
 

 

 

 

 

 

 

 

 

 

 

 

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assuming a bipartisan majority of the Commission could wield 

unreviewable enforcement discretion, it did not do so in this 

case. The Act also expressly grants discretion to halt a case if, 

after the complaint travels through all the prescribed 

checkpoints, the Commission votes against filing a civil action 

for relief. 52 U.S.C. § 30109(a)(6)(A). At that stage, the 

statute switches from specifying that the commission “shall” 

proceed where statutory standards are met, id. § 30109(a)(2), 

(a)(4)(A)(i) (emphasis added), to providing that “the 

Commission may, upon an affirmative vote of 4 of its 

members, institute a civil action for relief,” id. 

§ 30109(a)(6)(A) (emphasis added). This case, however, 

stalled out at the very beginning, at the reason-to-believe phase. 

A non-majority incantation of enforcement discretion at that 

phase cannot interfere with the court’s obligation under FECA 

to decide whether the Commission’s inaction or dismissal was 

“contrary to law”—as it would be, for example, if the 

commissioners voted to dismiss a complaint that, under the law 

as properly understood, gave “reason to believe that the 

respondent has committed or is about to commit a violation” of 

FECA or the presidential campaign funding laws. Id. 

§ 30109(a)(2), (a)(8)(C). 

All these mistakes have something in common: They 

ignore the many ways in which both the Commission and 

FECA’s enforcement scheme are uniquely crafted to avoid 

partisan gridlock. The Supreme Court in Akins appreciated 

how Congress intended to avoid that gridlock. And, before 

Commission on Hope, we did too. 

B. 

The majority not only errs by applying Commission on 

Hope and New Models; it also misreads the record in this case. 

The majority rules that “the controlling commissioners 
 

 

 

 

 

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expressly invoked their prosecutorial discretion when 

dismissing the complaint.” Maj. Op. 9. That is incorrect. The 

controlling commissioners were clear in their statement of 

reasons that they invoked prosecutorial discretion only with 

respect to the Filing Claims. Because the Soft-money Claims 

were dismissed on the merits, they are reviewable. 

The majority contends that my opinion “misreads” the 

statement of reasons, Maj. Op. 11 n.4, but the statement speaks 

for itself. Over and again, the controlling commissioners made 

clear that they invoked prosecutorial discretion only with 

respect to the Filing Claims. In the introduction, the controlling 

commissions explained that they “found no reason to believe 

that New Republican violated the soft money rules and 

dismissed the allegations that Scott untimely filed his 

candidacy and organization paperwork under Heckler v. 

Chaney.” J.A. 282. In a footnote, the controlling 

commissioners addressed the Soft-money Claim against Scott: 

“Having determined there was no path forward on those 

elements, we were required to dismiss” the Soft-money Claim 

because that claim “would have required, at a minimum, a 

threshold finding that Scott had failed to file a statement of 

candidacy at the appropriate time, or that New Republican had 

violated the soft money rules.” J.A. 282 n.2. Later, the 

controlling commissioners repeated that “as regards Rick 

Scott’s alleged failure to timely file his candidacy and 

committee paperwork, we invoked our prosecutorial discretion 

pursuant to Heckler v. Chaney.” J.A. 290. And, in their 

conclusion, they summarized their votes: 

For the foregoing reasons, we voted to find no reason 

to believe that New Republican violated the soft 

money ban, exercised our prosecutorial discretion 

regarding the allegations that Scott and his campaign 

committee failed to timely file candidacy and 
 

 

 

 

 

 

 

 

 

 

 

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organization forms, and dismissed the remaining 

allegations against the Respondents for lack of 

evidence. 

J.A. 290-91. 

The controlling commissioners repeatedly tell us that they 

are dismissing the Soft-money claims on the merits, but the 

majority refuses to take them at their word. It deems the 

dismissal of all four claims unreviewable on the theory that 

“the controlling commissioners expressly invoked their 

prosecutorial discretion when dismissing the complaint.” Maj. 

Op. 9. There is no basis for that conclusion. The majority 

emphasizes that the controlling commissioners at one point say 

that they “determined that this Matter merited the invocation of 

our prosecutorial discretion.” J.A. 290. The majority appears 

to read “this Matter” to mean “all the claims” in the first 

complaint. Maj. Op. 11 n.4. That reading conflicts with what 

the controlling commissioners actually say. After giving their 

reasons for invoking enforcement discretion, the controlling 

commissioners clarify the scope of the invocation: 

“Accordingly, as regards Rick Scott’s alleged failure to timely 

file his candidacy and committee paperwork, we invoked our 

prosecutorial discretion pursuant to Heckler v. Chaney.” J.A. 

290 (emphasis added). And they are even clearer in the 

conclusion, where they invoke prosecutorial discretion only 

“regarding the allegations that Scott and his campaign 

committee failed to timely file candidacy and organization 

forms.” J.A. 290-91 (emphasis added). As to the Soft-money 

Claims, they say that they “voted to find no reason to believe” 

New Republican violated the soft money ban, and dismissed 

the Soft-money Claim against Scott for “lack of evidence.” 

J.A. 290-91. 
 

 

 

 

 

 

 

 

 

 

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The majority erroneously concludes that End Citizens 

United “did not raise this argument on appeal.” Maj. Op. 11 

n.4. In fact, End Citizens United argued that dismissal of the 

Soft-money Claims was reviewable, Appellant’s Br. 23-24, 

specifically described that dismissal as based not on 

enforcement discretion but on an erroneous interpretation of 

FECA, id. 18, and confirmed during oral argument that the 

controlling commissioners invoked discretion only with 

respect to the Filing Claims, not the Soft-money Claims, see 

Oral Arg. Rec. at 7:43-9:48. The parties drew the same battle 

line in the district court, compare ECU Opp. to MTD 28-29, 

End Citizens United PAC v. FEC, No. 21-cv-2128 (D.D.C. 

Sept. 16, 2022), ECF No. 25, with New Republican Reply 11, 

ECF No. 29, and even New Republican does not assert 

forfeiture here. 

The court has erred in empowering a partisan bloc of 

commissioners to invoke enforcement discretion to evade 

review the statute authorizes. Adding to the muddle that error 

has created, today’s majority relies on the bloc’s discretionary 

reasoning about the Filing Claims to avoid reviewing the other 

claims in the first complaint. Because the controlling 

commissioners did not invoke enforcement discretion with 

respect to the Soft-money Claims, I would hold the dismissal 

of those claims reviewable even under Commission on Hope 

and New Models. 

* * * 

As I have explained, Commission on Hope and New 

Models contravene FECA, ignore binding precedent, and 

undercut the distinctive features Congress crafted to prevent 

partisan gridlock. The majority’s first mistake is to act as if 

those decisions are “binding on this panel.” Maj. Op. 12. 
17 

In any event, the majority overstates the reach of those 

cases.3 It deems the dismissal of the Soft-money Claims 

unreviewable even though the controlling commissioners 

never invoked prosecutorial discretion with respect to them. 

That ruling does not follow from Commission on Hope or New 

Models. If our court is going to authorize a non-majority of 

commissioners to thwart FECA by invoking prosecutorial 

discretion, we should take care to do so only where there is an 

actual invocation. I respectfully dissent in part. 

3 Indeed, the majority’s premise—that Commission on Hope and 

New Models govern this case—is itself questionable. Those cases 

are best read as confined to circumstances in which the controlling 

commissioners invoke prosecutorial discretion for reasons that are 

independent of their view of the merits of the claim. See New Models 

II, 55 F.4th at 920-21 (Rao, J., concurring in the denial of rehearing 

en banc) (explaining that judicial review was foreclosed “[b]ecause 

the controlling commissioners relied on an independent ground of 

prosecutorial discretion”); see also, e.g., Campaign Legal Ctr. v. 

FEC, No. 22-5339, 2024 WL 57355, at *5 (D.C. Cir. Jan. 5, 2024) 

(applying New Models “[b]ecause the Commission’s invocation of 

discretion was offered ‘in addition’ to its legal analysis,” rather than 

intertwined with it). 

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