FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

STATEMENT OF CHAIRMAN LEE E. GOODMAN AND COMMISSIONERS 

CAROLINE C. HUNTER AND MATTHEW S. PETERSEN REGARDING THE 

COMMISSION’S VOTE TO AUTHORIZE DEFENSE OF SUIT IN PUBLIC CITIZEN, 

ET AL. V. FEC, CASE NO. 14-CV-00148 (RJL)

For nearly forty years, votes to defend the Commission in cases challenging dismissals of 

administrative complaints have been routine, pro forma acts. Even when the Commission has 

split on whether to proceed in an enforcement matter, the decision to defend has been 

uncontroversial. In recent days, however, our colleague Commissioner Ann Ravel has 

announced her desire to upend this consensus. Not only does this effort derail longstanding 

Commission practice, but more troublingly, it contravenes well-established legal precedents and 

evinces a flippant disregard for judicial review. 

* * *

On January 31, 2014, Public Citizen sued the Commission pursuant to 2 U.S.C. 

§ 437g(a)(8), alleging that the dismissal of its complaint against Crossroads Grassroots Policy 

Strategies (“Crossroads GPS”) was contrary to law.1 Consistent with nearly four decades of 

Commission practice, the Office of the General Counsel (“OGC”) recommended that the 

Commission authorize OGC to defend the Commission in the lawsuit.2 Although the 

Commission ultimately approved the recommendation, two Commissioners, including 

Commissioner Ravel, sought to thwart the defense of the suit by abstaining from the vote.

3

Recently, Commissioner Ravel explained the basis for her obstructionism, saying that our 

decision against finding reason to believe Crossroads GPS — a prominent conservative 501(c)(4) 

organization — was a political committee was “not the position of the Commission. [It] was a 

 1 Public Citizen, et al. v. Federal Election Commission, Case No. 14-cv-00148 (RJL) (D.D.C. filed Jan. 31, 

2014). See 2 U.S.C. § 437g(a)(8) (“Any party aggrieved by an order of the Commission dismissing a complaint 

filed by such party under paragraph (1), or by a failure of the Commission to act on such complaint during the 120-

day period beginning on the date the complaint is filed, may file a petition with the United States District Court for 

the District of Columbia.”). 

2 The Federal Election Campaign Act (“the Act”) requires a vote of at least four Commissioners to authorize 

defense of lawsuits brought under § 437g(a)(8). 2 U.S.C. § 437d(a)(6). 

3 Public Citizen, et al. v. Federal Election Commission, Certification, Mar. 18, 2014.
Statement Regarding Defense of Suit

Page 2

non-decision.”4 In the process, Commissioner Ravel derided the federal courts in astonishing 

fashion, accusing them of acting as a “rubber-stamp approval of inaction.”5 

Commissioner Ravel’s strident contentions, however, run into a brick wall when 

confronted by the controlling law of the D.C. Circuit, which could not be more clear.6 As the 

court explained in FEC v. National Republican Senatorial Committee, 

[W]hen the Commission deadlocks 3–3 and so dismisses a complaint, that 

dismissal, like any other, is judicially reviewable under § 437g(a)(8). . . . [T]o 

make judicial review a meaningful exercise, the three Commissioners who voted 

to dismiss must provide a statement of their reasons for so voting. Since those 

Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency’s reasons for acting as it did.7

Far from being a “non-decision,” a dismissal, along with the articulated reasons underlying that 

decision, represent the agency’s position for purposes of judicial review.8 Moreover, governing 

precedent “requires that the same deference be accorded the reasoning of the ‘dissenting’ 

Commissioners who prevent Commission action by voting to deadlock as is given the reasoning 

of the Commission when it acts affirmatively as a body to dismiss a complaint.”9 

Accordingly, the Act’s language regarding votes to authorize defense in section 

437g(a)(8) lawsuits must be read through the lens of controlling court decisions requiring that 

Commissioners who vote against proceeding in an enforcement action spell out their reasons for 

doing so. Thus, any effort to undermine the defense of a section 437g(a)(8) lawsuit subverts an 

essential agency obligation to provide the rationale of the controlling group to the court so that 

judicial review is “a meaningful exercise.”10 As the D.C. Circuit has stated, “Absent an 

 4 Dan Morain, Having the Temerity to Challenge Washington Gridlock, Sacramento Bee (April 6, 2014), 

available at http://www.sacbee.com/2014/04/06/6297058/dan-morain-having-the-temerity.html.

5 Ann M. Ravel, How Not to Enforce Campaign Laws, N.Y. Times (Apr. 2, 2014), available t

http://www.nytimes.com/2014/04/03/opinion/how-not-to-enforce-campaign-laws.html?_r=0 .

6 Section 437g(a)(8) requires suits brought under that section be filed in the U.S. District Court for the 

District of Columbia.

7 966 F.2d 1471, 1476 (D.C. Cir. 1992) (citation omitted).

8 On January 8, 2014, we issued a Statement of Reasons explaining the basis for our votes not to adopt 

OGC’s recommendations in this matter. MUR 6396 (Crossroads GPS), Statement of Reasons of Chairman Lee E. 

Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen (“Statement”), available at 

http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf. A Supplemental Statement of Reasons was issued on March 25, 

2014. MUR 6396 (Crossroads GPS), Supplemental Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew Petersen, available at 

http://eqs.fec.gov/eqsdocsMUR/14044352011.pdf.

9 Stark v. FEC, 683 F. Supp. 836, 841 (D.D.C. 1988) (citing Democratic Congressional Campaign Comm. v. 

FEC, 831 F.2d 1131, 1135 (D.C. Cir. 1987)) (“DCCC”).

10 See 966 F.2d 1471 at 1476.
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explanation by the Commissioners for the FEC’s stance, [the court] cannot intelligently 

determine whether the Commission is acting ‘contrary to law.’”11

For judicial review to be meaningful, a reviewing court must be fully informed of all 

perspectives.12 The American adversary system presupposes advocacy of all sides of a question 

in order to fully apprise the court and produce an intelligent resolution.13 Congress subjected 

virtually all substantive Commission decisions to judicial review, the expectation of which 

imposes a duty of responsible conduct upon each Commissioner. Eschewing these principles, 

two Commissioners sought to prevent the Commission from even appearing before the court to 

present the controlling position and answering the court’s questions. Had they succeeded, this 

unprecedented action would have hampered the court’s inquiry and been profoundly 

irresponsible.

Courts have not looked kindly upon the Commission in instances where it has not 

adequately presented its views. For example, in Center for Individual Freedom v. Van Hollen, 

after the Commission deadlocked on whether to appeal the lower court’s decision,14 the D.C. 

Circuit chastised the Commission for its “failure to participate in [the] appeal,” noting that it

“ma[de] it impossible for the court to fully understand the agency’s position on numerous issues 

that have been raised by the parties ... and the import of the Supreme Court’s decisions 

addressing campaign finance law.”15 A failure to defend the controlling position in this instance 

may similarly have invited the court’s ire.

It is important to remember that a vote to authorize defense of a section 437g(a)(8) 

lawsuit is not an endorsement of the controlling group’s legal rationale regarding the merits of 

the case. Rather, the Commission is simply following the judicial instruction to provide the 

 11 DCCC, 831 F.2d at 1132 (citation omitted).

12 See, e.g., United States v. Esquivel-Rios, 725 F.3d 1231, 1239 (10th Cir. 2013) (A court’s “responsibility is 

to ensure an important and novel legal question bound to affect many cases and parties ... gets the full vetting it 

deserves so this court ultimately might be in a position to offer a judgment with the degree of confidence the 

question merits.”).

13 See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 542 (1986) (emphasizing that where 

constitutional questions are presented, a court should “have the benefit of adversary presentation and a full 

development of the relevant facts”); Butz v. Economou, 438 U.S. 478, 512 (1978) (discussing how “the adversary 

nature of the process” is an important procedural safeguard built into the American system of judicial review); 

United States v. Lynch, 598 F.2d 132, 136 (D.C. Cir. 1978) (explaining that the “nature of the adversary process 

requires that ... counsel be accorded a meaningful participation and hearing”).

14 Center for Individual Freedom v. Van Hollen, Certification, Apr. 24, 2012 (Chair Caroline Hunter and 

Commissioners Donald McGahn and Matthew Petersen voted against OGC’s recommendation to decline to appeal 

the district court decision, and Vice Chair Ellen Weintraub and Commissioners Cynthia Bauerly and Steven Walther 

supported the recommendation). 

15 Center for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012). See also Camp v. Pitts, 

411 U.S. 138 142-43 (1973) (per curiam) (discussing steps that might be necessary when the existing record fails “to 

explain administrative action [so] as to frustrate judicial review”).
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rationale of the controlling group to the court for review when there are not four affirmative 

votes to proceed in an enforcement matter. 16 

In the Act, Congress has conditioned enforcement on bipartisan support, meaning that 

the votes of at least four Commissioners are needed before enforcement can proceed. 17 Because

bipartisan support is necessary for an enforcement action to move forward, the Act permits 

judicial review to assess the controlling group’s reasoning and question Commission attorneys in 

instances where such support is lacking. Commentators have observed that “[t]his process of 

judicial oversight is designed to provide a check against possible strategic or partisan behavior 

on the part of the commissioners.”18 Therefore, far from being “a rubber-stamp approval of 

inaction,”19 courts play an integral role in ensuring the reasonableness of Commission decisionmaking. 

Rather than exhibiting confidence in her substantive convictions, Commissioner Ravel 

has gone to extraordinary and unprecedented lengths to try to censor presentation of the agency’s 

rationale for its prosecutorial decision in the Crossroads GPS matter. The process by which 

courts review agency actions, including dismissals, is well established. It is in the best interest of 

the American public for Commissioners to respect that judicial-review process rather than 

frustrate it. 

 16 Some might attempt to argue that denying legal representation to a controlling Commission position with 

which one disagrees is a principled use of the vote to authorize defense granted by 2 U.S.C. § 437c(c) (requiring 

four votes to authorize defense of suit). But this “ends-justifies-the-means” approach ignores the public importance 

of deferential judicial review. There is nothing principled about censoring viewpoints to be presented before the 

courts. 

17 2 U.S.C. § 437g(a). No more than three members of Commission may be affiliated with the same political 

party. Id. § 437c(a)(1)

18 Todd Lochner and Bruce E. Cain, Equity and Efficacy in the Enforcement of Campaign Finance Laws, 77 

Tex. L.R. 1891, 1907 n.59 (June 1999).

19 See Ravel, supra n. 5.