NOT YET SCHEDULED FOR ORAL ARGUMENT 

____________________ 

No. 18-5239 

____________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________ 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

 ____________________ 

F8, ELI PUBLISHING, AND STEVEN J. LUND, 

Intervenor-Appellees, 

____________________ 

On Appeal from the United States District Court 

for the District of Columbia, Case No. 1:16-cv-00752-TNM 

____________________ 

BRIEF OF AMICUS CURIAE CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON IN SUPPORT OF PLAINTIFFSAPPELLANTS 

Stuart C. McPhail 

smcphail@citizensforethics.org

Adam J. Rappaport 

arappaport@citizensforethics.org

Laura C. Beckerman 

lbeckerman@citizensforethics.org 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON

1101 K Street, N.W., Suite 201 

Washington, D.C. 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Counsel for Amici 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1), Citizens for Responsibility 

and Ethics in Washington hereby certify as follows: 

I. Parties and Amici 

All parties, intervenors, and amici appearing before the district court and in 

this Court are listed in the Brief of Appellant. 

II. Rulings Under Review 

References to the ruling at issue appears in the Brief for Appellant. 

III. Related Cases 

References to any related cases appear in the Brief for Appellant. This case 

was not previously before this Court.

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rules of Appellate Procedure 26.1 and 29, and D.C. 

Circuit Rule 26.1, Citizens for Responsibility and Ethics in Washington (“CREW”) 

submits its corporate disclosure statement. 

(a) CREW has no parent company, and no publicly-held company has a ten 

percent or greater ownership interest in CREW. 

(b) CREW is a non-profit, non-partisan corporation organized under section 

501(c)(3) of the Internal Revenue Code. Through a combined approach of 

research, advocacy, public education, and litigation, CREW seeks to protect the 

rights of citizens to be informed about the activities of government officials and to 

ensure the integrity of those officials. Among its principal activities, CREW files 

complaints with the Federal Election Commission to ensure enforcement of federal 

campaign finance laws and to ensure its and voters’ access to information about 

campaign financing to which CREW and voters are legally entitled. CREW 

disseminates, through its website and other media, information it learns in the 

process of those complaints to the wider public.

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TABLE OF CONTENTS 

Certificate as to Parties, Rulings, and Related Cases ............................................... ii 

Corporate Disclosure Statement ................................................................................ i 

Table of Contents ...................................................................................................... ii 

Table of Authorities ................................................................................................. iii 

Statement of Interest .................................................................................................. 1 

Glossary...................................................................................................................... 2 

Summary of Argument............................................................................................... 1 

Argument.................................................................................................................... 4 

I. Supreme Court and Prior Circuit Authority Require Judicial Review 

 and Reversal of Partisan Discretionary Dismissals ....................................... 5 

II. The CREW Cases Misread Heckler .............................................................. 11 

III. The CREW Cases Conflict with the FECA .................................................. 14 

A. The CREW Decisions Upend the FEC’s Bipartisan Structure ................ 14

B. The CREW Decisions Nullify the Statutory Citizen Suit Provision ......... 19

C. CREW’s “Unreviewable” Discretion Raises Significant First 

Amendment Concerns ............................................................................... 24

Certificate of Compliance .......................................................................................... 1 

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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ............................... 6, 24, 27 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................... 1, 20 

Chamber of Commerce of U.S. v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) .............................................................. 2, 5, 8, 9, 11 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ............................................... 16 

Citizens United v. FEC, 558 U.S. 310 (2010)................................................... 20, 25 

CLC v. FEC, 312 F. Supp. 3d 153 (D.D.C. 2018) .................................................1, 5 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ......................................... 16 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ......................... 1, 10, 12, 17, 22 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ....................... 2, 5, 10, 11, 17, 22, 24 

CREW v. FEC, 923 F.3d 1141 

(D.C. Cir. 2019) (en banc) ....................................... 1, 2, 4, 5, 8, 14, 18, 19, 22, 23 

Democratic Congressional Campaign Comm. v. FEC (DCCC), 

831 F.2d 1131 (D.C. Cir. 1987) ............................................................................. 5 

Dunlop v. Bachowski, 421 U.S. 560 (1975) ............................................................. 13 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and 

Const. Trades Council, 485 U.S. 568 (1988) ....................................................... 27 

FEC v. Akins, 524 U.S. 11 (1998) ......................................................... 5, 6, 7, 13, 20 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ................. 24 

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 

769 F.3d 1127 (D.C. Cir. 2014) ........................................................................... 16 

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Heckler v. Chaney, 470 U.S. 821 (1985) ................................................ 2, 12, 13, 23 

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ........................................ 12 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .................................................. 16 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................................................................... 16 

Lamont v. Postmaster Gen. of the United States, 381 U.S. 301 (1965) .................. 25 

Mayo Found. for Med. Educ. & Research v. United States, 

562 U.S. 44 (2011) ............................................................................................... 16 

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29 (1983) ............................................................................................... 23 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ....................................... 5, 9, 10, 11 

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1 (1986) ................. 3 

Schneider v. New Jersey, Town of Irvington, 308 U.S. 147 (1939) ........................ 25 

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ........................................ 3, 25 

Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996) ................................................ 9 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ............................................ 6 

Southworth v. Bd. of Regents of Univ. of Wisc. Sys., 

307 F.3d 566 (7th Cir. 2002) ................................................................................ 26 

Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) .................................... 21 

Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016) ..................................................... 20 

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014) ............................................................................... 24 

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ............................................................... 24 

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United States v. Mead Corp., 533 U.S. 218 (2001) ................................................. 16 

Washington Mobilization Comm. v. Cullinane, 

566 F.2d 107 (D.C. Cir. 1977) ............................................................................... 6 

Statutes

15 U.S.C. § 15 .......................................................................................................... 21 

15 U.S.C. § 15f ......................................................................................................... 21 

16 U.S.C. § 1540(g) ................................................................................................. 21 

42 U.S.C. § 2000e-5(f) ............................................................................................. 21 

42 U.S.C. § 4305 ...................................................................................................... 21 

42 U.S.C. § 7604 ...................................................................................................... 21 

52 U.S.C. § 30106(a)(1) ........................................................................................... 15 

52 U.S.C. § 30106(c) ............................................................................................... 15 

52 U.S.C. § 30107(e) ............................................................................................... 20 

52 U.S.C. § 30109(a) .................................................................................. 21, 22, 23 

52 U.S.C. § 30109(a)(2) ........................................................................................... 13 

52 U.S.C. § 30109(a)(4) ........................................................................................... 13 

52 U.S.C. § 30109(a)(8)(C) .............................................................. 7, 15, 19, 22, 23 

52 U.S.C. § 30122 .................................................................................................... 18 

Other Authorities

Daniel Tokaji, Beyond Repair: FEC Reform and Deadlock Deference 

(Mar. 28, 2018), https://bit.ly/2MCDZ88 ............................................................ 16 

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FEC, Minutes of May 21, 2015 Meeting, 

https://www.fec.gov/resources/updates/agendas/2015/transcripts/ 

Open_Meeting_Captions_2015_05_21.txt .......................................................... 26 

FEC, Statement of Vice Chair Ellen L. Weintraub on D.C. Circuit’s 

Decision in CREW v. FEC (June 22, 2018), https://go.usa.gov/xmWC2) .......... 19 

Statement of Reasons of Chair Caroline C. Hunter and Commissioner 

Matthew S. Petersen, MUR 7135 (Trump for President) (Sept. 6, 2018), 

https://www.fec.gov/files/legal/murs/7135/7135_2.pdf ....................................... 18 

Statement of Reasons of Vice Chair Caroline C. Hunter and Commissioner 

Lee E. Goodman, MUR 6872 (New Models) (Dec. 20, 2017) 

https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf ............................................ 18 

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STATEMENT OF INTEREST1

Citizens for Responsibility and Ethics in Washington (“CREW”) is a 

nonpartisan, nonprofit corporation organized under section 501(c)(3) of the 

Internal Revenue Code. Through a combined approach of research, advocacy, 

public education, and litigation, CREW seeks to combat corrupting influences in 

government and protect citizens’ right to be informed about the source of 

contributions used to fund campaign expenditures. Among its principal activities, 

CREW monitors FEC filings to ensure proper and complete disclosure as required 

by law and utilizes those filings to craft reports for public consumption. If CREW 

observes a violation of federal ethics or campaign finance laws, CREW files 

complaints with the FEC under 52 U.S.C. § 30109(a). When necessary, CREW 

seeks judicial review of complaints unlawfully dismissed by the FEC pursuant to 

52 U.S.C. § 30109(a)(8)(A) and engages in citizen suits directly against the 

respondents pursuant to 52 U.S.C. § 30109(a)(8)(C). CREW was the plaintiff in 

the case relied on by the district court below, CREW v. FEC, 236 F. Supp. 3d 378, 

 

1

 Pursuant to Federal Rule of Appellate Procedure 29(a)(2), amici state all parties 

have consented to the filing of this brief. Further, Pursuant to Rule 29(a)(4)(E), 

amici affirm that no counsel for a party authored this brief in whole or in part, no 

party or counsel for a party contributed money that was intended to fund preparing 

or submitting this brief, and no person other than amici or their counsel contributed 

money that was intended to fund the preparation or submission of this brief.

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390 (D.D.C. 2017), and the panel decision on which the FEC relies on appeal, 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018). 

GLOSSARY 

APA Administrative Procedure Act 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

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SUMMARY OF ARGUMENT 

Congress provided the FEC with preliminary authority to enforce the 

Nation’s campaign finance laws: laws that exist to protect “the free functioning of 

our national institutions.” Buckley v. Valeo, 424 U.S. 1, 66 (1976) (internal 

quotations marks omitted). “To avoid agency capture, it made the Commission 

partisan balanced, allowing no more than three of the six Commissions to belong 

to the same political party.” CREW v. FEC, 923 F.3d 1141, 1143 (D.C. Cir. 2019) 

(en banc) (Pillard, J., dissenting). “The balance created a risk of partisan reluctance 

to apply the law [however], so Congress,” aware of the vital importance of 

campaign finance law to our democracy and to individuals in it, “provided for 

judicial review of non-enforcement, and citizen suits to press plausible claims the 

Commission abandons.” Id. at 1143–44. 

A decision relied upon below, CREW v. FEC, 236 F. Supp. 3d 378, 390 

(D.D.C. 2017), eviscerated this congressional check by finding that a partisan bloc 

of commissioners could veto enforcement by both the agency and private parties 

merely by providing a “rational basis” for declining enforcement, even if that basis 

simply repackaged the block’s erroneous legal interpretations. CLC v. FEC, 312 F. 

Supp. 3d 153, 161 (D.D.C. 2018). On appeal, the FEC compounds this error, 

relying on the intervening authority in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 

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2018), to argue that the bloc’s mere incantation of prosecutorial discretion renders 

their partisan veto entirely beyond the reach of the judiciary, notwithstanding 

Congress’s express legislation to the contrary. See FEC Mot. for Summ. Aff., Doc. 

#1752338. Both the FEC here and the district court below erred, however. First, as 

outlined by appellants, it is questionable whether the CREW cases are even 

applicable here. Second and more fundamentally, the authorities are not good law 

as they contravene binding Supreme Court and Circuit authority that explicitly 

provide that the FEC’s “unwillingness to enforce its own rule” is subject to judicial 

review and presents a case where it “would be easy to establish that [the dismissal] 

was contrary to law.” Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603 

(D.C. Cir. 1995). 

The CREW cases’ errors are not limited to conflict with prior binding 

authority. First, they misread the case on which their entire analysis rests, Heckler 

v. Chaney, 470 U.S. 821 (1985). Second, by affording a partisan bloc of the 

Commission an unreviewable veto on enforcement, the CREW cases upset the 

FECA’s careful balance which “requires that all [enforcement] actions by the 

Commission occur on a bipartisan basis.” CREW, 923 F.3d at 1142 (Griffith, J., 

concurring). Third, the CREW cases impermissibly nullified the FECA’s citizen 

suit provision by rendering a precondition to those suits—a judicial finding that 

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dismissal was contrary to law—entirely subject to the partisan bloc’s whim. 

Fourth, the CREW cases’ provision of unreviewable and “unbridled discretion” to a 

partisan bloc of commissioners to choose when and when not to enforce the FECA, 

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975), and to decide which 

complainants may “receiv[e] information” that Congress mandated to be provided 

to them, Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986), 

raises significant First Amendment concerns that counsel against interpreting the 

FECA as the CREW cases do. This Court’s and the Supreme Court’s prior 

precedent do not commit these errors. 

The Court should take the opportunity to confirm that the CREW line of 

cases is contrary to decades-old holdings of this Court and the Supreme Court. In 

line with that prior authority, the Court should reaffirm that the FEC’s 

discretionary dismissals are subject to judicial review to correct any legal error on 

which that dismissal was based. Further, the Court should reaffirm that 

discretionary dismissals of meritorious complaints are the very sort of dismissals 

that Congress intended to lead to citizen suits, particularly where the discretionary 

dismissal is the result of a partisan bloc of commissioners’ decision to stymie 

enforcement. 

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Congress carefully designed the FEC to avoid partisan weaponization and 

partisan shirking by creating the safeguards of judicial review and private 

enforcement in the absence of agency enforcement. The CREW line of cases is 

“contrary to Congress’s intent.” CREW, 923 F.3d at 1143 (Griffith, J., concurring). 

They “eliminat[e] those legal checks against enforcement-shirking” and 

“empower[r] any partisan bloc of the Commission to cut off investigation and 

stymie review of even the most serious violations of federal campaign finance law 

by uttering ‘magic words’ of enforcement discretion.” CREW, 923 F.3d at 1144 

(Pillard, J., dissenting). This Court should correct that error, reinstate Congress’s 

design, and safeguard the free functioning of our national institutions. 

ARGUMENT 

The FEC here and the district court below relied on an erroneous line of 

cases that found the FEC’s discretionary dismissals—even those caused by a 

partisan bloc of commissioners—are not subject to judicial review or are subject to 

only the most deferential review, respectively. The authority on which the FEC and 

the district court relied, however, contravenes binding Supreme Court and Circuit 

authority which expressly hold that such dismissals are both subject to nondeferential judicial review for legal error, and are in fact “easy” cases for reversal. 

Chamber, 69 F.3d at 603. The erroneous precedent also errs in its reading of case 

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law, conflicts with the bipartisan structure of the FECA and the Act’s judicial 

review and citizen suits provisions, and raises significant First Amendment 

concerns. The earlier precedent conforms with the statutory design, avoids these 

constitutional pitfalls, and binds this Court and requires it to ignore the erroneous 

line of authority here. 

I. Supreme Court and Prior Circuit Authority Require Judicial Review 

and Reversal of Partisan Discretionary Dismissals 

The district court below relied in part on a 2017 district court opinion to hold 

that, notwithstanding any legal errors committed by the partisan controlling bloc of 

commissioners, the dismissal here was not contrary to law because the bloc 

provided a “rational”—even if legally erroneous—“basis” for dismissal. CLC, 312 

F. Supp. 3d at 161. On appeal, the FEC relies on a 2018 divided panel decision of 

this Circuit to argue that the partisan bloc’s mere incantation of “prosecutorial 

discretion” rendered the dismissal, and all legal errors contained therein, entirely 

beyond judicial reach. FEC Mot. for Summ. Aff. (citing CREW, 892 F.3d 434). 

These decisions, however, “conflict[] with . . . the Supreme Court’s decision in 

FEC v. Akins, 524 U.S. 11 (1998)[,] and with [this Court’s] decisions in Chamber[, 

69 F.3d 600], 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)].” CREW, 923 F.3d at 1145 (Pillard, J., dissenting). As the CREW line of 

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cases conflict with earlier binding panel decisions—not to mention a Supreme 

Court decision—they must be disregarded. 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 later decision, being in violation of that fixed law, 

cannot prevail.”).2

In Akins, the Supreme Court held that the FECA “explicitly indicates” that 

FEC “decision[s] not to undertake an enforcement action” are subject to judicial 

review, notwithstanding Heckler’s presumption against such review. 524 U.S. at 

26. Unlike the general agency review provisions in the APA that Heckler found do 

not provide for review of agency nonenforcement, the FECA expressly includes 

“an unusual statutory provision which permits a complainant to bring to federal 

court an agency’s refusal to institute enforcement proceedings.” Akins v. FEC, 101 

F.3d 731, 734 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11. 

Rejecting the FEC’s argument that the dismissal below was based on the agency’s 

 

2

 Although the en banc court declined to review the panel decision in CREW for 

inconsistency with this prior precedence, “deny[ing] rehearing en banc does not 

necessarily connote agreement with the decision as rendered,” Washington 

Mobilization Comm. v. Cullinane, 566 F.2d 107, 129 (D.C. Cir. 1977) (en banc) 

(Leventhal, J., concurring), particularly where, as here, every judge who wrote—

both concurring and dissenting from denial of en banc review—expressed 

disagreement with the panel decision. 

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discretion and was thus unreviewable, Reply Br. for Pet’r, FEC v. Akins, 524 U.S. 

11 (1997) (No. 96-1590), 1997 WL 675443, at *9 n.8, the Supreme Court held that 

plaintiffs could seek review of even a “discretionary agency action” to obtain 

correction of any “improper legal ground” given to support dismissal. Akins, 524 

U.S. at 25.3

 

In DCCC, this Court similarly recognized that discretionary dismissals—

particularly those resulting from partisan splits of the commissioners—are subject 

to judicial review. 812 F.2d at 1133–34. Rejecting the FEC’s suggestion that a 3-3 

split was an unreviewable exercise of prosecutorial discretion, the Court 

recognized that “a 6-0 decision not to initiate an enforcement action presumably 

would be reviewable under the words of § [30109](a)(8)(C), although a unanimous 

vote might represent a firmer exercise of prosecutorial discretion than a 3-2-1 

division.” Id. The Court “resist[ed] confining the judicial check [in 

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

 

3

 The panel decision in CREW attempted to sidestep Akins by limiting its facts to a 

case that considered a dismissal “based entirely on [the FEC’s] interpretation of the 

statute.” CREW, 892 F.3d at 441 n.11. Nevertheless, the CREW panel decision also 

fails on its own interpretation of Akins, as the Court found plaintiffs’ injury was 

redressable notwithstanding any invocation of discretion. See CREW, 923 F.3d at 

1146 (Pillard, J., dissenting). 

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holding “judicial intervention serves as a necessary check” where the agency was 

“unable or unwilling to apply ‘settled law to clear facts.’” Id. at 1134, 1135 n.5 

(emphasis added).4

 

Similarly, this Court held in Chamber that the FEC’s “unwillingness” to 

proceed was not only subject to judicial review, but in fact that “it would be easy to 

establish that such agency action was contrary to law” because “the Commission’s 

refusal to enforce would be based not on a dispute over the meaning of the 

applicability of the rule’s clear terms.” 69 F.3d at 603. In the case, two groups 

sought judicial review of a FEC regulation, and the FEC challenged the plaintiffs’ 

standing because three commissioners had already committed to exercising their 

discretion to block enforcement. Id. This Court found standing despite this 

discretionary commitment to nonenforcement, recognizing that the FECA “is 

unusual in that it permits a private party to challenge the FEC’s decision not to 

enforce” and thus that enforcement is not left to the discretionary choice of the 

 

4

 Both the Circuit Court and district court CREW decisions ignored this authority, 

likely because the FEC did not dispute before either court that its discretionary 

dismissals were in fact subject to judicial review. CREW, 923 F.3d at 1143 (Pillard, 

J., dissenting). 

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commissioners. Id.5

 Rather, it found that if the plaintiffs later violated the 

challenged regulation, a complainant could seek judicial review of the controlling 

bloc’s discretionary dismissal of a complaint against the plaintiffs and “eas[ily]” 

establish the dismissal was contrary to law because the agency’s “unwillingness” 

to enforce was per se “contrary to law.” Id. The complainant could then either 

obtain reversal of the discretionary decision from the Commission or else be 

permitted to bring its own suit against the plaintiffs. Id. Therefore “even without a 

Commission enforcement decision, [plaintiffs] [were] subject to litigation 

challenging . . . their actions if contrary to the Commission’s rule.” Id.6

 

Finally, in Orloski, this Court recognized that all FEC dismissals are subject 

to review to determine whether they are contrary to law. 795 F.2d at 161. Orloski

recognized dismissals could be contrary to law either because they contained legal 

error or because they were otherwise arbitrary, capricious, or an abuse of 

discretion. Id. Indeed, it recognized that the latter review was only appropriate 

 

5

 Though related only to standing and not the merits, the conclusion that the FEC 

could not prevent enforcement through its discretionary enforcement choice was 

“necessary to [the opinion’s] result” and thus part of its holding. Seminole Tribe of 

Fl. v. Florida, 517 U.S. 44, 67 (1996). If the commissioners’ decision was indeed 

unreviewable, as the CREW decisions held, then the plaintiffs faced no realistic 

threat of enforcement and would not have had standing. 

6

 As with DCCC, both of the CREW decisions ignored this authority. 

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where a court confirmed that the dismissal rested on “permissible interpretation[s] 

of the statute.” Id. In other words, Orloski requires the FEC to show no legal error 

in the controlling commissioners’ analysis before a court moves to the more 

deferential review. 

The CREW cases are wholly inconsistent with Akins, DCCC, Chamber, and 

Orloski. Contrary to Akins’ command that Heckler was “explicitly” inapplicable 

and that plaintiffs may obtain correction of legal error contained in discretionary 

FEC actions, both the district court and the divided Circuit panel CREW decisions 

relied on Heckler to ignore the FEC’s legal error in dismissal or even to render the 

FEC’s discretion “unreviewable.” See CREW, 892 F.3d at 438, 439 (holding 

Heckler “controls this case”); CREW, 236 F. Supp. 3d at 390 (relying on Heckler

to find that “the Court will not meddle with that decision [to dismiss]”). Contrary 

to DCCC’s holding that three commissioners’ exercise of prosecutorial discretion 

was subject to judicial review, the CREW cases rendered the dismissal entirely 

beyond judicial review, CREW, 892 F.3d at 438, or subject to such deference as to 

be effectively beyond judicial review, CREW, 236 F. Supp. 3d at 390. Contrary to 

Chamber’s command that dismissals of complaints “based not on a dispute over 

the meaning of the applicability of the rule’s clear terms” but solely on the 

Commission’s “unwillingness to enforce” are per se contrary to law, 69 F.3d at 

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603, the CREW cases treat such dismissals as per se consistent with law. Finally, 

contrary to Orloski’s command to only proceed to a discretionary “abuse of 

discretion” review after a court has confirmed the dismissal was based entirely on 

“permissible interpretation[s] of the [law],” 795 F.2d at 115, the CREW cases 

render the commissioners’ interpretations beyond judicial review if the 

commissioners elect to include two magic words—“prosecutorial discretion”—in 

their statement of reasons. 

The CREW cases conflict with binding Supreme Court and Circuit 

precedent. This Court is bound to follow the precedent of the Supreme Court and 

the prior decisions of this Circuit. As such, the Court should declare the CREW

cases are in conflict and thus will not be followed here, were erroneously followed 

below, and are not binding on any future court. 

II. The CREW Cases Misread Heckler

Though the CREW cases’ conflict with binding precedent is sufficient to 

render them inapplicable, the CREW cases also rest on fundamental misreading of 

Heckler. In both the divided circuit panel and the district court decision in CREW, 

the courts read Heckler to immunize agency legal error from judicial review 

whenever controlling commissioners voluntarily elect to invoke prosecutorial 

discretion. See CREW, 892 F.3d at 439 (relying on ground on which controlling 

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bloc “placed their judgment”); CREW, 236 F. Supp. 3d at 391. As such, they read 

Heckler to provide a discretionary partisan veto on judicial review. That is not, 

however, what Heckler provides. 

In Heckler v. Chaney, the Supreme Court held that the APA and the Federal 

Food, Drug, and Cosmetic Act did not provide for judicial review of the Food and 

Drug Administration’s decision to decline an enforcement action. 470 U.S. at 836–

37. In explaining its decision to treat, as a category, all nonenforcement actions as 

unreviewable under these statutes, the Court recognized that nonenforcement 

actions often involve “complicated balancing of a number of factors which are 

peculiarly within [the agency’s] expertise.” Id. at 831. Nonetheless, Heckler was 

interpreting two statutes to exclude a whole class of agency action from review; 

Heckler did not condition judicial scrutiny of otherwise reviewable action on the 

agency’s expressed justification. See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 

270, 281 (1987) (the agency’s “formal action, rather than its discussion,” was 

“dispositive” on the availability of review). In so holding, Heckler recognized the 

question of whether certain action was subject to review was one for Congress to 

make in drafting the statute. See Heckler, 470 U.S. at 837. 

Accordingly, Heckler also recognized that this exception to judicial review 

was merely a “presumption” that would be “rebutted” where Congress subjected 

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13 

nonenforcement to review. Id. at 833. In doing so, Heckler relied on Dunlop v. 

Bachowski, 421 U.S. 560 (1975), a decision which found an agency 

nonenforcement action was reviewable under the terms of a different statute, see

Heckler, 470 U.S. at 833.7

 

Thus, Heckler is a decision about statutory interpretation: i.e., which statutes 

provided for judicial review of agency nonenforcement actions. As a matter of 

statutory interpretation, the FECA “explicitly indicates” that the FEC’s 

nonenforcement actions are subject to judicial review. Akins, 524 U.S. at 26. 

Heckler did not empower a partisan bloc of commissioners to contravene 

Congress’s legislative decree whenever they liked simply by invoking 

discretionary rationales. The CREW cases misread Heckler; an error not committed 

by the Supreme Court in Akins or by this Circuit in DCCC, Chamber, or Orloski. 

 

7 Heckler noted that in Dunlop, Congress had provided for judicial review of 

agency nonenforcement by commanding the agency “shall investigate [a] 

complaint and, if [it] finds probable cause to believe that a violation occurred . . . 

shall . . . bring a civil action.” Heckler, 470 U.S. at 833 (quoting Dunlop, 421 U.S. 

at 567, n.7).That is remarkably similar to the language in the FECA, which 

provides that the commissioners “shall make an investigation” of a complaint 

raising a “reason to believe” a violation occurred and “shall attempt . . . to correct 

or prevent [a] violation” of the FECA if there is “probable cause” to believe a 

violation occurred. 52 U.S.C. § 30109(a)(2), (4).

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14 

III. The CREW Cases Conflict with the FECA 

As noted above, in the FECA Congress both created a significant check 

against partisan abuse of the FEC and created significant safeguards against 

partisan gridlock by permitting judicial review of nonenforcement and civil suits 

where the FEC is disinclined to proceed with a meritorious complaint. The CREW

decisions, however, conflict with that structure. First, they empower a partisan bloc 

of commissioners to veto enforcement by either the agency or civil plaintiffs, 

upending Congress’s requirement of bipartisan consent for any FEC decision. 

Second, the CREW cases nullify the citizen suit provision by rendering the 

prerequisite for exhaustion—a judicial finding the dismissal was contrary to law—

impossible. Third, the CREW cases impermissibly burden First Amendment rights 

by providing commissioners unbridled discretion to determine what speakers are 

subject to the FECA and what listeners may receive information Congress 

mandated. 

A. The CREW Decisions Upend the FEC’s Bipartisan Structure 

The FECA “requires that all [enforcement] actions by the Commission occur 

on a bipartisan basis.” CREW, 923 F.3d at 1142 (Griffith, J., concurring). The 

statute provides that FEC enforcement actions require the consent of four 

commissioners, while prohibiting any more than three commissioners from sharing 

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15 

a political party. 52 U.S.C. § 30106(a)(1), (c). That is true both for decisions to 

enforce and decisions not to enforce.8

The bipartisan structure creates a serious risk of gridlock where four votes are 

unavailable for any option. In that situation, nothing happens—neither an 

investigation nor a dismissal—until four commissioners can come to an agreement. 

Typically, the commissioners who wish to go forward agree to dismiss the case for 

the limited purpose of obtaining judicial review and reversal of the blocking 

commissioners’ interpretations of law. See, e.g., JA 163–67. In the absence of 

these concurring votes, there would be no dismissal and no decision for a court to 

review.9

 Thus in the event of deadlock, the catalyst for the agency action under 

review is not, in fact, the so-called “controlling” commissioners who blocked 

enforcement, but rather the concurring commissioners who want a court to review 

 

8

 52 U.S.C. § 30106(c) (“All decisions of the Commission . . . shall be made by a 

majority vote.” (emphasis added)). Although the Commission may deadlock on a 

“reason to believe” vote, the deadlock does not itself dismiss the case. Rather, a 

fourth commissioner (or in the case of a 2-2 split, all the commissioners) must 

agree to dismiss the case in the face of the deadlock. See, e.g., JA 138–39 (splitting 

3-3 on reason to believe votes, then voting 6-0 to “close the file”). 

9

 A complainant could nonetheless sue for the FEC’s failure to act if no final action 

were taken. 52 U.S.C. § 30109(a)(8)(C). A court could then find the persistent 

deadlock contrary to law, and the concurring commissioners could block the 

agency’s conforming to the declaration, thereby authorizing a citizen suit to 

proceed. 

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and correct their colleagues’ errors. Cf. Common Cause v. FEC, 842 F.2d 436, 449 

(D.C. Cir. 1988) (recognizing the legal interpretations to be evaluated are stated in 

the declining-to-go-ahead commissioners’ statement of reasons). In that case, the 

only bipartisan question adopted by the agency and put to the court is whether the 

blocking commissioners’ idiosyncratic interpretations of law are permissible.10 The 

personal belief of three commissioners that resources are better spent elsewhere (or 

 

10 For this reason, In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000), was also 

wrong to conclude that the analysis of three commissioners could ever deserve 

deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Three 

commissioners may never speak on behalf of the Commission and a statement 

adopted by three commissioners never bears force of law. Common Cause, 842 

F.2d at 449 n.32, a prerequisite for Chevron deference, see Kisor v. Wilkie, 139 S. 

Ct. 2400, 2416 (2019) (deference appropriate only for “agency’s ‘authoritative’ or 

‘official position’”); United States v. Mead Corp., 533 U.S. 218, 237 (2001) 

(Chevron not available when agency’s authority to make rules with “force of law . 

. . was not invoked”); Mayo Found. for Med. Educ. & Research v. United States, 

562 U.S. 44, 57 (2011) (Chevron applies only to agency statements with “force of 

law” with “binding” effect); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of 

Homeland Sec., 769 F.3d 1127, 1137 (D.C. Cir. 2014) (lack of statement’s binding 

effect on third parties “conclusively confirms” Chevron deference was 

unavailable); Daniel Tokaji, Beyond Repair: FEC Reform and Deadlock Deference 

at 3 (Mar. 28, 2018), https://bit.ly/2MCDZ88 (FEC deadlocks do not deserve 

Chevron deference). In remanding this action to the court for review, this Court 

should clarify that In re Sealed Case is no longer good law and that courts owe no 

deference to interpretations endorsed by fewer than four FEC commissioners.

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not spent at all) or that there are other agency priorities (or none at all) is simply 

irrelevant.11

The CREW decisions ignore this fact, and instead treat a partisan bloc of 

commissioners as if they are the entire Commission who may freely direct the 

agency without concurrence from their colleagues across the aisle. Worse, they 

give that bloc “unreviewable,” CREW, 892 F.3d at 438, or effectively 

unreviewable, CREW, 236 F. Supp. 3d at 390, authority to interpret the FECA in 

ways that are clearly contrary to law. The blocking commissioners try to use the 

CREW cases in that way because they rarely dismiss a complaint based on 

discretionary factors alone. Rather, they announce an interpretation of the law that 

guts the FECA and permits the violation alleged, and then they shield that 

interpretation from judicial review by citing discretion as just another basis to 

dismiss: an evergreen option, as a dismissal can always be justified by a desire to 

preserve resources.12 Regulated parties then know that if they violate the FECA, 

 

11 Where four or more commissioners agree to dismiss on the basis of prosecutorial 

discretion, these concerns are not present. Nonetheless, for the reasons addressed 

below and as held in Chamber, the FECA still contemplates that citizen suits 

should be permitted, and the dismissal found contrary to law. This case, however, 

does not raise that specific situation.

12 See, e.g., Statement of Reasons of Chair Caroline C. Hunter and Commissioner 

Matthew S. Petersen at 7, MUR 7135 (Trump for President) (Sept. 6, 2018), 

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18 

but do not violate the blocking commissioners’ idiosyncratic, overly narrow, and 

legally unsupported reading of the FECA, they are immune from enforcement. 

They also know that, under the FEC’s interpretation of CREW, no court can step in 

to correct this underenforcement because the blocking commissioners will simply 

invoke their discretion in justifying dismissal, cutting off any judicial review that 

could set the law straight. 

“Giving a non-majority of the [c]ommissioners enforcement discretion 

removes an institutional check on political deadlock that Congress wrote into 

FECA.” CREW, 923 F.3d at 1150 (Pillard, J., dissenting). “Non-majority discretion 

to block action is fatal to FECA if that enforcement discretion is—as [CREW] 

would have it—both judicially unreviewable, and effective in shielding all other 

grounds from review.” Id. It is a “superpower . . . to kill any FEC enforcement 

matter, wholly immune from judicial review.” Id. (quoting FEC, Statement of Vice 

 

https://www.fec.gov/files/legal/murs/7135/7135_2.pdf (interpreting “reason to 

believe” standard, then summarily stating “[f]or these reasons, and in exercise of 

our prosecutorial discretion, we voted against finding reason to believe and to 

close the file.” (emphasis added)); Statement of Reasons of Vice Chair Caroline C. 

Hunter and Commissioner Lee E. Goodman at 31, MUR 6872 (New Models) (Dec. 

20, 2017) https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf (providing thirty-plus 

pages of legal analysis and then footnote citing Heckler ). Indeed, in every 

dismissal of an allegation of a straw donor violation of 52 U.S.C. § 30122 over the 

OGC’s recommendation to pursue enforcement since the district court decision in 

CREW, the blocking commissioners have cited prosecutorial discretion among the 

reasons to dismiss.

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Chair Ellen L. Weintraub on D.C. Circuit’s Decision in CREW v. FEC 1 (June 22, 

2018), https://go.usa.gov/xmWC2). It is a power Congress expressly denied, 

however, and the CREW cases erred in providing it. 

B. The CREW Decisions Nullify the Statutory Citizen Suit Provision 

The CREW decisions conflict with the FECA’s structure in another way: 

they render the FECA’s citizen suit provision superfluous. The FECA not only 

permits complainants to sue the FEC when it fails to enforce, but it also gives 

complainants a private right of action to seek a direct judicial remedy against the 

violator. 52 U.S.C. § 30109(a)(8)(C). Under the FECA, the FEC plays an 

important gatekeeping role to guard against frivolous complaints. See id. Yet the 

FECA also recognizes the concrete interest of private individuals and the vital 

importance of enforcement. So, it permits complainants to seek a civil remedy 

where they raise “plausible claims” and the FEC declines enforcement. CREW, 923 

F.3d at 1144 (Pillard, J., dissenting). 

By creating a private right of action and not leaving enforcement solely to a 

government agency, Congress recognized that campaign finance law not only 

serves the common interest in guarding against a corrupt government, but also 

equally serves particular and concrete interests of individual persons. Campaign 

finance laws guarantee disclosure, providing each voter “with information as to 

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20 

where political campaign money comes from . . . in order to aid th[at] vote[r] in 

evaluating those who seek federal office.” Buckley, 424 U.S. at 66–67 (internal 

quotation marks omitted). This information allows each voter to “place each 

candidate in the political spectrum more precisely,” and “alert[s] the voter to the 

interests to which a candidate is most likely to be responsive.” Id.; see also Akins, 

524 U.S. at 21 (disclosure also serves all persons’ First Amendment interests in 

sharing information with “others to whom they would communicate it”). The 

information also allows all persons—including nonvoters—“to detect any postelection special favors that may be given in return” for political support. Buckley, 

424 U.S. at 67; see also Citizens United v. FEC, 558 U.S. 310, 370 (2010) 

(information allows persons to see if “elected officials are ‘in the pocket’ of socalled moneyed interests”). Each of these interests, “though widely shared,” is still 

“concrete.” Akins, 524 U.S. at 24; see also Spokeo, Inc. v. Robbins, 136 S. Ct. 

1540, 1549 (2016) (recognizing deprivation of information is a concrete harm 

without need to show any additional harm (citing Akins, 524 U.S. at 20–25)). 

In recognition of both the collective harm to the nation and the concrete and 

particularized harm inflicted on individuals by violations of campaign finance law, 

Congress split civil enforcement between a government agency and private 

individuals. See 52 U.S.C. § 30107(e) (providing, “[e]xcept” for citizen suits “in 

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21 

section 30109(a)(8),” the FEC’s has “exclusive” civil enforcement power). In so 

doing, Congress was adopting “a feature of many modern legislative programs.” 

Spann v. Colonial Vill., Inc., 899 F.2d 24, 30 (D.C. Cir. 1990); see also, e.g., 15 

U.S.C. §§ 15, 15f (splitting enforcement of antitrust laws between government 

agencies and private persons); 16 U.S.C. § 1540(g) (splitting enforcement of 

Endangered Species Act between government agencies and private persons); 42 

U.S.C. § 2000e-5(f) (splitting enforcement of anti-discrimination employment 

statute between government agency and private persons); 42 U.S.C. § 4305 

(splitting enforcement of energy statute between agency and private persons); 42 

U.S.C. § 7604 (splitting enforcement of air pollution statute between government 

agency and private persons). The FECA presents a similar duality in enforcement, 

although with a significant gatekeeping role for the FEC appropriate in light of the 

potential First Amendment interests involved. 

Before a private party can bring their own suit, it must file a complaint with 

the FEC. 52 U.S.C. § 30109(a). If the FEC chooses to enforce itself, the 

complainant can do nothing more. If the FEC chooses not to enforce, however, 

then the complainant can seek judicial review of the FEC’s actions. If a court 

agrees with the FEC that the complaint lacked merit, then the court would affirm 

the FEC’s judgment of dismissal and the complainant could not then file a private 

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suit. 52 U.S.C. § 30109(a). If, however, the court found the complaint had merit 

and the Commission committed legal error in its analysis, or acted unreasonably in 

its consideration of the facts, then a court would declare the FEC has acted 

“contrary to law” and remand to the FEC for reconsideration. 52 U.S.C. 

§ 30109(a)(8)(C). The FEC then faces a choice: it can (1) choose to “conform” 

with the court’s declaration and proceed with enforcement or a new lawful 

dismissal, or (2) choose not to conform, and thus step aside and allow the private 

plaintiff to file suit against the subject of the complaint to remedy the violation. Id.

So structured, the FECA creates a sensible gatekeeping role for the FEC—one that 

permits “plausible claims” to proceed while protecting against partisan 

“enforcement-shirking.” CREW, 923 F.3d at 1144 (Pillard, J., dissenting). 

The CREW cases, however, render the possibility of a contrary to law 

judgment essentially impossible. The divided D.C. Circuit panel decision would 

render the FEC’s discretionary dismissals entirely “unreviewable” by courts, 

CREW, 892 F.3d at 438, while the lower court decision holds dismissals to a 

standard that a plaintiff could never meet, CREW, 236 F. Supp. 3d at 390 

(requiring plaintiff to show, e.g., preservation of resources is irrational). Moreover, 

they render private suits impossible in the exact situation private suits are most 

sensible: where the FEC recognizes a complaint has merit but still declines 

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23 

enforcement simply as a matter of its own discretion. Indeed, it would be absurd to 

interpret the FECA to condition a private plaintiff’s suit entirely on the FEC’s 

decisions about “whether agency resources are best spent on this violation or 

another, whether the agency is likely to succeed if it acts, whether the particular 

enforcement action requests best fits the agencies overall priorities,” or “whether 

the agency has enough resources to undertake the action at all.” Heckler, 470 U.S. 

at 831. None of those factors are implicated when a private person—rather than the 

FEC—brings suit.13

Recognizing the Commission’s discretionary decision to decline 

enforcement is “contrary to [the] law” of the FECA, 52 U.S.C. § 30109(a)(8)(C), 

would not risk opening flood gates of private litigation or otherwise remove the 

FEC from its intended gatekeeping role. Rather, it would permit individuals to 

bring citizen suits when they allege “plausible claims,” CREW, 923 F.3d at 1144 

(Pillard, J., dissenting), even when the FEC believes its resources are best spent 

 

13 Further, since any dismissal not based on the merits of the complaint is “contrary 

to law” because it has no “rational connection” to the commissioners’ decision to 

find no “reason to believe” a violation occurred, Motor Vehicle Mfrs. Ass’n of U.S. 

v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 34 (1983); 52 U.S.C. § 30109(a), 

courts are not called on to second-guess the agency’s “complicated balancing of a 

number of factors which are peculiarly within [the agency’s] expertise.” Heckler, 

470 U.S. at 831. Rather a court ignores them, looks at the law and the facts, and 

decides whether the FEC complied with its obligation to investigate complaints 

raising a reason to believe a violation may have occurred. 

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24 

elsewhere. The CREW cases, however, block these suits when they are most useful 

and, by making judicial review contingent on the voluntary choice of a partisan 

bloc of commissioners, impermissibly renders the FECA’s citizen suit provision 

“superfluous, void, [and] insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 

(2001). 

C. CREW’s “Unreviewable” Discretion Raises Significant First 

Amendment Concerns 

Finally, as this Court recognized en banc, affording the Commission 

enforcement discretion “raises First Amendment concerns.” Akins, 101 F.3d at 

744. Those concerns are at their highest where that discretion is entirely 

“unreviewable.” CREW, 892 F.3d at 438. 

The FEC operates in a constitutionally sensitive area “charged with the 

dynamics of party politics.” FEC v. Democratic Senatorial Campaign Comm., 454 

U.S. 27, 37 (1981). Not only do its decisions implicate First Amendment rights to 

speak by deciding when the FECA applies, but it also makes equally 

constitutionally sensitive decisions affecting individuals’ rights “in receiving 

information” by deciding what will be disclosed. Pac. Gas & Elec. Co., 475 U.S. at 

8 (recognizing First Amendment protects both rights to speak and rights to 

receive); see also Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 

10, 16 (D.C. Cir. 2014) (recognizing “First Amendment rights of the public to 

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25 

know the identity of those who seek to influence their vote”). In deciding whether 

to apply the FECA to a respondent, the Commission decides whether persons shall 

receive information to which Congress entitled them—if it chooses not to enforce, 

it censors the recipients’ receipt of that information. See Citizens United, 558 U.S. 

at 333, 341 (finding unconstitutional FEC’s claimed authority that could permit a 

“ban on books” or “pamphlets,” stating “voters must be free to obtain 

information”). 

Given the constitutionally unique position of the FEC—impacting both 

speakers’ and listeners’ rights with its enforcement decisions—enforcement 

discretion is constitutionally problematic. The “liberty to communicate [cannot] 

. . . depen[d] upon the exercise of [a government official’s] discretion.” Schneider 

v. New Jersey, Town of Irvington, 308 U.S. 147, 164 (1939). Accordingly, the 

Constitution denies government officials “unbridled discretion” to decide if and 

when to apply rules that impact First Amendment rights—either a speaker’s or a 

listener’s rights. Se. Promotions, Ltd., 420 U.S. at 553; see also Lamont v. 

Postmaster Gen. of the United States, 381 U.S. 301, 305 (1965) (official’s 

discretion over plaintiff’s receipt of mail violated First Amendment even if the 

government was not required to establish mail service in the first place). 

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26 

The CREW cases, however, confer just such unbridled discretion on the 

FEC—and indeed on a non-majority of commissioners. Under the divided D.C. 

Circuit panel decision, commissioners are free to pick and choose enforcement on 

a whim—censoring a complainant’s access to speech that Congress has 

constitutionally compelled—and to do so without any judicial oversight or legal 

guidance. This raises a very significant risk that discretion can and will be used to 

reward those (either respondents or complainants) with viewpoints supported by 

the blocking commissioners, and to impede those with viewpoints deemed 

disagreeable.14 Of course, the First Amendment deprives officials of this discretion 

even in the absence of evidence of any viewpoint discrimination—the Constitution 

prohibits unbridled discretion in a First Amendment sensitive area regardless of 

how it is used. See, e.g., Southworth v. Bd. of Regents of Univ. of Wisc. Sys., 307 

F.3d 566, 579 (7th Cir. 2002) (holding First Amendment barred “unbridled 

discretion” even in absence of viewpoint discrimination). 

 

14 At least one FEC commissioner has weighed the viewpoints of complainants and 

respondents in the context of enforcement. In a discussion about the 

Commission’s discretion to delay consideration of enforcement matters, one 

commissioner defended that discretion by citing his analysis of the viewpoints of 

parties before the Commission and stating “discretion is important and has a 

partisan impact.” FEC, Minutes of May 21, 2015 Meeting, 

https://www.fec.gov/resources/updates/agendas/2015/transcripts/Open_Meeting_C

aptions_2015_05_21.txt.

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27 

Given the “serious constitutional problems” inherent in interpreting the 

FECA to confer unreviewable enforcement discretion on the FEC, the Court 

should “construe the statute to avoid such problems unless such construction is 

plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf 

Coast Bldg. and Const. Trades Council, 485 U.S. 568, 575 (1988). For reasons 

stated above, it is far from the plain intent of Congress to prohibit judicial review 

of nonenforcement actions—in fact, it is contrary to the very intent expressed in 

the statute. This Court sitting en banc recognized Congress’s intent to afford 

fulsome judicial review in finding that “First Amendment concerns” counseled 

against affording the FEC any discretion that might shortchange that review. Akins, 

101 F.3d at 744. The CREW line of cases never considered the serious 

constitutional problems they were creating in affording unbridled enforcement 

discretion to the FEC. This Court should avoid those problems by reinstating 

judicial review for discretionary dismissals of the FEC and bridling the FEC’s 

discretion by directing review to the only issue that matters: the merit of the 

complaint. 

* * * 

In short, the CREW cases—the district court case relied on below and the 

divided panel relied on here—suffer significant infirmities. They misread the 

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28 

authority on which they rely, upset Congress’s careful bipartisan design for the 

Commission, void the FECA’s private right of action, and create serious 

constitutional problems by affording a partisan bloc of commissioners an 

unreviewable veto on enforcement. That alone is enough reason to dispense with 

them, but they also contradict binding Supreme Court and Circuit precedent which 

this Court must follow. Accordingly, this Could should recognize that the CREW 

cases are an aberration and declare that they are not binding here or on any future 

decision. 

Dated: July 22, 2019 Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Laura C. Beckerman 

(D.C. Bar No. 1008120) 

lbeckerman@citizensforethics.org 

Citizens for Responsibility and Ethics 

in Washington 

1101 K Street, N.W., Suite 201 

Washington, D.C. 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington

USCA Case #18-5239 Document #1798277 Filed: 07/22/2019 Page 38 of 40
1 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1): 

[ X ] this document contains 6,430 words, or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text. 

2. This document 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: 

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or 

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program] with [state number of 

characters per inch and name of type style]. 

Dated: _July 22, 2019_________ /s/ Stuart McPhail 

 Stuart C. McPhail 

Counsel for Amicus-Curiae 

USCA Case #18-5239 Document #1798277 Filed: 07/22/2019 Page 39 of 40
1 

CERTIFICATE OF SERVICE 

I hereby certify that on July 22, 2019, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served. 

/s/ Stuart McPhail

Stuart C. McPhail 

USCA Case #18-5239 Document #1798277 Filed: 07/22/2019 Page 40 of 40