No. 19-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON;

NOAH BOOKBINDER,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 1:18-cv-0076-RC

BRIEF OF CAMPAIGN LEGAL CENTER

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS’ 

PETITION FOR REHEARING EN BANC

Tara Malloy

Megan P. McAllen 

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

Email: tmalloy@campaignlegalcenter.org

Counsel for Amicus Curiae

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Circuit Rule 26.1, Amicus Curiae Campaign Legal Center 

(“CLC”) certifies that it is a nonpartisan, nonprofit corporation that has no parent 

companies, does not issue stock, and in which no publicly held corporation has any 

form of ownership interest. CLC works to protect and strengthen the U.S. democratic 

process across all levels of government, including by supporting campaign finance 

reform through litigation, policy analysis, and public education.

/s/ Tara Malloy

Tara Malloy

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Suite 400

Washington, DC 20005

(202) 736-2200

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ...................................................... ii

TABLE OF CONTENTS...................................................................................... iii

TABLE OF AUTHORITIES .................................................................................iv

GLOSSARY OF ABBREVIATIONS....................................................................vi

STATEMENT OF INTEREST ...............................................................................1

SUMMARY OF ARGUMENT ..............................................................................1

ARGUMENT..........................................................................................................3

I. The panel decision is contrary to precedent and thwarts statutorily 

authorized judicial review..................................................................................3

II. Empowering the FEC to issue legal determinations without scrutiny 

impairs its ability to carry out its important mandate..........................................5

A. The panel’s “magic words” test precludes review in cases where the 

need for judicial intervention is at its apex....................................................6

B. New Models and CHGO have exacerbated FEC dysfunction and 

harmed the core objectives of federal campaign finance law.........................9

CONCLUSION ....................................................................................................12

CERTIFICATE OF COMPLIANCE.....................................................................13

CERTIFICATE OF SERVICE..............................................................................14

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TABLE OF AUTHORITIES

*Authorities upon which appellants principally rely are marked with an asterisk

Cases: Page

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

Campaign Legal Center v. FEC, 952 F.3d 352 (D.C. Cir. 2020).....................1, 4, 7

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)................................4

CREW v. Am. Action Network, 410 F. Supp. 3d 1 (D.D.C. 2019)............................4

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016)..................................................7

*CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CHGO”)........................1, 3, 6, 9

CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019) (“CHGO II”) ................................5

*CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models”).............. 1, 2, 3, 11

*FEC v. Akins, 524 U.S. 11 (1998).....................................................................3, 4

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)...................7

Heckler v. Chaney, 470 U.S. 821 (1985).................................................................3

Lieu v. FEC, 370 F. Supp. 3d 175 (D.D.C. 2019)....................................................4

McConnell v. FEC, 540 U.S. 93 (2003) ................................................................10

Pub. Citizen v. FEC, No. 14-cv-00148-RJL, 2021 WL 1025813 (D.D.C. 

Mar. 17, 2021) ........................................................................................................5

Federal Statutes:

52 U.S.C. § 30109(a)(8)......................................................................................1, 2

Federal Regulations and Administrative Materials:

Certification, MUR 7114 (Casperson for Congress), https://www.fec.gov/

files/legal/murs/7114/17044430961.pdf..................................................................8

FEC, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (May 2012), http://fec.gov/em/respondent_guide.pdf............8

FEC, Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) .......................7

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FEC Response to Questions from House Admin. Comm. (May 1, 2019), 

https://www.fec.gov/resources/cms-content/documents/FEC_Response_to_

House_Admin.pdf...................................................................................................7

Statement of Reasons of Chair Caroline C. Hunter and Comm’r Matthew S. 

Petersen, MURs 6969, 7031, and 7034 (MMWP12LLC et al.) (Sept. 13, 

2018), https://www.fec.gov/files/legal/murs/6969/6969_2.pdf................................8

Statement of Reasons of Chair Ellen L. Weintraub, MUR 6538R (Americans 

for Job Security [Remand]) (Oct. 11, 2019) https://www.fec.gov/files/legal/

murs/6538R/6538R_1.pdf.................................................................................9, 10

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

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

https://www.fec.gov/files/legal/murs/6396/14044350970.pdf.................................5

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

& Matthew S. Petersen, MUR 6589 (American Action Network) (July 30, 

2014), https://www.fec.gov/files/legal/murs/6589/14044362004.pdf................... 10

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

& Matthew S. Petersen, MUR 6538 (Americans for Job Security) (July 30, 

2014), https://www.fec.gov/files/legal/murs/6538/14044361962.pdf....................10

Statement of Reasons of Comm’rs Caroline C. Hunter & Matthew S. 

Petersen, MUR 6402 (Dec. 23, 2014) (American Future Fund), https://www.

fec.gov/files/legal/murs/6402/14044364910.pdf .................................................. 10

Statement of Reasons of Vice Chair Allen Dickerson & Comm’rs Sean J. 

Cooksey & James E. “Trey” Trainor III, MUR 7181 (Independent Women’s 

Voice) (Mar. 18, 2021), https://www.fec.gov/files/legal/murs/7181/7181_

08.pdf ...................................................................................................................11

Statement of Reasons of Vice Chair Allen Dickerson & Comm’rs Sean J. 

Cooksey & James E. “Trey” Trainor III, MUR 7347 (End Citizens United) 

(Apr. 30, 2021), https://www.fec.gov/files/legal/murs/7347/7347_26.pdf...............8

Statement of Reasons of Vice Chair Matthew S. Petersen and Comm’r 

Caroline C. Hunter, MUR 6596 (Crossroads GPS) (May 13, 2019), https://

www.fec.gov/files/legal/murs/6596/6596_2.pdf......................................................7

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Miscellaneous Resources:

Center for Responsive Politics, Outside Spending by Nondisclosing Groups, 

Cycle Totals, https://www.opensecrets.org/outsidespending/nonprof_

summ.php (last visited June 28, 2021) ..................................................................10

Oversight of the Fed. Election Comm’n: Hr’g Before Comm. on House 

Admin. [postponed], 116th Cong. (2019) (Statement of Adav Noti, 

Senior Director, Trial Litigation & Chief of Staff, Campaign Legal 

Center), https://docs.house.gov/meetings/HA/HA00/20190925/109983/

HHRG-116-HA00-Wstate-NotiA-20190925-U1.pdf ..............................................9

Jeremy Broggi, Lee Goodman & Shane Roberts, FEC’s Prosecutorial 

Discretion Deemed Unreviewable by D.C. Circuit, Again, JDSupra (May 

19, 2021), https://www.jdsupra.com/legalnews/fec-s-prosecutorialdiscretion-deemed-8594602. .................................................................................11

Shane Goldmacher, Democrats’ Improbable New F.E.C. Strategy: More 

Deadlock Than Ever, N.Y. Times (June 8, 2021), https://www.nytimes.

com/2021/06/08/us/politics/fec-democrats-republicans.html.................................12

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GLOSSARY OF ABBREVIATIONS

CHGO Commission on Hope, Growth, & Opportunity

CLC Campaign Legal Center

CREW Citizens for Responsibility & Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

MUR Matter Under Review

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STATEMENT OF INTEREST1

Amicus curiae Campaign Legal Center (“CLC”) is a nonpartisan nonprofit 

organization dedicated to promoting and defending sound campaign finance 

reforms. CLC regularly litigates the constitutionality and implementation of the 

Federal Election Campaign Act (“FECA”), including by challenging FEC action 

under 52 U.S.C. § 30109(a)(8), and submitted amicus briefs in connection with both 

panel decisions at issue here, 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) (“CHGO”).

SUMMARY OF ARGUMENT

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

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

App. P. 35(a). The divided panel decision in New Models does both.

First, the majority opinion—building on the errors of CHGO—flouts decades 

of precedent affirming Congress’s “unusual” decision to submit FEC nonenforcement decisions to a judicial check. However, “[a]s the Commission explained 

in its brief to the court in [CHGO], when the Commission dismisses an 

administrative complaint, even as an exercise of prosecutorial discretion . . . Heckler 

1 Pursuant to Federal Rule of Appellant Procedure 29(a)(4)(E), amicus states that 

no person, other than amicus, authored this brief in whole or part, or contributed 

money to fund its preparation or submission. No party opposes CLC’s participation; 

the FEC takes no position.

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v. Chaney does not bar judicial review. The law of the circuit . . . was wellestablished long before the decision in [CHGO].” See CLC v. FEC, 952 F.3d 352, 

362 (D.C. Cir. 2020) (Edwards, J., concurring) (citations omitted). There was no 

justification for the panel’s reticence when FECA expressly provides for review and 

the relevant FEC dismissal was founded on substantive legal analysis.

Second, the panel’s decision is dangerous. Empowering minority blocs of 

Commissioners “to turn off statutorily directed judicial review like a light switch,” 

993 F.3d at 901 (Millett, J., dissenting), does immense damage to the carefully 

balanced enforcement scheme prescribed by Congress. The decision endows

minority blocs with discretionary prerogatives that FECA reserves for bipartisan 

majorities and empowers them to entrench impermissible statutory interpretations 

via unreviewable non-enforcement statements. The gamesmanship this invites is 

already exacerbating longstanding agency dysfunction and undermining FECA’s 

core objectives. 

En banc review is necessary to restore uniformity and coherence to this 

Circuit’s § 30109(a)(8) decisions and bring them back into harmony with the 

statutory scheme Congress devised. 

I. The panel decision is contrary to precedent and thwarts statutorily 

authorized judicial review. 

The controlling Commissioners in this matter issued a 31-page legal analysis 

explaining why New Models could not be regulated as a political committee under 

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FECA, appended a 7-word dependent clause referring to prosecutorial discretion, 

and, “with a wave of that verbal wand,” ensured their legal determinations would 

escape all scrutiny. 993 F.3d at 896 (Millett, J., dissenting). 

In considering this dismissal, the majority acknowledged that FECA is 

“unusual” in that it “allows a private party to challenge a nonenforcement decision”; 

it further conceded that this particular nonenforcement decision was prompted by

the legal conclusion that New Models “was not a ‘political committee’ under the 

Act.” Id. at 882. Nevertheless, citing CHGO, the panel concluded that a glancing 

reference to discretion precluded review for legal error. 

But both New Models and CHGO rest on a premise contradicted by governing 

precedent: that FEC dismissal decisions are “control[led]” by Heckler v. Chaney,

470 U.S. 821 (1985), and its “presumption” that “an agency’s decision not to 

undertake enforcement” is unreviewable, CHGO, 892 F.3d at 439. As the Supreme 

Court has confirmed, FECA “explicitly indicates the contrary.” FEC v. Akins, 524 

U.S. 11, 26 (1998). See also Akins v. FEC, 101 F.3d 731, 734 (D.C. Cir. 1996) (en 

banc) (noting that FECA “permits a complainant to bring to federal court an agency’s 

refusal to institute enforcement proceedings”), vacated on other grounds by 524 U.S. 

11 (1998); Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995). 

Given “FECA’s express provision for the judicial review of FEC dismissal 

decisions,” Heckler is “inapposite.” Lieu v. FEC, 370 F. Supp. 3d 175, 183 (D.D.C. 

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2019) (citing Akins, 524 U.S. at 26). The contrary conclusion reached in these two 

decisions—that the legal bases of FEC non-enforcement decisions are unreviewable 

if accompanied by a reference to “discretion”—is untenable. By providing judicial 

review and a limited private right of action, Congress specifically intended to move 

Commission enforcement actions out of the Heckler framework and subject them to

judicial oversight.

Predictably, CHGO’s radical departure from precedent has already generated

dissent and inconsistent application in the three years since it issued. See, e.g., CLC, 

952 F.3d at 356 (declining to decide whether to follow CHGO and proceeding to 

consider the merits of a “discretionary” dismissal); CREW v. Am. Action Network, 

410 F. Supp. 3d 1, 16 (D.D.C. 2019) (“Nothing in CHGO suggests that the mere 

invocation of the phrase ‘prosecutorial discretion’ precludes judicial review.”).

But although New Models involves a particularly flimsy invocation of 

prosecutorial discretion to defeat review, it hardly stands alone. In a case litigated 

by amicus CLC, a district court recently declined to review the FEC’s 3-3 dismissal 

of a complaint alleging that a group failed to register as a political committee, Pub. 

Citizen v. FEC, No. 14-cv-00148-RJL, 2021 WL 1025813, *5 (D.D.C. Mar. 17, 

2021)—based on a single footnote in the controlling Statement, which followed 28 

pages of legal analysis and merely “note[d] that the Commission maintains broad 

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discretion” that it “could” have applied.2 No discretionary grounds were mentioned 

save a complaint about the “introduction of new legal theories,” id.—itself a legal 

conclusion susceptible to review. But under CHGO, this terse nod to Heckler was 

enough to foreclose all scrutiny. 

II. Empowering the FEC to issue legal determinations without scrutiny impairs 

its ability to carry out its important mandate.

The panel decision is an affront to the carefully balanced statutory scheme 

that Congress devised. It permits the FEC to block review of decisions incorporating 

extensive legal analysis and involving “even the most serious violations of federal 

campaign finance law” by simply calling up the “magic words” of enforcement 

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

dissenting from denial of rehr’g en banc). Worse still, it empowers partisan 

minorities to do so.

The federal campaign finance laws are too important to leave entirely in the 

hands of one partisan faction of Commissioners. Congress did not grant them this 

authority, and recent developments at the FEC well illustrate why. Giving minority 

blocs the power to block judicial review of their interpretations of law only invites

unsustainable decisionmaking and intransigence—a dynamic that has already 

2 Statement of Reasons at 28 n.117, MUR 6396 (Jan. 8, 2014), https://www.fec.

gov/files/legal/murs/6396/14044350970.pdf.

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exacerbated the FEC’s longstanding gridlock and inflicted harm on the federal 

campaign finance laws it is charged to enforce.

A. The panel’s “magic words” test precludes review in cases where the 

need for judicial intervention is at its apex.

Because the FEC is structured to operate by four-vote majority in nearly all 

of its functions, Congress provided for judicial review of non-enforcement decisions 

to “prevent the agency’s frequent deadlock from sweeping under the rug serious 

campaign finance violations.” CHGO, 892 F.3d at 442 (Pillard, J., dissenting). When 

the Commission acts affirmatively—by four or more votes—to exercise its 

prosecutorial discretion, and confines its explanation for that exercise to 

discretionary concerns, review may be more circumscribed. But treating the mere 

mention of discretion as an absolute bar to review in all cases, regardless of the 

substantive vote taken or whether it garnered majority support, short-circuits 

FECA’s judicial check where it is most needed. 

1. Unsustainable interpretations of law. The possibility of tacking on an 

additional “discretionary” ground for dismissal and thereby defeating judicial review 

will prove most irresistible—and pernicious—in cases where the agency lacks a 

defensible legal basis for refusing to proceed. Here, for example, the controlling 

group’s insistence that their analysis of “major purpose” must look to New Models’

entire lifetime of spending, JA107, 123 n.96, was not just manifestly unreasonable. 

The exact same approach in another case had already been held contrary to law. See

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JA136. Nevertheless, a minority bloc has continued to rely on the same faulty legal 

analysis, even where it contradicts both judicial authority and the agency’s binding

statement of policy on major-purpose determinations.

3

2. Interpretations of law that lack majority support. Shielding the legal 

determinations underlying deadlocked enforcement cases from judicial review also

enables partisan minorities to codify their erroneous interpretations of FECA—

although under FECA’s “inherently bipartisan” design this is a power that only four 

Commissioners can exercise. FEC v. Democratic Senatorial Campaign Comm., 454 

U.S. 27, 37 (1981). While a minority “statement of reasons would not be binding 

legal precedent or authority for future cases,” CLC, 952 F.3d at 358 n.2 (citation 

omitted), some Commissioners believe that split votes “should be considered 

binding” and treat them accordingly.4 As a practical matter, therefore, minority 

statements about the law do constrain future enforcement and the conduct of 

3 E.g., Statement of Reasons at 11, 16, MUR 6596 (May 13, 2019), https://www.

fec.gov/files/legal/murs/6596/6596_2.pdf (rejecting consideration of calendar-year 

spending and treating 501(c)(4) tax-exempt status as indicative of major purpose);

CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016) (finding a refusal to consider

group’s calendar-year spending contrary to law); Political Committee Status, 72 Fed. 

Reg. 5595, 5598 (Feb. 7, 2007) (rejecting tax status as valid “substitute[]” for holistic 

and “conduct-based” major-purpose determinations).

4 FEC Response to Questions from House Admin. Comm. 24 (May 1, 2019), 

https://www.fec.gov/resources/cms-content/documents/FEC_Response_to_House_

Admin.pdf; see also, e.g., Statement of Reasons at 3, MUR 7347 (Apr. 30, 2021), 

https://www.fec.gov/files/legal/murs/7347/7347_26.pdf (opining that “the 

Commission should not punish speakers who act in good-faith reliance on” minority

statements).

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regulated parties, at least in the eyes of the Commissioners who would treat them as 

precedential notwithstanding FECA and this Court’s decisions. The controlling 

statement here relied heavily on minority dispositions, see JA103 n.3, 126-27 n.113, 

130 n.127, and has itself been cited in later minority statements.

5

3. Dismissals prompted by votes on legal questions. As CREW notes, Rehr’g 

Pet. 15, the dispositive vote in this case was a legal one: whether there was reason 

to believe New Models violated FECA. If the controlling Commissioners indeed 

were not interested in making any legal findings, they could have moved to dismiss 

for discretionary reasons. See FEC, Guidebook for Complainants and Respondents 

on the FEC Enforcement Process 12 (2012), http://fec.gov/em/respondent_guide.

pdf. They did not do so, JA101-02, although the Commission can and frequently 

does follow that process.6

B. New Models and CHGO have exacerbated FEC dysfunction and harmed 

the core objectives of federal campaign finance law. 

Congress provided for judicial oversight of enforcement dismissals to ensure 

that the Commission was not “turning a blind eye to illegal uses of money in politics, 

and burying information the public has a right to know.” CHGO, 892 F.3d at 442 

(Pillard, J., dissenting). The panel decision reads that safeguard out of the statute, 

5 See Statement of Reasons at 8 n.47, MURs 6969, 7031, & 7034 (Sept. 13, 2018), 

https://www.fec.gov/files/legal/murs/6969/6969_2.pdf.

6 See, e.g., Certification, MUR 7114 (June 26, 2017), https://www.fec.gov/files/

legal/murs/7114/17044430961.pdf (voting to dismiss under Heckler).

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and it does so notwithstanding the Commission’s long history of dysfunction and its 

complete failure to enforce the important disclosure provisions at issue in both New 

Models and CHGO. 

Even in the short interval since CHGO, the specter of unreviewability has 

brought FEC enforcement to a virtual standstill—and there is ample evidence that 

no-voting Commissioners now strategically invoke prosecutorial discretion to avoid 

judicial review. Since June 15, 2018, prosecutorial discretion has been referenced in

the controlling Statement of Reasons with respect to 33 of the 50 FEC enforcement 

matters dismissed contrary to the Office of General Counsel’s reason-to-believe 

recommendation (excluding matters in which the required rationale was not ever 

provided). See Appendix, attached hereto. This dynamic only compounds the usual 

problems plaguing the FEC, where complaints languish for years and deadlocks are 

routine.7

Commission stasis is particularly acute in matters concerning the political 

committee disclosure requirements, which lie “at the heart of the agency’s mission”8

and its mandate under FECA to “provid[e] the electorate with information” and deter

7 See, e.g., Oversight of the FEC: Hr’g Before Comm. on House Admin. 

[postponed], 116th Cong. (2019) (Statement of Adav Noti, Senior Director, Trial 

Litigation & Chief of Staff, CLC), https://docs.house.gov/meetings/HA/HA00/

20190925/109983/HHRG-116-HA00-Wstate-NotiA-20190925-U1.pdf.

8 Statement of Reasons at 1, MUR 6538R (Oct. 11, 2019), https://www.fec.gov/

files/legal/murs/6538R/6538R_1.pdf.

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corruption. McConnell v. FEC, 540 U.S. 93, 196 (2003). Since at least 2010, the 

Commission has not applied the major-purpose test to pursue enforcement against a 

single group for failure to register as a political committee—except, in one case, 

after a court ruled that its basis for refusing to take action was contrary to law.9

References to prosecutorial discretion have appeared with regularity in this line of 

dismissals. See CREW Merits Br. at 31 & n.17.10 In the meantime, non-disclosing 

entities have spent over $1 billion to influence federal elections. See Center for 

Responsive Politics, Outside Spending by Nondisclosing Groups, Cycle Totals, 

https://www.opensecrets.org/outsidespending/nonprof_summ.php (last visited June 

28, 2021).

If anything, recent enforcement dismissals appear even more calculated to 

evade review. For example, controlling Commissioners have released multiple

contemporaneous Statements of Reasons—one leaning heavily on prosecutorial 

9 Statement of Reasons at 1, MUR 6538R (July 2, 2020), https://eqs.fec.gov/

eqsdocsMUR/6538R_2.pdf (“I voted to approve [enforcement] in this matter 

because my hand was effectively forced by a federal district court.”).

10 The concluding reference to “discretion” here (JA 133) was almost identical to 

several other statements that likewise relied on extensive legal findings that groups 

“cannot and should not” be regulated as political committees. See Statement of 

Reasons at 28, MUR 6402 (Dec. 23, 2014), https://www.fec.gov/files/legal/murs/

6402/14044364910.pdf; Statement of Reasons at 27, MUR 6589 (July 30, 2014), 

https://www.fec.gov/files/legal/murs/6589/14044362004.pdf; Statement of Reasons 

at 26, MUR 6538 (July 30, 2014), https://www.fec.gov/files/legal/murs/6538/

14044361962.pdf.

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discretion and another containing a “supplemental” legal rationale.

11 Some of these 

dispositions may be defensible; others, less so. But the New Models opinion shuts 

down any inquiry into that question—even upon a mention of prosecutorial 

discretion “so fleeting you will miss it if you blink.” 993 F.3d at 905 (Millett, J., 

dissenting). 

Political operators are undoubtedly aware that appeals to “discretion” now

provide an increasingly potent defense to FEC enforcement; indeed, one former 

Commissioner publicly advised respondents to “equip the agency with the reasons 

why discretion is appropriate.”

12 Leaving CHGO and New Models in place can only 

make matters worse. The decisions appear to have opened new arenas of 

confrontation and stalemate, with those Commissioners who favor enforcement 

reportedly even withholding votes to close some deadlocked cases—or defend them 

in court—lest their colleagues attempt to immunize their contrary interpretations of 

law from judicial check by an invocation of prosecutorial discretion. As the New 

York Times summarized: “The twist in the raft of unclosed cases is that they remain 

formally under active investigation and are thus confidential, meaning that 

11 E.g., Statement of Reasons at 1, MUR 7181 (May 10, 2021), https://www.fec.

gov/files/legal/murs/7181/7181_09.pdf (providing a supplemental “legal analysis” 

for two of three controlling Commissioners detailing “why the complaint should also 

have been dismissed on its merits”).

12 Jeremy Broggi, Lee Goodman & Shane Roberts, FEC’s Prosecutorial Discretion 

Deemed Unreviewable by D.C. Circuit, Again, JDSupra (May 19, 2021), https://

www.jdsupra.com/legalnews/fec-s-prosecutorial-discretion-deemed-8594602.

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Republican Commissioners are unable to tell the courts what has happened and why. 

In other words, they can’t cite their own ‘prosecutorial discretion.’”13

CONCLUSION

For the foregoing reasons, en banc rehearing should be granted.

Dated: June 30, 2021 Respectfully submitted,

/s/ Tara Malloy

Tara Malloy 

Megan P. McAllen

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

E-mail: tmalloy@campaignlegalcenter.org

Counsel for Amicus Curiae

13 Shane Goldmacher, Democrats’ Improbable New F.E.C. Strategy: More 

Deadlock Than Ever, N.Y. Times (June 8, 2021), https://www.nytimes.com/2021/

06/08/us/politics/fec-democrats-republicans.html. 

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. P. 29(b)(4) because it 

contains 2,580 words, excluding the parts of the brief exempted by Fed. R. App. P. 

32(f) and Circuit Rule 32(e)(1). 

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/ Tara Malloy

Tara Malloy

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CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2021, I electronically filed this Amicus Curiae 

Brief 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/ Tara Malloy

Tara Malloy

USCA Case #19-5161 Document #1904625 Filed: 06/30/2021 Page 21 of 21