United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: May 14, 2019

No. 17-5049

CITIZENS FOR RESPONSIBILITY AND ETHICS IN

WASHINGTON AND MELANIE T. SLOAN,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-02038)

On Petition for Rehearing En Banc

Before: GARLAND, Chief Judge; HENDERSON,

ROGERS, TATEL, GRIFFITH***, SRINIVASAN, MILLETT,

PILLARD***,WILKINS**,KATSAS, and RAO*,Circuit Judges

O R D E R

Appellants’ petition for rehearing en banc and

the response thereto were circulated to the full court, and a

vote was requested. Thereafter, a majority of the judges

eligible to participate did not vote in favor of the petition.

Upon consideration of the foregoing, it is

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ORDERED that the petition be denied.

Per Curiam

 FOR THE COURT:

 Mark J. Langer, Clerk

BY: /s/

 Ken R. Meadows

 Deputy Clerk

* Circuit Judge Rao did not participate in this matter.

** Circuit Judges Pillard and Wilkins would grant the

petition for rehearing en banc.

*** A statement by Circuit Judge Griffith, concurring in the

denial of rehearing en banc, is attached.

*** A statement by Circuit Judge Pillard, dissenting from the

denial of rehearing en banc, is attached.

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GRIFFITH, Circuit Judge, concurring in the denial of 

rehearing en banc: 

The Federal Election Campaign Act (FECA) requires that 

“[a]ll decisions of the” Federal Election Commission (FEC) 

“with respect to the exercise of its duties and powers under the 

provisions of this Act shall be made by a majority vote of the 

members of the Commission.” 52 U.S.C. § 30106(c). Because 

the FEC is comprised of three Democratic appointees and three 

Republican appointees, see id. § 30106(a)(1), FECA thus 

requires that all actions by the Commission occur on a 

bipartisan basis. The statute does not instruct how to handle a 

“deadlock vote,” that is, a vote in which three members wish to 

proceed on a given enforcement action and three oppose such 

action. This situation, as one might expect, occurs with some 

frequency. We and the FEC have, however, provided guidance. 

The FEC has said that if “the Commission lacks majority 

support for proceeding with a matter,” “the Commission will 

dismiss” it as an “exercise of its prosecutorial discretion.” 

Statement of Policy Regarding Commission Action in Matters 

at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 

12,545, 12,546 (Mar. 16, 2007). As for us, because the initial 

deadlock triggered this dismissal, we review—and treat as 

controlling—the rationale offered by the Commissioners who 

voted not to proceed. Common Cause v. FEC, 842 F.2d 436, 

449 (D.C. Cir. 1988). The majority opinion here added one 

more parameter: deadlock votes premised on prosecutorial 

discretion are insulated from judicial review, with limited 

exceptions. Citizens for Responsibility and Ethics in 

Washington v. FEC (CREW), 892 F.3d 434, 438-42, 440 n.9, 

441 n.11 (D.C. Cir. 2018).

Given FECA’s silence on deadlocks, it is no surprise that 

the statute also does not instruct how to differentiate between a 

deadlock vote that prompts a dismissal and a vote by four or 

more Commissioners to dismiss the action outright. Should we 

treat a deadlock-then-dismissal and an outright dismissal by 

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four or more Commissioners differently, even when both rest 

on identical “prosecutorial discretion” grounds? The purposes 

underlying FECA would suggest as much, as the fourth vote—

necessarily from a Commissioner who crossed party lines—

makes us less worried about partisan gamesmanship. See 52 

U.S.C. § 30106(a)(1), (c); FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981). To that end, the 

majority’s opinion, which indicates that when three 

Commissioners invoke “prosecutorial discretion” they 

foreclose both the FEC enforcement action and our review of 

the decision not to proceed, certainly seems contrary to 

Congress’s intent.

Then again, nothing in FECA provides an easy way to 

distinguish these two types of dismissals. Maybe, in keeping 

with FECA’s bipartisan emphasis and the FEC’s guidance, 

only four or more Commissioners may invoke “prosecutorial 

discretion” to dismiss a case. See FEC, Guidebook for 

Complainants and Respondents on the FEC Enforcement 

Process 12 (May 2012), 

http://fec.gov/em/respondent_guide.pdf (“Pursuant to an 

exercise of its prosecutorial discretion, the Commission may 

dismiss a matter when, in the opinion of at least four 

Commissioners, the matter does not merit further use of 

Commission resources.” (emphasis added)). Or maybe any 

Commissioner can invoke this reasoning, but it is only 

unreviewable pursuant to Heckler v. Chaney, 470 U.S. 821 

(1985), when articulated by four or more. But even assuming 

this kind of rationale is reviewable in some instances, the scope 

and content of that review remains unclear. Is it unlimited? 

Cabined to situations in which the Commissioners incorrectly 

interpret and apply FECA? Or perhaps this is just a hole in the 

statutory scheme that only Congress can fill.

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While these questions are important, this is not the case to 

decide them. There is a factual dispute over whether the three 

Commissioners who voted not to proceed even made a legal 

decision. Neither party argued before the panel that decisions 

rooted in prosecutorial discretion are insulated from our 

review; indeed, the FEC conceded that “Commission decisions 

not to prosecute . . . remain subject to judicial review.” FEC Br. 

27. Nor is it clear how a rule articulated in this context might 

play out elsewhere. What if the Commission split 3-3, refused 

to dismiss the case, and 120 days later, the petitioner brought 

suit in this court. See 52 U.S.C. § 30109(a)(8)(A). What 

standard applies? Or what if we are faced with a deadlock-thendismissal and the three naysayers explain that because a 

violation occurred but the statute of limitations is about to 

expire, they exercised their prosecutorial discretion not to 

proceed. Can we review this exercise of prosecutorial 

discretion premised on a legal determination? See CREW, 892 

F.3d at 441 n.11, 441-42 (leaving open the possibility that “if 

the Commission declines to bring an enforcement action on the 

basis of its interpretation of FECA, the Commission’s decision 

is subject to judicial review” but noting that we may not

“carv[e] reviewable legal rulings out from the middle of nonreviewable actions” (citation and quotation marks omitted)).

It is unlikely that a future case will implicate—or 

answer—all of these concerns. But I hope that in the right case, 

with adequate briefing from interested parties, we can better 

grapple with these questions and the consequences of a 

potential holding. Perhaps at that time, we will need to 

reconsider the majority’s holding en banc; perhaps not. For 

now, however, we have before us only these issues, briefs, and 

parties. And on this record, I do not think rehearing en banc is 

warranted. 

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PILLARD, Circuit Judge, dissenting from denial 

of rehearing en banc: 

Who pays for the messages we hear about candidates for 

federal office? Federal election law gives the public a right to 

know. But today we let stand a divided panel decision that 

effectively scuttles that law. Congress established the Federal 

Election Commission at the front line of campaign finance law 

enforcement. To avoid agency capture, it made the 

Commission partisan balanced, allowing no more than three of 

the six Commissioners to belong to the same political party.

That balance created a risk of partisan reluctance to apply the 

law, so Congress provided for judicial review of nonenforcement, and citizen suits to press plausible claims the 

Commission abandons. But the decision we leave in place 

today eliminates those legal checks against enforcementshirking. It empowers 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. 

The panel majority held that the Commission’s refusal-bydeadlock to investigate a complaint against a claimed political 

committee, the Commission on Hope, Growth and Opportunity 

(CHGO), was an exercise of “unreviewable prosecutorial 

discretion.” Citizens for Responsibility & Ethics in 

Washington v. FEC (CREW), 892 F.3d 434, 438 (D.C. Cir. 

2018). That broad holding is sufficiently wrong and important 

that it warrants en banc review. The majority opinion 

contravenes the statute and binding precedent, undercuts the 

design Congress devised to avoid both partisan domination and 

partisan deadlock in the Commission’s enforcement process, 

and has already been applied by the Commission and district 

court to truncate other cases. 

The Federal Election Campaign Act (FECA) invites “any

person” to file a complaint with the Commission (FEC or

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Commission), and provides that the Commission “shall make 

an investigation” of any complaint supported by “reason to 

believe” that the statute is violated. 52 U.S.C. § 30109(a)(2) 

(emphasis added). It further provides that “any party 

aggrieved” by an order dismissing a complaint, or by a failure 

of the Commission to act on a complaint within 120 days, “may 

file a petition” for judicial review by this court. Id. § 

30109(a)(8)(A). If the court holds that “the dismissal of the 

complaint or the failure to act is contrary to law,” the 

Commission has 30 days to conform, failing which the 

complainant may file a civil action to remedy the alleged 

violation. Id. § 30109(a)(8)(C). In Orloski v. FEC, we held 

that a “decision is ‘contrary to law’ if (1) the FEC dismissed 

the complaint as a result of an impermissible interpretation of 

the Act, or (2) if the FEC’s dismissal of the complaint, under a 

permissible interpretation of the statute, was arbitrary or 

capricious, or an abuse of discretion.” 795 F.2d 156, 161 (D.C. 

Cir. 1986) (citation omitted).

If a partisan bloc of the FEC can thwart a case like this one, 

FECA’s controls on campaign money, including the politicalcommittee registration and disclosure requirements here, are

not worth much. CHGO sprang into existence in 2010 as the

brainchild of political operatives. Internally and to potential 

donors it described its mission as collecting money to spend on 

federal campaigns while making sure that donor names would 

be kept secret. The group falsely claimed tax-exempt status, 

raised and spent millions of dollars to influence campaigns, and 

never registered as a political committee or reported its 

contributors or spending. When it learned of an FEC complaint 

by Citizens for Responsibility and Ethics in Washington 

(CREW), CHGO responded with evasion and dissimulation

and, by early 2012, scurried to dissolve itself. The FEC’s 

Office of General Counsel concluded that CHGO easily met 

the FECA threshold for political-committee status and 

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recommended three times that the Commission find “reason to 

believe” that CHGO was an unregistered political committee—

a preliminary finding that would have authorized a full 

investigation. The Commissioners persistently deadlocked. 

CREW filed in federal court claiming the blocking 

Commissioners’ position was contrary to law. I believe the law 

entitled CREW to a judicial ruling on that question. 

In the panel majority’s view, however, three out of six 

Commissioners have peremptory enforcement discretion to 

block investigation of a complaint and cut off judicial review, 

even where there may be ample “reason to believe” that FECA

was violated. It held that the blocking Commissioners’ mere 

assertion of discretion—invoking concerns like the best use of 

agency resources and an expiring statute of limitations—

eliminates our review to determine whether the asserted

discretion was itself “contrary to law.” And it treated an 

invocation of discretion as a shield against review of the 

blocking Commissioners’ non-discretionary errors as well. 

Under settled precedent, the Commission’s enforcement 

discretion cannot block review of legal errors. That means that

courts may review the kinds of errors CREW points to in the 

blocking Commissioners’ conclusions about the statute of 

limitations and their own equitable enforcement powers against 

a dissolving CHGO, on which the blocking Commissioners

purported to rest their discretion. Appellant’s Br. 44-45. And 

courts may review errors CREW identifies in the grounds those 

Commissioners gave for refusing to investigate CHGO as a 

possible “political committee” in the face of direct admissions 

and circumstantial evidence of its “major purpose” to win 

Senate seats. Id. at 49. The panel majority’s contrary holding 

conflicts with the statute’s terms, structure, and purpose; with 

the Supreme Court’s decision in FEC v. Akins, 524 U.S. 11 

(1998); and with our decisions in Chamber of Commerce v. 

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FEC, 69 F.3d 600 (D.C. Cir. 1995), Democratic Congressional 

Campaign Committee v. FEC (DCCC), 831 F.2d 1131 (D.C. 

Cir. 1987), and Orloski, 795 F.2d 156. 

Our en banc court will have to resolve these conflicts. I 

would have done so here, despite some questions about the way 

the petition was framed. See Concurring Op. 3. The panel’s 

significant disregard of circuit precedent calls for prompt 

correction. In the meantime, to the extent the majority opinion 

conflicts with earlier decisions, it is not binding. See Sierra 

Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). Our 

district courts and future panels must continue to follow 

precedent the panel would sweep aside, including Akins, 

Chamber of Commerce, DCCC, and Orloski.

* * *

Given the contrary message of the panel majority,

embraced by the blocking Commissioners and at least one 

district court, it is worth pinpointing how the majority errs. In 

brief, it defies settled law in two ways: First, it holds that

dismissals based on the FEC’s exercises of enforcement 

discretion are entirely beyond our review—a position contrary 

to FECA’s express terms and judicial precedent. And, second,

it deems any invocation of enforcement discretion, even when 

accompanied by reasons that are contrary to law, sufficient to 

shield those legal defects from review. Together, those 

holdings allow a non-majority of Commissioners to insulate 

any decision from the judicial review that FECA provides, just 

by invoking “prosecutorial discretion.” The majority errs in a 

third way by treating a deadlock in the statutorily required vote

not as a vote of “no reason to believe” FECA was violated, 

subject to judicial review as such, but as an operative (and 

unreviewable, it says) exercise of enforcement discretion. 

In the interest of clarity, let me spell out these three points.

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First, the majority held that the presumption in Heckler v. 

Chaney, 470 U.S. 821, 64 (1985), that agency non-enforcement 

actions are unreviewable “controls this case,” via the panel’s 

assertion that nothing in FECA “overcomes the presumption 

against judicial review.” CREW, 892 F.3d at 439. That 

assertion conflicts with the statutory text, the Supreme Court’s 

holding in Akins, and several of our circuit decisions. 

FECA’s authorization of judicial review differs from 

typical provisions for review of agency decisions. Congress 

acknowledged that the FEC’s politically balanced composition, 

designed to avoid partisan domination, created a risk of 

political deadlock and non-enforcement of the law. To prevent 

any reluctant three-member bloc of a divided Commission 

from defeating enforcement of FECA by scuttling plausible 

complaints, the Act contains an unusual provision for judicial 

review: 

Any party aggrieved by an order of the 

Commission dismissing a complaint filed by 

such party . . . 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.

52 U.S.C. § 30109(a)(8)(A). The reviewing court decides

whether the dismissal was “contrary to law.” Id. § 

30109(a)(8)(C). If the Commission does not take up the case 

again within thirty days of a ruling that the dismissal was 

contrary to law, the aggrieved party may bring a citizen suit to 

enforce FECA. Id. The Commission thus retains its primacy 

as enforcer of federal campaign finance law, with 

complainants’ petitions for review of dismissals or failures to 

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act and, if necessary, citizen suits providing judicial checks 

against passivity or stonewalling.

The Supreme Court in Akins accordingly held inapplicable 

to the FEC Chaney’s rebuttable presumption against judicial 

review of agency non-enforcement decisions, declaring: “We 

deal here with a statute that explicitly indicates the contrary.” 

524 U.S. at 26. The Court confirmed the common-sense 

conclusion we had already drawn. As Judge Silberman 

described it in the Akins opinion for our en banc court, 

Section 30109(a)(8) is “an unusual statutory provision which 

permits a complainant to bring to federal court an agency’s 

refusal to institute enforcement proceedings.” 101 F.3d 731, 

734 (D.C. Cir. 1996) (distinguishing Chaney), vacated on other 

grounds, 524 U.S. 11 (1998); see also Chamber of Commerce, 

69 F.3d at 603 (describing FECA as “unusual in that it permits 

a private party to challenge the FEC’s decision not to enforce”). 

Indeed, the FEC acknowledged to the panel here that 

“Commission decisions not to prosecute, unlike those of most 

agencies, remain subject to judicial review.” Appellee Br. 27.

The panel majority attempted to distinguish Akins by 

saying that “[t]he only issue the Court decided in Akins dealt 

with standing.” CREW, 892 F.3d at 438 n.6. But Akins’ 

standing holding is, a fortiori, support for reviewability here. 

Akins squarely rejected the contention that, because the FEC’s 

“decision not to undertake an enforcement action” was an 

action “not subject to judicial review,” the court could not 

redress the claim of injury. Akins, 524 U.S. at 26. In 

recognizing that the injury would be redressable in response to 

a private “complain[t] that the agency based its decision upon 

an improper legal ground,” the Court necessarily (and 

unequivocally) decided that the non-enforcement decision by 

the FEC was subject to judicial review. Id. at 20, 25-26. 

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Contrary to the majority’s theory that the FEC’s 

prosecutorial discretion is unreviewable, precedent holding 

Chaney inapposite to FECA applies no less to non-enforcement 

decisions that Commissioners frame in discretionary terms. In 

DCCC, this court held that deadlocks at the “reason to believe” 

stage are reviewable even if cast as exercises of prosecutorial 

discretion. 831 F.2d at 1133-34. Rebuffing the Commission’s 

invocation of Chaney, we explained that, “[b]ecause 

§ [30109](a)(8)(A) provides broadly for court review of an 

FEC order dismissing a complaint, we resist confining the 

judicial check to cases in which . . . the Commission ‘act[s] on 

the merits.’” Id. (second alteration in original) (citation 

omitted). We reaffirmed our DCCC holding the following year 

in Common Cause v. FEC, emphasizing that reviewability was 

not limited to “deadlock dismissals which run contrary to 

General Counsel’s recommendations based on clear legal 

precedent,” but extended to those that run contrary to 

“recommendations based on the General Counsel’s less 

definitive assessment of what the law requires in light of the 

factual allegations in the case”—even though the latter 

involved more contextual and discretionary judgments. 842 

F.2d 436, 449 (D.C. Cir. 1988). Similarly, in Orloski, which 

has for decades set the standard for review of a Commission 

decision not to investigate, we explained that a decision

dismissing a complaint “is ‘contrary to law’” even “under a 

permissible interpretation of the statute” if it involves “an 

abuse of discretion.” 795 F.2d at 161.

Second, the majority erroneously—if somewhat 

ambivalently—says that the FEC’s enforcement discretion is 

not only unreviewable, but that it broadly shields other, nondiscretionary grounds from review. That contradicts Akins’

recognition that, even when the FEC has “discretion about 

whether or not to take a particular action,” aggrieved parties 

can “complain that the agency based its decision upon an 

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improper legal ground.” 524 U.S. at 25. “If a reviewing court 

agrees that the agency misinterpreted the law, it will set aside 

the agency’s action and remand the case—even though the 

agency . . . might later, in the exercise of its lawful discretion, 

reach the same result for a different reason.” Id. Because “we 

cannot know that the FEC would have exercised its 

prosecutorial discretion in this way” in the absence of the 

erroneous ingredients, we review the legal ground even if the 

discretionary ground is legitimate, and remand if the former is 

tainted by error. Id.

In my original dissent, I thought my disagreement with the 

majority on this point might be confined to the facts before us. 

We agreed that “[t]he interpretation an agency gives to a statute 

is not committed to the agency’s unreviewable discretion” and 

therefore that, “if the Commission declines to bring an 

enforcement action on the basis of its interpretation of FECA, 

the Commission’s decision is subject to judicial review to 

determine whether it is ‘contrary to law.’” CREW, 892 F.3d at 

441 n.11. My colleagues thought the blocking Commissioners 

made no legal decision, while I thought they drew a legal 

conclusion that was contrary to FECA—namely, that there was 

no “reason to believe” CHGO may have operated as an 

unregistered “political committee.” See id. at 443 (Pillard, J., 

dissenting). Elsewhere, however, the majority was more 

sweeping. It said that review was unavailable under FECA 

unless “the agency’s action was based entirely on its 

interpretation of the statute,” suggesting that any discretionary 

reason could insulate a dismissal from review, even if it were 

based on or appended to statutory interpretations that were 

“contrary to law.” Id. at 441 n.11 (majority opinion) (emphasis 

added). Similarly, it opined that “even if some statutory 

interpretation could be teased out of the Commissioners’ 

statement of reasons,” the action would not be subject to 

judicial review, because “[t]he law of this circuit ‘rejects the 

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notion of carving reviewable legal rulings out from the middle 

of non-reviewable actions.’” Id. at 441-42 (quoting Crowley 

Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 

1994)).

To the extent that the majority meant that any mention of 

enforcement discretion renders otherwise-reviewable 

Commission action unreviewable, it misread the cases it cited. 

Even if the majority were right that enforcement discretion is 

an unreviewable reason for dismissing complaints, 

Commission decisions to dismiss complaints are undeniably 

reviewable actions under the plain text of FECA (confirmed by 

decisions of the Supreme Court and this circuit). The cases on 

which the majority relies differ from our case in that they 

concern unreviewable categories of agency action—for 

instance, actions governed by Chaney (such as Crowley’s 

waiver denial, 37 F.3d at 676), or actions as to which a statute 

explicitly strips courts’ jurisdiction (as in Association of 

Civilian Technicians, Inc. v. Federal Labor Relations 

Authority, 283 F.3d 339, 341-42 (D.C. Cir. 2002)). See also

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281 (1987) 

(the agency’s “formal action, rather than its discussion,” was 

“dispositive,” because the challenged action was unreviewable 

regardless of the reasons given for it). Those cases merely 

mean that if an agency justifies an unreviewable action with a 

legal reason, the action itself does not thereby become 

reviewable. Likewise, however, if an agency justifies a 

reviewable action with a discretionary reason—as the blocking 

Commissioners purported to do here—the action itself does not 

thereby become unreviewable. “[J]udicial review of a final 

agency action by an aggrieved person will not be cut off unless 

there is persuasive reason to believe that such was the purpose 

of Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140 

(1967). Whereas in Association of Civilian Technicians, for 

example, there was “‘clear and convincing evidence’ of 

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Congressional intent to preclude judicial review,” 283 F.3d at 

342 (quoting Abbott Labs, 387 U.S. at 141), congressional 

direction here is to the contrary. The majority does not explain 

how one drop of discretion transforms a reviewable action into 

an unreviewable one.

Whatever the majority intended, its holding has already 

been interpreted to allow a perfunctory recitation of

“prosecutorial discretion” to shield legal holdings from the 

“contrary-to-law” review FECA provides. In Citizens for 

Responsibility & Ethics in Washington v. FEC (CREW/New 

Models), the district court concluded (with evident reluctance)

that the panel majority opinion in this case “holds that the 

Controlling Commissioners’ legal analyses are reviewable 

only if they are the sole reason for the dismissal of an 

administrative complaint.” No. 1:18-cv-00076-RC, 2019 WL 

1429552, at *8 (D.D.C. Mar. 29, 2019). In the deadlock under 

review in CREW/New Models, the blocking Commissioners 

conducted extensive legal analysis explaining why they 

believed the group at issue was not a “political committee,” in 

part because they thought it lacked a “major purpose” of 

nominating or electing candidates for federal elections. Joint 

App’x (J.A.) 108-21, CREW/New Models, 2019 WL 1429552. 

The last sentence of the thirty-two-page Statement of Reasons 

added the drop of discretion: “For these reasons, and in 

exercise of our prosecutorial discretion, we voted against 

finding reason to believe that New Models violated the Act by 

failing to register and report as a political committee and to 

dismiss the matter.” Id. at 121 (footnote omitted). The 139th

and final footnote of the Statement of Reasons said that 

“proceeding further would not be an appropriate use of 

Commission resources.” Id. 

When CREW challenged as contrary to FECA the 

blocking Commissioners’ statement that there was no reason to 

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believe that New Models was a political committee, the FEC 

argued and the district court agreed that our panel majority’s 

opinion in this case was dispositive. The district court read our 

opinion to mean that case “beg[an] and end[ed] with the 

Controlling Commissioners’ prosecutorial discretion,” even 

though “the Controlling Commissioners’ decision at issue 

[t]here involved a robust interpretation of statutory text and 

case law, with a brief mention of prosecutorial discretion 

sprinkled in.” CREW/New Models, 2019 WL 1429552, at *6-

7. I had anticipated that courts would at least continue to 

review undisputedly legal analyses, but the CREW/New 

Models district court read our panel’s decision to “squash this 

approach.” Id. at *7. The destructive promise of the panel’s 

approach has a broader reach, too: CREW reports that the 

Commissioners have cited prosecutorial discretion in every 

statement of reasons for no “reason to believe” since the district 

court decision in this case. Pet. Reh’g En Banc 14.

Third, the majority made another significant misstep on a 

point our circuit has not yet squarely addressed, but which also 

warrants resolution: It treated a deadlock at the reason-tobelieve stage as an exercise of enforcement discretion, while 

FECA requires at least four Commissioners to concur for their

enforcement discretion to be operative as such. This matters

because, as we have recognized, the Act contemplates some 

engagement with the merits of the questions on which the 

Commission votes. The statute forces that engagement by 

making the discretionary exit ramp accessible only to a bloc of 

at least four Commissioners. The majority requirement is in 

the Act, and its application to dismissing a case in an exercise 

of discretion at the reason-to-believe stage is spelled out in 

Commission guidance. The statute recognizes a “vote to 

dismiss,” 52 U.S.C. § 30109(a)(1), and says that “[a]ll 

decisions of the Commission with respect to the exercise of its 

duties and powers under the provisions of this Act shall be 

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

id. § 30106(c). When presented with a General Counsel 

recommendation, the Commissioners vote on whether there is 

or is not reason to believe that a violation may have occurred. 

Alternatively, “[p]ursuant to an exercise of its prosecutorial 

discretion, the Commission may dismiss a matter,” but only 

when, “in the opinion of at least four Commissioners, the 

matter does not merit further use of Commission resources.” 

FEC, Guidebook for Complainants and Respondents on the 

FEC Enforcement Process 12 (May 2012) (emphasis added), 

https://transition.fec.gov/em/respondent_guide.pdf. If a 

complaint passes through all the prescribed checkpoints, from 

a reason-to-believe vote to a probable-cause vote, together with 

conciliation efforts at one or both stages, the statute only then 

confers discretion on fewer than four members to halt the case.

It providesthat “the Commission may, upon an affirmative vote 

of 4 of its members, institute a civil action for relief,” meaning 

that three may decide not to move forward with a civil action. 

52 U.S.C. § 30109(a)(6)(A) (emphasis added). As FECA 

frames it, if the Commission is evenly divided at that stage,

there is no review. But this case stalled at the earlier, reasonto-believe stage, and only three voted “no” on that question, so 

that action was not operative as an exercise of the 

Commission’s enforcement discretion.

FECA’s effectiveness depends on the FEC’s duty to 

engage with complaints. Congress created the Commission to 

correct for underenforcement of campaign finance laws, even 

as it sought to curb potential partisan excesses by channeling

citizen complaints to the FEC as the first arbiter. Several 

authorities have implicitly or expressly recognized that duty. 

The Supreme Court has described the complaint system as 

“ask[ing] the FEC to find [whether a respondent] . . . had 

violated the Act.” Akins, 524 U.S. at 16. The FEC

acknowledged in its briefing that it is “required” to “determine 

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whether any civil FECA violations have occurred.” Appellee

Br. 6. And in Chamber of Commerce—which the panel does 

not address—we acknowledged the obligation to pass on the 

merits of a complaint when we held that the Commission’s 

unwillingness to apply the law violates FECA. 69 F.3d at 603. 

There, we said that “it would be easy to establish” that agency 

action refusing to process a potentially meritorious case “was 

contrary to law; the Commission’s refusal to enforce would be 

based not on a dispute over the meaning or applicability of the 

rule’s clear terms, but on the Commission’s unwillingness to 

enforce its own rule.” Id. If three Commissioners could vote 

“no” at the reason-to-believe stage on grounds of prosecutorial 

discretion, there would be little to check “the Commission’s 

unwillingness to enforce its own rule,” id., even if the panel 

decision’s other errors were corrected.

Giving a non-majority of Commissioners enforcement 

discretion removes an institutional check on political deadlock 

that Congress wrote into FECA. The power of a majority of 

Commissioners to dismiss a complaint at the reason-to-believe 

stage as an exercise of enforcement discretion does not 

implicate the same concern about partisan underenforcement. 

Requiring four Commissioners to agree to discretionary 

dismissals keeps complaints from being jettisoned by a partisan 

bloc: The Commission’s structure means that a vote of four or 

more Commissioners is necessarily bipartisan; if a threemember “no” vote cannot be justified on the merits, a court can 

call on the Commission to either move forward with its

investigation or cede enforcement to a private party. Nonmajority discretion to block action is fatal to FECA if that 

enforcement discretion is—as the panel would have it—both 

judicially unreviewable, and effective in shielding all other 

grounds from review. I fear that FEC Chair (then-Vice Chair) 

Weintraub did not exaggerate when she described the panel 

decision as giving the Commission “a superpower . . . to kill 

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any FEC enforcement matter, wholly immune from judicial 

review.” FEC, Statement of Vice Chair Ellen L. Weintraub on 

the D.C. Circuit’s Decision in CREW v. FEC 1 (June 22, 

2018), https://go.usa.gov/xmWC2.

CREW/New Models provides a stark illustration of that 

superpower. As Chair Weintraub said about that case, “that 

139th footnote was all that mattered. They literally could have 

skipped everything before and after it and the statement would 

be equally bulletproof under” the majority opinion. FEC, 

Statement of Chair Ellen L. Weintraub on the D.C. District 

Court Decision in CREW v. FEC (New Models) 3 (Apr. 15, 

2019), https://go.usa.gov/xmWC4. The district court itself 

described the law it applied as a “‘magic words’ standard,” 

noting that it was “sympathetic to Plaintiffs’ concerns” about 

such a standard. CREW/New Models, 2019 WL 1429552 at *1. 

But it concluded that, per the panel decision in this case,

“because the Controlling Commissioners invoked 

prosecutorial discretion, the Court is also foreclosed from 

evaluating the Controlling Commissioners’ otherwise 

reviewable interpretations of statutory text and case law.” Id.

at *10. If such an invocation does bar evaluation of the 

Commissioners’ legal conclusions, it guts the case-by-case 

approach the FEC has adopted for determining when groups 

qualify as “political committees.” The Commission has 

declined to define “political committee” by rule, choosing

instead a “fact-intensive” inquiry into each group’s “overall 

conduct.” Political Committee Status, 72 Fed. Reg. 5,595, 

5,601-02, 5,597 (Feb. 7, 2007). If it needs neither promulgate 

rules nor adjudicate the merits of individual cases, any partisan, 

non-majority bloc of the Commission can indefinitely avoid 

developing law defining political committees. 

FECA cannot be interpreted to, in effect, invite any threemember bloc of the Commission to refuse to consider 

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complaints, free from the judicial scrutiny Congress wrote into 

the statute. I understand my colleagues’ hesitation to review 

this case en banc given that some of the strongest arguments

that the blocking Commissioners acted contrary to law did not 

appear in the briefs, and that CREW’s panel briefs were not 

entirely consistent with its petition for rehearing en banc. 

Compare Appellant’s Br. 26 (asserting that “the FEC d[id] not 

reach the merits but dismisse[d] based on its prosecutorial 

discretion”), with Pet. Reh’g En Banc 2-3 (describing the 

Commissioners as making a “decision that there was no reason 

to believe CHGO violated the FECA . . . based on their 

interpretation of the law”). But other important issues at stake 

in this case were unbriefed simply because the parties could not 

anticipate that the majority would adopt a novel position that 

no party advanced. I would not wait for a perfect case to come 

along to correct the majority’s interpretation.

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