RECORD NO. 19-5161

THE LEX GROUPDC  1050 Connecticut Avenue, N.W.  Suite 500, #5190  Washington, D.C. 20036

(202) 955-0001  (800) 856-4419  www.thelexgroup.com

 

ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED

 

In The 

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

BRIEF OF APPELLANTS

Stuart McPhail

Adam J. Rappaport

CITIZENS FOR RESPONSIBILITY AND 

 ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

(202) 408-5565

Counsel for Appellants

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

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

Responsibility and Ethics in Washington and Noah Bookbinder hereby certify as 

follows:

A. Parties and Amici. Appellants are Citizens for Responsibility and 

Ethics in Washington (“CREW”), a non-profit corporation, and Noah Bookbinder. 

Appellee is the Federal Election Commission. There were no amici curiae in the 

district court. Randy Elf has expressed an intent to appear as amicus in the appeal. 

Appellants understand additional amici curiae may appear in this matter.

B. Ruling Under Review. The ruling under review is the district court’s 

March 29, 2019 order and accompanying memorandum opinion, ECF Dkt. Nos. 

22, 23, in CREW v. FEC, No. 18-cv-00076-RC (Contreras, J.). The March 29, 

2019 memorandum opinion is available at 380 F. Supp. 3d 30 and is reprinted in 

the Joint Appendix (“JA”) at JA139–61. The March 29, 2019 order is printed in the 

JA at JA138. 

C. Related Cases. This matter has not previously been before this Court 

or any other court. Appellants are unaware of any related case pending in this 

Court or any other court. 

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 

26.1, Appellant 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, including financing of independent expenditures, 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 ...........i

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

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

TABLE OF AUTHORITIES .................................................................................. v

GLOSSARY...........................................................................................................xi

STATEMENT OF JURISDICTION.....................................................................xii

STATEMENT OF ISSUES PRESENTED..........................................................xiii

STATUTES AND REGULATIONS...................................................................xiv

STATEMENT OF THE CASE............................................................................... 1

I. Statutory and Regulatory Background ......................................................... 1

II. Proceedings Below ....................................................................................... 3

SUMMARY OF THE ARGUMENT ..................................................................... 9

ARGUMENT........................................................................................................ 12

I. Standard of Review..................................................................................... 13

II. CREW/CHGO Does Not Apply Here......................................................... 13

A. The District Court Improperly Followed Dicta................................ 14

B. “Magic Words” Do Not Constitute Reasoned 

Decision-making .............................................................................. 18

III. If CREW/CHGO Applies, It Conflicts With Precedent And 

is Not Binding............................................................................................. 21

A. Supreme Court and Prior Circuit Authority Require 

Judicial Review of Partisan Discretionary Dismissals..................... 21

B. CREW/CHGO Conflicts with the FECA.......................................... 27

1. CREW/CHGO Upends the FEC’s Bipartisan Structure.......... 28

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2. CREW/CHGO Nullifies the Statutory Citizen Suit Provision 32

C. CREW/CHGO Misreads Chaney...................................................... 36

1. Agency Reasons Do Not Render Agency Action 

Unreviewable ......................................................................... 37

2. The FECA Expressly Provides for Judicial Review of 

FEC Dismissals...................................................................... 38

3. The FECA Provides the “Law to Apply”................................ 42

4. The FEC Acts as an Adjudicator, Not a Prosecutor................ 48

D. CREW/CHGO’s “Unreviewable” Discretion Raises 

Significant First Amendment Concerns........................................... 50

CONCLUSION..................................................................................................... 53

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVCIE

ADDENDUM

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TABLE OF AUTHORITIES

Page(s)

CASES

Abbott Labs v. Garder, 387 U.S. 136 (1967)...........................................................37

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)...................................................41

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc)................... 9, 21, 43, 50, 54

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................................13

Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984) ....................................................19

Assoc. of Civilian Technicians, Inc. v. FLRA, 

283 F.3d 339 (D.C. Cir. 2002)..............................................................................38

Buckley v. Valeo, 424 U.S. 1 (1976)................................................... 5, 8, 10, 32, 33

Burlington Resources Inc. v. FERC, 513 F.3d 242 (D.C. Cir. 2008)............... 48, 49

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)........................................................13

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995)..................................... 21, 22, 24, 25, 26, 42, 44, 47

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)...............................................29

Child Evangelism Fellowship of Md. Inc. v. Montgomery Cnty. 

Pub. Schs., 457 F.3d 376 (4th Cir. 2006).............................................................53

Citizens United v. FEC, 558 U.S. 310 (2010)........................................... 3, 4, 33, 51

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)............................ 19, 29, 47

CREW v. AAN, No. 18-cv-945, 

2019 WL 4750248 (D.D.C. Sept. 30, 2019).........................................................32

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

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

(“CREW/CHGO”)....8, 9, 11, 13, 14, 15, 16, 17, 20, 26, 30, 36, 38, 40, 41, 42, 43

CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019) (en banc).... 1, 2, 3, 7, 8, 12, 16, 17, 

18, 21, 22, 24, 25, 28, 30, 31, 32, 35, 36, 38

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ..............17

Democratic Congressional Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”) ...................... 1, 21, 22, 23, 24, 42, 44

Dunlop v. Bachowski, 421 U.S. 560 (1975).............................................................39

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

Trades Council, 485 U.S. 568 (1988) ..................................................................53

FEC v. Akins, 524 U.S. 11 (1998)................... 2, 9, 13, 17, 21, 22, 23, 38, 39, 42, 44

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

769 F.3d 1127 (D.C. Cir. 2014)............................................................................29

Fortuna Enter, LP v. NLRB, 665 F.3d 1295 (D.C. Cir. 2011) ................................45

Gersman v. Group Health Ass’n, Inc., 975 F.2d 886 (D.C. Cir. 1992)...................16

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)......................................................13

Heckler v. Chaney, 470 U.S. 821 (1984)... 11, 13, 19, 20, 21, 35, 36, 37, 38, 39, 42, 

45, 49

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987)................................. 37, 41

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000)...................................................29

Int’l Union, UAW v. NLRB, 427 F.2d 1330 (6th Cir. 1970)............................. 44, 45

Int’l Union, United Auto., Aerospace & Agr. Implement Workers 

of Am. v. Brock, 783 F.2d 237 (D.C. Cir. 1986)...................................... 17, 18, 30

Kaahumanu v. Hawaii. 682 F.3d 789 (9th Cir. 2012).............................................53

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)...................................................................29

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Lamont v. Postmaster Gen. of the United States, 381 U.S. 301 (1965) ..................51

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011)....29

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto Ins. Co., 463 U.S. 29 (1983)............................................... 14, 18, 20, 47, 49

Nat’l Wildlife Fed. v. EPA, 980 F.2d 765 (D.C. Cir. 1992).............................. 49, 50

Oil, Chemical & Atomic Workers Local Union No. 6-418, 

AFL-CIO v. NLRB, 711 F.2d 348 (D.C. Cir. 1983) .............................................44

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986).......... 3, 9, 21, 22, 25, 26, 42, 43, 48

Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of Ca., 475 U.S. 1 (1986)............50

Robertson v. FEC, 45 F.3d 486 (D.C. Cir. 1995)....................................................19

Rosenberg v. Rector and Visitors of the Uni. of Va., 515 U.S. 819 (1995).............52

Schneider v. New Jersey, Town of Irvington, 308 U.S. 147 (1939) ........................51

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).............................................51

Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996)..............................................24

Shelley v. Brock, 793 F.2d 1368 (D.C. Cir. 1986)...................................... 43, 44, 47

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ................................... 21, 27

Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001) ...........................................35

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

307 F.3d 566 (7th Cir. 2002)................................................................................53

Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990)....................................33

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc)...........................8

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

761 F.3d 10 (D.C. Cir. 2014)................................................................................51

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TransCanada Power Mkt. Ltd. v. FERC, 811 F.3d 1 (D.C. Cir. 2015)...................19

TRW Inc. v. Andrews, 534 U.S. 19 (2001)...............................................................36

United States v. Mead Corp., 533 U.S. 218 (2001).................................................29

Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016)..........................................50

Washington Mobilization Comm. v. Cullinane, 

566 F.2d 107 (D.C. Cir. 1977) (en banc) .............................................................22

STATUTES

5 U.S.C. § 555(e) .....................................................................................................19

15 U.S.C. § 15..........................................................................................................33

15 U.S.C. § 15f.........................................................................................................33

16 U.S.C. § 1540(g) .................................................................................................33

29 U.S.C. § 160(c) ...................................................................................................45

42 U.S.C. § 2000e-5(f).............................................................................................33

42 U.S.C. § 4305......................................................................................................33

42 U.S.C. § 7604......................................................................................................34

52 U.S.C. § 30101(4).............................................................................................3, 5

52 U.S.C. § 30101(8)(A)............................................................................................3

52 U.S.C. § 30104(b).............................................................................................3, 4

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

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

52 U.S.C. § 30106(a)(1)...........................................................................................28

52 U.S.C. § 30106(c) ...........................................................................................1, 28

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52 U.S.C. § 30107(e) ...............................................................................................33

52 U.S.C. § 30109(a) ........................................................................................ 16, 34

52 U.S.C. § 30109(a)(2).................................................................... 2, 29, 40, 41, 44

52 U.S.C. § 30109(a)(4).................................................................................... 40, 41

52 U.S.C. § 30109(a)(6)(A).....................................................................................40

52 U.S.C. § 30109(a)(8)(A).............................................................................. 2, 8, 9

52 U.S.C. § 30109(a)(8)(C) .............................................. 2, 9, 32, 34, 35, 43, 45, 49

REGULATIONS

11 C.F.R. § 111.20 ...................................................................................................41

RULES

Fed. R. Civ. P. 56(c).................................................................................................13

OTHER AUTHORITIES

125 Cong. Rec. 36,754 (1979)...................................................................................1

Conciliation Agreement, MUR 6538R (Aug. 28, 2019), 

https://www.fec.gov/files/legal/murs/6538R/19044477418.pdf..........................20

Daniel Tokaji, Beyond Repair: FEC Reform and Deadlock Deference 

(Mar. 28, 2018), https://bit.ly/2MCDZ88 ............................................................29

FEC, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (May 2012), http://fec.gov/em/respondent_guide.pdf ......46

FEC, Legislative History of Federal Election Campaign Act 

Amendments of 1976 (1977), 

https://transition.fec.gov/pdf/legislative_hist/legislative_history_1976.pdf....1, 45

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

Decision in CREW v. FEC (New Models) (Apr. 15, 2019), 

https://go.usa.gov/xmWC4............................................................................ 12, 30

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FEC, Statement of Policy, 72 Fed. Reg. 12,545 (Mar. 16, 2007)..................... 46, 47

FEC, Statement of Reasons of Vice Chairman Matthew S. Petersen 

and Comm’rs Caroline C. Hunter and Lee E. Goodman, MUR 6391 

and 6471 (Nov. 6, 2015), 

https://www.fec.gov/files/legal/murs/6391/15044381253.pdf.............................15

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GLOSSARY

APA Administrative Procedure Act

CREW Citizens for Responsibility and Ethics in Washington

CWA Citizens for Working America

FEC Federal Election Commission

FECA Federal Election Campaign Act

JA Joint Appendix

OGC Federal Election Commission’s Office of General Counsel

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STATEMENT OF JURISDICTION

This Court has jurisdiction over this timely appeal from a final judgment in 

the United States District Court for the District of Columbia under 28 U.S.C. 

§ 1291 and 52 U.S.C. § 30109(a)(9). The district court’s jurisdiction was based 

upon 52 U.S.C. § 30109(a)(8)(A). Appeal was timely taken on May 28, 2019, 

within sixty days of the district court’s March 29, 2019 decision under review.

 

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STATEMENT OF ISSUES PRESENTED

(1) Whether a partisan bloc of the FEC, consisting of less than a majority of 

the commissioners, may immunize from judicial review the legal interpretations 

they use to justify a dismissal of an administrative complaint simply by inserting a 

two word phrase—“prosecutorial discretion”—in their statement of reasons 

explaining their vote to find no reason to believe a respondent violated FECA, 

notwithstanding Congress’s explicit provision for judicial review of FEC nonenforcement decisions in 52 U.S.C. § 30109(a)(8).

(2) Whether the district court committed error by relying on a recent 

divided-panel decision in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018), despite 

the fact that the divided-panel decision contravenes both Supreme Court and earlier 

D.C. Circuit precedent.

 

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STATUTES AND REGULATIONS

52 U.S.C. § 30109 is reproduced in the Addendum. 

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STATEMENT OF THE CASE

I. Statutory and Regulatory Background

“Congress established the [FEC] at the front line of campaign finance law 

enforcement.” CREW v. FEC, 923 F.3d 1141, 1143 (D.C. Cir. 2019) (en banc)

(Pillard, J., dissenting). “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.” Id. Under the FECA, “‘[a]ll decisions of the’ [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.’” Id. at 

1142 (Griffith, J., concurring) (quoting 52 U.S.C. § 30106(c)). “That balance 

created a risk of partisan reluctance to apply the law,” however, “so Congress 

provided for judicial review of nonenforcement, and citizen suits to press plausible 

claims the Commission abandons.” Id. at 1143–44 (Pillard, J., dissenting). Those

provisions ensure the Commission cannot “‘shirk its responsibility to decide’” 

whether a violation occurred. Democratic Congressional Campaign Comm. v. 

FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987) (“DCCC”) (quoting 125 Cong. Rec. 

36,754 (1979)).

1

1 The legislative history of the 1976 amendments to the FECA that added the 

judicial review and citizen suit provisions confirm the purpose of the changes was 

to guard against underenforcement. FEC, Legislative History of Federal Election 

Campaign Act Amendments of 1976 at 72 (1977), 

https://transition.fec.gov/pdf/legislative_hist/legislative_history_1976.pdf (“FECA 

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The statute “invites ‘any person’ to file a complaint with the [FEC] and 

provides that the Commission ‘shall make an investigation’ of any complaint 

supported by ‘reason to believe’ that the statute is violated.” CREW, 923 F.3d at 

1144 (Pillard, J., dissenting) (quoting 52 U.S.C. § 30109(a)(2)); see also FEC v. 

Akins, 524 U.S. 11, 16 (1998) (describing FECA’s complaint system as “ask[ing] 

the FEC to find [whether a respondent] . . . had violated the Act”). “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.” CREW, 923 F.3d at 1144 (Pillard, J. 

dissenting) (quoting 52 U.S.C. § 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. (quoting 52 U.S.C. § 30109(a)(8)(C)). “[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 

1976 Legislative History”) (Statement of Sen. Clark) (“Recent events make clear 

that campaign regulation cannot be left to a commission that is under the thumb of 

those who are to be regulated.”); id. at 75 (Statement of Sen. Scott) (“The 

restoration of public confidence in the election process require an active watchdog 

in this area, not a toothless lapdog.”); id. at 92 (Statement of Sen. Mondale) 

(expressing concerns of “history of weak enforcement of campaign financing 

laws”).

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capricious, or an abuse of discretion.” Id. (quoting Orloski v. FEC, 795 F.2d 156, 

161 (D.C. Cir. 1986)).

II. Proceedings Below

CREW filed an administrative complaint with the FEC on September 17, 

2014 alleging the respondent corporation, New Models, failed to register and 

report as a political committee in violation of the FECA. JA019–62.

2 As revealed 

in proceedings started by CREW’s complaint, New Models took advantage of the

new opportunities conferred by Citizens United v. FEC, 558 U.S. 310 (2010), to 

make campaign-related expenditures in 2010 by distributing $265,000—about a 

third of its typical yearly budget—to a federal super PAC, CWA. JA083, JA107. 

New Models was CWA’s sole contributor, and the super PAC spent the money 

influencing a South Carolina congressional race. Id. Both New Models and CWA 

admitted the transfer was to influence a federal election. See id., 52 U.S.C. 

§ 30101(8)(A).

New Models then took full advantage in the next election cycle—the first 

full cycle under the new legal regime. In 2012, New Models distributed at least 

$3,095,000 to four federal super PACs. JA074–75, JA108. It distributed $292,000 

to CWA in January 2012, JA060, and $5,000 to Special Operations OPSEC 

2 Under the FECA, “political committees” are organizations that must publicly 

disclose the sources of all their funds. See 52 U.S.C. §§ 30101(4); 30104(b).

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Political Committee, JA074. Most of its disbursements, however—about $2.8 

million—occurred in October 2012, shortly before the election. JA053, JA056–57. 

That month, New Models distributed $2,171,000 to Now or Never PAC, JA056–

57, and of $627,000 to the Government Integrity Fund Action Network, JA053. 

The super PACs reported that New Models’s distributions were intended to 

influence elections, see JA053, JA056–57, JA060, JA108, and they all in fact 

engaged in extensive campaign activity that year, JA014–15. Together, New 

Models’s distributions comprised 68.7% of its expenditures in 2012. JA108. They 

even comprised 51.7% of New Models’s expenditures compared to its spending 

over the entire 2012 election cycle. Id.

New Models was not alone in the post-Citizens United world in taking 

advantage of its newfound ability to make disbursements to super PACs. The 

decision meant corporations could now lawfully make disbursements to other 

groups that would run ads, thus avoiding the FECA’s one-time disclosure 

obligations for those making either independent expenditures or electioneering 

communications. 52 U.S.C. § 30104(c), (f). Further, while the recipient super 

PACs would disclose their contributors, 52 U.S.C. § 30104(b), the distributing 

corporation would not (unless also covered by political committee laws). In that 

way, despite Citizens United’s promise that voters would continue to enjoy 

“prompt” and “adequate” disclosure of “the funding sources” of money used in 

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elections, 558 U.S. at 369–71, voters instead run into “dead-end disclosure”—they

learn the PAC was funded by a mysterious corporation and nothing more about 

who was behind the money. Examples of these types of arrangements designed to 

thwart transparency abound.

3 Money can then flow anonymously through entities 

like New Models into campaigns, even from prohibited sources like government 

contractors and foreign nationals—that is, unless disclosure is triggered under the 

FECA.

CREW’s complaint alleged New Models was required to disclose its 

contributors because it qualified as a political committee in 2012: its activities 

exceeded the $1,000 statutory threshold for political committee status, JA024, 

JA084, see also 52 U.S.C. § 30101(4), and New Models’s extensive spending 

demonstrated its “major purpose” was to influence federal elections. JA025, 

JA087; see also Buckley v. Valeo, 424 U.S. 1, 79 (1976). The FEC notified New 

3

Indictment, United States v. Parnas, 19-cv-725 (S.D.N.Y. 2019) (alleging shell 

corporation funneled foreign funds to political committee); Bryan Lowry and Steve 

Vockrodt, Greitens campaign sought to conceal donors’ identities, former staffer 

testifies, Kansas City Star, May 2, 2018, https://bit.ly/2IbkWlK; Matt Corley, NonProfits Funding Super PACs Benefitting Greitens Have Links Behind the Scenes, 

CREW (Nov. 1, 2016), https://bit.ly/2LY57x9 (reporting federal registered 

political committee was entirely funded by dark money corporation); Matt Corley, 

Rove Group Makes Largest Ever Dark Money Contribution to a Super PAC, 

CREW (Oct. 31, 2016), https://bit.ly/2t7OTdP (reporting Senate Leadership Fund, 

a registered political committee, received $11 million from One Nation, a dark 

money organization that does not reports its contributors); Theodoric Meyer, 

Secret Donors Behind Some Super PACs Funneling Millions into Midterms, 

ProPublica, Oct. 31, 2014, https://bit.ly/2leHOnk (discussing other examples).

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Models of CREW’s complaint on September 24, 2014. JA063. New Models 

responded on November 5, 2014, admitting that it crossed the statutory threshold 

but contesting its major purpose. JA066–69. After reviewing CREW’s complaint 

and New Models’s response, on May 21, 2015, the OGC recommended the 

Commission find reason to believe New Models violated the FECA by failing to 

register as a political committee. JA080.

Despite this recommendation, the Commission failed to find “reason to 

believe” New Models violated the FECA, with the two Republican-appointed 

commissioners (the “Partisan Bloc”), enough to deadlock the then four-person 

Commission, voting to find no reason to believe New Models violated the law. 

JA101. All four Commissioners then voted to close the file and dismiss the case. 

JA102. 

On December 20, 2017, the Partisan Bloc who voted to find no reason to 

believe a violation occurred issued a statement of reasons to explain their vote. 

JA103–34. The “thirty-two page statement of reasons” “involved a robust 

interpretation of statutory text and case law.” JA148, JA0153–54. They rejected 

New Models’s concession that it crossed the $1,000 statutory threshold, stating 

Buckley limited all uses of “expenditure” in the Act to express advocacy 

communications, JA114–15, JA119, and interpreted Buckley’s “major purpose” 

test to look to New Models’s “lifetime” of activities, contravening a court decision 

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finding such analysis unlawful, JA123; see also CREW v. FEC, 209 F. Supp. 3d 

77, 93–94 (D.D.C. 2016). The Partisan Bloc’s analysis firmly resolved the political 

committee issue: New Models “did not meet the statutory threshold for becoming a 

political committee,” JA120, New Models “did not have the requisite major 

purpose to be a political committee,” JA122, and New Models was definitively 

“not a political committee,” JA104. 

In the “last sentence of the thirty-two page” “extensive legal analysis 

explaining why they believed the group at issue was not a ‘political committee,’” 

the Partisan Bloc “added [a] drop of discretion.” CREW, 923 F.3d at 1148 (Pillard 

J., dissenting). They concluded, “[f]or these reasons, and in the exercise of our 

prosecutorial discretion, we voted against finding reason to believe that New 

Models violated the Act . . . .” JA133 (emphasis added). Tacked on in a footnote

were two case cites and a single sentence: “Given the age of the activity and the 

fact that the organization appears no longer active, proceeding further would not be 

appropriate use of the Commission resources.” Id.

That conclusion presumably rested on the Partisan Bloc’s representation 

that, after receiving CREW’s complaint, JA063, after the OGC recommended an 

investigation, JA073–87, and after New Models was notified of a pending 

Commission vote, JA088, New Models’s activities took a turn. Its reported 

spending dropped from a high of $4.5 million in 2012 to only $1 million in 2015, 

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when it purportedly ceased operations altogether. JA108–09.

4 Thus, to the extent a 

rationale can be extracted from a single sentence, they explained that their 

conclusion that there was no “reason to believe that New Models violated the Act” 

in 2012 relied on New Models’s actions in 2015. JA133. In other words, as a result

of New Models’s ex-post activities, voters would never learn “the sources of [New 

Models’s favored] candidate’s financial support” or who was “funding [the Super 

PAC’s] speech” through New Models’s 2012 disbursements. Buckley, 424 U.S. at 

67; SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010) (en banc). 

On January 12, 2018, within sixty days of the FEC’s dismissal of CREW’s 

complaint, CREW sought judicial review pursuant to 52 U.S.C. § 30109(a)(8)(A). 

Judge Contreras granted summary judgment to the FEC on March 29, 2019. In that 

decision, Judge Contreras asked whether a decision of a divided panel of this Court 

in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CREW/CHGO”)5, meant an

4 The Partisan Bloc apparently relied on extra-record evidence after conducting 

their own sua sponte investigation, in violation of one of their own stated policies 

to consider only materials submitted by parties. See Statement of Reasons [of] Vice 

Chairman Donald F. McGahn and Comm’r Caroline C. Hunter at 3–7, MUR 6462 

(Sept. 18, 2013), https://bit.ly/2yjUzqf (stating agency is limited to considering 

“sworn complaint” to determine reason to believe). 

5 Shortly after Judge Contreras’s decision, the en banc court denied a petition to 

rehear CREW/CHGO. See CREW, 923 F.3d 1141 (Mem.). Nonetheless, the two 

judges who wrote, either concurring in or dissenting from the denial, both 

expressed an interest in “reconsider[ing] the majority’s holding en banc.” Id. at 

1143 (Giffith, J. concurring); see also id. at 1145 (Pillard, J., dissenting) (“The 

panel’s significant disregard for circuit precedent calls for prompt correction.”).

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FEC decision that “involved a robust interpretation of statutory text and case law, 

with a brief mention of prosecutorial discretion sprinkled in” was unreviewable, 

notwithstanding 52 U.S.C. § 30109(a)(8)(A). JA154–55. Interpreting 

CREW/CHGO to impose a “‘magic words’ standard” despite apparent discomfort 

with that result, JA140, Judge Contreras found the dismissal was indeed

unreviewable simply because the Partisan Bloc “invoked prosecutorial discretion,” 

JA154. Accordingly, Judge Contreras concluded, “the Court is [] foreclosed from 

evaluating the [Partisan Bloc’s] otherwise reviewable interpretations of statutory 

text and case law.” JA161. 

SUMMARY OF THE ARGUMENT

The FECA 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 

in non-relevant part, 524 U.S. 11 (1998). The statute provides that a court may 

review the Commission’s dismissal of a complaint to determine whether the 

dismissal is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Until recently, courts 

understood that the statute required an inquiry into whether “the FEC dismissed the 

complaint as a result of an impermissible interpretation of [law].” Orloski, 795 

F.2d at 161. The court below, however, found that a recent divided panel of this 

Circuit in CREW/CHGO, 892 F.3d 434, obliterated that standard, replacing it with 

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a new “magic words” test, JA140, one that allows even a minority partisan bloc of 

commissioners to block judicial review by invoking a simple incantation: 

“prosecutorial discretion.” 

Here, the district court concluded that those two words, “sprinkled” (that is, 

dropped twice) into a Partisan Bloc’s statement of reasons, otherwise devoting 

“thirty [two] pages” to “reviewable legal analysis” explaining their conclusion that 

CREW’s complaint did not raise a reason to believe a violation occurred, rendered 

the whole statement of reasons unreviewable. JA154. In other words, the court 

below found CREW/CHGO permitted a partisan bloc of commissioners to nullify 

the FECA’s judicial review provision and to immunize their erroneous legal 

interpretations.

Their legal analysis here, despite involving a “robust interpretation of 

statutory text and case law,” JA153–54, was indeed erroneous. The Partisan Bloc 

interpreted Buckley to prohibit applying the FECA’s political committee rules—the 

rules that provide “voters with information as to where political campaign money 

comes from,” 424 U.S. at 66—to an organization that spent 68.7% of its 2012 

funds, more than $3 million, to influence federal elections, JA108. That analysis 

not only ignored plain statutory text and denied voters access to information as to 

where millions of dollars spent by New Models in federal elections came from, but 

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also deprives voters of the knowledge of the sources of hundreds of millions of 

dollars more routed through similar dark money groups to super PACs. 

The district court, however, erred. The Partisan Bloc’s “magic words” do not 

legally cut off the court’s obligation to consider whether their interpretations of 

law were permissible. CREW/CHGO does not compel otherwise. First, that 

decision, which considered only a dismissal that was “squarely” based on 

prosecutorial discretion and which involved no legal analysis and resolved no 

claim, 892 F.3d at 439, has no application here. The district court erred in 

following dicta in a footnote to conclude differently. Second, assuming 

CREW/CHGO does apply, then it is in direct conflict with binding Supreme Court 

authority and Circuit authority which expressly provide for judicial review in 

situations like this, and which provide that dismissals resulting from 

commissioners’ mere unwillingness to enforce are contrary to law. CREW/CHGO

is further in conflict with the FECA, a conflict the divided panel created based on 

its misreading of Heckler v. Chaney, 470 U.S. 821 (1984). Finally, CREW/CHGO

raises significant First Amendment concerns that require reversal. 

For those reasons, CREW respectfully asks this Court to reverse the district 

court’s decision and to find that either CREW/CHGO does not apply in situations 

like this where a dismissal rests on legal interpretation, or to find that 

CREW/CHGO contravenes earlier authority and thus is not binding. In either case, 

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CREW respectfully asks this Court to remand this case back to the district court to 

review the Partisan Bloc’s legal interpretations to decide whether they are contrary 

to law. 

ARGUMENT

The court below understood CREW/CHGO to impose a “magic words” test

that provides a partisan bloc of the FEC the “superpower . . . to kill any FEC 

enforcement matter, wholly immune from judicial review.” CREW, 923 F.3d at 

1150 (Pillard, J., dissenting) (quoting 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 (“Weintraub Statement”)). That decision was 

erroneous. First, CREW/CHGO does not impose a “magic words” test that 

eliminates review whenever a partisan bloc invokes prosecutorial discretion, and 

thus it does not apply here. Second, to the extent CREW/CHGO does apply, it is in 

clear conflict with prior Supreme Court and Circuit authority, conflicts with 

multiple aspects of the FECA, rests on erroneous interpretations of precedent, and 

raises significant First Amendment concerns. Accordingly, CREW respectfully 

requests this Court find CREW/CHGO is not binding and remand to the district 

court to review the commissioners’ legal analysis used to justify their conclusion 

that CREW’s complaint did not raise a reason to believe New Models may have 

violated the FECA. 

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I. Standard of Review

This Court reviews district court grants of summary judgment de novo. 

Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). Summary judgment is 

appropriate where the moving party meets its burden of demonstrating the absence 

of a genuine dispute of material fact and that “‘the moving party is entitled to a 

judgment as a matter of law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 

(1986) (quoting Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986).

II. CREW/CHGO Does Not Apply Here

CREW/CHGO held that under Chaney, 470 U.S. at 832–33, an FEC 

dismissal based “squarely” on prosecutorial discretion was not subject to judicial 

review. 892 F.3d at 438–39. The district court nonetheless followed dicta in 

CREW/CHGO to apply that case here, where the dismissal was based on “thirty 

pages of seemingly reviewable legal analysis” and a “brief mention” of

prosecutorial discretion was merely “sprinkled in.” JA154. That was error. Rather, 

prior governing precedent permits judicial review of a “discretionary agency 

decision” for “an improper legal ground.” Akins, 524 U.S. at 25. Further, the 

invocation of prosecutorial discretion here is simply too terse to satisfy the FEC’s 

obligation to “articulate a satisfactory explanation for its action including a rational 

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connection between the facts found and the choice made.” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). 

A. The District Court Improperly Followed Dicta

The district court below found that “CREW/CHGO is directly on point here” 

and was “binding Circuit law” that immunized the FEC’s dismissal of CREW’s 

complaint from judicial review. JA152–53. Yet CREW/CHGO concerned a very 

different case—one that did not consider a dismissal based on a “robust 

interpretation of statutory text and case law” that reached a firm resolution of the 

merits. Cf. id. The holding of CREW/CHGO thus does not apply here, and the 

district court erred in following dicta in the decision to conclude otherwise.

In CREW/CHGO, the D.C. Circuit considered an appeal from a dismissal of 

an FEC complaint against an organization, the Commission on Hope, Growth and 

Opportunity. 892 F.3d at 438. The commissioners who voted against enforcement 

issued a five-page statement explaining the dismissal was based on their 

“concern[s] that the statute of limitations had expired or was about to expire; that 

the association named in CREW’s complaint no longer existed; that the association 

had filed termination papers with the IRS four years earlier; that it had no money; 

that its counsel had resigned; that the ‘defunct’ association no longer had any 

agents who could legally bind it; and that any action against the association would 

raise ‘novel legal issues that the Commission had no briefing or time to decide.’” 

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Id.6 As a result, the commissioners “‘did not definitively resolve whether there was 

reason to believe CHGO was a political committee.’” Id. at 444 (Pillard, J., 

dissenting) (quoting CHGO SoR 4). In fact, a majority of the divided Circuit panel 

did “not believe the Commission made any legal decision” in dismissing the 

complaint, and rejected the idea of “teas[ing] out” such decisions by inferring 

interpretations that may have played a role in the exercise of discretion. Id. at 442–

43; see also id. at 441 (majority). Accordingly, the majority found that the 

dismissal exclusively based on prosecutorial discretion was not reviewable because 

courts had no “judicially manageable standards” to apply. Id. at 441. 

In stark contrast, here, the Partisan Bloc reached a firm conclusion on the 

legal question before them: they concluded, based on a lengthy analysis, that New 

Models was definitively “not a political committee.” JA104. Rather than resting 

squarely on prosecutorial discretion like in CREW/CHGO, the New Models 

dismissal made only passing reference to prosecutorial discretion, touching on it in 

the concluding paragraph as a tag-along justification. Instead, the dismissal was 

based squarely on the Partisan Bloc’s interpretation of Buckley to exclude groups 

like New Models from political committee reporting. Indeed, given their definitive 

6 Quoting FEC, Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Comm’rs Caroline C. Hunter and Lee E. Goodman, MUR 6391 and 6471 (Nov. 6, 

2015), https://www.fec.gov/files/legal/murs/6391/15044381253.pdf (“CHGO 

SoR”). 

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judgment on the merits, the Partisan Bloc had no discretion to exercise. See 52 

U.S.C. § 30109(a). Further, there is no need to tease out a legal interpretation from 

the assertion of discretion—here the legal interpretations stand front and center.

In deciding that CREW/CHGO governed, the district court relied on dicta in 

a footnote in the decision which would permit review of a dismissal only if it was 

“based entirely on [the commissioners’] interpretation of the statute.” JA154–56

(quoting CREW/CHGO, 892 F.3d at 441 n.11). Yet the relegation of that assertion 

to a footnote should have alerted the district court that it was not in fact a binding 

holding of the panel, especially one, as explained infra, overturning decades of 

precedent and gutting a statute. Moreover, the footnote is not “determinative of the 

result” because CREW/CHGO did not consider a dismissal premised on both legal 

interpretation and discretion, “and therefore must be deemed not a holding.” 

Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 897 (D.C. Cir. 1992). 

“Binding circuit law comes only from the holdings of a prior panel, not from its 

dicta.” Id.

By relying on dicta, the district court ignored direct authority that required 

review of the legal errors below. “Under settled precedent, the Commission’s 

enforcement discretion cannot block review of legal errors.” CREW, 923 F.3d at 

1145 (Pillard, J. dissenting). For example, the Supreme Court recognized that 

“those adversely affected by a discretionary agency decision generally have 

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standing to complain that the agency based its decision upon an improper legal 

ground.” Akins, 524 U.S. at 25. While courts may not “carv[e] reviewable legal 

rulings out from the middle of non-reviewable actions,” Crowley Caribbean

Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994) (emphasis added), FEC 

dismissal actions remain reviewable even after CREW/CHGO, which only limited 

review of certain FEC dismissal reasons. See 892 F.3d at 441 n.11 (recognizing 

FEC dismissals still reviewable if non-discretionary justification given). 

Reviewable agency action that is “predicated on a combination of both statutory 

and discretion grounds” remains reviewable “to ensure that the announced 

interpretations are consistent with the governing statute.” Int’l Union, United 

Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 245 

n.9, 246 (D.C. Cir. 1986). Moreover, “[b]ecause ‘[courts] cannot know that the 

FEC would have exercised its prosecutorial discretion in this way’ in the absence 

of the erroneous ingredients, [courts] review the legal ground even if the 

discretionary ground is legitimate, and remand if the former is tainted by error.” 

CREW, 923 F.3d at 1147 (Pillard, J., dissenting) (quoting Akins, 524 U.S. at 25).

“If such an invocation [of prosecutorial discretion] 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.’” Id. at 

1150. “If [the FEC] needs neither promulgate rules nor adjudicate the merits of 

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individual cases, any partisan, non-majority bloc of the Commission can 

indefinitely avoid developing law defining political committees.” Id. at 1150–51. 

Rather, “[w]ere [the Court] to accept the [FEC’s] contention, [the Court] would be 

handing [the FEC] carte blanche to avoid review by announcing new 

interpretations of statutes only in the context of decisions not to take enforcement 

action” with an incantation of prosecutorial discretion. Int’l Union, Union Auto., 

783 F.2d at 246. Indeed, one Commissioner predicted her colleagues would block 

review of “every future statement” of reasons supporting dismissal of a complaint

by invoking prosecutorial discretion. Weintraub Statement 2. 

The district court erred in relying on dicta in CREW/CHGO. That case does 

not extend beyond dismissals squarely and exclusively based on prosecutorial 

discretion. The district court’s reluctance to apply CREW/CHGO here was well 

founded. 

B. “Magic Words” Do Not Constitute Reasoned Decision-making

Beyond erroneously relying on dicta, the district court construed 

CREW/CHGO to impose a “magic words” standard that stands in stark conflict 

with black-letter administrative law: that an agency explanation must “articulate a 

satisfactory explanation for its action including a rational connection between the 

facts found and the choice made.” State Farm, 463 U.S. at 43. “[M]agic words” are 

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neither sufficient nor necessary to satisfy that duty. See TransCanada Power Mkt. 

Ltd. v. FERC, 811 F.3d 1, 10 (D.C. Cir. 2015) (collecting cases). 

A magic-words test—one that conditions any judicial review on the presence

or absence of a two-word phrase, “prosecutorial discretion”—detracts from, rather 

than contributes to, “reasoned decisionmaking by the agency.” Common Cause v. 

FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). That sort of “terse” reference to 

prosecutorial discretion does “not meet the standard of reasoned agency decision 

making” to uphold an agency action from legal challenge. Robertson v. FEC, 45 

F.3d 486, 493 (D.C. Cir. 1995); see also Antosh v. FEC, 599 F. Supp. 850, 856 n.5 

(D.D.C. 1984) (“While the Commission is vested with some prosecutorial 

discretion, its actions cannot escape review.” (citation omitted)). Rather, the FEC 

must provide a statement of reasons “to allow meaningful review.” Common 

Cause, 842 F.2d at 449. There is no exception to that requirement where the reason 

given is prosecutorial discretion. See, e.g., Chaney, 470 U.S. at 841 (Marshall, J., 

concurring) (noting FDA was “legally required to provide” a statement to justify 

nonenforcement, even if the statement was not reviewable on the merits); 5 U.S.C. 

§ 555(e) (requiring even unreviewable actions be accompanied by a “brief 

statement of the grounds for denial”).

Nothing in CREW/CHGO purported to alter this bedrock standard. Even if 

courts do not have judicially manageable standards to second-guess agency 

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

another . . . [or] whether the particular enforcement action requested best fits the 

agency’s overall policies,” CREW/CHGO, 892 F.3d at 439 n.7 (quoting Chaney, 

470 U.S. at 831–32), the Commission must still actually rest its decision on those 

determinations. Even where an agency enjoys discretion, it must provide a 

statement that “cogently explain[s] why it has exercised its discretion in a given 

manner.” State Farm, 463 U.S. at 48. Here, the invocation of prosecutorial 

discretion, tacked on as an afterthought to a lengthy legal opinion, meets none of 

these requirements.7

The district court erred in interpreting CREW/CHGO to impose a magicwords test that allows an agency to hide its judicially reviewable reasons for 

dismissal behind a terse invocation. CREW/CHGO did not confront that question, 

and a statement in a footnote should not be read to upend decades of administrative 

law. 

7 For example, the invocation does not explain why New Models’s purported 

cessation of business in 2015 blocked relief in the form of contemporaneous

disclosure. See, e.g., Conciliation Agreement ¶VI.3, MUR 6538R, (Aug. 28, 2019),

https://www.fec.gov/files/legal/murs/6538R/19044477418.pdf (requiring former 

president of defunct group to disclose past contributors). 

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III. If CREW/CHGO Applies, It Conflicts With Precedent And is Not 

Binding

For the reasons stated, the district court erred in finding CREW/CHGO

applied here. Nonetheless, CREW/CHGO is “not binding” even where it does 

apply because its “holding conflicts with . . . the Supreme Court’s decision in 

[Akins], 524 U.S. 11 [ ]; and with [this Court’s] decisions in Chamber of 

Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995); [DCCC], 831 F.2d 131 [ ], and 

Orloski, 795 F.2d 156.” CREW, 923 F.3d at 1145 (Pillard, J., dissenting) (citing 

Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011)). Unlike this prior 

authority, CREW/CHGO “conflicts with the [FECA’s] terms, structure, and 

purpose,” id. at 1145 (Pillard, J., dissenting), misreads the case on which its 

analysis rests, Chaney, 470 U.S. 821, and affords unbridled discretion that “itself 

raises First Amendment concerns,” Akins, 101 F.3d at 744. Accordingly, if the 

Court finds CREW/CHGO does apply here, CREW respectfully requests the Court 

recognize CREW/CHGO’s conflict with prior authority, the statute, and the 

Constitution, and declare CREW/CHGO is non-binding in this and all future cases. 

A. Supreme Court and Prior Circuit Authority Require Judicial 

Review of Partisan Discretionary Dismissals

CREW/CHGO held that a partisan bloc of the Commission could not only 

block FEC enforcement, but also block judicial review and private suit by 

plaintiffs, merely based on the partisan bloc’s unwillingness to enforce the law. 

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The decision, however, conflicts with the Supreme Court’s recognition in Akins

that the agency’s prosecutorial discretion could not block a plaintiff from 

challenging legal error. See 524 U.S at 25. Further, it conflicts with this Court’s 

prior precedents which held that the FEC’s prosecutorial discretion was 

reviewable, DCCC, 812 F.2d at 1133–34; that a dismissal based on the agency’s 

“unwillingness” to proceed was contrary to law, Chamber, 69 F.3d at 603; and that 

before proceeding to any discretionary review, courts must first assure themselves 

the FEC “permissib[ly] interpre[ted] . . . the statue,” Orlsoki, 795 F.2d at 161. As 

each of these precedents predates CREW/CHGO and compels review here, 

notwithstanding any invocation of prosecutorial discretion, the district court erred 

in following CREW/CHGO.

8

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 Chaney’s presumption against such review. Akins, 524

U.S. at 26. Unlike the statutes that Chaney found do not provide for review of 

agency nonenforcement, the FECA expressly includes “an unusual statutory 

8 Although the en banc court declined to review the panel decision in 

CREW/CHGO 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. See generally CREW, 923 F.3d 1141. 

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provision which permits a complainant to bring to federal court an agency’s refusal 

to institute enforcement proceedings.” Akins, 101 F.3d at 734. Rejecting the FEC’s 

argument that the dismissal below was based on the agency’s 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.

9

In DCCC, this Court similarly recognized that discretionary dismissals—

particularly those resulting from partisan splits of the Commission—are subject to 

judicial review. 812 F.2d at 1133–34. Rejecting the FEC’s suggestion that a 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 holding “judicial 

9 The CREW/CHGO majority 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/CHGO, 892 F.3d at 441 n.11. Nevertheless, the 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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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).10

Similarly, this Court held in Chamber that a dismissal based on the FEC’s 

“unwillingness” to proceed was not only subject to judicial review, but it was also 

an “easy” case for reversal. 69 F.3d at 603. This Court said “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.” Id. In Chamber, when two groups sought 

judicial review of an FEC regulation, 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 

enforcement is not left to the discretionary choice of the commissioners. Id.11

10 CREW/CHGO ignored this authority, likely because the FEC did not dispute that 

its discretionary dismissals were in fact subject to judicial review. CREW, 923 F.3d 

at 1143 (Pillard, J., dissenting).

11 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 CREW/CHGO held, then the plaintiffs faced no realistic threat of 

enforcement and would not have had standing.

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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]” secure judicial 

reversal because the agency’s “unwillingness” to enforce was per se “contrary to 

law.” Id. The complainant would either obtain Commission enforcement 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.12 In sum, 

Chamber recognized the Commission was “obligat[ed] to pass on the merits of a 

complaint” because the FECA recognized that a valid complaint may either be 

pursued by the agency or by the complainants. CREW, 923 F.3d at 1150 (Pillard, 

J., dissenting). 

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 

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

12 As with DCCC, CREW/CHGO ignored this authority.

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26

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

deferential review.

CREW/CHGO is wholly inconsistent with Akins, DCCC, Chamber, and 

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

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

FEC actions, CREW/CHGO relied on Chaney to ignore the FEC’s legal error in 

dismissal and to render the FEC’s actions “unreviewable.” CREW/CHGO, 892 F.3d 

at 438, 439 (holding Chaney “controls this case”). Contrary to DCCC’s holding that 

three commissioners’ exercise of prosecutorial discretion was subject to judicial 

review, CREW/CHGO rendered the dismissal entirely beyond judicial review. Id. at 

438. 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 603, CREW/CHGO treats such dismissals as above the 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, CREW/CHGO renders the partisan 

bloc’s interpretations beyond judicial review. “[W]hen a decision of one panel is 

inconsistent with the decision of [the Supreme Court or] a prior panel,” as 

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CREW/CHGO is, “the norm is the later decision, being in violation of that fixed law, 

cannot prevail.” Jackson, 648 F.3d at 854. 

CREW/CHGO conflicts 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 CREW/CHGO is in 

conflict and thus will not be followed here, was erroneously followed below, and is

not binding on any future court.

B. CREW/CHGO Conflicts with the FECA

As the above authority shows, Congress created both a significant check 

against partisan abuse of the FEC and 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. CREW/CHGO, 

however, conflicts with that structure. First, it empowers 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, CREW/CHGO nullifies the citizen suit provision by rendering the 

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

impossible.

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1. CREW/CHGO Upends 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 

a political party. 52 U.S.C. § 30106(a)(1), (c). Bipartisan agreement is thus 

necessary for decisions to enforce, and for decisions not to enforce. See id. at 

§ 30106(c) (“All decisions of the Commission . . . shall be made by a majority 

vote” and “the affirmative vote of 4 members of the Commission shall be required 

in order for the Commission to take any action” over enforcement (emphasis 

added)). CREW/CHGO upends this structure, instead allowing a partisan bloc of 

three commissioners (or fewer in the event of an understaffed Commission) to veto 

any enforcement action.

The FECA requires bipartisan agreement by the FEC for any enforcement 

action, including a dismissal brought about by a partisan deadlock. Where four 

votes are unavailable for any option, nothing happens—neither an investigation nor 

a dismissal—until a bipartisan coalition of four commissioners can come to an 

agreement. The FECA does not automatically dismiss cases that do not enjoy four 

votes to proceed. See 52 U.S.C. § 30106(c). Where there is a partisan deadlock on 

the merits that prevents any action and the declining commissioners remain 

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intransigent, one commissioner from the other party may acquiesce in dismissal in 

order to submit the partisan bloc’s idiosyncratic interpretations of law to judicial 

review.13 In that case, the only question which enjoys the bipartisan support of four 

commissioners, and thus the only position adopted by the agency, is whether the 

blocking commissioners’ legal and factual determinations are correct.14 The 

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

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

irrelevant: the FECA does not empower this partisan minority bloc to speak on 

13 Notably, this is not necessary where there is a partisan split on the prudence of 

moving forward with an investigation. If four commissioners agree a complaint 

raises a reason to believe a violation may have occurred, the FEC must investigate, 

even if three commissioners would rather not for prudential reasons. See 52 U.S.C. 

§ 30109(a)(2). 

14 For this reason, In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000), erred in 

concluding an 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 for 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 

only to “agency’s ‘authoritative’ or ‘official position’”); United States v. Mead 

Corp., 533 U.S. 218, 237 (2001) (Chevron unavailable when 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 

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” deference 

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

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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behalf of the agency.

15 The only bipartisan position enjoying four votes is the 

decision to dismiss because of a disagreement on the law and facts that prevents 

further agency action. 

CREW/CHGO ignores this fact, and instead treats 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. This risks the 

possibility that “any partisan, non-majority bloc of the Commission can 

indefinitely avoid developing law.” CREW, 923 F.3d at 1144 (Pillard, J., 

dissenting). Worse, it gives that bloc “unreviewable” authority to interpret the 

FECA in ways that do not enjoy bipartisan support and are clearly contrary to law. 

CREW/CHGO, 892 F.3d at 438. It gives a partisan bloc “carte blanche to avoid 

review by announcing new interpretations of statutes only in context of decisions 

not to take enforcement action,” and then immunize those interpretations from 

judicial review by uttering the magic words of prosecutorial discretion. Int’l Union, 

Union Auto, 783 F.2d at 246; see also Weintraub Statement 2.

16 Regulated groups 

15 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.

16 See, e.g., Statement of Reasons of Chair Caroline C. Hunter and Comm’r 

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

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

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then know they can evade legal enforcement for actions that, while prohibited by 

law, are permitted by the partisan bloc of commissioners, secure in their belief that 

a court will never be able to review those determinations.

“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/CHGO] 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. Indeed it is a 

superpower in use, as the partisan bloc have cited prosecutorial discretion in every 

statement of reasons providing their interpretation of the political committee rules 

since CREW/CHGO.

17 It is a power Congress expressly denied, however, and 

CREW/CHGO erred in providing it.

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

close the file” (emphasis added)).

17 See JA133; Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Comm’r Caroline C. Hunter 19, MUR 6956 (Crossroads GPS) (May 13, 2019) 

https://www.fec.gov/files/legal/murs/6596/6596_2.pdf; Statement of Reasons of 

Chair Caroline C. Hunter and Comm’r Matthew S. Petersen 8, MUR6969 

(MMWP12 LLC), MURs 7031 & 7034 (Children of Israel) (Sept. 13, 2018), 

https://eqs.fec.gov/eqsdocsMUR/6969_2.pdf.

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2. CREW/CHGO Nullifies the Statutory Citizen Suit Provision

CREW/CHGO conflicts with the FECA’s structure in another way: it renders 

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); see also CREW v. AAN, No. 18-cv-945, 2019 WL 4750248 

(D.D.C. Sept. 30, 2019). 

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 

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 

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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 “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, 558 U.S. at 370 (information allows persons to see if “elected 

officials are ‘in the pocket’ of so-called moneyed interests”). 

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 FEC’s “exclusive” civil 

enforcement power “[e]xcept” for citizen suits “in section 30109(a)(8)). 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 (antitrust laws); 16 U.S.C. § 1540(g) (Endangered Species Act); 

42 U.S.C. § 2000e-5(f) (anti-discrimination employment law); 42 U.S.C. § 4305

(energy statute); 42 U.S.C. § 7604 (air pollution statute). 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.

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Before a private party can bring its 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 affirms the 

FEC’s judgment of dismissal and the complainant cannot then file a private suit. 

Id. If, however, the court finds 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 declares the FEC has acted “contrary to law” and remands 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).

CREW/CHGO, however, renders the possibility of a contrary to law 

judgment essentially impossible by giving a partisan bloc an unreviewable veto 

over private enforcement. That renders private suits impossible in the exact 

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situation private suits are most sensible: where the FEC recognizes a complaint has 

merit but still declines 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.” Chaney, 470 U.S. at 831. None of those factors are implicated when a private 

person—rather than the FEC—brings suit. “If [the] failure to [enforce] results from 

the desire of the [commissioners] to husband federal resources for more important 

cases, a citizen suit against the violator can still enforce compliance without federal 

expense.” Sierra Club v. Whitman, 268 F.3d 898, 905 (9th Cir. 2001).

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 

elsewhere. CREW/CHGO, however, blocks these suits when they are most useful 

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

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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/CHGO Misreads Chaney

Binding precedent and statutory text thus make clear that FEC dismissals, 

even discretionary dismissals, are in fact reviewable. The divided circuit panel in 

CREW/CHGO, however, departed from this authority because it thought Chaney

compelled it to immunize FEC legal error from judicial review whenever 

commissioners voluntarily “plac[e] their judgment” on prosecutorial discretion. 

See CREW/CHGO, 892 F.3d at 439. The panel read Chaney to provide a 

discretionary partisan veto on judicial review. That is not, however, what Chaney 

provides.

In Chaney, the Supreme Court held that the APA and another statute did not 

provide for judicial review of the Food and Drug Administration’s decision to 

decline prohibiting states from using drugs in lethal injections. 470 U.S. at 836–37. 

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

unreviewable under these statutes by congressional design, 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. 

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Accordingly, Chaney properly read does not apply here for at least four 

reasons: (1) it conditions review on actions, not reasons; (2) it did not involve a 

statue like the FECA in which Congress explicitly provided for review; (3) it dealt 

with statutes that provided courts no law to apply; and (4) it concerned agency 

action that was solely prosecutorial rather than adjudicative. 

1. Agency Reasons Do Not Render Agency Action Unreviewable

While Chaney held an agency’s nonenforcement actions are, as a category, 

presumptively unreviewable, it did not render otherwise reviewable agency action 

unreviewable based 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). Rather, 

Chaney left in place the law that “judicial review of a final agency action” is a 

matter for the decision “of Congress,” Abbott Labs v. Garder, 387 U.S. 136, 140 

(1967), not a matter the agency can voluntarily evade, see Chaney 470 U.S. at 

837.

18 Even after Chaney, “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.” CREW, 923 F.3d at 1148 

(Pillard, J., dissenting).

18 See also, e.g., Assoc. of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339, 341–

42 (D.C. Cir. 2002) (considering case where Congress explicitly stripped court’s 

jurisdiction to review).

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Accordingly, the reviewability of FEC dismissals does not depend on where 

commissioners “plac[e] their judgment.” Cf. CREW/CHGO, 892 F.3d at 439.

Rather, it depends on the statute and whether Congress “intend[ed] to alter [the] 

tradition” that nonenforcement decisions are “committed to agency discretion.” 

Chaney, 470 U.S. at 832. CREW/CHGO thus erred in reading Chaney to place into 

the hands of the agency—and in fact a partisan minority bloc of commissioners—a 

choice that belongs only to Congress. 

2. The FECA Expressly Provides for Judicial Review of FEC 

Dismissals

In the FECA, unlike in the two statutes considered in Chaney, Congress 

“explicitly” chose to alter the tradition and subject FEC nonenforcement to judicial 

review. Akins 524 U.S. at 26. Chaney therefore does not apply to review under the 

FECA. 

As explained above, in Akins, the Supreme Court recognized Chaney has no 

application in cases like this. There, the FEC dismissed a complaint based in part 

on discretion and the FEC asserted Chaney therefore blocked review—an assertion 

the Court rejected. Id. Akins recognized that Chaney found “that agency 

enforcement decisions ‘have traditionally been “committed to agency discretion”’ 

and concluded that Congress did not intend to alter that tradition in enacting the 

APA.” Id. (quoting Chaney, 470 U.S. at 832). By contrast, the Court held the 

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FECA “explicitly” showed Congress did intend to alter that tradition and provide

for review of FEC dismissals, so it found Chaney inapposite. Id.

Chaney itself similarly recognized Congress can provide review for agency 

nonenforcement, distinguishing the statutes before it from another one the Court 

previously found compelled judicial review of nonenforcement and left no room 

for agency discretion. 470 U.S. at 833. Chaney found the two statutes before it 

lacked the mandatory enforcement language in the statute the Court considered in

Dunlop v. Bachowski, 421 U.S. 560 (1975), which provided the Secretary of Labor 

“shall investigate [a] complaint and, if he finds probable cause to believe that a 

violation occurred . . . shall . . . bring a civil action.” Chaney, 470 U.S. at 833

(emphasis added). That language provided “sufficient standards to rebut the 

presumption of unreviewablility.” Id. That language is also remarkably similar to

the FECA’s provisions stating that “[i]f the Commission . . . . determines . . . that it 

has reason to believe that a person has committed . . . a violation of this Act . . . , 

the Commission shall make an investigation of such alleged violation,” 52 U.S.C. 

§ 30109(a)(2) (emphasis added); and “shall attempt . . . to correct or prevent such 

violation” “[i]f the Commission determines . . . that there is probable cause,” id. at 

§ 30109(a)(4) (emphasis added). Just like the statute in Dunlop, and unlike the 

statutes in Chaney, the FECA rebuts the presumption of unreviewability. 

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CREW/CHGO waived this distinction away by focusing on a much later step 

in the proceedings—when, after an investigation, after a finding of probable cause, 

and after a failed attempt at conciliation, the Commission considers whether to file 

suit. 892 F.3d at 439. At that point, the statute switches from the mandatory to the 

permissive, providing the Commission “may . . . institute a civil action.” 52 U.S.C. 

§ 30109(a)(6)(A). Any discretion at that remote step has no relevance, however, to 

the proceedings at issue here where the FECA is clear—if there is reason to 

believe, the Commission “shall” investigate. 52 U.S.C. § 30109(a)(2). Nor is it 

correct to think this mandatory action is pointless if the Commission could simply 

choose not to sue at the end: the FECA provides discretion about one means of 

enforcement, but not the fact of enforcement. Rather, the FECA mandates that the 

Commission “shall attempt . . . to correct or prevent the violation involved.” 52 

U.S.C. § 30109(a)(4)(A)(i), (ii) (emphasis added). Even in a case where that 

attempt fails and the Commission chooses not to sue, proceeding to this point 

would be quite valuable to a complainant and the public. Even without a lawsuit, 

the complainant and public would learn the Commission, based on an 

investigation, found both reason to believe and probable cause to believe the 

respondent violated the law. 52 U.S.C. § 30109(a)(2), (4). In addition, disclosure of 

the agency’s analysis and investigatory materials after the investigation ended

would inform them about the facts and interpretations substantiating those 

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findings. 11 C.F.R. § 111.20; cf. AFL-CIO v. FEC, 333 F.3d 168, 174, 178 (D.C. 

Cir. 2003) (upholding agency’s interpretation of 52 U.S.C. § 30109(12)(A) to not 

apply post-investigation; recognizing public interest in release of information that 

played “meaningful role [agency’s] decisionmaking”). 

Indeed, CREW/CHGO’s argument proves too much. If the FECA’s use of 

“may” at the civil litigation stage rendered the agency’s nonenforcement 

unreviewable, then no FEC dismissal could be reviewed. The FEC’s ultimate 

discretion about whether to bring a civil suit is present in every enforcement 

proceeding. If the FEC’s discretion about filing suit renders its dismissals 

unreviewable, it does not matter whether the FEC rests dismissal “entirely on its 

interpretation of the statute,” CREW/CHGO, 892 F.3d at 441 n.11, because it is the 

agency’s “formal action, rather than its discussion, that is dispositive,” ICC, 482 

U.S. at 281. Yet courts have consistently recognized that FEC dismissals are

subject to judicial review, notwithstanding the FECA’s permissive use of “may” at 

the final stages of the proceedings. See, e.g., Akins, 524 U.S. at 26; DCCC, 812 

F.2d at 1133–34; Chamber, 69 F.3d at 603. 

The FECA “explicitly” indicates Chaney is inapposite in cases like this. 

Akins, 524 U.S. at 26. Congress expressly provided for judicial review of FEC 

dismissals, and CREW/CHGO was wrong to overrule Congress on that point.

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3. The FECA Provides the “Law to Apply”

Chaney concluded the two statutes before it provided courts with no “law to 

apply” to review nonenforcement, which often relies on matters “peculiarly within 

[the agency’s] expertise.” 470 U.S. at 831, 835. CREW/CHGO believed similar 

problems infected judicial review of the FEC’s discretionary nonenforcement 

decisions, 892 F.3d at 440, yet it ignored the fact that the FECA “[s]upplies [l]aw 

to [a]pply,” id. at 446 (Pillard, J., dissenting). First, the FECA supplies the 

“contrary to law” standard by which courts review commissioners’ legal

interpretations to decide whether they are “permissible.” Orloski, 792 F.2d at 161. 

Second, even assuming that standard alone does not sufficiently constrain the 

agency’s actions, as CREW/CHGO did, the FECA provides additional constraints. 

Under the Act, the Commission is forbidden from dismissing a properly filed 

complaint before an investigation unless it finds the complaint failed to meet the 

reason-to-believe threshold or, at least, the Act forbids the Commission from 

dismissing a complaint based on a reason to believe finding without providing a 

justification rationally connected to that merits determination. Accordingly, the 

FECA provides more than enough law to apply. 

To start, the FECA explicitly states the law courts are to apply: whether a 

dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). A dismissal is 

“contrary to law” if it resulted from “an impermissible interpretation” of law. 

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Orloski, 792 F.2d at 161. That is a judicially manageable standard. See id. at 162–

67; Akins, 101 F.3d at 740–44. 

Notwithstanding Orloski, CREW/CHGO held the contrary to law standard 

was insufficient because Congress “never identifie[d] what ‘law’ it ha[d] in mind.” 

892 F.3d at 440. Accordingly, CREW/CHGO concluded that without a law 

prohibiting FEC dismissal that the FEC could contravene, there was no role for 

courts to play. 

CREW/CHGO, however, ignored the very text of the FECA, which supplies 

that law. The FECA prohibits discretionary pre-investigation dismissals either in 

all cases or, at least, in cases where commissioners trigger dismissal by voting to 

find a complaint does not raise a reason to believe, as the Partisan Bloc did here.

Statutes like the FECA which condition agency enforcement on a merits

determination “obligat[e] [the agency] to examine [the matters] and determine if 

they fall foul of the Act’s dictates.” Shelley v. Brock, 793 F.2d 1368, 1374 (D.C. 

Cir. 1986) (considering statute conditioning enforcement on “if” the agency “finds 

probable cause”). By conditioning an investigation only on the commissioners’ 

determination about whether a complaint raises a reason to believe, 52 U.S.C. 

§ 30109(a)(2), Congress ensured the Commission could not “shirk its 

responsibility to decide” whether a complaint states a plausible claim, DCCC, 831 

F.2d at 1134; see also Akins, 524 U.S. at 16 (the FECA procedures “asks the FEC 

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to find [whether a respondent] . . . had violated the Act”); Chamber, 69 F.3d at 603

(FEC only permitted to dismiss based on “the meaning of the applicability of the 

rule’s clear terms”).19 A commissioner’s prudential assessment is irrelevant: as 

long as four commissioners agree there is reason to believe a violation may have 

occurred, the FEC “shall” investigate. 52 U.S.C. § 30109(a)(2). Any claim of 

discretion must be justified “by specific reference to the terms of the authority 

vested in [it] by the Act.” Shelley, 793 F.2d at 1371.

For example, courts have recognized the NLRA requires the NLRB to 

decide every complaint brought to it on the merits, see Int’l Union, UAW v. NLRB, 

427 F.2d 1330, 1332 (6th Cir. 1970) (“We find no authorization in the statute for 

the Board’s abstention from its duty to decide complaints properly brought before 

it.”); see also Oil, Chemical & Atomic Workers Local Union No. 6-418, AFL-CIO 

v. NLRB, 711 F.2d 348, 362 (D.C. Cir. 1983), at least where that failure is not 

“harmless,” Fortuna Enter, LP v. NLRB, 665 F.3d 1295, 1304–05 (D.C. Cir. 2011). 

The NLRA, like the FECA, imposes an “[i]f . . . shall” condition on NLRB 

proceedings. See 29 U.S.C. § 160(c). Given Congress’s intent to mimic NLRA 

enforcement process in the FECA, see FECA 1976 Legislative History 804 (House 

Committee Report) (describing the “essence not only of NLRA’s administrative 

19 Whether or not the “the Commission must bring actions in court on every 

administrative complaint” it deems credible does not negate this duty. Cf. CREW v. 

FEC, 475 F.3d 337, 341 (D.C. Cir. 2007). 

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45

enforcement scheme, but of this Act’s enforcement procedures as well”), it is clear 

the FECA similarly imposes on the Commission a “duty to decide complaints 

properly brought before it.” Int’l Union, UAW, 427 F.2d at 1332. 

The FECA, like the NLRA and like the statute at issue in Shelley and 

Dunlop, conditions agency action on a merits determination. In so doing, Congress 

provided “meaningful standards for defining the limits of [the FEC’s] discretion,” 

Chaney, 470 U.S. at 834. Under the FECA, the sole basis by which the FEC can 

decline proceeding with a properly filed complaint to an investigation is to render a 

lawful decision on the merits that a complaint fails to raise reason to believe. Any 

pre-investigation dismissal not premised on that lawful determination violates the 

FECA’s command to investigate. It is “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(C).

Moreover, even assuming that discretionary pre-investigation dismissals 

may be lawful in some cases, the FECA still prohibits what occurred here: abusing 

the reason to believe determination to evade any need to secure four votes for 

discretionary dismissal. 

As discussed above, any enforcement action by the FEC requires a 

bipartisan four-vote majority. That also applies to the FEC’s claimed power to 

exercise prosecutorial discretion: it requires the affirmation of “at least four 

Commissioners.” FEC, Statement of Policy, 72 Fed. Reg. 12,545, 12,545–46 (Mar. 

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46

16, 2007); accord FEC, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process 12 (May 2012), http://fec.gov/em/respondent_guide.pdf. 

Here, even crediting the Partisan Bloc’s terse reference to prosecutorial discretion, 

only two commissioners expressed any desire to exercise that discretion. JA134. If 

the two commissioners requested a vote to dismiss on prosecutorial discretion,20

that vote would have failed and CREW’s complaint would not have been lawfully 

dismissed. By voting that CREW’s complaint failed to raise a reason to believe, 

however, they were able to block any further agency action without securing 

bipartisan agreement. JA101–02.

21

Accordingly, it was the Partisan Bloc’s vote on the merits that is the 

“reaso[n]” the FEC “depart[ed] from recommendations of the General Counsel.” 

Common Cause, 842 F.2d at 438. It is that vote they must then explain. A “reason 

20 Cf. Certification, MUR 7213 (Labor United for Connecticut) (Aug. 7, 2018), 

https://eqs.fec.gov/eqsdocsMUR/18044453135.pdf (four votes to “[d]ismiss as a 

matter of prosecutorial discretion”). 

21 While the Partisan Bloc’s vote does not automatically result in dismissal, as 

dismissal also requires four votes, it nonetheless prevented further action and 

raised the possibility the matter would languish at the agency. See 52 U.S.C. 

§ 30106(c) (four votes needed for “any action”); see also, e.g., Certification, 

MURs 7014, 7017, 7019, and 7090 (DE First Holdings) (May 10, 2018),

https://www.fec.gov/files/legal/murs/7014/18044443619.pdf (closing file); 

Certification MURs 7014, 7017, 7019, and 7090 (DE First Holdings) (Dec. 12, 

2017), https://eqs.fec.gov/eqsdocsMUR/18044443619.pdf (deadlocking reason to 

believe vote 2-0). To prevent CREW’s complaint from thereafter languishing at the 

agency, the two commissioners wishing to proceed here joined with the Partisan 

Bloc to dismiss, but one explained she did so because she wished to subject her 

colleagues’ “legal mistake” to judicial review. See JA135–37. 

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47

to believe” exists, however, whenever “a complaint credibly alleges that a 

significant violation may have occurred.” FEC, Statement of Policy, 72 Fed. Reg. 

at 12,545. In explaining their vote, therefore, the commissioners must supply 

“rational connection between the facts found and the choice made.” State Farm, 

462 U.S. at 43. Consideration of prudential matters like “the limited resources 

available” to the FEC therefore “is entirely inappropriate” in explaining a decision 

on the merits, Shelley, 793 F.2d at 1376. Those considerations simply have no 

rational connection to the Partisan Bloc’s choice to find CREW’s complaint failed 

to credibly allege New Models violated the law. The “age of the activity and the 

fact that [New Models] appears no longer active” in 2017 similarly has no rational 

connection to their decision to conclude New Models was “not a political 

committee” in 2012. JA104, JA133. A decision on the merits based on such 

considerations is simply contrary to law. Chamber, 69 F.3d at 603.

In short, the FECA provides judicially manageable standards for courts to 

apply in reviewing FEC dismissals. Under Orloski, a dismissal is “contrary to law” 

if it involves “impermissible interpretations” of law. 792 F.2d at 161. Even 

assuming that a plaintiff must show that FEC dismissal was not only premised on 

legal error, but that it was itself unlawful, the FECA still provides law for courts to 

apply. The FECA prohibits pre-investigation dismissals of properly filed 

complaints if they raise a reason to believe or, at least, prohibit commissioners 

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from justifying their reason to believe determination by pointing to discretionary 

concerns that lack any rational connection to the choice made. Unlike in Chaney, 

here there is law to apply. 

4. The FEC Acts as an Adjudicator, Not a Prosecutor

Chaney also does not apply in situations like this because the FEC is not 

simply a prosecutor deciding whether to bring an enforcement proceeding. Rather, 

as explained above, the FEC is deciding whether a complainant has stated 

sufficient cause for either the agency or the complainant to proceed. “At most, the 

Commission may employ prosecutorial discretion in settling its own claims.” 

Burlington Resources Inc. v. FERC, 513 F.3d 242, 247 (D.C. Cir. 2008). Where 

the decision “also purport[s] to cancel or release [private] parties’ own private 

claims,” however, “the Commission exercise[s] authority beyond that of a 

prosecutor and more akin to that of a court.” Id. “By exercising dispositive 

authority, it correspondingly narrow[s] its discretion.” Id.

The FECA not only places the FEC’s prosecutorial determinations with the 

Commission, it also places initial adjudicatory authority over a private party’s

claims with the Commission as well. 52 U.S.C. § 30109(a)(8)(C). If the 

Commission lawfully decides a complaint lacks merit, it releases a respondent 

from the possibility of that private claim. 

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Where an agency is merely deciding whether to bring its own enforcement 

action, concerns such as its “whether agency resources are best spent on this 

violation or another,” or “whether the particular enforcement action requests best 

fits the agencies overall priorities” are appropriate. Chaney, 470 U.S. at 83. Where 

the agency also adjudicates a private claim, however, those concerns have no

“rational connection” to the choice made. State Farm, 462 U.S. at 247.

A court’s decision that the FEC’s dismissal is contrary to law, on the other 

hand, does not compel FEC enforcement. Rather, it merely impacts who “shall 

have primary responsibility for” enforcing campaign finance laws in this instance. 

See Nat’l Wildlife Fed. v. EPA, 980 F.2d 765, 773 n.3 (D.C. Cir. 1992). The FEC is 

then free to stand aside and permit private suit. 52 U.S.C. § 30109(a)(8)(C). Where 

judicial review would not result in an order compelling the agency to “remed[y] or 

sanctio[n] a particular statutory violation but instead determine who will have 

overall responsibility” to enforce in a particular instance, Chaney does not apply.

Nat’l Wildlife Fed., 980 F.2d at 773 n.3.

In sum, CREW/CHGO erred in reading Chaney to control this case. Chaney

does not render an otherwise reviewable agency action unreviewable merely based 

on the reason given by the agency, it does not apply to the FECA, it does not apply 

where the statute provides law to apply, and it does not apply where the agency 

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50

adjudicates private claims. The Supreme Court’s and this Circuit’s prior precedent 

did not make these mistakes and must take precedence over CREW/CHGO.

D. CREW/CHGO’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/CHGO, 892 F.3d at 438.

“[E]very action the FEC takes implicates fundamental rights.” Van Hollen, 

Jr. v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016). 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. v.

Pub. Utilities Comm’n of Ca., 475 U.S. 1, 8 (1986) (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 know the identity of those who seek to 

influence their vote”). In deciding whether to apply the FECA to a respondent like 

New Models, the Commission decides whether others will receive information to 

which Congress entitled them—if it chooses not to enforce, it censors their receipt 

of that information. See Citizens United, 558 U.S. at 333, 341 (finding 

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51

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 raises significant constitutional concerns. 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. v. Conrad, 420 U.S. 546, 553

(1975); 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).22

CREW/CHGO, however, confers just such unbridled discretion on the FEC, 

and indeed on a partisan bloc of commissioners. Under the divided D.C. Circuit 

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

22 It does not matter that CREW enjoys the right to this information as the result of 

Congress’s decision to enact the FECA: the First Amendment limits the 

government’s discretion over speech “even when the limited public forum is one of 

its own creation.” Rosenberg v. Rector and Visitors of the Uni. of Va., 515 U.S. 

819, 829 (1995). 

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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.23 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., Kaahumanu v. Hawaii. 682 F.3d 789, 806 (9th Cir. 2012); 

Child Evangelism Fellowship of Md. Inc. v. Montgomery Cnty. Pub. Schs., 457 

F.3d 376, 384 (4th Cir. 2006); Southworth v. Bd. of Regents of Univ. of Wisc. Sys., 

307 F.3d 566, 579 (7th Cir. 2002).

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 

23 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_Captions_2015_05_21.txt.

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53

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. CREW/CHGO never considered the serious constitutional 

problems it was 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.

CONCLUSION

The district court below granted summary judgment to the FEC here based 

entirely on its conclusion that CREW/CHGO was “directly on point here” and was 

“binding Circuit law.” JA152–53 The district court erred in both those judgments. 

CREW/CHGO concerned a statement of reasons that justified dismissal squarely 

on the basis of prosecutorial discretion—not a case like this one where there was 

extensive legal analysis leading to a firm conclusion on the merits, with 

prosecutorial discretion merely dropped in as “magic words” in an attempt to 

immunize the decision from review. The district court also erred, however, in 

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54

concluding CREW/CHGO was binding case law as it conflicts with prior 

precedent—a conflict that arises from CREW/CHGO’s disregard for the FECA, its

misreading of Chaney, and its disinterest in the Constitution. Plaintiffs respectfully 

request this Court reverse the decision below.

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Dated: October 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)

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 Appellants

USCA Case #19-5161 Document #1811992 Filed: 10/22/2019 Page 70 of 82
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 12,997 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: October 22, 2019 /s/ Stuart McPhail

Stuart C. McPhail

Counsel for Appellants

USCA Case #19-5161 Document #1811992 Filed: 10/22/2019 Page 71 of 82
CERTIFICATE OF FILING AND SERVICE

I hereby certify that on October 22, 2019, I electronically filed the Brief of 

Appellant and Joint Appendix with the Clerk of Court for the United States Court 

of Appeals or the District of Columbia Circuit by using the appellate CM/ECF 

system, thereby serving all persons required to be served.

I further certify that I caused the required copies of the Brief of Appellant

and Joint Appendix to be hand filed with the Clerk of the Court.

/s/ Stuart McPhail

Stuart C. McPhail

Counsel for Appellants

USCA Case #19-5161 Document #1811992 Filed: 10/22/2019 Page 72 of 82
ADDENDUM

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Add. i

TABLE OF CONTENTS

Addendum Page

52 U.S.C. § 30109..............................................................................................Add.1

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Add. 1

52 U.S.C. § 30109. Enforcement

(a) Administrative and judicial practice and procedure

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of title 26 has occurred, may file a complaint with the Commission. 

Such complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and 

subject to the provisions of section 1001 of title 18. Within 5 days after receipt of a 

complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts 

any vote on the complaint, other than a vote to dismiss, any person so notified shall 

have the opportunity to demonstrate, in writing, to the Commission within 15 days 

after notification that no action should be taken against such person on the basis of 

the complaint. The Commission may not conduct any investigation or take any 

other action under this section solely on the basis of a complaint of a person whose 

identity is not disclosed to the Commission.

(2) If the Commission, upon receiving a complaint under paragraph (1) or on 

the basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its 

members, that it has reason to believe that a person has committed, or is about to 

commit, a violation of this Act or chapter 95 or chapter 96 of title 26, the 

Commission shall, through its chairman or vice chairman, notify the person of the 

alleged violation. Such notification shall set forth the factual basis for such alleged 

violation. The Commission shall make an investigation of such alleged violation, 

which may include a field investigation or audit, in accordance with the provisions 

of this section.

(3) The general counsel of the Commission shall notify the respondent of 

any recommendation to the Commission by the general counsel to proceed to a 

vote on probable cause pursuant to paragraph (4)(A)(i). With such notification, the 

general counsel shall include a brief stating the position of the general counsel on 

the legal and factual issues of the case. Within 15 days of receipt of such brief, 

respondent may submit a brief stating the position of such respondent on the legal 

and factual issues of the case, and replying to the brief of general counsel. Such 

briefs shall be filed with the Secretary of the Commission and shall be considered 

by the Commission before proceeding under paragraph (4).

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Add. 2

(4)(A)(i) Except as provided in clauses 1(ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there is 

probable cause to believe that any person has committed, or is about to commit, a 

violation of this Act or of chapter 95 or chapter 96 of title 26, the Commission 

shall attempt, for a period of at least 30 days, to correct or prevent such violation 

by informal methods of conference, conciliation, and persuasion, and to enter into 

a conciliation agreement with any person involved. Such attempt by the 

Commission to correct or prevent such violation may continue for a period of not 

more than 90 days. The Commission may not enter into a conciliation agreement 

under this clause except pursuant to an affirmative vote of 4 of its members. A 

conciliation agreement, unless violated, is a complete bar to any further action by 

the Commission, including the bringing of a civil proceeding under paragraph 

(6)(A).

(ii) If any determination of the Commission under clause (i) occurs during 

the 45-day period immediately preceding any election, then the Commission shall 

attempt, for a period of at least 15 days, to correct or prevent the violation involved 

by the methods specified in clause (i).

(B)(i) No action by the Commission or any person, and no information 

derived, in connection with any conciliation attempt by the Commission under 

subparagraph (A) may be made public by the Commission without the written 

consent of the respondent and the Commission.

(ii) If a conciliation agreement is agreed upon by the Commission and the 

respondent, the Commission shall make public any conciliation agreement signed 

by both the Commission and the respondent. If the Commission makes a 

determination that a person has not violated this Act or chapter 95 or chapter 96 of 

title 26, the Commission shall make public such determination.

(C)(i) Notwithstanding subparagraph (A), in the case of a violation of a 

qualified disclosure requirement, the Commission may—

(I) find that a person committed such a violation on the basis of 

information obtained pursuant to the procedures described in paragraphs (1) 

and (2); and

(II) based on such finding, require the person to pay a civil money 

penalty in an amount determined, for violations of each qualified disclosure 

requirement, under a schedule of penalties which is established and 

published by the Commission and which takes into account the amount of 

-

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Add. 3

the violation involved, the existence of previous violations by the person, 

and such other factors as the Commission considers appropriate.

(ii) The Commission may not make any determination adverse to a person 

under clause (i) until the person has been given written notice and an opportunity 

to be heard before the Commission.

(iii) Any person against whom an adverse determination is made under this 

subparagraph may obtain a review of such determination in the district court of the 

United States for the district in which the person resides, or transacts business, by 

filing in such court (prior to the expiration of the 30-day period which begins on 

the date the person receives notification of the determination) a written petition 

requesting that the determination be modified or set aside.

(iv) In this subparagraph, the term "qualified disclosure requirement" means 

any requirement of—

(I) subsections 2(a), (c), (e), (f), (g), or (i) of section 30104 of this title; or

(II) section 30105 of this title.

(v) This subparagraph shall apply with respect to violations that relate to 

reporting periods that begin on or after January 1, 2000, and that end on or before 

December 31, 2018.

(5)(A) If the Commission believes that a violation of this Act or of chapter 

95 or chapter 96 of title 26 has been committed, a conciliation agreement entered 

into by the Commission under paragraph (4)(A) may include a requirement that the 

person involved in such conciliation agreement shall pay a civil penalty which 

does not exceed the greater of $5,000 or an amount equal to any contribution or 

expenditure involved in such violation.

(B) If the Commission believes that a knowing and willful violation of this 

Act or of chapter 95 or chapter 96 of title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may require 

that the person involved in such conciliation agreement shall pay a civil penalty 

which does not exceed the greater of $10,000 or an amount equal to 200 percent of 

any contribution or expenditure involved in such violation (or, in the case of a 

violation of section 30122 of this title, which is not less than 300 percent of the 

amount involved in the violation and is not more than the greater of $50,000 or 

1,000 percent of the amount involved in the violation).

-

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Add. 4

(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and willful 

violation of this Act which is subject to subsection (d), or a knowing and willful 

violation of chapter 95 or chapter 96 of title 26, has occurred or is about to occur, it 

may refer such apparent violation to the Attorney General of the United States 

without regard to any limitations set forth in paragraph (4)(A).

(D) In any case in which a person has entered into a conciliation agreement 

with the Commission under paragraph (4)(A), the Commission may institute a civil 

action for relief under paragraph (6)(A) if it believes that the person has violated 

any provision of such conciliation agreement. For the Commission to obtain relief 

in any civil action, the Commission need only establish that the person has 

violated, in whole or in part, any requirement of such conciliation agreement.

(6)(A) If the Commission is unable to correct or prevent any violation of this 

Act or of chapter 95 or chapter 96 of title 26, by the methods specified in 

paragraph (4), the Commission may, upon an affirmative vote of 4 of its members, 

institute a civil action for relief, including a permanent or temporary injunction, 

restraining order, or any other appropriate order (including an order for a civil 

penalty which does not exceed the greater of $5,000 or an amount equal to any 

contribution or expenditure involved in such violation) in the district court of the 

United States for the district in which the person against whom such action is 

brought is found, resides, or transacts business.

(B) In any civil action instituted by the Commission under subparagraph 

(A), the court may grant a permanent or temporary injunction, restraining order, or 

other order, including a civil penalty which does not exceed the greater of $5,000 

or an amount equal to any contribution or expenditure involved in such violation, 

upon a proper showing that the person involved has committed, or is about to 

commit (if the relief sought is a permanent or temporary injunction or a restraining 

order), a violation of this Act or chapter 95 or chapter 96 of title 26.

(C) In any civil action for relief instituted by the Commission under 

subparagraph (A), if the court determines that the Commission has established that 

the person involved in such civil action has committed a knowing and willful 

violation of this Act or of chapter 95 or chapter 96 of title 26, the court may 

impose a civil penalty which does not exceed the greater of $10,000 or an amount 

equal to 200 percent of any contribution or expenditure involved in such violation 

(or, in the case of a violation of section 30122 of this title, which is not less than 

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Add. 5

300 percent of the amount involved in the violation and is not more than the 

greater of $50,000 or 1,000 percent of the amount involved in the violation).

(7) In any action brought under paragraph (5) or (6), subpenas for witnesses 

who are required to attend a United States district court may run into any other 

district.

(8)(A) Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party under paragraph (1), or by a failure of the 

Commission to act on such complaint during the 120-day period beginning on the 

date the complaint is filed, may file a petition with the United States District Court 

for the District of Columbia.

(B) Any petition under subparagraph (A) shall be filed, in the case of a 

dismissal of a complaint by the Commission, within 60 days after the date of the 

dismissal.

(C) In any proceeding under this paragraph the court may declare that the 

dismissal of the complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 days, failing which the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.

(9) Any judgment of a district court under this subsection may be appealed 

to the court of appeals, and the judgment of the court of appeals affirming or 

setting aside, in whole or in part, any such order of the district court shall be final, 

subject to review by the Supreme Court of the United States upon certiorari or 

certification as provided in section 1254 of title 28.

(10) Repealed. Pub. L. 98–620, title IV, §402(1)(A), Nov. 8, 1984, 98 Stat. 

3357.

(11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph (6), 

it may petition the court for an order to hold such person in civil contempt, but if it 

believes the violation to be knowing and willful it may petition the court for an 

order to hold such person in criminal contempt.

(12)(A) Any notification or investigation made under this section shall not 

be made public by the Commission or by any person without the written consent of 

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the person receiving such notification or the person with respect to whom such 

investigation is made.

(B) Any member or employee of the Commission, or any other person, who 

violates the provisions of subparagraph (A) shall be fined not more than $2,000. 

Any such member, employee, or other person who knowingly and willfully 

violates the provisions of subparagraph (A) shall be fined not more than $5,000.

(b) Notice to persons not filing required reports prior to institution of 

enforcement action; publication of identity of persons and unfiled reports

Before taking any action under subsection (a) against any person who has 

failed to file a report required under section 30104(a)(2)(A)(iii) of this title for the 

calendar quarter immediately preceding the election involved, or in accordance 

with section 30104(a)(2)(A)(i) of this title, the Commission shall notify the person 

of such failure to file the required reports. If a satisfactory response is not received 

within 4 business days after the date of notification, the Commission shall, 

pursuant to section 30111(a)(7) of this title, publish before the election the name of 

the person and the report or reports such person has failed to file.

(c) Reports by Attorney General of apparent violations

Whenever the Commission refers an apparent violation to the Attorney 

General, the Attorney General shall report to the Commission any action taken by 

the Attorney General regarding the apparent violation. Each report shall be 

transmitted within 60 days after the date the Commission refers an apparent 

violation, and every 30 days thereafter until the final disposition of the apparent 

violation.

(d) Penalties; defenses; mitigation of offenses

(1)(A) Any person who knowingly and willfully commits a violation of any 

provision of this Act which involves the making, receiving, or reporting of any 

contribution, donation, or expenditure—

(i) aggregating $25,000 or more during a calendar year shall be fined 

under title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a 

calendar year shall be fined under such title, or imprisoned for not more than 

1 year, or both.

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(B) In the case of a knowing and willful violation of section 30118(b)(3) of 

this title, the penalties set forth in this subsection shall apply to a violation 

involving an amount aggregating $250 or more during a calendar year. Such 

violation of section 30118(b)(3) of this title may incorporate a violation of section 

30119(b), 30122, or 30123 of this title.

(C) In the case of a knowing and willful violation of section 30124 of this 

title, the penalties set forth in this subsection shall apply without regard to whether 

the making, receiving, or reporting of a contribution or expenditure of $1,000 or 

more is involved.

(D) Any person who knowingly and willfully commits a violation of section 

30122 of this title involving an amount aggregating more than $10,000 during a 

calendar year shall be—

(i) imprisoned for not more than 2 years if the amount is less than 

$25,000 (and subject to imprisonment under subparagraph (A) if the amount 

is $25,000 or more);

(ii) fined not less than 300 percent of the amount involved in the 

violation and not more than the greater of—

(I) $50,000; or

(II) 1,000 percent of the amount involved in the violation; or

(iii) both imprisoned under clause (i) and fined under clause (ii).

(2) In any criminal action brought for a violation of any provision of this Act 

or of chapter 95 or chapter 96 of title 26, any defendant may evidence their lack of 

knowledge or intent to commit the alleged violation by introducing as evidence a 

conciliation agreement entered into between the defendant and the Commission 

under subsection (a)(4)(A) which specifically deals with the act or failure to act 

constituting such violation and which is still in effect.

(3) In any criminal action brought for a violation of any provision of this Act 

or of chapter 95 or chapter 96 of title 26, the court before which such action is 

brought shall take into account, in weighing the seriousness of the violation and in 

considering the appropriateness of the penalty to be imposed if the defendant is 

found guilty, whether—

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(A) the specific act or failure to act which constitutes the violation for 

which the action was brought is the subject of a conciliation agreement 

entered into between the defendant and the Commission under subparagraph 

(a)(4)(A);

(B) the conciliation agreement is in effect; and

(C) the defendant is, with respect to the violation involved, in 

compliance with the conciliation agreement.

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