ORAL ARGUMENT NOT YET SCHEDULED 

NO. 18-5239 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER & DEMOCRACY 21, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

F8, LLC, ELI PUBLISHING, L.C. AND STEVEN J. LUND, 

Intervenors-Appellees. 

On Appeal from a Final Judgment of the 

U.S. District Court for the District of Columbia 

Before the Honorable Trevor McFadden 

BRIEF OF INTERVENORS-APPELLEES 

F8, LLC, ELI PUBLISHING, L.C. AND STEVEN J. LUND 

George J. Terwilliger, III 

Robert J. Bittman 

Nathan R. Pittman 

MCGUIREWOODS LLP 

2001 K St., NW 

Suite 400 

Washington, D.C. 20006-1040 

202-857-1700 

202-857-1737(fax) 

gterwilliger@mcguirewoods.com 

rbittman@mcguirewoods.com 

npittman@mcguirewoods.com 

Counsel for Steven Lund, F8, LLC, and 

Eli Publishing, L.C.

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CERTIFICATE AS TO PARTIES, 

RULINGS UNDER REVIEW, AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1)(A), Intervenors-Appellees, through 

counsel, hereby certify as follows:

(1) Parties and Amici. 

Plaintiffs: The Plaintiff-Appellants are Campaign Legal Center, and 

Democracy 21. 

Defendant: The Defendant-Appellee is the Federal Election Commission. 

Intervenors and Defendants: Eli Publishing, L.C., F8, LLC, and Steven J. 

Lund, intervened in the district court as Defendants. 

Amici: Citizens for Responsibility and Ethics in Washington has filed a brief 

as amicus curiae. 

(2) Rulings Under Review

The District Court’s order and opinion issued June 7, 2018, in Campaign 

Legal Center, et al. v. FEC, et al., Civ. Action No. 1:16-cv-00752 (TNM) (ECF No. 

44 and 45). See Campaign Legal Center v. FEC, 312 F. Supp. 3d 153 (D.D.C. 2018). 

(3) Related Cases

Counsel is not aware of any cases related to this matter. 

/s/ George J. Terwilliger III

Attorney for Steven Lund, F8, LLC, 

and Eli Publishing, L.C. 

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CORPORATE DISCLOSURE STATEMENT 

 I, the undersigned, counsel of record for Eli Publishing, L.C. and F8, LLC, 

certify that to the best of my knowledge and belief, Eli Publishing, L.C. and F8, 

LLC are privately-held limited liability companies registered with the state of Utah 

and that there are no parent companies, subsidiaries, affiliates, or companies which 

own at least 10% of the stock of Eli Publishing, L.C. or F8, LLC which have any 

outstanding securities in the hands of the public. 

/s/ George J. Terwilliger III

Attorney for Steven Lund, F8, LLC, 

and Eli Publishing, L.C.

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TABLE OF CONTENTS 

INTRODUCTION .................................................................................................... 1

STATUTES AND REGULATIONS ........................................................................ 2 

STATEMENT OF THE CASE ................................................................................. 2

STANDARD OF REVIEW ...................................................................................... 4

SUMMARY OF ARGUMENT ................................................................................ 5

ARGUMENT ............................................................................................................ 8

I. CREW Controls this Case Because FECA Provides no Standard for 

Reviewing the FEC’s Discretionary Decisions and CREW is 

Consistent with Prior Precedent ..................................................................... 8

A. CREW’s Holding that the FEC’s Exercise of Prosecutorial 

Discretion is not Reviewable is Rooted in Supreme Court 

Precedent .............................................................................................. 9

B. FECA Provides no Meaningful Guidelines to Cabin the FEC’s 

Prosecutorial Discretion ..................................................................... 12

C. CREW does not Conflict with this Court’s or the Supreme 

Court’s Decisions Regarding Review of FEC Dismissals ................. 22

II. The FEC’s Decision to Dismiss the Administrative Complaints

Against Intervenors-Appellees as an Exercise of its Prosecutorial 

Discretion is not Reviewable ........................................................................ 26

III. The District Court did not Err when it Held that the FEC’s Dismissal 

of the Administrative Complaints Against Intervenors-Appellees was 

not Contrary to Law ...................................................................................... 31

A. The Commission’s Decision was not Arbitrary, Capricious, or 

an Abuse of Discretion, and thus was not Contrary to Law .............. 32

B. The Controlling Commissioners’ Proposed Standard is not Ripe

for Review .......................................................................................... 38

C. The Controlling Commissioners did not Fail to Address 

Appellants’ Contention that Intervenors-Appellees F8 and Eli 

Publishing were Required to Register as Political Committees ......... 40

CONCLUSION ....................................................................................................... 41

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Adams v. Richardson, 

480 F.2d 1159 (D.C. Cir. 1973) .......................................................................... 20 

Abbott Labs. v. Gardner, 

 387 U.S. 136 (1967) ............................................................................................ 38 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ........................................................................ 4, 16 

AFL-CIO v. FEC, 

628 F.2d 97 (D.C. Cir. 1980) .............................................................................. 40 

Assoc. of Irritated Residents v. EPA, 

494 F.3d 1027 (D.C. Cir. 2007) .......................................................................... 10 

Bond v. United States, 

572 U.S. 844 (2014) ............................................................................................ 19 

Buckley v. Valeo, 

 424 U.S. 1 (1976) ................................................................................................ 27 

Carter/Mondale Presidential Comm., Inc. v. FEC, 

775 F.2d 1182 (D.C. Cir. 1985) .......................................................................... 14 

Chamber of Commerce v. FEC, 

 69 F.3d 600 (D.C. Cir. 1995) .............................................................................. 23 

*Citizens United v. FEC, 

558 U.S. 310 (2010) ......................................... 3, 7, 21, 26, 30, 32, 33, 34, 35, 39 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ....................................................13, 24, 25, 31, 41 

CREW v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) ............................................................................ 9 

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CREW v. FEC, 

236 F. Supp. 3d 378 (D.D.C. 2017) .................................................................... 37 

CREW v. FEC, 

363 F. Supp. 3d 33 (D.D.C. 2018) ...................................................................... 18 

CREW v. FEC, 

380 F. Supp. 3d 30 (D.D.C. 2019) ...................................................................... 26 

*CREW v. FEC, 

892 F.3d 434 (2018) .................................. 1, 5, 6, 8, 9, 11, 12, 13, 17, 18, 20, 21, 

 ............................................................................ 22, 23, 25, 26, 27, 28, 29, 30, 31 

Crowley Caribbean Transp., Inc. v. Pena, 

 37 F.3d 671 (D.C. Cir. 1994) .............................................................................. 30 

Democratic Cong. Campaign Comm. v. FEC, 

 831 F.2d 1131 (D.C. Cir. 1987) ........................................... 13, 14, 17, 23, 24, 25 

Duke Power v. Carolina Env. Study Group, Inc., 

438 U.S. 59 (1978) .............................................................................................. 40 

FEC v. Akins, 

524 U.S. 11 (1998) .................................................................................. 18, 22, 23 

FEC v. Akins, 

No. 96-1590, 1997 WL 523890 (Aug. 21, 1997) ............................................... 22 

FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981) .................................................................................. 16, 27, 31 

FEC v. Fox Television Stations, Inc., 

 556 U.S. 502 (2009) ............................................................................................ 27 

FEC v. Kalogianis, 

No. 8:06-cv-68-T-23EAJ, 2007 WL 4247795 (M.D. Fl. Nov. 30, 

2007) ................................................................................................................... 36 

 

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FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) ............................................................................ 16 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ............................................................................ 5 

FEC v. Rose, 

806 F.2d 1081 (D.C. Cir. 1986) .......................................................................... 31 

*Heckler v. Chaney, 

470 U.S. 821 (1985) ....................... 6, 9, 10, 11, 13, 19, 20, 22, 24, 26, 28, 29, 30 

ICC v. Bhd. of Locomotive Eng’rs, 

482 U.S. 270 (1987) ...................................................................................... 30, 31

Invest. Co. Inst. v. CFTC, 

720 F.3d 370 (D.C. Cir. 2013) ............................................................................ 27 

LaShawn A. v. Barry, 

87 F.3d 1389 (D.C. Cir. 1996) .............................................................................. 8 

Nat’l Park Hosp. Assoc. v. Dep’t of the Interior, 

538 U.S. 803 (2003) ...................................................................................... 38, 40 

Nat’l Treasury Emps. Union v. United States, 

101 F.3d 1423 (D.C. Cir. 1996) .......................................................................... 38

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ........................................................................ 5, 31 

Sec’y of Labor v. Twentymile Coal Co., 

456 F.3d 151 (D.C. Cir. 2006) ....................................................10, 11, 15, 17, 23 

Sierra Club v. Jackson, 

648 F.3d 848 (D.C. Cir. 2011) ....................................................10, 11, 15, 23, 25 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ............................................................................ 33 

Steenholdt v. Fed. Aviation Administration, 

314 F.3d 633 (D.C. Cir. 2003) ............................................................................ 15 

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

761 F.3d 10 (D.C. Cir. 2014) .............................................................................. 21 

United States v. Boender, 

649 F.3d 650 (7th Cir. 2011) .............................................................................. 34 

United States v. O’Donnell, 

608 F.3d 546 (9th Cir. 2010) .............................................................................. 33 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ................................................................ 16, 32, 37 

Statutes 

52 U.S.C. § 30101(11) ............................................................................................. 34 

52 U.S.C. §§ 30102, 30103, and 30104 ................................................................... 40 

52 U.S.C. § 30106(c) ............................................................................................... 13 

52 U.S.C. § 30107(e) ............................................................................................... 12 

52 U.S.C. § 30109(a)(1) ..................................................................................... 13, 14 

52 U.S.C. § 30109(a)(2) ....................................................................................... 3, 14 

52 U.S.C. § 30109(a)(8) ...............................................................4, 15, 22, 23, 24, 25 

52 U.S.C. § 30109(a)(8)(A) ..................................................................................... 18 

52 U.S.C. § 30109(a)(8)(C) ................................................................................. 5, 18 

52 U.S.C. § 30118(a) ............................................................................................... 32 

52 U.S.C. § 30122 ................................... 2, 3, 4, 7, 26, 32, 33, 34, 35, 36, 37, 40, 41 

Other Authorities 

11 C.F.R. § 110.1(g)(3) ............................................................................................ 35 

125 Cong. Rec. 36,754 (1979) ........................................................................... 17, 20 

First General Counsel’s Report, MUR 6930 (SPM Holdings, LLC) 

(Nov. 19, 2015) ................................................................................................... 34 

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First General Counsel’s Report, MUR 4313 (Coalition for Good 

Government, Inc.) (June 13, 1996) ..................................................................... 36 

Laham Advisory Opinion, AO 2010-09, 2010 WL 3184267 (FEC July 

22, 2010) ............................................................................................................. 33 

Marc E. Elias Advisory Opinion, AO 2010-11, 2010 WL 3184269 

(FEC July 22, 2010) ............................................................................................ 33 

Pet. for Reh’g En Banc, CREW v. FEC, 17-5049 at 5-12 (July 27, 

2018) ..................................................................................................................... 9 

Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. FEC 

& American Action Network (April 19, 2018) .................................................. 19 

 

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GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

OGC Office of the General Counsel of the Federal Election 

Commission 

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INTRODUCTION 

It is the law of this Circuit that the FEC’s decision to dismiss a complaint as 

an exercise of its prosecutorial discretion is not reviewable. See CREW v. FEC, 892 

F.3d 434 (2018).1

 In this case, the Court is asked to review multiple such dismissals 

concerning contributions by closely held corporations or single member corporate 

LLCs to SuperPACs. Despite their attempts to contort the record to evade Circuit 

law, Appellants Campaign Legal Center and Democracy 21 (“Appellants”) 

ultimately ask this Court to second-guess the FEC’s clear, well-reasoned, and 

thoughtful exercise of its prosecutorial discretion. CREW controls this case, and 

even if it did not, the district court did not err when it concluded that the FEC’s 

decision to dismiss these administrative complaints as an exercise of its prosecutorial 

discretion was not contrary to law. 

 Steven Lund, Eli Publishing, L.C., and F8, LLC (together, “IntervenorsAppellees”), were respondents in several complaints lodged by Appellants with the 

FEC that constitute Matters Under Review (“MUR”) 6487 and 6488. All three 

intervened in the district court in order to defend the dismissals of the complaints 

against them and ensure that they would not be ensnared in FEC enforcement 

 

1

 Given the proliferation of cases in this Court and in the United States District Court 

for the District of Columbia with the name CREW v. FEC, we will refer to the D.C. 

Circuit’s June 2018 decision as “CREW” unless otherwise noted. 

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proceedings, with the associated cost and harm to their reputations. See JA 413. 

Intervenors-Appellees now urge this Court to affirm the district court’s wellreasoned decision upholding the FEC’s rational exercise of its prosecutorial 

discretion. 

STATUTES AND REGULATIONS

 All applicable statutes, etc., are contained in the Brief for Plaintiff-Appellants 

(“Br.”). 

STATEMENT OF THE CASE

 This case concerns the FEC’s decision to dismiss a number of administrative 

complaints filed by Appellants as an exercise of its prosecutorial discretion. These 

complaints generally alleged that individuals and corporations, including 

Intervenors-Appellees, violated 52 U.S.C. § 30122, which provides in relevant part 

that “[n]o person shall make a contribution in the name of another person.” 

Appellants alleged that $1 million contributions by F8 and Eli Publishing during the 

2012 election cycle to Restore Our Future, an independent-expenditure-only 

political committee, also known as a “SuperPAC,” were illegal conduit 

contributions. JA 84, 178. Intervenors-Appellees responded, noting that the 

corporations had been formed years before the contributions, which were lawful on 

their face. JA 103-105, 190-192. 

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 The filing of these complaints triggered the FEC’s administrative enforcement 

process. Under the Federal Election Campaign Act (“FECA” or the “Act”), after a 

complaint is filed, the Commission votes whether there is “reason to believe” that a 

violation occurred, and if four Commissioners so find, the FEC conducts an 

investigation of the allegations. 52 U.S.C. § 30109(a)(2). In this case, the 

Commissioners deadlocked 3-3 regarding whether there was “reason to believe” 

Intervenors-Appellees violated FECA. JA 138-39. 

 The three Commissioners who voted against finding reason to believe issued 

a statement of reasons, as required by this Court’s law. They are the “Controlling 

Commissioners” for purposes of judicial review of the FEC’s decision. The 

Controlling Commissioners explained that they voted against proceeding as an 

exercise of the Commission’s prosecutorial discretion. JA 149. The Controlling 

Commissioners recognized that the Supreme Court’s decision in Citizens United v. 

FEC, 558 U.S. 310 (2010), had changed the legal landscape by permitting corporate 

contributions to certain political committees, which raised the novel question of 

“whether, or under what circumstances, a closely held corporation or corporate LLC 

may be considered a straw donor under section 30122.” JA 153. Thus, the 

application of § 30122 here was a case of first impression. JA 155. Further, preCitizens United guidance emphasized that corporate funds belonged unequivocally 

to the corporation. JA 155-57. Therefore, the Controlling Commissioners reasoned 

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that respondents “may have reasonably concluded” that their contributions did not 

violate the law. JA 159. 

 The Controlling Commissioners therefore exercised their prosecutorial 

discretion not to proceed against respondents, reasoning that doing so might raise 

due process and First Amendment concerns. JA 159-60. The Controlling 

Commissioners announced a standard they would apply to § 30122 cases featuring 

corporate contributions going forward, but did not apply that standard to 

respondents. JA 158. The Commission dismissed the complaints. JA 400. 

 Appellants exercised their right under 52 U.S.C. § 30109(a)(8) to challenge 

the Commission’s dismissal of their complaints as “contrary to law.” See JA 9-30. 

The district court, applying the then-prevailing standard for reviewing Commission 

dismissals on the basis of prosecutorial discretion, concluded that the Controlling 

Commissioners’ decision was not contrary to law because there was a “rational 

basis” for its decision and granted summary judgment to defendants. JA 407. 

Appellants filed this appeal. 

STANDARD OF REVIEW 

 This Court reviews a district court’s grant of summary judgment de novo. See 

AFL-CIO v. FEC, 333 F.3d 168, 172 (D.C. Cir. 2003). 

 FECA provides that an FEC dismissal may be remanded to the agency only if 

the FEC’s decision was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). A dismissal 

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is contrary to law if “(1) the FEC dismissed the complaint as a result of an 

impermissible interpretation of the Act . . . or (2) the FEC’s dismissal of the 

complaint, under a permissible interpretation of the statute, was arbitrary or 

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

1986). When the Commission splits 3-3 on the question of whether to commence 

enforcement proceedings, the court reviews the statement of reasons of the 

Commissioners who voted not to proceed. See FEC v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). 

SUMMARY OF ARGUMENT 

 1. CREW held that the FEC’s exercise of its prosecutorial discretion to

dismiss an administrative complaint is not reviewable by a court, because FECA 

does not provide the necessary “law” by which a court can determine whether an 

exercise of prosecutorial discretion was “contrary to law.” FECA does not contain 

any meaningful guidelines to cabin FEC enforcement discretion. Congress 

established the FEC as a bipartisan Commission that required consensus to operate 

and then gave that Commission exclusive civil authority to enforce the Act. While 

FECA has a citizen suit provision, it is triggered only when the FEC completely 

abandons the field. When the FEC decides that an investigation is not warranted as 

an exercise of its prosecutorial discretion, the FEC has not abandoned the field but 

instead made a non-reviewable decision regarding whether to enforce in a particular 

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instance. The structure and history of FECA demonstrate that Congress intended for 

that decision to be final, not a license for often-partisan activists to pursue their own 

enforcement priorities. That conclusion is not in conflict with prior decisions of this 

Court or the Supreme Court. Those prior decisions dealt with the threshold question 

of whether FECA authorized review of a Commission dismissal that resulted from a 

deadlock or whether the complainants had standing to bring an action challenging 

the dismissal. None dealt with the question the Court decided in CREW: what law 

a court is to apply when the Commission declines to enforce not on the merits but 

through the exercise of its prosecutorial discretion. 

 2. The Commission’s exercise of its prosecutorial discretion here is precisely 

the kind of discretionary decision that CREW held was not subject to judicial review. 

The Commission carefully considered the legal landscape and decided to proceed 

incrementally, which it was entitled to do. Appellants’ argument that the dismissals 

are not entitled to deference because the Commission’s exercise of prosecutorial 

discretion allegedly involved legal considerations is not well founded. First, the 

decision involved no legal determination and was an exercise of prosecutorial 

discretion. Second, even if the Commission’s decision involved legal analysis, that 

is true of almost every exercise of prosecutorial discretion, as recognized in Heckler 

v. Chaney, 470 U.S. 821 (1985) and CREW. The latter’s recognition of the 

longstanding rule that an agency’s interpretation of its enabling statute is reviewable 

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does not mean that any arguably legal consideration the agency undertakes as part 

of the exercise of its discretion renders its decision subject to review. 

 3. The district court did not err in concluding that the Commission’s 

dismissals were not contrary to law. The Commission reasonably concluded that the 

Supreme Court’s decision in Citizens United worked a sea change in campaign 

finance law. For the first time, corporations could contribute to SuperPACs. The 

Commission reasonably concluded that its prior guidance could create confusion 

regarding how § 30122’s prohibition on giving in the name of another was to be 

applied to contributions from closely held corporations or corporate LLCs, because 

the Commission had traditionally treated all funds in the corporate treasury as 

corporate funds for purposes of FECA, even though these entities were necessarily 

controlled by a natural person. The Commission rationally concluded that, even 

though § 30122 applied to such corporations, it was not clear when a corporate 

contribution violated the statute. It was not arbitrary or capricious for the 

Controlling Commissioners to decide to proceed incrementally, announcing a 

standard to be applied in future cases. 

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ARGUMENT

I. CREW Controls this Case Because FECA Provides no Standard for 

Reviewing the FEC’s Discretionary Decisions and CREW is Consistent 

with Prior Precedent 

 It is axiomatic that “[o]ne three-judge panel . . . does not have the authority to 

overrule another three-judge panel of the court.” LaShawn A. v. Barry, 87 F.3d 1389, 

1395 (D.C. Cir. 1996). This “law-of-the-circuit doctrine” derives from “legislation 

and from the structure of the federal courts of appeals,” and without it “the finality 

of [the Court’s] appellate decisions would yield to constant conflicts within the 

circuit.” Id. Therefore, the panel’s holding in CREW, that the FEC’s dismissal of 

an administrative complaint as an exercise of its prosecutorial discretion is not 

reviewable, 892 F.3d 434, 438-39 (D.C. Cir. 2018), is the law of the circuit and 

cannot be disturbed by another panel. However, Appellants suggest that, if CREW

applies to the FEC’s dismissal of their administrative complaints in this case, then it 

is “in potential tension” with Supreme Court authority and “would be 

unsustainable.” Br. 26-27. Amicus, the losing party in the CREW case, goes even 

further and ask this panel to “dispense with” and “recognize that the CREW cases 

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

decision.” Amicus Br. 28. 

 This Court plainly lacks the power to do what Appellants and Amicus ask it 

to do. Indeed, Amicus advances the same argument here that it did when seeking 

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rehearing en banc in CREW. See Pet. for Reh’g En Banc, CREW v. FEC, 17-5049 

at 5-12 (July 27, 2018). This Court declined to rehear CREW en banc, 923 F.3d 

1141, 1142 (2019), suggesting that, whatever their view of the panel decision’s 

merits, the argument presented by Amicus was not sufficient to convince this Court 

to take the matter en banc. Moreover, the CREW decision is neither unsustainable 

nor in tension with prior Supreme Court and Circuit precedent. 

A. CREW’s Holding that the FEC’s Exercise of Prosecutorial 

Discretion is not Reviewable is Rooted in Supreme Court Precedent 

 This Court held in CREW that “federal administrative agencies in general, and 

the Federal Election Commission in particular, have unreviewable prosecutorial 

discretion to determine whether to bring an enforcement action.” 892 F.3d at 438-

39 (citations omitted). That conclusion followed from the Supreme Court’s decision 

in Heckler v. Chaney, 470 U.S. 821 (1985), which this Court held controls where a 

federal administrative agency invokes its prosecutorial discretion. 

 In Heckler, the Supreme Court held “that an agency’s decision not to 

prosecute or enforce, whether through civil or criminal process, is a decision 

generally committed to an agency’s absolute discretion.” Id. at 831. This discretion 

was “attributable in no small part to the general unsuitability for judicial review of 

agency decisions to refuse enforcement.” Id. The Court identified the familiar 

reasons for this general unsuitability: 

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First, an agency decision not to enforce often involves a 

complicated balancing of a number of factors which are 

peculiarly within its expertise. Thus, the agency must not 

only assess whether a violation has occurred, but 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 requested best 

fits the agency’s overall policies, and, indeed, whether the 

agency has enough resources to undertake the action at all. 

Id. at 831. The Supreme Court also recognized that “[t]he agency is far better 

equipped than the courts to deal with the many variables involved in the proper 

ordering of its priorities.” Id. at 831-32. Thus, Heckler established what has been 

called a “presumption of non-reviewability.” See Assoc. of Irritated Residents v. 

EPA, 494 F.3d 1027, 1032 (D.C. Cir. 2007). 

 The lynchpin of the Court’s holding in Heckler was its conclusion that there 

was “no meaningful standard against which to judge the agency’s exercise of 

discretion.” Heckler, 470 U.S. at 830. “Agency actions in these circumstances are 

unreviewable because ‘the courts have no legal norms pursuant to which to evaluate 

the challenged action, and thus no concrete limitations to impose on the agency’s 

exercise of discretion.’” Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011) 

(quoting Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 

2006)). Therefore, “if the statute in question does not ‘give any indication that 

violators must be pursued in every case, or that one particular enforcement strategy 

must be chosen over another’ and if it provides no meaningful guidelines defining 

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the limits of the agency’s discretion,” then the agency’s decision is not reviewable. 

Id. at 855. Whether there is “law to apply” is ultimately a question for Congress: “If 

[Congress] has indicated an intent to circumscribe agency enforcement discretion, 

and has provided meaningful standards for defining the limits of that discretion, 

there is ‘law to apply’ . . . .” Heckler, 470 U.S. at 834-35. 

 The decision in CREW followed directly from the application of Heckler. The 

Court first held, consistent with longstanding Circuit law, that the decision of three 

Commissioners (short of the four required for the FEC to take action) to vote against 

continued enforcement proceedings could be attributed to the full Commission 

because their votes prevented the Commission from taking action. CREW, 892 F.3d 

at 437-38. After analyzing the detailed enforcement structure required by FECA, 

this Court found that this enforcement regime “imposes no constraints on the 

Commission’s judgment about whether, in a particular matter, it should bring an 

enforcement action.” Id. at 439. Therefore, “[t]he consequence is that the operative 

‘statute is drawn so that a court would have no meaningful standard against which 

to judge the agency’s exercise of discretion.’” Id. at 439 (quoting Heckler, 470 U.S. 

at 830)). There was thus no “law” for the Court to apply when determining whether 

a dismissal pursuant to the FEC’s prosecutorial discretion was “contrary to law.” Id.

at 440. 

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 Just as in CREW, Appellants and Amicus have failed to identify in this case 

what “law” could be applied by a Court to determine whether the Commission’s 

exercise of its prosecutorial discretion here was “contrary to law.” Indeed, Amicus’s 

position is that the FEC enjoys no prosecutorial discretion at all, and that “any 

dismissal not based on the merits of the complaint is ‘contrary to law.’” Amicus Br. 

23 n.13. However, “[t]here is no doubt the Commission possesses such prosecutorial 

discretion.” CREW, 892 F.3d at 438. Because FECA provides no guidelines limiting 

the FEC’s prosecutorial discretion, it cannot be “contrary to law” merely to exercise 

that discretion. 

B. FECA Provides no Meaningful Guidelines to Cabin the FEC’s 

Prosecutorial Discretion 

 FECA proscribes an elaborate procedure for the Commission to follow when 

it conducts enforcement proceedings. Appellants and Amicus urge that the unique 

structure of FECA, in particular its bipartisan structure and citizen suit provision, 

warrants minimizing or outright disregarding CREW. See Br. 34-37; Amicus Br. 14-

24. To the contrary, the rule in CREW flows from FECA, which grants the FEC “the 

exclusive civil remedy for the enforcement of the provisions of this Act,” 52 U.S.C. 

§ 30107(e), anticipates “partisan” deadlocks, and provides no meaningful guidance 

to a reviewing court. CREW is also consistent with the citizen suit provision, 

properly understood. 

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13 

 Both the dissent from the majority’s opinion in CREW and Amicus argue that 

the structure of FECA, an explicitly bipartisan agency that requires four votes in 

order to take action, mandates reviewability of “partisan” deadlocks. See CREW, 

892 F.3d at 442 (Pillard, J., dissenting); Amicus Br. 14-19. They reason that, 

because four votes are required to dismiss an administrative complaint, three 

Commissioners who vote against enforcement proceedings for reasons of 

prosecutorial discretion cannot speak for the Commission as a whole, and therefore 

the entire premise of Heckler cannot apply under these circumstances. Id. This view 

is contrary to this Court’s longstanding rule regarding review of FEC dismissals and 

the structure of FECA. 

 This Court has rejected the idea that a vote of less than four Commissioners 

“decides nothing.” Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 

1133 (D.C. Cir. 1987). While an affirmative vote of four Commissioners is required 

to take any action, 52 U.S.C. § 30106(c), including a “vote to dismiss,” see 52 U.S.C. 

§ 30109(a)(1), this Court has never understood that provision to state that a court 

may only review a rationale for dismissal that was endorsed by four Commissioners. 

To the contrary, this Court mandates that the three Commissioners opposing further 

enforcement action set out their views in order “to allow meaningful judicial review 

of the Commission’s decision not to proceed.” Common Cause v. FEC, 842 F.2d 

436, 449 (D.C. Cir. 1988). Indeed, under certain circumstances no statement of any 

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14 

Commissioner is required for judicial review: when the Commission votes “in 

conformity with” the Office of General Counsel’s (“OGC”) recommendation not to 

pursue an enforcement action, a reviewing court looks to OGC’s report to explain 

the Commission’s decision. See DCCC, 831 F.2d at 1132; Carter/Mondale 

Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1186 n.2 (D.C. Cir. 1985) 

(“Reasons supporting FEC’s decision may be gleaned from General Counsel’s . . . 

post-decision memorandum.”). 

 The controlling Commissioners exercised the Commission’s prosecutorial 

discretion at the “reason to believe” stage. JA 144-45. There is no statutory 

language that cabins the FEC’s discretion at this point in the enforcement process. 

FECA does not mandate that the Commission make a “reason to believe” 

determination. It states only that (1) the Commission “shall notify, in writing, any 

person alleged in the complaint to have committed such a violation”; (2) that such 

person “shall have the opportunity to demonstrate, in writing . . . that no action 

should be taken against such person” “[b]efore the Commission conducts any vote 

on the complaint”; and (3) that the Commission “shall notify” such person and “shall 

make an investigation” only “[i]f the Commission . . . determines, by an affirmative 

vote of 4 of its members, that it has reason to believe” a violation has been 

committed. 52 U.S.C. § 30109(a)(1)-(2) (emphasis added). The statute requires four 

affirmative votes to proceed and phrases the “reason to believe” determination in 

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15 

permissive terms (“if”), meaning that Congress must have anticipated that the 

Commission could fail to find reason to believe without concluding that there was 

“no” reason to believe. Deadlocks are built into the statute. 

 FECA does not proscribe any limit on the Commission’s decision not to 

proceed on a “reason to believe” vote, except that such decision must not be 

“contrary to law.” 52 U.S.C. § 30109(a)(8). What law, the statute does not say. 

This Court has held that other enabling statutes with stronger language, providing 

that the agency “shall take” action “as necessary,” Sierra Club, 648 F.3d at 856, or 

that an agency “[i]f, upon inspection or investigation . . . believes” a violation has 

occurred, it “shall . . . issue a citation to the operator,” Twentymile Coal Co., 456 

F.3d at 157, do not strip the agency of enforcement discretion. Thus, the analytical 

mistake Appellants and Amicus make is to “confuse[] the presence of a standard of 

review with the existence of law to apply.” Steenholdt v. Fed. Aviation 

Administration, 314 F.3d 633, 639 (D.C. Cir. 2003). If a generic review provision 

like § 30109(a)(8) was sufficient to permit judicial review of the FEC’s exercise of 

its prosecutorial discretion, then “no agency action could ever be committed to 

agency discretion by law.” Id.

 Appellants and Amicus argue in effect that this law must exist, otherwise the 

enforcement of campaign finance law will be frustrated. See Br. 29; Amicus Br. 17-

24. But this is a question for Congress, which designed the FEC so that disagreement 

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about the scope of the campaign finance laws, even partisan disagreement, would 

result in non-enforcement. This is plain in FECA’s design; it is not an aberration in 

Congress’s scheme. The FEC is an unusual agency, because “[u]nique among 

federal administrative agencies, the Federal Election Commission has as its sole 

purpose the regulation of core constitutionally protected activity—‘the behavior of 

individuals and groups only insofar as they act, speak and associate for political 

purposes.’” AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003) (quoting FEC v. 

Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)). 

“Thus, more than other agencies whose primary task may be limited by 

administering a particular statute, every action the FEC takes implicates fundamental 

rights.” Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016). The Commission, 

with the unique bipartisan structure Congress gave it, “must decide issues charged 

with the dynamics of party politics, often under the pressure of an impending 

election,” and thus is “precisely the type of agency to which deference should 

presumptively be afforded.” FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27, 37 (1981). 

 Against this backdrop, where a divided-by-design FEC must make decisions 

that risk impinging upon fundamental First Amendment rights to political 

participation, there is no reason to believe that Congress would seek to limit the 

FEC’s prosecutorial discretion more than other agencies without explicitly stating 

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so. Indeed, there is reason to believe Congress did exactly the opposite. The 

Chairman of the Senate Rules Committee that reported the 1979 version of FECA 

stated that “if the Commission considers a case and is evenly divided as to whether 

to proceed, that division which under the act precludes Commission action on the 

merits is not subject to review any more than a similar prosecutorial decision by a 

U.S. attorney.” 125 Cong. Rec. 36,754 (1979).2

 This intent is evident in the 

structure of the Act, which was designed to be responsive to partisan politics. 

Appellants and Amicus fear that the FEC may not enforce campaign finance law 

consistent with their priorities, but it was within Congress’s power to provide the 

FEC with the discretion to decline to adopt their enforcement priorities and leave 

activists like Appellants and Amicus without recourse. Indeed, this Court has held 

that the right to seek review of a decision does not “invite[] the reviewing body to 

substitute its views of enforcement policy for those of the” agency. See Twentymile 

Coal Co., 456 F.3d at 158. 

 The fact that FECA has a citizen suit provision does not compel a contrary 

conclusion. See CREW, 892 F.3d at 440 (Pillard, J., dissenting); Amicus Br. 19-24. 

FECA permits the complainant to file an action against a person to enforce the 

federal campaign finance laws only where the United States District Court for the 

 

2

 While the Chairman’s statement is not “controlling,” see DCCC, 831 F.2d at 375, 

together with the structure of the statute it is persuasive evidence of Congress’s intent 

when it enacted the judicial review provision in 1976. 

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District of Columbia has declared either that the dismissal of a complaint or the 

Commission’s “failure . . . to act on such complaint during the 120-day period 

beginning on the date of the complaint” was “contrary to law,” and the Commission 

does not take action thereafter “to conform with such declaration within 30 days.” 

52 U.S.C. § 30109(a)(8)(A), (a)(8)(C). As a district court in this circuit recognized, 

this provision must be read narrowly, given that Congress otherwise provided the 

FEC with exclusive jurisdiction to enforce FECA and established a detailed, 

comprehensive enforcement process, including a mandated effort at conciliation, 

before the FEC may bring suit against an alleged violator. See CREW v. FEC, 363 

F. Supp. 3d 33, 43 (D.D.C. 2018). 

 Indeed, a close reading of the citizen suit provision demonstrates how narrow 

it actually is. A complainant does not have the right to sue an alleged violator just 

because the FEC got the law wrong, or even because the FEC sat on their complaint 

without action for many months. The complainant must first have a federal district 

court declare that the FEC’s action was “contrary to law” (raising, again, the question 

that confronted this Court in CREW: what law?), and then the FEC must abandon 

the field entirely by failing to take any action in response to the district court’s order. 

See FEC v. Akins, 524 U.S. 11, 25 (1998) (holding that, even after a remand, the 

FEC “might later, in the exercise of its lawful discretion, reach the same result for a 

different reason”). Indeed, the requirements for the citizen suit provision are so 

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19 

stringent that it has only been meaningfully invoked once,3

 and then only because a 

Commissioner made the conscious decision to prevent the FEC from taking any

action. See Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. FEC 

& American Action Network (April 19, 2018). 

 But an exercise of prosecutorial discretion is not akin to abandoning the field 

entirely. As the Supreme Court explained in Heckler, an agency’s exercise of its 

prosecutorial discretion is not the absence of a decision, or ignoring an issue, but can 

represent an agency’s “complicated balancing of a number of factors which are 

peculiarly within its expertise.” 470 U.S. at 831. As the Court observed in the 

criminal context, “[p]rosecutorial discretion involves carefully weighing the benefits 

of a prosecution against the evidence needed to convict, the resources of the public 

fisc, and the public policy of the State.” Bond v. United States, 572 U.S. 844, 865 

(2014). By giving it the exclusive civil jurisdiction to enforce FECA, and by failing 

to create standards to govern the FEC’s prosecutorial discretion, Congress entrusted 

these judgments about when FECA should be enforced to the bipartisan agency it 

created to administer the Act. 

 The FEC is thus no mere “gatekeep[er],” as Amicus asserts. Amicus 22. By 

requiring the FEC to, in essence, defy a court order before a complainant can bring 

 

3 Amicus is currently litigating what to our knowledge is the first ever FECA citizen 

suit to proceed to the motion to dismiss phase. See CREW v. American Action 

Network, No. 18-cv-00945 (D.D.C.). 

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a suit, FECA provides that the FEC, in all but the most extraordinary circumstances, 

decides when FECA is to be enforced, and how. The judicial review provision was 

“not intended to work a transfer of prosecutorial discretion from the Commission to 

the courts.” 125 Cong. Rec. 36,754 (1979). If Congress did not intend for the 

judicial review provision to transfer prosecutorial discretion to the courts, it cannot 

have intended for the citizen suit provision to transfer prosecutorial discretion to 

individual complainants. FECA’s enforcement structure is built around bipartisan 

consensus; Congress could not have intended to place the enforcement of the 

campaign finance laws in the hands of potentially politically-motivated 

complainants if the FEC determined, for example, that enforcement in a particular 

case did not “fit[]the agency’s overall policies.” Heckler, 470 U.S. at 831. Thus, 

the citizen suit provision is not implicated when the FEC dismisses a complaint as 

an exercise of its prosecutorial discretion. 

 The holding in CREW therefore reflects Congress’s judgment in enacting 

FECA. That case does not eliminate the role of judicial review, it merely limits it. 

As the Supreme Court held in Heckler, an agency’s exercise of its prosecutorial 

discretion is not the same as when an “agency has ‘consciously and expressly 

adopted a general policy’ that is so extreme as to amount to an abdication of its 

statutory responsibilities.” Heckler, 470 U.S. at 833 n. 4 (quoting Adams v. 

Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973)). In addition, where there is law 

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to apply to a dismissal, judicial review will remain available. Thus, “[t]he 

interpretation an agency gives to a statute is not committed to the agency’s 

unreviewable discretion.” CREW, 892 F.3d at 441 n.11. Presumably, a dismissal 

that contravened the Constitution would also be reviewable.4

 Therefore, FECA does not provide the “law” against which the FEC’s 

decision to dismiss an administrative complaint as an exercise of prosecutorial 

discretion may be compared, and recognizing the FEC’s unreviewable prosecutorial 

discretion is not at odds with FECA’s purpose. 

 

4

 Amicus’s assertion that recognizing the FEC’s prosecutorial discretion violates the 

First Amendment is not persuasive. See Amicus Br. 24-27. Amicus fails to identify 

authority supporting a conclusion that the First Amendment guarantees the right of 

access to information required to be disclosed under FECA. Amicus cites to Stop 

This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 16 (D.C. Cir. 2014), 

for the proposition that this Court has recognized that the public has a First 

Amendment right to know the identity of those who are seeking to influence their 

votes. Id. at 24-25. An examination of that opinion, however, reveals that this Court 

merely quoted that language from the FEC’s brief when summarizing its argument, 

as opposed to adopting that position. Stop This Insanity, 761 F.3d at 16. The FEC 

cited to Citizens United, 558 U.S. at 369-71, for this proposition, Stop This Insanity, 

761 F.3d at 16, but the Supreme Court made no such holding in that case. Rather, 

the Court held that “[t]he First Amendment protects political speech; and disclosure 

permits citizens and shareholders to react to the speech of corporate entities in a 

proper way.” Citizens United, 558 U.S. at 371. That is, the government had a 

sufficient interest in ensuring that voters had access to information regarding “who 

is speaking about a candidate shortly before an election” to overcome the First 

Amendment interest in political speech, which is necessarily chilled by disclosure. 

Id. at 369-71. This is not the same as a First Amendment interest. It is Congress, 

not the Constitution, that mandates disclosure of information about political donors. 

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C. CREW does not Conflict with this Court’s or the Supreme Court’s 

Decisions Regarding Review of FEC Dismissals 

 The CREW decision is not in tension, much less in conflict, with prior 

decisions by the Supreme Court and this Court that have defined the scope of judicial 

review of FEC dismissals. The assertion that CREW conflicts with these decisions 

rests on the conflation of two different questions: whether a dismissal is subject to 

any review at all and, if so, whether the particular grounds for the FEC decision are 

amenable to judicial review. 

CREW is not in conflict with the Supreme Court’s leading decision regarding 

judicial review of FEC dismissals, FEC v. Akins. In that case, the FEC 

unsuccessfully challenged a complainant’s standing to bring a § 30109(a)(8) action, 

asserting that a mere informational injury was not a sufficient injury-in-fact to enable 

review. Akins, 524 U.S. at 18-19. The parties did not raise the question of what law 

to apply to the review of a dismissal, only whether the complainant had standing. 

See Br. for Petitioner, FEC v. Akins, No. 96-1590, 1997 WL 523890, at 18-21 (Aug. 

21, 1997). At the end of the standing discussion, the Court addressed the FEC’s 

argument “that we should deny respondents standing because this case involves an 

agency’s decision not to undertake an enforcement action—an area generally not 

subject to judicial review.” Akins, 524 U.S. at 26. The Court held that, unlike the 

statute at issue in Heckler, FECA “explicitly indicate[d]” that “an agency’s decision 

not to undertake an enforcement action” was subject to judicial review. Id. at 26. 

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Similarly, this Court held in Chamber of Commerce v. FEC that FECA was “unusual 

in that it permits a private party to challenge the FEC’s decision not to enforce.” 69 

F.3d 600, 603 (D.C. Cir. 1995). FECA is unusual, but not in this respect unique: 

This Court has recognized that the existence of a review provision is consistent with 

the conclusion that a non-enforcement decision is not reviewable. See Sierra Club, 

648 F.3d at 852; Twentymile Coal Co., 456 F.3d at 160. 

 The FEC argued in Akins that the complainant did not have standing based on 

informational injury because if complainants prevailed, and the court declared that 

the FEC improperly applied the law, that declaration would not necessarily provide 

them the information they sought because the FEC could exercise its prosecutorial 

discretion to resolve the case in a way that did not result in disclosure. See Br. for 

Petitioner, FEC v. Akins, at 29-31. The Supreme Court’s holding should therefore 

be understood in the context of the FEC’s standing argument. The FEC’s discretion 

did not strip the complainant of standing because the complainant could potentially 

challenge the subsequent dismissal under § 30109(a)(8). The Supreme Court did not 

confront the question at issue in CREW, which was instead what, if any, standard to 

apply once the complainant lodged that challenge after the FEC dismissed the 

complaint as an exercise of its prosecutorial discretion. 

 This Court also recognized that these questions were distinct in DCCC when 

it noted that that there are “two analytically discrete issues” in play when reviewing 

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24 

the dismissal of an FEC complaint: “(1) the threshold question whether a complaint 

is reviewable at all; [and] (2) the respect that the reviewing court must accord to the 

Commission’s disposition.” 831 F.2d at 1134. DCCC dealt only with the first 

question, holding that, when the FEC dismisses an administrative complaint after it 

deadlocks 3-3, the complainant may challenge that dismissal in a § 30109(a)(8) 

action. See id. at 1133. In reaching that conclusion, this Court rejected the FEC’s 

argument, pursuant to Heckler, that “deadlocks . . . are immunized from judicial 

review because they are simply exercises of prosecutorial discretion.” Id. In so 

holding, this Court did not state that Heckler was inapplicable to FEC dismissals, 

only that, as a threshold matter, § 30109(a)(8) applies to all FEC dismissals. See id.

at 1134. And, because all dismissals are subject to § 30109(a)(8), the FEC must 

always provide a written explanation for its decision, so that the Court can 

“intelligently determine whether the Commission is acting ‘contrary to law.’” Id. at 

1132. This Court reiterated that principle in a subsequent case, holding that “[a] 

statement of reasons . . . is necessary to allow meaningful judicial review of the 

Commission’s decision not to proceed.” Common Cause v. FEC, 842 F.2d 436, 449 

(D.C. Cir. 1988). 

 Neither DCCC nor Common Cause contradict the conclusion that a court may 

have no “law” to apply to a Commission dismissal pursuant to its prosecutorial 

discretion. Those cases dealt only with the threshold question, whether 

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§ 30109(a)(8) authorized review, not what law to apply to the FEC’s decision. This 

Court has recognized that “[t]he distinction between a claim that is not justiciable 

because relief cannot be granted upon it and a claim over which the court lacks 

subject matter jurisdiction is important.” Sierra Club, 648 F.3d at 853. The decision 

in CREW addressed the second prong identified in DCCC: the standard of review 

and the law to apply to a particular dismissal. CREW did not hold that any decision 

not to enforce was beyond the scope of review. To the contrary, the Court held that 

“if the Commission declines to bring an enforcement action on the basis of its 

interpretation of FECA, the Commission’s decision is subject to judicial review to 

determine whether it is ‘contrary to law.’” CREW, 892 F.3d at 441 n.11. CREW 

does not purport to overturn the procedure mandated by DCCC and Common Cause

requiring the FEC to provide an explanation for its decisions so that a court can 

review it. CREW held only that there was no “law” to apply when the explanation 

for the decision was an exercise of prosecutorial discretion. 

 This Court’s opinion in CREW is therefore not in conflict with any prior 

decision of this Court or of the Supreme Court. As such, it remains binding in this 

case. 

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II. The FEC’s Decision to Dismiss the Administrative Complaints Against 

Intervenors-Appellees as an Exercise of its Prosecutorial Discretion is 

not Reviewable 

 The rationale for the FEC’s decision to dismiss the administrative complaints 

against Intervenors-Appellees was squarely within the scope of its prosecutorial 

discretion, and therefore unreviewable under CREW. The essence of the Controlling 

Commissioners’ decision was the recognition that the Supreme Court’s decision in 

Citizens United worked a sea change in campaign finance law, and that fundamental 

concerns of “due process, fair notice, and First Amendment clarity” warranted a 

cautious approach when the Commission confronted the novel question of how to 

apply § 30122 to contributions by corporate LLCs and similar closely held 

corporations to SuperPACs. JA 147-48. The Commissioners explicitly exercised 

their prosecutorial discretion in the dismissal of the administrative complaints 

against Intervenors-Appellants and cited to Heckler. JA 148-49, 159-160. This case 

is therefore not like a recent case, where the Commission’s statement of reasons 

comprised “a one-paragraph discussion of prosecutorial discretion [and] thirty pages 

of seemingly reviewable legal analysis.” CREW v. FEC, 380 F. Supp. 3d 30, 41 

(D.D.C. 2019). The Commission’s decision here was wholly an exercise of its 

prosecutorial discretion. 

 When a federal agency surveys the landscape after a major Supreme Court 

decision and decides to proceed incrementally in adjusting its enforcement program 

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27 

in light of that decision, it acts with the discretion bestowed upon it by Congress. 

Cf. Invest. Co. Inst. v. CFTC, 720 F.3d 370, 378 (D.C. Cir. 2013) (noting, in the 

rulemaking context, “the Supreme Court has emphasized, ‘[n]othing prohibits 

federal agencies from moving in an incremental manner’”) (quoting FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 522 (2009)). That discretion is especially 

appropriate with respect to the FEC, which is “authorized” by Congress “to 

‘formulate general policy with respect to the administration of this Act,’ . . . and has 

the ‘sole discretionary power’ to determine in the first instance whether or not a civil 

violation of the Act has occurred.” Democratic Senatorial Campaign Committee, 

454 U.S. at 37 (quoting Buckley v. Valeo, 424 U.S. 1, 110, 112 n.153 (1976)). Here, 

the Controlling Commissioners examined the Commission’s precedent, relevant 

legal decisions, and the facts of the cases before it, and concluded that it would not 

be fair to proceed against Intervenors-Appellees but that the proper enforcement 

approach was to announce a rule that the Controlling Commissioners would adhere 

to in cases going forward. JA 152-60. 

 The district court correctly concluded that the Commission’s dismissal rested 

on an exercise of its prosecutorial discretion. JA 416. Appellants’ attempts to recast 

the Controlling Commissioners’ decision as one based on “faulty propositions of 

law,” Br. 20, instead of a well-reasoned exercise of its prosecutorial discretion, 

expands the exception announced in CREW such that it swallows the rule. This 

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Court held that “[t]he interpretation an agency gives to a statute is not committed to 

the agency’s unreviewable discretion,” CREW, 892 F.3d 441 n.11, not that the FEC 

may not consider “propositions of law” when deciding whether to exercise its 

prosecutorial discretion in a given case. Appellants’ arguments urging review are 

not persuasive because they refuse to see the Controlling Commissioners’ statement 

as a whole. Appellants fault the Controlling Commissioners for expressing that their 

exercise of discretion was “compelled” by their review of the legal landscape in light 

of their obligation to safeguard fundamental First Amendment rights and to conduct 

enforcement proceedings in a manner consistent with due process. Br. 22-23. In 

essence, Appellants contend that the Commission has no discretion at all whenever 

it takes into account any consideration outside of its available resources, and must 

rigidly follow the enforcement program favored by Appellants and to be dictated by 

the courts. This view of discretion is inconsistent both with FECA and this Court’s 

opinions, see supra 15-16, recognizing that the FEC is due deference in its decisions, 

and with the view of prosecutorial discretion espoused in Heckler. 

 To be sure, the Controlling Commissioners’ decision was not based on a legal 

interpretation or legal grounds, it was an exercise of prosecutorial discretion. Even 

assuming that Appellants are correct that the Controlling Commissioners made legal 

judgments, applying the rule urged by Appellants would eviscerate the deference 

owed to an agency’s exercise of its prosecutorial discretion under Heckler. When 

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29 

describing the “factors which are peculiarly within” the agency’s expertise, the 

Supreme Court listed assessing (1) “whether a violation has occurred”; (2) “whether 

the agency is likely to succeed if it acts”; and (3) “whether the particular enforcement 

action requested best fits the agency’s overall policies.” Heckler, 470 U.S. 831. All 

of these factors involve reliance upon propositions of law, which Heckler

nevertheless stated are not reviewable. First, determining whether a violation has 

occurred necessarily requires the agency to apply the law to the facts of a particular 

matter. Likewise, an assessment of the agency’s chances if it proceeds with 

enforcement will involve consideration of the scope of its enabling statute and the 

application of that statute to the facts, including how the statute might apply to novel 

circumstances or a change in the legal landscape. Lastly, an agency cannot judge 

whether an enforcement action fits within its overall policies without undertaking a 

legal analysis of the purpose of the statute. Similarly, the factors underlying the 

exercise of prosecutorial discretion that this Court held to be unreviewable in CREW

also involve reliance on propositions of law. The Commission in that case exercised 

its prosecutorial discretion out of a concern “that the statute of limitations had 

expired or was about to,” and that proceeding against the respondent would raise 

“novel legal issues.” CREW, 892 F.3d at 438. Whether the statute of limitations 

had expired is a legal conclusion, as is whether an enforcement proceeding would 

raise novel legal issues, the very same issue in this matter. It cannot be true, 

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therefore, that engaging in any legal analysis renders an exercise of prosecutorial 

discretion reviewable. Moreover, Heckler and CREW recognize that determinations 

regarding an agency’s enforcement approach and whether novel legal issues are 

before it are quintessential grounds supporting prosecutorial discretion, both of 

which underlie the dismissals in this case.5

 Even if the decision of the Controlling Commissioners involved legal 

analysis, it did not purport to resolve the question of whether Intervenors-Appellees’ 

contributions violated FECA. Instead, the Controlling Commissioners took note of 

a change in the law caused by Citizens United, assessed their prior enforcement 

actions in light of the new legal landscape, weighed the constitutional concerns that 

could arise if the Commission proceeded with enforcement, and ultimately decided 

to proceed incrementally. JA 152-160. This analysis is the essence of prosecutorial 

discretion, and thus is not reviewable under CREW, which rejected the proposition 

that “legal rulings” could be carved out “from the middle of non-reviewable 

actions.” 892 F.3d at 442 (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 

F.3d 671, 676 (D.C. Cir. 1994)); see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 

 

5

 Appellants are incorrect that the Commissioners never mentioned the Heckler

factors. Br. 25. The Controlling Commissioners stated at the beginning and the end 

of their statement of reasons that they were exercising their prosecutorial discretion 

and cited to Heckler, while also setting out all of the Heckler factors. AR 149, 159-

60. 

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270, 283 (1987) (rejecting proposition that an “action becomes reviewable” where 

“the agency gives a ‘reviewable’ reason for otherwise unreviewable action”). 

III. The District Court did not Err when it Held that the FEC’s Dismissal of 

the Administrative Complaints Against Intervenors-Appellees was not 

Contrary to Law 

 In addition to not being reviewable, the Commission’s dismissal was not 

contrary to law. The district court, applying the pre-CREW standard of review, held 

that a Commission dismissal was contrary to law only if the FEC “failed to show a 

rational basis for dismissing these complaints.” JA 417. 

 To the extent that the dismissals are reviewable, the district court applied the 

correct standard of review. The Supreme Court and this Court have repeatedly 

emphasized that courts owe the Commission discretion in its enforcement decisions. 

See Democratic Senatorial Campaign Comm., 454 U.S. at 37; Common Cause, 842 

F.2d 436. Thus, as this Court held, “[i]t is not for the judiciary to ride roughshod 

over agency procedures or sit as a board of superintendance directing where limited 

agency resources will be devoted. We are not here to run the agencies.” FEC v. 

Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986). Accordingly, a dismissal is contrary to 

law only if it was the “result of an impermissible interpretation of the Act” of the 

FEC’s decision “was arbitrary or capricious, or an abuse of discretion.” Orloski, 

795 F.2d at 161. Because the Controlling Commissioners did not apply an 

interpretation of FECA, this Court should affirm the district court because the 

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32 

dismissals were reasonable and therefore not arbitrary, capricious, or an abuse of 

discretion.6

A. The Commission’s Decision was not Arbitrary, Capricious, or an 

Abuse of Discretion, and thus was not Contrary to Law 

 Appellants have failed to demonstrate that any of the reasons explaining the 

Controlling Commissioners’ decision were erroneous. The Commission’s decision 

to dismiss rested on essentially two points: (1) that in light of Citizens United, the 

application of 52 U.S.C. § 30122 to the contributions at issue was a matter of first 

impression; and (2) the Commission’s guidance regarding how § 30122 was to be 

applied to the contributions was unclear. The district court properly concluded that 

the Controlling Commissioners’ statement rationally supported both of these 

conclusions, and therefore the dismissals were not contrary to law. JA 417-425. 

 There can be no doubt that Citizens United worked a sea change in campaign 

finance law. Indeed, this Court observed that it was “the most expansive, speechprotective campaign finance decision in American history.” Van Hollen, 811 F.3d 

at 496. Prior to Citizens United, FECA prohibited all corporate contributions to 

political committees. See 52 U.S.C. § 30118(a). Citizens United and this Court’s 

 

6

 Appellants assert in conclusory fashion that the Controlling Commissioners’ 

conclusions are owed no deference, yet also assert that the Orloski arbitrary, 

capricious, or an abuse of discretion standard applies. Br. 38. This Circuit’s case 

law is clear that FEC decisions are owed deference, especially when weighing 

enforcement strategy. 

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33 

elaboration on it in SpeechNow.org v. FEC, 599 F.3d 686, 689 (D.C. Cir. 2010) 

allowed corporate contributions to certain political committees, something that even 

Appellants must accept had never been allowed in FECA’s decades-long history. 

See Marc E. Elias Advisory Opinion, AO 2010-11, 2010 WL 3184269 (FEC July 

22, 2010); Carol A. Laham Advisory Opinion, AO 2010-09, 2010 WL 3184267 

(FEC July 22, 2010); Br. 42. As the Supreme Court noted, “[a] campaign finance 

system that pairs corporate independent expenditures with effective disclosure has 

not existed before today.” Citizens United, 558 U.S. at 370. 

 The application of § 30122 to a corporate contribution was uncertain 

following Citizens United because the provision’s operation with respect to 

corporations is not clear. Section 30122 prohibits “mak[ing] a contribution in the 

name of another person.” The statute thus asks who is the person making the 

contribution, the “true source,” and who is the conduit. This Court has never defined 

who is the “true source” of a contribution under this provision. Those courts to have 

considered the question have not offered clear answers. The Ninth Circuit held that 

it must look “to the substance of the transaction” to determine who “makes” a 

contribution for purposes of § 30122 and suggested in dicta that it would look to the 

person who exercised “direction or control.” United States v. O’Donnell, 608 F.3d 

546, 550 & n.2 (9th Cir. 2010). The Seventh Circuit adopted the Ninth Circuit’s 

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34 

approach. See United States v. Boender, 649 F.3d 650, 661 (7th Cir. 2011). Neither 

case dealt with a corporate conduit. 

 In the typical straw donor or conduit contribution case, a natural person (who 

could legally make the contribution for a corporation or foreigner, or a person who 

had reached their contribution limit) is used as the conduit, and thus the question 

whether the intermediary exerted “direction or control” is a meaningful one. When 

a person is the sole shareholder or owner who controls a corporation, which Citizens 

United recognized has a First Amendment right to make a contribution in its own 

name, the question of “direction or control” is not useful: a corporation always acts 

at the direction or control of a natural person. It is therefore not sufficient to observe, 

as Appellants contend, that § 30122 applies to corporations because corporations are 

“persons” within the meaning of FECA. See 52 U.S.C. § 30101(11). Even if 

§ 30122 applied, it was not clear when a closely-held or corporate LLC would be 

liable post-Citizens United, because as the OGC recognized, “[b]y definition, a 

corporate LLC acts only at the will of that member.” First General Counsel’s Report, 

MUR 6930 (SPM Holdings, LLC) at 10 (Nov. 19, 2015). Deciding that § 30122 

applies and deciding who is the “true source” are separate questions, the latter of 

which had never been confronted in this context. 

 The district court correctly observed that the Controlling Commissioners 

never questioned that § 30122 applied to corporations. JA 417. Instead, the question 

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35 

the FEC confronted was the “application of the true source analysis to determine 

whether a corporation may be considered a straw donor for an individual’s 

contribution.” JA 147-48. The Controlling Commissioners believed that under 

Citizens United the FEC “may not merely presume that contributions from closely 

held corporations or corporate LLCs are actually contributions in the name of 

another.” JA 158. The Controlling Commissioners were on firm ground with this 

conclusion, given the Supreme Court’s holding that “the Government may not 

suppress political speech on the basis of the speaker’s corporate identity.” Citizens 

United, 558 U.S. at 365. The FEC thus had to enforce FECA in a way that gave 

effect to a corporation’s right to contribute, which would be compromised if 

corporate contributions (necessarily made at the direction and control of another) 

were in effect presumed to be conduit contributions. 

 Recognizing that Citizens United created novel questions of the application of 

§ 30122, the Controlling Commissioners rationally concluded that prior guidance 

from the Commission and the Courts could create confusion regarding who was the 

“true source” of a corporate contribution. Appellants do not dispute that, at the time 

of the contributions, the FEC’s regulations provided that all contributions from a 

corporate LLC would be considered corporate contributions for purposes of FECA’s 

source prohibitions. See 11 C.F.R. § 110.1(g)(3). Indeed, the FEC opposed, and a 

court rejected, the argument that closely-held corporations should be allowed to 

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36 

make contributions like individuals, even where the corporation had only a single 

shareholder and therefore “the contribution is necessarily the shareholder’s money.” 

FEC v. Kalogianis, No. 8:06-cv-68-T-23EAJ, 2007 WL 4247795, at *4 (M.D. Fl. 

Nov. 30, 2007). Similarly, OGC opined that “[i]t has been the policy of the 

Commission that once a decision is made and carried out to conduct business using 

the corporate form, any funds taken from the corporation’s accounts are to be 

deemed corporate in nature, whether or not they originated as . . . the personal funds 

of a shareholder.” First General Counsel’s Report at 34, MUR 4313 (Coalition for 

Good Government, Inc.) (June 13, 1996) (emphasis added). Indeed, Appellants 

acknowledge that guidance to this effect was “copious.”7

 Br. 47. Even if that 

guidance did not come in § 30122 cases, it addressed issues a reasonable person 

would find relevant to who was the true source of a contribution. Appellants’ 

contention that a reasonable person could not be misled by these precedents 

overlooks that OGC changed its view of the applicable standard over the course of 

these matters, from a “direction or control” test to a test that evaluated the purpose 

behind using the corporation to make a contribution, similar to what the Controlling 

Commissioners ultimately proposed. See JA 154. Thus, the Controlling 

Commissioners reasonably concluded that contributors were not on notice regarding 

 

7

 The fact that this guidance was “copious” and bore directly on who was regarded 

as the “source” of a contribution distinguishes corporate contributions from 

contributions made by other entities such as political committees. 

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37 

the operation of § 30122, because prior guidance stood for the proposition that a 

corporation is the source of contributions made with its monies.

8

 JA 157. 

 This conclusion was not arbitrary, capricious, or an abuse of discretion given 

these novel circumstances and the Commission’s unique mandate to administer 

FECA in a way that minimizes the impact on fundamental First Amendment rights. 

See Van Hollen, 811 F.3d at 500.9

 That Appellants might have come to a different 

conclusion were they FEC Commissioners does not render the Controlling 

Commissioners’ decision unreasonable or irrational. See CREW v. FEC, 236 F. 

Supp. 3d 378, 396 (D.D.C. 2017) (“Although Plaintiffs may have chosen a different 

path were they in charge of the agency, neither they nor the Court are in a position 

to second-guess the FEC’s exercise of discretion.”). Ultimately, Plaintiffs are 

disappointed that the FEC did not adopt their preferred enforcement program. That 

 

8

 The Commission’s conclusion regarding notice is particularly salient for F8 and 

Eli Publishing. Both F8 and Eli Publishing were established long before the 

contributions at issue (and thus were not, as Appellants contend, created for the 

purpose of the contributions) and their contributions were made before this issue 

attracted any publicity. 

9

 Appellants assert that Van Hollen’s holding is not applicable because it dealt with 

the legality of an FEC rule. Br. 57. Appellants do not explain why the FEC would 

have to balance First Amendment concerns in the rulemaking context but not the 

enforcement context. The Commission is not, in fact, required to enforce every 

unambiguous violation of FECA: the essence of prosecutorial discretion is to 

determine where agency resources are to be allocated, and Appellants never explain 

why the FEC’s consideration of its First Amendment mandate is not entitled to 

deference. 

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38 

difference of approach does not render the Controlling Commissioners’ decision to 

proceed incrementally arbitrary, capricious, or an abuse of discretion. 

B. The Controlling Commissioners’ Proposed Standard is not Ripe

for Review 

The Controlling Commissioners determined to proceed with an incremental 

enforcement program, declining to enforce against Intervenors-Appellees while 

announcing a standard that the three Commissioners would apply in future cases. 

JA 158. The district court held that any challenge to this standard was not ripe. JA 

425. “Determining whether administrative action is ripe for judicial review requires 

[a court] to evaluate (1) the fitness of the issues for judicial decision and (2) the 

hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Assoc. 

v. Dep’t of the Interior, 538 U.S. 803, 808 (2003). The purpose of the ripeness 

doctrine is to prevent courts from being entangled “in abstract disagreements, and, 

where, as here, other branches of government are involved, to protect the other 

branches from judicial interference until their decisions are formalized and their 

‘effects felt in a concrete way by the challenging parties.’” Nat’l Treasury Emps. 

Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (quoting Abbott Labs. 

v. Gardner, 387 U.S. 136, 148-49 (1967)). The district court did not err in 

concluding that the Controlling Commissioners’ standard was not ripe for review; 

the standard was not formalized and nor had it been applied to any party. 

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39 

 In urging review, Appellants attempt to demonstrate that the issue is ripe 

because they allegedly have been denied information in connection with the instant 

complaints because the Controlling Commissioners announced a prospective 

standard. Br. 32. The Controlling Commissioners’ statement of reasons does not 

bear this reading; it provides that they would have declined to enforce regardless of 

the standard going forward. The Controlling Commissioners exercised their 

prosecutorial discretion based on the change in the law wrought by Citizens United

and the confusion that could arise from the Commission’s prior guidance. The 

conclusion that prior guidance was confusing, and therefore no enforcement should 

take place, is wholly independent from the conclusion of what the correct standard 

is. 

 In the event the Commission has occasion to apply the proposed standard on 

the merits and come to a view as to whether a respondent did or did not violate 

FECA, the standard will be subject to review. Appellants suffer no harm until that 

time, and thus the district court was correct when it held that the question was not 

ripe. Moreover, given that the Controlling Commissioners explicitly did not apply 

their prospective standard to the MURs at issue, this is the quintessential case where 

“factual development would ‘significantly advance [the court’s] ability to deal with 

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40 

the legal issues presented.’” Nat’l Park Hosp. Assoc., 538 U.S. at 812 (quoting Duke 

Power Co. v. Carolina Env. Study Group, Inc., 438 U.S. 59, 82 (1978)).10 

C. The Controlling Commissioners did not Fail to Address 

Appellants’ Contention that Intervenors-Appellees F8 and Eli 

Publishing were Required to Register as Political Committees 

 Contrary to Appellants’ assertion, the Controlling Commissioners did not 

ignore their allegation that Intervenor-Appellees violated FECA’s registration and 

disclosure provisions for political committees.11 See Br. 52-54. In fact, the 

Controlling Commissioners adopted OGC’s recommendation that the Commission 

not “find reason to believe with respect to” Appellants’ alleged political committee 

registration violations and concluded that “the applicable statutory provision 

addressing these circumstances is section 30122.” JA 152. The district court 

observed that Appellants raised this argument “only in passing” in their briefing 

below. JA 425. 

 

10 Because the proposed standard is not ripe for review, it is not appropriate to argue 

whether it is correct, as the standard has not been applied. Appellants’ challenges to 

the contrary are not availing. The Controlling Commissioners’ proposed approach 

required a showing that the corporation was used “for the purpose of making a 

contribution that evades the Act’s reporting requirements.” JA 158. Appellants 

conflate this standard with the “knowing and willful” standard under FECA. Br. 55. 

If a person believed it was legal to use a corporation to evade the reporting 

requirements, they would not commit a knowing and willful violation, which 

requires “knowing, conscious, and deliberate flaunting” of FECA. See AFL-CIO v. 

FEC, 628 F.2d 97, 101 (D.C. Cir. 1980). The Controlling Commissioners’ proposed 

standard was therefore not redundant as Appellants claim. 

11 See 52 U.S.C. §§ 30102, 30103, and 30104. 

USCA Case #18-5239 Document #1802241 Filed: 08/14/2019 Page 50 of 54
41 

 Moreover, the Controlling Commissioners were not required to provide any 

explanation for their decision not to investigation the political committee registration 

allegations, because OGC recommended not taking action on these allegations. 

When the FEC declines to enforce consistent with OGC’s recommendation, then the 

OGC’s report provides the statement of reasons subject to judicial review. See 

Common Cause, 842 F.2d at 448-48. Appellants contend that OGC’s 

recommendation not to take action on the political committee registration allegations 

was contingent on the FEC proceeding to investigate the § 30122 violations. Br. 54. 

The contradiction that Appellants assert does not exist. The Controlling 

Commissioners agreed with OGC that the proper frame of analysis was whether the 

contributions at issue violated § 30122. JA 152. The Controlling Commissioners 

simply exercised their prosecutorial discretion not to proceed on that charge. The 

Commission’s determination that these cases presented issues under § 30122 is 

implicitly a determination that this is not a political committee registration case but 

a conduit contribution case. 

CONCLUSION 

For the reasons stated above, the Court should affirm the district court’s 

decision granting summary judgment for Intervenors-Appellees. 

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42 

Respectfully Submitted, 

/s/ George J. Terwilliger III 

George J. Terwilliger, III 

Robert J. Bittman 

Nathan R. Pittman 

MCGUIREWOODS LLP 

2001 K St., NW 

Suite 400 

Washington, D.C. 20006-1040 

202-857-1700 

202-857-1737(fax) 

gterwilliger@mcguirewoods.com 

rbittman@mcguirewoods.com 

npittman@mcguirewoods.com 

Counsel for Steven Lund, F8, LLC and Eli 

Publishing, L.C.

USCA Case #18-5239 Document #1802241 Filed: 08/14/2019 Page 52 of 54
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF 

APPELLATE PROCEDURE 32(a) 

 This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 9,930 words, excluding 

the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). 

 This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

/s/ George J. Terwilliger III 

Attorney for Steven Lund, F8, LLC and Eli 

Publishing, L.C.

USCA Case #18-5239 Document #1802241 Filed: 08/14/2019 Page 53 of 54
CERTIFICATE OF SERVICE 

 The undersigned certifies that the foregoing instrument was electronically 

filed with the Clerk of the Court using the CM/ECF system, which will send 

notification of such filing to counsel of record at their respective email addresses on 

this 14th day of August, 2019. 

/s/ George J. Terwilliger III 

Attorney for Steven Lund, F8, LLC and Eli 

Publishing 

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