ORAL ARGUMENT NOT YET SCHEDULED

No. 19-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON;

NOAH BOOKBINDER,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court

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

Before the Honorable Rudolph Contreras

BRIEF OF AMICUS CURIAE CAMPAIGN LEGAL CENTER

IN SUPPORT OF PLAINTIFFS-APPELLANTS

Paul M. Smith

Tara Malloy

Megan P. McAllen 

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

Email: tmalloy@campaignlegalcenter.org

Counsel for Amicus Curiae

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Amicus Curiae Campaign Legal 

Center (“CLC”) certifies as follows:

(A) Parties and Amici. Citizens for Responsibility and Ethics in Washington 

and Noah Bookbinder (“CREW”) were the plaintiffs in the district court and are 

appellants in this direct appeal. The Federal Election Commission (“FEC” or 

“Commission”) was the defendant in the district court, and is the Appellee here.

Pursuant to Circuit Rule 26.1, CLC certifies that it is a nonpartisan, nonprofit 

corporation that has no parent companies, does not issue stock, and in which no 

publicly held corporation has any form of ownership interest. CLC works to protect 

and strengthen the U.S. democratic process across all levels of government, 

including by supporting campaign finance reform through litigation, policy analysis, 

and public education.

No person filed as amicus curiae before the district court. Randy Elf has 

expressed an intent to appear as amicus in the appeal. Other amici curiae may also 

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 20, 2019 

memorandum opinion is reported at 380 F. Supp. 3d 30, and reprinted in the Joint 

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Appendix (“JA”) at JA 139-61. 

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

any other court. Amicus is not aware of any related case pending in this Court or any 

other court.

/s/ Tara Malloy

Tara Malloy

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Suite 400

Washington, DC 20005

(202) 736-2200

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii

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

TABLE OF CONTENTS..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

GLOSSARY OF ABBREVIATIONS......................................................................ix

STATUTES AND REGULATIONS........................................................................ix

STATEMENT OF INTEREST OF AMICUS CURIAE...........................................1

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

ARGUMENT.............................................................................................................5

I. CREW/CHGO does not shield non-discretionary dismissals from review ..........5

A. The controlling Commissioners found conclusively that New Models 

was not a political committee and dismissed on that basis .............................5

B. A glancing reference to “prosecutorial discretion” does not supersede the

express legal rationale they gave .....................................................................9

II. This Court should resist a reading of CREW/CHGO that would empower 

partisan minorities of FEC Commissioners to shut down any judicial 

review of their legal decisions............................................................................14

A. Giving partisan blocs unqualified control over the reviewability of 

their own legal interpretations runs counter to the statutory scheme ............15

B. Treating CREW/CHGO as a “magic words” test would regularly 

preclude review of minority legal interpretations in cases where the 

need for judicial intervention is at its apex....................................................19

C. Pervasive dysfunction and gridlock at the Commission only heighten 

the need for a judicial check..........................................................................21

1. Since CREW/CHGO, a minority bloc of FEC Commissioners has 

increasingly cited “discretion” as a reason to dismiss matters at the 

preliminary reason-to-believe stage.........................................................21

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2. A minority bloc of FEC Commissioners has persistently refused to 

find that any group can satisfy their test for political committee 

status, casting further doubt on the district court’s decision to treat 

this latest dismissal as unreviewable........................................................24

CONCLUSION........................................................................................................28

CERTIFICATE OF COMPLIANCE.......................................................................29

CERTIFICATE OF SERVICE ................................................................................30

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TABLE OF AUTHORITIES

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

Cases: Page

Buckley v. Valeo, 424 U.S. 1 (1976)......................................................................1, 2

Citizens United v. FEC, 558 U.S. 310 (2010)............................................................1

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)...............................15

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) (“CREW/AAN”).................19, 26

*CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CREW/CHGO”).................1, 6, 7

CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019)................................................13, 14

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987).....15

FEC v. Akins, 524 U.S. 11 (1998)....................................................................5, 6, 12

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) .................16

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986)......................................19

Heckler v. Chaney, 470 U.S. 821 (1985).............................................................6, 11

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987).................................. 13-14

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

v. Brock, 783 F.2d 237 (D.C. Cir. 1986)..................................................................20

McConnell v. FEC, 540 U.S. 93 (2003)...............................................................1, 27

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ......................................11, 12, 17

SEC v. Chenery Corp., 318 U.S. 80 (1943)...............................................................9

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) ..................5

Federal Statutes:

28 U.S.C. § 2862......................................................................................................11

52 U.S.C. § 30101(4)...............................................................................................26

52 U.S.C. § 30101(4)(A)............................................................................................2

52 U.S.C. § 30102.................................................................................................. 2-3

52 U.S.C. § 30103.................................................................................................. 2-3

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52 U.S.C. § 30104.................................................................................................. 2-3

52 U.S.C. § 30106(a)(1)..................................................................................... 15-16

52 U.S.C. § 30106(c) ......................................................................................... 15-16

*52 U.S.C. § 30109(a)(8)..................................................................... 5, 6, 14, 15-16

52 U.S.C. § 30109(a)(8)(A).......................................................................................3

Federal Regulations and Administrative Materials:

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

files/legal/murs/7114/17044430961.pdf..................................................................18

Certification, MUR 7213 (Labor United for Conn.) (Aug. 7, 2018),

https://www.fec.gov/files/legal/murs/7213/18044453135.pdf................................18

Certification, MUR 6361 (Tea Party) (May 21, 2015), https://www.fec.

gov/files/legal/murs/6361/15044373623.pdf...........................................................18

Chair Ellen L. Weintraub’s Suppl. Responses to Questions from House 

Admin. Comm. (May 1, 2019), https://www.fec.gov/resources/cms-content/

documents/FEC_Response_to_House_Admin_Attachment_A_Weintraub.pdf.....25

Conciliation Agreement, MUR 6538R (Americans for Job Security) (Sept. 

9, 2019), https://www.fec.gov/files/legal/murs/6538R/19044477418.pdf........ 25-26

FEC, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (May 2012), http://fec.gov/em/respondent_guide.pdf.... 17-18

FEC, Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007)......................17

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

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

to_House_Admin.pdf...............................................................................................25

FEC, Statement of Policy Regarding Comm’n Action in Matters at the Initial 

Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007).................9

First General Counsel’s Rept., MUR 6596 (Crossroads GPS) (Mar. 7, 

2014), https://www.fec.gov/files/legal/murs/6596/19044463201.pdf.....................22

General Counsel’s Rept., MUR 7161 (Rodini for Supervisor 2016) (Sept. 

14, 2017), https://www.fec.gov/files/legal/murs/7161/17044431896.pdf...............18

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Office of FEC Comm’r Ann M. Ravel, Dysfunction and Deadlock: The 

Enforcement Crisis at the Federal Election Commission Reveals the 

Unlikelihood of Draining the Swamp (Feb. 2017), https://www.fec.gov/

resources/about-fec/Commissioners/ravel/statements/ravelreport_feb2017.pdf.....23

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

Petersen, MURs 6969, 7031, and 7034 (Children of Israel et al.) (Sept. 13, 

2018), https://eqs.fec.gov/eqsdocsMUR/6969_2.pdf ..............................................10

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

(Americans for Job Security) (Oct. 11, 2019), https://www.fec.gov/files/

legal/murs/6538R/6538R_1.pdf......................................................................... 27-28

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

CREW v. FEC (New Models) (Apr. 15, 2019), https://www.fec.gov/resources/

cms-content/documents/2019-04-05_ELW_Statement_-_DDC_decision_in_

New_Models.pdf......................................................................................................18

Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Comm’r Caroline C. Hunter, MUR 6596 (Crossroads GPS) (May 13, 

2019), https://eqs.fec.gov/eqsdocsMUR/6596_2.pdf ............................................20

Statement of Reasons of Vice Chairman Matthew S. Petersen and Comm’rs 

Caroline C. Hunter and Lee E. Goodman, MURs 6391 & 6471 (CHGO) 

(Nov. 6, 2015), https://www.fec.gov/files/legal/murs/6391/15044381253.pdf ....7, 8

Statement of Reasons of Vice Chair Ellen L. Weintraub, MURs 6968, 

6995, 7014/7017/7019/7090 (Tread Standard LLC et al.) (June 19, 2018), 

https://eqs.fec.gov/eqsdocsMUR/7014_1.pdf..........................................................23

Miscellaneous Resources:

Center for Responsive Politics, Outside Spending by Nondisclosing 

Groups, Cycle Totals, Excluding Party Committees, OpenSecrets.org, 

https://bit.ly/2EcD0dz (last visited Oct. 28, 2019) ..................................................25

Daniel I. Weiner, Fixing the FEC: An Agenda for Reform, Brennan Ctr. 

for Justice (2019), https://www.brennancenter.org/sites/default/files/

2019-08/Report_Fixing_FEC.pdf............................................................................21

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

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

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

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

HHRG-116-HA00-Wstate-NotiA-20190925-U1.pdf..............................................23

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GLOSSARY OF ABBREVIATIONS

AAN American Action Network

CHGO Commission on Hope, Growth, & Opportunity

CLC Campaign Legal Center

CREW Citizens for Responsibility & Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

MUR Matter Under Review

OGC FEC Office of General Counsel

STATUTES AND REGULATIONS

52 U.S.C. § 30109 is reproduced in an addendum to Plaintiffs-Appellants’ 

Opening Brief.

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STATEMENT OF INTEREST OF AMICUS CURIAE 1

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

dedicated to promoting sound campaign finance reforms and defending the 

important democratic principles they advance. CLC regularly participates in 

litigation to defend campaign finance laws, including McConnell v. FEC, 540 U.S. 

93 (2003), and Citizens United v. FEC, 558 U.S. 310 (2010). CLC is also a 

Plaintiff-Appellant in another appeal raising many of the same issues regarding 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CREW/CHGO”) and FECA’s 

judicial review provision, Campaign Legal Center v. FEC, No. 18-5249, which is 

currently pending before this Court.

All parties have consented to CLC’s participation.

SUMMARY OF ARGUMENT

Transparency is a core purpose of the federal campaign finance laws. To 

serve the electorate’s interest in knowing “where political campaign money comes 

from.” Buckley v. Valeo, 424 U.S. 1, 66 (1976), the Federal Election Campaign Act 

(“FECA”) contains numerous provisions that require accurate reporting from 

individuals, groups, and entities that give and spend money to influence elections. 

 

1 No person, other than amicus, authored this brief in whole or part, or 

contributed money to fund its preparation or submission. 

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One key means of accomplishing this goal is by requiring registration and 

comprehensive reporting for “political committees.”2

In 2014, CREW filed an administrative complaint alleging that a selfdescribed “issues” group called New Models had violated these important FECA 

provisions by spending millions of dollars to influence the 2012 elections without 

registering with the FEC as a political committee or complying with attendant 

campaign finance disclosure requirements. JA 19-62. CREW’s complaint detailed 

how New Models had funneled millions of dollars—and a substantial majority of 

its annual budget—to super PACs in 2012, apparently with the “major purpose” of 

influencing elections for federal office. The FEC’s Office of General Counsel 

(“OGC”) recommended finding that there was “reason to believe” New Models 

had violated the law, but the Commission split evenly, 2-2, on that question. JA 

 

2 A “political committee” is any “committee, club, association, or other group of 

persons” that receives more than $1,000 in contributions or makes more than 

$1,000 in expenditures during a calendar year, 52 U.S.C. § 30101(4)(A). The FEC 

employs a two-prong test for determining political committee status. The first 

prong asks whether an entity or other group of persons has made more than $1,000 

in “expenditures” or received more than $1,000 in “contributions” during a 

calendar year. Id. The second prong asks whether the organization has as its “major 

purpose the nomination or election of a candidate.” Buckley, 424 U.S. at 79. 

Any entity that meets the definition of a “political committee” must file a 

“statement of organization,” 52 U.S.C. § 30103, comply with organizational and 

recordkeeping requirements, id. § 30102, and file periodic disclosure reports of its 

receipts and disbursements, id. § 30104. 

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101. Lacking the four affirmative votes needed to proceed with an investigation, 

the Commission closed the case.

The partisan minority bloc of Commissioners who voted not to proceed

thereafter released a Statement of Reasons explaining their conclusion, based on “a 

robust interpretation of statutory text and case law,” JA 146, that New Models was 

not required to register and report as a political committee. Because that 

determination rested on incorrect and unsustainable interpretations of the campaign 

finance laws, CREW filed this lawsuit arguing that the decision was contrary to 

law and should be set aside. See 52 U.S.C. § 30109(a)(8)(A).

But the district court never reached that question. Instead, it found that the 

recent divided panel decision in CREW/CHGO, renders any deadlock dismissal 

with even a glancing reference to “prosecutorial discretion” automatically 

unreviewable—however “robust” or all-encompassing the legal reasons given for 

the dismissal might be.

In the dispositive Statement of Reasons here, a solitary invocation of the 

phrase “prosecutorial discretion” appears in the final sentence of the final page of 

the controlling Commissioners’ 31-page legal opinion, and only after repeated 

pronouncements that New Models “cannot” be regulated as a political committee 

because, based on the controlling Commissioners’ extensive analysis of the facts 

and the law, the group had not met the statutory or doctrinal tests to become one. 

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JA 103-133. According to the district court, however, “CREW/CHGO holds that 

the controlling Commissioners’ legal analyses are reviewable only if they are the 

sole reason for the dismissal of an administrative complaint.” JA 155.

That application of CREW/CHGO was fatally flawed in two key respects: 

first, because the legal analysis of whether New Models had violated FECA by 

failing to register and report as a political committee was the “sole reason” for the 

dismissal, on any fair reading of the controlling Commissioners’ decision; and 

second, because even if their bare invocation of discretion could be read as a 

hypothetical alternative ground for dismissal, CREW/CHGO cannot shield the 

legal reasoning at the heart of their decision from review. To hold otherwise would 

do immense damage to the carefully balanced statutory scheme designed by 

Congress. Applying CREW/CHGO in this manner negates the statutory role of 

private complainants, displaces the judiciary’s role in reviewing dismissals for 

legal error, and countermands the partisan balance that Congress carefully 

prescribed. 

There are also important practical reasons to exercise caution before reading 

CREW/CHGO to give minorities on the Commission the power to vanquish 

challenges to their interpretations of law. The recent history of the Commission is 

one of mounting dysfunction and paralysis, particularly with regard to the 

important political committee disclosure provisions at issue here. Given this 

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context, the Court should resist a reading of CREW/CHGO that would allow 

dismissals explicitly founded on legal determinations to escape all judicial scrutiny

merely because they also include a passing reference to “prosecutorial discretion.”

“[T]o honor the presumption of review” generally applicable to agency 

action, exceptions to review are to be read “quite narrowly,” Weyerhaeuser Co. v. 

U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)—all the more so when 

Congress has evinced its clear intent to make review available, as it did here. 52 

U.S.C. § 30109(a)(8); FEC v. Akins, 524 U.S. 11, 26 (1996). Withholding review 

in this case required an extreme reading of CREW/CHGO that was manifestly at 

odds with this statutory command. The decision below should be set aside.

ARGUMENT

I. CREW/CHGO does not shield non-discretionary dismissals from review.

A. Unlike in CREW/CHGO, the controlling Commissioners found 

conclusively that New Models was not a political committee and 

dismissed on that basis.

Rather than defend its dismissal of CREW’s complaint on the merits, the 

Commission has primarily focused on shielding it from all judicial scrutiny. 

Indeed, since CREW/CHGO was decided, the Commission has consistently urged a 

reading of the decision under which any mere invocation of prosecutorial 

discretion erects a bar to judicial review that is automatic, absolute, and 

unbounded. The district court, if somewhat reluctantly, obliged. 

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However, CREW/CHGO does not control this case. 

The dismissal of CREW’s complaint against New Models was not 

“squarely” based on an exercise of prosecutorial discretion, as was the case in 

CREW/CHGO, 892 F.3d at 439, but on “a robust interpretation of statutory text 

and case law, with a brief mention of prosecutorial discretion sprinkled in.” JA 

146. And, as CREW/CHGO recognized, administrative complaints dismissed on 

the basis of the Commission’s interpretations of law remain subject to the judicial 

review that FECA expressly provides. 892 F.3d at 441 n.11 (“The interpretation an 

agency gives to a statute is not committed to the agency’s unreviewable 

discretion.”) (citing Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985); Akins, 524 

U.S. at 26). See also 52 U.S.C. § 30109(a)(8).

Indeed, the dismissal here was entirely premised on the controlling 

Commissioners’ determination—following their lengthy analysis of the 

organization’s “purpose, tax exempt status, public statements, and overall 

spending,” JA 133—that New Models “cannot” be regulated as a political 

committee. Id. These Commissioners held definitively that New Models failed 

both prongs of the two-part test for political committee status, because supposedly 

the group (1) did not meet the statutory threshold to qualify as a “political 

committee” by receiving $1,000 in contributions or making $1,000 in expenditures 

(although New Models conceded it had, JA 77), and (2) lacked the requisite major 

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purpose of nominating or electing federal candidates. JA 122-23 n.95. And they 

stressed that either ground was “independently sufficient to substantiate [their] 

conclusion” that New Models was not a political committee. JA 123 n.95. This 

case therefore does not involve an FEC dismissal rooted in the kinds of judicially 

unmanageable prudential considerations that were at the heart of CREW/CHGO.

In CREW/CHGO, the controlling Commissioners explained the 

“discretionary” considerations underpinning their dismissal in great detail. They 

justified their ultimate decision not to continue with ongoing enforcement efforts 

against the respondent, a pop-up political group that had dissolved and vanished 

while the complaint was pending, almost exclusively in terms of concerns about 

scarce agency resources and the dim prospects for success. They found, inter alia, 

that the “defunct” association “no longer existed,” “had filed termination papers 

with the IRS in 2011,” and “had no money . . . [or] counsel . . . [or] agents who 

could legally bind it.” 892 F.3d at 438. They also cited concerns that any agency 

action against the association would “raise[] novel legal issues that the 

Commission had no briefing or time to decide.” Statement of Reasons of Vice 

Chairman Matthew S. Petersen and Comm’rs Caroline C. Hunter and Lee E. 

Goodman at 4, MURs 6391 & 6471 (CHGO) (Nov. 6, 2015), https://www.fec.gov/

files/legal/murs/6391/15044381253.pdf.

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Moreover, the dismissal in CREW/CHGO came after the Commission had 

already voted unanimously to authorize an investigation of the group at the reasonto-believe stage; its OGC then spent significant time and effort to conduct that 

investigation, which “encountered procedural and evidentiary difficulties from the 

outset,” id. at 1, that only multiplied over time, until it ultimately became clear that 

“any conciliation effort would be futile,” id. at 4. Indeed, OGC itself 

acknowledged that these practical obstacles would make further efforts a “pyrrhic” 

exercise, even as it ultimately recommended proceeding to a probable cause 

finding. Id. at 1. For their part, the controlling Commissioners suggested that the 

“information learned during this period [of investigation] did not definitively 

resolve whether there was reason to believe CHGO was a political committee” one 

way or the other, and believing that “the case had become an academic exercise,” 

they voted to close the case. Id. at 4. Nevertheless, they conceded that after four 

years of investigation, the dismissal “admittedly [brought] th[e] matter to a 

frustrating conclusion.” Id. at 1. 

Here, however, the linchpin of the Commissioners’ decision to dismiss—and 

the explanation that they gave repeatedly and emphatically across thirty-one pages 

of legal analysis—was their conclusion that New Models did not violate the law. 

The no-voting Commissioners even reached beyond the preliminary “reason to 

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believe” inquiry to make a final determination of political committee status.3 This 

is not the “discretionary” terrain over which a partisan bloc of FEC Commissioners

enjoy unfettered and unreviewable discretion under CREW/CHGO. 

B. A glancing reference to “prosecutorial discretion” does not supersede 

the express legal rationale they gave.

This appears to be the first decision where controlling Commissioners firmly 

based their action on an elaborate legal analysis that led them to conclude that 

there was no violation, but a court instead sustained the action based on a passing 

reference to enforcement discretion in the Commissioners’ explanation. By its 

plain terms, the dismissal of CREW’s complaint was based on the controlling 

Commissioners’ determination that New Models was not a political committee. A 

conclusory reference to enforcement discretion and a footnote citing Heckler v. 

Chaney does not transform the basis of their decision, which must stand or fall 

based on the actual reason they gave.

Under the familiar principle of SEC v. Chenery Corp., 318 U.S. 80 (1943), 

an agency action “explicitly based” on particular reasons “must likewise be judged 

on that basis,” id. at 87. Here, the controlling Commissioners stated explicitly that 

 

3 That the controlling Commissioners refused to proceed at the preliminary 

reason-to-believe stage further undercuts their appeal to “discretion.” The reasonto-believe standard is low, see Statement of Policy Regarding Comm’n Action in 

Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 

16, 2007), and it is implausible to believe that the controlling Commissioners 

would not have considered it satisfied absent their erroneous legal analysis.

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the “reasons” for their votes not to proceed were those stated in their 32-page 

opinion, which led them to find conclusively that “New Models’s major purpose 

was not the nomination or election of federal candidates . . . , and that New Models 

was not a political committee.” JA 104.

4 Only after 31 pages of analysis is there 

any mention of “prosecutorial discretion,” and it comes as little more than an 

afterthought, tacked on to the final sentence of the final page of their statement:

Based on our review of the evidence in the record, . . . New Models’s 

organizational purpose, tax exempt status, public statements, and 

overall spending evidence an issue discussion organization, not a 

political committee having the major purpose of nominating or electing 

candidates. As a result, it cannot (nor should it) be subject to the 

“pervasive” and “burdensome” requirements of registering and 

reporting as a political committee. For these reasons, and in exercise 

of our prosecutorial discretion, we voted against finding reason to 

believe that New Models violated the Act by failing to register and 

report as a political committee and to dismiss the matter. 

JA 133 (emphasis added). This token invocation of discretion cannot bear the

dispositive weight the district court would give it. 

 

4

Indeed, the same partisan minority bloc has since referred to the New Models 

decision as authority on the proper analysis of political committee status. See

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

Petersen at 8 n.47, MURs 6969, 7031, and 7034 (Children of Israel et al.) (Sept. 

13, 2018), https://eqs.fec.gov/eqsdocsMUR/6969_2.pdf (“[I]n MUR 6872 (New 

Models), two Commissioners determined that an organization that made 

contributions to a Super PAC did not ‘receive contributions . . . [or] ma[k]e 

expenditures’ and ‘[t]herefore did not meet the statutory threshold for becoming a 

political committee.’”) (emphasis added).

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Although the lower court acknowledged that this “discussion of 

prosecutorial discretion covered one paragraph of the thirty-two-page statement of 

reasons,” JA 148 (emphasis added), even that is too generous. The sum total of that

“discussion” appears in a seven-word dependent clause, to which is appended a 

footnote containing one short sentence of explanation, a statutory reference, and 

two case citations. See JA 133 & n.139 (“Given the age of the activity and the fact 

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

appropriate use of Commission resources.”) (citing Heckler v. Chaney, 470 U.S. 

871 (1985); 28 U.S.C. § 2862; and Nader v. FEC, 823 F. Supp. 2d 53, 65-66 

(D.D.C. 2011)).

CREW/CHGO does not preclude review in these circumstances. The 

controlling Commissioners raise prosecutorial discretion only as an afterthought, 

with virtually no corresponding discussion that might elucidate their reasons. 

Insofar as footnote 139 gestures at genuine “prudential” reasons that could support 

dismissal, amicus is aware of no case, before this one, where a court refused to 

consider the explicit legal grounds underpinning an FEC enforcement dismissal 

based on a single unexplained reference to a conceivable alternative rationale. 

Broadly invoking the Commission’s “prosecutorial discretion” is not tantamount to 

an acknowledgment of whether, much less why, its discretion was actually 

exercised in a particular case. As in Akins, “we cannot know” based on this 

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12

afterthought “that the FEC would have exercised its prosecutorial discretion in this 

way” if their legal conclusions were deemed incorrect, 524 U.S. at 25, and hence 

the passing reference to discretion does not obviate the need to review the 

controlling Commissioners’ stated legal basis for their action. 

Their brief “explanation,” buried in a footnote, amounts to a conclusory 

observation that New Models “appear[ed]” to be “no longer active” and a faint 

suggestion that the case might be growing stale, JA133 n.139—both factors that, 

even if adequately explained or true, were seemingly attributable to the 

Commission’s delay.

5 Otherwise, the Commissioners assert only that pursuing the 

 

5 The controlling Commissioners’ professed concerns about “the age of the 

activity” ring hollow when they appear to have been responsible for running out 

the clock. CREW’s complaint was filed in September 2014. New Models 

responded to the complaint in November 2014. By May 2015, OGC had completed 

its report and provided its recommendations to the Commission, where the matter 

was held over for more than two years. See JA 88 (Oct. 15, 2015 notice letter 

advising New Models that “we expect the Commission to vote on the matter in

2016”); JA 99 (Nov. 3, 2016 notice that a vote was expected “in the first half of 

2017”); JA 100 (Nov. 3, 2017 notice that there would be a vote “by the end of this 

year”). 

At some point between receiving the first notice in 2015 about the 

Commission’s upcoming vote and the eventual vote more than two years later, 

New Models apparently decided to dissolve, so its purported dissolution was not 

addressed by OGC or confirmed in the administrative record. An unsubstantiated

statement that an entity is “defunct”—based on extra-record materials unearthed by 

the controlling Commissioners while the matter was languishing on their docket 

awaiting a vote—should not defeat a complainant’s right of judicial review. Cf. 

Nader, 823 F. Supp. 2d at 65-66 (stressing that the complainant was largely 

responsible for the “difficulties identified by the FEC in terms of staleness of 

evidence and the defunctness of several of the [respondent] groups”).

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13

matter would be “an inappropriate use of agency resources,” JA 133 n.139

(emphasis added)6—and no wonder they think so, given their unequivocal belief 

that New Models did not violate the Act. 

CREW/CHGO cannot mean that any time three or fewer Commissioners

justify a decision with clearly reviewable reasons, but then add a superfluous 

“discretionary” explanation in a concluding footnote, the whole otherwise 

reviewable action is transformed into an unreviewable exercise of prosecutorial 

discretion. As Judge Pillard has noted, “[e]ven if the [CREW/CHGO] majority 

were right that enforcement discretion is an unreviewable reason for dismissing 

complaints, Commission decisions to dismiss complaints are undeniably 

reviewable actions under the plain text of FECA (confirmed by decisions of the 

Supreme Court and this circuit).” CREW v. FEC, 923 F.3d 1141, 1148 (D.C. Cir. 

2019) (Pillard, J., dissenting from denial of rehr’g en banc). While an “otherwise 

unreviewable action” does not “become[] reviewable” simply because “the agency 

gives a ‘reviewable’ reason,” ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 

(1987), an otherwise reviewable action based on an obviously reviewable reason 

does not become unreviewable simply because the agency also tacks on the words 

 

6 Notwithstanding the district court’s characterization, the controlling 

Commissioners never noted concerns about “limited” agency resources (JA 140) 

(emphasis added)—only the “appropriate use” of them. JA 133 n.139. 

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“prosecutorial discretion.” The agency’s rationale for dismissal cannot be 

manipulated in this manner to defeat review.

II. This Court should resist a reading of CREW/CHGO that would empower 

partisan minorities of FEC Commissioners to shut down any judicial 

review of their legal decisions.

Withholding review here stretches CREW/CHGO well beyond its breaking 

point. The panel majority specifically noted that it was not inhibiting the review 

that FECA expressly provides for dismissals based on interpretations of law, see 52 

U.S.C. § 30109(a)(8)—and as discussed in Part I, supra, this dismissal was entirely 

based on a “robust” legal analysis of CREW’s complaint.

CREW/CHGO cannot be read to block judicial review of a dismissal by a 

deadlocked reason-to-believe vote simply because a controlling group of 

Commissioners, in addition to interpreting the law, applying it to the facts, and 

concluding unreservedly that no violations occurred, also uttered the words 

“prosecutorial discretion” or “agency resources.” To treat such invocations as

rendering their legal analysis per se unreviewable would not only be in tension 

with the prior precedents of the Supreme Court and this Circuit, CREW, 923 F.3d 

at 1145 (Pillard, J., dissenting in denial of rehr’g en banc), but also would 

encourage partisan minorities to announce their legal interpretations under the 

aegis of a “discretionary” dismissal, secure in the knowledge that these 

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pronouncements would escape all scrutiny—effectively entrenching views of the 

law that lack majority support, and worse, that may be incorrect. 

This is not at all what Congress had in mind when it created FECA’s 

“unusual” judicial review provision. Chamber of Commerce v. FEC, 69 F.3d 600, 

603 (D.C. Cir. 1995) (“[FECA] is unusual in that it permits a private party to 

challenge the FEC’s decision not to enforce.”) By providing judicial review and a 

limited private right of action, Congress specifically intended to prevent the 

Commission from “shirking” its duty to enforce the law. Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987). CREW/CHGO

did not, and could not, nullify this important aspect of the statutory scheme.

A. Giving partisan blocs unqualified control over the reviewability of 

their own legal interpretations runs counter to the statutory scheme. 

Allowing a minority bloc to defeat the judicial review that FECA provides 

simply by invoking “discretion”—after they have already decided as a matter of 

law that enforcement “cannot” proceed because, under their interpretation of 

FECA, New Models “did not meet the statutory threshold for becoming a political 

committee” or satisfy the major purpose test, JA 133—would vitiate the Act’s 

enforcement scheme. 

Congress expressly provided for judicial review of certain FEC nonenforcement decisions, 52 U.S.C. § 30109(a)(8)—an “unusual” provision 

necessitated by the Commission’s evenly balanced composition and important 

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mandate. See 52 U.S.C. § 30106(a)(1) (providing that no more than three members 

of the Commission can be from a single party); id. § 30106(c) (providing that “[a]ll 

decisions of the Commission with respect to the exercise of its duties and powers 

under the provisions of this Act shall be made by a majority vote”). 

The Commission is therefore “inherently bipartisan in that no more than 

three of its six voting members may be of the same political party,” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981), and almost all 

Commission functions require four votes. Interpreting CREW/CHGO to foreclose 

review wherever discretion is claimed only by one faction of a deadlocked 

Commission fundamentally conflicts with the Act’s bipartisan design, because 

while four-vote majority decisions at the FEC are “inherently bipartisan,” 

deadlocks are not. At a minimum, therefore, CREW/CHGO should not be extended 

to preclude review of erroneous legal principles “adopted” by non-majorities to 

dismiss enforcement complaints. 

Here, the controlling Commissioners’ decision was clearly founded on their 

conclusive determination that FECA was not violated. Refusing to review their

decision on the merits because they also made an oblique reference to discretion 

would eviscerate the Act’s judicial review provision. That is why, before 

CREW/CHGO, courts subjected all dismissals to some degree of scrutiny, even 

those based squarely on a four-vote majority’s exercise of discretion. Most of the 

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decisions preceding CREW/CHGO contain only generalizations about the FEC’s 

discretion, and until CREW/CHGO, none refused to review a deadlock “decision” 

not to take enforcement action because a minority of Commissioners cited agency 

discretion—much less where they cited it as an afterthought.

For example, Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011), which the 

controlling Commissioners cited here, see JA 133 n.139, upheld a unanimous 6-0

dismissal where the Commission’s exercise of prosecutorial discretion was 

thoroughly explained and supported in the record; undertaken on OGC’s express 

recommendation; and provided as the sole basis for the decision. See id. at 58, 65-

66 (recognizing that “unlike in the Heckler case, judicial review is available under 

FECA to complainants dissatisfied with the FEC’s decisions not to investigate,”

but finding that OGC had “provided reasonable grounds” to dismiss allegations in 

a 575-page administrative complaint). The understanding reflected in decisions

like Nader—that some form of “reasonableness” review applies even to majority

dismissals “sole[ly]” premised on discretion—may well have been “squash[ed]” by

CREW/CHGO. JA 154. But CREW/CHGO does not preclude review in decisions 

premised squarely, if not quite entirely, on non-discretionary legal grounds. Id. 

In any event, the Commission does have a means of signaling that its 

“discretionary” concerns predominate when a case might otherwise be justified on 

multiple grounds: by directly voting to dismiss for that reason. See FEC, 

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Guidebook for Complainants and Respondents on the FEC Enforcement Process 

12 (May 2012), http://fec.gov/em/respondent_guide.pdf (“Pursuant to an exercise 

of its prosecutorial discretion, the Commission may dismiss a matter when, in the 

opinion of at least four Commissioners, the matter does not merit further use of 

Commission resources.”) (emphasis added). If the controlling Commissioners

indeed were not interested in making any legal findings, the Commission could 

have taken substantive votes on whether to dismiss for discretionary reasons under 

Heckler. They did not do so,7even though the Commission can and frequently 

does follow that process.8

 

7 See Statement of Chair Ellen L. Weintraub on the D.C. District Court Decision 

in CREW v. FEC (New Models), at 2 & n.7 (Apr. 15, 2019), https://www.fec.gov/

resources/cms-content/documents/2019-04-05_ELW_Statement_-_DDC_

decision_in_New_Models.pdf (noting that the controlling Commissioners “could 

have moved to dismiss the case based on prosecutorial discretion but, in fact, made 

no such motion”).

8 See, e.g., Certification, MUR 7213 (Labor United for Conn.) (Aug. 7, 2018),

https://www.fec.gov/files/legal/murs/7213/18044453135.pdf (dismissing as a 

matter of prosecutorial discretion); Certification, MUR 7114 (Casperson for 

Congress) (June 26, 2017), https://www.fec.gov/files/legal/murs/7114/

17044430961.pdf (same); Certification, MUR 6361 (Tea Party) (May 21, 2015), 

https://www.fec.gov/files/legal/murs/6361/15044373623.pdf (same). See also

General Counsel’s Rept., MUR 7161 (Rodini for Supervisor 2016) (Sept. 14, 

2017), https://www.fec.gov/files/legal/murs/7161/17044431896.pdf

(recommending discretionary dismissal pursuant to FEC’s “Enforcement Priority 

System”).

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B. Treating CREW/CHGO as a “magic words” test would regularly 

preclude review of minority legal interpretations in cases where the 

need for judicial intervention is at its apex.

When the Commission operates by four-vote majority—as it was designed 

to do in nearly all of its functions—and fairly explains the discretionary bases for 

its action, its discretionary decisions may be entitled to more weight. But 

validating any purported exercise of discretion as an absolute bar to review 

encourages partisan minority blocs to cloak unjustifiable legal decisions in 

“prudential” garb. 

That is precisely was happened here. For example, the controlling group’s 

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

organization’s entire lifetime of spending, including the eight years of its existence 

before Citizens United and SpeechNow freed corporations to make expenditures 

(and contributions to super PACs) to influence federal elections, JA 107, 123 n.96, 

was not just manifestly unreasonable. The exact same approach in another case had 

already been held contrary to law. See CREW v. FEC, 209 F. Supp. 3d 77, 94

(D.D.C. 2016) (“CREW/AAN”) (“Looking only at relative spending over an 

organization’s lifetime runs the risk of ignoring the not unlikely possibility, 

contemplated by the Supreme Court, that an organization’s major purpose can 

change.”) (citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986)). 

See also JA 136. The possibility of tacking on an additional “discretionary” 

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ground for dismissal and thereby defeating judicial review is likely to be most 

tempting in cases where the controlling bloc lacks a defensible legal basis for 

refusing to proceed. 

And it would effectively enable partisan minorities to codify their erroneous 

legal interpretations. The controlling Commissioners have already cited their New 

Models decision in other matters, see supra note 4, and have stressed their 

“consistent[] reject[ion]” of a “myopic focus on one year of spending” when 

applying the major-purpose test across many MURs, making it de facto 

controlling. JA 123 n.96.9 That is why, “[e]ven if a statutory interpretation is 

announced in the course of a nonenforcement decision, that does not mean that it 

escapes review altogether”—because that “would be handing agencies carte 

blanche to avoid review by announcing new interpretations of statutes only in the 

context of decisions not to take enforcement actions.” Int’l Union, United Auto., 

Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 246 (D.C. 

Cir. 1986). 

The per se rule of unreviewability applied below therefore tends to protect 

the very legal interpretations that are most in need of judicial correction. Before 

 

9 See also Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Comm’r Caroline C. Hunter at 16 n.1, 16-18, MUR 6596 (Crossroads GPS) (May 

13, 2019), https://eqs.fec.gov/eqsdocsMUR/6596_2.pdf (asserting, remarkably, 

that a “calendar-year approach” to the major-purpose inquiry “conflicts” with 

Judge Cooper’s decision in CREW/AAN).

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elevating CREW/CHGO into a “magic words” rule, this Court should also consider 

the effects on the regulated community of allowing an impermissible construction 

of FECA to stand or an important interpretive question go unanswered. Indeed, 

“‘[m]ost political operatives, whether on the right or the left, want clarity,’” 

according to one former Republican FEC commissioner, even if “‘[t]hey might not 

always be thrilled with the answers.’” Daniel I. Weiner, Fixing the FEC: An 

Agenda for Reform, at 2, Brennan Ctr. for Justice (2019), https://www.brennan

center.org/sites/default/files/2019-08/Report_Fixing_FEC.pdf (noting that 

“gridlock at the FEC creates risk and uncertainty” for regulated parties, and “[i]n 

recent years both Republican and Democratic officeholders have been accused of 

criminal offenses that might have been avoided with the help of clearer FEC 

guidance”). 

C. Pervasive dysfunction and gridlock at the Commission only heighten 

the need for a judicial check.

1. Since CREW/CHGO, a minority bloc of FEC Commissioners has 

increasingly cited “discretion” as a reason to dismiss matters at the 

preliminary reason-to-believe stage.

Concerns that “prosecutorial discretion” will now regularly be invoked to 

avoid judicial review are not unfounded. Indeed, Commission dismissals rejecting 

an OGC recommendation to proceed at the reason-to-believe stage are increasingly

referring to “prosecutorial discretion” and “agency resources,” generally alongside 

a substantial legal analysis, and have done so without exception in deadlock cases 

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addressing the political committee disclosure rules since CREW/CHGO. See

CREW Br. at 31 & n.17. A reflexive rule that treated any whisper of “discretion” 

as enough to render a dismissal unreviewable would potentially immunize a broad 

swath of legal interpretations from judicial scrutiny.

For example, earlier this year—seven years after the initiating complaint was 

filed—the Commission deadlocked on whether there was reason to believe a group 

that spent $138,646,864 in 2012 (73.4% of its total spending that year)10 to 

influence federal elections should have registered as a political committee. The 

controlling Commissioners explained that their “application of the judicially 

approved case-by-case approach for determining major purpose . . . necessarily

leads to the conclusion that Crossroads GPS’s major purpose is not the nomination 

or election of federal candidates and, therefore, that it is not a political committee 

under the Act.” Statement of Reasons at 14, MUR 6596, supra note 9 (emphasis 

added). Then, after 18 single-spaced pages of legal analysis explaining why 

Crossroads GPS “was not a political committee,” id. at 19, they added that “it 

would also be a proper exercise of the Commission’s prosecutorial discretion to 

dismiss this matter so that Commission enforcement resources can be better 

 

10 See First General Counsel’s Rept. at 32, MUR 6596 (Crossroads GPS) (Mar. 7, 

2014), https://www.fec.gov/files/legal/murs/6596/19044463201.pdf. 

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23

allocated,” citing “the lapse of time since the events at issue in this matter 

occurred.” Id. (emphasis added). 

This Court should consider the broader agency context before extending 

CREW/CHGO unnecessarily. The recent history of the FEC is one of mounting

deadlock and delay. See, e.g., Weiner, Fixing the FEC, supra, at 3-4 (noting “sharp 

rise in party-line deadlocked votes,” nearly all at the reason-to-believe stage).11

Complaints languish for years, and deadlocked votes prevent the Commission from 

taking action, even in cases where there appears to be nominal agreement about 

what the law requires and compelling evidence that the law was violated.

12

Given this context, there is good reason to proceed cautiously before reading 

CREW/CHGO to endow minority blocs with the power to invoke “discretion” as 

 

11

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

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

Trial Litigation & Chief of Staff, Campaign Legal Center), https://docs.house.gov/

meetings/HA/HA00/20190925/109983/HHRG-116-HA00-Wstate-NotiA20190925-U1.pdf. 

12 See, e.g., Statement of Reasons of Vice Chair Ellen L. Weintraub at 2, 

MURs 6968, 6995, 7014/7017/7019/7090 (Tread Standard LLC et al.) (June 19, 

2018), https://eqs.fec.gov/eqsdocsMUR/7014_1.pdf (“The Commission has been 

receiving complaints alleging the use of LLCs in conduit contribution schemes 

since 2011,” but “ha[s] yet to make a finding” because, “[e]ven though the law is 

clear,” a controlling bloc thought enforcement would be “‘unfair’”); Office of FEC 

Comm’r Ann M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the 

Federal Election Commission Reveals the Unlikelihood of Draining the Swamp 14 

(Feb. 2017), https://www.fec.gov/resources/about-fec/Commissioners/ravel/

statements/ravelreport_feb2017.pdf.

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an absolute bar to review—at least where, as in this case, they engage in extensive 

legal analysis on the merits. As one district court judge recently quipped:

“The [FEC] is the only government agency that does exactly what 

Congress designed it to do: nothing.” The punchline of that old 

Washington joke may be increasingly true, but its premise is 

uncharitable to Congress. Because when Congress mandated that the 

six-member Commission be split down party lines, it anticipated that 

partisan deadlocks were likely to result. So it legislated a fix. 

CREW v. Am. Action Network, No. 18-cv-945 (CRC), 2019 WL 4750248, at *1 

(D.D.C. Sept. 30, 2019) (emphasis added). Now more than ever, the legislative 

“fix” Congress devised—FECA’s judicial review provision—must be preserved, 

given the self-evident, and “increasingly true,” id., possibility that the agency’s

decisionmaking will be mired in partisan deadlock. In some areas of the campaign 

finance laws, in fact, persistent deadlocks have tipped the Commission toward total 

abandonment of its statutory mandate. This is hardly the time for courts to take a 

backseat.

2. A minority bloc of FEC Commissioners has persistently refused to 

find that any group can satisfy their test for political committee status, 

casting further doubt on the district court’s decision to treat this latest 

dismissal as unreviewable. 

Examining the last decade of FEC enforcement MURs reveals that the 

Commission, by virtue of one minority bloc’s intransigence, has adopted a de facto 

policy of non-enforcement as to certain core provisions of FECA. These concerns 

are particularly acute in two areas of law: (1) illegal coordination between outside 

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25

spenders and candidates, and (2) application of the major-purpose test to determine 

political committee status. 

In the area of illegal coordination between spenders and candidates, the 

Commission has effectively conceded its total non-enforcement. When asked by 

the House Administration Committee in an oversight proceeding, the Commission 

acknowledged that it has not pursued a single violation of the coordination 

regulations since Citizens United. See FEC Response to Questions from House 

Admin. Comm. at 24-25 (May 1, 2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf. See also Chair Ellen L. 

Weintraub’s Suppl. Responses to Questions from House Admin. Comm. at 4 (May 

1, 2019), https://www.fec.gov/resources/cms-content/documents/FEC_Response_

to_House_Admin_Attachment_A_Weintraub.pdf (“Since the Supreme Court’s 

decision in Citizens United, how many times has the Commission found a violation 

of the coordination regulations?”—“The simple answer is zero.”). 

As for political committee status, the pattern is largely the same. Since 2010, 

non-reporting entities have spent more than $964 million to influence federal 

elections. See Center for Responsive Politics, Outside Spending by Nondisclosing 

Groups, Cycle Totals, Excluding Party Committees, OpenSecrets.org, https://bit.ly/

2EcD0dz (last visited Oct. 28, 2019). In that time, the Commission has not applied 

the major purpose test to pursue enforcement against a single group for failure to 

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26

register and report as a political committee—except, in one case, after litigation 

and a court order that their refusal to take action was contrary to law. See

Conciliation Agreement, MUR 6538R (Americans for Job Security) (Sept. 9, 

2019), https://www.fec.gov/files/legal/murs/6538R/19044477418.pdf.

And in cases where OGC recommended a reason-to-believe finding in 

response to alleged political committee violations, the same partisan minority bloc

has continued to rely on the same faulty legal analysis to justify refusing to 

proceed. Earlier this year, in MUR 6596 (Crossroads GPS), they again rejected a

“slavish application” of the major-purpose test that considers a group’s spending 

within the relevant calendar year, and treated 501(c)(4) tax-exempt status as 

“significant[ly],” if not decisively, indicative of a group’s major purpose.

Statement of Reasons at 11, 16, MUR 6596. See CREW/AAN, 209 F. Supp. 3d at

94 (finding that “[t]he Commissioners’ refusal to give any weight whatsoever to an 

organizations’ relative spending in the most recent calendar year” was arbitrary 

and “cannot be what Congress contemplated in defining ‘political committee’ in 

terms of calendar-year spending”) (citing 52 U.S.C. § 30101(4)); FEC, Political 

Committee Status, 72 Fed. Reg. 5595, 5598 (Feb. 7, 2007) (“[N]either FECA, as 

amended, nor any judicial decision interpreting it, has substituted tax status for the 

conduct-based determination required for political committee status.”).

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In effect, in these deadlock “decisions,” a partisan minority on the

Commission is engaging in an iterative, case-by-case process of refining the legal 

analysis of political committee status—although under FECA this is a power that 

only four Commissioners can exercise. This history tends to undermine the district 

court’s characterization of New Models as a “single-shot enforcement case.” JA 

159 (“The Controlling Commissioners did not indicate that their decision regarding 

New Models would dictate their decisions regarding other organizations.”). 

Instead, given the near-total refusal to enforce FECA’s political committee 

disclosure requirements by a minority bloc of Commissioners, judicial intervention 

is especially warranted. This is true whether or not the reasons given for dismissal 

mentioned “discretion.”

The FECA disclosure requirements at the heart of CREW’s administrative 

complaint directly advance compelling interests in “providing the electorate with 

information, deterring actual corruption and avoiding any appearance thereof, and 

gathering the data necessary to enforce more substantive electioneering 

restrictions.” McConnell, 540 U.S. at 196. By refusing to consider the adequacy of 

the controlling Commissioners’ legal rationale, the district court all but ensured 

that the public will continue to be deprived of this critical information concerning 

millions of dollars spent to influence federal elections. See Statement of Reasons of 

Chair Ellen L. Weintraub at 1, MUR 6538R (Americans for Job Security) (Oct. 11, 

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28

2019), https://www.fec.gov/files/legal/murs/6538R/6538R_1.pdf (noting that 

although disclosure prompted by court action came “nine years too late” to inform 

2010 voters, only judicial intervention finally enabled the commission to 

“enforce[e] the disclosure laws at the heart of the agency’s mission”). 

CONCLUSION

For these reasons, the decision below should be reversed.

Dated: October 29, 2019 Respectfully submitted,

/s/ Tara Malloy

Paul M. Smith

Tara Malloy 

Megan P. McAllen

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

E-mail: tmalloy@campaignlegalcenter.org

Attorneys for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(ii) 

because it contains 6,340 words, excluding the parts of the brief exempted by 

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

This filing complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

response has been prepared using Microsoft Office Word 2016 in Times New 

Roman 14-point font.

/s/ Tara Malloy

Tara Malloy

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CERTIFICATE OF SERVICE

I hereby certify that on October 29, 2019, I electronically filed this Amicus 

Curiae Brief with the Clerk of Court for the United States Court of Appeals for 

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

serving all persons required to be served. 

I further certify that I caused the required copies of the Amicus Curiae

Brief to be filed with the Clerk of the Court.

/s/ Tara Malloy

Tara Malloy

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