ORAL ARGUMENT NOT YET SCHEDULED

No. 18-5239

_______________________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

CAMPAIGN LEGAL CENTER, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee,

ELI PUBLISHING, L.C., et al.,

Intervenors-Appellees.

_______________________________________________

On Appeal from the United States District Court

for the District of Columbia

_______________________________________________

FEDERAL ELECTION COMMISSION’S MOTION 

FOR SUMMARY AFFIRMANCE

_______________________________________________

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher

Acting Assistant General Counsel

ckitcher@fec.gov

September 24, 2018

Haven Ward

Attorney

hward@fec.gov

Tanya Senanayake

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

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TABLE OF CONTENTS

 Page

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

LEGAL AND FACTUAL BACKGROUND...................................................... 2

I. THE COMMISSION..................................................................................2

II. FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS................. 3

III. CAMPAIGN LEGAL CENTER’S ADMINISTRATIVE

COMPLAINTS AND THE ADMINISTRATIVE PROCEEDINGS........4

IV. THE FEC’S DISMISSALS OF APPELLANTS’ 

ADMINISTRATIVE COMPLAINTS .......................................................6

V. PROCEEDINGS BEFORE THE DISTRICT COURT........................... 10

VI. THIS COURT’S DECISION IN CREW ................................................. 11

ARGUMENT..................................................................................................... 13

I. STANDARD OF REVIEW..................................................................... 13

II. THE JUDGMENT BELOW SHOULD BE SUMMARILY

AFFIRMED BECAUSE RECENT PRECEDENT OF THIS 

COURT FORECLOSES APPELLANTS’ CLAIMS AS A 

MATTER OF LAW................................................................................. 14

A. The Commissioners Who Did Not Vote to Find Reason to 

Believe That Section 30122 Was Violated in the Underlying 

Administrative Matters Based Their Decision Upon the 

Agency’s Prosecutorial Discretion................................................ 14

B. CREW Resolves This Case ........................................................... 16

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CONCLUSION.................................................................................................. 19

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TABLE OF AUTHORITIES

Cases Page

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)............................................. 18

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017) .....................4

Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d 1172 (D.C. Cir. 1987)......... 13-14

Citizens for Responsibility and Ethics in Wash. v. FEC, 892 F.3d 434

 (D.C. Cir. 2018) ........................... 1,1-2, 11, 11-12, 12, 12-13, 15, 16, 17, 18

Citizens United v. FEC, 558 U.S. 310 (2010).......................................................7

Crowley Caribbean Transport, Inc. v. Pena, 

37 F.3d 671 (D.C. Cir. 1994)................................................................... 18

Doe 1 v. FEC, 302 F. Supp. 3d 160 (D.D.C. 2018)

appeal docketed, No. 18-5099 (D.C. Cir. Apr. 12, 2018)....................... 17

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992)..................................................................7

Heckler v. Chaney, 470 U.S. 821 (1985)........................................... 1, 12, 16, 17

Hunt v. U.S. Dep’t of Veterans Affairs, 739 F.3d 706 (D.C. Cir. 2014)............ 14

Jackson v. U.S. Attorney’s Office, No. 07-5071,

 2007 WL 4699453 (D.C. Cir. Aug. 8, 2007).............................................. 14

Jenkins v. Dist. of Columbia, No. 18-5021,

 2018 WL 3726280 (D.C. Cir. July 20, 2018)............................................. 13

Jenkins v. Washington Convention Ctr., 236 F.3d 6 (D.C. Cir. 2001).............. 14

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ............................................ 15

Sills v. Federal Bureau of Prisons, 761 F.2d 792 (D.C. Cir. 1985).................. 14

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987).............. 13

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Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016).................................... 18

Statutes and Regulations

11 C.F.R. § 110.1(g) .............................................................................................9

11 C.F.R. § 111.4 ..................................................................................................3

11 C.F.R. § 111.21 ................................................................................................3

52 U.S.C. § 30103.................................................................................................5

52 U.S.C. § 30104(a) ............................................................................................5

52 U.S.C. § 30104(b)............................................................................................5

52 U.S.C. § 30106(b)(1) .......................................................................................2

52 U.S.C. § 30106(c) ....................................................................................... 2, 3

52 U.S.C. § 30107(a)(8)........................................................................................2

52 U.S.C. § 30109(a)(1)................................................................................... 2, 3

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

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

52 U.S.C. § 30109(a)(4)........................................................................................3

52 U.S.C. § 30109(a)(5)........................................................................................3

52 U.S.C. § 30109(a)(6)........................................................................................2

52 U.S.C. § 30109(a)(6)(A)..................................................................................4

52 U.S.C. § 30109(a)(12)(A)................................................................................3

52 U.S.C. § 30111(a)(8)........................................................................................2

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52 U.S.C. § 30122.................................................................................................5

Miscellaneous

D.C. Cir. Rule 36(c)(2)(F) ................................................................................. 14

U.S. Court of Appeals for the D.C. Circuit, 

Handbook of Practice and Internal Procedures....................................... 13

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INTRODUCTION

Appellee Federal Election Commission (“FEC” or “Commission”) 

respectfully moves for summary affirmance of the decision below, which granted 

judgment to the Commission after finding a rational basis for the Commission’s 

exercise of its prosecutorial discretion in dismissing several administrative 

complaints that appellants Campaign Legal Center and Democracy 21 

(collectively, “Campaign Legal Center”) had filed with the agency. (Addendum 

(“Add.”) 1-22.) Campaign Legal Center asserted that the Commission acted 

contrary to law in dismissing its administrative complaints alleging illegal straw 

donor schemes involving corporate entities. Three of the respondents named in the

administrative complaints, Eli Publishing, L.C. (“Eli Publishing”), its founder, 

Steven Lund, and F8 LLC (“F8”), intervened as defendants in the district court and 

are intervenors-appellees. 

After the district court granted judgment for the Commission, this Court 

issued its opinion in Citizens for Responsibility and Ethics in Washington v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“CREW”), pet. for reh’g en banc filed, No. 17-

5049, Doc. # 1742905 (July 27, 2018), which establishes that the district court’s 

judgment should be summarily affirmed. In CREW, a panel of this Court, relying 

on Heckler v. Chaney, 470 U.S. 821 (1985) (“Heckler”), held “that federal 

administrative agencies in general and the Federal Election Commission in 

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particular have unreviewable prosecutorial discretion to determine whether to bring 

an enforcement action.” CREW, 892 F.3d at 438 (internal citations omitted). 

The Commission’s dismissals that are challenged in this appeal constitute

exercises of prosecutorial discretion that are unreviewable under the decision in 

CREW. Accordingly, this Court should summarily affirm the district court’s 

judgment upholding the dismissals. 

LEGAL AND FACTUAL BACKGROUND

I. THE COMMISSION

The FEC is a six-member, independent agency vested with statutory 

authority over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act (“FECA” or “Act”). Congress authorized the 

Commission to “administer, seek to obtain compliance with, and formulate policy 

with respect to” FECA, 52 U.S.C. § 30106(b)(1); “to make, amend, and repeal 

such rules . . . as are necessary to carry out the provisions of [FECA],” id. 

§§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. 

§ 30109(a)(1)-(2). The FEC has “exclusive jurisdiction” to initiate civil 

enforcement actions for violations of FECA in the United States district courts. Id. 

§§ 30106(b)(1), 30109(a)(6). It is required under FECA to make decisions through 

majority votes and, for certain actions, including many enforcement decisions, with 

the affirmative vote of at least four Commissioners. Id. § 30106(c).

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II. FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS 

FECA permits any person to file an administrative complaint with the FEC 

alleging a violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. FEC 

administrative enforcement matters are required by FECA to be kept confidential 

until the administrative process is complete. 52 U.S.C. § 30109(a)(12)(A); 

11 C.F.R. § 111.21. Upon receiving a complaint, the Commission must notify any 

person alleged in the complaint to have committed a FECA violation (i.e., the 

“respondent”) and provide fifteen days for a response. 52 U.S.C. § 30109(a)(3). 

After considering the complaint and any response, the Commission must then 

determine whether to find there is “reason to believe” that the respondent has 

committed, or is about to commit, a violation of FECA, which it may do by an 

affirmative vote of four Commissioners. Id. § 30109(a)(2); see also id. § 30106(c). 

If the Commission affirmatively votes to find reason to believe, FECA’s 

potential subsequent enforcement steps include investigating the allegations, 

determining whether there is “probable cause” regarding the alleged violation, and 

engaging in conciliation with the respondent. Id. § 30109(a)(2)-(5). As with the 

reason-to-believe determination, a finding of probable cause and accepting a 

conciliation agreement each requires the affirmative vote of four FEC 

Commissioners to proceed. Id. If the FEC is unable to reach a conciliation 

agreement with a respondent, FECA authorizes the Commission to institute a civil 

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enforcement action in federal district court, upon an affirmative vote of at least 

four Commissioners. Id. § 30109(a)(6)(A). If, at any point in the process, the 

Commission lacks the required four affirmative votes to proceed on a matter, it 

may dismiss the administrative complaint.

III. CAMPAIGN LEGAL CENTER’S ADMINISTRATIVE 

COMPLAINTS AND THE ADMINISTRATIVE PROCEEDINGS

In the district court, Campaign Legal Center sought judicial review of the 

Commission closing its file on five administrative complaints that the organization

had submitted to the agency. The district court found that Campaign Legal Center

lacked standing to challenge the Commission’s dismissal of two of these 

administrative complaints and dismissed that portion of the case. (Add. 4 n.2 

(citing Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 125 (D.D.C. 2017)).) 

Campaign Legal Center does not appeal that decision; the remaining three 

administrative complaints are the subject of Campaign Legal Center’s appeal of the 

district court judgment. See Plaintiffs-Appellants’ Statement as to Issues on 

Appeal at 1-3 (Sept. 7, 2018) (Doc. # 1749602).

All three administrative complaints concerned contributions that closely held 

corporations or corporate limited liability companies (“LLCs”) made to registered 

independent-expenditure-only political committees (or “super PACs”). (Add. 3-4.) 

Two administrative complaints focused on $1 million contributions that two LLCs, 

Eli Publishing and F8, each made to Restore Our Future, Inc. (“Restore Our 

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Future”). (Add. 3.) Campaign Legal Center alleged that Steven Lund, the founder 

of Eli Publishing, and operators of F8 were in fact the true sources of the 

contributions to Restore Our Future, and that these respondents thus violated 

FECA (id.), which provides that “[n]o person shall make a contribution in the 

name of another person or knowingly permit his name to be used to effect such a 

contribution, and no person shall knowingly accept a contribution made by one 

person in the name of another person,” 52 U.S.C. § 30122. Campaign Legal 

Center also alleged that F8 and Eli Publishing were “political committees” that had 

failed to register and file reports in violation of FECA (Add. 3), which requires, 

inter alia, that political committees register with the Commission, maintain names 

and addresses of contributors, and file periodic reports disclosing to the public 

most receipts of $200 or more, 52 U.S.C. §§ 30103, 30104(a)-(b). 

The other administrative complaint concerned contributions totaling 

approximately $12 million from Specialty Investment Group Inc. (“Specialty 

Group”) and its subsidiary, Kingston Pike Development LLC (“Kingston Pike”), to 

FreedomWorks for America (“FreedomWorks”). (Add. 4.) William Rose was 

Specialty Group’s chief executive officer, president, and board chairman, and the 

sole manager of Kingston Pike. (Id.) Campaign Legal Center alleged that a 

FreedomWorks board member, Richard Stephenson, made the contributions 

through Specialty Group and Kingston Pike, with the assistance of FreedomWorks’ 

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executive vice president Adam Brandon, in violation of FECA’s prohibition on

contributions made in the name of another, 52 U.S.C. § 30122. (Add. 4.)

Campaign Legal Center also alleged that Specialty Group and Kingston Pike were 

“political committees” that had failed to register and file reports as required by 

FECA. (Id.)

IV. THE FEC’S DISMISSALS OF APPELLANTS’ ADMINISTRATIVE

COMPLAINTS

In February 2016, the Commission, by a vote of 3-3, did not vote to find 

reason to believe regarding the violations Campaign Legal Center had alleged in its 

administrative complaints. (Add. 5.) In April 2016, then-Chairman Matthew S. 

Petersen, Commissioner Caroline C. Hunter, and former Commissioner Lee E. 

Goodman, who were the three Commissioners not voting to find reason to believe 

in these matters, issued a statement of reasons explaining their vote. (Add. 23-37.)

These Commissioners later supplemented this statement. (Add. 38-41.) As noted 

by the district court, the Commissioners who voted to find reason to believe that 

violations occurred and voted to proceed with an investigation also issued a 

statement of reasons. (Add. 5.) Because Commissioners Petersen, Hunter, and 

Goodman were the Commissioners voting against making reason-to-believe 

findings, their “rationale[s] necessarily state[] the agency’s reasons for acting as it 

did,” and they accordingly constitute the “controlling group” of Commissioners in 

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these matters. FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476

(D.C. Cir. 1992). 

In their statement, the controlling Commissioners explained that they did not 

vote to find reason to believe a violation had occurred as “‘an exercise of the 

Commission’s prosecutorial discretion.’” (Add. 5 (quoting Add. 36).) Though the

controlling Commissioners agreed with the other Commissioners that “closely held 

corporations and corporate LLCs may be considered straw donors” under FECA 

(Add. 30), and articulated how they intended to apply the statute in such situations 

going forward (Add. 34-35), they determined that the issue presented in the 

administrative complaints was one “‘of first impression’” before the Commission. 

(Add. 5 (quoting Add. 24).) The controlling Commissioners found that the 

Supreme Court’s decision in Citizens United v. FEC, 558 U.S. 310 (2010), 

significantly altered the agency’s historical approach to corporate contributions and 

FECA’s prohibition against contributions in the name of another. (Add. 23-24.) 

They understood the Commission’s inquiry into whether FECA’s prohibition 

against contributions in the name of another as having historically focused on 

whether “a corporation (or some other person) paid or reimbursed individuals for 

making the contributions in their names.” (Add. 23.) They concluded that in the 

pre-Citizens United era “the Commission ha[d] never addressed the inverse of the 

conventional corporate straw-donor scheme,” in which a corporation or corporate 

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LLC could be considered to be making a contribution in the name of another in 

violation of section 30122, as alleged in Campaign Legal Center’s administrative 

complaints. (Add. 29.) Because corporations could not make any contributions 

under FECA at the time the prohibition against conduit contributions was enacted, 

the controlling Commissioners further found that “Congress likely did not 

contemplate that corporations could violate the prohibition against giving in the 

name of another by acting as straw donors for contributions.” (Add. 31.) In 

support of this view of the changing legal landscape, the controlling 

Commissioners also noted that its Office of General Counsel, “with the benefit of 

varying fact patterns . . . significantly refined its analysis for considering these 

types of matters.” (Add. 24; Add. 29-30 (explaining how the Office of General 

Counsel’s analysis differed among the administrative complaints).) These

Commissioners thus determined that the question presented by the administrative 

complaints was an issue of first impression. (Add. 31.)

The controlling Commissioners considered several additional factors as well. 

They found that the agency had never before applied section 30122 to a situation 

where neither FECA’s contribution limits nor its source prohibition were at issue. 

(Add. 24.) The controlling Commissioners thus found that the pending matters 

“differ[ed] substantially” from prior matters. (Add. 31.) They also considered 

prior precedent in other contexts “treat[ing] funds deposited in a corporate account 

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as the corporation’s funds, even if the corporation’s owner could legally convert 

them into his or her own personal funds.” (Add. 31.) The controlling 

Commissioners further observed that FEC regulations provide that contributions 

from corporate LLCs are attributed to the corporate entity, not its owners (Add. 33 

(discussing 11 C.F.R. § 110.1(g))), and that the Commission had “previously 

considered but rejected an attribution rule that would deem the individual owners 

of corporate LLCs as the makers of those LLCs’ contributions” (Add. 24). In light 

of such historical treatment, the controlling Commissioners found that “it would be 

reasonable for Respondents to conclude that contributions made by their closely 

held corporations and corporate LLCs were lawful and not contributions in the 

name of another.” (Add. 33.) Finally, the controlling Commissioners expressed 

their concern that the rights recognized in Citizens United would be rendered 

“hollow” if closely held corporations and corporate LLCs were presumed to be 

straw donors when they made contributions. (Add. 24.)

For these reasons, the controlling Commissioners concluded that it had been 

unclear whether and under what circumstances a contribution made by a closelyheld corporation or corporate LLC to a super PAC constituted an improper

contribution in the name of another that should be attributed to the entity’s owner 

as the “true contributor” rather than the entity itself. (Add. 33.) Given this 

understanding, the Commissioners found that the respondents that were the subject 

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of Campaign Legal Center’s administrative complaints did not have adequate 

notice regarding the application of section 30122 to closely-held corporations and 

corporate LLCs and, in light of their “due process, fair notice, and First 

Amendment clarity” concerns (Add. 24), concluded that the pending matters 

“should be dismissed in an exercise of the Commission’s prosecutorial discretion” 

(Add. 36).

V. PROCEEDINGS BEFORE THE DISTRICT COURT

In the court below, Campaign Legal Center challenged the Commission’s 

dismissals of its administrative complaints as contrary to law. The court below

determined that the Commission’s actions could be “contrary to law only if [the 

Commission] failed to show a rational basis for dismissing these complaints.” 

(Add. 7-11.) 

In its detailed analysis of the controlling Commissioners’ exercise of 

prosecutorial discretion (Add. 11-19), the district court determined that the 

question of when a closely held corporation or corporate LLC may be a straw 

donor under section 30122 was “an issue of first impression for the Commission” 

(Add. 12), that “even sophisticated lawyers were confused” by the regulatory 

environment (Add. 13-15), and credited the controlling Commissioners’ concerns 

about notice and due process, as well as the importance of safeguarding First 

Amendment activity (Add. 16-19). In accordance with this analysis, the district 

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court concluded that “there was a rational basis for the Commission’s exercise of 

its prosecutorial discretion.” (Add. 1, 19.) The district court also rejected as 

unripe Campaign Legal Center’s challenge to the controlling Commissioners’ 

articulation of a standard to evaluate section 30122’s applicability in future, similar 

cases. (Add. 19-21.) The district court thus granted the motions for summary 

judgment filed by the Commission and F8, Eli Publishing, and Steven Lund, and it 

denied Campaign Legal Center’s motion for summary judgment. 

VI. THIS COURT’S DECISION IN CREW

On June 15, 2018, following the issuance of the district court’s decision, a 

panel of this Court issued its decision in CREW.

1

 In that case, the plaintiffs had 

challenged a decision by a controlling group of Commissioners not to vote to 

pursue enforcement action under both FECA and the Administrative Procedure Act 

(“APA”). CREW, 892 F.3d at 437. The Commissioners who had voted not to 

proceed in the underlying administrative matter had determined that the matter did 

not warrant the further use of Commission resources for a number of reasons and 

dismissed for prosecutorial discretion. Id. at 438. 

On appeal of the district court’s decision upholding the dismissal, the 

majority of the panel found that the Supreme Court’s decision in Heckler “controls 

 1 In July 2018, the appellants in CREW filed a petition for rehearing en banc. 

See supra p. 1.

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this case.” Id. at 439. In Heckler, the Supreme Court had held that “agency 

decisions not to institute [enforcement] proceedings” are generally unreviewable. 

Heckler, 470 U.S. at 837. In line with this reasoning, this Court determined that

the declining-to-proceed Commissioners “placed their judgment squarely on the 

ground of prosecutorial discretion. Nothing in [FECA] overcomes the presumption 

against judicial review.” CREW, 892 F.3d at 439. The Court further reasoned that 

other provisions of FECA that direct that the “Commission ‘shall’ take specific 

actions after making certain threshold legal determinations,” such as finding reason 

to believe that a violation occurred, failed to “constrain the Commission’s 

discretion whether to make those legal determinations in the first instance.” Id. at 

439. 

In addition, the majority determined that FECA does not provide meaningful 

standards for reviewing the Commission’s exercise of prosecutorial discretion and 

that the agency’s prosecutorial discretion dismissals are therefore not subject to 

judicial review. Id. For similar reasons, it found that review is also foreclosed 

under the APA, reasoning that the D.C. Circuit “has held that if an action is 

committed to the agency’s discretion under APA § 701(a)(2) — as agency 

enforcement decisions are — there can be no judicial review for abuse of 

discretion, or otherwise.” Id. at 441 (citing cases). Accordingly, the opinion 

explained, “[i]t follows that [plaintiffs are] not entitled to have the court evaluate 

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for abuse of discretion the individual considerations the controlling Commissioners 

gave in support of their vote not to initiate enforcement proceedings.” Id. at 441.

ARGUMENT

This Court should summarily affirm the district court’s judgment for the 

Commission. The Commission’s dismissals that Campaign Legal Center 

challenges in this case were based upon prosecutorial discretion. This Court’s 

recent decision in CREW establishes that such challenges to the controlling 

Commissioners’ exercise of prosecutorial discretion in connection with the 

underlying administrative matters are unreviewable. 

I. STANDARD OF REVIEW

“Summary affirmance is appropriate where the merits are so clear as to 

justify summary action.” U.S. Court of Appeals for the D.C. Circuit, Handbook of 

Practice and Internal Procedures at 35-36; see also Jenkins v. Dist. of Columbia, 

No. 18-5021, 2018 WL 3726280, at *1 (D.C. Cir. July 20, 2018) (citing Taxpayers 

Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam)). In 

circumstances where the merits are so clear, “no benefit will be gained from 

further briefing and argument of the issues presented.” Taxpayers Watchdog, 819 

F.2d at 298; Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d 1172, 1174 (D.C. Cir. 

1987) (per curiam) (“[S]ummary disposition will be granted where the merits of 

the appeal or petition for review are so clear that ‘plenary briefing, oral argument, 

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and the traditional collegiality of the decisional process would not affect our 

decision.’” (quoting Sills v. Federal Bureau of Prisons, 761 F.2d 792, 793-94 

(D.C. Cir. 1985))).

Furthermore, just as this Court “may affirm the district court on grounds 

different from those relied upon by the district court,” Jenkins v. Wash. Convention 

Ctr., 236 F.3d 6, 8, n.3 (D.C. Cir. 2001), it may also summarily affirm on different 

grounds, see, e.g., Hunt v. U.S. Dep’t of Veterans Affairs, 739 F.3d 706, 707 (D.C. 

Cir. 2014) (per curiam) (summarily affirming lower court decision “upon grounds 

different from those set forth in the district court’s published opinion”); Jackson v. 

U.S. Attorney’s Office, No. 07-5071, 2007 WL 4699453, at *1 (D.C. Cir. Aug. 8, 

2007) (per curiam) (same); accord D.C. Cir. Rule 36(c)(2)(F) (stating that an order 

of the Court will be published if “it reverses a published agency or district court 

decision, or affirms a decision of the district court upon grounds different from 

those set forth in the district court’s published opinion”).

II. THE JUDGMENT BELOW SHOULD BE SUMMARILY AFFIRMED 

BECAUSE RECENT PRECEDENT OF THIS COURT FORECLOSES 

APPELLANTS’ CLAIMS AS A MATTER OF LAW

A. The Commissioners Who Did Not Vote to Find Reason to Believe 

That Section 30122 Was Violated in the Underlying 

Administrative Matters Based Their Decision Upon the Agency’s 

Prosecutorial Discretion

As the district court found, the challenged dismissal was based upon an 

exercise of the Commission’s prosecutorial discretion. The district court explained 

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that the controlling dismissal “decision was not a direct ‘result’ of the 

Commission’s ‘interpretation of the Act,’ but an exercise of the Commission’s 

‘considerable prosecutorial discretion.’” (Add. 10 (quoting Nader v. FEC, 823 F. 

Supp. 2d 53, 65 (D.D.C. 2011)).) The Commissioners themselves explicitly 

concluded that the administrative matters “should be dismissed in an exercise of 

the Commission’s prosecutorial discretion.” (Add. 24-25, 36.) Importantly, the 

controlling Commissioners “did not dismiss the complaints because [they] decided 

that the announced standard [of 52 U.S.C. § 30122] did not apply, but reasoned 

that ‘[r]espondents were not provided adequate notice that their conduct could 

potentially violat[e] section 30122.’” Add. 11 (quoting Add. 33); compare CREW, 

892 F.3d at 441 & nn. 9 & 11 (explaining that the presumption against the 

reviewability of enforcement decisions applied only to agency enforcement 

decisions that are “committed to agency discretion” and that “[t]he interpretation 

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

discretion”). 

Accordingly, the majority of the district court’s analysis in the opinion 

below (issued prior to this Court’s decision in CREW) is devoted to explaining its 

conclusion that “there was a rational basis for the Commission’s exercise of its 

prosecutorial discretion.” (Add. 1; Add. 7-19.) The district court analyzed the 

controlling Commissioners’ reasons, including their “concerns of fair notice and 

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due process in a post-Citizens United context, confusing Commission precedent, 

and the obligation to protect First Amendment speech,” and concluded that there 

was a rational basis for the dismissal. (Add. 11-12; see also Add. 24, 28-36

(explaining the controlling Commissioners’ analysis of the section 30122 issue and 

their reasons for exercising prosecutorial discretion).) The dismissals here were 

based on prosecutorial discretion. 

B. CREW Resolves This Case 

The decision below should be summarily affirmed because, as in CREW, the 

controlling Commissioners in this case “exercised the agency’s prerogative not to 

proceed with enforcement.” CREW, 892 F.3d at 438. Because “an agency’s 

exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny,” id.

at 439, the votes of the controlling Commissioners not to find reason to believe are 

prosecutorial choices that are not subject to judicial review. 

The concept of agency discretion regarding the pursuit of enforcement 

matters is grounded in precedent and the recognition that “‘an agency decision not 

to enforce often involves a complicated balancing of a number of factors which are 

peculiarly within its expertise. . . . The agency is far better equipped than the 

courts to deal with the many variables involved in the proper ordering of its 

priorities.’” CREW, 892 F.3d at 439 & n.7 (quoting Heckler, 470 U.S. at 831-32). 

Such factors include “‘whether agency resources are best spent on this violation or 

USCA Case #18-5239 Document #1752338 Filed: 09/24/2018 Page 22 of 27
17

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. 

(quoting Heckler, 470 U.S. at 831-32). 

Here, the controlling Commissioners’ dismissal decision was based upon a 

balancing of factors informing their judgment about whether or not to proceed with 

enforcement. Although Campaign Legal Center below “rel[ied] heavily on the 

argument that ‘[a]pplication of section 30122 to corporate straw donors is . . . 

mandated by the plain language of the statute,’” as the district court correctly 

explained, the controlling Commissioners “did not say otherwise.” (Add. 11.)

2

 

Rather, these Commissioners found that the potential use of closely held 

corporations and corporate LLCs as illegal straw donors was an issue of first 

impression in the post-Citizens United context and determined that the 

administrative respondents were not provided adequate notice that their conduct 

could violate FECA. (Add. 23-25, 31-36.) They also found that the concern of fair 

 2 The Commission’s continued enforcement of section 30122, see, e.g., Doe 1 

v. FEC, 302 F. Supp. 3d 160, 163-64 (D.D.C. 2018) (summarizing the FEC’s 

October 2017 conciliation with respondents on an administrative complaint 

involving alleged violations of section 30122 and respondents’ agreement to a 

$350,000 penalty), appeal docketed, No. 18-5099 (D.C. Cir. Apr. 12, 2018), 

precludes any contention that “‘the agency has “consciously and expressly adopted 

a general policy” that is so extreme as to amount to an abdication of its statutory 

responsibilities,’” CREW, 892 F.3d at 440 n.9 (quoting Heckler, 470 U.S. at 833 

n.4) (finding that FEC did not abdicate with regard to alleged violations).

USCA Case #18-5239 Document #1752338 Filed: 09/24/2018 Page 23 of 27
18

notice to regulated actors “is particularly acute where First Amendment rights are 

at stake.” (Add. 36.) The district court sustained the challenged exercise of 

prosecutorial discretion as “‘an able attempt to balance the competing values that 

lie at the heart of campaign finance law.’” (Add. 18 (quoting Van Hollen, Jr. v. 

FEC, 811 F.3d 486, 501 (D.C. Cir. 2016)); see also Add. 17 (explaining that the 

FEC is “‘[u]nique among federal administrative agencies’” in that its “‘sole 

purpose [is] the regulation of core constitutionally protected activity’” (quoting 

AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003))).) The factors the 

Commissioners considered — the novelty of the issue and the notice, due process, 

and First Amendment concerns they articulated — are not questions of 

interpretation of FECA but judgments regarding the agency’s use of resources and 

priorities. Accord CREW, 892 F.3d at 441-42 (rejecting “‘the notion of carving 

reviewable legal rulings out from the middle of non-reviewable actions’” (quoting 

Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994)). 

Under CREW, Campaign Legal Center is “not entitled to have the court 

evaluate for abuse of discretion the individual considerations the controlling 

Commissioners gave in support of their vote not to initiate enforcement 

proceedings.” 892 F.3d at 441. Because Campaign Legal Center presents no 

claims that survive the mandate in CREW prohibiting review of FEC prosecutorial 

discretion dismissals, the district court judgment should be summarily affirmed on 

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19

the basis that the Commission’s exercise of such discretion in connection with the 

underlying administrative matters is unreviewable. 

CONCLUSION

This Court should summarily affirm the district court’s decision in favor of 

the Commission.

Respectfully submitted,

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher

Acting Assistant General Counsel

ckitcher@fec.gov

September 24, 2018

Haven Ward

Attorney

hward@fec.gov

/s/ Tanya Senanayake

Tanya Senanayake

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

USCA Case #18-5239 Document #1752338 Filed: 09/24/2018 Page 25 of 27
CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. R. 27(d)(1)(E)(2) 

because the brief contains 4,087 words, excluding the parts of the brief exempted 

by Fed. R. App. P. 32(f).

The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

USCA Case #18-5239 Document #1752338 Filed: 09/24/2018 Page 26 of 27
CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of September, 2018, I electronically 

filed the Federal Election Commission’s Motion for Summary Affirmance with the 

Clerk of the United States Court of Appeals for the D.C. Circuit by using the 

Court’s CM/ECF system, which will serve all counsel of record. 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

USCA Case #18-5239 Document #1752338 Filed: 09/24/2018 Page 27 of 27