ORAL ARGUMENT NOT YET SCHEDULED

No. 19-5161

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

––––––––––––

CITIZENS FOR RESPONSIBILITY AND ETHICS IN 

WASHINGTON; NOAH BOOKBINDER,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

––––––––––––

On Appeal from the United States District Court

for the District of Columbia, No. 1:18-cv-00076-RC

––––––––––––

BRIEF OF THE BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL 

OF LAW AS AMICUS CURIAE IN SUPPORT OF APPELLANTS’ 

PETITION FOR REHEARING EN BANC

––––––––––––

Gary W. Kubek

Harold W. Williford

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

gwkubek@debevoise.com

hwwilliford@debevoise.com

Daniel I. Weiner

 Counsel of Record

BRENNAN CENTER FOR JUSTICE AT 

NYU SCHOOL OF LAW

1140 Connecticut Avenue NW, 

Suite 1150 Washington, D.C. 20036

(646) 292-8343

weinerd@brennan.law.nyu.edu

Tara P. Ganapathy

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 383-8000

tganapathy@debevoise.com

Derek Tisler 

BRENNAN CENTER FOR JUSTICE AT 

NYU SCHOOL OF LAW

120 Broadway, Suite 1750

New York, NY 10271

(646) 292-88378

tislerd@brennan.law.nyu.edu

Counsel to Amici Curiae

 

USCA Case #19-5161 Document #1904753 Filed: 07/01/2021 Page 1 of 23
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES

A. Parties and Amicus

To counsel’s knowledge, the parties, intervenors, and amicus

appearing before this Court are listed in the Appellants’ Certificate as 

to Parties, Rulings, and Related Cases. Counsel understands additional 

amici curiae may appear in this matter.

B. Rulings Under Review

An accurate reference to the ruling at issue appears in the 

Appellants’ Certificate as to Parties, Rulings, and Related Cases.

C. Related Cases

The case on review was not previously before this Court. Counsel 

is not aware of any other related cases within the meaning of Circuit 

Rule 28(a)(1)(C) currently pending in this Court.

/s/ Daniel I. Weiner

Daniel I. Weiner

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STATEMENT REGARDING SEPARATE BRIEFING

Pursuant to Circuit Rule 29(d), amicus certifies that a separate 

brief is necessary because amicus has a unique perspective as a not-forprofit, non-partisan law and public policy institute that studies the 

systems and structures of election administration, which may be of 

significant value to the Court in considering Appellants’ petition for a 

rehearing en banc. No other amicus is capable of providing this unique 

perspective.1

 

1 No party’s counsel authored this brief in whole or part, or 

contributed money that was intended to fund preparing or submitting 

the brief, and no person other than amicus curiae and its counsel 

contributed money that was intended to fund preparing or submitting 

this brief. 

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES ........................................................................................................i

STATEMENT REGARDING SEPARATE BRIEFING ............................ii

TABLE OF AUTHORITIES.....................................................................iv

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

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

ARGUMENT .............................................................................................3

I. The FEC’s Unique Structure Necessitates Robust Judicial 

Review of Non-Enforcement Decisions ............................................3

II. The FEC Systematically Fails to Administer and Enforce 

Federal Campaign Finance Laws ....................................................6

III. Insulating Statements of Reasons from Congressionally 

Mandated Judicial Review Exacerbates the Problem of FEC 

Dysfunction ....................................................................................10

CONCLUSION ........................................................................................14

CERTIFICATE OF COMPLIANCE........................................................15

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TABLE OF AUTHORITIES

CASES

CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016).........................................................5

CREW v. FEC, 

299 F. Supp. 3d 83 (D.D.C. 2018).........................................................5

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018), 

aff’d, 971 F.3d 340 (D.C. Cir. 2020)......................................................5

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018)......................................................... 5, 10

CREW v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019).............................................................4

DCCC v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987)....................................................... 5, 11

FEC v. Akins, 

524 U.S. 11 (1998)........................................................................... 5, 12

SpeechNow.org v. FEC., 

599 F.3d 686 (D.C. Cir. 2010)...............................................................8

STATUTES

52 U.S.C. § 30106 ......................................................................................4

52 U.S.C. § 30107 ......................................................................................4

52 U.S. C. § 30109 ........................................................................... 4, 5, 12

OTHER AUTHORITIES

16 C.F.R. § 2.1 (2000) ................................................................................5

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Adam Wollner, 10 Ways Super PACs and Campaigns Coordinate, 

Even Though They’re Not Allowed To, Atlantic (Sept. 27, 2015), 

https://www.theatlantic.com/politics/archive/2015/09/10-wayssuper-pacs-and-campaigns-coordinate-even-though-theyre-notallowed-to/436866/ ................................................................................8

Brent Ferguson, Candidates and Super PACs: the New Model in 

2016, Brennan Ctr. for Just. 2–4 (2015), 

https://www.brennancenter.org/sites/default/files/2019-

08/Report_Super_PACs_2016.pdf.........................................................8

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

Ctr. for Just., 1 (2016), 

https://www.brennancenter.org/sites/default/files/2019-

08/Report_Fixing_FEC.pdf................................................... 3, 7, 10, 14

EEOC, Regional Attorneys’ Manual, pt. 2, § 3(B) (2005).........................5

FEC, Certification for MUR 6402 (American Future Fund) (Nov. 

18, 2014) 

https://www.fec.gov/files/legal/murs/6402/14044364829.pdf .............10

FEC, Certification for MUR 6880 (Carolina Rising) (Oct. 18, 2016) 

https://www.fec.gov/files/legal/murs/6880/16044402299.pdf .............10

FEC, Responses to Questions from the Committee on House 

Administration 20 (2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf...................8

Federal Election Campaign Act Amendments, 1976, Subcomm. on 

Privileges and Elections of the Comm. on Rules and 

Administration (Feb. 18, 1976), Statement of Pres. Ford at 133 ........3

Federal Election Campaign Act Amendments, 1976: Hearing on S. 

2911, S. 2911 – Amdt. No. 1396, S. 2912, S. 2918, S. 2953, and 

S. 2987 Before the Subcomm. On Privileges and Elections of the 

S. Comm. On Rules and Admin., 94th Cong. 69 (1976) 

(statement of Sen. Hugh Scott, Member, S. Comm. on Rules 

and Admin.) ..........................................................................................3

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Independent Expenditures and Electioneering Communications by 

Corporations and Labor Organizations, 79 Fed. Reg. 62 (Oct. 

21, 2014)..............................................................................................10

Internet Communications, 71 Fed. Reg. 18 (Apr. 12, 2006)............. 10, 11

Karen L. Shanton, Cong. Rsch. Serv., IF10981, The U.S. Election 

Assistance Commission: An Overview 1 (2019)....................................3

Marshall J. Breger & Gary J. Edles, Established by Practice: The 

Theory and Operation of Independent Federal Agencies, 52 

Admin. L. Rev. 1111 (2000) ..................................................................3

Matea Gold, FEC Engulfed in Power Struggle Over Staff 

Independence, Wash. Post (July 13, 2013), 

https://www.washingtonpost.com/politics/fec-engulfed-in-powerstruggle-over-staff-independence/2013/07/13/72134cae-e8d5-

11e2-a301-ea5a8116d211_story.html...................................................7

MUR 6485 (W Spann LLC et al.), https://bit.ly/3AdCtSn ........................7

MUR 6661 (Robert E. Murray et al.), https://bit.ly/2SDjikd ....................7

MUR 6880 (Carolina Rising), https://bit.ly/3qyir0J .................................7

MUR 7313, 7319, and 7379 (Michael Cohen et al.), 

https://bit.ly/2UdxtwR ..........................................................................7

Nihal Krishan, Elections Commission Chief Uses the ‘Nuclear 

Option’ to Rescue the Agency from Gridlock, Mother Jones (Feb. 

20, 2019), 

https://www.motherjones.com/politics/2019/02/electionscommission-chief-uses-the-nuclear-option-to-rescue-the-agencyfrom-gridlock/......................................................................................12

Norman Silber, Foreign Corruption of the Political Process 

Through Social Welfare Organizations, 114 Nw. U. L. Rev. 

Online 104 (2019)................................................................................10

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Off. 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 9 (Feb. 2017), 

https://shpr.legislature.ca.gov/sites/shpr.legislature.ca.gov/files/

Ravel%20-%20FEC%20Dysfunction.pdf ..............................................7

Rachael Marcus & John Dunbar, Rules against Coordination 

Between Super PACs, Candidates Tough to Enforce, Ctr. for 

Pub. Integrity (Jan. 13, 2012), 

https://publicintegrity.org/politics/rules-against-coordinationbetween-super-pacs-candidates-tough-to-enforce/...............................8

SEC, Enforcement Manual, § 2.3.1 (2017)................................................5

Shane Goldmacher, Democrats’ Improbable New F.E.C. Strategy: 

More Deadlock than Ever, N.Y. Times (June 8, 2021), 

https://www.nytimes.com/2021/06/08/us/politics/fec-democratsrepublicans.html.................................................................................12

Soo Rin Kim, FEC Challenged Again to Find Coordination in 

Current Campaigns, Huffington Post (Oct. 7, 2016), 

https://www.huffpost.com/entry/fec-challenged-again-tof_b_12386356 .................................................................................. 8, 11

Trevor Potter & Bryson Morgan, The History of Undisclosed 

Spending in U.S. Elections and How 2020 Became the ‘Dark 

Money’ Election, 27 Notre Dame J. L. Ethics & Pub. Pol’y 383 

(2013)...................................................................................................10

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INTEREST OF AMICUS CURIAE

The Brennan Center for Justice at New York University School of 

Law (“Brennan Center”) is a not-for-profit, non-partisan law and public 

policy institute that focuses on fundamental issues of democracy and 

justice.2 Through the Election Reform Program, the Brennan Center 

studies the systems and structures of election administration and 

advances solutions to ensure these systems can properly carry out their 

responsibilities. This work includes documenting how partisan gridlock 

has increasingly prevented the FEC from fulfilling its duty to enforce 

federal campaign finance laws, as well as work with state and local 

election officials across the country on various campaign finance and 

election administration issues.

SUMMARY OF ARGUMENT

The petition for rehearing en banc should be granted. The Panel 

decision allows for easy circumvention of judicial review in cases where 

the Federal Election Commission (“FEC” or the “Commission”) has 

failed to enforce campaign finance laws, contravening the text of the 

Federal Election Campaign Act (“FECA”) and governing Supreme Court 

 

2 This brief does not purport to convey the position, if any, of the 

New York University School of Law.

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precedents. See generally Petition for Rehearing En Banc, CREW v. 

FEC, No. 19-5161 (D.C. Cir. June 23, 2021) (hereinafter “Petition”). 

When it created the FEC, Congress provided for expanded judicial 

review precisely because it recognized the evenly divided agency’s 

unique vulnerability to political manipulation. Today what Congress 

feared has come to pass: because of partisan stalemate, the FEC 

systematically fails to enforce campaign finance laws or perform many 

of its other statutory functions. The Panel’s decision abnegating 

judicial review has made an already bad situation significantly worse, 

by further weakening the judicial check on commissioners’ failure to 

enforce the law, encouraging escalating procedural gamesmanship on 

the part of both Republican- and Democratic-appointed commissioners, 

and, over the long term, sowing ever greater confusion on the part of 

regulated actors and the broader public. This Court cannot fix the 

FEC’s many problems, but it can and should undo its own error 

exacerbating them.

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ARGUMENT

I. The FEC’s Unique Structure Necessitates Robust Judicial 

Review of Non-Enforcement Decisions

Congress intended the FEC to be “an active watchdog” in ensuring 

“[t]he restoration of public confidence in the election process.” Federal 

Election Campaign Act Amendments, 1976: Hearing on S. 2911, S. 2911 

– Amdt. No. 1396, S. 2912, S. 2918, S. 2953, and S. 2987 Before the 

Subcomm. On Privileges and Elections of the S. Comm. On Rules and 

Admin., 94th Cong. 69 (1976) (statement of Sen. Hugh Scott, Member, 

S. Comm. on Rules and Admin.); see also Federal Election Campaign 

Act Amendments, 1976, Subcomm. on Privileges and Elections of the 

Comm. on Rules and Administration (Feb. 18, 1976), Statement of Pres. 

Ford at 133 (“If [the FEC] becomes an empty shell, public confidence in 

our political process will be further eroded and the door will be opened 

to possible abuses in the coming elections”). Recognizing that the 

agency could become a political weapon, however, Congress created a 

structure virtually unique among federal agencies: the FEC is evenly

divided, with no more than half its seats held by either major party.3 

 

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

Ctr. for Just., 1 (2016) (hereinafter “Brennan Report”), 

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These partisan commissioners exert greater authority than 

commissioners in comparable bodies. For example, while nonpartisan 

career staff at most agencies have discretion to undertake initial 

investigations into potential violations,4 FEC staff cannot conduct even 

a preliminary investigation without a formal Commission vote finding 

“reason to believe” a violation occurred. 52 U.S.C. §§ 30106(c), 30107(a), 

30109(a).

There is obvious tension between this structure and the FEC’s 

mission to protect the integrity of our political process. See CREW v. 

 

https://www.brennancenter.org/sites/default/files/2019-

08/Report_Fixing_FEC.pdf; Marshall J. Breger & Gary J. Edles, 

Established by Practice: The Theory and Operation of Independent 

Federal Agencies, 52 Admin. L. Rev. 1111, 1137 (2000) (“[Multimember 

agencies] usually have an odd number of members, with no more than a 

bare majority from the same political party.”). One other federal 

agency, the Election Assistance Commission (EAC), is similarly 

organized, but its role is largely advisory. Karen L. Shanton, Cong. 

Rsch. Serv., IF10981, The U.S. Election Assistance Commission: An 

Overview 1 (2019).

4 See, e.g., SEC, Enforcement Manual, § 2.3.1 (2017) (encouraging 

staff to “use their discretion and judgment in making the preliminary 

determination of whether it is appropriate to open a [Matter Under 

Inquiry]”); 16 C.F.R. § 2.1 (2000) (delegating limited authority to 

initiate investigations to Directors, Deputy Directors, and Associate 

Directors of FTC Bureaus and regional offices); EEOC, Regional 

Attorneys’ Manual, pt. 2, § 3(B) (2005) (delegating limited authority to 

Regional Attorneys to file and settle suits brought under certain antidiscrimination statutes).

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FEC, 923 F.3d 1141, 1144 (D.C. Cir. 2019) (Pillard, J., dissenting from 

denial of rehearing en banc) (“Congress acknowledged that the FEC’s 

politically balanced composition ... created a risk of political deadlock 

and non-enforcement of the law.”). One way Congress sought to resolve

this tension was by granting courts an expanded role in ensuring that 

the FEC diligently enforces the law, including the unusual power to 

review dismissals of administrative complaints. See 52 U.S.C. 

§ 30109(a)(8)(A) & (C); FEC v. Akins, 524 U.S. 11, 26 (1998) (Congress 

intended to “alter tradition” and subject the FEC to higher judicial 

scrutiny than other agencies). This grant of judicial authority “reflect[s] 

Congress’s judgment that judicial review is required, in part, ‘to assure 

... that the Commission does not shirk its responsibility’ to pass on the 

merits of complaints.” CREW v. FEC, 892 F.3d 434, 451-52 (D.C. Cir. 

2018) (Pillard, J., dissenting) (“CHGO”) (quoting DCCC v. FEC, 831 

F.2d 1131, 1134 (D.C. Cir. 1987) (other quotations omitted)). Courts 

have frequently exercised this authority to correct the Commission’s 

legal errors and, more recently, those of controlling commissioners who 

blocked enforcement in deadlocked votes.5 

 

5 See, e.g., CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018), aff’d, 

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II. The FEC Systematically Fails to Administer and Enforce 

Federal Campaign Finance Laws

As partisan polarization over campaign finance and other election 

law issues has intensified, the non-enforcement of federal campaign 

finance laws feared by Congress has become acute.6 Deadlocks were 

relatively rare prior to 2008; in 2006, for instance, the Commission 

deadlocked in approximately 4.5 percent of cases.7 After a new slate of 

Republican-appointed commissioners more firmly opposed to campaign 

finance regulation took office in 2008, however, the rate of partisan 

deadlocks soared.8 These commissioners have generally taken the 

position that a preliminary vote finding “reason to believe” a violation 

occurred is required before FEC staff can even review basic public 

materials, such as news stories, or gather information through routine, 

 

971 F.3d 340 (D.C. Cir. 2020); CREW v. FEC, 299 F. Supp. 3d 83, 93 

(D.D.C. 2018); CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016). 

6 Brennan Report at 3.

7 See Off. 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 9 (Feb. 2017), 

https://shpr.legislature.ca.gov/sites/shpr.legislature.ca.gov/files/Ravel%2

0-%20FEC%20Dysfunction.pdf. 

8 Id. at 8. Before deadlocking, most high-profile cases languish at 

the FEC for years. Id. at 1; Brennan Report, at 3-4.

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informal contacts with other law enforcement agencies.9 Their 

disagreements with Democratic-appointed colleagues have paralyzed 

the FEC’s ability to investigate most cases of significance, including 

matters where evidence of legal violations already exists in the public 

record.10

In total, the Commission deadlocked on at least one vote in over 

half of the enforcement matters it considered between 2012 and the first 

 

9 See Matea Gold, FEC Engulfed in Power Struggle Over Staff 

Independence, Wash. Post (July 13, 2013), 

https://www.washingtonpost.com/politics/fec-engulfed-in-powerstruggle-over-staff-independence/2013/07/13/72134cae-e8d5-11e2-a301-

ea5a8116d211_story.html.

10 Brennan Report, supra, at 4; see, e.g., MUR 7313, 7319, and 7379 

(Michael Cohen et al.), https://bit.ly/2UdxtwR (deadlocked on 

investigating former President Donald Trump and the Trump 

Organization despite testimony from Trump’s former lawyer, Michael 

Cohen, about their involvement in conduct that led to Cohen himself 

being convicted of criminal campaign finance violations); MUR 6661 

(Robert E. Murray et al.), https://bit.ly/2SDjikd (deadlocked on 

investigating alleged coercion of campaign contributions despite 

evidence of coercive solicitation practices); MUR 6485 (W Spann LLC et 

al.), https://bit.ly/3AdCtSn (deadlocked on investigating complaint of 

LLCs to evade disclosure rules despite one contributor admitting he 

created an LLC solely to circumvent those rules); MUR 6880 (Carolina 

Rising), https://bit.ly/3qyir0J (deadlocked on investigating social welfare 

organization for failure to register as a political committee despite 

organization stating on live television that it spent a majority of its 

funds to elect a federal candidate). 

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quarter of 2019; typically the votes where it achieves consensus involve 

minor violations, housekeeping matters, or frivolous complaints.11

Entire areas of campaign finance law are now unenforced because 

of this gridlock—most notably rules limiting coordination between 

candidates and outside groups such as super PACs that can raise 

unlimited funds so long as their activities are “independent” of the 

candidate. See SpeechNow.org v. FEC., 599 F.3d 686, 693-94 (D.C. Cir. 

2010) (en banc). Despite widespread disregard for independence 

requirements,12 between 2010 and 2019 the Commission voted to 

investigate only one minor case, which it ultimately decided not to 

pursue.13 As the present case and others show, the Commission has 

 

11 See FEC, Responses to Questions from the Committee on House 

Administration 20 (2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf; Brennan 

Report, at 3.

12 See Brent Ferguson, Candidates and Super PACs: the New Model 

in 2016, Brennan Ctr. for Just. 2-4 (2015), 

https://www.brennancenter.org/sites/default/files/2019-

08/Report_Super_PACs_2016.pdf; Adam Wollner, 10 Ways Super PACs 

and Campaigns Coordinate, Even Though They’re Not Allowed To, 

Atlantic (Sept. 27, 2015), 

https://www.theatlantic.com/politics/archive/2015/09/10-ways-superpacs-and-campaigns-coordinate-even-though-theyre-not-allowedto/436866/. 

13 See Responses to Questions from the Committee on House 

Administration, supra, at 24-25; Rachael Marcus & John Dunbar, Rules 

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also largely failed to enforce the requirement that groups whose “major 

purpose” is to influence elections register as political committees, which 

would require them to disclose their contributors.14 This persistent 

deadlock on registration and reporting requirements has helped to 

facilitate the flood of “dark money” from undisclosed donors (including 

potentially prohibited foreign sources) in federal elections.15

The Commission’s rulemaking function has also become 

essentially dormant in the last decade because of partisan gridlock. It 

took almost five years for the Commission to delete two regulations 

 

against Coordination Between Super PACs, Candidates Tough to 

Enforce, Ctr. for Pub. Integrity (Jan. 13, 2012), 

https://publicintegrity.org/politics/rules-against-coordination-betweensuper-pacs-candidates-tough-to-enforce/; Soo Rin Kim, FEC Challenged 

Again to Find Coordination in Current Campaigns, Huffington Post 

(Oct. 7, 2016), https://www.huffpost.com/entry/fec-challenged-again-tof_b_12386356 (describes FEC’s failures to enforce rules limiting 

coordination).

14 See, e.g., FEC, Certification for MUR 6880 (Carolina Rising) (Oct. 

18, 2016) https://www.fec.gov/files/legal/murs/6880/16044402299.pdf; 

see also FEC, Certification for MUR 6402 (American Future Fund) 

(Nov. 18, 2014) 

https://www.fec.gov/files/legal/murs/6402/14044364829.pdf; see also 52 

U.S.C. § 30104.

15 See Trevor Potter & Bryson Morgan, The History of Undisclosed 

Spending in U.S. Elections and How 2020 Became the ‘Dark Money’ 

Election, 27 Notre Dame J. L. Ethics & Pub. Pol’y 383, 387 (2013); 

Norman I. Silber, Foreign Corruption of the Political Process Through 

Social Welfare Organizations, 114 Nw. U. L. Rev. Online 104, 105-06 

n.2 (2019).

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invalidated by Citizens United, and FEC regulations still make no 

mention of super PACs. See Independent Expenditures and 

Electioneering Communications by Corporations and Labor 

Organizations, 79 Fed. Reg. 62, 797 (Oct. 21, 2014) (revising 11 C.F.R. 

§§ 104, 114). The Commission has also failed to respond to 

fundamental political and technological changes. See Internet 

Communications, 71 Fed. Reg. 18, 589 (Apr. 12, 2006) (rules governing 

internet ads predate the rise of social media). And it increasingly fails 

to issue even routine guidance to candidates and other political actors 

through its advisory opinion process, for which the rate of deadlocks 

increased more than fivefold between 2008 and 2017.16

III. Insulating Statements of Reasons from Congressionally 

Mandated Judicial Review Exacerbates the Problem of 

FEC Dysfunction

The Panel’s decision expanding on the erroneous ruling in CHGO

has exacerbated dysfunction at the FEC. The decision further weakens 

the judicial check Congress intended to place on commissioners’ 

arbitrary refusal to enforce the law, encourages escalating procedural 

gamesmanship on the part of commissioners themselves, and makes it 

 

16 Brennan Report at 5. 

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even harder for regulated actors and the broader public to understand 

the law.

As Judge Millett explained, under the Panel’s decision, three 

commissioners may now stymie any judicial review of an FEC nonenforcement decision by cursorily discussing “prosecutorial discretion” 

in their statement of reasons, no matter how erroneous their other 

stated reasons for blocking enforcement. See Dissent at 19.

17 This 

elevation of “prosecutorial discretion” to a “get out of judicial review free 

card” thwarts enforcement of the law even in cases involving clear-cut 

violations, negating any incentive for commissioners to even attempt to 

conform their reasoning to governing law. Id. at 1. Such a failure to 

enforce valid campaign finance laws not only allows the risk of quid pro 

quo corruption to increase,18 but also directly harms voters by depriving 

them of campaign disclosures to which they are legally entitled. See 

Citizens United, 558 U.S. at 371 (disclosure “enables the electorate to 

make informed decisions and give proper weight to different speakers 

 

17 In effect, the Panel’s holding negates the purpose of a Statement 

of Reasons, which this Court intended to facilitate—not prevent—

judicial oversight of Commission dismissals. See DCCC v. FEC, 831 

F.2d 1131, 1132 (D.C. Cir. 1987). 

18 See Soo Rin Kim, supra.

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and messages.”); Akins, 524 U.S. at 20 (discussing Congressional intent 

“to protect voters” who benefit from campaign disclosures through the 

judicial review provision). 

Ironically, the Panel’s extreme deference to one partisan bloc of 

FEC commissioners actually encourages procedural gamesmanship on 

both sides. Even as Republican-appointed commissioners seek to shield 

their dismissal decisions with cursory invocations of prosecutorial 

discretion, Democratic-appointed commissioners have adopted the 

practice of holding enforcement matters open indefinitely and then 

refusing to authorize Commission lawyers to defend against the ensuing 

private lawsuits challenging the Commission’s delay—resulting in 

default judgments that allow complainants themselves to sue alleged 

violators. See 52 U.S.C. §30109(a)(8)(A), (C). In response to Republican 

protests, Democratic commissioners have responded that this is the 

only way to obtain enforcement of the law.19

 

19 See Nihal Krishan, Elections Commission Chief Uses the ‘Nuclear 

Option’ to Rescue the Agency from Gridlock, Mother Jones (Feb. 20, 

2019), https://www.motherjones.com/politics/2019/02/electionscommission-chief-uses-the-nuclear-option-to-rescue-the-agency-fromgridlock/; Shane Goldmacher, Democrats’ Improbable New F.E.C. 

Strategy: More Deadlock than Ever, N.Y. Times (June 8, 2021), 

USCA Case #19-5161 Document #1904753 Filed: 07/01/2021 Page 20 of 23
13

The Panel’s decisions also make it even harder for candidates, 

parties, and other participants in the political process to understand 

their legal obligations under laws that may impact their 

constitutionally protected speech. The breakdown of the FEC’s 

regulatory processes already has sown confusion among regulated 

actors.20 Dueling statements from commissioners advancing divergent 

legal theories in enforcement cases, while having no legal force, are 

likely to further mislead members of the regulated community and the 

broader public. While federal courts cannot fully take on the role of a 

functional regulator, by shirking judicial review even in cases where it 

is obviously warranted they exacerbate the risk of confusion resulting 

from the Commission’s partisan stalemate.

 

https://www.nytimes.com/2021/06/08/us/politics/fec-democratsrepublicans.html.

20 Brennan Report at 2, 5. 

USCA Case #19-5161 Document #1904753 Filed: 07/01/2021 Page 21 of 23
14

CONCLUSION

For the foregoing reasons, Amicus urges the Court to grant en 

banc review.

Gary W. Kubek

Harold W. Williford

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

gwkubek@debevoise.com

hwwilliford@debevoise.com

Tara P. Ganapathy

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Avenue NW

Suite 500

Washington, DC 20004

(202) 383-8000

tganapathy@debevoise.com

/s/ Daniel I. Weiner

Daniel I. Weiner 

 Counsel of Record

BRENNAN CENTER FOR JUSTICE AT NYU

SCHOOL OF LAW

1140 Connecticut Avenue NW, Suite 

1150 Washington, D.C. 20036

(646) 292-8343

weinerd@brennan.law.nyu.edu

Derek Tisler

BRENNAN CENTER FOR JUSTICE AT NYU

SCHOOL OF LAW

120 Broadway, Suite 1750

New York, NY 10271

(646) 292-8378

tislerd@brennan.law.nyu.edu

June 30, 2021 Counsel to Amicus Curiae

USCA Case #19-5161 Document #1904753 Filed: 07/01/2021 Page 22 of 23
15

CERTIFICATE OF COMPLIANCE

This document complies with the word limit of Fed. R. App. P. 

29(b)(4) because, excluding the parts of the document exempted by Fed. 

R. App. P. 32(f), the document contains 2,592 words. 

This document complies with the typeface requirements of Fed. R. 

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

32(a)(6) because this document has been prepared in a proportionally 

spaced typeface using Microsoft Office Word 2010 in Century 

Schoolbook 14-point font. 

/s/ Daniel I. Weiner

Daniel I. Weiner 

Counsel to Amicus Curiae

June 30, 2021

USCA Case #19-5161 Document #1904753 Filed: 07/01/2021 Page 23 of 23