ORAL ARGUMENT SCHEDULED FOR APRIL 26, 2023

No. 22-5277

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

END CITIZENS UNITED PAC,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

NEW REPUBLICAN PAC,

Intervenor-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 1:21-cv-2128-RJL

Before the Honorable Richard J. Leon

APPELLANT’S REPLY BRIEF

Adav Noti 

Kevin P. Hancock

Alexandra Copper

Allison Walter

CAMPAIGN LEGAL CENTER ACTION 

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

khancock@campaignlegalcenter.org

Counsel for Appellant

USCA Case #22-5277 Document #1990733 Filed: 03/17/2023 Page 1 of 30
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF ABBREVIATIONS.......................................................................v

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

ARGUMENT.............................................................................................................4

I. New Republican Fails to Rebut End Citizens United’s Showing that the 

District Court Had Subject-Matter Jurisdiction to Review the FEC’s 

Dismissal of MUR 7370 ..................................................................................4

A. New Republican Does Not Dispute that Reviewability Under FECA 

Is Not a Jurisdictional Issue ......................................................................5

B. New Republican Has Failed to Show that the Commission’s 

Dismissal of MUR 7370 Is Not Reviewable.............................................7

1. New Republican Overstates the Holdings in Commission on Hope

and New Models ....................................................................................8

2. New Republican Mischaracterizes the Statement of Reasons, 

Which Is Reviewable ..........................................................................11

3. New Republican Has Failed to Show that Commission on Hope

and New Models Are Consistent with Supreme Court and D.C. 

Circuit Precedent .................................................................................15

II. New Republican Fails to Rebut End Citizens United’s Showing that the

FEC’s Dismissal of MUR 7496 Was Contrary to Law.................................18

CONCLUSION....................................................................................................... 23

CERTIFICATE OF COMPLIANCE...................................................................... 24

CERTIFICATE OF SERVICE ............................................................................... 25

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TABLE OF AUTHORITIES

Cases Pages

Califano v. Sanders, 430 U.S. 99 (1977).................................................................. 6

Campaign Legal Center v. FEC, No. 19-2336 (JEB), --- F. Supp. 3d ----,

2022 WL 17496220 (D.D.C. Dec. 8, 2022) .................................................. 2, 18

Campaign Legal Center & Democracy 21 v. FEC, 952 F.3d 352

(D.C. Cir. 2020) (per curiam) (“Democracy 21”) ..................................... 5, 7, 16

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995).............................. 16

Citizens for Responsibility & Ethics in Washington v. FEC, 892 F.3d 434

(D.C. Cir. 2018) (“Commission on Hope”) .............................1, 2, 4, 8-11, 15-17

Citizens for Responsibility & Ethics in Washington v. FEC, 923 F.3d 1141

(D.C. Cir. 2019)................................................................................................. 16

Citizens for Responsibility & Ethics in Washington v. FEC, 993 F.3d 880

(D.C. Cir. 2021) (“New Models”)........................................ 1, 2, 4-5, 7-11, 15-17

Citizens for Responsibility & Ethics in Washington v. FEC, 55 F.4th 918

(D.C. Cir. 2022)................................................................................................8-9

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988).................................. 13, 22

Democratic Congressional Campaign Committee v. FEC, 831 F.2d 1131

(D.C. Cir. 1987)................................................................................................. 16

Doe v. FEC, 920 F.3d 866 (D.C. Cir. 2019)............................................................. 4

FEC v. Akins, 524 U.S. 11 (1998)..................................................................... 16, 17

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

Motor Vehicle Manufacturers Association of the U.S. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29 (1983) ................................................ 20

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ..................................................... 16

Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009)................................................. 6

People for the Ethical Treatment of Animals v. U.S. Department of Agriculture,

797 F.3d 1087 (D.C. Cir. 2015)........................................................................... 5

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ..................................... 6, 16

Trudeau v. Federal Trade Commission, 456 F.3d 178 (D.C. Cir. 2006) ..................6

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Statutes

5 U.S.C. § 701(a)(2)........................................................................................ 5, 6, 17

28 U.S.C. § 1331....................................................................................................... 6

52 U.S.C. § 30109(a)(8).......................................................................................... 13

52 U.S.C. § 30109(a)(8)(A)...................................................................................... 7

52 U.S.C. § 30109(a)(8)(C) ...................................................................................... 7

Regulatory Authorities

11 C.F.R. § 100.72(b) ............................................................................................. 15

11 C.F.R. § 100.72(b)(2)......................................................................................... 15

11 C.F.R. § 100.131(b) ........................................................................................... 15

Rules

Fed. R. Civ. P. 12(h)(1)............................................................................................. 7

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GLOSSARY OF ABBREVIATIONS

APA Administrative Procedure Act

FEC Federal Election Commission

FECA Federal Election Campaign Act

MUR Matter Under Review

PAC Political Committee

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SUMMARY OF ARGUMENT

New Republican PAC (“New Republican”) fails to rebut End Citizens United 

PAC’s (“End Citizens United”) showing that the district court erred in upholding the 

Federal Election Commission’s(“FEC” or “Commission”) dismissal of End Citizens 

United’s two administrative complaints. The credible allegations of those 

complaints establish reason to believe that U.S. Senator Rick Scott, his campaign, 

and New Republican violated federal campaign finance law.

First, New Republican fails to rebut End Citizen United’s showing that the 

district court had subject-matter jurisdiction to review the FEC’s dismissal of Matter 

Under Review (“MUR”) 7370—concerning End Citizens United’s candidacy-filing, 

organization-filing, nondisclosure, and soft-money claims. New Republican does 

not dispute End Citizens United’s showing that reviewability is not a jurisdictional 

issue. And New Republican fails to refute End Citizens United’s showing that the 

FEC’s dismissal of MUR 7370 is reviewable. New Republican’s claims to the 

contrary depend on an overstatement of this Court’s holdings in Citizens for 

Responsibility & Ethics in Washington [(“CREW”)] v. FEC, 892 F.3d 434 (D.C. Cir. 

2018) (hereinafter “Commission on Hope”) and CREW v. FEC, 993 F.3d 880 (D.C. 

Cir. 2021) (hereinafter “New Models”), as well as a misinterpretation of the 

controlling Commissioners’ Statement of Reasons (“Statement”). While a dismissal 

grounded on an independent discretionary rationale may be unreviewable, a 

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dismissal based on the Commissioners’ interpretation of FECA—like that at issue 

here—is decidedly not. Even if Commission on Hope and New Models preclude 

review of the Statement, New Republican has failed to show that this Court should 

follow those rulings, given that they are inconsistent with the established law of the 

Supreme Court and this Circuit.

Second, New Republican fails to rebut that the FEC’s dismissal of MUR 

7496—regarding the coordination claims—was contrary to law, largely ignoring 

End Citizens United’s arguments and much of the district court’s own reasoning.

New Republican inaccurately suggests that End Citizens United failed to produce 

“actual evidence” to support its claims, Intervenor-Appellee’s Br. (hereinafter 

“Opp’n”) at 23; but New Republican ignores the low bar set by the applicable 

reason-to-believe standard, which requires only that allegations be sufficiently 

credible to warrant conducting an investigation, Campaign Legal Ctr. v. FEC, No. 

19-2336 (JEB), --- F. Supp. 3d ----, 2022 WL 17496220 at *8 (D.D.C. Dec. 8, 2022).

As End Citizens United has demonstrated, see, e.g., Appellant’s Br. (hereinafter 

“Br.”) at 35-38, its coordination claims, and the record evidence supporting them, 

were more than sufficient to clear this low bar. 

New Republican likewise erroneously suggests that the district court could 

have dispensed with the coordination claims based on the controlling 

Commissioners’ invocation of prosecutorial discretion. But the Statement’s 

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invocation of prosecutorial discretion, by its own clear language, does not apply to 

the coordination claims. See JA290-91. The district court thus found—correctly—

that it had jurisdiction over these claims. See JA108, 110.

New Republican’s primary argument is that the controlling Commissioners 

did not act contrary to law because they dismissed the coordination claims “for lack 

of evidence.” Opp’n at 31 (quoting JA290). But New Republican does not point to 

any analysis in the Statement of any evidence related to the coordination claims—

nor can it, as the Commissioners did not consider the merits of these claims. Instead, 

New Republican insists that the controlling Commissioners “explicitly considered” 

evidence that they did not, Opp’n at 30, while simultaneously ignoring the evidence 

the district court deemed “critical” to its analysis—as well as all of End Citizens 

United’s arguments about the evidentiary flaws with the district court’s decision, see 

Br. at 44-51. Finally, New Republican fails to engage meaningfully with the clear 

language in the Statement that does explain the controlling Commissioners’ faulty 

reasoning for dismissing the coordination claims. See JA282 n.2 (“Footnote 2”).

In sum, New Republican has failed to rebut End Citizens United’s showing 

that the district court erred in upholding the dismissal of End Citizens United’s

claims in MURs 7370 and 7496. Accordingly, this Court should reverse.

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ARGUMENT

I. New Republican Fails to Rebut End Citizens United’s Showing that the 

District Court Had Subject-Matter Jurisdiction to Review the FEC’s 

Dismissal of MUR 7370

New Republican fails to rebut End Citizens United’s explanation of the 

district court’s legal errors. At the outset, New Republican does not dispute that the

district court erred in finding that it lacked subject-matter jurisdiction over the 

dismissal1 of MUR 7370. Next, New Republican has failed to refute End Citizen 

United’s showing that the FEC’s dismissal is reviewable. Instead, New Republican 

misinterprets both this Court’s precedents and the controlling Commissioners’

Statement, which bases the FEC’s dismissal on legal interpretation that this Court 

has held is reviewable under FECA. Finally, New Republican fails to show that

Commission on Hope and New Models are consistent with prior, controlling rulings 

1 A point of clarification is in order regarding the Commission’s procedure for 

dismissing an administrative complaint. New Republican incorrectly suggests that a 

deadlocked reason-to-believe vote automatically results in dismissal and final 

agency action. See Opp’n at 5-6. Instead, even where the Commission has 

deadlocked on whether to find reason to believe, an FEC enforcement matter is not 

dismissed until a majority of the Commissioners have voted in favor of a distinct 

motion to close the enforcement file—as occurred in this case. Compare JA270-71

(reflecting that the FEC deadlocked 3-3 on whether to find “reason to believe” on 

May 20, 2021), with JA272-73 (reflecting that weeks later, on June 10, 2021, the 

FEC deadlocked on an additional motion before successfully “[c]los[ing] the file”

with a 5-1 vote). See, e.g., Doe v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019) 

(“When the Commission ended its investigation and closed the file, it ‘terminate[d] 

its proceedings’ within the meaning of 11 C.F.R. § 111.20(a).”).

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of the Supreme Court and this Circuit holding that FEC dismissals are subject to 

judicial review. 

A. New Republican Does Not Dispute that Reviewability Under FECA 

Is Not a Jurisdictional Issue 

New Republican does not attempt to rebut End Citizens United’s showing that 

the district court erred by finding that it lacked subject-matter jurisdiction as a result 

of the court’s conclusion that the FEC’s dismissal of MUR 7370 is unreviewable.

See Opp’n at 17 n.4. This Court has unequivocally stated that, under FECA,

“reviewability is not a jurisdictional issue.” Campaign Legal Ctr. & Democracy 21 

v. FEC, 952 F.3d 352, 357 (D.C. Cir. 2020) (per curiam) (hereinafter “Democracy 

21”) (citing People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 

F.3d 1087, 1097-98 (D.C. Cir. 2015)); see also, e.g., New Models, 993 F.3d at 895

(affirming grant of summary judgment to Commission—rather than dismissal for 

lack of subject-matter jurisdiction—where controlling commissioners’ invocation of 

prosecutorial discretion rendered FEC dismissal unreviewable).

Instead of defending the district court’s ruling, New Republican claims that 

“this Circuit couches non-reviewability both as jurisdictional, and as not.” Opp’n at 

17 n.4 (citations omitted). But that is incorrect. Democracy 21 is the latest in a long 

line of this Circuit’s precedents concluding that the unreviewability of agency action

under “Section 701(a)(2) of the APA is not . . . a jurisdictional bar.” People for the 

Ethical Treatment of Animals, 797 F.3d at 1097 (citation omitted); see also Califano 

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v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA does not afford an implied grant 

of subject-matter jurisdiction permitting federal judicial review of agency action.”); 

Oryszak v. Sullivan, 576 F.3d 522, 524 (D.C. Cir. 2009) (“[W]e conclude [that APA 

§ 701(a)(2)] is not a jurisdictional bar.”); Trudeau v. FTC, 456 F.3d 178, 185 (D.C.

Cir. 2006) (“[T]he APA neither confers nor restricts jurisdiction.”); Sierra Club v. 

Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“Applying Oryszak and Trudeau, we 

conclude that a complaint seeking review [under APA] § 701(a)(2), . . . should be 

dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 

12(b)(1).”).

Indeed, the lone case New Republican cites as allegedly supporting the 

proposition that non-reviewability is a jurisdictional issue, see Opp’n at 17 n.4 

(citing Oryszak, 576 F.3d 524), holds precisely the opposite. In Oryszak, this Court 

explained that a district court that dismissed an APA claim under Rule 12(b)(1) on 

the ground that the challenged decision was committed to agency discretion by law, 

“should [have] dismissed not for want of subject matter jurisdiction but for failure 

to state a claim.” 576 F.3d at 524. The Court agreed that the challenged decision was 

committed to agency discretion under APA § 701(a)(2), but clarified that the district 

court nevertheless had subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, 

which “‘confer[s] jurisdiction on federal courts to review agency action.’” Id. at 524-

25 (quoting Califano, 430 U.S. at 105).

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New Republican wrongly suggests that it does not matter whether the district 

court correctly treated reviewability as a jurisdictional issue. See Opp’n at 17 n.4. 

On the contrary, whether reviewability is jurisdictional has important implications—

for example, it affects whether reviewability can be waived, see Fed. R. Civ. P. 

12(h)(1), and whether a court can, in its discretion, reach the merits even where 

reviewability was raised, just as this Court did in Democracy 21, see 952 F.3d at 

356-57. The district court’s misstatement of the law, at odds with this Court’s prior 

holdings, would lead to erroneous and problematic results on all of these questions. 

B. New Republican Has Failed to Show that the Commission’s 

Dismissal of MUR 7370 Is Not Reviewable 

As End Citizens United explained in its opening brief, see Br. at 26-35, even 

if FECA reviewability were a jurisdictional issue, the district court nevertheless had 

jurisdiction because the FEC’s dismissal of MUR 7370 is reviewable. FECA 

contains “an unusual provision that allows a private party to challenge a 

nonenforcement decision of the [FEC] if it is ‘contrary to law.’ 52 U.S.C. 

§ 30109(a)(8)(A), (C).” New Models, 993 F.3d at 882. This Court has explained that 

the FEC’s decision to dismiss an administrative complaint is reviewable under this 

provision where that decision was made “on the basis of its interpretation of FECA.” 

Comm’n on Hope, 892 F.3d at 441 n.11; see also New Models, 993 F.3d at 884.

Here, the Commission’s dismissal is reviewable because, as the district court 

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acknowledged, the controlling Commissioners’ interpretation of FECA was the

basis for their alleged exercise of prosecutorial discretion. See JA109.

New Republican’s assertions to the contrary are incorrect because they are 

based on mischaracterizations of both this Court’s holdings in Commission on Hope

and New Models and the controlling Commissioners’ Statement.

1. New Republican Overstates the Holdings in Commission on 

Hope and New Models

New Republican’s claim that the Commission’s dismissal is unreviewable is 

based on an overstatement of this Court’s holdings in Commission on Hope and New 

Models. To be sure, as New Republican emphasizes repeatedly, see Opp’n at 2, 14, 

16, 25, a dismissal “based even in part on prosecutorial discretion is not reviewable”

where the exercise of discretion rests on prudential and discretionary considerations,

New Models, 993 F.3d at 882. But a dismissal allegedly based on prosecutorial 

discretion is reviewable where the purported exercise of discretion rests instead on 

the Commissioners’ interpretation of FECA. As End Citizens United has explained, 

Br. at 27-29, even a partial assertion of prosecutorial discretion must be offered as a 

“distinct ground[]” for dismissal that rests not on legal analysis, but “squarely on 

prudential and discretionary considerations” to shield a dismissal from judicial 

review. New Models, 993 F.3d at 884, 886. In contrast, where controlling 

Commissioners “reference their merits analysis as a ground for exercising 

prosecutorial discretion,” CREW v. FEC (“New Models II”), 55 F.4th 918, 920-21 

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(D.C. Cir. 2022) (Rao, J., concurring in denial of reh’g en banc), a dismissal is 

reviewable because, in that case, “the agency’s action [is] based entirely on its 

interpretation of the statute,” Comm’n on Hope, 892 F.3d at 441 n.11. 

In Commission on Hope, for example, the Court explained that an FEC 

dismissal “on the basis of [the Commission’s] interpretation of FECA . . . is subject 

to judicial review to determine whether it is ‘contrary to law.’” Id. at 441. In contrast, 

the dismissal in that case was unreviewable, the Court held, because the controlling 

Commissioners’ statement explained that they voted against moving forward with 

the matter not based on any legal interpretation, but because the “case did not warrant 

further use of Commission resources.” Id. at 438-39 (“The three naysayers on the 

Commission placed their judgment squarely on the ground of prosecutorial 

discretion.”).

Similarly, in New Models, the Court held that a Commission dismissal was 

unreviewable because the Statement of Reasons made clear that the controlling 

Commissioners exercised their discretion independently from their interpretation of 

the law. See New Models, 993 F.3d at 884. As the Court explained, “[t]he 

Commission’s decision to dismiss [the] complaint against New Models rested on 

two distinct grounds: the Commission’s interpretation of FECA and its ‘exercise of 

. . . prosecutorial discretion.’” Id. (emphasis added). The distinct invocation of 

prosecutorial discretion thus “rested squarely on prudential and discretionary 

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considerations relating to resource allocation and the likelihood of successful 

enforcement,” and not “legal analysis of FECA’s . . . requirements”—which were 

also offered by the Statement, but only “in addition” to the prudential and 

discretionary grounds. Id. at 886.

The language of both cases makes clear that New Republican overreaches in 

claiming that this Court has allowed the Commission to shield from judicial review 

a dismissal based entirely on interpretation of FECA with the simple expedient of 

labeling its legal analysis as “prosecutorial discretion.” Rather, Commission on Hope

and New Models recognize the distinction between dismissals independently based 

on prudential and discretionary reasons (even where some legal analysis is offered 

as an additional, distinct basis for dismissal), and those dismissals that are grounded 

in legal analysis itself. While New Republican objects that the rule set by 

Commission on Hope and New Models is “hopelessly unworkable,” Opp’n at 24, the 

alternative rule New Republican proposes—allowing the Commission to shield even 

its legal analysis from review—is irreconcilable with this Court’s precedents and 

would eviscerate FECA’s “contrary to law” judicial review provision. This Court 

should not accept New Republican’s invitation to extend its prior decisions to cases 

like this one, where the controlling Commissioners have wrapped their legal analysis 

in the garb of discretionary language to shield that analysis from review by this 

Court.

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2. New Republican Mischaracterizes the Statement of Reasons, 

Which Is Reviewable

The discretion-based dismissals in Commission on Hope and New Models are

distinguishable from the merits-based dismissal here. Indeed, rather than asserting 

any independent discretionary rationale, the controlling Commissioners in this case

expressly rooted their purported “discretion” in their interpretation of the law. See

Br. at 30-32.

New Republican nevertheless frames the controlling Commissioners’ legal 

interpretation as a mere “factor” in their decision to dismiss. See Opp’n at 17, 21. 

But this is a mischaracterization; each of the controlling Commissioners’

purportedly discretionary justifications for dismissal is premised upon their

erroneous legal conclusion that proof of an individual’s subjective intent to become 

a candidate is required to substantiate a violation of FECA’s candidacy-filing

requirement.

New Republican attempts to parse several “factors” out of this single basis for 

dismissal, but each one is an offshoot of the same legal conclusion. To begin, New 

Republican lists as separate “factors” the alleged “lack of evidence offered by End 

Citizens United” and the alleged existence of a “thin evidentiary reed.” Opp’n at 22-

23. Both “factors,” however, are expressly rooted in the controlling Commissioners’

claim that the law requires evidence of subjective intent. The controlling 

Commissioners assert the alleged lack of evidence at the same time they claim that 

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FECA requires evidence of Scott’s “subjective intent during this period,” which they 

insist “would have necessitated a wide-ranging, costly, and invasive investigation.” 

See JA290. Likewise, the controlling Commissioners cite the “thin evidentiary reed” 

in the same sentence they assert that a “lengthy and cumbersome investigation” 

would be required—an investigation that they assert would be lengthy and 

cumbersome because they would have “to probe [Scott’s] subjective intent.” See id.

New Republican similarly claims that the Statement bases the dismissal on 

other allegedly discretionary “factors,” including resource drain, backlog, and statute 

of limitations concerns. See Opp’n at 22-23. But the controlling Commissioners’

assessment of the resources needed to investigate and the time such an investigation 

would take relative to the backlog of other cases and the statute of limitations is 

directly tied to their legal assessment of the nature of evidence required. See Br. at 

31-32. The controlling Commissioners claim that FECA’s candidacy determination 

would require evidence of subjective intent to meet the legal standard, which in turn 

would allegedly require a “wide-ranging, costly, and invasive” investigation. See 

JA290. In this way, each of the alleged “prudential and discretionary 

considerations,” see Opp’n at 23, is grounded in the controlling Commissioners’

legal analysis. Their “discretionary” rationale, therefore, cannot be separated from 

their antecedent legal conclusion that FECA requires an inquiry into subjective 

intent. Whether FECA and Commission regulations require such an inquiry is 

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unquestionably a legal determination that is subject to “contrary to law” review 

under 52 U.S.C. § 30109(a)(8).

2

New Republican attempts to minimize the significance of the Statement’s

legal determination that FECA’s candidacy inquiry requires probing subjective 

intent by characterizing it as a mere “offhand reference” and a “remark.” Opp’n at 

23. But the importance of the Statement’s own reasoning cannot be minimized, as 

this Court has said it “is necessary to allow for meaningful judicial review of the 

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

(D.C. Cir. 1988). Moreover, a ruling by the district court that the controlling 

Commissioners’ stated view of FECA is “contrary to law” would not risk 

constituting an advisory opinion, as New Republican claims, see Opp’n at 23, 

because the Statement premises its alleged exercise of discretion on that legal 

determination without providing any independent non-legal ground for dismissal. 

Next, New Republican does not dispute End Citizen United’s showing that 

“the district court . . . erred when it concluded that the legal analysis undergirding 

the invocation of prosecutorial discretion must be ‘erroneous’ for the dismissal to be 

2 New Republican also points to the Statement’s stated concern about the 

“regulation of core constitutional protected activity,” Opp’n at 22, but this is also

premised on the controlling Commissioners’ incorrect legal determination that the 

law would have required probing Scott’s subjective intent, see JA290. In any event, 

the question of whether and to what extent the First Amendment may limit the FEC’s 

ability to investigate potential FECA violations is itself a legal question. 

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reviewable.” Br. at 32 (citing JA109). As End Citizens United has explained, an FEC 

dismissal is reviewable whenever that decision was made “on the basis of its 

interpretation of FECA,” Comm’n on Hope, 892 F.3d at 441 n.11, regardless of the 

subsequent merits determination of whether that interpretation was contrary to law,

see Br. at 32-33.

Nonetheless, if this Court determines that the FEC’s dismissal is reviewable, 

it should also reverse the district court’s erroneous conclusion that the law requires

the agency to probe subjective intent to determine candidacy, and hold that the 

agency’s dismissal on that basis was contrary to law. See Br. at 29-30. As End 

Citizens United has demonstrated, the controlling Commissioners’ legal conclusion 

that determining when an individual becomes a candidate requires probing

subjective intent is erroneous. See Br. at 29-33. In response, New Republican 

concedes that, when determining candidacy, “the FEC typically examines objective 

factors,” but notes that the objective factors that FEC regulations instruct the agency 

to examine can be indicia of a candidate’s subjective intent and that the agency has 

in previous cases examined a putative candidate’s statements indicating his or her 

state of mind. Opp’n at 21 n.7. If anything, such use of documented public statements 

and other objective facts only further demonstrates that the FEC’s candidacy 

determination is not based on an intrusive “probe” of the candidate’s subjective 

beliefs and plans. Neither the Statement nor New Republican identifies a single case 

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in which the FEC conducted such a probe. See Opp’n at 21 n.7 (citing MUR 5394 

(Thompson) (dismissing complaint that had only “referenced a number of newspaper 

articles including statements by Senator Thompson” as evidence of candidacy)). 

Illustrating the point, the FEC General Counsel’s recommendation to the 

Commission in this matter concluded that Scott became a candidate as early as 2017 

because his “objectively deliberate actions” indicated that “he undertook activities 

designed to amass funds that were to be spent on supporting his Senate candidacy 

after he declared such candidacy in April 2018.” JA221 (citing 11 C.F.R. 

§§ 100.72(b), 100.131(b)). Not only that, but the controlling Commissioners 

themselves acknowledge in their Statement that the agency’s candidacy regulations 

“are fairly intuitive and objective” and “provide there are indicia of candidacy when 

an ‘individual . . . undertakes activities designed to amass campaign funds that would 

be spent after he or she becomes a candidate.’” JA286-87 (quoting 11 C.F.R. 

§ 100.72(b)(2)). And yet their Statement nevertheless concludes it would be 

necessary to probe Scott’s subjective intent. JA290. That conclusion is fatally 

contrary to law.

3. New Republican Has Failed to Show that Commission on 

Hope and New Models Are Consistent with Supreme Court 

and D.C. Circuit Precedent 

Commission on Hope and New Models, properly applied, do not preclude 

review of the dismissal in this case, which is grounded in legal error. See Br. at 26-

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33; supra pp. 8-14. If, however, these cases are read to preclude judicial review here, 

then the Court should decline to follow them. See Br. at 33-35; Br. of Amicus Curiae

Citizens for Responsibility and Ethics in Washington in Supp’t of Pl.-Appellant 

(hereinafter “Amicus Curiae Br.”) at 10-17 (Feb. 1, 2023). Under the law of this 

Circuit, “when a decision of one panel is inconsistent with the decision of a prior 

panel, the norm is that the later decision, being in violation of that fixed law, cannot 

prevail.” Sierra Club, 648 F.3d at 854. As multiple Judges of this Court have 

expressed, both Commission on Hope and New Models are inconsistent with fixed 

law because they contravene the Supreme Court’s decision in FEC v. Akins, 524 

U.S. 11 (1998) and this Court’s decisions in Chamber of Commerce v. FEC, 69 F.3d 

600 (D.C. Cir. 1995), Democratic Congressional Campaign Committee v. FEC, 831 

F.2d 1131 (D.C. Cir. 1987) (hereinafter, “DCCC”), and Orloski v. FEC, 795 F.2d 

156 (D.C. Cir. 1986). See New Models, 993 F.3d at 900-01 (Millett, J., dissenting); 

Democracy 21, 952 F.3d at 363 (Edwards, J. concurring); CREW v. FEC, 923 F.3d 

1141, 1145 (D.C. Cir. 2019) (Pillard, J., dissenting from denial of reh’g en banc). 

In response, New Republican does not even attempt to claim that Commission 

on Hope and New Models are consistent with this Court’s rulings in Chamber of 

Commerce, DCCC, and Orloski. See Opp’n at 25-27.

New Republican asserts that Akins is distinguishable because it “had nothing 

to do with prosecutorial discretion.” Opp’n at 26. Not so. While holding that the 

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plaintiffs had standing, the Supreme Court in Akins rejected the “FEC[’s] argu[ment] 

that we should deny respondents standing because this case involves an agency’s 

decision not to undertake an enforcement action—an area generally not subject to 

judicial review.” Akins, 524 U.S. at 26. In response to the FEC’s argument about 

reviewability, the Court explained that, although “agency enforcement decisions 

‘ha[ve] traditionally been ‘committed to agency discretion’”—as reflected in APA

§ 701(a)(2) and Heckler v. Chaney, 470 U.S. 821 (1985)—with FECA, “[w]e deal 

here with a statute that explicitly indicates the contrary.” Id. Akins thus had much to 

say about the reviewability of the FEC’s prosecutorial discretion, and New 

Republican’s opinion that the Supreme Court “did not need to address” reviewability 

because the case involved standing is irrelevant. Opp’n at 26.

As Amicus Curiae explains in detail, see Amicus Curiae Br. at 12-14, Akins is 

contradicted by New Models’s subsequent claims that “FECA cannot alter the APA’s 

limitation on judicial review” and that “the [FEC’s] decision not to bring an 

administrative enforcement action is ‘committed to agency discretion by law’ and 

therefore unreviewable,” 993 F.3d at 888, 889 (citation omitted). Due to this conflict 

with existing Supreme Court precedent, and due to their undisputed conflict with 

this Circuit’s precedents, Commission on Hope and New Models should not be 

followed. 

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II. New Republican Fails to Rebut End Citizens United’s Showing that the 

FEC’s Dismissal of MUR 7496 Was Contrary to Law

New Republican fails to rebut End Citizens United’s showing that the FEC’s 

dismissal of MUR 7496—regarding the coordination claims—was contrary to law, 

largely ignoring End Citizens United’s arguments and much of the district court’s 

own reasoning. 

Instead, New Republican leans heavily on the deference owed to the FEC, see, 

e.g., Opp’n at 28—but that deference is not boundless. Indeed, it cannot rescue the 

controlling Commissioners’ flawed dismissal in light of the “low bar” set by the 

“reason to believe” standard governing the FEC’s decision. Campaign Legal Ctr., 

2022 WL 17496220 at *8. A finding of “reason to believe” does not trigger any 

penalties, but only initiates an FEC investigation of the administrative complaint’s 

allegations, during which the agency may collect evidence of potential wrongdoing 

to later support a separate finding that there is probable cause to believe a violation 

occurred. See Br. at 10. Accordingly, the “reason to believe” standard requires “only 

a credible allegation” of wrongdoing, and “does not require ‘conclusive evidence’

that a violation occurred or even ‘evidence supporting probable cause’ for finding a 

violation.” Campaign Legal Ctr., 2022 WL 17496220 at *8 (citation omitted). 

New Republican ignores this low bar set by the reason-to-believe standard 

and demands too much with its repeated and inaccurate suggestions that End 

Citizens United failed to produce “actual evidence that either New Republican or 

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Senator Scott had violated the Act.” Opp’n at 23; see also id. at 29-32. As End 

Citizens United has demonstrated, based on the pre-investigation evidence in the 

administrative record, End Citizens United’s coordination allegations are more than 

sufficiently “credible” to clear the low bar of “reason to believe” and warrant an 

investigation. See Br. at 35-52. The controlling Commissioners’ adverse decision is 

thus contrary to law.

New Republican is also wrong to suggest that “[t]he district court chose not 

to, but could have, granted summary judgment to New Republican PAC entirely 

based on the Commission’s invocation of prosecutorial discretion in the Statement 

of Reasons.” Opp’n at 28 n.11; see also id. at 32. As End Citizens United pointed 

out to the district court, see ECF No. 23 at 37, ECF No. 25 at 28-29, ECF No. 30 at 

8-10, the Statement’s invocation of prosecutorial discretion, by its own clear 

language, does not apply to the coordination claims in MUR 7496, see JA290-91 

(stating that “we . . . exercised our prosecutorial discretion regarding the allegations 

that Scott and his campaign committee failed to timely file candidacy and 

organization forms”). Accordingly, the district court correctly found that it had 

“jurisdiction over . . . M.U.R. 7496, because the FEC did not cite its prosecutorial 

discretion in dismissing [End Citizens United]’s complaint regarding that claim.” 

JA110; see also JA108 (explaining that “the FEC’s exercise of prosecutorial 

discretion as to one claim does not divest this Court’s review of a separate claim”).

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Turning to its primary argument, New Republican insists that the controlling 

Commissioners did not dismiss End Citizens United’s coordination claims based on 

the merits of its candidacy-filing or soft-money claims, but instead “unequivocally 

‘dismissed’ the coordination challenge ‘for lack of evidence.’” Opp’n at 31 (quoting 

JA290); see also id. at 29 (same, quoting JA290); id. at 30 (same, quoting JA290); 

id. at 30 n.13 (same). But besides an excerpt from the last sentence of the Statement, 

see JA290, New Republican does not point to any analysis of any evidence related 

to the coordination claims. Nor can it, as the controlling Commissioners did not 

engage with the record evidence to assess the merits of these claims at all—reason 

alone to find the dismissal contrary to law. See Motor Vehicle Mfrs. Ass’n of the U.S. 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

New Republican attempts to sidestep this problem by insisting, as the district 

court did, that the controlling Commissioners “explicitly considered” Ms. 

Hazelwood’s affidavit in dismissing the coordination claims. Opp’n at 30; see also 

id. at 31 (quoting JA111-12). But that is not true; as End Citizens United has pointed 

out, see Br. at 49-50; ECF No. 30 at 23, the Statement never connected Ms. 

Hazelwood’s affidavit to these allegations. New Republican does nothing to rebut 

this fact, save its conclusory statement that “the district court was correct” in its 

reasoning. Opp’n at 31; see also id. at 30 n.13. Indeed, New Republican avoids all

of End Citizens United’s arguments about Ms. Hazelwood’s affidavit, namely that 

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neither the General Counsel nor the controlling Commissioners credited it with 

respect to the coordination claims, Br. at 48-50, and that, regardless, the affidavit 

was flawed and deserved little weight, id. at 50-51.

New Republican likewise does not engage with the evidence the district court 

deemed “critical” to its analysis, JA110,—specifically the General Counsel’s 

recommendation to take no action at the time with respect to the coordination claims. 

And failing to even acknowledge that recommendation or the district court’s analysis 

of it, New Republican does not address, let alone refute, End Citizens United’s 

arguments that the district court fundamentally mischaracterized the very piece of 

evidence foundational to its decision. See Br. at 44-48.

Indeed, contrary to New Republican’s argument, the clear language of the 

Statement confirms that the controlling Commissioners dismissed the coordination 

claims not on the basis of any evidence, but on the faulty reasoning that they were 

“required to dismiss the remainder of the allegations against Scott, his authorized 

committee, and New Republican PAC” because “[a]ll of those allegations would 

have required, at a minimum, a threshold finding that Scott had failed to file a 

statement of candidacy at the appropriate time, or that New Republican had violated 

the soft money rules.” JA282 n.2 (citing Certification for MURs 7370 and 7496). 

New Republican never once mentions the language of Footnote 2, and instead 

derides End Citizens United’s “musings about footnotes,” Opp’n at 31, even though 

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the Statement (including its footnotes) provides the basis for judicial review, see 

Common Cause, 842 F.2d at 449. Nor does New Republican respond to End Citizens 

United’s arguments, see Br. at 41-44, as to how the district court misinterpreted 

Footnote 2 as “not refer[ring] to the coordination communication allegations,” 

JA112 (citing JA282 n.2) (emphasis in original). 

Instead, New Republican asserts only that, when “[p]laced in context, the 

better reading of” Footnote 2 is that “(1) based on its exercise of prosecutorial 

discretion, the Commission would not investigate Senator Scott’s history as New 

Republican’s chair, and (2) without an investigation into that time frame, the paltry 

evidentiary showing mustered by End Citizens United could not sustain a reason-tobelieve finding.” Opp’n at 31-32. But this argument too fails. First, while an 

investigation of Scott’s history as New Republican’s chair might well elicit 

information relevant to the coordination claims—as the General Counsel recognized, 

see JA232—those claims do not depend on any such investigation, as they concern 

conduct that occurred after Scott left New Republican. Second, New Republican’s 

insistence that End Citizens United’s “paltry evidentiary showing . . . could not 

sustain a reason-to-believe finding,” Opp’n at 32, distorts the “reason to believe” 

standard underlying the controlling Commissioners’ decision—which, again, New 

Republican never mentions. As End Citizens United has demonstrated, see, e.g., Br. 

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at 35-38, its allegations are more than sufficiently credible to warrant an 

investigation into the coordination claims. 

In sum, New Republican fails to rebut that the district court erred in upholding 

the FEC’s dismissal of the coordination claims, refusing to engage with most of End 

Citizens United’s arguments, or even to defend the district court’s decision on its 

own terms. Accordingly, the Court should reverse the district court’s dismissal of 

MUR 7496. 

CONCLUSION

For the foregoing reasons, End Citizens United respectfully requests that this 

Court reverse the district court’s dismissal of this case.

Dated: March 17, 2023 Respectfully submitted,

/s/ Kevin P. Hancock

Adav Noti

Kevin P. Hancock

Alexandra Copper

Allison Walter

CAMPAIGN LEGAL CENTER ACTION

1101 14th Street, NW, St. 400

Washington, D.C. 20005

(202) 736-2000

khancock@campaignlegalcenter.org

Counsel for Appellant

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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 5,358 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 

brief has been prepared using Microsoft Office Word 2016 in Times New Roman 

14-point font.

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CERTIFICATE OF SERVICE

I certify that on March 17, 2023, I electronically filed this brief with the Clerk 

of Court for the United States Court of Appeals for the District of Columbia Circuit 

using the appellate CM/ECF system, thereby serving all persons required to be 

served.

/s/ Kevin P. Hancock

Kevin P. Hancock

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