ORAL ARGUMENT NOT YET SCHEDULED 

No. 19-5161 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CITIZENS FOR RESPONSIBILITY & ETHICS 

IN WASHINGTON, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

November 26, 2019 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 1 of 71
i 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), defendant-appellee Federal Election 

Commission (“Commission” or “FEC”) hereby certifies as follows: 

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

Washington and Noah Bookbinder are plaintiffs in the district court and appellants 

in this Court. The FEC is the defendant in the district court and the appellee in this 

Court. No amici appeared before the district court. The following individual and 

entity have appeared as amici before this Court: Randy Elf and Campaign Legal 

Center. 

(B) Ruling Under Review. Plaintiffs-appellants appeal the March 29, 2019 

order of the United States District Court for the District of Columbia (Contreras, 

J.), which denied plaintiffs’ motion for summary judgment and granted the FEC’s 

cross-motion for summary judgment. The district court’s order appears in the Joint 

Appendix (“JA”) at 138; the Memorandum Opinion is reported at Citizens for 

Responsibility & Ethics in Washington v. FEC, 380 F. Supp. 3d 30 (D.D.C. 2019), 

and is reprinted at JA139-61. 

(C) Related Cases. There are no related cases within the meaning of 

Circuit Rule 28(a)(1)(C).

 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 2 of 71
ii

TABLE OF CONTENTS 

Page 

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

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

COUNTERSTATEMENT OF THE CASE ............................................................... 2 

I. STATUTORY AND REGULATORY BACKGROUND .............................. 2 

A. Commission ........................................................................................... 2 

B. Enforcement and Judicial Review ......................................................... 3 

C. Regulation of “Political Committees” ................................................... 4 

II. FACTUAL BACKGROUND .......................................................................... 6 

A. New Models .......................................................................................... 7 

B. The Controlling Analysis ...................................................................... 9 

1. Statutory Threshold ..................................................................... 9 

2. Major Purpose ........................................................................... 10 

C. Dismissal on the Basis of Prosecutorial Discretion ............................ 11 

III. DISTRICT COURT PROCEEDINGS .......................................................... 12 

SUMMARY OF THE ARGUMENT ...................................................................... 14 

ARGUMENT ........................................................................................................... 15 

I. STANDARD OF REVIEW ........................................................................... 15 

 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 3 of 71
iii

II. THIS PROSECUTORIAL-DISCRETION DISMISSAL IS NOT 

JUDICIALLY REVIEWABLE ..................................................................... 16 

A. The District Court Correctly Found that the Controlling Exercise 

of Prosecutorial Discretion Was Discernible and Covered By 

Commission on Hope .......................................................................... 16 

B. The District Court Correctly Rejected Complainants’ Attempt to 

Distinguish Commission on Hope ....................................................... 20 

C. Commission on Hope Does Not Conflict with Any Decision by 

the Supreme Court or This Court ........................................................ 27 

1. Commission on Hope Does Not Conflict with Akins ................ 28 

2. Commission on Hope Does Not Conflict with 

Circuit Precedent ....................................................................... 31 

D. Complainants’ Arguments that Commission on Hope Was 

Wrongly Decided Are Misplaced ........................................................ 36 

1. Complainants’ Position Is Contrary to the Well-Established 

Deference Accorded Controlling Groups ................................. 37 

2. Complainants Fail to Establish that FEC Commissioners 

Rotely Cite Prosecutorial Discretion in Bad Faith ................... 39 

3. Discretionary FEC Dismissals Do Not Violate Complainants’ 

First Amendment Rights ........................................................... 41 

4. FECA Does Not Mandate Investigations of Every Apparent 

Violation .................................................................................... 44 

 

III. IN THE ALTERNATIVE, THE DISMISSAL WAS NOT CONTRARY 

TO LAW ........................................................................................................ 50 

A. If Reviewable, This Court Should Address the Merits ....................... 50 

B. Deferential Contrary to Law Review .................................................. 51 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 4 of 71
iv

C. The Dismissal Was Not Contrary to Law ........................................... 52 

1. The Controlling Commissioners’ Interpretation of FECA’s 

Statutory Threshold Was Reasonable ....................................... 52 

2. The Controlling Commissioners Reasonably Applied the 

Major Purpose Test ................................................................... 54 

CONCLUSION ........................................................................................................ 57 

 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 5 of 71
v

TABLE OF AUTHORITIES 

Cases Page 

ACS of Anchorage, Inc. v. FCC, 290 F.3d 403 (D.C. Cir. 2002) ...................... 19-20 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .................................................. 49 

AFL-CIO v. Pope, 808 F. Supp. 2d 99 (D.D.C. 2011) ...................................... 24-25 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ......................................................... 43 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ..................................................... 28 

Ass’n of Civilian Technicians, Inc. v. FLRA, 

283 F.3d 339 (D.C. Cir. 2002) ........................................................................... 25 

ATT v. FCC, 454 F.3d 329 (D.C. Cir. 2006) .......................................................... 26 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................... 5, 9-11, 523-55 

Burlington Resources Inc. v. FERC, 513 F.3d 242 (D.C. Cir. 2008) ..................... 51 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ................... 28, 31-34 

Chichakli v. Tillerson, 882 F.3d 229 (D.C. Cir. 2018) ........................................... 52 

*Citizens for Responsibility & Ethics in Wash. v. FEC (“Commission on Hope”), 

892 F.3d 434 (D.C. Cir. 2018) ...... 1, 2, 4, 12-14, 16-17, 20-29, 31-41, 44, 45, 50 

Citizens for Responsibility & Ethics in Wash. v. FEC (“Am. for Tax Reform”), 

475 F.3d 337 (D.C. Cir. 2007) .............................................................. 34, 39, 45 

Citizens for Responsibility & Ethics in Wash. v. Am. Action Network,

 No. 18-cv-945 (CRC), --- F. Supp. 3d ---, 

2019 WL 4750248 (D.D.C. Sept. 30, 2019) ...................................................... 20 

Citizens for Responsibility & Ethics in Washington v. FEC,

 363 F. Supp. 3d 33 (D.D.C. 2018) ..................................................................... 48 

Citizens for Responsibility & Ethics in Wash. v. FEC (“Hope Below”), 

236 F. Supp. 3d 37 (D.D.C. 2017) ............................................................... 17, 18 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 6 of 71
vi

Citizens for Responsibility & Ethics in Wash. v. FEC (“Am. Action Network”), 

209 F. Supp. 3d 77 (D.D.C. 2016) ............................................................... 38, 56

Citizens United v. FEC, 558 U.S. 310 (2010)......................................................... 53 

City of Arlington, Tex. v. FCC, 569 U.S. 290 (2013) ............................................. 38 

Combat Veterans for Cong. Political Action Comm. v. FEC,

 795 F.3d 151 (D.C. Cir. 2015) ........................................................................... 46 

Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) ......................................... 39 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .................................. 25, 37 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) ........................................ 19 

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004) ............................. 30 

Crossroads Grassroots Policy Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015) ........................................................................... 38 

*Crowley Caribbean Tranp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ........ 22-24 

CSX Transp., Inc. v. Hensley, 556 U.S. 838 (2009) ............................................... 27 

De Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. Cir. 2017) ..................... 28 

Dellums v. U.S. Nuclear Regulatory Comm’n, 

863 F.2d 968 (D.C. Cir. 1988) ........................................................................... 34 

Democratic Cong. Campaign Comm. v. FEC (“DCCC”), 

831 F.2d 1131 (D.C. Cir. 1987) .................................................... 4, 28, 31-32, 37 

Devon Energy Corp. v. Kempthorne, 551 F.3d 1030 (D.C. Cir. 2008) .................. 26 

Dunlop v. Bachowski, 421 U.S. 560 (1975) ............................................................ 45 

*FEC v. Akins, 524 U.S. 11 (1998).................................. 5, 16, 28-31, 34, 39, 45, 50 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ................ 51 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) .......................................................................... 42 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 7 of 71
vii

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ............ 49 

*FEC v. Nat’l Republican Senatorial Comm. (“NRSC”), 

966 F.2d 1471 (D.C. Cir. 1992) ................................................................ 4, 37-38 

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) ..................................................... 37-38 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ................................................ 6 

Friedman v. FAA, 841 F.3d 537 (D.C. Cir. 2016) .................................................. 39 

Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012) ......................... 51 

Gersman v. Grp. Health Ass’n, 975 F.2d 886 (D.C. Cir. 1992) ............................. 31 

Gregg v. Barrett, 771 F.2d 539 (D.C. Cir. 1985) ................................................... 43 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) .......................................... 15, 35-36 

Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989) .............................................. 19 

*Heckler v. Chaney, 

470 U.S. 821 (1985) ................................. 12-13, 16-17, 21, 23-24, 26, 30, 41, 46 

ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) ................ 24-25 

*In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .................................... 37-38, 47 

Int’l Union, Sec., Police & Fire Professionals of Am. v. Faye, 

828 F.3d 969 (D.C. Cir. 2016) ........................................................................... 27 

Jenkins v. Wash. Convention Ctr., 236 F.3d 6 (D.C. Cir. 2001) ............................ 16 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .................................................................. 38 

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) ............................................ 36 

McConnell v. FEC, 540 U.S. 93 (2003) .................................................................. 42 

Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ............................................... 51 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ............................................ 18-19 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .............................. 28, 31, 34-36, 51 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 8 of 71
viii

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ........................................................... 48 

PETA v. Dep’t of Ag., 918 F.3d 151 (D.C. Cir. 2019) ............................................ 39 

Pub. Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016) ........................... 37, 47 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) ............. 6, 43 

Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003) ............................................ 45-46 

UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .................................................. 24-25 

United States v. Armstrong, 517 U.S. 456 (1996) .................................................. 39 

United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018) ........................................... 36 

United States v. Mead Corp., 533 U.S. 218 (2001) ................................................ 38 

United States v. Old Dominion Boat Club, 

630 F.3d 1039 (D.C. Cir. 2011) ......................................................................... 28 

Va. St. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748 (1976) ........................................................................................... 43 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) .................................... 19, 42-43 

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ......................................... 43-44 

Wayte v. United States, 470 U.S. 598 (1985) ......................................................... 44 

WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) ............................ 51 

Withrow v. Larkin, 421 U.S. 35 (1975) .................................................................. 39 

Statute and Regulations

5 U.S.C. § 706(2)(A) ......................................................................................... 35, 46 

28 U.S.C. § 2462 ..................................................................................................... 17

29 U.S.C. § 482(b) .................................................................................................. 45

31 U.S.C. § 3730 ..................................................................................................... 48

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 9 of 71
ix

33 U.S.C. § 1365 ..................................................................................................... 48

42 U.S.C. § 2000e-5(f)(1) ....................................................................................... 48

52 U.S.C. § 30101(4)(A) ..................................................................................... 5, 52

52 U.S.C. § 30101(8)(A)(i) ....................................................................................... 5 

52 U.S.C. § 30101(9)(A)(i) ....................................................................................... 5

52 U.S.C. § 30101(17) .............................................................................................. 8

52 U.S.C. § 30102 ..................................................................................................... 4 

52 U.S.C. § 30103 ..................................................................................................... 4 

52 U.S.C. § 30103(d)(1) ........................................................................................... 5 

52 U.S.C. § 30104(a) ................................................................................................ 4 

52 U.S.C. § 30104(b) ................................................................................................ 4 

52 U.S.C. § 30106(b)(1) ..................................................................................... 3, 48

52 U.S.C. § 30107(a)(8) ............................................................................................ 3 

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

52 U.S.C. § 30109(a)(2) ...................................................................................... 3, 44 

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

52 U.S.C. § 30109(a)(4)(A)(i) ............................................................................ 3, 44

52 U.S.C. § 30109(a)(6) ............................................................................................ 3

52 U.S.C. § 30109(a)(6)(A) .......................................................................... 3, 45, 50

52 U.S.C. § 30109(a)(8)(A) .......................................................................... 4, 23, 46

52 U.S.C. § 30109(a)(8)(C) ..................................................................... 4, 48-49, 51

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

52 U.S.C. § 30111(a)(8) ................................................................................ 3, 45, 50

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 10 of 71
x

52 U.S.C. § 30116(a)(7)(C)(ii) .............................................................................. 53 

11 C.F.R. § 100.16 .................................................................................................... 8

11 C.F.R. § 102.3(a)(1) ............................................................................................. 5 

11 C.F.R. § 102.4 ...................................................................................................... 5

Miscellaneous 

H.R. 12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. (1976) .................................. 

Rules & Regulations: Political Comm. Status (“Supplemental E&J”), 

72 Fed. Reg. 5595 (Feb. 7, 2007) .................................................................. 6, 54 

 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 11 of 71
xi

GLOSSARY 

APA Administrative Procedure Act 

Complainants Citizens for Responsibility and Ethics in Washington and 

Noah Bookbinder 

FEC or Commission Federal Election Commission 

FECA or Act Federal Election Campaign Act 

JA Joint Appendix 

MUR Matter Under Review 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 12 of 71
1

INTRODUCTION

Appellants Citizens for Responsibility and Ethics in Washington and Noah 

Bookbinder (collectively, “Complainants”) challenge the Federal Election 

Commission’s (“FEC” or “Commission”) dismissal of their administrative 

complaint alleging certain campaign finance violations by New Models. They 

alleged that New Models violated the Federal Election Campaign Act (“FECA” or 

“Act”) due to three contributions to independent-expenditure-only committees it 

made in 2012 without registering with the Commission as a “political committee” 

and complying with the disclosure requirements that apply to such groups. After 

duly considering those allegations, the Commission did not approve pursuing the 

matter further by the requisite votes, and so voted to close its file, thereby 

dismissing the administrative complaint. 

Though Complainants may disagree with the dismissal of their 

administrative complaint, judicial review is not available where, as here, the 

controlling statement providing the agency’s rationale includes an independent 

justification based on prosecutorial discretion. This Court recently held that FEC 

dismissals of administrative complaints based, in whole or in part, on prosecutorial 

discretion are “not subject to judicial review.” Citizens for Responsibility & Ethics 

in Wash. v. FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) (“Comm’n on Hope”), pet. 

for reh’g en banc denied, 923 F.3d 1141 (D.C. Cir. 2019). Because the FEC has 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 13 of 71
2

“unreviewable prosecutorial discretion,” id. at 438, which it exercised in the 

underlying matter here, this Court should affirm the district court’s decision. 

In any event, even if the dismissal was judicially reviewable, resolving the 

merits now would serve the purpose of judicial efficiency. The decision of the 

Commissioners who voted not to proceed was thoroughly explained in a statement 

of reasons, was grounded in the administrative record, and reflects a reasonable 

application of the FEC’s repeatedly upheld case-by-case method for determining 

political-committee status using the Supreme Court’s “major purpose” test. It is 

also consistent with courts’ repeated admonitions to interpret the Act with 

sensitivity to the First Amendment area in which the Commission regulates. The 

analysis readily satisfies the review under heightened deference applicable here 

and should be affirmed without a remand. 

STATUTES AND REGULATIONS

Applicable statutory and regulatory provisions are in the Addendum and 

Complainants’ Brief’s Addendum. 

COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Commission 

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

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

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 14 of 71
3

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 FECA 

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

civil enforcement actions for FECA violations. Id. §§ 30106(b)(1), 30109(a)(6). 

B. Enforcement and Judicial Review 

Any person may file an administrative complaint with the Commission 

alleging a FECA violation. Id. § 30109(a)(1). After considering these allegations 

and any response, the FEC determines whether there is “reason to believe” that the 

respondent violated FECA. Id. § 30109(a)(2). If the Commission so finds, then it 

conducts “an investigation of such alleged violation” to determine whether there is 

“probable cause to believe” that a FECA violation has occurred. Id. § 30109(a)(2), 

(4). If probable cause is found, the Commission is required to attempt to reach a 

conciliation agreement with the respondent. Id. § 30109(a)(4)(A)(i). If the 

Commission is unable to reach a conciliation agreement, FECA provides that the 

agency “may” institute a de novo civil enforcement action. Id. § 30109(a)(6)(A). 

At each stage, the affirmative vote of at least four Commissioners is required for 

the agency to proceed. Id. § 30109(a)(2), (a)(4)(A)(i), (a)(6)(A). 

If the Commission dismisses the complaint, FECA provides a cause of 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 15 of 71
4

action for “aggrieved” administrative complainants to seek judicial review. Id. 

§ 30109(a)(8)(A); but see Comm’n on Hope, 892 F.3d at 438 (holding that the FEC 

has “unreviewable prosecutorial discretion to determine whether to bring an 

enforcement action”). In instances where a dismissal results from a split vote, the 

“Commissioners who voted to dismiss” “constitute a controlling group,” since 

“their rationale necessarily states the agency’s reasons for acting as it did.” FEC v. 

Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(“NRSC”) (discussing Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 

1131, 1133-35 (D.C. Cir. 1987) (“DCCC”)). 

If a court finds a reviewable dismissal decision to be “contrary to law,” the 

court can “direct the Commission to conform” with its ruling “within 30 days.” 52 

U.S.C. § 30109(a)(8)(C). If, and only if, the Commission fails to conform, the 

complainant may bring “a civil action to remedy the violation involved in the 

original [administrative] complaint.” Id.

C. Regulation of “Political Committees”

FECA imposes distinct disclosure requirements on organizations qualifying 

as a “political committee.” Such groups must, inter alia, register with the 

Commission, appoint a treasurer, file periodic reports identifying those who have 

contributed in excess of $200 to the organization, and meet other organizational, 

record-keeping, and public filing requirements. Id. §§ 30102, 30103, 30104(a)-(b). 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 16 of 71
5

Once an organization becomes a political committee, its ability to terminate its 

status as a political committee is restricted. Id. § 30103(d)(1); 11 C.F.R. §§ 

102.3(a)(1), 102.4. 

FECA defines a “political committee” as “any committee, club, association, 

or other group of persons which receives contributions aggregating in excess of 

$1,000 during a calendar year or which makes expenditures aggregating in excess 

of $1,000 during a calendar year.” 52 U.S.C. § 30101(4)(A). “This broad 

definition, however, is less universally encompassing than at first it may seem, for 

[FECA’s] definitional subsections limit” the scope of “the key terms ‘contribution’ 

and ‘expenditure.’” FEC v. Akins, 524 U.S. 11, 15 (1998). Those terms cover 

“only those contributions and expenditures that are made ‘for the purpose of 

influencing any election for Federal office.’” Id. (quoting statutory definitions 

recodified at 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i)). Concerned that the bare 

statutory definition might reach too far into protected First Amendment activity by 

covering “groups engaged purely in issue discussion,” the Supreme Court further 

limited the definition of political committee so that it would “only encompass 

organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 

79 (1976) (per curiam). 

Buckley, however, provided only limited guidance regarding the key 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 17 of 71
6

question of how to determine an organization’s “major purpose.” To fill this gap, 

the Commission has adopted a multi-factored, case-by-case approach. Rules & 

Regulations: Political Comm. Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) 

(“Supplemental E&J”); see also Free Speech v. FEC, 720 F.3d 788, 797 (10th Cir. 

2013) (upholding the FEC’s approach); Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544, 556 (4th Cir. 2012) (same). When determining an organization’s 

major purpose, the Commission conducts a fact-specific analysis, which can 

include considering, inter alia: (a) an “organization’s spending on Federal 

campaign activity, as well as any other spending”; (b) its “public statements”; (c) 

“fundraising appeals”; (d) “internal documents about an organization’s mission”; 

and (e) public filings. Supplemental E&J, 72 Fed. Reg. at 5601, 5605. 

II. FACTUAL BACKGROUND 

In an administrative complaint filed in September 2014, Complainants 

alleged that “New Models’ major purpose in 2012 was the nomination or election 

of federal candidates,” and that, consequently, New Models had violated FECA by 

failing to register and report as a “political committee.” (JA23-26.) In its 

response, New Models did not dispute that it made more than $1,000 in 

“contributions” in 2012; but denied that it then, or ever, had the “major purpose” of 

nominating or electing federal candidates. (JA66.) 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 18 of 71
7

In November 2017, the Commission, by a vote of 2-2, with one recusal, did 

not find reason to believe that New Models violated FECA. (JA101.) 

Commissioners Hunter and Goodman voted against finding reason to believe, and 

thus constitute the “controlling group,” while Commissioners Walther and 

Weintraub voted for finding reason to believe. (Id.) The Commission voted 4-0 to 

close its file. (JA102.) The controlling group and Commissioner Weintraub issued 

statements of reasons. (JA103-37.) 

The controlling Commissioners found that, examining New Models’ “public 

statements, organizational documents, and overall spending history” and applying 

“agency expertise,” New Models was not a political committee. (JA103-04.) 

Based on facts which were not materially disputed, they analyzed the group’s 

central organizational purpose, public statements, and its federal campaign 

spending as compared to their other spending, and concluded that New Models had 

not “violated the Act by failing to register and report as a political committee.” 

(JA133.) “For these reasons, and in exercise of our prosecutorial discretion,” these 

Commissioners voted in favor of dismissing the matter. (Id.) 

A. New Models 

New Models was a tax-exempt social welfare organization established in 

2000 under section 501(c)(4) of the Internal Revenue Code. (JA106.) Its Form 

990 tax returns from 2004 through 2015 consistently described New Models’ 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 19 of 71
8

“primary purpose” as “studying and advocating policy issues of national 

importance.” (Id.) The year 2012 was no exception. (Id.) 

The description of the organization’s activities on reports filed with the 

Internal Revenue Service and the organization’s website provided some 

confirmation that New Models had pursued its stated mission by conducting and 

making available issue-related polling results, sponsoring and making available 

research papers, publishing information about public policy on its website, and 

making grants to other organizations. (JA107.) In 2012, for example, New 

Models conducted issue-related focus groups and polling, as well as gave a grant 

for “[i]ssue advocacy on the economy and jobs.” (JA30.) 

New Models did not make any independent expenditures in 2012 or any other 

year.1

 (JA105.) It did, however, make contributions to several independentexpenditure-only political committees, also known as super PACs, in 2012 — all 

of which were publicly disclosed. (JA108 (totaling approximately $3.1 million or 

68.7% of relative spending for 2012).) Other than a single, relatively modest 

amount given in 2010,2

 New Models did not make any other contributions between 

                                                            

1

 An “independent expenditure” is a communication “expressly advocating 

the election or defeat of a clearly identified candidate” and that is made without 

coordinating with the candidate or a political party. 52 U.S.C. § 30101(17); 11 

C.F.R. § 100.16. 

2

 New Models gave $265,000 to Citizens for a Working America PAC in 

2010. There was conflicting evidence in the record regarding whether this 2010 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 20 of 71
9

2000 and 2015. (JA107-08 (19.5% of overall relative spending); see also infra

p.56 (chart summary).) 

B. The Controlling Analysis 

The controlling Commissioners concluded that New Models was not a 

political committee for two independent reasons. (JA120; JA122-23 n.95.) First, 

they concluded that New Models did not meet the statutory threshold requirement 

for a political committee of receiving $1,000 in contributions or making $1,000 in 

expenditures. (Id.) Second, they found that New Models did not have the major 

purpose of nominating or electing federal candidates. (Id.) 

1. Statutory Threshold 

The controlling Commissioners concluded that New Models did not receive 

“contributions” or make “expenditures” and thus did not satisfy the statutory 

threshold requirement for being a political committee. (JA120-22.) While both 

terms are defined to include a gift of money “made . . . for the purpose of 

influencing any election for Federal office,” they found that the Supreme Court had 

interpreted this phrase narrowly. 

The term “contribution,” they reasoned, was limited to (1) direct donations 

to candidates, parties, or campaign committees, (2) coordinated expenditures, and 

                                                            

payment was election-related or for issue advocacy. (JA107 n.23.) Because its 

inclusion did not alter their conclusion, the controlling group included it as a 

contribution. (Id.) 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 21 of 71
10

(3) donations to non-candidate or party groups but “‘earmarked for political 

purposes.’” (JA121 (quoting Buckley, 424 U.S. at 23 n.24, 78).) Because the 

Commissioners found that New Models did not make any expenditures, 

coordinated or otherwise, they concluded that “none of its funding seems 

earmarked for a political purpose” and thus would not constitute “contributions.” 

(Id.) 

The term “expenditure,” they reasoned, was limited to reach only express 

advocacy of a clearly identified candidate. (Id. (citing Buckley, 424 U.S. at 79-

80).) There were no allegations that New Models itself made any independent 

expenditures, only that New Models donated money to political committees who 

themselves made independent expenditures. (JA121-22.) The controlling 

Commissioners found that contributions to these super PACs would indicate New 

Models’ support for those groups, “but not necessarily any particular candidate.” 

(JA122.) They ultimately concluded that New Models did not “make 

expenditures” so did not satisfy the statutory threshold to be deemed a political 

committee. (Id.) 

2. Major Purpose 

Even if New Models met the statutory threshold, the controlling group also 

concluded that the organization did not have the requisite major purpose. (Id.) To 

reach this conclusion, they considered (a) New Models’ organizational purpose, (b) 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 22 of 71
11

public statements, and (c) spending, as well as (d) “the First Amendment 

implications” of classifying an organization as a political committee “based solely 

on a handful of contributions in a brief snapshot in time.” (JA123.) 

In short, the controlling statement found that New Models’ “isolated 

contributions to three Super PACs” did not demonstrate a fundamental shift in the 

organization’s major purpose. (JA129; see also JA132.) Based upon the 

controlling Commissioners’ “review of New Models’ spending, nominating or 

defeating a federal candidate may have been a purpose of the organization in 2012, 

but was not the major purpose of the organization.” (JA129; see also JA132 

(discussing example where an organization’s “foremost [policy] issue becomes 

highly visible in a federal election,” so the organization temporarily devotes its 

resources to campaign-related spending but then resumes its issue focus).) 

Viewing all the evidence together, and weighing heavily New Models’ 

public statements, the controlling group concluded that New Models “is an issue 

discussion organization that made sporadic contributions to independent 

expenditure-only committees,” and thus “is precisely the type of group [that] 

Buckley . . . sought to exclude from the definition of political committee through 

the major purpose limitation.” (JA129.) 

C. Dismissal on the Basis of Prosecutorial Discretion 

The controlling group also voted not to pursue the New Models matter 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 23 of 71
12

further “in exercise of [their] prosecutorial discretion.” (JA133 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985)).) They noted that New Models indicated in its 2015 

tax form that it had “liquidated, terminated, dissolved, or otherwise ceased 

operations.” (JA109 & n.32.) They also considered the age of the allegedly 

problematic expenditures, which occurred approximately five years prior. 

(JA104.) Because “the organization appears no longer active,” as well as “the age 

of the activity,” the controlling Commissioners concluded that “proceeding further 

would not be an appropriate use of Commission resources.” (JA133 n.139.)

III. DISTRICT COURT PROCEEDINGS 

Complainants sought judicial review. (JA6-18.) They subsequently filed a 

motion for summary judgment seeking judicial review on the merits of the 

controlling Commissioners’ analysis. (Dkt. 12.) In response, the Commission 

cross-filed for summary judgment, arguing that judicial review was unavailable 

and that summary judgment was appropriate in its favor on the merits as well. 

(Dkt. 13-1.) The parties then filed reply briefs in support of their respective 

motions and addressing both issues. (Dkts. 16 & 20.) 

The district court granted summary judgment and entered an order in the 

Commission’s favor. (JA138-61.) The court held that Commission on Hope was 

“directly on point here.” (JA152.) It concluded that Complainants “strain[ed], 

unsuccessfully, to extricate this case from [Commission on Hope’s] holding.” 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 24 of 71
13

(JA154.) It found that “the Controlling Commissioners’ invocation of 

prosecutorial discretion here did not rely on their interpretation of FECA or case 

law.” (JA156.) Although it also noted: “[I]f, as [Complainants’] claim, the Court 

could evaluate the Controlling Commissioners’ reasons for invoking prosecutorial 

discretion, the Commissioners’ factual bases for their decision are generally 

considered rational.” (JA155 n.11.) The court also rejected Complainants’ 

“theor[ies]” that “Heckler’s presumption of non-reviewability” did not apply here 

because the Commission had not abdicated its enforcement responsibilities. 

(JA156; see also JA157-59.) Instead, it found: “The Commission fulfilled its 

statutory responsibility to investigate New Models, it simply reached a difference 

conclusion than [Complainants] preferred.” (JA160 (internal citation omitted).) 

The district court recognized that this Court had “reject[ed] the notion that a court 

may ‘carv[e] reviewable legal rulings out from the middle of non-reviewable 

actions.’” (JA154 (quoting Comm’n on Hope, 892 F.3d at 441-42)); see also

JA155 (“[Commission on Hope] holds that the Controlling Commissioners’ legal 

analyses are reviewable only if they are the sole reason for the dismissal[.]”).) 

And since the controlling Commissioners’ exercise of prosecutorial discretion 

constituted “a ‘non-reviewable’ action under [Commission on Hope],” the court 

could not “evaluate the ‘reviewable legal rulings’ contained in [their] statement of 

reasons.” (JA154.) Accordingly, “[u]nder binding Circuit law,” the court 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 25 of 71
14

concluded that judicial review was unavailable. (JA153.) 

SUMMARY OF THE ARGUMENT 

This Court’s recent opinion in Commission on Hope establishes that the 

controlling Commissioners’ decision here is not subject to judicial review. The 

Court held that FEC dismissal decisions based in whole or in part on prosecutorial 

discretion are unreviewable. Because the controlling Commissioners expressly 

invoked and exercised their prosecutorial discretion as a distinct basis for their 

decision to dismiss Complainants’ administrative complaint against New Models, 

Complainants are unable to obtain judicial review of that decision. 

Commission on Hope concluded that a limited version of the unreviewability 

of prosecutorial discretion enjoyed by nearly every other federal agency was 

applicable to the Commission. And unlike those other agencies, judicial review 

remains available for decisions solely concluding that the statute had not been 

violated. Complainants fail to establish that Commission on Hope should be 

disregarded as inconsistent with prior holdings of the Supreme Court and this 

Court. Rather, it is Complainants who urge positions inconsistent with precedent, 

contesting decades of authority providing (1) that courts should accord deference 

to controlling Commissioners who provide the rationale for Commission 

dismissals, and (2) that the Commission possesses prosecutorial discretion to 

dismiss administrative complaints. Indeed, on that latter point, Complainants 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 26 of 71
15

advance the position that in this First Amendment-sensitive area the Commission is 

required to investigate every apparent violation no matter how de minimis, stale, or 

inadvertent. No authority supports this drastic proposed overhaul of federal 

campaign finance regulation. 

In the alternative, even if reviewable, this Court should affirm the dismissal, 

which readily survives the deferential standard of review. The rationale of the 

Commissioners who voted not to find reason to believe that New Models violated 

FECA reflects their thorough review of the records before the Commission, 

including careful analyses of the organization’s documents, statements, and 

financial activities. It also accords with courts’ instructions that FECA be 

interpreted in a manner that is sensitive to the speech activity regulated by the 

statute. Those Commissioners’ analysis was reasonable and concerns an area in 

which the Commission’s inquiry is necessarily both flexible and accorded 

heightened deference. 

Accordingly, the district court’s decision should be affirmed. 

ARGUMENT 

I. STANDARD OF REVIEW 

 This Court reviews district court orders granting summary judgment de 

novo, and may affirm on any ground. Hagelin v. FEC, 411 F.3d 237, 242 (D.C. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 27 of 71
16

Cir. 2005); Jenkins v. Wash. Convention Ctr., 236 F.3d 6, 8 n.3 (D.C. Cir. 2001). 

II. THIS PROSECUTORIAL-DISCRETION DISMISSAL IS NOT 

JUDICIALLY REVIEWABLE 

A. The District Court Correctly Found that the Controlling Exercise 

of Prosecutorial Discretion Was Discernible and Covered By 

Commission on Hope

In Commission on Hope, this Court held: “[F]ederal administrative agencies 

in general and the Federal Election Commission in particular have unreviewable 

prosecutorial discretion to determine whether to bring an enforcement action.” 892 

F.3d at 438 (citing Chaney, 470 U.S. at 831, and Akins, 524 U.S. at 25). This 

decision is dispositive here. 

Commission on Hope likewise arose from an FEC enforcement matter 

involving political committee allegations. Id. at 441. And it also considered a 

split-vote dismissal decision in which the controlling Commissioners had 

determined that the matter “did not warrant further use of Commission resources” 

and voted against proceeding further on the basis of prosecutorial discretion. Id. at 

438. The controlling group reasoned, inter alia, that “the association named in 

[the] complaint no longer existed” and had “filed termination papers with the IRS 

four years earlier.” Id. 

Similarly, the controlling Commissioners here expressly invoked 

prosecutorial discretion as a distinct basis for the dismissal. (JA133 & n.139; 

JA156 (“[T]he Controlling Commissioners’ invocation of prosecutorial discretion 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 28 of 71
17

here did not rely on their interpretation of FECA or case law.”).) And they 

likewise did not merely invoke purported “magic words” (Br. at 18-20), but rather 

demonstrated that their decision to exercise prosecutorial discretion was based on 

“a complicated balancing of a number of factors which are peculiarly within its 

expertise,’” such as “whether agency resources are best spent on this violation or 

another.” Comm’n on Hope, 892 F.3d at 439 n.7 (quoting Chaney, 470 U.S. at 

831). 

The controlling Commissioners explained that “proceeding further would 

not be an appropriate use of Commission resources” for two reasons — both of 

which are independent of the merits, are supported by the record, and are 

recognized as appropriate bases for exercising prosecutorial discretion. (JA133 

n.139.) First, they found that prosecutorial discretion was warranted due to “the 

age of the activity” at issue. (Id.) Citing the applicable five-year statute of 

limitations (JA133 n.139 (citing 28 U.S.C. § 2462)), the Commissioners conveyed 

their staleness concerns about the transactions underlying Complainants’ political 

committee claims, which occurred between January 11, 2012 and October 26, 2012 

(JA53, 56, 57, 60, 74, 108 & nn. 24, 28). See Citizens for Responsibility & Ethics 

in Wash. v. FEC, 236 F. Supp. 3d 378, 392-93 (D.D.C. 2017) (“Hope Below”) 

(finding that impending statute of limitations was a rational basis for exercising 

prosecutorial discretion), aff’d, 892 F.3d 434 (D.C. Cir. 2018). The 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 29 of 71
18

Commissioners also expressly indicated their specific concern about the “staleness 

of evidence.” JA133 n.139 (quoting Nader v. FEC, 823 F. Supp. 2d 53, 65-66 

(D.D.C. 2011)); see also Nader, 823 F. Supp. 2d at 66 (“The passage of time, even 

within the period, will obviously impair investigations.”). 

Second, the controlling Commissioners found that exercising prosecutorial 

discretion was also warranted due to “the fact that the organization appears no 

longer active.” (JA133 n.139.) The record supported their finding that New 

Models ceased operating in 2015 (JA109 & n.32), and the difficulties attendant to 

investigating and obtaining recovery from a defunct entity are valid reasons for 

exercising prosecutorial discretion. JA133 n.139 (citing Nader, 823 F. Supp. 2d at 

65-66 (noting an investigation of an “essentially defunct” organization would, inter 

alia, “encounter difficulties with obtaining relevant documents” (alteration 

omitted))); see also Hope Below, 236 F. Supp. 3d at 396 (recognizing that the 

defunct nature of an organization is a rational and proper basis for the 

Commission’s exercise of prosecutorial discretion). While Complainants criticize 

the controlling Commissioners for not explaining in more detail why New Models’ 

defunct nature “blocked relief” (Br. at 20 n.7), it is “common sense” that “the FEC 

has limited resources, and may have little interest in punishing a group that it 

knows is unlikely to violate FECA again and possibly could not defray the costs of 

litigation through the payment of a fine.” Hope Below, 236 F. Supp. 3d at 396 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 30 of 71
19

(discussing Nader, 823 F. Supp. 2d at 65); see also JA133 n.139 (citing Nader, 823 

F. Supp. 2d at 65-66). 

Indeed, the court below recognized that, if it could “evaluate the Controlling 

Commissioners’ reasons for invoking prosecutorial discretion, the Commissioners’ 

factual bases for their decision are generally considered rational.” (JA155.) 

That the controlling group’s analysis was set forth in a footnote is irrelevant. 

The Commissioners expressly “exercise[d] . . . [their] prosecutorial discretion” as a 

basis for their votes not to pursue enforcement and stated their reasons why, which 

were consistent with the Commission’s approach in other matters. (JA133 & n.139 

(citing similar concerns from other matters).) This is a legally sufficient invocation 

of their discretion. Even where, unlike here, an FEC decision is “of less than ideal 

clarity,” Common Cause v. FEC, 906 F.2d 705, 706 (D.C. Cir. 1990), “[i]t is 

enough that a reviewing court can reasonably discern the agency’s analytical path,” 

Van Hollen v. FEC, 811 F.3d 486, 496-97 (D.C. Cir. 2016). While “[d]ivergence 

from agency precedent demands an explanation,” where a reviewing court “can 

ascertain that the agency has not in fact diverged from past decisions, the need for 

a comprehensive and explicit statement of its current rationale is less pressing.” 

Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989); see also ACS of 

Anchorage, Inc. v. FCC, 290 F.3d 403, 408 (D.C. Cir. 2002) (“While the Order 

does not explicitly invoke the . . . exception, we can reasonably discern the path 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 31 of 71
20

from its reasoning and citations.”) 

And two district courts have agreed that the controlling Commissioners here 

did not merely recite the “magic words” “prosecutorial discretion” (Br. at 18-20), 

but rather exercised their prosecutorial discretion based on traditional, appropriate 

prudential considerations. JA153-56 & n.11; Citizens for Responsibility & Ethics 

in Wash. v. Am. Action Network, No. 18-cv-945 (CRC), --- F. Supp. 3d ---, 2019 

WL 4750248, at *10 (D.D.C. Sept. 30, 2019) (finding this case to be one where 

there was “not a talismanic recitation of the phrase ‘prosecutorial discretion,’ but 

reliance by the FEC . . . [on] prudential concerns”). 

The controlling group’s exercise of prosecutorial discretion, as well as the 

basis therefor, can be readily discerned. The district court correctly held that 

Commission on Hope “is directly on point” and precludes judicial review. 

(JA152.) 

B. The District Court Correctly Rejected Complainants’ Attempt to 

Distinguish Commission on Hope

Interpreting FECA and the Administrative Procedure Act (“APA”) together, 

Commission on Hope explained a categorical rule: FEC dismissals are generally 

committed to the agency’s unreviewable prosecutorial discretion except for those 

dismissals based entirely on the FEC’s interpretation of FECA, which are 

reviewable under FECA’s judicial review provision. Comm’n on Hope, 892 F.3d 

at 438-442 & nn.6, 11. Applying this binding rule here requires finding the 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 32 of 71
21

dismissal unreviewable. Complainants’ attempt to escape this inevitable 

conclusion is unavailing. 

First, Complainants argue that the dismissal here is different because the 

controlling Commissioners explained that they voted against finding reason to 

believe not only “in exercise of our prosecutorial discretion,” but also because they 

determined “New Models was not a political committee.” (JA104, 133.) This is a 

distinction without a difference. 

When the Commission dismisses a complaint based entirely on its 

determination that no violation occurred, that dismissal is judicially reviewable. 

Comm’n on Hope, 892 F.2d at 441 n.11. But when dismissing based on 

prosecutorial discretion, the FEC dismisses based on “not only . . . whether a 

violation has occurred,” but also, inter alia, “whether agency resources are best 

spent on this violation or another.” Id. at 439 n.7 (quoting Chaney, 470 U.S. at 

831, 832). Put simply, the Commission dismisses even though the matter may 

otherwise have merit. 

 Here, the controlling group stated: “Given the age of the activity and the fact 

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

appropriate use of Commission resources.” (JA133 n.139 (emphasis added).) 

Obviously there would be nothing to “proceed further” with unless they were 

referring to an alternative scenario where they instead found reason to believe. In 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 33 of 71
22

other words, the controlling Commissioners held in the alternative that, even if 

they decided the underlying legal determinations differently and found reason to 

believe that New Models violated FECA, they still would have exercised their 

prosecutorial discretion to dismiss. 

It is clear as a result that whether the controlling Commissioners’ exercise of 

prosecutorial discretion was influenced by their view that a lawsuit alleging that 

the underlying conduct violated FECA was unlikely to succeed is immaterial. If 

the controlling Commissioners’ decision to exercise prosecutorial discretion was 

wholly unrelated to their decision on the merits, this Court does in fact know that, 

even if the Commissioners had agreed with Complainants on the underlying legal 

determinations, the Commissioners would have nonetheless voted to dismiss based 

solely on the basis of prosecutorial discretion. And Complainants admit that such 

a decision is unreviewable under Commission on Hope. (Br. at 15.) 

If, on the other hand, the controlling Commissioners’ view of the merits 

impacted their decision to exercise prosecutorial discretion, Commission on Hope

still bars judicial review. Complainants are “not entitled to have the court evaluate 

. . . the individual considerations the controlling Commissioners gave in support of 

their vote not to initiate enforcement proceedings.” 892 F.3d at 441. Rather, 

“[t]he law of this circuit rejects the notion of carving reviewable legal rulings out 

from the middle of non-reviewable action.” Id. at 442 (quoting Crowley 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 34 of 71
23

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

on Hope forecloses review of both Chaney dismissals and mixed merits/Chaney

determinations. 

Second, Complainants’ argument that all FEC dismissals remain 

“[r]eviewable agency action” since Commission on Hope “only limited review of 

certain FEC dismissal reasons” (Br. at 17, 37-38) reflects an apparent 

misunderstanding of that decision. Although this Court agreed that the relevant 

“agency action” is the dismissal of an administrative complaint, from there it parts 

ways with Complainants’ position. Comm’n on Hope, 892 F.3d at 437 (citing 52 

U.S.C. § 30109(a)(8)(A)). 

Chaney established that “agency decisions not to institute enforcement 

proceedings” are presumptively unreviewable. Id. at 439. Since FECA grants the 

FEC prosecutorial discretion to determine whether to initiate enforcement 

proceedings, but does not provide a “meaningful standard” to judge the exercise of 

that discretion, this Court found that “[n]othing . . . overcomes the presumption 

against judicial review” of FEC dismissals. Id. Accordingly, this Court held that 

FEC dismissals, “to the extent they are committed to agency discretion,” are 

unreviewable agency action. Id. at 441. Since “[t]he interpretation an agency 

gives to a statute is not committed to the agency’s unrevewiable discretion,” 

however, the Court explained that FEC dismissals “based entirely” on the agency’s 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 35 of 71
24

interpretation of FECA are “subject to judicial review to determine whether it is 

‘contrary to law.’” Id. at 441 n.11. In sum, FEC dismissals “based entirely” on the 

agency’s interpretation of FECA constitute reviewable “agency action,” but all 

other FEC dismissals constitute unreviewable agency action. Id. at 439-42 & n.11. 

 Since the dismissal here was not “based entirely” on the controlling 

Commissioners’ interpretation of FECA, that dismissal is a “non-reviewable 

action.” (JA154.) Under Commission on Hope, Crowley, and other binding 

authority, the Court thus cannot carve out the controlling Commissioners’ FECA 

determinations for judicial review. Comm’n on Hope, 892 F.3d at 442. And 

Chaney does not mandate a different result. (Contra Br. at 37-38.) Indeed, 

Chaney itself involved an agency’s legal conclusion that it lack jurisdiction to 

pursue enforcement and a holding in the alternative that, even if it had jurisdiction, 

it would exercise its prosecutorial discretion. 470 U.S. at 824, 828. 

Complainants’ reliance on UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) 

(Br. at 17, 18, 30), to argue otherwise is misplaced. As Crowley recognized, an 

intervening Supreme Court decision, ICC v. Brotherhood of Locomotive 

Engineers, 482 U.S. 270 (1987), effectively overruled Brock in relevant part. 

Crowley, 37 F.3d at 676; see also AFL-CIO v. Pope, 808 F. Supp. 2d 99, 109 

(D.D.C. 2011) (recognizing “[s]ubsequent D.C. Circuit and Supreme Court 

decisions have substantially narrowed the viability of [Brock]”), aff’d, No. 11-

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 36 of 71
25

5308, 2012 WL 1450584 (D.C. Cir. Apr. 12, 2012). While Crowley recognized 

that an enforcement decision announcing a broad, generally applicable agency 

enforcement policy may be judicially reviewable, it held that, for “single-shot nonenforcement decision[s],” ICC required holding that the Court cannot “carv[e] 

reviewable legal rulings out from the middle of non-reviewable actions.” Crowley, 

37 F.3d at 676 (emphasis omitted); see also Ass’n of Civilian Technicians, Inc. v. 

FLRA, 283 F.3d 339, 343 (D.C. Cir. 2002) (“[T]hat a district court might have 

jurisdiction over an agency’s articulation of its general enforcement policy, [does 

not] support the . . . argument that district courts may review any agency legal 

interpretation made in the context of otherwise unreviewable individual 

adjudications.”). 

There can be no serious argument that the instant matter was anything other 

than just such a single-shot non-enforcement decision. While the controlling 

Commissioners are “treated as if they were expressing the Commission’s rationale 

for dismissal” “for purposes of judicial review” in a particular matter, Commission 

on Hope, 892 F.3d at 437, the controlling statement of reasons is not binding on 

the Commission in future enforcement matters, Common Cause v. FEC, 842 F.2d 

436, 449 n.32 (D.C. Cir. 1988). And a single enforcement decision certainly does 

not establish a pattern or practice. Moreover, as the district court held, “the 

Controlling Commissioners expressly rejected the imposition of bright line rules in 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 37 of 71
26

the political committee context.” (JA157-58.) Notably, future respondents could 

not evade liability by relying on this single controlling statement. Devon Energy 

Corp. v. Kempthorne, 551 F.3d 1030, 1039 (D.C. Cir. 2008); ATT v. FCC, 454 

F.3d 329, 332-34 (D.C. Cir. 2006). 

Judicial review does remain available if the agency “consciously and 

expressly adopt[s] a general policy that is so extreme as to amount to an abdication 

of its statutory responsibilities,” Commission on Hope, 892 F.2d at 440 n.9 

(quoting Chaney, 470 U.S. at 833 n.4), but Complainants conspicuously have not 

even asserted that the dismissal here was part of such an abdication. Nor could 

they prove one. Commission on Hope rejected Complainants’ assertion that the 

Commission has abdicated enforcing political committee regulations, finding that 

Complainants’ “own submissions show that the Commission routinely enforces the 

election law violations alleged in [their] administrative complaint.” Id. The 

district court here did so as well. (JA158-59.) And the Commission has in the 

interim enforced against an entity for violation of FECA’s political committee 

requirements through entry of a conciliation agreement.3

 

Third and finally, Complainants argue that, when conducting its careful 

analysis of whether Commission on Hope applied here, the district merely applied 

                                                            

3

   Matter Under Review (“MUR”) 6538R (Americans for Job Security) (Sept. 

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

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 38 of 71
27

“dicta in a footnote.” (Br. at 16.) The district court’s analysis, however, belies this 

assertion, and footnotes are no less binding than text in subsequent cases. E.g., 

CSX Transp., Inc. v. Hensley, 556 U.S. 838, 840-41 (2009) (reversing lower court 

for failing to accord footnote in prior Supreme Court opinion binding effect). The 

portions of Commission on Hope that the court below relied on to conclude that 

judicial review was unavailable here did not address questions “merely lurk[ing] in 

the [Commission on Hope] record, neither brought to the attention of the court nor 

ruled upon.” Int’l Union, Sec., Police & Fire Prof’ls of Am. v. Faye, 828 F.3d 969, 

975 (D.C. Cir. 2016) (internal quotation marks omitted). Those portions responded 

to and ruled upon questions expressly raised by the plaintiffs there, the decision 

below in that case, and the dissent. This Court’s description of the categorical rule 

in the opinion is binding. The Court found that describing in detail the operation 

of the rule was necessary to its resolution of the appeal. E.g., Comm’n on Hope, 

892 F.3d at 440 (finding that “several additional subjects need to be addressed” 

(emphasis added)). It would be an odd state of affairs if, when explaining what the 

Court’s holding actually is, that discussion is deemed unnecessary dicta. 

Because Commission on Hope is not distinguishable, it applies and bars 

judicial review of the dismissal here. 

C. Commission on Hope Does Not Conflict with Any Decision by the 

Supreme Court or This Court 

Complainants argue that, even if Commission on Hope applies here, this 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 39 of 71
28

Court must nevertheless disregard it because it conflicts with prior Supreme Court 

and Circuit precedent. (Br. at 21.) However, “courts must be careful when 

invoking this principle, lest they too readily discard a later precedent that 

distinguished—or is distinguishable from—an earlier decision.” United States v. 

Old Dominion Boat Club, 630 F.3d 1039, 1045 (D.C. Cir. 2011). 

None of the authorities Complainants cite made a binding holding that a 

dismissal decision based on prosecutorial discretion is judicially reviewable. (Br. 

at 21-27 (discussing Akins, DCCC, Chamber of Commerce v. FEC, 69 F.3d 600 

(D.C. Cir. 1995), and Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)).) The 

conflict required to permit disregarding an earlier opinion must arise from the prior 

decision’s holdings. De Csepel v. Republic of Hungary, 859 F.3d 1094, 1105 

(D.C. Cir. 2017) (“[B]inding circuit law comes only from the holdings of a prior 

panel,” not dicta. (internal quotation marks omitted)). 

1. Commission on Hope Does Not Conflict with Akins

Commission on Hope is consistent with Akins. In Akins, the Commission 

found no probable cause to believe regarding the complainant’s first claim for 

violation of political committee requirements, and found probable cause to believe 

regarding their second claim for prohibited corporate contributions but nonetheless 

exercised prosecutorial discretion and dismissed the complaint. 524 U.S. at 16-17; 

Comm’n on Hope, 892 F.3d at 438 n.6 (citing Akins, 524 U.S. at 25; Akins v. FEC, 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 40 of 71
29

736 F. Supp. 2d 9, 13-15 (D.D.C. 2010)). As this Court noted, the first claim — 

which was the only one considered by the Supreme Court — was agency action 

“based entirely on its interpretation of the statute.” Id. at 441 n.11. The 

Commission argued that the complainants lacked standing because, rather than 

dismissing their claim based on a legal finding it was not meritorious, the agency 

could have found that claim meritorious and nonetheless exercised its prosecutorial 

discretion like it did for the complainants’ other claim. Akins, 524 U.S. at 25. 

While recognizing the FEC could lawfully dismiss a meritorious claim in 

exercise of its prosecutorial discretion, the Supreme Court held “that fact does not 

destroy” complainants’ standing to challenge the dismissal of the claim actually 

before the Court, which was based exclusively on the Commission’s determination 

that claim was not meritorious. Id. And it did so specifically because “we cannot 

know that the FEC would have exercised its prosecutorial discretion in this way.” 

Id. (emphasis added). In Commission on Hope (as here), by contrast, the 

Commission already had exercised its prosecutorial discretion precisely in that way 

on the claim before the Court. The Supreme Court expressly distinguishing 

Commission on Hope-type dismissals as a basis for finding standing to challenge 

the dismissal before it underscores that Akins did not make a binding holding 

regarding prosecutorial discretion dismissals. 

When finding complainants had standing to challenge the claim actually 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 41 of 71
30

before the Court, Akins reasoned that aggrieved persons generally have standing to 

challenge “discretionary” agency action predicated on legal error. 524 U.S. at 25. 

And because FECA provides for judicial review to determine whether a dismissal 

was “contrary to law,” there was no exception under Chaney merely because “this 

case involves an agency’s decision not to undertake an enforcement action.” Id. at 

26. The Supreme Court did not purport to address whether judicial review would 

be available for the dismissal of a meritorious claim based on prosecutorial

discretion. Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) 

(“Questions which merely lurk in the record . . . are not to be considered as having 

been so decided as to constitute precedents.” (internal quotation marks omitted)). 

Even if such a dismissal was unreviewable, the Akins complainants’ injury was still 

potentially redressable because the Commission could instead decide on remand to 

pursue enforcement against the respondents. 

Significantly, while Akins distinguished Chaney when finding the dismissal 

at issue judicially reviewable, it favorably cited Chaney in the context of 

Commission dismissals of meritorious claims based on prosecutorial discretion. 

Akins, 524 U.S. at 25 (“Cf. App. to Pet. for Cert. 98a (deciding to exercise 

prosecutorial discretion, see [Chaney], and ‘take no further action’ on § 441b 

allegation against [respondent]).”). 

But even if Akins did somehow find such prosecutorial discretion dismissals 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 42 of 71
31

reviewable, this would not constitute the binding holding necessary before this 

Court can disregard Commission on Hope, which, unlike Akins, did have such a 

dismissal before it. (Br. at 16 (citing Gersman v. Grp. Health Ass’n, 975 F.2d 886, 

897 (D.C. Cir. 1992)).) 

2. Commission on Hope Does Not Conflict with Circuit 

Precedent 

For similar reasons, Complainants also fail to establish that the circuit 

authority they cite conflicts with Commission on Hope. (Br. at 21 (citing DCCC, 

Chamber of Commerce, and Orloski).) None of those cases reviewed a 

Commission decision not to proceed with an enforcement matter that was 

explained as an exercise of prosecutorial discretion. DCCC, 831 F.2d at 1133 

(reviewing an unexplained Commission dismissal); Chamber of Commerce, 69 

F.3d at 603 (reviewing a challenge to a Commission rule); Orloski, 795 F.2d at 160 

(reviewing a dismissal based on a “no reason to believe” finding). Therefore, none 

decided the precise issue addressed in Commission on Hope. 

In DCCC, for example, this Court considered an unexplained dismissal from 

a split vote, finding the mere fact that such a vote occurred did not necessarily 

mean that the Commission intended to invoke its prosecutorial discretion. 831 

F.2d at 1133-35. In Commission on Hope, by contrast, the dismissal was expressly 

based on an invocation of prosecutorial discretion and adequately explained. 

Although DCCC “presum[ed]” that a properly explained decision invoking 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 43 of 71
32

prosecutorial discretion would be reviewable, it did not definitively conclude that 

was the case. Id.; see also id. at 1135 n.5 (“arguendo, assuming reviewability”). 

DCCC’s holding was that Commission dismissals must be sufficiently explained 

so courts can discern the agency’s path, id. at 1134; the case determined that they 

are “reviewable” only in that sense. Commission on Hope is consistent with that 

holding. 

Complainants are similarly mistaken in arguing that Commission on Hope

conflicts with Chamber of Commerce. That case considered whether a 3-to-3 vote 

on a draft advisory opinion regarding an FEC regulation deprived a plaintiff of 

standing for a pre-enforcement court challenge to the regulation. 69 F.3d at 603. 

According to the explanations for their advisory opinion votes, four 

Commissioners believed the proposed activity would violate the regulation, but 

one of them “believed [the regulation] should be withdrawn,” and two 

Commissioners believed the proposed activity did not violate the regulation. Id. 

Because the Commission lacked the four votes necessary to issue an advisory 

opinion, the FEC’s briefs argued that the appellants lacked standing for their preenforcement challenge because there was no “present danger” of the Commission 

pursuing enforcement against appellants, which likewise required four votes. Id. 

Since the regulation nonetheless remained in force, however, this Court held 

that the threat of enforcement remained due to the possibility Commissioners could 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 44 of 71
33

change their mind and enforce the regulation against appellants. Id. This fact, 

combined with the appellants already altering their behavior to conform to the 

regulation and the FEC admitting it did not recommend violating the regulation, 

“seem[ed] to confer standing on appellants.” Id. 

In addition, this Court found that the possibility of a theoretical 

administrative complainant challenging a theoretical Commission dismissal for the 

reasons stated in the Commissioners’ explanations of their advisory opinion votes 

further supported finding standing for appellants’ pre-enforcement challenge. Id. 

The Court reasoned “it would be easy to establish that such agency action was 

contrary to law” because “the Commission’s refusal to enforce would be based not 

on a dispute over the meaning or applicability of the rule’s clear terms, but on the 

Commission’s unwillingness to enforce its own rule.” Id. So “even without a 

Commission enforcement decision,” the Court found appellants were potentially 

“subject to litigation challenging the legality of their actions if contrary to the 

Commission’s rule.” Id. 

The Commissioner statement this Court specifically relied on explained the 

view that the regulation was legally unenforceable — not that the Commissioner 

was exercising “prosecutorial discretion” as in Commission in Hope. Statement of 

Comm’r Lee Ann Elliott Regarding Advisory Op. Request 1994-4 (Oct. 26, 1994), 

https://www.fec.gov/files/legal/aos/1994-04/1079290.pdf. A dismissal based only 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 45 of 71
34

on her belief the regulation was legally unenforceable because the Commission 

lacked the statutory authority for the regulation and enforcing it against appellants 

would violate the Constitution is, a fortiorari, a dismissal based entirely on a legal 

determination that a claim under the regulation lacked merit — which Commission 

on Hope agreed would be judicially reviewable. 

To the extent Chamber of Commerce can nonetheless be read as holding that 

any actual exercise of prosecutorial discretion to dismiss a meritorious complaint is 

“per se ‘contrary to law’” (Br. at 25), subsequent Supreme Court authority 

expressly recognized the Commission could lawfully exercise prosecutorial 

discretion to dismiss a meritorious claim. Akins, 524 U.S. at 25; Citizens for 

Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) 

(“Am. for Tax Reform”) (“The Supreme Court in Akins recognized that the 

Commission, like other Executive agencies, retains prosecutorial discretion.”). 

And “it is black letter law that a circuit precedent eviscerated by subsequent 

Supreme Court cases is no longer binding on a court of appeals.” Dellums v. U.S. 

Nuclear Regulatory Comm’n, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988). 

Finally, Orloski also does not conflict with Commission on Hope. It did not 

“recognize[] that all FEC dismissals are subject to review to determine whether 

they are contrary to law.” (Br. at 25.) Orloski involved a dismissal based on a 

unanimous vote that “there was ‘no reason to believe that the Act had been 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 46 of 71
35

violated.’” 795 F.2d at 160. It did not even mention a dismissal of a potentially 

meritorious claim based on prosecutorial discretion, much less make any binding 

holdings regarding judicial review of such dismissals. 

In addition, Commission on Hope expressly found: “FECAs ‘contrary to 

law’ formulation . . . reflects APA § 706(2)(A), which requires the court to ‘hold 

unlawful and set aside agency action’ that is ‘arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law[.]’” Comm’n on Hope, 892 

F.3d at 437. And the Court expressly cited Orloski, as well as Hagelin, as the basis 

for its finding. Comm’n on Hope, 892 F.3d at 437 n.3. Yet Hagelin exclusively 

reviewed for “abuse of discretion” a Commission finding of “no reason to believe” 

the respondent violated FECA based solely on the Commission’s specific 

application of an otherwise permissible interpretation of the statute. A dismissal 

based on a finding that there is “no reason to believe” or “no probable cause to 

believe” based on application and interpretation of FECA is simply not the same as 

a finding that the respondents likely did violate the law but the matter should 

nevertheless be dismissed for prosecutorial discretion. (Contra Br. at 25-26.) 

Accordingly, when Commission on Hope was drawing a distinction between 

prosecutorial discretion dismissals not subject to “abuse of discretion” review and 

dismissals based entirely on the Commission’s “interpretation of FECA” that were 

subject to that review, the latter category merely pertained to dismissals based 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 47 of 71
36

entirely on a Commission finding that there was “no reason to believe” or “no 

probable cause to believe” that the respondent violated the Act (as in Orloski and 

Hagelin) — not on whether that determination was, in turn, itself based only on the 

Commission’s impermissible statutory interpretation or, as in Hagelin, based only 

on the Commission’s specific application of an otherwise permissible 

interpretation of the Act. Accordingly, not only did Orloski fail to make the 

requisite binding holding, Commission on Hope did not even conflict with 

Orloski’s dicta. 

In sum, Complainants have not cited any precedent that conflicts with 

Commission on Hope, which thus remains binding here. 

D. Complainants’ Arguments that Commission on Hope Was 

Wrongly Decided Are Misplaced 

Complainants devote the majority of their brief to arguing that Commission 

on Hope was wrongly decided. (Br. at 27-53.) But even if the panel here would 

have elected a different approach if writing on a blank slate, it remains bound by 

Commission on Hope. “One three-judge panel . . . does not have the authority to 

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

1389, 1395 (D.C. Cir. 1996); see also United States v. Eshetu, 898 F.3d 36, 37 

(D.C. Cir. 2018) (“Whatever the clean-slate merits of the [appellants’] 

construction, we as a panel are not at liberty to adopt it” since “one panel cannot 

overrule another.” (internal citations omitted)). In any event, Complainants’ 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 48 of 71
37

arguments regarding deference, the First Amendment, purported Commissioner 

bad faith, and FECA’s structure fail to provide grounds for departing from this 

Court’s previous ruling. 

1. Complainants’ Position Is Contrary to the Well-Established 

Deference Accorded Controlling Groups 

It is Complainants’ position, not the court below, that is in serious conflict 

with circuit precedent. Their argument that a controlling statement of reasons in a 

split-vote dismissal does not provide the agency’s reasoning (Br. 28-30 & n.14) 

runs contrary to long-standing circuit precedent. While true that a controlling 

statement does not bind the agency in future matters,Common Cause, 842 F.2d at 

449 n.32, “[s]ince those Commissioners constitute a controlling group for purposes 

of the decision [at issue], their rationale necessarily states the agency’s reasons for 

acting as it did.” NRSC, 966 F.2d at 1476 (emphasis added). This Court has 

reiterated that for nearly three decades. See Pub. Citizen, Inc. v. FERC, 839 F.3d 

1165, 1171 (D.C. Cir. 2016); FEC v. NRA, 254 F.3d 173, 185-86 (D.C. Cir. 2001);

In re Sealed Case, 223 F.3d 775, 779-81 (D.C. Cir. 2000) (“Sealed Case”); 

Common Cause, 842 F.2d at 449; DCCC, 831 F.2d at 1134-35.

In addition to Commission on Hope, Complainants explicitly ask this Court 

to overrule Sealed Case and NRSC (Br. at 29 n.14), which both held that a 

controlling statement deserves deference, even though it is not joined by four or 

more Commissioners. Sealed Case, 223 F.3d at 780; NRSC, 966 F.2d at 1476. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 49 of 71
38

While Complainants rely upon Kisor v. Wilkie (Br. at 29 n.14), Kisor expressly 

held that a regulatory interpretation does not need to be binding in future cases to 

warrant deference. 139 S. Ct. 2400, 2416-17 & n.6 (2019). Complainants also cite 

United States v. Mead Corp., 533 U.S. 218 (2001), but this Court has already 

reaffirmed the validity of Sealed Case in a post-Mead decision. NRA, 254 F.3d at 

184-86. 

The dismissal here deserves deference because it was “analogous to a formal 

adjudication.” Sealed Case, 223 F.3d at 780; see also City of Arlington, Tex. v. 

FCC, 569 U.S. 290, 306 (2013) (“What the [Complainants] need[], and [have] 

fail[ed] to produce, is a single case in which a general conferral of rulemaking or 

adjudicative authority has been held insufficient to support Chevron deference for 

an exercise of that authority within the agency’s substantive field.” (emphasis 

added)). In any event, the dismissal here has legal force, despite the split vote, 

because it resolved the underlying matter and precludes further enforcement 

proceedings against New Models. Crossroads Grassroots Policy Strategies v. 

FEC, 788 F.3d 312, 316, 319 (D.C. Cir. 2015). 

Sealed Case and NRSC thus remain good law. Citizens for Responsibility & 

Ethics in Wash v. FEC, 209 F. Supp. 3d 77, 85 n.5 (D.D.C. 2016) (“Am. Action 

Network”). Complainants’ position is predicated upon overruling multiple prior 

decisions and obviously out-of-step with this Court’s jurisprudence. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 50 of 71
39

2. Complainants Fail to Establish that FEC Commissioners 

Rotely Cite Prosecutorial Discretion in Bad Faith 

Complainants’ assertion that Commissioners will use prosecutorial 

discretion as a pretext to improperly immunize dismissals from judicial review (Br. 

at 12, 18, 30, 31, 45) lacks legal and factual support. As a matter of law, their 

arguments contravene the well-established “presumption of honesty and integrity 

in those serving as [agency] adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 

(1975). Complainants advocate the opposite presumption: that the unreviewability 

of prosecutorial discretion will cause Commissioners to purposefully misrepresent 

the bases for their votes. However, this Court has held: “We must presume an 

agency acts in good faith.” Comcast Corp. v. FCC, 526 F.3d 763, 769 n.2 (D.C. 

Cir. 2008); see also United States v. Armstrong, 517 U.S. 456, 464 (1996) 

(“prosecutorial decisions” of Executive Branch appointees are afforded a 

“presumption of regularity”); PETA v. Dep’t of Ag., 918 F.3d 151, 157 (D.C. Cir. 

2019); Friedman v. FAA, 841 F.3d 537, 541 n.1 (D.C. Cir. 2016). 

That certain Commissioners have exercised their prosecutorial discretion 

when dismissing some matters since Commission on Hope (Br. at 30-31 nn.16-17) 

does not demonstrate that they did so in bad faith. The Supreme Court and this 

Court previously held that the Commission could lawfully exercise its 

prosecutorial discretion. Akins, 524 U.S. at 25; Am. for Tax Reform, 475 F.3d at 

340. Moreover, the Commission has continued to pursue enforcement of political 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 51 of 71
40

committee and other violations. Indeed, in the 2019 fiscal year after Commission 

on Hope, the FEC obtained agreements or settlements or imposed fines in 192 

enforcement matters for over $2.7 million in civil penalties, the highest amount in 

over 10 years.4

 The Commission has also continued to dismiss matters based 

solely on a “no reason to believe” finding, which are judicially reviewable under 

Commission on Hope, including in matters with political-committee issues.5

 

Contrary to Complainants’ suggestion (Br. at 30-31 & n.17) that two particular 

Commissioners will immunize statutory interpretation, that group of 

Commissioners justified dismissal of at least thirteen matters after Commission on 

Hope without relying on prosecutorial discretion.6

 

                                                            

4

 FEC, FEC Enforcement Statistics 1997-2019 (last updated Oct. 17, 2019), 

https://transition.fec.gov/press/bkgnd/documents/enforcementstats1975to2019_001

.pdf. Any matters currently under investigation cannot be disclosed. 52 U.S.C. § 

30109(a)(12). 

5

 See MURs 7309/7399 (Crowdpac, Inc.) (June 7, 2019), 

https://www.fec.gov/files/legal/murs/7309/19044417414.pdf; MUR 7345 

(Providence Democratic Comm.) (Feb.8, 2019), 

https://www.fec.gov/files/legal/murs/7345/19044456613.pdf.

6

 See Statements of Reasons of Comm’rs Matthew Petersen and Caroline 

Hunter in MUR 6848 at 2 n.7 (Friends of George Demos) (Aug. 30, 2019), 

https://eqs.fec.gov/eqsdocsMUR/6848_2.pdf; MUR 6932 (Hillary Rodham 

Clinton) (Aug. 30, 2019), https://eqs.fec.gov/eqsdocsMUR/6932_1.pdf; 

MUR 7006 (Heaney for Cong.) (Aug. 30, 2019), 

https://eqs.fec.gov/eqsdocsMUR/7006_2.pdf; MURs 7304/7331 (Hillary Victory 

Fund) (Aug. 30, 2019), https://eqs.fec.gov/eqsdocsMUR/7331_2.pdf; MUR 7432 

(John James for Senate, Inc.) (Aug. 30, 2019), 

https://eqs.fec.gov/eqsdocsMUR/7432_2.pdf; MUR 7416 (Unknown Respondent) 

(Aug. 29, 2019), https://eqs.fec.gov/eqsdocsMUR/7416_1.pdf; MURs 6789 (Zinke 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 52 of 71
41

Significantly, as discussed above, Commission on Hope recognized that, if 

the Commission did cease to enforce campaign law in the future (Br. at 18, 30), 

judicial review would be available. Comm’n on Hope, 892 F.3d at 440 n.9 (review 

available where an agency had “consciously and expressly adopted a general 

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

responsibilities.” (quoting Chaney, 470 U.S. at 833 n.4)). 

It also bears repeating that, despite Complainants’ repeated attestations to 

the contrary (Br. at 12, 18, 34), Commission on Hope does not bar all future review 

of FEC dismissals. Unlike most agencies’ non-enforcement decisions, FEC 

dismissals based entirely on a no-violation determination are reviewable. Comm’n 

on Hope, 892 F.3d at 411 n.11. So FECA’s very limited private cause of action 

provision continues to apply where appropriate. (Contra Br. at 32.) 

Accordingly, Complainants fail to substantiate their assertion that 

Commission on Hope is the harbinger of unmitigated nonenforcement. 

3. Discretionary FEC Dismissals Do Not Violate 

Complainants’ First Amendment Rights 

Complainants’ argument that they have a First Amendment right to receive 

                                                            

for Cong.) and 6852 (Special Operations for Am.) (May 28, 2019), 

https://eqs.fec.gov/eqsdocsMUR/6789_1.pdf; MURs 6781/6786/6802 (Nat’l 

Republican Cong. Comm.) (May 22, 2019), 

https://eqs.fec.gov/eqsdocsMUR/6781_2.pdf; MUR 6928 (Richard John “Rick” 

Santorum) (May 20, 2019), https://eqs.fec.gov/eqsdocsMUR/6928_2.pdf. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 53 of 71
42

information required to be disclosed under FECA, which the Commission then 

violates when exercising its prosecutorial discretion, is also unfounded. (Br. at 50-

53.) Though FECA’s disclosure provisions further the “First Amendment interests 

of individual citizens seeking to make informed choices in the political 

marketplace,” McConnell v. FEC, 540 U.S. 93, 197 (2003) (internal quotation 

marks omitted), Complainants claim a right to information whose availability 

under FECA is a matter of dispute. Whether the FEC’s decision was contrary to 

law is the question before the Court and the answer to that question determines 

whether Complainants or the public were potentially deprived of information to 

which they were entitled, not the other way around. See Van Hollen, 811 F.3d at 

494 (“Just because one of [the statute]’s purposes (even chief purposes) was 

broader disclosure does not mean that anything less than maximal disclosure is 

subversive.”). Complainants’ backwards, results-oriented approach places the cart 

before the horse. The controlling group reasonably concluded here that the subject 

organization did not trigger the public disclosure regime. See infra Part III. 

Complainants’ approach perversely purports to require investigations of all 

speakers to comply with the First Amendment and should be rejected. See FEC v. 

Machinists Non-Partisan Political League, 655 F.2d 380, 394 (D.C. Cir. 1981) 

(holding that, because evaluating political-committee status arises in the “delicate” 

First Amendment area, “there is no imperative” to stretch the statute); cf. Van 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 54 of 71
43

Hollen, 811 F.3d at 499 (“By tailoring the disclosure requirements to satisfy 

constitutional interests in privacy, the FEC fulfilled its unique mandate.”).7

 

The cases involving other contexts cited by Complainants are inapposite. 

While the First Amendment may protect the right to receive information from 

government interference in certain circumstances, that right “presupposes a willing 

speaker.” Gregg v. Barrett, 771 F.2d 539, 547 (D.C. Cir. 1985) (quoting Va. St. 

Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 

(1976)). A dismissal based on prosecutorial discretion in no way prevents or 

otherwise interferes with a person’s ability to provide information voluntarily. The 

prior restraint cases Complainants rely on are thus inapposite, as are those 

involving government interference, in a public forum or otherwise, with 

communications between a willing speaker and a willing listener. E.g., compare 

Br. at 50-52, with Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989) 

                                                            

7

 The vacated decision in Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en 

banc), vacated 524 U.S. 11 (1998), does not support Complainants’ position either. 

(Br. at 50, 53.) When that decision mentioned potential “First Amendment 

concerns,” it was referring to an aspect of the Commission’s interpretation of what 

constitutes a “political committee,” which focused the major purpose inquiry on 

the purpose of the organization itself not merely the purpose of particular 

disbursements. Akins, 101 F.3d at 744. The Commission’s ability to occasionally 

exercise its prosecutorial discretion due to the particularized circumstances of an 

individual case was not referenced. Notably, aspects of the Commission’s major 

purpose interpretation that were rejected in the vacated Akins opinion have since 

been widely upheld, e.g., Real Truth, 681 F.3d at 556, and were uncontested 

below. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 55 of 71
44

(“[T]he regulations we have found invalid as prior restraints . . . gave public 

officials the power to deny use of a forum in advance of actual expression.”). 

Moreover, judicial review may be available for an as-applied challenge if a 

complainant was a victim of unconstitutional selective prosecution. See Wayte v. 

United States, 470 U.S. 598, 608 (1985). 

4. FECA Does Not Mandate Investigations of Every Apparent 

Violation 

 FECA does not withdraw all prosecutorial discretion from the Commission 

until after an investigation has been completed and the agency is on the cusp of 

initiating a civil action. It simply directs that the Commission “shall” take specific 

actions “if” it “determines, by an affirmative vote of 4” or more Commissioners, to 

make certain predicate legal determinations. 52 U.S.C. § 30109(a)(2), (a)(4)(A)(i) 

(emphasis added). Complainants remarkably contend that the Commission must

proceed just short of filing a civil action, through an investigation, contested 

briefing, and conciliation efforts, for every apparent violation. (Br. at 29-30 nn.13 

& 15, 39-40.) No matter how small-scale, inconsequential, or difficult to prove the 

allegations, or how blameless a respondent may be. But FECA’s direction that the 

Commission “shall” undertake actions if it makes determinations at various 

junctures does not “constrain the Commission’s discretion whether to make those 

legal determinations in the first instance.” Comm’n on Hope, 892 F.3d at 439. 

FECA simply does not compel the Commission to pursue all potentially 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 56 of 71
45

meritorious allegations of campaign finance violations. Akins, 524 U.S. at 25; Am. 

for Tax Reform, 475 F.3d at 340. 

Ultimately, FECA provides “the Commission may . . . institute a civil 

action[.]” 52 U.S.C. § 30109(a)(6)(A). “To state the obvious, the word ‘may’ 

imposes no constraints on the Commission’s judgment about whether, in a 

particular matter, it should bring an enforcement action.” Comm’n on Hope, 892 

F.3d at 439. FECA thus does not cabin the Commission’s prosecutorial discretion 

in the manner Complainants suggest. 

By way of contrast, Chaney distinguished Dunlop v. Bachowski, 421 U.S. 

560 (1975), where the Supreme Court found the agency’s decision not to enforce 

judicially reviewable because, inter alia, “[t]he statute being administered quite 

clearly withdrew discretion from the agency” to decline to pursue certain 

meritorious complaints, i.e. removed the agency’s prosecutorial discretion in 

certain cases. Chaney, 470 U.S. at 834.8

 

Nor can FECA’s “contrary to law” standard provide the requisite “law to 

apply” in the discretionary dismissal context. Complainants’ arguments to the 

contrary (Br. at 42) “confuse[] the presence of a standard of review with the 

existence of law to apply.” Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003). 

                                                            

8

 Dunlop, 421 U.S. at 563 n.2 (“The Secretary shall” in certain circumstances 

“bring a civil action[.]” (quoting 29 U.S.C. § 482(b)) (emphasis added)). 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 57 of 71
46

If such a general review provision provided the requisite meaningful limitation and 

standard for overcoming the presumption against reviewability of agency nonenforcement decisions, then “no agency action could even be committed to agency 

discretion by law.” Id.; also compare 52 U.S.C. § 30109(a)(8)(A), with 5 U.S.C. § 

706(2)(A). 

Fundamentally, Complainants’ argument misconceives the relative domains 

of expertise of the FEC and the courts. While courts may have expertise in 

determining whether the FEC may proceed with an enforcement claim, the FEC 

determines whether the agency should pursue a particular enforcement claim. That 

latter determination is in the heartland of the FEC’s expertise and regulatory 

authority. Chaney, 470 U.S. at 831-32. By considering each case individually and 

pursuing enforcement matters where appropriate, the Commission operates as 

Chaney intended. 

With the four-vote requirement, Congress was generally guarding against

the risk of partisan or ill-considered use of enforcement powers. Combat Veterans 

for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015); 

Pub. Citizen, 839 F.3d at 1171 (explaining that “unlike other agencies — where 

deadlocks are rather atypical — [the Commission] will regularly deadlock as part 

of its modus operandi”); see also Chaney, 470 U.S. at 832 (“[W]hen an agency 

refuses to act it generally does not exercise its coercive power over an individual’s 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 58 of 71
47

liberty or property rights.”). “Congress vested enforcement power in the FEC, 

carefully establishing rules that tend to preclude coercive Commission action in a 

partisan situation, where the Commission, itself statutorily balanced between the 

major parties, . . . is evenly split.” Sealed Case, 223 F.3d at 780 (emphasis added).

By providing in FECA that it takes four Commissioner votes to proceed on an 

enforcement matter, but only three to cause a file to be closed, Congress sought to 

ensure that the agency would not “provide room for partisan misuse.” H.R. 12406, 

H. Rep. No. 94-917, 94th Cong., 2d Sess. at 3 (1976). Whether that design is 

considered a feature, as Congress understood it, or a defect, as Complainants do, a 

dismissal resulting from an absence of a majority furthers the Congressional intent 

of requiring that any federal campaign finance enforcement be the product of the 

Commissioners’ bipartisan expertise. 

Given its emphasis on bipartisan consensus, Congress likely did not intend 

for potentially politically-motivated administrative complainants to act as co-equal 

enforcers of federal campaign finance law, which governs constitutionallyprotected political activity. Complainants thus greatly overstate their role under 

FECA. (E.g., Br. at 32-33.) Had Congress intended to provide for citizen suits 

upon the mere election of the FEC not to proceed as a matter of prosecutorial 

discretion, it could easily have done so. Many other federal statutes permit citizen 

suits upon the mere declination of the relevant federal agency to pursue 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 59 of 71
48

enforcement. E.g., 42 U.S.C. § 2000e-5(f)(1) (Equal Employment Opportunity 

Commission); 33 U.S.C. § 1365 (Environmental Protection Agency); 31 U.S.C. § 

3730 (False Claims Act). Complainants’ reliance on statutory schemes providing 

for “[e]nforcement by private attorneys general” merely underscores, rather than 

undercuts, how divorced their arguments are from FECA’s actual text. 

In stark contrast to private attorneys general provisions, FECA vests the 

Commission with “exclusive jurisdiction with respect to the civil enforcement of 

[the Act].” 52 U.S.C. § 30106(b)(1). Private parties cannot seek relief for an 

alleged FECA violation directly in court, but rather are required to file a complaint 

with the Commission, upon which the Commission determines whether to proceed. 

Perot v. FEC, 97 F.3d 553, 557-59 (D.C. Cir. 1996). The agency has the 

unreviewable authority to conciliate with all respondents identified in 

administrative complaints. E.g., Citizens for Responsibility & Ethics in Wash. v. 

FEC, 363 F. Supp. 3d 33, 40-44 (D.D.C. 2018). And while complainants can seek 

judicial review of a dismissal, the sole remedy the Court may grant is a declaration 

“that the dismissal of the complaint or the failure to act is contrary to law” and an 

order “direct[ing] the [FEC] to conform with such declaration within 30 days.” 52 

U.S.C. § 30109(a)(8)(C). If — and only if — the court finds the dismissal 

rationale to be contrary to law and the Commission fails to conform, does 

Congress then grant the administrative complainant a private right of action against 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 60 of 71
49

respondents. Id.; FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 

480, 488 (1985). 

These numerous procedural steps set a very high bar in contrast to more 

extensive private attorneys general provisions, thereby demonstrating that 

Congress intended private FECA suits to be extremely rare. This is with good 

reason. The FEC is not like the other agencies cited by Complainants. (E.g., Br. at 

44.) “Unique among federal administrative agencies, the Federal Election 

Commission has as its sole purpose the regulation of core constitutionally 

protected activity.” AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003). While 

the Constitution requires the FEC to conduct enforcement proceedings in a manner 

sensitive to respondents’ First Amendment rights, e.g., id., as private individuals, 

complainants are not so bound. FECA’s private cause of action thus must be 

narrowly construed to avoid “political opponents . . . fil[ing] charges against their 

competitors to serve the dual purpose of ‘chilling’ the expressive efforts of their 

competitor and learning their political strategy so that it can be exploited to the 

complainant’s advantage.” Id. at 178 (internal quotation marks omitted). 

Complainants worry that private claims may not be brought if the Commission 

“lawfully decides a complaint lacks merit” (Br. at 48), but preventing private 

partisans from filing meritless complaints against each other was the statutory 

design. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 61 of 71
50

Finally, Complainants’ argument that the FEC acts as a complete 

adjudicator, not a prosecutor runs contrary to FECA. (Br. at 48.) The Commission 

has no authority to impose penalties or any other remedy on its own through its 

ordinary enforcement procedures. If the Commission is unable to enter into a 

conciliation agreement, it must file a de novo civil action. 52 U.S.C. § 

30109(a)(6)(A). Moreover, although an enforcement matter may be initiated by 

the filing of an administrative complaint, the FEC does not purport to be acting on 

a complainants’ behalf in enforcement proceedings or in any subsequent civil 

enforcement action. The Commission was not here engaging in “determining the 

merits of a legal controversy among adverse parties,” like the adjudication between 

“pipelines” and “producers” in Burlington Resources Inc. v. FERC, 513 F.3d 242, 

247 (D.C. Cir. 2008). The FEC was instead reviewing for potential public 

enforcement an allegation of violation that could lead at most to a “widely shared” 

injury. Akins, 524 U.S. at 24-25. 

  

 The court below correctly found the controlling statement was unreviewable 

under Commission on Hope. 

III. IN THE ALTERNATIVE, THE DISMISSAL WAS NOT CONTRARY 

TO LAW 

A. If Reviewable, This Court Should Address the Merits

In the unlikely event this Court deems the dismissal reviewable, a remand 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 62 of 71
51

would not be necessary. The merits were fully briefed below, and “[t]he agency 

record is before [this Court] now just as it would be before the district court on 

remand.” Friends of Blackwater v. Salazar, 691 F.3d 428, 434 n.* (D.C. Cir. 

2012). “[T]he district court has no comparative advantage in reviewing agency 

action for arbitrariness and capriciousness,” id.; and “[this Court’s] review of the 

district court’s decision post-remand would be de novo,” WildEarth Guardians v. 

Jewell, 738 F.3d 298, 308 n.4 (D.C. Cir. 2013). Accordingly, if review is 

appropriate, it is so now for purposes of efficiency. Mendoza v. Perez, 754 F.3d 

1002, 1020 (D.C. Cir. 2014). 

B. Deferential Contrary to Law Review 

Dismissal of an administrative complaint cannot be disturbed unless it was 

“contrary to law,” 52 U.S.C. § 30109(a)(8)(C), i.e., based on an “impermissible 

interpretation of” FECA or was otherwise “arbitrary or capricious, or an abuse of 

discretion.” Orloski, 795 F.2d at 161. This standard simply requires that the 

Commission’s decision was “sufficiently reasonable to be accepted.” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 39 (1981). 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 63 of 71
52

C. The Dismissal Was Not Contrary to Law 

Even if, arguendo, judicial review is appropriate in this case, dismissing the 

administrative complaint was not contrary to law and thus must be affirmed. Since 

the controlling Commissioners’ analysis rested on two independent grounds 

(JA122 n.95) — the dismissal should be affirmed if either basis is found 

reasonable.

1. The Controlling Commissioners’ Interpretation of FECA’s 

Statutory Threshold Was Reasonable 

An organization is a “political committee” only if it “receives contributions” 

or “makes expenditures” in excess of $1,000 in a calendar year.9

 52 U.S.C. § 

30101(4)(A). The term “political committee,” as well as the phrase “for the 

purpose of . . . influencing” included in FECA’s definitions of “contribution” and 

“expenditure,” are ambiguous. Buckley, 424 U.S. at 77, 79, 80. The controlling 

Commissioners’ interpretation that making “contributions” to independentexpenditure-only political committees should not be treated as making 

                                                            

9

 Complainants did not contest, and thus have waived the right to challenge, 

the controlling Commissioners’ conclusion that New Models did not “receive[] 

contributions” in excess of $1,000 (JA120-21). Chichakli v. Tillerson, 882 F.3d 

229, 234 (D.C. Cir. 2018). Only New Models’ contributions to other groups are at 

issue. 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 64 of 71
53

“expenditures” for purposes of the statutory threshold for “political committees” 

was reasonable. 

First, the controlling Commissioners recognized that, despite their similar 

definitions, “the Act differentiates between ‘contributions’ and ‘expenditures’ 

throughout its provisions.” (JA122.) Rather than finding “contributions” to super 

PACs to be “expenditures,” they thought “the better course is to maintain the 

distinction between [the terms] that exists throughout the Act, Commission 

regulations, and case law.” (Id. & n.93.) FECA’s coordinated expenditure 

provisions support the controlling Commissioners’ conclusion that a single 

transaction should not be deemed both an expenditure and a contribution by the 

same entity. 52 U.S.C. § 30116(a)(7)(C)(ii). 

Second, the First Amendment concerns for regulating contributions and 

expenditures have been viewed as different. Buckley, 424 U.S. at 21. And since 

super PACs do not make contributions to candidates and instead make independent 

expenditures, which “do not give rise to corruption or appearance of corruption,” 

any potential corruption concern from contributions to such groups is further 

attenuated. (JA122 n.92 (quoting Citizens United v. FEC, 558 U.S. 310, 357 

(2010)).) 

Third, the controlling Commissioners reasonably interpreted FECA’s $1,000 

expenditure threshold for political committees to serve as a dividing line “to 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 65 of 71
54

distinguish between ordinary contributors and political committees” (JA120), and 

is consistent with Buckley, which explained: 

Some partisan committees groups within the control of the candidate 

or primarily organized for political activities will fall within [the 

disclosure provision governing non-political committees] because 

their contributions and expenditures fall in the $100-to-$1,000 range. 

Groups of this sort that do not have contributions and expenditures 

over $1,000 are not “political committees” within the definition in § 

431(d) [(now § 30101(4)(A))] . . . . 

424 U.S. at 79 n.107. Since the Supreme Court interpreted “expenditure” for 

purposes of the disclosure provision for non-political committees to only reach 

independent expenditures, id. at 80, “expenditure” for purposes of the statutory 

definition of “political committee” reasonably could be interpreted in the same 

way, i.e., to apply only to independent expenditures. 

2. The Controlling Commissioners Reasonably Applied the 

Major Purpose Test 

The controlling group’s thorough analysis readily satisfies the highly 

deferential standard of review. They considered New Models’ organizational 

documents (JA123-24), public statements (JA124-26), as well as its spending in 

both 2012 and in other years (JA126-33). See Supplemental E&J, 72 Fed. Reg. at 

5601. And their conclusion that New Models did not have the requisite major 

purpose ultimately rested upon all these factors. (JA133; JA120.) 

In focusing exclusively on New Models’ relative spending below, 

Complainants conceded that the controlling Commissioners’ conclusion as to first 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 66 of 71
55

two of the three factors was reasonable. This concession is particularly important 

because the Commissioners’ finding regarding New Models’ public statements was 

crucial to their ultimate conclusion. (JA126.) They noted: “The Complaint does 

not identify a single statement in over 15 years where a representative of New 

Models indicated the major purpose of the organization was to nominate or elect 

federal candidates.” (JA125-26 (emphasis added).) They also reviewed New 

Models’ website and the documents accessible thereon, searched Commission 

archives, and considered New Models’ response and accompanying sworn 

declaration, which confirmed their independent findings. (Id.) The controlling 

group reasonably expected that, if New Models was changing its primary focus 

from issue-based advocacy and research to nominating or electing federal 

candidates, there would be at least some statement indicating that this was the case. 

Yet there was not a single one. 

As to New Models’ spending, the controlling Commissioners reasonably 

found that, when viewed “in the context of the organization’s history[] before and 

after” 2012, New Models’ 2012 spending alone did not demonstrate that it had the 

requisite major purpose. (JA133; see also JA123.) The controlling group 

expressly considered whether New Models’ extensive 2012 election-related 

spending indicated that the group’s major purpose had changed. (JA127 n.114; 

JA129 n.123.) Rather than signaling a fundamental shift in the group’s major 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 67 of 71
56

purpose, however, they concluded that 2012 was an outlier. (JA127 n.114; JA129 

n.123.) This conclusion is well-supported by the record, as the following graphical 

representation of New Models’ relative spending illustrates: 

 

(JA109; see also JA127 n.114 (citing chart).) And while the controlling 

Commissioners discussed New Models’ relative lifetime spending as a

consideration, they nowhere indicated that it was their only, or even the dispositive, 

consideration in determining New Models’ major purpose. Compare Am. Action 

Network, 209 F. Supp. at 94. 

 Complainants’ arguments below relied extensively on a mischaracterization 

of both a recent district court decision and the Commissioners’ rationale and thus 

do not satisfy their heavy burden to establish that the controlling group’s analysis 

was contrary to law. See id. (holding that considering “a particular organization’s 

full spending history as relevant” was not “per se unreasonable”). Further, by 

advocating for a bright-line spending rule, Complainants wrongfully disregarded 

$0

$500,000

$1,000,000

$1,500,000

$2,000,000

$2,500,000

$3,000,000

$3,500,000

$4,000,000

$4,500,000

$5,000,000

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Total Spent Contributions

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 68 of 71
57

the numerous cases upholding the Commission’s case-by-case approach, as well as 

the well-recognized discretion the Commission has in this area. Whatever the 

merits of their argument, Complainants cannot demonstrate that the controlling 

Commissioners’ alternative approach is contrary to law.

CONCLUSION 

The Commission respectfully requests that the district court’s judgment be 

affirmed. 

 Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

November 26, 2019 

/s/ Haven G. Ward 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 69 of 71
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify, on this 26th day of November, 2019, that: 

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7) 

because, excluding the parts of the document exempted by Fed. R. App. 

32(f) and Circuit Rule 32(e), this document contains 12,366 words. 

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

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

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word 2013 in a 14-point Times New Roman font. 

 /s/ Haven G. Ward

 Haven G. Ward 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 70 of 71
CERTIFICATE OF SERVICE 

 I hereby certify that on this 26th day of November, 2019, I electronically 

filed the foregoing document with the Clerk of the United States Court of Appeals 

for the D.C. Circuit by using the Court’s CM/ECF system. All participants are 

registered CM/ECF users and will be served by the appellate CM/ECF system. 

 /s/ Haven G. Ward

 Haven G. Ward 

USCA Case #19-5161 Document #1817819 Filed: 11/26/2019 Page 71 of 71