USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 1 of 41 

ORAL ARGUMENT HELD OCTOBER 19, 2023

DECISION ISSUED ON JANUARY 5, 2024

No. 22-5339 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:22-cv-01976-JEB 

Before the Honorable James E. Boasberg 

PETITION FOR REHEARING EN BANC 

Megan P. McAllen (DC Bar No. 1020509) 

Erin Chlopak (DC Bar No. 496370) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

Email: mmcallen@campaignlegalcenter.org 

Email: echlopak@campaignlegalcenter.org 

Counsel for Plaintiff-Appellant 
 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 2 of 41 

TABLE OF CONTENTS 

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

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

INTRODUCTION AND RULE 35(b) STATEMENT .............................................1 

STATEMENT OF THE CASE.................................................................................3 

REASONS FOR GRANTING REHEARING EN BANC .......................................7 

I. Immunizing the Commission’s Legal Errors from Review Contravenes 

FECA and Controlling Precedent ...................................................................8 

II. The Panel Decision Vitiates FECA’s Enforcement Scheme and the 

Critically Important Interests it Serves .........................................................15 

CONCLUSION .......................................................................................................17 

CERTIFICATE OF COMPLIANCE ......................................................................19 

CERTIFICATE OF SERVICE................................................................................20 

ADDENDUM 

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TABLE OF AUTHORITIES 

*Authorities upon which appellant principally relies are marked with an asterisk 

Cases: Page 

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) (en banc) ...........................................................14 

Buckley v. Valeo, 

424 U.S. 1 (1976)...............................................................................................16 

Campaign Legal Center v. FEC, 

89 F.4th 936 (D.C. Cir. 2024) ..............................................................7, 8, 10, 13 

Campaign Legal Center & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) ...........................................................7, 10, 11, 12 

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ...........................................................................2, 9 

CREW v. Am. Action Network, 

590 F. Supp. 3d 164 (D.D.C. 2022) ...................................................................11 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”)..................1, 3, 4, 8, 12 

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) ...................................................................11 

CREW v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) (“Commission on Hope II”)..................3, 12, 15 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) (“New Models”) ........................1, 3, 7, 10, 12, 13 

CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) (“New Models II”) .............1, 2, 3, 4, 9, 13, 16, 17 

*Democratic Congressional Campaign Committee v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”) .....................................................2, 9 

End Citizens United v. FEC, 

90 F.4th 1172 (D.C. Cir. 2024) ........................................................2, 4, 9, 12, 15 

*FEC v. Akins, 

524 U.S. 11 (1998)...............................................................................2, 8, 10, 14 

Heckler v. Chaney, 

470 U.S. 821 (1985).........................................................................................5, 8 

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I.C.C. v. Bhd. of Locomotive Engineers, 

482 U.S. 270 (1987)...........................................................................................13 

Lieu v. FEC, 

370 F. Supp. 3d 175 (D.D.C. 2019) ...................................................................11 

McConnell v. FEC, 

540 U.S. 93 (2003)...............................................................................................5 

*Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) .........................................................................2, 9 

Public Citizen v. FEC, 

547 F. Supp. 3d 51 (D.D.C. 2021) .....................................................................11 

Statutes: 

*52 U.S.C. § 30109(a)(8)....................................................................................4, 12 

52 U.S.C. § 30109(a)(8)(A) ....................................................................................15 

52 U.S.C. § 30109(a)(8)(C).............................................................................3, 9, 15 

Other Materials: 

Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (1998) (No. 96-1590), 1997 

WL 523890.........................................................................................................10 

Reply Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (1998) (No. 96-

1590), 1997 WL 675443 ....................................................................................10 

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GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center 

CREW Citizens for Responsibility and Ethics in Washington 

ECU End Citizens United PAC 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

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INTRODUCTION AND RULE 35(b) STATEMENT 

Rehearing is necessary to correct a line of recent rulings that flouts decades of 

settled precedent applying the special review provision in the Federal Election 

Campaign Act (FECA) and instead—contrary to express statutory directive— 

“arm[s] an agency minority with what is in effect a judicial-review kill switch.” 

Citizens for Resp. & Ethics in Washington (CREW) v. FEC, 55 F.4th 918, 922 (D.C. 

Cir. 2022) (“New Models II”) (Millet, J., dissenting from denial of rehr’g en banc). 

In following these rulings to hold the agency dismissal challenged here 

judicially unreviewable, the panel gravely compounded their errors. Its decision, like 

the divided panel rulings in CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New 

Models”), and CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“Commission on 

Hope”),1 gives minority blocs on the Commission the power to vanquish challenges 

to their interpretations of law by cloaking them in the “magic words” of prosecutorial 

discretion, without regard to whether that rule comports with the statutory text, 

governing precedent, or the public’s interest in fair and transparent elections. It 

emphatically does not. 

Like the CREW rulings on which it relies, the panel decision “[c]onflict[s] 

with FECA’s terms, structure, and purpose; with the Supreme Court’s decision in 

This petition refers to each CREW case by the name of the administrative 

respondent, and to the decisions collectively as the “CREW” cases. 

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[FEC v.] Akins, 524 U.S. 11 [(1998]; and with [this Circuit’s] decisions in Chamber 

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

Campaign Committee v. FEC (DCCC), 831 F.2d 1131 (D.C. Cir. 1987), and Orloski 

v. FEC, 795 F.2d 156 (D.C. Cir. 1986).” End Citizens United PAC v. FEC, 90 F.4th 

1172, 1184 (D.C. Cir. 2024) (“ECU”) (Pillard, J., dissenting). 

And by “effectively scuttl[ing] FECA’s enforcement mechanism,” id., the 

decisions eviscerate the campaign-finance restrictions and transparency 

requirements in FECA—“laws that protect the electoral building blocks of our 

democracy,” New Models II, 55 F.4th at 932 (Millett, J., dissenting from denial of 

rehr’g en banc). 

En banc review is therefore necessary to restore uniformity and coherence to 

this Circuit’s FECA decisions and bring them back into harmony with the statutory 

scheme Congress devised. The panel ruling, which “continues along the path marked 

by the wrong turn in Commission on Hope,” ECU, 90 F.4th at 1187 (Pillard, J., 

dissenting), demands prompt correction by the full Court.2

Congress expressly provided for judicial oversight of FEC enforcement 

dismissals to ensure that the Commission was not “turning a blind eye to illegal uses 

of money in politics, and burying information the public has a right to know.” 

Contemporaneously with this petition, plaintiff-appellant in ECU, No. 22-5277, 

is seeking en banc rehearing of the divided panel decision in 90 F.4th 1172 (D.C. 

Cir. 2024), which, like the ruling here, applies and extends the CREW cases. 

2 

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Commission on Hope, 892 F.3d at 442 (Pillard, J., dissenting). The panel decision, 

like the CREW decisions it followed, reads that safeguard out of the statute. By 

treating the Act’s “unusual” provision for judicial review as something that minority 

blocs of FEC commissioners can “turn . . . off like a light switch,” New Models, 993 

F.3d at 901 (Millett, J., dissenting), the decision flies in the face of the carefully 

balanced enforcement scheme prescribed by Congress and acutely impairs the Act’s 

core objectives. 

The Court should grant rehearing en banc. 

STATEMENT OF THE CASE 

1. “The Federal Election Commission is entrusted with the weighty 

responsibility of ensuring public transparency and accountability by those 

individuals and entities expending significant sums of money on our Nation’s 

elections.” New Models II, 55 F.4th at 922 (Millett, J., dissenting from denial of 

rehr’g en banc). Congress, mindful that the Commission’s partisan-balanced 

structure created a propensity for gridlock, gave the agency initial enforcement 

responsibility under FECA but crafted an unusual judicial review provision, 52 

U.S.C. § 30109(a)(8)(C), to ensure proper implementation of the Act. 

As a bulwark against “partisan gamesmanship,” CREW v. FEC, 923 F.3d 

1141, 1142 (D.C. Cir. 2019) (“Commission on Hope II”) (Griffith, J., concurring in 

denial of rehr’g en banc), and to “prevent the agency’s frequent deadlock from 

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sweeping under the rug serious campaign finance violations,” Commission on Hope, 

892 F.3d at 442 (Pillard, J., dissenting), Congress authorized complainants to seek 

judicial review when “aggrieved by” the dismissal of their enforcement complaints, 

and created a private right of action triggered only if, following review, the 

Commission fails to conform to a court order holding the challenged agency decision 

“contrary to law.” See 52 U.S.C. § 30109(a)(8). 

The special review provision Congress devised thus bears two unique 

features. First, “to avoid nullification of FECA by a non-majority bloc of 

commissioners refusing to act on apparent violations of campaign-finance laws, 

Congress made such refusals to act—no matter the reason—reviewable in court.” 

ECU, 90 F.4th at 1184 (Pillard, J., dissenting). Second, if the reviewing Court 

“detect[s] statutory misreading” but the agency fails to correct its error, “the court’s 

ruling paves the way for private enforcement.” Id. at 1187. Under this scheme, the 

Commission enjoys “the right of first refusal on enforcement,” but “no court will 

force it” to bring an enforcement action if it declines to do so following judicial 

review. New Models II, 55 F.4th at 929 (Millett, J., dissenting from denial of rehr’g 

en banc). 

2. Plaintiff-appellant Campaign Legal Center (CLC) filed an administrative 

complaint alleging that Donald J. Trump’s authorized 2020 presidential campaign 

committee, Donald J. Trump for President, Inc., and one of his authorized joint 

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fundraising committees, Trump Make America Great Again Committee, had 

violated the Act’s disclosure provisions. JA51. The complaint alleged, in essence, 

that the Committees had unlawfully concealed the true recipients of hundreds of 

millions of dollars in 2020 campaign spending by funneling payments to vendors 

and staff through conduits without reporting their ultimate payees as the law 

requires. See JA243. The allegations in the complaint were thoroughly supported 

with credible, uncontroverted evidence, and described clear violations of the Act’s 

disclosure provisions—laws that directly serve the vital interests of preventing 

political corruption and “providing the electorate with information” about federal 

campaign spending. McConnell v. FEC, 540 U.S. 93, 196 (2003). 

Yet the Commission, in the face of these glaring transparency violations and 

contrary to its own General Counsel’s recommendations, JA197-98, dismissed the 

complaint after deadlocking 3-3 on two separate votes: first, on whether to find 

“reason to believe” the Committees violated FECA, and second, on whether to 

exercise the Commission’s prosecutorial discretion and dismiss the complaint under 

Heckler v. Chaney, 470 U.S. 821 (1985). JA221-23. 

The three “controlling” commissioners undertook a thorough legal and factual 

analysis of the complaint and made conclusive legal determinations on the merits, 

but also characterized their decision as an exercise of prosecutorial discretion. 

JA224-36. In explaining their rationale, the commissioners narrowly construed the 

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relevant disclosure provisions as requiring subvendor itemization only if the named 

vendor served exclusively as a pass-through for the Committees’ disbursements to 

subvendors, JA229-32, acting “only out of a desire to conceal” the ultimate 

recipients, JA229 (emphasis added). They then opined that dismissal was warranted 

because, on the facts alleged, “the law does not require” the Committees to disclose 

the true recipients of disbursements made through conduits, and there was otherwise 

“insufficient factual or legal support” to proceed, JA235—conclusions they reached 

only by eschewing the legal standard dictated by FEC precedent in favor of an 

unduly stringent “intent to disguise” test of their own invention, and by categorically 

refusing to consider the unrebutted record evidence, see JA24-25. 

Two of the three dissenting commissioners who voted to approve the General 

Counsel’s reason-to-believe recommendation also issued a Statement of Reasons 

explaining their votes. JA237-41. As these commissioners highlighted, the 

complaint’s allegations were “meticulously documented,” involved the concealment 

of “exactly the type of information the FECA is intended to expose to the sunlight 

of disclosure,” and were analogous to reporting violations that the Commission had 

recently pursued against a political committee from the opposite party. JA 239-41. 

The commissioners concluded by observing that the differential treatment “carries 

the unmistakable stench of partisanship” and “damag[es] . . . the integrity of 

America’s campaign-finance process.” JA241. 

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3. CLC filed suit to challenge the dismissal. The district court, on the FEC’s 

preemptive motion to dismiss under Fed. R. Civ. P. 12(b)(6), concluded that “New 

Models’s quite capacious rule” precluded any review of the dismissal, JA46, JA49. 

The panel affirmed. Campaign Legal Center v. FEC, 89 F.4th 936, 942 (D.C. 

Cir. 2024). First, it found the commissioners’ Statement unreviewable under New 

Models because its “invocation of discretion was offered ‘in addition’ to,” rather 

than based on or intertwined with, its legal analysis, id. (quoting New Models, 993 

F.3d at 886)—notwithstanding that the Statement merges dispositive legal analysis 

with “discretionary” discussion in a manner quite distinct from the isolated 

invocation of discretion addressed in New Models. Second, the panel declined to 

give effect to the Supreme Court’s clear holding in Akins or the decades of 

controlling Circuit decisions affirming the reviewability of FEC enforcement 

dismissals, although “[t]he law of the circuit is clear . . . [and] was well-established 

long before the decision in [Commission on Hope],” Campaign Legal Center & 

Democracy 21 v. FEC, 952 F.3d 352, 362 (D.C. Cir. 2020) (Edwards, J., concurring) 

(citations omitted). 

REASONS FOR GRANTING REHEARING EN BANC 

En banc review is reserved for exceptional cases that break from established 

precedent or present urgent issues meriting the full Court’s consideration. Fed. R. 

App. P. 35(a). The decision here compels rehearing for both reasons. Like the CREW 

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cases on which it relies, the decision directly contravenes binding Supreme Court 

and Circuit precedent and vitiates the statutory enforcement scheme. The full Court’s 

intervention is needed to resolve the deepening conflict created by this line of 

decisions and restore the effective operation of a vitally important statute. 

I. Immunizing the Commission’s Legal Errors from Review Contravenes 

FECA and Controlling Precedent. 

As affirmed by the Supreme Court in Akins and in the long-established law of 

this Circuit, FEC enforcement dismissals, unlike the nonenforcement decisions of 

most other agencies, are subject to judicial oversight—because Congress expressly 

provided for such review in the FEC’s governing statute. In nevertheless applying 

the CREW cases to bar review here, the panel decision directly contravenes this 

authority. 

A. Like the CREW decisions it follows, the panel opinion rests on a premise 

flatly contradicted by governing precedent: that FEC dismissals are “control[led]” 

by Heckler, 470 U.S. 821, and its “presumption” that “an agency’s decision not to 

undertake enforcement” is not reviewable, Commission on Hope, 892 F.3d at 439. 

See CLC, 89 F.4th at 941. As the Supreme Court held in Akins, FECA “explicitly 

indicates the contrary.” 524 U.S. at 26. Therefore, and “[a]s the Supreme Court has 

specifically held, ‘reason-to-believe’ assessments under [FECA] are expressly 

excepted from the general presumption that decisions not to enforce the law are 

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unreviewable.” New Models II, 55 F.4th at 927 (Millett, J., dissenting from denial of 

rehr’g en banc). 

Until “the wrong turn in Commission on Hope,” ECU, 90 F.4th at 1187 

(Pillard, J., dissenting), this Circuit’s decisions had uniformly recognized the same. 

In DCCC, the Court definitively rejected the FEC’s argument “that deadlocks 

on the Commission are immunized from judicial review because they are simply 

exercises of prosecutorial discretion.” 831 F.2d at 1133-34 (citing Br. for the FEC at 

17-20). In so doing, the Court expressly declined to “confin[e] the judicial check [in 

§ 30109(a)(8)(C)] to cases in which . . . the Commission acts on the merits.” See id. 

at 1134-35 & n.5. 

Likewise, in Chamber of Commerce, the Court affirmed the reviewability of 

the FEC’s “unwillingness to enforce” the law, noting that FECA “is unusual in that 

it permits a private party to challenge the FEC’s decision not to enforce,” such that 

“even without a Commission enforcement decision, [administrative respondents] are 

subject to litigation.” 69 F.3d at 603. 

Finally, Orloski—which articulated the test courts have applied for decades 

when reviewing whether FEC dismissals are “contrary to law” under 

§ 30109(a)(8)(C)—also affirmed that FEC nonenforcement decisions are 

reviewable. Under the standard it established, an FEC dismissal is contrary to law if 

it was either based on an impermissible interpretation of the statute or, “under a 

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permissible interpretation of the statute, was arbitrary or capricious, or an abuse of 

discretion.” 795 F.2d at 161. 

B. The panel’s disregard for Akins and Circuit authority is not excused 

because the New Models majority “addressed these same objections.” 89 F.4th at 

942 (citing New Models, 993 F.3d at 890-95). New Models did try to justify its 

radical departure from precedent, but not successfully. First, it suggested that Akins 

can be limited to its facts, but that requires ignoring the Supreme Court’s clear 

holding that the presumption of nonreviewability is inapplicable in the FECA 

context. Akins, 524 U.S. at 26. And the assertion that Akins can be disregarded 

because the FEC nonenforcement decision it reviewed “did not invoke enforcement 

discretion as a basis for dismissal,” New Models, 993 F.3d at 893, is equally 

unavailing. Indeed, in its briefing to the Court in Akins, the FEC relied on Heckler, 

invoked its “authority to exercise prosecutorial discretion” as the reason plaintiffs 

lacked a redressable injury, and characterized the underlying administrative decision 

as “a discretionary judgment.” Br. for Petitioner at 23, 29, FEC v. Akins, 524 U.S. 

11 (1998) (No. 96-1590), 1997 WL 523890; Reply Br. for Petitioner at 9 n.8, FEC 

v. Akins, 524 U.S. 11 (1998) (No. 96-1590), 1997 WL 675443. 

The significant inconsistency and conflict in decisions since Commission on 

Hope further belies any suggestion that its rule “readily conforms with [the Court’s] 

earlier cases.” New Models, 993 F.3d at 893. Compare, e.g., Democracy 21, 952 

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F.3d at 356 (declining to decide whether to follow Commission on Hope and 

proceeding to consider the merits of a “discretion[ary]” dismissal), Lieu v. FEC, 370 

F. Supp. 3d 175, 183 (D.D.C. 2019) (noting that “FECA’s express provision for the 

judicial review of FEC dismissal decisions” rendered Heckler “inapposite”), and 

CREW v. FEC, 316 F. Supp. 3d 349, 421-22 (D.D.C. 2018) (same), aff’d, 971 F.3d 

340 (D.C. Cir. 2020), with CREW v. Am. Action Network, 590 F. Supp. 3d 164, 173 

(D.D.C. 2022) (dismissing citizen suit on reconsideration of motion to dismiss 

following New Models, reversing initial ruling that “FEC dismissals based on 

[prosecutorial] discretion rooted entirely in legal conclusions are reviewable” under 

Commission on Hope), appeal docketed, No. 22-7038 (D.C. Cir. Mar. 31, 2022); 

Pub. Citizen v. FEC, 547 F. Supp. 3d 51, 54-55 (D.D.C. 2021) (declining to review 

FEC dismissal where a single footnote in the controlling statement3 merely “note[d] 

that the Commission maintains broad discretion” that it “could” have applied).4

Instead, as multiple members of this Court have recognized, the unbounded 

rule of nonreviewability first pronounced in Commission on Hope conflicts with 

3 See Statement of Reasons of Chair Lee Goodman & Comm’rs Caroline C. Hunter 

and Matthew S. Petersen, MUR 6396 (Crossroads GPS) (Jan. 8, 2014), 

https://www.fec.gov/files/legal/murs/6396/14044350970.pdf. 

4 Tellingly, even the FEC itself—at least before Commission on Hope— 

recognized “that when FEC commissioners purport to invoke prosecutorial 

discretion in dismissing a complaint, the matter in dispute is subject to judicial 

review.” Democracy 21, 952 F.3d at 361 (Edwards, J., concurring) (citing the FEC’s 

briefing in Commission on Hope). 

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binding Supreme Court and Circuit precedent, countermands Congress’s directive 

in section 30109(a)(8), and “opens the door to the dangerously easy evasion of 

judicial review.” New Models, 993 F.3d at 905 (Millett, J., dissenting). See also 

ECU, 90 F.4th at 1189 (Pillard, J., dissenting) (“Commission on Hope and New 

Models squarely contravene the Supreme Court’s and our own views in Akins, and 

multiple other decisions of our circuit affirming the reviewability of the 

Commission’s non-enforcement decisions.”); New Models II, 55 F.4th at 926 

(Millett, J., dissenting from denial of rehr’g en banc) (“As Judge Griffith worried, 

Judge Pillard predicted, and Judge Edwards has since echoed, the Commission on 

Hope chickens have come home to roost. The court’s decision in this case renders 

for naught statutorily mandated judicial review.”); Democracy 21, 952 F.3d at 360 

(Edwards, J., concurring); Commission on Hope II, 923 F.3d at 1142 (Griffith, J., 

concurring in denial of rehr’g en banc); Commission on Hope, 892 F.3d at 442 

(Pillard, J., dissenting). 

C. The panel here erroneously embraced and extended the rule of 

unconditional immunity created by the CREW cases, confirming that the decisions 

cannot be harmonized with FECA or prior controlling precedent. As now extended, 

the CREW framework threatens to shield any Commission decision that utters the 

phrase “prosecutorial discretion”—however contingent or pretextual the reference, 

and regardless of what else the decision says—from all scrutiny. 

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Crucially, the panel decision appears to slam shut the one narrow window left 

open by New Models for finding that an FEC dismissal invoking discretion is not 

immune from congressionally mandated review. While the New Models majority 

suggested that FECA review would remain available in circumstances where the 

controlling commissioners “reference their merits analysis as a ground for exercising 

prosecutorial discretion,” New Models II, 55 F.4th at 920-21 (Rao, J., concurring in 

denial of rehearing en banc) (citation omitted), the decision here reveals how little 

of the statutory review mechanism that caveat preserves. 

Even assuming it were possible, as the panel believed, to pinpoint any 

“intuitively prudential” concerns in the Statement that theoretically stand apart from 

the commissioners’ overarching merits analysis, 89 F.4th at 942, that still does not 

justify shielding their legal conclusions—the only aspect of the decision CLC seeks 

to challenge—from review. Cf. New Models, 993 F.3d at 905 (Millett, J., dissenting) 

(“No one is ‘teasing’ a legal ruling out of the commissioners’ decision here. Legal 

determinations are all over the face of the document.”) (citation omitted). 

The mere act of undertaking this fraught interpretive exercise only drives 

home its conflict with Akins and Circuit authority. It is a bedrock principle of 

administrative law that an agency’s “formal action, rather than its discussion . . . is 

dispositive” of whether the action is reviewable. I.C.C. v. Bhd. of Locomotive 

Engineers, 482 U.S. 270, 281 (1987). The formal agency action taken here was the 

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dismissal of CLC’s complaint following a failed reason-to-believe vote, and the 

statute makes that action reviewable. Whether an FEC dismissal withstands review, 

or what degree of deference its decisionmaking is due, are altogether different 

questions. But it cannot be the case that an FEC dismissal escapes statutorily directed 

review wherever some notionally independent, “prudential” reasoning can be 

gleaned from an otherwise reviewable legal analysis. 

Indeed, New Models inappropriately authorizes courts to guess, when 

reviewing an FEC decision based on multiple grounds, what the agency would do 

on remand if its legal basis for dismissal is held invalid. As in Akins, however, “we 

cannot know,” and the panel was not free to presume, “that the FEC would have 

exercised its prosecutorial discretion in this way” if the commissioners’ dispositive 

legal conclusions were held contrary to law. 524 U.S. at 25. The role of the courts is 

to “correct[] a legal error—if error is committed—in the agency decision,” provided 

the error is “one upon which the agency decision rests.” Akins v. FEC, 101 F.3d 731, 

738 (D.C. Cir. 1996) (en banc) (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97 

(1947)), vacated on other grounds, 524 U.S. 11 (1998). But thanks to the CREW 

decisions, that judicial backstop is now routinely unavailable. 

* * * 

The rule of automatic and absolute immunity heralded by the CREW decisions 

and embraced by the panel here cannot be squared with FECA’s text, the Supreme 

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Court’s holding in Akins, or longstanding Circuit precedent. As confirmed in Akins 

and controlling D.C. Circuit decisions, the Act expressly subjects Commission 

nonenforcement decisions to judicial scrutiny under a “contrary to law” standard. 

See 52 U.S.C. § 30109(a)(8)(A), (C). The CREW panels were not authorized to 

overrule this authority. 

II. The Panel Decision Vitiates FECA’s Enforcement Scheme and the Critically 

Important Interests It Serves. 

FECA’s review provision is an integral component of the statutory 

enforcement scheme. Judicial review provides the “countermeasure to otherwise 

predictable deadlock at the Commission,” ECU, 90 F.4th at 1187 (Pillard, J., 

dissenting), and safeguards the vital transparency and anti-corruption laws the FEC 

is charged to enforce. The statute simply cannot be reconciled with a rule that 

empowers a partisan-aligned minority faction of commissioners to unilaterally block 

review of their decisions—including decisions, as in this case, based on extensive 

legal analysis and involving “even the most serious violations of federal campaign 

finance law”—by summoning the “magic words” of enforcement discretion. 

Commission on Hope II, 923 F.3d 1141, 1144 (D.C. Cir. 2019) (Pillard, J., dissenting 

from denial of rehr’g en banc). 

The CREW rulings have already had profoundly consequential—and 

profoundly damaging—effects on the operation of federal campaign finance law. 

Since Commission on Hope, commissioners “have routinely cited ‘prosecutorial 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 21 of 41 

discretion’ to stymie judicial scrutiny of apparently serious FECA violations.” ECU, 

90 F.4th at 1184. And, predictably, the impetus to tack on a “discretionary” ground 

for dismissal and thereby defeat judicial review has proven most irresistible in cases 

where the controlling bloc lacks a defensible legal basis for refusing to proceed. New 

Models II, 55 F.4th at 929-30 & n.3 (Millett, J., dissenting from denial of rehr’g en 

banc). Worse still, the rulings allow minorities to entrench impermissible statutory 

interpretations without recourse to the judicial check that Congress authorized. 

“[T]hese legal pronouncements, while walled off from judicial review, directly 

influence the conduct of regulated parties, who regularly rely on and invoke them in 

subsequent proceedings before the Commission.” Id. at 931. 

The panel’s endorsement of an unqualified barrier to review thus perversely 

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

Under New Models, the panel held the controlling commissioners’ unsustainable 

legal interpretations beyond all scrutiny. The commissioners’ analysis relied on an 

invented legal test that contravenes the relevant statutory and regulatory standard, 

and indeed, opens a massive and readily exploited loophole in FECA’s candidate 

reporting requirements. Letting these legal errors go unchallenged seriously 

frustrates FECA’s core purpose of informing voters about “where political campaign 

money comes from and how it is spent,” Buckley v. Valeo, 424 U.S. 1, 66 (1976) 

(per curiam) (quoting H.R. Rep. No. 92-564, at 4 (1971)), and is precisely the kind 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 22 of 41 

of impermissible statutory interpretation that FECA’s judicial review provision 

exists to correct. By refusing to review the adequacy of the controlling 

commissioners’ interpretations of FECA, the panel decision leaves that faulty legal 

analysis in place—imperiling FECA’s disclosure requirements and the voting 

public’s right to know how political campaign money is raised and spent. 

The panel decision, like the CREW cases, is an affront to the balanced 

statutory scheme that Congress devised. In allowing one partisan faction of 

commissioners to dictate the law’s requirements and thwart any accountability for 

their decisions, these rulings “turn[] the rule of law upside down and render[] the 

statutory provision for review of dismissal decisions a dead letter.” New Models II, 

55 F.4th at 932 (Millett, J., dissenting from denial of rehr’g en banc). The federal 

campaign finance laws are too important to let this damaging line of decisions stand 

uncorrected. 

CONCLUSION 

For the foregoing reasons, this Court should grant rehearing en banc. 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 23 of 41 

Dated: February 20, 2024 

Respectfully submitted, 

/s/ Megan P. McAllen 

Megan P. McAllen (DC Bar No. 1020509) 

Erin Chlopak (DC Bar No. 496370) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

Email: mmcallen@campaignlegalcenter.org 

Email: echlopak@campaignlegalcenter.org 

Attorneys for Plaintiff-Appellant 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 24 of 41 

CERTIFICATE OF COMPLIANCE 

This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) 

because, excluding the parts of the document exempted under Fed. R. App. P. 32(f), 

this document contains 3,865 words. 

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

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

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

Roman 14-point font. 

/s/ Megan P. McAllen 

Megan P. McAllen 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 25 of 41 

CERTIFICATE OF SERVICE 

I hereby certify that on February 20, 2024, I electronically filed this Brief with 

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

Circuit by using the appellate CM/ECF system, thereby serving all persons required 

to be served. 

/s/ Megan P. McAllen 

Megan P. McAllen 

20 
USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 26 of 41 

ADDENDUM 
 

 

 

USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 27 of 41 

ADDENDUM – TABLE OF CONTENTS 

Campaign Legal Center v. FEC, 89 F.4th 936 (D.C. Cir. 2024) ............................ 1a 

Certificate as to Parties, Rulings, and Related Cases............................................ 12a 

Corporate Disclosure Statement............................................................................ 14a 
 

 

 

 

 

USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 28 of 41 

United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued October 19, 2023 Decided January 5, 2024 

No. 22-5339 

CAMPAIGN LEGAL CENTER, 

APPELLANT 

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE 

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:22-cv-01976) 

Megan P. McAllen argued the cause for appellant. With 

her on the briefs were Erin Chlopak and Allison Walter. 

Greg J. Mueller argued the cause for appellee. With him 

on the brief were Lisa J. Stevenson, Kevin Deeley, and Harry 

J. Summers. 

Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit 

Judge, and ROGERS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge 

ROGERS. 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 29 of 41 

2 

ROGERS, Senior Circuit Judge: The Federal Election 

Commission dismissed an administrative complaint by the 

Campaign Legal Center alleging campaign finance violations 

by two presidential campaign committees. Although 

dismissals predicated upon the Commission’s exercise of 

prosecutorial discretion are excepted from judicial review, 

Campaign Legal contends that the Commission’s invocation of

discretion was dependent upon legal analysis and thus subject 

to review under the Federal Election Campaign Act. The 

district court concluded the Commission’s reliance on

“quintessential” considerations of prosecutorial discretion 

stood “apart” from its legal analysis and precluded review. In 

view of circuit precedent, we affirm. 

I. 

The Federal Election Campaign Act (“FECA”), 52 U.S.C. 

§ 30101 et seq., “seeks to remedy any actual or perceived

corruption of the political process.” FEC v. Akins, 524 U.S. 11, 

14 (1998). At its heart are disclosure requirements that the 

Supreme Court has stated are “particularly effective means of 

arming the voting public with information” and “deter[ring]

actual corruption and avoid[ing] the appearance of corruption”

in today’s politics. McCutcheon v. FEC, 572 U.S. 185, 223–

24 (2014). The Act requires covered “political committee[s]”

to “file reports of receipts and disbursements” with the Federal

Election Commission that identify “each person to whom an

expenditure . . . in excess of $200” was made, as well as the

“date, amount, and purpose” of the expenditure. 52 U.S.C. §

30104(a)(1), (b)(5)–(6). The Commission of six voting 

members, no more than three of whom may be “affiliated” with

the same political party, id. § 30106(a)(1), (a)(2)(A), may 

investigate potential violations on its own initiative or in 

response to an administrative complaint, which may be filed by 

any person who “believes” that a statutory violation has

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 30 of 41 

3 

occurred. Id. §§ 30107(a), 30109(a). If at least four 

Commissioners find “reason to believe” a complaint’s 

allegations, the Commission “shall” investigate and pursue

appropriate remedies. Id. § 30109(a)(2), (4)–(6). In the 

absence of four affirmative “reason to believe” votes, the 

Commission may dismiss the complaint. Id. §§ 30106(c), 

30109(a)(2). The Commissioners who vote against proceeding 

must issue an explanatory statement, which is treated as 

expressing the Commission’s rationale and forms the basis of

judicial review. Campaign Legal Ctr. v. FEC, 31 F.4th 781, 

785 (D.C. Cir. 2022). 

“Any party aggrieved by” the dismissal may seek judicial 

review on the ground that the Commission acted “contrary to 

law.” 52 U.S.C. § 30109(a)(8)(A)–(C). Relief is appropriate 

if the Commission relied on “an impermissible interpretation

of the Act,” or if the dismissal was otherwise “arbitrary or

capricious, or an abuse of discretion.” Orloski v. FEC, 795 

F.2d 156, 161 (D.C. Cir. 1986). Upon a judicial determination 

that the dismissal was improper, the Commission has 30 days 

“to conform with such declaration,” or the complainant may 

file suit. 52 U.S.C. § 30109(a)(8)(C). 

Access to judicial review of Commission dismissals, 

however, is far from absolute. “In our system of separated

powers, an agency’s decision not to enforce the law is an 

exercise of executive discretion and therefore generally 

unreviewable by the courts.” Citizens for Resp. & Ethics v. 

FEC (“New Models”), 993 F.3d 880, 882 (D.C. Cir. 2021). 

“[R]econciling” this principle with FECA’s “unusual” judicial

review provision, the court has held that “a Commission

nonenforcement decision is reviewable only if the decision 

rests solely on legal interpretation.” Id. at 884 (citing Citizens 

for Resp. & Ethics in Washington v. FEC (“Commission on 

Hope”), 892 F.3d 434, 441–42 (D.C. Cir. 2018)). 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 31 of 41 

4 

Campaign Legal Center filed an administrative complaint 

in July 2020 alleging that former President Trump’s campaign 

committee (“Donald J. Trump for President, Inc.”) and a joint

fundraising committee (“Trump Make America Great Again 

Committee”) failed, as required by 52 U.S.C. § 30104(b), to 

report more than three quarters of a billion dollars in payments 

to sub-vendors and staff – concealing the expenditures by 

routing them through sham payments to two LLCs controlled 

by senior campaign figures. See Admin. Compl., MUR 7784 

(July 24, 2020). In May 2022, the Commission deadlocked 3-

3 on finding “reason to believe” the complaint. After

deadlocking 3-3 twice more, on a second “reason to believe”

vote and a separate vote on whether to dismiss the complaint 

pursuant to the Commission’s prosecutorial discretion under

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

voted 4-2 to close the file and dismiss the complaint. 

The three Commissioners who voted against finding 

“reason to believe” explained that “the legal support for 

enforcement” of the alleged reporting violations was 

“remarkably thin,” and that “the only arguable factual support

comes from inferences based upon media reports citing 

anonymous sources.” Statement of Reasons of Chairman Allen 

J. Dickerson and Commissioners Sean J. Cooksey and James 

E. “Trey” Trainor, III, MUR 7784 (June 9, 2022) at 1

(hereinafter “2022 Statement”). Refusing to “pursue

enforcement-by-rumor,” they “instead voted to dismiss this 

matter as an exercise of prosecutorial discretion pursuant to 

Heckler v. Chaney.” Id. After elaborating on factual and legal 

issues, id. at 2–12, they stated: 

We foresee significant litigation risk if we were to act 

on [this record] and, as importantly, we decline to 

permit the investigatory resources of the federal 

government to be mobilized on such a basis. This is 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 32 of 41 

5 

particularly so here, where the size and scope of the 

proposed investigation could quickly consume an 

outsized share of the resources available to the 

Commission. 

Id. at 12. They also observed that the “regulatory environment 

is uncertain at best,” citing a related pending Commission

rulemaking petition, id., and noted that, although “numerous 

campaigns have used similar vendor arrangements in the past, 

[] the Commission has declined to pursue enforcement action”

in those cases. Id. 

Campaign Legal filed suit, alleging that the dismissal was 

“contrary to law.” Compl. (July 8, 2022); see 52 U.S.C. § 

30109(a)(8)(A). The district court granted the Commission’s

motion to dismiss the case pursuant to Federal Rule of Civil 

Procedure 12(b)(6), concluding that the Commissioners 

invoked discretion in a manner precluding judicial review 

under this court’s precedents. Campaign Legal Ctr. v. FEC, 

1:22-cv-01976 (D.D.C. Dec. 8, 2022) (“Mem. Op.”). It found

the “practical” concern “that the ‘size and scope of the 

proposed investigation’ could quickly consume the resources

available to the Commission” reflected “quintessential 

consideration[s] in the exercise of prosecutorial discretion” that

“stand[] apart from the legal questions” at issue. Mem. Op. at 

16–17 (quoting 2022 Statement at 12). The district court also 

noted the discussion of the “uncertain regulatory environment.”

Mem. Op. at 17. 

II. 

On appeal, Campaign Legal contends that the 

Commissioners “in no way ‘relied on’ discretionary factors to

dismiss plaintiff’s administrative complaint, but rather simply 

characterized their conclusive legal determinations on the 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 33 of 41 

6 

merits as an exercise of prosecutorial discretion.” Appellant’s

Br. 20 (quoting Mem. Op. at 16). Because “each of the putative

discretionary justifications . . . was expressly dependent upon 

legal and factual judgments about the allegations in the 

complaint,” Campaign Legal maintains that even though the 

“Commissioners couched their rationale in superficially

prudential terms, such ‘magic words’ cannot manifest 

independent discretionary justifications where none exist.” Id. 

at 30–31. For instance, “asserted agency resource concerns are 

impossible to separate from their underlying judgment that 

there was ‘insufficient factual or legal support’ to move 

forward.” Id. at 34 (quoting 2022 Statement at 12–13). 

Because the Commissioners reached that conclusion after 

applying “improper legal and evidentiary tests,” it is 

“impossible to know whether” absent that flawed analysis their 

“stated concerns about ‘the size and scope of the proposed

investigation’ would still obtain.” Id. at 35 (quoting 2022 

Statement at 12). 

This court has distinguished two different types of 

Commission refusals to prosecute administrative complaints. 

“When interpreting FECA, the Commission renders a legal

determination ‘not committed to the agency’s unreviewable

discretion.’” New Models, 993 F.3d at 884 (quoting Comm’n

on Hope, 892 F.3d at 441). If “the Commission declines an

enforcement action ‘based entirely on its interpretation of the

statute,’” the decision is reviewable pursuant to the “contrary 

to law” provision. Id. Because FECA does “not limit the 

Commission’s enforcement discretion [] by providing specific

requirements for the exercise of that discretion,” when the

Commission “weigh[s] [] practical enforcement

considerations,” FECA “provides ‘no law to apply.’” Id. 

(quoting Comm’n on Hope, 892 F.3d at 439–40). 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 34 of 41 

7 

Commission on Hope was the court’s first Commission

discretionary refusal to prosecute case and held unreviewable 

a dismissal where the relevant Commission statement “placed

their judgment [] on the ground of prosecutorial discretion.”

892 F.3d at 439. The court reiterated this principle as applied 

to statements relying on both law and discretion in New 

Models. There, the Commissioners issued a thirty-two page 

statement “dedicated most[ly]” to “legal analysis of the alleged 

violations[,]” concluding that the organization did not qualify 

as a covered “political committee” under the statute. 993 F.3d

at 883. The concluding paragraph invoked Heckler, explaining 

that the Commissioners “were also declining to proceed with 

enforcement ‘in exercise of their prosecutorial discretion.’” Id. 

(citation omitted). The Commissioners had added only that 

“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.” Id. (citation 

omitted). 

The court held this brief invocation of discretion was 

sufficient to bar judicial review, as it “explicitly relie[d] on 

prosecutorial discretion” and “expressed discretionary

considerations at the heart of [Heckler’s] holding, such as 

concerns about resource allocation” and “potential evidentiary 

. . . hurdles.” Id. at 885. Those discretionary considerations, 

the court said, were a “distinct ground[]” on which the 

“Commission’s decision to dismiss . . . rested.” Id. at 884. 

Rejecting the notion that the inclusion of “lengthy” legal bases 

for dismissal made the decisions reviewable, see id. at 895–96 

(Millett, J., dissenting), the court stated that “[a]lthough [] 

analysis of statutory requirements standing alone may be 

amenable to judicial review,” the “Commission’s legal analysis 

here is not reviewable because it is joined with an explicit 

exercise of prosecutorial discretion.” Id. at 885–87. Because 

“[t]he Commission’s invocation of prosecutorial discretion []

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 35 of 41 

8 

rested squarely on prudential and discretionary considerations”

and was “offered [] in addition to its legal analysis,” the court

concluded that there was “no room [] to selectively exercise

judicial review based on whether the Commission places more 

or less emphasis on discretionary factors when declining to 

pursue enforcement.” Id. 

Just so here. The Commissioners’ “explicit[] reli[ance]”

on prosecutorial discretion, id. at 885, followed nearly a full 

page of analysis discussing several classic criterion in the 

exercise of prosecutorial discretion. They observed that the 

proposed investigation was inconsistent with the agency’s 

priorities and resource allocation given its “size and scope,”

worried that the agency was unlikely to succeed in pursuing the 

allegations and that enforcement carried “significant litigation

risk,” characterized enforcement as deviating from the

Commission’s past practice, and articulated why it was 

inappropriate given what they regarded as a shifting and 

uncertain regulatory landscape and the complaint’s undue

reliance on anonymously-sourced reporting. 2022 Statement 

at 12. These “discretionary considerations [lie] at the heart of 

[Heckler’s] holding” and implicate “concerns about resource 

allocation” and “potential evidentiary . . . hurdles.” New 

Models, 993 F.3d at 885; see Heckler, 470 U.S. at 831. 

Some of these considerations appear distinct from and lack 

a clear nexus to any reviewable legal analysis. As the district 

court observed, the concern that the “the size and scope of the

proposed investigation could quickly consume an outsized 

share of the resources available to the Commission,” 2022 

Statement at 12, “stands [particularly] apart.” Mem. Op. at 17.

An agency’s careful management of its limited resources is a

core policy prerogative and its choice not to pursue especially 

resource-intensive matters ordinarily does not center on the 

legal merits, but rather the agency’s pragmatic estimation of

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 36 of 41 

9 

the resource demands of the proposed action, its size, duration, 

and personnel requirements. These are the types of prudential 

judgments that the Supreme Court has stated are “peculiarly

within” the agency’s “expertise” and form the core of

unreviewable discretion. Heckler, 470 U.S. at 831–32. 

To the extent that Campaign Legal views this discussion 

as inextricably intertwined with antecedent legal analysis, it 

maintains that the Commissioners regarded the legal and 

evidentiary support for the complaint as unduly dim and overestimated the potential resource demands of pursuing its 

claims. But it does not follow that the Commission’s

observation about the “size and scope” of the investigation

must be regarded as fundamentally premised on substantive 

legal determinations. It was evident from the complaint that 

the alleged violations were significant in terms of their 

estimated value and the complexity and timespan of the alleged 

obfuscatory mechanism. Citing several dozen news reports, 

the complaint claimed to identify a scheme involving at least 

two “conduit” organizations, at least four enumerated ultimate 

payee subvendors, and hundreds of payments for a range of 

purposes over multiple years. Admin. Compl. ¶¶ 26–48, 70–

91. Campaign Legal itself embraces undisputed practical 

measures of the allegations’ scope, claiming that “the potential 

amount in violation, $781,584,527, would have been the largest 

in the Commission’s history” and involved the “lion’s share”

of the Trump team’s “spending for the entire presidential 

election cycle,” the most expensive in United States history. 

Appellant’s Br. 1. These intuitive indicia of size and resource 

intensiveness bear no discernable relationship to theoretically 

reviewable legal inquiry. 

Campaign Legal maintains that the grammar of the 

relevant sentence evinces the interconnection between the 

Commissioners’ concern over the “size and scope” of the

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 37 of 41 

10 

investigation and antecedent legal conclusions. The relevant 

phrasing reads in full: “This is particularly so here, where the 

size and scope of the proposed investigation could quickly 

consume an outsized share of the resources available to the 

Commission.” 2022 Statement at 12. Campaign Legal reads

“[t]his is particularly so here” as suggesting that the following 

statement about the “size and scope” of the investigation is

premised on preceding legal determinations. Even were this 

contention not forfeited since raised for the first time at oral 

argument, it is unpersuasive. The key phrasing in New Models 

was invoked in a sentence that otherwise expressly referred to 

the Commission’s preceding legal conclusions, yet the court 

concluded the statement was “explicit []” in its invocation of 

discretion. 993 F.3d at 885. Here the relevant sentence stands 

on its own and is not surrounded by discussion of legal 

conclusions. Analogizing to New Models, where the 

Commission’s statement dedicated thirty-one pages to the 

merits and only a single concluding sentence to discretion, 

Mem. Op. at 15 (citing New Models, 993 F.3d at 885), the 

district court correctly observed that it was “clearer in this case

than it was in New Models” that the Commissioners invoked

discretion as an “independent reason for dismissal.” Mem. Op.

at 17. 

Nor does the phrase “[t]his is particularly so” appear to 

refer to any substantive legal determination. The immediately 

preceding sentence reads: “We foresee significant litigation

risk if we were to act on [this record] and, as importantly, we 

decline to permit the investigatory resources of the federal 

government to be mobilized on such a basis.” 2022 Statement 

at 12. These too are prudential considerations at the heart of 

Heckler’s conception of enforcement discretion — not 

reviewable legal determinations. Cf. Heckler, 470 U.S. at 831. 

Any reviewable legal analysis is at least two steps away from 

the Commission’s stated concern about the investigation’s 

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11 

“size and scope.” That is too attenuated a link to support the

logical leap that intuitively prudential discussion conceals 

reviewable legal conclusions. 

Finally, Campaign Legal urges the court to reconsider the 

propriety of the Commission on Hope–New Models rule due to 

an alleged conflict with the Supreme Court’s opinion in Akins 

and several of this court’s FECA holdings. Appellant’s Br. 36–

41. But “[o]ne three-judge panel does not have the authority to 

overrule another three-judge panel.” LaShawn A. v. Barry, 87 

F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). In New Models, 

993 F.3d at 890–95, the court addressed these same objections 

and explained why its holding was consistent with Akins and 

this court’s FECA precedents. Rehearing en banc was 

subsequently denied. New Models II, 55 F.4th 918 (D.C. Cir. 

2022). 

Because the Commission’s invocation of discretion was 

offered “in addition” to its legal analysis, as in New Models, 

993 F.3d at 886, the 2022 Statement of Reasons is 

unreviewable, and upon de novo review, Stop This Insanity Inc. 

Emp. Leadership Fund v. FEC, 761 F.3d 10, 13 (D.C. Cir. 

2014), the court affirms the dismissal of the complaint. 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 39 of 41 

CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 35(c), Petitioner Campaign Legal Center hereby 

certifies as follows: 

(A) Parties and Amici. Campaign Legal Center is the plaintiff in the district 

court and appellant in this Court. Campaign Legal Center is a nonpartisan, nonprofit 

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

publicly held corporation has any form of ownership interest. Campaign Legal 

Center works to protect and strengthen the U.S. democratic process across all levels 

of government, including by supporting campaign finance reform through litigation, 

policy analysis, and public education. 

The Federal Election Commission (FEC) is the defendant in the district court 

and appellee in this Court. 

(B) Rulings Under Review. Petitioner Campaign Legal Center appealed the 

December 8, 2022 memorandum opinion (ECF No. 18) and order (ECF No. 17) of 

the United States District Court for the District of Columbia (Boasberg, J.) granting 

Defendant Federal Election Commission’s Motion to Dismiss. The December 8, 

2022 opinion is not published in the federal reporter but is available at 2022 WL 

17496211 and reproduced in the Joint Appendix at JA32-49. 

The panel’s Opinion is attached to this Petition and is available at 89 F.4th 

936. This Petition for Rehearing En Banc seeks review of the panel’s decision. 

12a 
 

 

 

USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 40 of 41 

(C) Related Cases. The appealed ruling has not previously been before this 

Court or any other court. There are no related cases pending in this Court or any 

other court of which counsel are aware. 

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USCA Case #22-5339 Document #2041412 Filed: 02/20/2024 Page 41 of 41 

CORPORATE DISCLOSURE STATEMENT 

Pursuant to D.C. Circuit Rule 35(c), Petitioner Campaign Legal Center 

submits its corporate disclosure statement. 

(a) Campaign Legal Center certifies that it is a nonpartisan, nonprofit 

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

publicly held corporation has any form of ownership interest. 

(b) Campaign Legal Center works to protect and strengthen the U.S. 

democratic process across all levels of government, including by supporting 

campaign finance reform through litigation, policy analysis, and public education. 

14a