ORAL ARGUMENT NOT YET SCHEDULED

No. 18-5239

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CAMPAIGN LEGAL CENTER & DEMOCRACY 21,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

F8, ELI PUBLISHING, AND STEVEN J. LUND,

Intervenors-Appellees.

On Appeal from the United States District Court

for the District of Columbia, No. 1:16-cv-00752-TNM

Before the Honorable Trevor McFadden

PLAINTIFFS-APPELLANTS’ RESPONSE IN OPPOSITION 

TO APPELLEE’S MOTION FOR SUMMARY AFFIRMANCE

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

(202) 682-0240

Paul M. Smith 

Tara Malloy

Megan P. McAllen 

Mark P. Gaber

THE CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Counsel for Plaintiffs-Appellants

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TABLE OF CONTENTS

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

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

LEGAL AND FACTUAL BACKGROUND............................................................3

A. The Commission’s Administrative Complaint and Enforcement 

Process..............................................................................................3

B. Appellants’ Administrative Complaints ..........................................4

C. The Controlling Commissioners’ Statement of Reasons.................7

ARGUMENT.............................................................................................................9

I. Standard of Review ....................................................................................9

II. CREW Does Not Control this Case ............................................................9

A. The dismissals of appellants’ straw-donor complaints rested on 

reviewable interpretations of FECA, Commission precedent, 

and judicial decisions, so CREW is distinguishable.......................10

B. This appeal raises legal issues to which CREW has no 

application ......................................................................................14

C. Great caution in applying CREW here is appropriate given the 

stage of the administrative proceedings at which the dismissals 

occurred..........................................................................................17

II. Summary Disposition Is Inappropriate Regardless of CREW’s 

Applicability .............................................................................................19

A. CREW cannot provide a basis for summary disposition while 

its mandate has not issued pending a petition for rehearing en 

banc ................................................................................................19

B. The scope and contours of CREW require full consideration even 

if the pending petition is denied.....................................................19

C. FECA’s inclusion of a private enforcement mechanism counsels 

against creating a categorical practice of summary disposition ....21

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III. If the Court Finds That CREW Bears Upon the Resolution of this 

Case, These Proceedings Should Be Stayed until CREW’s Petition Is 

Decided.....................................................................................................23

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

CERTIFICATE OF COMPLIANCE.......................................................................25

CERTIFICATE OF SERVICE ................................................................................26

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TABLE OF AUTHORITIES

*Authorities upon which appellants principally rely are marked with an asterisk

Cases:

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996)....................................................13, 14

Akins v. FEC, 524 U.S. 11 (1998)....................................................................2, 3, 21

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)...................................................16

Citizens United v. FEC, 558 U.S. 310 (2010)......................................................7, 10

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

Cir. 2018) (“CREW”)............................................. 1, 2, 10, 12, 13, 15, 17, 18, 20

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988);..........................................4

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 

1987) .....................................................................................................................4

Heckler v. Chaney, 470 U.S. 821 (1985)...........................................................10, 12

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014)...................................................13

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 

(1983)............................................................................................................13, 16

Sills v. Bureau of Prisons, 761 F.2d 792 (D.C. Cir. 1985)........................................9

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010)...................................10, 11

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987)......................9

Texas v. United States, 798 F.3d 1108 (D.C. Cir. 2015).........................................19

Federal Statutes:

52 U.S.C. § 30101(11).............................................................................................10

52 U.S.C. § 30102............................................................................................5, 6, 16

52 U.S.C. § 30103............................................................................................5, 6, 16

52 U.S.C. § 30104............................................................................................5, 6, 16

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52 U.S.C. § 30109(a)(1).......................................................................................3, 21

52 U.S.C. § 30109(a)(2).......................................................................................3, 17

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

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

52 U.S.C. § 30109(a)(5).............................................................................................4

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

52 U.S.C. § 30109(a)(8)(A).................................................................................4, 21

52 U.S.C. § 30109(a)(8)(C) .................................................................................4, 21

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

52 U.S.C. § 30122........................................... 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16

Federal Regulations and Administrative Materials:

Certification, MURs 7094, 7096, and 7098 (Donald J. Trump for President, 

et al.) (July 31, 2018), https://www.fec.gov/files/legal/murs/7094/

18044451829.pdf................................................................................................18

Certification, MUR 7114 (Casperson for Congress) (June 26, 2018), https://

www.fec.gov/files/legal/murs/7114/17044430961.pdf ...........................................18

Statement of Reasons of Chair Caroline C. Hunter and Comm’r Matthew S. 

Petersen, MURs 6969, 7031, 7034 (MMWP12 LLC, et al.) (Sept. 13, 

2018), http://eqs.fec.gov/eqsdocsMUR/6969_2.pdf...........................................15

Miscellaneous Resources:

Statement of Vice Chair Ellen L. Weintraub on the D.C. Circuit’s Decision 

in CREW v. FEC, June 22, 2018, https://www.fec.gov/resources/cmscontent/documents/2018-06-22_ELW_statement_re_CREWvFECCHGO.pdf.......................................................................................................1, 22

D.C. Circuit Handbook of Practice and Internal Procedures (2018).....................1, 3

FEC Br., CREW, 892 F.3d 434 (July 27, 2017) (Docket No. 1686240) .................20

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GLOSSARY OF ABBREVIATIONS

FEC Federal Election Commission

FECA Federal Election Campaign Act

MUR Matter Under Review

OGC FEC Office of General Counsel

SOR Statement of Reasons

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INTRODUCTION

According to the Federal Election Commission (“FEC”), the recent divided 

panel decision in Citizens for Responsibility & Ethics in Wash. v. FEC, 892 F.3d 434 

(D.C. Cir. 2018) (“CREW”), pet. for reh’g en banc filed, No. 17-5049 (July 27, 

2018), means that the mere mention of the phrase “prosecutorial discretion” 

immunizes any FEC enforcement decision from judicial scrutiny. Because three 

FEC Commissioners invoked this phrase in explaining their votes to find no “reason 

to believe” a violation of the Federal Election Campaign Act (“FECA”) occurred 

with respect to the three straw-donor complaints underlying this appeal, the 

Commission maintains that CREW not only renders the dismissals unreviewable, but 

also does this “so clear[ly] as to justify summary action.” D.C. Circuit Handbook of 

Practice and Internal Procedures at 36 (2018) (“Handbook”).

Even assuming that the FEC’s maximalist interpretation of CREW is correct, 

and the decision does in fact endow three FEC Commissioners with a new “casekilling” “superpower”1 in some enforcement matters, summary disposition is wholly 

unwarranted here.

 1 See Statement of Vice Chair Ellen L. Weintraub on the D.C. Circuit’s Decision 

in CREW v. FEC, June 22, 2018, https://www.fec.gov/resources/cms-content/

documents/2018-06-22_ELW_statement_re_CREWvFEC-CHGO.pdf (“Weintraub 

Statement”).

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Most importantly, CREW’s presumption of unreviewability does not govern

this case. The CREW majority expressly recognized that when the Commission 

declines to bring an enforcement action based on interpretations of law, its decision 

remains “subject to judicial review.” 892 F.3d at 441 n.11. And here, the controlling 

Commissioners’ Statement of Reasons (“SOR”) relied upon multiple interpretations 

of law—of FECA, of agency regulations, and of judicial precedent—as well as upon 

constitutional considerations of “due process, fair notice, and First Amendment 

clarity.” Add. 2. None of these is a matter committed to unreviewable agency 

discretion and CREW does not hold otherwise.

Moreover, even if this Court finds that CREW has some application here, 

summary disposition remains inappropriate, given that CREW was decided four 

months ago and a petition for en banc rehearing is pending. No mandate has issued. 

This appeal should not be resolved—much less resolved summarily—based on a 

Circuit precedent that remains subject to possible change. And if this Court finds 

that CREW applies, appellants request that these proceedings be stayed until 

CREW’s petition is decided by the full court

Even if rehearing in CREW is denied, summary disposition of the first case to 

follow it would not be appropriate. CREW announced a standard of absolute 

unreviewability whenever the Commission invokes “prosecutorial discretion” as 

grounds for dismissing a complaint—which is a standard at odds with Supreme 

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Court precedent. Akins v. FEC, 524 U.S. 11, 29 (1998). The scope of CREW’s 

holding is untested, and this Circuit discourages parties from requesting summary 

disposition of issues of first impression. See Handbook at 35-36. It certainly should 

disapprove of summary disposition based upon a new ruling that is itself still subject 

to rehearing. The Commission’s motion must be denied.

LEGAL AND FACTUAL BACKGROUND

A. The Commission’s Administrative Complaint and Enforcement 

Process

FECA sets forth a detailed, multi-stage process for the Commission’s review 

and resolution of private administrative complaints. 

Any person may file a complaint alleging a violation of FECA. 52 U.S.C. 

§ 30109(a)(1). The Commission, after reviewing the complaint and any responses, 

then votes on whether there is “reason to believe” a violation has occurred, in which 

case it “shall” investigate. Id. § 30109(a)(2). FECA requires an affirmative vote of 

four Commissioners to undertake most agency actions, id. § 30106(c), including a 

reason-to-believe finding necessary to initiate an investigation, id. § 30109(a)(2). 

After the investigation, the Commission votes on whether there is “probable 

cause” to believe FECA was violated. Id. § 30109(a)(3). If it determines, by an 

affirmative vote of at least four Commissioners, that there is probable cause, it 

“shall” attempt to “correct or prevent such violation” by conciliating with the 

respondent. Id. § 30109(a)(4)(A), (a)(5). If the Commission is unable to correct the 

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violation and enter a conciliation agreement, it “may,” by the affirmative vote of at 

least four Commissioners, institute a civil action against the respondent. Id. 

§ 30109(a)(6)(A). 

If, at any of these decision-making junctures, fewer than four Commissioners 

vote to proceed, the Commission may vote to dismiss the complaint and the majority 

or controlling group must issue a Statement of Reasons to permit subsequent judicial 

review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988); Democratic 

Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. Cir. 1987).

FECA also provides a right of judicial review to the complainant: “Any party 

aggrieved by an order of the Commission dismissing a complaint filed by such 

party . . . may file a petition” in the district court seeking review of the Commission’s 

action. 52 U.S.C. § 30109(a)(8)(A). If the court finds the dismissal “contrary to law,” 

it may order the Commission to conform with such declaration within 30 days. Id. 

§ 30109(a)(8)(C). If the Commission fails to conform, the complainant may bring a 

civil action directly against the respondents to remedy the violation. Id.

B. Appellants’ Administrative Complaints 

In 2011, the media began reporting on a new technique for large donors to 

evade laws requiring public disclosure of campaign contributions—namely, using 

LLCs and similar corporate entities as conduits, or “straw donors,” to obscure the

true source of funds contributed to various political committees.

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Appellants filed five administrative complaints2 between August 2011 and

April 2015 alleging that various such schemes violated 52 U.S.C. § 30122, which 

prohibits any “person” from “mak[ing] a contribution in the name of another person 

or knowingly permit[ting] his name to be used to effect such a contribution.”

The first two administrative complaints, filed in August 2011, alleged that Eli 

Publishing, L.C. and F8 LLC were used as illegal straw donors to conceal the true 

sources of two $1 million contributions to Restore Our Future, Inc., an independentexpenditure-only political committee (or “super PAC”). The complaints asked the 

FEC to find reason to believe a violation had occurred and to authorize an 

investigation into whether (a) Eli Publishing, F8, and other respondents had violated 

52 U.S.C. § 30122; and (b) Eli Publishing and F8 had violated 52 U.S.C. §§ 30102, 

30103, and 30104 by failing to register and file reports as political committees.

The third administrative complaint, which was filed more than a year after the 

first two, see Add. 4 n.16; Add. 5 n.24, alleged that Specialty Investment Group Inc. 

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

(“Kingston”), were used as conduits to hide the true source of almost $12 million 

contributed to another super PAC, FreedomWorks for America (“FreedomWorks”). 

 2 The district court found that appellants had standing to challenge the FEC’s 

dismissals of three of the five complaints, designated Matters Under Review 

(“MURs”) 6487 (F8 LLC), 6488 (Eli Publishing), and 6711 (Specialty Investment 

Group, Inc.). Appellants do not appeal that ruling, and only these complaints remain 

at issue.

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Add. 39. Appellants alleged that Specialty Group and Kingston, as well as any other 

persons who made contributions in the names of Specialty Group and Kingston, had 

violated 52 U.S.C. § 30122, and that Specialty Group and Kingston violated 52 

U.S.C. §§ 30102, 30103, and 30104, for failing to register as political committees.

On June 6, 2012, the FEC’s Office of General Counsel (“OGC”) reported its 

recommendations regarding the Eli Publishing/F8 MURs. It concluded that “there is 

ample ‘reason to believe’” that Steven Lund was “the true source of the $1 million 

contribution made by Eli Publishing,” and that “there is also ‘reason to believe’ that 

F8 was a conduit and not the true source of the $1 million contribution by F8.” 

Add. 31. The OGC recommended the Commission find reason to believe that F8, Eli 

Publishing, and Lund violated the straw donor prohibition of section 30122, but not 

the political committee requirements at 52 U.S.C. §§ 30102, 30103, and 30104. It 

reasoned that if respondent LLCs were mere straw-donor conduits, then they could 

not simultaneously be political committees. “Because the resolution of this [political 

committee] allegation may depend on the disposition of the section [30122] 

allegation,” it recommended that the Commission “take no action at [that] time” 

with respect to political committee status. Add. 36 (emphasis added).

On June 6, 2014, OGC recommended the Commission find reason to believe

that the undisclosed individuals who contributed over $12 million to FreedomWorks 

in the names of Specialty Investments and Kingston had violated section 30122. 

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Add. 50-52. It again recommended against proceeding at that time on the political 

committee allegations until the section 30122 allegations were resolved. Id. 

C. The Controlling Commissioners’ Statement of Reasons

Although OGC recommended investigation in all three matters, the 

Commission deadlocked, by a vote of 3-3, on whether to find reason to believe as to 

each complaint, and issued a single SOR addressing all of the complaints. Unable to 

proceed because of the deadlock, a majority of Commissioners voted to dismiss the 

cases.

In voting against a reason-to-believe finding, the three controlling 

Commissioners relied upon their interpretations of FECA and prior Commission 

guidance, as well as their understanding of judicial precedent and “First Amendment 

clarity.” Add. 2.

First, interpreting FECA, they acknowledged that “section 30122 applies to 

closely held corporations and corporate LLCs,” and that using an LLC as a straw 

donor violates this prohibition “in certain circumstances.” Add. 12. They 

nevertheless voted against finding reason to believe, citing prosecutorial discretion, 

on the ground that the corporate respondents, newly freed to engage in campaignrelated spending by Citizens United v. FEC, 558 U.S. 310 (2010), were not on notice 

that section 30122 potentially applied to them. 

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In reaching this determination, the control group also relied upon various 

other conclusions of law, finding: 

• FECA had not been applied to corporate straw donors in the past and the

allegations here “differ[ed] substantially” from prior FEC matters that 

addressed non-corporate straw-donor schemes, even those where analogous 

recipient entities, such as political committees, served as the conduit. Add. 9.

• Congressional intent was unclear because it had not “contemplate[d] that 

corporations could violate the prohibition against giving in the name of 

another by acting as straw donors for contributions.” Id.

• FEC regulations were unclear about “whether and under what circumstances 

a contribution made by a closely-held corporation or corporate LLC to a super 

PAC should be attributed to the entity’s owner as the ‘true contributor’ rather 

than the entity itself.” FEC Mot. at 9.

• As a matter of constitutional law, the rights recognized in Citizens United

would be rendered “hollow” if closely held corporations and corporate LLCs 

were presumed to be straw donors when they made contributions. Add. 2.

Beyond making these determinations of law, the controlling Commissioners also 

announced an intent-based standard for applying section 30122 to corporate entities. 

But citing due process and First Amendment concerns, they said their new standard 

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for section 30122 would only be effective going forward and would not apply to the 

cases before them.

ARGUMENT

I. Standard of Review

“A party seeking summary disposition bears the heavy burden of establishing 

that the merits of his case are so clear that expedited action is justified.” Taxpayers 

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

summarily affirming a district court’s ruling, “this court must conclude that no 

benefit will be gained from further briefing and argument of the issues presented.” 

Id. at 297-98. Because the appellant’s right to proceed is “so clear,” the merits of the 

case must be “given the fullest consideration necessary to a just determination.” Sills

v. Bureau of Prisons, 761 F.2d 792, 793-94 (D.C. Cir. 1985).

Here, the Commission has plainly failed to meet its “heavy burden” of 

demonstrating that summary affirmance is “so clear” as to be warranted.

II. CREW Does Not Control this Case.

A. The dismissals of appellants’ straw-donor complaints rested on 

reviewable interpretations of FECA, Commission precedent, and 

judicial decisions, so CREW is distinguishable.

Although the controlling Commissioners in this case acknowledged that the 

use of LLC straw donors violates FECA’s prohibition on the making of a 

contribution in the name of another, they nevertheless voted against a reason-toUSCA Case #18-5239 Document #1754782 Filed: 10/11/2018 Page 15 of 32
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believe finding in each of appellants’ three administrative complaints. To explain 

those votes, they relied on a series of erroneous propositions of law. These flawed

legal interpretations do not become shielded from all judicial review merely because 

they were later wrapped in the fig leaf of prosecutorial discretion, and CREW does 

not command otherwise. 892 F.3d at 441 n.11 (“The interpretation an agency gives 

to a statute is not committed to the agency’s unreviewable discretion.”) (citing 

Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985)).

As outlined above, the dismissals here rested upon multiple legal 

interpretations of FECA and judicial precedent. The FEC does not dispute this, and 

indeed its motion (at 6-10) describes in detail the SOR and the various legal 

conclusions upon which the control group relied.

Section 30122 prohibits all contributions made “in the name of another 

person,” and FECA defines a “person” as “an individual, partnership, committee, 

association, corporation, labor organization, or any other organization or group of 

persons.” 52 U.S.C. § 30101(11) (emphasis added). The controlling Commissioners 

did not dispute that these provisions would cover the corporate respondents. But they 

found that judicial decisions concerning unrelated FECA provisions—including 

Citizens United, 558 U.S. at 366 (invalidating a ban on corporate independent 

expenditures), and SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) 

(allowing corporations to make contributions to political committees that make only 

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independent expenditures)—rendered section 30122 and existing regulatory 

guidance unclear with regard to LLCs, depriving the respondents of sufficient notice 

of the law’s applicability.3

In CREW, the administrative dismissal rested on very different concerns, all 

rooted in paradigmatic prosecutorial choices touching agency resources. Although 

the FEC notes vaguely that the exercise of prosecutorial discretion in CREW was 

based on “a number of reasons,” Mot. at 11, it does not elaborate—perhaps because 

those “reasons” are a far cry from the legal determinations that led to the dismissals 

here. 

In CREW, the controlling Commissioners explained their decision not to 

proceed against the respondent,4 a fly-by-night political group that had dissolved and 

vanished while the complaint was pending, almost exclusively in terms of their 

concerns about scarce agency resources and the dim prospects for successful 

enforcement. The controlling Commissioners found, inter alia, that the “defunct” 

 3 Even if the Commission maintains that questions about notice and due process 

are committed to agency discretion, these more “prudential” reasons for dismissal

were grounded entirely in the controlling Commissioners’ antecedent interpretation 

of FECA: their concern about notice arose precisely because they had interpreted 

section 30122 to apply to corporations, but nonetheless they found that, following 

Citizens United, the legal regime was unclear. Their concerns about “fair notice”

thus cannot be disentangled from their interpretations of the statute. 

4 And importantly, the controlling Commissioners had been willing to proceed 

with enforcement earlier on, before the “procedural and evidentiary difficulties” 

became too significant. Add. 59.

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association “no longer existed,” “had filed termination papers with the IRS in 2011,”

and “had no money . . . [or] counsel . . . [or] agents who could legally bind it.” 

CREW, 892 F.3d at 438. They also cited concerns about timing, noting that any 

agency action against the association would “raise[] novel legal issues that the 

Commission had no briefing or time to decide.” Add. 62. They ultimately concluded

that these practical obstacles would make further enforcement a “pyrrhic” exercise. 

Add. 59.

The three no-action Commissioners in this case explained their decision in 

markedly different terms. Their rationale here, unlike in CREW, did not hinge on 

traditional discretionary factors “peculiarly within [the FEC’s] expertise,” such as 

“whether agency resources are best spent on this violation or another, whether the 

agency is likely to succeed if it acts, whether the particular enforcement action 

requested best fits the agency’s overall policies, and, indeed, whether the agency has 

enough resources to undertake the action at all.” 892 F.3d at 439 n.7 (citing Heckler, 

470 U.S. at 831-32). The SOR does not even mention any of those considerations, 

much less rely on them. 

Nor did their decision here address or rest on a finding that these multimillion-dollar straw-donor schemes were mere “technical violation[s]” of section 

30122, see id., or somehow de minimis. Permitting individuals to make political 

contributions in someone else’s name violates the fundamental purposes of the 

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federal campaign finance laws in general, and of section 30122 in particular: 

providing the public with information about the true sources of funds given and spent 

to influence federal elections. See, e.g., Add. 27-28.

And although the reasons given by the controlling Commissioners were recast 

by the district court as concerns about litigation risk, the SOR never invoked these 

concerns. “[C]ourts may not accept [] counsel’s post hoc rationalizations”; “an 

agency’s action must be upheld, if at all, on the basis articulated by the agency 

itself.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

50 (1983). Likewise, the district court may not provide a rationale unarticulated by 

the agency.

Instead, the decision not to proceed in this case rested on a series of faulty 

legal conclusions involving the proper interpretation of section 30122 given “recent” 

(albeit inapposite) judicial precedent, as well as principles of “due process and First 

Amendment clarity.” Add. 2. Thus explained, the dismissals were not based on a 

“complicated balancing of factors which are appropriately within [the FEC’s] 

expertise,” La Botz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014), but on legal 

interpretations falling squarely within the Court’s expertise: interpreting statutes, 

judicial decisions, and constitutional rights. As the CREW majority expressly 

acknowledged, a nonenforcement decision based on interpretations of law remains 

subject to review. 892 F.3d at 441 n.11. And this Court is “not obliged to defer” at 

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all to “an agency’s interpretation of Supreme Court precedent under Chevron or any 

other principle.” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996), vacated on other 

grounds, 524 U.S. at 29.

By requesting summary affirmance here based on CREW without any analysis 

of the sharply contrasting factual and legal grounds for the agency dismissals in each 

case, the FEC effectively asks this Court to sanction an extreme and unsustainable 

interpretation of CREW, under which any Commission decision making reference to

“prosecutorial discretion” is entirely unreviewable.

The Court should not accept this invitation. And if it ultimately does take this 

course, it should at least not do so summarily.

B. This appeal raises legal issues to which CREW has no application.

In arguing that CREW supports summary disposition here, the Commission 

turns a blind eye to the multiple issues raised on appeal that do not involve the

reviewability of agency exercises of prosecutorial discretion.

First, as discussed above, the controlling Commissioners justified their 

decision based on interpretations of law. For this reason alone, there is no 

presumption of unreviewability under CREW. But they went a step farther, 

announcing a “new” “governing interpretation” of section 30122, under which these 

Commissioners would only find reason to believe when presented with “direct 

evidence” that funds were “intentionally funneled through a closely held corporation 

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or corporate LLC for the purpose of making a contribution that evades the Act’s 

reporting requirements.” Add. 12.

The FEC has not—and could not—characterize the announcement of a new 

standard for the application of section 30122 as a matter committed to the agency’s 

unfettered discretion. Indeed, such a standard is the paradigmatic “interpretation of 

FECA” that the CREW majority confirmed “is not committed to the agency’s 

unreviewable discretion.” 892 F.3d at 441 n.11. Indeed, in subsequent matters 

involving identical straw-donor violations, the controlling Commissioners have

explicitly characterized this “intent” standard as “the relevant legal interpretation” 

of section 30122.

5

The Commission resists appellants’ challenge to this new “legal 

interpretation” as premature. Appellants disagree, and likewise disagree that the 

FEC’s citation (at 17 n.2) to the lone enforcement case against corporate straw 

donors (which involved conduct that occurred before the “governing norm” was 

announced) suffices to defeat any concerns about agency abdication. But regardless, 

these are not questions that CREW can answer.

Second, the controlling Commissioners only exercised their prosecutorial 

discretion in dismissing the alleged violations of section 30122; they wholly failed 

 5 E.g., Statement of Reasons of Chair Caroline C. Hunter and Comm’r Matthew S. 

Petersen, MURs 6969, 7031, 7034 (MMWP12 LLC, et al.) (Sept. 13, 2018), http://

eqs.fec.gov/eqsdocsMUR/6969_2.pdf.

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to consider appellants’ claims that the respondent corporations had violated 52 

U.S.C. §§ 30102, 30103, and 30104 by not registering and filing reports as “political 

committees.”6 The controlling Commissioners did not address these claims, in terms 

of prosecutorial discretion or otherwise; they were simply silent, and that silence 

makes the SOR inadequate on its face. Cf. State Farm, 463 U.S. at 43 (“[W]e must 

consider whether the [agency’s] decision was based on a consideration of the 

relevant factors . . . . [or] entirely failed to consider an important aspect of the 

problem.”). CREW does not speak to the FEC’s failure to “consider an important 

aspect” of an administrative complaint.7

 6 Appellants’ complaints alleged with, and as an alternative to, their straw donor 

allegations, that there was reason to believe the corporate respondents had met the 

two-pronged test for “political committee” status, because they (1) had a “major 

purpose” of influencing the “nomination or election of a candidate,” see Buckley v. 

Valeo, 424 U.S. 1 (1976), and (2) had received “contributions” or made 

“expenditures” of $1,000 or more. Add. 22; Add. 39.

7 Below, the FEC attempted to justify this failure by citing OGC’s conclusion that 

“an entity can be a conduit or a political committee, but not both,” suggesting that 

the controlling Commissioners were only required to analyze the first question. FEC 

Summ. J. Mot. at 38 n.11 (Aug. 21, 2017) (Docket No. 34). But OGC recommended 

only that the Commission “take no action at [that] time” with respect to the political 

committee question, Add. 36; Add. 55-56, “because the resolution of this allegation 

may depend on the disposition of the section [30122] allegation,” Add. 41. Precisely 

because the controlling Commissioners declined to find any section 30122 

violations, it was necessary to analyze whether appellants’ alternative theory merited 

investigation: if respondent corporations were not conduits, then they might indeed

have been political committees. The SOR answers only half of this question, and is 

therefore fatally incomplete. CREW does not address such a defect.

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C. Great caution in applying CREW here is appropriate given the stage 

of the administrative proceedings at which the dismissals occurred. 

Summary disposition would be especially inappropriate given that the

dismissals of the straw donor complaint occurred at the reason-to-believe stage, 

where FECA anticipates that the Commission will make a reviewable finding of law.

52 U.S.C. § 30109(a)(2); see also CREW, 892 F.3d at 445 (Pillard, J., dissenting) 

(noting that FECA “is clear that . . . the agency does not have wholly unfettered—or 

unreviewable—choice as to how it proceeds” at the reason-to-believe stage).

Here, the operative votes leading to dismissal were the controlling 

Commissioners’ votes against finding reason-to-believe, and although they claimed 

this was an act of discretion, the SOR explaining their decision relied on 

interpretations of law. But if the Commission indeed was not interested in making 

any legal findings, it could have directly considered—and taken substantive votes 

on—whether to dismiss for discretionary reasons. The Commission in this matter 

held no votes on whether the complaints should be dismissed under Heckler, even 

though the Commission can and does vote specifically on whether to dismiss cases 

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on that basis,

8 and appears to be doing so more frequently in deadlock decisions in 

the wake of the CREW decision.9

A vote to dismiss under Heckler based on an assertion of prosecutorial 

discretion might warrant different consideration. But in this case, the controlling 

Commissioners were not even asked that question; their dispositive votes were 

against finding reason to believe a violation of FECA occurred. The fact that the 

dismissals occurred at the reason-to-believe stage is all the more reason to doubt that 

the controlling Commissioners’ decision actually rested on discretionary factors 

instead of on their interpretation of FECA and conclusions of law. And it is all the 

more reason to question any presumption that their SOR is entirely unreviewable.

CREW, 892 F.3d at 449 (Pillard, J., dissenting) (“Where the FEC makes a 

determination about the law in finding no ‘reason to believe,’ we may review the 

dismissal.”).

 8 See, e.g., Certification, MUR 7114 (Casperson for Congress) (June 26, 2018), 

https://www.fec.gov/files/legal/murs/7114/17044430961.pdf (dismissing by a vote 

of 5-0 under Heckler).

9 See, e.g., Certification, MURs 7094, 7096, and 7098 (Donald J. Trump for 

President, et al.) (July 31, 2018), https://www.fec.gov/files/legal/murs/7094/

18044451829.pdf (noting that Commission “[f]ailed by a vote of 2-2” to dismiss 

“pursuant to Heckler v. Chaney in an exercise of the Commission’s prosecutorial 

discretion”).

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III. Summary Disposition Is Inappropriate Regardless of CREW’s 

Applicability.

A. CREW Cannot Provide a Basis for Summary Disposition While Its 

Mandate Has Not Issued Pending a Petition for Rehearing En 

Banc.

Summary disposition is particularly inappropriate when it is based on a new 

panel decision in a case still open on direct review. The mandate in CREW has not 

yet issued because there is a pending petition for rehearing en banc—a petition to 

which the Court directed the FEC to file a response. See Fed. R. App. P. 41(b) (noting 

that the mandate does not issue until seven days following denial of petition for 

rehearing en banc); cf. Texas v. United States, 798 F.3d 1108, 1118 (D.C. Cir. 2015) 

(noting that as a formal matter, decisions are not effective until mandate issues). 

Even if CREW bears on the resolution of this case, the FEC’s suggestion that this 

Court should now summarily dispose of this appeal because three Commissioners

use the phrase “prosecutorial discretion” is plainly wrong and inconsistent with this 

Court’s considered review of its docket. The FEC points to no case in the history of 

this Circuit in which a panel decision subject to a pending petition for rehearing en 

banc has been deemed to foreclose plenary review in related subsequent cases.

B. The scope and contours of CREW require full consideration even 

if the pending petition is denied. 

Even if CREW survives the petition for rehearing, it is hardly self-executing.

Rather, it is a new decision that has never been applied to the facts of a subsequent 

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case. See CREW, 892 F.3d at 443 (Pillard, J., dissenting) (“The court’s energetic 

defense of the FEC’s enforcement discretion in rejecting [CREW’s] particular theory 

of this case should not be taken to foreclose judicial review in similar cases in the 

future.”). As discussed above, it is far from clear how and if CREW affects the 

outcome of this case, given that the underlying agency dismissals challenged in the 

two cases were founded on materially different grounds. Moreover, CREW

represents both a change in the practice for determining when a decision is 

committed to the FEC’s discretion, and a change in the standard governing judicial 

review of discretionary dismissals. See, e.g., id. at 444 (noting that “the majority 

takes an unwarranted and incorrect further step, parting ways with the parties and 

the district court”); FEC Br. at 27, CREW, 892 F.3d 434 (July 27, 2017) (Docket No. 

1686240) (“Commission decisions not to prosecute, unlike those of most agencies, 

remain subject to judicial review.”). How CREW will apply to future cases deserves 

this Court’s full consideration, starting with this case. 

C. FECA’s inclusion of a private enforcement mechanism counsels 

against creating a categorical practice of summary disposition.

Summary disposition—which the FEC now believes is appropriate for any 

case challenging an agency decision invoking “prosecutorial discretion”—is 

inappropriate in light of FECA’s express provision of a private enforcement process. 

Congress balanced its desire for partisan parity in the composition of the FEC with 

several mechanisms for private involvement to ensure that partisan deadlock did not 

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render FECA meaningless. See, e.g., 52 U.S.C. § 30109(a)(1) (permitting filing of 

complaints with the FEC); id. § 30109(a)(8)(A) (permitting any person aggrieved by 

action of FEC to file civil action challenging FEC decision); id. § 30109(a)(8)(C) 

(authorizing complainant to bring civil action against violator if FEC fails to 

conform to judicial decision arising from (a)(8)(A) suit). 

The reflexive treatment the FEC advocates in its motion—automatic summary 

disposition for any appeal concerning agency action invoking “prosecutorial 

discretion”—would fundamentally reshape the role of private complainants in the 

FECA enforcement process. Indeed, it is antithetical to the very notion of judicial 

review Congress designed. Any dismissal that purports to rely upon prosecutorial 

discretion—however untethered the invocation of that phrase is from any traditional 

conception of such discretion—would render the statutory right for private judicial 

enforcement meaningless. This contravenes the Supreme Court’s interpretation of 

FECA. See Akins, 524 U.S. at 26 (rejecting argument that FEC’s enforcement 

decisions committed to agency discretion without judicial review because FECA 

“explicitly indicates the contrary”). At the very least, if that is to be the result of the 

divided panel decision in CREW, this Court should not arrive at that decision through 

summary disposition of this case.

It is exceptionally important to preserve the proper function of the private 

complaint process Congress devised given the uniquely partisan environment in 

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which the FEC operates and the self-evident risk that its decision-making will be 

mired in 3-3 splits along partisan or ideological lines. Concerns that “prosecutorial 

discretion” will now regularly be invoked to avoid judicial review are not 

unfounded. See, e.g., Weintraub Statement, supra note 1 (“If I have learned anything 

in my last ten years on the FEC, it is that those who ideologically oppose campaignfinance law enforcement will use every single legal and procedural advantage . . . . 

If my obstructionist colleagues are allowed to keep this case-killing power they have 

been handed, they will wield it.”). Indeed, since the lower court in CREW issued its 

decision in February of this year, every Commission decision rejecting an OGC 

recommendation to find no reason to believe has invoked “prosecutorial 

discretion”—in seven of the seven such decisions since CREW was announced. See

Add. 64.

III. If the Court Finds That CREW Bears Upon the Resolution of this Case, 

These Proceedings Should Be Stayed until CREW’s Petition Is Decided. 

For the reasons listed above, CREW’s presumption that discretionary FEC 

decisions are unreviewable does not govern the outcome of this appeal, and certainly 

does not support summary disposition. But, if this court finds otherwise, appellants 

request a stay of proceedings until CREW’s pending petition for rehearing is 

decided.

Indeed, the very fact that the FEC now believes that CREW has created a 

“magic words” test for unreviewability—requiring summary disposition of all 

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appeals mentioning “prosecutorial discretion”—underscores the need for the full

Court to grant CREW’s petition. Congress could not have intended to create such a 

massive exception to the judicial review provisions it included in FECA—an 

exception that threatens to swallow the right of judicial review entirely. That the 

FEC sees summary disposition on the horizon for this case and every case seeking 

judicial review of its dismissal of complaints is the best evidence that the decision 

in CREW demands review by the full Court.

CONCLUSION

The FEC’s motion should be denied. If this Court finds that CREW supports 

summary affirmance here, appellants request that their appeal be stayed until 

CREW’s petition for rehearing is decided.

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Dated: October 11, 2018

Respectfully submitted, 

Paul M. Smith (DC Bar No. 358870)

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

Mark P. Gaber (DC Bar No. 988077)

CAMPAIGN LEGAL CENTER

1411 K Street N.W., Suite 1400

Washington, DC 20005

(202) 736-2200

Fred Wertheimer (DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue N.W.

Washington, DC 20036

(202) 355-9600

Donald J. Simon (DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street N.W., Suite 600

Washington, DC 20005

(202) 682-0240

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE 

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

because it contains 5,162 words, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(f).

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 in a proportionally spaced typeface using Microsoft 

Office Word 2016 in Times New Roman 14-point font.

/s/ Tara Malloy

Tara Malloy

Dated: October 11, 2018

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CERTIFICATE OF SERVICE

I hereby certify that on October 11, 2018, I electronically filed Appellants’ 

Response opposing Appellee’s Motion for Summary Affirmance 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 counsel of record.

I further certify that I also caused the requisite number of paper copies of the 

brief to be filed with the Clerk on October 11, 2018.

/s/ Tara Malloy

Tara Malloy

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