UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON and :

NOAH BOOKBINDER, :

:

Plaintiffs, : Civil Action No.: 18-76 (RC)

:

v. : Re Document Nos.: 12, 13

:

FEDERAL ELECTION COMMISSION, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;

DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case concerns the degree to which the Federal Election Commission (“FEC”) can 

shield an enforcement action from judicial review by invoking its discretion to bring that action 

in the first place. Plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) 

and Noah Bookbinder, CREW’s executive director, initiated this action against the FEC under 

the Federal Election Campaign Act (“FECA”). They argue that the FEC improperly dismissed 

their administrative complaint against New Models, a non-profit entity based in Washington, 

D.C. According to Plaintiffs, New Models failed to register and report as a “political committee”

in 2012, in violation of FECA, yet the FEC declined to investigate that violation. The FEC 

Commissioners charged with explaining the dismissal justified the FEC’s action with a lengthy 

analysis of statutory text and case law. They also, however, stated that dismissal was appropriate 

because pursing an investigation of New Models would not be an appropriate use of the FEC’s 

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limited resources. In other words, they invoked the FEC’s “prosecutorial discretion” to decline 

enforcing FECA against New Models.

Pending before the Court are the parties’ ripe cross-motions for summary judgment. The 

FEC argues, relying heavily on a recent D.C. Circuit decision, that because the Commissioners 

exercised prosecutorial discretion to dismiss Plaintiffs’ administrative complaint, this Court is 

barred from reviewing any portion of that dismissal. Plaintiffs resist the application of that 

“magic words” standard, and the Court is sympathetic to Plaintiffs’ concerns. However, having 

reviewed the relevant case law and the parties’ briefing, the Court concludes that, at least in this 

case, it cannot review the FEC’s invocation of its unreviewable discretion. Thus, for the reasons 

stated more fully below, the FEC’s motion for summary judgment is granted and Plaintiffs’ 

motion for summary judgment is denied. 

II. BACKGROUND

A. Statutory and Regulatory Framework

1. Federal Election Campaign Act

Congress enacted FECA, 52 U.S.C. §§ 30101–30126, to prevent money from corrupting 

or appearing to corrupt the positions taken by candidates for federal office, and those candidates’

actions while in office. See generally Citizens United v. FEC, 558 U.S. 310, 370–71 (2010). In 

pursuit of this goal, FECA limits the amount of money that individual donors may contribute to 

particular types of election-related causes. See, e.g., 52 U.S.C. § 30116(a)(1)(A) (stating that “no 

person shall make contributions . . . to any candidate and his authorized political committees 

with respect to any election for Federal office which, in the aggregate, exceed $2,000.”). FECA 

also requires that certain categories of politically-inclined organizations disclose to the public 

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how they spend their money and—more importantly—where that money comes from. See id. § 

30104. 

This case concerns FECA’s disclosure requirements for a specific type of organization: a 

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

association, or other group of persons” that receives “contributions” or makes “expenditures” 

“aggregating in excess of $1,000 during a calendar year.” id. § 30101(4)(A). “Contributions” 

and “expenditures” are in turn defined as payments made with a purpose to “influenc[e] any 

election for Federal office.” See id. § 30101(8)(A), (9)(A). The Supreme Court has further 

narrowed the scope of FECA’s rules governing political committees, holding that they cover 

only “organizations that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976). The FEC 

determines a group’s “major purpose” on a case-by-case basis, taking into account the group’s 

allocation of spending, public and private statements, and overall conduct.1

 See Supplemental 

Explanation & Justification, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007); Shays v. FEC, 511 F. Supp. 

2d 19, 23, 30 (D.D.C. 2007). Put simply, then, as it pertains to this case, an organization must 

register as a political committee if: (1) it receives contributions or makes expenditures of more 

than $1,000 in a calendar year for the purpose of influencing a federal election; and (2) its major 

purpose is the nomination or election of a candidate for federal office. 

Classification as a political committee has significant practical consequences. FECA 

requires political committees to register with the FEC, hire a treasurer, and keep records of the 

names and addresses of contributors. See 52 U.S.C. §§ 30102–03. Political committees must 

 1 This approach “has been litigated, scrutinized, and ultimately validated by a fellow 

court in this District.” CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77, 82 (D.D.C. 2016) (citing 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007)). 

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also file detailed monthly reports identifying, among other information, the amount of money 

contributed to the reporting committee by individuals and other political committees, the 

identities of those individuals and political committees, the amount of money contributed by the 

reporting committee to other political committees, and the identities of those political 

committees. See id. § 30104(b). And once an organization becomes a political committee, it 

may only terminate its status if it “will no longer receive any contributions or make any 

disbursements” and “has no outstanding debts or obligations,” id. § 30103(d)(1), or with the 

Commission’s permission under certain circumstances, see 11 C.F.R. § 102.4. “In sum, 

regulatory obligations, prohibitions, and First Amendment impingements associated with 

political-committee status are weighty and extensive.” Administrative Record at 99 (“AR099”), 

ECF No. 21.

2. FECA Enforcement

The FEC (or the “Commission”) protects voters’ access to “information ‘as to where 

political campaign money comes from and how it is spent by the candidate.’” Buckley, 424 U.S.

at 66–67 (quoting H.R. Rep. No. 92-564 at 4 (1971)). More specifically, the Commission has the 

power to “administer, seek to obtain compliance with, and formulate policy with respect to” 

FECA, and its disclosure requirements. 52 U.S.C. § 30106(b)(1). The Commission is also 

charged with preventing, investigating, and correcting FECA violations. See id. 30109(a). 

FECA provides the Commission with broad investigatory powers in service of that mission, 

including subpoena power and the power to bring civil actions. See id. § 30107. The 

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Commission is structurally bipartisan: of the six members, no more than three may be from the 

same political party. Id. § 30106(a)(1).2

FECA provides the framework by which the Commission must investigate and address 

FECA violations. First, as happened here, an individual or organization may file a sworn 

administrative complaint with the Commission asserting that a FECA violation has occurred. 

See id. § 30109(a)(1); see also 11 C.F.R. § 111.4.

3

 Next, based on the complaint and any FEC

Office of General Counsel (“OGC”) recommendations, see 11 C.F.R. § 111.7, the

Commissioners vote on whether there is “reason to believe that a person has committed, or is 

about to commit,” a FECA violation, 52 U.S.C. § 30109(a)(2). Four votes are required to move 

forward with an investigation. Id. Thus, if a full complement of six Commissioners participate 

in the process, three negative “reason to believe” votes may block any investigation or 

enforcement action. But, as in this case, when fewer than six Commissioners participate, even 

fewer negative votes may block further action. If four Commissioners find reason to believe that 

a violation occurred or will occur, the Commission and its OGC must investigate the complaint 

further. See id. § 30109(a)(2), (3). After the investigation, the Commissioners must again vote 

on whether there is “probable cause to believe” that a violation occurred or is about to occur.

See id. § 30109(a)(4). And again, four votes are required. See id. If the Commission determines 

that probable cause exists, the OGC attempts to informally and privately resolve the dispute with 

the alleged violator. See id. §§ 30109(a)(4)(A)(i)–(B)(i). If those attempts fail, the 

 2 FECA does not require that the Commission always have the full slate of six 

Commissioners. The FEC actions at issue here involved only four commissioners. See AR087.

3 The Commission may also take action “on the basis of information ascertained in the 

normal course of carrying out its supervisory responsibilities.” 52 U.S.C. § 30109(a)(2).

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Commissioners must again vote—and again, four votes are required to move forward—on

whether to institute a civil action in federal court. See id. § 30109(a)(6)(A).4 

Congress did not stop there, however. It built into FECA a mechanism for citizens to 

ensure that the Commission upholds its obligation to safeguard electoral integrity. In a 

somewhat uncommon legislative step, Congress provided for judicial review of Commission 

decisions not to enforce FECA. 

The review mechanism works as follows. If the Commissioners deadlock on a “reason to 

believe” vote, they may vote to dismiss the administrative complaint that prompted the vote. See 

id. § 30106(c) (“[T]he affirmative vote of [four] members of the Commission shall be required in 

order for the Commission to take any [enforcement or other authoritative] action.”); id. § 

30109(a)(1) (noting that the Commission may “vote to dismiss” an administrative complaint).

At that point, as happened here, the Commissioners who voted not to proceed with the matter

(the “Controlling Commissioners”) must issue a statement explaining their reasons. See CREW 

v. FEC (“CREW/CHGO”), 892 F.3d 434, 437 (D.C. Cir. 2018), petition for reh’g en banc filed, 

No. 17-5049 (D.C. Cir. July 27, 2018); FEC v. Nat’l Republican Senatorial Comm. (“NRSC”), 

966 F.2d 1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC, 842 F.2d 436, 448–49 (D.C. Cir. 

1988); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. Cir. 

1987). Any “party aggrieved” by the dismissal “may file a petition” for review by a court in this 

district. 52 U.S.C. § 30109(a)(8)(A). If the reviewing court determines that the Controlling 

Commissioners acted “contrary to law” in dismissing the complaint, the court must explain that 

conclusion and direct the Commission to “conform with such declaration within [thirty]

days.” See id. § 30109(a)(8)(C). Finally, if the Commission fails to conform to the court’s order 

 4 The statute of limitations for FECA actions is five years. See 28 U.S.C. § 2462. 

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within thirty days, the complainant may file a civil action in its own name, in federal court, to 

remedy the claimed violation. See id.

B. Factual and Procedural Background

New Models was incorporated in 2000 as a non-profit organization with the purpose of 

“research[ing] national issues” and “participat[ing] in issue advocacy when appropriate.” 

AR094. It “conducted polls, maintained a website that published information about public 

policy, sponsored and made available polling results and research papers, and made grants to 

other organizations.” AR095. The Controlling Commissioners determined that from 2002 

through 2015, New Models spent approximately $17.2 million. See AR095–96. While the 

specific uses of most of those funds are unclear, the parties agree that in 2012, New Models 

contributed approximately $3.1 million to registered political committees, nearly 70% of its 

spending that year. See id. Other than a $265,000 contribution in 2010, see AR095, the record 

does not indicate that New Models ever donated money to political committees outside of its 

2012 spending. The Controlling Commissioners also concluded that New Models “never made 

any independent expenditures” or “ever funded any electioneering communications” directly.5

 

AR097. 

While New Models contributed millions of dollars in 2012 to political committees, the 

organization itself never registered with the FEC as a political committee. This prompted 

Plaintiffs to file an administrative complaint in 2014, alleging that New Models’s predominantly 

 5 An “independent expenditure” is a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and that is made without coordinating with the candidate 

or a political party. See 52 U.S.C. § 30101(17); 11 C.F.R. § 100.16. An “electioneering 

communication” is a communication which “refers to a clearly identified candidate for Federal 

office,” is “targeted to the relevant electorate,” and is made within sixty days before a general 

election involving the candidate or thirty days before a primary election involving the candidate. 

See 52 U.S.C. § 30104(f)(3); 11 C.F.R. § 100.29.

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campaign-related spending in 2012 made it an unregistered political committee.6

 AR001–08. In 

response, New Models conceded that it made over $1,000 in “contributions” under FECA in 

2012, but it argued that it was not a political committee because it did not have the major 

purpose of nominating or electing candidates for federal office. See AR051–55. The FEC’s 

OGC reviewed the complaint and New Models’s response, and determined that “it reasonably 

appears that New Models made over $1,000 in expenditures in 2012 and had the major purpose 

of nominating or electing federal candidates.” AR065. The OGC thus recommended that the 

Commissioners find “reason to believe” that New Models was a political committee. AR066. 

Nevertheless, in late-2017, the Commissioners deadlocked 2-to-2 on whether to further 

investigate New Models. See AR087.

7

 Given the deadlock, the Commissioners voted 4-to-0 to 

dismiss Plaintiffs’ administrative complaint. See AR088.

As required, the Controlling Commissioners—the two Commissioners who voted to halt 

the investigation—issued a statement of reasons explaining their conclusion that there was no 

“reason to believe” that New Models was an unregistered political committee. See AR091–122. 

The statement of reasons undertook a robust discussion of New Models’s activities, public 

statements, revenue, and spending; FECA’s statutory definition of a political committee; and the 

evolution of the “Major Purpose Test” established by the Supreme Court in Buckley. See

AR091–108. Given that framework, the Controlling Commissioners provided three reasons why 

dismissal was appropriate. 

 6 The original administrative complaint was submitted by CREW and its then-executive 

director, Melanie Sloan. See AR001. CREW later amended that complaint to substitute Noah 

Bookbinder, CREW’s current executive director and a Plaintiff here, for Ms. Sloan. See AR076.

7 The fifth Commissioner was recused and did not vote. See id. Thus, for Plaintiffs’ 

administrative complaint to avoid dismissal, the four remaining Commissioners would have 

needed to unanimously agree to proceed with the New Models investigation. See 52 U.S.C. § 

30109(a)(2). 

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First, the Controlling Commissioners concluded that New Models fell outside the 

statutory definition of a political committee; it “was a contributor, not a political committee.” 

AR110. More specifically, the Controlling Commissioners determined that New Models did not 

receive “contributions” or make “expenditures” of more than $1,000. See AR108–10. The 

Controlling Commissioners grounded this determination on the Supreme Court’s reasoning in 

Buckley. They stated that the Court in Buckley “circumscribed” the statutory definition of 

“expenditure” to reach “spending that is unambiguously related to the campaign of a particular 

federal candidate.” AR109 (quoting Buckley, 424 U.S. at 80). And New Models did not make 

“any independent expenditures of its own expressly advocating the election or defeat of a clearly 

identified candidate.” Id. It only donated money to other political committees, which “made 

expenditures independent of candidates and political parties.” AR110. In other words, the 

Controlling Commissioners concluded that because New Models itself did not advocate for the 

election of any candidate or earmark money for particular campaigns, it did not make 

expenditures under FECA. And because New Models did not make expenditures it could not 

receive contributions, which the Controlling Commissioners interpreted, under FECA and 

Buckley, to be donations “earmarked for political purposes.” AR109 (quoting Buckley, 424 U.S. 

at 23 n.24, 78). 

Second, the Controlling Commissioners concluded that New Models’s major purpose 

was not the nomination or election of candidates for federal elections, as Buckley requires for 

political committee status. See AR121. In reaching this conclusion, the Controlling 

Commissioners “compare[d] New Models’s isolated contributions [in 2012] with other activities 

both in 2012 and during its lifetime.” AR111. The Controlling Commissioners acknowledged 

that a substantial portion of New Models’s spending in 2012 consisted of donations to other 

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political committees, indicating that “nominating or defeating a federal candidate may have been 

a purpose of the organization in 2012.” AR117 (emphasis in original). The Controlling 

Commissioners noted, however, that New Models spent little to no money on political 

committees in any other year, both before and after 2012. See AR095–96; AR116–18. They 

also surveyed New Models’s public statements, organizational documents, and tax filings made 

over its lifetime, and could not find evidence to suggest that the organization ever advocated the 

election or defeat of a candidate for federal office. See AR111–114. The Controlling 

Commissioners acknowledged the possibility that New Models’s purpose could have shifted in 

2012, from an issues focus to a campaign focus, see AR117 & n.123, but they discounted that 

possibility given the organization’s messaging and spending practices after 2012, id. Thus, the 

Controlling Commissioners concluded that New Models was an “issue discussion organization, 

not a political committee having the major purpose of nominating or electing candidates.” 

AR121. 

Third, the Controlling Commissioners concluded that “proceeding further would not be 

an appropriate use of Commission resources.” AR121 n.139. They noted that New Models 

“appear[ed] no longer active.” Id.; see also AR97 & n.32 (noting that New Models “liquidated, 

terminated, dissolved, or otherwise ceased operations” in 2015). They also noted “the age of the 

activity” at issue; the alleged expenditures occurred more than five years before the Controlling 

Commissioners’ decision. AR121 n.139. Given these factors, the Controlling Commissioners

“exercise[d] [their] prosecutorial discretion” to dismiss Plaintiffs’ administrative complaint. 

AR121. Their discussion of prosecutorial discretion covered one paragraph of the thirty-twopage statement of reasons. 

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Following the Commission’s dismissal of their administrative complaint, Plaintiffs filed 

suit in this Court alleging that the decision was contrary to law. See generally Compl., ECF No. 

1. Plaintiffs seek a declaration that “the FEC is in violation of its statutory responsibilities under 

52 U.S.C. § 30109(a)(8)” and that it acted contrary to law in dismissing Plaintiffs’ administrative 

complaint. Id. ¶ 38. The parties have now cross-moved for summary judgment, and those 

motions are ripe for the Court’s review. See generally Pl.’s Mot. Summ. J., ECF No. 12; FEC’s 

Mot. Summ. J., ECF No. 13. 

III. LEGAL STANDARD

To prevail on a motion for summary judgment, a movant must show that “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). “Under these circumstances, where summary judgment is sought 

regarding . . . the FEC’s dismissal decision[], this Court will grant summary judgment to the 

challenger only if the agency’s decisions are ‘contrary to law.’” CREW v. FEC (“CREW I”), 

209 F. Supp. 3d 77, 85 (D.D.C. 2016) (quoting 52 U.S.C. § 30109(a)(8)(C)); see also Orloski v. 

FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “The FEC’s decision is ‘contrary to law’ if (1) the 

FEC dismissed the complaint as a result of an impermissible interpretation of the Act, or (2) if 

the FEC’s dismissal of the complaint, under a permissible interpretation of the statute, was 

arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161 (citing FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 31, 37 (1981); In re Carter-Mondale 

Reelection Comm., 642 F.2d 538, 542 (D.C. Cir. 1980)). Under this standard, a court’s task is 

“not to interpret the statute as it [thinks] best[,] but rather the narrower inquiry into whether the 

Commission’s construction was ‘sufficiently reasonable.’” Democratic Senatorial Campaign 

Comm., 454 U.S. at 39 (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978); 

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Train v. Nat. Res. Def. Counsel, 421 U.S. 60, 75 (1975)). “Whether the FEC’s decision is 

unanimous or deadlocks in an evenly divided vote, the same standard for judicial review 

applies.” CREW v. FEC (“CREW II”), 316 F. Supp. 3d 349, 366 (D.D.C. 2018) (citing In re 

Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000); NRSC, 966 F.2d at 1476).

IV. ANALYSIS

Plaintiffs argue that the Commission acted contrary to law in two ways. First, Plaintiffs

fault the Controlling Commissioners for applying an exceedingly narrow definition of 

“expenditure,” such that only expenditures on “express[] advoca[cy]”—and not donations to 

political committees—were deemed relevant to whether New Models met the statutory definition 

of a political committee. See Pls.’ Mem. Supp. Mot. (“Pls.’ Mem.”) at 29, ECF No. 12. Second, 

Plaintiffs characterize the Controlling Commissioners’ statement of reasons as applying a 

“lifetime-focused test” for determining an organization’s major purpose; a test that Plaintiffs 

claim has “been struck down as contrary to law by a judge in this district,” and that otherwise has 

no basis in case law or FECA. Id. at 36.8

The FEC contests Plaintiffs’ arguments on their merits, but it first raises a threshold 

challenge to this Court’s review. It notes that the Controlling Commissioners expressly relied on 

prosecutorial discretion as “an independent basis” for dismissing Plaintiffs’ administrative 

complaint. FEC’s Mem. Supp. Mot. (“FEC’s Mem.”) at 15, ECF No. 13-1. And it argues that a 

recent D.C. Circuit opinion—CREW v. FEC (“CREW/CHGO”), 892 F.3d 434 (D.C. Cir. 2018), 

 8 Plaintiffs also contend that the Court should review the Controlling Commissioners’ 

reasoning de novo because that reasoning depends on the Commissioners’ interpretation of case 

law rather than FECA, and it does not represent the FEC’s official, binding position. See id. at 

19–28. The FEC, on the other hand, advocates for Chevron deference. See FEC’s Mem. at 19. 

Because the Court does not reach the merits of Plaintiffs’ “contrary to law” arguments, it need 

not address this issue.

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petition for reh’g en banc filed, No. 17-5049 (D.C. Cir. July 27, 2018)—holds that “dismissal 

decisions based in whole or in part on prosecutorial discretion are presumptively unreviewable.” 

Id. Thus, according to the FEC, binding Circuit precedent dictates that this Court must dismiss 

Plaintiffs’ complaint. See id. at 15–18. Plaintiffs raise valid reasons why CREW/CHGO may 

“allow the FEC to avoid judicial review of its actions,” Pls.’ Reply at 28, ECF No. 17, but they 

fail to demonstrate that the Circuit’s decision should not govern the result here. Thus, this case 

begins and ends with the Controlling Commissioners’ prosecutorial discretion. 

CREW/CHGO, like this case, involved a challenge to the FEC’s dismissal of an 

administrative complaint.

9

 892 F.3d at 437–38. The FEC dismissed the complaint because less 

than four Commissioners found “reason to believe” that the complaint’s subject violated FECA 

by acting as an unregistered political committee. See id. at 436–37, 443. In reaching their

conclusion, the “naysayers on the Commission”—the Controlling Commissioners—“placed their 

judgment squarely on the ground of prosecutorial discretion.” Id. at 439. Those Commissioners

“were concerned that the statute of limitations had expired or was about to; that the association 

named in [the plaintiff’s administrative] complaint no longer existed; that the association had 

filed termination papers with the IRS four years earlier; that it had no money; that its counsel had 

resigned; that the ‘defunct’ association no longer had any agents who could legally bind it; and 

that any action against the association would raise ‘novel legal issues that the Commission had 

no briefing or time to decide.’” Id. at 438. The Controlling Commissioners thus determined that 

the plaintiff’s complaint “did not warrant further use of Commission resources.” Id. 

 9 CREW and its executive director were also the plaintiffs, and petitioners, in 

CREW/CHGO. 892 F.3d at 436.

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In challenging that determination, the CREW/CHGO plaintiff raised for the Circuit the 

same question faced by this Court here: how closely may a court scrutinize the FEC’s exercise of 

prosecutorial discretion in dismissing an administrative complaint? The Circuit’s answer: not at 

all. See id. at 440. Reaching this answer, the Circuit began with the well-established 

presumption that “an agency’s exercise of its prosecutorial discretion cannot be subjected to 

judicial scrutiny.” Id. at 439 (citing Heckler v. Chaney, 470 U.S. 821, 831–32 (1985)). The 

Circuit noted, however, that Heckler establishes two circumstances in which an agency’s 

decision not to enforce a statute is reviewable. See id. at 439. First, Heckler’s presumption 

against reviewability “may be rebutted where the substantive statute has provided guidelines for 

the agency to follow in exercising its enforcement powers.” Id. at 439 (quoting Heckler, 470 

U.S. at 832–33). Second, Heckler “left open the possibility that an agency nonenforcement 

decision may be reviewed if ‘the agency has consciously and expressly adopted a general policy 

that is so extreme as to amount to an abdication of its statutory responsibilities.’” Id. at 440 n.9 

(quoting Heckler, 470 U.S. at 833 n.4). 

The Circuit concluded that neither Heckler caveat applied to the Commission’s nonprosecution decision before it. FECA “imposes no constraints on the Commission’s judgment 

about whether, in a particular matter, it should bring an enforcement action.” Id. at 439. And the

CREW/CHGO record “show[ed] that the Commission routinely enforce[d] the election law 

violations alleged in [the plaintiff’s] administrative complaint.” Id. at 440 n.9. Thus, the Circuit 

held that the Controlling Commissioners’ exercise of prosecutorial discretion was not subject to 

judicial review, and that the plaintiff’s suit was properly dismissed. Id. at 440.

CREW/CHGO is directly on point here. In both CREW/CHGO and this case, the FEC 

was “called upon to determine whether [an organization] . . . failed to register and report as a 

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‘political committee’ under the [FECA].” AR091; see also CREW/CHGO, 892 F.3d at 441. In 

each case, less than four Commissioners voted to “find[] reason to believe that [the organization] 

violated the Act” in the manner asserted. AR092; see also CREW/CHGO, 892 F.3d at 438, 443 

(Pillard, J. dissenting). And in each case, the FEC dismissed the administrative complaint, 

prompting a lawsuit. See CREW/CHGO, 892 F.3d at 436–47; AR121. In reaching the decision 

at issue in CREW/CHGO, the Controlling Commissioners “placed their judgment squarely on the 

ground of prosecutorial discretion.” Id. at 439. Likewise here, the Controlling Commissioners

argued that dismissal was appropriate, in part, “in exercise of [their] prosecutorial discretion.” 

AR121. They concluded that “[g]iven the age of the activity”—the expenditures at issue 

occurred in 2012, the administrative complaint was filed in late-2014, and the Commission 

dismissed the complaint in late-2017—“and the fact that the organization appears no longer 

active”—IRS records indicated that New Models ceased operations in 2015—“proceeding 

further would not be an appropriate use of Commission resources.” AR097 & n.32; AR121 & 

n.139. Under binding Circuit law, that conclusion is not subject to judicial review. See 

CREW/CHGO, 892 F.3d at 440.10 

A perceptive reader may, at this point, be contemplating what appears to be a key 

difference between CREW/CHGO and this case: the Controlling Commissioners’ decision at 

issue in CREW/CHGO was primarily, if not solely, an exercise of prosecutorial discretion, see id.

at 439, while the Controlling Commissioners’ decision at issue here involved a robust 

 10 This Court, in its decision reviewed by the D.C. Circuit in CREW/CHGO, 

acknowledged the FEC’s broad prosecutorial discretion, but it reviewed for reasonableness the 

Controlling Commissioners’ invocation of that discretion. CREW v. FEC, 236 F. Supp. 3d 378, 

390–97 (D.D.C. 2017). If this Court were to apply that same degree of scrutiny here, it may, 

perhaps, reach a different result, given that the Controlling Commissioners relied so heavily on

their legal analysis. But CREW appealed this Court’s decision and wound up with 

CREW/CHGO’s seemingly more deferential standard, which this Court is now bound to apply. 

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interpretation of statutory text and case law, with a brief mention of prosecutorial discretion 

sprinkled in, see AR091–122. Surely, the reader may protest, a one-paragraph discussion of 

prosecutorial discretion cannot prevent a court from addressing thirty pages of seemingly 

reviewable legal analysis. Judge Pillard raised this same issue in her CREW/CHGO dissent. See

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.”); id. at 452 (“I read the Controlling 

Commissioners as having held a clear but incorrect view of the law that informed their dismissal.

That decision should have been reviewed, reversed, and remanded to the FEC.”). CREW/CHGO

appears, however, to squash this approach. Rejecting the notion that a court may “carv[e] 

reviewable legal rulings out from the middle of non-reviewable actions,” the Circuit held that 

“even if some statutory interpretation could be teased out of the [Controlling] Commissioners’

statement of reasons, the dissent would still be mistaken in subjecting the dismissal of [the 

plaintiff’s] complaint to judicial review.” Id. at 441–42 (citations omitted). Thus, because the 

Controlling Commissioners here invoked prosecutorial discretion in dismissing Plaintiffs’ 

administrative complaint—a “non-reviewable” action under CREW/CHGO —this Court cannot 

evaluate the “reviewable legal rulings” contained in the Controlling Commissioners’ statement 

of reasons. 

Plaintiffs strain, unsuccessfully, to extricate this case from CREW/CHGO’s holding. 

They argue that the Controlling Commissioners’ “‘terse’ invocation of discretion . . . does not 

meet the agency’s obligations [to] adequately explain its justifications to enable judicial review.” 

Pls.’ Mem. at 26 (citations omitted). In other words, Plaintiffs ask this Court to review, and 

reject, the Controlling Commissioners’ reasons for exercising their prosecutorial discretion. But 

again, CREW/CHGO dictates the Court’s response. The Circuit’s opinion addressed the seeming 

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contradiction raised by Plaintiffs’ argument: “an agency has ‘absolute discretion’ when it comes 

to enforcement decisions,” yet Plaintiffs claim that “it is up to the court to decide whether the 

agency abused [that] absolute discretion” in deciding not to pursue enforcement. 892 F.3d at 

440–41. The Circuit rejected that contradiction, holding that “agency enforcement decisions, to 

the extent they are committed to agency discretion, are not subject to judicial review for abuse of 

discretion.” Id. at 441. This Court cannot evaluate, then, the “individual considerations the 

[C]ontrolling Commissioners gave” in invoking prosecutorial discretion here, terse as they may 

be. Id.11 

Plaintiffs also see a glimmer of hope in CREW/CHGO’s statement, made in a footnote,

that “[t]he interpretation an agency gives to a statute is not committed to the agency’s 

unreviewable discretion.” 892 F.3d at 441 n.11 (citing Heckler, 470 U.S. at 833 n.4). Plaintiffs 

argue that the Controlling Commissioners here “definitively resolved New Models’s political 

committee status in the negative,” a legal analysis that even CREW/CHGO acknowledges is 

reviewable. Pls.’ Reply at 27. But as discussed above, CREW/CHGO holds that the Controlling 

Commissioners’ legal analyses are reviewable only if they are the sole reason for the dismissal 

of an administrative complaint. The CREW/CHGO footnote quoted by Plaintiffs reflects this 

holding; it states that “there may be such [judicial] review under FECA if . . . the agency’s action 

was based entirely on its interpretation of the statute.” 892 F.3d at 441 n.11 (emphasis added). 

 11 And if, as Plaintiffs claim, the Court could evaluate the Controlling Commissioners’

reasons for invoking prosecutorial discretion, the Commissioners’ factual bases for their decision 

are generally considered rational. See AR121 n.139 (“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.”); see also Nader v. FEC, 823 F. Supp. 2d 53, 65–66 (D.D.C. 

2011) (deferring to the FEC’s invocation of prosecutorial discretion when a challenged 

organization was “essentially defunct” and an investigation would “encounter difficulties with 

obtaining relevant documents and stale witness memories” (citations and internal quotation 

marks omitted)).

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And while courts may review agency enforcement—or non-enforcement—policies that are based 

on the agencies’ “view of what the law requires,” NAACP v. Trump, 315 F. Supp. 3d 457, 467 

(D.D.C. 2018) (citation omitted), the Controlling Commissioners’ invocation of prosecutorial 

discretion here did not rely on their interpretation of FECA or case law. See AR121 n.139.12 

That invocation, brief as it was, thus insulated the Controlling Commissioners’ decision from 

reviewability under CREW/CHGO.

13

Resigning themselves to CREW/CHGO’s binding effect, Plaintiffs next argue that the 

Controlling Commissioners’ decision here falls outside Heckler’s presumption of nonreviewability. Plaintiffs contend that the Controlling Commissioners’ decision reflects a 

reviewable “abdication of [their] statutory responsibilities.” Pls.’ Reply at 29 (quoting 

CREW/CHGO, 892 F.3d at 440 n.9)). Plaintiffs’ theory appears to be two-pronged: either (1) in 

 12 Had the Controlling Commissioners invoked prosecutorial discretion based on their 

legal analysis—for instance by concluding that the FEC’s resources should be deployed 

elsewhere because the agency’s action was unlikely to succeed, see, e.g., La Botz v. FEC, 61 F. 

Supp. 3d 21, 33 (D.D.C. 2014), or that CREW’s administrative complaint raised fair notice or 

due process concerns, given the agency’s previous interpretations of the political committee 

rules, see, e.g., Campaign Legal Ctr. v. FEC (“CLC”), 312 F. Supp. 3d 153, 158, 164–66

(D.D.C. 2018)—the Court, perhaps, could undertake a more piercing review.

13 Plaintiffs also reference one case decided after CREW/CHGO in which a court in this 

jurisdiction reversed and remanded the FEC’s dismissal of an administrative complaint, despite 

the Controlling Commissioners’ invocation of prosecutorial discretion. See CREW II, 316 F. 

Supp. 3d at 421–22. That case, however, concerned an FEC non-enforcement decision 

“predicated on an invalid [FEC] regulation.” Id. at 422 n.57. The FEC exercised its 

prosecutorial discretion “as a prudential matter” because the complaint’s subject “could raise 

equitable concerns about whether [it] ha[d] fair notice” that it was subject to the FECA provision 

at issue, given the regulation’s text. Id. at 363. In vacating the regulation and reversing the 

FEC’s dismissal, the court noted that “for years” the FEC had acknowledged a material 

discrepancy between the regulation at issue and FECA “without remedial action”; a position

“raising the issue whether the FEC had intentionally ‘abdicated . . . its statutory 

responsibilities.’” Id. at 421–22. The Controlling Commissioners’ decision at issue here was not 

based on an invalid regulation, nor did they invoke fair notice concerns, and as discussed below 

Plaintiffs have failed to show that the FEC abdicated its FECA responsibilities in dismissing 

Plaintiffs’ administrative complaint. CREW II is thus inapposite. 

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dismissing Plaintiffs’ complaint the Controlling Commissioners adopted a bright-line rule 

“refus[ing] to apply the FECA’s political committee laws to any group that qualifies under the 

statute as a result of its contributions to other political committees, or as the result of an analysis 

of less than its lifetime of spending”; or (2) the Commission has “‘consciously and expressly 

adopted a general policy’ of nonenforcement” of FECA. Pls.’ Reply at 29. Neither prong holds 

up under scrutiny.

First, the administrative record does not support Plaintiffs’ assertion that the Controlling 

Commissioners adopted bright line rules here. The Controlling Commissioners evaluated New 

Models’s 2012 “spending on political activities,” and determined that New Models did not make 

FECA “expenditures” in that year. See AR109–10. Likewise, applying the FEC’s case-by-case 

approach to political committee determinations, see AR106 (citing 72 Fed. Reg. at 5,601–02), 

the Controlling Commissioners evaluated New Models’s 2012 “campaign spending” and 

compared those “isolated contributions with other activities both in 2012 and during [New 

Models’s] lifetime,” concluding that New Models did not have the major purpose of nominating 

or electing candidates for federal office.

14 AR111. The Controlling Commissioners did not

indicate that their decision regarding New Models would dictate their decisions regarding other 

organizations.15 In fact, the Controlling Commissioners expressly rejected the imposition of 

 14 And contrary to Plaintiffs’ argument, the Commissioners did not ignore New Models’s 

2012 spending. See AR115 n.114 (evaluating whether New Models’s 2012 spending indicated a 

“fundamental change” in the organization, from one focused on public policy discussion to one 

focused on nominating or electing federal candidates); AR117 n.123 (concluding that “New 

Models’s spending after 2012 [does not] indicate a shift in the organization’s spending pattern”). 

15 The reasoning of the two Controlling Commissioners “who voted against investigation 

constitutes the agency’s reasoning for this case,” Campaign Legal Ctr. v. FEC (“CLC”), 312 F. 

Supp. 3d 153, 166 (D.D.C. 2018) (emphasis in original) (citing NRSC, 966 F.2d at 1476), but 

“not . . . binding legal precedent or authority for future cases,” Common Cause v. FEC, 842 F.2d 

436, 449 n.32 (D.C. Cir. 1988) (noting that the statement of reasons of three Controlling 

Commissioners “would not be binding legal precedent or authority for future cases. The statute 

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bright line rules in the political committee context. See AR119–21 (discarding what the 

Controlling Commissioners’ characterized as the OGC’s attempt to create a “rigid calendar year 

approach,” in favor of their own “case-by-case framework” allowing for an analysis of an 

organization’s spending over time). While the Controlling Commissioners’ interpretation of 

“expenditure” under FECA may be overly narrow, it is the interpretation of only two 

Commissioners. It cannot control the FEC’s actions unless it is adopted by more

Commissioners. See Campaign Legal Ctr. v. FEC (“CLC”), 312 F. Supp. 3d 153, 166 (D.D.C. 

2018) (declining to review a standard applied by three Commissioners, because “the 

Commission has yet to formally adopt it”). It thus cannot amount to an abdication of the FEC’s

responsibility to enforce FECA. Heckler, 470 U.S. at 833 n.4.

Second, Plaintiffs fail to show that the Commission has adopted a policy of FECA 

nonenforcement. Plaintiffs claim that this alleged policy is “reflected in years of complaints 

against groups who failed to register as political committees being dismissed by these 

[C]ontrolling [C]ommissioners, even where the FEC’s staff recognizes the complaints are 

meritorious.” Pls.’ Reply at 29. And they put forth a chart purporting to show that the

Commission consistently declines to find reason to believe that an organization acted as an 

unregistered political committee. See Decl. Stuart C. McPhail Ex. 2, ECF No. 17-3. 

This evidence indicates that the Commission may be less zealous in enforcing FECA than

Plaintiffs would like, but it does not rise to the level of showing that the Commission has 

consciously or expressly adopted a policy of refusing to pursue complaints against alleged 

unregistered political committees. See CREW II, 316 F. Supp. 3d at 422 (holding that the FEC 

 

clearly requires that for any official Commission decision there must be at least a 4–2 majority 

vote.”). Thus, “[a]lthough the Commission may apply the standard in the future, it may also 

choose to alter it.” CLC, 312 F. Supp. 3d at 166.

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may have abdicated its statutory responsibilities when “for years” it acknowledged material 

discrepancies between a regulation and FECA, but failed to correct those discrepancies). Rather, 

Plaintiffs’ chart just as likely lists a series of “single-shot” non-enforcement decisions, based on 

various rationales. See OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 

1998) (stating that “an agency’s adoption of a general enforcement policy is subject to review,” 

while a “single-shot non-enforcement decision” is not (quoting Crowley Caribbean Transp., Inc. 

v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994))); People for the Ethical Treatment of Animals, Inc. 

v. U.S. Dep’t of Agriculture, 7 F. Supp. 3d 1, 12–13 (D.D.C. 2013) (rejecting the plaintiff’s 

argument that a reviewable enforcement policy was established by a “slew of incidents where 

[agency] officials repeatedly responded to complaints about avian abuse by” disclaiming agency 

jurisdiction, when the plaintiff could not “identify any concrete statement from [the agency] 

announcing” the alleged policy); see also CREW/CHGO, 892 F.3d at 438 (upholding the FEC’s

decision to dismiss an administrative complaint—one of the dismissals listed in Plaintiffs’ 

chart—where the Controlling Commissioners determined that the organization named in the 

plaintiff’s complaint was defunct, judgment-proof, and no longer had agents who could legally 

bind it). And as the FEC notes, in CREW/CHGO, the D.C. Circuit was presented with a very 

similar chart, yet rejected the notion that the FEC has abdicated its responsibility to enforce 

FECA’s rules governing political committees. See CREW/CHGO, 892 F.3d at 440 n.9; FEC’s

Reply Ex. 2, ECF No. 20-2.

Without stronger record evidence indicating that the FEC has adopted a general nonenforcement policy, the Court must assume that the Commission made each decision listed in 

Plaintiffs’ chart on a case-by-case basis. See 72 Fed. Reg. at 5601; CLC, 312 F. Supp. 3d at 164 

n.6 (rejecting the plaintiff’s argument that the FEC abdicated its statutory responsibilities when 

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“a three-Commissioner bloc . . . increasingly voted in lockstep to thwart enforcement of 

campaign finance law,” because the “fact that these deadlocks occur is evidence of the 

Congressional scheme working, not malfunctioning”); cf. Latif v. Obama, 666 F.3d 746, 748 

(D.C. Cir. 2011) (“The presumption of regularity supports the official acts of public officers and, 

in the absence of clear evidence to the contrary, courts presume that they have properly 

discharged their official duties.” (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 

(D.C. Cir. 2007))). The Commission fulfilled its statutory responsibility to investigate New

Models, see 52 U.S.C. § 30109(a), it simply reached a different conclusion than Plaintiffs 

preferred. That is not the “abdication” of responsibilities contemplated by Heckler.

16 

* * *

FECA expressly authorizes judicial review of the Commission’s enforcement and nonenforcement decisions. See 52 U.S.C. § 30109(a)(8). In conducting this review, courts must 

balance, on the one hand, the Commission’s non-reviewable judgment of how to best allocate its 

resources to pursue FECA violations, and on the other hand, the courts’ role as “a necessary 

check against arbitrariness” when the “Commission is unable or unwilling to apply settled law to 

clear facts,” Democratic Cong. Campaign Comm., 831 F.2d at 1135 n.5 (internal quotation 

marks omitted). CREW/CHGO appears to shift the balance decidedly towards the Commission. 

Nonetheless, this Court is bound by that Circuit precedent. Here, the Controlling Commissioners

declined to move forward with Plaintiffs’ administrative complaint, at least in part, on the basis

of prosecutorial discretion. See AR121 & n.139. That decision is “unreviewable.” 

CREW/CHGO, 892 F.3d at 438. And because the Controlling Commissioners invoked 

 16 In addition, Plaintiffs have failed to show that the alleged non-enforcement policy was 

“consciously” or “expressly” adopted. Heckler, 470 U.S. at 833 n.4 (emphasis added). 

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prosecutorial discretion, the Court is also foreclosed from evaluating the Controlling 

Commissioners’ otherwise reviewable interpretations of statutory text and case law. Id. at 441–

42. Thus, Plaintiffs’ complaint must be dismissed.

V. CONCLUSION

For the foregoing reasons, the FEC’s Motion for Summary Judgment (ECF No. 13) is 

GRANTED and Plaintiffs’ Motion for Summary Judgment (ECF No. 12) is DENIED. An order 

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 29, 2019 RUDOLPH CONTRERAS

United States District Judge

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