USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 1 of 30 

United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Filed: December 12 , 2022 

No. 19-5161 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

AND NOAH BOOKBINDER, 

APPELLANTS 

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE 

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:18-cv-00076) 

On Petition for Rehearing En Banc 

Before: SRINIVASAN, Chief Judge; HENDERSON**, 

MILLETT***, PILLARD***, WILKINS, KATSAS**, RAO**, 

WALKER**, CHILDS*, and PAN*, Circuit Judges 

O R D E R 

Appellants’ petition for rehearing en banc and the response 

thereto were circulated to the full court, and a vote was 

requested. Thereafter, a majority of the judges eligible to 

participate did not vote in favor of the petition. Upon 
 

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2 

consideration of the foregoing, and the motions of movantamici Election Law Scholars, Senators Sheldon Whitehouse, et 

al, Professors of Administrative Law, Brennan Center for Justice 

at NYU Law School, and Campaign Legal Center for leave to 

participate as amici curiae in support of appellants’ petition for 

rehearing en banc, and the lodged briefs amici curiae, it is 

ORDERED that the motions be granted. The Clerk is 

directed to file the lodged briefs amici curiae. It is 

FURTHER ORDERED that the petition be denied. 

Per Curiam 

FOR THE COURT: 

Mark J. Langer, Clerk 

BY: /s/ 

Daniel J. Reidy 

Deputy Clerk 

* Circuit Judges Childs and Pan did not participate in this 

matter. 

** A statement by Circuit Judge Rao, joined by Circuit Judges 

Henderson, Katsas and Walker, concurring in the denial of 

rehearing en banc, is attached. 

*** Circuit Judges Millett and Pillard would grant the petition 

for rehearing en banc. A statement by Circuit Judge Millett, 

joined by Circuit Judge Pillard, dissenting from the denial of 

rehearing en banc, is attached. 
 

 

 

 

 

 

 

 

 

USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 3 of 30 

RAO, Circuit Judge, with whom Circuit Judges 

HENDERSON, KATSAS, and WALKER join, concurring in the 

denial of rehearing en banc: The Federal Election 

Commission’s decision to dismiss a complaint on the grounds 

of prosecutorial discretion is not judicially reviewable, and I 

therefore concur in the denial of the petition for rehearing en 

banc. As explained in detail in the panel opinion, courts cannot 

review the exercise of enforcement discretion committed to 

executive agencies, including the Commission. See Citizens for 

Resp. & Ethics in Wash. v. FEC (“New Models”), 993 F.3d 880 

(D.C. Cir. 2021). In our structure of separated powers, “an 

agency’s refusal to institute proceedings” falls within “the 

special province of the Executive Branch”—a province the 

judiciary cannot invade. Heckler v. Chaney, 470 U.S. 821, 831 

(1985); U.S. CONST. art. II, § 1. The Administrative Procedure 

Act (“APA”) enshrines this principle by explicitly withholding 

judicial review of matters “committed to agency discretion by 

law.” 5 U.S.C. § 701(a)(2). The Federal Election Campaign 

Act (“FECA”) leaves such executive discretion in place, 

consistent with the Constitution and the APA. FECA 

importantly provides for judicial review of decisions “contrary 

to law,” 52 U.S.C. § 30109(a)(8)(C), but the Commission may 

decline to move forward with an enforcement action for 

reasons of prosecutorial discretion and such decisions cannot 

be reviewed by this court. 

* * * 

The dissent expresses consternation about the inability of 

this court to oversee the Commission’s non-enforcement 

decisions. But nowhere does it contest that the Commission 

retains prosecutorial discretion or that a decision based 

entirely, or even in some substantial part, on such discretion 

would be unreviewable. Here, it is clear the so-called 

“controlling commissioners” declined to proceed against New 

Models for reasons of prosecutorial discretion, and also, 

independently, for legal reasons. The dissent argues we must 
 

 

 

 

 

 

 

 

 

 

 

 

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be able to review the independent legal reasons. But, as the 

Supreme Court has repeatedly admonished, courts cannot 

simply pluck out legal questions from nonreviewable 

decisions.1 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 

283 (1987); see also Ass’n of Civilian Technicians, Inc. v. 

FLRA, 283 F.3d 339, 343 (D.C. Cir. 2002) (explaining the 

Supreme Court has “square[ly] reject[ed] the notion of carving 

reviewable legal rulings out from the middle of non-reviewable 

actions”) (cleaned up). FECA does not alter this basic rule. See 

FEC v. Akins, 524 U.S. 11, 25 (1998); New Models, 993 F.3d 

at 890–92. The Commission’s non-enforcement discretion is 

thus unreviewable, irrespective of how many pages the 

controlling commissioners devote to legal analysis and how 

many to explaining the exercise of prosecutorial discretion. 

In FECA, Congress created an unusual, evenly divided, bipartisan Commission. Of the six commissioners, no more than 

three can be from “the same political party.” 52 U.S.C. 

§ 30106(a)(1). Every step of the enforcement process requires 

“an affirmative vote of 4” commissioners, which means at least 

some bi-partisan agreement. Id. § 30106(c). Upon receiving a 

complaint, the Commission may begin an investigation only 

after four commissioners find there is “reason to believe” a 

1 The dissent argues the legal reasons offered by the controlling 

commissioners contravened a district court decision. See Dissenting 

Op. 1, 6, 10. That is simply not so. The controlling commissioners 

cited the relevant case and applied its reasoning. Statement of 

Reasons of Vice Chair Caroline C. Hunter and Commissioner Lee E. 

Goodman at 25 n.114, MUR 6872 (New Models) (Dec. 20, 2017) 

(citing Citizens for Resp. & Ethics in Wash. v. FEC, 209 F. Supp. 3d 

77, 94 (D.D.C. 2016)); see also id. at 2. Even if we were to disagree 

with the Commission’s understanding of a district court decision, this 

court would still lack the authority to carve out that legal question 

from the Commission’s unreviewable exercise of prosecutorial 

discretion. 
 

 

 

 

 

 

 

 

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person has committed or may commit a violation of FECA. Id. 

§ 30109(a)(2). After an investigation, four commissioners must 

agree there is “probable cause” to find the respondent has 

committed a violation of FECA. Id. § 30109(a)(4)(A)(i). Upon 

a finding of probable cause, the Commission must for at least 

30 days seek to remedy the violation through “conference, 

conciliation, and persuasion.” Id. The Commission must 

endeavor to enter into a conciliation agreement, which also 

requires four votes. Id. If such conciliation measures fail, the 

Commission may “institute a civil action for relief,” but only 

after yet another affirmative vote of four commissioners. Id. 

§ 30109(a)(6)(A). 

In FECA’s carefully articulated enforcement process, 

Congress required the Commission to clear a series of bipartisan vetogates before commencing an enforcement action. 

If four votes are lacking at any step of enforcement, no action 

moves forward. The statutory arithmetic means three of the six 

commissioners may block further investigation or enforcement 

of a complaint. The number is fewer still if the Commission has 

vacancies, which it often does. This case, for instance, arose 

when the Commission had only four commissioners and two 

voted against enforcement. 

The dissent repeatedly denounces the control exerted by a 

“minority” of the Commission.

2 That concern arises not from 

the panel opinion, but from Congress’s requirement that four 

2 The dissent also complains that a “minority” provides the Statement 

of Reasons that forms the basis for judicial review. Dissenting Op. 

19–20. But this requirement is the product of this court’s 

longstanding directive that the commissioners who voted against 

proceeding must explain their reasons to further our review of 

whether the dismissal is “contrary to law.” See, e.g., FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 

1992). 
 

 

 

 

 

 

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of six commissioners agree to enforcement actions. By 

legislative design, three commissioners, or half, may prevent 

enforcement. The dissent simply ignores FECA’s fourcommissioner requirements, “undermin[ing] the carefully 

balanced bipartisan structure which Congress has erected.” 

Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 

1988). 

Congress created a limited safety valve for Commission 

dismissals and inaction. An aggrieved party may file a 

complaint in court, but judicial review is restricted to 

“declar[ing] that the dismissal of the complaint or the failure to 

act is contrary to law.” 52 U.S.C. § 30109(a)(8)(C). As the 

dissent concedes, “[t]he commissioners did not reference their 

merits analysis as a ground for exercising prosecutorial 

discretion.” Dissenting Op. 7. Instead, the controlling 

commissioners explained the exercise of prosecutorial 

discretion was based on “the age of the activity and the fact that 

the organization appears no longer active.” Statement of 

Reasons of Vice Chair Caroline C. Hunter and Commissioner 

Lee E. Goodman at 31 n.139, MUR 6872 (New Models) (Dec. 

20, 2017). Because the controlling commissioners relied on an 

independent ground of prosecutorial discretion, this court has 

no basis for declaring that decision “contrary to law.” 

Moreover, judicial review of the Commission’s separate legal 

reasons would risk an advisory opinion, for the court would 

not, and could not, disturb the Commission’s bottom line. See 

New Models, 993 F.3d at 889. The non-reviewability of the 

Commission’s dismissal in this case comports with FECA’s 

limited judicial review provision. 

The dissent also worries that commissioners will hide 

behind prosecutorial discretion to avoid judicial review. That 

concern has proven to be overstated. Since New Models was 

decided, the Commission has dismissed numerous complaints 
 

 

 

 

 

 

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without invoking prosecutorial discretion, allowing those 

decisions to be reviewed.

3 

Perhaps of greater concern are the actions of some 

commissioners, in the wake of New Models, concealing the 

basis for Commission action or inaction. In some cases, when 

the Commission has lacked four votes to proceed and the 

controlling commissioners have relied on prosecutorial 

discretion, the Commission is failing to make these decisions 

public.4 As a consequence, the party complaining to the 

Commission, the target of the complaint, and the district court 

are all left in the dark about whether and how the Commission 

has acted. When lawsuits are initiated to challenge the 

perceived inaction, the Commission has sometimes failed to 

appear to defend against the complaint. Campaign Legal Ctr. 

v. FEC, 2022 WL 2111560, at *2–3 (D.D.C. May 13, 2022); 

see also Statement of Commissioner Ellen L. Weintraub On the 

3 See, e.g., Statement of Reasons of Chairman Allen J. Dickerson, 

Commissioner Sean J. Cooksey, Commissioner James E. “Trey” 

Trainor, III, and Commissioner Ellen L. Weintraub, MUR 7700 

(VoteVets) (Apr. 29, 2022); Statement of Reasons of Vice Chair 

Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor, III, MUR 7766 (Florida Country, et al.) (Dec. 3, 

2021); Statement of Reasons of Vice Chair Allen Dickerson and 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, 

MUR 7753 (Friends of Lucy McBath) (Oct. 8, 2021); Statement of 

Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. 

Cooksey and James E. “Trey” Trainor, III, MUR 7413 (Jonathan 

Jenkins for Senate) (July 14, 2021). 

4 See Campaign Legal Ctr. v. FEC, 2022 WL 1978727, at *1 (D.D.C. 

June 6, 2022); Campaign Legal Ctr. v. FEC, 2022 WL 2111560, at 

*4 (D.D.C. May 13, 2022), aff’d, 2022 WL 4280689 (D.C. Cir. Sept. 

14, 2022); Opposed Mot. to Hold Appeals in Abeyance at 1, 

Campaign Legal Ctr. v. FEC, Nos. 22-5140, 22-5167 (D.C. Cir. June 

23, 2022). 
 

 

 

 

 

 

 

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Opportunities Before the D.C. Circuit in the New Models Case 

To Re-Examine En Banc Its Precedents Regarding ‘Deadlock 

Deference’ at 11 (Mar. 2, 2022) (“Nothing in the law compels 

a commissioner ... to vote to defend lawsuits she believes to be 

indefensible.”). The district courts have understandably 

assumed Commission votes “are publicly announced,” finding 

“no reason” to think “a vote that should have been publicly 

reported ... was not.” Campaign Legal Ctr. v. FEC, 2022 WL 

2111542, at *3 (D.D.C. Apr. 21, 2022). Seeing only a failure 

to act in the public record and with no appearance by the 

Commission, district courts have entered default judgments 

and allowed citizen suits to proceed even though (unbeknownst 

to the court) the Commission has relied on prosecutorial 

discretion. Id.; see also Campaign Legal Ctr. v. FEC, 2022 WL 

1978727, at *1 (D.D.C. June 6, 2022) (noting “one week after 

the Court’s order” evidence was presented that “the 

Commission did act on the complaint, making the case moot,” 

but “[r]egrettably” denying intervention as untimely). While 

litigation has moved ahead, the targets of these complaints have 

been forced to file FOIA requests simply to learn the 

Commission had in fact voted to dismiss the complaint on the 

grounds of prosecutorial discretion. See Campaign Legal Ctr., 

2022 WL 2111560, at *4. Legal questions around these actions 

are being litigated in our circuit, but they are not before us 

today. 

* * * 

The Supreme Court and our circuit have affirmed that the 

Federal Election Commission retains prosecutorial discretion. 

When such discretion is invoked as an independent basis for a 

non-enforcement decision, it cannot be reviewed by this court. 

It is emphatically not the province of the courts to consider 

whether more vigorous enforcement of election laws would be 

desirable in order to target “dark money in politics.” Dissenting 
 

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Op. 21. Those are questions for Congress and the bi-partisan 

Commission. For the foregoing reasons and those in the panel 

opinion, I concur in the denial of rehearing en banc. 
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MILLETT, Circuit Judge, with whom Circuit Judge 

PILLARD joins, dissenting from the denial of rehearing en banc: 

Essential to the rule of law is the principle that a governmental 

agency cannot become a law unto itself. Yet that is what the 

court’s decision here permits. The opinion licenses a minority 

within a federal agency to pronounce extensive and substantive 

legal determinations that will affect the course of agency 

decisionmaking and the behavior of regulated parties, while 

inoculating those decisions from judicial review just by tacking 

a fleeting reference to prosecutorial discretion on at the tail end 

of the decision. 

According to the court, that sleight of word bars all judicial 

review even when the substantive legal analysis is expressly 

denominated an “independently sufficient” basis for decision, 

separate and apart from any claim of prosecutorial discretion. 

Worse still, it eviscerates the explicit private right to judicial 

review that Congress wrote into the Federal Election Campaign 

Act. It hamstrings review even when, as here, the agency’s 

reading of federal law openly defies a federal court order 

holding that very same statutory interpretation unlawful. 

I would not arm an agency minority with what is in effect 

a judicial-review kill switch. Neither am I able to turn my back 

on such agency disregard not only of an adverse court 

judgment, but also settled statutory requirements and this 

court’s binding precedent. For those reasons, I dissent from the 

denial of rehearing en banc. 

I 

An explanation of the statutory scheme and background is 

necessary to appreciate the consequences of the court’s 

decision. 
 

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A 

The Federal Election Commission is entrusted with the 

weighty responsibility of ensuring public transparency and 

accountability by those individuals and entities expending 

significant sums of money on our Nation’s elections. See 52 

U.S.C. § 30106(b)(1). The Commission is composed of six 

voting members appointed by the President with the advice and 

consent of the Senate. Id. § 30106(a)(1). Commissioners serve 

staggered six-year terms, and no more than three of the six 

Commissioners may belong to the same political party. Id. 

§ 30106(a)(1), (a)(2)(A). 

The Commission may investigate potential violations of 

the law on its own initiative or in response to a complaint. See 

52 U.S.C. §§ 30107(a), 30109. Any person who believes that 

a violation of the Federal Election Campaign Act has occurred 

may file an administrative complaint with the Commission. Id. 

§ 30109(a)(1). When the Commission receives such a 

complaint, it votes on whether it has “reason to believe” that 

the accused person or entity violated the Act. Id. 

§ 30109(a)(2). If at least four of the six commissioners 

determine there is reason to believe a violation occurred, the 

Commission must go forward with an investigation. Id. 

Because no more than three commissioners may be members 

of the same political party, id. § 30106(a)(1), the four-member 

requirement ensures that each enforcement decision is 

bipartisan. See Citizens for Resp. & Ethics in Wash. v. FEC 

(Commission on Hope II), 923 F.3d 1141, 1142 (D.C. Cir. 

2019) (Griffith, J., concurring in denial of rehearing en banc). 

If four commissioners do not find reason to believe a violation 

occurred, the Commission often dismisses the administrative 

complaint and closes the file. 
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Of course, this structure creates a risk that partisan 

deadlock will prevent enforcement of campaign finance laws. 

Commission on Hope II, 923 F.3d at 1146 (Pillard, J., 

dissenting from denial of rehearing en banc). But Congress 

accounted for that possibility with a judicial review provision 

that allows “[a]ny party aggrieved” by the Commission’s 

dismissal of a complaint to seek review in federal court. 52 

U.S.C. § 30109(a)(8)(A). A court “may declare that the 

dismissal of the complaint or the failure to act is contrary to 

law,” id. § 30109(a)(8)(C), if the Commission relied on “an 

impermissible interpretation of the Act,” or if the dismissal was 

otherwise arbitrary, capricious, or an abuse of discretion. 

Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

When the Commission deadlocks and thereafter dismisses 

a complaint, the commissioners who voted against proceeding 

must “issue a statement explaining their votes.” Citizens for 

Resp. & Ethics in Wash. v. FEC (Commission on Hope), 892 

F.3d 434, 437 (D.C. Cir. 2018). This statement of reasons 

issued by the so-called “controlling commissioners” is 

intended to facilitate judicial review of the dismissal decision 

and allow a court to “intelligently determine whether the 

Commission is acting ‘contrary to law.’” Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir. 

1987) (citation omitted); see also id. at 1133–1135; FEC v. 

National Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992). 

If a court rules the dismissal improper, the Commission has 

30 days to reconsider its position. 52 U.S.C. § 30109(a)(8)(C). 

But if the agency still chooses not to go forward, then the 

complaining party is authorized to independently file suit to 

enforce the law. Id. The statute, in other words, never requires 

the agency to bring an enforcement action that it does not want 

to bring. It just opens the door to private enforcement by an 

aggrieved party. 
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B 

This case began when Citizens for Responsibility and 

Ethics in Washington (“CREW”) filed an administrative 

complaint with the Commission, alleging that an entity known 

as New Models had violated the Federal Election Campaign 

Act by failing to register as a political committee and to submit 

required disclosures. The complaint alleged that, in the 2012 

federal election year, New Models contributed 68.5% of its 

annual spending (nearly $3.1 million) to independent, 

expenditure-only political committees that support federal 

campaign activity (also known as Super PACs). The Super 

PACs that received contributions from New Models were all 

heavily involved in efforts to influence the 2012 elections. See 

J.A. 22. 

The Commission’s General Counsel recommended finding 

reason to believe that New Models violated the Act by failing 

to register as a political committee given that two-thirds of its 

expenditures in the 2012 election year went to Super PACs that 

supported federal campaign activity. But the Commission 

deadlocked 2–2 on the “reason to believe” vote, with the fifth 

commissioner recused.1

 After that deadlock, the four 

commissioners voted to dismiss the complaint.2 

1

 The sixth Commission seat was vacant at the time. J.A. 101. 

2

 Two separate votes took place: the vote on whether there was 

reason to believe a violation had occurred, and a vote on whether to 

dismiss the complaint and close the file. “Dismissals do not 

inevitably or automatically ‘result’ from ‘deadlock votes.’ They 

result from one or more commissioners changing course and, for 

their own reasons, voting in favor of a succeeding motion to dismiss 

and close the file on the matter.” Statement of Commissioner Ellen 

L. Weintraub on the Opportunities Before the D.C. Circuit in the New 
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The two controlling commissioners provided a statement of 

reasons for their votes not to find reason to believe a violation 

had occurred. Their legal analysis spanned 31 single-spaced 

pages and explained in extensive detail their view that New 

Models was not a political committee. They began by setting 

out the applicable legal framework, explaining that the 

Commission’s “controlling statute and court decisions 

stretching back over forty years properly tailor the applicability 

of campaign finance laws to protect non-profit issue advocacy 

groups from [the Federal Election Campaign Act’s] 

burdensome political committee registration and reporting 

requirements.” J.A. 103. To that end, only those organizations 

with the “major purpose” of nominating or electing federal 

candidates must meet those requirements. J.A. 103. 

“Determining an organization’s major purpose[,]” the 

commissioners explained, “requires a comprehensive, casespecific inquiry that focuses on the organization’s public 

statements, organizational documents, and overall spending 

history.” J.A. 103. 

After exhaustively detailing the historical development of 

the Federal Election Campaign Act, analyzing the statute’s 

meaning, and applying their version of the major-purpose 

analysis to the facts of the case before them, the commissioners 

expressly concluded that New Models was not a political 

Models Case to Re-Examine En Banc Its Precedents Regarding 

‘Deadlock Deference’ at 4 (March 2, 2022), https://www.fec.gov/ 

resources/cms-content/documents/2022-03-02-ELW-New-ModelsEn_Banc.pdf (last accessed Dec. 1, 2022). For example, 

Commissioners who voted in favor of the “reason to believe” motion 

may vote to dismiss in “the interests of transparency of agency 

operations, closure for respondents, public accountability for the 

nay-saying commissioners, or in hopes the complainant will sue the 

agency and obtain a judicial reversal.” Id. at 9. 
 

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committee. They reasoned that New Models neither made the 

requisite expenditures nor had the major purpose of nominating 

or electing federal candidates. 

The controlling commissioners came to that major-purpose 

conclusion by relying on New Models’ expenditures over its 

organizational lifetime, shrugging off the expenditures that 

New Models concentrated in an election year. They employed 

this mode of analysis even though it had been ruled unlawful 

the year before in a final and unappealed court ruling. See 

Citizens for Resp. & Ethics in Wash. v. FEC, 209 F. Supp. 3d 

77, 93–94 (D.D.C. 2016). 

The commissioners repeatedly pointed to their statutory 

analysis and application of it to the record as the reason for their 

votes against proceeding further. See, e.g., J.A. 103–104 

(Based on New Models’ lifetime expenditure patterns, rather 

than election year spending, the commissioners “[a]ccordingly 

* * * voted against finding reason to believe that New Models 

violated the Act.”); J.A. 120 (“Upon thorough consideration of 

various facts indicative of political committee status * * *, we 

do not have reason to believe that” the legal criteria for a 

political committee were met.). Doubling down on their legal 

conclusion, the commissioners specifically labeled their 

determinations that New Models had not made the requisite 

expenditures and did not have the requisite major purpose as 

“independently sufficient” reasons for dismissal of the 

complaint. J.A. 123 n.95. 

After that considerable legal analysis, the commissioners 

added one final sentence: “For these reasons, and in the 

exercise of our prosecutorial discretion, we voted against 

finding reason to believe that New Models violated the Act by 

failing to register and report as a political committee and to 

dismiss the matter.” J.A. 133 (footnote omitted). That 
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dependent clause constitutes the only reference to prosecutorial 

discretion in the entire 31 pages—just seven out of more than 

14,500 words. To that sentence, the commissioners appended 

a brief footnote which stated that, “[g]iven 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.” J.A. 133 n.139 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985); 28 U.S.C. § 2462 (five-year 

statute of limitations); Nader v. FEC, 823 F. Supp. 2d 53, 65– 

66 (D.D.C. 2011)). The commissioners failed to explain those 

points, and the Commission itself later walked one of them 

back. See Oral Arg. Tr. 21:13–22, 23:10–12 (explaining that 

the Commission is not confident the five-year statute-oflimitations applies). The commissioners did not reference their 

merits analysis as a ground for exercising prosecutorial 

discretion. They left that legal analysis as a freestanding and 

independently sufficient basis for their votes to dismiss. 

CREW filed suit, challenging the Commission’s dismissal 

of its administrative complaint as contrary to law. The decision 

for the court held that the two commissioners’ mere incantation 

of “prosecutorial discretion” insulated the Commission’s entire 

dismissal decision, including its exhaustive legal analysis, from 

judicial review. See Citizens for Resp. & Ethics in Wash. v. 

FEC, 993 F.3d 880, 882 (D.C. Cir. 2021). The court viewed 

this question as controlled by our earlier divided decision in 

Citizens for Responsibility and Ethics in Washington v. FEC 

(Commission on Hope), 892 F.3d 434 (D.C. Cir. 2018). See 

Citizens for Resp. & Ethics in Wash., 993 F.3d at 884–885. In 

a dissenting opinion, I explained why the plain text of the 

Federal Election Campaign Act and our precedent allow for 

judicial review of the controlling commissioners’ decision, id. 

at 900–903, and why this case magnifies the problems with 

Commission on Hope, id. at 903–905. 
 

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More specifically, in Commission on Hope, this court held 

that a Commission dismissal was unreviewable when three 

commissioners voted against proceeding and based “their 

judgment squarely on the ground of prosecutorial discretion.” 

892 F.3d at 439 (emphasis added). The controlling 

commissioners in that case did not undertake any substantive 

legal analysis, stating instead that the “most prudent course” 

was to dismiss the case because the accused entity was 

“defunct[,]” it “no longer had any agents who could legally 

bind it[,]” any legal action would “raise novel legal issues that 

the Commission had no briefing or time to decide[,]” the statute 

of limitations had expired or nearly expired, and “any 

conciliation effort would be futile[.]” Id. at 438, 441 n.13 

(formatting modified). The opinion implied that the 

commissioners had not even voted on the “reason to believe” 

question at all, see id. at 439, nor had they engaged in implicit 

statutory interpretation in voting to dismiss the case, see id. at 

441 & n.13. 

Still, in this court’s evenly split decision denying rehearing 

en banc, several members of the court recognized the troubling 

implications of the decision. Judge Pillard warned of its 

adverse consequences, explaining that the decision “empowers 

any partisan bloc of the Commission to cut off investigation 

and stymie review of even the most serious violations of federal 

campaign finance law by uttering ‘magic words’ of 

enforcement discretion[,]” Commission on Hope II, 923 F.3d 

at 1144 (Pillard, J., dissenting from denial of rehearing en 

banc), and citing this very case as a sign of what was to come, 

id. at 1148–1149 (citing Citizens for Resp. & Ethics in Wash. 

v. FEC (New Models), 380 F. Supp. 3d 30 (D.D.C. 2019)); see 

also id. at 1144 (“The majority opinion contravenes the statute 

and binding precedent, undercuts the design Congress devised 

to avoid both partisan domination and partisan deadlock in the 

Commission’s enforcement process, and has already been 
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applied by the Commission and district court to truncate other 

cases.”). 

Judge Griffith agreed that the panel decision “certainly 

seems contrary to Congress’s intent.” Commission on Hope II, 

923 F.3d at 1142–1143 (Griffith, J., concurring in denial of 

rehearing en banc). He also disapproved of the majority 

opinion’s suggestion that “when three Commissioners invoke 

‘prosecutorial discretion’ they foreclose both the FEC 

enforcement action and our review of the decision not to 

proceed[.]” Id. But he ultimately concluded that Commission 

on Hope was not the right case in which to address those 

important legal questions, citing uncertainty as to whether there 

was actually a substantive legal judgment for the court to 

review. Id. at 1143. 

II 

A 

As Judge Griffith worried, Judge Pillard predicted, and 

Judge Edwards has since echoed, the Commission on Hope 

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

case renders for naught statutorily mandated judicial review. 

See Campaign Legal Ctr. v. FEC, 952 F.3d 352, 358 (D.C. Cir. 

2020) (Edwards, J., concurring) (“The FEC argues that, 

because the Statement of Reasons given by the three 

‘controlling’ Commissioners who voted to dismiss Appellants’ 

complaints said that the dismissal was an exercise of 

‘prosecutorial discretion,’ Appellants’ challenge is entirely 

beyond judicial scrutiny. The Commission is wrong.”). 

There is no question that the commissioners engaged in 

substantive legal analysis—31 single-spaced pages and 138 

footnotes of it. There was not a peep about prosecutorial 

discretion anywhere in those many pages of legal analyses and 
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10 

determinations. In fact, the commissioners themselves labeled 

their legal analysis an “independently sufficient” basis for 

dismissing the complaint. J.A. 123 n.95. 

Yet the court has allowed just two commissioners—not 

even half of the full Commission—to thwart judicial review—

and to do so precisely when judicial supervision is most acutely 

needed because the commissioners relied critically on a legally 

invalidated interpretation of statutory text. See Citizens for 

Resp. & Ethics in Wash., 209 F. Supp. 3d at 94. 

Is it any wonder that the commissioners wanted to cut off 

judicial review after they had spent dozens of pages thumbing 

their nose at binding judicial precedent? Yet, according to the 

court, a fleeting reference to prosecutorial discretion by a 

Commission minority—not by the Commission itself— 

automatically rendered the rest of the commissioners’ 

statement, and all of their legal analyses and conclusions, 

untouchable by the courts. J.A. 123 n.95. 

The court’s decision, in other words, hands the agency 

and its members a Get Out of Judicial Review Free card even 

though Congress expressly mandated judicial review of 

dismissal orders. And it gives the commissioners free rein to 

ignore judicial precedent they dislike in disposing of 

complaints. That is the rule of lawlessness, not law. 

B 

The court’s opinion blames that outcome on the 

“traditional[]” rule that courts cannot review exercises of 

agency discretion. Citizens for Resp. & Ethics in Wash., 993 

F.3d at 887 (quoting Chaney, 470 U.S. at 832). But as the 

Supreme Court and this court have long held, Heckler v. 

Chaney does not bar review in Federal Election Campaign Act 
USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 20 of 30 

11 

cases like this one. The panel’s decision to the contrary is 

wrong for five reasons. 

First, as the Supreme Court has specifically held, “reasonto-believe” assessments under the Federal Election Campaign 

Act are expressly excepted from the general presumption that 

decisions not to enforce the law are unreviewable. In FEC v. 

Akins, 524 U.S. 11 (1998), the Supreme Court ruled that, while 

“agency enforcement decisions ‘ha[ve] traditionally been 

committed to agency discretion,’” the Federal Election 

Campaign Act is “a statute that explicitly indicates the 

contrary,” id. at 26 (alteration in original) (quoting Chaney, 470 

U.S. at 832). In so holding, the Supreme Court confirmed what 

this court had already observed. As Judge Silberman explained 

in his opinion for our en banc court in Akins, Section 

30109(a)(8) is “an unusual statutory provision which permits a 

complainant to bring to federal court an agency’s refusal to 

institute enforcement proceedings.” Akins v. FEC, 101 F.3d 

731, 734 (D.C. Cir. 1996) (en banc) (distinguishing Chaney), 

vacated on other grounds, 524 U.S. 11 (1998). 

So the general presumption that nonenforcement decisions 

are unreviewable has no bearing on this case. See Chamber of 

Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (The 

Federal Election Campaign Act “is unusual in that it permits a 

private party to challenge the FEC’s decision not to enforce.”) 

(emphasis in original); Common Cause v. FEC, 842 F.2d 436, 

449 (D.C. Cir. 1988); Democratic Cong. Campaign Comm., 

831 F.2d at 1133. See also Commission on Hope II, 923 F.3d 

at 1146 (Pillard, J., dissenting from denial of rehearing en banc) 

(The panel’s holding that review is barred by Chaney “conflicts 

with the statutory text, the Supreme Court’s holding in Akins, 

and several of our circuit decisions.”); Campaign Legal Ctr., 

952 F.3d at 358–359 (Edwards, J., concurring) (The 

Commission’s position that controlling commissioners’ 

invocation of “prosecutorial discretion” makes their decision 
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12 

unreviewable is “flatly at odds with the Supreme Court’s 

decision in FEC v. Akins.”). 

Second, the separation-of-powers concerns that underlie 

courts’ usual hesitancy to review matters of prosecutorial 

discretion apply only to actual exercises of prosecutorial 

discretion by the agency—by the Executive Branch. But that 

is not what happened here. The Commission itself never 

decided to dismiss this complaint on prosecutorial discretion 

grounds. Four votes are required for the Commission to take 

any action. See 52 U.S.C. § 30106(c). All we have here is a 

statement by two commissioners with a passing reference to 

their individual views on prosecutorial discretion. See 

Common Cause, 842 F.2d at 449 n.32 (“Of course, such a 

statement of reasons would not be binding legal precedent or 

authority for future cases.”). So the agency itself has not 

grounded its decision (or non-decision) in prosecutorial 

discretion. 

Extending the usual judicial deference to claims of 

prosecutorial discretion to this situation is especially 

inappropriate given that the other two commissioners who 

voted to dismiss the complaint in light of the deadlock did not 

invoke prosecutorial discretion. See J.A. 101–102 (indicating 

that Commissioners Goodman and Hunter voted against 

proceeding and Commissioners Goodman, Hunter, Walther, 

and Weintraub then voted to dismiss); J.A. 133–134 (statement 

of only Commissioners Goodman and Hunter invoking 

prosecutorial discretion); J.A. 135–137 (statement of 

Commissioner Weintraub not invoking prosecutorial 

discretion). 

Neither the Commission nor the court’s opinion in this case 

offers any reason why just two commissioners should have the 

power to formally exercise prosecutorial discretion on behalf 

of the full Commission or the Executive Branch in a way that 
USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 22 of 30 

13 

could trigger separation-of-powers concerns or any other 

recognized barrier to judicial review. 

Third, a common concern when prosecutorial discretion is 

invoked—that there is no law to apply on review of 

discretionary, resource-based judgments that underlie 

decisions not to enforce—does not apply here. Congress made 

quite clear that a decision by a controlling bloc of 

commissioners to dismiss a complaint is subject to judicial 

review. See 52 U.S.C. § 30109(a)(8)(C). And our 

longstanding precedent reaching back 35 years requires that 

commissioners explain themselves at the reason-to-believe 

stage precisely to facilitate judicial review. See Common 

Cause, 842 F.2d at 449 n.32; Democratic Cong. Campaign 

Comm., 831 F.2d at 1133–1134 (rejecting FEC argument that, 

based on “Heckler v. Chaney, 470 U.S. 821 (1985), deadlocks 

on the Commission are immunized from judicial review 

because they are simply exercises of prosecutorial discretion,” 

and explaining that, “[b]ecause § [30109](a)(8)(A) provides 

broadly for court review of an FEC order dismissing a 

complaint, we resist confining the judicial check to cases in 

which * * * the Commission ‘act[s] on the merits.’”); cf. 

Citizens for Resp. & Ethics in Wash., 993 F.3d at 885 (“[I]f the 

Commission declines an enforcement action ‘based entirely on 

its interpretation of the statute’ such a decision might be 

reviewable.”) (emphasis in original) (quoting Commission on 

Hope, 892 F.3d at 441 n.11). That is because there is ample 

law to apply to enforcement decisions grounded in statutory 

construction, analysis, and application. That two 

commissioners added “prosecutorial discretion” in their last 

breath after 14,500 words (more than a merits brief in our court 

or the Supreme Court) does not alter the ready availability of 

law for a court to apply. Especially when, as here, those legal 

grounds are expressly identified as “independently sufficient” 

grounds for the controlling commissioners’ votes to dismiss the 

complaint, J.A. 123 n.95, wholly apart from any claim of 
 

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14 

prosecutorial discretion, the statutory authorization of judicial 

review applies. 

Fourth, the court’s concern that judicial review of the 

Commission’s legal reasons for dismissing the complaint 

would give rise to an advisory opinion is incorrect. Even if the 

Commission were determined for reasons within its discretion 

not to pursue this case, a judicial decision on whether the 

complaint shows reason to believe the Act was violated has 

concrete consequences for the ability of private complainants 

to file suit. See 52 U.S.C. § 30109(a)(8)(c). The 

commissioners emphasized that their legal justifications for 

disposing of the complaint were “independently sufficient” to 

support dismissal. J.A. 123 n.95. If the court were to agree 

with them on that score, CREW’s own suit, too, would be 

barred. See generally Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 

1986) (agreeing with Commission’s no-reason-to-believe 

determination and dismissing private suit). 

Any claim of independent sufficiency was conspicuously 

absent from the controlling commissioners’ invocation of 

prosecutorial discretion. Whether they would have chosen to 

rest on that thin reed if their legal basis for dismissal had been 

deemed invalid is an open question for the Commission to 

answer on remand. If, upon reconsideration, the 

commissioners had concluded there was compelling reason to 

believe that New Models was a political committee, the 

significance of New Models’ possible inactivity might have 

seemed weak in comparison. (The Commission has already 

disavowed the statute-of-limitations rationale referenced by the 

minority. See Oral Arg. Tr. 21:13–22, 23:10–12.) The 

Supreme Court has been clear that, when confronted with such 

uncertainty, courts have the power to order a remand to the 

agency to allow it to answer the question itself. See Akins, 524 

U.S. at 25. 
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15 

Fifth, while judicial efforts to overturn an authoritative, 

operative exercise of prosecutorial discretion by an agency 

could trigger separation-of-powers concerns if the court were 

to order the Executive Branch to undertake an enforcement 

action it opposes, that worry has no purchase here. As 

Congress designed this statute, when a court finds legal error 

in the Commission’s dismissal of a complaint, the Commission 

is given the right of first refusal on enforcement. 52 U.S.C. 

§ 30109(a)(8)(c). If the agency is still opposed to or unable to 

bring an enforcement action, no court will force it to do so; all 

that happens is that the private complainant is authorized to 

bring a lawsuit in its own name under the Act. Id.; see 

Commission on Hope II, 923 F.3d at 1149 (Pillard, J., 

dissenting from denial of rehearing en banc). 

In short, the court wrongly treats CREW’s effort to pursue 

its private right to judicial review of two commissioners’ 

already-judicially invalidated legal reasoning as if it were an 

attempt to force the Commission itself to proceed in the face of 

an agency exercise of constitutionally unreviewable 

prosecutorial discretion. The court’s decision amounts to a 

wholly unwarranted rule of judicial abstinence that nullifies the 

explicit statutory provision for judicial review of private-party 

challenges to the Commission’s substantive decisions. 

C 

The harm worked by this decision is serious and recurring. 

1 

To begin with, affixing a brief invocation of prosecutorial 

discretion to lengthy substantive analyses in statements of 

reasons has become commonplace in Commission 

proceedings. This court errs in allowing those brief invocations 

to broadly insulate dismissal decisions from judicial review. 

Since Commission on Hope, approximately two-thirds of 
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16 

Commission cases dismissed contrary to the General Counsel’s 

reason-to-believe recommendation have included a reference 

to prosecutorial discretion. See Campaign Legal Ctr. En Banc 

Amicus Br. 9 & App.3 

The decision in this case has fueled that trend. Again and 

again, the Commission has deadlocked on the reason-tobelieve determination, after which the controlling 

commissioners have issued a statement of reasons with 

substantive legal analysis they purport to shield from judicial 

review by a reference to prosecutorial discretion. See, e.g., 

Certification, MURs 7370 and 7496 (In the Matter of New 

Republican PAC et al.) (May 28, 2021); Statement of Reasons 

3 Since this case was argued, the same trend has continued 

unabated. In 2022 alone, six cases containing extensive legal 

analysis have been dismissed because of a separate reference to 

prosecutorial discretion. See Statement of Reasons of Chairman 

Allen J. Dickerson and Commissioners Sean J. Cooksey and James 

E. “Trey” Trainor, III, MUR 7425 at 4 (Donald J. Trump 

Foundation) (Feb. 15, 2022); Statement of Reasons of Chairman 

Allen J. Dickerson and Commissioners Sean J. Cooksey and James 

E. “Trey” Trainor, III, MURs 7575, 7580, 7592 & 7626 at 1 (Brand 

New Congress) (March 22, 2022); Statement of Reasons of 

Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey 

and James E. “Trey” Trainor, III, MUR 7147 at 4 (Make America 

Number 1) (April 11, 2022); Statement of Reasons of Chairman 

Allen J. Dickerson and James E. “Trey” Trainor, III, MUR 7646 at 2 

(1820 PAC, et al.) (April 15, 2022); Statement of Reasons of 

Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey 

and James E. “Trey” Trainor, III, MUR 7784 at 12 (Make America 

Great Again PAC) (June 9, 2022); Statement of Reasons of 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, 

MUR 7486 at 2 (45Committee, Inc.) (Aug. 30, 2022). The 

exceptions cited by the concurring opinion simply underscore that 

the court’s opinion empowers a minority of the Commission to turn 

judicial review on and off at will. 
USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 26 of 30 

17 

of Vice Chair Allen Dickerson and Comm’r Sean J. Cooksey, 

MURs 7340 and 7609 (In the Matter of Great America 

Committee et al.) (June 25, 2021); Statement of Reasons of 

Chair Shana M. Broussard, Comm’r Ellen L. Weintraub, and 

Comm’r Steven T. Walther, MUR 7522 (In the Matter of 

Citizens for Waters et al.) (Dec. 21, 2021). 

A recent decision by our district court highlights the 

consequences of the court’s decision. In a case almost identical 

to this one, CREW filed a complaint alleging that American 

Action Network had violated campaign finance laws by 

spending close to $18 million on political advertisements in a 

two-year period without registering as a political committee. 

Citizens for Resp. & Ethics in Wash. v. American Action 

Network, 590 F. Supp. 3d 164, 165–166 (D.D.C. 2022). The 

commissioners deadlocked 3–3 on whether the complaint’s 

allegations stated reason to believe the Act had been violated. 

The controlling commissioners issued a lengthy statement of 

reasons explaining their legal theory as to why a large portion 

of American Action Network’s advertisements constituted 

“genuine issue advocacy” that could not be considered in 

assessing whether the organization was a political committee. 

Id. at 166–167; see Statement of Reasons of Chairman Lee E. 

Goodman and Comm’rs Caroline C. Hunter and Matthew S. 

Petersen, MUR 6589 (In the Matter of American Action 

Network) (July 30, 2014). In the concluding paragraph, those 

commissioners made a glancing reference to prosecutorial 

discretion: 

[American Action Network] is an issue-advocacy 

group that only occasionally engaged in express 

advocacy. As such it cannot and should not be subject 

to the pervasive and burdensome requirements of 

registering and reporting as a political committee. For 

that reason, and in exercise of our prosecutorial 
USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 27 of 30 

18 

discretion, we voted against finding reason to believe 

[the Network] violated the Act by failing to register 

and report as a political committee. 

Id. at 27 (formatting modified and emphasis added); see also 

id. at 24 n.137 (again briefly referencing prosecutorial 

discretion). 

CREW challenged the dismissal in court as contrary to 

law. In a decision issued after Commission on Hope but before 

the panel decision in this case, the district court held that the 

statement of reasons was subject to statutory review because 

the Commission’s decision was fundamentally rooted in its 

legal determination that a broad swath of electioneering 

communications could not be factored into the “major purpose” 

analysis. Citizens for Resp. & Ethics in Wash., 590 F. Supp. 

3d at 169–172. The court noted that the controlling 

commissioners had dedicated virtually all of 27 single-spaced 

pages and 153 footnotes to substantive legal analysis, and that 

it would “gut the statutory scheme that Congress created * * * 

to foreclose judicial review whenever the [Commission] bases 

its dismissal on legal interpretations couched as ‘prosecutorial 

discretion’ or, worse yet, simply sprinkles the term throughout 

a Statement of Reasons in order to circumvent judicial review.” 

Id. at 169. 

After the panel decision in this case, the district court 

dismissed the case. In doing so, the court emphasized that it 

“stands by its prior reasoning,” but because of the judicialreview-choking position taken by this court’s opinion, it had no 

choice but to dismiss CREW’s suit. Citizens for Resp. & Ethics 

in Wash., 590 F. Supp. 3d at 173. 
 

 

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19 

2 

Worse still, the Commission and regulated parties are 

treating these now-judicially unreviewable statements of law 

as having precedential value. Minority blocs of commissioners 

are using the statements of reasons that accompany deadlocked 

decisions, including the judicially invalidated rationale 

employed in this case, as legal precedent within the agency. 

See, e.g., Statement of Reasons of Chair Caroline C. Hunter 

and Comm’r Matthew S. Petersen at 8 n.47, MURs 6969, 7031 

& 7034 (Children of Israel et al.) (Sept. 13, 2018); Statement 

of Reasons of Comm’rs Caroline C. Hunter and Matthew S. 

Peterson at 2–3, MUR 6402 (American Future Fund) (Dec. 23, 

2014). This court has held that unreviewed statements issued 

by a minority of commissioners after a deadlock are not 

binding legal precedent for future cases. See Common Cause, 

842 F.2d at 449 n.32. Yet, because those minority 

commissioners can singlehandedly preclude judicial review 

with the mere mention of prosecutorial discretion, there is no 

legal remedy for the commissioners’ overt disregard for 

judicial rulings holding their mode of reasoning unlawful. 

In addition, these legal pronouncements, while walled off 

from judicial review, directly influence the conduct of 

regulated parties, who regularly rely on and invoke them in 

subsequent proceedings before the Commission. For instance, 

in 2010, Google requested an advisory opinion stating that it 

could display political ads alongside its search results without 

disclaimers, and the Commission deadlocked. See Opinion 

Letter on Google Advisory Opinion Request at 2, Advisory Op. 

No. 2010-19 (Oct. 8, 2010). Subsequently, Facebook asked for 

its own advisory opinion on whether disclaimers are required 

for political ads on its platform, citing the deadlocked Google 

opinion for support. See Request by Facebook, Advisory Op. 

No. 2011-09 (April 26, 2011). The Commission once again 

deadlocked, effectively allowing the non-majority view that 
         

USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 29 of 30 

20 

political ads on such pages need not be accompanied by 

disclaimers to govern. See Closeout Opinion Letter on 

Facebook Advisory Opinion Request, Advisory Op. No. 2011-

09 (June 15, 2011). 

The whole point of requiring the commissioners who see 

no reason to believe the Act was violated to explain their 

reasoning after a deadlocked vote is “to make judicial review” 

of the decision to dismiss “a meaningful exercise.” National 

Republican Senatorial Comm., 966 F.2d at 1476. But the 

court’s opinion has now turned that rationale on its head, 

placing the reviewability of Commission decisions entirely 

within the unilateral control of a minority of commissioners. 

* * * * *

It is telling that in its brief to this court in Commission on 

Hope, the Commission itself conceded that its nonenforcement 

decisions, even when premised upon prosecutorial discretion, 

were subject to judicial review. Brief for Federal Election 

Commission at 27–28, Commission on Hope, 892 F.3d 434 

(No. 17-049); see also Campaign Legal Ctr., 952 F.3d at 361– 

362 (Edwards, J., concurring). The Commission stated: “In 

the event the Commission’s rationale for not pursuing a case is 

unreasonable—or if the Commission makes errors of law in its 

analysis—that exercise of discretion would be rejected on 

judicial review and the matter would be remanded to the 

agency.” Brief for Federal Election Commission at 28, 

Commission on Hope, 892 F.3d 434 (No. 17-049). 

Since Commission on Hope, the Commission has 

undergone a 180-degree change in position. Unsurprisingly, 

when this court offered it the opportunity to escape judicial 

review at will, the Commission happily accepted. 
USCA Case #19-5161 Document #1977294 Filed: 12/12/2022 Page 30 of 30 

21 

The bottom line is that the statutory promise of judicial 

review for aggrieved persons has been turned into a game that 

only the commissioners can play. When they want judicial 

review—if they believe they can obtain desired precedent— 

they can leave out the phrase “prosecutorial discretion.” 

Whenever they do not want their dismissal reviewed— 

especially when, as here, they would prefer to keep applying 

judicially invalidated rules of interpretation—they can toss in 

a reference to prosecutorial discretion. That turns the rule of 

law upside down and renders the statutory provision for review 

of dismissal decisions a dead letter. In a perverse twist, those 

who are charged with enforcing the laws that protect the 

electoral building blocks of our democracy are free to operate 

outside the law. In this way, the panel decision renders the 

world of dark money in politics an even darker place. 

For all of these reasons, I respectfully dissent from the 

denial of rehearing en banc.