1 

No. 17-5049 

____________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________ 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

& MELANIE SLOAN, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

____________________ 

On Appeal from the United States District Court for the District of Columbia 

Case No. 1:15-vc-02038-RC 

____________________ 

PETITION FOR REHEARING EN BANC 

____________________ 

Stuart C. McPhail 

Counsel of Record

Adam J. Rappaport 

CITIZENS FOR RESPONSIBILITY AND ETHICS

IN WASHINGTON

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565

Counsel for Petitioners

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STATEMENT REGARDING NECESSITY OF EN BANC REHEARING 

Rehearing is necessary to correct a decision that will eviscerate federal 

campaign finance law if left uncorrected and leave voters without remedy to ensure 

access to information they need for the “free functioning of our national 

institutions.” Buckley v. Valeo, 424 U.S. 1, 66 (1976). A divided panel, 

contravening binding authority, held that the FEC’s discretion under Heckler v. 

Chaney, 470 U.S. 821 (1985), nullifies the FECA’s provision for judicial review of 

legal error in the FEC’s finding no “reason to believe” a violation occurred, a 

finding that resulted in dismissal of CREW’s complaint below. Specifically, the 

panel took a position—not even advanced by the FEC—that such decisions are 

committed to the agency’s “unreviewable prosecutorial discretion” so long as the 

commissioners choose to include prosecutorial discretion among their reasons to 

dismiss. CREW v. FEC, 892 F.3d 434, 439 (D.C. Cir. 2018). As discussed below, 

however, the commissioners now cite prosecutorial discretion in every statement 

finding no reason to believe. The panel decision could thus block all judicial 

review, removing the only check on FEC legal error and inaction by any branch of 

government. Indeed, the FEC’s own commissioner recognizes the panel’s decision 

“destroys not just the right that Congress gave the American people to challenge 

the FEC’s enforcement decisions, but the FEC’s entire enforcement mechanism.” 

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

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CREW v. FEC (June 22, 2018) (“Weintraub Statement”), https://bit.ly/2zmAKz5. 

“The panel’s decision,” she stated, “flies in the face of what Congress intended and 

urgently needs to be reconsidered by the en banc D.C. Circuit.” Id. 

The panel decision contravenes binding authority of the Supreme Court and 

this Circuit. The panel decision conflicts with the Supreme Court decision in FEC 

v. Akins, 524 U.S. 11 (1998), which held that the FECA “explicitly indicates” that 

the FEC’s “decision not to undertake an enforcement action” is subject to review, 

notwithstanding Heckler. Akins, 524 U.S. at 26. The panel decision is also in 

conflict with this Court’s decision in Democratic Congressional Campaign 

Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 1987), which held that FECA review 

extends beyond decisions not to enforce “on the merits,” to cover decisions not to 

enforce based on the “prosecutorial discretion” of an “unwilling” agency, id. at 

1133–34 & n.5. The panel decision further conflicts with Chamber of Commerce 

of the United States v. FEC, 69 F.3d 600 (D.C. Cir. 1995), which held a dismissal 

based on the “Commission’s unwillingness to enforce its own rule” based on its 

discretion alone is not only reviewable under the FECA, but in fact was an “easy” 

case of a “contrary to law” dismissal subject to judicial reversal, id. at 603. 

Accordingly, CREW respectfully requests this Court grant rehearing en banc. 

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TABLE OF CONTENTS 

STATEMENT REGARDING NECESSITY OF EN BANC REHEARING ......... 1

TABLE OF CONTENTS ......................................................................................... i

TABLE OF AUTHORITIES .................................................................................. ii

GLOSSARY ............................................................................................................ 1

BACKGROUND .................................................................................................... 1

REASONS FOR GRANTING RE HEARING EN BANC .................................... 5

I. The Panel’s Decision Conflicts with FEC v. Akins ........................... 5

II. The Panel’s Decision Conflicts with Circuit Authority ..................... 8

III. The Panel’s Decision Threatens the “Free Functioning of Our 

National Institutions” ....................................................................... 12

CONCLUSION ..................................................................................................... 15

CERTIFICATE OF SERVICE ............................................................................... a

CERTIFICATE OF COMPLIANCE ...................................................................... b

ADDENDUM ......................................................................................................... c

1. Exhibit 1

2. Certificate as to Parties, Rulings, Related Cases, and Amici

3. Corporate Disclosure Statement

4. Panel Decision

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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ........................................... 7 

Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................... 1, 5, 13, 15 

Chamber of Commerce of the U.S v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ........................................................... 2, 8, 10, 11, 12 

Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984) ................................................... 9 

Citizens United v. FEC, 558 U.S. 310 (2010).......................................................... 13 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ........................................... 3, 11 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ..................................... 1, 3, 4, 6, 7, 9 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ("DCCC") ....................................... 2, 8, 9, 12, 13 

FEC v. Akins, 524 U.S. 11 (1998) ................................................................. 2, 6, 7, 8 

Heckler v. Chaney, 470 U.S. 821 (1985) ...............................................................1, 4 

McConnell v. FEC, 540 U.S. 93 (2003) ................................................................... 13 

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

463 U.S. 29 (1983) ............................................................................................... 12 

Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996) .............................................. 11 

Statutes

42 U.S.C. § 2000e-5(f)(1) ........................................................................................ 13 

52 U.S.C. § 1365 ...................................................................................................... 13 

52 U.S.C. § 30106(a) ............................................................................................... 13 

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

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52 U.S.C. § 30109(a)(2) ........................................................................................... 11 

52 U.S.C. § 30109(a)(4)(A)(i) .......................................................................... 11, 12 

52 U.S.C. § 30109(a)(5)(D) ..................................................................................... 12 

52 U.S.C. § 30109(a)(8)(A) ...................................................................................1, 3 

52 U.S.C. § 30109(a)(8)(C). ............................................................................... 1, 14 

Other Authorities

OpenSecerts.org, Outside Spending by Disclosure, 

Excluding Party Committees, https://bit.ly/2MDHV8H ...................................... 15 

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

Decision in CREW v. FEC (June 22, 2018) (“Weintraub Statement”), 

https://bit.ly/2zmAKz5 ............................................................................ 2, 4, 5, 14 

Rules 

Fed. R. App. P. 35 ...................................................................................................... 5 

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GLOSSARY 

CHGO Commission on Hope, Growth and Opportunity 

CREW Citizens for Responsibility and Ethics in Washington and Melanie 

Sloan 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

JA Joint Appendix 

OGC Federal Election Commission’s Office of General Counsel

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BACKGROUND 

To guard against agency inaction and to promote compliance with federal 

campaign finance law, the FECA allows individuals to file complaints with the 

FEC alleging violations of law. 52 U.S.C. § 30109(a)(1). The FECA further 

permits judicial review of “[a]ny” decision by the FEC declining enforcement of 

the complaint. 52 U.S.C. § 30109(a)(8)(A) (“Any party aggrieved by an order of 

the Commission dismissing a complaint . . . may file a petition with the United 

States District Court for the District of Columbia.” (emphasis added)). Ultimately, 

the result of that review is the authorization of a civil suit by the complainant to 

enforce the law in the FEC’s stead. 52 U.S.C. § 30109(a)(8)(C). 

CREW filed a complaint with the FEC alleging that CHGO failed to register 

and report as required for political committees, and also failed to make other 

disclosures. JA 249–64, 392–424. The OGC recommended finding reason to 

believe CHGO violated its disclosure obligations and that CHGO was a political 

committee. JA 438–70. The Commission thereafter unanimously agreed there was 

“reason to believe” CHGO failed to file requisite reports, but three commissioners 

voted to find no “reason to believe” CHGO was a political committee, deadlocking 

the Commission on that claim. JA 473–77. 

An OGC investigation thereafter revealed extensive evidence CHGO was 

illegally operating as a political committee while shirking its registration and 

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reporting obligations. JA 514–78. The investigation revealed that, according to 

CHGO’s internal planning documents, the organization’s goal was to “make a 

measurable impact on the election outcome in selectively identified Senate races,” 

JA 520, “using express advocacy in targeted Senate races,” JA 514, and 

“focus[ing] on . . . key districts to support the election of Republican candidates.” 

JA 578. The investigation further revealed CHGO’s attempts to hide its true 

purpose and to obstruct the OGC’s investigation. See, e.g., JA 246, 389, 428, 502, 

644 & n.9 (destruction of documents); JA 493–94, 546–52, 808–09 (use of straw 

officials on government filings); JA 505 (obstructing service of subpoena); JA 

792–93, 803–17 (false statements under oath); JA 634–36 (closing operation 

“ASAP” to avoid “outstanding matter at the [FEC]”); JA 716–17 (theft of 

organization assets). 

Based on this extensive evidence, the OGC again recommended finding 

reason to believe CHGO operated as a political committee. JA 736–40. The same 

three commissioners, however, again voted to find no “reason to believe” CHGO 

was a political committee. JA 757–58. They also now found no “reason to 

believe” CHGO violated its reporting obligations, deadlocking the Commission on 

all points, leading to the dismissal of CREW’s complaint. Id. 

The three commissioners later issued a statement of reasons explaining their 

decision that there was no reason to believe CHGO violated the FECA. JA 766–

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70. They first asserted that the OGC “failed to build a sufficiently detailed record 

of CHGO’s activities” to establish CHGO was a political committee, based on their 

interpretation of the law. JA 766, 768 (“In our view . . . the information available 

at the time did not support a finding of reason to believe that CHGO had failed to 

organize, register, and report as a political committee.”); JA 768–69 (stating 

information OGC discovered “did not definitively resolve whether there was 

reason to believe CHGO was a political committee”). They then stated they 

blocked any further investigation into all matters because they thought 

“conciliation . . . would be futile, and the most prudent course was to close the file 

consistent with the Commission’s exercise of its discretion.” JA 769. 

Pursuant to 52 U.S.C. § 30109(a)(8)(A), CREW sought judicial review of 

the dismissal. The District Court granted summary judgment to the FEC. CREW 

v. FEC, 236 F. Supp. 3d 378, 397 (D.D.C. 2017). The District Court conceded that 

there were “strong grounds to prosecute [CHGO] under the [FECA],” but found 

that “the FEC rationally dismissed Plaintiffs’ complaint as an exercise of 

prosecutorial discretion.” Id. at 382. 

In a divided decision, the panel affirmed the District Court. CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (Randolph, J.). The panel went further, however, 

adopting a position advanced by no party that the FEC “ha[s] unreviewable 

prosecutorial discretion to determine” whether there is reason to believe a violation 

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may have occurred. Id. at 438; see also id. at 440 (recognizing decision adopted 

was advanced by no party and was not the reasoning of the court below). The 

panel held that the presumption under Heckler v. Chaney, 470 U.S. 821 (1985), 

that, absent statutory indication otherwise, nonenforcement decisions are 

committed to agency discretion and are unreviewable, “controls this case.” CREW, 

892 F.3d at 439. In a footnote, the panel recognized that the Supreme Court has 

permitted review of FEC nonenforcement decisions, but limited that decision to its 

purported facts to permit review only where the FEC volunteers by basing its 

dismissal “entirely” on its “interpretation of FECA” without mentioning its 

discretion. Id. at 441 n. 11. 

Judge Pillard dissented. Id. at 442. Judge Pillard would have held that “any 

FEC dismissal based on a no ‘reason to believe’ vote is reviewable to the extent 

that such determination was contrary to law.” Id. at 444. 

FEC Commissioner Ellen Weintraub issued a statement on June 22, 2018 

stating the panel decision “urgently needs to be reconsidered by the en banc D.C. 

Circuit.” Weintraub Statement 1. “Left in place,” Commissioner Weintraub 

stated, “[the panel] decision destroys not just the right that Congress gave the 

American people to challenge the FEC’s enforcement decisions, but the FEC’s 

entire enforcement mechanism.” Id. She noted the panel decision eliminated 

“[t]he public’s only meaningful check on the unelected administrators . . . who run 

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the [FEC]” because “every future statement from [the FEC] . . . will certainly

include verbiage stating that . . . ‘this case did not warrant the further use of 

Commission resources.’” Id. at 1, 2–3.

REASONS FOR GRANTING RE HEARING EN BANC 

In taking a position advanced by no party nor adopted below, the panel, 

lacking the assistance of any briefing on the question, rendered a decision on a 

question of exceptional importance in conflict with both Supreme Court authority 

and decisions of this Circuit. En banc rehearing is justified where it is “necessary 

to secure or maintain uniformity of the court’s decisions,” because the panel 

decision “conflicts with a decision of the United States Supreme Court” or this 

Circuit, or where the “proceeding involves a question of exceptional importance.” 

Fed. R. App. P. 35(a), (b). Rehearing is required for each of those reasons: to 

remedy a panel decision in conflict with both Supreme Court and Circuit authority, 

and to correct a decision that undermines the “free functioning of our national 

institutions.” Buckley, 424 U.S. at 66. 

I. The Panel’s Decision Conflicts with FEC v. Akins

In FEC v. Akins, the United States Supreme Court held that the FECA 

“explicitly indicates” that FEC “decision[s] not to undertake an enforcement 

action” are subject to judicial review. 524 U.S. at 26. The Court expressly 

rejected the FEC’s argument that its prosecutorial discretion under Heckler could 

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render a dismissal unreviewable and its legal errors incurable. “In Heckler,” the 

Court said, “this Court noted that agency enforcement decisions have traditionally 

been committed to agency discretion and concluded Congress did not intend to 

alter that tradition by enacting the APA.” Id. (internal quotations omitted) 

Turning to the FECA, it said, “[w]e deal here with a statute that explicitly indicates 

the contrary.” Id. Notwithstanding the Supreme Court’s clear statement, the panel 

held that the FEC possesses “unreviewable prosecutorial discretion,” because 

“[n]othing in the [FECA] overcomes the presumption against judicial review” 

found in Heckler. CREW, 892 F.3d at 438–39. 

The reasoning in CREW is squarely at odds with the Supreme Court’s 

holding that the FECA “explicitly” overcomes Heckler’s presumption against 

judicial review. Akins, 524 U.S. at 26. The panel attempted to side step this 

concern by confining Akins to its purported facts, finding that Akins only permitted 

review where “the Commission declines to bring an enforcement action on the 

basis of its interpretation of FECA.” CREW, 892 F.3d at 441 n.11. But that 

reading is inconsistent with Akins, as Judge Pillard recognized in her dissent. Id. at 

445, 449. 

First, Akins drew no distinction between enforcement actions on the basis of 

the FEC’s interpretation of the FECA and those based on Heckler discretion. See

524 U.S. at 26. Indeed, it expressly rejected, without limitation, the availability of 

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Heckler discretion when reviewing a FEC dismissal. The Supreme Court’s 

conclusion was not limited to the facts before it, but rather extended to all FEC 

“decision[s] not to undertake an enforcement action.” Id. Similarly, the decision 

below of this Court sitting en banc in Akins also recognized that the FECA is an 

“unusual statutory provision which permits a complainant to bring to federal court 

an agency’s refusal to institute enforcement proceedings,” without indicating any 

exceptions. Akins v. FEC, 101 F.3d 731, 734 (D.C. Cir. 1996) (en banc), vacated 

on other grounds, 524 U.S. 11. Notably, the en banc Court found the agency’s 

“refusal” to enforce was subject to review, id., expressly subjecting discretionary 

decisions not to enforce to review. Indeed, the en banc panel even recognized 

discretionary nonenforcement by the FEC “raises First Amendment concerns.” Id.

at 744. 

Second, the panel ignored the clear command from Akins because it 

erroneously found that “[t]he only issue the Court decided in Akins dealt with 

standing.” CREW, 892 F.3d at 438 n.6. Specifically, the panel said the “Court 

held only that the complainants had standing even though, on remand, the 

Commission might invoke its prosecutorial discretion to dismiss.” Id. But Akins

did not simply reject the FEC’s argument that a discretionary dismissal on remand 

deprived the plaintiffs of standing. See 524 U.S. at 25. Akins also rejected the 

FEC’s argument that the dismissal at issue was “not subject to judicial review” 

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under Heckler because it too “involv[ed] an agency’s decision not to undertake 

enforcement action.” Id. at 26. Thus, the Court rejected the FEC’s suggestion that 

Heckler prevented judicial review of the very dismissal before the Court.1

 

Notwithstanding its attempt to limit Akins to its facts, the panel decision is 

irreconcilable with the Supreme Court decision and this Court’s en banc decision 

in that case. 

II. The Panel’s Decision Conflicts with Circuit Authority 

In addition to conflicting with a binding decision of the Supreme Court, the 

panel opinion also conflicts with prior authority of this Circuit. Specifically, the 

panel decision conflicts with the Circuit’s decisions in Democratic Congressional 

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

Chamber of Commerce of the United States v. FEC, 69 F.3d 600 (D.C. Cir. 1995). 

In DCCC, this Court found that a dismissal by the FEC was reviewable, 

notwithstanding a claim that the dismissal was an exercise of “prosecutorial 

discretion” under Heckler. 831 F.2d at 1133–34. This Court stated that “a 6-0 

decision not to initiate an enforcement action presumably would be reviewable 

under the words of § [30109](a)(8)(C),” and thus found that a 3-3 dismissal based 

 

1 Indeed, the Commission had argued that the dismissal on review “might be 

characterized as a discretionary judgment” in addition to a legal interpretation. See

Reply Br. for Pet’r, FEC v. Akins, 524 U.S. 11 (1997) (No. 96-1590), 1997 WL 

675443, at *9 n.8. Nevertheless, the Supreme Court went forward with reviewing 

the dismissal. 

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on “prosecutorial discretion” would also be reviewable. Id. Indeed, it said the 

Court “resist[ed] confining the judicial check [in § 30109(a)(8)(C)] to cases in 

which . . . the Commission acts on the merits.” Id. Moreover, the Court expressly 

stated that where the Commission “is unable or unwilling to apply ‘settled law to 

clear facts,’ judicial intervention serves as a necessary check.” Id. at 1135 n.5 

(emphasis added).2

 Thus, this Court expressly recognized that judicial review is 

not limited to cases where the agency is “unable” to enforce on the merits but 

extends to review of an “unwilling” agency—a term that covers a discretionary 

decision not to enforce. This is in direct conflict with the panel’s conclusion that 

an unwilling agency is absolutely immune from judicial review and that review is 

only available where a dismissal “was based entirely on [the FEC’s] interpretation 

of the statute.” CREW, 892 F.3d at 441 n.11. 

Similarly, the panel’s decision contravenes this Court’s holding in Chamber 

of Commerce. That decision held that the FEC’s “unwillingness” to proceed with 

enforcement is contrary to law. Chamber of Commerce, 69 F.3d at 603. In that 

case, the plaintiffs sought review of an agency rule they argued was inconsistent 

with the statute. Id. at 603. The FEC challenged the plaintiffs’ standing—

successfully below—because they were not “faced with any present danger of an 

 

2 Where the law was unsettled or facts unclear, the Court similarly would find 

review appropriate, but subject to deference like that under Chevron USA, Inc. v. 

NRDC, 467 U.S. 837 (1984). See DCCC, 831 F.2d at 376 n.5. 

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enforcement proceeding” as three commissioners had declined to find that 

plaintiffs violated the law, and four votes would be needed before any enforcement 

proceeding could begin. Id. This Court nevertheless found that the plaintiffs were 

in fact still subject to enforcement, notwithstanding the commitment of three 

commissioners to refuse to proceed. Id. The Court first noted that the FECA “is 

unusual in that it permits a private party to challenge the FEC’s decision not to 

enforce.” Id. Thus, this Court found, if the plaintiffs violated the FEC’s rule, a 

complaint was filed, and the Commission exercised discretion to decline 

enforcement, the complainant could file suit and easily obtain reversal and bring its 

own enforcement action: 

[I]t would be easy to establish that such agency action was contrary to 

law; the Commission’s refusal to enforce would be based not on a 

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

on the Commission’s unwillingness to enforce its own rule. 

Id. (emphasis added). Accordingly, the Court found that, “even without a 

Commission enforcement decision, [plaintiffs] [were] subject to litigation 

challenging . . . their actions if contrary to the Commission’s rule.” Id.3

 Thus, 

Chamber of Commerce holds, contrary to the panel’s decision here, that the FEC’s 

 

3 Though related only to standing and not the merits, the conclusion that the FEC 

could not prevent enforcement through its discretionary enforcement choice was 

“necessary to [the opinion’s] result” and thus part of its holding. Seminole Tribe of 

Fl. v. Florida, 517 U.S. 44, 67 (1996). If the commissioners’ decision was indeed 

unreviewable, as the panel decision holds, then the plaintiffs faced no realistic 

threat of enforcement and would not have had standing.

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voluntary choice to forgo enforcement is an “easy” case for a reviewing court to 

find that the dismissal of the administrative complaint was “contrary to law.” 

Chamber of Commerce, 69 F.3d at 603. 

Indeed, Chamber of Commerce is necessarily correct on this point, because 

to find otherwise conflicts with the plain language of the statute. As Judge Pillard 

recognized in her dissent, the FECA creates a specific statutory framework for 

FEC decision-making, setting forth only two questions for the Commission to 

answer, both related to the merits of the complaint. See CREW, 892 F.3d at 442–

43 (Pillard, J., dissenting) (discussing 52 U.S.C. § 30109(a)(2) “reason to believe” 

and id. § 30109(a)(4)(A)(i) “probable cause to believe” votes)). Each question 

directs the Commission to render a decision on the merits of the complaint. The 

law is clear that, if the Commission answers the first question in the affirmative, it 

“shall make an investigation,” 52 U.S.C. § 30109(a)(2), and if the Commission 

answers the second in the affirmative, it “shall attempt . . . to correct or prevent 

such violation,” id. at § 30109(a)(4)(A)(i).4

 If the Commission answers either 

question in the negative, it may dismiss but must provide an “adequate 

explanation” of its decision. DCCC, 831 F.2d at 376 n.5. To be lawful, that 

explanation must “includ[e] a rational connection between the facts found and the 

 

4 While mandating enforcement, the FECA provides the FEC discretion in its 

enforcement methods. See 52 U.S.C. § 30109(a)(5)(D) (stating FEC “may institute 

a civil action”). 

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choice made.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983). An explanation that the agency does not wish to devote 

resources to an investigation, however reasonable, is not “rational[ly] connect[ed]” 

to its choice to find, on the merits, either probable cause nor reason to believe a 

violation occurred. Accordingly, it is “easy” to find such a discretionary choice is 

contrary to the plain terms of the FECA itself. Chamber of Commerce, 69 F.3d 

603. 

The panel’s decision is irreconcilable with these earlier binding decisions, 

and en banc review is necessary to correct the panel’s error. 

III. The Panel’s Decision Threatens the “Free Functioning of Our 

National Institutions” 

The Supreme Court recognizes vigorous enforcement of our nation’s 

campaign finance laws, including the disclosure laws at issue here, is needed to 

protect a matter of exceptional importance: the “free functioning of our national 

institutions.” Buckley, 424 U.S. at 66. The Court has found adequate disclosure 

serves a number of compelling interests. Id. at 66–68; see also Citizens United v. 

FEC, 558 U.S. 310, 370 (2010); McConnell v. FEC, 540 U.S. 93, 201 (2003). As 

the FEC’s own commissioner recognized, however, the panel’s decision threatens 

to “destroy” federal campaign enforcement, imperiling these compelling interests. 

Weintraub Statement 1. 

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The panel’s decision, if left in place, would effectively end enforcement of 

campaign finance law because judicial oversight is the only check against FEC 

inaction from any branch of government. The FECA places stricter limits on the 

control of the Commission than apply to any other independent agency, preventing 

the President or Congress from correcting underenforcement by replacing a 

majority of its members with individuals from the elected branches’ governing 

political party. See 52 U.S.C. § 30106(a)(1), (c). To ensure the agency did not 

abuse this independence and “shirk its responsibility,” see DCCC, 831 F.2d at 

1135, Congress paired the unique limit on the elected branches’ control with a 

unique provision for judicial review of FEC nonenforcement. Further, as with 

other agencies like the Equal Employment Opportunity Commission, 42 U.S.C. 

§ 2000e-5(f)(1), and the Environmental Protection Agency, see, e.g., 52 U.S.C. 

§ 1365, agency nonenforcement results in the authorization of a civil suit brought 

by the complainant at its own expense, not an order to the agency to expend its 

own resources, 52 U.S.C. § 30109(a)(8)(C). The panel decision, however, nullifies 

Congress’s design, eliminating judicial review of the very type of FEC inaction 

Congress sought to correct. The panel’s decision thus renders the FEC beyond the 

correction of any branch of government. 

Indeed, this is far from a speculative scenario. As Commissioner Weintraub 

noted, the Commission has chosen to “spike most major enforcement cases.” 

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Weintraub Statement 1. Moreover, since the district court decision below, the 

commissioners have cited prosecutorial discretion in every one of their statements 

justifying finding no reason to believe a complaint stated a violation, blocking 

enforcement despite OGC’s recommendation to proceed. See Exhibit 1.5

 Thus, as 

Commissioner Weintraub recognized, the panel’s decision will prevent review of 

“every future statement.” Weintraub Statement 2. The panel’s decision effectively 

means that no FEC reason to believe finding is subject to judicial review and none

of the agency’s legal interpretations may be corrected because the commissioners 

can and will cite prosecutorial discretion among their reasons to decline 

enforcement of every complaint. If the panel’s decision remains standing, it will 

eviscerate the FECA’s judicial review provision and nullify the statutory remedy 

for nonenforcement. 

Voters are already deprived knowledge about the sources of hundreds of 

millions of dollars spent in their elections. See OpenSecerts.org, Outside Spending 

by Disclosure, Excluding Party Committees, https://bit.ly/2MDHV8H. The 

panel’s decision serves to ensure voters will never know “the source of [their] 

candidate’s financial support.” Buckley, 424 U.S. at 67. This decision cannot be 

 

5 While the commissioners have issued other statements during this time, those 

statements either concurred with or criticized nonenforcement. Such statements 

would not determine whether a dismissal is reviewable under the panel’s decision. 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 21 of 79
 

15 

reconciled with controlling precedent and it will cause grievous harm to the 

compelling interests served by campaign finance disclosure law. 

CONCLUSION 

For the reasons stated herein, CREW respectfully requests rehearing en 

banc. 

Dated: July 27, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington and Melanie 

Sloan 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 22 of 79
 

a 

CERTIFICATE OF SERVICE

I hereby certify that on July 27, 2018, I electronically filed the 

foregoing document with the Clerk of Court for the United States Court of Appeals 

for the District of Columbia Circuit by using the appellate CM/ECF system, 

thereby serving all persons required to be served. 

/s/ Stuart McPhail 

Stuart C. McPhail 

 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 23 of 79
 

b 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

1. This document complies with the type-volume limit of Fed. R. App. P. 

35(b)(2)(A) because, excluding the parts of the document exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1): 

[ X ] this document contains 3,853 words, or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text. 

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

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

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or 

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program]. 

Dated: July 27, 2018 /s/ Stuart C. McPhail 

Counsel for Appellants 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 24 of 79
 

c 

ADDENDUM 

1. Exhibit 1 

2. Certificate as to Parties, Rulings, Related Cases, and Amici 

3. Corporate Disclosure Statement 

4. Panel Decision 

 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 25 of 79
Exhibit 1 

Table of Contents 

Controlling Statement Reasons 

URL Pages in this 

Exhibit1

Location of Prosecutori

In re New Models, MUR 6872 

http://eqs.fec.gov/eqsdocsMUR/ 17044435569.pdf 

1-3 Page 31 & n

In re ACU, MUR 6920 http://eqs.fec.gov/eqsdocsMUR/ 

17044435563.pdf 

4-6 Pages 4–5 & 

In re Tread Standards LLC, Right to Rise, DE First Holdings, MURs 6968, 6995, 7014, 7017, 7019, 7090 

http://eqs.fec.gov/eqsdocsMUR/ 6968_2.pdf 

7-11 Pages 3, 14 

Statement 

In re Kinzler for Congress, MUR 7023 

http://eqs.fec.gov/eqsdocsMUR/ 18044435928.pdf 

12-14 Page 6 n. 26 

In re Casperson for Congress, MUR 7114 

http://eqs.fec.gov/eqsdocsMUR/ 17044431916.pdf 

15-17 Pages 1, 5 o

1 This exhibit contains abbreviated versions of the Statement of Reasons, including only the cove

sufficient to show a reference to prosecutorial discretion. Full versions may be accessed at the U

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 26 o
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

) 

New Models ) MUR 6872 

) 

STATEMENT OF REASONS OF 

VICE CHAIR CAROLINE C. HUNTER AND COMMISSIONER LEE E. GOODMAN 

In this matter the Commission was called upon to determine whether New Models, a 

social welfare organization incorporated under section 501(c)(4) of the Internal Revenue Code 

("IRC"), failed to register and report as a "political committee" under the Federal Election 

Campaign Act of 1971, as amended (the "Act"). 

This agency'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 burdensome political committee registration and reporting requirements.' 

Organizations such as New Models do not become political committees under the Act merely as 

a result of making incidental or occasional campaign contributions. Rather, such organizations 

may be regulated as political committees only if their "major purpose" is the nomination or 

election of federal candidates.^ Determining an organization's major purpose requires a 

comprehensive, case-specific inquiry that focuses on the organization's public statements, 

organizational documents, and overall spending history.^ The Commission has settled on a 

"case-by-case analysis of an organization's conduct" in applying the major purpose doctrine." 

Publicly available tax returns indicate that for over 15 years, from 2000 to 2015, New 

Models engaged almost exclusively in policy research, polling and public policy discussion. 

That was consistent with New Models's social welfare mission and maintenance of its tax-

' Accord Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and 

Matthew S. Petersen at 1, MUR 6538 (Americans for Job Security, et a/.); Statement of Reasons of Chairman Lee E. 

Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen at 1, MUR 6396 (Crossroads GPS). 

2 Buckley v. Valeo, 424 U.S. 1, 79 (1976). 

' Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and Matthew 

S. Petersen at 1, MUR 6538 (Americans for Job Security, el al.). 

" Supplemental Explanation and Justification. Political Committee Status, 72 Fed. Reg. 5,596, 5,601 (Feb. 7, 

2007) ("2007 Supplemental E&J"). See also Real Truth About Abortion v. FEC, 681 F.3d 544, 556-57 (4th Cir. 

2012), cert, denied. 81 U.S.L.W. 3127 (U.S. Jan. 7,2013) (No. 12-311) ("RTAA"). 

Exhibit Page 1

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 27 of 79
MUR 6872 (New Models) 

Statement of Reasons 

Page 31 of32 

contributions or make any disbursements that would otherwise qualify it as a political committee 

may terminate, provided that such committee has no outstanding debts and obligations."'^® 

Thus, in order to stop filing burdensome and invasive financial reports, a committee would have 

to surrender its political rights and agree to not make any independent expenditures, regardless of 

the organization's major purpose. 

For all of these reasons, the Commission's analysis of an organization's major purpose 

has avoided setting a definitive time frame forjudging each organization's activities. Here, 

applying our expertise in the context of the Commission's well-established case-by-case 

framework, we considered New Models's contributions in 2012 in the context of the 

1 organization's history, before and after its contributions in 2012, to conclude that New Models's 

/ overall spending history did not support finding reason to believe that it had the major purpose of 

^ nominating or election federal candidates to office. Nor do we conclude that New Models's 

^ contributions in 2012, by themselves, support finding reason to believe that New Models 

fundamentally changed its organizational purpose. 

V. CONCLUSION 

Based on our review of the evidence in the record. New Models is an organization that 

made permissible contributions to independent expenditure-only political committees. These 

occasions were irregular, occurring iii 2010 and 2012 and totaled less than 20% of the 

organization's total lifetime expenses. As the 2007 Supplemental E&J made clear, however, to 

be considered a political committee under the Act, the nomination or election of a candidate must 

be the major purpose of the organization. Here, New Models's organizational purpose, tax 

exempt status, public statements, and overall spending evidence an issue discussion organization, 

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

result, it cannot (nor should it) be subject to the "pervasive" and "burdensome" requirements of 

registering and reporting as a political committee. For these reasons, and in 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. 

11 C.F.R. § 102.3(a). 

See Heckler v Chaney, 470 U.S. 821 (1985). 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 28 

U.S.C. § 2462. See also Nader v. FEC, 823 F. Supp. 2d 53,65:66 (D.D.C. 2011) (finding Commission decision to 

dismiss allegations that several groups were political committees was not contrary to law, and "represents a 

reasonable exercise of the agency's considerable prosecutorial discretion" given the "staleness of evidence and the 

defunctness of several of the groups"). 

Exhibit Page 2

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 28 of 79
MUR 6872 (New Models) 

Statement of Reasons 

Page 32 of 32 

Caroline C. Hunter 

Vice Chair 

Date 

De-c. lo, 1017 

Lee E>C}oodman 

Commissioner 

Date 

Exhibit Page 3

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 29 of 79
FEDERAL ELECTION COMMISSION 

WASHINGTON. D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

) 

American Conservative Union, el al. ) MUR 6920 

) 

STATEMENT OF REASONS OF 

VICE CHAIR CAROLINE C. HUNTER AND 

COMMISSIONER LEE E. GOODMAN 

The Commission found reason to believe that Respondents American Conservative 

Union ("ACU"), Now and Never PAC, and Government Integrity, LLC ("GI, LLC") violated 

section 30122 of the Federal Election Campaign Act of 1971, as amended ("the Act"), conducted 

an investigation, voted unanimously to find probable cause that ACU violated the Act, and 

entered into a conciliation agreement that required the Respondents to pay a civil penalty in the 

amount of $350,000. 

The Commission voted unanimously, on January 24, 2017, to find reason to believe that 

ACU and Now or Never PAC violated the Act. The Commission also voted unanimously to find 

reason to believe against an "Unknown Respondent."' Nine months later, on September 19, 

2017, the Commission's Office of General Counsel ("OGC") submitted a report to the 

Commissioryecommendin^ find reason to believe tw^non-respondents, 

||||||^|^^H|||^^^H||('^B') and an individual associated withHH violated the Act by 

maSn^^ontnouUorn^Now or Never PAC in the name of ACU.^ We voted to proceed to 

enforce the Act against thre^^pondents—ACU, ree Respo: Now or Never PAC, and GI, LLC—but not to 

add the fourth organization,,|||^ as ^ a Respondent for the following reasons. 

' Commission Certification, MUR 6920 (Jan. 24,2017). On July 11, 2017, the Commission voted 

unanimously to substitute GI, LLC in place of "Unknown Respondent" and voted unanimously to find reason to 

believe 01, LLC violated the Act. See Commission Certification, MUR 6920 (July 11, 2017). 

^ OGC did not recommend substituting^^^s an Unknown Respondent. That was irregular. The 

Commission typically would vote to add a person or organization and then vote to find reason to believe. We 

believe that parties added to a matter are entitled to formal notice of a complaint pursuant to 52 U.S.C. § 

30109(a)(1), and a right to respond to the complaint, before the Commission votes to find reason to believe that 

party has violated the Act. 

^ References herein to^Hincorporate an individual associated with^H 

Exhibit Page 4

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 30 of 79
However, even if the Commission had dispensed with formal notiee and the right to 

respond and proceeded directly to enforcement of its reason to believe finding, it would have 

forced yet another series of precious time consuming procedures^GC's pos^investigation 

recommendation to find probable cause would have been sent to||^Pand^H||would have 

fifteen (15) more dav^o respond to that recommendation.'^ Even if the Commission voted to 

find probable cause,mwould have had a minimum of thirty (30) days to conciliate.'^ 

Thus, the Commission was aware that the time remaining on the five-year statute of 

limitations to conclude enforcement was imminent. The statute of limitations would run on or 

about October 31, 2017, five years after the date ACU contributed to Now or Never PAC.'" A 

« majority of Commissioners expressed concerns about concluding the case before the statute of 

7 limitations ran, and we believed the most efficient prosecutorial path forward was to finalize the 

ig case against the three Respondents as efficiently and expeditiously as possible, whether by 

4 conciliation or civil action. 

Moreover, we were confident that a global conciliation with the Respondents could be 

achieved, absent the procedural, legal, and investigative complexities presented b\ 

involvement. 

m^^Yet OGC had declined to pursue conciliation with the three named Respondents for_ 

several months while it devoted time and resources to investigating a potential violation b> 

We were concerned that OGC had already lost several months of the statute of limitations in this 

process. We did not want to lose additional time or lose the realistic opportunity to resolve the 

matter effectively. Furthermore, we believed time would not accommodate the remaining 

enforcement steps, required by statute, and thus any finding would be academic. We have 

declined to issue purely academic findings. 

C. Commission's Decision Was Reasonable under Heckler 

In sum, we concluded the prudent and prefeixed course was to conciliate with the named 

Respondents. The Commission was well within its discretion to take the safer course. 

52 U.S.C..§ 30109(a)(3). 

52 U.S.C.§ 30109(a)(4). 

5ee Third Gen. Counsel's Rpl. at 1 n.l (Sept. 15.2017), MUR 6920 (ACU, e/«/.); 28 U.S.C. § 2462 

(statute of limitations for civil penalties). See also FECv. Nat'l Right to Work Comm., 916 F. Supp. 10 (D.D.C. 

1996); FEC v. NRSC, 877 P. Supp. 15 (D.D.C 1995). 

" See Statement of Reasons of Vice Chairman Matthew 8. Petersen and Commissioners Caroline C. Hunter 

and Lee E. Goodman, MURs 6391/6471 (Commission on Hope, Growth, and Opportunity). See also CREW v. 

FEC, 236 F. Supp. 3d 378 (D.D.C. 2017), appeal docketed. No. 15-2038 (Mar. 21,2017). 

Exhibit Page 5

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 31 of 79
"An agency decision not to enforce often involves a complicated balancing of a number 

of factors which are peculiarly within its expertise."'^ Here, we concluded the unclear state of 

the law, imminent expiration of the statute of limitations and other legal difficulties weighed in 

favor of proceeding to conciliation with the named Respondents promptly and without 

jeopardizing the resolution in hand by adding|||H|on more uncertain legal and factual grounds. 

That deci sion was reasonable.' ^ 

D. The Public Interest was Served By the Commission's Decision 

Finally, we believed the public interest would be best served by establishing the legal 

precedent that the prohibition against contributing in the name of another in section 30122 is 

violated where Donor 1 donates funds to Non-Profit 2 with specific instructions to contribute 

those funds to Super PAC 3. The Commission had strong, direct evi^nce establishing that 

course of conduct here with respect to three Respondents, but not^H In addition to 

establishing the precedent, we believed the Commission could deteHuture misconduct by a 

conciliation agreement requiring a significant civil penalty. These objectives would be 

complicated by adding two additional Respondents with novel legal and factual defenses. Itithe 

end, our effort proved successful. The Conciliation Agreement in this enforcement matter 

establishes clear precedent, imposed a large $350,000 civil penalty, and it will deter future 

misconduct. ITie Act's disclosure and informational purposes were served. This matter could 

have gone in a different direction, one that would have delayed any resolution for years. We 

avoided that. 

Caroline C. Hunter ' Date 

Vice Chair 

Z>ge. Z-O; Z.0/^ 

Lee E. Goodman Date 

Commissioner 

Heckler V. Chaney, 470 U.S. 821, 831 (1985) (Agencies must determine what action, if any, should be 

taken, depending on numerous factors, including "whether agency resources are best spent on this violation or 

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

fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at 

all"). 

" See CREfVv. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017), appeal docketed. No. 15-2038 (Mar. 21,2017). 

"Under [] established notions of prosecutorial discretion, then, it is hardly incumbent upon the Commission to 

pursue every additional, alleged violation that occurred against every potential respondent that exists, especially 

when" the Commission pursued the central respondent. Statement of Reasons of Commissioner David M. Mason at 

4, MURs 4568,4633. 4634, and 4736 (Carolyn Malenick, et at.). 

Exhibit Page 6

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 32 of 79
                                     

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matters of ) 

 ) 

Tread Standard LLC, et al. ) MUR 6968 

Right to Rise, et al. ) MUR 6995 

DE First Holdings, et al. ) MURs 7014/7017/7019/7090 

 

STATEMENT OF REASONS OF 

CHAIR CAROLINE C. HUNTER AND 

COMMISSIONER MATTHEW S. PETERSEN 

Prior to Citizens United and subsequent legal developments stemming from that decision, 

corporate contributions and expenditures were generally prohibited under the Federal Election 

Campaign Act of 1971, as amended (the “Act”). Thus, the Commission had not considered 

whether a contribution made by a closely held corporation or limited liability company taxed as a 

corporation (“corporate LLC”) would violate the ban on contributions made in the name of 

another, as opposed to the Act’s prohibition on corporate contributions and expenditures. When 

presented with a contribution allegedly made by a corporation, the Commission did not peer 

behind the corporate veil to ascertain the “true source” of the funds. Instead, a contribution made 

by a corporation was simply a prohibited corporate contribution, even if the corporation used 

funds provided by an individual. 

In those pre-Citizens United days, a typical name-of-another scheme involved individuals 

serving as conduits for prohibited corporate contributions, not corporations or corporate LLCs 

serving as conduits for individuals. The issue of whether an individual could violate the Act by 

making contributions through a corporation was unexplored. 

In 2016, the Commission wrestled for the first time with whether, and under what 

circumstances, a contribution from a closely held corporation or a corporate LLC violated the 

prohibition against making a contribution in the name of another at 52 U.S.C. § 30122.1

 We 

concluded that “to vindicate the purpose underlying section 30122 without violating First 

Amendment rights, the proper focus . . . is whether the funds used to make a contribution were 

intentionally funneled through a closely held corporation or corporate LLC for the purpose of 

making a contribution that evades the Act’s reporting requirements, making the individual, not 

                                                            

1

 See MURs 6485 (W Spann LLC), 6487 & 6488 (F8, LLC), 6711 (Specialty Investments Group, Inc.), and 

6930 (SPM Holdings LLC). 

Exhibit Page 7

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 33 of 79
Statement of Reasons 

MURs 6968, 6995, 7014, 7017, 7019, and 7090 

2

the corporation or corporate LLC, the true source of the funds.”2 We also concluded, however, 

that because the question was “one of first impression, and because past Commission decisions 

regarding funds deposited into corporate accounts may be confusing in light of recent legal 

developments, principles of due process, fair notice, and First Amendment clarity counsel 

against applying a standard to persons and entities that were not on notice of the governing 

norm.”3 Accordingly, we voted to exercise prosecutorial discretion and dismiss the matters.4 

Campaign Legal Center, complainant in the matters, soon challenged the Commission’s 

dismissals.5

On June 7, 2018, the U.S. District Court for the District of Columbia determined that the 

dismissals were not contrary to law, recognizing that our fair notice and due process concerns 

were “proper” given the First Amendment context in which the Commission acts.6

 “Finding that 

there was a rational basis for the Commission’s exercise of its prosecutorial discretion,” the court 

upheld the Commission’s handling of the matters addressed in the LLC Statement.7

                                                            

2

 Statement of Reasons of Chairman Matthew S. Petersen, and Commissioners Caroline C. Hunter and Lee 

E. Goodman at 2, MURs 6485, 6487, 6711, and 6930 (April 1, 2016) (“LLC Statement”) (attached as Appendix). 

3

 Id. 

4

 Id. at 2-3 (citing Heckler v. Chaney, 470 U.S. 821 (1985)). Furthermore, in our prior LLC Statement we 

explained that we resolved several similar matters together. Not only did this reflect our attempt to treat like 

respondents similarly, “it was necessary to examine a sufficient number of factual scenarios to ensure a sound 

application of the Act and to provide clear public guidance on the appropriate standard that we will apply in future 

matters. Indeed, with the benefit of varying fact patterns . . . [OGC] significantly refined its analysis for considering 

these types of matters.” LLC Statement at 2. 

5

 See Complaint at 1-2, Campaign Legal Center v. FEC, No. 1:16-cv-00752 (D.D.C. Apr. 22, 2016) 

(invoking judicial review under 52 U.S.C. § 30109(a)(8)). The U.S. District Court for the District of Columbia ruled 

that the plaintiffs lacked standing to challenge two of those dismissals. See Campaign Legal Center v. FEC, 245 F. 

Supp. 3d 119, 122 (D.D.C. 2017). 

6

 See Campaign Legal Center v. FEC, No. 1:16-cv-00752, 2018 WL 2739920, at *8 (D.D.C. June 7, 2018). 

We had preferred to resolve the matters here after a decision on the merits in Campaign Legal Center’s challenge to 

benefit from judicial guidance on the legal issues involved. Ultimately, however, we decided to resolve these 

matters despite the pending litigation. Coincidentally, the District Court handed down its opinion upholding the 

Commission’s dismissal of these matters shortly after our dispositive votes. 

7

 Id. at *1. Since the District Court’s decision in Campaign Legal Center, the Court of Appeals for the 

District of Columbia ruled in a separate case that a Commission dismissal pursuant to prosecutorial discretion was 

“not subject to judicial review,” CREW v. FEC, No. 17-5049, 2018 WL 2993249, at *5 (D.C. Cir. June 15, 2018), 

because FECA provides courts “no meaningful standard against which to judge the agency’s exercise of discretion.” 

Id. at *3 (internal quotes omitted) (quoting Heckler, 470 U.S. at 830). The plaintiffs were thus “not entitled to have 

the court evaluate for abuse of discretion the individual considerations the controlling Commissioners gave in 

support of their vote not to initiate enforcement proceedings.” Id. at *5. 

Exhibit Page 8

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 34 of 79
Statement of Reasons 

MURs 6968, 6995, 7014, 7017, 7019, and 7090 

3

The complaints addressed in this statement similarly arise from contributions made by a 

closely held corporation8 and corporate LLCs to Super PACs.9 The conduct alleged in these 

complaints occurred before “the relevant notice date”10 (that is, April 1, 2016), when we issued 

our prior LLC Statement, which first articulated the correct legal standard in these types of 

matters.11 Therefore, the same considerations of due process, fair notice, and First Amendment 

clarity, which informed our decision to exercise prosecutorial discretion in those prior matters, 

also apply here.12 

Accordingly, in exercise of prosecutorial discretion, we voted against finding reason to 

believe that the respondents in these matters violated the Act and instead voted to close the files. 

I. FACTUAL BACKGROUND

A. MUR 6968 (TREAD STANDARD LLC, ET AL.) 

On June 17, 2015, Tread Standard LLC made a $150,000 contribution to Right to Rise, a 

Super PAC that ran independent expenditures supporting Jeb Bush in the 2016 presidential 

election.13 Tread Standard is a Delaware company that was created on April 30, 2015.14 It 

appears to be taxed as a corporation.15 Its owner’s identity is unclear, but Vivian Rivero, a 

paralegal at a Miami law firm, filed Tread Standard’s organizing paperwork.16 In its Designation 

of Counsel, which was filed with the Commission in connection with this matter, Tread Standard 

                                                            

8

 One of the respondents here, DE First Holdings, is a Delaware statutory trust, not an LLC, but is taxed as a 

corporation. See infra I.C. For reasons explained below, see infra note 44, we analyzed DE First as we would a 

corporation and thus include it in the term “closely held corporation.” 

9

 The complaints also included allegations that certain respondents failed to register as political committees. 

OGC recommended taking no action on those allegations, and the Commission did not hold a substantive vote on 

those allegations, which are further discussed below. See infra Section III. 

10 Campaign Legal Center, 2018 WL 2739920, at *8 n.8. 

11 LLC Statement at 12-13. 

12 We adopt the full rationale in our LLC Statement for purposes of this Statement, and have appended it. 

13 Right to Rise USA, Inc., Amended 2015 Mid-Year Report at 1414, 1416 (May 20, 2016). 

14 First General Counsel’s Report at 3 n.4 (Apr. 13, 2016), MUR 6968 (Tread Standard LLC, et al.) (citing 

“Tread Standard LLC,” Dun & Bradstreet Public Records Search). 

15 FGCR at 3 n.7, MUR 6968 (Tread Standard LLC, et al.); Response of Tread Standard LLC at 1 (Nov. 4, 

2015), MUR 6968 (Tread Standard LLC, et al.). 

16 FGCR at 3, MUR 6968 (Tread Standard LLC, et al.); Complaint at 2-3 (Sept. 14, 2015), MUR 6968 (Tread 

Standard LLC, et al.) (citing Zachary Mider, “Masked Donations to Jeb Bush Super-PAC Lead to Miami Paralegal,” 

BLOOMBERG NEWS (Aug. 25, 2015), https://www.bloomberg.com/news/articles/2015-08-25/masked-super-pacdonations-to-jeb-bush-super-pac-lead-to-miami-paralegal). 

Exhibit Page 9

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 35 of 79
Statement of Reasons 

MURs 6968, 6995, 7014, 7017, 7019, and 7090 

14

under section 30122, it was not necessary to analyze further the political committee status 

allegations. 

IV. CONCLUSION

For the foregoing reasons, we concluded that the complaints in MURs 6968, 6995, 7014, 

7017, 7019, and 7090 should be dismissed in an exercise of prosecutorial discretion.90 

Accordingly, we voted to close the files. 

                                                            

90 See Heckler v. Chaney, 470 U.S. 821 (1985); CREW v. FEC, No. 17-5049, 2018 WL 2993249 (D.C. Cir. 

June 15, 2018). 

Exhibit Page 10

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 36 of 79
Exhibit Page 11

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 37 of 79
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 

Kinzler for Congress and Raj P. Thakral in ) MUR 7023 

his official capacity as treasurer 

Illinois Families First and Kristin Kolehouse in 

her official capacity as treasurer 

Illinois Family Action 

STATEMENT OF REASONS OF CHAIR CAROLINE C. HUNTER AND 

COMMISSIONERS LEE E. GOODMAN AND MATTHEW S. PETERSEN 

In this matter, we voted to find no reason to believe that Illinois Family Action ("IFA"), a 

section 501(c)(4) organization, made a prohibited coi-porate contribution to a candidate in 

violation of 52 U.S.C. § 30118(a).' 

The factual basis of the alleged violation was limited to IFA's use of its own free Twitter 

account to tweet a link to a YouTube video produced by Kinzler for Congress, the principal 

campaign committee of congressional primary candidate Gordon (Jay) Kinzler.^ The Complaint 

alleges that the source of the video could have been the Kinzler Committee's non-public 

YouTube channel. 

The Complaint posits that the Kinzler Committee and IFA coordinated IFA's tweet 

republishing campaign material, resulting in a prohibited corporate contribution from IFA to the 

Kinzler Committee.^ The Kinzler Committee, Kinzler, and IFA deny coordinating IFA's tweet. 

The Kinzler Committee asserts it used social media to notify its supporters about the video after 

it was made public and encouraged them to share it."* Without determining whether or not IFA 

violated the Federal Election Campaign Act of 1971, as amended ("the Act"), the Office of 

General Counsel ("OGC") recommended that the Commission dismiss the matter in an exercise 

of its prosecutorial discretion due to the likely de minimis amount IFA spent on its tweet "[e]ven 

' Certification at 3, MUR 7023 (Kinzler for Congress, et at.) (Apr. 27,2017). 

^ Compl. at 5-6, Attach, at 32. 

' Id. at 5-6, Attach, at 35. 

" Kinzler Committee Resp. at 2; Kinzler Aff. Tf 8; IFA Resp. at I. 

Exhibit Page 12

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 38 of 79
Statement of Reasons 

MUR 7023 (Kinzler for Congress, et al.) 

Page 6 of 8 

create an internal conflict in the Commission's rules, subjecting to regulation any unsuspecting 

person who uses a free Twitter accoimt to send a link to a campaign video. 

It is impossible to reconcile the broad protection afforded by the Internet Exemption and 

the Commission's explicit recognition of its application to the online republication of campaign 

materials^'' with a theory that the republication rule at section 109.23 countermands the Internet 

Exemption with respect to online republications.^® Accordingly, by the basic rules of logic, 

because IFA's tweet is exempt from the definition of public communication under section 109.21 

and exempt from the definition of contribution and expenditure under sections 100.94 and 

100.155, the tweet cannot be considered a contribution under section 109.23. 

In sum, considering the statutory, regulatory, and policy backdrop set forth above, we 

could not interpret our regulations to conclude that IFA made a contribution to the Kinzler 

Committee merely by tweeting a link to a Kinzler Committee YouTube video. Our colleagues 

disagreed with our conclusion that IFA's tweet is exempt from regulation and instead voted for a 

draft Factual and Legal Analysis that implied IFA's tweet might constitute an in-kind 

contribution, but dismissed the violation merely because the tweet's value was likely de 

minimis}^ We fundamentally disagree with our colleagues' legal interpretation because, in 

contravention of the Commission's 2006 Internet Exemption, it would erroneously leave free 

postings on the Internet subject to Commission regulation based on case-by-case judgments of 

what does or does not constitute, c/e minimis value.^' 

or trigger reporting requirements." Explanation and Justification at 18,600 (quoting Senator Russ Feingold, Blogs 

Don't Need Big Government (Mar. 10, 2005), http;//www.mydd.coni/ story/2005/3/10/112323/534 (last visited. 

Mar. 24,2006)). 

See supra Section I. 

Id.; see also Explanation and Justification at 18,604 (confirming that, "[ujnder the final rules at 11 CFR 

100.94 and 100.155, individuals are free to republish materials using the Internet without making a contribution or 

expenditure"). 

The video's URL was apparently copied at no charge from the Committee's YouTube channel, and the 

costs associated wjth the tweet were likely little or nothing. See. e.g., Factual and Legal Analysis at 5, MUR 6795 

(CREW) ("[l]t does not appear that the costs of posting press releases on CREW's website and sending a mass email 

would have triggered the $250 independent reporting threshold"); Statement of Reasons of Chairman Scott Thomas, 

Vice Chairman Michael Toner, Commissioner Danny McDonald, Commissioner Ellen Weintraub at 2, MUR 5523 

(Local 12 United Assoc. Plumbers) ("[T]he expenditures associated with these express advocacy and solicitation 

website communications were negligible."); Explanation and Justification at 18,596 ("[T]here is virtually no cost 

associated with sending e-mail communications, even thousands of e-mails to thousands of recipients."). We agree 

that even if IFA's tweeting of the link to the Committee's YouTube video could constitute contributions (as 

dissemination, distribution, or republication of campaign materials by operation of 11 C.F.R. § 109.23), the costs 

were likely de minimis and the allegation should be dismissed pursuant to our prosecutorial discretion. 

Our disagreement with our colleagues' efforts to regulate and restrict free speech by American citizens on 

the Internet continues. See Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. 

Exhibit Page 13

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 39 of 79
Statement of Reasons 

MUR 7023 (Kinzler for Congress, et al.) 

Page 8 of 8 

4 

Caroline:C. Hunter 

Chair 

C. 

Lee E.. Goodman 

Commissioner 

!J( g" 

Date ' 

Date 

Matthew S. PeTSfsen 

Coirimissidher 

Date ' 

Exhibit Page 14

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 40 of 79
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 

Casperson for Congress and Judi Skradski in 

her official capacity as treasurer 

Tom Casperson 

Tom Casperson for State Senate 

MUR7114 

. STATEMENT OF REASONS OF 

VICE CHAIR CAROLINE C. HUNTER AND 

COMMISSIONERS LEE E. GOODMAN AND MATTHEW S. PETERSEN 

The Complaint alleges that Tom Casperson for State Senate ("State Committee") 

transferred funds to Casperson for Congress ("Federal Committee") by paying for travel related 

to Casperson's congressional campaign, in violation of the Federal Election Campaign Act of 

1971, as amended ("the Act").' The Complaint also alleges that after Tom Casperson became a 

federal candidate, the State Committee raised and spent non-federal funds, in violation of the 

Act. The Commission voted unanimously to dismiss all allegations in this case under Heckler v. 

Chaney but was unable to agree on a Factual and Legal Analysis. Our reasons for voting to 

dismiss the Complaint are set forth below. 

1. FACTUAL BACKGROUND 

The State Committee was formed on August 10,2009.^ Casperson was elected as a state 

senator for Michigan's 38th State Senate District in 2010 and won re-election to another fouryear term in 2014.^ MichigM limits its state senators to two terms in office." Casperson 

' Casperson and the Federal Committee filed a joint response. See Response to Complaint from Tom 

Casperson and Casperson for Congress (Sept. 16,2016) f'Fed. Comm. Resp."). The State Committee filed a 

separate response. See Response to Complaint from Tom Casperson for State Senate (Jan. 30,2017) ("State Comm. 

Resp."). 

^ See Statement of Organiption, Tom Casperson for State Senate (Aug. 10,2009), 

https://cfrsearch .nictusa.com/documents/31846S/details?type=scanned&page= 1 

3 Casperson has served as'a stale senator since 2010. See State Senator Tom Casperson, Meet Tom, 

http://www.senatortomeasperson.'eom/meet-scnator-tomeasperson/ (last visited Mar. 30,2017). 

* MICH. CONST, art. IV,. § 54. 

Exhibit Page 15

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 41 of 79
MUR 7114 (Casperson for Congress, e/ al.) 

Statement of Reasons j 

Page S of 6 ! 

establish receipt of clearly 

that an investigation is warrani 

and the use of funds to offsei 

prosecutorial discretion anc 

)rohibited or excessive contributions under the Act or persuade us 

ited.^' Moreover, given the somewhat modest amounts at issue, 

;t official state officeholder duties, we voted to exercise our 

dismiss this allegation. 

Regarding the State Committee's alleged use of soft money to pay for Casperson's 

federal campaign activities, the Act and Commission regulations prohibit the transfer of funds or 

assets from a candidate's non-federal campaign committee to his or her federal campaign 

committee.^® Thus, if the S!tate Cbmrnitlee made disbursements for campaign travel on behalf of 

the Federal Committee, thobe payments would constitute improper transfers to the Federal 

Committee. 

I 

It appears that the fqur specific overnight stays discussed in the Complaint were related to 

Casperson's state office duties, and under Michigan law, elected officials may use their 

candidate committee funds io pay for "incidental expenses," defined as expenditures that are 

"ordinary and necessary expense[s] paid or incurred in carrying out the business of an elective 

office."^' While it appears that the State Committee also reported travel-related expenses beyond 

the four specific overnight stays listed in the Complaint, those additional travel-related expenses 

could relate to Casperson's jofficial state officeholder duties, and the travel expenses the State 

Committee reported were relatively small. Under these circumstances, we voted to exercise our 

prosecutorial discretion andj dismiss the allegations that Respondents violated the Act by 

transferring non-federal funids.^® 

//-7 

Date ' 

Date 

Caroline:C. Hunter 

Vice-Chair 

I. Goodman 

Commissioner 

" Moreover, despite alleging that the State Committee received over $10,000 from state PACs, the Complaint 

fails to identify any contribution in excess of the Act's amount limitations or from a prohibited source that was, in 

fact, received by a state PAC and in turn, forwarded to the State Committee during Casperson's candidacy. 

28 

I 

I 

52 U.S.C. § 30125(eXl)('A); 11 C.F.R. § 110.3(d). 

See User Guide - Candidate Committee, MICH. BUREAU OF ELECTIONS, 

http://mertsplus.com/mertsuserguide/index.php?n=MANUALCAN.ExpendituresAndDisbursements#canincexp 

30 See HecUer v. Chaney, 470 U.S. 821 (1985). 

Exhibit Page 16

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 42 of 79
I 

MUR 7114 (Casperson for Congress, et al.) 

Statement of Reasons 

Page 6 of 6 

,. [w.'hort 

)ate / Matthey^^S, Pe 

Commissioner 

Exhibit Page 17

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 43 of 79
 

d 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to D.C. Circuit Rule 35(c), Petitioners Citizens for Responsibility 

and Ethics in Washington and Melanie Sloan hereby certify as follows: 

A. Parties and Amici. Petitioners are Appellants Citizens for Responsibility 

and Ethics in Washington, a non-profit corporation, and Melanie Sloan. DefendantAppellee is the Federal Election Commission. There were no amici curiae in the 

district court. Demos and the Campaign Legal Center have appeared as amici 

curiae before this Court. 

B. Ruling Under Review. Petitioners sought review by the panel of the 

Decision of Judge Rudolph Contreras, ECF Dkt. Nos. 26, 27, in Citizens for 

Responsibility and Ethics in Washington v. FEC, No. 15-cv-2038 (RC) (Hon. 

Rudolph Contreras). The district court’s opinion is available at 236 F. Supp. 3d 

378 and is reprinted in the Joint Appendix (“JA”) at 861–88. The panel’s Opinion 

is attached to this Petition. This Petition for Rehearing En Banc seeks review of the 

panel’s decision. 

C. Related Cases. The case on review has not previously been before this 

Court or any other court. There are no related cases to the case on review. 

 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 44 of 79
 

e 

CORPORATE DISCLOSURE STATEMENT 

Pursuant to D.C. Circuit Rule 35(c), Petitioner Citizens for Responsibility 

and Ethics in Washington (“CREW”) submits its corporate disclosure statement. 

(a) CREW has no parent company, and no publicly-held company has a ten 

percent or greater ownership interest in CREW. 

(b) CREW is a non-profit, non-partisan corporation organized under section 

501(c)(3) of the Internal Revenue Code. Through a combined approach of 

research, advocacy, public education, and litigation, CREW seeks to protect the 

rights of citizens to be informed about the activities of government officials and to 

ensure the integrity of those officials. Among its principle activities, CREW files 

complaints with the Federal Election Commission to ensure enforcement of federal 

campaign finance laws and to ensure its and voters’ access to information about 

campaign financing, including financing of political committees, to which CREW 

and voters are legally entitled. CREW disseminates, through its website and other 

media, information it learns in the process of those complaints to the wider public. 

USCA Case #17-5049 Document #1742905 Filed: 07/27/2018 Page 45 of 79
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2017 Decided June 15, 2018

No. 17-5049

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

AND MELANIE T. SLOAN,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-02038)

Stuart C. McPhail argued the cause for appellants. With

him on the briefs was Adam J. Rappaport.

Paul M. Smith was on the brief for amicus curiae Campaign

Legal Center and Dēmos in support of appellants.

Jacob S. Siler, Attorney, Federal Election Commission,

argued the cause for appellee. With him on the brief were Kevin

Deeley, Associate General Counsel, and Harry J. Summers,

Assistant General Counsel. Greg J. Mueller, Attorney, entered

an appearance.

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2

Before: KAVANAUGH and PILLARD, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Dissenting opinion filed by Circuit Judge PILLARD.

RANDOLPH, Senior Circuit Judge: This is an appeal from

the district court’s grant of summary judgment in favor of the

Federal Election Commission. Petitioners are Citizens for

Responsibility and Ethics in Washington (CREW), and its

executive director, Melanie Sloan, a registered voter in the

District of Columbia. They brought this action1 alleging that the

Commission acted “contrary to law” in 2015 when it dismissed

their administrative complaint against an unincorporated

association whose name is too cumbersome to condense.2

CREW’s charges against the association, filed in 2011, were that

the association had violated the federal election laws in 2010.

In the district court, and now in this court, CREW invoked

the judicial review provision of the Federal Election Campaign

Act, or “FECA” as it is sometimes called. The provision states

that the district court “may declare that the dismissal of the

complaint . . . is contrary to law,” and, if the Commission fails

to correct the illegality on remand, the “complainant may bring”

1

 CREW and Sloan mislabeled their pleading a “Complaint for

Injunctive and Declaratory Relief.” The Administrative Procedure

Act, 5 U.S.C. § 703, required the “form of proceeding for judicial

review” to be the special statutory review relating to Commission

dismissals of complaints—namely, a “petition” filed in the district

court. 52 U.S.C. § 30109(a)(8)(A). See FEC v. Democratic

Senatorial Campaign Committee, 454 U.S. 27, 31 & n.3 (1981).

2

 The Commission on Hope, Growth, and Opportunity. 

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3

an action in its own name against the alleged violator “to

remedy the violation involved in the original [administrative]

complaint.” 52 U.S.C. § 30109(a)(8)(C). 

CREW’s petition in the district court also invoked the

Administrative Procedure Act. The APA, enacted in 1946,

states that a later statute—FECA is one—“may not be held to

supersede or modify . . . chapter 7 . . . except to the extent that

it does so expressly.” 5 U.S.C. § 559. APA Chapter 7 contains

the APA’s judicial review provisions. See 5 U.S.C. §§ 701–706. 

Rather than “expressly” contradicting those provisions, FECA

is consistent with them. FECA’s “contrary to law” formulation,

for example, reflects APA § 706(2)(A), which requires the court

to “hold unlawful and set aside agency action” that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law . . ..”3 We will have more to say about

APA § 706 later in this opinion. 

The Commission’s dismissal of CREW’s complaint

constituted the “agency action” supporting the district court’s

jurisdiction. See 52 U.S.C. § 30109(a)(8)(A). After the

Commissioners voted 3 to 3 on whether to begin enforcement

proceedings, the Commission closed the administrative file on

the case. The deadlock meant that the Commission could not

proceed: under FECA, the Commission may pursue enforcement

only upon “an affirmative vote of 4 of its members.” 52 U.S.C.

§ 30109(a)(2), (a)(4)(A)(i), (a)(6)(A).

The district court held that the Commission’s explanation

of its failure to prosecute was a “rational exercise of

3

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

court repeated this language from the APA, stating that the

Commission would have acted “contrary to law” if its dismissal of a

complaint “was arbitrary or capricious, or an abuse of discretion.” See

also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). 

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4

prosecutorial discretion.” Citizens for Responsibility and Ethics

in Washington v. FEC, 236 F. Supp. 3d 378, 397 (D.D.C. 2017). 

This raises a question: how can a court attribute to “the

Commission” any particular rationale when the Commissioners

were evenly split? The answer comes from Democratic

Congressional Campaign Committee v. FEC, 831 F.2d 1131

(D.C. Cir. 1987), and its expansion in Common Cause v. FEC,

842 F.2d 436 (D.C. Cir. 1988). Together, these cases establish

two propositions of circuit law. The first is that if the

Commission fails to muster four votes in favor of initiating an

enforcement proceeding, the Commissioners who voted against

taking that action should issue a statement explaining their

votes. Common Cause, 842 F.2d at 449. The second is that, for

purposes of judicial review, the statement or statements of those

naysayers—the so-called “controlling Commissioners”—will be

treated as if they were expressing the Commission’s rationale

for dismissal, a rather apparent fiction raising problems of its

own.4

 Id.

Here, the three Commissioners who voted not to begin

enforcement proceedings issued a joint statement explaining

their votes.5 These Commissioners were concerned that the

4

 For instance, what if the three Commissioners each

expressed a different reason for voting against enforcement

proceedings? One Commissioner may have believed that FECA did

not cover the activities alleged in the complaint. Another may have

believed that the evidence of a violation was too weak. The third

Commissioner may have concluded that the alleged violations were

too trivial to warrant the Commission’s attention. 

5

 About the same time, two of the Commissioners who voted

to proceed with enforcement issued a joint statement of their own.

The third Commissioner who voted to proceed issued his statement of

reasons on March 21, 2016, nearly four months after CREW filed its

complaint in the district court. An agency cannot sua sponte update

the administrative record when an action is pending in court. See, e.g.,

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5

statute of limitations had expired or was about to; that the

association named in CREW’s 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.” For these reasons, the “case did not

warrant further use of Commission resources.”

In short, these Commissioners would have exercised the

agency’s prerogative not to proceed with enforcement. There is

no doubt the Commission possesses such prosecutorial

discretion. Although today “prosecutorial” usually refers to

criminal proceedings, it was not always so. Under the APA,

agency attorneys who bring civil enforcement actions are

engaged in “prosecuting functions,” 5 U.S.C. § 554(d). See 3M

Co. v. Browner, 17 F.3d 1453, 1456–57 (D.C. Cir. 1994). The

Supreme Court has recognized that federal administrative

agencies in general, Heckler v. Chaney, 470 U.S. 821, 831

(1985), and the Federal Election Commission in particular, FEC

v. Akins, 524 U.S. 11, 25 (1998), have unreviewable

prosecutorial discretion to determine whether to bring an

enforcement action. See CREW v. FEC, 475 F.3d 337, 340

(D.C. Cir. 2007).6

Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—of

Politics and Law, Young Lawyers and the Highway Goliath, in

Administrative Law Stories 259, 322 (2006); Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 422 (1971) (Black, J.,

dissenting). We have refused to consider a district court’s opinion

issued while the case was pending on appeal and after appellate briefs

had been filed. See United States v. Hallford, 816 F.3d 850, 855 n.4

(D.C. Cir. 2016).

6

 The dissent thinks the Supreme Court held in Akins that

FECA cabins “the agency’s exercise of prosecutorial discretion at

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6

As to an agency’s prosecutorial discretion, Heckler v.

Chaney is the leading case. Chaney interpreted APA

§ 701(a)(2), which bars judicial review of agency action

“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

Under § 701(a)(2), “certain categories of administrative

decisions are unreviewable,” among which are “agency

decisions not to institute enforcement proceedings.” Secretary

of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir.

2006). In a frequently quoted passage, which is set forth in the

margin,7

 the Supreme Court recited many of the reasons why an

various decisional stages.” Dis. Op. 5–6. That is not correct. The

only issue the Court decided in Akins dealt with standing. The Federal

Election Commission issued an interpretation of § 431(4)(A) of FECA

to dismiss one of two charges in a complaint. (The Commission,

relying on Heckler v. Chaney, invoked prosecutorial discretion to

dismiss the other charge, which alleged a violation of § 441b of

FECA; this Commission action was not at issue in the Supreme Court.

See 524 U.S. at 25; Akins v. FEC, 736 F. Supp. 2d 9, 13–15 (D.D.C.

2010).) The Court held only that the complainants had standing even

though, on remand, the Commission might invoke its prosecutorial

discretion to dismiss the remaining charge, as it had done with respect

to the § 441b allegation. 524 U.S. at 25.

7 Chaney, 470 U.S. at 831–32:

[A]n agency decision not to enforce often involves a

complicated balancing of a number of factors which

are peculiarly within its expertise. Thus, the agency

must not only assess whether a violation has

occurred, but whether agency resources are best spent

on this violation or another, whether the agency is

likely to succeed if it acts, whether the particular

enforcement action requested best fits the agency’s

overall policies, and, indeed, whether the agency has

enough resources to undertake the action at all. An

agency generally cannot act against each technical

violation of the statute it is charged with enforcing. 

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7

agency’s exercise of its prosecutorial discretion cannot be

subjected to judicial scrutiny. At this point in its Chaney

opinion, the Court added a caveat. An agency’s decision not to

undertake enforcement “is only presumptively unreviewable; the

presumption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers.” Chaney, 470 U.S. at 832–33; see also

Webster v. Doe, 486 U.S. 592, 600 (1988) (“§ 701(a)(2) requires

careful examination of the statute on which the claim of agency

illegality is based . . ..”).

Chaney controls this case. The three naysayers on the

Commission placed their judgment squarely on the ground of

prosecutorial discretion. Nothing in the substantive statute

overcomes the presumption against judicial review. FECA 

provides that “the Commission may, upon an affirmative vote of

4 of its members, institute a civil action . . ..” 52 U.S.C.

§ 30109(a)(6)(A). To state the obvious, the word “may”

imposes no constraints on the Commission’s judgment about

whether, in a particular matter, it should bring an enforcement

action. Nor do the adjacent sections directing that the

The agency is far better equipped than the courts to

deal with the many variables involved in the proper

ordering of its priorities.

See also Wayte v. United States, 470 U.S. 598, 607 (1985):

This broad discretion rests largely on the recognition

that the decision to prosecute is particularly ill-suited

to judicial review. Such factors as the strength of the

case, the prosecution’s general deterrence value, the

Government’s enforcement priorities, and the case’s

relationship to the Government’s overall enforcement

plan are not readily susceptible to the kind of analysis

the courts are competent to undertake.

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8

Commission “shall” take specific actions after making certain

threshold legal determinations. 52 U.S.C. § 30109(a)(2),

(a)(4)(A)(i). Neither of those sections constrain the

Commission’s discretion whether to make those legal

determinations in the first instance. The consequence is that the

operative “statute is drawn so that a court would have no

meaningful standard against which to judge the agency’s

exercise of discretion.” Chaney, 470 U.S. at 830.

Rather than confronting Chaney and the many other cases

applying § 701(a)(2), CREW sweeps these precedents off the

table. With the way thus cleared, it argues that whenever the

Commission exercises its prosecutorial discretion to decline an

enforcement action, it acts “contrary to law.” Implicit is the idea

that even if the Commission’s exercise of prosecutorial

discretion is immune from judicial questioning, this does not

close the door. Instead, it triggers FECA’s “citizen-suit”

provision, which entitles a private entity to bring an enforcement

action when the Commission has declined to do so. 52 U.S.C.

§ 30109(a)(8)(C).

CREW’s argument contradicts the principle that an

agency’s exercise of prosecutorial discretion is not subject to

judicial review. It contradicts this principle because a court may

not authorize a citizen suit unless it first determines that the

Commission acted “contrary to law” under FECA or under the

APA’s equivalent “not in accordance with law.” 52 U.S.C.

§ 30109(a)(8)(C); 5 U.S.C. § 706(2)(A). Yet to make this

determination, a court necessarily must subject the

Commission’s exercise of discretion to judicial review, which it

cannot do. That is enough to reject CREW’s argument, but two

other dispositive points deserve mention. While insisting that

the Commission’s discretionary decisions not to prosecute are

per se “contrary to law,” CREW never identifies what “law” it

has in mind. For the reasons already given, the “law” cannot be

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9

FECA. And it cannot be the APA.8 CREW’s argument also

flies in the face of Chaney’s holding that § 701(a)(2) bars

judicial review when there is no “law” to apply in judging how

and when an agency should exercise its discretion, 470 U.S. at

830.9 See also Overton Park, 401 U.S. at 410; Webster v. Doe,

486 U.S. at 600; Lincoln v. Vigil, 508 U.S. 182, 191 (1993).

Before we end this opinion, several additional subjects need

to be addressed. The district court held that an agency’s

“absolute discretion” to decide whether to bring an enforcement

action will be sustained unless the petitioner shows that the

Commission abused its discretion. Citizens for Responsibility

and Ethics in Washington, 236 F. Supp. 3d at 391. Both

Commission counsel and CREW have accepted the district

court’s formulation. We do not. The district court’s statement

of law is inconsistent with the precedents of this court and of the

Supreme Court. Our duty in conducting de novo review on

appeal is to resolve the questions of law this case presents. See

Elder v. Holloway, 510 U.S. 510, 516 (1994). “When an issue

or claim is properly before the court, the court is not limited to

8

 One might suppose that under § 701(a)(2), an agency’s

exercise of prosecutorial discretion merely renders the APA

inapplicable. But our decisions hold that even if the APA is out of the

picture, an agency’s prosecutorial discretion is still presumptively

immune from judicial review. See Steenholdt v. FAA, 314 F.3d 633,

638–39 (D.C. Cir. 2003); Twentymile Coal Co., 456 F.3d at 160.

9 Chaney 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.” 

Chaney, 410 U.S. at 833 n.4 (citing Adams v. Richardson, 480 F.2d

1159 (D.C. Cir. 1973) (en banc)). CREW cites this footnote but its

own submissions show that the Commission routinely enforces the

election law violations alleged in CREW’s administrative complaint. 

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10

the particular legal theories advanced by the parties, but rather

retains the independent power to identify and apply the proper

construction of governing law.” Kamen v. Kemper Financial

Services, Inc., 500 U.S. 90, 99 (1991); see also U.S. National

Bank of Oregon v. Independent Insurance Agents of America,

Inc., 508 U.S. 439, 446 (1993).

The district court’s statement embodies a contradiction: as

the court put it, an agency has “absolute discretion” when it

comes to enforcement decisions, but it is up to the court to

decide whether the agency abused its absolute discretion. The

Court in Chaney took notice of the same ostensible contradiction

between the “abuse of discretion” standard in APA § 706 and

§ 701(a)(2)’s bar against review to the extent the action is

“committed to agency discretion.” The Court then resolved the

conflict on this basis: “if no judicially manageable standards are

available for judging how and when an agency should exercise

its discretion, then it is impossible to evaluate agency action for

‘abuse of discretion.’” Chaney, 470 U.S. at 830.10

Following Chaney, this court has held that if an action is

committed to the agency’s discretion under APA

§ 701(a)(2)—as agency enforcement decisions are—there can be

no judicial review for abuse of discretion, or otherwise. 

Examples include Drake v. FAA, 291 F.3d 59, 69–72 (D.C. Cir.

2002); Steenholdt v. FAA, 314 F.3d 633, 638–39 (D.C. Cir.

2003); Secretary of Labor v. Twentymile Coal Co., 456 F.3d

151, 156 (D.C. Cir. 2006); Association of Irritated Residents v.

10 Justice Scalia, dissenting in Webster v. Doe, 486 U.S. at

609–10, offered a more detailed explanation of the “seeming

contradiction” between § 701(a)(2) and § 706. A unanimous Supreme

Court later endorsed Justice Scalia’s explanation. Lincoln v. Vigil, 508

U.S. at 191. 

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EPA, 494 F.3d 1027, 1031–33 (D.C. Cir. 2007); and Sierra Club

v. Jackson, 648 F.3d 848, 855–56 (D.C. Cir. 2011).

The upshot is that agency enforcement decisions, to the

extent they are committed to agency discretion,11 are not subject

to judicial review for abuse of discretion. It follows that CREW

is not entitled to have the court evaluate for abuse of discretion

the individual considerations the controlling Commissioners

gave in support of their vote not to initiate enforcement

proceedings. 

The dissent goes off in a different direction, one that neither

CREW nor the Commission ever argued. As the dissent sees it,

the controlling Commissioners must have rendered an

interpretation—or rather, a misinterpretation—of “political

committee” as used in FECA.12 The vote of these

Commissioners had that effect because, according to the dissent,

each Commissioner is obliged to issue or join an opinion

reaching the merits before the Commission may, in the exercise

of its prosecutorial discretion, dismiss a complaint to avoid

11 The interpretation an agency gives to a statute is not

committed to the agency’s unreviewable discretion. See Chaney, 470

U.S. at 833 n.4; Akins, 524 U.S. at 26. Thus, if the Commission

declines to bring an enforcement action on the basis of its

interpretation of FECA, the Commission’s decision is subject to

judicial review to determine whether it is “contrary to law.” See FEC

v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981). 

This is what the Court meant in Akins when it wrote that although “an

agency’s decision not to undertake an enforcement action” is

“generally not subject to judicial review,” there may be such review

under FECA if—as in Akins, see note 6 supra—the agency’s action

was based entirely on its interpretation of the statute. Akins, 524 U.S.

at 26.

12 See 52 U.S.C. § 30101(4)(A); Buckley v. Valeo, 424 U.S.

1, 79 (1976).

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reaching the merits. Dis. Op. 13–17. The dissent’s position

contradicts the record, which is doubtless why neither party

mentioned it.13 But even if some statutory interpretation could

be teased out of the Commissioners’ statement of reasons, the

dissent would still be mistaken in subjecting the dismissal of

CREW’s complaint to judicial review. The law of this circuit

“rejects the notion of carving reviewable legal rulings out from

the middle of non-reviewable actions.” Crowley Caribbean

Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994); see

also Association of Civilian Technicians, Inc. v. Federal Labor

Relations Authority, 283 F.3d 339, 343–44 (D.C. Cir. 2002). In

so holding, we followed the Supreme Court’s decisions in ICC

v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 282–83

(1987), and Chaney, 470 U.S. at 827–28. (The agency in

Chaney had determined that it lacked jurisdiction but that even

if it had enforcement jurisdiction it would not exercise it. 470

U.S. at 824–25.) As to this firmly-established principle, the

dissent has nothing to say. This is odd because the principle, as

applied to this case, renders the dissent’s novel theory

superfluous.

Affirmed.

13 These Commissioners explained that they had “concluded

that any conciliation effort would be futile, and the most prudent

course was to close the file consistent with the Commission’s exercise

of its discretion in similar matters” (citing Heckler v. Chaney, 470

U.S. at 832, quoted in note 7 supra and setting forth many reasons for

an agency’s declining to bring an enforcement action). 

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PILLARD, Circuit Judge, dissenting: 

Voters have the right to know who contributes—and how 

much—to the campaigns of federal office-seekers. That right 

is only as effective as the agency that enforces it.

Congress enacted the Federal Election Campaign Act 

(FECA or Act), 52 U.S.C. §§ 30101 et seq., to prevent money 

from corrupting or appearing to corrupt candidates’ positions 

and actions in office. See generally Citizens United v. FEC, 

558 U.S. 310, 371 (2010). FECA, in turn, makes the Federal 

Election Commission (FEC, Commission, or agency) the 

primary protector of voters’ entitlement to “information ‘as to 

where political campaign money comes from and how it is 

spent by the candidate.’” Buckley v. Valeo, 424 U.S. 1, 66-67 

(1976) (quoting H.R. Rep. No. 92-564, at 4 (1971)).

But the Commission’s partisan-balanced composition and 

the political nature of the matters it regulates raise risks of

inaction. Congress wanted to prevent the agency’s frequent 

deadlock from sweeping under the rug serious campaign 

finance violations—turning a blind eye to illegal uses of money 

in politics, and burying information the public has a right to 

know. To that end, Congress provided for judicial review of 

Commission decisions not to enforce FECA.

Thus, the Act retains its bite by calling on the Commission 

to address complaints through a series of judicially reviewable 

legal determinations in sequential votes on whether there is

“reason to believe,” and then “probable cause to believe,” that 

campaign finance violations occurred. 52 U.S.C. §§

30109(a)(2), (a)(4)(A)(i). If the Commissioners deadlock on a 

vote and, consequently, dismiss the matter, the Commissioners

who vote not to proceed (Controlling Commissioners) must

explain their reasons. FEC v. Nat’l Republican Sen. Comm., 

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. 

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2

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

Cir. 1987). When the Commission dismisses all or part of a 

complaint, a complainant who believes it did so in error may 

file a petition in the U.S. District Court for the District of 

Columbia. 52 U.S.C. § 30109(a)(8)(A). Courts routinely 

review such dismissals. See, e.g., Citizens for Responsibility & 

Ethics in Wash. v. FEC, 209 F. Supp. 3d. 77 (D.D.C. 2016). 

They may declare that the Commission acted “contrary to law,”

and direct the Commission to conform to that declaration. 52 

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

to the court’s order within thirty days, the statute does not force 

the agency’s hand; rather, it permits the complainant to bring a 

civil action in its own name to remedy the claimed violation. 

Id. 

My disagreement with my colleagues is, at its core, 

specific to this case—we see the facts differently. My 

colleagues do not believe that the Commission made any legal 

decision, so a fortiori they see nothing “contrary to law” and 

no reason to remand. But the Commissioners voted on a legal 

recommendation by the General Counsel and explained their 

rejection of that recommendation: According to the 

Controlling Commissioners, the facts did not add up to legal

“reason to believe” that the investigated organization—the 

Commission for Hope, Growth & Opportunity (CHGO)—may 

have operated as a “political committee.” Because it was, in 

my view, clearly contrary to FECA to find no “reason to 

believe” on these facts, I would reverse the district court’s grant 

of summary judgment and remand to the Commission. I 

believe that it is evident from the Controlling Commissioners’ 

finding and reasoning that their dismissal of CHGO’s case

depended materially on an erroneous legal view of the 

organization’s political-committee status. If, as my colleagues 

think, the Commissioners did not base their dismissal on a legal 

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3

interpretation, the agency could readily explain as much on 

remand.

The majority also makes a broader legal error not teed up 

by any party. The FEC, defending its action as legally correct 

and reasonable, nevertheless acknowledged that “Commission 

decisions not to prosecute, unlike those of most agencies, 

remain subject to judicial review.” FEC Br. 27. The majority, 

unbidden, departs from that well-established principle. 

Because this case, properly understood, is an unremarkable 

subject for judicial review under settled law, I spell out the 

nature of my disagreement. The court’s energetic defense of 

the FEC’s enforcement discretion in rejecting Citizens for 

Responsibility and Ethics in Washington (CREW)’s particular 

theory of this case should not be taken to foreclose judicial 

review in similar cases in the future.

Starting with a few key points of agreement will help to 

clarify where we differ:

First, as the court acknowledges, and in keeping with our 

precedent, “[t]he interpretation an agency gives to a statute is 

not committed to the agency’s unreviewable discretion.” Maj. 

Op. 11 n.11. So, when “the Commission declines to bring an 

enforcement action on the basis of its interpretation of FECA, 

the Commission’s decision is subject to judicial review.” Id.; 

see id. at 7. Even as my colleagues rely on Heckler v. Chaney, 

470 U.S. 821 (1985), they note that Heckler’s brand of 

unreviewability is inapplicable “where the substantive statute 

has provided guidelines for the agency to follow in exercising 

its enforcement powers.” Maj. Op. 7 (quoting Heckler, 470 

U.S. at 833).

Second, when the FEC is deadlocked, the Controlling 

Commissioners must issue a statement of reasons explaining 

their votes, and we, the reviewing court, look to that statement 

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4

to assess the lawfulness of the dismissal. See Maj. Op. 4; 

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

Comm., 831 F.2d at 1135 & n.5.

Third, when we discern legal error, we should remand to 

allow the FEC to decide how to conform. “[I]t is possible that 

even had the FEC agreed with [the correct] view of the law, it 

would still have decided in the exercise of its discretion not to”

pursue enforcement. FEC v. Akins, 524 U.S. 11, 25 (1998). 

But because “we cannot know that the FEC would have 

exercised its prosecutorial discretion in this way,” remand is 

the appropriate course. Id.

I read the Commissioners as having dismissed the case 

based on a legally erroneous view of the law. I believe we have 

an obligation to review that decision, identify the error, and 

remand to the Commission either to conform to the court’s 

declaration, or to let CREW pursue the case through a private 

right of action.

The majority, however, like the district court, sees no legal 

error because it assumes that the Commission took “no stance” 

on whether there was reason to believe that CHGO operated as 

a political committee. Citizens for Responsibility & Ethics in 

Wash. v. FEC, 236 F. Supp. 3d 378, 394 (D.D.C. 2017); see

Maj. Op. 4-5. Indeed, CREW invites that reading to the extent 

that it suggests the FEC somehow sidestepped making a no

“reason to believe” determination and dismissed “based solely 

on a choice to preserve its resources.” Appellant’s Br. 31; see 

id. at 26 (charging the district court’s approach as producing 

the “absurd” result of barring citizen suits “where the FEC does 

not reach the merits but dismisses based on its prosecutorial 

discretion”) (emphasis added).

But the majority takes an unwarranted and incorrect 

further step, parting ways with the parties and the district court,

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5

by finding the Commission’s dismissal of the complaint to be 

entirely unreviewable under Heckler, 470 U.S. 821. Compare 

Maj. Op. 7, with Citizens for Responsibility & Ethics in Wash., 

236 F. Supp. 3d at 390 (“When the FEC exercises prosecutorial 

discretion, its controlling statement of reasons must be 

sufficiently detailed so as to allow a reviewing court to 

determine why the controlling commissioners decided to 

forego prosecution.”); FEC Br. 27 (“Commission decisions not 

to prosecute, unlike those of most agencies, remain subject to 

judicial review.”); Appellant’s Br. 21 (“The standard for 

judicial review under the FECA is whether the dismissal was 

‘contrary to law.’”).

In my view, the Commission’s dismissal of the complaint 

was based on legal error and is reviewable on that ground. Per 

Section 30109(a)(2), the Commission took a statutorily defined 

action in response to the complaint and the General Counsel’s 

report: an up-or-down vote on whether there was “reason to 

believe” that CHGO had violated FECA. It was at this stage 

that the three Controlling Commissioners voted that there was 

no “reason to believe.” The Controlling Commissioners

concluded both (a) that the information before them “did not 

definitely resolve whether there was reason to believe CHGO 

was a political committee,” and (b) that, because the claims 

were also growing stale and CHGO was defunct, the case was 

not worth the FEC’s effort. Joint App’x (J.A.) 769. The

dismissal that the majority reads as based on reasons entirely 

unrelated to the strength of the evidence against CHGO appears 

on its face to have rested on the Controlling Commissioners’

antecedent legal conclusion that the record as it stood failed to 

show “reason to believe” a FECA violation occurred. J.A. 757, 

769. That conclusion can only be seen as “contrary to law.” 

52 U.S.C. § 30108(a)(9)(C).

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More fundamentally and importantly, any FEC dismissal 

based on a no “reason to believe” vote is reviewable to the 

extent that such determination was contrary to law. The way 

my colleagues avoid recognizing the legal constraints on the 

Commission is to skip over the several steps that the Act spells 

out for the FEC. See 52 U.S.C. § 30109(a)(2)-(4). Instead, 

they analyze the Controlling Commissioners’ dismissal as if it 

were a different kind of non-enforcement altogether: an 

unconstrained choice, under a different provision of the Act, 

which becomes relevant only after the FEC has passed through 

various defined steps. See id. § 30109(a)(6)(A). Viewing the 

case through that lens, the majority sees it as “obvious,” that 

“the word ‘may’” in that section of the Act “imposes no 

constraints on the Commission’s judgment about whether, in a 

particular matter, it should bring an enforcement action.” Maj. 

Op. 7. But this case stalled out on an earlier statutory 

threshold—a no “reason to believe” vote. See 52 U.S.C. § 

30109(a)(2). The law is clear that, at that earlier stage, the 

agency does not have wholly unfettered—or unreviewable—

choice as to how it proceeds. See Federal Election 

Commission, Guidebook for Complainants and Respondents of 

the FEC Enforcement Process at 12 (May 2012), 

http://fec.gov/em/respondent_guide.pdf (FEC Process 

Guidebook) (setting out Commissioners’ three choices at that 

stage: find reason to believe, exercise prosecutorial discretion 

by an affirmative vote of four Commissioners not to proceed, 

or find no reason to believe).

The Supreme Court and this court have acknowledged that 

FECA channels the agency’s exercise of prosecutorial 

discretion at various decisional stages. Arguing against 

judicial redressability in FEC v. Akins, the FEC there, like the 

majority here, contended that its dismissal of the complaint at 

issue lay in “an area generally not subject to review.” 524 U.S.

at 26. But the Supreme Court rejected that stance: It made 

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clear that, while “Heckler . . . noted that agency enforcement 

decisions have traditionally been committed to agency 

discretion, . . . [w]e deal here with a statute that explicitly 

indicates the contrary.” Id. (internal citations, quotation marks,

and alterations omitted). In so holding, the Supreme Court 

sustained the understanding of this court sitting en banc. We, 

too, had expressly distinguished Heckler, describing FECA as

having “an unusual statutory provision which permits a 

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

institute enforcement proceedings challenging the 

Commission’s interpretation of the term ‘political 

committee.’” Akins v. FEC, 101 F.3d 731, 738 (D.C. Cir. 

1996) (en banc) (citations omitted); see Orloski v. FEC, 795 

F.2d 156, 161 (D.C. Cir 1986). 

The FEC enjoys considerable discretion. It has discretion 

in promulgating regulations and policies to effectuate the 

statutory provisions governing campaign finance. It has 

discretion in how it reasonably applies those rules to the facts 

of the cases that come before it. And, where it finds violations, 

it has discretion to decide whether, at the end of the day, to file 

suit. See 52 U.S.C. § 30109(a)(6)(A); Maj. Op. 7. But the 

agency’s discretion is less than absolute at several points, 

including the one at issue in this case. When the agency votes

on whether there is “reason to believe” that a violation of FECA 

has occurred, it must give reasons for that action that are 

subject to judicial review. See U.S.C. § 30109(a)(2)-(4). 

Given everything that was not before us in this case (due to the 

mismatch between the opinion and what was briefed), today’s 

majority should not be read to shut down that review.

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I. The Federal Election Commission Acted Contrary to 

Law

The FEC came to consider the case of the Commission on 

Hope, Growth and Opportunity when it received a complaint 

alleging that the organization, which registered as a 501(c) nonprofit, was operating as a fly-by-night political committee, in 

contravention of FECA. The FEC General Counsel 

recommended that the Commission find reason to believe that 

CHGO was a political committee that violated its obligations 

under the Act.

A. The Federal Election Campaign Act Supplies Law 

to Apply

Since its enactment in 1972 and amendment in 1974, 

FECA has promoted transparency of funding in federal 

elections. See McConnell v. FEC, 540 U.S. 93, 117-19 (2003). 

The law requires, for example, “[e]very person” who engages 

in independent campaign-related expenditures to make certain 

disclosures and disclaimers. See 52 U.S.C. § 30104(c)(1), 

(f)(1); see generally Citizens United, 558 U.S. at 366-71. 

Groups acting as “political committees” must make “similar”

disclosures and disclaimers. SpeechNow.org v. FEC, 599 F.3d 

686, 696 (D.C. Cir. 2010); see Supplemental Explanation & 

Justification, Political Committee Status, 72 Fed. Reg. 5595, 

5596 (Feb. 7, 2007) (2007 E&J). Any such group must also 

register and keep records of its contributions, and disclose 

donors of more than $200. 52 U.S.C. § 30104(b)(3); see id. §§ 

30103-30104. 

FECA defines as a “political committee” any organization 

that receives or spends more than $1,000 annually, id. 

§ 30101(4)(A); see id. §§ (8)(A), (9)(A), and has a “major 

purpose” of nominating or electing federal candidates, 2007 

E&J, 72 Fed. Reg. at 5601, 5605. In applying the so-called 

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“major purpose test,” the agency is committed to a “factintensive inquiry” into each group’s “overall conduct.” 2007 

E&J at 5601-02, 5605; id. at 5597; see also Shays v. FEC, 511 

F. Supp. 2d 19, 24 (D.D.C. 2007) (Shays II); id. at 31 (referring 

to political committee status is a “legal issue” that is 

“multifaceted”). The test requires the Commission to examine 

direct and indirect evidence of purpose, including the 

organization’s “public statements” and “organizational 

statements of purpose,” together with its “contribution[s] and 

“expenditure[s]” related to “federal campaign activity.” 2007 

E&J, 72 Fed. Reg. at 5595, 5597, 5601, 5605. The FEC looks 

to how the group’s overall “campaign activities compare[] to 

its activities unrelated to campaigns.” Id. at 5601-02; see Shays 

II, 511 F. Supp. 2d at 30; see also Free Speech v. FEC, 720 

F.3d 788, 798 (10th Cir. 2013); Real Truth About Abortion, Inc. 

v. FEC, 681 F.3d 544, 556-57 (4th Cir. 2012); Citizens for 

Responsibility & Ethics in Wash., 209 F. Supp. 3d. at 93.

The fact that the Commission makes its legal 

determinations in the form of a “reason to believe” or “probable

cause” inquiry does not place such actions among “those rare 

instances where ‘statutes are drawn in such broad terms that in 

a given case there is no law to apply.’” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). Neither

does the fact-intensive character of those determinations make 

them non-legal. A decision that there is no “reason to believe”

that an entity is a political committee is no less a determination 

of law—and no less subject to judicial review—than a simple 

determination that it is not a political committee. See Ornelas 

v. United States, 517 U.S. 690, 699 (1996) (holding that 

“determinations of reasonable suspicion and probable cause 

should be reviewed de novo”). Courts routinely review no

“reason to believe” dismissals. See, e.g., Common Cause, 842 

F.2d at 449; Democratic Cong. Campaign Comm., 831 F.2d at 

1133; Citizens for Responsibility & Ethics in Wash, 209 F. 

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Supp. 3d. 77. And we have expressly “decline[d] . . . to 

distinguish deadlock dismissals which run contrary to General 

Counsel recommendations based on clear legal precedent and 

[those that run contrary to] General Counsel’s less definitive 

assessment of what the law requires in light of the factual 

allegations in the case.” Common Cause, 842 F.2d at 449.

It is beyond debate that Congress, in enacting FECA, 

supplied meaningful standards against which it expected courts 

to evaluate the Commission’s no “reason to believe”

dismissals.

B. The Facts the FEC General Counsel Uncovered 

About CHGO Provide “Reason to Believe”

The following facts about the Commission on Hope, 

Growth and Opportunity, as reported by the FEC General 

Counsel, are largely undisputed. Citizens for Responsibility & 

Ethics in Wash., 236 F. Supp. 3d at 384.

For an organization that apparently had no records 

retention policy, see J.A. 551, the direct evidence here was 

telling. In planning documents, CHGO declared its goal to 

“make a measurable impact on the election outcome in 

selectively identified Senate races,” J.A. 520, “us[ing] express 

advocacy in targeted Senate races,” J.A. 514, and “focusing on 

. . . key districts to support the election of Republican 

candidates,” J.A. 578; see generally J.A. 514-15, 652. The 

FEC General Counsel meanwhile found no documents

“reflect[ing] that CHGO’s purpose was, as it claimed [in its 

filings before the FEC], solely to educate the public on matters 

of economic policy formulation.” J.A. 653.

Other evidence supplied yet more reason to suspect that 

CHGO was concealing its true nature. In response to 

questioning from the FEC, CHGO’s general counsel 

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represented that he had “no relevant information or records” 

and “did not know who would have that information” in spite 

of repeated notices, previously sent by the Commission,

instructing the organization to “preserve records . . . as required 

by law.” J.A. 644 & n.9. When the FEC tried to subpoena a 

vendor CHGO had identified as producing non-campaignrelated communications, the putative vendor’s offices were 

vacant. J.A. 505. No such vendor had “[]ever rented [that] 

office space.” J.A. 505. Instead, the tenant was a well-known 

political strategist. J.A. 505.

What is more, the people CHGO named in its IRS filings 

as its leadership denied to the FEC General Counsel having any 

real authority over CHGO’s actions; and the people they

identified as really running the show were political operatives. 

See J.A. 493-94, 546-52, 808-09. The man listed on CHGO’s

tax filings as its President and Executive Director told 

investigators that he had “been associated” with the group but 

had not exercised control over its activities. J.A. 493-94, 809. 

He said he was just the “creative person” and described his job

as “plac[ing] . . . TV ads.” J.A. 493-94, 547. The man listed 

as CHGO’s Treasurer in its IRS application for tax-exempt 

status, J.A.794, reported that he handled some “accounting and 

tax work” for CHGO, but “probably” never interacted with the 

organization’s putative president, J.A. 496. CHGO’s general 

counsel, meanwhile, said he “just handled compliance issues” 

and disavowed any role in reviewing or preparing documents 

relating to the “funding, production or placement” of 

advertisements CHGO ran. J.A. 500-01, 555. This lawyer 

reported that he “did not know” who was in charge. J.A. 501. 

Looking also at the organization’s balance sheet for insight 

into its major purpose, the FEC General Counsel was able to 

confirm that a significant majority—at minimum 61 percent—

of the organization’s expenditures went to federal election 

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related communications. J.A. 737. “[O]ne thing is clear,” 

wrote the General Counsel, “a definite majority of CHGO’s 

spending was on activities that reflect the major purpose of 

influencing federal elections.” J.A. 738. 

Putting that 61 percent expenditure figure together with 

the direct and other circumstantial evidence, the General 

Counsel recommended that the Commission find “reason to 

believe” that CHGO may have been a political committee. 

C. The Federal Election Commission’s Legal Error at 

the “Reason to Believe” Stage

FECA calls on the FEC Commissioners to vote, based on 

the recommendation of the General Counsel, as to whether 

there is “reason to believe that a person has committed, or is 

about to commit, a violation of th[e] Act.” 52 U.S.C. §

30109(a)(2); see FEC Process Guidebook at 12. The

Controlling Commissioners here voted that there was no 

“reason to believe” that CHGO was a political committee and 

issued a statement of reasons. J.A. 757-58.

That statement makes clear that the Controlling 

Commissioners, in evaluating the strength of the claim against 

CHGO, did not correctly apply the Commission’s own “major 

purpose” test. They did not consider the organization’s direct 

statements that CHGO had a “goal” of affecting federal races,

the conduct of CHGO’s leadership, or the overwhelming 

suggestions that everyone involved was trying to hide 

something. Ignoring that direct and circumstantial evidence 

runs contrary to the FEC’s rule, see 2007 E&J at 5595-97, as 

well as the precedent that the Controlling Commissioners cited 

for support, J.A. 768 & n.13 (Statement of Reasons of 

Chairman Lee E. Goodman and Commissioners Caroline C. 

Hunter and Matthew S. Peterson, MUR 6538 (Americans for 

Job Security) (analyzing organizational statements in 

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determining major purpose) (AJS Statement)); J.A. 769 & n.17.

Even looking only to the balance sheet, the Commissioners’

conclusion—that 61 percent of total spending on express 

advocacy for federal candidates did not evince a “major 

purpose”—runs counter to FEC precedent and applicable law. 

See, e.g., AJS Statement at 12; compare J.A. 769 n.16 

(suggesting that certain commission payments to political 

strategists might raise “novel” legal issues), with 11 C.F.R. 

§ 100.111(a) (counting as a relevant expenditure “any 

purchase, payment, distribution, loan . . . , advance, deposit, or 

gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office”). 

Informed by their fundamentally flawed “major purpose” 

analysis, the Controlling Commissioners reasoned that any 

violations of FECA’s political-committee requirements were 

not “obvious” and that “the information learned during [the 

investigation] did not definitely resolve whether there was 

reason to believe CHGO was a political committee . . . .” J.A. 

769. In fact, there was no reason to believe anything else.

II. This Case is Subject to Judicial Review under the 

Federal Election Campaign Act

The court today declares the unreviewability of the FEC’s 

dismissal. My colleagues see no “law” that the Controlling 

Commissioners could have contravened (and, admittedly, 

CREW was less than crystalline on the point). See Maj. Op. 8. 

But the law itself is clear: After receiving a complaint and a 

General Counsel report recommending further proceedings (or 

not), the Commission votes on whether there is “reason to 

believe” that a violation of FECA has occurred. See 52 U.S.C. 

§ 30109(a)(2); FEC Process Guidebook, at 12-13. In cases in 

which the Commissioners find no reason to believe and dismiss 

the complaint, they must explain the basis of their action to

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enable judicial review. See Common Cause, 842 F.2d at 449; 

Democratic Cong. Campaign Comm, 831 F.2d at 1135 & n.5. 

The Commission’s action dismissing a complaint in those 

circumstances is “contrary to law” when it is based on a failure 

to faithfully apply FECA to the facts. See 52 US.C. 

§ 30109(a)(8)(C). FECA provides that, “[i]f the Commission . 

. . determines . . . that it has reason to believe that a person has 

committed . . . a violation of [FECA],” such as by unlawfully 

operating as a political committee, “the Commission shall” 

provide notice and “shall make an investigation.” Id. 

§ 30109(a)(2). If, when considering whether there is “reason 

to believe” that an organization operates as a political 

committee, the Commission does not evaluate the 

organization’s “major purpose” as shown by its “overall 

conduct”—including “public statements,” “internal 

documents,” official filings, and “expenditures,” 2007 E&J, 72 

Fed. Reg. at 5597, 5605—then the Commission has acted 

contrary to law.

Here, the Commission voted on whether there was “reason 

to believe” that CHGO was a political committee. J.A. 757. 

Totality-of-the-circumstances decisions whether there is 

reason to believe a group may have been a political committee 

are reviewed as questions of law. The Controlling 

Commissioners answered the “reason to believe” question in 

the negative—voting that there was no “reason to believe” that 

CHGO may have been a political committee and dismissing the 

case—because they thought the evidence was insufficient to 

“resolve” the question. J.A. 757, 769. On this record, that 

result cannot be squared with the law.

Where the FEC makes a determination about the law in 

finding no “reason to believe,” we may review the dismissal. 

In FEC v. Akins, the Supreme Court rejected the notion that the 

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FEC’s dismissal of a complaint upon a finding of no “probable 

cause to believe” that the organization at issue was a political 

committee would be an unreviewable exercise of enforcement 

discretion, so unredressable. 524 U.S. at 25-26. “We deal 

here,” the Court wrote, “with a statute that explicitly indicates 

the contrary.” Id. at 26. Far from “committing” FEC nonenforcement decisions to the agency’s discretion, the FECA

requires the agency to take certain steps where there is “reason 

to believe” a violation has occurred. See 52 U.S.C. § 

30109(a)(2). And it establishes judicial review of dismissals.

52 U.S.C. § 30109(a)(8)(A). The Act provides that “[a]ny 

party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . may file a petition with the 

United States District Court for the District of Columbia.” Id.

Further, “the court may declare that the dismissal of the 

complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 

days, failing which the complainant may bring . . . a civil action 

to remedy the violation involved in the original complaint.” Id.

§ 30109(a)(8)(C).

In a series of decisions, we have explained the importance 

of this judicial check. In Democratic Congressional Campaign 

Committee v. FEC, we held that FECA’s “judicial review 

prescription” calls for review of an FEC dismissal that is, as 

here, “due to a deadlock”—that is, a three-to-three tie vote by 

the Commissioners. 831 F.2d at 1133. In so doing, this court 

expressly rejected the FEC’s argument, “citing Heckler v. 

Chaney, that deadlocks on the Commission are immunized 

from judicial review because they are simply exercises of 

prosecutorial discretion” rather than legal determinations 

whether there is “reason to believe.” Id. This court instead 

suggested that FECA calls for judicial review: “[W]here the 

Commission is unable or unwilling to apply settled law to clear 

facts, judicial intervention serves as a necessary check against 

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arbitrariness.” Id. at 1135 n.5 (internal quotation marks 

omitted).

The next year, in Common Cause v. FEC, 842 F.2d 436, 

we reaffirmed the crucial role of judicial review in FECA’s 

scheme. The Commission there had dismissed a complaint via

deadlocked vote, contrary to the General Counsel’s 

recommendation to find “reason to believe.” We held that the 

Act requires the FEC to provide a statement of reasons even 

where the implicated questions of campaign finance are 

unsettled or fact-intensive; such a statement is necessary “to 

allow meaningful judicial review of the Commission’s decision 

not to proceed.” Id. at 449. Judicial review ensures that the 

agency does not, by unlawfully dismissing complaints, 

frustrate the statutory scheme and undermine enforcement.

So, too, here, the Commission’s decision to dismiss as a 

result of the deadlocked “reason to believe” vote is not a matter 

“committed to agency discretion” under FECA. There is a 

strong presumption that agency action is reviewable. Abbott 

Labs. v. Gardner, 387 U.S. 136, 140 (1967); see also Citizens 

to Preserve Overton Park, Inc., 401 U.S. at 410. Heckler is the 

exception, and its “non-reviewability only applies where the 

governing statute’s enforcement provision describes the 

agency’s role as discretionary.” Ass’n of Irritated Residents v. 

EPA, 494 F.3d 1027, 1032 (D.C. Cir. 2007). The Supreme 

Court, in Heckler, acknowledged reviewability of nonenforcement where the relevant statute constrains the agency’s 

discretion. 470 U.S. at 833-34. The Court in Heckler

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

where the statute directed the Secretary to investigate 

complaints and provided that “if he finds probable cause to 

believe that a violation . . . has occurred . . . he shall” pursue 

enforcement. Heckler, 470 U.S. 833-34 (alterations in original) 

(quoting 29 U.S.C. § 482(b)); see also Dunlop, 421 U.S. at 562-

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63 & n.2. Where the Secretary declined to proceed through the

defined statutory checkpoint, “‘the principle of absolute 

prosecutorial discretion’ [was] inapplicable.” Id. at 834 

(quoting Bachowski v. Brennan, 502 F.2d 79, 87 (3d Cir. 

1974)).

As was the case in Dunlop, the FECA provision at issue 

here provides law for the agency and the court to apply, and 

calls for judicial review of dismissals. See supra Part I.A. 

After it receives a General Counsel recommendation regarding

a complaint, the agency votes on whether there is “reason to 

believe” that a violation of FECA may have occurred. See 52 

U.S.C. § 30109(a)(2); FEC Process Guidebook, at 12-13. If 

there is reason to believe, the Commission must take further 

steps. See 52 U.S.C. § 30109(a)(2)-(4); FEC Process 

Guidebook, at 12. The Commission may depart from the 

General Counsel’s recommendation to find “reason to believe,” 

but it must explain any decision to do so. See Common Cause, 

842 F.2d at 449; Democratic Cong. Campaign Comm., 831 

F.2d at 1135 & n.5. Judicial review ensures that, if the 

Commission erred in its reasoning—dismissing a matter under 

a faulty view of the law where there is, in fact, “reason to 

believe” that a violation may have occurred—the matter is 

remanded to the agency so that it may reconsider its decision. 

See Akins, 470 U.S. at 25-26.

The statute elsewhere compensates in various ways for 

those curtailments of enforcement discretion. If it chooses not

to vote “yes” or “no” on “reason to believe,” the Commission 

has a third option: “Pursuant to an exercise of prosecutorial 

discretion, the Commission may dismiss a matter when, in the 

opinion of at least four Commissioners, the matter does not 

merit further use of Commission resources.” FEC Process

Guidebook at 12. If a court declares a Commission’s dismissal

to be “contrary to law,” the statute contemplates that the 

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Commission may decline to act in accordance with that 

directive. 52 U.S.C. § 30109(a)(8)(C). The complainant may

then sue in his or her own name to remedy the claimed 

violation. Id. As CREW observes, the Act’s limited private 

right of action helps to prevent cooptation of agency resources. 

Id. Finally, if a complaint passes through all the prescribed 

checkpoints—from “reason to believe” to conciliation—the 

Commission enjoys ultimate non-enforcement discretion: It is 

the Commissioners’ option whether to institute a civil action in 

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

As the Supreme Court explained in Akins—and the FEC 

confirmed at oral argument, Oral Arg. Rec. at 44:03-44:18—

courts may review for legal error dismissals at FECA’s defined 

steps. 524 U.S. at 26. Where the court finds legal error, the 

statute provides that the court should remand so that the 

Commissioners may reassess their action with a correct view 

of the law in mind: While “it is possible that even had the FEC 

agreed with [the correct] view of the law, it would still have 

decided in the exercise of its discretion not to” pursue 

enforcement, “we cannot know that the FEC would have 

exercised its prosecutorial discretion in this way.” Id. 

Here, as in Akins, we cannot know the counterfactual. We 

cannot be certain what the FEC would have done had it 

correctly applied the legal definition of political committee. In 

this case, all six commissioners voted to investigate the 

“obvious” violations of the requirement to disclose 

independent expenditures. If the Controlling Commissioners 

had not labored under a view of CHGO’s political-committee 

status that was contrary to law, a majority might well have 

proceeded with that claim, too, as “obvious.” J.A. 769.

The majority miscasts this case in the Heckler mold. 

CREW admittedly sidestepped any argument on the “reason to 

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believe” question—instead framing its case as a direct and 

wholesale challenge to the agency’s enforcement discretion. 

So it is perhaps understandable that my colleagues turn to

FECA Section 30109(a)(6)(A)’s separate provision granting 

the FEC discretion whether to file suit in federal court. The 

parties did not focus on, and the court leaves untouched, how

the action the Commission took here—a vote keyed to a 

specific legal question, i.e., “reason to believe”—calls for 

judicial review. I trust that, in future cases, the court will

continue, consistent with existing law, to review legal 

determinations that the Commissioners make when they vote 

on the merits of “reason to believe” or “probable cause” 

questions, see 52 U.S.C. § 30109(a)(2)-(6); R. Sam Garrett, 

Cong. Res. Serv., The Federal Election Commission: 

Enforcement Process and Selected Issues for Congress 5-6 

(Dec. 22, 2015) (citing 52 U.S.C. § 30109; FEC Process 

Guidebook), and that they will continue to explain their 

decisions, see Common Cause, 842 F.2d at 449; Democratic 

Cong. Campaign Comm., 831 F.2d at 1135 & n.5. After all, 

these constraints reflect Congress’s judgment that judicial 

review is required, in part, “to assure . . . that the Commission 

does not shirk its responsibility” to pass on the merits of 

complaints. Democratic Cong. Campaign Comm., 831 F.2d at

1134 (quoting 125 Cong. Rec. 36,754 (1979)); see id. at 1135 

& n.5. 

My colleagues do not grapple with these questions—they 

remain for future cases. Instead, the court points to non-FECA 

decisions readily distinguishable from this one and to which no 

party cited. E.g. Maj. Op. 10-12 (citing Ass’n of Irritated 

Residents, 494 F.3d at 1032 (holding non-enforcement decision 

unreviewable where statute provided that Secretary “‘may’

take any number of enforcement actions”); Sec’y of Labor v. 

Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C. Cir. 2006) 

(vacating Mining Commission’s reversal of Labor Secretary’s 

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citation of mine operator under statute that “provides no 

meaningful standard against which to judge the Secretary’s 

decision regarding which party to cite”); Steenholdt v. FAA, 

314 F.3d 633, 638 (D.C. Cir 2003) (denying review of agency’s 

nonrenewal of petitioner’s authorization under provision 

granting the Administrator authority to rescind such 

authorization “for any reason the Administrator considers

appropriate” (quoting 49 U.S.C. § 44,702(d)(2)); Drake v. 

FAA, 291 F.3d 59, 69-72 (D.C. Cir 2002) (affirming agency 

dismissal of complaint without investigation under provision 

authorizing dismissal when Secretary “is of the opinion that the

complaint does not . . . warrant investigation or action” 

(quoting 49 U.S.C. § 46,101(a)(3)) (emphasis in Drake)); 

Sierra Club v. Jackson, 648 F.3d 848, 856 (upholding agency 

inaction where the statute tasks the administrator to “take such 

measures . . . as necessary” but without “guidance . . . as to 

what action is ‘necessary’”); Crowley Caribbean Transp., Inc. 

v. Peña, 37 F.3d 671, 672, 676 (D.C. Cir. 1994) (reading 

Heckler to apply where “the relief sought by petitioner” was 

the initiation of a discretionary “enforcement action,” but the 

Administrator did not view the complained-of conduct as 

properly within the statute).

The myriad statutes that permit largely unfettered, and 

therefore unreviewable, discretion do not speak to FECA. 

There can be no serious claim that FECA equates a “no reason 

to believe” vote to an exercise of unfettered enforcement 

discretion. To the contrary, the Act explicitly provides for 

judicial review of dismissals based on those votes. On

Heckler’s own logic, then, FECA’s constrained agency nonenforcement is judicially reviewable and, if contrary to law, 

subject to remand. Heckler, 470 U.S. at 833-34. It remains for 

us to conduct such review in future cases that warrant it.

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III. Conclusion

Under the correct standards, undeniable “reason to 

believe” that CHGO operated unlawfully as a political 

committee should have prompted further investigation and 

perhaps enforcement by the FEC. The court rests its decision 

today on its view that the FEC sidestepped the merits wholesale 

and exercised prosecutorial discretion untainted by an 

erroneous view of the law. Critically, the majority preserves

judicial review where “the Commission declines to bring an 

enforcement action on the basis of its interpretation of FECA.” 

Maj Op. 11 n.11. I think this is such a case. 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.

Absent argument from any party, my colleagues have 

reached out to suggest that any Commission dismissal guided 

by discretionary considerations is unreviewable. I have here

explained why FECA’s statutory scheme—and its various 

limitations on non-enforcement discretion—place cases like 

this one outside Heckler’s ambit. I believe that, in future cases

where the parties tee up this issue, Heckler will not bar our 

review.

The end of CHGO’s story remains a mystery. The group 

dissolved within several months of learning that it remained the 

subject of FEC investigation. Political operatives involved 

with the group exchanged frantic emails stating that it was 

urgent to “shut it down” and “[r]eally important . . . to get this 

terminated ASAP.” J.A. 636. The organization lasted only one 

federal election cycle and managed to slip into the shadows 

without the scrutiny FECA requires. But the court’s holding 

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today should not be mistaken to mean that other organizations 

may do the same.

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