No. 19-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

AND NOAH BOOKBINDER,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 1:18-cv-00076 (RC)

BRIEF OF ELECTION LAW SCHOLARS

AS AMICI CURIAE IN SUPPORT OF APPELLANTS’

PETITION FOR REHEARING EN BANC

MINSUK HAN

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

mhan@kellogghansen.com

mdrecun@kellogghansen.com

Counsel for Amici Curiae

June 30, 2021

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Amici Professors Richard Briffault, 

Michael S. Kang, Jennifer Nou, Bertrall Ross, Douglas Spencer, Nicholas 

Stephanopoulos, Ciara Torres-Spelliscy, and Abby K. Wood certify as follows: 

A. Parties and Amici. Petitioners are Appellants Citizens for 

Responsibility and Ethics in Washington, a non-profit corporation, and Noah 

Bookbinder. Appellee is the Federal Election Commission. There were no amici 

curiae in the district court. Campaign Legal Center appeared as amicus curiae in 

this Court in support of Appellants, and Randy Elf appeared as amicus curiae in 

support of Appellee. Petitioners have stated that they anticipate additional amici in 

support of their Petition for Rehearing En Banc (the “Petition”). 

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

Decision of Judge Rudolph Contreras, ECF Dkt. Nos. 22 and 23, in Citizens for 

Responsibility and Ethics in Washington v. FEC, No. 18-00076 (RC) (Hon. 

Rudolph Contreras). The district court’s opinion is available at 380 F. Supp. 3d 30 

and is reprinted in the Joint Appendix at 139-61. The panel’s Opinion is attached 

to the Petition and is available at 993 F.3d 880. The Petition 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.

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TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES..............................................................................................................i

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

INTEREST OF AMICI CURIAE ...............................................................................1

INTRODUCTION .....................................................................................................2

ARGUMENT.............................................................................................................4

I. The Panel Decision Immunizes Agency Decisions With 

Significant Consequences From Judicial Review ...........................................4

II. The Panel’s Decision Undermines Congress’s Bipartisan 

Campaign Finance Enforcement Framework..................................................9

CONCLUSION........................................................................................................12

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES*

Page

CASES

* Campaign Legal Ctr. v. FEC, 952 F.3d 352 (D.C. Cir. 2020) (“CLC”).....2, 5, 9, 11

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)...............................10

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 

(1984).......................................................................................................3, 5, 6

Citizens United v. FEC, 558 U.S. 310 (2010)..........................................................12

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)...........................................6

CREW v. FEC:

209 F. Supp. 3d 77 (D.D.C. 2016)...................................................................7

 * 892 F.3d 434 (D.C. Cir. 2018) (“CHGO”)............................................2, 4, 11

 * 923 F.3d 1141 (D.C. Cir. 2019).................................................3, 4, 10, 11, 12

 * 993 F.3d 880 (D.C. Cir. 2021) (“New Models”) .............................................2

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 

(D.C. Cir. 1987).............................................................................................10

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)

(“DSCC”).....................................................................................................3, 9

FEC v. National Republican Senatorial Comm., 966 F.2d 1471 

(D.C. Cir. 1992)...............................................................................................9

Sealed Case, In re, 223 F.3d 775 (D.C. Cir. 2000) ...................................................5

 

* Authorities principally relied upon are marked with an asterisk.

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STATUTES AND RULES

Federal Election Campaign Act of 1971, 52 U.S.C. § 30101 et seq. ..........2, 3, 4, 5,

6, 7, 9, 10, 11

52 U.S.C. § 30101(8)(A) .................................................................................5

52 U.S.C. § 30109(a)(8)(A).......................................................................4, 10

52 U.S.C. § 30109(a)(8)(C).......................................................................4, 10

Fed. R. App. P. 29(a)(4)(E)........................................................................................1

LEGISLATIVE MATERIALS

125 Cong. Rec. 36,754 (1979).................................................................................10

ADMINISTRATIVE MATERIALS

Fed. Election Comm’n:

Closeout Opinion Letter on Facebook Advisory Opinion 

Request, Advisory Op. No. 2011-09 (June 15, 2011), 

https://www.fec.gov/files/legal/aos/2011-09/AO-2011-09.pdf.......................8

Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (May 2012), http://fec.gov/em/

respondent_guide.pdf.....................................................................................10

Opinion Letter on Google Advisory Opinion Request, Advisory 

Op. No. 2010-19 (Oct. 8, 2010), https://www.fec.gov/files/

legal/aos/2010-19/AO-2010-19.pdf.................................................................8

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

Matthew S. Petersen, MURs 6969, 7031 & 7034 (Children of 

Israel et al.) (Sept. 13, 2018), https://eqs.fec.gov/eqsdocsMUR/

6969_2.pdf.......................................................................................................6

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Statement of Reasons of Comm’rs Caroline C. Hunter and 

Matthew S. Petersen, MUR 6402 (American Future Fund) 

(Dec. 23, 2014), https://eqs.fec.gov/eqsdocsMUR/

14044364910.pdf.............................................................................................7

Statement of Reasons of Vice Chair Caroline C. Hunter and 

Comm’r Lee E. Goodman, MUR 6920 (American Conservative 

Union et al.) (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/

6920_3.pdf.......................................................................................................9

Statement of Vice Chair Ann M. Ravel and Comm’r Ellen L. 

Weintraub on Judicial Review of Deadlocked Commission 

Votes (June 17, 2014), https://eqs.fec.gov/eqsdocsMUR/

14044354045.pdf.............................................................................................5

OTHER MATERIALS

Sharon B. Jacobs, Administrative Dissents, 59 Wm. & Mary L. Rev. 541

(2017)........................................................................................................... 7-8

* Jennifer Nou, Sub-Regulating Elections, 2013 Sup. Ct. Rev. 135......................5, 11

Trevor Potter, A Dereliction of Duty: How the FEC Commissioners’ 

Deadlocks Result in a Failed Agency and What Can Be Done, 

27 Geo. Mason L. Rev. 483 (2020)...............................................................11

Daniel I. Weiner, Fixing the FEC: An Agenda for Reform, Brennan 

Ctr. for Justice (2019), https://www.brennancenter.org/sites/

default/files/2019-08/Report_Fixing_FEC.pdf ....................................... 11-12

Pichaya P. Winichakul, Note, The Missing Structural Debate: 

Reforming Disclosure of Online Political Communications, 

93 N.Y.U. L. Rev. 1387 (2018).......................................................................8

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INTEREST OF AMICI CURIAE

1

Amici—Professors Richard Briffault, Michael S. Kang, Jennifer Nou, 

Bertrall Ross, Douglas Spencer, Nicholas Stephanopoulos, Ciara Torres-Spelliscy, 

and Abby K. Wood—are leading scholars whose research and academic interests 

include campaign finance, election law and administration, and the Federal 

Election Commission (“FEC” or “Commission”). Amici have an interest in the 

proper interpretation and application of federal election law. Amici have a range of 

views about the appropriateness of the FEC’s decision to dismiss Citizens for 

Responsibility and Ethics in Washington’s (“CREW”) administrative complaint at 

issue here. However, they share the view that the panel decision, holding that the 

district court lacked authority to review the controlling commissioners’ statement 

of reasons, improperly insulates the agency’s statutory interpretation from judicial 

scrutiny. Biographies of amici are summarized in the Appendix to this brief.

 

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici state 

that no counsel for a party authored this brief in whole or in part, and no party or 

person other than amici or their counsel made a monetary contribution to this 

brief’s preparation or submission. 

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INTRODUCTION

Rehearing en banc is necessary to resolve a significant conflict in the rulings

of this Court concerning its review of FEC decisions. The conflict began in 2018, 

when a divided panel ruled that the discussion of prosecutorial discretion by three 

of six commissioners in dismissing an administrative complaint rendered the 

dismissal unreviewable. See CREW v. FEC, 892 F.3d 434, 437-39 (D.C. Cir. 

2018) (“CHGO”); id. at 443-53 (Pillard, J., dissenting). In 2020, notwithstanding 

CHGO, another panel reviewed an FEC dismissal of administrative complaints 

despite three commissioners citing prosecutorial discretion to justify the dismissal. 

See Campaign Legal Ctr. v. FEC, 952 F.3d 352, 355 (D.C. Cir. 2020) (per curiam)

(“CLC”). A concurring opinion in CLC explained why CHGO was “flatly at 

odds” with Supreme Court and circuit precedent. Id. at 358-63 (Edwards, J., 

concurring). Notwithstanding CLC, a divided panel here extended CHGO, holding

that a passing reference to prosecutorial discretion by non-majority commissioners 

can immunize a thorough legal analysis of the Federal Election Campaign Act of 

1971 (“FECA”) from judicial review. See CREW v. FEC, 993 F.3d 880, 884-87

(D.C. Cir. 2021) (“New Models”); id. at 896-906 (Millett, J., dissenting). 

The en banc Court should resolve the conflict by rejecting the curtailment of 

judicial review in the present case and by revisiting CHGO or else confining its 

holding to its facts. Judicial review of FEC decisions not to enforce is a matter 

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of significant public importance. The views advanced in non-enforcement 

decisions—even if not endorsed by a bipartisan majority of commissioners—have 

consequences beyond any individual proceeding. They can alter future actions by

the FEC’s enforcement staff and shape the behavior of regulated parties. Under 

current circuit precedent, a non-majority bloc’s interpretations of FECA may 

receive Chevron deference when adopted in subsequent actions. Freeing such 

interpretations from judicial review risks snowballing consequences, with one 

party dominating the FEC’s decision-making through damaging “partisan 

gamesmanship.” CREW v. FEC, 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, 

J., concurring in the denial of rehearing en banc). In tension with this Court’s 

precedent requiring commissioners to state the reasons for their decisions to 

facilitate judicial oversight, the panel decision shields extensive and influential 

legal analysis by non-majority blocs from oversight.

Moreover, the curtailment of judicial review threatens Congress’s carefully 

crafted framework for the enforcement of campaign finance law. The FEC’s 

design is “inherently bipartisan.” FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 37 (1981) (“DSCC”). Decisions whether to pursue—or 

decline—enforcement are to be made by a majority of commissioners, requiring 

Democratic- and Republican-aligned commissioners to agree. Recognizing that 

this partisan-balanced design may lead to gridlock, Congress provided that “[a]ny 

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person aggrieved” by the Commission’s non-enforcement decisions may obtain 

judicial review and, if the non-enforcement was contrary to law, may sue to 

remedy the FECA violation. 52 U.S.C. § 30109(a)(8)(A), (C). Yet the panel’s 

unwarranted extension of CHGO allows non-majority commissioners to block 

both enforcement and judicial review—a result “contrary to Congress’s intent.” 

CREW, 923 F.3d at 1142-43 (Griffith, J., concurring in the denial of rehearing 

en banc). En banc review is necessary to correct this error.

ARGUMENT

I. THE PANEL DECISION IMMUNIZES AGENCY DECISIONS WITH SIGNIFICANT 

CONSEQUENCES FROM JUDICIAL REVIEW 

Statements by non-majority commissioners controlling the FEC’s disposition

of an enforcement matter have significant consequences. They can influence 

judicial interpretations of FECA, future decisions within the agency, and the 

conduct of regulated parties. Without judicial review, non-majority blocs of 

commissioners can therefore have far-reaching influence based on views that are 

“contrary to law,” 52 U.S.C. § 30109(a)(8)(C), and that lack the bipartisanship 

intrinsic to the FEC’s design. It thus is critical that the Commission’s interpretations

of FECA are subject to judicial review and set aside if warranted, especially when 

a non-majority bloc provides a robust analysis setting forth the FEC’s rationale. 

Otherwise, a non-majority bloc of commissioners can ensure that its tendentious 

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interpretation of FECA is unreviewable by simply adding a passing reference to 

“prosecutorial discretion” in its rationale.

First, the views of non-majority commissioners can influence judicial 

interpretations of FECA. This Court has held that Chevron deference is warranted 

for the legal interpretations of a non-majority bloc of commissioners voting against 

agency enforcement in a deadlock. See In re Sealed Case, 223 F.3d 775, 779-81

(D.C. Cir. 2000) (according deference to three commissioners about FECA’s 

statutory definition of “contribution,” now found at 52 U.S.C. § 30101(8)(A)); 

cf. CLC, 952 F.3d at 357-58 (concluding that “we ‘must give deference to an 

agency’s interpretation of its own precedents’” in the context of a deadlocked

decision not to pursue enforcement) (citation omitted).

Whether or not the application of deference in the context of a deadlocked

decision is warranted,

2

so long as it remains the law of this Circuit, the statutory 

interpretations of a controlling non-majority bloc of commissioners should be 

reviewable under the “contrary to law” standard. To be sure, a decision by 

commissioners resting solely on conventional discretionary grounds would contain 

nothing to which Chevron deference would attach. In this case, however, the non-

 

2 Certain amici and others have criticized deference to non-majority blocs of 

commissioners. See Statement of Vice Chair Ann M. Ravel and Comm’r Ellen L. 

Weintraub on Judicial Review of Deadlocked Commission Votes (June 17, 2014), 

https://eqs.fec.gov/eqsdocsMUR/14044354045.pdf; Jennifer Nou, Sub-Regulating 

Elections, 2013 Sup. Ct. Rev. 135, 157-59.

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majority controlling commissioners made legal rulings that “New Models’s major 

purpose was not the nomination or election of federal candidates . . . , that [its] 

major purpose did not change . . . based upon its contributions . . . in one calendar 

year, and that [it] was [thus] not a political committee.” JA104. If the panel 

decision stands, no court could determine whether those legal rulings were 

“contrary to law,” yet later courts may be obligated to defer to the FEC’s 

interpretation under Chevron where that rationale forms the basis for its decision.

Second, non-majority blocs of commissioners have used deadlocked

“decisions” as legal precedent within the agency, thereby reinforcing those 

decisions’ influence on judicial interpretations of FECA. This Court has held 

that the legal rationale embodied in the statement of a non-majority following a 

deadlock is not binding legal precedent for future cases. See Common Cause v. 

FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). Nonetheless, the commissioners 

have treated such statements as authoritative. Indeed, the commissioners who

issued the statement at issue in this case have already relied on the same legal 

reasoning CREW challenges—and that the panel declined to review—in other 

enforcement matters as a basis for non-enforcement. See, e.g., Statement of Reasons

of Chair Caroline C. Hunter and Comm’r Matthew S. Petersen at 8 n.47, MURs 

6969, 7031 & 7034 (Children of Israel et al.) (Sept. 13, 2018), https://eqs.fec.gov/

eqsdocsMUR/6969_2.pdf. 

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A non-majority bloc of commissioners has repeatedly chastised the 

Commission’s Office of General Counsel (“OGC”) for declining to follow the 

legal conclusions expressed in the bloc’s statements of reasons following a 

deadlock. For example, the Commission deadlocked on whether there was reason 

to believe that the group American Future Fund (“AFF”) was a “political committee” 

under FECA. See Statement of Reasons of Comm’rs Caroline C. Hunter and 

Matthew S. Petersen at 2-3, MUR 6402 (American Future Fund) (Dec. 23, 2014), 

https://eqs.fec.gov/eqsdocsMUR/14044364910.pdf. The two commissioners 

voting against enforcement concluded that AFF’s “major purpose” was not to elect 

candidates, based on the analysis of AFF’s lifetime spending, similar to the New 

Models Statement, id. at 16-22—an approach that at least one court has found 

improper, see CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016). The

commissioners faulted OGC for determining an organization’s “major purpose” 

based on spending in a calendar year. In so doing, the bloc cited only prior 

deadlocked FEC decisions about lifetime spending issued by commissioners 

of their same political party. American Future Fund at 25 n.165, 26 n.170.

Third, deadlocked decisions by the non-majority will influence the conduct 

of regulated parties until a majority can issue an authoritative decision. Even 

non-binding statements offer specific information about the views of particular

commissioners, see Sharon B. Jacobs, Administrative Dissents, 59 Wm. & Mary 

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L. Rev. 541, 578, 584 (2017), from which regulated parties may seek guidance. 

Regulated parties also have often followed non-binding FEC opinions issued after 

deadlock. In 2010, for example, the FEC deadlocked on an advisory opinion 

request by Google about whether political ads on a Google landing page could be 

posted without disclaimers. See FEC, Opinion Letter on Google Advisory Opinion 

Request, Advisory Op. No. 2010-19, at 2 (Oct. 8, 2010), https://www.fec.gov/files/

legal/aos/2010-19/AO-2010-19.pdf; Pichaya P. Winichakul, Note, The Missing 

Structural Debate: Reforming Disclosure of Online Political Communications, 

93 N.Y.U. L. Rev. 1387, 1409 (2018). Over the next three years, other parties

cited the deadlocked Google advisory opinion in seeking advisory opinions on 

their own ads, and the FEC deadlocked on each request—effectively allowing the 

non-majority view that disclaimers were not required to prevail. See, e.g., 

Winichakul, 93 N.Y.U. L. Rev. at 1409-10; FEC, Closeout Opinion Letter on 

Facebook Advisory Opinion Request, Advisory Op. No. 2011-09 (June 15, 2011), 

https://www.fec.gov/files/legal/aos/2011-09/AO-2011-09.pdf. 

Reliance by regulated parties on a non-majority bloc’s potentially incorrect 

legal interpretation has in turn dissuaded the FEC from pursuing later enforcement 

actions, citing notice concerns. The FEC has declined to initiate enforcement 

investigations—and this Court has approved such decisions—on the basis that 

“past Commission decisions . . . may be confusing” to regulated parties, resulting 

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in a perceived lack of “adequate notice” to regulated parties “that their conduct 

could potentially violate” FECA. E.g., CLC, 952 F.3d at 357; see also, e.g., 

Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. 

Goodman at 2, MUR 6920 (American Conservative Union et al.) (Dec. 20, 2017),

https://eqs.fec.gov/eqsdocsMUR/6920_3.pdf.

This Court held in FEC v. National Republican Senatorial Committee that 

the controlling commissioners in a deadlocked decision must issue a statement of 

reasons “to make judicial review a meaningful exercise.” 966 F.2d 1471, 1476 

(D.C. Cir. 1992). The panel decision here, however, allows any non-majority bloc 

to convert that well-intentioned requirement into a means by which to influence 

judicial opinions, the agency’s actions, and the behavior of regulated parties—all 

without judicial oversight. If allowed to stand, the panel decision will thereby 

permit non-majority blocs to create de facto legal regimes based on potentially 

incorrect interpretations of FECA.

II. THE PANEL’S DECISION UNDERMINES CONGRESS’S BIPARTISAN CAMPAIGN

FINANCE ENFORCEMENT FRAMEWORK 

The panel decision unduly empowers non-majority blocs, contrary to 

Congress’s bipartisan framework for the enforcement of campaign finance laws. 

The FEC is “inherently bipartisan in that no more than three of its six voting 

members may be of the same political party.” DSCC, 454 U.S. at 37. Because 

enforcement decisions require four votes, “all actions by the Commission [must] 

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occur on a bipartisan basis.” CREW, 923 F.3d at 1142 (Griffith, J., concurring in 

the denial of rehearing en banc). This includes votes to dismiss an administrative 

complaint based on the exercise of prosecutorial discretion. See FEC, Guidebook 

for Complainants and Respondents on the FEC Enforcement Process 12 (May 

2012), http://fec.gov/em/respondent_guide.pdf. In the absence of bipartisan 

agreement, deadlock results and the proposed action does not proceed.

Because the FEC is designed to deadlock in the absence of bipartisan 

agreement, there is a risk of political impasse. To ensure proper enforcement 

of FECA, Congress enacted an “unusual” judicial review provision allowing 

“[a]ny party aggrieved” by the Commission’s non-enforcement decisions to obtain 

judicial review and, if the non-enforcement was contrary to law, to sue to remedy 

the FECA violation. Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 

1995); 52 U.S.C. § 30109(a)(8)(A), (C). This judicial review provision is “an 

institutional check on political deadlock,” CREW, 923 F.3d at 1150 (Pillard, J., 

dissenting from denial of rehearing en banc), ensuring that the Commission cannot 

“‘shirk its responsibility,’” Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 

1131, 1134 (D.C. Cir. 1987) (quoting 125 Cong. Rec. 36,754 (1979)). 

The panel decision upends this carefully crafted structure by allowing one 

party to dictate the FEC’s decision-making. The risk of partisan misuse is at its 

height in a deadlock: “Whereas a majority vote in the election setting connotes 

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agreement between parties, a deadlock suggests the converse: a vote split along 

party lines.” Nou, 2013 Sup. Ct. Rev. at 158. Yet the panel decision “empowers 

any partisan bloc of the Commission to cut off investigation and stymie review 

of even the most serious violations of federal campaign finance law by uttering 

‘magic words’ of enforcement discretion.” CREW, 923 F.3d at 1144 (Pillard, J., 

dissenting from denial of rehearing en banc). Under this regime, motivated 

partisan blocs can freely interpret FECA in ways that are both legally wrong and 

without bipartisan support. This cannot be correct. “If [CHGO] can be read to 

suggest that ‘when three Commissioners invoke “prosecutorial discretion” they 

foreclose both the FEC enforcement action and our review of the decision not to 

proceed, this certainly seems contrary to Congress’s intent.’” CLC, 952 F.3d at 

362 (Edwards, J., concurring) (quoting CREW, 923 F.3d at 1142-43 (Griffith, J., 

concurring in the denial of rehearing en banc)) (brackets omitted). 

Deadlocks “have become the increasingly likely outcome at the Commission”

over the last decade. Trevor Potter, A Dereliction of Duty: How the FEC 

Commissioners’ Deadlocks Result in a Failed Agency and What Can Be Done, 

27 Geo. Mason L. Rev. 483, 486 (2020). FEC deadlocks on enforcement matters 

increased from 4.2% in 2006 to 37.5% in 2016, while the FEC’s collection of 

penalties fell from $5.5 million to below $600,000. See Daniel I. Weiner, 

Fixing the FEC: An Agenda for Reform, Brennan Ctr. for Justice, at 3 (2019), 

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https://www.brennancenter.org/sites/default/files/2019-08/

Report_Fixing_FEC.pdf.

The panel decision encourages further deadlocks, because non-majority

commissioners can block any enforcement action from proceeding and then 

“insulate [that] decision from the judicial review that FECA provides.” CREW, 

923 F.3d at 1145 (Pillard, J., dissenting from denial of rehearing en banc). Thus, 

the panel decision “undercuts the design Congress devised to avoid both partisan 

domination and partisan deadlock in the Commission’s enforcement process.” Id.

at 1144. 

Such deadlocks necessarily result in the under-enforcement of campaign 

finance law—here, the disclosure requirement for political committees. Thus, 

potentially erroneous legal conclusions by a non-majority, if left unchecked by the 

courts, can allow substantial contributions of money into federal elections without 

the disclosure necessary to “enable[] the electorate to make informed decisions and 

give proper weight to different speakers and messages.” Citizens United v. FEC, 

558 U.S. 310, 369, 371 (2010). 

CONCLUSION

For the reasons set forth above, amici respectfully request that the en banc 

Court grant rehearing.

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Respectfully submitted,

/s/ Minsuk Han

MINSUK HAN

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

mhan@kellogghansen.com

mdrecun@kellogghansen.com

June 30, 2021

USCA Case #19-5161 Document #1904514 Filed: 06/30/2021 Page 19 of 25
CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rules of Appellate Procedure 29(b)(4), 29(a)(4)(G), and 

32(g)(1), the undersigned hereby certifies that this brief complies with the typevolume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B)(i).

1. Exclusive of the exempted portions of the brief, as provided in Federal 

Rule of Appellate Procedure 32(f), the brief contains 2,599 words.

2. The brief has been prepared in proportionally spaced typeface using 

Microsoft Word 2016 in 14-point Times New Roman font. As permitted by 

Federal Rule of Appellate Procedure 32(g)(1), the undersigned has relied upon the 

word-count feature of this word processing system in preparing this certificate.

/s/ Minsuk Han

MINSUK HAN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Amici Curiae

June 30, 2021

USCA Case #19-5161 Document #1904514 Filed: 06/30/2021 Page 20 of 25
CERTIFICATE OF SERVICE

I hereby certify that, on this 30th day of June 2021, I electronically filed the 

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

the District of Columbia Circuit using the appellate CM/ECF system. Counsel for 

all parties to the case are registered CM/ECF users and will be served by the 

appellate CM/ECF system.

/s/ Minsuk Han

MINSUK HAN

USCA Case #19-5161 Document #1904514 Filed: 06/30/2021 Page 21 of 25
APPENDIX

Richard Briffault is Joseph P. Chamberlain Professor of Legislation at Columbia 

Law School. Professor Briffault’s academic interests include campaign finance 

regulation, government ethics, law of the political process, legislation, and state 

and local government law. Since joining the Columbia Law School faculty in 

1983, he has combined public and government service with teaching, research, and 

scholarship. The news media often turns to him for his expert insight into and 

analysis of issues central to democracy and the political process such as campaign 

finance reform, government ethics, gerrymandering, and fair elections. He sits on 

the advisory boards of the Law School’s Center for the Advancement of Public 

Integrity and the Public Interest/Public Service Fellows Program. Professor 

Briffault has written more than 75 law review and journal articles as well as books 

and monographs. Before becoming an academic, Professor Briffault served as a 

clerk to Judge Shirley M. Hufstedler of the U.S. Court of Appeals for the Ninth

Circuit and an assistant counsel to New York Governor Hugh L. Carey. From 

2014 to 2020, Professor Briffault served as chair of the New York City Conflicts of 

Interest Board. He is the reporter for the American Law Institute’s Project on 

Principles of Government Ethics and vice-chair of the Citizens Union of the City 

of New York.

Michael S. Kang is the William G. and Virginia K. Karnes Research Professor at 

Northwestern Pritzker School of Law and a nationally recognized expert on 

campaign finance, voting rights, redistricting, judicial elections, and corporate 

governance. His research has been published widely in leading law journals and 

featured in the New York Times, the Washington Post, and Forbes, among others. 

His recent work focuses on partisan gerrymandering; the influence of party and 

campaign finance on elected judges; the de-regulation of campaign finance after 

Citizens United v. FEC, 558 U.S. 310 (2010); and so-called “sore loser laws” that 

restrict losing primary candidates from running in the general election. Professor 

Kang received his BA and JD from the University of Chicago, where he served as 

technical editor of the Law Review and graduated Order of the Coif. He also 

received a PhD in government from Harvard University and an MA from the 

University of Illinois. At the University of Chicago, Professor Kang studied 

constitutional law with then-lecturer Barack Obama, and, after law school, he 

clerked for Judge Kanne of the U.S. Court of Appeals for the Seventh Circuit.

Jennifer Nou is Professor of Law at the University of Chicago Law School. 

Professor Nou’s main research interests are in administrative law, executive branch 

dynamics, election administration, and constitutional separation-of-powers. Prior 

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to joining the faculty, she was a Public Law Fellow at the Law School and also 

worked as a policy analyst and special assistant at the Office of Information and 

Regulatory Affairs. She is a graduate of Yale College and Yale Law School, and 

received an MPhil in Politics from Oxford University as a Marshall Scholar. After 

law school, she was a law clerk to Judge Richard Posner of the U.S. Court of 

Appeals for the Seventh Circuit and then to Justice Stephen Breyer of the U.S.

Supreme Court. She is currently a public member of the Administrative 

Conference of the United States.

Bertrall Ross is Professor of Law at the University of Virginia School of Law. He

teaches and writes in the areas of constitutional law, constitutional theory, election 

law, administrative law, and statutory interpretation. His research is driven by a 

concern about democratic responsiveness and accountability, as well as the 

inclusion of marginalized communities in administrative and political processes. 

His past scholarship has been published in several books and journals. Prior to 

joining the Virginia faculty, he taught at the University of California, Berkeley 

School of Law. Professor Ross is currently serving on the Administrative 

Conference of the United States and the Presidential Commission on the Supreme 

Court of the United States. He earned his undergraduate degree in international 

affairs and history from the University of Colorado, Boulder; his graduate degrees 

from the London School of Economics and Princeton University’s School of 

Public and International Affairs; and his law degree from Yale Law School. After 

law school, he clerked for Judge Dorothy Nelson of the U.S. Court of Appeals for 

the Ninth Circuit and Judge Myron Thompson of the U.S. District Court for the 

Middle District of Alabama.

Douglas Spencer is Professor of Law and Public Policy at the University of 

Connecticut. His research interests include the empirical study of public law, 

campaign finance, voting rights, and election administration. He teaches 

Constitutional Law, Election Law, and the Introduction to Public Policy course in 

the Master of Public Administration program. Professor Spencer’s research has 

been published in various leading legal journals and featured in many media 

outlets. Professor Spencer was a clerk at the Lawyers’ Committee for Civil Rights 

in San Francisco and worked at the U.S. Department of the Interior. Professor 

Spencer holds a Ph.D. in Jurisprudence and Social Policy from the University of 

California, Berkeley, a J.D. from Berkeley Law, an M.P.P. from U.C. Berkeley’s 

Goldman School of Public Policy, and a B.A. degree in Philosophy from Columbia 

University.

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Nicholas Stephanopoulos is Kirkland & Ellis Professor of Law at Harvard Law 

School. His research and teaching interests include election law, constitutional 

law, administrative law, legislation, and comparative law. His work is particularly 

focused on the intersection of democratic theory, empirical political science, and 

the American electoral system. His academic articles have appeared in leading 

legal journals, and he has also written for a number of popular publications. He 

has been involved in several litigation efforts as well, including two partisan 

gerrymandering cases based on his scholarship and decided by the Supreme Court. 

Before joining the Harvard Law School faculty, Professor Stephanopoulos was a 

Professor of Law at the University of Chicago Law School. Before entering 

private practice, he clerked for Judge Raymond C. Fisher of the U.S. Court of 

Appeals for the Ninth Circuit. A graduate of Yale Law School, Professor 

Stephanopoulos also holds an M.Phil. in European Studies from Cambridge 

University and an A.B. in Government from Harvard College.

Ciara Torres-Spelliscy is Professor of Law at Stetson University College of Law. 

She teaches courses in Election Law, Corporate Governance, Business Entities, 

and Constitutional Law. Prior to joining Stetson’s faculty, Professor TorresSpelliscy was counsel in the Democracy Program of the Brennan Center for Justice 

at NYU School of Law where she provided guidance on the issues of money in 

politics and the judiciary to state and federal lawmakers. She also served as an 

associate at Arnold & Porter LLP and a staffer for Senator Richard Durbin. 

Professor Torres-Spelliscy has testified before Congress and state and local 

legislative bodies as an expert on campaign finance reform. She has also helped 

draft legislation and Supreme Court briefs. She is the editor of the 2010 edition of 

the Brennan Center’s campaign finance treatise, “Writing Reform: A Guide to 

Drafting State and Local Campaign Finance Laws.” She researches and speaks 

publicly on campaign finance law as well as judicial selection. She has spoken at 

symposia and other events at 49 universities around the nation. In 2016, she spoke 

at the Federal Election Commission at a forum on dark money and foreign money 

in U.S. elections. Professor Torres-Spelliscy is a graduate of Harvard University 

and the Columbia School of Law.

Abby K. Wood is Professor of Law, Political Science, and Public Policy at the 

University of Southern California. She has also taught at the University of 

Chicago. Her main research interests are in campaign finance, administrative law, 

and government transparency. Her research has been published or is forthcoming 

at leading journals in law, political science, and public administration. Prior to 

joining the faculty, Professor Wood worked as a law clerk for Judge John T. 

Noonan, Jr. of the U.S. Court of Appeals for the Ninth Circuit. She currently 

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serves as a commissioner on California’s Fair Political Practices Commission, as 

well as the Commission’s Digital Transparency Task Force. From 2015 to 2018,

Professor Wood served on the Federal Bipartisan Campaign Finance Task Force. 

A graduate of Harvard Law School, Professor Wood also holds a Ph.D. in Political 

Science from the University of California, Berkeley, and an M.A.L.D. from the 

Fletcher School of Law and Diplomacy. She joins the brief in her personal 

capacity.

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