ORAL ARGUMENT NOT YET SCHEDULED

No. 17-5049

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CENTER FOR RESPONSIBILITY AND ETHICS IN 

WASHINGTON and 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-cv-02038-RC

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL CENTER AND 

DĒMOS IN SUPPORT OF APPELLANTS

Brenda Wright

DĒMOS

1340 Centre Street, Suite 209

Newton, MA 02459

Allie Boldt

DĒMOS

740 6th Street NW, 2nd Floor

Washington, DC 20001

Paul M. Smith*

 (D.C. Bar No. 358870)

Tara Malloy

Megan P. McAllen

Noah B. Lindell

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

*Counsel of Record

Counsel for Amici Curiae

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CERTIFICATE AS TO PARTIES, RULINGS & RELATED CASES

(A) Parties and Amici. Plaintiffs Center for Responsibility and 

Ethics in Washington (“CREW”) and Melanie Sloan were the plaintiffs

in the district court, and the Federal Election Commission (“FEC”) was 

the defendant in the district court. No person filed as amicus curiae 

before the district court.

(B) Rulings Under Review. The district court issued an order 

and accompanying memorandum opinion on February 22, 2017, 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 2017 U.S. Dist. LEXIS 24253.

(C) Related Cases. Amici curiae are aware of no “related cases” 

as defined in D.C. Cir. R. 28(a)(1)(C).

/s/ Paul M. Smith

Paul M. Smith

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

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CORPORATE DISCLOSURE STATEMENT OF AMICI CURIAE 

CAMPAIGN LEGAL CENTER AND DĒMOS

Pursuant to Federal Rule of Appellate Procedure 26.1, amici

curiae Campaign Legal Center and Dēmos make the following 

disclosures regarding their corporate status:

Campaign Legal Center (“CLC”) is a nonprofit, nonpartisan 

corporation working in the areas of campaign finance reform, voting 

rights, and media law. CLC has no parent corporation and no publicly 

held corporation has any form of ownership interest in CLC.

Dēmos is a nonprofit, nonpartisan corporation working in the 

areas of campaign finance reform, voting rights, economic opportunity, 

and racial equity. Dēmos has no parent corporation and no publicly held 

corporation has any form of ownership interest in Dēmos.

/s/ Paul M. Smith

Paul M. Smith

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS & RELATED CASES.......ii

TABLE OF CONTENTS ..........................................................................iv

TABLE OF AUTHORITIES.....................................................................vi

STATEMENT OF INTEREST ..................................................................1

INTRODUCTION & SUMMARY OF ARGUMENT.................................1

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

I. The Controlling Bloc Acted Contrary To Law By 

Manufacturing “Litigation Risk” Where It Does Not Exist ........4

A. Neither bloc receives deference when the FEC deadlocks 

on an enforcement action...............................................................5

i. Under Mead, interpretations issued during a deadlocked vote 

are not Chevron-worthy. ...................................................................6

ii. Prior cases failed to distinguish between deadlocked votes to 

proceed and affirmative votes to close case files. ..............................9

B. The controlling bloc’s interpretation of the statute of 

limitations is not entitled to deference. ....................................14

C. The statute-of-limitations provision unambiguously 

forecloses the controlling bloc’s arguments.............................16

D. There is no reasonable barrier to seeking disclosure from 

CHGO. ...............................................................................................20

i. CHGO is not beyond the FEC’s reach. .......................................21

ii. CHGO is clearly a political committee. .....................................22

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II. This Court Should Decide the Legal Issues in this Case.....26

III. This Case Is Part of a Long Pattern of Deliberate FEC 

Delays and Deadlocks ......................................................................29

CONCLUSION ........................................................................................35

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TABLE OF AUTHORITIES

*Cases and authorities chiefly relied upon are marked with an asterisk.

CASES

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc)...........34

AKM LLC v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012)....................16

Anna Jacques Hosp. v. Burwell, 797 F.3d 1155 (D.C. Cir. 2015).............7

Ass’n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) .....34

Bamidele v. INS, 99 F.3d 557(3d Cir. 1996)...........................................15

BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006) ....................................18

Christensen v. Harris County, 529 U.S. 576 (2000)..................................7

Citizens United v. FEC, 558 U.S. 310 (2010)......................................1, 24

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)....................6, 8, 9

CREW v. FEC, 209 F.Supp.3d 77 (D.D.C. 2016), appeal dismissed, No. 

16-5343 (D.C. Cir. Apr. 4, 2017).....................................................13, 24

Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956)..........................................17

FEC v. Christian Coal., 965 F. Supp. 66 (D.D.C. 1997)....................17, 18

FEC v. Nat’l Republican Senatorial Comm., 877 F. Supp. 15 (D.D.C. 

1995)......................................................................................................17

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 

1992)..................................................................................................6, 10

FEC v. Nat’l Rifle Ass’n, 254 F.3d 173 (D.C. Cir. 2001)...........................7

FEC v. Williams, 104 F.3d 237 (9th Cir. 1996) ......................................18

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vii

Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 

1127 (D.C. Cir. 2014)............................................................................12

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ......................................20

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ................. 7, 8, 9, 11, 13

Intermountain Ins. Serv. of Vail v. CIR, 650 F.3d 691 (D.C. Cir. 2011), 

vacated, 132 S. Ct. 2120 (2012)............................................................15

Johnson v. SEC, 87 F.3d 484 (D.C. Cir. 1996)........................................16

Kaufman v. Perez, 745 F.3d 521 (D.C. Cir. 2014)...................................15

King v. Burwell, 135 S. Ct. 2480 (2015)..................................................15

*Kokesh v. SEC, 137 S. Ct. 1635 (2017)............................................16, 17

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).................9

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 

(2011) ..................................................................................................6, 7

McConnell v. FEC, 540 U.S. 93 (2003)......................................................1

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

463 U.S. 29 (1983) ................................................................................19

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)..................................5, 26

Pearson v. Callahan, 555 U.S. 223 (2009) ..............................................28

Perry v. Merit Sys. Prot. Bd., 829 F.3d 760 (D.C. Cir. 2016), rev’d, 2017 

WL 2694702 (U.S. June 23, 2017)........................................................14

Proffitt v. FDIC, 200 F.3d 855 (D.C. Cir. 2000)......................................15

Pub. Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016)...............9, 29

Randall v. Sorrell, 548 U.S. 230 (2006)....................................................1

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*Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010), abrogated in part by 

Kokesh v. SEC, 137 S. Ct. 1635 (2017)...........................................16, 18

SEC v. Kokesh, 834 F.3d 1158 (10th Cir. 2016)......................................17

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc)...........24

Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C. Cir. 2007)....................9

U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) .................15

United States v. Banks, 115 F.3d 916 (11th Cir. 1997) ..........................19

*United States v. Mead Corp., 533 U.S. 218 (2001)...................... 2, 6, 7, 8

United States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998) .............19

STATUTES

28 U.S.C. § 2462 ................................................................................15, 16

52 U.S.C. § 30103 ....................................................................................21

52 U.S.C. § 30104 ..............................................................................17, 21

*52 U.S.C. § 30106 ..............................................................................8, 10

*52 U.S.C. § 30109 .................................................................. 8, 10, 27, 29

52 U.S.C. § 30111 ....................................................................................17

REGULATIONS

11 C.F.R. § 100.111 .................................................................................23

MISCELLANEOUS

Certification, MUR 6661 (Robert E. Murray et al.) (Apr. 14, 2016), 

http://eqs.fec.gov/eqsdocsMUR/16044394606.pdf ................................11

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Comm’r Steven T. Walther, Motion to Set Priorities and Scheduling on 

Pending Enforcement Matters Awaiting Reason-to-Believe 

Consideration (July 14, 2015), https://www.fec.gov/resources/updates/

agendas/2015/mtgdoc_15-41-a.pdf. ......................................................30

Eric Lichtblau, F.E.C. Can’t Curb 2016 Election Abuse, Commission 

Chief Says, N.Y. Times (May 2, 2015), https://www.nytimes.com/2015/

05/03/us/politics/fec-cant-curb-2016-election-abuse-commission-chiefsays.html...............................................................................................33

FEC Reply Supp. Mot. to Dismiss, CREW v. FEC, 209 F.Supp.3d 77 

(D.D.C. 2016) (No. 1:14-cv-01419-CRC), appeal dismissed, No. 16-5343 

(D.C. Cir. Apr. 4, 2017).........................................................................13

FEC, Archived Captions of Entire Meeting (May 21, 2015), 

https://www.fec.gov/resources/updates/agendas/2015/transcripts/Open

_Meeting_Captions_2015_05_21.txt ....................................................33

Jack M. Beermann, Qualified Immunity and Constitutional Avoidance, 

2009 Sup. Ct. Rev. 139 .........................................................................28

Marian Wang, FEC Deadlocks (Again) on Guidance for Big-Money 

Super PACs, ProPublica (Dec. 2, 2011), 

https://www.propublica.org/article/deadlocks-again-on-guidance-forbig-money-super-pacs/single ................................................................33

Matea Gold, Trump’s Deal with the RNC Shows How Big Money Is 

Flowing back to the Parties, Wash. Post (May 18, 2016), 

https://www.washingtonpost.com/politics/trumps-deal-with-the-rncshows-how-big-money-is-flowing-back-to-the-parties/2016/05/18/

4d84e14a-1d11-11e6-b6e0-c53b7ef63b45_story.html..........................34

Michael M. Franz, The Devil We Know? Evaluating the Federal Election 

Commission as Enforcer, 8 Election L.J. 167 (2009) ...........................31

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Nancy Cook, He’s Going to Be An Enabler, Politico (Feb. 21, 2017), 

http://www.politico.com/magazine/story/2017/02/trump-mcgahn-whitehouse-lawyer-214801............................................................................29

Off. of Inspector Gen’l, Fed. Election Comm’n, Root Causes of Low 

Employee Morale Study (July 2016), https://transition.fec.gov/fecig ..30

Office of Comm’r Ann M. Ravel, Dysfunction and Deadlock: The 

Enforcement Crisis at the Federal Election Commission Reveals the 

Unlikelihood of Draining the Swamp (Feb. 2017), 

https://assets.documentcloud.org/documents/3474279/Ravelreportfeb2017.pdf................................................................................ 11, 32, 34

Paul S. Ryan, Opinion, Republican FEC Commissioner Admittedly 

Blocking Complaints Against Republicans, The Hill (June 4, 2015), 

http://thehill.com/blogs/congress-blog/campaign/243828-republicanfec-commissioner-admittedly-blocking-complaints..............................33

Policy Statement on En Banc Endorsement of Panel Decisions (Jan. 17, 

1996), https://www.cadc.uscourts.gov/internet/home.nsf/Content/

VL%20-%20RPP%20-%20Irons%Footnote/$FILE/IRONS.PDF..........14

Political Committee Status, 72 Fed. Reg. 5595-02 (Feb. 7, 2007) (Suppl. 

Explanation & Justification)................................................................25

Pub. Citizen, Roiled in Partisan Deadlock, Federal Election Commission 

Is Failing (Apr. 2015), https://www.citizen.org/sites/default/files/fecdeadlock-update-april-2015.pdf. ..........................................................31

R. Sam Garrett, Cong. Research Serv., R44319, The Federal Election 

Commission: Enforcement Process and Selected Issues for Congress

(Dec. 22, 2015), https://fas.org/sgp/crs/misc/R44319.pdf.......... 30, 31, 32

Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005)...........................................22

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Statement of Vice Chair Ravel and Commissioner Weintraub on 

Judicial Review of Deadlocked Commission Votes, MUR 6396 

(Crossroads GPS) (June 17, 2014), http://eqs.fec.gov/eqsdocsMUR/

14044354045.pdf......................................................................... 9, 10, 11

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GLOSSARY OF ABBREVIATIONS

CHGO Commission on Hope, Growth, and 

Opportunity

CREW Center for Responsibility and 

Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

IRS Internal Revenue Service

JA Joint Appendix

MUR Matter Under Review

OGC Office of General Counsel of the 

FEC

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STATEMENT OF INTEREST1

Amicus curiae Campaign Legal Center is a nonprofit, nonpartisan

organization that works to strengthen the laws governing campaign 

finance. Amicus curiae Dēmos is a nonprofit, nonpartisan organization 

working for an America where everyone has an equal say in our 

democracy and an equal chance in our economy. Amici engage in 

litigation, research, and advocacy to support money-in-politics reforms.

Each has participated as amici or counsel in numerous campaign 

finance cases, including Citizens United v. FEC, 558 U.S. 310 (2010),

Randall v. Sorrell, 548 U.S. 230 (2006), and McConnell v. FEC, 540 U.S. 

93 (2003). Amici have a demonstrated interest in the issues raised here.

All parties have consented to amici’s participation.

INTRODUCTION & SUMMARY OF ARGUMENT

The Commission on Hope, Growth, and Opportunity (“CHGO”) is 

what one might call a quantum committee: it popped into existence, 

quickly spent millions on campaign ads, and disappeared. The record 

shows that CHGO was required by law to register as a political 

 

1 No party or party’s counsel authored any part of this brief, and no 

person, other than amici, contributed money to fund its preparation or 

submission.

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committee and to disclose its spending. But its founders failed to do 

either. Instead, they fraudulently dissolved the organization to evade 

FEC enforcement. Rather than making CHGO abide by the law, the 

FEC deadlocked until three Commissioners declared that the statute of 

limitations had run out.

In upholding their decision not to act, the district court did not ask 

whether the Commissioners were actually right about their claims. 

(They were not.) Instead, the court took at face value the FEC’s post hoc 

litigation position that the law was too uncertain to go forward. This 

claim, too, is wrong––and at odds with what the Commissioners 

themselves said. This Court should reassert the proper standard of 

review for FEC suits, and make the Commissioners reconsider under a 

correct understanding of the laws they purported to apply.

First, the Commissioners’ refusal to act against CHGO was

contrary to law. The district court erred in deferring to the legal 

interpretations of three Commissioners, when FECA requires four votes 

to make decisions with the force of law. This Court’s prior decisions 

granting Chevron deference to three-Commissioner blocs came before 

the revolution United States v. Mead Corp., 533 U.S. 218 (2001), worked 

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in administrative law, and conflated three-three deadlocks with later, 

unconnected votes to close case files. Even if Chevron deference were 

still generally appropriate, this Court should not defer to the

Commissioners’ interpretation of the statute of limitations, regarding 

which the FEC has no expertise or enforcement power.

Whatever the level of deference, however, the Commissioners 

were wrong to claim that the statute of limitations had passed, because 

the relevant statute unambiguously does not apply to orders requiring 

disclosure and registration. The Commissioners also acted contrary to 

law in arguing that they could not pursue a case against a defunct 

organization, because they could have obtained the relevant documents 

from CHGO’s former agents; and that CHGO may not have been a 

political committee, because any determination compliant with FECA 

would have found CHGO to be such a committee. Given these incorrect 

interpretations, the Commissioners acted contrary to law.

Second, the district court erred by abandoning its duty to resolve 

the interpretive issues before it. Instead, the court found that the 

Commissioners rationally concluded that the law was unclear. By 

moving immediately to the prosecutorial discretion inquiry, the court 

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failed to determine––as it must under this Court’s precedents––whether 

the statutory readings that the Commissioners proffered were 

permissible. The district court’s mode of analysis would also prevent 

groups like CREW from ever bringing citizen suits, and would allow 

recalcitrant Commissioners to use the same alleged legal uncertainties 

to avoid enforcement while never actually resolving those uncertainties. 

Finally, this Court should look at this case in its broader context. 

The recent history of the FEC is one of crippling deadlock and delay. 

Since 2008, a three-Commissioner bloc has voted in lockstep to thwart 

enforcement of campaign finance law. Complaints languish for years, 

and deadlocked votes prevent the Commission from taking action even 

in cases like this one, where an investigation reveals compelling 

evidence of a violation. The delay-and-deadlock strategy seen here is

part of a larger pattern of abuse. This Court should not reward the FEC 

for refusing to enforce the laws as Congress wrote them.

ARGUMENT

I. The Controlling Bloc Acted Contrary To Law By

Manufacturing “Litigation Risk” Where It Does Not Exist

The district court erroneously granted summary judgment to the 

FEC. The no-action bloc acted “contrary to law” in refusing to address

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CHGO’s disclosure and registration violations. Orloski v. FEC, 795 F.2d 

156, 161 (D.C. Cir. 1986). FEC decisions are reversible if: “(1) the FEC 

dismissed the complaint as a result of an impermissible interpretation 

of [the law], . . . or (2) if the FEC’s dismissal of the complaint, under a 

permissible interpretation of the statute, was arbitrary or capricious, or 

an abuse of discretion.” Id. The no-action Commissioners impermissibly 

interpreted both the applicable statute of limitations and FECA’s

political committee and enforcement provisions. Neither deference nor 

prosecutorial discretion excuses this refusal to follow the law. 

A. Neither bloc receives deference when the FEC deadlocks 

on an enforcement action.

The district court committed its first error by deferring to the legal 

interpretations of the three Commissioners who blocked action against 

CHGO. JA876. That the court below committed this error is 

understandable: it was relying on this Court’s precedents. Those 

precedents, however, are out of step with current doctrine. This Court

should clarify that it will not defer to deadlock.

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i. Under Mead, interpretations issued during a deadlocked vote 

are not Chevron-worthy.

In finding that the FEC permissibly refused to pursue a case 

against CHGO, the district court stated that the reasoning of a threeCommissioner bloc receives Chevron deference. JA876; see Common 

Cause v. FEC, 842 F.2d 436, 439-40 (D.C. Cir. 1988). This Court has 

deferred to no-action Commissioners because, it has said, “those 

Commissioners constitute a controlling group for purposes of the 

decision,” and “their rationale necessarily states the agency’s reasons 

for acting as it did.” FEC v. Nat’l Republican Senatorial Comm., 966 

F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”).

However, the no-action Commissioners’ interpretations in this 

case lack the force of law and cannot receive Chevron deference. In 

Mead, the Supreme Court limited Chevron deference to circumstances 

where “Congress delegated authority to the agency generally to make 

rules carrying the force of law,” and “the agency interpretation claiming 

deference was promulgated in the exercise of that authority.” 533 U.S. 

at 226-27. Since Mead, both the Supreme Court and this Court have

confined Chevron deference to agency legal interpretations carrying the 

force of law. See, e.g., Mayo Found. for Med. Educ. & Research v. United 

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States, 562 U.S. 44, 57 (2011); Anna Jacques Hosp. v. Burwell, 797 F.3d 

1155, 1166 (D.C. Cir. 2015).

It has been seventeen years since this Court last deferred to a 

legal position taken by no-action Commissioners in a three-three 

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

Case was decided before Mead, which held that agency legal 

interpretations lacking the force of law are “beyond the Chevron pale.” 

533 U.S. at 234. Sealed Case considered only whether FEC probable 

cause determinations had some “legal effect,” not whether such 

determinations, when arrived at by three-three deadlocks, generated

legal interpretations with the “force of law.” See 223 F.3d at 780.2 By 

contrast, this Court appropriately determined that FEC advisory 

opinions are entitled to Chevron deference under Mead because “they 

have binding legal effect on the Commission.” FEC v. Nat’l Rifle Ass’n, 

254 F.3d 173, 185 (D.C. Cir. 2001).

 

2 Sealed Case came after Christensen v. Harris County, 529 U.S. 

576 (2000), which took a step toward Mead’s ultimate holding. But it 

was Mead that limited deference to agency interpretations promulgated 

in the exercise of authority to announce rules with the force of law. 533 

U.S. at 226-27; see Mayo, 562 U.S. at 56-58.

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It is undisputed that in crafting FECA, “Congress delegated 

authority” to the FEC to “make decisions having the force of law,” 

satisfying the first prong of the Mead inquiry. 533 U.S. at 226-27; 

Sealed Case, 223 F.3d at 780. However, statements from a threeCommissioner bloc fail Mead’s second prong, which requires the 

relevant interpretation to be “promulgated in the exercise of that 

authority.” Mead, 533 U.S. at 227 (emphasis added). This is because 

Congress only grants actions by four Commissioners the force of law. 52 

U.S.C. § 30106(c). Unlike advisory opinions, deadlocks do not meet the 

statutorily required four-vote threshold for agency decisionmaking. 52 

U.S.C. § 30109(a). This Court noted as much in Common Cause, when it 

pointed out that a statement of reasons by a three-judge bloc “would not 

be binding legal precedent or authority for future cases.” 842 F.2d at 

449 n.32. 

The fact that Congress only grants actions by four Commissioners 

the force of law is crucial to Mead’s deference inquiry, because “the 

ultimate question is whether Congress would have intended, and 

expected, courts to treat an agency’s . . . action as within, or outside, its 

delegation to the agency of ‘gap-filling’ authority.” Long Island Care at 

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Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007). And, as this Court has

acknowledged, “[t]o ignore [the four-vote] requirement would be to 

undermine the carefully balanced bipartisan structure which Congress 

has erected.” Common Cause, 842 F.2d at 449 n.32.

Courts, therefore, may not defer to one side of an evenly divided 

FEC dispute. Congress did not intend for––and FECA does not 

authorize––either bloc to make law without a fourth vote. Cf. Sprint 

Nextel Corp. v. FCC, 508 F.3d 1129, 1131-32 (D.C. Cir. 2007).

ii. Prior cases failed to distinguish between deadlocked votes to 

proceed and affirmative votes to close case files.

This Court’s decisions deferring to the views of no-action 

Commissioners also conflate deadlocked substantive enforcement votes 

with later, “ministerial” votes to close cases.3 This error, in turn, stems 

from a mistaken belief that a deadlock automatically ends FEC 

involvement in a case, and therefore has legal effect. See Pub. Citizen, 

Inc. v. FERC, 839 F.3d 1165, 1170 (D.C. Cir. 2016) (FECA “compels 

FEC to dismiss complaints in deadlock situations”); Sealed Case, 223 

 

3 Statement of Vice Chair Ravel and Commissioner Weintraub on 

Judicial Review of Deadlocked Commission Votes 4 n.26, MUR 6396 

(Crossroads GPS) (June 17, 2014), http://eqs.fec.gov/eqsdocsMUR/

14044354045.pdf (“Ravel & Weintraub Statement”).

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F.3d at 780 (“[T]he no-action decision here . . . precludes further 

enforcement.”); NRSC, 966 F.2d at 1476 (deference applies “when the 

Commission deadlocks 3-3 and so dismisses a complaint”). Even if this 

were true, the rationale behind the deadlock would not trigger 

deference under Mead. See supra Part I.A.i. Regardless, neither the text 

of FECA nor FEC procedure gives deadlocks any legal effect.

FECA itself distinguishes between enforcement votes and votes on 

whether to dismiss a case. See 52 U.S.C. § 30109(a)(1). The statute

places the procedures for a dismissal vote in a different subsection from

those for other enforcement votes. Id. § 30109(a)(1)-(6). Moreover, like 

votes to take enforcement actions, dismissing a case requires a 

majority––four members––of the Commission. Id. § 30106(c). Therefore, 

under FECA, “[a] 3-3 deadlocked vote on an enforcement matter results 

in no action whatsoever.” Ravel & Weintraub Statement at 4 n.26.

The belief that deadlocked votes dismiss cases is also wrong as a 

matter of FEC practice. Because it takes four votes either to investigate

or to dismiss a case, the FEC does not treat a deadlock on the former as 

the equivalent of a vote for the latter. Instead, under “procedural 

Commission rules,” matters resulting in deadlocked votes are 

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“automatically . . . placed on the next Executive Session agenda,” to be 

voted on again. Id. Thus, while 37.5% of MURs closed in 2016 saw at 

least one deadlocked vote, only 12.5% were closed because of deadlock.4

Rather than operating like a not-guilty verdict, as this Court has 

previously assumed, see Sealed Case, 223 F.3d at 780, a deadlocked vote 

operates like a hung jury, allowing the pro-enforcement Commissioners

to try again. Commissioners often hold multiple votes to proceed on 

different combinations of offenses in the same case, to see if any garners 

a majority. See, e.g., Certification, MUR 6661 (Robert E. Murray et al.) 

(Apr. 14, 2016), http://eqs.fec.gov/eqsdocsMUR/16044394606.pdf; Ravel

Report at 14 (ten votes over four years on set of five complaints).

Commissioners may also deadlock on an enforcement vote, come to a 

compromise, and later vote to proceed while meting out lesser 

punishments. Ravel Report at 10.

Alternatively, Commissioners may deadlock and then ask the 

Office of General Counsel (“OGC”) to investigate the allegations further,

 

4 Office of Comm’r Ann M. Ravel, Dysfunction and Deadlock: The 

Enforcement Crisis at the Federal Election Commission Reveals the 

Unlikelihood of Draining the Swamp 10 (Feb. 2017), 

https://assets.documentcloud.org/documents/3474279/Ravelreportfeb2017.pdf (“Ravel Report”).

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12

in anticipation of voting again once the investigation ends. That is what 

happened here. The Commissioners voted four times on three occasions

over the course of a year. JA476-77, 871-73. They deadlocked twice on 

each of the two claims against CHGO, in different combinations of 

votes––but instructed OGC to keep investigating after all but the final 

vote. Id. Far from precluding further action, the deadlocks provided the 

impetus for further scrutiny.

The fact that deadlocks resolve no legal issues dooms any claim for 

Chevron deference. “[T]he expressly non-precedential nature” of a 

decision “conclusively confirms” that it is not an exercise of authority “to 

make rules carrying the force of law.” Fogo de Chao (Holdings) Inc. v. 

U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1137 (D.C. Cir. 2014). A 

determination whose “binding character as a ruling stops short of third 

parties” thus does not “set a rule of law” that merits deference under 

Mead. Id. Because a deadlocked FEC vote does not set a precedent even 

for the accused party––much less a precedent that applies to third 

parties––this Court was mistaken in deferring to three-Commissioner 

blocs. See, e.g., Sealed Case, 223 F.3d at 780.

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13

Indeed, the FEC itself has admitted that Commission deadlocks 

cannot establish interpretations with the force of law. In a recent court 

filing, the FEC stated:

[L]egal analyses articulated by a group of three FEC 

Commissioners in such a statement of reasons, or anywhere 

else, could not amount to an agency policy . . . .[T]hese 

required statements from declining-to-go-ahead 

Commissioners in three-three dismissals are “not law” 

and . . . “would not be binding legal precedent or authority for 

future cases.” Common Cause, 842 F.2d [at 449 & n.32]. The 

statute explicitly requires that decisions of the Commission 

“with respect to the exercise of its duties and powers under 

the provisions of th[e] Act shall be made by a majority vote of 

the members of the Commission” . . . .

FEC Reply Supp. Mot. to Dismiss 4, CREW v. FEC, 209 F.Supp.3d 77 

(D.D.C. 2016) (No. 1:14-cv-01419-CRC) (emphases in original), appeal 

dismissed, No. 16-5343 (D.C. Cir. Apr. 4, 2017). The FEC’s admissions, 

along with this Court’s limitation of Mead to precedential rulings, 

confirm that the no-action Commissioners’ interpretations lack the 

“force of law.”

A panel of this Court may put aside prior circuit decisions if an 

“intervening Supreme Court decision ‘effectively overrules’ ” them, or 

“in fact turn[s] out to be incompatible with” them. Perry v. Merit Sys. 

Prot. Bd., 829 F.3d 760, 764, 766 (D.C. Cir. 2016) (citation omitted), 

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14

rev’d on other grounds, 2017 WL 2694702 (U.S. June 23, 2017). Given 

Mead’s narrowing of Chevron’s scope, this Court can––and should––

clarify that interpretations made by three-Commissioner blocs are 

unworthy of Chevron deference.5

B. The controlling bloc’s interpretation of the statute of 

limitations is not entitled to deference.

Even if deadlock deference were appropriate in some cases, it 

would not apply here. The no-action Commissioners argued primarily

that the statute of limitations on any disclosure claims had run, so the 

FEC would not likely succeed in any enforcement action. JA768-69. But

the district court should not have deferred to this misguided argument, 

because it falls outside the Chevron framework.

As a general matter, “[i]t is an open question in this Circuit 

whether we afford Chevron deference to agency interpretations of 

statutes of limitations.” Kaufman v. Perez, 745 F.3d 521, 527 (D.C. Cir. 

2014). Here, however, it would be inappropriate to defer. To begin with, 

“a statute of limitations is a general legal concept with which the 

 

5 Alternatively, the panel may seek an endorsement to overrule 

from the en banc Court. U.S. Court of Appeals for the D.C. Circuit, 

Policy Statement on En Banc Endorsement of Panel Decisions 1-2 (Jan. 

17, 1996), https://www.cadc.uscourts.gov/internet/home.nsf/Content/

VL%20-%20RPP%20-%20Irons%20Footnote/$FILE/IRONS.PDF.

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15

judiciary can deal at least as competently as can an executive agency.” 

Bamidele v. INS, 99 F.3d 557, 562 (3d Cir. 1996). The FEC cannot claim 

deference for provisions about which it has no specialized knowledge. 

See King v. Burwell, 135 S. Ct. 2480, 2489 (2015); U.S. Dep’t of Navy v. 

FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012).

Chevron deference may be appropriate when a statute of 

limitations is “embedded” in a complex regulatory scheme over which 

an agency has authority and expertise. Intermountain Ins. Serv. of Vail 

v. CIR, 650 F.3d 691, 707 (D.C. Cir. 2011), vacated on other grounds, 

132 S. Ct. 2120 (2012). But FECA does not contain a statute of 

limitations provision. Instead, the FEC relies on 28 U.S.C. § 2462, a

general time limit on certain government actions. One agency cannot 

command Chevron deference for interpretations of a statute enforced by 

many. See Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000). This 

Court has held that, “because § 2462 is a statute of general applicability 

rather than one whose primary administration has been delegated to 

[one agency], we interpret it de novo.” Id. It should do so here as well.

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16

C. The statute-of-limitations provision unambiguously 

forecloses the controlling bloc’s arguments.

The controlling bloc’s interpretation of the statute of limitations 

would fail even under Chevron. Disclosure and political committee 

registration are equitable remedies that lie outside the bounds of the 

statute of limitations. Therefore, the controlling bloc’s reading “cannot 

survive even with the aid of Chevron deference.” AKM LLC v. Sec’y of 

Labor, 675 F.3d 752, 754 (D.C. Cir. 2012).

The statute on which the Commissioners rely, section 2462, 

provides a five-year limitations period for suits seeking a “civil fine, 

penalty, or forfeiture.” As this Court has held, however, section 2462 

bars only punitive government actions. Johnson v. SEC, 87 F.3d 484, 

487-88 (D.C. Cir. 1996). It does not bar actions brought for “purely 

remedial and preventative” relief, such as cease-and-desist orders or 

other equitable relief to remedy violations. Riordan v. SEC, 627 F.3d 

1230, 1234 (D.C. Cir. 2010), abrogated in part by Kokesh v. SEC, 137 S.

Ct. 1635 (2017).

Even if it were a matter of first impression in this circuit, section

2462 clearly does not apply to enforcement actions seeking disclosure or 

registration. Unlike remedies that constitute penalties or forfeitures

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17

under section 2462, see Kokesh, 137 S. Ct. at 1642-43, orders requiring 

disclosure or political committee registration are not meant to punish or 

to deter others. They merely ensure the offending party’s compliance 

with the law. See Drath v. FTC, 239 F.2d 452, 454 (D.C. Cir. 1956); see 

also SEC v. Kokesh, 834 F.3d 1158, 1162 (10th Cir. 2016) (“We fail to 

see how an order to obey the law is a penalty.”), rev’d on other grounds, 

137 S. Ct. 1635. Moreover, equitable remedies under FECA are 

compensatory. Offenders must register with and disclose their spending 

to the FEC, which must in turn provide the statutorily required 

information to the ultimate victim of the offender’s failure to file: the 

public. See 52 U.S.C. §§ 30104(a)(11)(B); 30111(a)(4).

Thus, as the FEC itself has acknowledged, district courts in this 

circuit have held that the FEC may seek equitable relief for FECA 

violations even where penalties for those violations would be timebarred. FEC v. Christian Coal., 965 F. Supp. 66, 71-72 (D.D.C. 1997); 

FEC v. Nat’l Republican Senatorial Comm., 877 F. Supp. 15, 20-21 

(D.D.C. 1995). And the FEC has not contested that equitable relief, in 

the form of compliance orders, is available under FECA to remedy 

violations of registration and reporting requirements.

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Whether reviewing section 2642 de novo or under Chevron, the 

statute unambiguously allows suits seeking compliance with disclosure 

and registration laws. This is so whether the plaintiff is the government 

or a private actor in a FECA-authorized citizen suit. The FEC’s power 

to seek disclosure, however, is even more secure, as “statutes of 

limitations are construed narrowly against the government.” BP Am. 

Prod. Co. v. Burton, 549 U.S. 84, 95 (2006).

The FEC argues, however, that under the Ninth Circuit’s ruling in 

FEC v. Williams, 104 F.3d 237 (9th Cir. 1996), section 2462 may

preclude equitable relief for FECA violations whenever it would 

preclude penalties. JA233. Williams based its holding on the 

“concurrent remedy” doctrine, under which “equity will withhold its 

relief . . . where the applicable statute of limitations would bar the 

concurrent legal remedy.” 104 F.3d at 240.

But Williams is not the law of this Circuit. Its holding is squarely 

at odds with this Court’s decision in Riordan, holding that section 2462 

did not bar the SEC’s claims for remedial equitable relief––even though 

it would bar claims for civil penalties arising from the same violations. 

627 F.3d at 1234-35; see also Christian Coal., 965 F. Supp. at 71-72 

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19

(concurrent remedy doctrine inapplicable where equitable remedy 

is “independent of the legal relief available,” as under FECA). Williams

has also been widely criticized, and explicitly rejected by two circuits, 

because the concurrent remedy doctrine does not apply to government 

actions brought in its sovereign capacity. See United States v. Telluride 

Co., 146 F.3d 1241, 1248-49 (10th Cir. 1998); United States v. Banks,

115 F.3d 916, 919 (11th Cir. 1997). Williams does not limit the FEC.

The district court determined that it does not matter whether 

Williams is correct, since the circuit split itself creates “litigation risk.” 

JA880. But the no-action Commissioners never made this argument in 

their statement of reasons, JA766-69; it was asserted for the first time 

in the FEC’s summary judgment memorandum. JA233, 880. It is a core 

tenet of administrative law that “courts may not accept [] counsel’s post 

hoc rationalizations for agency action”; “an agency’s action must be 

upheld, if at all, on the basis articulated by the agency itself.” Motor 

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

29, 50 (1983). In contrast to the OGC’s later justification, the no-action 

Commissioners merely asserted that “the statute of limitations 

effectively foreclosed further enforcement efforts.” JA769. They did not 

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20

claim that legal uncertainty created litigation risk. Further, as noted 

above, their statement conflicts with this circuit’s precedent.

The no-action Commissioners have “made a clear error in 

judgment,” and read section 2462 in a manner that is “contrary to law.” 

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

Court should “set aside the FEC’s dismissal.” Id.6

D. There is no reasonable barrier to seeking disclosure

from CHGO.

As CREW correctly explains, (Br. 47-52), the no-action 

Commissioners’ other rationales for staying their hands do not pass any 

level of judicial review. The controlling bloc provided two justifications 

beyond the statute-of-limitations issue: first, that CHGO had become 

defunct; and second, that “novel questions” prevented them from 

deciding the political committee question. JA874-75. Neither of these 

views withstands the slightest scrutiny. Stripped of their erroneous 

assertion that the statute of limitations had expired, the no-action 

Commissioners had no reason to avoid enforcement.

 

6 Amici adopt CREW’s arguments (Br. 45-46) as to why the statute 

of limitations has not, in fact, run at all.

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21

i. CHGO is not beyond the FEC’s reach.

The controlling bloc claimed that enforcement would be a “pyrrhic 

exercise” in this case, because CHGO had “filed termination papers 

with the IRS in 2011” and “did not appear to [have] any agents” to bind 

it. JA769. This is incorrect. That an organization dissolved itself with 

the IRS does not preclude the FEC (or CREW) from seeking a remedy.

CHGO is, under any rational analysis, a political committee. See 

infra pp. 22-25. CHGO therefore has a duty to register and file regular

reports. 52 U.S.C. §§ 30103(a), 30104(a)(4). This prevents the statute of 

limitations from running, CREW Br. 45-46, but it also gives CHGO an 

ongoing obligation to file reports until it terminates with the FEC. Id.

§§ 30103(d), 30104(a)(4). Indeed, to hold otherwise would be to reward

intentional evasion of the law, providing immunity so long as 

organizations dissolve before the FEC can authorize enforcement.

Nor does CHGO’s defunct status bar equitable enforcement. For 

both political committee and event-driven reporting violations, the FEC 

or CREW can look to CHGO’s senior staff to seek the documents it 

needs––even if the FEC cannot bind CHGO itself or obtain monetary 

relief. See CREW Br. 47-48. Additionally, if need be, the FEC or CREW 

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22

could sue CHGO’s treasurer in his personal capacity for the relevant 

documents. Statement of Policy Regarding Treasurers Subject to 

Enforcement Proceedings, 70 Fed. Reg. 3, 5-6 (Jan. 3, 2005).

Moreover, the no-action Commissioners declined to move forward

on either claim in 2015 after having voted in favor of doing so on the 

disclosure claim in 2014. Yet the Commissioners knew at both of these

times that CHGO had allegedly dissolved without assets. See JA787

n.54. Their refusal to seek enforcement in 2015 on grounds that did not 

prevent them from voting to do so in 2014, with no further explanation, 

was arbitrary and capricious.

ii. CHGO is clearly a political committee.

Contrary to the no-action Commissioners’ claims, no “novel 

questions” prevented a finding of political committee status. As CREW 

rightly notes (Br. 48-52), CHGO is a political committee under even the 

most conservative estimate of what spending counts toward the majorpurpose test. Indeed, the Commissioners did not affirmatively dispute 

OGC’s determination that, even “under [their] own theory, CHGO spent 

61 percent of the over $4.8 million total it spent over its organizational 

lifetime on express advocacy.” JA763. They merely stated that they 

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23

were not “persuaded” by OGC’s analysis, without providing any of their 

own. JA769 n.16.

The only indication the no-action Commissioners gave as to why

they discounted OGC’s analysis was a footnote citing two of their prior 

statements of reasons. JA768 n.13. These statements said that only 

organizations spending a majority of their money on express advocacy 

are political committees. JA883.

Even under this rule, however, the no-action Commissioners could 

only dispute CHGO’s political committee status because the OGC 

counted “vendor commissions and other general payments to officers or 

directors or vendors.” JA769 n.16. According to the Commissioners, this 

raised “previously unconsidered questions of how to analyze such 

disbursements.” Id. FEC regulations clearly count such “payments” as 

qualifying expenditures when the vendors or officers are helping the 

group to influence an election. 11 C.F.R. § 100.111(a). But the no-action 

Commissioners refused to actually analyze CHGO’s expenditures, 

instead claiming––contrary to FEC regulations––that they did not 

know whether to count these payments. Because they inexplicably 

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24

rejected the OGC’s calculations, which were based on FECA’s clear 

terms, they have committed an abuse of discretion.

Moreover, the no-action Commissioners’ rule itself relied on 

impermissible interpretations of Supreme Court precedent: the 

Commissioners claimed that only express advocacy could 

constitutionally count toward political committee status, despite a raft 

of precedent saying the opposite. See CREW, 209 F. Supp. 3d at 89-93.

In fact, for the purposes of disclosure and registration requirements, no 

constitutional line separates express advocacy and electioneering 

communications. Citizens United, 558 U.S. at 369-71; SpeechNow.org v.

FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc). Given this clear 

precedent, nearly all of which piled up before the FEC voted in this 

case, the no-action Commissioners operated contrary to law in ignoring

it. Indeed, they have since developed a new framework for analyzing 

electioneering communications, acknowledging that their expressadvocacy-only position was untenable. CREW Br. Add. 12.

The no-action Commissioners’ rigid rule also violates duly 

promulgated FEC policy. “The FEC determines a group’s ‘major 

purpose’ on a case-by-case basis, taking into account the group’s 

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25

allocation of spending, public and private statements, and overall 

conduct.” JA865. The FEC’s adopted guidance, imbued with the force of 

law under Mead, requires such case-by-case scrutiny. Political 

Committee Status, 72 Fed. Reg. 5595-02, 5601 (Feb. 7, 2007) (Suppl. 

Explanation & Justification) (“2007 E&J”). Thus, while “an organization 

can satisfy the major purpose doctrine through sufficiently extensive 

spending,” the FEC must conduct a case-by-case, “fact-intensive” 

analysis. Id. This analysis looks at public statements, and “requires the 

Commission to conduct investigations . . . that may reach well beyond 

publicly available advertisements.” Id. (emphasis added).

By applying a blanket 50% express-advocacy rule, the no-action 

Commissioners tried to substitute their legally powerless views for the 

Chevron-worthy guidance of the full FEC. See supra Part I.A. Such a 

displacement is particularly damaging here, since the other factors the 

FEC must consider point overwhelmingly toward a finding of political 

committee status. See CREW Br. 49. Like each of their other misguided 

interpretations, the no-action Commissioners’ refusal to follow the 2007 

E&J is contrary to law, and must be set aside.

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II. This Court Should Decide the Legal Issues in this Case

The court below refused to resolve any of the supposed legal 

uncertainties the FEC raised, holding instead that these uncertainties 

themselves gave the Commissioners a “rational” basis not to act. JA879. 

This reasoning fuses two separate doctrines, prevents CREW from 

seeking relief, and could indefinitely bless FEC non-enforcement. This 

Court should not repeat the district court’s mistake.

First, the court below conflated FECA’s contrary-to-law standard 

with the doctrine of prosecutorial discretion. It stated that the FEC’s 

decisions “on how to best allocate its resources” should not be disturbed 

“unless the plaintiff shows that the FEC acted contrary to law by 

abusing its discretion.” JA877 (emphasis added). This leaves out the 

entire first prong of the contrary-to-law standard, which asks whether 

the Commission’s decision resulted from “an impermissible 

interpretation” of the law. Orloski, 795 F.2d at 161. The district court 

relied on the FEC’s post hoc position that its deadlock was all about

litigation risk, JA878-85, even though the Commissioners themselves 

based their decision primarily on incorrect interpretations of FECA and 

the statute of limitations, JA768-69. When Commissioners wrap legal 

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27

determinations in the fig leaf of prosecutorial discretion, judges cannot 

avert their eyes from what is underneath. They must decide if the 

underlying interpretations are wrong.

Second, CREW seeks a contrary-to-law finding so it can sue 

CHGO itself under FECA’s citizen-suit provision, 52 U.S.C. 

§ 30109(a)(8)(C). By refusing to decide between the parties’ competing 

views of how clear the relevant laws are, the district court has made it 

impossible for CREW to satisfy its first prerequisite to litigate. That

approach effectively nullifies FECA’s citizen-suit provision. CREW Br. 

22-38.

Third, and perhaps most dangerously, the district court has 

authorized the FEC to abandon its duties under FECA. Applying that

court’s misguided approach, recalcitrant Commissioners could refuse to 

enforce FECA––citing a court split or any whisper of legal doubt––and 

rely on the judiciary to grant them prosecutorial discretion. As long as 

Commissioners claimed that the state of the law is uncertain, the same 

doubt could be cited indefinitely to block future actions.

This tactic creates a vicious catch-22 for complainants. The first 

prong of the Orloski test, as well as FECA’s citizen-suit provision, often 

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28

requires a court to determine the meaning of statutory provisions. Yet, 

under the Commissioners’ argument, the very existence of legal 

uncertainty would suffice to end a case, without ever clarifying the 

underlying statute. Like a claim of qualified immunity, “[r]epeated 

successful interposition of the [litigation-risk] defense in similar cases 

could stunt the development of the law and allow government officials 

to violate [FECA] with impunity.” Jack M. Beermann, Qualified 

Immunity and Constitutional Avoidance, 2009 Sup. Ct. Rev. 139, 149. 

This is exactly what the district court validated. By refusing to decide 

whether the Commissioners’ legal interpretations were wrong, it gave 

them room to assert the same alleged ambiguities over (and over) again.

This Court ought not magnify the district court’s error. Rather, it 

should decide whether Commissioners impermissibly interpret the laws 

they apply before deciding whether their fear of litigation was 

reasonable. Cf. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

Definitive statutory interpretation is “especially valuable with respect 

to questions” like those here, which “do not frequently arise in cases in 

which a [litigation-risk] defense is unavailable.” Id. This Court should 

correct the lower court’s error and resolve the legal issues in this case.

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III. This Case Is Part of a Long Pattern of Deliberate FEC 

Delays and Deadlocks

This suit does not exist in isolation. Indeed, it is merely one 

example of a larger problem plaguing the FEC. While the agency is 

designed to deadlock in some difficult cases, Pub. Citizen, 839 F.3d at

1171, in recent years a three-Commissioner bloc has rendered the FEC 

increasingly dysfunctional, so that it often fails to apply the law. This 

Court should not treat three Commissioners’ blanket refusal to carry 

out their statutory mandate as a permissible exercise of discretion.

In 2008, a three-member bloc began “to vote in lockstep,” 

“essentially deadlocking the agency’s decision-making” and “[grinding] 

the FEC to a slow crawl.”7 Though FECA contemplates that a complaint 

will trigger a response within 120 days, 52 U.S.C. § 30109(a)(8)(A), 

recent enforcement times have dragged far beyond this. A 2015 analysis 

found “the FEC had ‘a backlog of 191 serious enforcement cases, with 

more than a quarter of these still unresolved more than two years 

 

7 Nancy Cook, He’s Going to Be An Enabler, Politico (Feb. 21, 2017), 

http://www.politico.com/magazine/story/2017/02/trump-mcgahn-whitehouse-lawyer-214801.

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30

after’” a complaint was filed.8 Another report by Commissioner Steven 

Walther identified 78 pending cases, of which 50% had been pending for 

more than a year, and 23% for more than two years; 29% had 

languished for at least a year after OGC submitted its report.9

Many of these delays stem from disagreements between the 

Commissioners, including over whether delays are even a problem.10 As 

an FEC staffer explained in a 2016 study on the agency’s low morale: “I 

spend lots of time working on projects that end up sitting for months or 

years because the Commission deadlocks or holds over discussion.”11

When Commissioners delay votes on enforcement actions, cases can 

 

8 R. Sam Garrett, Cong. Research Serv., R44319, The Federal 

Election Commission: Enforcement Process and Selected Issues for 

Congress 11 (Dec. 22, 2015), https://fas.org/sgp/crs/misc/R44319.pdf 

(“CRS Report”) (citation omitted).

9 Comm’r Steven T. Walther, Motion to Set Priorities and 

Scheduling on Pending Enforcement Matters Awaiting Reason-toBelieve Consideration 2-3, app. 1-6 (July 14, 2015), 

https://www.fec.gov/resources/updates/agendas/2015/mtgdoc_15-41-

a.pdf.

10 CRS Report at 11.

11 Off. of Inspector Gen’l, Fed. Election Comm’n, Root Causes of Low 

Employee Morale Study 4 (July 2016), https://transition.fec.gov/fecig/

documents/RootCausesofLowEmployeeMoraleStudy-FinalReport-OIG15-06.pdf.

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31

crawl past the five-year statute of limitations on monetary relief.12 This 

is one such case.

In addition to delay, the no-action bloc frequently forces deadlock. 

The FEC cannot take substantive actions, or even close files, without 

four votes. 52 U.S.C. § 30106(c). This allows three Commissioners to 

block movement either toward or against enforcement. Between 1996 

and 2006, only 3.3% of votes on the six-member Commission––and 4.3% 

of votes in periods when the Commission had only five members––failed 

to garner four Commissioners on either side.13 But what was once rare

has become commonplace over the last decade. 

The anti-enforcement bloc has drastically reduced the number of 

enforcement votes the FEC takes, from an average of 727 per year from 

2003 to 2007 to an average of just 178 per year from 2008 to 201314––a 

drop-off that occurred immediately after the anti-enforcement bloc 

coalesced in 2008. Within this narrowed set of votes, deadlock rates 

 

12 CRS Report at 11.

13 Michael M. Franz, The Devil We Know? Evaluating the Federal 

Election Commission as Enforcer, 8 Election L.J. 167, 176 tbl. 5 (2009).

14 Pub. Citizen, Roiled in Partisan Deadlock, Federal Election 

Commission Is Failing 1 (Apr. 2015), https://www.citizen.org/sites/

default/files/fec-deadlock-update-april-2015.pdf.

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32

have accelerated. The Congressional Research Service found that the 

FEC deadlocked on 13% of closed matters under review (“MURs”) in 

2008-09, and 24.4% in 2014.15 Then-Commissioner Ann Ravel’s 2017 

Dysfunction and Deadlock report found further deterioration: deadlock 

accounted for 30% of all enforcement votes for MURs that closed in 

2016, compared to only 2.9% for MURs closed in 2006.16 Indeed, the 

FEC deadlocked on at least one substantive vote in 37.5% of MURs 

closed in 2016.17 And, while no MURs were closed due to a deadlocked 

vote in 2006, 12.5% were by 2016.18 The MUR at issue in this case is 

one of them.

There is no question that delay and deadlock are part of a 

concerted effort to reduce enforcement, based on three Commissioners’ 

contested views about issues beyond the scope of their statutory 

mandate. The no-action Commissioners have admitted so themselves. 

“No action at all, they say, is better than overly aggressive steps that 

 

15 CRS Report at 9-10.

16 Ravel Report at 9.

17 Id. at 10.

18 Id.

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33

could chill political speech.”19 Commissioner Goodman has even opposed 

moving cases expeditiously because he believes that more claims are 

filed against “Republican-leaning” than “Democratic-leaning” entities; 

he asserts that Commissioners must maintain “discretion” to halt 

enforcement actions to avoid a “disparate impact” on “Republican”

groups.20

These views have led the no-action Commissioners to take 

positions at odds with FECA itself, such as by voting to allow a super 

PAC to “produce an ad that was ‘fully coordinated’ with a candidate—

without having it count as a coordinated communication under federal 

election law.”21 These Commissioners’ actions have left the FEC “mired 

 

19 Eric Lichtblau, F.E.C. Can’t Curb 2016 Election Abuse, 

Commission Chief Says, N.Y. Times (May 2, 2015), https://www.

nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-election-abusecommission-chief-says.html.

20 Paul S. Ryan, Opinion, Republican FEC Commissioner Admittedly 

Blocking Complaints Against Republicans, The Hill (June 4, 2015), 

http://thehill.com/blogs/congress-blog/campaign/243828-republican-feccommissioner-admittedly-blocking-complaints (quoting FEC, Archived 

Captions of Entire Meeting (May 21, 2015), https://www.fec.gov/

resources/updates/agendas/2015/transcripts/Open_Meeting_Captions_2

015_05_21.txt).

21 Marian Wang, FEC Deadlocks (Again) on Guidance for Big-Money 

Super PACs, ProPublica (Dec. 2, 2011), https://www.propublica.org/

article/deadlocks-again-on-guidance-for-big-money-super-pacs/single.

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34

in an ideological standoff,” such that “there has been virtually no 

enforcement of the campaign finance laws.”22 This has resulted in “lack 

of disclosure and political committee registration, employer coercion, 

candidates’ personal use of campaign funds, and foreign national 

contributions.”23

This case is thus one illustration of a troubling pattern, in which a 

bloc of Commissioners delays and deadlocks the FEC to avoid enforcing 

laws with which it disagrees. These Commissioners have “consciously 

and expressly adopted a general policy that is so extreme as to amount 

to an abdication of its statutory responsibilities.” Ass’n of Irritated 

Residents v. EPA, 494 F.3d 1027, 1035 (D.C. Cir. 2007). When this 

happens, even the normally permissive rules of prosecutorial discretion 

must give way to meaningful judicial review. Id.; Adams v. Richardson, 

480 F.2d 1159, 1163 (D.C. Cir. 1973) (en banc).

 

22 Matea Gold, Trump’s Deal with the RNC Shows How Big Money Is 

Flowing back to the Parties, Wash. Post (May 18, 2016), https://www.

washingtonpost.com/politics/trumps-deal-with-the-rnc-shows-how-bigmoney-is-flowing-back-to-the-parties/2016/05/18/4d84e14a-1d11-11e6-

b6e0-c53b7ef63b45_story.html.

23 Ravel Report at 2, 12-20.

USCA Case #17-5049 Document #1682741 Filed: 07/05/2017 Page 46 of 49
35

CONCLUSION

For the foregoing reasons, this Court should reverse.

Respectfully submitted,

Brenda Wright

DĒMOS

1340 Centre Street, Suite 209

Newton, MA 02459

Allie Boldt

DĒMOS

740 6th Street NW, 2nd Floor

Washington, DC 20001

Paul M. Smith*

 (D.C. Bar No. 358870)

Tara Malloy

Megan P. McAllen

Noah B. Lindell

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

*Counsel of Record

 Dated: July 5, 2017

USCA Case #17-5049 Document #1682741 Filed: 07/05/2017 Page 47 of 49
36

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

This brief complies with the type-volume limitation of Fed. R. App. 

P. 32(a)(7)(B) because this brief contains 6492 words, excluding the 

parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 

Circuit Rule 32(e)(1).

This brief complies with the typeface requirements of Fed. R. App. 

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

because this brief has been prepared in a proportionally spaced typeface 

using Microsoft Office Word 2011 in Century Schoolbook 14 point font.

/s/ Paul M. Smith

Paul M. Smith

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

Dated: July 5, 2017

USCA Case #17-5049 Document #1682741 Filed: 07/05/2017 Page 48 of 49
37

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of July 2017, I caused the 

foregoing Brief Amici Curiae to be filed electronically using this Court’s 

CM/ECF System and sent via the ECF electronic notification system to 

the following CM/ECF registered counsel of record:

Attorneys Representing 

Plaintiffs CREW, et al.:

Stuart McPhail

Adam J. Rappaport

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON

455 Massachusetts Ave. NW, 6th

Floor

Washington, DC 20001

(202) 408-5565

Attorneys Representing 

Defendant FEC:

Jacob Siler

Kevin Andrew Deeley

Greg J. Mueller

Harry Jacobs Summers

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

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

copies of the brief to be filed with the Clerk on July 5, 2017.

/s/ Paul M. Smith

Paul M. Smith

CAMPAIGN LEGAL CENTER

1411 K Street NW, Suite 1400

Washington, DC 20005

(202) 736-2200

USCA Case #17-5049 Document #1682741 Filed: 07/05/2017 Page 49 of 49