IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et al., ) 

 ) 

Plaintiffs, ) Civil Action No. 14-148 (RJL)

 ) 

v. ) BRIEF OF AMICUS CURIAE

 ) CENTER FOR COMPETITIVE

FEDERAL ELECTION COMMISSION, ) POLITICS IN SUPPORT OF

 ) DEFENDANT 

Defendant. ) 

______________________________ ) 

BRIEF OF AMICUS CURIAE CENTER FOR COMPETITIVE POLITICS 

IN SUPPORT OF DEFENDANT

Amicus Curiae the Center for Competitive Politics (CCP) submits this brief 

to address the limited issue of the scope of review of a Federal Election Commission (Commission or FEC) decision to dismiss a complaint where the Commission 

lacked 4 votes to find reason to believe a violation had occurred and consequently 

lacked the statutorily required majority to initiate a formal investigation. 

Founded in 2005 by former Federal Election Commission Chairman Bradley 

Smith, Amicus Curiae CCP is a 501(c)(3) organization that seeks to educate the 

public about the effects of money in politics and the benefits of increased freedom 

and competition in the electoral process. CCP works to defend the First Amendment rights of speech, assembly, and petition through scholarly research and state 

and federal litigation. CCP has participated in many of the notable cases concernCase 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 1 of 13
2 

ing campaign finance laws and restrictions on political speech, including Citizens 

United v. FEC, 558 U.S. 310 (2010) and SpeechNow.org v. FEC, 599 F.3d 686 

(D.C. Cir. 2010) (en banc). 

BACKGROUND 

As relevant to this brief, when the Commission receives a complaint alleging 

violation of the election laws, it may only proceed with a formal investigation of 

that complaint “[i]f the Commission * * * determines, by an affirmative vote of 4 

of its members, that it has reason to believe that a person has committed, or is 

about to commit, a violation of this Act or chapter 95 or chapter 96 of the Internal 

Revenue Code of 1954.” 52 U.S.C. § 30109(a)(2) [2 U.S.C. § 437g(a)(2)]. 

In this case, the vote on whether there was reason to believe a violation had 

occurred, thus warranting a formal investigation, was divided 3-3. The Commission thus failed to obtain the required 4 votes and the investigation was not permitted under the Act. Unable to proceed with an investigation, the Commission then 

voted unanimously to dismiss the complaint. Federal Election Commission’s 

Memorandum of Points and Authorities in Support of Its Cross-Motion for Summary Judgment and in Opposition to Plaintiffs’ Motion for Summary Judgment 

[Doc. 33] (FEC Mem.) at 11. 

An “order of the Commission dismissing a complaint” is reviewable in this 

Court upon petition by the party or parties having filed the complaint. 52 U.S.C. 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 2 of 13
3 

§ 30109(a)(8) [2 U.S.C. § 437g(a)(8)]. This Court then reviews the dismissal of 

the complaint to determine whether it “is contrary to law.” Id. 

Plaintiffs argue that this Court should review the split vote of the Commission that failed to authorize an investigation and that it should accord no deference 

to the determination of the 3 Commissioners finding no reason to believe that a violation had occurred. Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgment [Doc. 23] (Plaintiffs’ Mem.) at 14-18. They 

then proceed to dispute the legal analysis of those 3 Commissioners and raise various arguments as to why the decision was supposedly arbitrary and capricious. 

Plaintiffs’ Mem. at 24-40. 

Defendant FEC, in turn, correctly points to extensive precedent that the decision of the 3 Commissioners voting not to proceed is entitled to full Chevron deference because those Commissioners constitute the controlling group preventing an 

investigation from proceeding. FEC Mem. at 4-5, 18-26. The determination of the 

3 Commissioners finding no violation thus is the action of the Commission in that 

a decision not to proceed only requires 3 votes under the Act. 

Amicus agrees with the Commission that, if analyzed under a traditional administrative law rubric, both reason and precedent support full deference to the 

views of the controlling group that no violation occurred and that the decision of 

the controlling group readily satisfies such review. That traditional administrative 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 3 of 13
4 

law rubric, however, ignores certain aspects of the Act that in fact support an even 

more deferential approach to Commission decisions (including evenly split decisions) to refrain from exercising its powers. This brief will make two brief points 

arguing that Plaintiffs’ suggested non-deferential review of the reasoning of the 

controlling group in this case is overly intrusive, goes beyond what is authorized 

by the statute, and makes little sense. 

ARGUMENT

I. Review Is Limited to Whether the Legal Interpretations of the Controlling Group Are Foreclosed by the Act, Not Whether This Court Agrees 

with Those Legal Interpretations. 

In reviewing a Commission determination to dismiss a complaint because it 

lacked the requisite 4 votes to initiate a formal investigation, this Court should not 

decide how it would interpret the Act, but only whether the Act necessarily forecloses the result reached by the controlling group, i.e., whether their decision is 

“contrary to law.” Where 3 Commissioners have determined that there is no reason to believe a violation has occurred, the Commission obviously has not satisfied 

the statutory requirement of 4 votes favoring a formal investigation before the 

Commission may exercise governmental power against constitutionally protected 

election speakers. In deciding whether the reasoning of the controlling group – 

those believing the Complaint does not reveal a violation and does not justify imposing additional burdens on election speakers – is contrary to law, the Court need 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 4 of 13
5 

only determine whether the statute permits the interpretation given it by that group. 

If the statute admits of more than one possible construction, it does not matter 

whether the controlling group has the best or worst plausible construction, only 

whether the construction is not squarely precluded by the statute. Indeed, an evenly divided vote itself may reflect ambiguity in the statute, making it unlikely that 

the controlling group’s views could be contrary to law.1

 

While the views of the 3 Commissioners finding no reason to believe a violation had occurred certainly controls the vote in question, the divided outcome as 

a whole is better viewed as a failure to satisfy the requirements for going forward. 

There is good reason to have both an evenly divided bi-partisan Commission and a 

requirement that ties go to the accused rather than the accuser. Campaign finance 

regulation poses a heightened danger that complaints will be used for partisan advantage to silence or hamper political opponent. Allowing either party to bring the 

weight of the Commission down on a speaker without bi-partisan support is an invitation for abuse. The requirement of 4 votes to initiate an investigation is an important safeguard against such abuse. 

 

1

 In this case, amicus agrees with the legal views of the Commissioners finding that 

no violation had occurred, and the matter may not even be ambiguous. But in a 

close case the question is not which side has the better view of the statute, but 

merely whether the view of the Commissioners finding no violation is necessarily 

foreclosed by the statute, regardless of potential competing interpretations. 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 5 of 13
6 

The notion that one analyzes the views of the declining-to-proceed Commissioners with the same level of scrutiny applied to an affirmative exercise of power 

by the Commission (whether adjudicatory or regulatory) is mistaken. Review of a 

decision not to use government power against election speakers should in fact be 

even more lenient. Rather than applying some form of “arbitrary or capricious” 

review reminiscent of the APA, review should at best be limited to whether the result is unavoidably contrary to an express statutory command or prohibition. The 

Act itself provides support for this approach, limiting review of dismissals of complaints to the sole question whether they are “contrary to law.” See also FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (“DSCC”) (because “the Commission is precisely the type of agency to which deference should 

presumptively be afforded[,] * * * has the ‘sole discretionary power’ to determine 

in the first instance whether or not a civil violation of the Act has occurred[,] * * * 

is inherently bipartisan[,] * * * [and] must decide issues charged with the dynamics 

of party politics, * * * Congress wisely provided that the Commission’s dismissal 

of a complaint should be reversed only if ‘contrary to law.’”) (citations omitted); 

Citizens for Responsibility & Ethics in Washington v. FEC, 475 F.3d 337, 340 

(D.C. Cir. 2007) (“At this stage, judicial review of the Commission’s refusal to act 

on complaints is limited to correcting errors of law.”). 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 6 of 13
7 

Scrutiny under this standard is more akin to rational basis scrutiny under the 

Constitution than it is to the more searching scrutiny of the APA. See Orloski v. 

FEC, 795 F.2d 156, 167 (D.C. Cir. 1986) (review of FEC dismissal of a complaint 

is subject to “‘an extremely deferential standard which requires affirmance if a rational basis for the agency’s decision is shown.’”) (quoting district court). Indeed, 

the very fact that the Act’s review provisions are limited to whether the dismissal 

is “contrary to law” contrasts rather starkly with the APA’s more expansive review 

standard of whether agency action is “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law” or “unsupported by substantial evidence .” 5 U.S.C. § 706(2)(A) & (E). Expressly lacking such additional grounds 

for review of Commission dismissals of complaints, courts should be loath to imply them into the Act merely because they provide a comfortable and familiar 

framework. Congress obviously knew how to provide for such greater review, 

having done so nearly three decades earlier in the APA. But Congress having notably limited the review of FEC dismissals, courts must give that limitation meaning and not simply ignore it. 

As with rational basis review, the scrutiny in this case should be limited to 

whether the Act necessarily precludes the result reached in the split vote and 

should not turn on the particular reasoning of individual Commissioners, or even 

the collective view of the three Commissioners voting against proceeding with an 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 7 of 13
8 

investigation. Any further review of the rationality of the Commission’s failed 

vote to investigate should be no more than the extremely light rational basis review 

that would apply in a substantive due process challenge.2

Amicus recognizes that D.C. Circuit precedent occasionally uses the language of “arbitrary or capricious” when reviewing FEC decisions not to proceed 

with an investigation. To the extent such language is not merely a linguistic variation but rather is a substantive expansion toward APA standards of review, Amicus

notes that such judicially expanded review has no statutory basis and consequently 

should be approached with caution. While this Court obviously must work within 

the confines of precedent, it should carefully consider whether such precedent substantively requires more invasive review than permitted by the statute.3

 Indeed, 

 

2

 While the First Amendment implications of affirmative actions by the Commission might warrant heightened scrutiny to protect First Amendment interests, 

where the Commission declines to proceed it is in fact being more solicitous of 

First Amendment interests and thus can more easily satisfy rational basis review. 

3

 Similarly, while courts have scrutinized the rationale of the controlling group in 

evenly divided votes on whether there was reason to believe a violation had occurred, the statute actually provides for review only of a successful vote to dismiss, 

not the underlying unsuccessful vote to open a formal investigation. According to 

the statute, it is the “order of the Commission dismissing a complaint” that is subject to a petition for review, 52 U.S.C. § 30109(a)(8) [2 U.S.C. § 437g(a)(8)]. That 

order was not the product of a split vote, but rather of a unanimous vote by the 

Commission. FEC Mem. at 11. While the prior divided vote certainly had a bearing on, and was the reason for, the subsequent unanimous vote to dismiss, that latter decision was self-evidently not “contrary to law.” Given that the statute expressly precludes initiating a formal investigation without 4 or more votes to do so, 

52 U.S.C. § 30109(a)(2) [2 U.S.C. § 437g(a)(2)], the vote to dismiss was effectiveCase 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 8 of 13
9 

while some cases use the language of “arbitrary and capricious,” other cases use 

the language of rational basis and hence it is not certain that precedent actually requires importation of the stricter APA standards that such phrase implies. Just as 

the courts have narrowed implied causes of action in the securities field, and declined to expand those causes of action beyond that required by precedent, so too 

should this Court limit its review to the minimum required by precedent. See, e.g.,

Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 167 (2008) 

(noting the “narrow dimensions we must give to a right of action Congress did not 

authorize when it first enacted the statute and did not expand when it revisited the 

law”). Recognizing that more stringent review lacks a statutory basis, even while 

following potentially questionable precedent, will help bring the issue into focus, 

resolve uncertainties in favor of the Commission’s decision to dismiss, and allow 

for a more thoughtful reconsideration of judicially implied, but statutorily unsupported review procedures if and when this case goes up on appeal. At a minimum, 

acknowledging the questionable provenance of potentially more intrusive review 

supports the Commission’s arguments for strong deference even within an APAlike framework. 

 

ly required by the statute. Had the Commission failed to consider the complaint at 

all, held an improper vote, or dismissed the Complaint without the required majority vote to do so, then it might reasonably be argued that it acted contrary to law. It 

did none of those things and hence the only order for which the statute expressly 

provides review was fully consistent with the plain language of the law. 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 9 of 13
10 

II. The Act Asymmetrically Disfavors Investigations and Other Commission Actions, Resolves Uncertainty In Favor of Non-Action, and Hence 

Deference Should Be Asymmetrically Greater for Dismissals. 

Even assuming this Court applies full APA-style review to the underlying 

split vote on whether there was reason to believe a violation occurred, Amicus

agrees with the FEC that the views of the controlling group is entitled to, at a minimum, full Chevron deference. Contrary to Plaintiffs’ assertion that a split vote 

does not constitute agency action entitled to deference because the agency can only 

act with 4 votes, the statute is actually asymmetrical if the failure to find reason to 

believe a violation occurred is deemed a vote not to investigate. While the statute 

indeed requires 4 votes for the Commission to act affirmatively against the object 

of a complaint, by intentional design it requires only 3 votes to foreclose further 

Commission action. If the underlying failure to investigate is indeed the “act” of 

the FEC subject to review, then 3 negative votes constitutes the decision of the 

Commission acting with sufficient votes for that result as expressly set forth in the 

statute. Having reached the no-go decision with the requisite number of votes under the statute, such decision is entitled to as much or more deference as any other 

decision by the Commission. 

The asymmetry in the required votes for advancing versus terminating a 

Complaint is hardly surprising given the hazards of allowing a government agency 

to penalize election-related activity. Most obviously are the serious First AmendCase 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 10 of 13
11 

ment concerns, recognized by the Commission itself. FEC Mem. at 29 (“The controlling group’s approach to the major-purpose test was based upon First Amendment concerns that have been expressed by various courts and commentators, including even lead plaintiff Public Citizen.”); see also Common Cause v. FEC, 842 

F.2d 436, 448 (D.C. Cir. 1988) (“There are as well countervailing considerations 

for the FEC to ponder. It must allow the maximum of first amendment freedom of 

expression in political campaigns commensurate with Congress’ regulatory 

aims.”). Such concerns rightly place a heavier burden on the Commission when it 

seeks to burden, punish, or restrict election speakers and conversely provide ample 

inherent support for Commission decisions declining to so impinge on free speech 

and association. The asymmetrical First Amendment impact of decisions to proceed or not proceed with investigations is entirely consistent with the asymmetrical 

voting requirements for proceeding (4 votes) or not proceeding (3 votes). And it 

likewise is consistent with and supportive of a more limited review of decisions not 

to proceed than of decisions to proceed against the object of a complaint. 

Such asymmetrical treatment of action and inaction by government is also 

consistent with our overall structure of government. In numerous instances where 

collegial bodies wield government power there are typically significant hurdles to 

overcome before such power may be set loose upon the citizenry. Juries generally 

require unanimity where significant rights are at stake. Legislation requires a minCase 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 11 of 13
12 

imum of a majority vote, bicameral approval, and executive concurrence. Overriding a veto, ratifying a treaty, expelling members from Congress, determining 

whether a President is able to discharge the powers and duties of his office, or removing civil officers by impeachment all require a supermajority vote. Many 

House and Senate rules require a supermajority vote as do provisions in the Congressional Budget Act of 1974 and the Pay-As-You-Go Act of 2010. In each of 

these instances, failure to reach a majority or supermajority precludes the exercise 

of government power. And in none of those instances can the failure to act be reviewed to ascertain whether the voting members were arbitrary or capricious in 

their votes. While courts certainly review and check the affirmative exercise of 

government power, where government declines to act the courts generally have little or no say unless the law specifically creates an affirmative obligation to act. 

In short, the history and structure of our limited government places a significant thumb on the scale favoring inaction over action. Even where, as here, Congress has expressly provided for limited review of a Commission decision to take 

no further action on a complaint, the historical thumb limiting government action 

supports keeping such review in this case narrowly confined and not implying 

greater powers of review that would effectively turn this Court into a tie-breaking 

vote. 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 12 of 13
13 

Respectfully Submitted, 

_________________________ 

Erik S. Jaffe (D.C. 440112) 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

 

Counsel for Amicus Curiae Center 

for Competitive Politics 

September 17, 2014 

Case 1:14-cv-00148-RJL Document 37 Filed 09/19/14 Page 13 of 13