Ali Sullivan
11/20/24
(Law360) The D.C. Circuit’s decision to sit for its first en banc rehearing since 2021 might signal that the court is inclined to reconsider an oft-challenged precedent barring judges from second-guessing federal election regulators when they decline to take enforcement actions, experts say.
After a political action committee implored the D.C. Circuit to reconsider its approach to reviewing nonenforcement decisions from the Federal Election Commission, the full circuit lineup agreed to hear a case that could resolve a long-simmering legal battle over the judiciary’s role in scrutinizing the independent agency.
In its en banc brief, the left-leaning End Citizens United PAC said D.C. Circuit precedent has armed the FEC with a “judicial kill switch” that empowers a partisan bloc of commissioners to stymie campaign finance law enforcement. The oral arguments, scheduled for February, are set to be the appeals court’s first en banc hearing since October 2021, and hint that the court may have an appetite to overrule its precedent. The case is nominally about a campaign finance complaint filed by End Citizens United that the FEC later dismissed. More broadly, the PAC is challenging a pair of D.C. Circuit decisions that bar judicial review when FEC commissioners reference their “prosecutorial discretion” in declining to move forward with a third-party complaint.
End Citizens United is asking the D.C. Circuit to overrule the 2018 and 2021 rulings in Citizens for Responsibility and Ethics in Washington v. FEC and referred to in court filings as “Commission on Hope” and “New Models,” respectively, for the organizations involved. “The Court should correct the CREW decisions and restore the effective operation of [the Federal Election Campaign Act’s] enforcement scheme, including the safeguards Congress devised to prevent FEC intransigence from rendering the federal campaign-finance laws a dead letter,” the brief said. D.C. Circuit panels have divided in recent years over whether the court can scrutinize the FEC’s exercise of discretion not to pursue a complaint.
In the CREW cases, panel majorities held that commissioners’ exercise of prosecutorial discretion is unreviewable, and the court rejected petitions to revisit the cases en banc. Daniel B. Rodriguez of Northwestern Pritzker School of Law said the appeals court’s change of heart suggests that the matter is not just something that people feel strongly about, but one that the judges believe would continue to recur. “It seems like the agreement of the majority of the court to rehear this case en banc does lead one to the conclusion that a majority is prepared to jump this rule,” Rodriguez told Law360. Complicating matters is the bipartisan structure of the FEC. Its six members are split evenly between Republicans and Democrats, and an affirmative vote of at least four commissioners is required to investigate a campaign finance complaint.
A deadlock effectively stalls the case — something that Ciara Torres-Spelliscy of Stetson University College of Law said has become increasingly common. “Over the past 15 years or so, the FEC has had a long history of deadlocking and not enforcing campaign finance law,” Torres Spelliscy told Law360. “Political actors who spend a lot of money in federal elections know of this dynamic, and they will skirt the legal line or even cross the legal line betting that the FEC will not enforce the law.” Commissioners who vote against enforcement — referred to as the “controlling commissioners” — are required to issue a statement explaining their votes. In the Commission on Hope and New Models cases, D.C. Circuit panel majorities held that the court could not question the nonenforcement decisions because the statements underlying those cases invoked prosecutorial discretion. Both rulings cited the U.S. Supreme Court’s 1985 ruling in Heckler v. Chaney , which held that a federal agency’s decision not to pursue enforcement action is generally not reviewable in the courts. Writing for the majority in the Commission on Hope decision, U.S. Circuit Judge A. Raymond Randolph said the “three naysayers on the Commission placed their judgment squarely on the ground of prosecutorial discretion.” “Nothing in the substantive statute overcomes the presumption against judicial review,” Judge Randolph said.
In May 2019 and December 2022, respectively, the D.C. Circuit declined to review either Commission on Hope or New Models en banc. U.S. Circuit Judge Patricia A. Millett, joined by U.S. Circuit Judge Cornelia T.L. Pillard, dissented from the en banc denial in New Models, saying the court’s decision hands the FEC a “Get Out of Judicial Review Free card even though Congress expressly mandated judicial review of dismissal orders.” She said that “affixing a brief invocation of prosecutorial discretion to lengthy substantive analyses in statements of reasons has become commonplace” in FEC proceedings. Following the Commission on Hope ruling, “approximately two-thirds of Commission cases dismissed contrary to the General Counsel’s reason-to-believe recommendation have included a reference to prosecutorial discretion,” Judge Millett said. Richard Briffault of Columbia Law School told Law360 that by invoking their discretion, “the naysayers are basically able to shut down the case completely.”
The Federal Election Campaign Act gives complainants the option to sue alleged campaign finance violators if the FEC fails to act on their complaint — but only if a court has declared the FEC’s nonaction “contrary to law.” “If it’s an exercise of prosecutorial discretion — if it’s nonreviewable — there’s no basis for setting aside the agency’s action, and therefore the grant of authority to the private complainant to bring the case is not made available,” Briffault said. “Whereas if [the commissioners] gave a substantive reason that they don’t think the charges hold up, that would normally be reviewable, and a court might conclude you’re wrong on the law.” Stuart McPhail, CREW’s director of campaign finance litigation, said the organization had previously used FECA’s judicial review mechanisms to successfully challenge FEC inaction. But following Commission on Hope and New Models, the courts have dismissed “every subsequent attempt to do the same,” he said by email.
The current case involves a 2018 complaint filed by End Citizens United against Sen. Rick Scott, R-Fla. The organization alleged that Scott informally launched his Senate run in May 2017, when he became the chair of New Republican PAC, but failed to register his candidacy until a year later. Scott stepped down from the super PAC in December 2017 and officially declared his candidacy in April 2018. The FEC split 3-3 on whether there was “reason to believe” Scott violated campaign finance law. Lacking the necessary four votes, the commission dismissed the complaint. The controlling Republican commissioners, explaining their “no” votes, invoked prosecutorial discretion and said that an investigation would be “expensive and resource-consuming” amid a substantial backlog of cases, according to court filings.
In January, a split D.C. Circuit panel upheld the dismissal, citing the precedent established in Commission on Hope and New Models. Writing for the majority, U.S. Circuit Judge Neomi Rao said that when “dismissal rests even in part on prosecutorial discretion, it is not subject to judicial review.” “When the Commission cannot garner four votes for an investigation, and dismissal of the complaint turns on prosecutorial discretion, there is simply no legal reasoning to review,” the judge said. “FECA does not confer on the courts a general power to enforce the law, which instead belongs to the Commission in the exercise of its executive power.” Judge Pillard dissented, writing that the Commission on Hope and New Models decisions “contravene FECA, ignore binding precedent, and undercut the distinctive features Congress crafted to prevent partisan gridlock.” “The majority repeats the mistakes from Commission on Hope and New Models, which continue to call out for correction,” she said. En banc briefs from the FEC and New Republican PAC, which intervened in the case, are due Dec. 26. End Citizens United PAC is represented by Adav Noti, Kevin P. Hancock and Alexandra Copper of Campaign Legal Center.
New Republican PAC is represented by Jason B. Torchinsky, Phillip M. Gordon, Drew C. Ensign and Kenneth C. Daines of Holtzman Vogel Baran Torchinsky & Josefiak PLLC. The FEC is represented in-house by Lisa J. Stevenson, Jason X. Hamilton, Christopher H. Bell, Sophia H. Golvach and Greg J. Mueller. The case is End Citizens United PAC v. FEC, case number 22-5277, in the U.S. Court of Appeals for the District of Columbia Circuit. –Editing by Alanna Weissman and Alex Hubbard. All Content © 2003-2024, Portfolio Media, Inc.