Ali Sullivan
10/16/24
(Law 360) The full D.C. Circuit will revisit an appeal implicating the court’s authority to review the Federal Election Commission‘s decisions on campaign finance complaints when those decisions rest on commissioners’ so-called prosecutorial discretion.
The rare decision to rehear a case en banc, issued Tuesday, comes at the request of democratic political action committee End Citizens United PAC. Oral arguments are set for Feb. 25, 2025.
The PAC is vying to revive its lawsuit accusing the FEC of arbitrarily tossing two administrative campaign finance complaints against Sen. Rick Scott, R-Fla. In its petition for a full court rehearing, the group urged the D.C. Circuit to correct its “rule of unconditional immunity” insulating the FEC from judicial review whenever commissioners invoke their prosecutorial discretion to dismiss a campaign finance complaint.
End Citizens United spokesperson Bawadden Sayed said Wednesday that the organization is “thrilled” with the D.C. Circuit’s decision to reconsider its case.
“The FEC’s failure to take action on clear violations of campaign finance law under the guise of ‘prosecutorial discretion’ is inexcusable,” Sayed told Law360 by email. “We hope the court will rule in favor of accountability and force the FEC to fulfill its duty of enforcing the law and protecting our elections.”
Underlying the case are two 2018 complaints that End Citizens United submitted to the FEC. Both are centered on Scott’s role as chair of the New Republican PAC, a super PAC, between May and December 2017.
The first complaint alleged that Scott informally began his Senate run in May 2017 — the same month he took the role at New Republican — and failed to register his candidacy until a year later, according to court filings. The second complaint accused Scott and New Republican of unlawful coordination, alleging that Scott continued working with the PAC after stepping down as chair.
The six-member FEC split 3-3 in a vote over whether there was “reason to believe” a campaign finance violation occurred. Lacking the four votes needed to launch an investigation, the commission later voted 5-1 to dismiss the complaints.
The three commissioners who voted against enforcement cited prosecutorial discretion as grounds for dismissing the first complaint, noting the investigation would be “expensive and resource-consuming.” As to the second complaint, the commissioners said the evidence didn’t “support a reason to believe coordination had occurred,” according to the D.C. Circuit’s January opinion.
End Citizens United challenged the dismissals in a 2021 lawsuit in D.C. federal court, and a trial court judge ruled in favor of New Republican, which had intervened in the case, in 2022.
A divided D.C. Circuit panel affirmed the lower court ruling in January.
In an opinion authored by U.S. Circuit Judge Neomi Rao, the majority said that the commissioners’ invocation of prosecutorial discretion shields the dismissal of the first complaint from 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 opinion said.
The FEC’s toss of the second complaint, by contrast, did not invoke prosecutorial discretion, so the panel found it could review the decision. Still, the court said the controlling commissioners reasonably weighed the record and concluded it “provided no reason to believe a violation had occurred.”
U.S. Circuit Judge Cornelia T.L. Pillard backed the majority’s stance toward the second complaint. But she split with the panel’s reasoning regarding the first complaint as resting on “two mistaken rulings” that “call out for correction.”
The 2018 and 2021 rulings, both captioned Citizens for Responsibility and Ethics in Washington v. FEC , enabled “a non-majority bloc of commissioners to shield nonenforcement decisions from judicial review, and thereby extinguish the private right of action, just by invoking the words ‘prosecutorial discretion,'” Judge Pillard said.
The judge said those rulings wrongly applied the U.S. Supreme Court’s 1985 holding in Heckler v. Chaney , which held that an agency’s decision not to pursue enforcement action is generally not reviewable in the courts.
“Since our court’s wrong turn in applying Heckler to effectively scuttle FECA’s enforcement mechanism, partisan blocs of commissioners have taken advantage of the error,” Judge Pillard said. “They have routinely cited ‘prosecutorial discretion’ to stymie judicial scrutiny of apparently serious FECA violations, evade the stimulus to move forward to enforce the law that a correct legal interpretation could provide, and annul the private right of action that Congress authorized.”
An FEC spokesperson declined to comment on Wednesday, and counsel for New Republican did not return a request for comment.
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.