Ali Sullivan
02/25/25
(Law360) The en banc D.C. Circuit grappled Tuesday with a line of its own cases that restrict judges from scrutinizing federal election regulators when they decline to investigate campaign finance complaints, questioning how to approach nonenforcement decisions that invoke commissioners’ discretion.
The appeals court’s active judges spent nearly three hours wrestling with a challenge from the left-leaning End Citizens United PAC in the D.C. Circuit’s first en banc hearing since 2021. Several judges expressed skepticism toward circuit precedent that critics say has wrongly shielded the Federal Election Commission from judicial scrutiny when at least three commissioners cite their “prosecutorial discretion” to dismiss a third-party complaint, while others probed ECU’s standing to sue over the issue.
U.S. Circuit Judge J. Michelle Childs, for instance, said she was “a little concerned that you could always inject prosecutorial discretion on any of these decisions going forward, and then lead to this type of deadlock when the statute was designed to correct any type of political corruption.”
The Federal Election Campaign Act, or FECA, requires an affirmative vote from at least four commissioners to initiate enforcement proceedings, but a campaign finance complaint stalls if commissioners deadlock on finding “reason to believe” its allegations. From there, the three commissioners who voted against enforcement — known as the controlling commissioners — must issue a statement of reasons explaining their decision.
The FEC’s Shania Ward told the judges that courts can scrutinize those reasons when they are “purely legal,” but dismissals cannot be second-guessed when based “in whole or in part on prosecutorial discretion.”
The D.C. Circuit has concluded in 2018 and 2021 rulings, both captioned Citizens for Responsibility and Ethics in Washington v. FEC , that the latter category of dismissals are unreviewable under 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.
In ECU’s case, commissioners deadlocked on finding reason to believe allegations that U.S. Sen. Rick Scott, R-Fla., violated campaign finance law when he chaired a group called New Republican PAC in 2017 and had not yet formally launched his Senate campaign. A split D.C. Circuit panel upheld the dismissal in January 2024, finding that the controlling commissioners’ invocation of prosecutorial discretion gave the court nothing to review. The full D.C. Circuit agreed to review the case en banc in October.
U.S. Circuit Judge Gregory G. Katsas — who was among the majority that affirmed the toss of ECU’s suit — said the “hard case” is when the commissioners’ statement “has legal reasoning and purely discretionary considerations jumbled together.”
“I think at one point you said presume that the discretionary factors are independently sufficient to support the result,” Judge Katsas told New Republican PAC’s counsel. “Why would we do that? Why wouldn’t the presumption sort of run the other way if they jumble it all together and don’t say each category of reasoning is independently sufficient — we can review the legal piece and send it back?”
Clement & Murphy PLLC partner Erin E. Murphy, who represents New Republican PAC as an intervenor-appellee in the case, responded that the court would be unable to clearly conclude whether the FEC acted contrary to law in an ambiguous case.
“So the tie goes to ‘there was nothing contrary to law here,’ and the agency was permissibly exercising its prosecutorial discretion,” Murphy said.
Asked by U.S. Circuit Judge Robert L. Wilkins whether that argument amounts to a “magic words” requirement, Murphy denied that it was, saying that commissioners citing a backlog of cases, for example, is “the expressed view of commissioners.”
“Okay, they’re not magic, but they’re the sufficient words — they’re the right words,” Judge Wilkins rejoined.
U.S. Circuit Judges Neomi Rao and Justin R. Walker, meanwhile, questioned whether ECU has standing to sue in the first place.
In addition to a competitive injury, ECU contends that it has so-called informational standing because it was allegedly deprived of a full accounting of Scott’s campaign finances. Noting that the senator would be up for reelection in 2030, Judge Walker asked “what’s your argument for how that would meaningfully help you in his next election six years from now?”
Campaign Legal Center attorney Kevin P. Hancock, who represents ECU, noted the Supreme Court’s 1998 FEC v. Akins ruling in response. The high court held there that voters had standing to sue over an FEC nonenforcement decision, and those plaintiffs “had informational standing based upon information that they claim should have been reported during the previous decade,” Hancock said.
But Judge Rao said that ECU is not alleging that it represents voters, and she questioned how ECU’s claimed injury squares with the high court’s TransUnion LLC v. Ramirez decision, which held that only plaintiffs “concretely harmed” by a defendant’s statutory violation can sue in federal court.
Hancock said “no court has ever applied TransUnion in the context of informational standing.” However, he argued that, even under TransUnion, the distribution of erroneous information would still allow for informational standing.
“ECU … communicates with the public about campaign finance information,” Hancock said. “So to the extent FEC reporting is inaccurate, or late, or absent, that affects the accuracy of what ECU can communicate to the public who is interested in what ECU has to say.”
Following the arguments, Hancock told reporters that “we feel really good about how the arguments went today.”
“I think what you saw from the court were a large number of judges who seemed quite concerned about the FEC’s ability to shield its decisions to not enforce the law from judicial review, and concern that the valuable role that judicial review plays in checking the FEC being undermined,” Hancock said.
The FEC declined to comment on pending litigation, and counsel for New Republican PAC did not immediately return a request for comment.
U.S. Circuit Judges Sri Srinivasan, Karen LeCraft Henderson, Patricia A. Millett, Cornelia T.L. Pillard, Robert L. Wilkins, Gregory G. Katsas, Neomi Rao, Justin R. Walker, J. Michelle Childs, Florence Y. Pan and Bradley N. Garcia sat on panel for the D.C. Circuit.
End Citizens United PAC is represented by Adav Noti, Kevin P. Hancock, Tara Malloy, Megan P. McAllen, Alexandra Copper, Kunal Dixit and Kristen Roehrig of Campaign Legal Center.
The FEC is represented in-house by Lisa J. Stevenson, Shaina Ward and Greg J. Mueller.
New Republican PAC is represented by Jason B. Torchinsky, Edward M. Wenger and Mark Pinkert of Holtzman Vogel Baran Torchinsky & Josefiak PLLC and Paul D. Clement, James Y. Xi and Erin E. Murphy of Clement & Murphy PLLC.
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.