Last week, the DC Circuit Court issued a ruling in End Citizens United PAC v. Federal Election Commission that promotes FEC accountability by requiring the agency to explain its reasons for dismissing a matter in a timely fashion. This is a big win that will force the FEC to be more transparent and accountable in fulfilling its obligations.
See below for coverage of the lawsuit.
Law360: DC Circ. Orders FEC To Revisit Trump Election Law Complaint
Katie Buehler
June 12, 2023
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The U.S. Federal Election Commission must revisit an election law violation complaint filed against former President Donald Trump’s 2020 reelection campaign, a D.C. Circuit panel has ruled, finding the commission failed to properly explain why it declined to investigate whether the campaign unlawfully solicited donations for a political action committee.
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A three-judge panel ruled the commission’s belated explanation that the decision was made under the agency’s “prosecutorial discretion” didn’t pass muster and couldn’t protect it from judicial review, according to a Friday opinion. The panel ordered a D.C. federal judge to remand the issue back to the FEC for reconsideration.
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In April 2021, the commission rejected the recommendations of agency lawyers and voted to not investigate claims filed by political action committee End Citizens United that accused Trump’s campaign of violating the Federal Election Campaign Act’s prohibition of federal candidates soliciting donations for PACs. But the FEC didn’t issue an explanation of its reasoning until June 2021, just days after ECU filed a legal challenge to the decision.
- “The commission’s failure to provide a contemporaneous explanation for its dismissal of ECU’s administrative complaint hindered ‘meaningful judicial review’ because the presumptive subject of judicial review emerged only after ECU filed this lawsuit and so forced ECU to ‘chase a moving target,'” Judge Rogers wrote.
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ECU spokesperson Bawadden Sayed told Law360 on Monday that the political action committee is “thrilled” with the panel’s ruling.
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“The FEC’s nasty habit of dismissing complaints without timely explanations has left us and other legitimate complainants in the dark,” Sayed said. “This tactic has become commonplace, and it speaks to the gridlock and dysfunction within the agency. Going forward, the FEC will be required to provide timely and contemporaneous explanations for dismissals. This is a big win that will force the FEC to be more transparent and accountable in fulfilling its obligations.”
Bloomberg Law: FEC Complaint Alleging Trump Election Fraud Revived on Appeal
Ufonobong Umanah
June 9, 2023
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An after-the-fact filing from the Federal Election Commission isn’t enough to dismiss claims Trump’s 2020 campaign violated election law, the DC Circuit ruled Friday.
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The Trump campaign solicited funds for allied super PAC America First Action in violation of election law, alleged the End Citizens United PAC. With one member of the FEC recused, and despite the commission’s general counsel recommending an investigation, the vote to investigate the allegations deadlocked 3-2 and was closed.
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End Citizens United sued for an explanation, but the Commission never defended itself in the US District Court for the District of Columbia, except for the two dissenting commissioners—then Vice Chair Allen Dickerson and Commissioner Sean J. Cooksey—who said in a statement they used their prosecutorial discretion to decline to investigate. The lower court determined that, though the statement came four days after the PAC filed their complaint, this was enough to dismiss a motion for default judgment.
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But the commissioners “were obligated to issue a contemporaneous statement” explaining their votes, Judge Judith W. Rogers of the US Court of Appeals for the DC Circuit wrote, reversing the lower court.
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As “judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action,’” contemporaneous explanation is crucial, the court said.
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That Cooksey and Dickerson were “proper decision makers” didn’t exempt them from the judiciary’s usual prohibition on post hoc explanations, “where no rationalization exists” to amplify, Rogers ruled.
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They cannot hide behind “convenient litigating positions” only to “invoke prosecutorial discretion when its silence is challenged,” Rogers wrote.
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