Kate M. Harris1Kate M. Harris is a J.D. Candidate in the University of Chicago Law School Class of 2021. She received a B.S. from University of Colorado Boulder in 2016. She thanks Matthew Reade for his terrific comments on this piece.

Campaign Legal Center and Democracy 21 v. Federal Election Commission, 952 F.3d 352 (D.C. Cir. 2020)

The “little agency that can’t,” an “impotent joke,” and “worse than dysfunctional.” These quotes describe the Federal Election Commission (FEC, “Commission,” or “agency”) and its difficulties, exacerbated in recent years by increased partisanship—and uncorrected by the courts.

In 1971, Congress enacted the Federal Election Campaign Act (FECA or “the Act”). The Act created the FEC to “prevent money from corrupting or appearing to corrupt candidates’ positions and actions in office.” Congress designated the FEC “the primary protector of voters’ entitlement to information as to where political campaign money comes from and how it is spent by the candidate.” Congress also required bipartisan enforcement action, requiring four votes before the agency can investigate or correct FECA violations. Since the FEC is comprised of three Democratic appointees and three Republican appointees, partisan gridlock often prevents enforcement action from occurring.

The problem of partisan gridlock has only increased in recent years. From 1975 to 2007, the Commission deadlocked on an average of 4.9 percent of requests per year. But between 2008 and 2019, the percentage of deadlock votes climbed to an average of 24.1 percent of requests per year. The number of votes, fines, and civil penalties imposed by the FEC also fell during the same period. As one prominent campaign finance lawyer put it, “[w]e are in an environment in which there has been virtually no enforcement of the campaign finance laws.” 

After receiving a complaint, the FECA requires the FEC and its commissioners engage in a “series of judicially reviewable legal determinations in sequential votes on whether there is ‘reason to believe,’ and then ‘probable cause to believe,’ that campaign finance violations occurred.” If the Commission deadlocks on a vote, the matter is subsequently dismissed. The “controlling commissioners,” or commissioners who voted not to proceed, must then write a statement explaining their reasoning. Any “party aggrieved” by the dismissal may file a petition for review in the U.S. District Court for the District of Columbia. 

At this point, a court reviews the controlling commissioners’ stated reasoning to determine whether the agency acted contrary to law. Courts interpret “contrary to law” to mean either “(1) the FEC dismissed the complaint as a result of an impermissible interpretation of the Act,” or “(2) the FEC’s dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” Importantly, the FECA does not “instruct how to differentiate between a deadlock vote that prompts a dismissal and a vote by four or more Commissioners to dismiss the action outright.” It’s therefore unclear what is the appropriate level of judicial scrutiny for partisan deadlock dismissals.

In 2017, Citizens for Responsibility and Ethics in Washington filed a complaint alleging the FEC acted contrary to law when the Commission dismissed—via deadlock vote—their administrative complaint. The district court found that the agency’s dismissal was a “rational exercise of prosecutorial discretion” and not an abuse of agency discretion, siding with the FEC on summary judgment. On appeal, in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission (CREW I), the D.C. Circuit affirmed, clarifying that it could not scrutinize cases dismissed through partisan deadlock. 

The CREW I court held that “the [FEC]’s refusal-by deadlock to investigate a complaint against a claimed political committee . . . was an exercise of ‘unreviewable prosecutorial discretion.’” Finding Heckler v. Chaney controlling, the court explained that “the three naysayers on the Commission placed their judgment squarely on the ground of prosecutorial discretion,” and “[n]othing in the substantive statute overc[ame] the presumption against judicial review.” Outside of limited exceptions, Heckler insulates from judicial scrutiny a three-to-three Commission vote not to partake in further enforcement. The door to judicial review of deadlocked votes appeared to close. 

Subsequent opinions have called CREW I’s conclusion into question. In 2019, the D.C. Circuit rejected a petition (CREW II) to rehear CREW I en banc, questioning whether the case before them was the proper vehicle for reexamining the panel’s earlier holding. Neither party argued that “decisions rooted in prosecutorial discretion are insulated from [judicial] review,” and the record was unclear on whether the three commissioners who voted not to proceed made a “legal decision.” Judge Thomas Griffith, while concurring in the denial of a rehearing en banc, specified that the record’s shortfalls influenced his decision. In a future “right case,” Judge Griffith wrote, the court should revisit CREW I’s holding, which he described as clearly “contrary to Congress’s intent.” 

One year later, Campaign Legal Center and Democracy 21 v. Federal Election Commission (CLCD) provided the first opportunity for the D.C. Circuit to address CREW I and the scope of its holding. Here, the Campaign Legal Center (CLC) and Democracy 21 (D21) sued the FEC after a deadlock vote blocked any investigation into three administrative complaints that CLC and D21 filed with the agency. The complaints alleged, in part, that “various individuals made political contributions to Super PACs by using closely held corporations and limited liability companies as straw donors.” The FECA bars straw donations, which are “contribution[s] in the name of another person,” and punishes those who knowingly allow their “name[s] to be used to effect such a contribution.”  In CLCD, the alleged straw donations ranged from $1 to $12 million. The FEC’s general counsel recommended that the Commission investigate. But the Commission declined, splitting along party lines.

On review, the D.C. Circuit, perhaps surprisingly, dodged the “complicated” question of reviewability—at issue in CREW I—and instead resolved the case on alternative grounds. Consequently, CLCD’s principal relevance comes from Judge Harry Edwards’s lengthy concurrence. There, Edwards declared that CREW I did not reflect the current law of the circuit because it was inconsistent with the decision of a prior panel and, “being a violation of that fixed law,” could not prevail. Suffice to say, after CLCD, judicial treatment of deadlock votes remains unsettled. 

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CREW ICREW II, and CLCD present the following issue: Section 701(a)(2) of Administrative Procedure Act bars judicial review of agency action when the action is “committed to agency discretion by law.” The CREW I court concluded, following Heckler v. Chaney, that this provision captures a “case [that] did not warrant further use of Commission resources” because an agency is “far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities regarding enforcement actions.” But this reason does not hold when an agency’s organic statute “provide[s] guidelines for the agency to follow in exercising its enforcement powers.” Guidelines provide courts something against which to measure the agency action, and so the presumption against judicial scrutiny does not apply.

Part of the disagreement between CREW I and Judge Harry Edwards’s concurrence in CLCD is whether the FECA rebuts the presumption against judicial review of agency enforcement decisions. For Judge Edwards, the Supreme Court already resolved this issue in Federal Election Commission v. Akins. In fact, Judge Edwards wrote, its position “could not be clearer.” In Akins, the Court outlined the presumption established in Heckler and concluded the FECA rebutted this presumption. The statute, in the Court’s words, “explicitly indicate[d] [a] contrary” position to Heckler. As a result, the respondents were free to “bring [a] petition for a declaration that the FEC’s dismissal of their complaint was unlawful.”

The CREW I court cited Akins as evidence that Heckler’s presumption against judicial scrutiny applies to the FEC’s inaction, but subsequently clarified in a footnote that this presumption does not apply to declined prosecutions based solely on the understanding of the FECA. Put differently, if the FEC declines to prosecute because it believes its resources would be better employed elsewhere, courts cannot review this decision. Conversely, if the FEC declines to prosecute based solely on its interpretation of the FECA, this decision is reviewable. 

But in CLCD, Judge Edwards employs the same language from Akins to show that Heckler does not bar judicial review of deadlock-dismissals grounded in prosecutorial discretion. For Judge Edwards, the CREW I court’s reading of Akins is “not sustainable.” He is careful to clarify that “when the Commission purports to invoke prosecutorial discretion in dismissing [a] complaint,” that decision may—and often will—“survive review,” but the discretion alone does not give the Commission license to “escape review.” The right question is whether the FEC acted contrary to law in dismissing the complaint. As Edwards advances, this position is consistent with the well-established law of the circuit and preempts the misguided, inaccurate standard articulated in CREW I. And yet, since Judge Edwards’s opinion is a concurrence, his emphatic rejection of CREW I only muddies the doctrinal waters.

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On this debate hinges the future of the judiciary’s role in ensuring meaningful campaign finance oversight—a bulwark of safe, free, and untainted elections in this polarized age. 

The CREW I majority, as stated, concluded that FEC inaction was nonreviewable outside of a limited exception. But in a footnote, it clarified that courts could review a deadlock vote when the controlling commissioners ground their decision solely on the law and understanding of the FECA. This exception, however, has little force in practice. 

Since resolving CREW I, most dismissals of administrative complaints by the FEC have included the so-called “magic words” of prosecutorial discretion. In one such case, the statement of reasoning included the magic words in the 139th footnote.2See Caroline C. Hunter & Lee E. Goodman, Statement of Reasons of Vice Chair Caroline C. Hunter and Commissioner Lee E. Goodman *32 (Federal Election Commission, Dec 20, 2017). The reasoning that filled the previous thirty-two pages used to justify no further investigative action contained similar “arbitrary” and “contrary to law” language struck down by a district court in the prior year.3Ellen L. Weintraub, Statement Re: D.C. District Court Decision in CREW v. FEC (New Models) (Federal Election Comm’n, Apr. 5, 2019) *3. On review, the court ignored the potentially flawed legal reasoning and instead cited to the footnote as evidence that the dismissal was not subject to judicial review. The FEC’s mantra might as well be “include the magic words; escape judicial scrutiny.”

As established, some take issue with the majority’s treatment of FEC v. Akins. Others, like Judge Griffith’s CREW II concurrence, take issue with a different aspect of CREW I: If we take CREW I’s reasoning to its logical conclusion, the FECA “commits to agency discretion” the ability to dismiss a complaint without judicial review when three commissioners elect not to move forward. This rule allows partisan gamesmanship to dictate enforcement efforts since three members of the same party can “speak” for the agency and effectively control its docket. Rather than requiring a bipartisan vote to dismiss a case—like the statute requires for a complaint to move forward—a partisan action excludes further remedial action. This result, in Judge Griffith’s view, is clearly contrary to congressional intent. 

This conclusion about congressional intent has even greater force if we think agency action and inaction should receive equal treatment. One might argue that Congress intended judicial review of positive actions (such as investigations and penalties), but not negative actions (such as declining to investigate a complaint). In the latter case, we might be less concerned with partisan gamesmanship because a partisan vote could not lead to a civil penalty against a third party. Three votes can prevent the imposition of a fine, but three votes on their own cannot impose a fine. Under this view, there is less immediate risk in allowing partisan action to go unchecked. But this argument ignores the diffused societal harms that persist in allowing a legal regime to continue where campaign finance laws go mostly unenforced.

Perhaps, as Judge Griffith tentatively suggested in CREW II, three votes do not warrant Heckler’s shielded prosecutorial discretion standard on their own—since this outcome often results in partisan control—but Heckler does apply to four-vote dismissals. Still, what happens when it is clear a campaign violation occurred, but three commissioners nevertheless refuse to investigate or assess penalties under the cloak of prosecutorial discretion? Could (or should) the court force their hand? Maybe one could argue the answer is “yes” only when the controlling commissioners use prosecutorial discretion as a pretext (for example, using prosecutorial discretion as the “magic words” to shield review in the face of otherwise non-discretionary and inaccurate legal determinations) or if the decision amounted to an abuse of discretion (for example, when the decision not to act lacks any rational basis). Returning to a hard look review regime to govern deadlock dismissals would capture this type of bad agency decision-making. And this “forcing of the hand” simply requires the agency to either commence official action or return with alternative grounds to justify its inaction. Though, to be sure, this standard is still “extremely deferential.”

Importantly, insulating deadlock votes grounded in prosecutorial discretion from judicial review eliminates the ability of courts to engage in a hard look analysis, deferential it may be. If CREW I’s position holds and Heckler does apply to FEC inaction, courts can only review these deadlock-dismissals if “the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” But this exception to Heckler rarely materializes; it applies only when it is clear an agency “completely stopped enforcing its statutory responsibilities” or “total nonenforcement.” The difficulty in proving this degree of statutory abdication illustrates the stakes underlying the debate between CREW I, Judge Griffith, and Judge Edwards in CLCD, and the ability of courts to provide a check on FEC underenforcement. 

At the end of the day, judicial review of deadlock votes based in “prosecutorial discretion” is indeed “complicated.” With the FEC in continued disarray, one thing is sure: this complicated question will soon require a clear answer, as the current doctrinal confusion is unsustainable. 

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Kate M. Harris is a J.D. Candidate in the University of Chicago Law School Class of 2021. She received a B.S. from University of Colorado Boulder in 2016. She thanks Matthew Reade for his terrific comments on this piece.

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Featured photo credit to Eric Brown.

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