380 F. Supp. 3d 30
D.C. Cir.2019Background
- Plaintiffs (CREW and its executive director) filed an administrative complaint alleging New Models (a nonprofit) acted as an unregistered "political committee" under FECA for substantial 2012 contributions to political committees.
- The FEC Office of General Counsel recommended a "reason to believe" finding, but the Commissioners deadlocked and four Commissioners voted to dismiss the complaint.
- The two Controlling Commissioners issued a 32-page statement of reasons concluding (1) New Models did not make FECA "expenditures" (it merely contributed to other committees), (2) New Models lacked the "major purpose" of nominating/electing federal candidates across its lifetime, and (3) proceeding would be an inappropriate use of Commission resources because the organization appeared defunct and the activity was aged; they invoked prosecutorial discretion.
- Plaintiffs sued under FECA's judicial-review provision, 52 U.S.C. § 30109(a)(8), arguing the dismissal was contrary to law (legal errors interpreting "expenditure" and use of a lifetime-major-purpose test).
- The FEC moved for summary judgment, arguing the dismissal (in part premised on prosecutorial discretion) is presumptively unreviewable under governing D.C. Circuit precedent.
- The Court concluded it is bound by CREW v. FEC (CREW/CHGO) and must treat the Commissioners' reliance on prosecutorial discretion as non-reviewable, thus granting the FEC's motion and denying Plaintiffs'.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FEC dismissal was reviewable where Controlling Commissioners invoked prosecutorial discretion | Controlling Commissioners only tersely invoked discretion; court should review their legal rulings and reverse if contrary to law | CREW/CHGO bars judicial review of dismissal when based in whole or in part on prosecutorial discretion | Dismissal not reviewable because Controlling Commissioners invoked prosecutorial discretion; court may not review the legal analyses tied to that non-enforcement decision |
| Whether the Controlling Commissioners misinterpreted "expenditure" under FECA by excluding donations to other committees | New Models' donations to political committees qualify as expenditures and should establish political-committee status | Controlling Commissioners reasonably (though narrowly) read Buckley to limit "expenditure" to direct/express advocacy and distinguish donations routed through other committees | Court did not reach merits because invocation of prosecutorial discretion foreclosed review |
| Whether the Controlling Commissioners improperly applied a "lifetime-focused" major-purpose test | Commissioners used an impermissible lifetime-major-purpose test contrary to precedent and FECA | Commissioners applied a case-by-case major-purpose analysis considering 2012 conduct plus lifetime activity | Court did not reach merits because invocation of prosecutorial discretion foreclosed review |
| Whether the FEC abdicated statutory responsibilities such that Heckler exceptions apply (making the non-enforcement decision reviewable) | Pattern of dismissals shows an express, general non-enforcement policy or abdication warranting review | The record shows single-shot, case-by-case decisions; plaintiffs' chart insufficient to prove a conscious, express policy of nonenforcement | Plaintiffs failed to show abdication; Heckler exceptions do not apply; CREW/CHGO controls |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (discusses FECA's purpose and disclosure regime)
- Buckley v. Valeo, 424 U.S. 1 (1976) (establishes "major purpose" test and narrows "expenditure"/advocacy scope)
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that agency prosecutorial discretion is unreviewable; limited exceptions)
- CREW v. FEC (CREW/CHGO), 892 F.3d 434 (D.C. Cir. 2018) (holds FEC dismissals based in whole or in part on prosecutorial discretion are presumptively unreviewable)
- Democratic Senatorial Campaign Comm. v. FEC, 454 U.S. 27 (1981) (addresses judicial review standard for FEC enforcement decisions)
- NRSC v. FEC, 966 F.2d 1471 (D.C. Cir. 1992) (discusses Commission voting structure and reviewability principles)