Summary
End Citizens United PAC is challenging precedents in the U.S. Court of Appeals for the District of Columbia Circuit that bar courts from reviewing deadlocked enforcement decisions by the Federal Election Commission (FEC) if the bloc of commissioners who prevented enforcement cited “prosecutorial discretion” anywhere in their reasoning. With co-counsel Debevoise & Plimpton LLP, the Brennan Center filed an amicus brief along with prominent election law scholars arguing that the D.C. Circuit’s approach violates the plain text of the Federal Election Campaign Act (FECA) and exacerbates the already significant dysfunction of the Federal Election Commission.
Case Background
Under federal campaign finance law, alleged violations must be brought to the FEC, which has exclusive authority to pursue civil penalties in federal court. The law also lets private parties bring suits when the FEC has resolved a case in a manner “contrary to law.” Increasingly, however, rather than resolving complaints on the merits, the FEC simply declines to pursue them based on “prosecutorial discretion.” And in several recent cases, the D.C. Circuit has held that these decisions are unreviewable, effectively leaving no check against the FEC’s refusal to enforce the law.
End Citizens United PAC filed two administrative complaints against Senator Rick Scott and the single-candidate super PAC that supported him in the 2018 election, New Republican PAC. The complaints alleged that Scott’s campaign and the super PAC violated federal campaign finance laws by submitting late filings, making and accepting excessive in-kind contributions, and engaging in other improper activity. In 2022, the Commission deadlocked on whether to investigate these allegations and closed the file. End Citizens United PAC promptly brought a lawsuit challenging the Commission’s decision. But because the Commission cited prosecutorial discretion in its dismissal, the district court and a divided circuit panel held that the decision was not reviewable. Now, the D.C. Circuit has agreed to rehear the case en banc, setting the stage for the court to overturn its erroneous precedents.
In an amicus brief, the Brennan Center and prominent election law scholars explain how the D.C. Circuit’s current approach is inconsistent with FECA’s plain text and Congress’s intent that courts should exercise expanded judicial review to ensure the FEC carries out its enforcement duties as outlined in statute. The brief further details the pervasive dysfunction at the FEC and explains how the lack of judicial review has exacerbated the Commission’s problems.
Oral argument in the en banc rehearing is scheduled for February 25, 2025.
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