On Tuesday, the U.S. Court of Appeals for the D.C. Circuit granted a petition for rehearing en banc in End Citizens United PAC v. Federal Election Commission, to consider whether FEC decisions to decline to take enforcement action are subject to judicial review as “contrary to law.” This could produce a significant outcome for the enforcement of federal election law, and perhaps for judicial review of executive branch enforcement discretion more broadly.
In January, a divided panel of the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC’s exercise of enforcement discretion. Judge Rao wrote for the court, joined by Judge Katsas. Judge Pillard dissented. From Judge Rao’s opinion:
FECA allows a court to “declare that the dismissal of [a] complaint … is contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Under our precedents, a dismissal is “contrary to law” if “(1) the FEC dismissed the complaint as a result of an impermissible interpretation of [FECA] … or (2) if the FEC’s dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). To the extent we review dismissals for arbitrariness, our review is “[h]ighly deferential,” “presumes the validity of agency action[,] and permits reversal only if the agency’s decision is not supported by substantial evidence, or the agency has made a clear error in judgment.” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (cleaned up); accord Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 357 (D.C. Cir. 2020) (per curiam).
FECA’s contrary to law review does not eliminate the Commission’s prosecutorial discretion. “[T]he [Administrative Procedure Act] and longstanding … precedents rooted in the Constitution’s separation of powers recognize that enforcement decisions are not ordinarily subject to judicial review.” New Models, 993 F.3d at 888; see also Chaney, 470 U.S. at 831–32. And “[t]he Supreme Court in Akins recognized that the Commission, like other Executive agencies, retains prosecutorial discretion.” Citizens for Resp. & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (citing FEC v. Akins, 524 U.S. 11, 25 (1998)). It follows that the Commission’s “exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny.” Comm’n on Hope, 892 F.3d at 439. Furthermore, we recently reiterated that a Commission dismissal is unreviewable if it “turn[s] in whole or in part on enforcement discretion.” New Models, 993 F.3d at 894. A dismissal is reviewable “only if the decision rests solely on legal interpretation.” Id. at 884; . . .
The Commission’s dismissal of the first complaint is an unreviewable exercise of its prosecutorial discretion. As End Citizens United concedes, the controlling commissioners expressly invoked their prosecutorial discretion when dismissing the complaint. They cited Chaney repeatedly, discussed the time and expense an investigation would involve, and mentioned the Commission’s “substantial backlog of cases.” Statement of Reasons at 2, 10. Prioritizing particular cases and considering limited time and resources are quintessential elements of prosecutorial discretion. When the 10 Commission’s dismissal rests even in part on prosecutorial discretion, it is not subject to judicial review. New Models, 993 F.3d at 884, 893–95; see also Comm’n on Hope, 892 F.3d at 439. . . .
Perhaps buoyed by Judge Pillard’s dissent (and the ideological makeup of the D.C. Circuit), Camapign Legal Center Action filed a petition for rehearing en banc on behalf of the End Citizens United PAC. The grant of their petition suggests that a majority of the court believes D.C. Circuit caselaw over-insulates FEC non-enforcement decisions from judicial review. If I had to make a prediction, the full court will reverse the panel–but that may not be the end of the story.
The order granting en banc rehearing also expanded the questions before the court. Specifically the order included the following:
In addition to the issues raised in the petition for rehearing en banc, the parties are directed to address in their briefs whether Orloski v. FEC correctly held that an FEC decision can be “contrary to law” under 52 U.S.C. § 30109(a)(8)(C) “if the FEC’s dismissal of the complaint . . . was arbitrary or capricious, or an abuse of discretion.” 795 F.2d 156, 161 (D.C. Cir. 1986).
I doubt the addition of this question will have much effect on the en banc court’s decision, as I suspect a majority of the D.C. Circuit is comfortable with Orloski and the extent to which it facilitates judicial review of some FEC decisions to dismiss complaints. Judge Rao, on the other hand, appears to have some doubts (as indicated by footnote 3 in her opinion, which draws a response in footnote 2 of the dissent). But insofar as Orloski is on the table, could that set up a broader review of judicial review of the FEC (if not federal agencies more broadly) by the Supreme Court? This is a possibility worth watching.
