Citizens for Responsibility and Ethics in Washington v. Federal Election Commission

55 F.4th 918 (Mem)

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Noah Bookbinder, Appellants

v.FEDERAL ELECTION COMMISSION, Appellee

No. 19-5161

United States Court of Appeals, District of Columbia Circuit.

Filed: December 12, 2022

Stuart McPhail, Litigation Counsel, Adam Jeffrey Rappaport, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Appellants.

Charles P. Kitcher, Haven G. Ward, Attorney, Kevin Andrew Deeley, Associate General Counsel, Jacob S. Siler, Federal Election Commission (FEC), Washington, DC, for Appellee.

Randy Elf, Lakewood, NY, Pro Se.

Eric Alan Isaacson, Law Office of Eric Alan Isaacson, La Jolla, CA, for Amici Curiae for Appellant Richard Blumenthal, Mazie K. Hirono, Jeffrey A. Merkley, Chris Van Hollen, Elizabeth Warren, Sheldon Whitehouse.

Gary William Kubek, Debevoise & Plimpton LLP, New York, NY, Daniel I. Weiner, Deputy Director, Brennan Center for Justice, Washington, DC, for Amicus Curiae for Appellant Brennan Center for Justice at NYU School of Law.

Matthew Drecun, Minsuk Han, Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington, DC, for Amici Curiae for Appellant Richard Briffault, Jennifer Nou, Bertrall Ross, Douglas Spencer, Nicholas Stephanopoulos, Ciara Torres-Spelliscy, Abby K. Wood.

Tara Malloy, Megan Patricia McAllen, Paul March Smith, Esquire, Attorney, Campaign Legal Center, Washington, DC, for Amicus Curiae for Appellant Campaign Legal Center.

Michael Caplan, Cameron B. Roberts, Caplan Cobb LLC, Atlanta, GA, for Amici Curiae for Appellant Seth Davis, Miriam Galston, Jeffrey Lubbers, Sidney A. Shapiro, Peter L. Strauss, Daniel E. Walters, Kimberly Wehle.

Before: Srinivasan, Chief Judge; Henderson^** , Millett^*** , Pillard^***, Wilkins, Katsas^**, Rao^**, Walker^**, Childs^* , and Pan^*, Circuit Judges

ORDER

Per Curiam

Appellants’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, and the motions of movant-amici Election Law Scholars, Senators Sheldon Whitehouse, et al., Professors of Administrative Law, Brennan Center for Justice at NYU Law School, and Campaign Legal Center for leave to participate as amici curiae in support of appellants’ petition for rehearing en banc, and the lodged briefs amici curiae, it is

ORDERED that the motions be granted. The Clerk is directed to file the lodged briefs amici curiae. It is

FURTHER ORDERED that the petition be denied.

Rao, Circuit Judge, with whom Circuit Judges Henderson, Katsas, and Walker join, concurring in the denial of rehearing en banc:

The Federal Election Commission's decision to dismiss a complaint on the grounds of prosecutorial discretion is not judicially reviewable, and I therefore concur in the denial of the petition for rehearing en banc. As explained in detail in the panel opinion, courts cannot review the exercise of enforcement discretion committed to executive agencies, including the Commission. See Citizens for Resp. & Ethics in Wash. v. FEC ("New Models "), 993 F.3d 880 (D.C. Cir. 2021). In our structure of separated powers, "an agency's refusal to institute proceedings" falls within "the special province of the Executive Branch"—a province the judiciary cannot invade. Heckler v. Chaney , 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ; U.S. CONST. art. II, § 1. The Administrative Procedure Act ("APA") enshrines this principle by explicitly withholding judicial review of matters "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Federal Election Campaign Act ("FECA") leaves such executive discretion in place, consistent with the Constitution and the APA. FECA importantly provides for judicial review of decisions "contrary to law," 52 U.S.C. § 30109(a)(8)(C), but the Commission may decline to move forward with an enforcement action for reasons of prosecutorial discretion and such decisions cannot be reviewed by this court.

* * *

The dissent expresses consternation about the inability of this court to oversee the Commission's non-enforcement decisions. But nowhere does it contest that the Commission retains prosecutorial discretion or that a decision based entirely, or even in some substantial part, on such discretion would be unreviewable. Here, it is clear the so-called "controlling commissioners" declined to proceed against New Models for reasons of prosecutorial discretion, and also, independently, for legal reasons. The dissent argues we must be able to review the independent legal reasons. But, as the Supreme Court has repeatedly admonished, courts cannot simply pluck out legal questions from nonreviewable decisions.¹ ICC v. Bhd. of Locomotive Eng'rs , 482 U.S. 270, 283, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) ; see also Ass'n of Civilian Technicians, Inc. v. FLRA , 283 F.3d 339, 343 (D.C. Cir. 2002) (explaining the Supreme Court has "square[ly] reject[ed] the notion of carving reviewable legal rulings out from the middle of non-reviewable actions") (cleaned up). FECA does not alter this basic rule. See FEC v. Akins , 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) ; New Models , 993 F.3d at 890–92. The Commission's non-enforcement discretion is thus unreviewable, irrespective of how many pages the controlling commissioners devote to legal analysis and how many to explaining the exercise of prosecutorial discretion.

In FECA, Congress created an unusual, evenly divided, bipartisan Commission. Of the six commissioners, no more than three can be from "the same political party." 52 U.S.C. § 30106(a)(1). Every step of the enforcement process requires "an affirmative vote of 4" commissioners, which means at least some bi-partisan agreement. Id. § 30106(c). Upon receiving a complaint, the Commission may begin an investigation only after four commissioners find there is "reason to believe" a person has committed or may commit a violation of FECA. Id. § 30109(a)(2). After an investigation, four commissioners must agree there is "probable cause" to find the respondent has committed a violation of FECA. Id. § 30109(a)(4)(A)(i). Upon a finding of probable cause, the Commission must for at least 30 days seek to remedy the violation through "conference, conciliation, and persuasion." Id. The Commission must endeavor to enter into a conciliation agreement, which also requires four votes. Id. If such conciliation measures fail, the Commission may "institute a civil action for relief," but only after yet another affirmative vote of four commissioners. Id. § 30109(a)(6)(A).

In FECA's carefully articulated enforcement process, Congress required the Commission to clear a series of bipartisan vetogates before commencing an enforcement action. If four votes are lacking at any step of enforcement, no action moves forward. The statutory arithmetic means three of the six commissioners may block further investigation or enforcement of a complaint. The number is fewer still if the Commission has vacancies, which it often does. This case, for instance, arose when the Commission had only four commissioners and two voted against enforcement.

The dissent repeatedly denounces the control exerted by a "minority" of the Commission.² That concern arises not from the panel opinion, but from Congress's requirement that four of six commissioners agree to enforcement actions. By legislative design, three commissioners, or half, may prevent enforcement. The dissent simply ignores FECA's four-commissioner requirements, "undermin[ing] the carefully balanced bipartisan structure which Congress has erected." Common Cause v. FEC , 842 F.2d 436, 449 n.32 (D.C. Cir. 1988).

Congress created a limited safety valve for Commission dismissals and inaction. An aggrieved party may file a complaint in court, but judicial review is restricted to "declar[ing] that the dismissal of the complaint or the failure to act is contrary to law." 52 U.S.C. § 30109(a)(8)(C). As the dissent concedes, "[t]he commissioners did not reference their merits analysis as a ground for exercising prosecutorial discretion." Dissenting Op. 925. Instead, the controlling commissioners explained the exercise of prosecutorial discretion was based on "the age of the activity and the fact that the organization appears no longer active." Statement of Reasons of Vice Chair Caroline C. Hunter and Commissioner Lee E. Goodman at 31 n.139, MUR 6872 (New Models) (Dec. 20, 2017). Because the controlling commissioners relied on an independent ground of prosecutorial discretion, this court has no basis for declaring that decision "contrary to law." Moreover, judicial review of the Commission's separate legal reasons would risk an advisory opinion, for the court would not, and could not, disturb the Commission's bottom line. See New Models , 993 F.3d at 889. The non-reviewability of the Commission's dismissal in this case comports with FECA's limited judicial review provision.

The dissent also worries that commissioners will hide behind prosecutorial discretion to avoid judicial review. That concern has proven to be overstated. Since New Models was decided, the Commission has dismissed numerous complaints without invoking prosecutorial discretion, allowing those decisions to be reviewed.³

Perhaps of greater concern are the actions of some commissioners, in the wake of New Models , concealing the basis for Commission action or inaction. In some cases, when the Commission has lacked four votes to proceed and the controlling commissioners have relied on prosecutorial discretion, the Commission is failing to make these decisions public.⁴ As a consequence, the party complaining to the Commission, the target of the complaint, and the district court are all left in the dark about whether and how the Commission has acted. When lawsuits are initiated to challenge the perceived inaction, the Commission has sometimes failed to appear to defend against the...