On Tuesday, the U.S. Court of Appeals for the D.C. Circuit granted no way Blanket Rehearing Petition to End Citizens United PAC v. Federal Election CommissionConsiders whether the FEC’s decision to deny enforcement action is “unconstitutional” and subject to judicial review. This could have important consequences more broadly for enforcement of federal election laws and judicial review of executive branch executive discretion.
In January Split panel in DC circuit We conclude that the Federal Election Campaign Act does not create a cause of action challenging the FEC’s exercise of enforcement discretion. Justice Rao, along with Justice Katsas, wrote the letter for the court. Judge Pillard dissented. Judge Rao’s opinion:
FECA allows courts to “declare dismissals.” [a] The complaint is contrary to law.” 52 USC § 30109(a)(8)(C). According to our precedent, “(1) if the FEC dismisses the complaint as a result of impermissible conduct, the dismissal ” “It’s against the law.” analysis [FECA] … or (2) the FEC’s dismissal of the complaint was arbitrary, capricious, or an abuse of discretion under any permissible interpretation of the statute.” Orloski v. FEC795 F.2d 156, 161 (DC Cir. 1986). “To the extent we consider dismissal to be arbitrariness, we[h]“Very generous” “Assume the agent’s actions are reasonable.[,] Revocation is permitted only when the agency’s decision is not supported by substantial evidence or when the agency made a clear error in judgment.” Hagelin v. FEC411 F.3d 237, 242 (DC Cir. 2005) (as amended); Agree with the Campaign Legal Center. & Democracy 21 v. FEC952 F.3d 352, 357 (DC Cir. 2020) (by curiam).
Contrary to statutory review, FECA does not eliminate the Commission’s prosecutorial discretion. “[T]that [Administrative Procedure Act] Longstanding precedent, rooted in the Constitution’s separation of powers, recognizes that executive decisions are generally not subject to judicial review.” new model888 at 993 F.3d; Look at Cheney too.470 US, 831–32. and “[t]Supreme Court Akins recognized that the Commission, like any other enforcement agency, has prosecutorial discretion. Ethics of Citizens Washington v. FEC475 F.3d 337, 340 (DC Cir. 2007) (citing FEC v. Akins, 524 US 11, 25 (1998)). Therefore, the conclusion is that the committee’s “exercise of prosecutorial discretion cannot be subject to judicial investigation.” conversation about hope892 F.3d at 439. Moreover, we recently reiterated that the dissolution of the Commission cannot be reviewed if:[s] All or part of this will be determined at the discretion of enforcement.” new model993 F.3d at 894. Dismissal is reviewable “only if the decision depends entirely on legal interpretation.” ID. in 884; . . .
The committee’s dismissal of the first complaint was an exercise of prosecutorial discretion that cannot be reviewed. As End Citizens United acknowledged, the Controllers explicitly invoked prosecutorial discretion in dismissing the complaint. They cited Chaney repeatedly, discussed the time and cost the investigation would take and cited the commission’s “significant backlog of cases.” Statement of Reasons 2, 10. Prioritizing particular cases and considering limited time and resources are essential elements of prosecutorial discretion. 10 If the committee’s dismissal is at least partially at the discretion of the prosecution, it is not subject to judicial review. new model993 F.3d at 884, 893–95; See also Comm’n on Hope.439 at 892 F.3d. . . .
Perhaps driven by Judge Pillard’s dissenting opinion (and the ideological make-up of the D.C. Circuit), Camapign Legal Center Action filed a petition for en banc rehearing on behalf of End Citizens United PAC. The granting of the petition suggests that a majority of the court believes D.C. Circuit case law unduly insulates FEC non-enforcement decisions from judicial review. If I had to make a prediction, the entire court would overturn the panel. But that may not be the end of the story.
that order Allowing en banc rehearings also expanded questions before the court. Specifically, the order included:
In addition to the issues raised in the Petition for Comprehensive Rehearing, the parties are directed to address the following in their briefs: Orloski v. FEC It correctly held that under 52 USC § 30109(a)(8)(C), an FEC decision may be “unconstitutional” if “the FEC’s dismissal of the complaint…is arbitrary, capricious, or an abuse of discretion.” 795 F.2d 156, 161 (DC Cir. 1986).
I suspect that adding this question will have much impact on the General Court’s decision. Because I think the majority of DC circuits are comfortable. Orlowski The extent to which it facilitates judicial review of some FEC decisions to dismiss complaints. Justice Rao, on the other hand, appears to have some reservations (as can be seen in footnote 3 of her opinion, and her response appears in footnote 2 of her dissent). But until now Orlowski If it’s on the table, could the Supreme Court more broadly review judicial review of the FEC (if not federal agencies more broadly)? This is a possibility worth watching.
