End Citizens United PAC v. FEC (21-2128 / 22-5277)

On January 19, 2024, the United States Court of Appeals for the District of Columbia Circuit upheld a district court decision that dismissed a suit brought by End Citizens United PAC (plaintiff) against the Commission and New Republican PAC.

Background

In 2018, plaintiff filed two complaints with the Commission. The first administrative complaint (Complaint One) alleged that Senator Rick Scott and his campaign violated the Federal Election Campaign Act (the Act) by failing to timely file a Statement of Candidacy, Statement of Organization and disclosure reports. It also alleged that New Republican PAC, a Super PAC, violated the Act by soliciting, receiving, or spending soft money in connection with a federal election while controlled by Scott. The second administrative complaint (Complaint Two) alleged that New Republican PAC made, and the Scott Campaign accepted and failed to report, impermissible and excessive in-kind contributions in the form of coordinated expenditures.

On May 20, 2021, the Commission voted 3-3 on whether to find reason to believe that there were any violations of the Act. The Commission then voted to close the file. Regarding Complaint One, the Commissioners who voted against proceeding issued a statement of reasons explaining the basis for their decision to invoke prosecutorial discretion. As to Complaint Two, these Commissioners voted no reason to believe that there were any violations of the Act and, therefore, declined to investigate.

On September 16, 2022, the district court dismissed the plaintiff’s suit finding that the Commission’s decisions were unreviewable and not contrary to law. Plaintiff appealed that decision.

Analysis

The appeals court determined that the Commission’s dismissal of Complaint One was an unreviewable exercise of prosecutorial discretion. The controlling Commissioners invoked the Supreme Court’s determination in Heckler v. Chaney that agency decisions not to proceed with enforcement are presumptively unreviewable. They also discussed the time and expense an investigation would involve and noted the Commission’s substantial backlog of cases. According to the appeals court, these are all quintessential elements of prosecutorial discretion. Although the district court held the dismissal of Complaint One was not reviewable because the Commission’s decision rested in part on prosecutorial discretion, the lower court mistakenly characterized it as a jurisdictional issue. The appeals court noted that the “non-reviewability of prosecutorial discretion under Chaney is not jurisdictional, rather it deprives the plaintiff of a cause of action.” The appeals court modified the district court’s judgment accordingly and affirmed.

The appeals court determined that the dismissal of Complaint Two was reviewable. The controlling Commissioners offered two legal determinations to support dismissal: whether certain acts constituted violations of the Act and whether the available evidence was sufficient for a finding of reason to believe. The appeals court concluded that the district court correctly held that the Commission’s dismissal of Complaint Two was not contrary to law.

Source: FEC Record— January 2023, August 2021

Appeals Court (DC) (22-5277)

Court decisions:

• Per Curiam Judgment (01/19/2024)
• Opinion (01/19/2024)

Related documents:

• Brief of the NRSC and the NRCC as Amici Curiae in Opposition to Appellant's Petition for Rehearing En Banc (03/11/2024)
• Unopposed Motion for Invitation to File Brief as Amici Curiae (03/08/2024)
• Response to Petition for Rehearing En Banc (03/08/2024)
• Corrected Brief of Amicus Curiae Citizens for Responsibility and Ethics in Washington in Support of Appellant's Petition for Rehearing En Banc (02/28/2024)
• Petition for Rehearing En Banc (02/20/2024)
• Appellant's Reply Brief (03/17/2023)
• Intervenor-Appellee's Brief (02/24/2023)
• Brief of Amicus Curiae Citizens for Responsibility and Ethics in Washington in Support of Plaintiff-Appellant (02/01/2023)
• Appellant's Brief (01/25/2023)

District Court (DC) (21-2128)

Court decisions:

• Order (09/16/2022)
• Memorandum Opinion (09/16/2022)
• Default (11/02/2021)

Related documents:

• Reply in Support of Intervenor-Defendant’s Cross-Motion for Summary Judgment (02/01/2022)
• Plaintiff’s Combined Memorandum of Points & Authorities in Opposition to Defendant-Intervenor’s Cross Motion for Summary Judgment and Reply in Support of Plaintiff’s Motion for Default Judgment or, in the Alternative, Summary Judgment (01/25/2022)
• Reply in Support of Intervenor-Defendant’s Renewed Motion to Dismiss Plaintiff’s Complaint (01/25/2022)
• Plaintiff's Memorandum of Points and Authorities in Opposition to New Republican PAC's Corrected Motion to Dismiss (01/18/2022)
• Intervenor-Defendant's Combined Response in Opposition Plaintiff's Motion for Default Judgment or, in the Alternative, Summary Judgment and Cross-Motion for Summary Judgment (01/18/2022)
• Response in Opposition to Plaintiff’s Motion for Default Judgment and Summary Judgment and Memorandum in Support of Cross-Motion for Summary Judgment (01/18/2022)
• Defendant-Intervenor Corrected Motion to Dismiss (12/27/2021)
• Memorandum in Supp of Intervenor-Defendant’s Renewed Motion to Dismiss (12/27/2021)
• Plaintiff’s Motion for Default Judgment Or, In the Alternative, Summary Judgment and Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Default Judgment Or, in the Alternative, Summary Judgment (12/27/2021)
• Certification (09/30/2021)
• Complaint for Declaratory and Injunctive Relief (08/09/2021)