Public Citizen, et al. v. FEC

On March 17, 2021, the United States District Court for the District of Columbia granted the Commission’s motion for summary judgment in Public Citizen v. FEC. The court held that the FEC’s decision not to further investigate whether Crossroads Grassroots Policy Strategies (Crossroads GPS) violated the Federal Election Campaign Act (the Act) by failing to register with the FEC as a political committee was not subject to judicial review because it was based on an application of prosecutorial discretion.

Background

In October 2010, Public Citizen, Protectourelections.org, Craig Holman, and Kevin Zeese (collectively “plaintiffs”) filed an administrative complaint alleging that Crossroads GPS violated the Act by “raising and spending significant amounts of money to influence the 2010 congressional elections” without abiding by the Act’s disclosure requirements for political committees. In December 2013, the Commission voted 3-3 on whether there was reason to believe Crossroads GPS violated the Act. The three commissioners who voted not to find reason to believe Crossroads GPS violated the Act (the “Controlling Commissioners”) issued a Statement of Reasons providing a rationale for their vote.

In January 2014, plaintiffs filed suit alleging that the Commission’s failure to find reason to believe that Crossroads GPS violated the Act was “arbitrary, capricious, an abuse of discretion and otherwise contrary to law.”

Analysis

The FEC argued that the Controlling Commissioners based their decision to vote against opening an investigation in part on prosecutorial discretion. The District of Columbia Circuit previously concluded that the exercise of prosecutorial discretion is unreviewable except in two limited instances. The first instance is “if the agency ‘has consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” The second is when the agency’s decision not to undertake an enforcement action is based entirely on its interpretation of the statute. In this case, the court found neither of these limited instances applied. The record did not show, and Public Citizen did not contend, that the Commission adopted any general policy that amounted to an abdication of its duty to enforce the Act. The Controlling Commissioners’ rationale also did not exclusively rely on an interpretation of the statute. Rather, the Controlling Commissioners explained in part of their Statement of Reasons that proceeding with an enforcement action would have required the Commission to rely on novel legal theories without public “notice of the status of the law.” The Controlling Commissioners also expressed concerns about the likelihood of success in prosecution for reasons of due process. Since the court found that neither of the limited exceptions to the unreviewability of the exercise of prosecutorial discretion applied, the court granted the Commission’s motion for summary judgment.

Source:   FEC Record — March 2021; February 2014

Appeals Court (DC Circuit)

Court decisions:

• Mandate (08/05/2015)
• Order (06/05/2015)
• Opinion (06/05/2015)
• Judgment (06/05/2015)
• Order (10/28/2014)

Related documents:

• Supplemental Brief for the FEC (02/10/2015)
• Supplemental Brief for Appellant Crossroads Grassroots Policy Strategies (02/10/2015)
• Reply Brief for Appellant Crossroads Grassroots Policy Strategies (12/19/2014)
• Brief for the FEC (12/10/2014)
• Corrected Opening Brief for Appellant Crossroads Grassroots Policy Strategies (11/20/2014)

District Court (DC)

Court decisions:

• Order (03/17/2021)
• Memorandum Opinion (03/17/2021)
• Minute Order (12/04/2015)

Related documents:

• Plaintiffs' Supplemental Brief (09/06/2016)
• Supplemental Argument of Crossroads GPS (09/06/2016)
• FEC's Supplemental Memorandum in Support of its Cross-Motion for Summary Judgment (09/06/2016)
• Crossroads Grassroots Policy Strategies' Reply Memorandum in Support of its Cross-Motion for Summary Judgment (04/07/2016)
• FEC's Reply Memorandum in Support of its Cross-Motion for Summary Judgment (04/07/2016)
• Plaintiffs' Reply Memorandum in Support of their Motion for Summary Judgment and Memorandum in Opposition to Crossroads Grassroots Policy Strategies' Cross-Motion for Summary Judgment (03/09/2016)
• Crossroads Grassroots Policy Strategies' Motion for Summary Judgment (02/08/2016)
• Defendant FEC's Amended Certified List of Contents of the Administrative Record (12/31/2015)
• Defendant FEC's Notice of Filing the Administrative Record (12/31/2015)
• Plaintiffs' Reply Memorandum in Support of their Motion for Summary Judgment and Memorandum in Opposition to Defendant's Cross-Motion for Summary Judgment (10/22/2014)
• Brief of Amicus Curiae Center for Competitive Politics in Support of Defendant (09/19/2014)
• Consent Motion for Leave to File Amicus Curiae Brief (09/17/2014)
• FEC's Memorandum of Points and Authorities in Support of its Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment (09/10/2014)
• FEC's Motion for Summary Judgment (09/10/2014)
• Plaintiffs' Motion for Summary Judgment (07/30/2014)
• Defendant FEC's Notice of Filing of its Certified List of Contents of the Administrative Record (05/08/2014)
• Defendant FEC's Answer (04/08/2014)
• Complaint (01/31/2014)