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.
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.
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.
- End Citizens United PAC v. FEC and New Republican PAC (21-2128/22-5277) litigation page