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.
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.”
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.
- Public Citizen, et al. v. FEC litigation page