On March 29, 2019, the United States District Court for the District of Columbia granted summary judgment to the Commission, denying the same to Citizens for Responsibility and Ethics in Washington (CREW) and Noah Bookbinder (plaintiffs).
On September 17, 2014, CREW and its then-executive director Melanie Sloan filed an administrative complaint with the FEC against New Models, a tax-exempt group organized under section 501(c)(4) of the Internal Revenue Code. The complaint alleged that in 2012, New Models made numerous contributions totaling more than $3 million to various Super PACs with the purpose of influencing federal elections. CREW later amended its administrative complaint to substitute its new executive director Noah Bookbinder.
The FEC considered the allegations contained in the administrative complaint but was equally divided on whether to find reason to believe New Models violated the Act. The Commissioners voting not to proceed concluded that New Models did not meet the statutory threshold for political committee status and also lacked the requisite major purpose. Those Commissioners also concluded that “proceeding further would not be an appropriate use of Commission resources.” On November 14, 2017, the Commission voted to close the file and dismiss the plaintiffs’ complaint.
On January 12, 2018, plaintiffs filed suit against the FEC in the United States District Court for the District of Columbia. Plaintiffs sought injunctive and declaratory relief under the Federal Election Campaign Act (the Act), claiming that the FEC’s dismissal of their complaint against New Models was arbitrary, capricious, an abuse of discretion, and contrary to law.
The Act authorizes judicial review of the Commission's non-enforcement decisions. The Commission's judgment on how to best allocate its resources has been held, however, to be non-reviewable. In this instance, the controlling statement of the Commissioners voting not to proceed included an analysis of whether the resources of the Commission should be devoted to the matter. The court noted that “the Controlling Commissioners declined to move forward with Plaintiffs' administrative complaint, at least in part, on the basis of prosecutorial discretion.” As a result, that decision is “unreviewable.”
Editor's note: On May 28, 2019, Plaintiffs filed a Notice of Appeal in the U.S. District Court for the District of Columbia.