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  • FEC Record: Litigation

CREW v. FEC (15-2038) (District court)

February 24, 2017

On February 22, 2017, the U.S. District Court for the District of Columbia granted the Commission’s motion for summary judgment and dismissed a suit brought by Citizens for Responsibility and Ethics in Washington (CREW) and its former executive director, Melanie Sloan (collectively, plaintiffs).


In 2011, the plaintiffs filed a complaint with the Commission alleging that the Commission on Hope, Growth and Opportunity (CHGO) spent over $2.3 million in the 2010 elections in violation of the Federal Election Campaign Act (the Act) by disseminating electioneering communications and independent expenditures without including proper disclaimers, reporting its activity, or registering as a political committee with the FEC. (MUR 6471). On October 1, 2015, the Commission, by a vote of three to three, did not find reason to believe that CHGO violated the Act, and the Commission then voted to close the file.

The plaintiffs filed suit in the district court on November 23, 2015, alleging that the Commission acted contrary to law. The Commission argued that it was within its discretion to dismiss the case due to the age of the case, the litigation risk that would attend proceeding in an uncertain area of law, and the potential inability to obtain any meaningful remedy from (the now defunct) CHGO. The plaintiffs contended that the Commission relied on improper legal grounds in its dismissal of their complaint.

Court decision

In determining whether a dismissal was contrary to law, the court asks whether the Commission’s decision was sufficiently reasonable to be accepted by a reviewing court. A dismissal is contrary to law if the Commission dismissed the complaint due to an impermissible interpretation of the Act or if the dismissal was arbitrary, capricious or an abuse of discretion.

The district court acknowledged its duty to grant broad prosecutorial discretion to the Commission in its decisions on whether to pursue claims of alleged violations of the Act. In this case, the court held that the Commission’s decision to dismiss the complaint was not contrary to law but was a rational exercise of its prosecutorial discretion. The court accepted the Commission’s stated reasons for dismissing the complaint—that the statute of limitations had run on the “obvious” expenditure claims and legal arguments to the contrary faced significant legal risk; that the issues surrounding whether CHGO was a political committee were novel; and that it would be difficult to prosecute and obtain meaningful remedies from a defunct organization. The court granted the Commission’s motion for summary judgment and dismissed the plaintiffs’ complaint.