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Citizens for Responsibility and Ethics in Washington et al. v. FEC

CREW is seeking en banc review of D.C. circuit precedent that has precluded judicial review in many cases where the FEC has failed to enforce campaign finance laws. The Brennan Center filed a brief in support of en banc review to provide additional context regarding the FEC’s failure to enforce the law.

Last Updated: June 30, 2021
Published: June 30, 2021

Summary

Citizens for Respons­ib­il­ity and Ethics in Wash­ing­ton (CREW) and it’s Pres­id­ent, Noah Book­binder, are seek­ing en banc review of a decision by the U.S. Court of Appeals for the District of Columbia Circuit that bars courts from review­ing dead­locked enforce­ment decisions by the Federal Elec­tion Commis­sion if the bloc of commis­sion­ers who preven­ted enforce­ment cited “prosec­utorial discre­tion” anywhere in their reas­on­ing. The Bren­nan Center filed an amicus brief with co-coun­sel Debevoise & Plimp­ton, LLP urging the court to take the case en banc, arguing that the D.C. Circuit panel’s decision has exacer­bated the already signi­fic­ant dysfunc­tion of the Federal Elec­tion Commis­sion.

Case Background

Over the last decade, as Repub­lican and Demo­cratic lead­ers have become more polar­ized on campaign finance and other elec­tion law issues, the evenly divided Federal Elec­tion Commis­sion has dead­locked on whether to even invest­ig­ate most signi­fic­ant enforce­ment cases. Recent D.C. Circuit preced­ents preclud­ing judi­cial review in many of these cases have exacer­bated the prob­lems asso­ci­ated with non-enforce­ment of campaign finance laws.

CREW filed an admin­is­trat­ive complaint with the FEC against New Models, a now defunct nonprofit that funneled money to Super PACs during the 2012 elec­tion, arguing that based on its spend­ing New Models should have registered as a polit­ical commit­tee with the FEC, which would have required it to disclose its donors. The FEC dead­locked 2–2 on whether to open an invest­ig­a­tion, primar­ily based on commis­sion­ers’ differ­ing legal views. But the Repub­lican commis­sion­ers who blocked enforce­ment also included a brief foot­note invok­ing their “prosec­utorial discre­tion”—i.e. the tradi­tional leeway exec­ut­ive agen­cies receive in decid­ing which legal viol­a­tions to pursue. After CREW sued the FEC for its fail­ure to enforce the law, both the trial court and the D.C. Circuit ruled that this brief allu­sion to prosec­utorial discre­tion precluded the court from review­ing the FEC’s decision. CREW has now filed a peti­tion for an en banc rehear­ing in the D.C. Circuit Court of Appeals.

The Bren­nan Center’s brief explains the import­ance of judi­cial review in ensur­ing the FEC carries out its enforce­ment duties as outlined in stat­ute, details the pervas­ive dysfunc­tion at the FEC, and lays out how the D.C. Circuit panel’s ruling exacer­bates the Commis­sion’s prob­lems.