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End Citizens United’s complaints, which were all rejected by the FEC, alleged that New Republican had impermissibly coordinated its activities with Senator Scott to benefit his eventual Senate campaign, prior to his candidacy, and after he became a candidate. In their Statement of Reasons, the FEC’s controlling commissioners voted against enforcement. Regarding the first complaint, the FEC explicitly invoked prosecutorial discretion, concluding that it would be unwise to “authoriz[e] an expensive and resource consuming investigation while the Commission is … working through a substantial backlog of cases,” while also offering legal and evidentiary reasons for dismissal. Addressing the second complaint, the FEC determined that there was no reason to believe that unlawful coordination had occurred. After End Citizens United filed suit in the U.S. District Court for the District of Columbia challenging the FEC’s dismissals and New Republican intervened to defend the dismissals, Judge Richard J. Leon granted summary judgment in favor of New Republican.

End Citizens United appealed to the D.C. Circuit, which then affirmed the district court’s decision. In a 2-1 decision authored by Judge Neomi Rao, the D.C. Circuit affirmed its longstanding precedents “rooted in the Constitution’s separation of powers” that agency decisions not to enforce based on prosecutorial discretion are not subject to judicial scrutiny. The Court affirmed that an agency’s dismissal is “entirely unreviewable if it depends even in part on enforcement discretion,” as was the case with the FEC’s dismissal of the first complaint. And while Court agreed that the second complaint was reviewable, it applied an “extremely deferential” review to the FEC’s findings and determined that the controlling commissioners reasonably concluded that the record provided no reason to believe a coordination violation had occurred.

In her opinion, concurring-in-part and dissenting-in-part, Judge Cornelia Pillard agreed that the FEC’s dismissal of the second complaint was not contrary to law but dissented from the majority’s ruling about the non-reviewability of the first complaint. In Judge Pillard’s view, the majority wrongly relied on the D.C. Circuit’s recent Commission on Hope and New Models decisions because those decisions allegedly contravene the Federal Election Campaign Act (“FECA”) and conflict with earlier Supreme Court and D.C. Circuit precedents, making those decisions not binding on the panel. Alternatively, Judge Pillard maintains that some of the claims from End Citizens United’s first complaint are reviewable because the controlling commissioners’ invocation of prosecutorial discretion allegedly did not extend to all claims in that complaint. The majority rejected this view because the controlling commissioners’ Statement of Reasons included an explicit determination that “this Matter merited the invocation of our prosecutorial discretion” and defined “Matter” to include all of the first complaint, rather than just some of the claims.

While it is unclear whether en banc review will be sought in this case, the D.C. Circuit denied a petition for rehearing en banc when it last considered this issue in December 2022.

For questions about representation in FEC matters or other agency proceedings, or for more information about any issues raised in this case, please reach out to one of the above referenced attorneys or your personal Holtzman Vogel contact.

[1] See Citizens for Resp. & Ethics in Wash. v. FEC (“New Models”), 993 F.3d 880 (D.C. Cir. 2021); Citizens for Resp. & Ethics in Wash. v. FEC (“Commission on Hope”), 892 F.3d 434 (D.C. Cir. 2018).