chevron-down Created with Sketch Beta.

Administrative & Regulatory Law News

Winter 2023 — Recapping a Landmark Year in Administrative and Regulatory Law

The D.C. Circuit Denies Rehearing En Banc Regarding FEC Nonenforcement

Aaron L. Nielson

Summary

  • The D.C. Circuit has previously held that Federal Election Commission decisions driven by prosecutorial discretion are not reviewable.
  • In Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, the Court held that the same principle would also apply to decisions driven by a combination of prosecutorial discretion and legal interpretation.
The D.C. Circuit Denies Rehearing En Banc Regarding FEC Nonenforcement
Colors Hunter - Chasseur de Couleurs via Getty Images

Jump to:

Agency nonenforcement is an important but vexing aspect of administrative law. On the one hand, nonenforcement can safeguard liberty. As Zach Price documented in his article Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014), “a central normative reason for separating legislative and executive functions, as articulated by Montesquieu, the Federalist Papers, and other foundational sources, is to create a safety valve that protects citizens from overzealous enforcement of general prohibitions.” Furthermore, because agencies do not have infinite resources, it may not be possible to pursue every matter. On the other hand, declining to enforce the law may open the door to bias, regulatory leveraging (i.e., when an agency leverages its enforcement authority to essentially trade nonenforcement for something the agency wants more, perhaps in pursuit of a policy that Congress has not authorized), and even nullification of legislation. The liberty and separation-of-powers implications of an agency’s decision to stand down therefore can be significant.

In April 2021, a divided panel of the D.C. Circuit decided Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 993 F.3d 880 (D.C. Cir. 2021) (hereinafter New Models), an important case about when an agency’s nonenforcement decisions are reviewable. In particular, the Court examined the following question: What happens if an agency’s explanation for nonenforcement rests on both a legal conclusion and an exercise of prosecutorial discretion? The D.C. Circuit has previously held—in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 892 F.3d 434 (D.C. Cir. 2018) (hereinafter Commission on Hope)—that Federal Election Commission (FEC) decisions driven by prosecutorial discretion are not reviewable. In New Models, the Court held that the same principle would also apply to decisions driven by a combination of prosecutorial discretion and legal interpretation. In December 2022, the D.C. Circuit declined to rehear New Models en banc.

The facts of New Models are straightforward. The FEC deadlocked 2-2 regarding whether to pursue an enforcement action against a particular entity called New Models that arguably was violating campaign finance laws. But deadlock precluded the FEC (which requires a majority vote to move forward) from pursuing the matter. The commissioners who voted against bringing an enforcement action offered two reasons: (i) New Models was not a “political committee” and (ii) “proceeding further would not be an appropriate use of Commission resources.” The FEC’s explanation for the first reason—that New Models was not a political committee in the first place—received significantly more ink than the second. Pursuant to a federal statute that allows private parties to challenge FEC nonenforcement decisions that are “contrary to law,” Citizens for Responsibility and Ethics in Washington (CREW) challenged the FEC’s decision in court.

In New Models, Judge Neomi Rao’s majority opinion held that “the Commissioners who voted against enforcement invoked prosecutorial discretion to dismiss CREW’s complaint, and we lack the authority to second guess a dismissal based even in part on enforcement discretion.” Judge Rao explained that precedent—reinforced by first principles—compels that decision. After all, she reasoned, “[w]e cannot accept CREW’s invitation to ignore our recent decision in Commission on Hope and turn our back on longstanding precedents that are grounded in Article II of the Constitution and the [Administrative Procedure Act’s (APA)] bar on judicial review of decisions committed to agency discretion by law.” In dissent, Judge Millett disagreed that “a federal agency can immunize its conclusive legal determinations and evidentiary analyses from judicial review simply by tacking a cursory reference to prosecutorial discretion onto the end of a lengthy and substantive merits decision.”

The Court’s order refusing to rehear New Models en banc—notably, issued more than a year and a half after the panel decision—gave Judges Rao and Millett another opportunity to return to their disagreement. Judge Rao, joined by three judges, wrote a concurrence to the Court’s refusal to rehear the case to defend the panel’s decision as supported by precedent and foundational constitutional principles, while Judge Millett, joined by another judge, derided the Court’s decision as a threat to “the rule of law.” Given the high stakes and conflicting principles at play, it is safe to predict future disagreements about agency nonenforcement.