D.C. Circuit Grants En Banc Review to Consider Reviewability of FEC Enforcement Discretion
On Tuesday, the U.S. Court of Appeals for the D.C. Circuit granted a petition for rehearing en banc in End Citizens United PAC v. Federal Election Commission, to consider whether FEC decisions to decline to take enforcement action are subject to judicial review as “contrary to law.” This could produce a significant outcome for the enforcement of federal election law, and perhaps for judicial review of executive branch enforcement discretion more broadly.
In January, a divided panel of the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC’s exercise of enforcement discretion. Judge Rao wrote for the court, joined by Judge Katsas. Judge Pillard dissented. From Judge Rao’s opinion:
FECA allows a court to “declare that the dismissal of [a] complaint … is contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Under our precedents, a dismissal is “contrary to law” if “(1) the FEC dismissed the complaint as a result of an impermissible interpretation of [FECA] … or (2) if the FEC’s dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). To the extent we review dismissals for arbitrariness, our review is “[h]ighly deferential,” “presumes the validity of agency action[,] and permits reversal only if the agency’s decision is not supported by substantial evidence, or the agency has made a clear error in judgment.” Hagelin v. FEC, 411
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