The DC Court of Appeals should reject the National Rifle Association’s appeal of the lower court’s ruling that the Federal Election Commission (FEC) failed to act in a series of complaints filed by Giffords against the NRA.

In 2019, Giffords, a nonprofit organization led by former Congresswoman Gabrielle Giffords, sued the FEC for failing to to act on administrative complaints alleging that the NRA violated the Federal Election Campaign Act (FECA) for its unlawful coordination of campaign expenditures. In 2021, the district court concluded that the deadlocked FEC “unreasonably delayed its consideration” of the administrative complaints and because it could not move toward a bipartisan compromise, it failed to act. The NRA, which wasn’t a party to the suit, filed a motion to overturn the court’s judgement, claiming that deadlocked votes were all that FECA required of the FEC. The court denied this motion, and the NRA filed an appeal.

The NRA and its supporting amici—the Institute for Free Speech, a pro-dark money group, and the federal government—claim that the FEC process was “weaponized” because Republican FEC commissioners were not able to unilaterally block Giffords from pursuing its own remedy in court. CREW’s amicus brief aims to correct this misrepresentation.

As the brief lays out, the FEC was designed as a bipartisan agency to protect both respondents and complainants and safeguard both groups’ First Amendment rights. This bipartisan structure ensures that “every important action”—whether to investigate or dismiss—is the result of bipartisan compromise. The decision of a commissioner to refuse to dismiss a complaint is not “weaponization” but rather, a good faith exercise of judgement about the likelihood of progress and legal impacts of dismissal. No single party has a veto over FECA enforcement. If the FEC is deadlocked, FECA permits complainants to pursue their claim in court on their own, just as Giffords did. 

The NRA also claims that the FEC’s confidentiality rules contributed to this supposed “weaponization.” In actuality, the law gives respondents, not commissioners, control over the confidentiality of ongoing FEC matters. Recent cases that involved courts ruling on FEC proceedings without understanding the events at the agency are the result of respondents’ choices. A single commissioner could not deprive courts of information. And contrary to the NRA and its amici’s concerns, the court was fully informed about the FEC’s deadlocked votes and accordingly found a failure to act.

While the NRA’s assertions of “weaponization” ring hollow, commissioners trying to block enforcement have in fact weaponized proceedings. They have refused to disclose the justification for dismissal that a court would review, even as they demand their deprived colleagues’ vote to dismiss. Over the years, as partisan deadlock has become the norm for the FEC, commissioners have admitted that they will refuse to enforce the law in an evenhanded matter and would rather vote out of loyalty to their partisan allies, abusing processes to give them cover. These actions undermine the FEC’s bipartisan structure and deprive complainants of a fair hearing. Refusing to support that corrupt process is not “weaponization”—it is what the FECA’s bipartisan safeguards are designed to protect.

For these reasons, the DC Court of Appeals must reject the NRA’s appeal of the lower court’s judgement on the FEC’s failure to act.

Read the amicus here.

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