Amicus: FEC’s failure to enforce the law must be able to be challenged in court

Americans must be able to seek relief in court for violations of campaign finance law when the Federal Election Commission is unable or unwilling to enforce the law, according to an amicus filed by Citizens for Responsibility and Ethics in Washington in End Citizens United PAC v. FEC. 

The DC Circuit, in considering this case, has taken an important step towards correcting erroneous case law that effectively shut the door on campaign finance enforcement. Poorly reasoned decisions in CHGO and New Models functionally terminated judicial review of the FEC’s failures to enforce, granting a partisan non-majority of the FEC the “superpower” to kill any FEC enforcement matter free of any accountability, by invoking “prosecutorial discretion.” Congress structured the FEC to avoid partisan control over the agency, requiring FEC actions to occur on a bipartisan basis. But to prevent partisan gridlock and to combat wrongdoing when the FEC proved unable or unwilling to do its job, Congress also incorporated measures such as private litigation and judicial review, both of which have been functionally blocked by these decisions.

In this case, End Citizens United alleges that Rick Scott, a Senate candidate, took and failed to timely disclose excessive funds from prohibited sources prior to declaring his run, amassing a war chest of unlawful funds to support his intended candidacy. The FEC deadlocked on the complaint, with a majority eventually voting to dismiss the complaint in light of the deadlock.  End Citizens United sought judicial review, which was then blocked by 3 partisan commissioners, who cited “prudential considerations”—the “superpower” created by the CHGO and New Models decisions, foreclosing litigation and judicial review. Despite that, End Citizens United asked the D.C. Circuit to reconsider the decisions and  permit it its day in court, just as Congress intended and the law requires. 

Since CHGO and New Models, the FEC has repeatedly blocked claims against Donald Trump and his political allies, leaving the people harmed by campaign malfeasance and illegal dark money without an avenue for recourse. This dysfunction should not be allowed to continue, and the D.C. Circuit should restore Americans’ right to seek their own relief when the FEC proves unable or unwilling to enforce by restoring the statute as written and allowing Americans to have their day in court.

Illustration by Caleb Chen/CREW | Photo texture from Texturelabs