CREW asked the DC Circuit to reject a recent line of cases that granted the FEC “unreviewable discretion” to decide when to apply campaign finance law in an amicus brief filed today. CREW filed the brief in support of the Campaign Legal Center (CLC) and Democracy 21’s suit against the FEC over its failure to bring to justice the originators of over $14 million in contributions funneled to super PACs through several straw donor LLCs, illegally hiding the originators’ identities from the public.
The three GOP commissioners of the FEC blocked enforcement over the illegal straw donations, claiming the law’s prohibition on straw donors did not clearly apply to LLCs. The three GOP commissioners cited that purported lack of clarity as reason to exercise their discretion to decline enforcement. CLC and Democracy 21 challenged that failure using the Federal Election Campaign Act’s provision authorizing judicial review of the FEC’s failure to enforce.
In both the district court and on appeal, the FEC pointed to decisions in two recent CREW vs. FEC cases to argue that the agency has unreviewable discretion to decide when to apply the law, notwithstanding the statutory command to the contrary. It is using this reasoning to push back on CLC and Democracy 21’s suit against the FEC for inaction against the contributors who hid their identities behind LLCs.
CREW is challenging the dangerous idea that campaign finance laws are contingent on the whim of a partisan bloc of the FEC. CREW has asked for the DC Circuit to declare that the prior decisions on which the FEC relies for its claimed immunity are an aberration and for the court to restore Congress’s decision to subject the FEC’s ineffectiveness to judicial review. The straw-donors and the FEC should not be above the law.