CREW v. FEC (New Models)


At a Glance

This case considers whether the FEC can shield its enforcement decisions from any court review whenever a minority of commissioners invoke “prosecutorial discretion” as one reason for dismissing serious alleged violations of campaign finance law.

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About this Case

The Center for Responsibility and Ethics in Washington (CREW) filed an administrative complaint with the Federal Election Commission (FEC) in 2014, alleging that a self-described 501(c)(4) “issues” group called New Models had violated important transparency provisions in federal campaign finance law by spending millions of dollars to influence the 2012 elections without registering as a political committee and making required disclosures about its activities and donors.

The administrative complaint detailed how New Models funneled millions of dollars—and a substantial majority of its annual budget—to super PACs in 2012, demonstrating that its “major purpose” was influencing elections for federal office. Although the FEC’s General Counsel recommended finding that there was reason to believe New Models had violated the law, the Commission deadlocked 2-2 and closed the case.

CREW’s lawsuit challenges the decision of the two FEC commissioners who voted to dismiss its complaint and asks the court to direct the FEC to take action to determine whether New Models failed to make required disclosures.

These two no-voting commissioners, whose decision is considered “controlling” for the purposes of court review, explained why they found that New Models was not required to register and report as a political committee in a lengthy written analysis of the statute and judicial precedent. CREW argues the commissioners’ analysis relied on incorrect interpretations of the campaign finance laws and should be set aside.

However, because the no-voting commissioners also included a perfunctory reference to the FEC’s “prosecutorial discretion” in the final sentence of their 31-page Statement of Reasons, the lower court concluded that it could not review the legal merits of their analysis. Instead, it found that a recent D.C. Circuit decision makes any FEC enforcement dismissal containing even a glancing reference to “prosecutorial discretion” automatically unreviewable in court—however much the dismissal was actually based on faulty legal analysis.

CREW appealed the district court’s ruling to the D.C. Circuit Court of Appeals.

CLC filed a friend-of-the-court brief in the D.C. Circuit in October 2019. The brief argues that the district court’s decision should be set aside because it rests on an unwarranted expansion of the FEC’s enforcement discretion that conflicts with Congress’s clear intent to provide for judicial review of the FEC’s refusal to take action on citizen complaints. The brief also argues that giving partisan minority blocs of commissioners the ability to shut down all judicial review of their decisions frustrates the careful partisan balance reflected in nearly every aspect of the agency’s design.

What’s at stake?

Transparency is a core purpose of the federal campaign finance laws, which mandate accurate reporting from individuals, groups, and entities that raise and spend money to influence federal elections. One key means of accomplishing this goal is by requiring registration and comprehensive reporting for “political committees,” groups that make $1,000 in contributions or expenditures in a calendar year and have a major purpose of influencing federal elections.

But the efficacy of these crucial transparency provisions depends on an FEC that enforces the law. Deadlocks at the six-member FEC—which requires four affirmative votes to take most actions—have persistently stymied enforcement action, especially in cases involving disclosure violations like those allegedly committed by New Models. When the FEC or a controlling bloc of commissioners refuses to take action on an enforcement complaint based on a legally unsustainable rationale, the courts must step in to correct the error. Preserving a robust judicial check on the Commission’s failure to enforce the law is a key means of securing a more accountable FEC.

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District Court
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