Citizens for Responsibility v. FEC [ORDER IN SLIP OPINION FORMAT]

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



                  Filed: December 12 , 2022

                         No. 19-5161

 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
                AND NOAH BOOKBINDER,
                      APPELLANTS

                               v.

              FEDERAL ELECTION COMMISSION,
                        APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:18-cv-00076)


              On Petition for Rehearing En Banc


Before: S RINIVASAN , Chief Judge; H ENDERSON **,
MILLETT***, PILLARD***, WILKINS, KATSAS**, RAO**,
WALKER**, CHILDS*, and PAN*, Circuit Judges

                          ORDER

     Appellants’ petition for rehearing en banc and the response
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
                                2

consideration of the foregoing, and the motions of movant-
amici Election Law Scholars, Senators Sheldon Whitehouse, et
al, Professors of Administrative Law, Brennan Center for Justice
at NYU Law School, and Campaign Legal Center for leave to
participate as amici curiae in support of appellants’ petition for
rehearing en banc, and the lodged briefs amici curiae, it is

     ORDERED that the motions be granted. The Clerk is
directed to file the lodged briefs amici curiae. It is

    FURTHER ORDERED that the petition be denied.


                          Per Curiam


                                     FOR THE COURT:
                                     Mark J. Langer, Clerk

                            BY:      /s/
                                     Daniel J. Reidy
                                     Deputy Clerk


* Circuit Judges Childs and Pan did not participate in this
matter.

** A statement by Circuit Judge Rao, joined by Circuit Judges
Henderson, Katsas and Walker, concurring in the denial of
rehearing en banc, is attached.

*** Circuit Judges Millett and Pillard would grant the petition
for rehearing en banc. A statement by Circuit Judge Millett,
joined by Circuit Judge Pillard, dissenting from the denial of
rehearing en banc, is attached.
     RAO, Circuit Judge, with whom Circuit Judges
HENDERSON, KATSAS, and WALKER join, concurring in the
denial of rehearing en banc: The Federal Election
Commission’s decision to dismiss a complaint on the grounds
of prosecutorial discretion is not judicially reviewable, and I
therefore concur in the denial of the petition for rehearing en
banc. As explained in detail in the panel opinion, courts cannot
review the exercise of enforcement discretion committed to
executive agencies, including the Commission. See Citizens for
Resp. & Ethics in Wash. v. FEC (“New Models”), 

(D.C. Cir. 2021). In our structure of separated powers, “an
agency’s refusal to institute proceedings” falls within “the
special province of the Executive Branch”—a province the
judiciary cannot invade. Heckler v. Chaney, 

(1985); U.S. CONST. art. II, § 1. The Administrative Procedure
Act (“APA”) enshrines this principle by explicitly withholding
judicial review of matters “committed to agency discretion by
law.” 

(a)(2). The Federal Election Campaign
Act (“FECA”) leaves such executive discretion in place,
consistent with the Constitution and the APA. FECA
importantly provides for judicial review of decisions “contrary
to law,” 

(a)(8)(C), but the Commission may
decline to move forward with an enforcement action for
reasons of prosecutorial discretion and such decisions cannot
be reviewed by this court.

                             ***

     The dissent expresses consternation about the inability of
this court to oversee the Commission’s non-enforcement
decisions. But nowhere does it contest that the Commission
retains prosecutorial discretion or that a decision based
entirely, or even in some substantial part, on such discretion
would be unreviewable. Here, it is clear the so-called
“controlling commissioners” declined to proceed against New
Models for reasons of prosecutorial discretion, and also,
independently, for legal reasons. The dissent argues we must
                                  2
be able to review the independent legal reasons. But, as the
Supreme Court has repeatedly admonished, courts cannot
simply pluck out legal questions from nonreviewable
decisions. 1 ICC v. Bhd. of Locomotive Eng’rs, 

 (1987); see also Ass’n of Civilian Technicians, Inc. v.
FLRA, 

 (D.C. Cir. 2002) (explaining the
Supreme Court has “square[ly] reject[ed] the notion of carving
reviewable legal rulings out from the middle of non-reviewable
actions”) (cleaned up). FECA does not alter this basic rule. See
FEC v. Akins, 

 (1998); New Models, 993 F.3d
at 890–92. The Commission’s non-enforcement discretion is
thus unreviewable, irrespective of how many pages the
controlling commissioners devote to legal analysis and how
many to explaining the exercise of prosecutorial discretion.

     In FECA, Congress created an unusual, evenly divided, bi-
partisan Commission. Of the six commissioners, no more than
three can be from “the same political party.” 

(a)(1). Every step of the enforcement process requires
“an affirmative vote of 4” commissioners, which means at least
some bi-partisan agreement. 

 § 30106(c). Upon receiving a
complaint, the Commission may begin an investigation only
after four commissioners find there is “reason to believe” a

1
  The dissent argues the legal reasons offered by the controlling
commissioners contravened a district court decision. See Dissenting
Op. 1, 6, 10. That is simply not so. The controlling commissioners
cited the relevant case and applied its reasoning. Statement of
Reasons of Vice Chair Caroline C. Hunter and Commissioner Lee E.
Goodman at 25 n.114, MUR 6872 (New Models) (Dec. 20, 2017)
(citing Citizens for Resp. & Ethics in Wash. v. FEC, 

 (D.D.C. 2016)); see also id. at 2. Even if we were to disagree
with the Commission’s understanding of a district court decision, this
court would still lack the authority to carve out that legal question
from the Commission’s unreviewable exercise of prosecutorial
discretion.
                                 3
person has committed or may commit a violation of FECA. Id.
§ 30109(a)(2). After an investigation, four commissioners must
agree there is “probable cause” to find the respondent has
committed a violation of FECA. Id. § 30109(a)(4)(A)(i). Upon
a finding of probable cause, the Commission must for at least
30 days seek to remedy the violation through “conference,
conciliation, and persuasion.” Id. The Commission must
endeavor to enter into a conciliation agreement, which also
requires four votes. Id. If such conciliation measures fail, the
Commission may “institute a civil action for relief,” but only
after yet another affirmative vote of four commissioners. Id.
§ 30109(a)(6)(A).

     In FECA’s carefully articulated enforcement process,
Congress required the Commission to clear a series of bi-
partisan vetogates before commencing an enforcement action.
If four votes are lacking at any step of enforcement, no action
moves forward. The statutory arithmetic means three of the six
commissioners may block further investigation or enforcement
of a complaint. The number is fewer still if the Commission has
vacancies, which it often does. This case, for instance, arose
when the Commission had only four commissioners and two
voted against enforcement.

    The dissent repeatedly denounces the control exerted by a
“minority” of the Commission. 2 That concern arises not from
the panel opinion, but from Congress’s requirement that four
2
 The dissent also complains that a “minority” provides the Statement
of Reasons that forms the basis for judicial review. Dissenting Op.
19–20. But this requirement is the product of this court’s
longstanding directive that the commissioners who voted against
proceeding must explain their reasons to further our review of
whether the dismissal is “contrary to law.” See, e.g., FEC v. Nat’l
Republican Senatorial Comm., 

 (D.C. Cir.
1992).
                                4
of six commissioners agree to enforcement actions. By
legislative design, three commissioners, or half, may prevent
enforcement. The dissent simply ignores FECA’s four-
commissioner requirements, “undermin[ing] the carefully
balanced bipartisan structure which Congress has erected.”
Common Cause v. FEC, 

, 449 n.32 (D.C. Cir.
1988).

     Congress created a limited safety valve for Commission
dismissals and inaction. An aggrieved party may file a
complaint in court, but judicial review is restricted to
“declar[ing] that the dismissal of the complaint or the failure to
act is contrary to law.” 

(a)(8)(C). As the
dissent concedes, “[t]he commissioners did not reference their
merits analysis as a ground for exercising prosecutorial
discretion.” Dissenting Op. 7. Instead, the controlling
commissioners explained the exercise of prosecutorial
discretion was based on “the age of the activity and the fact that
the organization appears no longer active.” Statement of
Reasons of Vice Chair Caroline C. Hunter and Commissioner
Lee E. Goodman at 31 n.139, MUR 6872 (New Models) (Dec.
20, 2017). Because the controlling commissioners relied on an
independent ground of prosecutorial discretion, this court has
no basis for declaring that decision “contrary to law.”
Moreover, judicial review of the Commission’s separate legal
reasons would risk an advisory opinion, for the court would
not, and could not, disturb the Commission’s bottom line. See
New Models, 

. The non-reviewability of the
Commission’s dismissal in this case comports with FECA’s
limited judicial review provision.

    The dissent also worries that commissioners will hide
behind prosecutorial discretion to avoid judicial review. That
concern has proven to be overstated. Since New Models was
decided, the Commission has dismissed numerous complaints
                               5
without invoking prosecutorial discretion, allowing those
decisions to be reviewed. 3

     Perhaps of greater concern are the actions of some
commissioners, in the wake of New Models, concealing the
basis for Commission action or inaction. In some cases, when
the Commission has lacked four votes to proceed and the
controlling commissioners have relied on prosecutorial
discretion, the Commission is failing to make these decisions
public. 4 As a consequence, the party complaining to the
Commission, the target of the complaint, and the district court
are all left in the dark about whether and how the Commission
has acted. When lawsuits are initiated to challenge the
perceived inaction, the Commission has sometimes failed to
appear to defend against the complaint. Campaign Legal Ctr.
v. FEC, 

, at *2–3 (D.D.C. May 13, 2022);
see also Statement of Commissioner Ellen L. Weintraub On the

3
  See, e.g., Statement of Reasons of Chairman Allen J. Dickerson,
Commissioner Sean J. Cooksey, Commissioner James E. “Trey”
Trainor, III, and Commissioner Ellen L. Weintraub, MUR 7700
(VoteVets) (Apr. 29, 2022); Statement of Reasons of Vice Chair
Allen Dickerson and Commissioners Sean J. Cooksey and James E.
“Trey” Trainor, III, MUR 7766 (Florida Country, et al.) (Dec. 3,
2021); Statement of Reasons of Vice Chair Allen Dickerson and
Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III,
MUR 7753 (Friends of Lucy McBath) (Oct. 8, 2021); Statement of
Reasons of Vice Chair Allen Dickerson and Commissioners Sean J.
Cooksey and James E. “Trey” Trainor, III, MUR 7413 (Jonathan
Jenkins for Senate) (July 14, 2021).
4
 See Campaign Legal Ctr. v. FEC, 

, at *1 (D.D.C.
June 6, 2022); Campaign Legal Ctr. v. FEC, 

, at
*4 (D.D.C. May 13, 2022), aff’d, 

 (D.C. Cir. Sept.
14, 2022); Opposed Mot. to Hold Appeals in Abeyance at 1,
Campaign Legal Ctr. v. FEC, Nos. 22-5140, 22-5167 (D.C. Cir. June
23, 2022).
                               6
Opportunities Before the D.C. Circuit in the New Models Case
To Re-Examine En Banc Its Precedents Regarding ‘Deadlock
Deference’ at 11 (Mar. 2, 2022) (“Nothing in the law compels
a commissioner … to vote to defend lawsuits she believes to be
indefensible.”). The district courts have understandably
assumed Commission votes “are publicly announced,” finding
“no reason” to think “a vote that should have been publicly
reported … was not.” Campaign Legal Ctr. v. FEC, 

, at *3 (D.D.C. Apr. 21, 2022). Seeing only a failure
to act in the public record and with no appearance by the
Commission, district courts have entered default judgments
and allowed citizen suits to proceed even though (unbeknownst
to the court) the Commission has relied on prosecutorial
discretion. Id.; see also Campaign Legal Ctr. v. FEC, 

, at *1 (D.D.C. June 6, 2022) (noting “one week after
the Court’s order” evidence was presented that “the
Commission did act on the complaint, making the case moot,”
but “[r]egrettably” denying intervention as untimely). While
litigation has moved ahead, the targets of these complaints have
been forced to file FOIA requests simply to learn the
Commission had in fact voted to dismiss the complaint on the
grounds of prosecutorial discretion. See Campaign Legal Ctr.,

, at *4. Legal questions around these actions
are being litigated in our circuit, but they are not before us
today.

                             ***

     The Supreme Court and our circuit have affirmed that the
Federal Election Commission retains prosecutorial discretion.
When such discretion is invoked as an independent basis for a
non-enforcement decision, it cannot be reviewed by this court.
It is emphatically not the province of the courts to consider
whether more vigorous enforcement of election laws would be
desirable in order to target “dark money in politics.” Dissenting
                             7
Op. 21. Those are questions for Congress and the bi-partisan
Commission. For the foregoing reasons and those in the panel
opinion, I concur in the denial of rehearing en banc.
     MILLETT, Circuit Judge, with whom Circuit Judge
PILLARD joins, dissenting from the denial of rehearing en banc:
Essential to the rule of law is the principle that a governmental
agency cannot become a law unto itself. Yet that is what the
court’s decision here permits. The opinion licenses a minority
within a federal agency to pronounce extensive and substantive
legal determinations that will affect the course of agency
decisionmaking and the behavior of regulated parties, while
inoculating those decisions from judicial review just by tacking
a fleeting reference to prosecutorial discretion on at the tail end
of the decision.

     According to the court, that sleight of word bars all judicial
review even when the substantive legal analysis is expressly
denominated an “independently sufficient” basis for decision,
separate and apart from any claim of prosecutorial discretion.
Worse still, it eviscerates the explicit private right to judicial
review that Congress wrote into the Federal Election Campaign
Act. It hamstrings review even when, as here, the agency’s
reading of federal law openly defies a federal court order
holding that very same statutory interpretation unlawful.

     I would not arm an agency minority with what is in effect
a judicial-review kill switch. Neither am I able to turn my back
on such agency disregard not only of an adverse court
judgment, but also settled statutory requirements and this
court’s binding precedent. For those reasons, I dissent from the
denial of rehearing en banc.

                                I

     An explanation of the statutory scheme and background is
necessary to appreciate the consequences of the court’s
decision.
                               2
                               A

    The Federal Election Commission is entrusted with the
weighty responsibility of ensuring public transparency and
accountability by those individuals and entities expending
significant sums of money on our Nation’s elections. See 

(b)(1). The Commission is composed of six
voting members appointed by the President with the advice and
consent of the Senate. 

 § 30106(a)(1). Commissioners serve
staggered six-year terms, and no more than three of the six
Commissioners may belong to the same political party. Id.
§ 30106(a)(1), (a)(2)(A).

     The Commission may investigate potential violations of
the law on its own initiative or in response to a complaint. See

(a), 30109. Any person who believes that
a violation of the Federal Election Campaign Act has occurred
may file an administrative complaint with the Commission. 

§ 30109(a)(1). When the Commission receives such a
complaint, it votes on whether it has “reason to believe” that
the accused person or entity violated the Act.                Id.
§ 30109(a)(2). If at least four of the six commissioners
determine there is reason to believe a violation occurred, the
Commission must go forward with an investigation. Id.
Because no more than three commissioners may be members
of the same political party, id. § 30106(a)(1), the four-member
requirement ensures that each enforcement decision is
bipartisan. See Citizens for Resp. & Ethics in Wash. v. FEC
(Commission on Hope II), 

 (D.C. Cir.
2019) (Griffith, J., concurring in denial of rehearing en banc).
If four commissioners do not find reason to believe a violation
occurred, the Commission often dismisses the administrative
complaint and closes the file.
                               3
    Of course, this structure creates a risk that partisan
deadlock will prevent enforcement of campaign finance laws.
Commission on Hope II, 

 (Pillard, J.,
dissenting from denial of rehearing en banc). But Congress
accounted for that possibility with a judicial review provision
that allows “[a]ny party aggrieved” by the Commission’s
dismissal of a complaint to seek review in federal court. 

(a)(8)(A). A court “may declare that the
dismissal of the complaint or the failure to act is contrary to
law,” 

 § 30109(a)(8)(C), if the Commission relied on “an
impermissible interpretation of the Act,” or if the dismissal was
otherwise arbitrary, capricious, or an abuse of discretion.
Orloski v. FEC, 

 (D.C. Cir. 1986).
    When the Commission deadlocks and thereafter dismisses
a complaint, the commissioners who voted against proceeding
must “issue a statement explaining their votes.” Citizens for
Resp. & Ethics in Wash. v. FEC (Commission on Hope), 

 (D.C. Cir. 2018). This statement of reasons
issued by the so-called “controlling commissioners” is
intended to facilitate judicial review of the dismissal decision
and allow a court to “intelligently determine whether the
Commission is acting ‘contrary to law.’” Democratic Cong.
Campaign Comm. v. FEC, 

 (D.C. Cir.
1987) (citation omitted); see also 

 at 1133–1135; FEC v.
National Republican Senatorial Comm., 

(D.C. Cir. 1992).
    If a court rules the dismissal improper, the Commission has
30 days to reconsider its position. 

(a)(8)(C).
But if the agency still chooses not to go forward, then the
complaining party is authorized to independently file suit to
enforce the law. 

 The statute, in other words, never requires
the agency to bring an enforcement action that it does not want
to bring. It just opens the door to private enforcement by an
aggrieved party.
                                  4
                                 B
    This case began when Citizens for Responsibility and
Ethics in Washington (“CREW”) filed an administrative
complaint with the Commission, alleging that an entity known
as New Models had violated the Federal Election Campaign
Act by failing to register as a political committee and to submit
required disclosures. The complaint alleged that, in the 2012
federal election year, New Models contributed 68.5% of its
annual spending (nearly $3.1 million) to independent,
expenditure-only political committees that support federal
campaign activity (also known as Super PACs). The Super
PACs that received contributions from New Models were all
heavily involved in efforts to influence the 2012 elections. See
J.A. 22.
    The Commission’s General Counsel recommended finding
reason to believe that New Models violated the Act by failing
to register as a political committee given that two-thirds of its
expenditures in the 2012 election year went to Super PACs that
supported federal campaign activity. But the Commission
deadlocked 2–2 on the “reason to believe” vote, with the fifth
commissioner recused.1        After that deadlock, the four
commissioners voted to dismiss the complaint.2


    1
        The sixth Commission seat was vacant at the time. J.A. 101.
    2
       Two separate votes took place: the vote on whether there was
reason to believe a violation had occurred, and a vote on whether to
dismiss the complaint and close the file. “Dismissals do not
inevitably or automatically ‘result’ from ‘deadlock votes.’ They
result from one or more commissioners changing course and, for
their own reasons, voting in favor of a succeeding motion to dismiss
and close the file on the matter.” Statement of Commissioner Ellen
L. Weintraub on the Opportunities Before the D.C. Circuit in the New
                                5
    The two controlling commissioners provided a statement of
reasons for their votes not to find reason to believe a violation
had occurred. Their legal analysis spanned 31 single-spaced
pages and explained in extensive detail their view that New
Models was not a political committee. They began by setting
out the applicable legal framework, explaining that the
Commission’s “controlling statute and court decisions
stretching back over forty years properly tailor the applicability
of campaign finance laws to protect non-profit issue advocacy
groups from [the Federal Election Campaign Act’s]
burdensome political committee registration and reporting
requirements.” J.A. 103. To that end, only those organizations
with the “major purpose” of nominating or electing federal
candidates must meet those requirements.               J.A. 103.
“Determining an organization’s major purpose[,]” the
commissioners explained, “requires a comprehensive, case-
specific inquiry that focuses on the organization’s public
statements, organizational documents, and overall spending
history.” J.A. 103.
    After exhaustively detailing the historical development of
the Federal Election Campaign Act, analyzing the statute’s
meaning, and applying their version of the major-purpose
analysis to the facts of the case before them, the commissioners
expressly concluded that New Models was not a political


Models Case to Re-Examine En Banc Its Precedents Regarding
‘Deadlock Deference’ at 4 (March 2, 2022), https://www.fec.gov/
resources/cms-content/documents/2022-03-02-ELW-New-Models-
En_Banc.pdf (last accessed Dec. 1, 2022).           For example,
Commissioners who voted in favor of the “reason to believe” motion
may vote to dismiss in “the interests of transparency of agency
operations, closure for respondents, public accountability for the
nay-saying commissioners, or in hopes the complainant will sue the
agency and obtain a judicial reversal.” 

.
                                 6
committee. They reasoned that New Models neither made the
requisite expenditures nor had the major purpose of nominating
or electing federal candidates.

    The controlling commissioners came to that major-purpose
conclusion by relying on New Models’ expenditures over its
organizational lifetime, shrugging off the expenditures that
New Models concentrated in an election year. They employed
this mode of analysis even though it had been ruled unlawful
the year before in a final and unappealed court ruling. See
Citizens for Resp. & Ethics in Wash. v. FEC, 

, 93–94 (D.D.C. 2016).

    The commissioners repeatedly pointed to their statutory
analysis and application of it to the record as the reason for their
votes against proceeding further. See, e.g., J.A. 103–104
(Based on New Models’ lifetime expenditure patterns, rather
than election year spending, the commissioners “[a]ccordingly
* * * voted against finding reason to believe that New Models
violated the Act.”); J.A. 120 (“Upon thorough consideration of
various facts indicative of political committee status * * *, we
do not have reason to believe that” the legal criteria for a
political committee were met.). Doubling down on their legal
conclusion, the commissioners specifically labeled their
determinations that New Models had not made the requisite
expenditures and did not have the requisite major purpose as
“independently sufficient” reasons for dismissal of the
complaint. J.A. 123 n.95.

     After that considerable legal analysis, the commissioners
added one final sentence: “For these reasons, and in the
exercise of our prosecutorial discretion, we voted against
finding reason to believe that New Models violated the Act by
failing to register and report as a political committee and to
dismiss the matter.” J.A. 133 (footnote omitted). That
                               7
dependent clause constitutes the only reference to prosecutorial
discretion in the entire 31 pages—just seven out of more than
14,500 words. To that sentence, the commissioners appended
a brief footnote which stated that, “[g]iven the age of the
activity and the fact that the organization appears no longer
active, proceeding further would not be an appropriate use of
Commission resources.” J.A. 133 n.139 (citing Heckler v.
Chaney, 

 (1985); 

 (five-year
statute of limitations); Nader v. FEC, 

, 65–
66 (D.D.C. 2011)). The commissioners failed to explain those
points, and the Commission itself later walked one of them
back. See Oral Arg. Tr. 21:13–22, 23:10–12 (explaining that
the Commission is not confident the five-year statute-of-
limitations applies). The commissioners did not reference their
merits analysis as a ground for exercising prosecutorial
discretion. They left that legal analysis as a freestanding and
independently sufficient basis for their votes to dismiss.
     CREW filed suit, challenging the Commission’s dismissal
of its administrative complaint as contrary to law. The decision
for the court held that the two commissioners’ mere incantation
of “prosecutorial discretion” insulated the Commission’s entire
dismissal decision, including its exhaustive legal analysis, from
judicial review. See Citizens for Resp. & Ethics in Wash. v.
FEC, 

 (D.C. Cir. 2021). The court viewed
this question as controlled by our earlier divided decision in
Citizens for Responsibility and Ethics in Washington v. FEC
(Commission on Hope), 

 (D.C. Cir. 2018). See
Citizens for Resp. & Ethics in Wash., 993 F.3d at 884–885. In
a dissenting opinion, I explained why the plain text of the
Federal Election Campaign Act and our precedent allow for
judicial review of the controlling commissioners’ decision, 

at 900–903, and why this case magnifies the problems with
Commission on Hope, 

 at 903–905.
                                8
    More specifically, in Commission on Hope, this court held
that a Commission dismissal was unreviewable when three
commissioners voted against proceeding and based “their
judgment squarely on the ground of prosecutorial discretion.”

 (emphasis added).               The controlling
commissioners in that case did not undertake any substantive
legal analysis, stating instead that the “most prudent course”
was to dismiss the case because the accused entity was
“defunct[,]” it “no longer had any agents who could legally
bind it[,]” any legal action would “raise novel legal issues that
the Commission had no briefing or time to decide[,]” the statute
of limitations had expired or nearly expired, and “any
conciliation effort would be futile[.]” 

, 441 n.13
(formatting modified).         The opinion implied that the
commissioners had not even voted on the “reason to believe”
question at all, see 

, nor had they engaged in implicit
statutory interpretation in voting to dismiss the case, see 

 at
441 & n.13.

    Still, in this court’s evenly split decision denying rehearing
en banc, several members of the court recognized the troubling
implications of the decision. Judge Pillard warned of its
adverse consequences, explaining that the decision “empowers
any partisan bloc of the Commission to cut off investigation
and stymie review of even the most serious violations of federal
campaign finance law by uttering ‘magic words’ of
enforcement discretion[,]” Commission on Hope II, 

 (Pillard, J., dissenting from denial of rehearing en
banc), and citing this very case as a sign of what was to come,

 at 1148–1149 (citing Citizens for Resp. & Ethics in Wash.
v. FEC (New Models), 

 (D.D.C. 2019)); see
also id. at 1144 (“The majority opinion contravenes the statute
and binding precedent, undercuts the design Congress devised
to avoid both partisan domination and partisan deadlock in the
Commission’s enforcement process, and has already been
                               9
applied by the Commission and district court to truncate other
cases.”).

    Judge Griffith agreed that the panel decision “certainly
seems contrary to Congress’s intent.” Commission on Hope II,
923 F.3d at 1142–1143 (Griffith, J., concurring in denial of
rehearing en banc). He also disapproved of the majority
opinion’s suggestion that “when three Commissioners invoke
‘prosecutorial discretion’ they foreclose both the FEC
enforcement action and our review of the decision not to
proceed[.]” Id. But he ultimately concluded that Commission
on Hope was not the right case in which to address those
important legal questions, citing uncertainty as to whether there
was actually a substantive legal judgment for the court to
review. Id. at 1143.

                               II

                               A

    As Judge Griffith worried, Judge Pillard predicted, and
Judge Edwards has since echoed, the Commission on Hope
chickens have come home to roost. The court’s decision in this
case renders for naught statutorily mandated judicial review.
See Campaign Legal Ctr. v. FEC, 

 (D.C. Cir.
2020) (Edwards, J., concurring) (“The FEC argues that,
because the Statement of Reasons given by the three
‘controlling’ Commissioners who voted to dismiss Appellants’
complaints said that the dismissal was an exercise of
‘prosecutorial discretion,’ Appellants’ challenge is entirely
beyond judicial scrutiny. The Commission is wrong.”).
     There is no question that the commissioners engaged in
substantive legal analysis—31 single-spaced pages and 138
footnotes of it. There was not a peep about prosecutorial
discretion anywhere in those many pages of legal analyses and
                              10
determinations. In fact, the commissioners themselves labeled
their legal analysis an “independently sufficient” basis for
dismissing the complaint. J.A. 123 n.95.

   Yet the court has allowed just two commissioners—not
even half of the full Commission—to thwart judicial review—
and to do so precisely when judicial supervision is most acutely
needed because the commissioners relied critically on a legally
invalidated interpretation of statutory text. See Citizens for
Resp. & Ethics in Wash., 

.
     Is it any wonder that the commissioners wanted to cut off
judicial review after they had spent dozens of pages thumbing
their nose at binding judicial precedent? Yet, according to the
court, a fleeting reference to prosecutorial discretion by a
Commission minority—not by the Commission itself—
automatically rendered the rest of the commissioners’
statement, and all of their legal analyses and conclusions,
untouchable by the courts. J.A. 123 n.95.

     The court’s decision, in other words, hands the agency
and its members a Get Out of Judicial Review Free card even
though Congress expressly mandated judicial review of
dismissal orders. And it gives the commissioners free rein to
ignore judicial precedent they dislike in disposing of
complaints. That is the rule of lawlessness, not law.

                               B

    The court’s opinion blames that outcome on the
“traditional[]” rule that courts cannot review exercises of
agency discretion. Citizens for Resp. & Ethics in Wash., 

 (quoting Chaney, 

). But as the
Supreme Court and this court have long held, Heckler v.
Chaney does not bar review in Federal Election Campaign Act
                               11
cases like this one. The panel’s decision to the contrary is
wrong for five reasons.
     First, as the Supreme Court has specifically held, “reason-
to-believe” assessments under the Federal Election Campaign
Act are expressly excepted from the general presumption that
decisions not to enforce the law are unreviewable. In FEC v.
Akins, 

 (1998), the Supreme Court ruled that, while
“agency enforcement decisions ‘ha[ve] traditionally been
committed to agency discretion,’” the Federal Election
Campaign Act is “a statute that explicitly indicates the
contrary,” 

 (alteration in original) (quoting Chaney, 

). In so holding, the Supreme Court confirmed what
this court had already observed. As Judge Silberman explained
in his opinion for our en banc court in Akins, Section
30109(a)(8) is “an unusual statutory provision which permits a
complainant to bring to federal court an agency’s refusal to
institute enforcement proceedings.” Akins v. FEC, 

 (D.C. Cir. 1996) (en banc) (distinguishing Chaney),
vacated on other grounds, 

 (1998).
    So the general presumption that nonenforcement decisions
are unreviewable has no bearing on this case. See Chamber of
Commerce v. FEC, 

 (D.C. Cir. 1995) (The
Federal Election Campaign Act “is unusual in that it permits a
private party to challenge the FEC’s decision not to enforce.”)
(emphasis in original); Common Cause v. FEC, 

 (D.C. Cir. 1988); Democratic Cong. Campaign Comm.,

. See also Commission on Hope II, 

 (Pillard, J., dissenting from denial of rehearing en banc)
(The panel’s holding that review is barred by Chaney “conflicts
with the statutory text, the Supreme Court’s holding in Akins,
and several of our circuit decisions.”); Campaign Legal Ctr.,
952 F.3d at 358–359 (Edwards, J., concurring) (The
Commission’s position that controlling commissioners’
invocation of “prosecutorial discretion” makes their decision
                              12
unreviewable is “flatly at odds with the Supreme Court’s
decision in FEC v. Akins.”).
    Second, the separation-of-powers concerns that underlie
courts’ usual hesitancy to review matters of prosecutorial
discretion apply only to actual exercises of prosecutorial
discretion by the agency—by the Executive Branch. But that
is not what happened here. The Commission itself never
decided to dismiss this complaint on prosecutorial discretion
grounds. Four votes are required for the Commission to take
any action. See 

(c). All we have here is a
statement by two commissioners with a passing reference to
their individual views on prosecutorial discretion. See
Common Cause, 

 n.32 (“Of course, such a
statement of reasons would not be binding legal precedent or
authority for future cases.”). So the agency itself has not
grounded its decision (or non-decision) in prosecutorial
discretion.
    Extending the usual judicial deference to claims of
prosecutorial discretion to this situation is especially
inappropriate given that the other two commissioners who
voted to dismiss the complaint in light of the deadlock did not
invoke prosecutorial discretion. See J.A. 101–102 (indicating
that Commissioners Goodman and Hunter voted against
proceeding and Commissioners Goodman, Hunter, Walther,
and Weintraub then voted to dismiss); J.A. 133–134 (statement
of only Commissioners Goodman and Hunter invoking
prosecutorial discretion); J.A. 135–137 (statement of
Commissioner Weintraub not invoking prosecutorial
discretion).
    Neither the Commission nor the court’s opinion in this case
offers any reason why just two commissioners should have the
power to formally exercise prosecutorial discretion on behalf
of the full Commission or the Executive Branch in a way that
                              13
could trigger separation-of-powers concerns or any other
recognized barrier to judicial review.
    Third, a common concern when prosecutorial discretion is
invoked—that there is no law to apply on review of
discretionary, resource-based judgments that underlie
decisions not to enforce—does not apply here. Congress made
quite clear that a decision by a controlling bloc of
commissioners to dismiss a complaint is subject to judicial
review.      See 

(a)(8)(C).          And our
longstanding precedent reaching back 35 years requires that
commissioners explain themselves at the reason-to-believe
stage precisely to facilitate judicial review. See Common
Cause, 

 n.32; Democratic Cong. Campaign
Comm., 831 F.2d at 1133–1134 (rejecting FEC argument that,
based on “Heckler v. Chaney, 

 (1985), deadlocks
on the Commission are immunized from judicial review
because they are simply exercises of prosecutorial discretion,”
and explaining that, “[b]ecause § [30109](a)(8)(A) provides
broadly for court review of an FEC order dismissing a
complaint, we resist confining the judicial check to cases in
which * * * the Commission ‘act[s] on the merits.’”); cf.
Citizens for Resp. & Ethics in Wash., 

 (“[I]f the
Commission declines an enforcement action ‘based entirely on
its interpretation of the statute’ such a decision might be
reviewable.”) (emphasis in original) (quoting Commission on
Hope, 

 n.11). That is because there is ample
law to apply to enforcement decisions grounded in statutory
construction, analysis, and application.            That two
commissioners added “prosecutorial discretion” in their last
breath after 14,500 words (more than a merits brief in our court
or the Supreme Court) does not alter the ready availability of
law for a court to apply. Especially when, as here, those legal
grounds are expressly identified as “independently sufficient”
grounds for the controlling commissioners’ votes to dismiss the
complaint, J.A. 123 n.95, wholly apart from any claim of
                               14
prosecutorial discretion, the statutory authorization of judicial
review applies.
    Fourth, the court’s concern that judicial review of the
Commission’s legal reasons for dismissing the complaint
would give rise to an advisory opinion is incorrect. Even if the
Commission were determined for reasons within its discretion
not to pursue this case, a judicial decision on whether the
complaint shows reason to believe the Act was violated has
concrete consequences for the ability of private complainants
to file suit.     See 

(a)(8)(c).           The
commissioners emphasized that their legal justifications for
disposing of the complaint were “independently sufficient” to
support dismissal. J.A. 123 n.95. If the court were to agree
with them on that score, CREW’s own suit, too, would be
barred. See generally Orloski v. FEC, 

 (D.C. Cir.
1986) (agreeing with Commission’s no-reason-to-believe
determination and dismissing private suit).

    Any claim of independent sufficiency was conspicuously
absent from the controlling commissioners’ invocation of
prosecutorial discretion. Whether they would have chosen to
rest on that thin reed if their legal basis for dismissal had been
deemed invalid is an open question for the Commission to
answer on remand.              If, upon reconsideration, the
commissioners had concluded there was compelling reason to
believe that New Models was a political committee, the
significance of New Models’ possible inactivity might have
seemed weak in comparison. (The Commission has already
disavowed the statute-of-limitations rationale referenced by the
minority. See Oral Arg. Tr. 21:13–22, 23:10–12.) The
Supreme Court has been clear that, when confronted with such
uncertainty, courts have the power to order a remand to the
agency to allow it to answer the question itself. See Akins, 

.
                               15
    Fifth, while judicial efforts to overturn an authoritative,
operative exercise of prosecutorial discretion by an agency
could trigger separation-of-powers concerns if the court were
to order the Executive Branch to undertake an enforcement
action it opposes, that worry has no purchase here. As
Congress designed this statute, when a court finds legal error
in the Commission’s dismissal of a complaint, the Commission
is given the right of first refusal on enforcement. 

(a)(8)(c). If the agency is still opposed to or unable to
bring an enforcement action, no court will force it to do so; all
that happens is that the private complainant is authorized to
bring a lawsuit in its own name under the Act. Id.; see
Commission on Hope II, 

 (Pillard, J.,
dissenting from denial of rehearing en banc).

    In short, the court wrongly treats CREW’s effort to pursue
its private right to judicial review of two commissioners’
already-judicially invalidated legal reasoning as if it were an
attempt to force the Commission itself to proceed in the face of
an agency exercise of constitutionally unreviewable
prosecutorial discretion. The court’s decision amounts to a
wholly unwarranted rule of judicial abstinence that nullifies the
explicit statutory provision for judicial review of private-party
challenges to the Commission’s substantive decisions.
                               C
   The harm worked by this decision is serious and recurring.
                               1
    To begin with, affixing a brief invocation of prosecutorial
discretion to lengthy substantive analyses in statements of
reasons has become commonplace in Commission
proceedings. This court errs in allowing those brief invocations
to broadly insulate dismissal decisions from judicial review.
Since Commission on Hope, approximately two-thirds of
                               16
Commission cases dismissed contrary to the General Counsel’s
reason-to-believe recommendation have included a reference
to prosecutorial discretion. See Campaign Legal Ctr. En Banc
Amicus Br. 9 & App.3
    The decision in this case has fueled that trend. Again and
again, the Commission has deadlocked on the reason-to-
believe determination, after which the controlling
commissioners have issued a statement of reasons with
substantive legal analysis they purport to shield from judicial
review by a reference to prosecutorial discretion. See, e.g.,
Certification, MURs 7370 and 7496 (In the Matter of New
Republican PAC et al.) (May 28, 2021); Statement of Reasons

    3
        Since this case was argued, the same trend has continued
unabated. In 2022 alone, six cases containing extensive legal
analysis have been dismissed because of a separate reference to
prosecutorial discretion. See Statement of Reasons of Chairman
Allen J. Dickerson and Commissioners Sean J. Cooksey and James
E. “Trey” Trainor, III, MUR 7425 at 4 (Donald J. Trump
Foundation) (Feb. 15, 2022); Statement of Reasons of Chairman
Allen J. Dickerson and Commissioners Sean J. Cooksey and James
E. “Trey” Trainor, III, MURs 7575, 7580, 7592 & 7626 at 1 (Brand
New Congress) (March 22, 2022); Statement of Reasons of
Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey
and James E. “Trey” Trainor, III, MUR 7147 at 4 (Make America
Number 1) (April 11, 2022); Statement of Reasons of Chairman
Allen J. Dickerson and James E. “Trey” Trainor, III, MUR 7646 at 2
(1820 PAC, et al.) (April 15, 2022); Statement of Reasons of
Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey
and James E. “Trey” Trainor, III, MUR 7784 at 12 (Make America
Great Again PAC) (June 9, 2022); Statement of Reasons of
Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III,
MUR 7486 at 2 (45Committee, Inc.) (Aug. 30, 2022). The
exceptions cited by the concurring opinion simply underscore that
the court’s opinion empowers a minority of the Commission to turn
judicial review on and off at will.
                              17
of Vice Chair Allen Dickerson and Comm’r Sean J. Cooksey,
MURs 7340 and 7609 (In the Matter of Great America
Committee et al.) (June 25, 2021); Statement of Reasons of
Chair Shana M. Broussard, Comm’r Ellen L. Weintraub, and
Comm’r Steven T. Walther, MUR 7522 (In the Matter of
Citizens for Waters et al.) (Dec. 21, 2021).

    A recent decision by our district court highlights the
consequences of the court’s decision. In a case almost identical
to this one, CREW filed a complaint alleging that American
Action Network had violated campaign finance laws by
spending close to $18 million on political advertisements in a
two-year period without registering as a political committee.
Citizens for Resp. & Ethics in Wash. v. American Action
Network, 

, 165–166 (D.D.C. 2022). The
commissioners deadlocked 3–3 on whether the complaint’s
allegations stated reason to believe the Act had been violated.
The controlling commissioners issued a lengthy statement of
reasons explaining their legal theory as to why a large portion
of American Action Network’s advertisements constituted
“genuine issue advocacy” that could not be considered in
assessing whether the organization was a political committee.

 at 166–167; see Statement of Reasons of Chairman Lee E.
Goodman and Comm’rs Caroline C. Hunter and Matthew S.
Petersen, MUR 6589 (In the Matter of American Action
Network) (July 30, 2014). In the concluding paragraph, those
commissioners made a glancing reference to prosecutorial
discretion:

    [American Action Network] is an issue-advocacy
    group that only occasionally engaged in express
    advocacy. As such it cannot and should not be subject
    to the pervasive and burdensome requirements of
    registering and reporting as a political committee. For
    that reason, and in exercise of our prosecutorial
                               18
    discretion, we voted against finding reason to believe
    [the Network] violated the Act by failing to register
    and report as a political committee.

 (formatting modified and emphasis added); see also

 at 24 n.137 (again briefly referencing prosecutorial
discretion).

     CREW challenged the dismissal in court as contrary to
law. In a decision issued after Commission on Hope but before
the panel decision in this case, the district court held that the
statement of reasons was subject to statutory review because
the Commission’s decision was fundamentally rooted in its
legal determination that a broad swath of electioneering
communications could not be factored into the “major purpose”
analysis. Citizens for Resp. & Ethics in Wash., 590 F. Supp.
3d at 169–172. The court noted that the controlling
commissioners had dedicated virtually all of 27 single-spaced
pages and 153 footnotes to substantive legal analysis, and that
it would “gut the statutory scheme that Congress created * * *
to foreclose judicial review whenever the [Commission] bases
its dismissal on legal interpretations couched as ‘prosecutorial
discretion’ or, worse yet, simply sprinkles the term throughout
a Statement of Reasons in order to circumvent judicial review.”

.

     After the panel decision in this case, the district court
dismissed the case. In doing so, the court emphasized that it
“stands by its prior reasoning,” but because of the judicial-
review-choking position taken by this court’s opinion, it had no
choice but to dismiss CREW’s suit. Citizens for Resp. & Ethics
in Wash., 590 F. Supp. 3d at 173.
                              19
                               2
    Worse still, the Commission and regulated parties are
treating these now-judicially unreviewable statements of law
as having precedential value. Minority blocs of commissioners
are using the statements of reasons that accompany deadlocked
decisions, including the judicially invalidated rationale
employed in this case, as legal precedent within the agency.
See, e.g., Statement of Reasons of Chair Caroline C. Hunter
and Comm’r Matthew S. Petersen at 8 n.47, MURs 6969, 7031
& 7034 (Children of Israel et al.) (Sept. 13, 2018); Statement
of Reasons of Comm’rs Caroline C. Hunter and Matthew S.
Peterson at 2–3, MUR 6402 (American Future Fund) (Dec. 23,
2014). This court has held that unreviewed statements issued
by a minority of commissioners after a deadlock are not
binding legal precedent for future cases. See Common Cause,

 n.32.           Yet, because those minority
commissioners can singlehandedly preclude judicial review
with the mere mention of prosecutorial discretion, there is no
legal remedy for the commissioners’ overt disregard for
judicial rulings holding their mode of reasoning unlawful.
    In addition, these legal pronouncements, while walled off
from judicial review, directly influence the conduct of
regulated parties, who regularly rely on and invoke them in
subsequent proceedings before the Commission. For instance,
in 2010, Google requested an advisory opinion stating that it
could display political ads alongside its search results without
disclaimers, and the Commission deadlocked. See Opinion
Letter on Google Advisory Opinion Request at 2, Advisory Op.
No. 2010-19 (Oct. 8, 2010). Subsequently, Facebook asked for
its own advisory opinion on whether disclaimers are required
for political ads on its platform, citing the deadlocked Google
opinion for support. See Request by Facebook, Advisory Op.
No. 2011-09 (April 26, 2011). The Commission once again
deadlocked, effectively allowing the non-majority view that
                               20
political ads on such pages need not be accompanied by
disclaimers to govern. See Closeout Opinion Letter on
Facebook Advisory Opinion Request, Advisory Op. No. 2011-
09 (June 15, 2011).
    The whole point of requiring the commissioners who see
no reason to believe the Act was violated to explain their
reasoning after a deadlocked vote is “to make judicial review”
of the decision to dismiss “a meaningful exercise.” National
Republican Senatorial Comm., 

. But the
court’s opinion has now turned that rationale on its head,
placing the reviewability of Commission decisions entirely
within the unilateral control of a minority of commissioners.
                           *****
    It is telling that in its brief to this court in Commission on
Hope, the Commission itself conceded that its nonenforcement
decisions, even when premised upon prosecutorial discretion,
were subject to judicial review. Brief for Federal Election
Commission at 27–28, Commission on Hope, 

(No. 17-049); see also Campaign Legal Ctr., 952 F.3d at 361–
362 (Edwards, J., concurring). The Commission stated: “In
the event the Commission’s rationale for not pursuing a case is
unreasonable—or if the Commission makes errors of law in its
analysis—that exercise of discretion would be rejected on
judicial review and the matter would be remanded to the
agency.” Brief for Federal Election Commission at 28,
Commission on Hope, 

 (No. 17-049).

    Since Commission on Hope, the Commission has
undergone a 180-degree change in position. Unsurprisingly,
when this court offered it the opportunity to escape judicial
review at will, the Commission happily accepted.
                              21
    The bottom line is that the statutory promise of judicial
review for aggrieved persons has been turned into a game that
only the commissioners can play. When they want judicial
review—if they believe they can obtain desired precedent—
they can leave out the phrase “prosecutorial discretion.”
Whenever they do not want their dismissal reviewed—
especially when, as here, they would prefer to keep applying
judicially invalidated rules of interpretation—they can toss in
a reference to prosecutorial discretion. That turns the rule of
law upside down and renders the statutory provision for review
of dismissal decisions a dead letter. In a perverse twist, those
who are charged with enforcing the laws that protect the
electoral building blocks of our democracy are free to operate
outside the law. In this way, the panel decision renders the
world of dark money in politics an even darker place.

   For all of these reasons, I respectfully dissent from the
denial of rehearing en banc.