The FEC and Non-Enforcement of Elections Law Violations Following CREW v. FEC (New Models)
Sam Ackerman, CLS ’22
Unlike most federal agencies, the Federal Elections Commission (FEC) is uniquely led by an equal number of Democrat and Republican commissioners. Because issues related to election integrity impact all Americans, the Federal Election Campaign Act (FECA)—the FEC’s governing statute—provides for the right of private parties to file complaints and appeal non-enforcement decisions to the U.S. District Court for the District of Columbia. If the District Court finds the FEC’s dismissal of a complaint to be “contrary to law,” the FEC must either enforce the matter, or the complainants may bring a civil action against the accused party themselves. However, following the March 2019 D.D.C. decision in CREW v. FEC (New Models), the citizen-led review mechanism and FECA’s distinctive statutory structure may be cast asunder.
In 2014, Citizens for Responsibility and Ethics in Washington (CREW), an election ethics watchdog, filed a complaint with the FEC against a conservative organization called New Models for failing to disclose its donors. FECA (and subsequent case law interpreting FECA) requires any organization that makes more than $1,000 in expenditures towards influencing elections and for whom influencing elections is a “major purpose” to register as a political committee subject to donor disclosure regulations. In 2012, New Models spent $3 million, or 68%, of its total spending on Political Action Committees (PACs), and thus, CREW argued that New Models itself is a “political committee” under FECA. In its complaint, CREW asserted that $3 million in spending is far beyond the $1,000 statutory threshold for expenditures. CREW then asserted that New Models had a “major purpose” of electing candidates because far more than a simple majority (68%) of its spending went towards PACs.
Nonetheless, the FEC—in a 2-2 party-line split—dismissed the complaint against New Models. The GOP commissioners claimed that New Models’ $3 million in spending was merely contributions and not expenditures, and thus, the spending does not qualify towards FECA’s $1,000 expenditure requirement. Further, the commissioners looked at New Model’s spending over a number of years—which then averaged out to less than 50% of spending—to determine that New Models lacked a “major purpose” in electing candidates. CREW filed a complaint to the D.D.C., as case law seemed to invariably point to the fact that both of the FEC’s interpretations of FECA’s requirements had been uniformly rejected by the courts.
Upon CREW’s 2018 appeal to the D.D.C., however, the District Court did not get a chance to address the substantive claims that most likely would have favored the complainants. Rather, the court claimed that “because the Controlling Commissioners invoked prosecutorial discretion, the Court is also foreclosed from evaluating the Controlling Commissioners’ otherwise reviewable interpretations of statutory text and case law.” As it turned out, the 32-page dismissal memo that engaged in deep and likely flawed interpretations of FECA, passively used the phrase “prosecutorial discretion” in a single sentence in the memo’s conclusion.
Although the case is currently on appeal to the D.C. Circuit, the ruling as it stands has the potential to eviscerate FECA’s deliberately bipartisan enforcement structure that allows citizens to challenge non-enforcement decisions. The D.D.C.’s creation of a magic words-like test will certainly ensure that the term “prosecutorial discretion” is inserted in any politically salient non-enforcement memo. Such a change in the FEC appeals process flies in the face of Congress’ goals in enacting FECA: to ensure partisanship does not infect the enforcement of integrity in elections.
The decision could also have consequences that pervade the post-Citizens United campaign finance system generally. Citizens United allowed for a flurry of uncoordinated, independent expenditures made by individuals, corporations, and non-profits alike. However, Citizens United was also predicated on the notion that corruption in independent expenditures is not a compelling state concern, so long as there is a rigorous system of donor disclosure. If a partisan group of commissioners can effectively block action against political allies without a shred of legal justification, then there is reason to doubt that the disclosure system will continue to act as a partial (albeit inadequate) check on unlimited outside expenditures and the appearance of corruption unlimited expenditures may evoke. With no hearing in sight at the D.C. Circuit, CREW v. FEC (New Models) will certainly curtail FEC enforcement as the country enters into the final stages of what will likely be the most expensive presidential election in American history.
 52 U.S.C. § 30106(a)(1).
 52 U.S.C. § 30109(a)(8)(A).
 52 U.S.C. § 30109(a)(8)(C).
 Complaint, CREW v. FEC (New Models), No.1:18-cv-00076 (D.D.C. filed Jan. 12, 2018).
 52 U.S.C. § 30101(4)(A); 52 U.S.C. § 30104(b)(2)–(8); Buckley v. Valeo, 424 U.S. 1, 79 (1976) (requiring the influencing of election outcomes to be a “major purpose” under FECA).
 Id. at 1-2.
 Id. at 2.
 Id. at 9.
 See, Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.
 FECA defines “contributions” in part as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). FECA defines “expenditure” to be inclusive of many forms of contributions and is similarly defined in part as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A)(i).
 Id. at 18.
 Id. at 20.
 See, CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016) (“CREW/AAN”) (explaining that a multi-year approach to the major purposes test is impermissible); Shays v. FEC, 511 F. Supp. 2d 26-27 (D.D.C. 2007) (suggesting that once a major purpose is established, the term “expenditure” is to be broadly construed to encompass all spending to influence the outcome of an election).
 CREW v. FEC (New Models) at 22-23, No. 1:18-cv-00076-RC, (D.D.C. 2019).
 Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman at 31, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.
 Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, Open Secrets (Jan. 14, 2020), https://www.opensecrets.org/news/reports/a-decade-under-citizens-united.
 Citizens United v. FEC, 558 U.S. 310, 370-71 (2010).