D.C. Circuit Approves En Banc Examination of FEC Enforcement Discretion’s Reviewability

The U.S. Court of Appeals for the D.C. Circuit has granted a petition for en banc rehearing in the case of End Citizens United PAC v. Federal Election Commission. This decision aims to determine whether the Federal Election Commission’s (FEC) choices to decline enforcement actions are open to judicial review as being contrary to law.

Background of the Case

A previous ruling by a divided panel of the D.C. Circuit found that the Federal Election Campaign Act (FECA) does not provide a cause of action to challenge the FEC’s enforcement discretion. The panel was composed of Judges Rao and Katsas, who supported the majority ruling, while Judge Pillard dissented.

Judicial Review of FEC Decisions

The earlier panel’s ruling indicated that decisions made by the FEC concerning enforcement actions are largely beyond the reach of judicial review. This stance was informed by precedents such as Hagelin v. FEC and Campaign Legal Center & Democracy 21 v. FEC, both of which highlighted a highly deferential standard of review. Under this standard, judicial intervention is warranted only if the agency’s decision is devoid of substantial evidence or constitutes a clear error in judgment.

Prosecutorial Discretion

The FEC, akin to other executive agencies, maintains prosecutorial discretion, a principle that typically falls outside the ambit of judicial review. This understanding is reinforced by Supreme Court precedents, particularly in FEC v. Akins.

En Banc Review Questions

The recent order for en banc review broadens the scope of issues to be addressed. One key question is whether an FEC decision can be regarded as contrary to law under 52 U.S.C. § 30109(a)(8)(C) if the dismissal of a complaint is found to be arbitrary, capricious, or an abuse of discretion, as established in Orloski v. FEC.

Potential Impact

The en banc review may yield significant implications for the enforcement of federal election law and could extend its reach to the judicial review of executive branch enforcement discretion on a broader scale. A reversal of the panel’s decision by the full court could potentially trigger a more extensive examination by the Supreme Court.

Predictions and Implications

The approval of the petition suggests a belief among a majority of the D.C. Circuit that existing case law may overly insulate FEC non-enforcement decisions from judicial scrutiny. Observers predict that the full court might reverse the panel’s earlier decision; however, this might not be the conclusive effect if the case escalates to the Supreme Court level.