July 1, 2021

Senators File Brief Urging Restoration of Judicial Oversight of Deadlocked, Ineffective FEC

Whitehouse, Merkley, Blumenthal, Warren, Hirono, Van Hollen call on DC Circuit to overturn Trump appointee’s ruling in key campaign finance case


Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), Richard Blumenthal (D-CT), Elizabeth Warren (D-MA), Mazie Hirono (D-HI), and Chris Van Hollen (D-MD) filed a brief in a major campaign finance case before the Court of Appeals for the D.C. Circuit calling to restore judicial oversight over the broken Federal Elections Commission (FEC) in the wake of Citizens United. The senators, who have experienced firsthand the post-Citizens United deluge of political spending, show the court how the federal campaign finance regulator has failed to enforce important limits and transparency requirements on special-interest spending in political campaigns. They call on the full membership of the D.C. Circuit to reverse a smaller panel’s decision against giving the federal courts power to review FEC decisions.

“As popularly elected U.S. senators, [we] have seen firsthand how Citizens United . . . upended our political ecosystem,” the senators write. “We now are witnessing the FEC’s utter failure to regulate in that decision’s aftermath. We are disturbed and frustrated that a partisan non-majority of FEC Commissioners can neutralize the Federal Election Campaign Act, block the FEC’s investigative powers, and then evade judicial review merely by uttering the magic words ‘prosecutorial discretion.’ We ask the Court to grant en banc review to restore the judicial oversight over the FEC that Congress intended.”

The case before the court, CREW v. FEC (New Models), challenges Republican FEC commissioners’ practice of blocking federal courts’ review of decisions not to investigate campaign finance complaints. Under the Federal Election Campaign Act (FECA), the FEC cannot move forward with an investigation without a majority of commissioners’ agreement. Current Republican-appointed commissioners exploit this requirement and routinely vote not to investigate even open and obvious violations. Anticipating this situation in drafting FECA, Congress intended for FEC decisions not to proceed with an investigation to be subject to judicial review and empowered judges to act if the FEC would not.

But under the D.C. Circuit’s initial ruling in New Models, written by Trump appointee Neomi Rao, any FEC decision that references prosecutorial discretion—the concept of allowing a prosecutor to decide whether to proceed with a case—is sufficient to prevent judicial review. This offers Republican commissioners a way to shut down any investigation and leave the complainant with nowhere else to turn. In this case, the Republican commissioners added one sentence at the end of their 30-page memorandum on the complaint stating their decision was based, in part, on prosecutorial discretion.

In their brief, the senators point to an explosion of spending by special interests. The Center for Responsive Politics reports that super PACs spent over $3 billion on federal elections from 2010 through 2020. As former FEC commissioner Ann Ravel has written, “[s]uper PACs account for more expenditures in campaigns than those spent by the individual candidates.” Non-party independent groups spent $4.5 billion on elections from 2010 through 2020, compared with just $750 million in the two decades prior.

Compounding the problem is the increasing portion of post-Citizens United spending that is anonymous “dark money.” Since 2010, 501(c)(4) dark-money organizations have spent over $900 million on political expenditures, compared to $103 million in the previous decade. This enormous uptick, the senators note, allows special interests to influence elections and control the actions of government from behind a veil of secrecy.

Read the full brief here.

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Meaghan McCabe, (202) 224-2921