UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FREE SPEECH FOR PEOPLE, et al., Plaintiffs, Civil Action No. 22-666 (CKK) v.

FEDERAL ELECTION COMMISSION, Defendant.

MEMORANDUM OPINION (August 1, 2024)

The Federal Election Commission (“FEC” or “Defendant”) dismissed an administrative

complaint alleging violations of the Federal Election Campaign Act (“FECA” or “Act”). Plaintiffs

Free Speech for People and Campaign for Accountability (collectively, “Plaintiffs”) filed this

lawsuit, arguing that the FEC’s dismissal of their administrative complaint was “contrary to law.”

(a)(8)(C); see generally Compl., ECF No. 1. Now pending before the Court is

Defendant’s [13-1] Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”), arguing Plaintiffs’ [1] Complaint fails to state a claim upon which relief can be granted

because the FEC exercised prosecutorial discretion to dismiss Plaintiffs’ administrative complaint.

See generally Def.’s Mot., ECF No. 13-1. Plaintiffs oppose Defendant’s motion in its entirety.

See generally Pls.’ Opp’n, ECF No. 24. Upon review of the briefing, 1 the relevant legal

1 The Court’s consideration has focused on the following: • Plaintiffs’ Complaint (“Compl.”), ECF No. 1; • Defendant’s Motion to Dismiss (“Def.’s Mot.”), ECF No. 13-1; • Plaintiffs’ Memorandum in Opposition to Defendant’s Motion to Dismiss (“Pls.’ Opp’n”), ECF No. 24; • Defendant’s Reply in Support of the Motion to Dismiss (“Def.’s Reply”), ECF No. 25; and • Joint Appendix (“AR”), ECF No. 26.

1 authorities, and the administrative record, 2 the Court shall GRANT Defendant’s Motion to

Dismiss and DISMISS Plaintiffs’ [1] Complaint in its entirety.

I. BACKGROUND

A. Regulatory Scheme

Congress enacted FECA “to limit spending in federal election campaigns and to eliminate

the actual or perceived pernicious influence over candidates for elective office that wealthy

individuals or corporations could achieve by financing the political warchests of those candidates.”

Orloski v. Fed. Election Comm’n,

(D.C. Cir. 1986) (citation omitted). The

Act’s 1974 amendments also created the FEC, which exercises jurisdiction over FECA and its

implementing regulations.

.

Under FECA, any person can file a complaint with the FEC alleging a violation of the Act.

See

§ 30109(a)(1) (“Any person who believes a violation of this Act . . . has occurred, may file

a complaint with the Commission.”). The agency will review the complaint, and any response

provided by the respondent, before voting on whether it finds “reason to believe” a violation has

occurred (or is about to occur). Id. § 30109(a)(2). If answered in the affirmative, the FEC will

investigate the alleged violation(s). Id. The FEC’s general counsel is authorized to submit a

recommendation on whether an investigation should or should not be undertaken. See id.

§ 30109(a)(3). However, “an affirmative vote of four commissioners is required for the agency to

initiate enforcement proceedings.” Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm’n

(“New Models”),

(D.C. Cir. 2021); see also

(a)(2). If there

is a split vote of the commissioners (e.g., 3-3), then the investigation cannot proceed. End Citizens

2 In accordance with Local Civil Rule 7(n), the parties have filed a Joint Appendix containing “copies of those portions of the administrative record that are cited or otherwise relied upon” in their pleadings. LCvR 7(n); see ECF No. 26. Citations to the administrative record shall include the pages numbers corresponding to the Joint Appendix and Administrative Record (“AR”).

2 United PAC v. Fed. Election Comm’n,

(D.C. Cir. 2024). When there is a split

(or deadlocked) vote, the commissioners who voted against enforcement—called the “controlling

commissioners”—must file a “Statement of Reasons,” explaining the basis for their (and by

extension the FEC’s) decision.

at 1176 n.2 (citation omitted); see also Democratic Cong.

Campaign Comm. v. Fed. Election Comm’n,

(D.C. Cir. 1987) (establishing

the requirement for controlling commissioners to issue a statement of reasons).

If the FEC dismisses an administrative complaint, “[a]ny party aggrieved” by the dismissal

“may file a petition” for judicial review.

(a)(8)(A). If the reviewing court

determines that the FEC acted “contrary to law” in dismissing the FEC complaint, then the court

may order the agency to “conform with such declaration within [thirty] days[.]”

§ 30109(a)(8)(C). The “Statement of Reasons” by the controlling commissioners serves as the

basis for which the district court assesses the dismissal of the complaint. Common Cause v. Fed.

Election Comm’n,

(D.C. Cir. 1988).

B. Plaintiffs’ Administrative Complaint & Procedural History

On December 16, 2016, Plaintiffs filed an administrative complaint with the FEC against

the Government of the Russian Federation (“Russian Federation”) and Donald J. Trump for

President, Inc. (“Trump Campaign”), alleging violations of FECA during the 2016 presidential

election. Compl. ¶¶ 1–2. Plaintiffs then filed two amendments to their original complaint in May

and June of 2017. Id. ¶ 35. In general, Plaintiffs’ FEC complaint alleged that the Russian

Federation, in an effort to influence the 2016 presidential election, “paid hackers to hack into

Democratic National Committee servers and leak” information, “paid people to make social media

posts,” “paid for political advertisements,” and failed to “disclose any of this spending.” Id. ¶ 4.

3 The administrative complaint also alleged that “at least some of the Russian Federation’s political

spending was ‘coordinated’ with the Trump Campaign.” Id.

On February 23, 2021, the FEC’s Office of the General Counsel (“OGC”) released its First

General Counsel’s Report (“Report”), which consolidated Plaintiffs’ administrative complaint

“with several other later-filed complaints by unrelated parties.” Id. ¶¶ 56–58; see AR89–AR189,

ECF No. 26. The Report recommended that the FEC find “reason to believe” that both the Russian

Federation and the Trump Campaign violated FECA on several grounds. AR187–AR188. The

Report further recommended that the FEC “[a]uthorize pre-probable cause conciliation with [the

Trump Campaign][.]” AR188.

After reviewing the Report and recommendations therein, the FEC took several votes on

April 22, 2021. First, the FEC split voted 3-3 on whether to find reason to believe that either the

Russian Federation or the Trump Campaign had violated FECA. 3 Compl. ¶ 73. Next, the FEC

voted by a 4-2 majority to dismiss the claims against the Russian Federation based on prosecutorial

discretion. 4 Id. ¶ 74. Then, on a separate vote to dismiss the claims against the Trump Campaign

based on prosecutorial discretion, the commissioners deadlocked 3-3. 5 Id. Finally, the FEC voted

6-0 to close the file as to both the Russian Federation and the Trump Campaign. Id. ¶ 75; see also

AR271. On August 18, 2021, the FEC informed Plaintiffs of its decision to close the

administrative file. Compl. ¶ 76.

After dismissing the FEC complaint in April 2021, the FEC published the documents

related to Plaintiffs’ administrative complaint on its website on February 18, 2022. Id. ¶ 83. The

3 Commissioners Broussard, Walther, and Weintraub voted for finding reason to believe. AR269–AR270. Commissioners Cooksey, Dickerson, and Trainor voted against finding reason to believe. Id. 4 Commissioners Broussard, Dickerson, Walther, and Weintraub voted for dismissal. AR270–AR271. Commissioners Cooksey and Trainor dissented. Id. 5 Commissioners Cooksey, Dickerson, and Trainor voted to dismiss the Trump Campaign pursuant to the FEC’s prosecutorial discretion. AR271. Commissioners Broussard, Walther, and Weintraub dissented. Id.

4 three commissioners who voted against finding reason to believe that the Trump Campaign

violated FECA, and in favor of dismissal, issued a joint Statement of Reasons, dated November

22, 2021, explaining that they “voted to dismiss [all respondents, including the Trump Campaign,]

as an exercise of prosecutorial discretion for two principal reasons.” AR343. First, the

commissioners considered their time and resource constraints within the relevant five-year statute

of limitations, highlighting that the FEC waited over four years for the OGC’s Report, was still

awaiting the completion of ongoing investigations by others, and would require “significant

resources” and overcoming “multifarious legal obstacles” to pursue an investigation. Id.

Weighing the “vanishing odds of successful enforcement” and the costs to the agency, the

commissioners explained that the “better course was dismissal.” Id. Second, the commissioners

believed that the FEC’s interests had “already been vindicated by the investigations conducted by

other parts of the federal government,” and it was “an imprudent use of resources to duplicate other

agencies’ work.” Id. Accordingly, the commissioners voted to dismiss the administrative

complaint “as an exercise of prosecutorial discretion.” AR344.

On March 10, 2022, Plaintiffs initiated this lawsuit against Defendant, seeking declaratory

and injunctive relief that the FEC’s dismissal of Plaintiffs’ administrative complaint was “contrary

to law” under

(a)(8)(C). See generally Compl. Defendant subsequently filed

the pending Motion to Dismiss, seeking dismissal of Plaintiffs’ Complaint for failure to state a

claim under Rule 12(b)(6). See generally Def.’s Mot. Plaintiffs oppose Defendant’s Motion in its

entirety. See generally Pls.’ Opp’n. With the Motion fully briefed, the Court turns to its resolution.

II. LEGAL STANDARD

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint

5 is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its

face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal,

. “In evaluating a motion to dismiss, the Court must

accept the factual allegations in the complaint as true and draw all reasonable inferences in favor

of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv.,

(D.D.C. 2006)

(PLF).

When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the complaint” or

“documents upon which the plaintiff's complaint necessarily relies even if the document is

produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward

v. D.C. Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011) (internal quotation

marks omitted) (quoting Gustave–Schmidt v. Chao,

(D.D.C. 2002)

(RBW); Hinton v. Corr. Corp. of Am.,

(D.D.C. 2009)). The Court may

also consider documents in the public record of which the Court may take judicial notice. Abhe &

Svoboda, Inc. v. Chao,

(D.C. Cir. 2007).

III. DISCUSSION

Defendant moves to dismiss Plaintiffs’ Complaint under Rule 12(b)(6), arguing that the

controlling commissioners (here, the three commissioners who voted against finding reason to

believe a FECA violation occurred and in favor of dismissal) appropriately dismissed the FEC

6 complaint as to the Russian Federation and the Trump Campaign based on prosecutorial discretion,

which renders the FEC’s decision judicially unreviewable. See Def.’s Mot. at 26. Plaintiffs, in

response, do not challenge the FEC’s dismissal of their administrative complaint as to the Russian

Federation, recognizing that the FEC voted 4-2 for dismissal based on its prosecutorial discretion. 6

Pls.’ Opp’n at 39. Plaintiffs do, however, argue that the FEC’s dismissal of their claims against

the Trump Campaign is judicially reviewable because the agency failed to obtain a majority vote

to dismiss pursuant to prosecutorial discretion. Id. at 27.

Under FECA, a party “aggrieved” by an FEC dismissal may file a petition for review with

a district court, and the district court may “declare that the dismissal of the complaint or the failure

to act is contrary to law.”

(a)(8)(A) & (C); see also New Models,

; End Citizens United PAC,

n.3 (“FECA commits nonenforcement decisions

to the Commission's discretion except to the extent that they are ‘contrary to law.’”). A dismissal

is “contrary to law” under FECA if: (1) the agency dismissed the complaint “as a result of an

impermissible interpretation” of the Act; or (2) the agency’s dismissal, “under a permissible

interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.” Ends Citizens

United PAC, 90 F.4th at 1177–78 (quoting Orloski,

).

Notwithstanding FECA’s “contrary to law [judicial] review” provision, the FEC may

dismiss an administrative complaint as an exercise of the agency’s prosecutorial discretion. Id. at

1178. Courts have long recognized “the general unsuitability for judicial review of agency

6 In their opposition, Plaintiffs sought to preserve two arguments—(1) a non-majority bloc cannot assert authority to exercise prosecutorial discretion, and (2) the FEC’s dismissal of Plaintiffs’ claims against the Russian Federation was contrary to law—pending an en banc rehearing of Citizens for Responsibility & Ethics in Washington v. Federal Election Comm’n,

(D.C. Cir. 2021). See Pls.’ Opp’n at 37– 42. However, the D.C. Circuit denied the petition. Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm'n,

(D.C. Cir. 2022) (per curiam). Consequently, this Court shall not consider Plaintiffs’ additional arguments.

7 decisions to refuse enforcement.” Heckler v. Chaney,

(1985). As recognized

by the D.C. Circuit, the FEC’s “exercise of its prosecutorial discretion cannot be subjected to

judicial scrutiny.” Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm’n (“Comm’n on

Hope”),

(D.C. Cir. 2018). An FEC dismissal is reviewable by courts “only if

the decision rests solely on legal interpretation.” New Models,

;

(“[I]f

the Commission declines an enforcement based entirely on its interpretation of the statute such

decision might be reviewable.”). Conversely, an FEC dismissal is unreviewable if it “turn[s] in

whole or in part on enforcement discretion.” End Citizens United PAC,

(quoting

New Models,

) (alterations in original). If a lawsuit seeks judicial review of an

FEC dismissal that was based, even in part, on prosecutorial discretion, then the plaintiff’s

complaint has failed to state a claim upon which relief can be granted under Rule 12(b)(6). Id. at

1181 (citation omitted) (“The non-reviewability of prosecutorial discretion under Chaney is not

jurisdictional; rather, it deprives the plaintiff of a cause of action.”).

For the reasons set forth below, the Court concludes that the FEC’s controlling

commissioners did properly assert prosecutorial discretion, and therefore the dismissal of

Plaintiffs’ claims against the Trump Campaign is not judicially reviewable under controlling D.C.

Circuit precedent. See generally End Citizens United PAC,

.

A. Majority Vote

To determine whether the FEC’s dismissal of Plaintiffs’ claims regarding the Trump

Campaign is judicially reviewable, this Court must first address Plaintiffs’ contention regarding

the votes conducted by the FEC. Plaintiffs claim that when the FEC conducts a vote to dismiss an

administrative complaint, “that motion must garner a majority vote if the Commission is to

exercise its [prosecutorial discretion] power.” Pls.’ Opp’n at 28–29. The Court disagrees.

8 While enforcement proceedings can only commence by “an affirmative vote of four

commissioners,” New Models,

; see

(a)(2), a vote to dismiss

pursuant to the FEC’s prosecutorial discretion is not a vote to initiate enforcement proceedings.

Dismissal of an FEC complaint can hinge on the FEC’s “reason to believe” vote. See End Citizens

United PAC,

(“[T]he three controlling commissioners determined there was no

reason to believe impermissible coordination had occurred. With a deadlocked Commission and

short of the four votes necessary for an investigation, dismissal was required under FECA.”); see

also Pub. Citizen, Inc. v. Fed. Energy Regul. Comm’n,

(D.C. Cir. 2016)

(explaining that FECA “compels [the] FEC to dismiss complaints in deadlock situations.”).

As the D.C. Circuit made clear, if three commissioners vote to find reason to believe that

a violation occurred and the other three commissioners vote to dismiss, the administrative

complaint is viewed as a dismissal. End Citizens United PAC,

. A majority vote

is not required to dismiss a complaint.

. In this case, when voting on Plaintiffs’ FEC

complaint against the Trump Campaign, the FEC deadlocked with a 3-3 vote on whether to find

reason to believe the violations had occurred and then again on whether to dismiss. AR269–

AR271. It is of no legal significance whether the FEC combines a reason-to-believe vote with a

vote to dismiss an administrative complaint, or whether they take two separate votes. See New

Models,

(“Because there were only two votes in favor of moving forward with an

enforcement action against New Models, the [FEC] dismissed CREW's complaint.”).

Accordingly, the FEC’s decision pertaining to the Trump Campaign was a dismissal that did not

require a majority vote. See End Citizens United PAC,

; Pub. Citizen, Inc.,

.

9 B. Controlling Commissioners

Plaintiffs next argue that under D.C. Circuit precedent, “when courts review the rationale

for the FEC’s failure to adopt a motion by a 3-3 deadlock, the FEC’s rationale is deemed to be that

of the three commissioners who opposed the motion.” Pls.’ Opp’n at 32. Under Plaintiffs’ view,

the “controlling commissioners” (of a deadlocked vote) are those who oppose any action by the

FEC.

Therefore, Plaintiffs maintain that the three commissioners who voted against dismissal

of the administrative complaint as to the Trump Campaign are the controlling commissioners in

that vote. Id. at 33. Plaintiffs’ argument, however, is premised on an incorrect reading of D.C.

Circuit precedent.

When the FEC lacks the four votes necessary to proceed with an investigation, “the

commissioners who voted against enforcement must ‘state their reasons why.’” New Models,

n.3 (quoting Democratic Cong. Campaign Comm.,

). The reasons

offered by these “so-called ‘controlling Commissioners’” are then “treated as if they were

expressing the [FEC’s] rationale for dismissal.”

(quoting Comm'n on Hope,

);

see also Fed. Election Comm’n v. Nat’l Rep. Senatorial Comm.,

(D.C. Cir.

1992) (“[T]o make judicial review a meaningful exercise, the three Commissioners who voted to

dismiss [in a deadlock situation] must provide a statement of their reasons for so voting.”). This

procedure serves to fit circumstances in which the FEC lacks the requisite four votes in favor of

proceeding with an enforcement action. See Citizens for Resp. & Ethics in Wash. v. Fed. Election

Comm'n,

(D.D.C. 2019) (RC), aff'd,

(D.C. Cir. 2021) (“If the

Commissioners deadlock on a ‘reason to believe’ vote, they may vote to dismiss the administrative

complaint that prompted the vote . . . . At that point, as happened here, the Commissioners who

voted not to proceed with the matter (the ‘Controlling Commissioners’) must issue a statement

10 explaining their reasons.”). The D.C. Circuit has not applied Plaintiffs’ interpretation of

“controlling commissioners,” and this Court declines to do so here. See End Citizens United PAC,

n.2 (“The commissioners voting against enforcement are called ‘controlling

commissioners,’ and their stated reasons are treated as if they were expressing the Commission’s

rationale for dismissal.” ); Fed. Election Comm’n,

(stating the “controlling”

commissioners are those who “voted to dismiss” after a 3-3 deadlock).

In this case, the FEC failed by a vote of 3-3 to find reason to believe that the Trump

Campaign had violated FECA, Compl. ¶ 73, and then failed by a vote of 3-3 to dismiss the claims

against the Trump Campaign, id. ¶ 74. In accordance with D.C. Circuit precedent, the three

commissioners in this case who voted against finding reason to believe, and voted in favor of

dismissal, constitute the “controlling commissioners.” See End Citizens United PAC,

n.2; Fed. Election Comm’n,

.

C. Prosecutorial Discretion

The remaining issue for the Court to decide is whether the three controlling commissioners

(i.e., the three commissioners who voted against finding reason to believe and in favor of dismissal)

invoked the FEC’s prosecutorial discretion when dismissing the administrative complaint as

against the Trump Campaign. Plaintiffs concede that the three commissioners who voted against

finding reason to believe invoked prosecutorial discretion as the basis for voting as such. See Pls.’

Opp’n at 24. As determined above, these three commissioners are the controlling commissioners

because they voted against the enforcement action and in favor of dismissal. End Citizens United

PAC,

n.2; Fed. Election Comm’n,

. .

Critically, the controlling commissioners issued a Statement of Reasons, explaining why

they “voted to dismiss [the Trump Campaign] as an exercise of prosecutorial discretion.” AR343.

11 They considered timing restraints given the “waning limitations period,” “legal obstacles . . . that

would have further delayed action,” the “significant resources” required to undertake such an

investigation, and “the vanishing odds of successful enforcement” due to these barriers before

concluding “the better course was dismissal.”

The controlling commissioners further

explained their support for dismissal by stating their belief that “the [FEC’s] interests have already

been vindicated by the investigations conducted by other parts of the federal government,”

including the Special Counsel, relevant committees of the U.S. Senate and the U.S. House of

Representatives, and the Office of the Director of National Intelligence, and that another

investigation would be “unlikely to benefit” the public and “an imprudent use of resources to

duplicate other agencies’ work.” AR343–AR344.

Considering the explanations provided in the Statement of Reasons, the Court concludes

that the dismissal of Plaintiffs’ FEC complaint is not subject to review because the controlling

commissioners exercised their prosecutorial discretion. See End Citizens United PAC,

(“Prioritizing particular cases and considering limited time and resources are quintessential

elements of prosecutorial discretion.”). The controlling commissioners explained their reasoning

for deprioritizing the matter, as the investigation would face legal obstacles, lengthen an unfeasibly

short timeline, expend limited and costly resources, and only minimally benefit the public because

of the duplicative nature of the investigation. See generally AR342–AR344. These are appropriate

considerations when determining whether to assert prosecutorial discretion. See End Citizens

United PAC,

. Accordingly, the FEC’s dismissal in this case was an exercise of

the agency’s prosecutorial discretion, and therefore cannot be subject to judicial review.

at

1178–79. Consequently, Plaintiffs’ Complaint must be dismissed under Rule 12(b)(6) for failure

12 to state a claim. See

(citation omitted) (explaining that the exercise of prosecutorial

discretion “deprives the plaintiff of a cause of action.”).

IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT Defendant’s Motion to Dismiss and

DISMISS Plaintiffs’ Complaint in its entirety. An appropriate Order accompanies this

Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

13