United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 26, 2023               Decided January 19, 2024

                        No. 22-5277

                END CITIZENS UNITED PAC,
                       APPELLANT

                              v.

  FEDERAL ELECTION COMMISSION AND NEW REPUBLICAN
                       PAC,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:21-cv-02128)



     Kevin P. Hancock argued the cause for appellant. With
him on the briefs were Adav Noti, Alexandra Copper, and
Allison Walter. Molly Danahy entered an appearance.

     Stuart C. McPhail and Adam J. Rappaport were on the
brief for amicus curiae Citizens for Responsibility and Ethics
in Washington in support of appellant.

    Jason B. Torchinsky argued the cause for intervenor-
appellee New Republican PAC. With him on the brief were
                               2
Edward M. Wenger, Phillip M. Gordon, and Kenneth C.
Daines.

    Before: PILLARD, KATSAS, and RAO, Circuit Judges.

    Opinion for the Court filed by Circuit Judge RAO.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge PILLARD.

     RAO, Circuit Judge: This case concerns the Federal
Election Commission’s dismissal of two administrative
complaints alleging that New Republican PAC and Senator
Rick Scott violated various election laws. The Commission
dismissed the first complaint on the ground of prosecutorial
discretion, and it dismissed the second after concluding the
record provided no “reason to believe” the alleged violation
occurred. End Citizens United PAC filed suit, challenging both
dismissals. The district court dismissed the suit, and we affirm.
The Commission’s first dismissal is unreviewable because it
was based on prosecutorial discretion, and the second dismissal
was not contrary to law.

                               I.

                               A.

     New Republican is a “Super PAC,” meaning a political
action committee “that makes only independent expenditures
and cannot contribute to candidates.” See McCutcheon v. FEC,

, 193 n.2 (2014) (plurality opinion). Rick Scott
became New Republican’s chairman in May 2017 and formally
stepped down in December 2017. He officially declared his run
for Senate in April 2018.
                                 3
     End Citizens United filed two administrative complaints
with the Commission, alleging New Republican and Scott1
violated several requirements of the Federal Election
Campaign Act of 1971 (“FECA”). See 

Stat. 3 (codified as amended at 

 et seq.).
According to End Citizens United, before officially declaring
his Senate run, Scott began informal campaign activities and
used New Republican’s resources to support his nascent
candidacy. He also allegedly continued to exert control over
New Republican into 2018—well after his chairmanship
ended. He purportedly did this by fundraising for New
Republican, participating in conference calls, and interacting
with political allies connected to the PAC, among other things.
Immediately after Scott officially declared his candidacy in
April 2018, New Republican revamped its website and issued
a press release to announce its “focus[] on the election of Rick
Scott in the race for Florida United States Senate.”

     Based on this timeline, End Citizens United’s first
complaint maintained that Scott became a “candidate” in May
2017, the same month he became chairman of New
Republican, and that he failed to register his campaign until
nearly a year later. Complaint at 1–5, FEC Matter Under
Review 7370 (“Complaint One”) (Apr. 23, 2018); see also 

(2) (defining “candidate”); 

(a) (outlining permissible activities and reporting
requirements for individuals “determining whether … [to]
become a candidate”). As a consequence of the alleged failure
to timely register his campaign, Scott failed to make the
necessary filings and reports to the FEC. See 52 U.S.C.
§§ 30102–04. The complaint also alleged that New Republican

1
 End Citizens United also alleged Scott’s campaign had violated
FECA. For purposes of this case, we do not distinguish between
Scott and his campaign because the distinction is not relevant here.
                               4
unlawfully raised and spent funds while under Scott’s control,
because all candidate controlled entities are subject “to
[FECA’s]      limitations,   prohibitions,  and     reporting
requirements.” Id. § 30125(e)(1)(A).

     The second complaint alleged unlawful coordination
between Scott and New Republican. Complaint at 1–8, FEC
Matter Under Review 7496 (“Complaint Two”) (Sept. 14,
2018). New Republican launched two television commercials,
in May and June 2018, against Scott’s opponent in the Senate
race. End Citizens United alleged that New Republican had
impermissibly contributed to Scott’s campaign by coordinating
with Scott to purchase the commercials. See 

(a)(7)(B)(i), (f) (specifying that, when a Super PAC
makes an expenditure “in cooperation, consultation, or
concert[] with” a candidate, that expenditure “shall be
considered” an impermissible contribution even if the Super
PAC never transferred funds directly to the candidate); see also

 (defining “coordinated communication”).
In support of this claim, End Citizens United emphasized that
Scott had continued his involvement with New Republican for
months after formally stepping down, including during the
period when the advertisements were booked and paid for.
Scott and New Republican denied the allegations in both
complaints.

                              B.

     After reviewing the complaints and responses, the
Commission’s general counsel recommended the Commission
find “reason to believe” Scott and New Republican committed
some of the Complaint One violations. See 

(a). With respect to the Complaint Two coordination
claim, the general counsel relied on the sworn statement of
Blaise Hazelwood, who took over New Republican after
                               5
Scott’s departure. Hazelwood stated that she had directed the
advertisement placements without coordinating with Scott or
his campaign. The general counsel noted that End Citizens
United’s complaint almost exclusively relied on the timing of
the campaign commercials, inferring coordination from the fact
that the commercials aired shortly after Scott stepped down
from New Republican and formally announced his candidacy.
Aside from this “mere temporal relationship,” however, the
general counsel concluded there was “no information available
suggesting” coordination had occurred. The general counsel
recommended the Commission take no action on Complaint
Two and wait to see whether the recommended investigation
into Complaint One uncovered facts that would provide reason
to believe New Republican had unlawfully coordinated with
Scott.

     Under FECA, the Commission will begin an investigation
only if four commissioners determine there is “reason to
believe” a violation has occurred. 

(a)(2).
“[A]n affirmative vote of four commissioners is required for
the agency to initiate enforcement proceedings.” Citizens for
Resp. & Ethics in Wash. v. FEC (“New Models”), 

 (D.C. Cir. 2021); see 

(a)(2). A split vote
of the six commissioners means no investigation may go
forward. See Combat Veterans for Cong. PAC v. FEC, 

 (D.C. Cir. 2015). Here, three commissioners
voted to find reason to believe the violations had occurred, and
the other three voted to dismiss both complaints. Lacking the
four votes necessary to begin an investigation, the Commission
voted five to one to close the file and dismiss the complaints.

    The three commissioners voting against enforcement, the
so-called controlling commissioners, issued a Statement of
                                 6
Reasons.2 Statement of Reasons of Vice Chair Allen Dickerson
and Commissioners Sean J. Cooksey and James E. “Trey”
Trainor III, FEC Matters Under Review 7370 and 7496
(“Statement of Reasons”) (July 21, 2021). With respect to
Complaint One, they offered legal and evidentiary grounds for
dismissal. They also explicitly “invoked … prosecutorial
discretion pursuant to Heckler v. Chaney,” concluding it would
be unwise to “authoriz[e] an expensive and resource-
consuming investigation while the Commission is … working
through a substantial backlog of cases.” 

 at 10 (citing
Heckler v. Chaney, 

 (1985)). As to Complaint
Two, the controlling commissioners offered two independent
reasons for dismissal. First, they suggested the coordination
allegation could not go forward without “a threshold finding”
that Scott or New Republican had violated FECA’s campaign
registration, filing, reporting, or spending requirements, as
alleged in Complaint One. 

 at 2 n.2. Second, they
incorporated by reference the general counsel’s evidentiary
analysis, agreeing the record did not support a reason to believe
coordination had occurred. 

 at 5 n.25.

     End Citizens United filed suit in 2021, challenging the
Commission’s dismissals as “contrary to law.” See 

(a)(8)(C). The Commission did not defend its
dismissals in district court. After allowing New Republican to
intervene as a defendant, the district court granted summary
judgment in New Republican’s favor. End Citizens United

2
   The commissioners voting against enforcement are called
“controlling [c]ommissioners,” and their stated reasons are “treated
as if they were expressing the Commission’s rationale for dismissal.”
New Models, 

 n.3 (cleaned up); see also Democratic
Cong. Campaign Comm. v. FEC, 

 (D.C. Cir.
1987) (establishing the requirement for the controlling
commissioners to issue a statement of reasons).
                                 7
PAC v. FEC, No. 21-2128, 

, at *1 (D.D.C.
Sept. 16, 2022). The district court concluded the Commission’s
dismissal of the first complaint was unreviewable because that
dismissal was based in part on prosecutorial discretion. 

 at
*5 (citing New Models, 

). And it concluded the
Commission’s dismissal of the second complaint was
reviewable but not contrary to law. 

 at *6–7. End Citizens
United timely appealed. Our review is de novo. Citizens for
Resp. & Ethics in Wash. v. FEC (“Commission on Hope”), 

 (D.C. Cir. 2018).

                                II.

     End Citizens United argues the dismissal of Complaint
One was contrary to law because the controlling
commissioners erroneously interpreted FECA to require a
showing of Scott’s “subjective intent” to become a candidate.
And, it argues, the Complaint Two dismissal was also contrary
to law because the controlling commissioners applied FECA to
the facts in an arbitrary and irrational way.

     FECA allows a court to “declare that the dismissal of [a]
complaint … is contrary to law.” 

(a)(8)(C).
Under our precedents, a dismissal is “contrary to law” if “(1)
the FEC dismissed the complaint as a result of an
impermissible interpretation of [FECA] … or (2) if the FEC’s
dismissal of the complaint, under a permissible interpretation
of the statute, was arbitrary or capricious, or an abuse of
discretion.”3 Orloski v. FEC, 

 (D.C. Cir.

3
  Since Orloski v. FEC, this circuit has included arbitrary and
capricious review, as well as abuse of discretion review, under
FECA’s “contrary to law” standard. 

 (D.C. Cir.
1986). But prior decisions did not conflate these different forms of
review. For instance, the Supreme Court explained that given the
                                  8
1986). To the extent we review dismissals for arbitrariness, our
review is “[h]ighly deferential,” “presumes the validity of
agency action[,] and permits reversal only if the agency’s
decision is not supported by substantial evidence, or the agency
has made a clear error in judgment.” Hagelin v. FEC, 

 (D.C. Cir. 2005) (cleaned up); accord Campaign
Legal Ctr. & Democracy 21 v. FEC, 

 (D.C.
Cir. 2020) (per curiam).




discretionary enforcement powers of the Commission, “Congress
wisely provided that the Commission’s dismissal of a complaint
should be reversed only if ‘contrary to law.’” FEC v. Democratic
Senatorial Campaign Comm., 

 (1981) (cleaned up)
(emphasis added); see also In re Carter-Mondale Reelection Comm.,
Inc., 

, 542 (D.C. Cir. 1980) (per curiam) (accepting the
parties’ “agree[ment] that the standard of review was whether the
FEC has acted arbitrarily, capriciously, or contrary to law,” without
opining on whether that stipulation was legally correct); Orloski, 

 (citing these two cases).
     We have since suggested that Orloski was attempting to
harmonize FECA with the Administrative Procedure Act’s judicial
review provisions, which allow for arbitrary and capricious review.
See Comm’n on Hope, 

 & n.3 (explaining the APA,

, allows a later statute to modify its judicial review
provisions only expressly). The APA’s judicial review framework,
however, does not apply to agency actions “committed to agency
discretion by law.” 

(a)(2). And FECA commits
nonenforcement decisions to the Commission’s discretion except to
the extent that they are “contrary to law.” See New Models, 

. Neither Orloski nor the cases following it have explained why
the APA’s arbitrary and capricious and abuse of discretion standards
of review should be imported into FECA’s “contrary to law”
standard. Until reconsideration by the full court, Orloski is binding
precedent, and we follow it here.
                                9
     FECA’s contrary to law review does not eliminate the
Commission’s prosecutorial discretion. “[T]he [Administrative
Procedure Act] and longstanding … precedents rooted in the
Constitution’s separation of powers recognize that
enforcement decisions are not ordinarily subject to judicial
review.” New Models, 

; see also Chaney, 470
U.S. at 831–32. And “[t]he Supreme Court in Akins recognized
that the Commission, like other Executive agencies, retains
prosecutorial discretion.” Citizens for Resp. & Ethics in Wash.
v. FEC, 

, 340 (D.C. Cir. 2007) (citing FEC v.
Akins, 

 (1998)). It follows that the
Commission’s “exercise of its prosecutorial discretion cannot
be subjected to judicial scrutiny.” Comm’n on Hope, 

. Furthermore, we recently reiterated that a Commission
dismissal is unreviewable if it “turn[s] in whole or in part on
enforcement discretion.” New Models, 

. A
dismissal is reviewable “only if the decision rests solely on
legal interpretation.” 

; see also Akins, 524 U.S. at 25–
26 (explaining that “[i]f a reviewing court agrees that the
agency misinterpreted the law, it will set aside the agency’s
action and remand the case” and that the petition can seek only
“a declaration that the FEC’s dismissal … was unlawful”).

                               A.

     The Commission’s dismissal of the first complaint is an
unreviewable exercise of its prosecutorial discretion. As End
Citizens United concedes, the controlling commissioners
expressly invoked their prosecutorial discretion when
dismissing the complaint. They cited Chaney repeatedly,
discussed the time and expense an investigation would involve,
and mentioned the Commission’s “substantial backlog of
cases.” Statement of Reasons at 2, 10. Prioritizing particular
cases and considering limited time and resources are
quintessential elements of prosecutorial discretion. When the
                               10
Commission’s dismissal rests even in part on prosecutorial
discretion, it is not subject to judicial review. New Models, 

, 893–95; see also Comm’n on Hope, 

.

     Resisting the straightforward conclusion from our
caselaw, End Citizens United asserts the invocation of
prosecutorial discretion is not determinative because the
controlling commissioners relied on an interpretation of FECA.
The controlling commissioners concluded that whether Scott
violated FECA would turn on his “subjective intent” during the
relevant timeframe—an apparent reference to whether Scott
formed an intention to launch a Senate campaign while he was
the chairman of New Republican. Statement of Reasons at 10.
Because the dismissal rested in part on this legal analysis, End
Citizens United contends we can review whether the dismissal
was contrary to law.

     We have repeatedly declined to review dismissals in
similar circumstances because we will not “carve out the
Commission’s statutory interpretation from its exercise of
enforcement discretion” in order to review a dismissal. New
Models, 

; Comm’n on Hope, 

(“The law of this circuit rejects the notion of carving
reviewable legal rulings out from the middle of non-reviewable
actions.”) (cleaned up). The Supreme Court has similarly
rejected “the principle that if [an] agency gives a ‘reviewable’
reason for otherwise unreviewable action, the action becomes
reviewable.” ICC v. Bhd. of Locomotive Eng’rs, 

 (1987). Nonenforcement decisions often turn on both
discretionary factors and legal determinations, but a dismissal
is entirely unreviewable if it depends even in part on
                                  11
enforcement discretion.4 See Chaney, 

(acknowledging unreviewable enforcement decisions “often
involve[] a complicated balancing of a number of factors”).

    End Citizens United’s approach flies in the face of binding
precedent by demanding this court review nonenforcement

4
  Unable to rebut this established caselaw, the dissent maintains that
some of the “claims” in Complaint One were dismissed on the merits,
not on prosecutorial discretion. Dissenting Op. 13–14. This splicing
of the Statement of Reasons fails for multiple reasons. To begin with,
End Citizens United did not raise this argument on appeal and
repeatedly recognizes that the controlling commissioners relied on
prosecutorial discretion to dismiss the first complaint. See, e.g.,
Appellant’s Brief at 5. “[W]e rely on the parties to frame the issues
for decision and assign to courts the role of neutral arbiter of matters
the parties present.” United States v. Sineneng-Smith, 

 (2020) (cleaned up).
     In any event, on the merits, the dissent’s interpretation misreads
the Statement of Reasons. When concluding the Statement, the
controlling commissioners explicitly state, “[u]ltimately, we
determined that this Matter merited the invocation of our
prosecutorial discretion.” Statement of Reasons at 10. And, contrary
to the dissent, “this Matter” was previously defined to include “the
complaints received by the Commission on April 23, 2018,” id. at 2
(emphasis added), which is all of Complaint One, not just the “filing”
claims. Moreover, the Statement does not clearly separate its analysis
of the “soft money” claims and the “filing” claims. Rather, the
controlling commissioners explain the claims are inextricably
connected because “[u]nder [FECA], New Republican can commit a
soft money violation only if Scott is a candidate. But if Scott was not
a candidate, then there can be no soft money violation.” Id. at 7. The
discussion of the “soft money” issue was predicated on “assuming
arguendo that Scott had become a candidate at some point prior to
his formal announcement.” Id. But on that threshold question, and
therefore with respect to all the claims in “this Matter,” the
controlling commissioners invoked prosecutorial discretion.
                                12
decisions that turn even in part on legal interpretation. But the
analysis in the Statement of Reasons, which discussed legal
reasons as well as prosecutorial discretion, cannot be
distinguished from the statement we found unreviewable in
New Models. That statement, like the one at issue here,
“provided legal reasons … for declining enforcement” in
addition to invoking prosecutorial discretion. New Models, 993
F.3d at 885–86. There are no grounds for distinguishing the two
cases, so we cannot review the dismissal.

     End Citizens United also explicitly asks us to depart from
Commission on Hope and New Models because they conflict
with earlier decisions. We addressed the same argument at
length in New Models, explaining why that decision was
consistent with the text and structure of FECA, as well as with
the cases on which End Citizens United now relies. Id. at 892–
95 (explaining consistency with Akins, 

;
Democratic Cong. Campaign Comm. v. FEC, 

(D.C. Cir. 1987); Chamber of Com. v. FEC, 

 (D.C.
Cir. 1995); and Orloski, 

). Commission on Hope
and New Models accord with our prior case law and are binding
on this panel.

     Our dissenting colleague similarly seeks to relitigate these
settled decisions.5 In FECA, Congress specifically “required

5
  A judge’s disagreement with settled law does not make it any less
settled. This court has consistently followed New Models and
Commission on Hope. See, e.g., Campaign Legal Ctr. v. FEC, 22-
5339, 

, at *11 (D.C. Cir. Jan. 5, 2024); see also End
Citizens United PAC v. FEC, 

, 920–21 (D.C. Cir. 2023).
And we have twice denied full court rehearing on the issue. See
Citizens for Resp. & Ethics in Wash. v. FEC (“Commission on Hope
II”), 

 (D.C. Cir. 2019); Citizens for Resp. &
Ethics in Wash. v. FEC (“New Models II”), 

 (D.C.
Cir. 2022).
                                 13
the Commission to clear a series of bipartisan vetogates before
commencing an enforcement action.” Citizens for Resp. &
Ethics in Wash. v. FEC (“New Models II”), 

(D.C. Cir. 2022) (Rao, J., concurring in denial of rehearing en
banc). This means, of course, that three commissioners may
block the investigation and enforcement of a complaint.6
Unable to abide the “Commission’s passivity,” the dissent
envisions a dynamic role for the courts to encourage, prompt,
and prise open the courthouse doors to the enforcement of
campaign finance laws. Dissenting Op. 11. When the
Commission invokes prosecutorial discretion, the dissent sees
this as an attempt to “evade the stimulus to move forward to
enforce the law.” Id. at 3. Moreover, “[i]t is the court’s role to
detect statutory misreading and thereby prod a reluctant FEC
to act.” Id. at 7. And it is apparently also the court’s role to
determine whether a complaint is “legally sufficient to
proceed.” Id. at 12.

    Contrary to the dissent’s assertions, the statute provides
only a modest role for the courts in determining whether a

6
  The dissent maintains the Commission may rely on prosecutorial
discretion only when four commissioners agree. See Dissenting Op.
9–11. Yet no provision in FECA requires four votes to dismiss a
complaint. See New Models, 

 & n.10. In fact, then-
Judge Ruth Bader Ginsburg specifically emphasized that when the
Commission “deadlocks and for that reason dismisses a complaint,”
the dismissal is judicially reviewable. Democratic Cong. Campaign
Comm., 

 (cleaned up). Judge Ginsburg highlighted
that although a 6-0 decision “might represent a firmer exercise of
prosecutorial discretion,” the 6-0 decision and a deadlocked one were
both reviewable because “we resist confining the judicial check to
cases in which … the Commission ‘act[s] on the merits.’” 

. The dissent agrees that Commission deadlocks are reviewable,
and nothing in our caselaw suggests we must turn a blind eye to the
invocation of prosecutorial discretion in a deadlock dismissal.
                               14
dismissal or failure to act is “contrary to law.” See 

(a)(8)(C). As we have long recognized, the
Commission, “not a court of review,” must “serve as the
primary decisionmaker in the area Congress has
committed … to the FEC’s charge.” Democratic Cong.
Campaign Comm., 

; see also FEC v.
Democratic Senatorial Campaign Comm., 

(1981) (explaining the Commission has the “sole discretionary
power to determine in the first instance whether or not a civil
violation of [FECA] has occurred”) (cleaned up). When the
Commission cannot garner four votes for an investigation, and
dismissal of the complaint turns on prosecutorial discretion,
there is simply no legal reasoning to review. FECA does not
confer on the courts a general power to enforce the law, which
instead belongs to the Commission in the exercise of its
executive power.

     Although the district court correctly held the dismissal of
Complaint One was not reviewable because the Commission’s
decision rested in part on prosecutorial discretion, the court
mistakenly characterized this as a jurisdictional issue. The non-
reviewability of prosecutorial discretion under Chaney is not
jurisdictional; rather, it deprives the plaintiff of a cause of
action. Oryszak v. Sullivan, 

, 524–26 (D.C. Cir.
2009). We therefore modify the district court’s judgment and
affirm.

                               B.

                               1.

     The dismissal of Complaint Two is reviewable. Without
any reliance on prosecutorial discretion, the controlling
commissioners offered two legal determinations to support the
dismissal, and we review these conclusions under the contrary
to law standard. The first reason for dismissal was that if none
                                  15
of the “threshold” violations alleged in Complaint One had
occurred, then illegal coordination (as alleged in Complaint
Two) also could not have occurred as a matter of law.
Statement of Reasons at 2 n.2. That was “a legal determination
not committed to the agency’s unreviewable discretion.” New
Models, 993 F.3d at 884–85 (cleaned up). The second reason
for dismissal was that there was not enough evidence to find
reason to believe a violation of FECA had occurred. Statement
of Reasons at 5 n.25.

     Assessing whether certain acts constitute FECA violations
and whether the facts in the record provide reason to believe a
violation occurred are treated as judicially reviewable under the
contrary to law standard.7 See Hagelin, 411 F.3d at 242–44
(reviewing the FEC’s determination that there was insufficient
evidence for a reason to believe finding); Orloski, 

 (same).

     Under our precedents, a dismissal is contrary to law if it
misinterprets the statute, is arbitrary or capricious, or is an
abuse of discretion. See, e.g., Hagelin, 

. This
review is “extremely deferential” when the Commission finds
no reason to believe a violation has occurred. Orloski, 

; see Hagelin, 

 (rejecting the argument
that “a less deferential standard of review” applies to reason to
believe dismissals and observing “we have held just the

7
  We reject New Republican’s suggestion in passing that—because
the first complaint was dismissed on the basis of prosecutorial
discretion—the dismissal of the second complaint is also
unreviewable. Enforcement discretion not to pursue one complaint
does not necessarily apply to another complaint, even when multiple
dismissals are explained in a single statement of reasons. See 

(a)(8)(C) (“In any proceeding under this paragraph
the court may declare that the dismissal of the complaint or the failure
to act is contrary to law.”) (emphasis added).
                               16
opposite”). Commission dismissals at the reason to believe
stage are highly context specific and involve detailed
consideration of the record, so we will not lightly disturb them.

                               2.

     The controlling commissioners found no reason to believe
there was a violation of FECA and, therefore, declined to
investigate the allegations made in Complaint Two. The
controlling commissioners based their dismissal on the general
counsel’s report, which “customarily provides the basis for [the
Commission’s] action” for purposes of judicial review.
Hagelin, 

 (cleaned up). The report referred to
Hazelwood’s sworn assertion that, as the new chairwoman of
New Republican, she had placed the television advertisements
without coordinating with Scott or his campaign. That
conclusion comported with the record, especially given
Complaint Two’s heavy reliance on the “mere temporal
relationship” between Scott’s leaving New Republican and the
placement of the commercials. The general counsel also
pointed to the lack of other evidence suggesting coordination.
At this threshold stage, the Commission was voting on whether
to begin an investigation, and “[b]efore it may act, the
Commission must find ‘reason to believe’ that a violation of
[FECA] has occurred.” Combat Veterans, 

(quoting 

(a)(2)). Relying on the record and
the determinations of the general counsel, the controlling
commissioners reasonably dismissed Complaint Two.

     End Citizens United raises various objections, primarily
attempting to show the dismissal of Complaint Two was
contrary to law because it was inadequately reasoned. End
Citizens United first suggests the controlling commissioners
should have offered a more detailed explanation rather than
relying on the general counsel’s findings. But where the
                              17
controlling commissioners’ “reliance on the General Counsel’s
recommendation and analysis of the relevant statutory
provisions [is] sufficiently reasonable to be accepted,” this
court “will not disturb their decision.” Democracy 21, 

 (cleaned up). Second, End Citizens United notes the
general counsel doubted Hazelwood’s credibility on some
points. These concerns, however, do not undermine the fact
that the general counsel did not doubt Hazelwood’s statements
about the television advertisements that were the subject of the
coordination claim. And the controlling commissioners
reasonably concluded the credibility of Hazelwood’s
statements was bolstered by the fact she made them under
penalty of perjury.

     Third, End Citizens United points out the general
counsel’s ultimate recommendation was to defer action on the
second complaint rather than dismissing it outright. But the
general counsel also concluded there was insufficient evidence
to support a reason to believe finding for the second complaint.
The general counsel’s additional recommendation to defer
action assumed the Commission would investigate the first
complaint allegations, which might, in turn, uncover evidence
of unlawful coordination. But the controlling commissioners
correctly recognized that their dismissal of the first complaint
foreclosed any further investigation, which meant no additional
facts would come to light. And as already discussed, the record
did not otherwise provide reason to believe a coordination
violation occurred. The controlling commissioners accordingly
voted to dismiss for insufficient evidence. That was both
reasonable and lawful.

     Finally, End Citizens United presses a more conventional
contrary to law challenge, faulting the controlling
commissioners for their apparent view that a coordination
violation was impossible as a matter of law unless at least one
                                  18
“threshold” Complaint One violation also occurred. We need
not address this parallel reason for dismissal. Even if the
controlling commissioners were wrong to treat a Complaint
One violation as a threshold issue, End Citizens United has not
carried its “burden to demonstrate prejudicial error.” Jicarilla
Apache Nation v. U.S. Dep’t of Interior, 

(D.C. Cir. 2010). The APA directs courts to take “due
account … of the rule of prejudicial error,” and that principle
applies in this context. 

; Comm’n on Hope, 

 (explaining the APA continues to apply absent a
clear statement to the contrary). “[W]hen an agency relies on
multiple grounds for its decision, some of which are invalid,
we may nonetheless sustain the decision as long as one is valid
and the agency would clearly have acted on that ground even if
the other were unavailable.”8 Bally’s Park Place, Inc. v. NLRB,

 (D.C. Cir. 2011) (cleaned up).

    As already discussed, the 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 Combat Veterans,

; see also Public Citizen, Inc. v. FERC, 

 (D.C. Cir. 2016) (explaining that, unlike in the
context of FERC deadlocks, FECA “compels [the] FEC to
dismiss complaints in deadlock situations”).


8
  End Citizens United also asserts the controlling commissioners’
evidentiary conclusion cannot have been an independent basis for
dismissal because their discussion cross-referenced the discussion
about “threshold” violations. But the failure to find reason to believe
was sufficient for dismissal as a matter of law, and a mere cross-
reference does not change that conclusion. See Combat Veterans,

. Nothing in the Statement of Reasons suggests the
controlling commissioners thought otherwise.
                             19
     While the dismissal of Complaint Two is reviewable, End
Citizens United has failed to show the dismissal was contrary
to law. The controlling commissioners reasonably credited the
general counsel’s careful evidentiary determinations and
concluded the record provided no reason to believe a violation
had occurred.

                            ***

    The Commission’s dismissal of Complaint One was an
unreviewable exercise of prosecutorial discretion. The
dismissal of Complaint Two was reviewable, and the district
court correctly held the Commission’s dismissal was not
contrary to law. We therefore affirm the district court’s
judgment as modified.

                                                  So ordered.
     PILLARD, Circuit Judge, concurring in part and dissenting
in part:    The Federal Election Commission (FEC or
Commission) dismissed two complaints. I agree with the
majority that the Commission’s dismissal of the second
complaint is reviewable and that it was not contrary to law.
Accordingly, I join Part II.B. of the majority opinion. I dissent
from the majority’s ruling that an invocation of enforcement
discretion by a non-majority of commissioners as to certain
claims in the first complaint prevents us from reviewing that
complaint. Even if I agreed that such a non-majority statement
barred judicial review, I would dissent from the court’s
decision to apply that bar more broadly than did the
commissioners themselves.

     Congress passed the Federal Elections Campaign Act
(FECA) to address corrosive influences of money in politics.
Responsive to the distinctive challenges of regulating political
activity, FECA is unique among federal laws in three important
ways. First, to prevent partisan domination, the law’s primary
enforcer—the six-member Commission—has no partisan
majority or chair and cannot officially take enforcement actions
without a bipartisan majority. Second, to avoid nullification of
FECA by a non-majority bloc of commissioners refusing to act
on apparent violations of campaign-finance laws, Congress
made such refusals to act—no matter the reason—reviewable
in court. If a court holds that the allegations or evidence before
the FEC present a legally tenable claim, the Commission gets
another chance to enforce. Recognizing that the Commission
might still deadlock, FECA includes a third distinctive feature,
available only if the Commission fails to move forward: a
private right of action to take up the case independent of FEC
resources or initiative.

     Five years ago, a divided panel of this court in Citizens for
Resp. & Ethics in Washington v. FEC (Commission on Hope
I), 

 (D.C. Cir. 2018), upended this carefully
crafted statutory scheme. Embracing a position that no party
                              2
had even briefed and that the FEC disclaimed, the court held
that Heckler v. Chaney, 

 (1985), enables a non-
majority bloc of commissioners to shield nonenforcement
decisions from judicial review, and thereby extinguish the
private right of action, just by invoking the words
“prosecutorial discretion.” Three years later, another divided
panel embraced that misguided decision. Citizens for Resp. &
Ethics in Wash. v. FEC (New Models I), 

(D.C. Cir. 2021).

     I have explained elsewhere why those rulings conflict with
FECA’s terms, structure, and purpose; with the Supreme
Court’s decision in FEC v. Akins, 

 (1998); and with
our decisions in Chamber of Commerce v. FEC, 

(D.C. Cir. 1995), Democratic Congressional Campaign
Committee v. FEC (DCCC), 

 (D.C. Cir. 1987),
and Orloski v. FEC, 

 (D.C. Cir. 1986). See
Citizens for Resp. & Ethics in Wash. v. FEC (Commission on
Hope II), 

 (D.C. Cir. 2019) (Pillard, J.,
dissenting from denial of rehearing en banc); see also
Commission on Hope I, 

 (Pillard, J.,
dissenting). My colleagues have voiced similar concerns. See
Citizens for Resp. & Ethics in Wash. v. FEC (New Models II),

 (D.C. Cir. 2022) (Millett, J., dissenting
from the denial of rehearing en banc); New Models I, 

 (Millett, J., dissenting); Campaign Legal Ctr. &
Democracy 21 v. FEC, 

 (D.C. Cir. 2020)
(Edwards, J., concurring); Commission on Hope II, 

 (Griffith, J., concurring in the denial of rehearing en
banc).

     Since our court’s wrong turn in applying Heckler to
effectively scuttle FECA’s enforcement mechanism, partisan
blocs of commissioners have taken advantage of the error.
They have routinely cited “prosecutorial discretion” to stymie
                               3
judicial scrutiny of apparently serious FECA violations, evade
the stimulus to move forward to enforce the law that a correct
legal interpretation could provide, and annul the private right
of action that Congress authorized. As Judge Millett has noted,
“[s]ince Commission on Hope, approximately two-thirds of
Commission cases dismissed contrary to the General Counsel’s
reason-to-believe recommendation have included a reference
to prosecutorial discretion.” New Models II, 

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

    Today, the majority triples down. In applying the two
mistaken rulings, it compounds their error: The opinion
incorrectly concludes that the commissioners invoked
enforcement discretion as to all the claims in the first
complaint, Maj. Op. 9, when in reality they did so only with
respect to a portion of them. Because Commission on Hope
and New Models flout binding precedent, they are not
themselves “binding on this panel.” Maj. Op. 12. And even if
they were, nothing in those cases prevents us from considering
the claims the blocking commissioners dismissed on their
merits. I respectfully dissent in part.

                               I.

    The majority obscures important components of the statute
we are tasked with interpreting, so I begin with a fuller recap.

                              A.

     To protect the democratic process and bolster public
confidence in it, FECA “seeks to remedy any actual or
perceived corruption of the political process.” Akins, 

. One of the ways it does so is by limiting the sources and
amounts of expenditures and contributions made “for the
purpose of influencing any election for Federal office.” 

(8)(a)(i), (9)(A)(i); 

 § 30116. Soon after
                              4
Congress enacted FECA, however, the Supreme Court began
to invalidate many of the Act’s expenditure limits as contrary
to the First Amendment’s guarantee of freedom of speech. See
Buckley v. Valeo, 

 (1976) (declaring
unconstitutional various limits on individual, candidate, and
campaign expenditures); see also, e.g., Citizens United v. FEC,

 (2010) (declaring unconstitutional the limit
on corporate expenditures now codified at 

(b)). Those decisions leave FECA’s other primary
tool—disclosure requirements, see, e.g., 52 U.S.C. § 30104—
to do much of the work of addressing corrosive influences of
money in politics. Even as the Court struck down expenditure
limits, it sustained disclaimer, registration, and disclosure
requirements, approving of them as less restrictive ways to
“enable[] the electorate to make informed decisions and give
proper weight to different speakers and messages.” Citizens
United, 

.

     Compliance with campaign finance rules depends on
effective enforcement and its deterrent effects. Primary
enforcement responsibility lies with the FEC. See 

(a)(6). The Commission is composed of six members,
no more than three of whom may be affiliated with a single
political party. 

 § 30106(a)(1). All decisions must “be made
by a majority vote of the members of the Commission,” with
the important enforcement decisions specifically requiring a
bipartisan majority of four or more votes. Id. § 30106(c). That
means it always takes a majority—indeed, assuming no
abstentions, a bipartisan majority—to “exercise” the
Commission’s “duties and powers.” See id.

     In addition to conducting its own investigations, the
Commission can act on complaints from “[a]ny person”
alleging campaign finance violations. Id. § 30109(a)(1), (2).
                                5
FECA maps out a four-step enforcement process for the
Commission to follow in response to a complaint.

•   First, the Commission votes on whether there is “reason to
    believe” that a violation has occurred. Id. § 30109(a)(2).
    To tee up such a vote, the Commission’s Office of General
    Counsel reviews the submissions—including the complaint
    (with any attached materials such as sworn affidavits) and
    response—and offers its recommendations. Guidebook for
    Complainants and Respondents on the FEC Enforcement
    Process, FEC, at 11-12 (May 2012). 1                   If four
    commissioners vote that there is reason to believe, the
    Commission “shall make an investigation of such alleged
    violation.” 

(a)(2) (emphasis added).
•   Second, after the investigation, the Commission votes on
    whether there is “probable cause to believe” that a violation
    has occurred.         

 § 30109(a)(4)(A)(i).        If four
    commissioners agree there is probable cause, the
    Commission “shall attempt” informal conciliation efforts.
    Id. (emphasis added).
•   Third, the Commission votes on whether to approve a
    conciliation agreement. Id.
•   Finally, if the conciliation agreement fails to garner four
    votes, “the Commission may, upon an affirmative vote of 4
    of its members, institute a civil action for relief” in federal
    district court. Id. § 30109(a)(6)(A).

     But the Commission need not follow this four-step process
in every case. It has the power to “vote to dismiss” a complaint
at any time. Id. § 30109(a)(1). As with “[a]ll decisions of the
Commission,” dismissal requires a “majority vote.” Id.
§ 30106(c). One reason the Commission might dismiss a

1
    https://www.fec.gov/resources/cms-content/documents/policy-
guidance/respondent_guide.pdf.
                                 6
complaint is if the commissioners deadlock—that is, fail to
obtain a majority as to whether (or how) to proceed. As a
safeguard against unreasoned deadlocks by commissioners not
enforcing the law, Congress explicitly provided for judicial
review of both “dismissal” decisions and “failure[s] to act.” Id.
§ 30109(a)(8)(C). If the Commission dismisses a complaint or
fails to act on it within 120 days, an aggrieved party “may file
a petition” in federal district court. Id. § 30109(a)(8)(A). The
court may then “declare [whether] the dismissal of the
complaint or the failure to act is contrary to law.” Id.
§ 30109(a)(8)(C). A dismissal is “contrary to law” if, among
other things, the Commission relied on an impermissible
construction of FECA or if the dismissal was otherwise
arbitrary, capricious, or an abuse of discretion. Orloski, 

. 2

                                 B.

      As noted above, FECA’s judicial review provision is
“unusual.” Chamber of Commerce, 

. Generally,
as the Supreme Court has explained, “an agency’s decision not
to undertake an enforcement action . . . [is] not subject to
judicial review.” Akins, 

 (citing Heckler, 

). But FECA “explicitly indicates the contrary”—
i.e., that the Commission’s decision not to undertake an
enforcement action is subject to judicial review. 

   To facilitate that review, commissioners voting against the
General Counsel’s enforcement recommendation have an

2
     The majority suggests in dicta that Orloski and its progeny
wrongly incorporate arbitrary-and-capricious and abuse-of-
discretion review into FECA’s contrary-to-law standard. Maj. Op.
7-8 n.3. I would not wander so far afield. The appellee raised no
objection to those standards of review, instead quoting as governing
law the very standards the majority would reject. Appellee Br. 6, 28.
                               7
opportunity to issue one or more statements explaining the
reasons for their votes. Common Cause v. FEC, 

 (D.C. Cir. 1988). Blocking commissioners’ statements of
reasons help “to make judicial review a meaningful exercise,”
FEC v. Nat’l Republican Sen. Comm., 

(D.C. Cir. 1992). A non-majority cannot speak for the
Commission, 

(c), but non-majority
statements can cast light on the reasons for those members’
votes. We have long considered both statements of reasons and
FEC General Counsel’s reports in determining whether a
Commission action in dismissing a case is “contrary to law.”
DCCC, 

.

     FECA’s judicial review provision is unusual for another
reason. Even when a court determines that a dismissal or
failure to act is contrary to law, the Commission retains the
option not to move forward with enforcement. It has 30 days
to “conform” with the court’s declaration by, for example,
proceeding to investigate, 

(a)(2), or seeking
to conciliate as to, 

 § 30109(a)(4)(i), an apparent FECA
violation, see id. § 30109(a)(8)(C). If it declines to do so—for
whatever reason—FECA empowers the original complainant
to bring a “civil action to remedy the violation involved in the
original complaint.” Id. In other words, a court cannot force
the Commission to enforce the law; the statute instead
authorizes a private litigant to do so, and, even then, only
following a judicial determination that the Commission’s
refusal to proceed was contrary to law.

     In sum, judicial review under FECA is the countermeasure
to otherwise predictable deadlock at the Commission. It is the
court’s role to detect statutory misreading and thereby prod a
reluctant FEC to act. And, where the Commission remains
inert, the court’s ruling paves the way for private enforcement.
But the court today continues along the path marked by the
                               8
wrong turn in Commission on Hope, enabling a non-majority
of the Commission to diminish the court’s role under FECA
and to eliminate the private right of action.

                               II.

      For our purposes, the facts of this case can be briefly
summarized. End Citizens United filed two administrative
complaints against then-candidate Rick Scott, his campaign,
and New Republican Political Action Committee (New
Republican). Because I agree with the majority’s treatment of
the second complaint, I focus on the first. As relevant here, the
first complaint contained four allegations: (1) that Scott failed
to timely file a statement of candidacy in violation of 

(e)(1); (2) that Scott’s campaign failed to timely file
the relevant organizational paperwork and disclosure reports in
violation of 

(a), 30104; (3) that New
Republican impermissibly raised and spent money in violation
of 

(e); and (4) that Scott impermissibly
raised and spent money in violation of 

(e). I
refer to the first two allegations as “Filing Claims,” and the
latter two as “Soft-money Claims.”

     The Commission held four substantive votes. First, it
voted on whether there was “reason to believe” that the Filing
Claims stated FECA violations. The Commission split 3-3, so
the vote “failed.” J.A. 270 (May 28, 2021, Vote Certification).
A few weeks later, the Commission voted on: (1) whether to
dismiss the Filing Claims “under Heckler v. Chaney”; (2)
whether there was “no reason to believe” the Soft-money
Claim against New Republican stated a FECA violation; and
(3) whether to dismiss the Soft-money Claim against Scott.
Again, the Commission was evenly divided, so those votes also
“failed.” J.A. 272 (June 14, 2021, Vote Certification).
Deadlocked, the Commission agreed to “[c]lose the file,”
                                9
which administratively closed the case. J.A. 273 (June 14,
2021, Vote Certification). Later, the so-called controlling
commissioners—the ones who voted against moving forward
with enforcement—issued a statement of reasons. They
explained that they (1) “exercised [their] prosecutorial
discretion regarding” the Filing Claims; (2) “voted to find no
reason to believe” that New Republican violated the soft-
money ban; and (3) “dismissed [the Soft-money Claim against
Scott] for lack of evidence.” J.A. 290-91.

                               III.

     The majority concludes that the dismissal of the first
complaint is “unreviewable” under “binding precedent”
because “the controlling commissioners expressly invoked
their prosecutorial discretion.” Maj. Op. 9, 11. I disagree.
First, Commission on Hope and New Models are not binding
precedent because, as noted above, they conflict with earlier
decisions of the Supreme Court and this court. See Sierra Club
v. Jackson, 

 (D.C. Cir. 2011) (“[W]hen a
decision of one panel is inconsistent with the decision of a prior
panel, the norm is that the later decision, being in violation of
that fixed law, cannot prevail.”). Second, even assuming
Commission on Hope and New Models are binding precedent,
the majority is wrong that all of the dismissals are
unreviewable.

                               A.

     The majority repeats the mistakes from Commission on
Hope and New Models, which continue to call out for
correction. Those cases held that, when a non-majority
partisan bloc of commissioners invokes enforcement discretion
to justify dismissing a complaint, courts cannot review that
decision under Heckler v. Chaney, 

. For at least
three reasons, that is incorrect.
                              10
    First, Heckler teaches that an “agency’s decision not to
prosecute or enforce . . . is a decision generally committed to
an agency’s absolute discretion.” 

 (emphasis
added). To count as action by the Commission, a decision to
“dismiss” a claim must “be made by a majority vote.” 

(c), 30109(a)(1). A dismissal vote predicated
on prosecutorial discretion by a majority of commissioners, for
example, would amount to an agency decision to refuse
enforcement. If Heckler applied to FECA, that decision might
be unreviewable. In this case, though, the Commission
deadlocked; it could not garner a majority vote to do anything
other than close the file.

     Relying on Commission on Hope and New Models, the
majority erroneously treats the three controlling
commissioners’ statement explaining their votes against
enforcement as the Commission’s decision to refuse
enforcement. Maj. Op. 9-10. A statement of reasons, even by
a non-majority causing a deadlock, explains the standstill and
helps “make judicial review a meaningful exercise.” Nat’l
Republican Sen. Comm., 

. But we do not—
and cannot—treat the controlling commissioners’ rationales or
votes as an “exercise” of the Commission’s “duties and
powers.” 

(c). To the contrary, we have
explained that a statement of reasons for a non-majority’s vote
cannot be an “official Commission decision,” since the latter
requires “at least a 4-2 majority vote.” Common Cause, 

 n.32 (emphasis in original). What is more, FECA
also provides for review of a “failure to act” on a complaint
within 120 days, 

(a)(8)(C), implying that a
court may evaluate the legality of inaction even in the absence
of any vote or statement of reasons.

    Under the majority’s view, it would make no difference
whether a partisan bloc of three commissioners or a bipartisan
                              11
majority of four commissioners voted to dismiss a claim based
on prosecutorial discretion—both would be unreviewable. But
under FECA, there is a critically important difference between
partisan and bipartisan action. Even assuming a bipartisan
majority’s vote to exercise prosecutorial discretion defeats
judicial review, affording that power to a non-majority makes
a mockery of the “carefully balanced bipartisan structure which
Congress has erected.” Common Cause, 

 n.32.
It is perverse to treat a non-majority’s statement of reasons,
elicited to facilitate judicial review, as instead its ticket to
bypass judicial review altogether. That alone shows that
Commission on Hope and New Models are wrong.

     Second, even if it were appropriate to treat a non-majority
invocation of prosecutorial discretion as an official
Commission decision, Heckler still would not apply. Heckler’s
presumption of non-reviewability is just that: a presumption.

. It “may be rebutted where the substantive
statute has provided guidelines for the agency to follow in
exercising its enforcement powers.” 

. In Akins, the
Supreme Court ruled that FECA categorically rebuts that
presumption because it “explicitly indicates” that the
Commission’s decision “not to undertake an enforcement
action” is subject to judicial review to determine whether the
Commission’s passivity is contrary to law. 

.
Judge Silberman, speaking for our en banc court in Akins,
described judicial review under FECA as “an unusual statutory
provision which permits a complainant to bring to federal court
an agency’s refusal to institute enforcement proceedings.” 

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

 (1998). Commission on
Hope and New Models squarely contravene the Supreme
Court’s and our own views in Akins, and multiple other
decisions of our circuit affirming the reviewability of the
Commission’s non-enforcement decisions. See, e.g., Chamber
                               12
of Commerce, 

; DCCC, 

;
Orloski, 

.

     Third, Heckler emphasizes that an agency’s non-
enforcement decision is generally unreviewable because its
enforcement activity should be “committed to an agency’s
absolute discretion.” 

. That is so because the
agency must itself assess “whether agency resources are best
spent on this violation or another, whether the agency is likely
to succeed if it acts, [and] whether the particular enforcement
action requested best fits the agency’s overall policies.” 

But judicial review under FECA need not intrude on the
Commission’s discretion to balance those factors. To the
contrary, FECA’s creation of a private right of action means
that, if the Commission declines to investigate a complaint that
a court holds legally sufficient to proceed, private citizens may
take up the task without the Commission having to use its own
resources or act under court direction. See 

(a)(8)(C). For this reason, too, the separation-of-
powers concerns that animated Heckler (and that my
colleagues referenced in New Models I, see 

)
are wholly misplaced in the context of FECA.

    Crucially, the case before us does not raise the question
whether there may be some circumstances in which FECA
authorizes the Commission to exercise unreviewable
enforcement discretion. For example, a bipartisan majority of
commissioners might be able to shut down the enforcement
process at the reason-to-believe phase by explicitly dismissing
a complaint on enforcement-discretion grounds. 

(a)(1); Guidebook at 12. In this case, though, the vote
over whether to dismiss the Filing Claims “under Heckler v.
Chaney” “failed”—it deadlocked 3-3. J.A. 272 (June 14, 2021,
Vote Certification). And the commissioners never even held
such a vote with respect to the Soft-money Claims. So,
                               13
assuming a bipartisan majority of the Commission could wield
unreviewable enforcement discretion, it did not do so in this
case. The Act also expressly grants discretion to halt a case if,
after the complaint travels through all the prescribed
checkpoints, the Commission votes against filing a civil action
for relief. 

(a)(6)(A). At that stage, the
statute switches from specifying that the commission “shall”
proceed where statutory standards are met, 

 § 30109(a)(2),
(a)(4)(A)(i) (emphasis added), to providing that “the
Commission may, upon an affirmative vote of 4 of its
members, institute a civil action for relief,” id.
§ 30109(a)(6)(A) (emphasis added). This case, however,
stalled out at the very beginning, at the reason-to-believe phase.
A non-majority incantation of enforcement discretion at that
phase cannot interfere with the court’s obligation under FECA
to decide whether the Commission’s inaction or dismissal was
“contrary to law”—as it would be, for example, if the
commissioners voted to dismiss a complaint that, under the law
as properly understood, gave “reason to believe that the
respondent has committed or is about to commit a violation” of
FECA or the presidential campaign funding laws. Id.
§ 30109(a)(2), (a)(8)(C).

     All these mistakes have something in common: They
ignore the many ways in which both the Commission and
FECA’s enforcement scheme are uniquely crafted to avoid
partisan gridlock. The Supreme Court in Akins appreciated
how Congress intended to avoid that gridlock. And, before
Commission on Hope, we did too.

                               B.

   The majority not only errs by applying Commission on
Hope and New Models; it also misreads the record in this case.
The majority rules that “the controlling commissioners
                               14
expressly invoked their prosecutorial discretion when
dismissing the complaint.” Maj. Op. 9. That is incorrect. The
controlling commissioners were clear in their statement of
reasons that they invoked prosecutorial discretion only with
respect to the Filing Claims. Because the Soft-money Claims
were dismissed on the merits, they are reviewable.

     The majority contends that my opinion “misreads” the
statement of reasons, Maj. Op. 11 n.4, but the statement speaks
for itself. Over and again, the controlling commissioners made
clear that they invoked prosecutorial discretion only with
respect to the Filing Claims. In the introduction, the controlling
commissions explained that they “found no reason to believe
that New Republican violated the soft money rules and
dismissed the allegations that Scott untimely filed his
candidacy and organization paperwork under Heckler v.
Chaney.”       J.A. 282.      In a footnote, the controlling
commissioners addressed the Soft-money Claim against Scott:
“Having determined there was no path forward on those
elements, we were required to dismiss” the Soft-money Claim
because that claim “would have required, at a minimum, a
threshold finding that Scott had failed to file a statement of
candidacy at the appropriate time, or that New Republican had
violated the soft money rules.” J.A. 282 n.2. Later, the
controlling commissioners repeated that “as regards Rick
Scott’s alleged failure to timely file his candidacy and
committee paperwork, we invoked our prosecutorial discretion
pursuant to Heckler v. Chaney.” J.A. 290. And, in their
conclusion, they summarized their votes:

    For the foregoing reasons, we voted to find no reason
    to believe that New Republican violated the soft
    money ban, exercised our prosecutorial discretion
    regarding the allegations that Scott and his campaign
    committee failed to timely file candidacy and
                              15
    organization forms, and dismissed the remaining
    allegations against the Respondents for lack of
    evidence.

J.A. 290-91.

     The controlling commissioners repeatedly tell us that they
are dismissing the Soft-money claims on the merits, but the
majority refuses to take them at their word. It deems the
dismissal of all four claims unreviewable on the theory that
“the controlling commissioners expressly invoked their
prosecutorial discretion when dismissing the complaint.” Maj.
Op. 9. There is no basis for that conclusion. The majority
emphasizes that the controlling commissioners at one point say
that they “determined that this Matter merited the invocation of
our prosecutorial discretion.” J.A. 290. The majority appears
to read “this Matter” to mean “all the claims” in the first
complaint. Maj. Op. 11 n.4. That reading conflicts with what
the controlling commissioners actually say. After giving their
reasons for invoking enforcement discretion, the controlling
commissioners clarify the scope of the invocation:
“Accordingly, as regards Rick Scott’s alleged failure to timely
file his candidacy and committee paperwork, we invoked our
prosecutorial discretion pursuant to Heckler v. Chaney.” J.A.
290 (emphasis added). And they are even clearer in the
conclusion, where they invoke prosecutorial discretion only
“regarding the allegations that Scott and his campaign
committee failed to timely file candidacy and organization
forms.” J.A. 290-91 (emphasis added). As to the Soft-money
Claims, they say that they “voted to find no reason to believe”
New Republican violated the soft money ban, and dismissed
the Soft-money Claim against Scott for “lack of evidence.”
J.A. 290-91.
                              16
     The majority erroneously concludes that End Citizens
United “did not raise this argument on appeal.” Maj. Op. 11
n.4. In fact, End Citizens United argued that dismissal of the
Soft-money Claims was reviewable, Appellant’s Br. 23-24,
specifically described that dismissal as based not on
enforcement discretion but on an erroneous interpretation of
FECA, id. 18, and confirmed during oral argument that the
controlling commissioners invoked discretion only with
respect to the Filing Claims, not the Soft-money Claims, see
Oral Arg. Rec. at 7:43-9:48. The parties drew the same battle
line in the district court, compare ECU Opp. to MTD 28-29,
End Citizens United PAC v. FEC, No. 21-cv-2128 (D.D.C.
Sept. 16, 2022), ECF No. 25, with New Republican Reply 11,
ECF No. 29, and even New Republican does not assert
forfeiture here.

     The court has erred in empowering a partisan bloc of
commissioners to invoke enforcement discretion to evade
review the statute authorizes. Adding to the muddle that error
has created, today’s majority relies on the bloc’s discretionary
reasoning about the Filing Claims to avoid reviewing the other
claims in the first complaint. Because the controlling
commissioners did not invoke enforcement discretion with
respect to the Soft-money Claims, I would hold the dismissal
of those claims reviewable even under Commission on Hope
and New Models.

                             ***

     As I have explained, Commission on Hope and New
Models contravene FECA, ignore binding precedent, and
undercut the distinctive features Congress crafted to prevent
partisan gridlock. The majority’s first mistake is to act as if
those decisions are “binding on this panel.” Maj. Op. 12.
                                  17
     In any event, the majority overstates the reach of those
cases. 3 It deems the dismissal of the Soft-money Claims
unreviewable even though the controlling commissioners
never invoked prosecutorial discretion with respect to them.
That ruling does not follow from Commission on Hope or New
Models. If our court is going to authorize a non-majority of
commissioners to thwart FECA by invoking prosecutorial
discretion, we should take care to do so only where there is an
actual invocation. I respectfully dissent in part.




3
      Indeed, the majority’s premise—that Commission on Hope and
New Models govern this case—is itself questionable. Those cases
are best read as confined to circumstances in which the controlling
commissioners invoke prosecutorial discretion for reasons that are
independent of their view of the merits of the claim. See New Models
II, 

 (Rao, J., concurring in the denial of rehearing
en banc) (explaining that judicial review was foreclosed “[b]ecause
the controlling commissioners relied on an independent ground of
prosecutorial discretion”); see also, e.g., Campaign Legal Ctr. v.
FEC, No. 22-5339, 

, at *5 (D.C. Cir. Jan. 5, 2024)
(applying New Models “[b]ecause the Commission’s invocation of
discretion was offered ‘in addition’ to its legal analysis,” rather than
intertwined with it).