 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 15, 2017               Decided June 15, 2018

                         No. 17-5049

 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
                 AND MELANIE T. SLOAN,
                      APPELLANTS

                              v.

              FEDERAL ELECTION COMMISSION,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:15-cv-02038)


    Stuart C. McPhail argued the cause for appellants. With
him on the briefs was Adam J. Rappaport.

    Paul M. Smith was on the brief for amicus curiae Campaign
Legal Center and Dēmos in support of appellants.

     Jacob S. Siler, Attorney, Federal Election Commission,
argued the cause for appellee. With him on the brief were Kevin
Deeley, Associate General Counsel, and Harry J. Summers,
Assistant General Counsel. Greg J. Mueller, Attorney, entered
an appearance.
                                 2

   Before: KAVANAUGH and PILLARD, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

    Dissenting opinion filed by Circuit Judge PILLARD.

     RANDOLPH, Senior Circuit Judge: This is an appeal from
the district court’s grant of summary judgment in favor of the
Federal Election Commission. Petitioners are Citizens for
Responsibility and Ethics in Washington (CREW), and its
executive director, Melanie Sloan, a registered voter in the
District of Columbia. They brought this action1 alleging that the
Commission acted “contrary to law” in 2015 when it dismissed
their administrative complaint against an unincorporated
association whose name is too cumbersome to condense.2
CREW’s charges against the association, filed in 2011, were that
the association had violated the federal election laws in 2010.

     In the district court, and now in this court, CREW invoked
the judicial review provision of the Federal Election Campaign
Act, or “FECA” as it is sometimes called. The provision states
that the district court “may declare that the dismissal of the
complaint . . . is contrary to law,” and, if the Commission fails
to correct the illegality on remand, the “complainant may bring”


        1
         CREW and Sloan mislabeled their pleading a “Complaint for
Injunctive and Declaratory Relief.” The Administrative Procedure
Act, 5 U.S.C. § 703, required the “form of proceeding for judicial
review” to be the special statutory review relating to Commission
dismissals of complaints—namely, a “petition” filed in the district
court. 52 U.S.C. § 30109(a)(8)(A). See FEC v. Democratic
Senatorial Campaign Committee, 454 U.S. 27, 31 & n.3 (1981).
        2
            The Commission on Hope, Growth, and Opportunity.
                                  3

an action in its own name against the alleged violator “to
remedy the violation involved in the original [administrative]
complaint.” 52 U.S.C. § 30109(a)(8)(C).

     CREW’s petition in the district court also invoked the
Administrative Procedure Act. The APA, enacted in 1946,
states that a later statute—FECA is one—“may not be held to
supersede or modify . . . chapter 7 . . . except to the extent that
it does so expressly.” 5 U.S.C. § 559. APA Chapter 7 contains
the APA’s judicial review provisions. See 5 U.S.C. §§ 701–706.
Rather than “expressly” contradicting those provisions, FECA
is consistent with them. FECA’s “contrary to law” formulation,
for example, reflects APA § 706(2)(A), which requires the court
to “hold unlawful and set aside agency action” that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law . . ..”3 We will have more to say about
APA § 706 later in this opinion.

     The Commission’s dismissal of CREW’s complaint
constituted the “agency action” supporting the district court’s
jurisdiction. See 52 U.S.C. § 30109(a)(8)(A). After the
Commissioners voted 3 to 3 on whether to begin enforcement
proceedings, the Commission closed the administrative file on
the case. The deadlock meant that the Commission could not
proceed: under FECA, the Commission may pursue enforcement
only upon “an affirmative vote of 4 of its members.” 52 U.S.C.
§ 30109(a)(2), (a)(4)(A)(i), (a)(6)(A).

    The district court held that the Commission’s explanation
of its failure to prosecute was a “rational exercise of

        3
         In Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986), the
court repeated this language from the APA, stating that the
Commission would have acted “contrary to law” if its dismissal of a
complaint “was arbitrary or capricious, or an abuse of discretion.” See
also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005).
                                   4

prosecutorial discretion.” Citizens for Responsibility and Ethics
in Washington v. FEC, 236 F. Supp. 3d 378, 397 (D.D.C. 2017).
This raises a question: how can a court attribute to “the
Commission” any particular rationale when the Commissioners
were evenly split? The answer comes from Democratic
Congressional Campaign Committee v. FEC, 831 F.2d 1131
(D.C. Cir. 1987), and its expansion in Common Cause v. FEC,
842 F.2d 436 (D.C. Cir. 1988). Together, these cases establish
two propositions of circuit law. The first is that if the
Commission fails to muster four votes in favor of initiating an
enforcement proceeding, the Commissioners who voted against
taking that action should issue a statement explaining their
votes. Common Cause, 842 F.2d at 449. The second is that, for
purposes of judicial review, the statement or statements of those
naysayers—the so-called “controlling Commissioners”—will be
treated as if they were expressing the Commission’s rationale
for dismissal, a rather apparent fiction raising problems of its
own.4 Id.

     Here, the three Commissioners who voted not to begin
enforcement proceedings issued a joint statement explaining
their votes.5 These Commissioners were concerned that the

        4
            For instance, what if the three Commissioners each
expressed a different reason for voting against enforcement
proceedings? One Commissioner may have believed that FECA did
not cover the activities alleged in the complaint. Another may have
believed that the evidence of a violation was too weak. The third
Commissioner may have concluded that the alleged violations were
too trivial to warrant the Commission’s attention.
        5
          About the same time, two of the Commissioners who voted
to proceed with enforcement issued a joint statement of their own.
The third Commissioner who voted to proceed issued his statement of
reasons on March 21, 2016, nearly four months after CREW filed its
complaint in the district court. An agency cannot sua sponte update
the administrative record when an action is pending in court. See, e.g.,
                                  5

statute of limitations had expired or was about to; that the
association named in CREW’s complaint no longer existed; that
the association had filed termination papers with the IRS four
years earlier; that it had no money; that its counsel had resigned;
that the “defunct” association no longer had any agents who
could legally bind it; and that any action against the association
would raise “novel legal issues that the Commission had no
briefing or time to decide.” For these reasons, the “case did not
warrant further use of Commission resources.”

     In short, these Commissioners would have exercised the
agency’s prerogative not to proceed with enforcement. There is
no doubt the Commission possesses such prosecutorial
discretion. Although today “prosecutorial” usually refers to
criminal proceedings, it was not always so. Under the APA,
agency attorneys who bring civil enforcement actions are
engaged in “prosecuting functions,” 5 U.S.C. § 554(d). See 3M
Co. v. Browner, 17 F.3d 1453, 1456–57 (D.C. Cir. 1994). The
Supreme Court has recognized that federal administrative
agencies in general, Heckler v. Chaney, 470 U.S. 821, 831
(1985), and the Federal Election Commission in particular, FEC
v. Akins, 524 U.S. 11, 25 (1998), have unreviewable
prosecutorial discretion to determine whether to bring an
enforcement action. See CREW v. FEC, 475 F.3d 337, 340
(D.C. Cir. 2007).6

Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—of
Politics and Law, Young Lawyers and the Highway Goliath, in
Administrative Law Stories 259, 322 (2006); Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 422 (1971) (Black, J.,
dissenting). We have refused to consider a district court’s opinion
issued while the case was pending on appeal and after appellate briefs
had been filed. See United States v. Hallford, 816 F.3d 850, 855 n.4
(D.C. Cir. 2016).
        6
       The dissent thinks the Supreme Court held in Akins that
FECA cabins “the agency’s exercise of prosecutorial discretion at
                                  6

    As to an agency’s prosecutorial discretion, Heckler v.
Chaney is the leading case. Chaney interpreted APA
§ 701(a)(2), which bars judicial review of agency action
“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
Under § 701(a)(2), “certain categories of administrative
decisions are unreviewable,” among which are “agency
decisions not to institute enforcement proceedings.” Secretary
of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir.
2006). In a frequently quoted passage, which is set forth in the
margin,7 the Supreme Court recited many of the reasons why an

various decisional stages.” Dis. Op. 5–6. That is not correct. The
only issue the Court decided in Akins dealt with standing. The Federal
Election Commission issued an interpretation of § 431(4)(A) of FECA
to dismiss one of two charges in a complaint. (The Commission,
relying on Heckler v. Chaney, invoked prosecutorial discretion to
dismiss the other charge, which alleged a violation of § 441b of
FECA; this Commission action was not at issue in the Supreme Court.
See 524 U.S. at 25; Akins v. FEC, 736 F. Supp. 2d 9, 13–15 (D.D.C.
2010).) The Court held only that the complainants had standing even
though, on remand, the Commission might invoke its prosecutorial
discretion to dismiss the remaining charge, as it had done with respect
to the § 441b allegation. 524 U.S. at 25.
        7
            Chaney, 470 U.S. at 831–32:

        [A]n agency decision not to enforce often involves a
        complicated balancing of a number of factors which
        are peculiarly within its expertise. Thus, the agency
        must not only assess whether a violation has
        occurred, but whether agency resources are best spent
        on this violation or another, whether the agency is
        likely to succeed if it acts, whether the particular
        enforcement action requested best fits the agency’s
        overall policies, and, indeed, whether the agency has
        enough resources to undertake the action at all. An
        agency generally cannot act against each technical
        violation of the statute it is charged with enforcing.
                                   7

agency’s exercise of its prosecutorial discretion cannot be
subjected to judicial scrutiny. At this point in its Chaney
opinion, the Court added a caveat. An agency’s decision not to
undertake enforcement “is only presumptively unreviewable; the
presumption may be rebutted where the substantive statute has
provided guidelines for the agency to follow in exercising its
enforcement powers.” Chaney, 470 U.S. at 832–33; see also
Webster v. Doe, 486 U.S. 592, 600 (1988) (“§ 701(a)(2) requires
careful examination of the statute on which the claim of agency
illegality is based . . ..”).

     Chaney controls this case. The three naysayers on the
Commission placed their judgment squarely on the ground of
prosecutorial discretion. Nothing in the substantive statute
overcomes the presumption against judicial review. FECA
provides that “the Commission may, upon an affirmative vote of
4 of its members, institute a civil action . . ..” 52 U.S.C.
§ 30109(a)(6)(A). To state the obvious, the word “may”
imposes no constraints on the Commission’s judgment about
whether, in a particular matter, it should bring an enforcement
action. Nor do the adjacent sections directing that the


        The agency is far better equipped than the courts to
        deal with the many variables involved in the proper
        ordering of its priorities.

See also Wayte v. United States, 470 U.S. 598, 607 (1985):

        This broad discretion rests largely on the recognition
        that the decision to prosecute is particularly ill-suited
        to judicial review. Such factors as the strength of the
        case, the prosecution’s general deterrence value, the
        Government’s enforcement priorities, and the case’s
        relationship to the Government’s overall enforcement
        plan are not readily susceptible to the kind of analysis
        the courts are competent to undertake.
                                8

Commission “shall” take specific actions after making certain
threshold legal determinations. 52 U.S.C. § 30109(a)(2),
(a)(4)(A)(i).    Neither of those sections constrain the
Commission’s discretion whether to make those legal
determinations in the first instance. The consequence is that the
operative “statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s
exercise of discretion.” Chaney, 470 U.S. at 830.

     Rather than confronting Chaney and the many other cases
applying § 701(a)(2), CREW sweeps these precedents off the
table. With the way thus cleared, it argues that whenever the
Commission exercises its prosecutorial discretion to decline an
enforcement action, it acts “contrary to law.” Implicit is the idea
that even if the Commission’s exercise of prosecutorial
discretion is immune from judicial questioning, this does not
close the door. Instead, it triggers FECA’s “citizen-suit”
provision, which entitles a private entity to bring an enforcement
action when the Commission has declined to do so. 52 U.S.C.
§ 30109(a)(8)(C).

     CREW’s argument contradicts the principle that an
agency’s exercise of prosecutorial discretion is not subject to
judicial review. It contradicts this principle because a court may
not authorize a citizen suit unless it first determines that the
Commission acted “contrary to law” under FECA or under the
APA’s equivalent “not in accordance with law.” 52 U.S.C.
§ 30109(a)(8)(C); 5 U.S.C. § 706(2)(A). Yet to make this
determination, a court necessarily must subject the
Commission’s exercise of discretion to judicial review, which it
cannot do. That is enough to reject CREW’s argument, but two
other dispositive points deserve mention. While insisting that
the Commission’s discretionary decisions not to prosecute are
per se “contrary to law,” CREW never identifies what “law” it
has in mind. For the reasons already given, the “law” cannot be
                                   9

FECA. And it cannot be the APA.8 CREW’s argument also
flies in the face of Chaney’s holding that § 701(a)(2) bars
judicial review when there is no “law” to apply in judging how
and when an agency should exercise its discretion, 470 U.S. at
830.9 See also Overton Park, 401 U.S. at 410; Webster v. Doe,
486 U.S. at 600; Lincoln v. Vigil, 508 U.S. 182, 191 (1993).

     Before we end this opinion, several additional subjects need
to be addressed. The district court held that an agency’s
“absolute discretion” to decide whether to bring an enforcement
action will be sustained unless the petitioner shows that the
Commission abused its discretion. Citizens for Responsibility
and Ethics in Washington, 236 F. Supp. 3d at 391. Both
Commission counsel and CREW have accepted the district
court’s formulation. We do not. The district court’s statement
of law is inconsistent with the precedents of this court and of the
Supreme Court. Our duty in conducting de novo review on
appeal is to resolve the questions of law this case presents. See
Elder v. Holloway, 510 U.S. 510, 516 (1994). “When an issue
or claim is properly before the court, the court is not limited to


        8
          One might suppose that under § 701(a)(2), an agency’s
exercise of prosecutorial discretion merely renders the APA
inapplicable. But our decisions hold that even if the APA is out of the
picture, an agency’s prosecutorial discretion is still presumptively
immune from judicial review. See Steenholdt v. FAA, 314 F.3d 633,
638–39 (D.C. Cir. 2003); Twentymile Coal Co., 456 F.3d at 160.
        9
           Chaney left open the possibility that an agency
nonenforcement decision may be reviewed if “the agency has
‘consciously and expressly adopted a general policy’ that is so
extreme as to amount to an abdication of its statutory responsibilities.”
Chaney, 410 U.S. at 833 n.4 (citing Adams v. Richardson, 480 F.2d
1159 (D.C. Cir. 1973) (en banc)). CREW cites this footnote but its
own submissions show that the Commission routinely enforces the
election law violations alleged in CREW’s administrative complaint.
                                  10

the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Financial
Services, Inc., 500 U.S. 90, 99 (1991); see also U.S. National
Bank of Oregon v. Independent Insurance Agents of America,
Inc., 508 U.S. 439, 446 (1993).

      The district court’s statement embodies a contradiction: as
the court put it, an agency has “absolute discretion” when it
comes to enforcement decisions, but it is up to the court to
decide whether the agency abused its absolute discretion. The
Court in Chaney took notice of the same ostensible contradiction
between the “abuse of discretion” standard in APA § 706 and
§ 701(a)(2)’s bar against review to the extent the action is
“committed to agency discretion.” The Court then resolved the
conflict on this basis: “if no judicially manageable standards are
available for judging how and when an agency should exercise
its discretion, then it is impossible to evaluate agency action for
‘abuse of discretion.’” Chaney, 470 U.S. at 830.10

    Following Chaney, this court has held that if an action is
committed to the agency’s discretion under APA
§ 701(a)(2)—as agency enforcement decisions are—there can be
no judicial review for abuse of discretion, or otherwise.
Examples include Drake v. FAA, 291 F.3d 59, 69–72 (D.C. Cir.
2002); Steenholdt v. FAA, 314 F.3d 633, 638–39 (D.C. Cir.
2003); Secretary of Labor v. Twentymile Coal Co., 456 F.3d
151, 156 (D.C. Cir. 2006); Association of Irritated Residents v.



        10
           Justice Scalia, dissenting in Webster v. Doe, 486 U.S. at
609–10, offered a more detailed explanation of the “seeming
contradiction” between § 701(a)(2) and § 706. A unanimous Supreme
Court later endorsed Justice Scalia’s explanation. Lincoln v. Vigil, 508
U.S. at 191.
                                  11

EPA, 494 F.3d 1027, 1031–33 (D.C. Cir. 2007); and Sierra Club
v. Jackson, 648 F.3d 848, 855–56 (D.C. Cir. 2011).

     The upshot is that agency enforcement decisions, to the
extent they are committed to agency discretion,11 are not subject
to judicial review for abuse of discretion. It follows that CREW
is not entitled to have the court evaluate for abuse of discretion
the individual considerations the controlling Commissioners
gave in support of their vote not to initiate enforcement
proceedings.

     The dissent goes off in a different direction, one that neither
CREW nor the Commission ever argued. As the dissent sees it,
the controlling Commissioners must have rendered an
interpretation—or rather, a misinterpretation—of “political
committee” as used in FECA.12 The vote of these
Commissioners had that effect because, according to the dissent,
each Commissioner is obliged to issue or join an opinion
reaching the merits before the Commission may, in the exercise
of its prosecutorial discretion, dismiss a complaint to avoid

        11
            The interpretation an agency gives to a statute is not
committed to the agency’s unreviewable discretion. See Chaney, 470
U.S. at 833 n.4; Akins, 524 U.S. at 26. Thus, if the Commission
declines to bring an enforcement action on the basis of its
interpretation of FECA, the Commission’s decision is subject to
judicial review to determine whether it is “contrary to law.” See FEC
v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981).
This is what the Court meant in Akins when it wrote that although “an
agency’s decision not to undertake an enforcement action” is
“generally not subject to judicial review,” there may be such review
under FECA if—as in Akins, see note 6 supra—the agency’s action
was based entirely on its interpretation of the statute. Akins, 524 U.S.
at 26.
        12
          See 52 U.S.C. § 30101(4)(A); Buckley v. Valeo, 424 U.S.
1, 79 (1976).
                                 12

reaching the merits. Dis. Op. 13–17. The dissent’s position
contradicts the record, which is doubtless why neither party
mentioned it.13 But even if some statutory interpretation could
be teased out of the Commissioners’ statement of reasons, the
dissent would still be mistaken in subjecting the dismissal of
CREW’s complaint to judicial review. The law of this circuit
“rejects the notion of carving reviewable legal rulings out from
the middle of non-reviewable actions.” Crowley Caribbean
Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994); see
also Association of Civilian Technicians, Inc. v. Federal Labor
Relations Authority, 283 F.3d 339, 343–44 (D.C. Cir. 2002). In
so holding, we followed the Supreme Court’s decisions in ICC
v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 282–83
(1987), and Chaney, 470 U.S. at 827–28. (The agency in
Chaney had determined that it lacked jurisdiction but that even
if it had enforcement jurisdiction it would not exercise it. 470
U.S. at 824–25.) As to this firmly-established principle, the
dissent has nothing to say. This is odd because the principle, as
applied to this case, renders the dissent’s novel theory
superfluous.

                                                           Affirmed.




        13
           These Commissioners explained that they had “concluded
that any conciliation effort would be futile, and the most prudent
course was to close the file consistent with the Commission’s exercise
of its discretion in similar matters” (citing Heckler v. Chaney, 470
U.S. at 832, quoted in note 7 supra and setting forth many reasons for
an agency’s declining to bring an enforcement action).
PILLARD, Circuit Judge, dissenting:

     Voters have the right to know who contributes—and how
much—to the campaigns of federal office-seekers. That right
is only as effective as the agency that enforces it.

    Congress enacted the Federal Election Campaign Act
(FECA or Act), 52 U.S.C. §§ 30101 et seq., to prevent money
from corrupting or appearing to corrupt candidates’ positions
and actions in office. See generally Citizens United v. FEC,
558 U.S. 310, 371 (2010). FECA, in turn, makes the Federal
Election Commission (FEC, Commission, or agency) the
primary protector of voters’ entitlement to “information ‘as to
where political campaign money comes from and how it is
spent by the candidate.’” Buckley v. Valeo, 424 U.S. 1, 66-67
(1976) (quoting H.R. Rep. No. 92-564, at 4 (1971)).

    But the Commission’s partisan-balanced composition and
the political nature of the matters it regulates raise risks of
inaction. Congress wanted to prevent the agency’s frequent
deadlock from sweeping under the rug serious campaign
finance violations—turning a blind eye to illegal uses of money
in politics, and burying information the public has a right to
know. To that end, Congress provided for judicial review of
Commission decisions not to enforce FECA.

     Thus, the Act retains its bite by calling on the Commission
to address complaints through a series of judicially reviewable
legal determinations in sequential votes on whether there is
“reason to believe,” and then “probable cause to believe,” that
campaign finance violations occurred.              52 U.S.C. §§
30109(a)(2), (a)(4)(A)(i). If the Commissioners deadlock on a
vote and, consequently, dismiss the matter, the Commissioners
who vote not to proceed (Controlling Commissioners) must
explain their reasons. FEC v. Nat’l Republican Sen. Comm.,
966 F.2d 1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC,
842 F.2d 436, 448-49 (D.C. Cir. 1988); Democratic Cong.
                                2
Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C.
Cir. 1987). When the Commission dismisses all or part of a
complaint, a complainant who believes it did so in error may
file a petition in the U.S. District Court for the District of
Columbia. 52 U.S.C. § 30109(a)(8)(A). Courts routinely
review such dismissals. See, e.g., Citizens for Responsibility &
Ethics in Wash. v. FEC, 209 F. Supp. 3d. 77 (D.D.C. 2016).
They may declare that the Commission acted “contrary to law,”
and direct the Commission to conform to that declaration. 52
U.S.C § 30109(a)(8)(C). If the Commission fails to conform
to the court’s order within thirty days, the statute does not force
the agency’s hand; rather, it permits the complainant to bring a
civil action in its own name to remedy the claimed violation.
Id.

     My disagreement with my colleagues is, at its core,
specific to this case—we see the facts differently. My
colleagues do not believe that the Commission made any legal
decision, so a fortiori they see nothing “contrary to law” and
no reason to remand. But the Commissioners voted on a legal
recommendation by the General Counsel and explained their
rejection of that recommendation:            According to the
Controlling Commissioners, the facts did not add up to legal
“reason to believe” that the investigated organization—the
Commission for Hope, Growth & Opportunity (CHGO)—may
have operated as a “political committee.” Because it was, in
my view, clearly contrary to FECA to find no “reason to
believe” on these facts, I would reverse the district court’s grant
of summary judgment and remand to the Commission. I
believe that it is evident from the Controlling Commissioners’
finding and reasoning that their dismissal of CHGO’s case
depended materially on an erroneous legal view of the
organization’s political-committee status. If, as my colleagues
think, the Commissioners did not base their dismissal on a legal
                               3
interpretation, the agency could readily explain as much on
remand.

     The majority also makes a broader legal error not teed up
by any party. The FEC, defending its action as legally correct
and reasonable, nevertheless acknowledged that “Commission
decisions not to prosecute, unlike those of most agencies,
remain subject to judicial review.” FEC Br. 27. The majority,
unbidden, departs from that well-established principle.
Because this case, properly understood, is an unremarkable
subject for judicial review under settled law, I spell out the
nature of my disagreement. The court’s energetic defense of
the FEC’s enforcement discretion in rejecting Citizens for
Responsibility and Ethics in Washington (CREW)’s particular
theory of this case should not be taken to foreclose judicial
review in similar cases in the future.

     Starting with a few key points of agreement will help to
clarify where we differ:

     First, as the court acknowledges, and in keeping with our
precedent, “[t]he interpretation an agency gives to a statute is
not committed to the agency’s unreviewable discretion.” Maj.
Op. 11 n.11. So, when “the Commission declines to bring an
enforcement action on the basis of its interpretation of FECA,
the Commission’s decision is subject to judicial review.” Id.;
see id. at 7. Even as my colleagues rely on Heckler v. Chaney,
470 U.S. 821 (1985), they note that Heckler’s brand of
unreviewability is inapplicable “where the substantive statute
has provided guidelines for the agency to follow in exercising
its enforcement powers.” Maj. Op. 7 (quoting Heckler, 470
U.S. at 833).

     Second, when the FEC is deadlocked, the Controlling
Commissioners must issue a statement of reasons explaining
their votes, and we, the reviewing court, look to that statement
                                4
to assess the lawfulness of the dismissal. See Maj. Op. 4;
Common Cause, 842 F.2d at 449; Democratic Cong. Campaign
Comm., 831 F.2d at 1135 & n.5.

     Third, when we discern legal error, we should remand to
allow the FEC to decide how to conform. “[I]t is possible that
even had the FEC agreed with [the correct] view of the law, it
would still have decided in the exercise of its discretion not to”
pursue enforcement. FEC v. Akins, 524 U.S. 11, 25 (1998).
But because “we cannot know that the FEC would have
exercised its prosecutorial discretion in this way,” remand is
the appropriate course. Id.

     I read the Commissioners as having dismissed the case
based on a legally erroneous view of the law. I believe we have
an obligation to review that decision, identify the error, and
remand to the Commission either to conform to the court’s
declaration, or to let CREW pursue the case through a private
right of action.

     The majority, however, like the district court, sees no legal
error because it assumes that the Commission took “no stance”
on whether there was reason to believe that CHGO operated as
a political committee. Citizens for Responsibility & Ethics in
Wash. v. FEC, 236 F. Supp. 3d 378, 394 (D.D.C. 2017); see
Maj. Op. 4-5. Indeed, CREW invites that reading to the extent
that it suggests the FEC somehow sidestepped making a no
“reason to believe” determination and dismissed “based solely
on a choice to preserve its resources.” Appellant’s Br. 31; see
id. at 26 (charging the district court’s approach as producing
the “absurd” result of barring citizen suits “where the FEC does
not reach the merits but dismisses based on its prosecutorial
discretion”) (emphasis added).

     But the majority takes an unwarranted and incorrect
further step, parting ways with the parties and the district court,
                               5
by finding the Commission’s dismissal of the complaint to be
entirely unreviewable under Heckler, 470 U.S. 821. Compare
Maj. Op. 7, with Citizens for Responsibility & Ethics in Wash.,
236 F. Supp. 3d at 390 (“When the FEC exercises prosecutorial
discretion, its controlling statement of reasons must be
sufficiently detailed so as to allow a reviewing court to
determine why the controlling commissioners decided to
forego prosecution.”); FEC Br. 27 (“Commission decisions not
to prosecute, unlike those of most agencies, remain subject to
judicial review.”); Appellant’s Br. 21 (“The standard for
judicial review under the FECA is whether the dismissal was
‘contrary to law.’”).

     In my view, the Commission’s dismissal of the complaint
was based on legal error and is reviewable on that ground. Per
Section 30109(a)(2), the Commission took a statutorily defined
action in response to the complaint and the General Counsel’s
report: an up-or-down vote on whether there was “reason to
believe” that CHGO had violated FECA. It was at this stage
that the three Controlling Commissioners voted that there was
no “reason to believe.” The Controlling Commissioners
concluded both (a) that the information before them “did not
definitely resolve whether there was reason to believe CHGO
was a political committee,” and (b) that, because the claims
were also growing stale and CHGO was defunct, the case was
not worth the FEC’s effort. Joint App’x (J.A.) 769. The
dismissal that the majority reads as based on reasons entirely
unrelated to the strength of the evidence against CHGO appears
on its face to have rested on the Controlling Commissioners’
antecedent legal conclusion that the record as it stood failed to
show “reason to believe” a FECA violation occurred. J.A. 757,
769. That conclusion can only be seen as “contrary to law.”
52 U.S.C. § 30108(a)(9)(C).
                               6
     More fundamentally and importantly, any FEC dismissal
based on a no “reason to believe” vote is reviewable to the
extent that such determination was contrary to law. The way
my colleagues avoid recognizing the legal constraints on the
Commission is to skip over the several steps that the Act spells
out for the FEC. See 52 U.S.C. § 30109(a)(2)-(4). Instead,
they analyze the Controlling Commissioners’ dismissal as if it
were a different kind of non-enforcement altogether: an
unconstrained choice, under a different provision of the Act,
which becomes relevant only after the FEC has passed through
various defined steps. See id. § 30109(a)(6)(A). Viewing the
case through that lens, the majority sees it as “obvious,” that
“the word ‘may’” in that section of the Act “imposes no
constraints on the Commission’s judgment about whether, in a
particular matter, it should bring an enforcement action.” Maj.
Op. 7. But this case stalled out on an earlier statutory
threshold—a no “reason to believe” vote. See 52 U.S.C. §
30109(a)(2). The law is clear that, at that earlier stage, the
agency does not have wholly unfettered—or unreviewable—
choice as to how it proceeds.             See Federal Election
Commission, Guidebook for Complainants and Respondents of
the FEC Enforcement Process at 12 (May 2012),
http://fec.gov/em/respondent_guide.pdf        (FEC      Process
Guidebook) (setting out Commissioners’ three choices at that
stage: find reason to believe, exercise prosecutorial discretion
by an affirmative vote of four Commissioners not to proceed,
or find no reason to believe).

     The Supreme Court and this court have acknowledged that
FECA channels the agency’s exercise of prosecutorial
discretion at various decisional stages. Arguing against
judicial redressability in FEC v. Akins, the FEC there, like the
majority here, contended that its dismissal of the complaint at
issue lay in “an area generally not subject to review.” 524 U.S.
at 26. But the Supreme Court rejected that stance: It made
                                7
clear that, while “Heckler . . . noted that agency enforcement
decisions have traditionally been committed to agency
discretion, . . . [w]e deal here with a statute that explicitly
indicates the contrary.” Id. (internal citations, quotation marks,
and alterations omitted). In so holding, the Supreme Court
sustained the understanding of this court sitting en banc. We,
too, had expressly distinguished Heckler, describing FECA as
having “an unusual statutory provision which permits a
complainant to bring to federal court an agency’s refusal to
institute    enforcement      proceedings      challenging     the
Commission’s interpretation of the term ‘political
committee.’” Akins v. FEC, 101 F.3d 731, 738 (D.C. Cir.
1996) (en banc) (citations omitted); see Orloski v. FEC, 795
F.2d 156, 161 (D.C. Cir 1986).

     The FEC enjoys considerable discretion. It has discretion
in promulgating regulations and policies to effectuate the
statutory provisions governing campaign finance. It has
discretion in how it reasonably applies those rules to the facts
of the cases that come before it. And, where it finds violations,
it has discretion to decide whether, at the end of the day, to file
suit. See 52 U.S.C. § 30109(a)(6)(A); Maj. Op. 7. But the
agency’s discretion is less than absolute at several points,
including the one at issue in this case. When the agency votes
on whether there is “reason to believe” that a violation of FECA
has occurred, it must give reasons for that action that are
subject to judicial review. See U.S.C. § 30109(a)(2)-(4).
Given everything that was not before us in this case (due to the
mismatch between the opinion and what was briefed), today’s
majority should not be read to shut down that review.
                               8
I. The Federal Election Commission Acted Contrary to
Law

     The FEC came to consider the case of the Commission on
Hope, Growth and Opportunity when it received a complaint
alleging that the organization, which registered as a 501(c) non-
profit, was operating as a fly-by-night political committee, in
contravention of FECA.           The FEC General Counsel
recommended that the Commission find reason to believe that
CHGO was a political committee that violated its obligations
under the Act.

   A. The Federal Election Campaign Act Supplies Law
      to Apply

     Since its enactment in 1972 and amendment in 1974,
FECA has promoted transparency of funding in federal
elections. See McConnell v. FEC, 540 U.S. 93, 117-19 (2003).
The law requires, for example, “[e]very person” who engages
in independent campaign-related expenditures to make certain
disclosures and disclaimers. See 52 U.S.C. § 30104(c)(1),
(f)(1); see generally Citizens United, 558 U.S. at 366-71.
Groups acting as “political committees” must make “similar”
disclosures and disclaimers. SpeechNow.org v. FEC, 599 F.3d
686, 696 (D.C. Cir. 2010); see Supplemental Explanation &
Justification, Political Committee Status, 72 Fed. Reg. 5595,
5596 (Feb. 7, 2007) (2007 E&J). Any such group must also
register and keep records of its contributions, and disclose
donors of more than $200. 52 U.S.C. § 30104(b)(3); see id. §§
30103-30104.

    FECA defines as a “political committee” any organization
that receives or spends more than $1,000 annually, id.
§ 30101(4)(A); see id. §§ (8)(A), (9)(A), and has a “major
purpose” of nominating or electing federal candidates, 2007
E&J, 72 Fed. Reg. at 5601, 5605. In applying the so-called
                                9
“major purpose test,” the agency is committed to a “fact-
intensive inquiry” into each group’s “overall conduct.” 2007
E&J at 5601-02, 5605; id. at 5597; see also Shays v. FEC, 511
F. Supp. 2d 19, 24 (D.D.C. 2007) (Shays II); id. at 31 (referring
to political committee status is a “legal issue” that is
“multifaceted”). The test requires the Commission to examine
direct and indirect evidence of purpose, including the
organization’s “public statements” and “organizational
statements of purpose,” together with its “contribution[s] and
“expenditure[s]” related to “federal campaign activity.” 2007
E&J, 72 Fed. Reg. at 5595, 5597, 5601, 5605. The FEC looks
to how the group’s overall “campaign activities compare[] to
its activities unrelated to campaigns.” Id. at 5601-02; see Shays
II, 511 F. Supp. 2d at 30; see also Free Speech v. FEC, 720
F.3d 788, 798 (10th Cir. 2013); Real Truth About Abortion, Inc.
v. FEC, 681 F.3d 544, 556-57 (4th Cir. 2012); Citizens for
Responsibility & Ethics in Wash., 209 F. Supp. 3d. at 93.

     The fact that the Commission makes its legal
determinations in the form of a “reason to believe” or “probable
cause” inquiry does not place such actions among “those rare
instances where ‘statutes are drawn in such broad terms that in
a given case there is no law to apply.’” Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). Neither
does the fact-intensive character of those determinations make
them non-legal. A decision that there is no “reason to believe”
that an entity is a political committee is no less a determination
of law—and no less subject to judicial review—than a simple
determination that it is not a political committee. See Ornelas
v. United States, 517 U.S. 690, 699 (1996) (holding that
“determinations of reasonable suspicion and probable cause
should be reviewed de novo”). Courts routinely review no
“reason to believe” dismissals. See, e.g., Common Cause, 842
F.2d at 449; Democratic Cong. Campaign Comm., 831 F.2d at
1133; Citizens for Responsibility & Ethics in Wash, 209 F.
                              10
Supp. 3d. 77. And we have expressly “decline[d] . . . to
distinguish deadlock dismissals which run contrary to General
Counsel recommendations based on clear legal precedent and
[those that run contrary to] General Counsel’s less definitive
assessment of what the law requires in light of the factual
allegations in the case.” Common Cause, 842 F.2d at 449.

    It is beyond debate that Congress, in enacting FECA,
supplied meaningful standards against which it expected courts
to evaluate the Commission’s no “reason to believe”
dismissals.

   B. The Facts the FEC General Counsel Uncovered
      About CHGO Provide “Reason to Believe”

    The following facts about the Commission on Hope,
Growth and Opportunity, as reported by the FEC General
Counsel, are largely undisputed. Citizens for Responsibility &
Ethics in Wash., 236 F. Supp. 3d at 384.

     For an organization that apparently had no records
retention policy, see J.A. 551, the direct evidence here was
telling. In planning documents, CHGO declared its goal to
“make a measurable impact on the election outcome in
selectively identified Senate races,” J.A. 520, “us[ing] express
advocacy in targeted Senate races,” J.A. 514, and “focusing on
. . . key districts to support the election of Republican
candidates,” J.A. 578; see generally J.A. 514-15, 652. The
FEC General Counsel meanwhile found no documents
“reflect[ing] that CHGO’s purpose was, as it claimed [in its
filings before the FEC], solely to educate the public on matters
of economic policy formulation.” J.A. 653.

    Other evidence supplied yet more reason to suspect that
CHGO was concealing its true nature. In response to
questioning from the FEC, CHGO’s general counsel
                                11
represented that he had “no relevant information or records”
and “did not know who would have that information” in spite
of repeated notices, previously sent by the Commission,
instructing the organization to “preserve records . . . as required
by law.” J.A. 644 & n.9. When the FEC tried to subpoena a
vendor CHGO had identified as producing non-campaign-
related communications, the putative vendor’s offices were
vacant. J.A. 505. No such vendor had “[]ever rented [that]
office space.” J.A. 505. Instead, the tenant was a well-known
political strategist. J.A. 505.

      What is more, the people CHGO named in its IRS filings
as its leadership denied to the FEC General Counsel having any
real authority over CHGO’s actions; and the people they
identified as really running the show were political operatives.
See J.A. 493-94, 546-52, 808-09. The man listed on CHGO’s
tax filings as its President and Executive Director told
investigators that he had “been associated” with the group but
had not exercised control over its activities. J.A. 493-94, 809.
He said he was just the “creative person” and described his job
as “plac[ing] . . . TV ads.” J.A. 493-94, 547. The man listed
as CHGO’s Treasurer in its IRS application for tax-exempt
status, J.A.794, reported that he handled some “accounting and
tax work” for CHGO, but “probably” never interacted with the
organization’s putative president, J.A. 496. CHGO’s general
counsel, meanwhile, said he “just handled compliance issues”
and disavowed any role in reviewing or preparing documents
relating to the “funding, production or placement” of
advertisements CHGO ran. J.A. 500-01, 555. This lawyer
reported that he “did not know” who was in charge. J.A. 501.

     Looking also at the organization’s balance sheet for insight
into its major purpose, the FEC General Counsel was able to
confirm that a significant majority—at minimum 61 percent—
of the organization’s expenditures went to federal election
                             12
related communications. J.A. 737. “[O]ne thing is clear,”
wrote the General Counsel, “a definite majority of CHGO’s
spending was on activities that reflect the major purpose of
influencing federal elections.” J.A. 738.

     Putting that 61 percent expenditure figure together with
the direct and other circumstantial evidence, the General
Counsel recommended that the Commission find “reason to
believe” that CHGO may have been a political committee.

   C. The Federal Election Commission’s Legal Error at
      the “Reason to Believe” Stage

     FECA calls on the FEC Commissioners to vote, based on
the recommendation of the General Counsel, as to whether
there is “reason to believe that a person has committed, or is
about to commit, a violation of th[e] Act.” 52 U.S.C. §
30109(a)(2); see FEC Process Guidebook at 12. The
Controlling Commissioners here voted that there was no
“reason to believe” that CHGO was a political committee and
issued a statement of reasons. J.A. 757-58.

     That statement makes clear that the Controlling
Commissioners, in evaluating the strength of the claim against
CHGO, did not correctly apply the Commission’s own “major
purpose” test. They did not consider the organization’s direct
statements that CHGO had a “goal” of affecting federal races,
the conduct of CHGO’s leadership, or the overwhelming
suggestions that everyone involved was trying to hide
something. Ignoring that direct and circumstantial evidence
runs contrary to the FEC’s rule, see 2007 E&J at 5595-97, as
well as the precedent that the Controlling Commissioners cited
for support, J.A. 768 & n.13 (Statement of Reasons of
Chairman Lee E. Goodman and Commissioners Caroline C.
Hunter and Matthew S. Peterson, MUR 6538 (Americans for
Job Security) (analyzing organizational statements in
                               13
determining major purpose) (AJS Statement)); J.A. 769 & n.17.
Even looking only to the balance sheet, the Commissioners’
conclusion—that 61 percent of total spending on express
advocacy for federal candidates did not evince a “major
purpose”—runs counter to FEC precedent and applicable law.
See, e.g., AJS Statement at 12; compare J.A. 769 n.16
(suggesting that certain commission payments to political
strategists might raise “novel” legal issues), with 11 C.F.R.
§ 100.111(a) (counting as a relevant expenditure “any
purchase, payment, distribution, loan . . . , advance, deposit, or
gift of money or anything of value, made by any person for the
purpose of influencing any election for Federal office”).

     Informed by their fundamentally flawed “major purpose”
analysis, the Controlling Commissioners reasoned that any
violations of FECA’s political-committee requirements were
not “obvious” and that “the information learned during [the
investigation] did not definitely resolve whether there was
reason to believe CHGO was a political committee . . . .” J.A.
769. In fact, there was no reason to believe anything else.

II. This Case is Subject to Judicial Review under the
Federal Election Campaign Act

     The court today declares the unreviewability of the FEC’s
dismissal. My colleagues see no “law” that the Controlling
Commissioners could have contravened (and, admittedly,
CREW was less than crystalline on the point). See Maj. Op. 8.
But the law itself is clear: After receiving a complaint and a
General Counsel report recommending further proceedings (or
not), the Commission votes on whether there is “reason to
believe” that a violation of FECA has occurred. See 52 U.S.C.
§ 30109(a)(2); FEC Process Guidebook, at 12-13. In cases in
which the Commissioners find no reason to believe and dismiss
the complaint, they must explain the basis of their action to
                                 14
enable judicial review. See Common Cause, 842 F.2d at 449;
Democratic Cong. Campaign Comm, 831 F.2d at 1135 & n.5.

      The Commission’s action dismissing a complaint in those
circumstances is “contrary to law” when it is based on a failure
to faithfully apply FECA to the facts. See 52 US.C.
§ 30109(a)(8)(C). FECA provides that, “[i]f the Commission .
. . determines . . . that it has reason to believe that a person has
committed . . . a violation of [FECA],” such as by unlawfully
operating as a political committee, “the Commission shall”
provide notice and “shall make an investigation.” Id.
§ 30109(a)(2). If, when considering whether there is “reason
to believe” that an organization operates as a political
committee, the Commission does not evaluate the
organization’s “major purpose” as shown by its “overall
conduct”—including            “public     statements,”      “internal
documents,” official filings, and “expenditures,” 2007 E&J, 72
Fed. Reg. at 5597, 5605—then the Commission has acted
contrary to law.

     Here, the Commission voted on whether there was “reason
to believe” that CHGO was a political committee. J.A. 757.
Totality-of-the-circumstances decisions whether there is
reason to believe a group may have been a political committee
are reviewed as questions of law.           The Controlling
Commissioners answered the “reason to believe” question in
the negative—voting that there was no “reason to believe” that
CHGO may have been a political committee and dismissing the
case—because they thought the evidence was insufficient to
“resolve” the question. J.A. 757, 769. On this record, that
result cannot be squared with the law.

     Where the FEC makes a determination about the law in
finding no “reason to believe,” we may review the dismissal.
In FEC v. Akins, the Supreme Court rejected the notion that the
                               15
FEC’s dismissal of a complaint upon a finding of no “probable
cause to believe” that the organization at issue was a political
committee would be an unreviewable exercise of enforcement
discretion, so unredressable. 524 U.S. at 25-26. “We deal
here,” the Court wrote, “with a statute that explicitly indicates
the contrary.” Id. at 26. Far from “committing” FEC non-
enforcement decisions to the agency’s discretion, the FECA
requires the agency to take certain steps where there is “reason
to believe” a violation has occurred. See 52 U.S.C. §
30109(a)(2). And it establishes judicial review of dismissals.
52 U.S.C. § 30109(a)(8)(A). The Act provides that “[a]ny
party aggrieved by an order of the Commission dismissing a
complaint filed by such party . . . may file a petition with the
United States District Court for the District of Columbia.” Id.
Further, “the court may declare that the dismissal of the
complaint or the failure to act is contrary to law, and may direct
the Commission to conform with such declaration within 30
days, failing which the complainant may bring . . . a civil action
to remedy the violation involved in the original complaint.” Id.
§ 30109(a)(8)(C).

     In a series of decisions, we have explained the importance
of this judicial check. In Democratic Congressional Campaign
Committee v. FEC, we held that FECA’s “judicial review
prescription” calls for review of an FEC dismissal that is, as
here, “due to a deadlock”—that is, a three-to-three tie vote by
the Commissioners. 831 F.2d at 1133. In so doing, this court
expressly rejected the FEC’s argument, “citing Heckler v.
Chaney, that deadlocks on the Commission are immunized
from judicial review because they are simply exercises of
prosecutorial discretion” rather than legal determinations
whether there is “reason to believe.” Id. This court instead
suggested that FECA calls for judicial review: “[W]here the
Commission is unable or unwilling to apply settled law to clear
facts, judicial intervention serves as a necessary check against
                               16
arbitrariness.”   Id. at 1135 n.5 (internal quotation marks
omitted).

     The next year, in Common Cause v. FEC, 842 F.2d 436,
we reaffirmed the crucial role of judicial review in FECA’s
scheme. The Commission there had dismissed a complaint via
deadlocked vote, contrary to the General Counsel’s
recommendation to find “reason to believe.” We held that the
Act requires the FEC to provide a statement of reasons even
where the implicated questions of campaign finance are
unsettled or fact-intensive; such a statement is necessary “to
allow meaningful judicial review of the Commission’s decision
not to proceed.” Id. at 449. Judicial review ensures that the
agency does not, by unlawfully dismissing complaints,
frustrate the statutory scheme and undermine enforcement.

     So, too, here, the Commission’s decision to dismiss as a
result of the deadlocked “reason to believe” vote is not a matter
“committed to agency discretion” under FECA. There is a
strong presumption that agency action is reviewable. Abbott
Labs. v. Gardner, 387 U.S. 136, 140 (1967); see also Citizens
to Preserve Overton Park, Inc., 401 U.S. at 410. Heckler is the
exception, and its “non-reviewability only applies where the
governing statute’s enforcement provision describes the
agency’s role as discretionary.” Ass’n of Irritated Residents v.
EPA, 494 F.3d 1027, 1032 (D.C. Cir. 2007). The Supreme
Court, in Heckler, acknowledged reviewability of non-
enforcement where the relevant statute constrains the agency’s
discretion. 470 U.S. at 833-34. The Court in Heckler
distinguished Dunlop v. Bachowski, 421 U.S. 560 (1975),
where the statute directed the Secretary to investigate
complaints and provided that “if he finds probable cause to
believe that a violation . . . has occurred . . . he shall” pursue
enforcement. Heckler, 470 U.S. 833-34 (alterations in original)
(quoting 29 U.S.C. § 482(b)); see also Dunlop, 421 U.S. at 562-
                              17
63 & n.2. Where the Secretary declined to proceed through the
defined statutory checkpoint, “‘the principle of absolute
prosecutorial discretion’ [was] inapplicable.” Id. at 834
(quoting Bachowski v. Brennan, 502 F.2d 79, 87 (3d Cir.
1974)).

     As was the case in Dunlop, the FECA provision at issue
here provides law for the agency and the court to apply, and
calls for judicial review of dismissals. See supra Part I.A.
After it receives a General Counsel recommendation regarding
a complaint, the agency votes on whether there is “reason to
believe” that a violation of FECA may have occurred. See 52
U.S.C. § 30109(a)(2); FEC Process Guidebook, at 12-13. If
there is reason to believe, the Commission must take further
steps. See 52 U.S.C. § 30109(a)(2)-(4); FEC Process
Guidebook, at 12. The Commission may depart from the
General Counsel’s recommendation to find “reason to believe,”
but it must explain any decision to do so. See Common Cause,
842 F.2d at 449; Democratic Cong. Campaign Comm., 831
F.2d at 1135 & n.5. Judicial review ensures that, if the
Commission erred in its reasoning—dismissing a matter under
a faulty view of the law where there is, in fact, “reason to
believe” that a violation may have occurred—the matter is
remanded to the agency so that it may reconsider its decision.
See Akins, 470 U.S. at 25-26.

     The statute elsewhere compensates in various ways for
those curtailments of enforcement discretion. If it chooses not
to vote “yes” or “no” on “reason to believe,” the Commission
has a third option: “Pursuant to an exercise of prosecutorial
discretion, the Commission may dismiss a matter when, in the
opinion of at least four Commissioners, the matter does not
merit further use of Commission resources.” FEC Process
Guidebook at 12. If a court declares a Commission’s dismissal
to be “contrary to law,” the statute contemplates that the
                               18
Commission may decline to act in accordance with that
directive. 52 U.S.C. § 30109(a)(8)(C). The complainant may
then sue in his or her own name to remedy the claimed
violation. Id. As CREW observes, the Act’s limited private
right of action helps to prevent cooptation of agency resources.
Id. Finally, if a complaint passes through all the prescribed
checkpoints—from “reason to believe” to conciliation—the
Commission enjoys ultimate non-enforcement discretion: It is
the Commissioners’ option whether to institute a civil action in
court. See 52 U.S.C. § 30109(a)(6)(A).

     As the Supreme Court explained in Akins—and the FEC
confirmed at oral argument, Oral Arg. Rec. at 44:03-44:18—
courts may review for legal error dismissals at FECA’s defined
steps. 524 U.S. at 26. Where the court finds legal error, the
statute provides that the court should remand so that the
Commissioners may reassess their action with a correct view
of the law in mind: While “it is possible that even had the FEC
agreed with [the correct] view of the law, it would still have
decided in the exercise of its discretion not to” pursue
enforcement, “we cannot know that the FEC would have
exercised its prosecutorial discretion in this way.” Id.

     Here, as in Akins, we cannot know the counterfactual. We
cannot be certain what the FEC would have done had it
correctly applied the legal definition of political committee. In
this case, all six commissioners voted to investigate the
“obvious” violations of the requirement to disclose
independent expenditures. If the Controlling Commissioners
had not labored under a view of CHGO’s political-committee
status that was contrary to law, a majority might well have
proceeded with that claim, too, as “obvious.” J.A. 769.

   The majority miscasts this case in the Heckler mold.
CREW admittedly sidestepped any argument on the “reason to
                               19
believe” question—instead framing its case as a direct and
wholesale challenge to the agency’s enforcement discretion.
So it is perhaps understandable that my colleagues turn to
FECA Section 30109(a)(6)(A)’s separate provision granting
the FEC discretion whether to file suit in federal court. The
parties did not focus on, and the court leaves untouched, how
the action the Commission took here—a vote keyed to a
specific legal question, i.e., “reason to believe”—calls for
judicial review. I trust that, in future cases, the court will
continue, consistent with existing law, to review legal
determinations that the Commissioners make when they vote
on the merits of “reason to believe” or “probable cause”
questions, see 52 U.S.C. § 30109(a)(2)-(6); R. Sam Garrett,
Cong. Res. Serv., The Federal Election Commission:
Enforcement Process and Selected Issues for Congress 5-6
(Dec. 22, 2015) (citing 52 U.S.C. § 30109; FEC Process
Guidebook), and that they will continue to explain their
decisions, see Common Cause, 842 F.2d at 449; Democratic
Cong. Campaign Comm., 831 F.2d at 1135 & n.5. After all,
these constraints reflect Congress’s judgment that judicial
review is required, in part, “to assure . . . that the Commission
does not shirk its responsibility” to pass on the merits of
complaints. Democratic Cong. Campaign Comm., 831 F.2d at
1134 (quoting 125 Cong. Rec. 36,754 (1979)); see id. at 1135
& n.5.

    My colleagues do not grapple with these questions—they
remain for future cases. Instead, the court points to non-FECA
decisions readily distinguishable from this one and to which no
party cited. E.g. Maj. Op. 10-12 (citing Ass’n of Irritated
Residents, 494 F.3d at 1032 (holding non-enforcement decision
unreviewable where statute provided that Secretary “‘may’
take any number of enforcement actions”); Sec’y of Labor v.
Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C. Cir. 2006)
(vacating Mining Commission’s reversal of Labor Secretary’s
                              20
citation of mine operator under statute that “provides no
meaningful standard against which to judge the Secretary’s
decision regarding which party to cite”); Steenholdt v. FAA,
314 F.3d 633, 638 (D.C. Cir 2003) (denying review of agency’s
nonrenewal of petitioner’s authorization under provision
granting the Administrator authority to rescind such
authorization “for any reason the Administrator considers
appropriate” (quoting 49 U.S.C. § 44,702(d)(2)); Drake v.
FAA, 291 F.3d 59, 69-72 (D.C. Cir 2002) (affirming agency
dismissal of complaint without investigation under provision
authorizing dismissal when Secretary “is of the opinion that the
complaint does not . . . warrant investigation or action”
(quoting 49 U.S.C. § 46,101(a)(3)) (emphasis in Drake));
Sierra Club v. Jackson, 648 F.3d 848, 856 (upholding agency
inaction where the statute tasks the administrator to “take such
measures . . . as necessary” but without “guidance . . . as to
what action is ‘necessary’”); Crowley Caribbean Transp., Inc.
v. Peña, 37 F.3d 671, 672, 676 (D.C. Cir. 1994) (reading
Heckler to apply where “the relief sought by petitioner” was
the initiation of a discretionary “enforcement action,” but the
Administrator did not view the complained-of conduct as
properly within the statute).

     The myriad statutes that permit largely unfettered, and
therefore unreviewable, discretion do not speak to FECA.
There can be no serious claim that FECA equates a “no reason
to believe” vote to an exercise of unfettered enforcement
discretion. To the contrary, the Act explicitly provides for
judicial review of dismissals based on those votes. On
Heckler’s own logic, then, FECA’s constrained agency non-
enforcement is judicially reviewable and, if contrary to law,
subject to remand. Heckler, 470 U.S. at 833-34. It remains for
us to conduct such review in future cases that warrant it.
                               21
III. Conclusion

     Under the correct standards, undeniable “reason to
believe” that CHGO operated unlawfully as a political
committee should have prompted further investigation and
perhaps enforcement by the FEC. The court rests its decision
today on its view that the FEC sidestepped the merits wholesale
and exercised prosecutorial discretion untainted by an
erroneous view of the law. Critically, the majority preserves
judicial review where “the Commission declines to bring an
enforcement action on the basis of its interpretation of FECA.”
Maj Op. 11 n.11. I think this is such a case. I read the
Controlling Commissioners as having held a clear but incorrect
view of the law that informed their dismissal. That decision
should have been reviewed, reversed, and remanded to the
FEC.

     Absent argument from any party, my colleagues have
reached out to suggest that any Commission dismissal guided
by discretionary considerations is unreviewable. I have here
explained why FECA’s statutory scheme—and its various
limitations on non-enforcement discretion—place cases like
this one outside Heckler’s ambit. I believe that, in future cases
where the parties tee up this issue, Heckler will not bar our
review.

    The end of CHGO’s story remains a mystery. The group
dissolved within several months of learning that it remained the
subject of FEC investigation. Political operatives involved
with the group exchanged frantic emails stating that it was
urgent to “shut it down” and “[r]eally important . . . to get this
terminated ASAP.” J.A. 636. The organization lasted only one
federal election cycle and managed to slip into the shadows
without the scrutiny FECA requires. But the court’s holding
                             22
today should not be mistaken to mean that other organizations
may do the same.
