The FEC’s “Superpower”

Ellen Weintraub:

With a bolt out of the blue last Friday, a panel of the D.C. Circuit Court of Appeals bestowed a superpower upon the Federal Election Commission. Unfortunately, it is the power to kill any FEC enforcement matter, wholly immune from judicial review. Thanks, but no thanks.

Left in place, this decision destroys not just the right that Congress gave the American people to challenge the FEC’s enforcement decisions, but the FEC’s entire enforcement mechanism. The panel’s decision1 flies in the face of what Congress intended and urgently needs to be reconsidered by the en banc D.C. Circuit.

It is no secret that my obstructionist colleagues on the Federal Election Commission spike most major enforcement cases. One of the only ways that big cases can be forced forward is when a judge reviewing the case shreds my colleagues’ legal reasoning and leaves them with little choice on remand. But this startling split opinion from the D.C. Circuit removes that judicial review entirely whenever my colleagues add a few newly conjured magic words about prosecutorial discretion to their statement regarding any dismissal. While the decision was technically a win for my agency, it will have far-reaching negative consequences for the law that the D.C. Circuit panel cannot have intended.

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