Huge decision not to take the case en banc today. Under the ruling, if the FEC deadlocks (typically along party lines) on an enforcement matter and those blocking enforcement claim “prosecutorial discretion,” there can be no meaningful judicial review of the matter.
As Judge Pillard explains in her dissent from denial of rehearing en banc: “If a partisan bloc of the FEC can thwart a case like this one, FECA’s controls on campaign money, including the political committee registration and disclosure requirements here, are not worth much. “
Or as FEC Commissioner Weintraub put it last month: the decision in this case “vividly shows how a few magic words sprinkled onto the end of a statement by less than a majority of commissioners, suggesting what they could have done – but didn’t – in a case, can paper over even thoroughly debunked legal reasoning and protect even the most outrageous dismissals from any review whatsoever. The power the D.C. Circuit panel granted to these magic words eviscerates the right that Congress gave the American public to review this agency’s decisions.”