FEC Update with Matt Petersen: Prosecutorial Discretion and Judicial Review

By: Matthew Petersen

Late last week, a D.C. Circuit Court panel (which included Chief Judge Srinivasan) again reiterated that Federal Election Commission (FEC) complaint dismissals premised on prosecutorial discretion are not subject to judicial review.  The D.C. Circuit previously established this precedent in 2018 and 2021, when the Court held that “a Commission nonenforcement decision is reviewable only if the decision rests solely on legal interpretation.”

The group that filed the underlying complaint attempted to distinguish this case from the earlier ones by arguing that the invocation of prosecutorial discretion by the Commissioners who voted against launching an FEC enforcement investigation was based “on legal analysis of the complaint’s merits” rather than purely discretionary factors, and thus, the Commissioners’ reasoning should not escape judicial scrutiny.

The Court disagreed, however, concluding that the controlling bloc of Commissioners relied on “several classic criterion in the exercise of prosecutorial discretion,” including the allocation of limited Commission resources and potential litigation risk if the matter were pursued.  According to the Court, these considerations were distinct from any evaluation of the underlying legal merits, making the Commission’s dismissal unreviewable.

The panel decision — which affirmed the nonreviewability of FEC exercises of prosecutorial discretion for the third time — was unanimous.  The D.C. Circuit denied a petition for rehearing en banc the last time it considered this issue, and it is unclear whether en banc review will be sought in this case.

For more information about this topic, please reach out to Matt Petersen, former Chair of the Federal Election Commission, or your personal Holtzman Vogel contact.