Public Citizen v. FEC

Public Citizen, together with its principal campaign finance expert Craig Holman, the organization ProtectOurElections.org, and Kevin Zeese, filed a complaint with the Federal Election Commission in the fall of 2010, asking the FEC to investigate whether Crossroads GPS—the Karl Rove-linked political spending group formed to allow big donors to make secret campaign donations—was a political committee required to report its contributions and expenditures to the FEC. After three years of investigation, during which Crossroads GPS emerged as one of the leading dark-money political spending groups in both the 2010 and 2012 elections, the FEC’s General Counsel concluded that there were grounds for the Commission to proceed further. The Commission, however, deadlocked 3-3 in a partisan vote on whether to authorize additional investigation, which meant the complaint was dismissed. The three Republican Commissioners, who voted not to proceed, issued a statement of reasons that reflected an unduly narrow and unlawful view of what organizations are political committees under federal law. As authorized by a provision of the Federal Election Campaign Act allowing judicial review of the FEC’s dismissal of complaints, Public Citizen, Holman, ProtectOurElections.org, and Zeese filed an action in the U.S. District Court for the District of Columbia challenging the Commission’s refusal to act against Crossroads GPS. On July 30, 2014, the plaintiffs moved for summary judgment.

Meanwhile, Crossroads GPS moved to intervene in the lawsuit. The plaintiffs did not oppose intervention, but the FEC did. The district court held that Crossroads GPS could not intervene because the FEC adequately represented its interests, and Crossroads appealed. The plaintiffs did not participate in the appeal, and the case was stayed while it was resolved. The court of appeals for the D.C. Circuit held that Crossroads GPS was entitled to intervene. The case then returned to the district court for further proceedings with participation by Crossroads GPS. On March 17, 2021, the district court dismissed the case, holding that the FEC had engaged in an act of unreviewable prosecutorial discretion when it declined to pursue charges against Crossroads.