{"id":72668,"title":{"rendered":"The Positive Power of Three at the FEC: Project Ripcord"},"content":{"rendered":"

Tom Moore1<\/sup><\/a><\/h2>\r\n\r\n
12 Stetson J. Advoc. & L. 144 (2025)<\/strong><\/div>\r\n\r\n

I. Introduction<\/h2>\r\n\r\n

Between 2018 and 2022, a remarkable plan unfolded at the U.S. Federal Election Commission (FEC), one that allowed significant enforcement complaints that would have otherwise been dismissed to move forward on an unusually solid procedural posture.<\/p>\r\n\r\n

Personnel changes on the Commission have caused the plan \u2014 known informally as \u201cProject Ripcord\u201d2<\/sup><\/a> \u2014 to be mothballed for the moment, but the underlying theory remains solidly grounded in the text and spirit of the Federal Election Campaign Act (FECA).3<\/sup><\/a><\/p>\r\n\r\n

This Article aims to describe how Project Ripcord works and detail its legal basis, so that when the day arrives when the FEC again enjoys the service of three commissioners who are interested in vigorous enforcement of federal campaign-finance law, those commissioners will have a playbook from which to operate should they choose to do so.<\/p>\r\n\r\n

II. The Federal Election Commission<\/h2>\r\n\r\n

The FEC is the independent federal agency with the mission to \u201cprotect the integrity of the federal campaign finance process by providing transparency and fairly enforcing and administering federal campaign finance laws.\u201d4<\/sup><\/a> It has exclusive jurisdiction over the civil enforcement of the law.5<\/sup><\/a><\/p>\r\n\r\n

The Commission comprises six commissioners, no more than three from any one political party. Commissioners are appointed by the President and confirmed by the Senate.6<\/sup><\/a> They step into a running six-year term, during which they can only be replaced for cause, and after which they can be replaced at any time by the President. Once their term ends, Commissioners may serve until the Senate confirms their replacement.7<\/sup><\/a><\/p>\r\n\r\n

The Act requires all decisions exercising Commission duties or powers to be supported by at least a majority of commissioners, and specifically calls out dismissals of administrative complaints as requiring Commission action.8<\/sup><\/a><\/p>\r\n\r\n

The most significant Commission powers require the affirmative vote of at least four Commissioners: filing and appealing lawsuits; defending litigation challenges to its enforcement dismissals or inaction; issuing advisory opinions; promulgating regulations; conducting investigations; and referring matters to other law enforcement agencies.9<\/sup><\/a> The four-vote requirement has the effect of requiring bipartisan support for these actions.<\/p>\r\n\r\n

III. The Complaint Process<\/h2>\r\n\r\n

The FEC\u2019s enforcement of the Act is driven by administrative complaints; anyone who believes the Act has been violated can file a complaint with the Commission.10<\/sup><\/a><\/p>\r\n\r\n

Complaints generally follow this path: The Commission\u2019s Office of General Counsel (OGC) reaches out to the alleged violator (the \u201crespondent\u201d) and analyzes both the complaint and the response. It then writes a General Counsel\u2019s Report (GCR) for the Commission\u2019s consideration. The Commission then ordinarily votes on whether to find there is \u201creason to believe\u201d the respondent has violated the Act (an \u201cRTB vote,\u201d in Commission parlance). This threshold determination requires four affirmative votes.11<\/sup><\/a><\/p>\r\n\r\n

A 3\u20133 vote on such a motion means the motion fails, but, as FEC Commissioner Ellen L. Weintraub notes, \u201cStandard parliamentary procedure, the Act, and common sense all agree that when a vote on a motion \u2014 any<\/em> motion \u2014 fails, no action has taken place.\u201d12<\/sup><\/a> When an RTB motion fails, it can be followed up by a similar motion, no motion at all, or a motion to dismiss.13<\/sup><\/a> Only when a majority of the Commission votes in favor of a motion to dismiss is the matter dismissed.14<\/sup><\/a><\/p>\r\n\r\n

If the Commission does vote to find RTB, it can either launch an investigation or it can begin settlement talks with the respondent if the violation is already so well-established that there would be little more for an investigation to uncover. After an investigation, the Commission votes on whether there is probable cause that a violation has occurred, and if such a vote is successful, proceeds to negotiate a conciliation agreement with the respondent.15<\/sup><\/a><\/p>\r\n\r\n

While the complaint is active, the Act requires that enforcement matters be kept confidential.16<\/sup><\/a><\/p>\r\n\r\n

IV. Lawsuits Against the Commission<\/h2>\r\n\r\n

The Act contains an unusual provision, 52 U.S.C. \u00a730109(a)(8), that allows complainants to challenge in federal court both the Commission\u2019s dismissals of \u2014 and inaction on \u2014 administrative complaints. Project Ripcord puts just about every word of \u00a730109(a)(8) to use, so it is worth examining in detail:<\/p>\r\n\r\n

(A) Any party aggrieved by an order of the Commission dismissing a complaint filed by such party under paragraph (1), or by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition with the United States District Court for the District of Columbia.<\/em><\/p>\r\n\r\n <\/blockquote>\r\n\r\n

This establishes the two types of enforcement lawsuits complainants may file: actions challenging the Commission\u2019s (1) dismissal of the complaints they have filed or (2) failure to act upon them.17<\/sup><\/a> It also requires that all such lawsuits be filed in the U.S. District Court for the District of Columbia. Within the Commission, these are known as \u201c(a)(8) suits.\u201d<\/p>\r\n\r\n

(B) Any petition under subparagraph (A) shall be filed, in the case of a dismissal of a complaint by the Commission, within 60 days after the date of the dismissal.<\/em><\/p>\r\n\r\n <\/blockquote>\r\n\r\n

This sets a timeline for dismissal suits. It is an unremarkable provision except that it can be used to determine the moment when the Commission dismisses an enforcement complaint.<\/p>\r\n\r\n

(C) In any proceeding under this paragraph 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, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.<\/em><\/p>\r\n\r\n <\/blockquote>\r\n\r\n

There\u2019s a lot going on in this paragraph. First, it establishes that the job of a court evaluating dismissal and failure-to-act suits is to determine whether the Commission\u2019s action or inaction is \u201ccontrary to law.\u201d<\/p>\r\n\r\n

Second, If the court does so determine, it \u201cmay\u201d \u2014 but is not required to \u2014 remand the matter to the Commission on a 30-day deadline. In a failure-to-act suit, the court\u2019s direction to the Commission is that it act on the administrative complaint, but not that it act in any particular way. In a dismissal suit, the direction is also that the Commission act, generally speaking, on the complaint, but that if dismisses the complaint again, it not cite the grounds cited before.<\/p>\r\n\r\n

Third, if the Commission fails to meet the deadline the court sets, the complainant may sue the respondent directly in federal court \u201cto remedy the violation involved in the original complaint.\u201d This is known as a \u201cthird-party lawsuit.\u201d Note well that even when the initial lawsuit had concerned the Commission\u2019s failure to act, the third-party lawsuit challenges the substance of the original complaint, not the delay in action. This is key.<\/p>\r\n\r\n

When a complainant sues over the Commission\u2019s dismissal or failure to act on its complaint, the Commission votes on whether to defend against the lawsuit. This vote requires four affirmative votes to succeed.18<\/sup><\/a><\/p>\r\n\r\n

V. Recent Commission History<\/h2>\r\n\r\n

A. Late 1980s\u2013Early 90\u2019s: D.C. Circuit Creates the \u2018Controlling Commissioners\u2019 Doctrine<\/h2>\r\n\r\n

Much of the trouble the Commission has had in enforcing the law stems from the \u201ccontrolling commissioner\u201d doctrine, which holds that when a non-majority of the Commission votes to block an enforcement matter from proceeding on a matter the agency\u2019s lawyers recommended pursuing, they are required to write a \u201cStatement of Reasons\u201d explaining their RTB vote, and a court examining the subsequent dismissal will look to \u2014 and defer to \u2014 that non-majority\u2019s reasoning when determining whether the dismissal was contrary to law.<\/p>\r\n\r\n

In some ways, this makes sense \u2014 when the Commission\u2019s general counsel recommends a dismissal, the Commission votes to dismiss, and the dismissal is challenged, that\u2019s easy: a court can look to the General Counsel\u2019s Report (\u201cGCR\u201d) for the Commission\u2019s reasoning (or any factual and legal analysis the Commission provides with its majority vote to dismiss, which are frequently the same thing).<\/p>\r\n\r\n

But when the agency\u2019s lawyers recommend pursuing the complaint and the Commission instead votes to dismiss, a court examining a challenge cannot look to the GCR since the Commission did not follow its legal reasoning and recommendations.<\/p>\r\n\r\n

The court\u2019s charge under the statute is to determine whether the dismissal is contrary to law, not necessarily whether the Commission\u2019s reasoning was faulty. But the D.C. Circuit, over time, took harmful shortcuts that empowered less than a majority of commissioners to completely control the Commission\u2019s enforcement efforts.<\/p>\r\n\r\n

The doctrine was established through three key D.C. Circuit cases:19<\/sup><\/a> 1987\u2019s Democratic Cong. Campaign Comm. v. Fed. Election Com\u2019n<\/em> (\u201cDCCC<\/em>\u201d),20<\/sup><\/a> 1988\u2019s Common Cause v. Federal Election Com\u2019n<\/em> (\u201cCommon Cause<\/em>\u201d),21<\/sup><\/a> and 1992\u2019s Federal Election Com\u2019n v. NRSC<\/em> (\u201cNRSC<\/em>\u201d).22<\/sup><\/a><\/p>\r\n\r\n

In DCCC<\/em>, the court granted the Commission the opportunity to go back and cast (and explain) a four-or-more-commissioner precedential vote on the matter, to which a district court should defer. The court stated, \u201cBecause we have no explanation why three Commissioners rejected or failed to follow the General Counsel\u2019s recommendation, we are unable to say whether reason or caprice determined the dismissal of DCCC\u2019s complaint.\u201d Notably, it did not require the Commission to provide such an explanation.<\/p>\r\n\r\n

Common Cause<\/em> required a Statement of Reasons in situations where an RTB vote had deadlocked and the Commission had subsequently voted to dismiss the matter. That Statement of Reasons, from those commissioners who had voted No on the RTB motion, would illuminate the Court\u2019s understanding of the dismissal before it. Notably, the court would not defer to this three-commissioner, non-precedential statement.23<\/sup><\/a><\/p>\r\n\r\n

In NRSC<\/em>, the court combined DCCC<\/em> and Common Cause<\/em> together into something unrecognizable. The court took DCCC<\/em>\u2019s deference and Common Cause<\/em>\u2019s required Statement of Reasons and held that courts must defer to the Statement of Reasons the three blocking commissioners write. \u201cSince those Commissioners constitute a controlling group for purposes of the decision, their rationale necessarily states the agency\u2019s reasons for acting as it did,\u201d wrote the court.24<\/sup><\/a><\/p>\r\n\r\n

This marked the beginning of the judicial conflation between failed RTB votes and successful dismissal votes. The D.C. Circuit failed to recognize \u2014 and continues to fail to recognize \u2014 that the outcome of a failed RTB vote does not automatically determine the outcome of a dismissal vote. The two motions are separate, the votes on them are taken at different times, and they have different lineups of commissioners voting for them.<\/p>\r\n\r\n

B. 2008: Personnel Changes Bring Obstructed Votes<\/h3>\r\n\r\n

In 2008, the entire Republican side of the Commission turned over. These three new commissioners employed a different voting strategy, voting as a bloc to, well, block enforcement of major enforcement complaints.25<\/sup><\/a><\/p>\r\n\r\n

Voting as a bloc had the effect of requiring unanimous support for pursuing enforcement complaints; assuming all Democratic commissioners wished to pursue a matter, the votes of all three Republican commissioners would have to be secured in order to meet the four-vote threshold for an RTB motion to succeed. It was all or nothing.<\/p>\r\n\r\n

The Republicans\u2019 change in voting strategy had an immediate impact. A study conducted by former FEC Chair Ann M. Ravel found that the share of substantive votes resulting in partisan deadlock rose from 2.9 percent in 2006 to 30 percent in 2016.26<\/sup><\/a> (That number understates the problem, as that 30 percent included the most important matters before the Commission.)27<\/sup><\/a><\/p>\r\n\r\n

And make no mistake: This was purely a Republican voting strategy. \u201cIn every matter where the Commission\u2019s Office of General Counsel has recommended RTB and the Commission has split on the recommendation,\u201d Weintraub wrote in 2022, \u201cthe voting line-up has been the same: the Republican commissioners have voted against enforcement and the Democratic and Independent commissioners have voted to approve our counsel\u2019s recommendations to proceed.\u201d28<\/sup><\/a><\/p>\r\n\r\n

According to The New York Times<\/em>, this \u201ccreated a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.\u201d29<\/sup><\/a><\/p>\r\n\r\n

C. 2018: It Gets Worse: CREW v. FEC<\/em> (\u201cCHGO<\/em>\u201d)<\/h3>\r\n\r\n

Starting in the late 1980s, DCCC<\/em>, Common Cause<\/em>, and NRSC<\/em> had made challenges to Commission dismissals more difficult, but not impossible. The 2008 crop of obstructionist commissioners forced dismissals of many more matters. And then in 2018, in CREW v. FEC<\/em> (\u201cCHGO<\/em>\u201d),30<\/sup><\/a> the D.C. Circuit shattered the Commission\u2019s ability to enforce the law.31<\/sup><\/a><\/p>\r\n\r\n

The panel decision held that in matters where the naysaying commissioners cite \u201cprosecutorial discretion\u201d in their Statements of Reasons explaining their No votes, the dismissal is unreviewable by courts. \u201cProsecutorial discretion is,\u201d writes Weintraub,<\/p>\r\n\r\n

a principle of administrative law that allows an agency to decline to pursue a matter even if the law may have been violated. The bases for prosecutorial discretion are issues that do not go to the merits of a matter, but instead go to the prudence of pursuing a particular allegation. Some things in this world may, indeed, not be worth making a federal case over. An excess contribution of $5. A complaint describing activity that occurred in the previous century. A complaint against an individual who is deceased. It is appropriate to exercise the Commission\u2019s prosecutorial discretion in dismissing such complaints, and I have voted many times to so exercise it.32<\/sup><\/a><\/p>\r\n\r\n <\/blockquote>\r\n\r\n

In the CHGO<\/em> matter, those commissioners had written in their Statement of Reasons that \u201cthis case did not warrant the further use of Commission resources.\u201d33<\/sup><\/a> The overall statement satisfied the trial court, which held that the naysaying commissioners had acted within their discretion. But on appeal, a D.C. Circuit panel held that their invocation of those eleven words alone was due absolute and unreviewable deference, that is, that those words put the dismissal beyond the reach of any court to overturn or even question it.<\/p>\r\n\r\n

The D.C. Circuit followed up the following year in a case also called CREW v. FEC<\/em> (regarding a dark-money group called \u201cNew Models\u201d and thus dubbed the New Models<\/em> case), which made matters still worse.34<\/sup><\/a><\/p>\r\n\r\n

In New Models<\/em>, the cited prosecutorial discretion was even flimsier. Republican commissioners spent 32 pages and 138 footnotes providing their factual and legal analysis of the matter \u2014 every bit of which was subject to legal challenge. But in the very last sentence<\/em> of their Statement of Reasons, they wrote, \u201cFor these reasons, and in exercise of our prosecutorial discretion, we voted against finding reason to believe that New Models violated the Act by failing to register and report as a political committee and to dismiss the matter.\u201d35<\/sup><\/a> And that was that. In upholding the dismissal, the district court wrote, \u201c[<\/span>H]<\/span>ow closely may a court scrutinize the FEC\u2019s exercise of prosecutorial discretion in dismissing an administrative complaint? The Circuit\u2019s answer: not at all.\u201d36<\/sup><\/a><\/p>\r\n\r\n

\u201cAll the Republican commissioners need to do is include the magic words \u2018prosecutorial discretion\u2019 and a court will then decline to review the action,\u201d Paul S. Ryan, then Common Cause\u2019s vice president for litigation, told The New York Times<\/em>.37<\/sup><\/a><\/p>\r\n\r\n

The absurd peak \u2014 so far \u2014 of judicial deference to Republican FEC commissioners\u2019 invocation of prosecutorial discretion is in the MAGA PAC matter (MUR 7784).38<\/sup><\/a> They dismissed a complaint alleging a $781 million violation<\/em> \u2014 \u201cthe largest potential amount in violation in the Commission\u2019s history,\u201d as Weintraub noted39<\/sup><\/a> \u2014 on, yes, prosecutorial discretion grounds. The district court and D.C. Circuit panel reviewing the MAGA PAC dismissal cited New Models<\/em> to uphold the dismissal.40<\/sup><\/a><\/p>\r\n\r\n

There is a late-breaking bright spot here \u2014 a very bright spot. The Campaign Legal Center petitioned the full D.C. Circuit for en banc<\/em> rehearing of MAGA PAC41<\/sup><\/a> and a companion case that raises many of the same challenges to New Models, End Citizens United PAC v. FEC<\/em>.42<\/sup><\/a> Circuit courts rarely grant such petitions,43<\/sup><\/a> but in October 2024, the D.C. Circuit granted the petition as to End Citizens United<\/em>.44<\/sup><\/a> The full D.C. Circuit has heard oral arguments in that case on February 25, 2025,45<\/sup><\/a> and ordered the MAGA PAC<\/em> case to be held in abeyance,46<\/sup><\/a> presumably until it decides End Citizens United<\/em>.<\/p>\r\n\r\n

Only the full circuit can overturn the decision of a circuit panel; it is difficult to see why the D.C. Circuit agreed to rehear End Citizens United<\/em> if a majority of judges voting did not intend to overturn the New Models<\/em> precedent it relies upon.<\/p>\r\n\r\n

VI. Response: Project Ripcord<\/h2>\r\n\r\n

A. Ingredients are Assembled<\/h3>\r\n\r\n

The first outlines of Project Ripcord began to emerge in Spring 2018. Only four commissioners were serving on the Commission at that time: Weintraub, a Democrat; a Democratic-leaning independent commissioner; and two Republican commissioners.47<\/sup><\/a><\/p>\r\n\r\n

This created an unusual voting environment. When the Commission has its full complement of six commissioners, the four-vote majority it needs to exercise its most significant powers can be assembled without the votes of two of them. But with only four commissioners on board, every one of them must vote in favor of any motion that requires four votes.<\/p>\r\n\r\n

This meant that Weintraub could unilaterally control the outcome of any motion that required four affirmative votes to succeed. This was most motions \u2014 the Commission had long before passed a directive that went well beyond the requirements of the Act and required at least four votes for almost every motion, including motions to dismiss.48<\/sup><\/a><\/p>\r\n\r\n

Ordinarily, strategic use of the four-vote requirement thwarted the enforcement of the law; since 2008, Republican commissioners had done so by voting as a bloc to withhold the necessary fourth vote from many RTB motions, thus blocking the Commission\u2019s pursuit of those complaints.<\/p>\r\n\r\n

By the spring of 2018, Weintraub had realized that a fourth vote could also be withheld to promote<\/em> the enforcement of the law in two critical situations: Motions to dismiss matters and motions to defend the Commission against lawsuits challenging dismissals and failures to act. Both of these were powerful, but used together, they were extraordinarily powerful: They could control the outcome of every matter upon which the Commission had split along partisan lines.<\/p>\r\n\r\n

The American Action Network matter,49<\/sup><\/a> opened in 2014, spurred Weintraub to take action. Even by Commission standards, the course this matter had taken was unusually tortuous:<\/p>\r\n\r\n