The FEC’s Reluctance to Abide by Overton Park, by Sidney Shapiro & Kimberly Wehle
The Supreme Court’s 1971 decision in Citizens to Preserve Overton Park, Inc. v. Volpe is found in every administrative law case book because of its centrality to basic standards for judicial review of agency actions, including those of the Federal Election Commission (FEC). Yet Overton Park rarely arises in lower court opinions. That is not surprising. The case is seldom litigated because agency lawyers know the Court’s holding’—that judicial review “is to be based on the full administrative record that was before the Secretary at the time he made his decision”—and act according to that binding precedent.
Over four decades later, it appears that the FEC has still not learned this basic lesson. This is despite a 2023 case from the D.C. Circuit, End Citizens United (ECU) v. FEC, which held that when the FEC issues an explanation of a dismissal afterit has already dismissed a complaint, the explanation constitutes an improper post-hoc rationalization. The court further determined that the Commissioners “were obligated to issue a contemporaneous statement ‘explaining their votes,’ which the court would treat as the Commission’s reason for the dismissal” at the time of the dismissal—not months afterwards, as the FEC has improperly done for years and continues to do as a matter of course.
In the ECU case, the Commission Secretary had certified the Commission’s vote to close the enforcement matter without providing an explanation for the decision, in contravention of Overton Park. Two months after the dismissal of the administrative complaint and four days after ECU filed its lawsuit, two of the Commissioners issued a statement that “they had voted “pursuant to [thei]r prosecutorial discretion” to find there was no “reason to believe” that the Trump campaign had violated FEC rules.
As late as April 2024, the Commission is still resisting the holding in Overton Park. Instead, it took the unusual and opaque step of issuing a press release to announce new procedures governing its dismissals of enforcement complaints. While not entirely clear, the press release appears to mistakenly interpret the D.C. Circuit’s decision to require it to issue explanatory statements when it makes the enforcement file public sometime after the actual decision to dismiss a compliant has been made rather than contemporaneous with the dismissal, as bedrock principles of administrative law under Overton Park require.
The Commission’s new procedures strike us as patently incorrect. The announced procedures create a 30-day period that starts when the Commission Secretary certifies the Commission’s vote to close an enforcement matter, after which “that action will be effective.” Even if the announced procedures required all Commissioner Statements of Reasons to be in the record within those 30 days (which is not at all certain—it is implied but not stated directly), the revised timing of the public explanations fails to comply with Overton Park’s requirement that they be issued at the time the administrative decision was made—not afterward. In Overton Park, the Court held that a contemporaneous statement of reasons for an agency’s action was necessary for judicial review under the Administrative Procedure Act.
As a matter of logic and common sense, it is beyond dispute that the Commission makes no actual decision when it publicly releases an enforcement file. The decision comes at the time the decision is made. As the D.C. Circuit said in Environmental Defense Fund, Inc. v. Costle, “It is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made.” A court must therefore disregard any document not before the Commission at the time it votes to dismiss an enforcement matter. Moreover, an administrative record that includes a rationale for agency action added after the vote to dismiss has occurred effectively has left the vote to dismiss without a rationale in the administrative record and is presumptively invalid under Overton Park.
Nothing prevents the Commission from adopting a procedure whereby Commissioners prepare a Statement of Reasons before voting to dismiss an enforcement complaint. The statement would explain the actions of those Commissioners who voted to dismiss a complaint because there was not sufficient reason to believe (RTB) a violation of the Federal Election Campaign Act had occurred. After the vote on the RTB motion is cast, the objecting Commissioners would explain their dissent. After both explanations are considered by the Commissioners, the Commission would then vote on a dismissal motion that incorporates both explanations. If the matter is dismissed, that Statement of Reasons—which is part of the “full administrative record before the agency at the time the decision was made,” as Costle requires—can then properly be considered by a court reviewing the dismissal.
We wrote to the Commission on April 10, 2024 to ask the Commission and its General Counsel to determine what basis exists—if any—for asserting that the newly announced procedures comply with the mandates of Overton Park and Costle as they still fail to require that the Commission’s dismissal rationale accompany its voting on dismissal motions. And we offered this language, which, if added to the Commission’s case-dismissal procedures, would satisfy longstanding administrative law:
The Commission will incorporate a Statement of Reasons into all motions to close enforcement matters. This statement will constitute the entirety of the administrative record reflecting the Commission’s rationale for its dismissal of the complaint.
Sidney Shapiro is the Frank U. Fletcher Chair in Law at Wake Forest University. Kimberly Wehle is a Professor of Law at the University of Baltimore.
