Document Type
Article
Publication Date
2024
Abstract
Partisan polarization has infected our politics at levels not seen in decades. But what happens when the contamination spreads to the institutions responsible for regulating the political process itself? At the Federal Election Commission, nothing. Under the FEC’s governing statute, the Federal Election Campaign Act, any serious action the agency undertakes must be supported by a bipartisan supermajority of commissioners. When the six commissioners fail to reach such consensus—or “deadlock”—due to partisanship or otherwise, nothing happens at all: no investigations, no regulations, no enforcement of federal campaign finance laws. For the first few decades of the FEC’s existence, these deadlocks were mostly harmless, if still frustrating. Thanks to FECA, even inaction by the FEC was subject to a critical safeguard: judicial review. But since 2018, the D.C. Circuit has found Heckler v. Chaney to bar review of deadlocks in which the commissioners voting against an enforcement action invoke the agency’s prosecutorial discretion. Consequently, a non-majority bloc of commissioners can refuse to support any or all enforcement proceedings—even for entirely partisan purposes—with little to no judicial oversight, simply by referencing the agency’s discretion in their reasoning.
This Article attempts to resolve this stalemate by proposing a framework to guide judicial review of these deadlock dismissals. Based on the Chevron “Step Zero” of United States v. Mead Corp. and its foundation in legal process principles of institutional competency, this two-part framework limits Chaney’s preclusion of review to agency actions that carry the “force of law.” Because FEC deadlock dismissals represent a failure of the Commission to speak authoritatively as a whole, they do not carry the force of law, and thus are reviewable. For these and other agency actions that fail this “Chaney Step Zero,” the framework also provides a less absolute but still deferential inquiry to evaluate the persuasiveness of the agency’s invocation of its discretion—a prosecutorial-discretion analogue of Skidmore v. Swift. While this framework is designed to combat the gridlock plaguing the FEC, its principled and organized approach to Chaney’s application has the potential to guide judicial review of discretionary action throughout the administrative state.
Recommended Citation
Natalie R. Schmidt, Chaney Step Zero: Judicial Review of FEC Deadlock Dismissals, 85 Ohio St. L. J. 307 (2024).
