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Washington, D.C. — The Institute for Free Speech filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to prevent improper partisan enforcement of federal campaign finance law. Under federal law, private groups can only sue their political opponents if the Federal Election Commission (FEC) refuses to consider their complaints or dismisses them “contrary to law.” But recently, some Commissioners have refused to vote for closing the file on complaints that the FEC has considered, but declined to pursue, thereby misleading courts into authorizing private lawsuits.
The brief argues that allowing private groups to sue political opponents after the FEC has fewer than the required four votes to investigate a complaint undermines the protections Congress created against partisan enforcement. These commissioners leave respondents in limbo and hide information from the public after complaints like the one filed by Giffords. It confuses courts and erodes First Amendment rights by allowing campaign-finance law to be weaponized for ideological purposes.
The case began when Giffords, a group supporting restrictive gun laws, sought to sue its ideological nemesis, the National Rifle Association of America (NRA), for alleged campaign finance violations. Giffords filed multiple complaints, but the Commission initially lacked a quorum to determine whether there was “reason to believe” a violation occurred and investigate.
The Commission could not lawfully act during this period, but Giffords filed petitions alleging that the Commission unlawfully failed to act. While the court considered the petitions, the Commission regained a quorum and voted. But the commissioners cast fewer than four votes—the number required by law—to authorize an investigation, thus requiring dismissal.
Certain commissioners were nonetheless intent on enforcement, despite Congress’s four-vote requirement—a rule designed to prohibit partisan enforcement. And those commissioners prevented a normally routine vote to close the file—and thus make it public—to keep the court reviewing Giffords’ petition from knowing that there would be no further enforcement. The court reviewing Giffords’ petition thus believed that the FEC had unlawfully failed to act, and authorized Giffords to bring a private lawsuit against its enemy the NRA.
That’s why the Institute for Free Speech filed the brief, along with former Chairman of the FEC, Bradley A. Smith, to explain the complex procedural nuances in federal campaign finance law that prevent lawfare by plaintiffs or commissioners intent on partisan enforcement. The Institute’s brief focuses on the statutory limits Congress imposed on the FEC’s enforcement authority and the constitutional risks of allowing private parties to bypass those limits. It further argues that “the standard for reviewing whether the Commission has unlawfully failed to act—whether it has been arbitrary or capricious, or followed a rule of reason—requires a correct understanding of the enforcement process. On its face, the law portrays a quick and simple process. The implemented process, however, is complex and time-consuming.”
To read the Institute’s new amicus brief in Giffords v. Federal Election Commission, click here. To read the Institute’s amicus brief opposing the Giffords’ motion to dismiss the NRA’s appeal, filed in August 2025, click here.
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