In January 2024, in End Citizens United PAC v. FEC, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC’s exercise of enforcement discretion.
In October 2024, the full court voted to rehear the case en banc (as I noted in this post). Interestingly enough, the grant of rehearing expanded the issue before the court, perhaps for the purpose of cleaning up circuit precedent in this area.
Oral argument was held in February 2025.
It is now July 2026, and there is still no opinion.
It’s been over two-and-a-half years since the original panel opinion, and over twenty months since the panel opinion was vacated, and the case is still not resolved.
As I noted in my post from 2024, this case implicates important questions concerning judicial review of agency non-enforcement decisions. So what is taking so long? Is there not a majority in support of a single rationale? Something else? Those of us interested in judicial review of agency action–and, in this case, agency inaction–would like to know!
Back in the day, the D.C. Circuit was known for relatively quick resolution of cases. The court does not typically hear oral argument over the summer and judges were expected to finish up their opinions during that time–and well before oral arguments were held in the fall. (This also meant that clerks rarely had to hand off cases to their successors, as the cases one set of clerks worked on would be largely resolved when the new clerks began.) I do not recall whether this informal rule applied to en banc decisions, but a single case sitting around this long is still quite unusual for this court.
Perhaps the reasons for the delay with End Citizens United PAC will become evident once the opinion is ultimately released. Until then, we will just keep waiting.
