A senior judge on the U.S. Court of Appeals for the D.C. Circuit sharply criticized the Federal Election Commission for arguing that a legal challenge to the commission's decision to not prosecute certain campaign finance violations cannot be reviewed by the court.

In a per curiam opinion Friday, the panel upheld a district court ruling that granted the FEC summary judgment in a lawsuit from the nonprofits Campaign Legal Center and Democracy 21, finding the reasons commissioners gave for throwing out complaints of campaign finance violations were reasonable.

In a concurring opinion, Senior Judge Harry Edwards of the U.S. Court of Appeal for the D.C. Circuit said he agreed with the panel's finding, but that he wrote separately to "express my concerns over the position taken by the Federal Election Commission suggesting that the matter before this court is not subject to judicial review."

The FEC had argued that because the challenge was over a prosecutorial decision by the commission, it was not subject to judicial review. Commission attorneys cited a D.C. Circuit panel's 2018 ruling in the case Citizens for Responsibility & Ethics in Washington v. FEC (CREW), which found courts could not review prosecutorial decisions of the commission. The circuit in 2019 declined to rehear the case en banc.

However, Edwards said in his opinion Friday that the CREW ruling relied on a Supreme Court decision that was not holding in this legal challenge.

"The commission's position flies in the face of the terms and purpose of the Federal Election Campaign Act," Edwards wrote, adding that it "is also flatly at odds" with the Supreme Court's 1998 ruling in FEC v. Akins and "ignores this court's decisions" in other FEC cases.

Edwards pointed to the justices' ruling in Akins, which states that "'any party aggrieved by an order of the commission dismissing a complaint filed by such party … may file a petition' in district court seeking review of that dismissal."

"Akins does not say that a complaint is not subject to judicial review when the commission purports to invoke prosecutorial discretion in dismissing the complaint. Just as we see in this case, a commission decision may survive review," Edwards wrote. "However, Akins does not say that disputes of the sort at issue in this case escape review merely because three FEC commissioners purported to act pursuant to prosecutorial discretion."

The judge further criticized the FEC for its changing stance on whether challenges to its decisions are reviewable in court. He noted that the FEC said in a brief in the CREW suit that the commissioners' actions could face legal challenges.

"The commission now ignores Akins and abandons (without explanation) the position that it presented to the court in CREW. In other words, the commission seeks to parlay the judgment rendered in CREW to achieve a result that it eschewed in CREW," Edwards wrote.

"This may be nothing more than an example of a party acting in its own self-interest," the judge continued. "I would have thought, however, that a government agency such as the FEC, with important responsibilities in enforcing the FECA, would at least explain to the court how its position on reviewability can change so dramatically."

Edwards also called it "particularly troubling" that the original stance taken by FEC in the CREW case "was perfectly consistent with the well-established law of the circuit."

"The commission's position on the reviewability of appellants' claim in this case is misguided because it cannot be squared with the law of the circuit," the judge wrote.

The D.C. Circuit's ruling in CREW had sparked criticism from those advocating for more transparency and accountability in campaign finance law. Critics said the decision would allow a partisan block on the commission—whose members are appointed by the president and Senate-confirmed—to block prosecutions of violations without facing judicial scrutiny.

In the court's unsigned per curiam opinion Friday, which was also joined by Judges Merrick Garland and David Tatel, the panel wrote that the "reviewability argument is complicated," pointing to Edwards' concurring opinion.

"The Commission's alternative argument is not. And because reviewability is not a jurisdictional issue, we will proceed directly to that alternative," the opinion reads.