Under
§§ 437g(a)(4)(A)(i), (5)(C), and (6)(A) the probable cause determination is part of a detailed statutory framework for civil enforcement and is analogous to a formal adjudication, which itself falls on the
Chevron side of the line. Like the citation to which the Court deferred in
Martin, the probable cause determination “assumes a form expressly provided for by Congress.”
Martin, 499 U.S. at 157, 111 S.Ct. 1171. The General Counsel advocates and the respondent opposes a finding of probable cause; through this statutorily mandated adversarial process, see
2 U.S.C. § 437g(a)(1), (3), the agency “gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.”
INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citation and internal quotation marks omitted). Unlike a judicially unreviewable SEC no-action letter, which this court has said would not merit
Chevron deference,
Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 427 n. 19 (D.C.Cir.1992) (“[T]he principle of deference described in [
Chevron] is not applicable here, for neither the staff's no-action letter nor the Commission's brief ranks as an agency adjudication or rulemaking.”), the no-action decision here was made by the Commission itself, not the staff, and precludes further enforcement.
Compare Board of Trade of Chicago v. SEC, 883 F.2d 525, 529 (7th Cir.1989) ( “[The SEC staff] could change [its] mind tomorrow, or the Commissioners might elect to proceed no matter what the [staff] recommends. The SEC has not, in other words, issued a ‘final’ decision....”). Congress vested enforcement power in the FEC, carefully establishing rules that tend to preclude coercive Commission action in a partisan situation, where the Commission, itself statutorily balanced between the major parties,
2 U.S.C. § 437c(a)(1) (“No more than 3 members of the Commission appointed under this paragraph may be affiliated with the same political party.”), is evenly split. If courts do not accord
Chevron deference to a prevailing decision that specific conduct is not a violation, parties may be subject to criminal penalties where Congress could not have intended that result.