FEDERAL ELECTION COMMISSION

1050 FIRST STREET, N.E.

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matters of ) 

 ) 

John Ellis Bush, et al. ) MURs 6915 & 6927

 ) 

SUPPLEMENTAL STATEMENT OF REASONS OF CHAIRMAN ALLEN J. DICKERSON

A supplemental Statement of Reasons, especially in response to a single 

commissioner’s personal views, is unusual. But Commissioner Weintraub’s 

Statement of Reasons in these Matters makes points requiring a response. 

At the outset, good-faith disagreements concerning the scope and application

of campaign finance law are routine and expected. Commissioner Weintraub is fond 

of characterizing these disagreements in partisan (and sometimes personal) terms, a 

regrettable rhetorical flourish that does nothing to strengthen her legal points. 

As to the legal arguments in her Statement of Reasons here, Commissioner 

Weintraub makes at least three significant errors. 

First, she simply asserts – without legal support of any kind – that the 

Commission’s vote to close the file this year was the “dismissal” of this Matter.1 As 

has been fully explained elsewhere,2 it was not. Closing the file is a convenient, 

ministerial act, not a dismissal on the merits of a matter. 

Commissioner Weintraub’s Statement acknowledges this, repeatedly 

explaining that the Commission’s vote in 2018 fully resolved the merits of this 

Matter.3 Commissioner Weintraub even argues that courts must defer to her 

Statement – even though she writes alone and disagrees with the actions taken by 

1 Statement of Reasons of Comm’r Weintraub at 4-5 & n.18, MURs 6915/6927 (John Ellis Bush, Right 

to Rise USA, et al.), Sept. 30, 2022. 

2 See, e.g., Statement of Chairman Dickerson and Comm’rs Cooksey and Trainor Regarding Concluded 

Enforcement Matters, May 13, 2022.

3 See, e.g., Statement of Reasons of Comm’r Weintraub at 4, 5, n.20 MURs 6915/6927 (John Ellis Bush, 

Right to Rise USA, et al.), Sept. 30, 2022.

MUR691500342
the Commission – precisely because she is the only remaining commissioner who was 

present for the 2018 vote.4 This is plainly not how the controlling-commissioners 

doctrine works, but she is otherwise correct: this Matter was fully resolved in 2018 

when the Commission, with a lawful quorum, declined to adopt the Office of General 

Counsel’s theory of the case and voted not to find Reason to Believe (“RTB”). 

This point is buttressed by Commissioner Weintraub’s own argument. As her 

Statement notes, the D.C. Circuit requires a Statement of Reasons for the 

Commission’s merits determination – that is, its 2018 decision not to find RTB – 

rather than a discussion of its decision to close the file.5 But this is unsurprising. It

is precisely because the closing-the-file vote is not a merits dismissal, and indeed has 

no independent legal significance. Meaningful judicial review is necessarily directed 

toward the Commission’s substantive acts and the explanations thereof. 

Second, Commissioner Weintraub argues that the Commission enjoys 

perpetual jurisdiction to impose equitable remedies regardless of the statute of 

limitations.6 I, and others, have explained why this is wrong several times.7 Notably, 

4 See id. at 5 (Commissioner Weintraub describing herself “as the only commissioner with any 

authority to explain the Commission’s actions here”).

5 Statement of Reasons of Comm’r Weintraub at 4, MURs 6915/6927 (John Ellis Bush, Right to Rise 

USA, et al.), Sept. 30, 2022. See also, e.g., Fed. Election Comm’n v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471, 1476 (D.C. Cir. 1992) (“We further held that, to make judicial review a meaningful 

exercise, the three Commissioners who voted to dismiss must provide a statement of their reasons for 

so voting. Since those Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency’s reasons for acting as it did”) (citation omitted); Campaign 

Legal Ctr. & Democracy 21 v. Fed. Election Comm’n, 952 F.3d 352, 355 (D.C. Cir. 2020).

6 Statement of Reasons of Comm’r Weintraub at 6, MURs 6915/6927 (John Ellis Bush, Right to Rise 

USA, et al.) (Claiming that “[t]he Commission has considerable equitable remedies available to it that 

are not subject to 28 U.S.C. § 2462”).

7 See, e.g., Statement of Reasons of Chairman Dickerson and Comm’rs Cooksey and Trainor at 3-7,

MUR 7465 (Freedom Vote, Inc.) (citing, inter alia, Fed. Election Comm’n v. Christian Coal., 965 F. 

Supp. 66, 69 (D.D.C. 1997) (“FECA does not contain an internal statute of limitations. The applicable 

statute of limitations is [the five years] provided under 28 U.S.C. § 2462—a point the parties do not, 

nor could they, reasonably dispute”) (citations omitted); Fed. Election Comm’n v. Williams, 104 F.3d 

237, 240 (9th Cir. 1996) (rejecting the theory that the statute of limitations prevents the Commission 

from imposing fines but does not bar equitable relief as “directly contrary to the Supreme Court’s 

holding in Cope v. Anderson...[which] holds that ‘equity will withhold its relief in such a case where 

the applicable statute of limitations would bar the concurrent legal remedy’” and concluding that 

“because the claim for injunctive relief is connected to the claim for legal relief, the statute of 

limitations applies to both”) (citations omitted); Fed. Election Comm’n v. Nat’l Right to Work Comm., 

916 F. Supp. 10, 14, 15 (D.D.C. 1996) (“The FEC’s claim for civil penalties is barred by 28 U.S.C. § 

2462. The FEC argues that even if § 2462 bars its civil penalty claims, it is nevertheless entitled to its 

declaratory judgment and an injunction. The Court disagrees...Notions of welcome repose for ancient 

grievances aside, the practical concerns alone for problems of missing documents, faded memories, and 

absent witnesses that inevitably occur with the passage of time are no less problematic in adjudicating 

MUR691500343
she makes no effort to engage with those arguments, or even with the judicial 

opinions relied upon.8 Ignoring these on-point decisions does not make them go away.

Third, in a lengthy footnote, Commissioner Weintraub suggests that 

Statements of Reasons may not be part of the administrative record and therefore 

are not properly before courts reviewing the Commission’s disposition of enforcement 

matters.9 This is obviously not the law because (1) it is the courts themselves that 

have required commissioners to issue statements of reasons when they disagree with 

the Office of General Counsel’s recommendations, and (2) the courts have repeatedly 

evaluated and deferred to Statements of Reasons written after a vote is taken.10 It is 

also unclear how commissioners could explain their votes in advance without making 

our deliberations in executive session a meaningless formality. Thankfully, they are 

not, which is why Statements of Reasons have always been written to explain 

already-completed votes. The courts, unsurprisingly, have not found this curious. 

The Statement repeatedly takes issue with binding judicial rulings. But those 

decisions remain the law and reflect sober consideration of this agency’s enabling 

statute and its role within the larger project of administrative law and judicial review.

Commissioner Weintraub is entitled to the opinions expressed in her Statement, but 

they are not the law.

actions for declaratory and injunctive relief than in determining liability for monetary civil 

penalties”)).

8 Among others. See, e.g. Kokesh v. Securities and Ex’chg Comm., 581 U.S. __; 137 S. Ct. 1635, 1643

(2017) (holding that the non-compensatory disgorgement of funds “constitutes a penalty within the 

meaning of [28 U.S.C.] § 2462” subject to its five-year statute of limitations); id. at 1641 (observing 

that statutory limits on enforcement “are vital to the welfare of society and rest on the principle that 

even wrongdoers are entitled to assume that their sins may be forgotten”) (citations and quotation 

marks omitted); Gabelli v. Securities and Exch’g Comm., 568 U.S. 442, 448 (2013) (holding that 28 

U.S.C. § 2462’s “five-year clock” on the imposition of a civil penalty “begins to tick-when a defendant’s” 

impermissible “conduct occurs” and that this “rule has governed since the 1830s when the predecessor 

to § 2462 was enacted); id. (“Statutes of limitations are intended to ‘promote justice by preventing 

surprises through the revival of claims that have been allowed to slumber until evidence has been lost, 

memories have faded, and witnesses have disappeared’”) (quoting Railroad Telegraphers v. Railway 

Express Agency, Inc., 321 U.S. 342, 348-349 (1944)). 

9 E.g., Statement of Reasons of Comm’r Weintraub at 5, n.18, MURs 6915/6927 (John Ellis Bush, 

Right to Rise USA, et al.), Sept. 30, 2022. 

10 See, e.g., supra n.5.

MUR691500344
_________________________________ _________________________ 

Allen J. Dickerson Date

Chairman

10/4/2022

MUR691500345