FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Governor Scott Walker ) 

Scott Walker, Inc. and Kate Teasdale in her official ) 

capacity as treasurer ) MURs 6917 and 6929 

Our American Revival and C. Ryan Burchfield ) 

in his official capacity as treasurer ) 

 ) 

and ) 

 ) 

In the Matter of ) 

 ) 

John R. Kasich ) 

Kasich for America, Inc. and ) 

J. Matthew Yuskewich in his capacity as treasurer ) MURs 6955 and 6983 

New Day For America and ) 

J. Matthew Yuskewich in his capacity as treasurer ) 

SUPPLEMENTAL STATEMENT OF REASONS OF 

COMMISSIONER SEAN J. COOKSEY 

These matters deserved discretionary dismissal under Heckler v. Chaney because they were 

old, there was no penalty to be assessed, and the Commission has higher-priority investigations to

pursue. That is why I voted to dismiss these matters and joined the accompanying Statement of 

Reasons to that effect with Vice Chair Dickerson and Commissioner Trainor.1 

I write separately to emphasize that, in addition to these prudential considerations, I believe

the Commission lacked the legal authority to press these matters further. The five-year statute of 

limitations barred enforcement in these cases entirely, and it is worth dwelling upon why the Office 

of General Counsel’s (“OGC”) theory of unending equitable remedies in these matters is wrong—

indeed dangerous. 

1 See Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor, III (April 29, 2021), MURs 6917 and 6929 (Scott Walker et al.) and MURs 6955 and 6983 (John R. 

Kasich et al.). 

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The Complaints allege that two candidates for the 2016 Republican nomination for 

President violated the Federal Election Campaign Act of 1971, as amended (the “Act”), by 

accepting excessive and impermissible contributions from associated organizations through 

testing-the-waters expenditures, and that they likewise failed to timely file their statements of 

candidacy.2 The conduct at issue is old—much of it, if not all, took place in the early days of the 

presidential primary season in 2015.3 When the Commission considered these matters in March 

2021, the applicable five-year statute of limitations had run.

4 The sensible solution, therefore, was

to dismiss them as time-barred. 

But OGC advised to the contrary. In its probable cause briefs and associated memoranda 

to the Commission, OGC argued that “regardless of whether the five-year statute of limitations 

invoked by [Our American Revival] impedes the Commission’s ability to seek a civil penalty, it 

does not prevent the Commission from pursuing equitable remedies.”5 As a result, OGC 

recommended that the Commission continue to pursue enforcement against these Respondents in 

order to mandate retrospective disclosure of the contributions and expenditures at issue through 

amended FEC reports.

6 I reject OGC’s argument for several reasons. 

First, I believe OGC misstates the law. OGC maintains that equitable remedies fall outside 

of the five-year limitations period on “enforcement of any civil fine, penalty, or forfeiture,”7 but 

the Supreme Court has held otherwise. In Kokesh v. SEC, the Court ruled that § 2462’s limitations 

period applied to the Securities and Exchange Commission’s claim for disgorgement—an 

equitable remedy.8 The Court reasoned that whether a remedy constitutes a “penalty” does not turn 

on it being legal or equitable, but rather on the remedy’s purpose and the body of law being 

enforced. A remedy is a penalty, the Court said, if it is imposed to enforce public laws—as opposed 

to private rights—and if its purpose is to punish and deter future violations rather than to 

2 General Counsel’s Brief at 1–3 (May 11, 2020), MURs 6917 and 6929 (Scott Walker et al.); General 

Counsel’s Brief at 1–4 (Dec. 4, 2020), MURs 6955 and 6983 (John R. Kasich et al.).

3 General Counsel’s Brief at 2–17 (May 11, 2020), MURs 6917 and 6929 (Scott Walker et al.); General 

Counsel’s Brief at 4–20 (Dec. 4, 2020), MURs 6955 and 6983 (John R. Kasich et al.).

4 18 U.S.C. § 2462 (“Except as otherwise provided by Act of Congress, an action, suit or proceeding for the 

enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced 

within five years from the date when the claim first accrued if, within the same period, the offender or the property is 

found within the United States in order that proper service may be made thereon.”).

5 Office of General Counsel’s Notice to the Commission following the Submission of Probable Cause Brief at 

2 (July 7, 2020), MURs 6917 and 6929 (Scott Walker et al.). See also General Counsel’s Brief at 44 (Dec. 4, 2020), 

MURs 6955 and 6983 (John R. Kasich et al.) (“Thus, regardless of whether the five-year statute of limitations invoked 

by the statute impedes the Commission’s ability to seek a civil penalty, it does not prevent the Commission from 

pursuing equitable remedies, including requiring disclosure of excessive and prohibited contributions, as well as the 

disclosure of Kasich’s testing-the-waters activity.”).

6 Office of General Counsel’s Notice to the Commission following the Submission of Probable Cause Brief at 

2 (July 7, 2020), MURs 6917 and 6929 (Scott Walker et al.); General Counsel’s Brief at 1–3 (May 11, 2020), MURs 

6917 and 6929 (Scott Walker et al.); General Counsel’s Brief at 43–44 (Dec. 4, 2020), MURs 6955 and 6983 (John 

R. Kasich et al.).

7 18 U.S.C. § 2462.

8

 137 S. Ct. 1635, 1643 (2017).

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compensate an aggrieved party.

9 The Court went so far as to say that a remedy is a penalty for 

purposes of § 2462 if it “cannot fairly be said solely to serve a remedial purpose.”10 Because the 

Securities and Exchange Commission was seeking to vindicate the government’s interests and to 

sanction Charles Kokesh for the alleged securities violation, the Court ruled that disgorgement was 

a penalty barred by the five-year limitations period.11

So too here. Under Kokesh’s reasoning, retrospective disclosure is a penalty subject to 

§ 2462’s limitations period. Campaign-finance violations are public injuries, not personalized 

harms. Disclosure and reporting remedies do not compensate any individual, but vindicate the 

United States’ general interest in upholding the law.

12 This suggests remedies to enforce campaignfinance law are more akin to penalties. Moreover, the purpose of the proposed remedy in this case 

is to sanction and stigmatize the Respondents and to deter future violations by requiring backwardlooking disclosures through amended reports, similar to other common FEC penalties like fines or 

disgorgement.13 Consequently, OGC’s claim that equitable remedies had not been extinguished is

wrong, and the better legal argument is that these matters were completely time-barred.

But even if the mandatory disclosure that OGC sought was not a penalty for purposes of 

§ 2462, the reporting remedy would likely still be barred under the concurrent-remedies doctrine. 

As the Supreme Court held in Cope v. Anderson, where a party’s legal remedies are time-barred, 

its concurrent equitable claims are generally barred as well.14 Admittedly, some federal courts 

have held this doctrine inapplicable to the federal government.15 But in at least two decisions 

involving the Commission, both the U.S. Court of Appeals for the Ninth Circuit and the U.S. 

District Court for the District of Columbia have ruled that the doctrine applies, and they have 

blocked our pursuit of equitable remedies past the limitations period.

16 The same would be true in

any civil enforcement suit seeking retrospective disclosure in these matters, which would arise 

from the same conduct for which the Commission could no longer assess financial penalties. 

Finally, even if OGC’s legal interpretation were correct, I would still reject it as a matter 

of policy. The upshot of OGC’s theory is that there is no time limit on this agency’s ability to 

9 Id. at 1642.

10 Id. at 1645 (quoting Austin v. United States, 509 U.S. 602, 621 (1993)). 

11 Id. 

12 See Buckley v. Valeo, 424 U.S. 1, 96 (1976) (describing the various public interests served by the Act’s 

disclosure requirements). 

13 SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010) (“[R]equiring disclosure of such information 

deters and helps expose violations of other campaign finance restrictions, such as those barring contributions from 

foreign corporations or individuals.”). See also Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005) (“By virtue of their authority to disburse funds and file disclosure reports 

and to amend those reports, treasurers of committees are in the best position to carry out the requirements of a 

conciliation agreement such as paying a civil penalty, refunding or disgorging contributions, and amending reports.”) 

14 331 U.S. 461, 464 (1947).

15 See, e.g., United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997); United States v. Telluride Co., 146 F.3d 

1241, 1248 (10th Cir.1998). 

16 FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 1996); FEC v. Nat’l Right to Work Comm., 916 F. Supp. 10, 

14–15 (D.D.C. 1997).

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investigate and bring enforcement actions against individuals for campaign-finance violations, 

even if the conduct is decades old. Adopting that position would erode fundamental notions of 

fairness and due process. As Commissioners have written elsewhere:

Statutes of limitations exist to protect defendants against just this kind of case, 

where stagnant or unduly delayed claims undermine fair adjudication. When 

investigations or lawsuits are based on long-forgotten conduct, the passage of time 

hampers defendants’ ability to raise an adequate defense: evidence has been lost, 

memories have faded, and witnesses have disappeared. Statutes of limitations are 

especially important for campaign-finance law. Political campaigns and 

committees are, by their nature, often temporary enterprises without permanent 

structures or personnel, and reconstituting their activities from far in the past often 

poses significant investigatory obstacles.17

For these reasons, the Commission should forswear any enforcement case past § 2462’s five-year 

limitations period. Individuals wishing to engage in the political process should not have to rely 

on the FEC’s beneficence to escape a government investigation for historical conduct. The public 

will be better served by an agency that abides by the binding statute of limitations, and that must 

put up or shut up when it comes to enforcing our campaign-finance laws. 

_________________________________ April 29, 2021 

Sean J. Cooksey Date

Commissioner

17 Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor, III at 3 (March 18, 2021), MUR 7181 (Independent Women’s Voice) (citations omitted). 

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