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FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Debbie Wasserman Schultz for Congress and ) MUR 7125 

Lawrence Wasserman in his official capacity ) 

as treasurer, et al. ) 

 ) 

 

 

STATEMENT OF REASONS OF VICE CHAIR ALLEN DICKERSON AND 

COMMISSIONER JAMES E. “TREY” TRAINOR, III

The Complaint in this Matter alleges that during the 2016 election cycle Representative

Debbie Wasserman Schultz, who was then serving as Chair of the Democratic National Committee 

(“DNC”) and was a candidate for reelection to the House of Representatives from Florida’s 23rd 

Congressional District, impermissibly used DNC staff and resources to support her congressional 

campaign. Our Office of General Counsel (“OGC”) recommended that the Commission dismiss 

the allegations that the DNC made, and Wasserman Schultz’s principal campaign committee (the 

“Committee”) accepted and failed to report, excessive in-kind contributions in violation of 52 

U.S.C. §§ 30104 and 30116, and that Wasserman Schultz violated 52 U.S.C. § 30116(f) by 

accepting excessive in-kind contributions. OGC also recommended that the Commission find no 

reason to believe concerning two additional allegations: that Wasserman Schultz violated 52 

U.S.C. §§ 30124(a) by fraudulently misrepresenting campaign authority and that the DNC violated 

52 U.S.C. § 30116(d) by making contributions in a primary election. 

All commissioners agree that these allegations should be dismissed, but views diverge as 

to why. Ultimately, four commissioners voted to dismiss the allegations as to all Respondents as 

an exercise of the Commission’s prosecutorial discretion.

1 We, however, dissented. Where, as 

here, the statute of limitations has unambiguously run, the Commission lacks jurisdiction under 

our enabling statute. Consequently, we have no discretion to exercise, and this Matter should have 

been dismissed on that basis alone. 

I. Factual Background 

The Complaint’s allegations stem from emails released by Wikileaks following an alleged 

hack of the DNC during the 2016 elections.2 The emails purport to contain conversations between 

1 Certification (July 13, 2021), MUR 7125 (Debbie Wasserman Schultz for Congress, et al.).

2 See DNC Resp. at 1; Committee Resp. at 1-2. 

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DNC staff, members of Wasserman Schultz’s campaign staff, and agents of SKDK, a vendor 

providing communications consulting services to the DNC.3 The emails primarily appear to reflect 

conversations regarding how Wasserman Schultz’s campaign committee should respond to various 

questions pertaining to her congressional campaign.4 

Based on these documents, the Complaint alleges that the DNC made, and Wasserman 

Schultz and the Committee accepted and did not report, in-kind contributions in the form of 

services performed by DNC staffers.5 The Complaint also alleges that Wasserman Schultz’s use 

of DNC staff and resources resulted in her “willfully and knowingly participat[ing] in or 

conspir[ing] to participate [in a] plan to undermine [Complainant’s] congressional campaign, in 

violation of the Act’s fraudulent misrepresentation provision.”6

After reviewing the record, OGC concluded that the services provided by DNC staff and 

associated consultants were directed toward Wasserman Schultz’s role as Chair of the DNC, and 

not provided to her campaign committee or intended to support the Congresswoman in her role as 

a candidate.7

 Accordingly, OGC recommended that the Commission dismiss the allegations. 

While OGC’s legal analysis may very well be correct, it is beside the point. Because the 

alleged activity occurred more than five years ago, the statute of limitations has expired and, with 

it, our authority to consider the Complaint’s merits.8 

II. Analysis 

Our enforcement actions are subject to the default five-year statute of limitations codified 

at 28 U.S.C. § 2462. This is a settled question of law,

9 and neither the Complainant nor OGC has 

suggested that an alternative statute of limitations is applicable here.

3 See Compl. Exs. 1-11; SKDK Resp. at 1.

 

4 See Compl. Exs. 1-11.

5 Compl. at 10-11. 

6 Id. at 8-10. 

7 First General Counsel’s Rpt. at 9.

8 The First General Counsel’s Report advised the Commission that the statute of limitations expired on April 1, 

2021, although the relevant emails date from May 2016 – as the Report acknowledges. First General Counsel’s Rpt. 

at 1, 4. But whether the statute of limitations expired on April 1 or May 31 is immaterial: the Commission did not 

vote on this Matter until July 13, 2021. Certification (July 13, 2021), MUR 7125 (Debbie Wasserman Schultz for 

Congress, et al.). 

9 See FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 1996) (“We hold that § 2462 applies to FEC actions for the 

assessment or imposition of civil penalties under FECA.”); see also CREW v. FEC, 236 F. Supp. 3d 378, 383, 392 

(D.D.C. 2017) (“The statute of limitations for FECA actions is five years.”) (citing 28 U.S.C. § 2462).

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We exercise only the powers Congress has delegated to us, subject to such limitations as 

it chooses to impose.10 The statute of limitations is one such constraint. Put simply, the decision 

whether to dismiss this Matter is not a question committed to our judgment. And where we are 

prohibited by statute from taking action in a Matter, the invocation of Heckler v. Chaney is a 

poor fit.11 Heckler acknowledges as much, noting that an agency balances a “number of factors” 

when deciding to exercise its prosecutorial discretion.12 These factors include assessing “whether 

agency resources are best spent on this violation or another, whether the agency is likely to 

succeed if it acts, whether the particular enforcement action requested best fits the agency’s 

overall policies, and, indeed, whether the agency has enough resources to undertake the action at 

all.”13 As these examples suggest, Heckler contemplates circumstances where an agency has the 

option of proceeding with enforcement and must decide whether doing so is the wisest course. 

Furthermore, our own guidance weighs against invoking prosecutorial discretion once the 

statute of limitation has run. According to the FEC Guidebook, it is appropriate for the 

Commission to exercise its discretion “when the seriousness of the alleged conduct is not sufficient 

to justify the likely cost and difficulty of an investigation to determine whether there is probable 

cause to believe a violation in fact occurred, or the evidence is sufficient to support a reason to 

believe finding but the violation is minor and has already been remedied or is not likely to be 

repeated.”14 Again, prosecutorial discretion is appropriate in instances where the Commission 

could pursue enforcement action but has decided not to do so. Such is not the case here.

Finally, there are prudential reasons to acknowledge our lack of jurisdiction, dismiss the 

matter, and close the file. Where the statute of limitations has run, little legal analysis is required, 

potentially saving significant resources at our already overburdened agency. Relatedly, a straight 

jurisdictional dismissal avoids the temptation to opine on elements of the record that have no 

bearing on our ultimate authority to proceed.15

10 See 52 U.S. Code § 30106(b).

11 See Heckler v. Chaney, 470 U.S. 821, 832 (1985).

12 Id. at 831.

13 Id. 

14 Guidebook for Complainants and Respondents on the FEC Enforcement Process at 12-13, FED. ELECTION 

COMM’N (May 2012).

15 For instance, two of our colleagues have explained their position in this Matter with special reference to the 

provenance of the emails relied upon by the Complaint. See Statement of Reasons of Chair Shana M. Broussard and 

Commissioner Steven T. Walther, MUR 7125 (Wasserman Schultz, et al). While acknowledging the statute of 

limitations, they do so only at the end of the last paragraph of their brief statement. And they explain that, in their 

view, “[t]aken together or separately, the source of the hacked emails and the expiration of the statute of limitations 

are factors that weigh against further consideration of this matter.” But where there is no jurisdiction, there is no 

weighing to be done. In our view, the better course is to leave such dicta for a future matter. 

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III. Conclusion 

Because 28 U.S.C. § 2462 deprives the Commission of jurisdiction in this Matter, we 

would have dismissed on that basis alone.

_________________________________ _________________________ 

Allen Dickerson Date

Vice Chair

 

_________________________________ _________________________ 

James E. “Trey” Trainor III Date

Commissioner

August 24, 2021

August 24, 2021

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