USCA Case #21-1213 Document #2008923 Filed: 07/21/2023 Page 1 of 10 

United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued January 18, 2023 Decided July 21, 2023 

No. 21-1213 

JILL L. STEIN, DR. AND JILL STEIN FOR PRESIDENT, 

PETITIONERS 

v. 

FEDERAL ELECTION COMMISSION, 

RESPONDENT 

On Petition for Review of an Order 

of the Federal Election Commission 

Oliver B. Hall argued the cause and filed the briefs for 

petitioners. 

Shaina Ward, Attorney, Federal Election Commission, 

argued the cause for respondent. With her on the brief were 

Kevin Deeley, Associate General Counsel, and Jacob S. Siler, 

Assistant General Counsel. 

Before: HENDERSON, WILKINS, and KATSAS, Circuit 

Judges. 
 

 

 

 

 

 

USCA Case #21-1213 Document #2008923 Filed: 07/21/2023 Page 2 of 10 

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Opinion for the Court by Circuit Judge KATSAS. 

KATSAS, Circuit Judge: The federal government funds 

certain expenses incurred by presidential candidates at specific 

times during their primary campaigns. Jill Stein, who ran for 

President in 2016, contends that a temporal limit on this 

funding unconstitutionally discriminates against minor-party 

candidates. Stein also contests an administrative ruling that she 

forfeited the right to document certain costs of winding down 

her campaign, which could have offset a repayment obligation 

that she owed the government. We deny her petition. 

I 

A 

The Presidential Primary Matching Payment Account Act 

makes public funds available for the campaigns of presidential 

primary candidates. 26 U.S.C. §§ 9031–42. Under the Act, 

candidates may receive funds to match individual contributions 

up to $250. Id. § 9034(a). A candidate may use these funds to 

defray qualifying expenses incurred in connection with her 

primary campaign. Id. §§ 9032(9), 9038(b). Except for 

expenses associated with winding down a campaign, these 

expenses must be incurred during specific times known as the 

matching payment period. Id. §§ 9032(6), 9038(a); 11 C.F.R. 

§ 9034.11(a). 

The end of the matching payment period depends on 

whether the candidate’s party selects its nominee at a national 

convention. If it does, the period ends when a nominee is 

selected. 26 U.S.C. § 9032(6). If it does not, the period ends 

on the earlier of that date or the last day of the last national 

convention held by a major party. Id. If a candidate seeks the 

nomination of both a party that selects its nominee at a national 

convention and one that does not, the matching payment period 

ends on the later of the two statutory possibilities. FEC 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Advisory Op. No. 2000-18 at 3–4 (Aug. 11, 2000). For such 

candidates, the matching payment period thus ends no later 

than the end of the national conventions. 

The Federal Election Commission must audit every 

campaign that receives public funds under the Act. 26 U.S.C. 

§ 9038(a). If the audit reveals that the candidate received 

excess funds or used funds for an unauthorized purpose, the 

candidate must repay those amounts. Id. § 9038(b). 

Regulations outline the audit process. After considering 

materials from its staff and the candidate, the FEC issues an 

audit report that includes any repayment determination. 11 

C.F.R. § 9038.1(d)(1). The candidate may seek administrative 

review of the determination within 60 days. To do so, she must 

“submit in writing ... legal and factual materials demonstrating 

that no repayment, or a lesser repayment, is required.” Id. 

§ 9038.2(c)(2)(i). The “failure to timely raise an issue” in these

written materials “will be deemed a waiver of the candidate’s 

right to raise the issue at any future stage of proceedings 

including any petition for review.” Id. 

B 

At its national convention on August 6, 2016, the Green 

Party nominated Jill Stein for President. But this nomination 

did not qualify Stein for a spot on many states’ general-election 

ballots. In those states, Stein sought to access the ballot 

through petition initiatives and by seeking the nomination of 

individual state parties. Stein pursued these efforts until 

September 9, 2016, the latest state deadline for her to so 

qualify. In connection with her primary campaigns and ballotaccess efforts, Stein accepted over $590,000 in public funds. 

The FEC issued its audit report in April 2019. It 

determined that Stein owed the government $175,272. This 

calculation assumed that Stein’s matching payment period 

ended on August 6, 2016, when Stein secured the Green Party 
 

 

 

 

 

 

 

 

 

 

 

 

 

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nomination, which was after the two major-party conventions. 

The calculation also reflected one offset for winding down 

costs incurred through August 2018 and a second, estimated 

offset for later winding down costs. The report stated that the 

estimate “will be compared to actual winding down costs and

will be adjusted accordingly.” App. 14.

In June 2019, Stein sought administrative review of the 

repayment determination. As relevant here, she argued that the 

Fifth Amendment required extending her matching payment 

period from August 6 to September 9, the last possible date for 

her to qualify to appear on a state general-election ballot. And 

she asserted that she would have no repayment obligation if the 

period were so extended. In a single sentence, Stein also stated 

that “other findings concerning the nature of winding down 

expenses ... cannot survive scrutiny.” App. 26.

After a substantial delay caused by the lack of a quorum, 

the Commission granted review and set a hearing date in 

February 2021. A week before the hearing, Stein submitted 

evidence of winding down costs not previously considered. 

After the hearing, Stein submitted more such evidence. 

In September 2021, the FEC issued its final repayment 

determination, which again fixed her obligation at $175,272. 

The agency rejected Stein’s arguments for extending the 

matching payment period. It further held that Stein had 

forfeited any argument for recognizing additional winding 

down costs to offset the repayment amount. 

Stein sought review in this Court. We have jurisdiction 

under 26 U.S.C. § 9041. 

II 

Stein first contends that the Act defines the matching 

payment period in a way that unconstitutionally discriminates 

against minor-party candidates. As explained above, the period 
 

 

 

 

 

 

 

 

 

 

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ends no later than the end of the national conventions. For 

major-party candidates, Stein reasons, this cutoff ensures 

funding until the nominee has secured access to every state’s

general-election ballot. But no such guarantee protects minorparty candidates who, even if they secure a nomination at a 

national convention, still must seek ballot access through stateparty primary campaigns or petition drives. If those activities 

extend beyond the national conventions, as happened in 2016, 

the cutoff prevents minor-party candidates—and only minorparty candidates—from receiving funding for campaign 

activities necessary to secure access to all states’ generalelection ballots. 

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court 

considered various equal-protection challenges to the limits on 

public funding for general and primary campaigns in 

presidential elections. Under the scheme for general-election 

campaigns, major-party candidates receive more money than 

candidates of minor or new parties. See id. at 88. The funding 

distinctions depend on the percentage of the popular vote 

received by each party in the last election cycle: major parties 

are those that received at least 25% of the popular vote; minor 

parties are those that received between 5% and 25%; and new 

parties are those that received less than 5%. Id. at 87. 

Candidates of new parties receive no public funds unless the 

candidate wins at least 5% of the popular vote in the election at 

issue. See id. at 89. The challengers objected that this 

differential treatment unconstitutionally discriminates against 

minor and new parties, but the Court disagreed. See id. at 97. 

The Court held that restrictions on public funding are 

constitutional if they further an important government interest 

and do not “unfairly or unnecessarily burden[] the political 

opportunity of any party or candidate.” Buckley ̧ 424 U.S. at 

95–96. The Court concluded that Congress’s “interest in not 

funding hopeless candidacies with large sums of public 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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money” is important enough and “necessarily justifies the

withholding of public assistance from candidates without 

significant public support.” Id. at 96. So too does “the 

important public interest against providing artificial incentives 

to splintered parties and unrestrained factionalism.” Id. 

(cleaned up). The Court further stressed that the funding 

scheme does not reduce the strength of nonmajor parties 

“below that attained without any public financing,” for any 

party remains “free to raise money from private sources.” Id. 

at 99. And as for relative burdens, a candidate accepting public 

funds must agree to expenditure limits that are constraining for 

major-party candidates but “largely academic” for others. Id. 

Finally, the Court noted that the challenged funding restrictions 

were less constraining than previously upheld state laws 

“limiting places on the ballot to those candidates who 

demonstrate substantial popular support.” Id. at 96. 

The funding limits at issue here easily survive review 

under these standards. Primary elections, no less than general 

elections, implicate the important government interests in 

limiting public funding for candidates with slim support. And 

the Green Party received only 0.4% of the popular vote in the 

2012 presidential election—far less than the 5% cutoff that 

justified denying any public funds to support Stein’s generalelection campaign in 2016. See Buckley, 424 U.S. at 87–88; 26 

U.S.C. § 9004. If Congress could permissibly deny all public 

funding for that campaign based on the lack of widespread 

support for the Green Party, then Congress could also take the 

less restrictive step of offering Stein funding as a primary 

candidate that was less generous than the funding provided to 

primary candidates of major parties. 

Moreover, the Act did not even weaken Green Party 

candidates, in absolute terms or relative to major-party 

candidates. Nothing prevented Stein from declining public 

funds or raising money from private sources after her matching 
 

 

 

 

 

 

 

 

 

 

 

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payment period ended. Moreover, Stein faced the same basic 

choice as do general-election candidates: (1) raise and spend 

all the private funds you can, or (2) accept matching funds and 

agree to expenditure limits. 26 U.S.C. § 9035. Buckley 

explained that for the general election, the applicable 

expenditure limits do not affect minor-party candidates but 

severely constrain major-party candidates, thus benefitting 

minor-party candidates on average. Stein offers no reason to 

suspect that the expenditure limits for primary campaigns 

operate any differently. To the contrary, in recent primary 

election cycles, leading candidates of the major parties have 

declined matching funds and the ensuing expenditure limits.

1 

Relative to those candidates, the funding scheme clearly 

strengthens the position of minor and new party candidates. 

Because the public funding limits at issue are 

indistinguishable from those upheld in Buckley, we reject 

Stein’s equal-protection challenge. 

III 

Stein next argues that the FEC arbitrarily refused to 

consider her winding down costs during the administrativereview process. Applying its regulations, the Commission 

found that Stein had forfeited this issue by failing to develop it 

adequately in her written request for administrative rehearing. 

That determination was not arbitrary. 

1 See 2016 Presidential Matching Fund Submissions, 

https://www.fec.gov/campaign-finance-data/presidential-matchingfund-submissions/2016-presidential-matching-fund-submissions/ 

(last visited June 19, 2023); 2012 Presidential Matching Fund 

Submissions, https://www.fec.gov/campaign-finance-data/preside 

ntial-matching-fund-submissions/2012-presidential-matching-fundsubmissions/ (last visited June 19, 2023). During the 2020 primary 

season, the FEC lacked a quorum and therefore was unable to 

approve any funding for presidential candidates. 
 

 

 

 

 

 

 

 

 

 

 

 

 

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To contest a repayment determination on rehearing, a 

candidate must “submit in writing” any “legal and factual 

materials demonstrating that no repayment, or a lesser 

repayment, is required.” 11 C.F.R. § 9038.2(c)(2)(i). And the 

“failure to timely raise an issue” in these “written materials” is 

“deemed a waiver of the candidate’s right to present the issue

at any future stage of proceedings.” Id. In Robertson v. FEC, 

45 F.3d 486 (D.C. Cir. 1995), we held that the Commission 

may insist on strict compliance with this issue-preservation 

requirement. See id. at 491. 

The FEC reasonably concluded that Stein’s written request 

for administrative review did not adequately raise the issue of 

additional winding down costs. The request mentioned 

winding down costs only in a single sentence: “[I]t will be

shown that the other findings concerning the nature of winding 

down expenses ... cannot survive scrutiny.” App. 26. And 

Stein submitted no supporting evidence. Under this Court’s

forfeiture standards, Stein’s enigmatic remark would not be 

enough to preserve her argument that the audit’s estimate of 

winding down costs was too low. See, e.g., United States v. 

McGill, 815 F.3d 846, 909 (D.C. Cir. 2016) (“woefully

undeveloped arguments are forfeited”); City of Waukesha v. 

EPA, 320 F.3d 228, 250 n.22 (D.C. Cir. 2003) (argument raised 

“only summarily, without explanation or reasoning” is

forfeited). And if we ourselves would hold that Stein’s written

submission was not enough to preserve this argument, we 

cannot fault the FEC for reaching the same conclusion. 

In response, Stein claims to have addressed winding down 

costs earlier in the administrative process, in negotiating with 

the FEC’s audit staff and in contesting its draft audit report

before the Commission. But as shown above, FEC regulations 

required her to reassert the issue in her written submission for 

administrative review. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Stein next argues that the Commission should be estopped 

from claiming forfeiture because its audit report stated that the 

winding down costs “estimated” for the period between 

September 2018 and July 2019 “will be compared to actual

winding down costs and will be adjusted accordingly.” App.

14. We do not read this statement to relieve Stein of her duty 

to address winding down costs in her request for administrative 

review, which was filed near the end of that period. 

Finally, Stein contends that she could not have forfeited 

any argument related to winding down costs incurred after she 

requested administrative review in June 2019. We recognize 

that Stein could not predict the exact amount of future winding 

down costs. But she could have done much more to alert the 

FEC that she expected those costs to exceed the estimates in 

the audit report—and to do so by a substantial amount. For 

example, Stein claims that between September 2018 and July 

2019 she blew past the Commission’s estimated winding down 

costs by over $150,000. In June 2019, she could have 

documented most of those costs and could have given at least 

a rough estimate of any further winding down costs expected 

in the future, which was then more than 2.5 years after the 

general election. Finally, even if winding down costs were 

continuing to accrue after June 2019, Stein could have filed a 

petition for rehearing from the Commission’s final repayment

determination in September 2021. See 11 C.F.R. § 9038.5(a). 

And in that petition, she could have explained why those laterarising costs “were not and could not have been presented

during the original determination.” Id. § 9038.5(a)(1)(iii).2 

2 Stein has moved this Court to supplement the administrative 

record with the written materials that she tried to submit to the FEC 

after its hearing on administrative review. Because we uphold the 

agency’s forfeiture determination, we deny Stein’s motion to 

supplement as moot. 
 

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IV 

The matching payment period definition was 

constitutional as applied to Stein, and the FEC’s forfeiture

holding was not arbitrary. We therefore deny the petition for 

review. 

So ordered.