FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

October 1, 2021 

VIA ELECTRONIC MAIL 

Harry Kresky, Esq. 

Law Office of Harry Kresky 

128 Binninger Road 

Shushan, NY 12873 

Re: Dr. Jill Stein and Jill Stein for President (LRA # 1021) 

Dear Mr. Kresky: 

The Commission has considered the response submitted on behalf of Dr. Jill Stein 

and Jill Stein for President (the “Committee”) to the Commission’s repayment 

determination. On September 30, 2021, the Commission determined, after administrative 

review, that Dr. Stein and the Committee must repay $175,272 to the United States 

Treasury. Dr. Stein and the Committee must repay this amount within 30 calendar days 

after service of this determination. 11 C.F.R. § 9038.2(c)(3), (d)(2). 

Enclosed is a Statement of Reasons that sets forth the legal and factual basis for 

the Commission’s determination. 11 C.F.R. § 9038.2(c)(3). Judicial review of the 

Commission’s determination is available pursuant to 26 U.S.C. § 9041. You may also 

file a petition for rehearing with the Commission within 20 calendar days of service of 

this determination. 11 C.F.R. §§ 9038.2(h), 9038.5(a). If you have any questions 

regarding the Commission’s determination, you may contact me at (202) 694-1533 or at 

jblume@fec.gov. 

Sincerely, 

Joshua Blume 

Attorney 

Policy Division 

Enclosure 
 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of

Statement of Reasons in Support of

Repayment Determination After

Administrative Review – Dr. Jill Stein,

Jill Stein for President

)

) LRA 1021

)

)

)

)

CERTIFICATION

I, Laura E. Sinram, Acting Secretary and Clerk of the Federal Election

Commission, do hereby certify that on September 30, 2021, the Commission

decided by a vote of 4-2 to take the following actions in LRA 1021:

1. Determine that Dr. Stein must repay the United States Treasury the sum

of $175,272.

2. Approve the Statement of Reasons, as recommended in the

Memorandum to the Commission dated August 13, 2021.

3. Approve the appropriate letter.

Commissioners Broussard, Cooksey, Dickerson, and Weintraub voted

affirmatively for the decision. Commissioners Trainor and Walther dissented.

Attest:

September 30, 2021

Date Laura E. Sinram

Acting Secretary and Clerk of the

Commission
 

 

 

 

 

 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

Dr. Jill Stein ) LRA 1021 

Jill Stein for President ) 

STATEMENT OF REASONS IN SUPPORT OF REPAYMENT DETERMINATION 

AFTER ADMINISTRATIVE REVIEW 

I. SUMMARY OF REPAYMENT DETERMINATION AFTER ADMINISTRATIVE 

REVIEW 

Pursuant to 26 U.S.C. § 9038(b)(1) and (3), on September 30, 2021, the Federal Election 

Commission determines that Dr. Jill Stein and Jill Stein for President (“Committee”) must repay 

$175,272 to the United States Treasury, representing surplus public funds in the Committee’s 

accounts and public funds received in excess of entitlement. The Commission orders that Dr. 

Stein repay the $175,272 within 30 calendar days after service of this repayment determination. 

11 C.F.R. § 9038.2(c)(3), (d)(2). 

II. PROCEDURAL BACKGROUND 

A. The Commission’s Initial Determination That the Candidate Must Repay 

$175,272 to the United States Treasury. 

Dr. Stein sought the nomination of the Green Party of the United States (“U.S. Green 

Party”) for the Office of President of the United States at its national nominating convention at 

the same time that it sought the nomination of other independent state parties that were 

scheduled to hold their elections and conventions on later dates. 

Dr. Stein applied for public funds, and the Commission determined on April 13, 2016 

that she was eligible to receive public funds. On August 6, 2016, the Green Party of the United 

States held its national nominating convention and nominated Dr. Stein to be its presidential 
 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 2 

candidate in the 2016 election. The Commission determined that the date of the nominating 

convention — August 6, 2016 — was the date on which Dr. Stein would no longer be eligible to 

receive public funds for the purpose of seeking the nomination. Commission Certification in the 

Matter of Date of Ineligibility — Jill Stein for President, LRA 1021 (Aug. 12, 2016). This date 

is known as the “date of ineligibility” or “DOI.” 11 C.F.R. § 9033.5. The Commission notified 

the candidate of its DOI determination on August 17, 2016. Letter from Margaret Forman, 

Attorney, to Ms. Jill Stein re: Date of Ineligibility for Public Funds (LRA 1021) (Aug. 17, 2016). 

By the conclusion of Dr. Stein’s campaign, she had received $456,036 in matching fund 

payments as of the DOI and had received an additional $134,900 in matching fund payments on 

January 18, 2017, for a total amount of $590,936 in matching fund payments. Attachment 1, at 

7, n.11 (Apr. 16, 2019). 

Following the conclusion of Dr. Stein’s campaign, the Commission conducted a 

mandatory audit of the Committee’s finances in accordance with 26 U.S.C. § 9038(a). As a 

result of this audit, the Commission initially determined that the candidate had a surplus of funds 

at DOI, and that the candidate must repay $175,272 to the United States Treasury. There were 

two components to the repayment determination: 1) the public funds portion of the surplus in 

the Committee’s accounts as of the candidate’s DOI and 2) the public funds received in excess of 

entitlement after the candidate’s DOI. 

The Commission found that the Committee had a surplus as of the DOI of $200,856. 

Attachment 1, at 15. The Commission calculated the Committee’s surplus based on the 

statement of net outstanding campaign obligations (“NOCO Statement”) that the Committee was 

required to file after the Commission’s DOI determination. Id. at 14; 11 C.F.R. § 9034.5. The 
 

 

 

 

 

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NOCO Statement reflects the difference between the Committee’s reported assets and liabilities 

as of the candidate’s DOI. 11 C.F.R. § 9034.5. The Committee’s liabilities may include costs 

for winding down expenses.1 Id. § 9034.11. The Commission accordingly included winding 

down expenses in calculating the net outstanding campaign obligations as of the date of DOI 

based on estimates and documentation that the Committee made available at the time of the 

audit. Following the audit, the Commission prepared a verified NOCO Statement, reproduced 

on the next page:2 

1 Winding down expenses are costs associated with the termination of political activity associated with the 

candidate’s campaign. 11 C.F.R. § 9034.11(a). Such costs may include costs associated with complying with 

post-election requirements of the Federal Election Campaign Act or the Matching Payment Act and administrative 

costs associated with winding down activity, such as office space rental, office supplies and staff salaries. Id. 

Campaigns may use public funds to pay for these expenses, and therefore the candidate’s statement of net 

outstanding campaign obligations may account for such costs, up to a certain limit. Id. §§ 9034.11(b) (reciting 

limitations on allowance for winding down costs), 9034.5(b)(2) (including estimated winding down costs in 

statement of net outstanding campaign obligations). 

2 The NOCO Statement reproduced here is identical to the NOCO Statement as it appears in the 

Commission’s Final Audit Report, except for footnote 4, below, which omits one sentence that originally appeared 

in that footnote: “This amount will be compared to actual winding down costs and will be adjusted accordingly.” 

Attachment 1, at 14. At the time that the NOCO was originally prepared, this statement would have been 

accurate. However, the Commission at this point in the process would not undertake such a comparison and Dr. 

Stein and the Committee have waived the issue (see below), thus exhausting their administrative remedies. 
 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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Statement of Reasons 

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Jill Stein for President 

Statement of Net Outstanding Campaign Obligations 

As of August 6, 2016 

As determined at August 31, 2018 

Assets 

Cash in Bank $ 792,9353 

Accounts Receivable 13,289 

Physical Assets @ 60% depreciation 4,200 

Total Assets $ 810,424 

Liabilities 

Accounts Payable for Qualified Campaign Expenses as of 8/6/16 $ (237,602) 

Loan Payable as of 8/6/2016 ( 40,000) 

Actual Winding Down Costs (12/9/16 – 8/31/18) (262,611) 

Estimated Winding Down Costs (9/1/18 – 7/31/2019) (69,355)4 

Total Liabilities $ (609,568) 

Net Outstanding Campaign Obligations – Surplus $ 200,856 

3 Amount includes contributions dated prior to DOI and deposited after DOI. 

4 Estimated winding down costs for future reportable periods only. Estimated winding down presented in 

the Preliminary Audit Report was reduced from $100,880 to $69,335 to reflect the remaining winding down period. 
 

 

 

 

 

 

 

 

 

 

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The Commission further found that because Dr. Stein already had a surplus as of the 

DOI, the United States Treasury’s additional $134,900 public funds payment to the Committee 

on January 18, 2017 exceeded her entitlement to public funds. Attachment 1, at 20. 

The Commission used a pro-rata ratio5 (.2010) to calculate the public funds portion of the 

$200,856 surplus. Id. at 15, n.13. The public funds portion was $40,372 ($200,856 x .2010).6 

Id. See also 26 U.S.C. § 9038(b)(3); 11 C.F.R. § 9038.3(c)(1). The Commission added to this 

the entire $134,900 payment of public funds received in January 2017 for a total repayment 

obligation of $175,272 ($134,900 + $40,372). Attachment 1, at 10. Accordingly, on April 16, 

2019, the Commission made an initial determination that the Committee must repay $175,272 to 

the United States Treasury. Id. at 11, 19. 

B. The Committee Requests Administrative Review of The Commission’s Initial 

Determination. 

The Committee submitted a written response on June 17, 2019, requesting administrative 

review of the Commission’s initial repayment determination and an oral hearing. Attachment 2. 

5 In calculating the amount of public funds that must be repaid in the event of a surplus, the Commission 

uses the amount equal to that portion of the surplus bearing the same ratio to the total surplus that the total amount 

of public funds the candidate received bears to the total deposits made to the candidate’s accounts. 11 C.F.R. § 

9038.3(c)(1). “Total deposits” means all deposits to all candidate accounts minus transfers between accounts, 

refunds, rebates, reimbursements, checks returned for insufficient funds, proceeds of loans and other similar 

amounts. Id. § 9038.3(c)(2). The Commission treats all funds in all accounts maintained by a candidate as a 

mixed pool of private and public funds, and accordingly uses the ratio described to determine the portion of the 

amounts in the accounts that are public funds. Kennedy for President Comm. v. FEC, 734 F.2d 1558, 1564 (private 

contributions and public funds are a “commingled pool of federal and private monies”). 

6 Normally, this amount would have been payable within 30 days of the DOI. 11 C.F.R. § 9038.3(c)(1). 

However, in this case, the Commission was not aware of the existence of the surplus until after the audit had been 

conducted. Indeed, had the Commission been aware of the surplus, it would not have authorized the additional 

payment of public funds in January 2017. 
 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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The Commission held the oral hearing on February 25, 2021.7 Attachment 3. Before 

addressing the Committee’s arguments on the initial repayment determination, we must address a 

procedural issue. At the oral hearing, the Committee argued that the Commission should revise 

the NOCO Statement to include additional winding down expenses. On February 18 and 19, 

before the oral hearing, and between March 1 and March 4, after the oral hearing, the Committee 

submitted new supporting documents that detailed additional winding down expenses. 

Because winding down expenses may be included in the liabilities portion of the 

NOCO Statement, any additional winding down expenses could reduce the Committee’s surplus 

and, in turn, the amount of the repayment. See 11 C.F.R. § 9034.5(b)(2); Attachment 1, at 14. 

However, making a legal argument for including additional winding down expenses in the 

NOCO Statement and submitting supporting factual materials at this stage of the adjudication 

process raises the procedural issue of whether the Committee properly raised, and therefore 

preserved, the issue for Commission’s consideration. 11 C.F.R. § 9038.2(c)(2)(i). We 

therefore first determine whether the Committee properly raised this issue in its written 

response. 

The Commission lost its quorum of at least four voting members on August 30, 2019. The Commission 

may not grant a request for an oral hearing on a repayment determination without the approval of at least four 

Commissioners. 11 C.F.R. § 9038.2(c)(2)(ii). See also generally 52 U.S.C. § 30106(c) (Four affirmative votes 

required to take any action with respect to chapters 95 and 96 of title 26, dealing with public financing). Apart 

from a period of approximately one month extending from May 2020 to early July 2020, the Commission remained 

without a quorum until December 2020. 

7 
 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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Statement of Reasons 

Page 7 

III. THE COMMITTEE WAIVED ANY ISSUES OR ARGUMENTS IT MAY HAVE 

PERTAINING TO WINDING DOWN EXPENSES BY FAILING TO RAISE 

THEM IN ITS REQUEST FOR ADMINISTRATIVE REVIEW. 

The Commission concludes that the Committee did not properly raise the issue, and, 

therefore, the Committee waived its argument of including additional winding down expenses in 

a revised NOCO Statement. 

When a publicly financed candidate wishes to challenge an initial repayment 

determination, it must submit, in writing, legal and factual materials demonstrating that no 

repayment, or a lesser repayment, is required, within 60 days after service of the notice of the 

repayment determination. 11 C.F.R. § 9038.2(c)(2)(i). If the candidate does not timely raise an 

issue in this written submission, then that issue is considered to have been waived for all further 

stages of the proceeding, including in subsequent litigation. Id. 

Although the Committee timely filed its written request for administrative review within 

60 days of the Commission’s initial repayment determination, the Committee did not raise the 

argument regarding the additional winding down expenses until the oral hearing, nearly two 

years later. At the oral hearing, the Committee argued that the Committee’s statements in the 

written submission that “it will be shown that the other findings concerning the nature of 

winding down expenses, misstatement of financial activity and disclosure of debts likewise 

cannot survive scrutiny” and "[a]s will be demonstrated in a further submission coming directly 

from the Committee, were it not for the improper imposition of the August 6, 2016 DOI, no 

repayment would be called for" sufficed to raise an issue regarding winding down expenses. 

See Attachment 2, at 1, 4; Attachment 3, at 17-18. However, such general statements without 

any explanation or reasoning are insufficient to raise an issue for the Commission’s 

consideration under 11 C.F.R. § 9038.2(c)(2)(i). As the U.S. Court of Appeals for the District 

of Columbia Circuit observed in the course of upholding section 9038.2(c)(2)(i)’s requirement 
 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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that all issues must be raised in the written submission, the purpose of such a requirement is to 

ensure that the Commission has timely notice of the nature of any challenges to its authority. 

Robertson v. FEC, 45 F.3d 486, 491 (D.C. Cir. 1995) (upholding the Commission’s refusal to 

consider a committee’s argument because the committee failed to make the argument in its 

written submission).8 The D.C. Circuit reasoned that the purpose and effect of section 9038.2(c) 

(2)(i) is similar to the court’s traditional refusal to consider positions taken during oral argument 

unsupported by the principal brief. Id. In considering whether the Committee’s general 

statement suffices to raise an issue under the regulation, we follow the D.C. Circuit’s analogy to 

judicial procedure and note that the courts also require more than a general statement of the kind 

here to preserve an issue or argument for judicial consideration.9 See City of Waukesha v. 

Environmental Protection Agency, 320 F.3d 228, 250-51 n.22 (D.C. Cir. 2003) (considering 

argument raised by petitioner in reply brief waived, because argument was made in opening 

brief “only summarily, without explanation or reasoning” and citing Tribune Co. v. Federal 

Communications Commission, 133 F.3d 61, 69 n.8 (D.C. Cir. 1998) (noting party’s arguments 

must be sufficiently developed to avoid waiver)). See also United States v. Hunter, 739 F.3d 

492, 495 (10th Cir. 2013) (claim inadequately developed in opening brief is waived). 

8 The D.C. Circuit upheld a similar pleading requirement in 11 C.F.R. § 9038.5(a)(1)(iii), which requires 

candidates to state why they could not have raised arguments or issues earlier in the process when petitioning the 

Commission for rehearing on its administrative determination. Fulani v. FEC, 147 F.3d 924, 927 (D.C. Cir. 1998). 

9 See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (“orderly procedure and good 

administration require that objections to the proceedings of an administrative agency be made while it has 

opportunity for correction in order to raise issues reviewable by the courts.”). 
 

 

 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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Here, no argument was made in the written submission, even summarily.10 Merely 

mentioning the subject of winding down expenses in the written submission, without any 

explanation, reasoning, or argument — indeed, purporting to defer any elaboration to a later time 

— is insufficient to raise an issue for administrative review. The statement that “it will be 

shown that the other findings concerning the nature of winding down expenses, misstatement of 

financial activity and disclosure of debts and obligations likewise cannot survive scrutiny,” 

Attachment 2, at 1, without more, does not give the Commission any notice of the arguments that 

the Committee is raising about the winding down expenses. See Robertson, 45 F.3d at 491 

(D.C. Cir. 1995). The Commission, therefore, declines to consider the Committee’s argument 

for including additional winding down expenses in the NOCO Statement.

11 

10 In its Request for Consideration of a Legal Question, submitted during the audit process, the Committee 

asked: “Should committees be allowed to incur Winding Down expenses and other Primary expenses after the DOI 

if they are clearly incurred to improve compliance with existing laws and regulations or if they are clearly required 

in the course of seeking the qualification for the ballot in various states?” See Letter to Commission from Matt 

Kozlowski, Director of Compliance, Jill Stein for President (Jan. 12, 2018), at 4 (§ IV.2). The Commission noted at 

the time that the Committee had presented no argument regarding this question, but that in any event, the 

Commission’s regulations addressed the incurrence and payment of winding down costs, including costs associated 

with compliance with statutory post-election requirements and other specifically defined administrative costs. See 

Memorandum to Commission from Erin Chlopak, Request for Consideration of a Legal Question Submitted by Jill 

Stein for President (LRA # 1021) (Feb. 28, 2018), at 2. In the Request for Legal Consideration phase, the 

Committee asked whether winding down expenses may be incurred after the DOI, whereas here, the Committee has 

proffered documentation of winding down expenses that it seeks to incorporate into the Commission’s analysis and 

thus the two presentations are not the same. Even if they were the same, however, the presentation of a question 

relating to winding down expenses during the earlier phase of the process does not suffice to preserve the issue for 

Commission review during the administrative review phase. The Commission’s regulations state that the issues 

must be raised in the written materials seeking administrative review of the repayment determination. 11 C.F.R. § 

9038.2(c)(2)(i). 

11 The Committee had ample opportunity to submit adequate documentation relating to winding down 

expenses during the audit process, but it chose not to do so. See Attachment 1, at 17 (noting Committee’s 

failure to submit adequately documented winding down expenses). In particular, the Committee could have 

submitted this documentation during the audit fieldwork, after the audit exit conference and in response to the 

Preliminary Audit Report. The Committee, however, provided no explanation as to why it failed to submit this 

documentation during these stages of the audit. 
 

 

 

 

 

 

 

 

 

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IV. AFTER ADMINISTRATIVE REVIEW, THE COMMISSION DETERMINES 

THAT AUGUST 6, 2016, IS THE PROPER DATE OF INELIGIBILITY AND 

THEREFORE THE COMMITTEE MUST REPAY $175,272 IN PUBLIC FUNDS. 

The Commission concludes that the candidate’s date of ineligibility is August 6, 2016. 

As result of this conclusion, the Commission determines that the candidate must repay $175,272 

to the United States Treasury. 

The connection between the DOI and the repayment is as follows: A candidate may 

only use public funds to pay for “qualified campaign expenses.” 11 C.F.R. § 9034.4(a). A 

qualified campaign expense is any expense that a candidate incurs in connection with her 

campaign for the nomination during the period within which she may receive public funds.12 26 

U.S.C. § 9032(9); 11 C.F.R. § 9032.9. As a general matter, general election ballot access 

expenses are qualified campaign expenses for minor party candidates. See, e.g., Advisory 

Opinion 1995-45 (Hagelin for President). To be considered a qualified campaign expense, 

however, the expense must be incurred on or before the candidate’s DOI.13 See 11 C.F.R. § 

9032.9(a)(1). 

The Commission includes qualified campaign expenses on the NOCO Statement as 

liabilities. 11 C.F.R. § 9034.5(b). Any liabilities on the NOCO Statement may reduce the 

amount of the surplus and, consequently, the candidate’s repayment obligation. Id. §§ 

9034.5(a), 9038.3(c)(1). 

12 Winding down expenses, subject to certain restrictions, are considered qualified campaign expenses. 11 

C.F.R. §§ 9034.4(a)(3), 9034.11(a). 

13 Winding down expenses may be incurred after the candidate’s DOI. 11 C.F.R. § 9034.11(a) (includes 

costs of terminating campaign, including complying with post-election requirements of FECA and Matching 

Payment Act). 
 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

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The Committee incurred certain ballot access expenses after the DOI. The Commission, 

therefore, did not include these expenses in the final, verified, NOCO Statement. See 

Attachment 1, at 15 (explaining non-inclusion of ballot expenses incurred after DOI as main 

difference between Committee’s and Commission’s NOCO Statements); 11 C.F.R. § 

9032.9(a)(1). Moving the DOI to a later date, as the Committee argues, would mean that 

additional ballot access expenses would be included on the NOCO Statement, potentially 

reducing or eliminating the surplus of public funds that the candidate would be obligated to 

repay. 

Under Commission regulations, a candidate’s eligibility to receive matching funds ends 

on whichever of the following dates occurs first: the date the candidate becomes inactive, 

receives insufficient votes, or reaches the end of the matching payment period. Id. § 9033.5. 

Given that Dr. Stein remained active during the nomination process and ultimately received 

sufficient votes to be the party’s nominee, the relevant date for purposes of determining DOI 

here is the date that the matching payment period ended. 

The matching payment period represents the time during which an eligible candidate may 

receive public funds for the purpose of seeking the nomination of a party for the office of the 

President of the United States.

14 See 26 U.S.C. § 9032(6). While this period always begins on 

the start of the calendar year during which the general election will occur, the end of the period 

depends upon the nomination process the candidate undergoes. If a party nominates a candidate 

during a national convention, then the matching payment period ends on the date the candidate is 

Candidates may continue to receive matching payments after this period for the sole purpose of paying debt 

incurred during the matching payment period. 11 C.F.R. §§ 9033.5, 9034.5. 

14 
 

 

 

 

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nominated. 26 U.S.C. § 9032(6); 11 C.F.R. § 9032.6(a). If a party does not use a national 

nominating convention to nominate its candidate, then the period ends either on the date the 

party nominates the candidate or on the last day of the last national convention held by a major 

party during the election year, whichever is earlier. 26 U.S.C. § 9032(6)(A), (B). 

Dr. Stein’s candidacy raises the issue of which method should be used to determine the 

end of the matching period because she sought nomination both from a national committee of a 

party at a national convention, and from parties that did not nominate candidates at a national 

convention. 11 C.F.R. § 9032.6(a), (b). Dr. Stein’s 2016 letter of candidate agreements and 

certifications (“9033 Letter”)15 stated that she was seeking the nomination of a number of 

political parties, including the U.S. Green Party, a national committee which held its national 

convention in Austin, Texas on August 4-7, 2016. 52 U.S.C. § 30101(14); see Advisory 

Opinion 2001-13 (Green Party of the United States) (concluding that the U.S. Green Party is a 

“national committee” of a political party); Green Party of the United States FEC Form 1, filed 

May 29, 2012, http://docquery.fec.gov/pdf/322/12951903322/12951903322.pdf. In her 9033 

Letter, Dr. Stein certified that she also sought the nomination of several unaffiliated state green 

parties without ballot lines, with ballot access deadlines of June 1, 2016 (Kansas), July 11, 2016 

(South Dakota), August 1, 2016 (Vermont), and August 15, 2016 (Utah). Dr. Stein also 

certified that she sought the nomination of the Peace and Freedom Party, which was not a 

national committee and would be holding its state nominating convention in California on 

The initial step in the process of becoming eligible to receive public funds for a presidential candidate is to 

submit a letter in which the candidate makes certain certifications and agrees to comply with certain requirements of 

the matching payment program. See 26 U.S.C. § 9033(a), (b); 11 C.F.R. §§ 9033.1, 9033.2. 

15 
 

 

 

 

 

 

 

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August 13, 2016.16 The last day of the last national convention held by a major party in 2016 

was July 28, 2016. In such circumstances, the Commission has previously given the candidate 

the benefit of the later independent party nomination dates rather than the earlier date of the 

national nominating convention, provided that such dates were not later than the date of the last 

day of the last major party nominating convention. Advisory Opinion 1984-25 (Johnson) at 2; 

see also Advisory Opinion 1984-11 (Serrette), Advisory Opinion 2000-18 (Nader 2000). 

Here, the date of the U.S. Green Party’s national nominating convention was August 6, 

2016. The last day of the last major party nominating convention was July 28, 2016. Dr. Stein 

also was a candidate for the nomination of several other independent state parties. However, 

because none of them held a national nominating convention, Dr. Stein could not receive the 

benefit of any state nomination or ballot access date after July 28, 2016, the last date of the last 

major party nominating convention. 26 U.S.C. § 9032.6; 11 C.F.R. § 9032.6; Advisory Opinion 

1984-25 (Johnson) at 2. Thus, the most advantageous DOI that the Commission could use to 

calculate Dr. Stein’s DOI under the Matching Payment Act and Commission regulations was 

August 6, 2016, the date of the U.S. Green Party’s nominating convention. Accordingly, the 

Commission determines that August 6, the more advantageous of the two possibilities, is Dr. 

Stein’s DOI. This is consistent with the Commission’s regulations and past practice to apply the 

date that results in the candidate receiving the full benefit of the longest permissible matching 

During the Commission’s audit, the Committee submitted a Request for Consideration of a Legal Question, 

in which it averred that the final ballot access deadline it was working to meet was September 9, 2016. 

16 
 

 

 

 

 

 

 

 

 

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payment period to which she is entitled, rather than artificially shortening that period merely 

because the candidate also seeks nominations that are decided at earlier dates.17 

The Committee argues that the candidate’s DOI should not be August 6, 2016,18 but one 

of the later general election ballot access dates, if not the latest, instead.19 It raises four points in 

support of this argument. First, the Committee argues that Advisory Opinion 1975-53 (Bradley 

for Senate) established the principle that the quest for access to the general election ballot is 

effectively a primary election for independent and non-major party candidates and that a publicly 

financed independent or non-major parity presidential candidate may therefore choose the latest 

of the ballot access dates established by the states. The Committee also points to a Commission 

regulation that allows independent and non-major party candidates to designate one of three 

possible dates, and therefore potentially the latest of those dates, as the date of the candidate’s 

17 “Given its conclusion in Advisory Opinion 1984-11, the Commission is of the view that Ms. Johnson’s 

concurrent campaign for the national convention nomination of the Citizens Party should not result in a shorter 

matching payment period for her, than for a candidate who only seeks the presidential nominations of political 

parties at the state level, rather than at the national level.” Advisory Opinion 1984-25 (Johnson) at 2. 

18 The Committee argues that the Commission has been inconsistent in first resolving the Committee’s 

request for consideration of a legal question by concluding that August 7, 2016 was the DOI, and then subsequently 

concluding that the DOI was August 6. The Commission’s first certification declaring the DOI to be August 7 was 

the result of a technical error committed by the Office of the General Counsel in its recommendation memorandum 

to the Commission, which the OGC subsequently corrected upon discovery of the error. See Memorandum from 

Erin Chlopak to Commission, Correction to Memorandum on Request for Consideration of a Legal Question by Jill 

Stein for President (LRA #1021) (Apr. 24, 2018). 

19 The Committee challenged the DOI determination during the audit, first by invoking the Commission’s 

Program on Requesting Consideration of Legal Questions, see Policy Statement Regarding a Program for 

Requesting Consideration of Legal Questions by the Commission, 84 Fed. Reg. 36602 (July 29, 2019), and then in 

its responses to the Commission’s draft Preliminary and Draft Final audit reports that preceded the issuance of the 

final audit report. The Committee argued throughout these processes that because it had to incur ballot access 

expenses to obtain general election ballot qualification for Dr. Stein, and because the Commission has concluded 

that the incurrence of such expenses is related to the primary election, the Commission should include these 

expenses when calculating the Committee’s net outstanding campaign obligations. The Commission rejected the 

Committee’s arguments both during the Request for Consideration of a Legal Question procedure and in the course 

of the audit. See Certification, Correction to Memorandum on Request for Consideration of a Legal Question by 

Jill Stein for President (LRA 1021) (May 2, 2018); Attachment 1, at 14-15, 18. 
 

 

 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 15 

primary election.20 See 11 C.F.R. § 100.2(c)(4). Second, the Committee asserts that the 

Commission, in later advisory opinions, particularly Advisory Opinions 1984-11 (Serrette) and 

1984-25 (Johnson), upon which the Commission relied in establishing the DOI, deviated without 

explanation from the approach of Advisory Opinion 1975-53 (Bradley for Senate) by limiting the 

assignment of the DOI using ballot access dates to the last day of the last major party convention. 

Third, in the Committee’s view, the Commission did not adequately explain its change of 

position and thus has acted arbitrarily and capriciously, thus violating due process. See 

Attachment 2, at 4 (citing Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) and Fox TV 

Stations, Inc. v. Federal Communications Commission, 280 F.3d 1027, 1044-45 (D.C. Cir. 

2002), mod. Fox Television Stations, Inc. v. Federal Communications Commission, 293 F.3d 537 

(2002)). Finally, the Committee argues that the ostensibly new, more restrictive position 

established in Advisory Opinions 1984-11 (Serrette) and 1984-25 (Johnson) undermines the 

Commission’s earlier asserted view that it seeks to administer the election laws in a manner that 

fosters equal treatment of major party and minor party or independent candidates. It therefore 

allegedly denies the Committee the equal protection of the laws. Id (citing Riddle v. 

Hickenlooper, 742 F.3d 922 (10th Cir. 2014) and Green Party of Connecticut v. Garfield, 616 

F.3d 213 (2d

 Cir. 2010)). 

The Commission disagrees with the Committee’s interpretation of the relevant 

authorities. Advisory Opinion 1975-53 (Bradley for Senate) applied a different statute — the 

Federal Election Campaign Act — and did not address the principles for calculating the DOI for 

The regulation provides that the candidate may choose one of three dates to designate as the date of the 

primary election: “(i) The day prescribed by applicable State law as the last day to qualify for a position on the 

general election ballot . . .. (ii) The date of the last major party primary election, caucus, or convention in that State . 

. . (iii) [i]n the case of non-major parties, the date of the nomination by that party. . .” 11 C.F.R. § 100.2(c)(4). 

20 
 

 

 

 

 

 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 16 

a publicly financed candidate under the Matching Payment Act.21 Thus, Advisory Opinion 

1975-53 (Bradley for Senate) is materially distinguishable from the present circumstances. See 

11 C.F.R. § 112.5(a)(2) (a person may rely on an advisory opinion if the person is involved in the 

specific transaction or activity which is indistinguishable in all its material aspects from the 

transaction or activity with respect to which such advisory opinion is rendered). Further, the 

two statutory schemes in this context are different. Even though 11 C.F.R. § 100.2(c)(4) and the 

1975 advisory opinions specify that under FECA’s definition of primary election, the minor 

party candidate may choose the latest of three possible dates to designate as the primary election, 

the Matching Payment Act, which is concerned with delimiting the period of time during which a 

candidate may be considered eligible to receive public funding, instructs the Commission to use 

the earlier of the possible dates for determining the DOI: either the date the party nominates the 

candidate or the last day of the last major party convention in the relevant election year where 

the party does not nominate the candidate at a national nominating convention. 26 U.S.C. § 

9032(6); 11 C.F.R. § 9032.6(b). Because the Matching Payment Act and Commission 

regulations specify what date may serve as the DOI, the Commission has no discretion to use a 

different, later, DOI as the Committee argues.22 

21 Advisory Opinion 1975-53 (Bradley for Senate) does not mention the Matching Payment Act, concerned as 

it is, as its title indicates, with a Senate campaign. Advisory Opinion 1975-44 (Socialist Workers 1976 National 

Campaign Committee) contains a passage recognizing the impact of the public funding provisions, however: “Since 

the date pertaining to petition qualification vary from State to State, the Commission considers it necessary to 

prescribe a uniform date when, for purposes of 18 U.S.C. § 608(b), the petition process ends for minor party 

presidential candidates. The Commission concludes that the prescribed date should be when the presidential 

nominee last selected before the general election is nominated by a national nominating convention of a major 

political party. It is noted that this date coincides with the date when an eligible minor party presidential candidate, 

entitled to public funding before the general election, may properly expend or obligate funds “to further his election” 

(citing 26 U.S.C. § 9002(11), (12)).” Id. at 2. 

22 Because section 100.2(c)(4) and the 1975 advisory opinion apply a different statute under materially 

distinguishable circumstances, there is no change of mind or position to explain. See Motor Vehicle Mfrs. Assn. v. 
 

 

 

 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 17 

In Advisory Opinion 1984-25 (Johnson), the Commission explained that the definition of 

“matching payment period” “appears to contemplate, if not require, that [a non-major party] 

candidate have an opportunity to establish eligibility and collect matchable contributions for a 

period of time that closely approximates the period available to major, party candidates.” 

Advisory Opinion 1984-25 (Johnson) at 2. Congress sought to ensure parity between major and 

non-major party candidates with respect to the length of time that each would be eligible to 

receive and spend public funds. Consequently, instead of creating favoritism between major 

party and minor party candidates, the predicate of the Committee’s equal protection claim, the 

Matching Payment Act seeks to avoid creating such favoritism. Riddle, 742 F.3d at 929-30 

(invalidating statute creating different contribution limits for major party and write-in candidates 

on ground that it evinces favoritism). In any event, even if the application of § 9032(6) results 

in some disadvantage to minor party candidates vis-à-vis major party candidates, the remedy 

would lie with Congress, rather than with the Commission. 

The Commission has not neglected the relevant statutory and regulatory analysis in 

arriving at its conclusion.23 See Common Cause, 906 F.2d at 706-07 (no indication that 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (agency may change mind but must explain why reasonable 

to do so); Fox TV Stations, Inc. v. Federal Communications Commission, 280 F.3d 1027, 1044-45 (D.C. Cir. 2002) 

(same in context of informal rulemaking), mod. Fox Television Stations, Inc. v. Federal Communications 

Commission, 293 F.3d 537 (2002). 

The Committee also argues that the Commission’s 2016 DOI determination was inconsistent with the 

Commission’s determination in 2012, when Dr. Stein also received public matching funds. The Committee notes 

that Dr. Stein’s DOI in 2012 was September 6, the date of the state of Alabama’s deadline for Dr. Stein to qualify 

for a position on the general election ballot in that state, even though Dr. Stein had obtained the U.S. Green Party’s 

nomination by national nominating convention in August of that year. But this is not so. In 2012, Dr. Stein was 

nominated as candidate for president by the U.S. Green Party on July 14, 2012 at the party’s national nominating 

convention. The last day of the last national convention held by a major party in 2012 was September 6, 2012, 

which coincided with Alabama’s deadline for ballot qualification. The Commission determined that the latest 

permissible date of ineligibility was the last day of the last major party convention — September 6, 2012 — and thus 

that date, rather than the July 14 nomination date, determined the end of Dr. Stein’s matching payment period for the 

23 
 

 

 

 

 

 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 18 

Commission applied regulatory affiliation factors to analysis of affiliation issue). Rather, the 

Commission considered the Matching Payment Act, as well as regulations implemented under 

these statutes, in arriving at its DOI determination. 

To the extent, therefore, that the candidate opposes the Commission’s application of the 

Matching Payment Act to determine that the candidate’s national nominating convention date is 

the DOI, the candidate’s quarrel is with the statute itself. Section 9032(6) of the Matching 

Payment Act is a duly enacted law of Congress and no court has undermined or otherwise 

questioned its legal validity or its application to the issue presented here. In the absence of a 

court decision finding section 9032(6) unconstitutional, the Commission lacks the authority to 

make an administrative determination premised on an act of Congress being considered 

unconstitutional. See Johnson v. Robison, 415 U.S. 361, 368 (1974) (adjudication of 

constitutionality is generally outside an administrative agency’s authority); Robertson v. FEC, 45 

F.3d 486, 489 (D.C. Cir. 1995) (noting, in the context of the Commission’s administrative 

enforcement process that “[i]t was hardly open to the Commission, an administrative agency, to 

entertain a claim that the statute which created it was in some respect unconstitutional.”); 

Advisory Opinion 2018-07 (Mace) at 5. As the Commission has previously recognized in other 

contexts, “[b]ecause no court has invalidated the [statutory] limitation . . . on constitutional 

grounds, we are required to give the [] provision[] full force.” Advisory Opinion 2012-32 (Tea 

Party Leadership Fund et al.) at 3; cf Advisory Opinion 2011-12 (Majority PAC et al.) at 4 

(declining to interpret the Supreme Court’s decision in Citizens United v. FEC, 558 U.S. 310 

2012 presidential election. The Commission therefore applied the same methodology in both cases, choosing the 

latest of the available dates based upon the rules set forth in 26 U.S.C. § 9032(6). 
 

Dr. Jill Stein and Jill Stein for President (LRA 1021) 

Repayment Determination After Administrative Review 

Statement of Reasons 

Page 19 

(2010), as a basis for not applying statutory contribution limits that were not considered in that 

case). 

V. CONCLUSION 

The Commission determines that, within 30 days of service of this Repayment 

Determination After Administrative Review, Dr. Jill Stein and Jill Stein for President must repay 

public funds in the amount of $175,272 to the United States Treasury due to the existence of a 

surplus and to having received public funds in excess of entitlement. 26 U.S.C. § 9038(b)(1), 

(3); 11 C.F.R. §§ 9038.2(b)(1), 9038.3(c). 

ATTACHMENTS 

1. Final Audit Report of the Commission, approved Apr. 16, 2019. 

2. Committee’s Request for Administrative Review, dated June 17, 2019. 

3. Transcript of Hearing in the Matter of Administrative Review Hearing: Jill Stein 

Repayment Determination (LRA #1021), Agenda Document No. 21-10-A (Feb. 25, 2021). 
Final Audit Report of the 

Commission on 

Jill Stein for President 

(January 17, 2015 - December 31, 2016) 

Why the Audit 

Was Done 

Federal law requires 

the Commission to 

audit every political 

committee established 

by a candidate who 

receives public funds 

for the primary 

campaign. 1 The audit 

determines whether the 

candidate was entitled 

to all of the matching 

funds received, 

whether the campaign 

used the matching 

funds in accordance 

with the law, whether 

the candidate is entitled 

to additional matching 

funds, and whether the 

campaign otherwise 

complied with the 

limitations, 

prohibitions, and 

disclosure requirements 

of the election law. 

Future Action 

The Commission may 

initiate an enforcement 

action, at a later time, 

with respect to any of 

the matters discussed in 

this report. 

I 26 U.S.C. §9038(a). 2 These figures contain primary, general and recount activity. The general and recount activity combined 

accounted for approximately $9,590,974, or 78% of total receipts, and approximately $9,618,886 or 81% 

of total disbursements. See Committee Structure on p. l. 

About the Campaign (p. 3) 

Jill Stein for President is the principal campaign committee for Jill 

Stein, a candidate for the Green Party nomination for the office of 

President of the United States. The Committee is headquartered in 

Lexington, Massachusetts. For more information, see the chart on the 

Campaign Organization, p. 3. 

Financial Activity2 (p. 4) 

• Receipts 

o Contributions from Individuals $11,010,439 

o Matching Funds Received 456,035 

o Loans Received 40,000 

o Offsets to Operating Expenditures 716,735 

Total Receipts $12,223,209 

• Disbursements 

o Operating Expenditures $ 11,885,379 

o Transfers to Other Authorized 

Committees 22,300 

o Fundraising Disbursements 15,156 

o Contribution Refunds 2,465 

o Other Disbursements 250 

Total Disbursements $11,925,550 

Commission Findings (p. 5) 

• Net Outstanding Campaign Obligations - Surplus (Finding 1) 

• Matching Funds Received in Excess of Entitlement (Finding 2) 

• Misstatement of Financial Activity (Finding 3) 

• Reporting of Debts and Obligations (Finding 4) 

Attachment 1, page 1 of25 
Final Audit Report of the 

Commission on 

Jill Stein for President 

(January 17, 2015- December 31, 2016) 

Attachment 1, page 2 of 25 
Table of Contents 

Page 

Part I. Background 

Authority for Audit 1 

Scope of Audit 1 

Committee Structure 1 

Commission Guidance 2 

Inventory of Campaign Records 2 

Audit Hearing 2 

Part n. Overview of Campaign 

Campaign Organization 3 

Overview of Financial Activity 4 

Part III. Summaries 

Commission Findings 5 

Summary of Amounts Owed to the United States Treasury 7 

Part IV. Commission Findings 

Finding 1. Net Outstanding Campaign Obligations - Surplus 8 

Finding 2. Matching Funds Received in Excess of Entitlement 16 

Finding 3. Misstatement of Financial Activity 17 

Finding 4. Disclosure of Debts and Obligations 20 

Attachment 1, page 3 of 25 
Part I 

Background 

Authority for Audit 

This report is based on an audit of Jill Stein for President (JSFP), undertaken by the Audit 

Division of the Federal Election Commission (the Commission) as mandated by Section 9038(a) 

of Title 26 of the United States Code. That section states, "After each matching payment period, 

the Commission shall conduct a thorough examination and audit of the qualified campaign 

expenses of every candidate and his authorized committees who received [matching] payments 

under section 9037." Also, Section 9039(b) of the United States Code and Section 9038. l(a)(2) 

of the Commission's Regulations state that the Commission may conduct other examinations and 

audits from time to time as it deems necessary. 

1 

Scope of Audit 

Unless noted in the Committee Structure section below, this audit examined JSFP's primary 

election activity only. The following areas were covered by this audit: 

1. The receipt of excessive contributions and loans. 

2. The receipt of contributions from prohibited sources. 

3. The receipt of transfers from other authorized committees. 

4. The disclosure of contributions and transfers received. 

5. The disclosure of disbursements, debts and obligations. 

6. The recordkeeping process and completeness of records. 

7. The consistency between reported figures and bank records. 

8. The accuracy of the Statement of Net Outstanding Campaign Obligations. 

9. The campaign's compliance with spending limits. 

10. Other campaign operations necessary to the review. 

Committee Structure 

JSFP was the only campaign committee authorized by Jill Stein (the Candidate) for the 2016 

Presidential election and conducted primary, general and recount activity for the Candidate. 

JSFP opened six bank accounts: one checking and one savings account for each activity. JSFP 

deposited contributions received before the Candidate's nomination into the primary checking 

account, and most contributions received after the nomination into the general checking account. 

JSFP received matching funds for its primary campaign. This audit covered JSFP's primary 

election activity to determine if the expenses were qualified campaign expenses defrayed in 

connection with the primary election. 3 

3 Under Title 26, this audit included an examination of JSFP's Statement of Net Outstanding Campaign Obligations 

based solely on JSFP's primary election activity for the purpose of determining the extent to which the Candidate 

was entitled to primary matching funds (Finding I). Due to the committee's structure, this audit also covered a 

Title 52 examination of JSFP's overall consistency between reported figures and bank activity, which included 

general and recount activity. For clarification, the Audit staff has indicated in Finding 3 - Misstatement of 

Financial Activity, those transactions that were not related to primary election activity. 

Attachment 1, page 4 of 25 
2 

Commission Guidance 

Request for Early Commission Consideration of a Legal Question 

Pursuant to the Commission's "Policy Statement Establishing a Program for Requesting 

Consideration of Legal Questions by the Commission," JSFP requested early consideration of 

two legal questions raised during the audit. The fust question pertained to whether the 

Commission's original determination of the Candidate's date of ineligibility (DOI) was proper. 

The second question was whether committees should be permitted to incur winding down 

expenses and other primary expenses after the DOI if they are clearly incurred to improve 

compliance with existing laws and regulations or if they are clearly required in the course of 

seeking the qualification for the ballot in various states.4 

The Commission concluded, by a vote of 4-0, to reaffirm JSFP's original DOI as August 6, 

2016.5 (See Finding 1, p. 8.) 

Inventory of Campaign Records 

The Audit staff routinely conducts an inventory of campaign records before it begins audit 

fieldwork. JSFP's records were materially complete when fieldwork commenced.6 

Audit Hearing 

JSFP declined the opportunity for a hearing before the Commission on the matters presented in 

this report. 

4 Although JSFP's request purported to identify three separate questions for review, two of the questions raised the 

same essential issue, which is whether the Commission's original DOI determination was proper. Therefore, 

those two questions were consolidated into a single question. 

5 JSFP presented no argument in its Request for Consideration of a Legal Question regarding the second question, 

however, the response to this question is addressed directly in the Commission's regulations. The regulations 

provide for the payment of winding down costs, i.e. costs associated with the tennination of political activity, 

including compliance with statutory post-election requirements and other specifically defined administrative 

costs. 11 CFR §§ 9034.4(a)(3) and 9034.11. Because the regulations directly address the payment of winding 

down costs, there was no need for the Commission to reach a determination on the second question in the request. 

6 The Audit staff encountered delays prior to fieldwork due to JSFP's inability to timely provide complete 

computerized information. 

Attachment 1, page 5 of25 
3 

Part II 

Overview of Campaign 

Campaign Organ ization 

Important Dates 

• Date of Registration July 14, 2015 

• Eligibility Period7 April 13, 2016 - August 6, 2016 

• Audit Coverage8 January 17, 2015 - December 31, 2016 

Headquarters Lexington, Massachusetts 

Bank Information 

• Bank Depositories One 

• Bank Accounts Six (One checking and one savings 

account each for primary, general and 

recount activity) 

Treasurer 

• Treasurer When Audit Was Conducted Steven Welzer (9/30/2015 - present) 

• Treasurer During Period Covered by Audit John W. Andrews (7/09/2015-9/29/2015) 

Steven Welzer (9/30/2015 - present) 

Manaj!ement Information 

• Attended Commission Campaign Finance No 

Seminar 

• Who Handled Accounting and Paid Staff 

Recordkeeping Tasks 

7 On March 28, 2016, the Candidate submitted a signed letter ( dated March 18, 2016 and subsequently revised on 

April 5, 2016)to the Commission seeking to become eligible to receive Presidential primary matching funds and 

agreeing that she and her authorized committee would comply with the conditions set forth in 11 CFR §9033.l(b). 

A threshold submission was submitted on March 28, 2016, and the Commission certified the Candidate as eligible 

to receive matching funds on April 13, 2016. The period during which the Candidate was eligible for matching 

funds ended on August 6, 2016, the Candidate's DOI. 

8 The audit covered the period from JSFP's first bank deposit on January 17, 2015. The Audit staff also conducted 

limited reviews of receipts and expenditures after December 31, 2016, to determine whether the Candidate was 

eligible to receive additional matching funds. 

Attachment l, page 6 of 25 
4 

Overview of Financial Activity 

(Audited Amounts)9 

Cash on hand ca), January 17, 2015 $ 0 

Receiots 

0 Contributions from Individuals10 11,010,439 

0 Matching Funds Received11 456,035 

0 Loans Received 40,000 

0 Offsets to Operating Expenditures 716,735 

Total Receipts $ 12,223,209 

Disbursements 

0 Operating Expendittrres 11,885,379 

0 Transfers to Other Authorized Committees 22,300 

0 Fundraising Disbursements 15,156 

0 Contribution Refunds 2,465 

0 Other Disbursements 250 

Total Disbursements $11,925,550 

Cash on band @ December 31, 2016 $ 297,659 

9 These figures contain primary election, general election and recount activity. See Committee Structure on p. l. 

10 JSFP received approximately 50,924 contributions from 42,486 individuals totaling $2,135,681 for primary 

election activity. 11 As of the Candidate's DOI, August 6, 2016, JSFP had received matching funds totaling $456,036. JSFP received 

an additional $134,900 on January 18, 2017, for a total of $590,936. 

Attachment 1, page 7 of 25 
Part III 

Summaries 

5 

Commission Findings 

Finding 1. Net Outstanding Campaign Obligations -

Surplus 

The Audit staffs review of JSFP' s financial activity through December 31, 2016, and 

estimated winding down costs indicated that the Candidate had a surplus of funds, as of 

her DOI, in the amount of $200,856. Of this surplus amount, JSFP is required to make a 

pro rata repayment of $40,372. 

In JSFP's initial Statement of Net Outstanding Campaign Obligations (NOCO) filed 

during the matching fund period, cash on hand was understated and accounts payable and 

winding down expenses were both overstated. As such, JSFP's NOCO indicated an 

apparent deficit position and therefore eligible to receive matching funds. The Audit 

staff's analysis of the NOCO, however, determined that surplus funds were received and 

the Candidate was not eligible for all of the matching funds she received. The 

Preliminary Audit Report recommended that JSFP provide evidence that the Candidate 

did not have surplus funds as of her DOI. 

In response to the Preliminary Audit Report recommendation, JSFP disagreed it was in a 

surplus position and stated if the disallowed ballot access costs and recently updated 

winding down estimates were considered, it would instead be in a deficit position and 

therefore not be required to make a repayment. JSFP provided documentation and an 

updated NOCO to support its position. Based on this documentation and JSFP's 2017 

and 2018 reported activity on Schedule B (Itemized Disbursements), the Audit staff 

updated its NOCO to reflect increased ballot access costs incurred prior to DOI and 

increased winding down actual costs. These adjustments reduced the repayment amount, 

but the revised NOCO still reflected a surplus position. 

In response to the Draft Final Audit Report, JSFP maintained that it did not owe a 

repayment. No documentation was provided by JSFP to support this assertion. 

The Commission determined that $40,372 was repayable to the United States Treasury. 

(For more detail, seep. 8.) 

Finding 2. Matching Funds Received in Excess of 

Entitlement 

The Audit staff's NOCO statement, as presented in Finding 1, indicated a surplus 

position, as of August 6, 2016, the Candidate's DOI. Therefore, JSFP was not entitled to 

the matching fund payment of$134,900, it subsequently received on January 18, 2017. 

The Preliminary Audit Report recommended that JSFP provide evidence that the 

Candidate did not have surplus funds as of her DOI. 

Attachment 1, page 8 of 25 
6 

In response to the Preliminary Audit Report recommendation, JSFP provided 

documentation and an updated NOCO, and stated that it was entitled to all matching fund 

payments due to its increased winding down expenses, even if previously disallowed 

ballot access and other expenses were not considered. After the Audit staff incorporated 

the expenses that were documented as pertaining to the primary election into its revised 

NOCO, JSFP was still in a surplus position and therefore not entitled to the matching 

fund payment it received after the Candidate's DOI. 

In response to the Draft Final Audit Report, JSFP disagreed that the Candidate was in a 

surplus position. JSFP did not provide any documents to support its assertion. 

The Commission determined that $134,900 was repayable to the United States Treasury. 

(For more detail, see p. 16.) 

Finding 3. Misstatement of Financial Activity 

During audit fieldwork, a comparison of JSFP's reported financial activity with its bank 

records revealed a misstatement of receipts and disbursements for 2015 and 2016 and a 

misstatement of ending cash on hand in 2016. In 2015, JSFP understated its reported 

receipts and disbursements by $31,495 and $35,042 respectively~ and in 2016, JSFP 

understated its reported receipts, disbursements and ending cash on hand by $996,384, 

$800,310 and $192,527 respectively. The Preliminary Audit Report recommended that 

JSFP amend its disclosure reports to correct the misstatements. 

In response to the Preliminary Audit Report recommendation and the Draft Final Audit 

Report, JSFP stated it was in the process of amending its reports to correct the 

misstatements, but to date, no amended reports have been filed. 

The Commission approved a finding that JSFP misstated its financial activity for calendar 

years 2015 and 2016. (For more detail, seep. 17.) 

Finding 4. Disclosure of Debts and Obligations 

During audit fieldwork, the Audit staff identified debts totaling $17,015 not disclosed on 

Schedule D-P (Debts and Obligations), as required. The Preliminary Audit Report 

recommended that JSFP amend its reports to disclose the outstanding debt. 

In response to the Preliminary Audit Report recommendation and the Draft Final Audit 

Report, JSFP stated it was in the process of amending its reports to correct the disclosure 

of debts and obligations, but to date, no amended reports have been filed. 

The Commission approved a finding that JSFP did not disclose debts and obligations 

totaling $17,015. (For more detail, seep. 20.) 

Attachment 1, page 9 of 25 
Summary of Amounts Owed to the United 

States Treasury 

Finding 1 

.8 

Pro-rata portion of the Surplus Matching Funds $ 40,372 

Finding 2 

. 16 · 

Matching Funds Received in Excess of 

Entitlement 

$ 134,900 

Total Due United States Treasury $175,272 

Attachment l, page 10 of25 

7 
Part IV 

Commission Findings 

Finding 1. Net Outstanding Campaign Obligations -

Surplus 

Summary 

The Audit staffs review of JSFP' s financial activity through December 31, 2016, and 

estimated winding down costs indicated that the Candidate had a surplus of funds as of 

her DOI in the amount of $200,856. Of this surplus amount, JSFP is required to make a 

pro rata repayment of $40,372. 

8 

In JSFP's initial Statement of Net Outstanding Campaign Obligations (NOCO) filed 

during the matching fund period, cash on hand was understated and accounts payable and 

winding down expenses were both overstated. As such, JSFP's NOCO indicated an 

apparent deficit position and therefore eligible to receive matching funds. The Audit 

staffs analysis of the NOCO, however, determined that surplus funds were received and 

the Candidate was not eligible for all of the matching funds she received. The 

Preliminary Audit Report recommended that JSFP provide evidence that the Candidate 

did not have surplus funds as of her DOI. 

In response to the Preliminary Audit Report recommendation, JSFP disagreed it was in a 

surplus position and stated if the disallowed ballot access costs and recently updated 

winding down estimates were considered, it would instead be in a deficit position and 

therefore, not be required to make a repayment. JSFP provided documentation and an 

updated NOCO to support its position. Based on this documentation and JSFP's 2017 

and 2018 reported activity on Schedule B (Itemized Disbursements), the Audit staff 

updated its NOCO to reflect increased ballot access costs incurred prior to DOI and 

increased winding down actual costs. These adjustments reduced the repayment amount, 

but the revised NOCO still reflected a surplus position. 

In response to the Draft Final Audit Report, JSFP maintained that it did not owe a 

repayment. No documentation was provided by JSFP to support this assertion. 

The Commission determined that $40,372 was repayable to the United States Treasury. 

Legal Standard 

A. Net Outstanding Campaign Obligations (NOCO). Within 15 days after the 

candidate's date of ineligibility (see definition below), the candidate must submit a 

statement of "net outstanding campaign obligations." This statement must contain, 

among other things: 

• The total of all committee assets including cash on hand, amounts owed to the 

committee and capital assets listed at their fair market value; 

• The total of all outstanding obligations for qualified campaign expenses; and 

• An estimate of necessary winding-down costs. 11 CFR §9034.S(a). 

Attachment 1, page 11 of25 
B. Date of Ineligibility. The date of ineligibility is whichever of the following dates 

occurs first: 

• The day on which the candidate ceases to be active in more than one state; 

• The 30th day following the second consecutive primary in which the candidate 

receives less than 10 percent of the popular vote; 

• The end of the matching payment period, which is generally the day when the 

party nominates its candidate for the general election; or 

• In the case of a candidate whose party does not make its selection at a national 

convention, the last day of the last national convention held by a major party in 

the calendar year. 11 CFR §§9032.6 and 9033.5. 

C. Qualified Campaign Expense. Each of the following expenses is a qualified 

campaign expense. 

• An expense that is: 

o Incurred by or on behalf of the candidate ( or his or her campaign) during the 

period beginning on the day the individual becomes a candidate and 

continuing through the last day of the candidate's eligibility under 11 CFR 

§9033.5; 

o Made in connection with the candidate's campaign for nomination; and 

o Not incurred or paid in violation of any federal law or the law of the state 

where the expense was incurred or paid. 11 CFR §9032.9. 

• An expense incurred for the purpose of determining whether an individual should 

become a candidate, if that individual subsequently becomes a candidate, 

regardless of when that expense is paid. 11 CFR §9034.4. 

• An expense associated with winding down the campaign and terminating political 

activity. 11 CFR §9034.4(a)(3). 

9 

D. Value of Capital Assets. The fair market value of capital assets is 60% of the total 

original cost of the assets when acquired, except that assets that are received after the date 

of ineligibility must be valued at their fair market value on the date received. A 

candidate may claim a lower fair market value for a capital asset by listing the asset on 

the NOCO statement separately and demonstrating, through documentation, the lower 

fair market value. 11 CFR §9034.5(c)(l). 

E. Winding Down Costs. A primary election candidate who runs in the general election 

must wait until 31 days after the general election before using any matching funds for 

winding down costs, regardless of whether the candidate receives matching funds for the 

general election. 

11 CFR §9034.1 l(d). 

F. Documentation of Disbursements. Each candidate shall have the burden of proving 

that disbursements made by the candidate and/or her authorized committee are qualifie-d 

campaign expenses. 11 CFR §903 3 .11. 

G. Surplus. The Commission may determine through audits and examinations that the 

candidate's net outstanding campaign obligations, as defined in 11 CFR §9034.5, reflect 

a surplus. When a surplus is identified, the candidate shall, within 30 days of the 

ineligibility date, repay to the United States Treasury an amount which represents the 

Attachment l, page 12 of25 
10 

amount of matching funds contained in the candidate's surplus. The amount shall be an 

amount equal to that portion of the surplus which bears the same ratio to the total surplus 

that the total amount received by the candidate from the matching payment account bears 

to total deposits made to the candidate's accounts. The Commission will provide the 

candidate with a written notice of its repayment determination. 

11 CFR §§9038.2(b)(l)(ii) and (c)(l) and 9038.3(c)(l). 

H. Entitlement to Matching Payments after Date of Ineligibility. If, on the date of 

ineligibility a candidate has net outstanding campaign obligations, as defined under 11 

CFR §9034.5, that candidate may continue to receive matching payments for matchable 

contributions received and deposited on or before December 31st of the Presidential 

election year, provided that he or she still has net outstanding campaign debts on the day 

when the matching payments are made. 11 CPR §9034.l(b). 

Attachment 1, page 13 of25 
Facts and Analysis 

A. Facts 

The Candidate's DOI was August 6, 2016. The Audit staff reviewed JSFP's financial 

activity through December 31, 2016; analyzed actual and projected winding down 

costs; 12 and prepared the NOCO that appears below. 

Jill Stein for President 

Statement of Net Outstanding Campaign Obligations 

As of August 6, 2016 

As determined at August 31, 2018 

Assets 

Cash in Bank $ 792,935 [a] 

Accounts Receivable 13,289 

Physical Assets @ 60% depreciation 4,200 

Total Assets $810,424 

11 

Liabilities 

Accounts Payable for Qualified Campaign Expenses as of 8/6/ 16 $ (237,602) 

Loan Payable as of 8/6/2016 ( 40,000) 

Actual Winding Down Costs (12/9/16 - 8/31/18) (262,611) 

Estimated Winding Down Costs (9/1 /18 - 7 /3 I /20 I 9) ( 69,355) (bl 

Total Liabilities $ (609,568) 

Net Outstanding Campaign Obligations - Surplus $200,856 

Footnotes to NOCO Statement: 

(a] Amount includes contributions dated prior to DOI and deposited after DOI. 

[b] Estimated winding down costs for future reportable periods only. This amount will be 

compared to actual winding down costs and will be adjusted accordingly. Estimated 

winding down presented in the Preliminary Audit Report was reduced from $100,880 to 

$69,335 to reflect the remaining winding down period. 

12 The actual winding down costs were reviewed through August 31, 2018, the last date JSFP provided 

banking and disbursement documentation to support its actual winding down expenses. 

Attachment l , page 14 of 25 
12 

i. Surplus Pro-Rata Repayment Calculation 

The Audit staff's NOCO calculations indicated there were surplus funds of $200,856 

as of DOI. Of this amount, $40,372 ($200,856 x .201013

) is the pro-rata portion of 

the surplus that is repayable to the United States Treasury. 

ii. NOCO Differences: The primary differences between JSFP's NOCO and the 

NOCO prepared by the Audit staff are discussed below: 

a. Cash In Bank 

The primary difference between the assets section of the NOCO presented above 

and those prepared by JSFP is the cash in bank balance. JSFP understated cash by 

$313,079. Most of the understatement of cash represented funds received prior to 

the Candidate's DOI, but deposited after, with a m~jority consisting of 

contributions less than $200 made by credit card. Further, a majority of these 

credit card contributions were included in JSFP's receipts database as 

contributions made to the primary election and were reported as unitemized 

contributions. The remaining difference pertained to outstanding disbursement 

checks that had not cleared the bank as of DOI that were not included in JSFP's 

cash in bank calculation. The understatement of assets caused the NOCO 

statements to show a larger deficit and matching fund entitlement than was the 

case. 

b. Accounts Payable for Qualified Campaign Expenses 

1. Ballot Access Petitioning Expenses 

The primary difference between the accounts payable section of the 

NOCO presented on the previous page and those prepared by JSFP is with 

the amount of ballot access petitioning expenses. 14 JSFP included all 

ballot access petitioning expenses, including those incurred after DOI, 

thus overstating the amount calculated by the Audit staff by $255,671. 15 

As noted in the legal standards above, only expenses incurred on or before 

DOI can be considered qualified campaign expenses. Therefore, the Audit 

staff did not include ballot access petitioning expenses incurred after DOI 

in its calculation of the NOCO. Furthermore, in many instances, the 

incurrence dates of the ballot access petitioning expenses were not 

sufficiently documented by JSFP and JSFP made no additional 

documentation available. Due to the lack of documentation, the Audit 

staff also did not include these undocumented expenditures in its NOCO 

calculations. 

13 This figure (.2010), calculated pursuant to 11 CFR §9038.3(c)(l ), represents JSFP's repayment ratio and 

was calculated by dividing the total matching funds received as of DOI ($456,035) by the adjusted total 

deposits made to the candidate's accounts as of DOI ($2,269,118). Therefore, the repayment ratio was 

$456,035/$2,269,118 = 20.10%. 14 Ballot access petitioning is required for all states when a minor party candidate seeks to be included on 

the general election ballot for the state. Each state has unique petitioning requirements and cutoff dates, 

and some dates were subsequent to the Candidate's DOI. 

15 The Audit staff's review of all disbursements paid post DOI also resulted in the identification of 

additional expenses unrelated to ballot access that were not included in JSFP's NOCO accounts payable 

section. 

Attachment l , page 15 of 25 
13 

2. Winding Down Expenses 

The Audit staffs initial calculation of actual winding down expenses 

excluded expenses that were not adequately documented by JSFP. As of 

the date of the Preliminary Audit Report, JSFP had not provided banking 

and supporting disbursement documentation for winding down expenses 

made after August 1, 201 7. Therefore, the winding down expenses for 

the months not documented were initially reflected on the NOCO as $0.

16 

Estimated monthly winding down expenses only include future reporting 

periods. 

JSFP's NOCO also included winding down expenses that were incurred 

after DOI but before the end of the expenditure report period, December 

9, 2016, totaling $42,727. Since the Candidate participated in the general 

election, the Audit staff considered disbursements on or before December 

9, 201617 to be expenses pertaining to the general election, in accordance 

with 11 CFR §§9002.12(a) and 9034.1 l(d), and therefore did not include 

them on the NOCO as winding down expenses for the primary election. 

Both winding down expense adjustments discussed above reduce the 

amount of liabilities on the NOCO and therefore reduce the amount of the 

matching funds entitlement. 

B. Preliminary Audit Report & Audit Division Recommendation 

The Audit staff presented a preliminary NOCO statement and related work papers to the 

JSFP representative at the exit conference. The JSFP representative stated he would need 

to review the work papers to detennine why all credit card contributions had not been 

included in the cash on hand in the NOCO. He also stated he disagreed with how the 

ballot access petitioning costs were allocated on the NOCO and stated he based this on 

previous audit reports. The representative stated it was his understanding that all ballot 

access costs were primary election expenses regardless of the date they were incurred. In 

response to the exit conference, the JSFP representative provided documentation to 

support that certain ballot access petitioning costs were incurred prior to DOI. 

Subsequent to the exit conference, JSFP requested early consideration of two legal 

questions raised during the audit. The first question pertained to whether the 

Commission's original detennination of the Candidate's DOI was proper. The second 

question was whether committees should be pennitted to incur winding down expenses 

and other primary expenses after the DOI if they are clearly incurred to improve 

compliance with existing laws and regulations or if they are clearly required in the course 

of seeking the qualification for the ballot in various states. 18 

16 As of the date of the Preliminary Audit Report, the excluded months were August 2017 through July 

2018. 

17 General election date = November 8, 2016 + 31 days = December 9, 2016. 

18 Although JSFP's request purported to identify three separate questions for review, two of the questions 

raised the same essential issue, which is whether the Commission's original DOI determination was 

proper. Therefore, those two questions were consolidated into a single question. 

Attachment l, page 16 of 25 
14 

The Commission concluded, by a vote of 4-0, to reaffirm JSFP's original DOI as August 

6, 2016. 19 

The Preliminary Audit Report recommended that JSFP provide evidence that the audited 

NOCO was not in a surplus position. Absent such evidence, the Audit staff stated it 

would recommend that the Commission make a determination that $66,196, representing 

the pro-rata portion of the surplus, was repayable to the United States Treasury. 

C. Committee Response to Preliminary Audit Report 

In response to the Preliminary Audit Report recommendation, JSFP continued to 

maintain its position that ballot access laws in each state should dictate which expenses 

qualify as qualified campaign expenses for the primary election, and not necessarily the 

candidate's DOI. The Commission, however, concluded by a vote of 4-0 that JSFP's 

DOI was August 6, 2016. As noted in the legal standards above, only expenses incurred 

on or before DOI can be considered qualified campaign expenses. Therefore, the Audit 

staff did not include ballot access petitioning expenses incurred after DOI in its 

calculation of the NOCO. 

JSFP also provided documentation and an updated NOCO, which, when compared to its 

initial NOCO, reflected an overall increase in total assets of $332,051, the majority of 

which included an increase in cash on hand of $314,561. The Audit staff concurred with 

$313,079, with the difference of $1,482 being JSFP's overstatement of cash on hand. 

JSFP's updated NOCO also included an overall increase in total obligations of $294,820, 

all of which pertained to "estimated winding down expenses" that JSFP' s NOCO 

reflected as $516,789. JSFP did not provide a listing to support all of the winding down 

expenses to justify an increase. JSFP provided bank statements for primary and general 

election bank accounts only, some check copies written on primary, general and recount 

bank accounts, and accounting and payroll listings of selected expenses paid in 2017 and 

2018. However, none of this documentation included election designation information. 

This was important because JSFP paid certain winding down expenses, such as salary, 

that were fully documented with payroll processing reports but those reports did not 

include the amount allocated to the primary election for each pay-period and/or 

employee. To supplement JSFP's documentation, the Audit staff used its reports filed 

with the Commission to calculate the amount allocated by JSFP to the primary election. 

The Audit staffs analysis resulted in additional actual winding down expenses of 

$123,967 and a reduction in the estimated winding down expenses of $31,525. 

In addition to the analysis of winding down expenses, the Audit staff also reviewed 

invoices that were previously submitted and identified additional accounts payable 

expenses totaling $36,035. 

19 JSFP presented no argument in its Request for Consideration of a Legal Question regarding the second 

question, however, the response to this question is addressed directly in the Commission's regulations. 

The regulations provide for the payment of winding down costs, i.e. costs associated with the 

termination of political activity, including compliance with statutory post-election requirements and 

other specifically defined administrative costs. 11 CFR §§ 9034.4(aX3) and 9034.11. Because the 

regulations directly address the payment of winding down costs, there was no need for the Commission 

to reach a determination on the second question in the request. 

Attachment 1, page 17 of25 
15 

Although the Audit staff could not confirm JSFP's total obligations increase, it did verify 

additional accounts payable based on invoices, totaling $36,035, additional actual 

winding down expenses totaling $123,967, and a reduction in estimated winding down 

expenses of $31,525, for a net increase in obligations of $128,477 ($36,035 + 123,967 -

31,525), and updated the NOCO above accordingly. 

The updated NOCO reduced the amount of the surplus from $329,333 to $200,856 

however, a pro-rata repayment of the surplus was still required. 

D. Draft Final Audit Report 

The Draft Final Audit Report acknowledged JSFP's response to the Preliminary Audit 

Report. Based on that response the Audit staff updated the NOCO, which reduced the 

amount of the surplus. The Audit staff calculated a pro-rata repayment of the surplus as 

$40,372 ($200,856 X .2010). 

E. Committee Response to Draft Final Audit Report 

In response to the Draft Final Audit Report, JSFP maintained that it did not owe a 

repayment. According to JSFP, if the audited NOCO had included additional winding 

down costs, totaling $258,973, the Candidate's NOCO would have reflected a deficit 

amount totaling $58,117, and ultimately no repayment to the United States Treasury 

would be required. No documentation was provided by JSFP to support its assertion. 

Commission Conclusion 

On March 27, 2019, the Commission considered the Audit Division Recommendation 

Memorandum in which the Audit staff recommended that the Commission make a 

determination that a pro rata repayment of $40,372 is repayable to the United States 

Treasury.20 

The Commission approved the Audit staff's recommendation. 

20 JSFP also requested that the Commission delay making a repayment determination to give an 

opportunity to work with the Audit staff to resolve discrepancies it purports exist in the NOCO 

statement. The Commission rejected this request for a delay. 

it 

Attachment 1, page 18 of 25 
Finding 2. Matching Funds Received in Excess of 

Entitlement 

Summary 

The Audit staffs NOCO statement, as presented in Finding 1, indicated a surplus 

position, as of August 6, 2016, the Candidate's DOI. Therefore, JSFP was not entitled to 

the matching fund payment of $134,900, it subsequently received on January 18, 2017. 

The Preliminary Audit Report recommended that JSFP provide evidence that the 

Candidate did not have surplus funds as of her DOI. 

16 

In response to the Preliminary Audit Report recommendation, JSFP provided 

documentation and an updated NOCO, and stated that it was entitled to all matching fund 

payments due to its increased winding down expenses, even if previously disallowed 

ballot access and other expenses were not considered. After the Audit staff incorporated 

the expenses that were documented as pertaining to the primary election into its revised 

NOCO, JSFP was still in a surplus position and therefore not entitled to the matching 

fund payment it received after the Candidate's DOI. 

In response to the Draft Final Audit Report, JSFP disagreed that the Candidate was in a 

surplus position. JSFP did not provide any documents to support its assertion. 

The Commission determined that $134,900 was repayable to the United States Treasury. 

Legal Standard 

A. Entitlement to Matching Payments after Date of Ineligibility. If, on the date of 

ineligibility a candidate has net outstanding campaign obligations as defined under 11 

CFR §9034.5, that candidate may continue to receive matching payments for matchable 

contributions received and deposited on or before December 31st of the Presidential 

election year, provided that he or she still has net outstanding campaign debts on the day 

when the matching payments are made. 11 CFR §9034.1 (b ). 

B. Repayments. The Commission may determine that certain portions of the payments 

made to a candidate from the matching payment account were in excess of the aggregate 

amount of payments to which such candidate was entitled. Examples of such excessive 

payments include, but are not limited to, payments made to the candidate after the 

candidate's date of ineligibility where it is later determined that the candidate had no net 

outstanding obligations. 11 CFR §§9034.5 and 9038.2 (b)(l)(i). 

Facts and Analysis 

A. Facts 

On January 18, 2017, JSFP received its only post-DOI matching fund payment of 

$134,900. The Audit staff's NOCO calculations indicated, however, that JSFP was in a 

surplus position as of DOI and was not entitled to receive additional matching funds (see 

Finding 1, p. 8). Therefore, JSFP is required to make a dollar for dollar repayment of this 

entire matching fund payment to the United States Treasury. 

Attachment 1, page 19 of 25 
17 

B. Preliminary Audit Report & Audit Division Recommendation 

The Audit staff presented this matter to the JSFP representative at the exit conference in 

conjunction with the presentation of the audit calculated NOCO discussed in Finding 1 

above. JSFP's response pertaining to receipt of matching funds in excess of entitlement 

is also detailed in Finding 1 above. 

The Preliminary Audit Report recommended that JSFP provide evidence that it did not 

receive matching funds in excess of entitlement. Absent such evidence, the Audit staff 

stated it would recommend that the Commission make a determination that $134,900 was 

repayable to the United States Treasury. 

C. Committee Response to Preliminary Audit Report 

In response to the Preliminary Audit Report recommendation, JSFP provided 

documentation and an updated NOCO, and stated that even if all ballot access and other 

previously disallowed expenses were not considered primary election expenses, JSFP 

was still entitled to all matching fund payments it received due to its updated projections 

for winding down expenses 

D. Draft Final Audit Report 

The Draft Final Audit Report acknowledged JSFP's response but the Audit staff 

continued to disagree that JSFP was entitled to the matching fund payment it received 

after DOI. As discussed in Finding 1 above, after the Audit staff incorporated the 

expenses that could be documented as pertaining to the primary election into its revised 

NOCO, JSFP was still in a surplus position and therefore not entitled to the matching 

fund payment of$134,900, it received after the Candidate's DOI. 

E. Committee Response to Draft Final Audit Report 

In response to the Draft Final Audit Report, JSFP disagreed that the Candidate was in a 

surplus position. JSFP explained that it experienced confusion with respect to initial 

bank balances, ballot access costs and its calculation of winding down expenses at the 

time it submitted its last matching fund request, but JSFP still considered the NOCO 

balance to be in a deficit position. JSFP did not provide any documents to support its 

assertion. 

Commission Conclusion 

On March 27, 2019, the Commission considered the Audit Division Recommendation 

Memorandum in which the Audit staff recommended that the Commission make a 

determination that $134,900 is repayable to the United States Treasury. 

The Commission approved the Audit staff's recommendation. 

I Finding 3. Misstatement of Financial Activity 

Summary 

During audit fieldwork, a comparison of JSFP's reported financial activity with its bank 

records revealed a misstatement of receipts and disbursements for 2015 and 2016 and a 

misstatement of ending cash on hand in 2016. In 2015, JSFP understated its reported 

receipts and disbursements by $31,495 and $35,042 respectively; and in 2016, JSFP 

Attachment 1, page 20 of25 
understated its reported receipts, disbursements and ending cash on hand by $996,384, 

$800,310 and $192,527 respectively. The Preliminary Audit Report recommended that 

JSFP amend its disclosure reports to correct the misstatements. 

In response to the Preliminary Audit Report recommendation and the Draft Final Audit 

Report, JSFP stated it was in the process of amending its reports to correct the 

misstatements, but to date, no amended reports have been filed. 

18 

The Commission approved a finding that JSFP misstated its financial activity for calendar 

years 2015 and 2016. 

Legal Standard 

Contents of Reports. Each report must disclose: 

• the amount of cash on hand at the beginning and end of the reporting period; 

• the total amount of receipts for the reporting period and for the calendar year; 

• the total amount of disbursements for the reporting period and for the calendar year; 

• and certain transactions that require itemization on Schedule A (Itemized Receipts) or 

Schedule B (Itemized Disbursements). 52 U.S.C. §30104(b)(l), (2), (3), (4) and (5). 

Facts and Analysis 

A. Facts 

As part of audit fieldwork, the Audit staff reconciled JSFP's reported activity21 with its 

bank records for calendar years 2015 and 2016. The reconciliation revealed that JSFP 

misstated its receipts and disbursements for both years. The following charts outline the 

discrepancies between JSFP's disclosure reports and its bank records. 

2015 Reported Activity to Bank Activity 

Reported Bank Records Discrepancy 

Beginning Cash on hand 

(ii), January 1, 2015 

$0 $0 $0 

Receipts $244,196 $275,691 $31,495 

Understated 

Disbursements $221,985 $257,027 $35,042 

Understated 

Ending Cash on hand @ 

December 31, 2015 

$22,211 $18,664 

The understatement of receipts resulted from the following: 

• Contributions from individuals not on reports + $43,877 

• Unexplained difference 12,382 

Net Understatement of Receipts + $31,495 

$3,547 

Overstated 

21 Due to JSFP's consolidated reporting as one entity for primary, general and recount activity; the 

incorrect identification of election designations on the reports; the missing election designation 

information in some of the database records; and the large volume of transactions not required to be 

itemized, it was impossible for the Audit staff to exclude the general and recount activity from this 

reconciliation, especially during the post DOI period, which was August 7, 2016 through December 31, 

2016. 

Attachment 1, page 21 of 25 
The understatement of disbursements resulted from the following: 

• Payments for salaries and wages not reported + $45,364 

• Disbursements reported but did not clear the bank 14,903 

• Credit card fees not reported + 4,455 

• Miscellaneous disbursements not reported + 126 

Net Understatement of Disbursements + $351042 

The $3,547 overstatement of the ending cash on hand resulted from the misstatements 

described above. 

2016 Reported Activity to Bank Activity22 

Reported Bank Records Discrepancy 

Beginning Cash on hand 

@ Januarv 1, 2016 

$22,211 $18,664 $3,547

Receipts $10,951,133 $11,947,517 $996,38423 

Understated 

Disbursements $10,868,212 $11,668,522 $800,31024 

Understated 

Ending Cash on hand @ 

December 31, 2016 

$105,132 $297,659 $192,527 

Understated 

The understatement of receipts resulted from the following: 

• Contributions from individuals not reported + $565,893 

• Contributions from individuals reported, not supported by 

bank deposit 128,420 

• Offsets to operating disbursements not reported + 6,328 

• In-kind contributions not reported as a receipt + 247 

• Interest Income underreported + 25 

• Unexplained difference25 + 552,311 

Net Understatement of Receipts $996,384 

The understatement of disbursements resulted from the following: 

• Credit card fees not reported + $451,344 

• Disbursements to vendors not reported + 365,676 

• Disbursements reported but did not clear the bank 74,774 

• Disbursements directly from Paypal receipts, not reported + 35,762 

• Payments for salaries and wages, not reported + 27,000 

• In-kind contributions not reported as disbursement + 247 

• Unexplained difference 4,945 

Net Understatement of Disbursements $800,310 

22 This activity represents primary election, general election and recount activity. See Committee 

Structure, p. 1. 

23 General election and recount activity represents $815,959, or 82% of the understated receipts totals. 

24 General election and recount activity represents $688,355 or 86% of the understated disbursement totals. 

25 Due to the volume of contributions and an incomplete receipts database from JSFP, the specific 

individual contributors could not be identified; however, it appeared that the majority of this 

unexplained difference pertained to deposits in the bank made after the general election. 

19 

Attachment 1, page 22 of 25 
20 

The $192,527 understatement of the ending cash on hand resulted from the misstatements 

described above. 

B. Preliminary Audit Report & Audit Division Recommendation 

The Audit staff presented this matter to the JSFP representative at the exit conference 

along with schedules detailing the discrepancies. During the exit conference, the JSFP 

representative stated he had no explanation for the discrepancies but would research and 

determine if there was a pattern that would explain the cause. In its response to the exit 

conference, JSFP made no comment on this finding. 

The Preliminary Audit Report recommended that JSFP amend its disclosure reports to 

correct the misstatements. 

C. Committee Response to Preliminary Audit Report 

In response to the Preliminary Audit Report recommendation, JSFP stated it was in the 

process of making the necessary amendments to correct the misstatements. 

D. Draft Final Audit Report 

The Draft Final Audit Report outlined that no amended reports had been filed to correct 

the misstatement. 

E. Committee Response to Draft Final Audit Report 

In response to the Draft Final Audit Report, JSFP stated it was in the process of 

amending its reports to correct the misstatements, but to date, no amended reports have 

been filed. 

Commission Conclusion 

On March 27, 2019, the Commission considered the Audit Division Recommendation 

Memorandum in which the Audit staff recommended that the Commission find that JSFP 

misstated its financial activity for calendar years 2015 and 2016. 

The Commission approved the Audit staff's recommendation. 

I Finding 4. Disclosure of Debts and Obligations 

Summary 

During audit fieldwork, the Audit staff identified debts totaling $17,015 not disclosed on 

Schedule D-P (Debts and Obligations), as required. The Preliminary Audit Report 

recommended that JSFP amend its reports to disclose the outstanding debt. 

In response to the Preliminary Audit Report recommendation and the Draft Final Audit 

Report, JSFP stated it was in the process of amending its reports to correct the disclosure 

of debts and obligations, but to date, no amended reports have been filed. 

The Commission approved a finding that JSFP did not disclose debts and obligations 

totaling $17,015. 

Attachment 1, page 23 of 25 
Legal Standard 

A. Continuous Reporting Required. An authorized committee must disclose the 

amount and nature of outstanding debts and obligations until those debts are 

extinguished. 52 U.S.C. §30104(b)(8) and 11 CFR §§104.3(d) and 104.1 l(a). 

21 

8. Separate Schedules. An authorized committee must file separate schedules for debts 

owed by and to the committee with a statement explaining the circumstances and 

conditions under which each debt and obligation was incurred or extinguished. 

11 CFR§l04.ll(a). 

C. Itemizing Debts and Obligations. 

• Once it has been outstanding 60 days from the date incurred, a debt of $500 or 

less must be reported on the next regularly scheduled report. 

• A debt exceeding $500 must be disclosed in the report that covers the date on 

which the debt was incurred, except reoccurring administrative expenses (such as 

rent) shall not be reported as a debt before the payment due date. 

11 CFR §104.l l(b). 

D. Disputed Debts. A disputed debt is a bona fide disagreement between the creditor 

and the committee as to the existence of a debt or the amount owed by the committee. 

Until the creditor and committee resolve the dispute (assuming the creditor did provide 

something of value), the committee must disclose: 

• The amount the committee admits it owes; 

• The amount the creditor claims is owed; and 

• Any amounts the committee has paid the creditor. 11 CFR § 116. l 0. 

Facts and Analysis 

A. Facts 

During audit fieldwork, the Audit staff used the available disbursement records to 

reconcile the accounts of JSFP's largest primary election vendors, including accounts 

payable expenses for the NOCO. The Audit staff identified debts owed to these vendors 

totaling $17,015, that were not disclosed on Schedule D-P, as required. For one 

transaction, totaling $13,114, the majority of the error pertained to the disputed debt with 

one advertiser that was initially invoiced to JSFP for services in August 2016 and was 

ultimately paid in January 2017. During audit fieldwork, a JSFP representative stated the 

amount of this invoice had been in dispute, but agreed that this debt should have been 

reported until the final invoice amount was negotiated and paid. 

B. Preliminary Audit Report & Audit Division Recommendation 

The Audit staff presented this matter to the JSFP representative at the exit conference and 

provided schedules detailing the unreported debts for each relevant reporting period. 

This matter was discussed with the JSFP representative during fieldwork and at the exit 

conference. The representative stated he was familiar with the matter and understood the 

finding. In its response to the exit conference, JSFP made no comment on this finding. 

The Preliminary Audit Report recommended that JSFP provide documentation 

demonstrating that the amount owed, of $17,015, did not require reporting as debt on 

Attachment 1, page 24 of25 
22 

Schedule D-P. Absent such documentation, the Preliminary Audit Report recommended 

that JSFP amend its reports to disclose the outstanding debt and continue to disclose it 

until extinguished. 

C. Committee Response to Preliminary Audit Report 

In response to the Preliminary Audit Report recommendation, JSFP stated it was in the 

process of making the necessary amendments to correct the disclosure of debts and 

obligations. 

D. Draft Final Audit Report 

The Draft Final Audit Report indicated that no amended reports had been filed to correct 

the disclosure of debts and obligations. 

E. Committee Response to Draft Final Audit Report 

In response to the Draft Final Audit Report, JSFP related it was in the process of 

amending its reports to correct the disclosure of debts and obligations, but to date, no 

amended reports have been filed. 

Commission Conclusion 

On March 27, 2019, the Commission considered the Audit Division Recommendation 

Memorandum in which the Audit staff recommended that the Commission find that JSFP 

did not disclose debts and obligations totaling $17,015. 

The Commission approved the Audit staffs recommendation. 

Attachment 1, page 25 of 25 
 

LAW OFFICE OF 

HARRY KRESKY 

2600 NETHERLAND AVENUE, SUITE 3104, RIVERDALE, NY 10463 

TELEPHONE: 212-581-1516 FAX: 212-581-1352 E-MAIL: KRESKY.LAW@GMAIL.COM 

Website: harrykreskylaw com 

June 17, 2019 

BY EMAIL AND REGULAR MAIL 

Federal Election Commission 

999 E Street NW 

Washington, DC 201463 

Re: Response to Final Audit Report 

Dear Sir or Madam: 

This office represents the Jill Stein for President Committee (the “Committee”) and 

submits this response to the Federal Election Commission’s (the “Commission”) final audit 

report (the “report”) transmitted by letter dated April 17, 2019. 

The pivotal issue in this matter is the status of necessary and anticipated ballot access 

expenses incurred after the purported Date of Ineligibility (“DOI”). The Committee submits that 

these expenses are reimbursable under the primary matching funds program (the “program”). 

The Commission seeks repayment of money received by the Committee for them. The 

Committee questions the DOI applied by the Commission and its rationale for disallowing 

reimbursement. 

For the reasons set forth below, the establishment of an August 6, 2016 DOI was 

arbitrary, capricious and contrary to the letter and intent of the matching funds program and its 

past interpretation and application. The Commission’s position that matching funds paid for 

ballot access and related activities carried out after that date must be repaid is irrational and 

contrary to the applicable regulations, law and constitutional principles. 

The Committee will demonstrate herein that were reimbursement of these ballot access 

and related expenses allowed, no repayment would be called for. In addition, it will be shown 

that the other findings concerning the nature of winding down expenses, misstatement of 

financial activity and disclosure of debts and obligations likewise cannot survive scrutiny. 

The establishment of the DOI- In its “Response to a Request for Consideration of a Legal 

Question” dated February 28, 2018, the Commission notes that, in addition to the Green Party 

nomination, Jill Stein also sought the nomination of parties that did not have a national 

nominating convention and, therefore, settled on the date of the later of the Green Party 

nominating conventions (“August 7, 2016”) or the last major party nominating convention which 

was before the Green Party convention. But then in the final audit report, it gave the date as 

August 6, 2016, the supposed date of the Green Party convention. These and the other 

Attachment 2, page 1 of 7
 

 

 

Federal Election Commission 

June 17, 2019 

Page 2 

inconsistencies described below affect not only the DOI, but the status of funds expended for 

ballot access under the program. 

In a series of advisory opinions dating back to 1975, the Commission expressed its 

commitment “to construe the provisions of the Act in a manner consistent with Constitutional 

requirements, regardless of a candidate’s party affiliation or independent status.” It found that 

“the petition process required of the presidential candidates of the minor parties as the equivalent 

of the primary elections and convention process of the major party candidates.” AO 1975-44. 

In AO 1975-53 the Commission held that in the case of a campaign for Senate, the DOI 

was the later of the last day to file a nominating petition for a place on the general election ballot 

or the date of the last major party primary. 

The position taken by the Commission in these cases is consistent with 11 CFR 

100.2(c)(4): 

“With respect to individuals seeking federal office as independent candidates, or 

without nomination by a major party (as defined in 26 U.S.C. 9002(6)), the 

primary election is considered to occur on one of the following dates, at the 

choice of the candidate:(i) The day prescribed by applicable State law as the last 

day to qualify for a position on the general election ballot may be designated as 

the primary election for such candidate.(ii) The date of the last major party 

primary election, caucus, or convention in that State may be designated as the 

primary election for such candidate.(iii) In the case of non-major parties, the date 

of the nomination by that party may be designated as the primary election for such 

candidate.”

(emphasis added) 

The application of these principles would require the Commission to accept the 

Committee contention that the DOI was the date of the petition filing deadline of the last state in 

which it sought ballot access, and funds so expended for ballot access were matchcable until that 

date. The position taken by the Commission in the instant matter deviates from this principal 

and, consequently from the commitment to construe FECA in a manner consistent with U.S. 

Constitution. 

In subsequent years the Commission abandoned this principle of parity with major party 

candidates in applying the matching fund program to the presidential campaigns of independent 

and minor party candidates. Thus, in AO 1984-11 the Commission ruled that the DOI of a 

candidate seeking the nomination of one or more minor parties is “the earlier of (1) the last date 

when Mr. Serrette is nominated by any political party on the state level, or (2) the last day of the 

last national convention held by a major political party in 1984.” Thus, funds expended on ballot 

Attachment 2, page 2 of 7
 

Federal Election Commission 

June 17, 2019 

Page 3 

access (i.e. petition for a place on the ballot) incurred in petition drives after the DOI would not 

be reimbursed: 

“In Mr. Serrette's situation, expenditures will apparently be made to collect 

petition signatures for the general election ballot. The Commission is of the 

opinion that these expenses, to the extent they are paid or incurred within what 

would be Mr. Serrette's matching payment period if he becomes eligible for 

matching funds, would be qualified campaign expenses for purposes of the 

Matching Payment Act.”

See also, AO 1984-25 and AO 2000-18. 

The Commission has articulated no reason for deviating from its previous commitment to 

parity and its invocation of the need “to construe the provisions of the Act in a manner consistent 

with Constitutional requirements, regardless of a candidate’s party affiliation or independent 

status.” The consequence is dramatic. A major party candidate who secures the nomination of a 

major party (with the help of primary matching funds) faces no hurdles to or further expenses to 

insure his or her appearance on the ballot of all fifty states. A minor party or independent 

candidate must continue to incur the expenses of ballot access in numerous states after the DOI. 

The Committee’s January 12, 2018 submission identified 25 such states. 

That submission claimed that the Committee relied on AO 1995-45 (sought by the 

Presidential campaign of minor party candidate Dr. John Hagelin in planning its effort with the 

assumption that ballot access expenditures in those states would be matched.) In that Advisory 

Opinion the Commission stated: 

“It has long been the view of the Commission that, for non-major party 

candidates, the process by which they satisfy the requirements of State law 

governing qualification for a position on the general election ballot serve purposes 

similar to a primary election or other nominating process. See Advisory Opinions 

1984-11 and 1975-44. This view is supported by the Commission regulations 

defining the term "election," which state that, for non-major party and 

independent candidates, the day prescribed by applicable State law as the last day 

to qualify for a position on the general election ballot may be designated as the 

primary election for such candidate. 11 CFR 100.2(c)(4)(i). Based on this 

reasoning, the Commission concluded in Advisory Opinions 1984-25 and 1984-

11, that the ballot access expenses of candidates for minor party nominations 

would be qualified campaign expenses.”

Indeed, Dr. Jill Stein’s 2012 presidential campaign received matching funds for ballot access 

expenses in each state where it was sought and no repayment was required. Moreover, the DOI 

that cycle was a month later, September 6, 2012. 

Attachment 2, page 3 of 7
 

Federal Election Commission 

June 17, 2019 

Page 4 

Constitutional considerations- Just as the Constitution mandates equal treatment of minor 

party and independent campaigns under FECA, it forbids discrimination against them in the 

allocation of public monies. Thus, in Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014), the 

Court of Appeals held that a campaign finance program that favored major party candidates over 

others violated the equal protection clause of the U.S. Constitution. Cf. Green Party of Conn. v. 

Garfield, 616 F.3d 213 (2d Cir. 2010). 

Further, a decision by the Commission which is arbitrary and capricious will not pass 

judicial muster. Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990). In Fox TV Stations, 

Inc. v. FCC, 280 F.3d 1027, 1044-45 (D.C. Cir. 2002); modified in Fox Television Stations, Inc. 

v. FCC, 293 F.3d 537 (2002), the Court of Appeals, in scrutinizing new rules issued by the 

Federal Communications Commission, stated: 

“The Commission may, of course, change its mind, but it must explain why it is 

reasonable to do so. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 57, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983) An agency's view 

of what is in the public interest may change, either with or without a change in 

circumstances. But an agency changing its course must supply a reasoned 

analysis."); Telecomm. Research and Action Ctr. v. FCC, 255 U.S. App. D.C. 

287, 801 F.2d 501, 518 (D.C. Cir. 1986). 

“The Commission now argues that the refusal of the Congress to allow the agency 

to implement the 1984 Report and its decision in the 1996 Act to retain an 

ownership cap rendered irrelevant the views the Commission expressed in 

the 1984 Report. When the Congress in 1996 directed the Commission 

periodically to review the ownership cap, however, it did nothing to preclude the 

Commission from considering certain arguments in favor of repealing the cap --

including the arguments the Commission had embraced in 1984. So long as the 

reasoning of the 1984 Report stands unrebutted, the Commission has not fulfilled 

its obligation, upon changing its mind, to give a reasoned account of its decision.”

Here, the Commission provides no rationale for its deviation from its earlier commitment to 

parity between major party candidates and minor party or independent ones. 

As will be demonstrated in a further submission coming directly from the Committee, 

were it not for the improper imposition of the August 6, 2016 DOI, no repayment would be 

called for. 

Attachment 2, page 4 of 7
Attachment 2, page 5 of 7

Federal Election Commission 

June 17, 2019 

Page 5 

A hearing before the Commission is request to address issues pertaining to the DOI. 

Respectfully submitted, 

cc: Steven Welzer, Treasurer 

Emery Celli Brinckerhoff & Abady LLP 

Litigation Counsel 

L~ky 
 

JILL STEIN FOR PRESIDENT 

PO BOX 260197 

MADISON, WI 53726 

DATE: June 17, 2019 

TO: Federal Election Commission 

1050 First St, NE 

Washington, DC 20463 

FROM: Jill Stein for President 

Compliance Department 

PO Box 260197 

Madison, WI 53726 

SUBJECT: Committee Response to Final Audit Report (FAR) 

Mary Moss, 

Enclosed is a copy of the Committee’s response (including the materials provided by the Law 

Office of Harry Kresky) to the Final Audit Report findings sent April 17, 2019. Should there be any 

difficulties accessing these records, please contact Matt Kozlowski, Director of Compliance, at 

Finance@Jill2016.com. 

Sincerely, 

Steven Welzer 

Treasurer 

Jill Stein for President 

Jill Stein for President | PO Box 260197, Madison, WI 53726 

www.Jill2016.com | Finance@Jill2016.com 

Attachment 2, page 6 of 7
 

 

 

 

 

 

 

 

 

JILL STEIN FOR PRESIDENT 

PO BOX 260197 

MADISON, WI 53726 

Ballot Access Expenditures – DOI Impact 

Ballot Access Costs – Post DOI 

Following August 6th, 2016, the Jill Stein for President Campaign expended $310,477.48 in direct 

expenses in support of ballot access petitioning activities. These expenses included the costs of paying 

petitioners for ballot signatures, printing costs, filing fees, and other such direct expenses. Note: this 

figure does not include any costs of supervision, national staff support for such operations, office 

expenses, or other associated costs that would be included in an adjusted DOI for the committee. 

In the findings presented by the audit staff, a total of $255,671 in such expenses were identified as not 

being qualified expenditures due to the date when these costs were incurred. 

Given these figures, and the determination of NOCO surplus, these costs exceed the amount determined 

to be in surplus per the Commission’s findings prior to any other adjustments to DOI, winding down 

costs, or other such adjustments. 

Finding 3. Misstatement of Financial Activity 

Utilizing the schedules and details provided by the Audit Division, the Committee has finalized all such 

amendments to update disclosures of financial activity. The Committee has begun the process of 

uploading these amendments via filing software. 

Finding 4. Disclosure of Debts and Obligations 

Utilizing the schedules and details provided by the Audit Division, the Committee has finalized all such 

amendments to update disclosures of debts and obligations. The Committee has begun the process of 

uploading these amendments via filing software. 

Jill Stein for President | PO Box 260197, Madison, WI 53726 

www.Jill2016.com | Finance@Jill2016.com 

Attachment 2, page 7 of 7
 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 

Administrative Review Hearing:

Jill Stein Repayment 

Determination 

(LRA #1021) 

) 

) Agenda Document 

) No. 21-10-A 

) 

) 

) 

) 

Thursday, February 25, 2021 

THE HEARING in the above-entitled matter commenced 

at 10:00 a.m., pursuant to notice. 

AMENDED 

This transcript was produced from an audio/video recording 

provided by the Federal Election Commission. 

Diversified Reporting Services, Inc. 

(202) 467-9200 

Attachment 3, page 1 of 21
2 

APPEARANCES: 

On Behalf of the Federal Election Commission: 

JOSHUA BLUME, ESQ. 

JENNIFER WALDMAN, ESQ. 

Office of General Counsel 

Federal Election Commission 

1050 First Street, NE 

Washington, D.C. 20463 

LORENZO HOLLOWAY, ESQ. 

Associate General Counsel 

Compliance Advice 

Federal Election Commission 

1050 First Street, NE 

Washington, D.C. 20463 

NEVEN STIPANOVIC, ESQ. 

Associate General Counsel 

Policy Division 

Federal Election Commission 

1050 First Street, NE 

Washington, D.C. 20463 

On Behalf of Jill Stein for President Committee: 

HARRY KRESKY, ESQ. 

Law Offices of Harry Kresky 

2600 Netherland Avenue, Suite 3104 

Riverdale, New York 10463 

Also Present: 

JILL STEIN 

NASSIM NOURI, Campaign Volunteer 

JOHN ANDREWS, Campaign Volunteer 

Attachment 3, page 2 of 21
3 

1 P R O C E E D I N G S 

HEARING OFFICIAL: Good morning. The oral hearing 

for the Jill Stein For President will now come to order. I 

want to remind everyone that for today's regular open 

meeting, it will begin 15 minutes, excuse me, after the 

conclusion of this hearing. 

2 

3 

4 

5 

6 

7 This hearing will be conducted pursuant 11 C.F.R. 

section 9038.2(c)2. Jill Stein For President is the 

principal campaign committee of former presidential 

candidate Dr. Jill Stein. The committee requested 

administrative review of the Commission's determination that 

the committee must repay public matching funds in the amount 

of $175,272 to the United States Treasury. As part of its 

administrative review request, the committee requested this 

oral hearing, which was granted by the Commission on January 

22nd of 2021. 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 Before us today, we have Mr. Harry Kresky, counsel 

for the committee, along with former presidential candidate 

Dr. Jill Stein, and campaign volunteers Ms. Nassim Nouri and 

Mr. John Andrews. And I want to say welcome to all of you. 

18 

19 

20 

21 Representing the Commission we have from our 

Office of General Counsel Mr. Joshua Bloom, Ms. Jennifer 

Waldman, Mr. Lorenzo Holloway and Mr. Neven Stipanovic. 

The Commission's consideration of the repayment 

issue in this matter has an extensive history so I'll first 

22 

23 

24 

25 

Attachment 3, page 3 of 21
4 

1 provide a little background. 

The Green Party nominated Dr. Stein as its 

presidential candidate on August the 6th, 2016 during its 

national nominating convention. Shortly after the 

convention, the Commission concluded that Dr. Stein's date 

of ineligibility was August the 6th, the date of the 

nomination. 

2 

3 

4 

5 

6 

7 

8 The date of ineligibility, DOI for short, is a 

term mentioned numerous times in the Commission's 

regulations and refers to the ending date of the matching 

payment period. 

9 

10 

11 

12 The committee challenged the Commission's DOI 

determination on two separate occasions, and each time the 

Commission affirmed that the DOI was August the 6th of 2016. 

13 

14 

15 The question of whether of Dr. Stein's DOI should 

be later than August 6th is significant because the 

determination of the DOI controls the magnitude of the 

committee's repayment obligation. 

16 

17 

18 

19 On April 16th, 2019, the Commission completed its 

audit of the committee's activities during the 2015/2016 

presidential election cycle and issued its final audit 

report. The audit report concluded that the committee had 

to repay $175,272 to the United States Treasury because the 

committee had surplus campaign funds as of the DOI and had 

received excess public funds after that date. 

20 

21 

22 

23 

24 

25 

Attachment 3, page 4 of 21
5 

1 Once the Commission issues a final audit report, a 

publicly financed candidate, such as Dr. Stein, may seek 

administrative review of the Commission's repayment 

determination, and the committee has exercised that option 

here on her behalf. 

2 

3 

4 

5 

6 The sole purpose of today's hearing is to give the 

committee an opportunity to address through the Commission 

and to demonstrate that no repayment or a lesser repayment 

is required. 

7 

8 

9 

10 In past oral hearings regarding repayment 

determinations, we have given the committee's representative 

up to 30 minutes for an opening presentation. I suspect 

that counsel might not need that much time this morning, but 

we do want to make sure that the committee is treated the 

same as others who have come before us to challenge 

repayment determinations. 

11 

12 

13 

14 

15 

16 

17 Counsel, your presentation should be limited to 

those matters raised in the committee's written response to 

the Commission's repayment determination that you filed on 

June 17th, 2019. The administrative review process set 

forth in 11 C.F.R section 9038 .2(c)2 allows for challenges 

to repayment determinations. Accordingly, this hearing is 

not a proper forum to address other challenges. 

18 

19 

20 

21 

22 

23 

24 At the conclusion of the committee's presentation, 

25 each Commissioner will have the opportunity to ask 

Attachment 3, page 5 of 21
6 

1 questions. I will then ask the General Counsel and the 

audit division if they have any questions. At the end of 

today's hearing, you'll have the opportunity to make a 

closing statement. 

2 

3 

4 

5 After this hearing, the committee will have five 

days in which to submit additional materials for Commission 

consideration. Pursuant to 11 C.F.R. section 9038.2(c)3, 

the Commission will then make a repayment determination 

following an administrative review and issue a statement of 

reasons in support of that determination. 

6 

7 

8 

9 

10 

11 And counsel, if you'd like, it's time for you to 

12 proceed your presentation. Thank you. 

13 MR. KRESKY: Thank you, Madam Chair. Can 

everybody hear me? I’m Harry Kresky. Good morning. I'm 

the attorney for the Jill Stein For President Committee 

2016. 

14 

15 

16 

17 The repayment that we're considering today is 

based on a date of ineligibility, a DOI, that's unsupported 

by law, logic, and precedent. It undermines the effort to 

achieve a fair balance between candidates of the major 

parties and independent and minor party presidential 

candidates. It ignores the fact that unlike major party 

candidates whose nomination guarantees them a ballot line in 

all 50 states, candidates like Dr. Stein have to undergo an 

extended effort to petition for a place on the ballot for 

18 

19 

20 

21 

22 

23 

24 

25 

Attachment 3, page 6 of 21
7 

1 weeks after receiving a minor party nomination. A system 

that does not take this into account is unjustifiable as a 

matter of law and public policy. 

2 

3 

4 A candidate seeking a major party nomination can 

receive matching funds throughout his or her effort to win 

their party's nomination. If the DOI of a minor party 

candidate is the date of their nominating convention, he or 

she is deprived of matching funds at the very point where 

the arduous and expensive effort to achieve ballot status --

ballot access -- intensifies. In light of the realities of 

independent and minor party presidential campaigns, the only 

fair framework is one that assures that funds expended on 

ballot access are matchable regardless of convention dates 

of the various parties, major and minor. 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 The final -- excuse me -- the final audit report 

states on page 11 that the candidate's DOI was August the 

6th, 2016. That was the date of the Green Party convention. 

However, this is inconsistent with a series of Advisory 

Opinions issued by the Commission dating back to 1975. 

16 

17 

18 

19 

20 In AOR 1975-53, the Commission stated, "with 

respect to individuals seeking a ballot position in the 

general election for federal office without nomination by a 

party, a primary election shall be deemed to have occurred 

when the day prescribed by applicable state law as the last 

day to qualify for a petition on the general election 

21 

22 

23 

24 

25 

Attachment 3, page 7 of 21
8 

1 ballot, or the date of the last major party convention" --

I’m sorry -- "major party primary election, whichever is 

later." 

2 

3 

4 A source of confusion may have been AOR 1975-44 

where the issue was how to apply limits to campaign 

donations. There, the Commission, in an effort to having 

uniform limit for various campaigns, stated "Accordingly, 

for the purpose applying the limitations in 18 U.S.C. 

Section 608, the Commissioner will view the petition process 

required of the presidential candidates of the minor parties 

as the equivalent of the primary elections and convention 

process of the major party candidates. Therefore, an 

individual may contribute $1,000 to a presidential candidate 

of a minor party for his or her petition effort and another 

$1,000 to the candidate for his or her general election 

effort. 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 "Since the dates pertaining to petition 

qualification vary from state to state, the Commission 

considers it necessary to prescribe a uniform date when for 

purposes of 18 U.S.C. 608(b), the petition process ends for 

minor party presidential candidates. The Commission 

concludes that the prescribed date should be when the 

presidential nominee last selected before the general 

election is nominated by a national nominating convention of 

a major party." 

18 

19 

20 

21 

22 

23 

24 

25 

Attachment 3, page 8 of 21
9 

1 This seeming contradiction can be reconciled by 

recognizing that AOR 1975-44 applies to the question of how 

to uniformly apply contribution limitations. That is not 

the issue in the case at bar. Rather, it is when 

expenditures by the 2016 Stein Campaign cease to be 

matchable. AOR 1975-53 governs in that case. 

2 

3 

4 

5 

6 

7 The question turns on the particularities of the 

2016 Stein Campaign and those of other candidates. Unlike 

the issue of allowing expenditures for ballot access to be 

matched, the issue of when general election contributions 

can be allowed -- are allowed -- can be uniformly applied to 

all candidates without inherently prejudicing minor party 

and independent candidates. 

8 

9 

10 

11 

12 

13 

14 There was an argument to be made for uniformity in 

the application of contribution limits that in no way 

applies to the qualification of funds used to a ballot 

access to be matched by the federal government. Dr. Stein's 

2012 campaign was able to utilize as its DOI, the last day 

to petition, in states where the Green Party did not have 

ballot access. That date that year happened to coincide 

with the date of the last major party nominating convention. 

That was not the case in 2016. 

15 

16 

17 

18 

19 

20 

21 

22 

23 Pegging the DOI for a minor party candidate to the 

date of a major party convention introduces an unacceptable 

element of arbitrariness. If expenditures for ballot access 

24 

25 

Attachment 3, page 9 of 21
10 

1 are matchable, that should be the case regardless of when 

the candidate in question, or any other candidate, receives 

the party nomination. 

2 

3 

4 Indeed, the coincidence of the two dates in 2012 

created a situation where Dr. Stein was penalized for the 

understandable expectation that her efforts would be treated 

similarly in 2016. Dr. Stein relied on this expectation. 

Indeed, she received matching funds for this ballot access 

activity in 2016. It's a form of entrapment to now apply a 

DOI of August 6th to the very same activity. Moreover, the 

2016 Stein Campaign was not even aware of the new DOI until 

after the campaign ended and after funds were expended for 

ballot access and match. 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 Pegging the DOI for a minor party candidate to the 

date of a major party convention makes planning and 

fundraising very difficult. Indeed, it would be impossible 

to identify the date of the DOI for the next presidential 

cycle in 2024 until other players decide on the date of 

their conventions. Such a decision will likely be made 

without regard to the needs of non-major party presidential 

candidates for that cycle. Even worse, it invites the major 

parties to pick an early date, which prejudices the 

interests of independent and minor party candidates. 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 There was no basis to move the DOI to August 6th, 

25 the date of the Green Party convention. The first 

Attachment 3, page 10 of 21
11 

1 indication of this approach was AOR 1984-11, and I'm reading 

2 from it. 

3 "The Matching Payment Act and Commission 

regulations require that matching payments as well as all 

disbursements of an eligible candidate's campaign committee 

be used only for qualified campaign expenses. Qualified 

campaign expenses may only be incurred with respect to the 

period in which the candidate is eligible for matching 

payments. 

4 

5 

6 

7 

8 

9 

10 "The date when the candidate becomes ineligible 

coincides with the last day -- with the last day of the 

matching payment period for that candidate. Accordingly, 

campaign expenditures made or campaign obligations incurred 

within the matching period would satisfy the timeliness 

requirement for a qualified campaign expense. In addition, 

such expenses must also be made in conjunction with the 

campaign's campaign for nomination. 

11 

12 

13 

14 

15 

16 

17 

18 "In Mr. Serrette's situation, [the candidate at 

that time,] expenditures will apparently be made to collect 

petition signatures for the general election ballot. The 

Commission is of the opinion that these expenses to the 

extent they are paid or incurred within what would be Mr. 

Serrette's matching period, if he becomes eligible for 

matching funds, would be qualified campaign expenses for the 

purposes of the matching payment act." 

19 

20 

21 

22 

23 

24 

25 

Attachment 3, page 11 of 21
12 

1 This AOR doesn't indicate that this is in fact a 

change from AOR 1975-53, nor is any reason for such a change 

articulated. In fact, the new standard is entirely 

circulated -- is entire circular. Qualified campaign 

expenditures, we are told, are those made in the period when 

the campaign is eligible for matching funds. This 

contradicts the principle that efforts to get on the ballot 

is part of the primary effort, regardless of when it occurs. 

It compounds the very legal and constitutional problems this 

principle was designed to prevent; that is the very 

different terrain an independent or a minor party candidate 

must navigate. Namely, ballot access efforts must continue 

after the convention and well into September of the election 

year. 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 This concern was directly expressed in AOR 1975-

44. There, the Commission stated: "However, in this case, 

as in the past the Commission is concerned to construe the 

provisions of the act in a manner consistent with 

constitutional requirements regardless of a candidate's 

party affiliation or independent status. 

"The primary election and convention process is a 

procedure through which major parties typically determine 

their candidates for the general election. The procedure 

for presidential candidates of minor parties, however, 

differs in that most states have a separate petition process 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Attachment 3, page 12 of 21
13 

1 whereby such candidates may qualify for general election 

2 ballot. 

3 "Accordingly, for the purpose for applying the 

limitations in 18 U.S.C. 608, the Commission will view the 

petition process required of presidential candidates of the 

minor parties as the equivalent of the primary elections and 

convention process of major party candidates." 

4 

5 

6 

7 

8 This perspective was applied in AOR 1995-45 which 

makes no mention of the matching funds period. It states 

unequivocally: "It has long been the view of the Commission 

that for nonmajor party candidates the process by which they 

satisfy the requirements of state law governing 

qualification for a position on the general election ballot 

serve purposes similar to a primary election or other 

nominating process. 

9 

10 

11 

12 

13 

14 

15 

16 This view is supported by the Commission 

regulations defining the term elections -- "election." --

which state that for non-major party and independent 

candidates, the date prescribed -- the date prescribed by 

applicable state law as the last day to qualify for a 

position on the general election ballot may be designated as 

the primary election for such candidate." The AOR cites 11 

CFR 100.2(c)(4)(i). 

17 

18 

19 

20 

21 

22 

23 

24 Based on this reasoning the Commission concluded 

25 in its Advisory Opinions 1984-25 and 1984-11 that the ballot 

Attachment 3, page 13 of 21
14 

1 access expenses of candidates for minor party nominees would 

be qualified campaign expenses. Let me read the cited 

regulation, 11 CFR 100.2(c)(4)(i). 

2 

3 

4 The cited regulation states, and I'm quoting here, 

"With respect to individuals seeking federal office as 

independent candidates or without nomination as a major 

party, (as defined in 26 U.S.C.9002(6)), the primary 

election is considered to occur on one of the following 

dates at the choice of the candidate: the day prescribed by 

applicable state law as the last day to qualify for a 

position on the general election ballot may be designated as 

the primary election for such a candidate; (2), the date of 

the last major party primary election, caucus or convention 

in that state may be designated as a primary election for 

such a candidate; and (3), in the case of nonmajor parties, 

the date of the nomination by that party may be designated 

as the primary election for such a candidate." 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 I reiterate, which of these applies is at the 

choice of the candidate. Obviously, the choice of the Green 

Party and Dr. Stein was the latest possible date, which is 

geared to the dates for the petitioning process to get on 

general election ballots in the many states where the Green 

Party did not have ballot status. The Stein Campaign had 

every right to rely on this construct when it expended funds 

for ballot access and accepted matching fund payments for 

19 

20 

21 

22 

23 

24 

25 

Attachment 3, page 14 of 21
15 

1 them.

2 Let me just speak briefly about the procedural 

background here. There was no complaint. This matter was 

generated by audit. The final audit report issued on April 

17th, 2019 alleged that as of the DOI, the campaign had a 

surplus of $200,856, the net outstanding campaign 

obligations, or NOCO. This required two repayments. One, 

pursuant to a regulatory formula, a prorated repayment of 

$40,372 was due. In addition, the matching funds payment of 

$134,900, received on January 12th, 2017 was required to be 

repaid. Thus, the order called for total repayment of 

$175,272. 

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4 

5 

6 

7 

8 

9 

10 

11 

12 

13 The campaign disputed these numbers in particular 

contending that disbursements for ballot access expenses 

after the August 6th, 2016 DOI should have been included in 

the amount of $255,671. This amount would have been enough 

to eliminate the NOCO surplus, and therefore eliminate the 

repayment. 

14 

15 

16 

17 

18 

19 The significance of the date of the DOI is 

obvious. On March 17, 2019, the Commission voted to approve 

the audit report including the $175,000 repayment. 

20 

21 

22 The campaign's position is that if the DOI is 

extended, as it should be, to the last day of petitioning in 

states where the Green Party did not have ballot access --

ballot status -- then the repayment goes away. 

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24 

25 

Attachment 3, page 15 of 21
16 

1 In addition, the campaign has recently provided 

documentation demonstrating additional winddown costs, which 

we contend are continuing. 

2 

3 

4 To recap, the repayment determination should 

include campaign expenditures for ballot access after the 

Commission's DOI of August 6, 2016. These expenditures 

amounted to another $255,671 in ballot access costs 

exceeding the surplus of $200,856 claimed in the audit 

report. Technically speaking, the surplus NOCO calculated 

in the audit report should have been corrected to a deficit 

of $55,430. The additional winddown costs referenced above, 

would further increase the NOCO deficit. In the absence of 

a surplus NOCO, the prorated repayment of $40,372 claimed in 

the audit report is eliminated. The corrected deficit NOCO 

also eliminates the repayment of $134,900 in matching funds 

that was called for in the audit. 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

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17 These expenditures were for petitioning drives in 

states where the Green Party did not have ballot access. 

As such, they are matchable under a corrected DOI. Indeed, 

how could they not be in as much as the entire construct for 

minor parties is based on the proposition that expenditures 

to get on the ballot are the equivalent of primary 

expenditures. To rule otherwise would constitute a form of 

entrapment. 

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19 

20 

21 

22 

23 

24 

25 First the matching funds were already paid; 

Attachment 3, page 16 of 21
17 

1 second, in 2012 they were treated as matchable expenditures. 

The expenditures were made in a reasonable, good-faith 

belief that as they were necessary to achieve ballot status, 

they were valid and matchable. 

Thank you. 

2 

3 

4 

5 

6 HEARING OFFICER: Thank you, Counsel. 

Do any Commissioners have any questions? Does the 

Office of General Counsel, or the audit division have any 

questions? 

7 

8 

9 

10 MR. BLUME: Madam Chair? 

11 HEARING OFFICER: Yes, Mr. Blume? 

12 MR. BLUME: Yes, thank you, I just have one 

question. Mr. Kresky alluded to the fact that the committee 

provided the Commission with documents pertaining to 

winding-down expenses in advance of the hearing. And so I 

would just like to ask how the documents relate to issues 

that were raised in the committee's recent submission 

requesting administrative review of the repayment 

determination. 

13 

14 

15 

16 

17 

18 

19 

20 MR. KRESKY: In my letter of June 17th, 2019 

requesting the hearing, the last paragraph states, "as will 

be demonstrated in the further submission coming directly 

from the committee were it not for the improper imposition 

on August 6th DOI, no repayment would be required." And in 

addition to that --

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22 

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25 

Attachment 3, page 17 of 21
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1 DR. STEIN: This is Jill asking for recognition. 

2 HEARING OFFICER: Yes, Dr. Stein. 

3 DR. STEIN: Yes, I would just point out, in the 

letter that attorney Kresky is referencing, which was the 

formal request for this administrative hearing, he states in 

the -- one, two, three -- fourth paragraph that the 

committee will herein demonstrate that reimbursement of 

ballot access and related expenses, as well as the nature of 

winding-down expenses would specifically be addressed, and 

would change the repayment order as well as the calculation 

of the net outstanding campaign obligation. The surplus 

would be impacted by winding-down expenses as well as ballot 

access expenses that should be recognized. 

So that is specifically stated in that fourth 

paragraph. 

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12 

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16 MR. KRESKY: Thank you Dr. Stein. 

17 HEARING OFFICER: Thank you. Are there any 

18 further questions? None? 

19 Mr. Kresky or Dr. Stein would you care to make a 

20 closing statement? 

21 MR. KRESKY: I can just briefly -- I don't have 

very much to add. I think what is important is that the 

Matching Funds Program was designed to and is required to be 

conducted in a way that treats minor parties and independent 

candidates as favorably as the major parties are treated. 

22 

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24 

25 

Attachment 3, page 18 of 21
19 

1 And in fact, you could make the case, and I think 

the case is a sound one, that matching payments themselves, 

which many major party candidates don't even accept now, are 

specifically designed to give a leg up to minor party and 

independent candidates who don't have the financial clout of 

the major party candidates, particularly in the presidential 

situation. 

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3 

4 

5 

6 

7 

8 So to arbitrarily apply a DOI which denies 

matching funds for ballot access and winding-down costs, and

in particular ballot access, which is not even a factor for 

a major party candidate, because the major parties already 

have ballot status in every state, really undermines the 

purpose of the Matching Funds Program in my opinion. And in

particular, the Commission's concern for an obligation to 

see to it that all candidates, major and minor, and 

independent are treated equally and not prejudiced by the 

Matching Funds Program and the Commission's activities and 

conduct. Thank you. 

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19 DR. STEIN: And may I have recognition? 

20 HEARING OFFICER: Yes, Dr. Stein. 

21 DR. STEIN: Thank you. Yes, and I wanted thank 

Attorney Kresky for that very substantive review of the 

critical Advisory Opinions, and the critical regulations and 

statutes. 

22 

23 

24 

25 And there's a lot of detail here, and as a 

Attachment 3, page 19 of 21
20 

1 layperson, not a lawyer, but, you know, anybody watching 

this as a public hearing, or viewing it afterwards as a 

public hearing, let me just say that I think the real key 

issues here, as Attorney Kresky just summarized, are really 

whether the independents and minor parties have equal access 

to the ballot as determined by our access to public funding. 

And the public funding program, it seems, you know, has to 

meet that need for those candidates and political groups 

that don't have access to deep pockets and the various forms 

of finance that really dominate, as this Commission knows so 

well, that have come to dominate our electoral process. 

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10 

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12 And if, you know, you've probably seen recent 

polls, one from Gallup just done last week that showed the 

public hunger for a variety of political opinions now is at 

an all-time high. And it really, I think, it's the mission 

or one of the missions of this Commission, you know, is to 

ensure that there is a public forum in our elections, and 

that there are a variety of political viewpoints 

represented, which there is so much hunger for right now. 

13 

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19 

20 And I think it's a tribute to the Commission that 

its very foundational Advisory Opinions stress this point 

and made it possible for small parties and independents to 

have access to the ballot through a broad definition of this 

question of eligibility. 

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22 

23 

24 

25 And it was -- you know -- the process was defined 

Attachment 3, page 20 of 21
21 

1 early on in such a way that small parties and small players 

and independents could have access to that public funding in 

order to achieve ballot status. 

And with that, that opportunity having been 

provided to us in 2012, we had certainly expected that it 

would be consistent in 2016. And we were really quite 

shocked to learn after the fact that that was not going to 

be the case. 

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4 

5 

6 

7 

8 

9 And I would just urge you to look carefully at 

Attorney Kresky's submission which details, I think 

beautifully, how it is that the legal structures were 

established in order to meet our highest small-d democratic 

aspirations that our elections should be truly competitive, 

open, publicly funded to the extent possible, and that there 

would be a real opportunity for the American people to have 

an inclusive conversation and a diverse set of choices as a 

part of that process. 

Thank you for your consideration. 

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19 HEARING OFFICER: Thank you. This hearing is 

adjourned. 

(End of audio file.) 

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Attachment 3, page 21 of 21