USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 1 of 36 

UNITED STATES COURT OF APPEALS

for the

DISTRICT OF COLUMBIA CIRCUIT

No. 21-1213

DR. JILL STEIN AND JILL STEIN FOR PRESIDENT,

Petitioners,

- v. -

FEDERAL ELECTION COMMISSION,

Respondent.

ON APPEAL FROM AN ORDER ENTERED BY THE FEDERAL ELECTION

COMMISSION AT FEC-LRA 1021

REPLY BRIEF OF PETITIONERS

Oliver B. Hall

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090

Washington, D.C. 20009

(202) 248-9294 (ph)

oliverhall@competitivedemocracy.org

Counsel for Petitioners
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 2 of 36 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DR. JILL STEIN AND JILL STEIN )

FOR PRESIDENT, )

)

Petitioners, )

)

v. ) No. 21-1213

) FEC-LRA 1021

FEDERAL ELECTION )

COMMISSION, )

)

Respondent. )

PETITIONERS’ CERTIFICATE OF PARTIES, RULINGS AND RELATED

CASES

Pursuant to D.C. Cir. R. 28(a)(1), Petitioners Dr. Jill Stein and Jill Stein for

President (together, “the Committee”) respectfully submit the following Certificate

as to Parties, Rulings and Related Cases.

(A) Parties and Amici. This appeal arises directly from an agency

proceeding before Respondent Federal Election Commission (“the Commission”),

FEC-LAR 1021, pursuant to which the Commission made a repayment

determination following its audit of the Committee’s 2016 presidential campaign

committee. Dr. Jill Stein and Jill Stein for President were the only parties to the

agency proceeding. There were no intervenors or amici curiae in the agency

proceeding.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 3 of 36 

Jill Stein for President is a political committee. It is not incorporated and has

no parent company and no publicly-held company has any ownership interest in it.

(B) Ruling Under Review. The Committee seeks review of the

Commission’s repayment determination, dated September 30, 2021, which directs

the Committee to repay $175,272 to the United States Treasury. To the best of the

Committee’s knowledge and belief, no Federal Register citation exists for the

repayment determination.

(C) Related Cases. This case has not previously been before this Court or

any other court, and there are no related cases under D.C. Cir. R. 28(a)(1)(C).

Dated: August 18, 2022 Respectfully submitted,

s/Oliver B. Hall

Oliver B. Hall

D.C. Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090

Washington, DC 20009

(202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 4 of 36 

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................................... iii

INTRODUCTION...................................................................... 1

SUMMARY OF ARGUMENT....................................................... 3

ARGUMENT........................................................................... 4

I. The Commission Fails to Rebut the Committee’s Claim That

Section 9032(6) Violates the Equal Protection Clause as

Applied................................................................... 4

A. Section 9032(6) Imposes an Unequal Burden on Minor

Party Candidates as Applied.................................... 5

B. The Burden Imposed By Section 9032(6) Is Severe........ 11

C. Section 9032(6) Is Not Narrowly Tailored to Serve Any

Governmental Interest and Undermines the Purpose of the

Matching Payment Act..................................................... 14

II. The Commission Fails to Rebut the Committee’s Claim That the

Commission’s Failure to Consider the Committee’s Actual

Winding Down Costs Was Arbitrary, Capricious, an Abuse of

Discretion and Contrary to Law....................................... 16

A. The Committee Did Not “Waive” Its Argument That the

Commission Must Consider Evidence of Its Actual

Winding Down Costs........................................... 18

B. The Court Should Order the Commission to Supplement

the Record With the March Materials and to Reconsider

Its Repayment Determination Based on All the

Evidence.......................................................... 23

CONCLUSION......................................................................... 27

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CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

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USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 6 of 36 

TABLE OF AUTHORITIES

Cases

American Party of Texas v. White,

415 U.S. 767 (1974)...................................................................8

Bar MK Ranches v. Yuetter,

994 F.2d 735 (10th Cir. 1993)......................................................24

Buckley v. Valeo,

424 U.S. 1 (1976)..........................................................5,8,9,10,11

City of Waukesha v. Envtl. Prot. Agency,

320 F.3d 228 (D.C. Cir. 2003).....................................................20

IMS, P.C. v. Alvarez,

129 F.3d 618 (D.C. Cir. 1997).....................................................26

Jenness v. Fortson,

403 U.S. 431 (1971)............................................................5,7,11

LaRouche v. Federal Election Com’n,

996 F.2d 1263 (D.C. Cir. 1993)............................................ 14,15,16

Robertson v. Federal Election Commission,

45 F.3d 486 (D.C. Cir. 1995)........................................10,11,19,25,26

Simon v. Federal Election Com’n.,

53 F.3d 356 (D.C. Cir. 1995)...............................................14,15,16

Tribune Co. v. Fed. Communications Comm’n,

133 F.3d 61 (D.C. Cir. 1998)......................................................20

United States v. Hunter,

739 F.3d 492 (10th Cir. 2013)......................................................20

Statutes

26 U.S.C. § 9032(6)...............................2,3,4,5,6,7,9,10,11,12,13,14,15,16,27

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USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 7 of 36 

Regulations

11 C.F.R. § 9032.6.......................................................................2,5,11

11 C.F.R. § 9038.2(c)(2)(i).................................................................19

11 C.F.R. § 9038.7(a).......................................................................24

Rules

Fed. R. App. P. 18(a)(1)....................................................................13

Miscellaneous

Federal Election Commission,

Jill Stein for President – Financial Summary (January 1, 2022 – June 30,

2022)...........................................................................................13

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USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 8 of 36 

Petitioner Dr. Jill Stein (“Dr. Stein”) and her campaign committee Jill Stein

for President (together, “the Committee”) respectfully submit this Reply to the Brief

of Respondent filed by the Respondent Federal Election Commission (the

“Commission”) on July 28, 2022 (ECF No. 1953536) (“Resp. Br.”).

INTRODUCTION

This appeal involves a miscarriage of justice that cries out for judicial

intervention. Nearly five years after the 2016 presidential election, the Commission

issued its Repayment Determination in an attempt to claw back $175,272 that the

Committee properly received under the Matching Payment Act, even though it is

undisputed that any repayment obligation would be wiped out if the cost of the

Committee’s ballot access petition drives – which the Commission concedes are the

equivalent of a primary election – were treated as qualified campaign expenses, as

they were in 2012. It is also undisputed that any repayment obligation would be

wiped out if the Commission would simply tally the Committee’s actual winding

down costs, rather than relying on a low-ball estimate that does not even account for

a 16-month period when the Commission sat inert, lacking a quorum, while the

Committee continued to incur winding down costs that were not and could not have

been anticipated.

The Commission would have the Court treat this matter as a routine audit

arising from the straightforward application of a statute that raises no constitutional

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concerns, but that is a mischaracterization of the law and facts giving rise to this

appeal. As applied here 26 U.S.C. § 9032(6) – the provision that establishes a

candidate’s date of ineligibility under the Matching Payment Act – imposes severe

and unequal burdens on minor party candidates, it produces arbitrary results that

serve no governmental interest, and it frustrates the purpose of the Matching

Payment Act itself.1 Further, if this were a routine audit the Commission would have

determined long ago that the Committee owes nothing and closed the books on this

matter without the need for litigation. Meanwhile, a 71-year-old retiree’s personal

savings hang in the balance. Because the Committee itself is essentially defunct and

has minimal funds, Dr. Stein has been obliged to withdraw the full $175,272 from

her retirement account to satisfy the Repayment Determination while this appeal is

litigated.2 The Court should correct this manifest injustice. It should declare Section

9032(6) unconstitutional as applied and reverse the Repayment Determination or, in

1 26 U.S.C. § 9032(6) and its corresponding regulation, 11 C.F.R. § 9032.6, are

referenced hereinafter as “Section 9032(6)”.

2 The Commission states that the parties have not yet “establish[ed] a compliant

account at a financial institution to effectuate a stay on appeal....” (Resp. Br. at 42.)

The parties agreed to establish such an account at Amalgamated Bank in

Washington, D.C. and the Committee signed the final paperwork to do so in June

2022. Dr. Stein has withdrawn the $175,272 from her retirement account and

delivered it to the attorney representing her in the proceedings before the

Commission, Mr. Harry Kresky, in the form of a bank check. The Commission has

apparently not yet executed the paperwork establishing the Amalgamated Bank

account, but Mr. Kresky will deposit the check in the account as soon as the

Commission does so and the account is established.

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the alternative, the Court should reverse the Repayment Determination and remand

this matter to the Commission with instructions that the Commission credit the

Committee with its actual winding down costs.

SUMMARY OF ARGUMENT

The Committee has appealed from the Commission’s Repayment

Determination on two grounds, each of which provides an independently sufficient

basis for reversal. First, the Committee arguesthat Section 9032(6) violatesthe Fifth

Amendment guarantee of equal protection because it ensures that major party

candidates are eligible to receive funding for the entire duration of their primary

election campaigns but terminates minor party candidates’ eligibility in the midst of

theirs. The provision thus imposes severe and unequal burdens on minor party

candidates, produces arbitrary results, serves no legitimate governmental interest

and frustrates the purpose of the Matching Payment Act as applied to minor party

candidates.

The Commission fails to rebut this claim. It does not and cannot show that

Section 9032(6) imposes an equal burden on minor party and major party candidates,

or that the burden imposed on the Committee here is less than severe. The

Commission likewise fails to demonstrate that Section 9032(6) advances any

legitimate governmental interest. The Court should therefore declare Section

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9032(6) unconstitutional as applied and reverse the Commission’s Repayment

Order.

Reversal is also warranted because the Commission’s failure to consider the

Committee’s actual winding down costs, and the Commission’s insistence upon

relying on its much lower estimate of those costs, is arbitrary, capricious, an abuse

of discretion and contrary to law. The Commission’s assertion that the Committee

“waived” this issue has no merit. It is contradicted by the record and unsupported

by the authorities on which the Commission purports to rely. In the event that the

Court declines to hold Section 9032(6) unconstitutional as applied, therefore, the

Court should reverse the Repayment Order and remand this matter for consideration

of the Committee’s actual winding down costs.

ARGUMENT

I. The Commission Fails to Rebut the Committee’s Claim That

Section 9032(6) Violates the Equal Protection Clause as Applied.

The fundamental points that form the basis for the Committee’s equal

protection claim are not genuinely in dispute. First, Section 9032(6) unequally

burdens minor party candidates by terminating their eligibility for funding in the

midst of their primary election campaigns while guaranteeing that major party

candidates remain eligible for funding during the entire duration of their primary

election campaigns. Second, the unequal burden that Section 9032(6) imposes as

applied here is severe: but for that provision, the Committee would not owe one cent

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USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 12 of 36 

of the $175,272 the Commission demands in repayment. Third, Section 9032(6) is

not narrowly tailored to further any governmental interest but rather frustrates the

purpose of the Matching Payment Act as applied to minor party candidates. Because

the Commission does not and cannot rebut these points, Section 9032(6) violates the

Committee’s right to equal protection as applied. See Buckley v. Valeo, 424 U.S. 1,

96 (1976) (a public financing system violates the Fifth Amendment guarantee of

equal protection if it “unfairly or unnecessarily burden[s] the political opportunity

of any party or candidate.”).

A. Section 9032(6) Imposes an Unequal Burden on Minor Party

Candidates as Applied.

The Supreme Court has long recognized that “the grossest discrimination can

lie in treating things that are different as though they were exactly the same.”

Jenness v. Fortson, 403 U.S. 431, 442 (1971). As the Committee has explained,

Section 9032(6) embodies such invidious discrimination. (Brief of Petitioners (ECF

No. 1953536) (“Pet. Br.”) at 33-37.) It provides that candidates seeking the

nomination of a party that does not nominate by national convention become

ineligible to receive funding no later than the date on which major party candidates

become ineligible. See 26 U.S.C. 9032(6); 11 C.F.R. 9032.6(b). But there is a

critical difference between these two types of candidates: when major party

candidates become ineligible by winning their party’s nomination, they are

guaranteed automatic access to every state’s general election ballot, whereas minor

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party candidates may continue to incur the substantial costs of petitioning for access

to many state ballots.

As the Commission concedes, a minor party candidate’s petition drive to

obtain access to a state’s general election ballot is the functional equivalent of a

primary election. (Resp. Br. at 7-8, 35.) As such, the costs of ballot access petition

drives are “generally qualified campaign expenses....” (Id. at 7.) There is just one

hitch – the costs must be incurred “during the period for which the candidate is

eligible for matching payments.” (Id.)

Here, the Commission determined pursuant to Section 9032.6(a) that Dr. Stein

became ineligible on August 6, because that is the date on which she won the Green

Party’s nomination at its national convention. (Resp. Br. at 12-13.) Even though

the Committee was on that date in the midst of multiple petition drives to secure

access to the general election ballot in many states – and incurring the substantial

costs thereof, (Pet. Br. at 11) – the Commission concluded that such costs could no

longer be considered “qualified campaign expenses” under the Matching Payment

Act, based solely on the fact that the last day of a major party convention was July

28. (Resp. Br. at 13.) As applied to the Committee in 2016, therefore, Section

9032(6) terminated Dr. Stein’s eligibility for funding in the midst of her primary

election campaign.

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According to the Commission, Section 9032(6) as applied here “results in no

differential treatment between major and minor party candidates” simply because

Dr. Stein was nominated by the Green Party at a national convention and the

Commission applied the same rule to Dr. Stein as to the major party candidates who

were nominated at their parties’ national conventions. (Resp. Br. at 26.) That is

incorrect. Section 9032(6) rendered Dr. Stein ineligible to receive funding for ballot

access costs that the Commission concedes would have been qualified campaign

expenses but for one factor: they were incurred after the last day of the last major

party convention. (Resp. Br. at 27.) Major party candidates do not incur such costs

after their conventions. The Commission’s assertion that Section 9032(6) prescribed

Dr. Stein’s eligibility “for a period of time that closely approximates” the eligibility

period of the major party candidatesis therefore no defense to the Committee’s equal

protection claim. (Resp. Br. at 26). Section 9032(6) is invidiously discriminatory

precisely because it applies the same rule to minor party and major party candidates

even though they are not similarly situated. See Jenness, 403 U.S. at 442. In so

doing, the provision ensures that major party candidates are eligible for funding for

the full duration of their primary election campaigns, but terminates minor party

candidates’ eligibility for funding in the midst of theirs.

The Commission insists that Section 9032(6) is not invidiously discriminatory

because “[t]he Constitution does not require the Government to ‘finance the efforts

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of every nascent political group’ merely because Congress chose to finance” some

campaign activity. (Resp. Br. at 27 (quoting Buckley, 424 U.S. at 98 (quoting

American Party of Texas v. White, 415 U.S. 767, 794 (1974)).) But the Committee

has never contended that the Government hassuch a duty, nor must it do so to prevail

on its equal protection claim. The Commission’s assertion that American Party of

Texas and Buckley “preclude” that claim (Resp. Br. at 28) is simply wrong: neither

case addresses the issue raised in this appeal, much less do they preclude the

Committee’s claim.

In American Party of Texas, certain minor parties asserted an equal protection

challenge to a Texas statute that provided public funding for major parties’ primary

elections, but did not provide funding for minor parties’ petition drives. See

American Party of Texas, 415 U.S. at 791-94. The Supreme Court rejected the

challenge, observing that it was primarily asserted by a party that “failed to qualify

for the general election ballot.” Id. at 794. The Court concluded that the State’s

obligation to provide funding for primary elections held by parties whose

gubernatorial candidates received more than 200,000 votes did not entail the

obligation to provide public funding for every entity that “unsuccessfully attempt[s]

to win a place on the general election ballot.” Id. at 792, 794.

Here, by contrast, there is no dispute that Dr. Stein successfully won a place

on many state ballots and was qualified to receive funding under the Matching

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Payment Act. The Committee did receive such funding. The Committee challenges

Section 9032(6), however, because it guarantees that major party candidates are

eligible for funding for the entire duration of their primary election campaigns, but

terminated Dr. Stein’s eligibility in the midst of hers. The language that the

Commission cherry-picks from American Party of Texas is therefore inapposite.

(Resp. Br. at 27.) Nothing in that case supports the Commission’s assertion that the

government may impose such unequal treatment on candidates that qualify for

funding.

The Commission’s reliance on Buckley is similarly misplaced. That case

involved an equal protection challenge to the eligibility criteria for candidates to

receive funding under the Federal Election Campaign Act. See Buckley, 424 U.S. at

93-104. The statute provided for greater funding for candidates of parties that had

demonstrated greater public support, lesser funding for candidates of parties with

lesser support, and precluded funding for candidates of parties that failed to

demonstrate a requisite modicum of support. See id. at 97. The Supreme Court

upheld the criteria, reasoning that “[i]dentical treatment of all parties ... would not

only make it easy to raid the United States Treasury, it would also artificially foster

the proliferation of splinter parties.” Id. at 98 (citation and internal quotation marks

omitted). Buckley therefore stands for the unremarkable proposition that the

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government may condition public funding on a corresponding demonstration of

public support. See id. at 97-98.

The Court’s observation in Buckley that Congress need not “treat all

candidates the same for public financing purposes” supports the conclusion that

Congress was “justified in providing both major parties full funding and all other

parties only a percentage of the major-party entitlement.” Buckley, 424 U.S. at 98.

It does not support the Commission’s assertion that, having determined Dr. Stein’s

eligibility for funding, Congress was justified in terminating her eligibility in the

midst of her primary election campaign simply because the major party candidates

have won their nominations and thereby obtained automatic access to the general

election ballot in every state. On the contrary, Buckley expressly recognizes that a

public financing system violates the Fifth Amendment guarantee of equal protection

if it “unfairly or unnecessarily burden[s] the political opportunity of any party or

candidate.” Buckley, 424 U.S. at 96. That is the essence of the Committee’s

challenge to Section 9302(6). Moreover, this Court has reaffirmed that a candidate

may properly challenge the Matching Payment Act’s “criteria for eligibility,

disbursement, or repayment,” Robertson v. Federal Election Commission, 45 F.3d

486, 491 (D.C. Cir. 1995) (emphasis added), which is what the Committee does here.

The Commission further asserts that the unequal burden imposed by Section

9032(6) as applied here “results from application of various State laws, not the

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Matching Payment Act.” (Resp. Br. at 28.) That is incorrect. The unequal burden

arises from the fact that Section 9032(6) arbitrarily establishes a minor party

candidate’s date of ineligibility based on the date on which the major party

candidates become ineligible. See 26 U.S.C. 9032(6); 11 C.F.R. 9032.6(b). The

provision does so without regard for the disparate consequences that flow from

treating these differently-situated candidates as though they were exactly alike. It is

therefore invidiously discriminatory. See Jenness, 403 U.S. at 442.

B. The Burden Imposed By Section 9032(6) Is Severe.

The Commission conspicuously fails to address the severity of the burden that

Section 9032(6) imposes as applied here, and with good reason. By any reasonable

standard, the burden is severe. This case is not like Robertson, in which a candidate

accepted funding under the Matching Payment Act and then “mounted a categorical,

structural challenge” to the statute “as a ploy” to avoid repayment. Robertson, 45

F.3d at 490. Nor is it like Buckley, where the plaintiffs claimed they were entitled

to the same public funding to which major parties with greater public support were

entitled. In that case, the Court reasonably concluded that the public funding plan

did not “disadvantage[] nonmajor parties by operating to reduce their strength below

that attained without any public financing.” Buckley, 424 U.S. at 98-99.

Here, by contrast, nearly five years after the conclusion of the 2016 general

election, the Commission is attempting to claw back $175,272 in matching funds,

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none of which would be owed if Section 9032(6) had not terminated Dr. Stein’s

eligibility in the midst of her primary election campaign. [App. 61 (Rep. Det. at 1).]

Further, the Commission did not inform Dr. Stein that her date of ineligibility was

August 6, 2016 until August 17, 2016, when the Committee was already committed

to paying the costs of the petition drives that were underway in multiple states. (Pet.

Br. at 11.) As a result, the Committee accepted the funds in good faith and spent

them on the petition drives, which the Commission concedes are “generally qualified

campaign expenses,” (Resp. Br. at 7), only to discover after the fact that they are not.

The Commission further concedes that in 2012, all of Dr. Stein’s ballot access

costs were deemed qualified campaign expenses, and that consequently, no

repayment of the funds she received under the Matching Payment Act was due.

(Resp. Br. at 11-12; Pet. Br. at 9-10.) The only reason for this disparate outcome is

that in 2012, the last date of a major party nominating convention was September 6,

which happened to coincide with the last deadline for filing nomination petitions in

any state, whereas in 2016 the last date of a major party nominating convention was

July 28, which was well in advance of several state filing deadlines. (Pet. Br. at 10-

11.) But for that fact, which has no bearing on whether a minor party candidate is

making expenditures for primary election activities and over which the candidate

has no control, the Committee would have no repayment obligation here.

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To make matters worse, the Committee is now essentially defunct and has

minimal funds available. See Federal Election Commission, Jill Stein for President

– Financial Summary (January 1, 2022 – June 30, 2022), available at

https://www.fec.gov/data/committee/C00581199/ (accessed August 17, 2022)

(showing $52,747.96 in cash on hand and $90,750.00 in outstanding debts). As Dr.

Stein is personally liable for the repayment obligation, she has been forced to

withdraw the full amount, $175,272, from her retirement savings to place in escrow

pending the outcome of this appeal. See supra at n.2; see also Fed. R. App. P.

18(a)(1).

The Commission asserts that the Committee’s claim of “financial hardship”

ignores the Commission’s “efforts to recover public monies that should not have

been paid,” either because Dr. Stein was ineligible or because the Committee’s

expenses were “improperly documented and preserved.” (Resp. Br. at 41.) The

Committee addresses the Commission’s legalistic treatment of the issue of winding

down expenses infra at Part II. With respect to Dr. Stein’s ineligibility, however,

that is due entirely to the arbitrary application of Section 9032(6), which cannot

justify the severe and unequal burden the provision imposes as applied here.3

3 The Commission’s blithe assurance that the Committee “may use private

contributions” to satisfy the Repayment Determination does little to alleviate the

burden, (Resp. Br. at 42), because contributions to a political campaign that ended

nearly seven years ago are minimal, as reflected by the fact that the Committee’s

outstanding debts exceed its current cash on hand. See supra at p.11.

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C. Section 9032(6) Is Not Narrowly Tailored to Serve Any

Governmental Interest and Undermines the Purpose of the

Matching Payment Act.

In the proceedings below, the Commission attempted to justify the severe and

unequal burden that Section 9032(6) imposes as applied here on the ground that it

furthered Congress’s intent “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.” (Pet. Br. at 35.) As the Committee has explained, this

misstatement of law directly contradicts the precedent of the Supreme Court and this

Court, and the Commission does not and cannot cite any authority for it. (Pet. Br.

at 35-36.) In enacting the Matching Payment Act, “it was Congress’s explicit

intention that the funds be issued on a nondiscriminatory basis.” LaRouche v.

Federal Election Com’n., 996 F.2d 1263, 1267 (D.C. Cir. 1993).

Now the Commission abandons its prior position and asserts a number of new

rationales in an attempt to justify the severe and unequal burden that Section 9032(6)

imposes. None of them has merit. The Commission asserts, for instance, that the

Matching Payment Act “was never intended to be the sole source of funds or cover

all possible expenses,” (Resp. Br. at 25), but that has never been in dispute. As the

Committee has acknowledged, the Matching Payment Act establishes a matching

program, whereby candidates are “entitled to receive payments ... to match

individual contributions up to $250.” (Pet. Br. at 38 (quoting Simon v. Federal

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Election Com’n., 53 F.3d 356, 357 (D.C. Cir. 1995).) The Commission’s assertion

therefore misses the point of this appeal: the question presented is not whether

Section 9032(6) prevented the Committee from obtaining public funding for all of

its expenses, but rather whether the provision prevents public funds from being

issued “on a nondiscriminatory basis.” LaRouche, 996 F.2d at 1267.

Section 9032(6) plainly fails that test. Its failure is demonstrated by the

arbitrary results it produced as applied to Dr. Stein in 2012 versus 2016. In 2012,

the provision authorized all of Dr. Stein’s ballot access costs as qualified campaign

expenses, but in 2016 it prohibited a substantial portion of them. The only reason

for this difference is that the last day of a major party nominating convention in 2012

was September 6, whereas in 2016 it was July 28.

What governmental interest is served by a statutory provision that produces

such wildly disparate results? The Commission asserts just one. Section 9032(6) is

necessary, the Commission contends, to prevent the “artificial extension of the

period of eligibility.” (Resp. Br. at 26.) According to the Commission, if Section

9032(6) were not in effect, “a candidate seeking the nomination of a major party

could also seek the nomination of an independentstate party with a later ballot access

deadline, and thereby arbitrarily extend the candidate’s eligible period.” (Id. at 26-

27.) But if that is the interest furthered by the provision, then Section 9032(6) is

grossly over-inclusive because it also applies to nonmajor party candidates.

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Furthermore, it could easily be more narrowly tailored simply by specifying that a

major party candidate becomes ineligible on the date on which the candidate wins

the major party’s nomination.

As applied to nonmajor party candidates, Section 9032(6) furthers no

governmental interest at all. It cuts off their eligibility to receive primary election

matching funds in the midst of what the Commission concedes is their primary

election campaign. (Resp. Br. at 7-8, 35.) Section 9032(6) does not artificially

extend minor party candidates’ eligible period – it artificially shortens it without any

justification. The provision therefore frustrates the very purpose of the Matching

Payment Act as applied to minor party candidates. See Simon, 53 F.3d at 357

(purpose of Matching Payment Act is “to provide partial federal financing for the

campaigns of qualifying presidential primary candidates.”); LaRouche, 996 F.2d at

1267 (“The object of the statute is to enhance the ability of candidates to present

their positions and themselves to voters in presidential primaries.”) (citation

omitted).4

II. The Commission Fails to Rebut the Committee’s Claim That the

Commission’s Failure to Consider the Committee’s Actual

Winding Down Costs Was Arbitrary, Capricious, an Abuse of

Discretion and Contrary to Law.

4 The Commission suggests that the Commission “is free to petition Congress for a

remedy,” (Resp. Br. at 36), but even if successful such an effort would come too late

to remedy the Repayment Order in this case. Consequently, the Committee’s only

opportunity to obtain a remedy is to seek redress from this Court.

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The Commission’s failure to consider the Committee’s actual winding down

costs, as it committed to do repeatedly in the proceedings below, is a separate and

independently sufficient ground for reversal of the Repayment Determination.

Significantly, the Commission does not dispute that if it had done so, the Committee

would not owe one cent of its purported $175,272 repayment obligation. The

Commission also does not dispute that the Committee explicitly raised this issue in

its timely-filed written request for review, (Resp. Br. at 37), or that the Committee

timely filed evidence in support of its argument that its actual winding down costs

eliminate its purported repayment obligation – i.e., the financial records the

Commission designated as the “February Materials” and the “March Materials” but

omitted from the Administrative Record.5

Based upon the foregoing undisputed facts, the Commission could have

properly resolved this matter simply by reviewing the February Materials and March

Materials, [AR 326-54 (February Materials); Supp. App. (March Materials)],

verifying the Committee’s actual winding down costs, and then relying on those

costs to determine whether the Committee actually has any repayment obligation.

The evidence in the record demonstrates that doing so would have eliminated the

5 The Commission maintains that the February Materials and March Materials “were

not timely submitted,” (Resp. Br. at 41 n.7), but it does not dispute that the

Committee submitted all of this evidence within five days of the administrative

hearing before the Commission, as it was expressly authorized to do. (Fed. Elec.

Com’s Opp. to Pet.’s Mot. to Supp. Record (ECF No. 1936201) at 7-8 & n.4.)

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Committee’s purported repayment obligation and obviated the need for this appeal.

[AR 326-54 (February Materials); Supp. App. (March Materials).] Furthermore, the

entire process likely would not take more than a few hours of a competent auditor’s

time.

Instead, without disclosing it to the Committee or to the Court, the

Commission withheld the February Materials and the March Materials from the

Administrative Record, which obliged the Committee to file its Emergency Motion

to Suspend Briefing and Motion to Supplement Administrative Record. (Pet. Br. at

28-29.) Pursuant to the Court’s April 28, 2022 Order granting that motion in part

(ECF No. 1944749), the February Materials are now part of the Administrative

Record, and the parties are permitted to reference the March Materials in their

briefing. Yet the Commission concedes that it did not consider any of this timely

filed evidence. (Resp. Br. at 37.) In the event that the Court does not declare Section

9032(6) unconstitutional, therefore, the Court should remand this matter to the

Commission for consideration of that evidence in the first instance.

A. The Committee Did Not “Waive” Its Argument That the

Commission Must Consider Evidence of Its Actual Winding

Down Costs.

According to the Commission, it was justified in disregarding the very

evidence that proves the Committee has no repayment obligation, and withholding

that evidence from the Administrative Record, because the Committee “waived” its

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opportunity to raise the issue of its actual winding down costs. (Resp. Br. at 37.)

The Commission insists that the Committee’s express statement that the

Commission’s “findings concerning the nature of winding down expenses ... cannot

survive scrutiny,” and that “no repayment would be called for” if reimbursement for

these and other expenses were allowed [AR 261] was insufficient to preserve the

issue. (Resp. Br. at 37-38.) The Commission is incorrect.

As the Commission concedes, the purpose of the requirement that all issues

must be raised in a written submission under 11 C.F.R. § 9038.2(c)(2)(i) is “to ensure

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

authority.” (Resp. Br. at 38 (citing Robertson, 45 F.3d at 491).) Here, it is

undisputed that the Committee did raise the issue of its winding down costs in its

written submission. [AR 261.] This case therefore stands in sharp contrast to

Robertson, in which the “petitioner’s written submission simply did not make” an

argument first raised in the oral hearing before the Commission. Robertson, 45 F.3d

at 491 (emphasis original).

The other cases the Commission cites are likewise distinguishable. In one

case, the petitioners argued in a reply brief that “EPA violated § 1412(b)(3)(B) by

failing to specify ‘an upper bound, lower bound, and central risk estimate’ or to

identify ‘the range of alternative risk estimates produced by other methods that use

the dial painterstudies,’ and ignored the congressional directive ‘to inform the public

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of alternative risk estimates that put the regulation in broader public health context.”

City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 250-51 n.22 (D.C. Cir. 2003)

(internal quotation marks and citations omitted). The Court deemed this complex

scientific argument waived because the petitioner’s opening brief raised it “only

summarily, without explanation or reasoning” that made it comprehensible. Id.

Here, by contrast, the Committee’s argument is simply that its actual winding down

costs exceed the Commission’s estimate of those costs. Further, the Committee

explained that “no repayment would be called for” if the Commission considered

these costs. [AR 261.] Unlike the complex scientific argument in City of Waukesha,

further explanation is not needed to make that argument comprehensible.

In another case, the Court concluded that an argument was not waived, even

though the appellant “devoted only one paragraph in a 58 page brief” to developing

it. Tribune Co. v. Fed. Communications Comm’n, 133 F.3d 61, 69 n.8 (D.C. Cir.

1998). Finally, a Court concluded that an appellant had waived her equal protection

claim because she failed to address a required element of the claim in her opening

brief. See United States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013). The

Committee committed no such error here. The Commission’s own authorities thus

demonstrate that the Committee did not waive its winding down costs argument

here.

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Moreover, the Commission itself does not contend that it lacked notice of the

nature of the Committee’s challenge to its reliance on estimated rather than actual

winding down costs, nor could it: the Committee expressly asserted that “no

repayment would be called for” if the Commission considered the Committee’s

actual winding down costs. [AR 261.] In addition, when the Commission declined

to allow the Committee the opportunity resolve the issue during the administrative

proceedings, the Commission expressly contemplated that the issue could be

addressed during the “administrative review” process. [AR 199, 206.] The

Commission therefore had actual notice of the nature of the Committee’s argument.

Despite this fact, the Commission asserts that the Committee had a

“responsibility to adequately raise the issue in its written challenge to the repayment

determination.” (Resp. Br. at 39.) The Committee did so. By the same token, the

Commission has a responsibility not to feign ignorance with respect to a dispositive

issue that the Committee expressly raised for review in its written submission. Given

what is at stake in this appeal – the removal of $175,272 from a retiree’s personal

savings in satisfaction of a debt she does not owe – the Commission’s resort to

strained legalistic argumentation in an effort to evade judicial review of that issue is

unconscionable.

The impropriety of the Commission’s reasoning is exemplified by its

insistence that the Committee “waived” its right to raise the issue of the winding

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down costs it incurred during the 16-month period from August 2019 to December

2020, when the Commission unexpectedly lost a quorum and was unable to take

action on the Committee’s request for administrative review. (Resp. Br. at 41.) The

Committee could not possibly have raised this issue in a request for review that it

submitted on June 17, 2019, because the Commission had not yet lost its quorum.

[AR 261-67.] In the Commission’s view, however, the Committee must do the

impossible – it must predict the future – in order to “preserve the issue” for review.

(Resp. Br. at 41.) Reversal of the Repayment Determination is warranted based on

this issue alone, because the imposition of an impossible burden violates due process

and any semblance of fairness.

More broadly, fundamental principles of justice and equity warrant reversal

of the Repayment Determination. The Commission’s refusal to consider the

Committee’s actual winding down costs appears to be motivated as much by pique

than by any genuine concern for proper notice and preservation of issues. The

Commission attacks the Committee, for example, for being “uncooperative” and

failing to respond to requests for documentation, and further asserts that the

Committee “overstates the extent to which it raised winding down costs in its prior

submissions to the Commission.” (Resp. Br. at 40.) In so doing, the Commission

overstates the extent to which a grassroots minor party candidate’s campaign staffed

largely by laypeople and volunteers is equipped to navigate the Byzantine

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procedures and regulations that the Commission administers. Campaign finance law

is challenging for sophisticated legal professionals; it can be near-impossible for

anyone else to master. To the extent that the Commission found the Committee

“uncooperative” it is a reflection of that reality – not any willful disregard on behalf

of the Committee, which would be contrary to the Committee’s own interests.

The straightforward application of well-settled legal principles to the facts

demonstrates that Committee should prevail in this appeal. The Committee

expressly raised the issue of winding down costs in its timely-filed written request

for administrative review and it should be permitted the opportunity to litigate that

issue based on the relevant evidence. The Commission’s assertion that the

Committee waived this issue is contradicted by the record and unsupported by the

authorities on which the Commission purports to rely. Moreover, to deny the

Committee its right to administrative and judicial review would be to elevate form

over substance at the expense of truth and justice. It is the difference between

requiring a candidate to pay $175,272 that she does not owe and requiring a federal

agency to perform its statutory duty based on the relevant evidence, not a rigid and

narrow application of the waiver doctrine. That is, after all, the Commission’s very

reason for existence.

B. The Court Should Order the Commission to Supplement the

Record With the March Materials and to Reconsider Its

Repayment Determination Based on All the Evidence.

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The Commission should be required to supplement the record with the March

materials, and to reconsider its Repayment Determination based upon all the

evidence in the record, for the reasons stated in the preceding discussion and in the

Committee’s opening brief at Part II.B-C. (Pet. Br. at 46-50.) Nothing in the

Commission’s brief alters that conclusion.

The Commission asserts that it is not required to include the March materials

in the record because they “were never ‘submitted to the Commission for its

consideration in making the [repayment] determinations,’ and thus are not part of

the ‘administrative record.’” (Resp. Br. at 43 (quoting 11 C.F.R. § 9038.7(a)).) That

is incorrect. The contents of the administrative record are prescribed by § 9038.7(a),

and that section is not abrogated simply because the Commission declines to

consider evidence that a party properly submits. Otherwise, the Commission could

evade judicial review of any issue – even those timely and properly raised – provided

that it declines to consider the evidence relating to it. As the Commission’s own

authorities emphasize, “an agency may not unilaterally determine what constitutes

the Administrative Record [and thereby limit the scope of this Court’s inquiry].”

Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993). The Court should

not permit the Commission to do so here.

The Commission faults the Committee for the timing of its evidentiary

submissions, “nearly two years” after the Committee timely submitted its request for

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administrative review, (Resp. Br. 44), but disregards the fact that the Commission

had notified the Committee that it lacked a quorum during that time and could take

no action on the Committee’s request. At no time during this period did the

Commission notify the Committee that it should submit its evidence despite the

Commission’s inability to consider it. At no time during the entire administrative

process did the Commission notify the Committee of any deadline for submitting its

evidence. The Committee accordingly submitted its evidence within five days of

the Commission’s oral hearing, as the Commission expressly advised the Committee

that it could do. [AR 274.]

The Commission asserts that “a Commissioner’s statement that a committee

could submit additional materials after an oral hearing does not expand the

categories of materials that could be timely submitted,” and that “the Commission’s

regulation permitting committees to submit materials after an oral hearing ‘can be

interpreted to limit additional material to the previously raised subjects—which is

exactly how the Commission does interpret it.’” (Resp. Br. at 44 (quoting

Robertson, 45 F.3d at 491.) But here, the Committee does not seek to “expand the

categories of materials” that it should be permitted to submit. On the contrary, the

Committee only seeks inclusion of evidence submitted following the administrative

hearing, at the Commission’s direct invitation, which unequivocally pertains to an

issue that the Committee properly raised in a timely-filed written request for

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administrative review. Robertson expressly approves that procedure. See

Robertson, 45 F.3d at 491. Robertson therefore supports the Committee’s position,

not the Commission’s.

Indeed, the Commission concedes that “a party can present additional

documentation in support of its position on issues that were timely raised” in a

written request for administrative review. (Resp. Br. at 45 (emphasis original).)

Despite the Commission’s repeated assertions to the contrary, it is a matter of record

that the Committee did raise the winding down costs issue in a timely filed written

request for administrative review. (AR 261.) The Commission’s failure to include

the Committee’s evidence relating to that issue in the record is therefore contrary to

law.

To the extent that the Commission has undermined the process of judicial

review by omitting the March Materials from the Administrative Record, that

omission counsels in favor of remanding this matter for consideration based upon

the full evidentiary record – not affirming a decision that the Commission made

without regard for the relevant evidence. As the Commission concedes, a court

“should have before it neither more nor less information than did the agency when

it made its decision.” (Resp. Br. at 42 (quoting IMS, P.C. v. Alvarez, 129 F.3d 618,

623 (D.C. Cir. 1997).) Here, the Commission did have the March Materials before

it when it made its Repayment Determination, but it declined to consider that

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evidence. As the Commission further concedes, if the Court concludes its failure to

consider that evidence was error, remand is the appropriate remedy. (Resp. Br. at

41 n.7.)

CONCLUSION

For the foregoing reasons, and those stated in the Committee’s principal brief,

the Court should declare Section 9032(6) unconstitutional and reverse the

Commission’s Repayment Order. Alternatively, the Court should reverse the

Commission’s Repayment Order and remand this matter with instructions to the

Commission to adjust its estimate of the Committee’s winding down costs to reflect

the Committee’s actual winding down costs and to modify the Repayment

Determination accordingly.

Dated: August 18, 2022 Respectfully submitted,

s/Oliver B. Hall

Oliver B. Hall

D.C. Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090

Washington, DC 20009

(202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners

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CERTIFICATE OF SERVICE

I hereby certify that on August 18, 2022, I caused the foregoing document to

be filed using the Court’s CM/ECF system, which will effect service upon all

counsel of record.

/s/Oliver B. Hall

Oliver B. Hall
 

 

 

 

 

 

 

 

 

 

 

USCA Case #21-1213 Document #1959946 Filed: 08/18/2022 Page 36 of 36 

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of FRAP

32(a)(7)(B) because it contains 6,350 words (including footnotes and endnotes),

excluding those parts exempted by FRAP 32(f). This brief complies with the

typeface requirements of Rule 32(a)(5) and the type style requirements of Rule

32(a)(6) because it has been prepared in a proportionately spaced typeface using

Microsoft Word, Times New Roman, size 14 point.

/s/Oliver B. Hall

Oliver B. Hall

2