UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

DR. JILL STEIN AND JILL STEIN ) 

FOR PRESIDENT, ) 

) 

Petitioners, ) 

) 

v. ) No. ______________ 

) 

FEDERAL ELECTION ) 

COMMISSION, ) 

) 

Respondent. ) 

PETITION FOR REVIEW OF AGENCY ACTION 

Petitioners Dr. Jill Stein and Jill Stein for President (“Stein”) hereby petition 

this Court for review of the final determination of Respondent Federal Election 

Commission (“the Commission”), which the Commission made on September 30, 

2021 and served upon Stein on October 1, 2021 in LRA No. 1021. A copy of the 

Commission’s notice of its final determination and the Commission’s Statement of 

Reasons in support of the final determination is submitted herewith. 

Stein respectfully seeks review of the Commission’s final determination 

insofar as it orders Dr. Stein and Jill Stein for President to pay the Commission 

$175,272. 

There were no parties to the proceedings before the Commission other than 

Stein and the Commission. 

21-1213

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2 

 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 

CERTIFICATE OF SERVICE 

 I hereby certify that the foregoing document was filed using the Court’s 

CM/ECF system on October 29, 2021, and that, pursuant to Federal Rule of 

Appellate Procedure 15(c), the Clerk must serve the foregoing document on 

Respondent Federal Election Commission. 

 s/Oliver B. Hall 

 Oliver B. Hall 

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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 

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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 

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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. 

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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.

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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. 

7 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.

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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 

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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.”).

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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).

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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 

14 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.

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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 

15 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.

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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 

16 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.

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Page 14

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. 

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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 

20 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).

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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. 

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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). 

23 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 

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

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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). 

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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).

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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

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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

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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

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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

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Attachment 2, page 5 of 7

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JILL STEIN FOR PRESIDENT

PO BOX 260197

MADISON, WI 53726

Jill Stein for President | PO Box 260197, Madison, WI 53726

www.Jill2016.com | Finance@Jill2016.com

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

Attachment 2, page 6 of 7

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JILL STEIN FOR PRESIDENT

PO BOX 260197

MADISON, WI 53726

Jill Stein for President | PO Box 260197, Madison, WI 53726

www.Jill2016.com | Finance@Jill2016.com

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.

Attachment 2, page 7 of 7

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BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of )

) Agenda Document

) No. 21-10-A

Administrative Review Hearing: )

Jill Stein Repayment )

Determination )

(LRA #1021) )

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

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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

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1 P R O C E E D I N G S

2 HEARING OFFICIAL: Good morning. The oral hearing 

3 for the Jill Stein For President will now come to order. I 

4 want to remind everyone that for today's regular open 

5 meeting, it will begin 15 minutes, excuse me, after the 

6 conclusion of this hearing.

7 This hearing will be conducted pursuant 11 C.F.R. 

8 section 9038.2(c)2. Jill Stein For President is the 

9 principal campaign committee of former presidential 

10 candidate Dr. Jill Stein. The committee requested 

11 administrative review of the Commission's determination that 

12 the committee must repay public matching funds in the amount 

13 of $175,272 to the United States Treasury. As part of its 

14 administrative review request, the committee requested this 

15 oral hearing, which was granted by the Commission on January 

16 22nd of 2021.

17 Before us today, we have Mr. Harry Kresky, counsel 

18 for the committee, along with former presidential candidate 

19 Dr. Jill Stein, and campaign volunteers Ms. Nassim Nouri and 

20 Mr. John Andrews. And I want to say welcome to all of you.

21 Representing the Commission we have from our 

22 Office of General Counsel Mr. Joshua Bloom, Ms. Jennifer 

23 Waldman, Mr. Lorenzo Holloway and Mr. Neven Stipanovic.

24 The Commission's consideration of the repayment 

25 issue in this matter has an extensive history so I'll first 

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1 provide a little background.

2 The Green Party nominated Dr. Stein as its 

3 presidential candidate on August the 6th, 2016 during its 

4 national nominating convention. Shortly after the 

5 convention, the Commission concluded that Dr. Stein's date 

6 of ineligibility was August the 6th, the date of the 

7 nomination.

8 The date of ineligibility, DOI for short, is a 

9 term mentioned numerous times in the Commission's 

10 regulations and refers to the ending date of the matching 

11 payment period.

12 The committee challenged the Commission's DOI 

13 determination on two separate occasions, and each time the 

14 Commission affirmed that the DOI was August the 6th of 2016.

15 The question of whether of Dr. Stein's DOI should 

16 be later than August 6th is significant because the 

17 determination of the DOI controls the magnitude of the 

18 committee's repayment obligation.

19 On April 16th, 2019, the Commission completed its 

20 audit of the committee's activities during the 2015/2016 

21 presidential election cycle and issued its final audit 

22 report. The audit report concluded that the committee had 

23 to repay $175,272 to the United States Treasury because the 

24 committee had surplus campaign funds as of the DOI and had 

25 received excess public funds after that date.

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1 Once the Commission issues a final audit report, a 

2 publicly financed candidate, such as Dr. Stein, may seek 

3 administrative review of the Commission's repayment 

4 determination, and the committee has exercised that option 

5 here on her behalf.

6 The sole purpose of today's hearing is to give the 

7 committee an opportunity to address through the Commission 

8 and to demonstrate that no repayment or a lesser repayment 

9 is required.

10 In past oral hearings regarding repayment 

11 determinations, we have given the committee's representative 

12 up to 30 minutes for an opening presentation. I suspect 

13 that counsel might not need that much time this morning, but 

14 we do want to make sure that the committee is treated the 

15 same as others who have come before us to challenge 

16 repayment determinations.

17 Counsel, your presentation should be limited to 

18 those matters raised in the committee's written response to 

19 the Commission's repayment determination that you filed on 

20 June 17th, 2019. The administrative review process set 

21 forth in 11 C.F.R section 9038 .2(c)2 allows for challenges 

22 to repayment determinations. Accordingly, this hearing is 

23 not a proper forum to address other challenges.

24 At the conclusion of the committee's presentation, 

25 each Commissioner will have the opportunity to ask 

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1 questions. I will then ask the General Counsel and the 

2 audit division if they have any questions. At the end of 

3 today's hearing, you'll have the opportunity to make a 

4 closing statement.

5 After this hearing, the committee will have five 

6 days in which to submit additional materials for Commission 

7 consideration. Pursuant to 11 C.F.R. section 9038.2(c)3, 

8 the Commission will then make a repayment determination 

9 following an administrative review and issue a statement of 

10 reasons in support of that determination.

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 

14 everybody hear me? I’m Harry Kresky. Good morning. I'm 

15 the attorney for the Jill Stein For President Committee 

16 2016.

17 The repayment that we're considering today is 

18 based on a date of ineligibility, a DOI, that's unsupported 

19 by law, logic, and precedent. It undermines the effort to 

20 achieve a fair balance between candidates of the major 

21 parties and independent and minor party presidential 

22 candidates. It ignores the fact that unlike major party 

23 candidates whose nomination guarantees them a ballot line in 

24 all 50 states, candidates like Dr. Stein have to undergo an 

25 extended effort to petition for a place on the ballot for 

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1 weeks after receiving a minor party nomination. A system 

2 that does not take this into account is unjustifiable as a 

3 matter of law and public policy.

4 A candidate seeking a major party nomination can 

5 receive matching funds throughout his or her effort to win 

6 their party's nomination. If the DOI of a minor party 

7 candidate is the date of their nominating convention, he or 

8 she is deprived of matching funds at the very point where 

9 the arduous and expensive effort to achieve ballot status --

10 ballot access -- intensifies. In light of the realities of 

11 independent and minor party presidential campaigns, the only 

12 fair framework is one that assures that funds expended on 

13 ballot access are matchable regardless of convention dates 

14 of the various parties, major and minor.

15 The final -- excuse me -- the final audit report 

16 states on page 11 that the candidate's DOI was August the 

17 6th, 2016. That was the date of the Green Party convention. 

18 However, this is inconsistent with a series of Advisory 

19 Opinions issued by the Commission dating back to 1975.

20 In AOR 1975-53, the Commission stated, "with 

21 respect to individuals seeking a ballot position in the 

22 general election for federal office without nomination by a 

23 party, a primary election shall be deemed to have occurred 

24 when the day prescribed by applicable state law as the last 

25 day to qualify for a petition on the general election 

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1 ballot, or the date of the last major party convention" --

2 I’m sorry -- "major party primary election, whichever is 

3 later."

4 A source of confusion may have been AOR 1975-44 

5 where the issue was how to apply limits to campaign 

6 donations. There, the Commission, in an effort to having 

7 uniform limit for various campaigns, stated "Accordingly, 

8 for the purpose applying the limitations in 18 U.S.C. 

9 Section 608, the Commissioner will view the petition process 

10 required of the presidential candidates of the minor parties 

11 as the equivalent of the primary elections and convention 

12 process of the major party candidates. Therefore, an 

13 individual may contribute $1,000 to a presidential candidate 

14 of a minor party for his or her petition effort and another 

15 $1,000 to the candidate for his or her general election 

16 effort.

17 "Since the dates pertaining to petition 

18 qualification vary from state to state, the Commission 

19 considers it necessary to prescribe a uniform date when for 

20 purposes of 18 U.S.C. 608(b), the petition process ends for 

21 minor party presidential candidates. The Commission 

22 concludes that the prescribed date should be when the 

23 presidential nominee last selected before the general 

24 election is nominated by a national nominating convention of 

25 a major party."

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1 This seeming contradiction can be reconciled by 

2 recognizing that AOR 1975-44 applies to the question of how 

3 to uniformly apply contribution limitations. That is not 

4 the issue in the case at bar. Rather, it is when 

5 expenditures by the 2016 Stein Campaign cease to be 

6 matchable. AOR 1975-53 governs in that case.

7 The question turns on the particularities of the 

8 2016 Stein Campaign and those of other candidates. Unlike 

9 the issue of allowing expenditures for ballot access to be 

10 matched, the issue of when general election contributions 

11 can be allowed -- are allowed -- can be uniformly applied to 

12 all candidates without inherently prejudicing minor party 

13 and independent candidates.

14 There was an argument to be made for uniformity in 

15 the application of contribution limits that in no way 

16 applies to the qualification of funds used to a ballot 

17 access to be matched by the federal government. Dr. Stein's 

18 2012 campaign was able to utilize as its DOI, the last day 

19 to petition, in states where the Green Party did not have 

20 ballot access. That date that year happened to coincide 

21 with the date of the last major party nominating convention. 

22 That was not the case in 2016.

23 Pegging the DOI for a minor party candidate to the 

24 date of a major party convention introduces an unacceptable 

25 element of arbitrariness. If expenditures for ballot access 

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1 are matchable, that should be the case regardless of when 

2 the candidate in question, or any other candidate, receives 

3 the party nomination.

4 Indeed, the coincidence of the two dates in 2012 

5 created a situation where Dr. Stein was penalized for the 

6 understandable expectation that her efforts would be treated 

7 similarly in 2016. Dr. Stein relied on this expectation. 

8 Indeed, she received matching funds for this ballot access 

9 activity in 2016. It's a form of entrapment to now apply a 

10 DOI of August 6th to the very same activity. Moreover, the 

11 2016 Stein Campaign was not even aware of the new DOI until 

12 after the campaign ended and after funds were expended for 

13 ballot access and match.

14 Pegging the DOI for a minor party candidate to the 

15 date of a major party convention makes planning and 

16 fundraising very difficult. Indeed, it would be impossible 

17 to identify the date of the DOI for the next presidential 

18 cycle in 2024 until other players decide on the date of 

19 their conventions. Such a decision will likely be made 

20 without regard to the needs of non-major party presidential 

21 candidates for that cycle. Even worse, it invites the major 

22 parties to pick an early date, which prejudices the 

23 interests of independent and minor party candidates.

24 There was no basis to move the DOI to August 6th, 

25 the date of the Green Party convention. The first 

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1 indication of this approach was AOR 1984-11, and I'm reading 

2 from it.

3 "The Matching Payment Act and Commission 

4 regulations require that matching payments as well as all 

5 disbursements of an eligible candidate's campaign committee 

6 be used only for qualified campaign expenses. Qualified 

7 campaign expenses may only be incurred with respect to the 

8 period in which the candidate is eligible for matching 

9 payments.

10 "The date when the candidate becomes ineligible 

11 coincides with the last day -- with the last day of the 

12 matching payment period for that candidate. Accordingly, 

13 campaign expenditures made or campaign obligations incurred 

14 within the matching period would satisfy the timeliness 

15 requirement for a qualified campaign expense. In addition, 

16 such expenses must also be made in conjunction with the 

17 campaign's campaign for nomination.

18 "In Mr. Serrette's situation, [the candidate at 

19 that time,] expenditures will apparently be made to collect 

20 petition signatures for the general election ballot. The 

21 Commission is of the opinion that these expenses to the 

22 extent they are paid or incurred within what would be Mr. 

23 Serrette's matching period, if he becomes eligible for 

24 matching funds, would be qualified campaign expenses for the 

25 purposes of the matching payment act."

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1 This AOR doesn't indicate that this is in fact a 

2 change from AOR 1975-53, nor is any reason for such a change 

3 articulated. In fact, the new standard is entirely 

4 circulated -- is entire circular. Qualified campaign 

5 expenditures, we are told, are those made in the period when 

6 the campaign is eligible for matching funds. This 

7 contradicts the principle that efforts to get on the ballot 

8 is part of the primary effort, regardless of when it occurs. 

9 It compounds the very legal and constitutional problems this 

10 principle was designed to prevent; that is the very 

11 different terrain an independent or a minor party candidate 

12 must navigate. Namely, ballot access efforts must continue 

13 after the convention and well into September of the election 

14 year.

15 This concern was directly expressed in AOR 1975-

16 44. There, the Commission stated: "However, in this case, 

17 as in the past the Commission is concerned to construe the 

18 provisions of the act in a manner consistent with 

19 constitutional requirements regardless of a candidate's 

20 party affiliation or independent status.

21 "The primary election and convention process is a 

22 procedure through which major parties typically determine 

23 their candidates for the general election. The procedure 

24 for presidential candidates of minor parties, however, 

25 differs in that most states have a separate petition process 

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1 whereby such candidates may qualify for general election 

2 ballot.

3 "Accordingly, for the purpose for applying the 

4 limitations in 18 U.S.C. 608, the Commission will view the 

5 petition process required of presidential candidates of the 

6 minor parties as the equivalent of the primary elections and 

7 convention process of major party candidates."

8 This perspective was applied in AOR 1995-45 which 

9 makes no mention of the matching funds period. It states 

10 unequivocally: "It has long been the view of the Commission 

11 that for nonmajor party candidates the process by which they 

12 satisfy the requirements of state law governing 

13 qualification for a position on the general election ballot 

14 serve purposes similar to a primary election or other 

15 nominating process.

16 This view is supported by the Commission 

17 regulations defining the term elections -- "election." --

18 which state that for non-major party and independent 

19 candidates, the date prescribed -- the date prescribed by 

20 applicable state law as the last day to qualify for a 

21 position on the general election ballot may be designated as 

22 the primary election for such candidate." The AOR cites 11 

23 CFR 100.2(c)(4)(i).

24 Based on this reasoning the Commission concluded 

25 in its Advisory Opinions 1984-25 and 1984-11 that the ballot 

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1 access expenses of candidates for minor party nominees would 

2 be qualified campaign expenses. Let me read the cited 

3 regulation, 11 CFR 100.2(c)(4)(i).

4 The cited regulation states, and I'm quoting here, 

5 "With respect to individuals seeking federal office as 

6 independent candidates or without nomination as a major 

7 party, (as defined in 26 U.S.C.9002(6)), the primary 

8 election is considered to occur on one of the following 

9 dates at the choice of the candidate: the day prescribed by 

10 applicable state law as the last day to qualify for a 

11 position on the general election ballot may be designated as 

12 the primary election for such a candidate; (2), the date of 

13 the last major party primary election, caucus or convention 

14 in that state may be designated as a primary election for 

15 such a candidate; and (3), in the case of nonmajor parties, 

16 the date of the nomination by that party may be designated 

17 as the primary election for such a candidate."

18 I reiterate, which of these applies is at the 

19 choice of the candidate. Obviously, the choice of the Green 

20 Party and Dr. Stein was the latest possible date, which is 

21 geared to the dates for the petitioning process to get on 

22 general election ballots in the many states where the Green 

23 Party did not have ballot status. The Stein Campaign had 

24 every right to rely on this construct when it expended funds 

25 for ballot access and accepted matching fund payments for 

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1 them.

2 Let me just speak briefly about the procedural 

3 background here. There was no complaint. This matter was 

4 generated by audit. The final audit report issued on April 

5 17th, 2019 alleged that as of the DOI, the campaign had a 

6 surplus of $200,856, the net outstanding campaign 

7 obligations, or NOCO. This required two repayments. One, 

8 pursuant to a regulatory formula, a prorated repayment of 

9 $40,372 was due. In addition, the matching funds payment of 

10 $134,900, received on January 12th, 2017 was required to be 

11 repaid. Thus, the order called for total repayment of 

12 $175,272.

13 The campaign disputed these numbers in particular 

14 contending that disbursements for ballot access expenses 

15 after the August 6th, 2016 DOI should have been included in 

16 the amount of $255,671. This amount would have been enough 

17 to eliminate the NOCO surplus, and therefore eliminate the 

18 repayment.

19 The significance of the date of the DOI is 

20 obvious. On March 17, 2019, the Commission voted to approve 

21 the audit report including the $175,000 repayment.

22 The campaign's position is that if the DOI is 

23 extended, as it should be, to the last day of petitioning in 

24 states where the Green Party did not have ballot access --

25 ballot status -- then the repayment goes away.

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1 In addition, the campaign has recently provided 

2 documentation demonstrating additional winddown costs, which 

3 we contend are continuing.

4 To recap, the repayment determination should 

5 include campaign expenditures for ballot access after the 

6 Commission's DOI of August 6, 2016. These expenditures 

7 amounted to another $255,671 in ballot access costs 

8 exceeding the surplus of $200,856 claimed in the audit 

9 report. Technically speaking, the surplus NOCO calculated 

10 in the audit report should have been corrected to a deficit 

11 of $55,430. The additional winddown costs referenced above, 

12 would further increase the NOCO deficit. In the absence of 

13 a surplus NOCO, the prorated repayment of $40,372 claimed in 

14 the audit report is eliminated. The corrected deficit NOCO 

15 also eliminates the repayment of $134,900 in matching funds 

16 that was called for in the audit.

17 These expenditures were for petitioning drives in 

18 states where the Green Party did not have ballot access. 

19 As such, they are matchable under a corrected DOI. Indeed, 

20 how could they not be in as much as the entire construct for 

21 minor parties is based on the proposition that expenditures 

22 to get on the ballot are the equivalent of primary 

23 expenditures. To rule otherwise would constitute a form of 

24 entrapment.

25 First the matching funds were already paid; 

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1 second, in 2012 they were treated as matchable expenditures. 

2 The expenditures were made in a reasonable, good-faith 

3 belief that as they were necessary to achieve ballot status, 

4 they were valid and matchable.

5 Thank you.

6 HEARING OFFICER: Thank you, Counsel.

7 Do any Commissioners have any questions? Does the 

8 Office of General Counsel, or the audit division have any 

9 questions?

10 MR. BLUME: Madam Chair?

11 HEARING OFFICER: Yes, Mr. Blume?

12 MR. BLUME: Yes, thank you, I just have one 

13 question. Mr. Kresky alluded to the fact that the committee 

14 provided the Commission with documents pertaining to 

15 winding-down expenses in advance of the hearing. And so I 

16 would just like to ask how the documents relate to issues 

17 that were raised in the committee's recent submission 

18 requesting administrative review of the repayment 

19 determination.

20 MR. KRESKY: In my letter of June 17th, 2019 

21 requesting the hearing, the last paragraph states, "as will 

22 be demonstrated in the further submission coming directly 

23 from the committee were it not for the improper imposition 

24 on August 6th DOI, no repayment would be required." And in 

25 addition to that --

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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 

4 letter that attorney Kresky is referencing, which was the 

5 formal request for this administrative hearing, he states in 

6 the -- one, two, three -- fourth paragraph that the 

7 committee will herein demonstrate that reimbursement of 

8 ballot access and related expenses, as well as the nature of 

9 winding-down expenses would specifically be addressed, and 

10 would change the repayment order as well as the calculation 

11 of the net outstanding campaign obligation. The surplus 

12 would be impacted by winding-down expenses as well as ballot 

13 access expenses that should be recognized.

14 So that is specifically stated in that fourth 

15 paragraph.

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 

22 very much to add. I think what is important is that the 

23 Matching Funds Program was designed to and is required to be 

24 conducted in a way that treats minor parties and independent 

25 candidates as favorably as the major parties are treated.

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1 And in fact, you could make the case, and I think 

2 the case is a sound one, that matching payments themselves, 

3 which many major party candidates don't even accept now, are 

4 specifically designed to give a leg up to minor party and 

5 independent candidates who don't have the financial clout of 

6 the major party candidates, particularly in the presidential 

7 situation.

8 So to arbitrarily apply a DOI which denies 

9 matching funds for ballot access and winding-down costs, and 

10 in particular ballot access, which is not even a factor for 

11 a major party candidate, because the major parties already 

12 have ballot status in every state, really undermines the 

13 purpose of the Matching Funds Program in my opinion. And in 

14 particular, the Commission's concern for an obligation to

15 see to it that all candidates, major and minor, and 

16 independent are treated equally and not prejudiced by the 

17 Matching Funds Program and the Commission's activities and 

18 conduct. Thank you.

19 DR. STEIN: And may I have recognition?

20 HEARING OFFICER: Yes, Dr. Stein.

21 DR. STEIN: Thank you. Yes, and I wanted thank 

22 Attorney Kresky for that very substantive review of the 

23 critical Advisory Opinions, and the critical regulations and 

24 statutes.

25 And there's a lot of detail here, and as a 

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1 layperson, not a lawyer, but, you know, anybody watching 

2 this as a public hearing, or viewing it afterwards as a 

3 public hearing, let me just say that I think the real key 

4 issues here, as Attorney Kresky just summarized, are really 

5 whether the independents and minor parties have equal access 

6 to the ballot as determined by our access to public funding. 

7 And the public funding program, it seems, you know, has to 

8 meet that need for those candidates and political groups 

9 that don't have access to deep pockets and the various forms 

10 of finance that really dominate, as this Commission knows so 

11 well, that have come to dominate our electoral process.

12 And if, you know, you've probably seen recent 

13 polls, one from Gallup just done last week that showed the 

14 public hunger for a variety of political opinions now is at 

15 an all-time high. And it really, I think, it's the mission 

16 or one of the missions of this Commission, you know, is to 

17 ensure that there is a public forum in our elections, and 

18 that there are a variety of political viewpoints 

19 represented, which there is so much hunger for right now.

20 And I think it's a tribute to the Commission that 

21 its very foundational Advisory Opinions stress this point 

22 and made it possible for small parties and independents to 

23 have access to the ballot through a broad definition of this 

24 question of eligibility.

25 And it was -- you know -- the process was defined 

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1 early on in such a way that small parties and small players 

2 and independents could have access to that public funding in 

3 order to achieve ballot status.

4 And with that, that opportunity having been 

5 provided to us in 2012, we had certainly expected that it 

6 would be consistent in 2016. And we were really quite 

7 shocked to learn after the fact that that was not going to 

8 be the case.

9 And I would just urge you to look carefully at 

10 Attorney Kresky's submission which details, I think 

11 beautifully, how it is that the legal structures were 

12 established in order to meet our highest small-d democratic 

13 aspirations that our elections should be truly competitive, 

14 open, publicly funded to the extent possible, and that there 

15 would be a real opportunity for the American people to have 

16 an inclusive conversation and a diverse set of choices as a 

17 part of that process.

18 Thank you for your consideration.

19 HEARING OFFICER: Thank you. This hearing is 

20 adjourned.

21 (End of audio file.)

22 * * * * *

23

24

25

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