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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 1 of 58 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 21-1213 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

JILL STEIN, DR. AND JILL STEIN 

FOR PRESIDENT 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

On Petition for Review of an Order of the 

Federal Election Commission 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Jacob S. Siler 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov jsiler@fec.gov 

Kevin Deeley Shaina Ward 

Associate General Counsel Attorney 

kdeeley@fec.gov sward@fec.gov 

July 28, 2022 FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 
 

USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 2 of 58 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), Respondent Federal Election 

Commission (“Commission” or “FEC”) hereby certifies as follows: 

(A) Parties and Amici. This petition by Petitioners Dr. Jill Stein and Jill 

Stein for President arises from the Commission’s repayment determination 

following its audit of Stein’s 2016 presidential campaign committee. Dr. Jill Stein 

and Jill Stein for President were the only parties to the Commission’s proceeding. 

There were no intervenors or amici curiae in the administrative proceeding. No 

amici have appeared before this Court. 

(B) Ruling Under Review. Petitioners seek review of the Commission’s 

repayment determination, dated September 30, 2021, which directs Stein to repay 

$175,272 to the United States Treasury. There is no official compilation to cite for 

the determinations and accompanying statement of reasons, which is reprinted in 

the Appendix filed by Petitioners at pp.60-79. 

(C) Related Cases. There are no related cases within the meaning of 

Circuit Rule 28(a)(1)(C). 

i 
   

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TABLE OF CONTENTS 

Page 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF ISSUES PRESENTED ....................................... 1 

STATUTES AND REGULATIONS................................................................... 3 

COUNTERSTATEMENT OF THE CASE ......................................................... 3 

INTRODUCTION ............................................................................................... 3 

I. FACTUAL AND PROCEDURAL BACKGROUND .............................. 5 

A. The Commission .............................................................................. 5 

B. The Matching Payment Act............................................................. 5 

C. The Commission’s Audit of the Stein Committee 

and the Commission’s Repayment Determination ........................ 11 

D. The Stein Committee’s Request for 

Administrative Review .................................................................. 18 

E. The Commission’s Oral Hearing and Reaffirmance 

of the Committee’s Repayment Obligation ................................... 19 

SUMMARY OF THE ARGUMENT ................................................................ 21 

STANDARD OF REVIEW ............................................................................... 23 

ARGUMENT..................................................................................................... 24 

I. 26 U.S.C. § 9032(6) IS CONSTITUTIONAL 

AS APPLIED TO THE COMMISSION’S 

REPAYMENT DETERMINATION ....................................................... 24 

A. Section 9032(6) is Consistent with the Purpose of the 

Matching Payment Act and Supreme Court Precedent ................. 24 

ii 
 

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B. The Commission’s Decision is Consistent with 

Agency Precedent .......................................................................... 31 

II. THE COMMISSION’S DETERMINATION 

WAS NOT ARBITRARY, CAPRICIOUS, OR AN 

ABUSE OF DISCRETION ..................................................................... 36 

A. The Committee Failed to Preserve Its Argument 

Regarding Additional Winding Down Costs ................................ 36 

B. The Commission Properly Excluded the 

March Materials from the Administrative Record ........................ 42 

CONCLUSION.................................................................................................. 46 

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TABLE OF AUTHORITIES 

Cases Page 

Am. Party of Tex. v. White, 415 U.S. 767 (1974) ............................................. 27, 28 

Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) .............................. 43 

Am. Horse Protection Ass’n v. Yeutter, 

917 F.2d 594 (D.C. Cir. 1990) ............................................................................. 23 

Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) .................................. 42 

Bolden v. Blue Cross & Blue Shield Ass’n, 

848 F.2d 201 (D.C. Cir. 1988) ............................................................................. 24 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................... 24, 27, 28, 30, 33 

City of Waukesha v. Environmental Protection Agency, 

320 F.3d 228 (D.C. Cir. 2003) ............................................................................. 38 

Comm. to Elect LaRouche v. FEC, 613 F.2d 834 (D.C. Cir. 1979) ....................... 23 

Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46 (D.C. Cir. 2015) .................... 43 

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ............................................. 42 

LaRouche’s Comm. for a New Bretton Woods v. FEC, 

439 F3d 733 (D.C. Cir. 2006) .............................................................................. 40 

Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) ........................................................................... 42 

Pacific Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 

448 F. Supp. 2d 1 (D.D.C. 2006) ......................................................................... 43 

Robertson v. FEC, 45 F.3d 486 (D.C. Cir. 1995) ....................................... 38, 44, 45 

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 

789 F.2d 26 (D.C. Cir. 1986) ............................................................................... 23 

Simon v. FEC, 53 F.3d 356 (D.C. Cir. 1995) .......................................................... 24 

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

133 F.3d 61 (D.C. Cir. 1998).......................................................................... 38-39 

United States v. Hunter, 739 F.3d 492 (10th Cir. 2013) ......................................... 39 

Walter O. Boswell Mem’l Hosp. v. Heckler, 

749 F.2d 788 (D.C. Cir. 1984) ............................................................................. 42 

Statutes 

26 U.S.C. § 9001-9013 ........................................................................................... 25 

26 U.S.C. § 9002(11) ........................................................................................ 29, 34 

26 U.S.C. § 9002(12) .............................................................................................. 29 

26 U.S.C. § 9031................................................................................................... 1, 3 

26 U.S.C. § 9032(2) .................................................................................................. 6 

26 U.S.C. § 9032(6) ............................................................ 2, 6, 8, 12, 24, 25, 31, 35 

26 U.S.C. § 9032(9) ................................................................................................ 25 

26 U.S.C. § 9032(9)(A) ............................................................................................. 7 

26 U.S.C. § 9033 ....................................................................................................... 6 

26 U.S.C. § 9033(b)(1).............................................................................................. 6 

26 U.S.C. § 9034(a) .................................................................................................. 6 

26 U.S.C. § 9038(a) ............................................................................................ 9, 14 

26 U.S.C. § 9038(b) .................................................................................................. 1 

26 U.S.C. § 9038(b)(1).............................................................................................. 6 

26 U.S.C. § 9038(b)(3).............................................................................................. 7 

26 U.S.C. § 9039(b) .................................................................................................. 5 

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26 U.S.C. § 9041........................................................................................... 1, 10, 23 

26 U.S.C. § 9041(a) ............................................................................................ 1, 10 

26 U.S.C. § 9042 ....................................................................................................... 3 

Rules and Regulations 

11 C.F.R. § 100.1 .................................................................................................... 33 

11 C.F.R. § 100.2(c)(4) ........................................................................................... 33 

11 C.F.R. § 9032.6(a) .......................................................................................... 8, 12 

11 C.F.R. § 9032.6(b) ......................................................................................... 2, 25 

11 C.F.R. § 9033.1 .................................................................................................... 6 

11 C.F.R. § 9033.2 .................................................................................................... 6 

11 C.F.R. § 9033.5 .............................................................................................. 8, 16 

11 C.F.R. § 9034.5 .................................................................................................. 14 

11 C.F.R. § 9034.5(b)(2) ........................................................................................... 7 

11 C.F.R. § 9034.11(a) .............................................................................................. 7 

11 C.F.R. § 9038.1 .................................................................................................... 9 

11 C.F.R. § 9038.1(c) ................................................................................................ 9 

11 C.F.R. § 9038.1(c)(1) ..................................................................................... 9, 16 

11 C.F.R. § 9038.1(c)(1)(iii) ..................................................................................... 9 

11 C.F.R. § 9038.1(d) ............................................................................................... 9 

11 C.F.R. § 9038.2(a)(2) ........................................................................................... 9 

11 C.F.R. § 9038.2(c)(1) ........................................................................................... 9 

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11 C.F.R. § 9038.2(c)(2) ......................................................................................... 20 

11 C.F.R. § 9038.2(c)(2)(i) ............................................................... 9, 18, 36, 38, 39 

11 C.F.R. § 9038.2(c)(3) ........................................................................ 11, 43, 44-45 

11 C.F.R. § 9038.3(c)(1) ......................................................................................... 16 

11 C.F.R. § 9038.5(c)(2) ......................................................................................... 42 

11 C.F.R. § 9038.7 .................................................................................................. 43 

11 C.F.R. § 9038.7(a) .............................................................................................. 43 

11 C.F.R. § 9038.7(b)(1) ......................................................................................... 43 

Advisory Opinions 

FEC Advisory Op. 2022-04 (June 9, 2022) 

(Jill Stein for President Comm.), 

https://saos.fec.gov/aodocs/2022-04.pdf ......................................................... 41-42 

FEC Advisory Op. 2000-18 (August 11, 2000) 

(Nader 2000 Primary Campaign Committee), 

https://www.fec.gov/files/legal/aos/2000-18/2000-18.pdf ............................ 34, 35 

FEC Advisory Op. 1995-45 (Jan. 11, 1996) (Hagelin for President), 

https://www.fec.gov/files/legal/aos/1995-45/1995-45.pdf ........................ 8, 31, 34 

FEC Advisory Op. 1984-25 (May 25, 1984) (Johnson), 

https://www.fec.gov/files/legal/aos/1984-25/1984-25.pdf ................ 13, 26, 35, 36 

FEC Advisory Op. 1975-53 (Jan. 1, 1975) (Bradley for Senate), 

https://www.fec.gov/files/legal/aos/1975-53/1975-53.pdf ............................ 31, 32 

FEC Advisory Op. 1975-44 (Jan. 1, 1975) 

(Socialist Workers 1976 National Campaign Committee), 

https://www.fec.gov/files/legal/aos/1975-44/1975-44.pdf ............................... 31, 33 

Miscellaneous 

H.R. Rep. 93-1239 (1974) (Conf. Rep.) ....................................................... 6, 25, 26 

vii 
 

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“Establishing eligibility to receive presidential primary matching 

funds payments,” https://www.fec.gov/help-candidates-andcommittees/understanding-public-funding-presidential-elections/ 

establishing-eligibility-presidential-primary-matching-funds/. ............................. 8 

FEC Policy Statement Regarding a Program for Requesting Consideration of 

Legal Questions by the Commission, https://www.fec.gov/resources/cmscontent/documents/fedreg_notice_2019-10_EO13892.pdf ................................. 11 

Legal Policy and Other Guidance, Requests for consideration of legal questions 

by the Commission, https://www.fec.gov/legal-resources/policy-otherguidance/requests-legal-consideration/ ................................................................ 10 

viii 
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FEC or Commission 

FECA 

App 

SA 

GLOSSARY 

Federal Election Commission 

Federal Election Campaign Act 

Appendix 

Respondent’s Supplemental Appendix 

ix 
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COUNTERSTATEMENT OF JURISDICTION 

Petitioners invoked this Court’s jurisdiction under 26 U.S.C. §§ 9038(b) and 

9041 to review a final repayment determination for Dr. Jill Stein and the Jill Stein 

for President Committee (the “Stein Committee” or “the Committee”), made 

pursuant to the Presidential Primary Matching Payment Account Act, 26 U.S.C §§ 

9031-9042. Pursuant to 26 U.S.C. § 9041(a), this Court has jurisdiction over the 

petition for review. 

COUNTERSTATEMENT OF ISSUES PRESENTED 

The Presidential Primary Matching Payment Account Act (“Matching 

Payment Act”) provides eligible candidates for nomination for election to be 

President of the United States with limited public matching funds for each private 

contribution of up to $250 to be used for certain qualifying campaign expenses that 

the candidate incurs during a specified period. The matching payment period 

opens at the beginning of the calendar year in which a general election for 

President will be held and closes on a date that depends on the method of 

nomination. For candidates seeking the nomination of a party that nominates its 

presidential candidates at a national convention, the matching period ends on the 

date on which the party’s nomination occurs. For candidates seeking the 

nomination of a party which does not hold a national convention, the end of the 

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matching payment period occurs on the earlier of the date the party nominates its 

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

During the 2016 presidential election cycle, Stein sought the presidential 

nomination of the Green Party of the United States, which nominated its candidate 

at a national convention, and the nomination of several state parties that did not 

nominate by national convention. The Commission concluded that Stein’s 

matching payment period closed on the date she received the Green Party’s 

nomination because the ineligibility date applicable to any of the state parties 

would have resulted in a shorter eligibility period. The Commission also 

concluded that the Committee waived its ability to claim certain winding down 

costs as eligible expenses because it had not specifically raised those costs until 

well after the deadline to do so. The questions presented are: 

1. Whether the provision of the Matching Payment Act and 

corresponding Commission regulation defining the “matching payment period,” 26 

U.S.C. § 9032(6); 11 CFR § 9032.6(b), is unconstitutional as applied to the Stein 

Committee. 

2. Whether it was arbitrary, capricious, or an abuse of discretion for the 

Commission to determine that the Stein Committee failed to preserve its argument 

concerning additional winding down expenses for the Commission’s consideration 

of its repayment determination. 

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STATUTES AND REGULATIONS 

Applicable statutory and regulatory provisions are in the Addendum to the 

Petitioners’ Brief. 

COUNTERSTATEMENT OF THE CASE 

INTRODUCTION 

For more than forty years, Congress has provided two forms of public 

funding for candidates seeking the office of the Presidency of the United States. 

The Presidential Election Campaign Fund Act offers candidates nominated by 

eligible major and minor political parties the option of public financing for the 

general election. See 26 U.S.C. §§ 9001-9013. The Matching Payment Act, by 

contrast, provides limited public matching funds to candidates running in a primary 

election, that is, seeking the nomination of a major or minor political party. See id. 

§§ 9031-9042. 

In 2016, Dr. Jill Stein sought the Green Party’s nomination for the office of 

President of the United States, as well as the nomination of several state parties. 

Through her campaign committee, Dr. Jill Stein for President, Stein qualified for 

payments of public matching funds to finance her nomination campaign pursuant 

to the Presidential Primary Matching Payment Account Act (“Matching Payment 

Act”), 26 U.S.C. §§ 9031-9042. After Stein was nominated, the Commission 

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conducted a mandatory audit of the Committee and concluded that it had received 

a surplus of public funds in the amount of $175,272. 

The Committee challenges the Commission’s repayment determination on 

two grounds, but neither supports overruling the Commission’s judgment. See 

generally Corrected Br. of Petitioners, Doc. No. 1953536 (July 5, 2022) (“Br.”). 

The Committee first suggests that a straightforward application of the statutory rule 

establishing an end date for the eligibility for limited public matching funds 

unconstitutionally discriminates against candidates that seek the nomination of 

certain minor parties because it limits their ability to use primary matching funds to 

finance state ballot access activities after that date. But if minor parties face 

additional costs for ballot access compared to the major parties, those costs stem 

from the election laws of the various states, not the Matching Payment Act. And 

the end date Congress selected, which in this case matched exactly with the date 

Stein received the Green Party’s nomination, is defensible as a close 

approximation to the functional end of the nomination process for minor party 

candidates. 

Separately, the Committee failed to preserve its argument that it incurred 

additional winding down expenses by failing to raise this issue in its request for 

administrative review, as required under agency regulations. Commission 

regulations provide that a candidate’s failure to raise such arguments in a timely 

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fashion during the repayment determination process waives the candidate’s right to 

present those matters in any future stage of the proceedings, and the Committee 

fails to show that it could not have introduced any evidence regarding the disputed 

winding down costs at the time of their request for administrative review. The 

Petition for Review should be denied. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. The Commission 

The Commission is the six-member independent federal agency with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement 

of the Matching Payment Act and the Federal Election Campaign Act of 1971 

(“FECA”). Congress empowered the Commission to “prescribe rules and 

regulations”; “to conduct examinations and audits” of candidates and committees 

receiving primary matching funds; “to conduct investigations”; and “to require the 

keeping and submission of any books, records, and information, which it 

determines to be necessary to carry out its responsibilities” under the Matching 

Payment Act. 26 U.S.C. § 9039(b). 

B. The Matching Payment Act 

Congress enacted the Matching Payment Act to provide partial public 

financing for the campaigns of candidates who seek nomination for election of the 

office of President of the United States, and who satisfy certain eligibility 

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requirements. 26 U.S.C. §§ 9032(2), 9033. Among other requirements, candidates 

receiving matching payments must agree in writing to comply with all the 

Commission’s documentation requirements, which include retaining and 

presenting to the Commission upon request properly documented bank records, 

receipts, and fundraising solicitation material. Id. § 9033(a). Participating primary 

candidates must also agree to cooperate with audits and examinations by the 

Commission, accept the burden of proving that all disbursements of public funds 

are for qualified campaign expenses, and repay any amounts required to be paid 

under the Matching Payment Act. Id.; 11 C.F.R. §§ 9033.1, 9033.2. Candidates 

must also certify that they and their authorized committees “will not incur qualified 

campaign expenses in excess of the limitations on such expenses under section 

9035.” 26 U.S.C. § 9033(b)(1). 

Once a candidate establishes that she is eligible, she is entitled to public 

funds equal to each eligible private contribution received by the candidate up to 

$250. 26 U.S.C. § 9034(a). Public funds may only be used to defray “qualified 

campaign expense[s],” and only to the extent that those expenses are incurred 

within the “matching payment period.” See id. § 9032(6), (9). Thus, “[m]atching 

payments may be used for legitimate campaign expenses during the prenomination period.” H.R. Rep. 93-1239, at 13 (1974) (Conf. Rep.). Candidates 

are required to repay any funds received that were used for any purpose other than 

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to defray qualified campaign expenses or outside the period. See 26 U.S.C. 

§ 9038(b)(3). 

The Matching Payment Act defines a “qualified campaign expense” as “a 

purchase, payment, distribution, loan, advance, deposit, or gift of money or of 

anything of value” that is incurred by the candidate or campaign committee “in 

connection with his campaign for nomination for election.” 26 U.S.C. 

§ 9032(9)(A). 

Qualified campaign expenses can include winding down expenses. 11 

C.F.R. § 9034.11(a). Winding down costs include the “costs of complying with 

the post election requirements” of the Matching Payment Act and “other necessary 

administrative costs associated with winding down the campaign, including office 

space rental, staff salaries, and office supplies.” Id. Campaigns may thus use 

public funds to pay for these expenses and potentially lower any repayment 

obligations, up to a certain limit. See id. § 9034.11(b) (reciting limitations on 

allowance for winding down costs), id. § 9034.5(b)(2) (including estimated 

winding down costs in statement of net outstanding campaign obligations). 

Expenses for minor party candidates to gain access to the general election ballot 

are also generally qualified campaign expenses, so long as they are incurred during 

the period for which the candidate is eligible for matching payments. See, e.g., 

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FEC Advisory Op. 1995-45 (Jan. 11, 1996) (Hagelin for President), 

https://www.fec.gov/files/legal/aos/1995-45/1995-45.pdf. 

A candidate’s eligibility to receive matching funds ends if they cease to be a 

candidate or if the matching payment period ends. 11 C.F.R. § 9033.5; see 26 

U.S.C. § 9032(6). The matching payment period begins on the start of the calendar 

year during which the general election will occur and ends depending on the 

process by which the party whose nomination the candidate seeks selects its 

nominee. 26 U.S.C. § 9032(6). If a party nominates a candidate during a national 

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

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 select its candidate, then the period ends on the 

earlier of the date the party nominates the candidate or the last day of the last 

national convention held by a major party during the election year. 26 U.S.C. § 

9032(6). See also “Establishing eligibility to receive presidential primary 

matching funds payments,” https://www.fec.gov/help-candidates-andcommittees/understanding-public-funding-presidential-elections/establishingeligibility-presidential-primary-matching-funds/. This date is known as the “date 

of ineligibility” or “DOI.” 11 C.F.R. § 9033.5. 

The Matching Payment Act requires the Commission to conduct a “thorough 

examination and audit” of the campaign finances of every publicly funded 

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candidate after the campaign for the nomination ends. 26 U.S.C. § 9038(a); 11 

C.F.R. § 9038.1. Pursuant to the Commission’s detailed regulations, the 

Commission issues to the candidate a Preliminary Audit Report after its auditors 

review the candidate’s books and records, which includes findings regarding 

calculation of any repayments that will be required by the Act. 11 C.F.R. 

§ 9038.1(c)(1)(iii). The candidate has an opportunity to respond and contest the 

findings and calculation in the Preliminary Audit Report, including by providing 

any documentation or supporting materials to contest the Commission’s findings. 

Id. § 9038.1(c). The Commission then adopts a Final Audit Report, which includes 

an “initial repayment determination.” 11 C.F.R. § 9038.2(c)(1). The candidate 

then has another opportunity to contest the findings in the Final Audit Report. The 

Commission’s issuance of the final audit report to the candidate under 11 C.F.R. 

§ 9038.1(d) constitutes notification for repayment purposes. 11 C.F.R. 

§ 9038.2(a)(2). Thus, at this critical juncture, the candidate must raise any issue 

that it is requesting that the Commission consider before the Commission makes its 

final repayment determination. 

 Specifically, “[a] candidate who disputes the Commission’s repayment 

determination(s) shall submit in writing, within 60 calendar days after service of 

the Commission’s notice, legal and factual materials demonstrating that no 

repayment, or a lesser repayment, is required.” 11 C.F.R. § 9038.2(c)(2)(i). A 

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candidate’s “failure to timely raise an issue in written materials presented pursuant 

to this paragraph will be deemed a waiver of the candidate’s right to raise the issue 

at any future stage of proceedings including any petition for review filed under 26 

U.S.C. 9041(a).” Id. A candidate may also request to make an oral presentation to 

the Commission based on the written materials she submits. 11 C.F.R. 

§ 9038.2(c)(3). The Commission’s audit process culminates in the issuance of a 

“final repayment determination” with a statement of reasons that explains the basis 

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

repayment determination is subject to review by this Court. 26 U.S.C. § 9041. 

The Commission also has a program for requesting consideration of legal 

questions earlier in the process, in which persons and entities may seek 

Commission review if a material dispute on a question of law exists relating to a 

determination made by the Commission’s Audit Division staff. See Legal Policy 

and Other Guidance, Requests for consideration of legal questions by the 

Commission, https://www.fec.gov/legal-resources/policy-other-guidance/requestslegal-consideration/. Such a request must be submitted within 15 business days of 

the staff determination. A ‘‘determination’’ for purposes of triggering the 15 

business days is either: (1) Notification to the person or entity of legal guidance 

prepared by the FEC’s Office of General Counsel at the request of the Reports 

Analysis Division recommending the corrective action; or (2) the end of the 

10 
 

  

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Committee’s Audit Exit Conference response period. The request must specify the 

question of law at issue and why it is subject to Commission consideration. The 

Commission then considers the request and provides a response to the requestor if 

the matter is not otherwise resolved informally. See FEC Policy Statement 

Regarding a Program for Requesting Consideration of Legal Questions by the 

Commission, https://www.fec.gov/resources/cmscontent/documents/fedreg_notice_2019-10_EO13892.pdf. 

C. The Commission’s Audit of the Stein Committee and the 

Commission’s Repayment Determination 

Stein is an experienced federal candidate who obtained Matching Payment 

Act funds during the 2012 presidential campaign. During the 2016 presidential 

election cycle, Stein sought the nomination of the Green Party of the United States 

at its national nominating convention. (SA 4 (AR 44).) Because the national 

Green Party did not have an automatic right to place its nominees on the general 

election ballot in all fifty States, however, at the same time she also sought the 

nomination of other independent state parties that were scheduled to hold their 

elections and conventions on later dates but did not use a national convention.1 

1 Stein sought the nomination of a number of parties in addition to the 

Green Party of the United States, including unaffiliated state green parties that had 

a variety of ballot access deadlines, including deadlines of June 1, 2016 (Kansas), 

July 11, 2016 (South Dakota), August 1, 2016 (Vermont) and August 15, 2016 

(Utah). Stein also certified that she was seeking the nomination of the Peace and 

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Stein applied for public funds under the Matching Payment Act, (AR 1-3), and on 

April 13, 2016, the Commission determined that she was eligible to receive public 

funds. (AR 19-20.) By the conclusion of Stein’s campaign, she had received a 

total amount of $590,936 in matching fund payments. (Pet. For Review of Agency 

Action, Doc. No. 1920438, at ECF p. 5 (Oct. 29, 2021) (“Pet.”).) 

When a candidate seeks the nomination of several minor parties with 

different dates of nomination, the Commission has looked to the last nomination 

date for those non-major parties that do not use a national nominating convention 

and then compared that date to the last day of the last major party nomination to 

determine which date is earlier for purposes of the determining the end of the 

matching payment period. 26 U.S.C. § 9032(6); 11 C.F.R. § 9032.6(a); see also 

SA 2 (AR 35.) The Commission has also used this approach when a candidate 

seeks the nomination of a minor party that nominates its candidates at a national 

convention and also seeks the nomination of independent parties, as did Stein in 

2016. (SA 12 (AR 60).) In that circumstance, the Commission has determined 

that the matching payment period ends at the later of (1) the date of the minor party 

national nominating convention or (2) the latest date an independent state party 

Freedom Party, which was holding its nominating convention in California on 

August 13, 2016. ((SA 2 (AR 35).) 

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nominates the candidate that is not after the date of the last major party nominating 

convention. (SA 12-13 (AR 60-61) (citing FEC Advisory Op. 1984-25, at 2).) 

The last day of the last major party national nominating convention during 

the 2016 election cycle was on July 28. (SA 12 (AR 60).) The Green Party, in 

contrast, selected Stein as their nominee on August 6, 2016. Because any 

independent state party nomination would have occurred later than July 28, the 

Commission determined that the date the Green Party nominated Stein — August 

6, 2016 — was the date on which she would no longer be eligible to receive public 

matching funds for the purpose of seeking the nomination. (SA 1-5, 10-14, 18-19 

(AR 34-36, 44-45, 58-62, 84-85)); (see also AR 43, 86.) In doing so, the 

Commission selected the “date that results in the candidate receiving the full 

benefit of the longest permissible matching payment period to which she is 

entitled, rather than artificially shortening that period merely because the candidate 

also [sought] nominations that are decided at earlier dates.” (SA 3 (AR 36).) The 

Commission notified the Committee of its date of ineligibility determination on 

August 17, 2016. (SA 4-5 (AR 44-45).)2 

2 The Commission mistakenly identified the date of ineligibility as 

August 7 in its February 28, 2018 memorandum on the Committee’s Request for 

Consideration of a Legal Question, resulting in a Commission certification 

purporting to reaffirm that date as the date of ineligibility. However, the 

Commission subsequently corrected this error in a corrected certification. (SA 18-

19 (AR 84-85));(AR 86.) 

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

mandatory audit of the candidate’s finances in accordance with 26 U.S.C. 

§ 9038(a). The Commission notified the Committee that it had preliminarily 

determined that it had received funds in excess of the amount it was entitled to 

under the Matching Payment Act. (SA 6-9 (AR 54 -57).) The Commission 

calculated the Committee’s surplus based on the statement of net outstanding 

campaign obligations, also known as a “NOCO” statement, that the Committee 

was required to file after the Commission’s determination of the candidate’s date 

of ineligibility. See 11 C.F.R. § 9034.5. 

On January 12, 2018, the Committee submitted a request for consideration 

of a legal question related to the Commission’s preliminary findings. Although the 

Committee “agree[d] with most of the findings and recommended remedies,” it 

requested “consideration of a single item,” namely, for the Commission to 

reconsider the date of ineligibility. (SA 6-9 (AR 54-57).) The Committee argued 

that the date of ineligibility should be later because it had to incur expenses to 

support Stein’s efforts to get on the ballot in several states, ranging from August 

10, 2016, to September 9, 2016. These dates were all after Stein’s nomination at 

the national convention which was after the last major party nominating 

convention. (SA 12 (AR 60).) The Commission responded on May 15, 2018, 

reaffirming its earlier determination. (SA 20-21 (AR 93-94).) 

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On July 10, 2018, the Commission’s Audit Division issued a Preliminary 

Audit Report that included detailed schedules and an updated net outstanding 

campaign obligations statement and associated winding down expenses. The 

Preliminary Audit Report made two relevant findings. First, it explained that 

auditors considered only ballot access expenses incurred on or before Stein’s date 

of ineligibility. Second, the preliminary report explained that the Stein Committee 

had not yet submitted winding down costs after August 1, 2017. (SA 16 (AR 64)); 

(AR 90.) After receiving a 15-day extension, on September 26, 2018, the 

Committee responded to the Preliminary Audit Report and submitted some bank 

statements as supporting documentation. (AR 145-147.) Because of incomplete 

documentation, however, the auditors could not verify all winding down expenses 

in the Committee’s statement of net outstanding campaign obligations. (SA 52 

(AR 208).) As a result, the Audit staff concluded that the Committee remained in a 

surplus position. (Id.); (SA 31 (AR 184).) 

On November 19, 2018, auditors sent a draft Final Audit Report to the 

Committee, which included detailed schedules to support the auditors’ updated 

statement of net outstanding campaign obligations and winding down expenses. 

The increased actual winding down costs reflected the costs incurred through 

August 31, 2018, which was the last date that the Committee provided 

documentation to support its winding down expenses. (See AR 246.) The Audit 

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Division also included estimated winding down costs for the period of September 

1, 2018, through July 31, 2019, amounting to $69,355, and stated that “[t]his 

amount will be compared to actual winding down costs and will be adjusted 

accordingly.” (SA 34 (AR 187).) 

The Draft Final Audit Report determined that the Committee had a $200,876 

surplus as of the date of ineligibility, and of this total surplus, the Committee must 

repay $40,372, having applied a repayment ratio calculated in accordance with 11 

C.F.R. § 9038.3(c)(1). (SA 31 (AR 184).) Further, because a surplus existed as of 

the date of ineligibility, the draft Final Audit Report found that a matching fund 

payment of $134,900 that the Candidate received after the date of ineligibility 

exceeded the entitlement to such funds. Id.; see also 11 C.F.R. § 9033.5. Based 

upon these two findings, the Audit Division concluded that the Committee must 

repay a total of $175,272 to the United States Treasury. This total was derived 

from adding $40,372, reflecting the portion of the surplus that must be repaid, and 

$134,900, the full amount that the Candidate received after the date of ineligibility. 

The Committee submitted a narrative statement in response to the draft Final 

Audit Report noting additional expenses, but it did not provide any supporting 

documentation of these expenses, nor did the Committee provide a list of any 

additional winding down costs to support these expenses. (See SA 45-46 (AR 198-

200).) Instead, the Committee requested that the Commission delay making its 

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repayment determination so that the Committee could “work with Audit staff to 

resolve discrepancies” in the statement of net outstanding campaign obligations. 

(SA 46 (AR 199).) In recommending against this delay, Commission staff noted 

that the Committee had been “uncooperative” throughout “the entire audit 

process.” (SA 49 (AR 205).) The Committee had “ignored scheduled conferences, 

repeatedly missed deadlines, and failed to respond to the Audit Division’s 

numerous requests for supporting documentation that would have helped the 

auditors verify” the Committee’s outstanding obligations. (Id.) It took the 

Committee “more than six months to provide auditors the requested preliminary 

pre-audit materials,” the Committee “failed to attend . . . the November 30, 2017 

telephonic exit conference,” and prior to the exit conference auditors had “emailed 

the Committee detailed schedules supporting each potential finding, including. . . 

associated winding down expenses,” placing the Committee on notice more than a 

year prior to the Draft Final Audit report. Id. 

The Commission declined the Committees request for additional delay, and 

instead adopted the Final Audit Report on April 16, 2019. (App. 1-25 (AR 236-

60).) The Final Audit Report again identified August 6, 2016, as Stein’s Date of 

Ineligibility. (App. 6 (AR 241).) Like the Draft Final Audit Report, the Final 

Audit Report included the actual winding down costs through August 31, 2018, the 

last date the Committee had provided documentation, and included estimated 

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winding down costs supported by documentation for the period of September 1, 

2018, through July 31, 2019, in the amount of $69,355. (App. 14 (AR 249).) 

Because the Committee had not provided any additional documentation, the Final 

Audit Report again stated that its estimated winding down costs “will be compared 

to actual winding down costs and will be adjusted accordingly.” (Id.) Like the 

Draft Final Audit Report, 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 date of ineligibility and 2) the public funds received 

in excess of entitlement. It found that the Committee had a surplus of $200,856, 

and that the Committee “is required to make a pro rata repayment [of the surplus] 

of $40,372” (App. 8 (AR 243)), in addition to the $134,900 it received in excess of 

entitlement. (App. 8-9 (AR 243-44).) The Committee was notified of these 

findings by letter dated April 17, 2019. (See App. 26 (AR 261).) 

D. The Stein Committee’s Request for Administrative Review 

A committee that wishes to challenge a Commission repayment 

determination must submit written materials within 60 days after service of the 

Commission’s determination. 11C.F.R. § 9038.2(c)(2)(i). On June 17, 2019, the 

Committee submitted a written request for administrative review pursuant to 11 

C.F.R. § 9038.2(c)(2)(i) challenging the Commission’s initial repayment 

determination and requesting an oral hearing. (App. 26-32 (AR 261-267).) The 

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“pivotal issue” asserted by the Committee in its written request, was its argument 

that the date of ineligibility was incorrect. (App. 26 (AR 261).) The Committee’s 

written materials did not include any documentation related to winding down costs 

that the Commission had previously determined were insufficient, or 

documentation related to further winding down costs incurred after August 31, 

2018, in support of increasing the estimated or actual winding down costs. Indeed, 

the only reference to winding down expenses was the Committee’s vague assertion 

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.” (Id.) That assertion was not 

supported by any documentation or further argument. (See id.) 

E. The Commission’s Oral Hearing and Reaffirmance of the 

Committee’s Repayment Obligation 

Upon the Committee’s request, the Commission held an oral hearing on 

February 25, 2021.3 (App. 34-54 (AR 280-300).) Between February 18 and 19, 

2021, the Committee emailed Commission staff new documents that purported to 

detail additional winding down expenses that had not been previously submitted. 

3 On September 12, 2019, the Commission notified the Committee that 

due to the resignation of former Vice-Chair Matthew S. Petersen, the Commission 

no longer had a quorum of at least four voting members to grant the Committee’s 

request for an oral hearing. 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. (AR 272.) 

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See Br. at 9, 24. Though the Committee had not provided documentation with 

respect to those expenses previously, FEC staff made the Commissioners aware of 

the submissions and placed them on a shared network folder so that 

Commissioners and staff could access them due to the short period of time and the 

overriding need for the Commissioners to be prepared for the oral hearing. At the 

oral hearing itself, however, Commission Chair Broussard reiterated that the 

hearing would “be limited to those matters raised in the [C]ommittee’s written 

response to the Commission’s repayment determination that [the Committee] filed 

on June 17th, 2019” under the process set forth in 11 C.F.R. § 9038.2(c)(2), while 

also noting that the Committee had five additional days in which to submit 

additional materials for Commission consideration. (App. 38-39 (AR 284-285).) 

When asked how the documents submitted in the days before the oral hearing 

related to issues that were raised in the Committee’s written submission, the 

Committee pointed solely to its general statement that the Commission’s “other 

findings concerning” among other things “winding down expenses” would not 

“survive scrutiny.” (AR 308-309.) 

After the oral hearing, between March 1 and March 4, the Committee again 

emailed FEC employees documents that purported to establish additional winding 

down expenses that had not been previously raised as issues. See Br. at 24. 

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Because these materials were not timely presented, the Commissioners did not 

consider these materials. (App. 65-69.) 

On September 30, 2021, the Commission issued its final determination of 

the $175,272 repayment amount and adopted the recommended Statement of 

Reasons as the legal and factual basis for the Commission’s determination. (See 

Pet. at ECF pp. 3-22; AR 301-321; AR 322.) The Commission’s Repayment 

Determination affirmed its determination that Stein and the Committee “must 

repay public funds in the amount of $175,272.” (App. 79 (Rep. Det. at 19).). In 

making this determination, the Commission explained in its Statement of Reasons 

that the Committee “waived any issues or arguments pertaining to winding down 

expenses by failing to raise them in its request for administrative review.” (App. 

67 (Rep. Det. at 7).) 

SUMMARY OF THE ARGUMENT 

The Commission properly determined that the Stein Committee was required 

to repay $175,272, representing surplus public funds in the Committee’s accounts 

and public funds received in excess of entitlement. 

The Committee’s claim that application of the matching fund period imposes 

unequal burdens on it because it incurred additional costs to qualify on various 

state ballots is precluded by Supreme Court precedent. The provision does not 

impose a discriminatory burden on the Stein Committee simply because it may 

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result in an eligibility period that does not encompass all state ballot access 

deadlines. Congress may provide different access to public financing for 

candidates of political parties that appeal to greater numbers of voters, and the 

Constitution does not require Congress to treat all declared candidates the same in 

this context. The Commission’s determination was consistent with agency 

precedent in applying the date that results in the candidate receiving the full benefit 

of the longest permissible matching payment period to which she is entitled, rather 

than artificially shortening that period merely because the candidate also seeks 

nominations of parties that do not hold national conventions. Moreover, the 

Commission cannot arbitrarily expand the eligibility deadline beyond what 

Congress provided. 

The Committee also failed to preserve its argument that it had additional 

documentation supporting winding down costs that it claims would negate its 

repayment obligation. It did not raise this argument until after it had submitted its 

request for administrative review, nearly two years later during the oral hearing 

before the Commission. The regulation is clear. Any issues not raised in a 

request for administrative review are deemed waived. As a result, the Committee 

waived any issues or arguments it had pertaining to these winding down expenses, 

and the Commission’s decision not to consider this argument was not contrary to 

law or an abuse of discretion. 

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The Committee’s additional argument, raised for the first time in their brief, 

that the Commission failed to account for the Committee’s claim of increased 

winding down costs because of the Commission’s loss of quorum, is of no 

consequence to this determination. According to its own submissions, the 

Committee had purportedly incurred actual winding down costs at the time of its 

request for administrative review. See Br. at 5 (noting additional costs between 

September 1, 2018 and December 31, 2020, totaling $318, 823). Yet the 

Committee has failed to show that it could not have introduced additional 

expenses, and documentation of costs between September 2018 and June 2019, in 

its request for administrative review submitted on June 17, 2019. The Petition for 

Review should be denied. 

STANDARD OF REVIEW 

Under 26 U.S.C. § 9041, judicial review of a Commission determination “is 

limited to determining whether the Commission’s action was ‘arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law.’” Comm. to Elect 

LaRouche v. FEC, 613 F.2d 834, 845-46 (D.C. Cir. 1979) (citation omitted). This 

standard is “highly deferential” and “presume[s] the validity of agency action.” 

Am. Horse Prot. Ass’n, Inc. v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Thus, 

“the party challenging an agency’s action as arbitrary and capricious bears the 

burden of proof.” San Luis Obispo Mothers for Peace v. Nuclear Regulatory 

23 
USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 34 of 58 

Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). Under this standard, “[a] 

court cannot substitute its judgment for that of an agency, and must affirm if a 

rational basis for the agency’s decision exists.” Bolden v. Blue Cross & Blue 

Shield Ass’n, 848 F.2d 201, 205 (D.C. Cir. 1988) (internal citation omitted). 

The Supreme Court has recognized in the ballot access context that 

“restrictions on access to the electoral process must survive exacting scrutiny.” 

Buckley v. Valeo, 424 U.S. 1, 93-94 (1976) (per curiam). Public campaign 

financing systems, however, are “generally less restrictive of access to the electoral 

process than the ballot-access regulations” to which such exacting scrutiny applies. 

Id. at 95. As such, public campaign financing provisions are constitutional under 

the equal protection component of the Fifth Amendment if they are enacted “in 

furtherance of sufficiently important governmental interests” and they do not 

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

candidate.” Id. at 95-96. 

ARGUMENT 

I. 26 U.S.C. § 9032(6) IS CONSTITUTIONAL AS APPLIED TO THE 

COMMISSION’S REPAYMENT DETERMINATION 

A. Section 9032(6) is Consistent with the Purpose of the Matching 

Payment Act and Supreme Court Precedent 

The Matching Payment Act “was enacted in 1974 to provide partial federal 

financing for the campaigns of qualifying presidential primary candidates.” Simon 

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v. FEC, 53 F.3d 356, 357 (D.C. Cir. 1995). Another federal program, the 

Presidential Election Campaign Fund Act, offers candidates that have achieved the 

nomination of qualifying political parties the option of public funds for use in a 

general election. See 26 U.S.C. § 9001-9013. 

Although the Matching Payment Act provides some public funds for a 

candidate’s campaign for a party’s nomination, it was never intended to be the sole 

source of funds or cover all possible expenses. Instead, the Matching Payment Act 

“provides for limited public financing of primary elections by authorizing 

matching federal payments for small [private] contributions.” H.R. Rep. 93-1239, 

at 12 (1974) (Conf. Rep.). Further, those funds may only be used to defray 

statutorily defined “qualified campaign expense[s].” See 26 U.S.C. § 9032(9). 

Eligibility for matching payments is further temporally limited to the time during 

which the candidate seeks a party’s nomination. 

The Matching Payment Act sets this outer temporal limit through its 

definition of the matching payment period. Under the statute, the matching 

payment period ends at one of two points: (1) the date the party nominates the 

candidate during a national convention or, (2) 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 

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U.S.C. § 9032(6); 11 C.F.R. § 9032.6(b). This definition ensures that all matching 

payments are used to defray expenses incurred “during the pre-nomination period.” 

H.R. Rep. 93-1239, at 13 (1974) (Conf. Rep.). Thus, the Matching Payment Act 

grants minor parties an opportunity to “collect matchable contributions for a period 

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

(AR 319 (citing FEC Advisory Op. 1984-25, at 2).) 

As applied to Stein’s campaign for the Green Party’s nomination, 

application of the matching payment period results in no differential treatment 

between major and minor party candidates because the Green Party nominated 

Stein at a national convention. (See AR 315.) As a result, the end of Stein’s 

matching payment period coincides exactly with the end of her campaign for the 

Green Party nomination, which incidentally covers a longer time-period than 

would have been available to any major party primary candidate. (Id.) 

As applied to candidates seeking the nomination of independent state parties 

that do not select presidential nominees during a national convention, tying the 

matching payment period to the earlier of the date of nomination or national 

convention of a major party candidate prevents an opportunity for artificial 

extension of the period of eligibility. In the absence of such a provision, a 

candidate seeking the nomination of a major party could also seek the nomination 

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of an independent state party with a later ballot access deadline, and thereby 

arbitrarily extend the candidate’s eligible period. 

The Committee argues that application of the matching payment period 

fosters inequitable treatment of minor party or independent candidates because it 

does not guarantee that all ballot access expenses fall within the matching payment 

period. (Br. at 33-34). On the Committee’s view, the matching payment period is 

invidiously discriminatory because minor parties face higher costs to access the 

ballot as compared with major parties. (Br. at 34.) But the provision does not 

impose a discriminatory burden on Petitioners’ constitutionally protected rights 

merely because it may result in an eligibility period that does not encompass all 

state ballot access deadlines. 

The Supreme Court has squarely rejected the proposition that Congress must 

equalize the burdens minor parties face if it chooses to provide public funding for 

campaign activity. “The Constitution does not require the Government to ‘finance 

the efforts of every nascent political group’ merely because Congress chose to 

finance” some campaign activity. Buckley, 424 U.S. at 98 (quoting Am. Party of 

Tex. v. White, 415 U.S. 767, 794 (1974). Simply put, “the Constitution does not 

require Congress to treat all declared candidates the same for public financing 

purposes” in light of the “obvious differences in kind between the needs and 

potentials of a political party with historically established broad support, on the one 

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hand, and a new or small political organization on the other.” Id. at 97 (citations 

and quotation marks omitted). 

In the Supreme Court’s first opinion considering the constitutionality of a 

public campaign financing scheme, the Court rejected the argument that it was an 

equal protection violation for a State to reimburse major parties’ expenses incurred 

for holding primaries, but not subsidize minor parties for ballot access expenses. 

Am. Party of Tex., 415 U.S. at 794.4 Similarly, Buckley rejected the claim that the 

Matching Payment Act worked as an equal protection violation because it did “not 

provide funds for candidates not running in party primaries.” 424 U.S. at 105-06. 

Congress, the Court held, could choose to “limit . . . the reach of the reforms 

encompassed” in providing primary matching funds “without constituting the 

reforms a constitutionally invidious discrimination. Id. at 105. 

The Committee’s claim that application of the matching period imposes 

unequal burdens on it because it must “incur substantial costs to qualify for state 

ballots” that the major parties do not face (Br. 14), is precluded by this precedent. 

In any event, the increased costs for ballot access the Committee faced resulted 

from application of various State laws, not the Matching Payment Act. A public 

campaign financing scheme is not invidiously discriminatory merely because it 

4 “That the aid in American Party was provided to parties and not to 

candidates, as is” funds made available through the Matching Payment Act, “is 

immaterial.” Buckley, 424 U.S. at 95 n.130. 

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does not place all parties — who face different challenges and costs — on equal 

financial footing. See, e.g., Am. Party of Tex., 415 U.S. at 794. 

The matching payment period also syncs up naturally with the eligibility 

period during which public funds may be used for a candidate’s general election 

campaign under the Presidential Election Campaign Fund Act. See 26 U.S.C. 

§ 9002(12). An eligible candidate receiving public financing for a general 

presidential election may generally use that funding for qualifying campaign 

expenses “within the expenditure report period.” Id. § 9002(11)(B). For major 

parties, that period begins on the earlier of the first day of September before the 

election or the date on which the party nominates its presidential candidate. Id. 

§ 9002(12)(B). For non-major parties, the period for which general election 

funding may be used is the same as the “shortest expenditure report period” for a 

major party. Id. § 9002(12)(B). As applied to a party that does not nominate at a 

national convention, the end of the matching payment period to receive public 

funds in a primary — the earlier of the date of nomination or the last major party 

nomination — will typically coincide with the beginning of eligibility to use 

general election public funds under the Presidential Election Campaign Fund Act. 

In 2016, the period for any minor party presidential candidate to use public funding 

in the general election would have commenced on July 28, or nine days prior to 

Stein’s date of ineligibility for primary matching funds. (AR 315.) Stein did not 

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qualify for general election funding because neither she nor the Green Party 

received sufficient votes in the relevant presidential elections. See 26 U.S.C. 

§ 9004(a). The Committee’s argument here to extend the matching payment 

period past the statutory date is thus inconsistent with the careful dividing line 

Congress established between broader eligibility for public funds in a primary and 

the more-limited universe of candidates that could receive public funds in the 

general election. See Buckley 424 U.S. at 103 (upholding general election public 

funding eligibility requirements). Congress was free to set reasonable divisions 

between primary and general elections and to distinguish political parties with 

demonstrated levels of public support without offending equal protection 

principles. 

The Committee also argues that Stein “reasonably anticipated that her 2016 

ballot access expenses would be deemed qualified campaign expenses under the 

Matching Payment Act, as they were in 2012,” (Br. at 35), but the Commission 

applied an identical rule of law in both cases. In 2012, Stein was nominated as 

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

national nominating convention. (AR 319 n.23.) The last day of the last national 

convention held by a major party in 2012 was September 6, 2012, which happened 

to coincide with Alabama’s deadline for ballot qualification. (Id.) The 

Commission determined that the latest permissible date of ineligibility was the last 

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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 2012 presidential election. (Id.) 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). 

B. The Commission’s Decision is Consistent with Agency Precedent 

The thrust of the Committee’s argument is that it is arbitrary for the 

Commission’s precedent to permit Matching Payment Act funds be used for ballot 

access expenses when the statute in some circumstances may cut off the timeperiod for eligibility for public funds at an earlier date. (Br. at 38-40.) The 

Committee is thus pressing the curious argument that the Commission has been too 

generous with minor parties in defining qualified campaign expenses. After all, to 

the extent the Commission’s conclusion that primary matching funds may be used 

for ballot access expenses creates an inequity with Congress’s judgment about 

when such matching payments should end, the statute would control. 

The agency precedent the Committee mentions, however, does not 

contradict the Commission’s conclusion here that ballot access expenses are only 

permissible under the Matching Payment Act if they are incurred within the 

matching payment period. (See Br. at 38-40 (citing FEC Advisory Op. 1975-44 

(Socialist Workers 1976 National Campaign Committee); FEC Advisory Op. 

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1975-53 (Bradley for Senate); FEC Advisory Op. 1995-45 (Hagelin for 

President)).) 

The Commission’s Advisory Opinion in Bradley applied a different statute 

— FECA — as it relates to Senate candidates and therefore does not address the 

matching payment period for public matching funds under the Matching Payment 

Act. Bradley considered whether the now-overruled limitation on campaign 

expenditures contained in FECA applied to an independent candidate for the 

Senate who sought to qualify for a ballot position in a general election through the 

gathering of petition signatures instead of seeking nomination in the party primary. 

FEC Advisory Op. 1975-53 at 1, https://www.fec.gov/files/legal/aos/1975-

53/1975-53.pdf. Concluding that the expenditure limits applied, the Commission 

noted that “[w]ith respect to individuals seeking a ballot position in a general 

election for Federal office without nomination by a party, a primary election shall 

be deemed to have occurred on the day prescribed by applicable State law as the 

last day to qualify for a position on the general election ballot or the date of the last 

major party primary election whichever is later.” Id. 

The Matching Payment Act and FECA, however, operate entirely differently 

from one another in this context. FECA’s definition of primary election chose the 

latest of three possible dates to designate as the single primary election date for 

purposes of an expenditure limit, while the Matching Payment Act is concerned 

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with delimiting the period of time during which a candidate seeking nomination in 

up to 50 states, plus territories, may be considered eligible to receive public 

funding. A necessary component of any public-financing scheme is a formula for 

determining the amount of money that each participating candidate will receive 

and a reasonable end point for receipt of funding. The eligibility provision is an 

appropriately tailored way of making the public-financing scheme attractive to 

candidates, while placing limits to protect the public fisc. See Buckley, 424 U.S. at 

103. The Committee’s reliance on a separate Commission regulation defining 

primary election, 11 C.F.R. § 100.2(c)(4), similarly addresses FECA and not the 

Matching Payment Act, see 11 C.F.R. § 100.1. 

Nor does the Socialist Worker advisory opinion establish an agency 

precedent that sets the ballot access deadline as the end of the nomination process. 

FEC Advisory Op. 1975-44 (Socialist Workers 1976 National Campaign 

Committee), https://www.fec.gov/files/legal/aos/1975-44/1975-44.pdf. That 

opinion merely recognizes the interest in providing a uniform date for the end of a 

primary period to determine the time periods relevant to FECA’s per-election 

contribution limitations. As the Commission observed, “the dates pertaining to 

petition qualification” for ballot access will “vary from State to State, the 

Commission considers it necessary to prescribe a uniform date when . . . the 

petition process ends for minor party presidential candidates.” FEC Advisory Op. 

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1975-44, at 2. The Commission concluded “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,” which 

“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)).”5 Id. at 

2. 

The Commission applied this same reasoning in an advisory opinion 

regarding Ralph Nader’s 2000 Presidential primary campaign. FEC Advisory Op. 

2000-18 (August 11, 2000) (Nader 2000 Primary Campaign Committee), 

https://www.fec.gov/files/legal/aos/2000-18/2000-18.pdf. As is the case here, 

Nader sought the presidential nomination of the Green Party at its national 

convention to appear as its candidate where that party had automatic ballot access. 

Id. at 2. Nader also sought the nomination of independent parties that did not hold 

5 Petitioners also reference an additional Commission Advisory 

Opinion, Advisory Opinion 1995-45 (Hagelin for President). Br. at 25-26; id. at 

40. As set forth in this Advisory Opinion, general election ballot access expenses 

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

Op. 1995-45 (Hagelin for President). However, as explained supra pp. 6-7, to be 

considered a qualified campaign expense, the expense must be incurred on or 

before the candidate’s date of ineligibility, that is, during the matching payment 

period. There is nothing inconsistent with this Advisory Opinion and how the 

Commission defines the matching payment period. 

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a national convention — including the United Citizens Party — for other states in 

which the Green Party candidate did not automatically appear on the ballot. Id. In 

some states, Nader sought to use the petition process to obtain ballot access. Id. 

The Commission applied 26 U.S.C. § 9032(6) to conclude that Nader’s matching 

payment period ended on the date the United Citizens Party selected its nominee, 

rather than the later state petitioning deadlines, because the date of that party’s 

nomination occurred before the last national convention held by a major party in 

2000. Id. at 4. 

Even though it may be correct that “the process by which” minor party 

candidates “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,” (Br. at 39 (citing FEC Advisory Op. 1995-45, at 2) 

(internal quotation marks omitted)), that agency judgment does not overrule 

Congress’s decision to cut off eligibility for matching primary funds at an earlier 

point. To the contrary, the Commission has repeatedly observed that the matching 

payment period for a candidate that seeks the nomination of a party that holds a 

national convention and one that does not may select the later nomination date only 

if such dates were not later than “the last date of the last national nominating 

convention held by a major political party.” FEC Advisory Op. 1984-25, at 2 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 46 of 58 

(May 25, 1984) (Johnson), https://www.fec.gov/files/legal/aos/1984-25/1984-

25.pdf. 

* * * 

Congress was entitled to provide only a limited period for public matching 

funds for use in a candidate’s efforts to secure a party’s presidential nomination. 

Even if minor parties face differential burdens in accessing the ballot, Congress did 

not discriminate by providing funding that may only be partially used to defray 

those costs. To the extent the Committee believes all state ballot access costs 

should be covered, regardless of when they are incurred, it is free to petition 

Congress for a remedy. 

II. THE COMMISSION’S DETERMINATION WAS NOT ARBITRARY, 

CAPRICIOUS, OR AN ABUSE OF DISCRETION 

A. The Committee Failed to Preserve Its Argument Regarding 

Additional Winding Down Costs 

“A candidate who disputes the Commission’s repayment determination(s) 

shall submit in writing, within 60 calendar days after service of the Commission’s 

notice, legal and factual materials demonstrating that no repayment, or a lesser 

repayment, is required.” 11 C.F.R. § 9038.2(c)(2)(i). “The candidate’s failure to 

timely raise an issue in written materials presented pursuant to this paragraph will 

be deemed a waiver of the candidate’s right to raise the issue at any future stage of 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 47 of 58 

proceedings including any petition for review . . . .” Id. 

Here, the Committee submitted written materials attempting to demonstrate 

that no repayment was required, but it did not present any “legal and factual 

materials” related to its assertion that additional winding down costs should be 

considered. See id. The Commission reasonably determined that the issue was 

waived at that point, and any later documentation submitted by the Committee was 

too late. 

The sole statement the Committee cites to establish that it raised the issue of 

additional winding down costs in its request for administrative review of the 

Commission’s repayment determination is the fourth paragraph of its written 

submission. See Br. at 41. That paragraph stated 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.” (AR 261.) Every other paragraph of the Committee’s submission 

addressed what it called “the pivotal issue”: the date of ineligibility set by the 

Matching Payment Act. (AR 261-65.) The Committee submitted no factual 

materials supporting its generalized statement about “the nature of winding down 

expenses, misstatement of financial activity and disclosure of debts and 

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obligations.”6 (See AR 261.) Under these circumstances, the Commission’s 

conclusion that the Committee had waived it claim for additional winding down 

expenses was not arbitrary and capricious. 

As this Court observed in upholding 11 C.F.R. § 9038.2(c)(2)(i)’s 

requirement 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). Robertson observed 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. But courts require more than a 

general statement of the kind the Committee made here to preserve an issue or 

argument for judicial consideration. See City of Waukesha v. Envtl. Prot. 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. Fed. 

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

6 The Commission had already given the Committee credit for some 

winding down expenses. See supra at pp. 17-18 (describing actual winding down 

costs through August 31, 2018). That the Committee was now claiming to have 

additional documentation to support further expenses it had incurred was not stated 

in the Committee’s request, and it was not incumbent upon the Commission to 

deduce this argument from this general statement. 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 49 of 58 

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). So, too, was it permissible for the Commission to 

conclude that the Committee’s failure to specifically identify winding down 

expenses it thought the Commission should consider — and its failure to submit 

supporting factual documentation — operates as a waiver of that issue. 

Furthermore, even if the Committee had previously questioned the 

Commission’s treatment of winding down expenses, as the Committee claims (Br. 

at 35, 43), that does not absolve it of its responsibility to adequately raise the issue 

in its written challenge to the repayment determination. The Commission’s 

regulation requires the challenges to the repayment determination be raised 

specifically in the request for administrative review. 11 C.F.R. § 9038.2(c)(2)(i). 

The request for administrative review does not automatically incorporate all the 

issues raised and decided during the process culminating in the Final Audit Report. 

Rather, the Committee must directly identify the subset of issues it wishes to focus 

upon in the request for administrative review. If all the issues raised during the 

audit were deemed automatically in play during the administrative review phase, 

the requirement to raise the issues or waive them in the request for administrative 

review would make no sense. 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 50 of 58 

In any event, the Committee overstates the extent to which it raised winding 

down costs in its prior submissions to the Commission. As Commission staff had 

observed, the Committee had been “uncooperative” through the audit process, had 

“ignored scheduled conferences” and “failed to respond to the Audit Division’s 

numerous requests for supporting documentation.” (AR 205.) Despite submitting 

some documentation, which had not been acceptable to the Commission, the 

Committee could have submitted additional supporting documentation at any point 

during the audit process that would, if properly documented, possibly lower the 

Committee’s surplus and thereby its repayment obligation. The Committee, 

however, provided no explanation as to why it failed to submit appropriate 

documentation at that time or in its request for administrative review. Instead, it 

waited until February 2021 — nearly twenty months after the date it was required 

to submit legal and factual materials demonstrating no repayment was required — 

to submit documentation for its claimed expenses. The Commission’s decision not 

to consider this evidence was reasonable. LaRouche’s Comm. for a New Bretton 

Woods v. FEC, 439 F3d 733, 737 (D.C. Cir. 2006) (affirming Commission 

decision not to include markup charges as qualified campaign expenses “[a]fter 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 51 of 58 

allowing the LaRouche Committee ample opportunity” to prove the charges were 

quantifiable or reasonable).7 

The Commission’s loss of a quorum between August 2019 and December 

2020 is immaterial to the repayment determination. Petitioners now argue that it 

has incurred additional winding down expenses during that time period, Br. at 43-

44, but it did not preserve the issue during the administrative proceedings below in 

order to present later-incurred expenses. Nor does it excuse the Committee’s 

repeated failure to submit requested documentation of winding down expenses for 

the period between August 31, 2018, and June 17, 2019, the deadline for its written 

submission seeking review of the repayment determination. In any event, because 

the Committee failed to properly preserve its claim for inclusion of additional 

winding down expenses, these additional expenses are also waived. 

Stein’s claim of financial hardship neatly elides that the Commission’s 

repayment determination reflects the agency’s efforts to recover public monies that 

should not have been paid, either because her campaign’s expenses post-dated its 

eligibility for public funds or were improperly documented and preserved under 

7 Because it concluded the February Materials and March Materials 

were not timely submitted and related to issues that had been waived, the 

Commission has not considered whether those materials are sufficiently 

documented to be credited or whether they would eliminate or even reduce the 

Committee’s repayment obligation. Should the Court conclude that it was error for 

the Commission not to consider those materials, the Commission agrees with the 

Committee that the agency should “address [them] in the first instance.” (Br. 48.) 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 52 of 58 

the terms to which all publicly funded candidates must agree. Stein claims to have 

already deposited sufficient personal funds in an escrow account, (Br. at 4), but to 

the Commission’s knowledge the parties’ efforts to establish a compliant account 

at a financial institution to effectuate a stay on appeal remain ongoing. See 11 

C.F.R. § 9038.5(c)(2). And, despite Stein’s claim that the financial obligation 

“falls solely upon” her, (Br. at 4), the Commission recently confirmed at the 

Committee’s request that she may use private contributions to repay her 

obligations resulting from this case. See FEC Advisory Op. 2022-04 (June 9, 

2022) (Jill Stein for President Comm.)), https://saos.fec.gov/aodocs/2022-04.pdf. 

B. The Commission Properly Excluded the March Materials from 

the Administrative Record. 

Judicial review is limited to the record because a court “‘should have before 

it neither more nor less information than did the agency when it made its 

decision.’” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (quoting 

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). 

There is a strong presumption against supplementation of the administrative 

record, and “the practice decidedly is the exception not the rule.” Motor & Equip. 

Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095, 1104 n.18 (D.C. Cir. 1979). The 

“designation of the Administrative Record, like any established administrative 

procedure, is entitled to a presumption of administrative regularity.” Bar MK 

Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993). Only those documents 

42 
 

USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 53 of 58 

that are “before” the agency decisionmaker “at the time he made his decision” are 

properly within the administrative record. Am. Wildlands v. Kempthorne, 530 F.3d 

991, 1002 (D.C. Cir. 2008) (internal quotation marks omitted); see also Dist. Hosp. 

Partners, L.P. v. Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015); Pacific Shores 

Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 

(D.D.C. 2006). 

The FEC agreed to supplement the record with the February materials 

because, despite being untimely submitted, they were determined to have been 

“circulated” to FEC Commissioners prior to the hearing, and therefore fit this 

technical requirement for inclusion. See 11 C.F.R. § 9038.7(b)(1). The March 

materials, however, were never “submitted to the Commission for its consideration 

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

“administrative record.” 11 C.F.R. § 9038.7(a). They were properly excluded 

under both the applicable regulation and fundamental administrative law 

principles. See Dist. Hosp. Partners, L.P., 786 F.3d at 55 (D.C. Cir. 2015) 

(concluding that judicial review of agency’s action “must ‘be based on the full 

administrative record that was before the Secretary’ [of agency] when she made 

her decision”) (quoting Am. Wildlands, 530 F.3d at 1002). There are no unusual 

circumstances requiring supplementation here. Am. Wildlands, 530 F.3d at 1002. 

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As explained supra pp. 18-19, the Committee sought to raise the issue involved 

with the supporting materials proposed for supplementation far beyond the time of 

their request for administrative review submitted on June 17, 2109, nearly two 

years later in March of 2021. As such, the materials were untimely and properly 

not submitted to Commissioners for their consideration. 

The Chair of the Commission stated at the oral hearing that, “the committee 

will have five days in which to submit additional materials for Commission 

consideration” and that the Commission would make its determination “[p]ursuant 

to 11 C.F.R. § 9038.2(c)(3).” (AR 285.) But submission of additional materials 

after an oral hearing does not expand the categories of properly raised issues that 

could be timely submitted. Robertson, 45 F.3d at 491. “[S]oliciting or accepting 

additional material during or after the oral hearing does not necessarily expand the 

subject matter scope of the original written submissions or implicitly relax the 

agency’s procedural requirement for challenges to agency decisions.” Id. Thus, 

this Court specifically concluded in Robertson 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.” Id. Accordingly, the Court found that the 

Commission was within its rights in refusing to consider the petitioner’s argument 

because it had not been timely raised. Id. 

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USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 55 of 58 

Similarly here, allowing additional materials to be submitted post-hearing 

does not override the Commission’s regulation that issues must be timely raised 

and materials must be timely submitted. As the Chair noted during the oral 

hearing, a party can present additional documentation in support of its position on 

issues that were timely raised in its response. As in Robertson, the Commission 

was not obligated to accept the additional material that related to a subject that was 

not timely raised by the Committee. And because the Commission decision 

makers did not review these materials in making their final determination, they 

were properly excluded from the administrative record. See 11 C.F.R. 

§ 9038.2(c)(3); see also Robertson, 45 F.3d at 491 (“An agency is entitled to 

prescribe its own procedures, including requirements that parties give timely notice 

as to the nature of any challenges to agency authority, at least as regards actions 

already taken.”). The March materials were properly rejected as untimely and are 

not part of the administrative record as defined by Commission regulations. 

 The March materials were mentioned in the Commission’s Statement of 

Reasons but only for the limited purpose of explaining the conclusion that they 

were not being considered due to their untimeliness. (See AR 308 (in explaining 

that the issue had not been properly raised, noting that “between March 1 and 

March 4, after the oral hearing, the Committee submitted [to FEC staff] new 

supporting documents that detailed additional winding down expenses”). As such, 

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the March materials could not have been the basis for the Commission’s decision 

because the Commissioners never had access to them. Simply because the 

additional materials were submitted to Commission employees post-hearing in no 

way entitles Petitioners to overcome the regulatory requirement for administrative 

records in this context. 

CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that this 

Court deny the Petition for Review and affirm the Commission’s repayment 

determination.

 Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

July 28, 2022 

Jacob Siler 

Assistant General Counsel 

jsiler@fec.gov 

/s/ Shaina Ward 

Shaina Ward 

Attorney 

sward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

46 
 

USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 57 of 58 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this 28th day of July, 2022, that: 

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7) 

because, excluding the parts of the document exempted by Fed. R. App. P. 

32(f) and Circuit Rule 32(e), this document contains 10,315 words. 

2. This document complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because 

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word 2013 in a 14-point Times New Roman font. 

/s/ Shaina Ward

 Shaina Ward 
 

USCA Case #21-1213 Document #1956902 Filed: 07/28/2022 Page 58 of 58 

CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of July, 2022, I electronically filed the 

foregoing document with the Clerk of the United States Court of Appeals for the 

D.C. Circuit by using the Court’s CM/ECF system. All participants are registered 

CM/ECF users and will be served by the appellate CM/ECF system. 

/s/ Shaina Ward

 Shaina Ward