FEDERAL ELECTION COMMISSION WASHINGTON, D.C. 20463

 November 1, 2018 

MEMORANDUM 

TO: Patricia C. Orrock

 Chief Compliance Officer

 Thomas E. Hintermister

 Assistant Staff Director

 Audit Division

FROM: Neven F. Stipanovic 

 Acting Associate General Counsel

 Policy Division

 Lorenzo Holloway 

 Assistant General Counsel

 Compliance Advice 

Joshua Blume 

Attorney 

SUBJECT: Draft Final Audit Report on Jill Stein for President (LRA # 1021) 

I. INTRODUCTION

The Office of the General Counsel (“OGC”) has reviewed the proposed Draft Final Audit 

Report (“DFAR”) on Jill Stein for President (“the Committee”). The DFAR contains four 

findings: Finding 1 - Net Outstanding Campaign Obligations - Surplus, Finding 2 – Matching 

Funds Received in Excess of Entitlement, Finding 3 – Misstatement of Financial Activity, and 

Finding 4 - Disclosure of Debts and Obligations. We concur with these findings, but we 

comment on an argument presented by the Committee that implicates Findings 1 and 2. If you 

have any questions, please contact Joshua Blume, the attorney assigned to this audit. 
Memorandum to Patricia C. Orrock and Thomas E. Hintermister

Jill Stein for President Draft Final Audit Report

LRA # 1021

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II. BALLOT ACCESS EXPENSES INCURRED AFTER THE DOI CANNOT BE 

CONSIDERED QUALIFIED CAMPAIGN EXPENSES EVEN THOUGH THEY 

ARE RELATED TO THE PRIMARY ELECTION

The DFAR finds that the Candidate and the Committee had a $213,435 surplus as of the

date of ineligibility (“DOI”).

1 See 11 C.F.R. § 9033.5(c) (date of ineligibility is last day of 

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

“matching payment period” to end on date of candidate’s nomination). The DFAR finds that of 

this total surplus, the Committee must repay $42,900, having applied a repayment ratio 

calculated in accordance with 11 C.F.R. § 9038.3(c)(1). Further, because a surplus existed as of 

the DOI, a matching fund payment of $134,900 that the Candidate received after the DOI 

exceeded her entitlement to such funds. See 11 C.F.R. § 9033.5 (candidates may receive 

matching funds after the DOI only to satisfy net outstanding campaign obligations). Based upon 

these two findings, the Audit Division concludes that the Candidate must repay a total of

$177,8002 to the United States Treasury.

 

The Committee argues that the costs the Committee incurred after the DOI, totaling 

$310,477.48, was for the purpose of obtaining access for the Candidate to the general election 

ballots of several states and thus should be considered qualified campaign expenses. The 

Committee argues that the ballot access expenses should be considered qualified campaign 

expenses because the Commission has previously determined that costs incurred by a candidate 

to obtain general election ballot status are related to a primary election. See, e.g., Advisory 

Opinion 1995-45 (Hagelin for President). The Committee also argues that, under Commission 

regulations, Jill Stein, as a non-major party or independent candidate, may choose one of three 

dates to be the date of the primary election. Under one option, the candidate may choose “[t]he 

day prescribed by applicable State law as the last day to qualify a position on the general election 

ballot” as the primary election date for that state. 11 C.F.R. § 100.2(c)(4)(i).

The Commission already considered and rejected these arguments made by the 

Committee. See Memorandum from Erin Chlopak to Commission on Request for Consideration 

of a Legal Question Submitted by Jill Stein for President (LRA # 1021), Attachment 1 (Feb. 28, 

2018) (“Legal Consideration Memorandum”) (approved April 11, 2018). The Legal 

Consideration Memorandum concluded that the DOI is the date of the nomination during the 

party convention, in this case August 6, 2016. It further concluded that ballot access expenses 

cannot be deemed qualitied campaign expenses if they were incurred after the DOI because such 

expenses must be incurred during the candidate’s period of eligibility.3

 Id. at 4-5; see also 11 

 1 The Audit Division had concluded in the PAR that the surplus was $225,911, but reduced this sum to 

$213,435 based upon consideration of certain additional expenses incurred before the DOI.

2 This total is derived from adding, $42,900, reflecting the portion of the surplus that must be repaid, and

$134,900, the full amount that the Candidate received after the DOI. 

 

3 The Commission concluded that the DOI is the date of nomination during the party convention. The 

Commission also reasoned, as reflected in the approved Legal Consideration Memorandum, that even ballot access 

expenses incurred in relation to the primary election cannot be deemed qualified campaign expenses if they are 
Memorandum to Patricia C. Orrock and Thomas E. Hintermister

Jill Stein for President Draft Final Audit Report

LRA # 1021

Page 3

C.F.R. § 9032.9(a)(1). Thus, the date upon which the ability of a candidate to use taxpayer funds 

to finance the primary election campaign is fixed and must end on the DOI.

4

Under certain circumstances in which a candidate seeks both nomination by a party 

convention and subsequent qualification for placement on the general election ballot of one or 

more states, the candidate’s matching payment period, and hence, his or her DOI, may be 

extended beyond the national party nominating convention date. However, in Advisory Opinion 

1984-25 (Johnson), the Commission concluded that, in situations like the Candidate’s here, the

DOI may coincide with later independent State party nomination dates rather than the earlier date 

of the national nominating convention only where those dates are not later than the date of the 

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

2. Applying this principle here, the Commission determined that the matching payment period 

ended with the Candidate’s nomination during the national party convention, August 6, because 

the last date of the last major party nominating convention in 2016 was July 28. See 

Memorandum from Adav Noti to the Commission on Date of Ineligibility – Jill Stein for 

President (LRA 1021), at 2 (Jul. 29, 2016). Taxpayer funds therefore cannot be used for ballot 

access expenses incurred after August 6.5

 

incurred after the DOI. Id. We notified the Committee of the Commission’s decision on the Request for Legal 

Consideration. The Committee’s position appears not to have changed since that time and does not appear to be 

further supported by new argument(s).

4 In one specific circumstance, the Commission allows a presidential candidate to continue to campaign with 

private funds after losing eligibility for public funding by reason of having failed to garner a sufficient percentage of 

the popular vote in two consecutive primary elections without incurring a repayment obligation for doing so. 11 

C.F.R. §§ 9033.5(d), 9034.4(a)(3). 

 

5 The Committee appears to have incurred additional expenses that were not qualified campaign expenses 

that ordinarily would be grounds for assessing a repayment obligation apart from the two bases for repayment 

obligations already assessed in the DFAR. See 26 U.S.C. § 9038(b)(2); 11 C.F.R. § 9038.2(b)(2) (identifying use of 

matching funds to defray expenses other than qualified campaign expenses as ground for assessing repayment 

obligation separate from existence of receipt of matching funds exceeding entitlement or surplus). However, we do 

not recommend the assessment of a third, separate repayment obligation based on this ground in this matter because 

any public funds that the Committee would have spent on ballot access expenses would necessarily have derived 

from either the Committee’s surplus on the DOI or from the single matching fund payment the Committee received 

after the DOI and the Commission would be reclaiming all of these amounts by virtue of the repayment obligations 

already being assessed. The addition of a third, separate repayment obligation would therefore, on these facts, be 

duplicative and unnecessary.