Jill Stein v. FEC ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2023 Decided July 21, 2023
No. 21-1213
JILL L. 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
Oliver B. Hall argued the cause and filed the briefs for
petitioners.
Shaina Ward, Attorney, Federal Election Commission,
argued the cause for respondent. With her on the brief were
Kevin Deeley, Associate General Counsel, and Jacob S. Siler,
Assistant General Counsel.
Before: HENDERSON, WILKINS, and KATSAS, Circuit
Judges.
2
Opinion for the Court by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The federal government funds
certain expenses incurred by presidential candidates at specific
times during their primary campaigns. Jill Stein, who ran for
President in 2016, contends that a temporal limit on this
funding unconstitutionally discriminates against minor-party
candidates. Stein also contests an administrative ruling that she
forfeited the right to document certain costs of winding down
her campaign, which could have offset a repayment obligation
that she owed the government. We deny her petition.
I
A
The Presidential Primary Matching Payment Account Act
makes public funds available for the campaigns of presidential
primary candidates. 26 U.S.C. §§ 9031–42. Under the Act,
candidates may receive funds to match individual contributions
up to $250. Id. § 9034(a). A candidate may use these funds to
defray qualifying expenses incurred in connection with her
primary campaign. Id. §§ 9032(9), 9038(b). Except for
expenses associated with winding down a campaign, these
expenses must be incurred during specific times known as the
matching payment period. Id. §§ 9032(6), 9038(a); 11 C.F.R.
§ 9034.11(a).
The end of the matching payment period depends on
whether the candidate’s party selects its nominee at a national
convention. If it does, the period ends when a nominee is
selected. 26 U.S.C. § 9032(6). If it does not, the period ends
on the earlier of that date or the last day of the last national
convention held by a major party. Id. If a candidate seeks the
nomination of both a party that selects its nominee at a national
convention and one that does not, the matching payment period
ends on the later of the two statutory possibilities. FEC
3
Advisory Op. No. 2000-18 at 3–4 (Aug. 11, 2000). For such
candidates, the matching payment period thus ends no later
than the end of the national conventions.
The Federal Election Commission must audit every
campaign that receives public funds under the Act. 26 U.S.C.
§ 9038(a). If the audit reveals that the candidate received
excess funds or used funds for an unauthorized purpose, the
candidate must repay those amounts. Id. § 9038(b).
Regulations outline the audit process. After considering
materials from its staff and the candidate, the FEC issues an
audit report that includes any repayment determination. 11
C.F.R. § 9038.1(d)(1). The candidate may seek administrative
review of the determination within 60 days. To do so, she must
“submit in writing … legal and factual materials demonstrating
that no repayment, or a lesser repayment, is required.” Id.§ 9038.2(c)(2)(i). The “failure to timely raise an issue” in these
written materials “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.” Id.
B
At its national convention on August 6, 2016, the Green
Party nominated Jill Stein for President. But this nomination
did not qualify Stein for a spot on many states’ general-election
ballots. In those states, Stein sought to access the ballot
through petition initiatives and by seeking the nomination of
individual state parties. Stein pursued these efforts until
September 9, 2016, the latest state deadline for her to so
qualify. In connection with her primary campaigns and ballot-
access efforts, Stein accepted over $590,000 in public funds.
The FEC issued its audit report in April 2019. It
determined that Stein owed the government $175,272. This
calculation assumed that Stein’s matching payment period
ended on August 6, 2016, when Stein secured the Green Party
4
nomination, which was after the two major-party conventions.
The calculation also reflected one offset for winding down
costs incurred through August 2018 and a second, estimated
offset for later winding down costs. The report stated that the
estimate “will be compared to actual winding down costs and
will be adjusted accordingly.” App. 14.
In June 2019, Stein sought administrative review of the
repayment determination. As relevant here, she argued that the
Fifth Amendment required extending her matching payment
period from August 6 to September 9, the last possible date for
her to qualify to appear on a state general-election ballot. And
she asserted that she would have no repayment obligation if the
period were so extended. In a single sentence, Stein also stated
that “other findings concerning the nature of winding down
expenses … cannot survive scrutiny.” App. 26.
After a substantial delay caused by the lack of a quorum,
the Commission granted review and set a hearing date in
February 2021. A week before the hearing, Stein submitted
evidence of winding down costs not previously considered.
After the hearing, Stein submitted more such evidence.
In September 2021, the FEC issued its final repayment
determination, which again fixed her obligation at $175,272.
The agency rejected Stein’s arguments for extending the
matching payment period. It further held that Stein had
forfeited any argument for recognizing additional winding
down costs to offset the repayment amount.
Stein sought review in this Court. We have jurisdiction
under 26 U.S.C. § 9041.
II
Stein first contends that the Act defines the matching
payment period in a way that unconstitutionally discriminates
against minor-party candidates. As explained above, the period
5
ends no later than the end of the national conventions. For
major-party candidates, Stein reasons, this cutoff ensures
funding until the nominee has secured access to every state’s
general-election ballot. But no such guarantee protects minor-
party candidates who, even if they secure a nomination at a
national convention, still must seek ballot access through state-
party primary campaigns or petition drives. If those activities
extend beyond the national conventions, as happened in 2016,
the cutoff prevents minor-party candidates—and only minor-
party candidates—from receiving funding for campaign
activities necessary to secure access to all states’ general-
election ballots.
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court
considered various equal-protection challenges to the limits on
public funding for general and primary campaigns in
presidential elections. Under the scheme for general-election
campaigns, major-party candidates receive more money than
candidates of minor or new parties. See id. at 88. The funding
distinctions depend on the percentage of the popular vote
received by each party in the last election cycle: major parties
are those that received at least 25% of the popular vote; minor
parties are those that received between 5% and 25%; and new
parties are those that received less than 5%. Id. at 87.
Candidates of new parties receive no public funds unless the
candidate wins at least 5% of the popular vote in the election at
issue. See id. at 89. The challengers objected that this
differential treatment unconstitutionally discriminates against
minor and new parties, but the Court disagreed. See id. at 97.
The Court held that restrictions on public funding are
constitutional if they further an important government interest
and do not “unfairly or unnecessarily burden[] the political
opportunity of any party or candidate.” Buckley¸ 424 U.S. at95–96. The Court concluded that Congress’s “interest in not
funding hopeless candidacies with large sums of public
6
money” is important enough and “necessarily justifies the
withholding of public assistance from candidates without
significant public support.” Id. at 96. So too does “the
important public interest against providing artificial incentives
to splintered parties and unrestrained factionalism.” Id.(cleaned up). The Court further stressed that the funding
scheme does not reduce the strength of nonmajor parties
“below that attained without any public financing,” for any
party remains “free to raise money from private sources.” Id.
at 99. And as for relative burdens, a candidate accepting public
funds must agree to expenditure limits that are constraining for
major-party candidates but “largely academic” for others. Id.Finally, the Court noted that the challenged funding restrictions
were less constraining than previously upheld state laws
“limiting places on the ballot to those candidates who
demonstrate substantial popular support.” Id. at 96.
The funding limits at issue here easily survive review
under these standards. Primary elections, no less than general
elections, implicate the important government interests in
limiting public funding for candidates with slim support. And
the Green Party received only 0.4% of the popular vote in the
2012 presidential election—far less than the 5% cutoff that
justified denying any public funds to support Stein’s general-
election campaign in 2016. See Buckley, 424 U.S. at 87–88; 26
U.S.C. § 9004. If Congress could permissibly deny all public
funding for that campaign based on the lack of widespread
support for the Green Party, then Congress could also take the
less restrictive step of offering Stein funding as a primary
candidate that was less generous than the funding provided to
primary candidates of major parties.
Moreover, the Act did not even weaken Green Party
candidates, in absolute terms or relative to major-party
candidates. Nothing prevented Stein from declining public
funds or raising money from private sources after her matching
7
payment period ended. Moreover, Stein faced the same basic
choice as do general-election candidates: (1) raise and spend
all the private funds you can, or (2) accept matching funds and
agree to expenditure limits. 26 U.S.C. § 9035. Buckley
explained that for the general election, the applicable
expenditure limits do not affect minor-party candidates but
severely constrain major-party candidates, thus benefitting
minor-party candidates on average. Stein offers no reason to
suspect that the expenditure limits for primary campaigns
operate any differently. To the contrary, in recent primary
election cycles, leading candidates of the major parties have
declined matching funds and the ensuing expenditure limits.1
Relative to those candidates, the funding scheme clearly
strengthens the position of minor and new party candidates.
Because the public funding limits at issue are
indistinguishable from those upheld in Buckley, we reject
Stein’s equal-protection challenge.
III
Stein next argues that the FEC arbitrarily refused to
consider her winding down costs during the administrative-
review process. Applying its regulations, the Commission
found that Stein had forfeited this issue by failing to develop it
adequately in her written request for administrative rehearing.
That determination was not arbitrary.
1
See 2016 Presidential Matching Fund Submissions,
https://www.fec.gov/campaign-finance-data/presidential-matching-
fund-submissions/2016-presidential-matching-fund-submissions/
(last visited June 19, 2023); 2012 Presidential Matching Fund
Submissions, https://www.fec.gov/campaign-finance-data/preside
ntial-matching-fund-submissions/2012-presidential-matching-fund-
submissions/ (last visited June 19, 2023). During the 2020 primary
season, the FEC lacked a quorum and therefore was unable to
approve any funding for presidential candidates.
8
To contest a repayment determination on rehearing, a
candidate must “submit in writing” any “legal and factual
materials demonstrating that no repayment, or a lesser
repayment, is required.” 11 C.F.R. § 9038.2(c)(2)(i). And the
“failure to timely raise an issue” in these “written materials” is
“deemed a waiver of the candidate’s right to present the issue
at any future stage of proceedings.” Id. In Robertson v. FEC,
45 F.3d 486 (D.C. Cir. 1995), we held that the Commission
may insist on strict compliance with this issue-preservation
requirement. See id. at 491.
The FEC reasonably concluded that Stein’s written request
for administrative review did not adequately raise the issue of
additional winding down costs. The request mentioned
winding down costs only in a single sentence: “[I]t will be
shown that the other findings concerning the nature of winding
down expenses … cannot survive scrutiny.” App. 26. And
Stein submitted no supporting evidence. Under this Court’s
forfeiture standards, Stein’s enigmatic remark would not be
enough to preserve her argument that the audit’s estimate of
winding down costs was too low. See, e.g., United States v.
McGill, 815 F.3d 846, 909 (D.C. Cir. 2016) (“woefully
undeveloped arguments are forfeited”); City of Waukesha v.
EPA, 320 F.3d 228, 250 n.22 (D.C. Cir. 2003) (argument raised
“only summarily, without explanation or reasoning” is
forfeited). And if we ourselves would hold that Stein’s written
submission was not enough to preserve this argument, we
cannot fault the FEC for reaching the same conclusion.
In response, Stein claims to have addressed winding down
costs earlier in the administrative process, in negotiating with
the FEC’s audit staff and in contesting its draft audit report
before the Commission. But as shown above, FEC regulations
required her to reassert the issue in her written submission for
administrative review.
9
Stein next argues that the Commission should be estopped
from claiming forfeiture because its audit report stated that the
winding down costs “estimated” for the period between
September 2018 and July 2019 “will be compared to actual
winding down costs and will be adjusted accordingly.” App.
14. We do not read this statement to relieve Stein of her duty
to address winding down costs in her request for administrative
review, which was filed near the end of that period.
Finally, Stein contends that she could not have forfeited
any argument related to winding down costs incurred after she
requested administrative review in June 2019. We recognize
that Stein could not predict the exact amount of future winding
down costs. But she could have done much more to alert the
FEC that she expected those costs to exceed the estimates in
the audit report—and to do so by a substantial amount. For
example, Stein claims that between September 2018 and July
2019 she blew past the Commission’s estimated winding down
costs by over $150,000. In June 2019, she could have
documented most of those costs and could have given at least
a rough estimate of any further winding down costs expected
in the future, which was then more than 2.5 years after the
general election. Finally, even if winding down costs were
continuing to accrue after June 2019, Stein could have filed a
petition for rehearing from the Commission’s final repayment
determination in September 2021. See 11 C.F.R. § 9038.5(a).
And in that petition, she could have explained why those later-
arising costs “were not and could not have been presented
during the original determination.” Id. § 9038.5(a)(1)(iii).2
2
Stein has moved this Court to supplement the administrative
record with the written materials that she tried to submit to the FEC
after its hearing on administrative review. Because we uphold the
agency’s forfeiture determination, we deny Stein’s motion to
supplement as moot.
10
IV
The matching payment period definition was
constitutional as applied to Stein, and the FEC’s forfeiture
holding was not arbitrary. We therefore deny the petition for
review.
So ordered.