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FEC Record: Litigation

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Johnson v. FEC

Gary E. Johnson and James P. Gray, Presidential and Vice Presidential nominees of the Libertarian Party, respectively, applied to the FEC for pre-election public funding for the 2012 general election as “minor party” candidates. They asserted that, as nominees of a minor party under 26 U.S.C. §9004(a)(2)(A), they were entitled to public funding. On September 18, 2012, the Commission rejected the application because the Libertarian Party had received less than five percent of the popular vote in the 2008 Presidential election and therefore did not meet the definition of “minor party” in 26 U.S.C. §9002(7). The Commission also noted that Johnson and Gray had not been candidates in 2008 and therefore did not qualify for public funding under a different provision of the law.

On September 26, 2012, Johnson, Gray, and the Gary Johnson 2012, Inc. campaign committee (the “Plaintiffs”) filed a complaint in the U.S. District Court for the Central District of California arguing that they were entitled to pre-general election funding. The district court dismissed the case for lack of jurisdiction, holding that challenges to Commission determinations regarding such public funds may be brought only in the U.S. Court of Appeals for the District of Columbia Circuit under 26 U.S.C. §9011(a).

On October 17, 2012, the Plaintiffs filed a Petition for Review and an Emergency Motion for Mandatory Injunction in the U.S. Court of Appeals for the District of Columbia Circuit asking it to direct the FEC to make an immediate disbursement of the pre-general election public funds. They argued that the FEC wrongfully denied the pre-election funding because of a misapplication of the definition of “minor party.” They argued that, although the term “minor party” is used in 26 U.S.C. §9004(a)(2)(A), it was an inadvertent use of the term by Congress, and was not meant to be subject to the technical definition of “minor party” in 26 U.S.C. §9002(7). Instead, they argued, the term should be interpreted according to the plain meaning of the words.

The appellate court issued a per curiam Order on October 19, 2012, denying the Plaintiffs’ emergency motion, finding that they did not meet the “stringent requirements for the injunctive relief sought… or [demonstrate] a ‘clear and indisputable’ right to mandamus relief.” On October 31, 2012, the Plaintiffs voluntarily dismissed the matter without prejudice, before the court could issue a decision on the Plaintiffs’ Petition for Review.

U.S. Court of Appeals for the District of Columbia Circuit No. 12-1418

(Posted 11/2/12; By: Zainab Smith)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Alex Knott, Senior Writer/Editor; Myles Martin, Editor