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Robertson v. FEC


On February 3, 1995, the U.S. Court of Appeals for the District of Columbia partially denied the petitioner's request for review of the FEC's final repayment determination; the court did grant the petition with respect to one of four disputed expenditures. The court also rejected petitioner's constitutional and statutory challenges.

Petitioner Marion (Pat) Robertson was an unsuccessful candidate for the 1988 Republican Presidential nomination. Petitioner's campaign received more than $10 million from the FEC-administered Presidential public funding program.

The FEC audits all campaigns which receive public funding and may seek a pro rata repayment for any expenditures that are in excess of statutory limits, that are not qualified campaign expenses, or that lack sufficient documentation to verify their campaign-related purpose.

After an audit and a public hearing, the FEC determined that petitioner was obligated to repay $290,793 in public funds. At issue were:

  • Expenditures made in excess of the limit for the Iowa primary;
  • Expenditures made in excess of the limit for the New Hampshire primary;
  • Funds claimed to have been transferred between the campaign's national and state accounts; and
  • Expenditures made in connection with the candidate's attendance at the 1988 Republican National Convention.

The FEC's repayment determination

The court examined the four expenditures in question and arrived at the following decisions with respect to each.

Iowa limit

Petitioner argued that $14,000 of a $20,000 deposit for telephone service in Iowa should not be counted against his Iowa expenditure limit because it was later refunded to the committee. The court found, however, that the FEC had reasonably concluded that the evidence provided by Robertson's campaign committee did not establish that the refund was attributable to this Iowa deposit.

Transfer of funds

Petitioner claimed that $17,000 purportedly transferred from the campaign's national account to its state accounts was incorrectly characterized as nonqualified expenditures. Petitioner did not present any supporting documentation to verify that this money actually had been deposited in the campaign's state accounts or had been spent on qualified campaign expenses. The court found the FEC's demand for such documentation to be reasonable.

Attendance at the 1988 Republican National Convention

Petitioner argued that $74,000 in costs associated with his attendance at the convention, after he had withdrawn from the campaign, constituted valid winding down costs for which he could receive public funding. In support of this position, he argued that video and audio recordings of his speech at the convention were offered as an inducement in a fundraising mailing to retire his campaign debt. The FEC rejected this line of reasoning and the court concurred.

New Hampshire limit

Petitioner claimed that a $120,000 fundraising mailing was incorrectly allocated to the state's limit. FEC regulations provide that fundraising expenses need not be allocated to a state's expenditure limit unless incurred within 28 days of the state's primary. Petitioner presented dated checks showing that the postage had been purchased more than 28 days before the primary, and an affidavit from a campaign official asserting that the mailing had preceded the 28-day period. The Commission concluded that it could not be determined that the mailing had actually been sent before the 28-day period and therefore attributed its cost to the New Hampshire limit. The court reversed the Commission's finding on this issue because the Commission did not address what the court deemed to be unopposed evidence presented by plaintiff.

The constitutional challenge: Ex Officios

Petitioner's challenge was based on the court's decision in FEC v. NRA Political Victory Fund. In that case, the court held that the Commission's composition violated the principle of separation of powers because it included two nonvoting, ex officio members appointed by Congress. Petitioner argued that despite the Commission's subsequent removal of those members from its body and its ratification of all actions it had undertaken in petitioner's case up to that point, the FEC's proceedings in this case remained unconstitutional.

The court concluded that petitioner was estopped from challenging the constitutionality of the Commission's composition because he had already accepted $10 million in public funds authorized by the very Commission he now argued was unconstitutional.

"[A] party wishing to make such a challenge must do so before it accepts and spends federal funds-not after, as a ploy to avoid its part of a bargain," the court stated in its opinion.

Statutory Challenge: Statute of Limitation

Petitioner based this challenge on a provision of the statute that required the Commission to issue petitioner a notice of a repayment determination within 3 years of the 1988 Republican nomination. Within that time frame, petitioner received a preliminary repayment calculation (contained in the FEC's interim audit report), which an FEC regulation says is sufficient to satisfy the 3-year requirement.

The court declined to resolve petitioner's challenge to the adequacy of the notification he received within 3 years. The FEC had concluded that petitioner had waived his right to address this issue because he had not raised it until his public hearing. Under the Commissions rules, such an issue must be raised in a candidate's written comments submitted to the Commission before the public hearing.

The court found that the FEC was within its rights in enforcing its own procedures in this manner. The court "cannot conclude that . . . the Commission's interpretation [of its regulations] is unreasonable."

Source:   FEC RecordApril 1995. Robertson v. FEC, No. 93-1698 (D.C. Cir. Feb. 3, 1995).