This file contains archived live captions of the administrative review hearing of the Federal Election Commission held on February 25, 2021. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.


Thank you, good morning. The  meeting will now come to order.  We want to remind everyone, this open meeting will begin 15  minutes after the conclusion of  this hearing. Jill Stein  for president is the principal candidate community of former candidate  Jack Dr. Jill Scott.  The committee must repave public matching  funds in the amount of hundred $75,292 to the state treasury. We review requests for this oral  hearing granted by the commission  on January 22nd, 2021. Today we  have counsel for committee along  with former  presidential candidate Dr. Jill  Stein . Welcome to all  of you.  

Representing the commission,  we have our office of General Counsel the commission's consideration  to retain the issue in this matter  has a little background.  The Green party nominated Dr. Stein on August  the sixth 2016 during its national  nominating convention. Shortly after  the convention they consented that Dr. Stein's Alec  eligibility DLI for short is a term mentioned  the first time since the commission's  regulations and subversives and  the date for the matching..  

Each time  the commission determined that the DOI was  August 26. The question  if it should be later than August 6 is significant. On April 16th 2013 the commission  completed its audit of the committees Actaeon of the  2016 2018 election cycle and issued  its final report. They concluded that the committee  had to pay  hundred $75,292 to the state treasury because of surplus funds  and had received access public funds  after that date. Once the commission issues  a final audit report of publicly  financed candidates such as Dr.  Stein may seek administrative review  of the repayment determination and  the committee has exercised that  option on her behalf. The soul purpose  of today's hearing is to give the  committee an opportunity to address  the commission, and to demonstrate  that note repayment or a lesser  repayment is required. In past oral  hearings regarding the perm payment determinations we have  given them up to 30 minutes for  presentation. I suspect counsel  may not need that much time this  morning but we do want to make time  that they are treated the same as others  to challenge repayment determinations.  Counsel, your presentation should  be linked to those matters raised  in written response for the repayment  determination that you filed on  June 17 2019. The administrative  review process set forth at 11 CFR  section 90832C2 allows for challenges  for reaper determinations accordingly. This hearing is not a proper forum  to address other challenges. 
     

At the conclusion of the committee's  presentation each questionnaire  will have the opportunity to ask questions. I asked the  General Counsel and auditors of  family questions. At the end of  today's hearing you have the opportunity  to make laws and statements. After this hearing, the committee  will have five days to submit the  materials for consideration. Pursuant  to 11 CFR section 90308 C2C three  they will make a determination and  they shows state in their brief  that determination. Counsel if you would like, it's time for  you to proceed with your presentation.  Thank you.  

Thank you, Madam chair. Can everybody  hear me question my  

 Good. I'm Harry Crisci good morning, and  the attorney for the Jill Stein  for president  committee 2016.  

The repayment that we are considering  today is based on a date of eligibility I DOI, which  is put forward by law logic and  president. It undermines the effort  to achieve a fair balance between  candidates of major parties and  independent, and minor party presidential  candidates. It ignores the fact  that unlike major party presidents,  whose nomination guarantees them a ballot on all 50  states candidates like Dr. Stein  have to go through an extended effort for  petition to be placed on the ballot  weeks after receiving a minor party  nomination.  

I system does not take into the account, is unjustifiable as a  matter of law and public policy.  The candidate seeking a party nomination  can receive matching funds, without  his or her efforts when their  party's nomination. If the letter  DOI of a minor party has a date of their nominating  convention, she's deprived of matching  funds at the very point where the  arduous and expensive effort to  achieve ballot static intensifies. 
     

In light of the realities of  independent and MARTA party presidential campaigns, the only fair free work,  is one that shows that the funds extend the  ballot access are mountable regardless  of convention dates of the various  parties major and minor.  

 Excuse me.  >> The final audit report states  on page 11, that the candidates  DOI was August the sixth 2016,  that was the date of the Green party  but convention. However, this is inconsistent with a series of advisory decisions issued dated  back to 1975. And a all our 1975 gas 53 the commission stated  with respect to individuals seeking  a ballot position in the general  election for federal office, without  nomination via party 
     the primary election shall be deemed  to have an interim with the date  prescribed by applicable state law  is the last day to qualify for petition  on the general election ballot.  Or, the date of the last major party  convention, and sorry, major party  primary election whichever is later . A source of confusion may have  been [ Inaudible - static ]   dash 44 where the issue was how to  apply limits to campaign donations.  There the commission in an effort  to have uniform limits for various campaign stated, accordingly for  the purpose  of applying the limitations in 18  USC section 608, the commission  refuted permission document for presidential  candidates with the minor parties  as the equivalent of the primary  elections and convention process  of the major party candidates. Therefore, an individual may contribute  $1000 to presidential candidate  of a minor party for his or her  petition effort, and another thousand  dollars to the candidate for his  or her general election. Since that  day's pertaining  to petition qualification vary from  state to state, the commission considers  it necessary to provide a uniform  date when purposes of 18  USC 608B , the petition presents ends the  minor party presidential candidates. The commission concludes that a  prescribed date should be when the  presidential nominee last selected before the  general election is nominated by  a national nominating convention  of a major party.  

This seeming contradiction can  be reconciled by recognizing that a all our 1975 dash 44 applies  to the question of a uniformly applied contribution  which is not in the case , rather it is in the expenditure  of the 2016 Stein  campaign ceased to  be magical. AR 7573 governs in that  case. The question terms of particularities  of the 2016 sign campaign and those  of other candidates unlike the issue  of allowing expenditures from ballot  access to be matched. The issue  of when general election contributions  are allowed can be uniformly applied  to all candidates without inherently  prejudicing minor party and independent  candidates. There was a argument  to be made for uniformity in the  application of contribution limits  that in no way applies to the qualification  of funds used at ballot access to be matched  by the federal government. Dr. Stein's  2012 campaign was able to utilize  as its DOI the last day of petition  and states with Green party did  not have ballot access, that date,  that your happened to coincide with  the date of the last major  party nominating convention. That  was not the case in 2016. Banging  the DOI for a minor party candidate  to the date of a minor party convention incidents introduces an acceptable Mashable should be the case regardless when  the candidate in Kirsten or any  other candidate receives party nomination.  >> Indeed, the code incidents  of the two dates in 2012, created  a situation with Dr. Stein was penalized  for the understandable expect Tatian  that her efforts would be treated  similarly in 2016. Dr. Stein relied  on this expectation , indeed she received matching funds  for this ballast access activity in 2008. It's a form and  entrapment to now apply DOI on August  6 for the very same activity.  

Moreover, the 2016 Stein campaign  was not even aware of the new DOI  until after the campaign ended,  and after funds were expended for  ballot access and match. Minor party  candidates.  To the date of the more major party  convention makes planning and fundraising  very difficult. Indeed it would be impossible to  identify the date of the DOI for  the next presidential cycle in 2024  until other plants decide on the  date of their convention appeared  such a decision would likely be  made in that regard to the need  of the nonmajor party candidates  for that cycle even worse, it invites  a major parties to pick an early  date which prejudices the interests of the  independent and minor party candidates.  >> There is no basis to move the DOI  to August 6. That is the date of the  Green party convention, the first  indication of this approach was  a all our in 1984 dash 11. And I'm  reading from it . The matching payment act in  commission regulations require that  matching payments as well as all  disbursements for knowledgeable  candidates and campaign committees  be a 
     used only for qualified campaign  expenses. Qualified campaign expenses  may only be incurred with respect  to the period in which the candidate  is eligible for matching payments.  The date when the candidate becomes  ineligible coincides with the last  day, with the last of the matching  pair meant. For that candidate.  Current 
     expenditures may expend obligation  incurred in the matching. Would  satisfy this term required for campsite expense. In addition, this must  also be made with the campaign and  campaign nomination. In this situation,  the candidate at that time the expenditures  were apparently made to collect  petition signatures for the general  election ballot. The commission  is of the opinion that these expenses  to the extent they are paid or incurred  would be  in their matching. And it becomes  eligible for matching funds and  would be qualified as campaign expenses  for the purchasers of the matching  payment act. This does not indicate that this  is in fact the change from a all  1975 dash 53, nor is any reason  for such a change articulated. In  fact, the new standard is entirely circular. Qualified campaign  expenditures are those made in the period when  the campaign is eligible for matching  funds. This contradicts the principle  that efforts to get on the ballot  is part of the primary effort , regardless of when it occurs.  It compounds the very legal and  constitutional problems and this  principle was designed to prevent  and that is a very different terrain  in the independent reminder  party candidate must now take. Ballot  access efforts must continue after  the 
     convention well into September of  the election year. This concern  was directly asked steps expressed  in the order of 1975 dash 304.  

There the commission stated however,  in this case, as in the past the  commission is concerned to 
     construe the conditions of the act  in a manner consistent to constitutional  requirements regardless of the candidates  party affiliation and independent status. The primary  election and coverage status is  a procedure through which major  parties typically determine their  candidates for the general elections  proceeding to candidates of minor  parties are different and have a  seven perdition process where they  can qualify for general election  ballots of accordingly for applying the limitations of 18 six OE eight, they will require  residential candidates of the minor  party of the primary elections  convention process of major party candidates.  This was applied at the AO our 1995-45  which makes no mention of the matching  funds,. It states unequivocally  that it is in  been the opinion of the commission  that the nonmajor party candidates  in the process by which they satisfy the requirements of state  law governing qualification for  position on the general election ballot serve purposes  similar to a primary election of  the nominating process. This view  is supported by the commission on  regulations and find the term election  definition and state that the major candidates, they  prescribe, they prescribe by applicable state law for the last day qualified  for position on the general election  ballot may be designated as the  primary election for such a candidate.  The AOS sites 11 CFR 100.2 C4, based  on this reasoning the commission  concluded the advisory opinions  1984 -25 in 1984-11, that the ballot  access expenses for candidates of  minor party nominees will be qualified campaign expenses.  Let me read the citing regulation.  

This is 11 CFR  100.2 C4. The regulation and I'm quoting  here, "With respect for individuals  seeking federal office as independent  candidates who without nomination as a major party is defined in  26 USC 9002-6 the primary election  is considered to occur on one of  the following dates at the choice  of the candidate. They prescribe  by applicable state law as a last day to qualify  for position on the general election  ballot may be designated as a primary  election for such a candidate to  the date of the last major party  primary election on 
     convention in that state may be  designated as a primary election  for such a candidate and, three  in the case of nonmajor parties,  the date of the nomination by that  party may be designated as the primary  election for such a candidate" I reiterate, which of these are  complies is at the choice of the  candidate. Obviously the choice  of the Green party and Dr. stained  was the latest possible date which  adhered to the dates of the petitioning  process on general election ballots.  >> In the many states where the Green  party did not have ballot status,  the Stein had every right to rely on this construct  when extended funds for ballot access  and accepted matching funds pavement  for them.  

Let me just state briefly about  the procedural background here.  There was no complaint that this  matter was generated by audit. The  final audit report issued on eight  full 17 2019, allege that as of  the DOI the company and he had a  surplus of $2856 and that  outstanding campaign obligations . This required to make  payments pursuant to a regulatory  foamer Co. read 
     $4272 is due. In addition the matching  funds payment of 134,900, received  on January  12 2017 was required to be repaid . Thus, the order  called for total repayment of 170 $5272. 
     

The campaign disputed these map  numbers in particular. We met express recesses for Dallas 
     expenses the DOI should have been  concluded in the amount of $255,671. This amount would have been enough  to eliminate the surplus, and therefore  eliminate the repayment. Significance of  the date of the DOI is obvious.  On March 17, 2019, the commission  voted to approve the audit report  including the hundred and 75,000  repayment. The payments position,  is extended is extended as it should be to  the last day of petitioning, the Green party did not have access  and then the repayment goes away.  In addition, the campaign's recently  provided documentation demonstrating  additional wind down costs, which  we contend our [ Indiscernible ]  . To recap the repayment  determination should include campaign  expenditures for ballot access after  the commission's DOI of August 6,  2016. These expenditures amounted  to another $255,671 in ballot access  costs. They exceed the surplus of  200,856 dollars claimed in the audit  report.  

The surplus in OC oh in the audit report should've been  collected to a deficit of $65,430.  The additional wind down costs further  increase the NoCo deficit, and in  the aspects of a surplus , we have a repayment of $40,472  claimed in the audit report is eliminated.  The corrected deficit also eliminates 
     the repayment of $134,900 in matching  funds that was called for  in the audit. These expenditures  were petitioning drives in states where  the green party did not have ballot  access. As such, they are matching  noble under a correct 
     did DOI. Indeed should they not  be, as much is the entire contract  for minor parties is based on the  proposition that expenditures to  get on the ballot are equivalent  of primary expenditures. To rule  otherwise, the constitute 
     a form of entrapment. First the  matching funds are already paid,  second, in 2012 they were treated  as unmatchable expenditures. The  expenditures were made in a reasonable,  good-faith belief that as they were  necessary to achieve ballot status,  they were valid unmatchable. Thank  you.  

Thank  you counsel. Do any  commissioners have any questions? [ Silence  ]   >> Does the office of General Counsel,  or the audit division have any questions?  

Madam chair ?  

Yes, thank you, I just have one  question. Mr. Crisci  alluded to the fact that the committee  provided the commission the documents pertaining to  winding down expenses in advance  of the hearing. So, I would just  like to ask how the documents relate  to issues that were raised in the  committees recent can submission  requesting administrative review of determination.  

In my letter of June 17 2019  requesting the hearing, the last  paragraph 
     -- [ Silence ]  states , it will be demonstrated in the  further submission coming directly  from the committee if not for the  improper position on August 6 DOI  no repayment would be required.  And in addition to that, 
     

This is Jill asking for recognition.  >> Yes, Dr. Stein. Yes, I would just  point out, in the letter that attorney  Crisci is referencing which was  the formal request for this administrative hearing, he states in the one, two, three, fourth  paragraph that the committee will  hear and demonstrate that  reimbursement of ballot access and  related expenses, as  well as the nature  of winding down the expenses would  specifically be addressed , and would  change the repayment order as well  as the calculation of net  outstanding campaign obligation and as well as  the ballot access would be recognized.  So that is specifically stated in  that fourth paragraph.  

Thank you Dr. Stein, thank you.  

Of any other questions? Dr. Stein, Mr. Crisci would you  care to make closing statements?  >> Briefly. I don't have very much  to add, but I think what is important  is that matching funds program was designed  to and is required to be conducted  in a way that treats minor parties and independent  candidates as favorably as the major parties are treated.  And in fact, you could make the  case, and I think the case is a  sound one that matching payments  themselves, which many major party candidates don't even accept  are specifically designed to give  a leg up to minor party and independent  candidates who don't have the financial  clout of the major  party candidates particularly in  the presidential situation. So to  arbitrarily apply a DOI which denies  matching funds for  ballot access and winding down costs, in particular  ballot access which is not even  a factor major party candidates,  because the major parties have 
     access in every state, really undermines  the purpose of the matching funds  program in my opinion. In particular, the commission's  concern for obligation to see to  it that all candidates , major and minor,  and independent are treated equally  and not prejudiced by the matching  funds program in the commission's  activities. Thank you.  

And may I  have recognition?  

Yes, Dr. Stein.  

Thank you. Yes, and I wanted  thank attorney Crisci  for that very substantive review  of the critical advisory opinions , and  the critical regulation and statutes . And,  there are a lot of details here , and as a layperson, not a lawyer,  but anybody watching this as a public  hearing, or viewing it afterwards  as a public hearing, let me just  say that I think the Greek issues  here as Crisci just summarized,  or whether the independence and  minor parties have equal  access to the ballot as determined  by our access to public funding.  And the public funding program has  to meet that need for those  candidates and political groups  that don't have access to deep pockets and, the various forms  of finances that really dominate  as this commission know so well  that have come to dominate our electoral  process.  

And, you have probably  seen recent polls and one that  Gallup has done just last week that  shows the public hunger 
     a variety of political opinions  now, is at an all-time high. And it really, I think, it  is the mission or, one of the missions  of this commission, you know, is  to ensure that there is a public  form in our elections. And there are a variety of viewpoints represented  and we are hungering for that now.  And I think it's a tribute to the  commission that it's very foundational advisory opinion stress this point  and made it possible for small parties  and independence to have access  to the ballot through broad definition  of this question  of eligibility. And the process was defined early  on in such a way that small parties,  and small players, and independence could have access to the public  funding to  achieve ballot status. And with  that, opportunity  having been provided  to us in 2012, we absolutely expected  that it would be consistent in 2016 . We were really quite shocked to  learn after the fact that that was  not going to be the case. I would just urge you to look carefully  at attorney  Crisci's submission which details,  I think beautifully, how it is that the legal structures  were established in order to meet  our highest small D  Democratic aspirations that our elections  should be truly competitive, open, publicly funded to the extent possible,  and that there should be a real  opportunity for the American people  to have a inclusive conversation  and a diverse set of choices as  a part of that process. Thank you for your consideration.  

Thank you. This hearing is adjourned.