Committee to Elect Lyndon La Rouche v. Federal Election Commission

• Decision Date: 19 February 1980
• Docket Number: No. 77-1184,77-1184
• Citation: 613 F.2d 834
• Parties: COMMITTEE TO ELECT LYNDON LA ROUCHE, Lyndon La Rouche and Leroy B. Jones, Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 834

613 F.2d 834

198 U.S.App.D.C. 101

COMMITTEE TO ELECT LYNDON LA ROUCHE, Lyndon La Rouche and Leroy B. Jones, Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent.

No. 77-1184.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 27, 1978.

Decided Aug. 23, 1979.

Certiorari Denied Feb. 19, 1980.

See 100 S.Ct. 1019.

Robert Case Liotta, Washington, D. C., with whom Joel D. Joseph, Washington, D. C., was on the brief, for appellants.

Charles N. Steele, Associate Gen. Counsel, and Barbara Van Gelder, Atty., Federal Election Commission, Washington, D. C., with whom William C. Oldaker, Gen. Counsel, Lester N. Scall, Asst. Gen. Counsel, Federal Election Commission, Washington, D. C., were on the brief, for appellee.

Before McGOWAN and TAMM, Circuit Judges, and JUNE L. GREEN, ^* District Judge.

Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This is a petition for review of a decision of the Federal Election Commission (Commission) withholding from Lyndon La Rouche, a 1976 candidate for the Presidential nomination of the United States Labor Party (USLP), certification to receive primary matching funds under the Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 (1976). ¹ The Commission refused to certify La Rouche on the ground that he had not established his eligibility under the fundraising threshold of the Act. Petitioners, La Rouche and the Committee to Elect Lyndon La Rouche (CTEL), ² now raise both statutory and constitutional objections to the legal standards and certification procedures invoked by the Commission in making that determination. For reasons stated below, we affirm the decision under review.

I

The Presidential Primary Matching Payment Account Act (Act), enacted in 1974, provides for limited public funding of Presidential primary elections by authorizing federal matching payments for certain small contributions to eligible candidates. The eligibility requirements are twofold. ³ First, a candidate must agree, in writing, (1) to provide to the Commission any evidence it requests regarding qualified campaign expenses, (2) to maintain and furnish to the Commission any records or other information it requests, and (3) to submit to an audit by the Commission under section 9038 of the Act and to repay any amounts required under that section. Id. § 9033(a). Second, a candidate must "certify" to the Commission that

(1) the candidate and his authorized committees will not incur qualified campaign expenses in excess of the limitations on such expenses under section 9035,

(2) the candidate is seeking nomination by a political party for election to the office of President of the United States,

(3) The candidate has received matching contributions which in the aggregate, exceed $5,000 in contributions from residents of each of at least 20 States, and

(4) The aggregate of contributions certified with respect to any person under paragraph (3) does not exceed $250.

Id. § 9033(b) (emphasis added). The Act defines the term "contribution," for purposes of the fundraising threshold of section 9033(b) (3)-(4), as "a gift of money made by a written instrument which identifies the person making the contribution by full name and mailing address." ⁴ Id. § 9034(a).

The Commission, no later than ten days after a candidate "establishes his eligibility" under the aforementioned criteria, is required to certify to the Secretary of the Treasury for payment to the candidate the full amount to which he is entitled. Id. § 9036(a). That amount is equal to the first $250 or less in total contributions received from each contributor on or after the beginning of the calendar year immediately preceding the calendar year of the Presidential election for which the candidate is seeking nomination. Id. § 9034(a). No candidate, however, may receive matching funds in excess of one half of the total expenditure ceiling to which he has assented as a condition for establishing his eligibility. Id. §§ 9033 (b)(1), 9035(a). The Secretary, upon receipt of the Commission's certification for payment but not before the beginning of the calendar year in which the general election for the office of President will be held, is required to transfer promptly the certified amount from an account, known as the Presidential Primary Matching Payment Account, ⁵ to the candidate. Id. § 9037(b).

After a party selects its Presidential nominee, the Commission is required to conduct a thorough examination and audit of the qualified campaign expenses of any candidate who received matching funds in pursuit of the nomination. Id. § 9038(a). Matching funds that the Commission determines either (1) were received in excess of the amount to which a candidate was entitled or (2) were used for other than authorized purposes, must be repaid to the Secretary. Id. § 9038(b). Stiff criminal penalties also are provided for excess campaign expenses, the unlawful use of payments, false statements, and kickbacks and illegal payments. Id. § 9042.

II

The events culminating in this petition for review began on October 14, 1976, when La Rouche wrote the Commission requesting primary matching funds for his campaign for the USLP Presidential nomination. In his letter, La Rouche proffered the requisite agreements to establish his eligibility under section 9033 (a) and "certified" that he also met the eligibility requirements of section 9033(b). This "certification" took the form of a one-page notarized statement that he met the eligibility criteria outlined in section 9033(b). ⁶

The Commission staff raised two sets of questions concerning La Rouche's eligibility for matching funds. First, on October 21, 1976, the General Counsel of the Commission (General Counsel) requested La Rouche to submit additional information regarding, Inter alia, the nominating procedures of the USLP and the states in which La Rouche was listed on the ballot as that party's Presidential candidate. This information, the General Counsel explained, was needed to ensure that La Rouche had in fact taken part in a "primary election" within the meaning of the Act, and, if so, to determine the appropriate cut-off date for counting contributions towards establishing his eligibility.

Second, the Commission staff requested further financial information to ensure that La Rouche had met the eligibility requirement of raising at least $5,000 in contributions of $250 or less in each of at least 20 states. On October 14, 1976, when La Rouche applied for matching funds, CTEL had not as yet filed its disclosure report, due October 10, for financial activity in the third quarter of the year. Prior reports, which, contrary to the requirements of 2 U.S.C. § 434(b)(2), had failed to name and provide other identifying information about contributors of more than $100, revealed that CTEL had raised far less in the period after January 1, 1975, than the minimum threshold amount of $100,000. P.A. 15. Moreover, the third-quarter report, received on October 26, indicated that, between January 1, 1976, and September 30, 1976, CTEL had raised only $71,463.27 in total receipts. S.A. 9. The Commission staff, by telephone, asked counsel for La Rouche about the apparent shortfall and the lack of names and other identifying information for contributors of more than $100.

La Rouche's counsel submitted information in response to both sets of questions raised by the Commission staff. In connection with the USLP nominating procedures, he filed, on October 22, 1976, information revealing that La Rouche had been nominated as the Presidential candidate of the USLP at its national nominating convention on October 16, 1976. The information further indicated that the USLP national convention, at which La Rouche received the unanimous vote of the delegates from 30 states and the District of Columbia, was the culmination of a lengthy campaign during which La Rouche had sought and obtained the endorsement of the USLP Caucus in each of the 31 jurisdictions. With regard to the fundraising threshold, La Rouche's counsel, at a meeting with Commission staff members on October 27, 1976, submitted a computer printout that, in addition to providing the requisite information about contributors of over $100, indicated that, between October 1, 1975, and October 16, 1976, CTEL had received over $5,000 in contributions in each of at least 20 states. P.A. 15; S.A. 4.

During the course of the October 27 meeting, the Commission staff indicated that the Commission was likely to consider these matters at its meeting scheduled for November 4, 1976, and, assuming that it decided to go forward with a field audit of the threshold submission, that audit would begin during the week following its meeting. P.A. 13-14. Rather than awaiting the Commission's decision, however, CTEL, on October 28, 1976, filed suit in the District Court for the District of Columbia alleging that the Commission could not lawfully withhold matching funds pending verification of the fact that La Rouche had met the fundraising minimum. Committee to Elect Lyndon La Rouche v. Federal Election Commission, C.A.No. 76-2010 (D.D.C.1976). The District Court, on October 29, denied injunctive relief, and this court, on November 1, refused to grant a stay pending appeal. In December, the case was dismissed with the approval of the District Court.

Meanwhile, on November 2, 1976, the Commission staff, after reviewing La Rouche's application and supplemental submissions, reported its recommendations to the Commission. With regard to the USLP nominating procedures, the staff expressed the view that "assuming the caucus process . . . is verifiable, Mr. La Rouche, through October 16, was a candidate for nomination of a political party, and therefore meets the requirements of (section) 9033(b)(2)." P.A. 15. With regard to the fundraising threshold, the staff noted that no other application for matching funds during the ...