Robertson v. Federal Election Com'n, No. 93-1698

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: SILBERMAN
• Citation: 45 F.3d 486
• Parties: Marion G. ROBERTSON and Americans for Robertson, Inc., Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent.
• Decision Date: 03 February 1995
• Docket Number: No. 93-1698

Page 486

45 F.3d 486 310 U.S.App.D.C. 185 Marion G. ROBERTSON and Americans for Robertson, Inc., Petitioners,
v.
FEDERAL ELECTION COMMISSION, Respondent. No. 93-1698. United States Court of Appeals,
District of Columbia Circuit. Argued Dec. 6, 1994.
Decided Feb. 3, 1995.

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On Petition for Review from the Federal Election Commission.

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Carol A. Laham, Washington, DC, argued the cause, for petitioners. With her on the briefs were Jan Witold Baran and Thomas W. Kirby, Washington, DC.

Richard B. Bader, Associate Gen. Counsel, Washington, DC, argued the cause, for respondent. With him on the brief were Lawrence M. Noble, Gen. Counsel, and Vivien Clair, Atty., Federal Election Com'n., Washington, DC.

Before: SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Marion G. (Pat) Robertson and Americans for Robertson, Inc. (collectively referred to as "petitioner"), seek review of a determination of the Federal Election Commission that petitioner must repay certain campaign matching funds. We reject petitioner's constitutional and statutory challenges, but grant the petition with respect to one of four disputed expense items.

I.

Petitioner made an unsuccessful bid for the Republican Party's nomination for election as President in 1988. During the course of the primary campaign, Robertson was eligible for and received campaign matching funds under the Presidential Primary Matching Payment Account Act, 26 U.S.C. Secs. 9031-9042 (1988). Robertson remained eligible to receive such funds from the beginning of the primary season until April 28, 1988. ¹ He received funds thereafter only in conjunction with "winding down" expenses "associated with the termination of political activity" (e.g., administrative costs, expenses in fundraising to assist in retiring campaign debt). 11 C.F.R. Sec. 9034.4(a)(3)(i) (1994). He was given a total of $10,410,984.83 in public funds. A candidate who receives matching funds under the statute is obliged to maintain and provide documentation to the Commission verifying that all expenses are "qualified" campaign expenditures and that those expenditures fall within Commission limits. Any expenditure in excess of the individual state or overall limits or not properly documented is deemed a "nonqualified" campaign expense, and the FEC may seek a pro rata repayment (determined by a multiplier) of the share of public funds attributable to such nonqualified expenditures. Id. Secs. 9035.1, 9038.2. ²

Following petitioner's campaign, the Commission audited petitioner's campaign expenditures and his receipt and use of public funds. ³ 26 U.S.C. Sec. 9038(a); 11 C.F.R. Sec. 9038.1(a)(1). Discovering irregularities in recordkeeping, disbursements, and expenditure levels, the Commission on December 19, 1989 issued an "Interim (preliminary) Audit Report" and "preliminary calculation" whereby petitioner was thought to be obliged to repay $290,772.60. Petitioner subsequently sought to convince the FEC as to the propriety of its expenditures, but on March 26, 1992, the Commission issued a "Final Audit Report" and "initial repayment determination" of $388,543.78; in addition, the FEC asserted that petitioner should refund $105,634.56 to certain press organizations that had allegedly overpaid for the cost of air travel with petitioner's entourage. Petitioner again responded in writing, on June 25, 1992, and also requested an oral presentation before the Commission. He made the presentation

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on December 2, 1992, and submitted supplemental documents on December 9, 1992.

The Commission thereafter (in September 1993) released its "final determination" accompanied by a "Statement of Reasons" concluding that petitioner was obliged to repay $290,793.66 to the United States Treasury. ⁴ The repayment figure reflected disallowances for, inter alia, the four insufficiently documented, excessive or otherwise not "qualified" campaign expenses which are the subject of this appeal. These four disputed repayment items include amounts that petitioner claims the Commission had either improperly allocated to or wrongly judged to have exceeded the Iowa and New Hampshire state expenditure limits; funds that had been transferred between petitioner's national and state campaign accounts; and monies that had been spent attending the 1988 Republican National Convention.

In addition to disputing these assessments, petitioner, at the oral hearing, also challenged the Commission's authority to issue any repayment determination. Petitioner contended that the Commission had failed to meet the statutory three-year period for "notification" of repayment determinations, see 26 U.S.C. Sec. 9038(c), a period which ran from August 18, 1988 (the date of the GOP nomination of George Bush) to August 18, 1991. The FEC (Commissioner Elliott dissenting) rejected this argument as not properly presented to the Commission since it had only first been made at the oral hearing. Pursuant to FEC regulations, oral presentations to the Commission may only deal with matters raised in prior written submissions, 11 C.F.R. Sec. 9038.2(c)(3), which are themselves due within 30 days of the issuance of the Final Audit Report (although an extension to 45 days was granted here). See 11 C.F.R. Sec. 9038.2(c)(2). Petitioner did not raise the issue of the three-year limit on "notification" of repayment determinations in compliance with the Commission's internal procedures for challenging agency action.

II.

Petitioner, before us, presents an array of objections to the Commission's order of repayment, ranging from a challenge to the constitutionality of the FEC's composition to a claim that the Commission's actions exceeded its statutory authority to a dispute as to the merits of four separate expense items. The constitutional challenge is based on the presence of two congressionally appointed, non-voting ex officio members on the Commission throughout the proceedings in this case. We have recently held that the Commission so composed is unconstitutional. See Federal Election Comm'n v. NRA Political Victory Fund, 6 F.3d 821, 826-27 (D.C.Cir.1993), cert. granted, --- U.S. ----, 114 S.Ct. 2703, 129 L.Ed.2d 832 (1994), cert. dismissed, --- U.S. ----, 115 S.Ct. 537, 130 L.Ed.2d 439 (1995). ⁵ The Commission, however, in an effort to avoid the effect of our opinion, voted on December 1, 1993, to ratify its past "actions in audits of publicly funded presidential campaigns," including this case, without the presence of the two ex officio members. Petitioner disputes the Commission's claim that this action undoes any taint of unconstitutionality.

The Commission's response is that petitioner's constitutional challenge is not properly raised because it was not brought before the Commission. The latter point need not detain us. It was hardly open to the Commission, an administrative agency, to entertain a claim that the statute which created it was in some respect unconstitutional. See Mitchell v. Christopher, 996 F.2d 375, 378-79

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(D.C.Cir.1993). Still, we do not need to decide whether the FEC's subsequent ratification vote obliterated the unconstitutional taint because petitioner is estopped from challenging the Commission's constitutionality. See Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1556-57, 91 L.Ed. 2030 (1947) (where a party has enjoyed benefits from agency under a statutory scheme, courts will not entertain challenges to agency's existence); Brockert v. Skornicka, 711 F.2d 1376, 1380 (7th Cir.1983) (constitutional estoppel "most appropriate when a party seeks to retain the benefits of a governmental act while attempting to invalidate its burdens").

Petitioner, after all, voluntarily accepted over $10 million in public funds disbursed at the Commission's...