Petition — Gelman v. Federal Election Commission

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

- Supreme Court, U. S.

80 ~2 0 9 FILED

Ks AUG 12 1980

IN THE

Supreme Court of the Biter Siew” CLERK |

OCTOBER TERM, 1980

FELICE GELMAN, Treasurer of Citizens for LaRouche,

CITIZENS FOR koocan the principal Campaign

Committee of Lyndon H. LaRouche

Petitioners,

vS.

FEDERAL ELECTION COMMISSION

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE

DISTRICT OF COLUMBIA CIRCUIT

James F. Schoener

Jenkins, Nystrom &

Sterlacci, P.C.

2033 M Street, N.W.

Suite 504

Washington, D.C. 20036

Attorney for Petitioners

QUESTIONS PRESENTED

1. Did the Court of Appeals err in sustaining the

interpretation by the Federal Election Commission

of provisions of the Presidential Primary Matching

Payment Act, 26 U.S.C. §9033(c)(4)(B) regarding the

reestablishment of matching payment elig:bility?

2. Did the Court of Appeals err in construing the votes

cast for “‘Uncommitted” as a category in the May

20, 1980 Michigan Democratic Presidential Primary

as “‘votes cast for candidates of the same party’’?

3. Did the Federal Election Commission violate th.

petitioners’ rights under the Constitution of the

United States?

TABLE OF CONTENTS

Cpemeeeie PKONOION 6 ioc. caiiie's ss oo vine os Wh wo wate s i

Table of Cases and Authorities .................. v

Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit ............. l

SND TT kin. 6-5 Wa bai eked os sew antic cov d oaks 2

PE Na ag, oe ios Said as oe ai hwelane eee 2

CORSON PVOVISIONS 0... ce ccc cctv enwmon 2

Provisions of Michigan Law ................0005. 3

mentomenmt GF: the Case... ww. ccc cc cece cned une es

DG se US cc vec c cece cccccceses cua 6

SIL ain's GD oe cc rcccccccccccecos «eee

Appendix:

A. Opinion of the United States Court of Appeals

for the District of Columbia ........... la

B. Respondent to Petitioners Letter,

PU hg BO iiss 6 0k. hinds es BAO ba vies es lla

C. Respondent-General Counsel Memorandum,

DEON Be SO FOR ors os Ciba tis S sins 13a

D. Provisions of State and Federal Law

Relevant to the Questions Presented .... 18a

E. Notice of Termination,

F.E.C. to Petitioners, April 1, 1980..... 39a

F. Telegrams May 21 & 27, 1980,

Petationers to: F BGs bie cic ive eaeewe 4la

G. Certified Vote—State of Michigan—

Presidential Primary, May 20, 1980..... 46a

H. Proof Ballot—State of Michigan ........... 62a

I. Partial Transcript F.E.C. Meeting,

Wel FF; IFS is. ob is eo Phg hia owen 64a

iii

PREVIOUS PAGE WAS BLANK

TABLE OF CASES AND AUTHORITIES

Statutes

RUS NEED 4.00'0 6 dans dks Pa Rien ld A KEKE Ree 8

2 U.S.C. ci hie be ete Mihit 9 Raikes 9

At RT iss ok 5.6 0608 ode Ue RMI ETS 9

ie Se MED a. ow s/eibigin's «60. 60 MIRA Ale Wine 4 8

26 U.S.C. §9032 .. 8

26 U.S.C. §9032(2) 6, 8, 10

yp BER Kony |: RS re ae Pe ere Te | 10

26 U.S.C. §9033(a) and abe ile Rina coher ee Sac eh 3

26 U.S.C. ta alle eS aa eat ee

26 U.S.C. §9034 .. BS eS) ea ae a ie

METER Sod lo 8 0-00.66 0K 0'e WR be ae Wena Be ahd Oe

Mk SAM ERD. 64.06 x cid eiben 6 RSS CAD prea ede 2

Michigan Compiled Law §168.614............... 3,4

Michigan Compiled Law §168.615............. 3, 5, 8

Se RAE ey ODEO UOED 6c 'p-0 6d oxi dbma th eae ens a

Cases

Buckley v. Valeo, 424 U.S. 1 (1976)......... 12, 13, 14

Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).... 13

Johnson v. Cushing (O.C. Minn. Civ. No. 4-78-327)

Jan. 17, 1980 (3 judge panel)... 6... ccc cc ceccne 11

LaFollette v. Democratic Party of the U.S.,

FEE TR A PEGS ve Se AwEs es deren ctecowee

Laon ¥. FBG TINA. ake ec dicec eee’ 15

Lubrizol v. Environmental Protection Agency,

191 U.S. App. D.C. 225,

eT CPE aa vac cce ks Sake bh bane 8

Mancuso v. Taft, 476 F.2d 187 (ist Cir. 1973) ....... 11

New York Times v. Sullivan, 376 U.S. 254,

845 S. Ct. 710, 11 L. Ed. 2d 688 (1964) .......... 11

Stewart Machine v. Davis, 301 U.S. 548 (1937) ...... 14

TIRE: v, COPTER, ZO7 WA. OUR iss Cee URT RE ee 14

Williams v. Rhodes, 393, U.S. 23, 89 S. Ct. 5,

Ba Lisi PO OOO Cea oh oer Crk swans chee 11

PREVIOUS PAGE WAS BLANK

U.S. v. Public Utilities Commission of Calif.,

345 U.S. 295, 97 L. Ed. 1020,

Fa By Gohks" FOCUS AOR NE Ale WiKi bot Mabe d es

Other Authorities

Annual Survey of American Law (1976) N.Y.U

Contested Election Recounts, Vol I,

The Federal Perspective, F.E.C. publication .

Legal Commentaries, Sutherland,

Statutory Construction,

Words and Phrases, Vol.6...............

No. 80-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

FELICE GELMAN, Treasurer of Citizens for LaRouche, and

CITIZENS FOR LAROUCHE, the principal Campaign

Committee of Lyndon H. LaRouche

Petitioners,

vs.

F EDERAL ELECTION COMMISSION

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Felice Gelman, as treasurer of the Citizens for La-

Rouche and the Citizens for LaRouche, the principal

campaign committee of Lyndon H. LaRouche, a candi-

date for the nomination to the office of President of the

United States, pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the District of Columbia Circuit entered in this case on

July 18, 1980.

OPINIONS BELOW

The opinion of the Court of Appeals is unreported; a

copy is set forth in full in Appendix A.

JURISDICTION

The opinion of the Court of Appeals was entered on

July 18, 1980. This petition for writ of certiorari was filed

within 90 days of that date. The jurisdiction of this Court

is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

The following provisions of the United States Consti-

tution are relevant to the questions presented.

AMENDMENT I

Congress shall make no law respecting an establishment

of religion or prohibiting free exercise thereof; or abridg-

ing the freedom of speech, ar of the press; or of the right

of the people peacefully to assemble, and to petition the

Government for a redress of grievances.

AMENDMENT V

No person shall be held to answer for a capital or

otherwise infamous crime, unless on -a presentment or

indictment of a Grand Jury, except in case arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

criminal case to be a witness against himself, nor be

deprived of life, liberty or property, without due process

of law, nor shall private property be taken for public use,

without just compensation.

PROVISIONS OF STATE LAW -

The provisions of the Michigan Compiled Law and the

Ohio Revised Code Annotated which petitioner contends

are relevant deal with the holding of the Presidential

Primary and with the use of the term “votes cast for

candidate.”’ They are quoted in full in Appendix D.

PROVISIONS OF FEDERAL LAW

The provisions of the United States Code which peti-

tioner contends are relevant deal with requirements for

presidential candidates under the Federal Election Cam-

paign Act and are quoted in full in Appendix D.

STATEMENT OF THE CASE

Lyndon H. LaRouche was a candidate for the office of

President of the United States in 1976 and is presently

seeking to be nominated as the presidential candidate of

the Democratic Party at the Demoviatic National Con-

vention to be held August 11, 1980.

On December 18, 1979, Mr. LaRouche, through the

petitioners, Felice Gelman, treasurer, and Citizens for

LaRouche, his principal campaign committee, fulfilled the

requirements of Title 26 U.S.C. Section 9033(a) and (b)

and established eligibility to receive primary matching

funds for the 1980 Presidential Primary. Pursuant to such

eligibility, petitioners were certified by the Federal Elec-

tion Commission and received matching funds from the

Secretary of the Treasury.

Subsequently, the Federal Election Commission deter-

mined (April 1, 1980) that, because of the results in the

New Hampshire and Illinois primary elections, such eligi-

bility would cease as of April 17, 1980. In those primaries,

the candidate received “‘less than 10% of the votes cast for

candidates for the Democratic nomination” (emphasis

supplied) (quoted from letter of termination by Respond-

ent. See Appendix E, p. 39a). Said notification further

stated that, ““ ... you may be able to reestablish your

eligibility to receive matching fund payments for qualified

campaign expenditures incurred after April 17, 1980, if

you receive at least 20% of the total number of votes cast

for Democratic candidates in a presidential primary elec-

tion heid after March 18, 1980,” (emphasis supplied). The

reestablishment of eligibility referred to in the Commis-

sion letter is contained in Title 26, Section 9033(c)(4)(B)

which reads:

(B) Notwithstanding the provisions uf paragraph

(1)(B), a candidate whose payments have been termi-

nated under paragraph (1)(B) may again receive pay-

ments (including amounts he would have received but

for sap pe (1)(B) if he receives 20 percent or more

of the total number of votes cast for candidates of the

same party in a primary election held after the date on

which the election was held which was the basis for

terminating payments to him.

(Emphasis supplied.)

Thereafter, on May 20, 1980, in the Democratic Presi-

dential Primary held pursuant to statute in the State of

Michigan, Mr. LaRouche received more than 20% of the

total vote case for all candidates in that election (See

Appendix G, p. 46a, Certification of Vote). The candi-

date’s name was placed on the ballot pursuant to the

provisions of Michigan Compiled Law, Section 168.614 in

which the Secretary of State is directed to issue a list of

individuals generally accepted by the national news media

as potential presidential candidates for the national polit-

ical parties. The potential candidate must thereafter either

file an affidavit of his willingness to have his name printed

on the ballot or he may decline by doing nothing. In the

Democratic Party, besides LaRouche, the Secretary of

State notified President Carter, Senator Edward Kennedy

and Governor Edmund Brown, Jr. LaRouche and Gover-

nor Brown replied by affidavit that they were willing to

have their names on the ballot; President Carter and

Senator Kennedy sought Michigan delegates to the Dem-

ocratic National Convention by the caucus method, an

alternative method under Michigan law and Democratic

Party rules. In these caucuses, President Carter received

7,567 votes, while Senator Kennedy received 7,793 votes.

In the primary election, Lyndon LaRouche received 8,943

votes, while Governor Brown received 23,043. Governor

Brown publicly withdrew and so ceased to be a candidate

as defined in the Federal Act on April 1, 1980. (See May

28, 1980 Memorandum, F.E.C. General Counsel, Appen-

dix C, p. 13a, at p. 16a.) In addition to the votes for

LaRouche and Brown, there were votes for write-ins and

votes for the category of “uncommitted”.

Under Michigan law (Compiled Laws, Section 168.615),

the names of the candidates who are certified by the

Secretary of State are rotated on the printed ballot, the

computer assembly or voting machine. At the end cf every

ballot, pursuant to the same section, there is a space for

the elector to vote “uncommitted.”

After the Michigan primary, petitioners filed telegrams

requesting respondents to reestablish the eligibility of

candidate LaRouche to obtain presidential primary

matching funds under the provisions of 26 U.S.C. 9033

(c\(4)(B). (See, Appendix D, 26 U.S.C. 9033 (c)(4)(B) p.

18a, at 32a.) On May 29, the respondents considered the

Memorandum of the F.E.C. general counsel, (see Appen-

dix I, pp. 64a-83a.) and voted to deny the request (see,

letter, June 5, 1980, Appendix B, p. 11a).

Petitioners filed a Petition to Review with the Court of

Appeals of the District of Columbia Circuit to review the

action of the Federal Election Commission. The Court of

Appeals expedited consideration and heard oral argument

July 14, 1980 and issued their opinion July 18, 1980. Such

opinion sustained the Commission and so construed the

Federal statute to include votes cast for the category of

“uncommitted” in determining whether the petitioners

could be restored to matching funds under the Presidential

Primary Matching Funds Act.

ARGUMENT

A. The Federal Election Commission and the Court of

Appeals Erred in Denying Petitioner Funds

Under the Presidential Matching Funds Act.

The decision of the Federal Election Commission to

deny reestablishment of eligibility to petitioners (as the

treasurer and principal campaign committee) as contained

in the letter of June 5, 1980 does not explain the reason for

denial. The transcript of the proceedings of May 29th

indicates the Commission relied on the interpretation

made by the Court of Appeals.*

B. No Ambiguity Exists in the Relevant Statute

Justice Felix Frankfurter in the 6th Annual Cardozo

Lectures before the Association of the Bar of New York

on March 18, 1947 (contained in Legal Commentaries,

Sutherland, Statutory Construction, p. 419) stated:

... Though we may not end with the words in

construing a disputed statute, one certainly begins

there. You have a right to think that a hoary plati-

tude, but it is a platitude not acted upon in many

* The Court grounded its decision on a reverse thrust of the words

of the statute. It held that votes cast as “uncommitted” must be

totaled with candidate votes to determine if LaRouche met the

standard of 20% of “votes cast for candidates of the same party in a

primary election”. The Court expanded the meaning of the word

“candidate” as defined in the statute, 26 U.S.C. §9032(2). The Court

of Appeals, ultimately, abandoned the statutory language and substi-

tuted their own “touchstone”’, viz., “* ... whether it may be said as a

practical matter that the candidacy is a viable one,” (see Appendix D,

18a, at 31a). To compensate the Court refers to the statutory language

as ‘‘sterile reading of the statute...” (see Anpendix D, 18a, at 31a).

arguments. In any event, it may not take you to the

end of the road. The Court no doubt must listen to

the voice of Congress.

Resort to legislative history as was done by counsel for

respondent and by the Court is itself often ambiguous and

inconclusive. In a similar situation, former Supreme Court

Justice Robert Jackson said that he preferred to make

decisions “‘by analysis of the statute instead of psycho-

analysis of Congress.” United States v. Public Utilities

Commission of Cal., 345 U.S. 295, 97 L.Ed. 1020, 73 S. Ct.

706 (1953), quoted in Sutherland, Statutory Construction,

Sec. 48.02.

The clear meaning of the words in this statute need

nothing further to obtain the intent of Congress. The use

of the phrase “total number of votes cast for candidates”

is often used in state election statutes (see, for example,

Appendix D, p. 18a, at 36a, Ohio, O.R.C.A. Section

3515.011, where 1/2 of 1% of the total vote cast for the

winning candidate plus the total vote cast for the defeated

candidate is the basis for a recount at state expense). Over

60% of the states use some form of figure based on vote

cast for candidates to initiate recounts, see Contested

Elections and Recounts, Vol. 1, The Federal Perspective,

F.E.C. publication, p. 51. To use the confusing category

of “total voters”, ‘“‘uncommitted”’, “eligible voters” would

be to add a numerical confusion to the Presidential

Primary Funding Act that does not now exist. In many

instances, the Canvass does not total such a vote. In

determining those other figures, the “spoiled ballots’,

“challenged ballots’, “‘voters who did not vote in a part

of the election” and other unknown factors become in-

volved. Here Congress used clear words, easily ascertain-

able, “total vote cast for candidates’. The Commission

and the Court of Appeals choose to ignore this plain

meaning.

This approach ignores fundamentals of statutory con-

struction. It ignores a) literal interpretation, b) plain

meaning rule, c) clear and unambiguous words, d) whole

statute construction, e) each word given effect and f)

definitions contained in the statute being construed. See

2A, Sutherland, Statutory Construction, Chapter 46. No

ambiguity can be found in the words of the statute

involved in this case.

As the Court of Appeals said in Lubrizol v. Environmen-

tal Protection Agency, 191 U.S. App. D.C. 225, 562 F.2d

807 (1977) at 819:

In a period of seemingly growing popular convic-

tion that government agencies too often tra

the statutorily imposed boundaries of their authority,

courts, in reviewing administrative action, must be

alert to confine that action within those boundaries.

The Court of Appeals has confused the boundaries set by

Congress and assisted in expanding them.

C. Respondents’ Construction of the Term “Uncommitted”

to Equate With ‘‘Candidate”’ is Clearly Erroneous.

The category “uncommitted” in the Michigan Presiden-

tial Primary ballot is required by statute, Michigan Com-

piled Laws Section 168.615, (Appendix D, p. 18a, at 36a).

The category is similar to the category “none of the names

shown” in Wisconsin Election Law. See LaFollette v.

Democratic Party of the United States, 2837 N.W. 2d 519

at 533. It is a category that has been used in primary

elections for many years and must have been known to the

Members of Congress when the Presidential Primary

Matching Payment Account Act was passed (26 U.S.C.

Section 9032 et seq.). It certainly could not be confused

with the word “candidate”.

“Candidate” is defined in the primary section of the

Act, 26 U.S.C. Section 9032 (2); it is also defined in the

Presidential Election Campaign Fund Act, 26 U.S.C.

9002(2), and it is also defined in 2 U.S.C. Seetion 431(2).

(See, Appendix D, p. 18a, at pp. 30a-31a.) In none of those

sections does the “uncommitted” language appear. No-

where in all of the Reports by Congress concerning

Election Laws does the Congress indicate “uncommitted”

is a “candidate.”

Does “uncommitted” have a principal campaign com-

mittee as required by 2 U.S.C. Section 432(e)? By i.

- Does “uncommitted” have to file reports as required by

2 U.S.C, Section 434?

Does “uncommitted’”’ have an entitlement to Federal

funds under 26 U.S.C. Section 9034?

Does “‘uncommitted’’ submit to examination and audits

under 26 U.S.C. Section 9038?

Can “uncommitted” ask for a recount or contest under

any state laws?

Can “uncommitted”’ be elected to office?

It is submitted that <_: attempt to equate “uncommit-

ted” with a “candidate” does not wash. In the familiar

legal encyclopedia, Words and Phrases, Vol. 6, there

appear 39 citations to the word “candidate”. Not one

citation even mentions the word “‘uncommitted’’.In most

definitions it refers to “tan individual” or “a person” who

-has taken certain steps to qualify for nomination or

election to office. Counsel for petitioners have been unable

to find any dictionary that remotely justifies respondents’

strained construction. To say that a faceless ‘“‘uncommit-

ted’’ is a candidate is to deny plain, simple, unambiguous

language and logic.

By so doing, the general counsel to respondent attempts

to take “total vote” rather than “total number of votes

cast for candidates of the same party’’. In this, counsel

attempts to “pick and choose” the language that will meet

his desired result. He gives some words effect while

ignoring others. Such construction is absurd and im-

proper. :

D. The Certified Vote from the Michigan Presidential

Primary Demonstrates that Lyndon LaRouche Received

More Than 20% of the Total Vote for Candidates in that

Primary Election.

In Petitioners’ Appendix is the Certified Vote for the

Presidential Primary Election of May 20, 1980. This

certified vote shows the Michigan total vote as follows:

Edmund = Lyndon Uncommit-

Brown, Jr. LaRouche Scattering ted Total Vote

23,043 8,948 10,018 36,385 78,424

In the Memorandum to the Commission (see Appendix

C, pp. 13a-14a), the general counsel of the respondent

plays a numbers game with the statistics in the Michigan

primary; he utilizes the early returns which were consider-

ably changed in the final certification. Nonetheless, re-

spondent must include the statistics for “‘uncommitted”’ as

the only way to deprive petitioners of their ‘20% of total

vote”’ as referred to in the statute (26 U.S.C. 9033).

Petitioners submit that a correct computation of “total

vote for candidates” as called for by the statutes is as

follows:

Percentage

LaRouche 8,948 47.18%

Scattering 10,018 52.82%

TOTAL votes for 18,966 100.00%

Candidates

Petitioners assume that the Brown vote should not be

included in the calculation under the statute since he was

no longer a “candidate” as defined in 26 U.S.C. Section

9032(2) which states:

The term “candidate” shall not include any individ-

ual who is not actively conducting campaigns in more

than one State in connection with seeking nomination

for election to be President of the United States.

As respondent’s counsel notes, Governor Brown had

withdrawn his name on April 1, 1980 as an active candi-

date. But, assuming, arguendo, that his name should be

included, the computation would still result in qualifying

petitioner:

Brown 23,043 54.85%

LaRouche 8,948 21.30%

Scattering 10,018 23.85%

TOTAL votes for 42,009 100.00%

Candidates

E. The Denial of Presidential Primary Matching Funds

Violates Petitioner's First and Fifth Amendment Rights.

The denial to peticioners of Presidential Primary Match-

ing Funds amounts to a denial of Constitutional rights for

petitioners. The right of a candidate to run for political

office is a Federal Constitutional right, Johnson v. Cushing,

(D.C. Minn. Civ. No. 4-78-327) Jan. 17, 1980 (3 judge

panel). It is a right under the First Amendement, Manusco

v. Taft, 476 F.2d 187 (1st Cir. 1973).

As in Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21

L.Ed. 24 (1968), the rights of the supporters of candidate

LaRouche to associate to advance their political beliefs

will be infringed upon by the denial of matching funds as

requested. The debate of the issues will be curtailed, a

voice will be silenced at the selection of delegates, the

platform debates, and the competition for their votes on

candidates and issues will be removed. This case must be

considered in light of the expressions of the Supreme

Court in First Amendment cases:

In New York Times v. Sullivan, 376 U.S. 254, 845 S. <t.

710, 11 L. Ed. 2d 688 (1964) the court said:

The general proposition that freedom of expression

upon questions is secured by the First Amend-

ment has long been settled by our decisions. .. . Thus

we consider this case against the background of a

profound national commitment to the principle that

debate on public issues shoula be uninhibited, robust,

and wide-open, and that it may well include vehement,

caustic, and sometimes unpleasantly sharp attocks on

nai and public officials officials . . .”’ (eraphasis

added)

The Supreme Court further noted the need for funds in

a political campaign in Buckley v. Valeo, (1976) 424 U.S.

1 at 13.

A restriction on the amount of money a person or

group can spend on political communication during

a campaign necessarily reduces the quantity of

expression by restricting the number of issues dis-

cussed, the depth of their exploration, and the size of

the audience reached. This is because virtually every

means of communicating ideals in today’s mass soci-

ety requires the expenditure of money.

In a footnote to the above quote, the Court added:

Being free to engage in unlimited political expres-

sion subject to a ceiling on expenditures is like being

free to drive an automobile as far and as often as one

desires on a single tank of gasoline.

In fact, the very act of fund raising is different if it is for

matching funds under respondent’s regulations than it is

if no matching funds are involved. The need and impor-

tance of the Presidential Primary Matching Funds is noted

in the Annual Survey of American Law (1976) N.Y.U., at

p. 680: !

The matching fund system attracted a wider field

of candidates than had appeared in past primaries. It

may also have helped an acti governor receive the

Democratic nomination despite an initially narrow

base of support. During the general election, the

spending limitations denied the Republican nominee

his traditional fundraising advantage; in light of the

close results, this new spending parity must have been

a critical factor in determining the outcome.

Congress has authorized the respondents to act in an

area of great delicacy. The F.E.C. may favor the First

Amendment right of free speech and association of some

candidates* or it may chill the same by undue audits and

investigations of contributors. It may infringe on Consti-

tutional rights in the name of regulation.

In every case the power to regulate must be so

exercised as not, in attaining a permissible end,

unduly to infringe the protected freedom.

Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).

Unduly must mean not more than necessary...

Burger, Chief Justice, concurrence, Buckley v. Valeo,

supra, at p. 4

The Constitutional right of Lyndon H. LaRouche to

compete for the highest elective office is seriously impaired

by respondent’s arbitrary actions and interpretation of the

financing act.

Chief Justice Burger foresaw some of the problems

which have arisen to challenge our Constitutional system

where public financing of politics is involved. Here La-

Rouche, like other political leaders without large media

backing, finds every measure of control and surveillance

of the respondent is used against him, while others are

favored with a more liberal interpretation of the same

questions.

The Chief Justice observed:

Recent history shows dangerous examples of sys-

tems with a close, “incestuous” relationship between

“government” and “‘politics’’; the Court’s opinion

simply dismisses possible dangers by noting that:

“Subtitle H is a congressional effort, not to abridge,

restrict, or censor speech, but rather to use public

money to facilitate and enlarge public discussion and

* The most recent actions of the F.E.C. in continuing eligibility of

George Bush for matching funds after his active campaigning all but

ceased appears to be a preferential treatment while petitioners have

been denied their reestablishment of eligibility for questionable rea-

sons.

participation in the electoral process, goals vital to a

ff. Te —.

Buckley v. Valeo (Concurring Opinion) supra, at p. 15

Petitioners submit that the very action of Congress in

the selection of the 10% cut-off and the 20% reestablish-

ment figures for federal funds may in itself be Constitu-

tionally infirm as applied to candidate LaRouche. Senator

Robert Taft, when offering the amendment which pro-

vided the cut-off and reestablishment provisions, under-

lined this arbitrariness:

Critics will undoubtedly charge that the levels I

have set are arbitrary, but this legislation is full of

arbitrary decisions ... Cong. Rec. Senate, p. 439,

March 18, 1976.

Contrast Senator Taft’s admission of Congressional

arbitrariness with his grandfather’s words as Chief Justice.

The Chief Justice observed “‘that the due process and

equal protection clauses are ‘associated’ and that ‘[i]t may

be that they overlap, that a violation of one may involve

at times the violation of the other, but the sphere of the

protection they offer are coterminous ... [Due process}

tends to secure equality of law in the sense that it makes a

required minimum of protection for every one’s right of

life, liberty and property, which the Congress or the

legislature may not withhold. Our whole system of law is

predicated on the general, fundamental principle of equal-

ity of application of the law.’’ See: Stewart Machine v.

Davis, 301 U.S. 548 (1937); Truax v. Corrigan, 257 U.S.

312. See also Buckley v. Valeo, 424 U.S. 1, at 93.

Respondent’s arbitrary interpretation of the law com-

bined with the arbitrariness of the original enactment

unite to deny petitioners equal protection and due process.

The Constitutional requirement mandates that Presiden-

tial candidates be treated substantially equally unless an

articulable, non-invidious rationale for another treatment

can be shown. Any treatment that acts to curtail petition-

ers and the LaRouche supporters of their Constitutional

right of free political expression and association while

assisting others, must be construed strictly and the con-

struction that furthers such associational rights must be

adopted.

The First Amendment cannot be replaced by a Federal

agency determining (presumably on a case-by-case basis)

the ‘‘viability’’ of a candidate. No such selection of

favored candidates or “practical test’? was contemplated

by the Act, and, if contemplated it would render the Act

patently unconstitutional.

CONCLUSION

The order of respondents denying petitioners the rees-

tablishment of their eligibility for Presidential Primary

Matchirg Funds is totally unjustified. It denies the clear

words of the statute. Respondent has strained definitions

beyond credulity and has resorted to inapposite cases to

try to justify their decision. This order ignores the funda-

mental First Amendment rights involved in a political

campaign and the need for prompt and adequate funding

to expound political views. The very delay in this funding

amounts to such denial in view of “‘the policy underlying

section 9036(a) which is to provide prompt payments to

eligible candidates’, LaRouche v. F.E.C., 77-1184, p. 21

The order of the Federal Election Commission should

be reversed.

Respectfully submitted,

/s/James A. Schoener

JAMES A. SCHOENER

Jenkins, Nystrom

& Sterlacci, P.C.

Attorneys for Petitioner

2033 M Street, N.W.

Suite 504

Washington, D.C. 20036

(202) 293-2505

APPENDIX

Appendix A

TO BE PRINTED AT A LATER DATE

Hunited States Court of Apprals

for the District of Columbia Circuit

[FILED JULY 18, 1980]

[GEORGE A. FISHER , CLERK]

No. 80-1646

FELICE M. GELMAN, Treasurer

Citizens for LaRouche,

CITIZENS FOR LAR OUCHE, INC.,

the Principal Campaign Committee

of Lyndon H. LaRouche,

Petitioners

Vv.

F EDERAL ELECTION COMMISSION,

Respondent

Petition for Review of an Order of the

Federal Election Commission

Argued July 14, 1980

Decided

James F. Schoener, for petitioners.

Kathleen Imig Perkins, Assistant General Counsel, Fed-

eral Election Commission with whom Charles N. Steele,

General Counsel, Marsha G. Gentner, Attorney, Federal

Election Commission were on the brief for respondent.

Before: WRIGHT, Chief Judge, WILKEY and MIKVA,

Circuit Judges

Opinion for the Court filed by Circuit Judge MIKVA

No. 80-1646—Felice Gelman, Treasurer, Citizens for

LaRouche v. Federal Election Commis-

sion

MikVvA, Circuit Judge: Lyndon LaRouche is a candidate

for the Democratic Party’s nomination for President of

the United States. Petitioners are Citizens for LaRouche,

Inc., Mr. LaRouche’s principal campaign committee, and

Felice M. Gelman, treasurer of Citizens for LaRouche.

Pursuant to the provisions of the Presidential Primary

Matching Payment Account Act, 26 U.S.C. § 9031-9042

(1976), Mr. LaRouche lost his eligibility for federal match-

ing funds because of his failure to obtain a sufficient

number of votes in two successive primary elections that

he entered. The stat:1te provides, however, that a candidate

may reestablish his eligibility in a subsequent primary

election. Petitioners contend that Mr. LaRouche satisfied

the prerequisites of the statute by garnering at least 20

percent of the vote on the Democratic side in the Michigan

primary in May of this year. They contest the Federal

Election Commission’s (FEC or the Commission) denial

of their request to resume payment of matching funds.

For the reasons that follow, we affirm the Commission’s

determination that Mr. LaRouche has failed to reestablish

his eligibility to receive federal matching funds.

BACKGROUND

A. The Statute

The Presidential Primary Matching Payment Account

Act (the Act) was enacted in 1974! and authorizes the

creation of the Presidential Primary Matching Payment

Account, 26 U.S.C. § 9037(a) (1976). Every eligible candi-

date for the presidential nomination of his or her party is

entitled under the Act to receive from the account funds

matching every contribution to the candidate’s campaign,

up to $250 per contribution.? To become eligible to receive

matching funds, a candidate must agree to maintain

records of campaign expenses and contributions and to

cooperate with the FEC’s audits and examinations.’ A

candidate must also demonstrate that his candidacy enjoys

at least a modicum of public support by collecting

“matching contributions which in the aggregate, exceed

$5,000 in contributions from residents of each of at least

20 States,’ 26 U.S.C. § 9033(b) (3) (1976). Qualifying

contributions may not exceed $250, id. § 9033(b) (4).

1. Pub. L. No. 93-443, § 408(c), 88 Stat. 1297 (1974).

2. 26 U.S.C. §9034(a) (1976). The federal payment will match gifts

received by the campaign “‘on or after the beginning of the calendar

year immediately preceding the calendar year of the presidential

election with respect to which such candidate is seeking nomination.”

Id.

3. 26 U.S.C. § 9033(a) (1976) provides:

(a) Condition To be eligible to receive payments under section

9037, a candidate shall, in writing—

(1) agree to obtain and furnish to the Commission any evidence

it may request of qualified campaign expenses,

(2) agree to keep and furnish to the Commission any records,

books, and other information it may request, and

(3) agree to an audit and examination by the Commission

under section 9038 and to pay any amounts required to be paid

under such section.

Congress amended the Act in 19764 to provide that

matching payments are to be terminated for any candidate

who ceases to campaign actively in more than one state,

26 U.S.C. § 9033(c) (1) (A) (1976), or whose performance

at the polls indicates that his candidacy no longer enjoys

even minimal public support. The absence of public

support is established by the candidate’s failure to receive

10 percent or more “of the number of votes cast for all

candidates of the same party for the same office,” id. §

9033(c)(1)(B). The 1976 amendments also provide, how-

ever, that any such candidate can reestablish his eligibility

to receive matching funds by demonstrating, again

through his performance at the polls, that his candidacy

enjoys some minimal level of public support:

(4) Reestablishment of eligibility

(B) Notwithstanding the provisions of perearee™

(1)(B), a candidate whose payments have been

terminated under paragraph (1)(B) may again

receive payments (including amounts he would

have received but for paragraph (1) (B)) if he

receives 20 percent or more of the total number

of votes cast for candidates of the same party in a

primary election held after the date on which the

election was held which was the basis for, termi-

nating payments to him.

26 U.S.C. § 9033 (c)(4)(B) (1976).

B. The Commission's Decision

On December 18, 1979, the FEC certified that Mr.

LaRouche was eligible to receive matching fund payments

under the Act.’ Mr. LaRouche thereafter received less

than 10 percent of the total votes cast for candidates for

4. Pub. L. No. 94-283, § 306, 90 Stat. 499 (1976).

5. Petitioner’s Appendix (PA) 1.

the Democratic presidential nomination in two consecu-

tive primaries: in New Hampshire on February 26, 1980,

and in Illinois on March 18,.1980. The FEC accordingly

notified him that it would terminate matching payments

for campaign expenditures incurred after April 17, 1980.°

On May 20, 1980, the state of Michigan held its

presidential primary. The ballot listed two candidates for

the Democratic nomination: Governor Edmund G.

Brown, Jr. and Lyndon LaRouche.’ In addition, the ballot

permitted a vote to be cast for “Uncommitted” and

proveded a space for the name of a write-in candidate.*®

6. PA 2-3. 26 U.S.C. § 9033(c)\(1) provides in relevant part that

no payment shall be made to any individual under section 9037—

(B) more than 30 days after the date of the second consecutive

primary election in which such individual receives less that 10

percent of the number of votes cast for all candidates of the same

party for the same office in such primary election.

7. The Michigan Democratic Party did not participate in the

Michigan primary election, and, at the state party’s request, both

President Carter and Senator Kennedy withdrew from the primary.

Respondent's brief at 8, app. 5a. The withdrawals were the result of a

conflict between Michigan state election laws, which required an

“open” primary in which any registered voter could vote on either the

Democratic or Republican side of the ballot, see Ferency V. Austin,

No. G80-193 CAS, slip op. at 2 (W.D. Mich. Apr. 21, 1980 reprinted

in PA 31, 32; Respondent’s brief at 8, and the delegate selection rules

of the Democratic National Committee, which limit “[p]articipation

in the delegate selection process in primaries or caucuses ... to

Democratic voters only who publicly declare their party preference

and have that preference publicly recorded,’ Delegate Selection Rules

for the 1980 Democratic National Convention § 2, at 3 (June 1978);

Respondent’s brief at app. 9a. The state party organized a statewide

caucus for the selection of delegates, a method which was expressly

upheld in Ferency.

8. Petitioner’s brief at 4; Joint Appendix (JA) 6.

The results of the voting on the Democratic side were as

follows:

Brown 23,043

LaRouche 8,948

Uncommitted 36,385

Write-ins 10,048

Of total votes cast (78,424), the percentage distribution

was as follows:

Brown - 29.4%

LaRouche 11.4%

Uncommitted 46.4%

Write-ins 12.8%

On the basis of the results in the Michigan primary, Mr.

LaRouche requested that the FEC resume payment of

matching funds. He reasoned that the Act requires that a

candidate receive 20 percent of the “‘votes cast for candi-

dates of the same party in a primary election,” and that

the votes cast for Governor Brown (who ceased to be an

active candidate on April 1, 1980) and for “Uncommitted”

should therefore not be included in determining whether

he had satisfied the 20 percent requirement for reestablish-

ing eligibility. If the votes cast for Governor Brown and

for “‘Uncommitted’ are not taken into account, the Dem-

ocratic votes in the Michigan primary total 18,966, with

47.1 percent for LaRouche and 52.9 percent for various

write-in candidates; if the votes cast for Governor Brown

(but not the uncommitted) are included as well, the

percentages are 54.8 percent for Brown, 23.9 percent for

the write-ins, and 21.3 percent for LaRouche.’

9. These figures are based on the final totals as certified by

Michigan’s Secretary of State. See PA 18-26. Mr. LaRouche’s request

for resumption of matching funds was premised upon slightly differ-

ent figures because the official results were not available at the time

he made his request. See PA 8-9. The difference between the two sets

of figures, however, do not affect either the reasoning or the outcome

of this case.

The Commission considered Mr. LaRouche’s claim at

its May 29 meeting and voted unanimously, one Commis-

sioner absent, to deny his request for matching funds.!°

II.

DISCUSSION

This petition for review presents us with an issue of first

impression—the proper interpretation of the phrase“‘votes

cast for candidates of the same party in a primary elec-

tion,” as that language is used in the reestablishment of

eligibility provision, 26 U.S.C. § 9033 (c)(4)(B) (1976). The

question to be decided is whether that phrase refers merely

to votes cast for individual, active candidates or to votes

cast for any and all voter preferences within a single party,

including those cast for inactive candidates, for write-ins,

and for “‘uncommitted.”’ We hold that the latter, more

expansive reading of the phrase is consistent with the

language adopted by Congress and with the apparent

purpose of the 1976 amendments to the Act.

Petitioners argue that the word “‘candidate’’ must take

its meaning from the Act itself, which defines “‘candidate”’

as “‘an individual who seeks nomination for election to be

President of the United States... [and] whois. . . actively

conducting campaigns in more than one State.” 26 U.S.C.

§ 9032(2) (1976). Thus, petitioners assert, “‘votes cast for

candidates” can only be those votes cast for individuals

who are actively campaigning in more than one state. This

interpretation would eliminate from the Michigan Demo-

cratic primary results all votes cast for Governor Brown,

who by May 20 had ceased to campaign actively in more

than one state, and votes cast for “Uncommitted,” be-

cause “Uncommitted” does not refer to any individual

candidate. '! '

10. JA12-37.

11. Such an irterpretation could conceivably eliminate some or all

of the votes cast for write-in candidates, since many of such candidates

might not satisfy the statutory definition on which petitioners rely.

Petitioners’ construction ignores the fact that the word

“candidate” does not appear in the statute in a vacuum.

The complete phrase to be construed and applied by the

FEC is ‘‘candidates of the same party in a primary

election.” Petitioners’ narrow focus on the word “candi-

date,”’ to the exclusion of the phrase within which that

word appears, results in a strained and artificial construc-

tion that is at odds with the Act’s underlying concern that

federal matching funds should go only to those candidates

who have demonstrated at least minimal public support

for their candidacies.

When the entire phrase is read as a whole, less emphasis

is placed upon the word “‘candidate,”” and more emphasis

is placed upon the total vote cast under one or another

party heading. Congress intended by that focus to keep

separate vote computations for each of the political par-

ties. The viability of a particular candidacy can hardly be

measured by including the votes cast for candidates of

other political parties.

As enacted in 1974, the Act premised eligibility upon an

ability to raise funds through public contributions in at

least 20 states. The 1976 amendments established an

equally pragmatic test for determining whether a candi-

date should continue to receive matching funds: his ability

to capture 10 percent or more of the vote within his party

in two consecutive primary elections. Similarly, reestab-

lishment of eligibility was made to turn on voter support

for the candidate. In all of these determinations, the

touchstone is whether it may be said as a practical matter

that the candidacy is a viable one. As Senator Taft noted,

passage of the 1976 amendments “express [es] the sense of

the Congress that the public financing program is not to

support campaigns that are going nowhere fast’ 122 Cong.

Rec. 7174 (1976). The measuring stick for such viability

must necessarily include all of the options that voters of a

particular political party in any given state can exercise. If

state law allows a ‘“‘no preference” or “none of the above”’

option, as it does in Michigan, that is just as valid a meter

of a candidate’s popularity as a head-to-head confronta-

tion.

Petitioners’ sterile reading of the statute ignores Con-

gress’ practical purpose and exalts literalness over com-

mon sense. Out of 78,424 votes cast on the Democratic

side of the Michigan primary ballot, 88.6 percent were not

cast for Mr. LaRouche. Through a narrow reading of the

Act, Mr. LaRouche would have us conclude that 88.6

percent nonsupport translates into 41.4 percent support.

No amount of statutory construction can reach such an

illogical conclusion.

Our reading of the statute is also consonant with the

FEC’s past practice, which should be given the deference

ordinarily accorded any interpretation of a statute by the

agency charged with its enforcement. Udall v. Tallman,

380 U.S. 1, 16 (1965); Kyle v. Interstate Commerce Com-

mission, 609 F. 2d 540 (D.C. Cir. 1979). At oral argument,

counsel for the Commission stated that, in determining

whether a candidate has satisfied the 10 percent minimum,

the FEC has consistently computed the candidate’s share _

of the total votes cast within a party designation. We note

that the FEC’s approach in evaluating Mr. LaRouche’s

request was consistent with this long-standing practice

and is thus entitled to considerable deference from this

court. V.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974);

District of Columbia v. Payne, 374 F.2d 261 (D.C. Cir.

1966.)

Where the agency’s interpretation is supported by the

language and overall purpose of the statute being con-

‘strued, a reviewing court’s work is greatly simplified. And

where petitioner’s construction leads to a conclusion that

is illogical or at odds with the apparent purpose of the

statute, there can be no doubt as to the correctness of the

agency’s position.'?

12. It is conceivable that all of the candidates in a particular state

primary could be marked for disqualification, if 90 percent or more of

the voters opted for “‘none of the above.”” Given the past construction

of section 9037(c)(1)(B) by the Commission, and the clear expression

of Congress’ intent, as detailed herein, we assume the Commission

would do its duty no matter who was pinched.

We thus find that the Commission’s interpretation of

the 20 percent rule in 26 U.S.C. § 9033(c)(4) (B) (1976) is a

correct and complete basis for its denial of petitioners’

request. Accordingly, we do not reach the Commission’s

remarkable assertion that the Michigan primary election

was not an “election” for the purposes of the Act.'? The

Commission’s denial of petitioners’ request is

AFFIRMED.

13. Petitioners also challenge the Commission’s decision as a

deprivation of First and Fifth Amendment rights. This argument is

without merit. See Buckley v. Valeo, 424 U.S. 1, 96 (1976) (citations

omitted):

Congress’ interest in not funding hopeless candidacies with

large sums of public money necessarily justifies the. withholding

of public assistance from candidates without significant public

support. Thus, Congress may legitimately require “‘some prelim-

inary showing of a significant modicum of support’’ as an

eligibility requirement for public funds. This requirement also

serves the important public interest against providing artificial

incentives to “splintered parties and unrestrained factionalism.”’

In their petition for review, petitioners raised a second issue—

whether the Commission correctly refused to postpone the date of its

post-primary audit of petitioners’ books and records. Although this

issue was raised in petitioners’ motion for stay pending appeal, which

this court denied June 19, 1980, it was not briefed by the parties, nor

was it raised on oral argument. We will assume that petitioners have

abandoned this issue, and we do not address it in our opinion.

10a

“Appendix B

[80-1646]

[logo of the Federal Election Commission]

June 5, 1980

Certified Mail

Return Receipt Requested

Felice M. Gelman

Treasurer, Citizens for LaRouche

Box 976, Radio City Station

New York, New York 10019

Dear Ms. Gelman:

The Commission has received your letter of May 7,

1980, requesting that Citizens for LaRouche (““CFL”’) be

provided with a report of the auditors’ findings with

respect to the audit fieldwork of CFL which was com-

pleted on April 25, 1980, and to delay the commencement

of the final audit pending the receipt of the written

findings. Contrary to your assertions, no “‘promise’’ was

made to deliver such a report to the Committee on May 5,

1980. The Commission will provide CFL with written

recommendations in addition to the recommendations

related to you at the April 25, 1980 exit conference. Until

such time, the Committee has the benefit of the comments

provided at the “exit conference”. Accordingly, the post-

primary audit of CFL, which must timely be performed

by the Commission pursuant to 26 U.S.C. § 9038 (a), will

not be delayed on that basis.

The Commission is also in receipt of your two telegrams

dated May 21 and 27, 1980, requesting the Commission to

reestablish the eligibility of Lyndon LaRouche to receive

matching funds based on the results of the Michigan

contest of May 20, 1980. On May 29, 1980, the Commis-

lla

sion determined that none of the grounds set forth in your

telegrams support a determination that Mr. LaRouche

has reestablished his eligibility for matching funds. There-

fore, Mr. LaRouche’s date of ineligibility on or after

which he may not receive matching fund payments re-

mains April 17, 1980, as previously determined.

In a separate determination, the Commission agreed to

postpone the date of the post-primary audit scheduled for

June 2, 1980 until June 9, 1980. The Commission decided

to grant a one week postponement of its audit on the basis

that proceeding with the audit might interfere with the

Committee’s activities during the week of the June 3, 1980

primaries.

If you have any questions about these matters, please

do not hesitate to telephone Robert Bogin or Marsha

Gentner at (202) 523-4529.

Sincerely,

/s/Max L. Friedersdorf

MAX L.

FRIEDERSDORF

Chairman

cc: James F. Schoener

Jenkins, Nystrom & Sterlacci, P.C.

12a

Appendix C

[logo of the FEC]

AGENDA DOCUMENT 480-189

AGENDA ITEM

For Meeting on 5-29-80

Agenda Item No.: III

Exhibit No. : III

RECEIVED

OFFICE OF THE

COMMISSION SECRETARY

80 MAY 28 P2:42

May 28, 1980

MEMORANDUM

TO: The Commission

FROM: Charles N. Steele [initialed]

General Counsel

SUBJECT: Lyndon LaRouche—Request for

Reestablishment of Eligibility

In a telegram dated May 21, 1980, the principal cam-

paign committee for Lyndon LaRouche has requested

that the Commission determine that he has established

reeligibility for matching funds based on the contest held

May 20, 1980, in Michigan. At this time, the Secretary of

State of Michigan has not certified the election results.

However, upon information received by telephone with

the Division of Elections, the unofficial results of the

Democratic contest is as follows: uncommitted-35,757;

13a

Brown-22,904; LaRouche-8,783; and write-ins-1,824. Mr.

LaRouche contends that in 26 U.S.C. § 9033(c)(4), Con-

gress intended to establish not that a candidate needed

20% of votes cast to establish reeligibility, but rather only

20% of votes cast for candidates eligible under Title 26

primary matching funds:

For the reasons set forth below, the Office of General

Counsel recommends that the Commission determine that

Mr. LaRouche did not receive the requisite percentage of

the vote in the Michigan contest of May 20, and thus has

not reestablished his eligibility for matching funds.

Background

The May 20, 1980, election was held pursuant to

Michigan law. M.C.L.A. § 168.613. This provision states

in part:

On the third Tuesday in May, in each presidential

election year, a statewide presidential primary elec-

tion shall be conducted in accordance with this Act

for each political party that received greater than 5%

of the total vote cast nationwide in the last presiden-

tial election.

State law, (M.C.L.A. § 168.620), provides that the Demo-

cratic Party should file with the Secretary of State the

rules and procedures which it will use in allocating its

delegates to the national convention, and if the Demo-

cratic Party fails to issue these rules by December 31,

1979, as required by law, the Secretary of State is then

required to issue his own rules “‘to the extent that they are

necessary” for the appropriate implemeitation of the

primary. In late 1979 the Democratic Party of Michigan

concluded that because of conflict with the Democratic

National Committee rules, it would instead select its

delegates through a caucus. Thereafter, a civil action was

filed in federal district court seeking a declaratory judg-

ment that the Democrats were obligated to file with the

Secretary of State the rules and procedures which it will

l4a

use in allocating its delegates to the national convention

pursuant to § 620. At the request of the party, President

Carter and Senator Kennedy requested that the Secretary

of State remove their names from the ballot; only Gover-

nor Brown and Mr. LaRouche consented to have their

names appear on the ballot.

On April 21, 1980, the district court held, based on

Cousins V. Wigoda, 419 U.S. 477 (1975), that the Michigan

presidential primary statute is unconstitutional as applied

to the Democratic Party because Michigan law attempts

to exclusively preempt the party’s delegate selection pro-

cess. Ferency v. Austin, G80-193CA5 (W.D. Mich.). That

decision sets forth the background to this dispute, includ-

ing the history of the dispute between the state and the

Democratic Party.

Analysis

26 U.S.C. § 9033 (c)(4)(B) states that “ta candidate

whose payments have been terminated under paragraph

(1)(B) [LaRouche was determined ineligible to incur qual-

ified campaign expenses under paragraph (1)(B)] may

again receive payments (including amounts he would have

recived but for paragraph (1)(B)) if he receives 20 percent

or more of the total number of votes cast for candidates of

the same party in a primary election held after the date on

which the election was held which was the basis for

terminating payments to him.”’ See 11 C.F.R. § 9033.7(b).

The 20% provision was enacted in 1976, following

criticisms of the matching fund system as financing non-

serious candidates. It was introduced by Senator Taft on

the floor on March 18, 1976. There was no comparable

provision in the House bill. The Conference Report ex-

plains that the purpose of the Senate amendment was that

a candidate be reinstated when he received “20% or more

of the votes cast.”” The Senate version was adopted by the

conferees. H.R. Rep. No. 1057, 94th Cong., 2d Sess. 75,76

(1976).

Explanation of the amendment on the Senate floor of

the purpose of the 20% rule was similar. Thus, its sponsor,

15a

Senator Taft, stated the provision was to allow a candidate

to become eligible “if he goes into a further primary

without the public financing involved and receives more

than 20% of the vote in that future primary.” 122 Cong.

Rec. 3787. In colloquy with Senator Clark, who feared

that the amendment would put serious candidates at a

disadvantage, Senator Taft reiterated that getting 20% of

the vote would restore a candidate to matching fund

status. 122 Cong. Rec. 3789.

In the face of this history, Mr. LaRouche argues that

the statutory phrase refers only to “candidates” within the

meaning of the matching fund act and that, accordingly,

votes cast for “uncommitted” or ““Governor Brown” (who

publicly declared that he no longer is a candidate for the

Democratic nomination) should not be counted by the

Commission in its computation.' By interpreting the scope

of the 20% rule in such a limited fashion, Mr. LaRouche

takes the position that he received more than 20% of the

votes cast for candidates in the Michigan primary. Noth-

ing suggests however that Congress, by inserting the

phrase ‘‘for candidates of the same party,’ into the

statutory provision was attempting to limit the scope of

the 20% rule. Rather, Congress was merely attempting to

state that a candidate would be required to receive 20% of

the votes cast in his party’s primary, rather than 20% of

1. After the Wisconsin primary of April 1, 1980, Governor Brown

publicly announced that he will not be actively conducting campaigns —

in more than one state and thus is not a candidate pursuant to 26

U.S.C. § 9032(2). There were a total of 69,278 votes cast in the

Democratic May 20 contest. Lyndon LaRouche received 12.7% of this

vote. Subtracting from the 69,278 total, the votes cast for Governor

Brown and the write-ins, Lyndon LaRouche received 19.73% of the

vote. Thus, a determination of whether Mr. LaRouche received 20%

or more of the Michigan vote hinges on the inclusion of the

uncommitted votes in figuring the percentage. This being so, the

analysis in the memorandum will primarily focus on whether to

include the uncommitted vote for purposes of determining the per-

centage of the vote Lyndon LaRouche received on May 20.

16a

the total votes cast in all party primaries. This conclusion

is also consistent with the language of the statute dealing

with such primary elections: those in which the voters are

polled “‘for the expression of a preference for the nomina-

tion of persons for election to the office of President of the

United States.’’ Certainly, twenty percent of the Michigan

voters did not express a preference for Mr. LaRouche’s

nomination for president. Consequently, the Office of

General Counsel submits that the Commission should

conclude that because Mr. LaRouche garnered unoffi-

cially only 8,793 out of 69,278 votes cast, he received less

than 20% of the vote in the Michigan primary.

While the Office of General Counsel submits that the

Commission should conclude that Mr. LaRouche has not

reestablished his eligibility on this ground, the holding of

the district court that the statute under which Michigan

had originally established this election is unconstitutional

is an alternate basis for a Commission determination.

Thus, under the relevant provision of the matching fund

act, contests for the expression of a presidential preference

are considered an election. Here, however, due to a

constitutional infirmity, an election originally established

to elect delegates did not serve that function. The party

determined that it would not comply with the rules and

requirements of the state’s primary election law, and

leading candidates for the nomination of the party with-

drew at the party’s request. The resulting contest does not

seem to be a primary within the meaning of the matching

fund act.

Recommendations

1. The Commission should determine that none of the

grounds set forth in the May 21, 1980, telegram by the

LaRouche Committee support a determination that Mr.

LaRouche has reestablished his eligibility for matching

funds.

2. Proceed with the audit as scheduled.

17a

Appendix D

TITLE 2. THE CONGRESS

Chapter 14—Disclosure of Federal Campaign Funds

§431. Definitions

When used in this Act:

(2) The term “candidate” means an individual

who seeks nomination for election, or election, to

Federal office, and for purposes of this paragraph, an

individual shall be deemed to seek nomination for

election, or election—

(A) if such individual has received contribu-

tions aggregating in excess of $5,000 or has made

expenditures aggregating in excess of $5,000; or

(B) if such individual has given his or her

consent to another person to receive contributions

or make expenditures on behalf of such individual

and if such person has received such contributions

aggregating in excess of $5,000 or has made such

expenditures aggregating in excess of $5,000.

§432. Organization of Political Committees

(e) Principal and additional campaign committees; des-

ignations, status of candidate, authorized committees, etc.

(1) Each candidate for Federal office (other than

the nominee for the office of Vice President) shall

designate in writing a political committee in accordance

with paragraph (3) to serve as the principal campaign

committee of such candidate. Such designation shall be

made no later than 15 days after becoming a candidate.

A candidate may designate additional political commit-

tees in accordance with paragraph (3) to serve as

authorized committees of such candidate. Such desig-

18a

nation shall be in writing and filed with the principal

campaign committee of such candidate in accordance

with subsection (f)(1) of this section.

(2) Any candidate described in paragraph (1) who

receives a contribution, or any loan for use in connec-

tion with the campaign of such candidate for election,

or makes a disbursement in connection with such cam-

paign, shall be considered, for purposes of this Act, as

having received the contribution or loan, or as having

made the disbursement, as the case may be, as an agent

of the authorized committee or committees of such

candidate.

(3) (A) No political committee which supports or

has supported more than one candidate may be

designated as an authorized committee, except

that—

(i) the candidate for the office of Presi-

dent nominated by a political party may des-

ignate the national committee of such political

party as a principal campaign committee, but

only if that national committee maintains sep-

arate books of account with respect to its

function as a principal campaign committee;

and

(ii) candidates may designate a political

committee established solely for the purpose of

joint fundraising by such candidates as an

authorized committee.

(B) As used in this section, the term “‘support”

does not include a contribution by any authorized

committee in amounts of $1,000 or less to an

authorized committee of any other candidate.

(4) The name of each authorized committee shall

include the name of the candidate who authorized such

committee under paragraph (1). In the case of any

political committee which is not an authorized commit-

tee, such political committee shall not include the name

of any candidate in its name.

(5) The name of any separate segregated fund

19a

established pursuant to section 441b(b) shall include the

name of its connected organization.

§434. Reporting requirements

(a) Receipts and disbursements by treasurers of political

committees; filing requirements.

(1) Each treasurer of a political committee shall

file reports of receipts and disbursements in accordance

with the provisions of this subsection. The treasurer

shall sign each such report.

(2) If the political committee is the principal cam-

paign committee of a candidate for the House of

Representatives or for the Senate—

(A) in any calendar year during which there is

a regularly scheduled election for which such can-

didate is seeking election, or nomination for elec-

tion, the treasurer shall file the following reports:

(i) a pre-election report, which shall be

filed no later than the 12th day before (or

posted by registered or certified mail no later

than the 15th day before) any election in which

such candidate is seeking election, or nomina-

tion for election, and which shall be complete

as of the 20th day before such election;

(ii) a post-general election report, which

shall be filed no later than the 30th day after

any general election in which such candidate

has sought election, and which shall be com-

plete as of the 20th day after such general

election; and

(iii) additional quarterly reports, which

shall be filed no later than the 15th day after

the last day of each calendar quarter, and

which shall be complete as of the last day of

each calendar quarter; except that the report

for the quarter ending December 31 shall be

filed no later than January 31 of the following

calendar year; and

(B) in any other calendar year the following

20a

reports shall be filed:

(i) a report covering the period begin-

ning January | and ending June 30, which

shall be filed no later than July 31; and

(ii) a report covering the period begin-

ning July | and ending December 31, which

shall be filed no later than January 31 of the

following calendar year.

(3) If the committee is the principal campaign

committee of a candidate for the office of President—

(A) in any calendar year during which a gen-

eral election is held to fill such office—

(i) the treasurer shall file monthly re-

ports if such committee has on January | of

such year, received contributions aggregating

$100,000 or made expenditures aggregating

$100,000 or anticipates receiving contributions

aggregating $100,000 or more or making ex-

penditures aggregating $100,000 or more dur-

ing such year: such monthly reports shall be

filed no later than the 20th day after the last

day of each month and shall be complete as of

the last day of each month, except that, in lieu

of filing the report otherwise due in November

and December, a pre-general election report

shall be filed in accordance with paragraph

(2)(A)(i), a post-general election report shall be

filed in accordance with paragraph (2)(A)(ii),

and a year end report shall be filed no later

than January 31 of the following calendar year;

(ii) the treasurer of the other principal

campaign committees of a candidate for the

office of President shall file a pre-election

report or reports in accordance with paragraph

(2)(A)(i), a post-general election report in ac-

cordance with paragraph (2)(A)(ii), and quart-

erly reports in accordance with paragraph

(2)(A)(iii); and

(iii) if at any time during the election year

2la

a committee filing under paragraph (3)(A)(ii)

receives contributions in excess of $100,000 or

makes expenditures in excess of $100,000, the

treasurer shall begin filing monthly reports

under paragraph (3)(A)(i) at the next reporting

period; and

(B) in any other calendar year, the treasurer

shall file either—

(i) monthly reports, which shall be filed

no later than the 20th day after the last day of

the month and shall be complete as of the last

day of the month; or

(ii) the quarterly reports, which shall be

filed no later than the 15th day after the last

day of each calendar quarter and which shall

be complete as of the last day of each calendar

quarter.

(4) All political committees other than authorized

cominittees of a candidate shall file either—

(A) (i) quarterly reports, in a calendar year

in which a regularly scheduled general election is

held, which shall be filed no later than the 15th day

after the last day of each calendar quarter: except

that the report for the quarter ending on December

31 of such calendar year shall be filed no later than

January 31 of the following calendar year;

(ii) a pre-election report, which shall be

filed no later than the 12th day before (or posted by

registered or certified mail no later than the 15th

day before) any election in which the committee

makes a contribution to or expenditure on behalf of

a candidate in such election, and which shall be

complete as of the 20th day before the election;

(iii) a post-general election report, which

shall be filed no later than the 30th day after the

general election and which shall be complete as of

the 20th day after such general election; and

(iv) in any other calendar year, a report

covering the period beginning January | and ending

22a

June 30, which shall be filed no later than July 31

and a report covering the period beginning July |

and ending December 31, which shall be filed no

later than January 31 of the following calendar

year; or

(B) monthly reports in all calendar years

which shall be filed no later than the 20th day after

the last day of the month and shall be complete as

of the last day of the month, except that, in lieu of

filing the reports otherwise due in November and

December of any year in which a regularly sched-

uled general election is held, a pre-general election

report shall be filed in accordance with paragraph

(2)(A)(i), a post-general election report shall be filed

in accordance with paragraph (2)(A)(ii), and a year

end report shall be filed no later than January 31 of

the following calendar year.

(5) If a designation, report, or statement filed

pursuant to this Act (other than under paragraph

(2)(A)(i) or (4)(A)(ii)) is sent by registered or certified

mail, the United States postmark shall be considered

the date of filing of the designation, report, or state-

ment.

(6) (A) The principal campaign committee of a

candidate shall notify the Clerk, the Secretary, or

the Commission, and the Secretary of State, as

appropriate, in writing, of any contribution of

$1,000 or more received by any authorized commit-

tee of such candidate after the 20th day, but more

than 48 hours before, any election. This notification

shall be made within 48 hours after the receipt of

such contribution and shall include the name of the

candidate and the office sought by the candidate,

the identification of the contributor, and the date of

receipt and amount of the contribution.

(B) The notification required under this para-

' graph shall be in addition to all other reporting

requirements under this Act.

(7) The reports required to be filed by this subsec-

23a

tion shall be cumulative during the calendar year to

which they relate, but where there has been no change

in an item reported in a previous report during such

year, only the amount need be carried forward.

(8) The requirement for a political committee to

file a quarterly report under paragraph (2)(A)(iii) or

paragraph (4(A)(i) shall be waived if such committee is

required to file a pre-election report under paragraph

(2A)(i), or paragraph (4(A)(ii) during the period be-

ginning on the Sth day after the close of the calendar

quarter and ending on the 15th day after the close of

the calendar quarter.

(9) The Commission shall set filing dates for re-

ports to be filed by principal campaign committees of

candidates seeking election, or nomination for election,

in special elections and political committees filing under

paragraph (4)(A) which make contributions to or ex-

penditures on behalf of a candidate or candidates in

special elections. The Commission shall require no more

than one preelection report for each election and one

post-election report for the election which fills the

vacancy. The Commission may waive any reporting

obligation of committees required to file for special

elections if any report required by paragraph (2) or (4)

is required to be filed within 10 days of a report required

under this subsection. The Commission shall establish

the reporting dates within 5 days of the setting of such

election and shall publish such dates and notify the

principal campaign committees of all candidates in such

election of the reporting dates.

(10) The treasurer of a committee supporting a

candidate for the office of Vice President (other than

the nominee of a political party) shall file reports in

accordance with paragraph (3).

(b) Contents of reports. Each report under this section

shall disclose—

(1) the amount of cash on hand at the beginning

of the reporting period;

(2) for the reporting period and the calendar year,

24a

the total amount of all receipts, and the total amount of

all receipts in the following categories:

(A) contributions from persons other than po-

litical committees;

(B) for an authorized committee, contribu-

tions from the candidate;

tees;

(D) contributions from other political com-

mittees;

(E) for an authorized committee, transfers

from other authorized committees of the same

candidate;

(F) transfers from affiliated committees and,

where the reporting committee is a political party

committee, transfers from other political party com-

mittees, regardless of whether such committees are

affiliated;

(G) for an authorized committee, loans made

by or guaranteed by the candidate;

(H) all other loans;

(I) rebates, refunds, and other offsets to oper- .

ating expenditures;

(J) dividends, interest, and other forms of re-

ceipts; and

(K) for an authorized committee of a candi-

date for the office of President, Federal funds

received under chapter 95 and chapter 96 of title 26;

(3) the identification of each—

(A) person (other than a political committee)

who makes a contribution to the reporting commit-

tee during the reporting period, whose contribution

or contributions have an aggregate amount or value

in excess of $200 within the calendar year, or in any

lesser amount if the reporting committee should so

elect, together with the date and amount of any

such contribution;

(B) political committee which makes a contri-

bution to the reporting committee during the re-

25a

porting period, together with the date and amount

of any such contribution;

transfer to the reporting committee;

(D) affiliated committee which makes a trans-

fer to the reporting committee during the reporting

period and, where the reporting committee is a

political party committee, each transfer of funds to

the reporting committee from another political

party committee, regardless of whether such com-

mittees are affiliated, together with the date and

amount of such transfer;

(E) person who makes a loan to the reporting

committee during the reporting period, together

with the identification of any endorser or guarantor

of such loan, and date and amount of value of such

loan;

(F) person who provides a rebate, refund, or

other offset to operating expenditures to the report-

ing committee in an aggregate amount or value in

excess of $200 within the calendar year, together

with the date and amount of such receipt; and

(G) person who provides any dividend, inter-

est, or other receipt to the reporting committee in

an aggregate value or amount in excess of $200

within the calendar year, together with the date and

amount of any such receipt;

(4) for the reporting period and the calendar year,

the total amount of all disbursements, and all disburse-

ments in the following categories:

(A) expenditures made to meet candidate or

committee operating expenses;

(B) for authorized committees, transfers to

other committees authorized by the same candidate;

where the reporting committee is a political party

committee, transfers to other political party com-

mittees, regardless of whether they are affiliated;

26a

(D) for an authorized committee, repayment

of loans made by or guaranteed by the candidate;

(E) repayment of all other loans;

(F) contribution refunds and other offsets to

contributions;

(G) for an- authorized committee, any other

disbursements;

(H) for any political committee other than an

authorized committee—

(i) contributions made to other political

committees;

(ii) loans made by the reporting commit-

tees;

(iii) independent expenditures;

(iv) expenditures made under section

441a(d) of tiis title; and

(v) any other disbursements; and

(1) for an authorized committee of a candidate

for the office of President, disbursements not Subject

to the limitation of section 441a(b);

(5) the name and address of each

(A) person to whom an expenditure in an

aggregate amount or value in excess of $200 within

the calendar year is made by the reporting commit-

tee to meet a candidate or committee operating

expense, together with the date, amount, and pur-

pose of such operating expenditure;

(B) authorized committee to which a transfer

is made by the reporting committee;

made by the reporting committee during the report-

ing period and, where the reporting committee is a

political party committee, each transfer of funds by

the reporting committee to another political party

committee, regardless of whether such committees

are affiliated, together with the date and amount of

such transfers;

(D) person who receives a loan repayment

27a

from the reporting committee during the reporting

period, together with the date and amount of such

loan repayment; and

(E) person who receives a contribution refund

or other offset to contributions from the reporting

committee where such contribution was reported

under paragraph (3)(A) of this subsection, together

with the date and amount of such disbursement;

(6) (A) for an authorized committee, the name and

address of each person who has received any dis-

bursement not disclosed under paragraph (5) in an

aggregate amount or value in excess of $200 within

the calendar year, together with the date and

amount of any such disbursement;

(B) for any other political committee, the

name and address of each—

(i) political committee which has re-

ceived a contribution from the reporting com-

mittee during the reporting period, together

with the date and amount of any such contri-

bution;

(ii) person who has received a loan from

the reporting committee during the reporting

period, together with the date and amount of

such loan;

(iii) person who receives any disburse-

. ment during the reporting period in an aggre-

gate amount or value in excess of $200 within

the calendar year in connection with an inde-

pendent expenditure by the reporting commit-

tee, together with the date, amount, and pur-

pose of any such independent expenditure and

a statement which indicates whether such in-

dependent expenditure is in support of, or in

opposition to, a candidate, as well as the name

and office sought by such candidate, and a

certification, under penalty of perjury, whether

such independent expenditure is made in co-

operation, consultation, or concert, with, or at

28a

the request or suggestion of, any candidate, or

any authorized committee or agent of such

committee;

(iv) person who receives any expenditure

from the reporting committee during the re-

porting period in connection with an expendi-

ture under section 441 a(d) of this title, together

with the date, amount, and purpose of any

such expenditure as well as the name of, and

office sought by, the candidate on whose be-

half the expenditure is made; and

(v) person who has received any dis-

bursement not otherwise disclosed in this par-

agraph or paragraph (5) in an aggregate

amount or value in excess of $200 within the

calendar year from the reporting committee

within the reporting period, together with the

date, amount, and purpose of any such dis-

bursement;

(7) the total sum of all contributions to such

political committee, together with the total contribu-

tions less offsets to contributions and the total sum of

all operating expenditures made by such political com-

mittee, together with total operating expenditures less

offsets to operating expenditures, for both the reporting

period and the calendar year; and

(8) the amount and nature of outstanding debts

and obligations owed by or to such political committee;

and where such debts and obligations are settled for less

than their reported amount or value, a statement as to

the circumstances and conditions under which such

debts or obligations were extinguished and the. consid-

eration therefor.

contents; indices or expenditures.

(1) Every person (other than a political committee)

who makes independent expenditures in an aggregate

amount or value in excess of $250 during a calendar

year shall file a statement containing the information

29a

required under subsection (b)(3)(A) of this section for

all contributions received by such person.

(2) Statements required to be filed by this subsec-

tion shall be filed in accordance with subsection (a)(2)

of this section, and shall include—

(A) the information required by subsection

(b)(6)(B)(iii) of this section, indicating whether the

independent expenditure is in support of, or in

opposition to, the candidate involved;

(B) under penalty of perjury, a certification

whether or not such independent expenditure is

made in cooperation, consultation, or concert, with,

or at the request or suggestion of, any candidate or

any authorized committee or agent of such candi-

date; and

made a contribution in excsss of $200 to the person

filing such statement which was made for the pur-

pose of furthering an independent expenditure. —

Any independent expenditure (including those described

in subsection (b)(6)(B)(iii) of this section) aggregating

$1,000 or more made after the 20th day, but more than

24 hours, before any election shall be reported within 24

hours after such independent expenditure is made. Such

statement shall be filed with the Clerk, the Secretary, or

the Commission and the Secretary of State and shall

contain the information required by subsection

(b)(6)(B)(iii) of this section indicating whether the inde-

pendent expenditure is in support of, or in opposition

to, the candidate involved.

(3) The Commission shall be responsible for ex-

peditiously preparing indices which set forth, on a

candidate-by-candidate basis, all independent expendi-

tures separately, including those reported under subsec-

tion (b)(6)(B)(iii) of this section, made by or for each

candidate, as reported under this subsection, and for

periodically publishing such indices on a timely pre-

election basis.

30a

TITLE 26: INTERNAL REVENUE CODE

Chapter 95—Presidential Election Campaign Fund

§9002. Definitions

(2) The term “‘candidate’’ means with respect to

any presidential election, an individual who—

(A) has been nominated for election to the

office of President of the United States or the office

of Vicé President of the United States by a major

party, or

(B) has qualified to have his name on the

election ballot (or to have the names of electors

pledged to him on the election ballot) as the candi-

date of a political party for election to either such

office in 10 or more States.

For purposes of paragraphs (6) and (7) of this section

and purposes of section 9004(a)(2), the term “‘candi-

date” means, with respect to any preceding presidential

election, an individual who received popular votes for

the office of President in such election. The term

“candidate” shall not include any individual who has

ceased actively to seek election to the office of President

of the United States or to the office of Vice President of

the United States, in more than one State.

Chapter 96—Presidential Primary Matching

Payment Account

§9032. Definitions

(2) The term ‘“‘candidate’’ means an individual

who seeks nomination for election to be President of

the United States. For purposes of this paragraph, an

individual shall be considered to seek nomination for

election if he—

(A) takes the action necessary under the law

of a State to qualify himself for nomination for

election,

3la

(B) receives contributions or incurs qualified

campaign expenses, or

receive contributions or to incur qualified campaign

expenses on his behalf.

The term “‘candidate”’ shall not include any individual

who is not actively conducting campaigns in more than

one State in connection with seeking nomination for

election to be President of the United States.

§9033. Eligibility for payments

(a) Conditions. To be eligible to receive payments under

section 9037, a candidate shall, in writing—

(1) agree to obtain and furnish to the Commission

any evidence it may request of qualified campaign

expenses,

(2) agree to keep and furnish to the Commission

any records, books, and other information it may

request, and

(3) agree to an audit and examination by the

Commission under section 9038 and to pay any amounts

required to be paid under such section.

(b) Expense limitation; declaration of intent; minimum

contributions. To be eligible to receive payments under

section 9037, a candidate shall 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 polit-

ical party for election to the office of President of the

United States,

_ (3) the candidate has received matching contribu-

tions which in the aggregate, exceed $5,000 in contri-

butions 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.

32a

(1) General rule. Except as provided by paragraph

(2), no payment shall be made to any individual under

section 9037—

(A) if such individual ceases to be a candidate

as a result of the operation of the last sentence of

section 9032(2); or

(B) more than 30 days after the date of the

second consecutive primary election in which such

individual receives less than 10 percent of the num-

ber of votes cast for all candidates of the same party

for the same office in such primary election, if such

individual permitted or authorized the appearance

of his name on the ballot, unless such individual

certifies to the Commission that he will not be an

active candidate in the primary involved.

(2) Qualified campaign expenses; payments to Sec-

retary. Any candidate who is ineligible under paragraph

(1) to receive any payments under section 9037 shall be

eligible to continue to receive payments under section

9037 to defray qualified campaign expenses incurred

before the date upon which such candidate becomes

ineligible under paragraph (1).

(3) Calculation of voting percentage. For purpgses

of paragraph (1)(B), if the primary elections involved

are held in more than one State on the same date, a

candidate shall be treated as receiving that percentage

of the votes on such date which he received in the

primary election conducted on such date in which he

received the greatest percentage vote.

(4) Reestablishment of eligibility.

(A) In any case in which an individual is

ineligible to receive payments under section 9037 as

a result of the operation of paragraph (1)(A), the

Commission may subsequently determine that such

individual is a candidate upon a finding that such

individual is actively seeking election to the office

of President of the United States in more than one

State. The Commission shall make such determina-

tion without requiring such individual to reestablish

33a

his eligibility to receive payments under subsection

(a).

(B) Notwithstanding the provisions of para-

graph (1)(b), a candidate whose payments have been

terminated under paragraph (1)(b) may again re-

ceive payments (including amounts he would have

received but for paragraph (1)(b) if he receives 20

percent or more of the total number of votes cast

for candidates of the same party in a primary

election held after the date on which the election

was held which was the basis for terminating pay-

ments to him.

§9034. Entitlement of eligible candidates to payments.

(a) In general. Every candidate who is eligible to receive

payments under section 9033 is entitled to payments under

section 9037 in an amount equal to the amount of each

contribution received by such candidate on or after the

beginning of the calendar year immediately preceding the

calendar year of the presidential election with respect to

which such candidate is seeking nomination, or by his

authorized committees, disregarding any amount of con-

tributions from any person to the extent that the total of

the amounts contributed by such person on or after the

beginning of such preceding calendar year exceeds $250.

For purposes of this subsection and section 9033(b), the

term “‘contribution’”’ means a gift of money made by a

written instrument which identifies the person making the

contribution by full name and mailing address, but does

not include a subscription, loan, advance, or deposit of

money, or anything of value or anything described in

subparagraph (B), (C), or (D) of section 9032(4).

(b) Limitations. The total amount of payments to which

a candidate is entitled under subsection (a) shall not

exceed 50 percent of the expenditure limitation applicable

under section 441a(b)(1)(A) of title 2.

§9038. Examinations and audits; repayments

(a) Examinations and audits. After each matching pay-

34a

ment period, the Commission shall conduct a thorough

examination and audit of the qualified campaign expenses

of every candidate and his authorized committees who

received payments under section 9037.

(b) Repayments.

(1) If the Commission determines that any portion

of the payments made to a candidate from the matching

payment account was in excess of the aggregate amount

of payments to which such candidate was entitled under

section 9034, it shall notify the candidate, and the

candidate shall pay to the Secretary an amount equal to

the amount of excess payments.

(2) If the Commission determines that any amount

of any payment made to a candidate from the matching

payment account was used for any purpose other than—

(A) to defray the qualified campaign expenses

with respect to which such payment was made, or

(B) to repay loans the proceeds of which were

used, or otherwise to restore funds (other than

contributions to defray qualified campaign expenses

which were received and expended)

it shall notify such candidate of the amount so used,

and the candidate shall pay to the Secretary an amount

equal to such amount.

_ (3) Amounts received by a candidate from the

matching payment account may be retained for the

liquidation of all obligations to pay qualified campaign

expenses incurred for a period not exceeding 6 months

after the end of the matching payment period. After all

obligations have been liquidated, that portion of any

unexpended balance remaining in the candidate’s ac-

counts which bears the same ratio to the total unex-

pended balance as the total amount received from the

matching payment account bears to the total of all

deposits made into the candidate’s accounts shall be

promptly repaid to the matching payment account.

Commission under subsection (b) with respect to a match-

35a

ing payment period more than 3 years after the end of

such period.

(d) Deposit of repayments. All payments received by the

Secretary under subsection (b) shall be deposited by him

in the matching payment account.

MICHIGAN COMPILED LAWS

§168.614 List of potential presidential candidates; time of

' issuance; notification of candidate.

Sec. 614. (1) By 4 p.m. of the first Friday in March in

each presidential election year, the secretary of state shall

issue a list of the individuals generally advocated by the

national news media to be potential presidential candi-

dates for each party’s nomination by the political parties

for which a presidential primary election will be held

pursuant to section 613.

(2) By 4 p.m. of the Tuesday following the first Friday

in March in each presidential election year, the state

central committee of each political party for which a

presidential primary election will be held pursuant to

section 613 shall file with the secretary of state a list of

individuals whom they consider to be potential presiden-

tial candidates for their party.

(3) Forthwith after the issuance of his list and then

again after receipt of any names from the various state

central committees, the secretary of state shall notify each

potential presidential candidate so listed of the provisions

of this act relating to the presidential primary election.

§168.615 Printing names of presidential candidates on bal-

lot; affidavit; withdrawal of name; rotation of names;

space to vote “uncommitted”; nominating petitions of

individuals not listed as candidates.

Sec. 615. (1) The secretary of state shall cause to be

printed on the ballots for the presidential primary under

the appropriate political party the name of each presiden-

tial candidate who has provided the secretary of state with

an affidavit indicating his party preference and willingness

36a

to have his name printed on the ballot no later than 4 p.m.

of the third Friday in March in each presidential election

year. A presidential candidate may withdraw his name

from the ballot by notifying the secretary of state no later

than 4 p.m. of the third Friday in March in each presiden-

tial year. The names of the presidential candidates shall be

rotated on the ballot. The ballot shall contain a space for

the elector to vote ‘“‘uncommitted”’.

(2) An individual who is not listed as a potential

presidential candidate in accordance with section 614 shall

have his name printed on the ballot and for the purposes

of this act, shall be considered in the same manner as all

presidential candidates listed, upon presentation to the

. secretary of state, no later than 4 p.m. of the third Friday

in March, nominating petitions for that individual along

with an affidavit signed by the individual indicating his

party preference and willingness to have his name printed

on the ballot. The nominating petitions shall contain the

valid signatures of registered qualified electors whose

number is at least equal to ', of 1% of the total vote cast

in the state at the previous presidential election for the

presidential candidate of the political party of the individ-

ual. Signatures shall be obtained starting on January |

except that in 1972, signatures shall be obtained starting

on the effective date of this section. The petitions shall

conform to the requirements of this act.

OHIO REVISED CODE ANNOTATED

§3515.011 Recount when winning margin less than one-half

per cent of total vote

If the number of votes cast in any county or municipal

election for the declared winning nominee, candidate,

question, or issue does not exceed the number of votes

cast for the declared defeated nominee, candidate, ques-

tion, or issue by a margin of one-half of one per cent or

more of the total vote, and if a recount is requested by

those persons authorized to request a recount under

section 3515.01 of the Revised Code, the appropriate

37a

board of elections shall order a recount which shall be

conducted as provided in sections 3515.04 and 3515.05 of

the Revised Code.

If the number of votes cast in any district election for

the declared winning nominee, candidate, question, or

issue does not exceed the number of votes cast for the

declared defeated nominee, candidate, question, or issue

by a margin of one-half of one per cent of the total vote,

and if a recount if requested by those persons authorized

to request a recount under section 3515.01 of the Revised

Code, the secretary of state shall order a recount which

shall be conducted as provided in sections 3515.04 and

3515.05 of the Revised Code.

If the number of votes cast in any statewide election for

the declared winning nominee, candidate, question, or

issue does not exceed the number of votes cast for the

declared defeated nominee, candidate, question, or issue

by a margin of one-half of one per cent of the total vote,

and if a recount if requested by those persons authorized

to request a recount under section 3515.01 of the Revised

Code, the secretary of state shall order a recount which

shall be conducted as provided in sections 3515.04 and

3515.05 of the Revised Code.

38a

Appendix E

{logo of the Federal Election Commission]

April 1, 1980

Certified Mail

Return Receipt Requested

Lyndon LaRouche

Box 976, Radio City Station

New York, New York 10019

Dear Mr. LaRouche:

The Commission had determined pursuant to 26 U.S.C.

§ 9033.4(b) that based on the results of the Democratic

Presidential primary elections in New Hampshire on Feb-

ruary 26, 1980, and Illinois on March 18, 1980, wherein

you received less than 10% of the votes cast for candidates’

for the Democratic nomination, your date of ineligibility

for purposes of the Presidential Primary Matching Pay-

ment Account Act (26 U.S.C. § 9031 et seg.) is April 17,

1980, in that these two elections were consecutive primary

elections as defined by 26 U.S.C. § 9032(7) in which your

name appeared on the ballot and for which the Commis-

' sion received no timely certification by you indicating

inactive candidate status with regard to that election.

Thus, your principal campaign committee, the Citizens

for LaRouche will not receive matching fund payments

for qualified campaign expenditures incurred or con-

tracted for after April 17, 1980, unless you reestablish

eligibility under the procedures of 26 U.S.C. § 9033(c)(2)

and 11 C.F.R. §§ 9034.1(b) and 9034.5.

11 C.F.R. § 9034.5 requires that you submit a statement

of net outstanding campaign obligations, if any, as of the

close of business on April 17, 1980, within 15 days of your

date of ineligibility. Please refer to pages 33-42 of the

Financial Control and Compliance Manual for Presiden-

39a

tial Candidates Receiving Public Financing for a detailed

discussion concerning the termination of your campaign.

If your campaign has cash and receivables in excess of

outstanding debts as of April 17, 1980, no further certifi-

cations of matching funds will be made, and the excess

will be used to determine the amount repayable to the

United States Treasury. The amount of repayment will be

determined pursuant to 26 U.S.C. § 9038(b)(3).

If you choose to do so, you have the opportunity to

respond to the Commission’s determination of your date

of ineligibility. Such response setting forth the factual and

legal basis of your contentions, must be received by the

Commission within ten (10) days of your receipt of this

letter. In addition, you may be able to reestablish your

eligibility to receive matching funds payments for quali-

fied campaign expenditures incurred after April 17, 1980,

if you receive at least 20% of the total number of votes

cast for Democratic candidates in a presidential primary

election held after March 18, 1980. See 26 U.S.C. §

9033(c)(4)(B) and 11 C.F.R. § 9033.7(b).

If you have any questions concerning this matter, please

call Marsha Gentner, an attorney in the Office of General

Counsel, at (202) 523-4057.

- Sincerely,

/s/Robert O. Tiernan

ROBERT O. TIERNAN

Chairman

cc: Felice M. Gelman, Treasurer

Citizens for LaRouche

Appendix F

[Mailgram Service Center

Middletown, VA.]

4-067357S 142002 05/21/80 ICS IPMMTZZ CSP NYAB

1 2129773113 MGM TDMT NEW YORK NY 05-21

0521P EST

Citizens For LaR ouche

304 West 58 St

New York NY 10019

This mailgram is a confirmation copy of the following

message:

2129773113 TDMT NEW YORK NY 360 05-21 0521P

EST

PMS

Max Friedersdorf

_ Chairman

Federal Election Commission

RPT DLY MGM, LR

1325 K St Northwest

Washington DC 20463

This is to inform you that Citizens for LaRouche

believes that Lyndon H. LaRouche, as a result of the

Michigan Democratic Primary held May 20, 1980, has

reestablished his eligibility for Presidential Primary Cam-

paign Matching Funds. Unofficial returns obtained from

the office secretary of State Division of Elections show

that 69,278 votes were casted in the Democratic Primary,

of those, 35,757 were casted in the uncommitted column

therefore 33,521 were casted for named candidates. Of

these Mr. LaRouche received 8,793. Therefore, Mr. La-

Rouche received 26.2 percent “‘of the total number of

votes casted for candidates of the same party in a primary

election...” As stated in Section 9033 of the Federal

4la

Election Campaign Act under reestablishment of eligibil-

ity, Mr. LaRouche received more than 20 percent of that

vote, reestablishing his eligibility. Further, Citizens for

LaRouche believes that the 22,904 votes casted for candi-

date Gerry Brown also should not be included in calculat-

ing reeligibility. Governor Brown is no longer a candidate

under the Federal Election Campaign Act, Section 9022(2)

“The term ‘candidate’ shall not include any individual

who is not actively conducting campaigns in more than |

state in connection with seeking nomination for election

to the President of the United States.’ Governor Brown is

not actively conducting a campaign in any state. In that

case, Mr. LaRouche received 8,793 votes of a total for

82.8 percent of the total votes casted for all candidates.

In consideration of the above, believing that the official

certification of the election will be available from the

Michigan State Board of Canvassers by the beginning of

next week, we request that the Commission pass on its

agenda for the May 29 meeting of the Federal Election

Commission the reestablishment of Mr. LaRouche’s

matching funds eligibility. Further, we request that in

your consideration of the planned post-primary audit of

the Citizens for LaRouche, scheduled for consideration on

your May 22 agenda, that you take the reestablishment of

Mr. LaRouche’s eligibility into consideration, in addition

to the other matters I have raised in previous correspond-

ence, and postpone any audit until a decision has been

reached on eligibility.

/s/Felice Gelman

FELICE GELMAN

Citizens for LaRouche

304 West 58 St

New York NY 10019

17:21EST

MGMCOMP MGM

42a

[Mailgram Service Center

Middletown, Va.]

4-065842S 148002 05/27/80 UCS IPMMTZZ CSP NYAB

1 2129773113 MGMTDMT NEW YORK NY 05-27

0417P EST

Felice M. Gelman Treasurer

Citizens for LaRouche

304 West 58th St 5th Floor

New York NY 10019

This mailgram is a confirmation copy of the following

message:

2129773113 NL TDMT NEW YORK NY 594 05-27

0417P EST

PMS

Max Friedersdorf

Chairman

Federal Election Commission

RPT DLY MGM, DLR

1325 K St

Washington DC

I have learned that the Michigan Board of Canvassers

will not certify the results of the Michigan Presidential

Preference Primary until June 2. Citizens for LaRouche

had requested that the Federal Election Commission place

the recertification of the matching funds eligibility of

Lyndon H. LaRouche, Jr. on its agenda for May 29. In

view of the fact that official certification of the results of

the election will not be available until after that meeting

Citizens for LaRouche hereby request the Commission

consider at its May 29 meeting a resolution which would

recertify Mr. LaRouche’s matching funds eligibility pend-

ing submission to the General Counsel’s office the official

certified results of the Michigan Primary Election. I am

43a

making this request because should the Commission not

consider recertification until the final official results of the

Michigan Primary are available Citizens for LaRouche

will be delayed by 2 weeks in making a matching funds

submission. This delay may substantially affect Mr. La-

Rouche’s ability to campaign in the final June 3 round of

Presidential Primaries by denying him Federal funds.

Therefore, I request that Commission proceed with a

resolution of recertification pending submission of the

official results. We do not expect any significant departure

from the unofficial results made available to us from the

Office of the Michigan Secretary of State; Uncommitted-

35,757, Brown-22,904, LaRouche-8,783, Write-ins-1,824.

Section 9033 of the Federal Election Campaign Act speci-

fies that a candidate will re-establish his eligibility by

winning 20 percent “‘of the total votes cast for candidates

of the same party in a Primary election.” 33,521 votes

were cast for Democratic candidates in the Michigan

Primary election. Of those Mr. LaRouche won 26.2 per-

cent. Citizens for LaRouche believe also that Jerry Brown

no longer qualifies under Section 9022 (2) of the FECA as

a candidate since he is not actively campaigning in more

than one state. If Mr. Brown’s votes are not counted

among those votes cast for candidates Mr. LaRouche won

82.8 percent of the vote. Thank you for your considera-

tion. I would also like to request that the Commission

consider as an agenda item the request Citizens for

LaRouche made to Robert Costa of the Audit Division

for a report of the findings of the threshold audit before

commencing a post primary audit. Citizens for LaRouche

requested the Audit Division make its findings available

so that the Committee could implement its suggestions for

the remainder of the campaign. Five weeks have passed

since the audit was completed and not one suggestion has

been received from the Audit Division. This is particularly

disturbing because the Audit team in its exit conference

raised several questions concerning our financial practices

which they and we agreed reflect unresolved Commission

policies. Without resolution on those issues we are unable

44a

to alter our financial and record keeping practices to

insure compliance in all respects with the Act. Obviously

that is a situation we would like to avoid. Therefore we

request that the Commissioners themselves take up con-

sideration of the matter and postpone any further audit

until report resolving outstanding matters has been issued.

Further, if, as I believe is the case, Mr. LaRouche has

requalified for Matching Funds eligibility, I believe that a

second audit—commencing as it does in the midst of our

campaign and requiring the commitment of significant

campaign resources for its successful completion—is pre-

mature. For this reason, I also request the Commission

consider postponing the second audit at least until the

question of recertification of Mr. LaRouche has been

resolved.

Sincerely,

/s/Felice Gelman

FELICE M. GELMAN

Treasurer

Citizens for LaRouche

304 West 58 St

5th Floor

New York NY 10019

16:17 EST

MGMCOMP MGM

45a

Appendix G

[logo of the Michigan Secretary of State]

June 9, 1980

TO WHOM IT MAY CONCERN:

The attached is a true copy of the results of the

Presidential Primary held in

the State of Michigan on

May 20, 1980 as certified by the Board of State Canvassers

on June 2, 1980, to the Secretary of State.

Subscribed and Sworn

before me on

June 9, 1980

/s/Sandra Sperry

/s/George H. Herstek, Jr.

GEORGE H. HERSTEK,

JR.

Director, Elections Division

Michigan Department of

State

Notary Public .

SANDRA SPERRY

Notary Public, Clinton Co.,

Mich.

My Comm. Expires March 13,

1984

Acting in Ingham Co.

46a

[OFFICIAL]

POLL BOOK

1980 Primary Election

Counties

Alcona 1016 Gratiot 2419 Missaukee 838

Alger 719 Hillsdale 3093 Monroe 10346

Allegan 5055 Houghton 2238 Montcalm 2866

Alpena 2140 Huron 3140 Montmorency 1524

Antrim 2199 Ingham 21074 Muskegon 8886

Arenoc 1122 Ionia 2898 Newaygo 2521

Baraga 560 lIosco 2087 Oakland 93297

Barry 2321 ~—‘iIron 1162 Oceana 1680

Bay 1606 Isabella 3838 Ogemaw 1275

Benzle 1170 Jackson 8948 Ontonagon 956

Berrien 9516 Kalamazoo 10471 Osceola 1496

Branch 2148 Kalkaska 888 Oscoda 709

Calhoun 7001 Kent 29070 Otsego 1114

Cass 2489 Keweenaw 326 Ottawa 12801

Charlevale 11394 Lake 811 Presquelsle 1311

Cheboygan 1808 Lapeer 4306 Roscommon 1878

Chippewa 273 Leelanau . 2073 Sagine® 11801

Clara 1819 Lenawee 5513 St. Clair 11797

Clinton 6045 Livingston 7516 St. Joseph 2372

Crawford 713 - Luce 467 Sanilac 4343

Delta 1695 Mackinac 1296 Schoolcraft 456

Dickinson 1669 Macomb 51462 Shiawassee 5386

Eaton 6938 Manicine 1581 Tuscola 3306

Emmet 1843 Marquette 7137 Van Buren 4231

_Genessee 57886 Mason 2145 Washtenaw 19422

Gladwin 1558 Mecosia 1789 Wayne 174366

Gogebic 1596 Menominee 1673 Wexford 2755

Gd. Traverse 3477 Midland 11501 TOTALS 707357

[true copy /s/ George H. Herstek, Jr.]

47a

PRESIDENTIAL PRIMARY ELECTION—MAY 20, 1980

Counties wane pane — he TOTAL

Alcona 31 26 41 3 101

Alger 40 10 69 31 150

Allegan 116 62 110 4 292

Alpena 82 35 52 15 184

Antrim 68 28 85 30 211

Arenac 23 14 39 12 93

Baraga 27 13 20 9 69

Barry 56 26 60 7 149

Bay 267 122 265 93 747

Benzie 26 13 42 28 107

Berrlan 494 223 468 62 1247

Branch 44 23 77 17 161

Calhoun 239 131 203 23 596

Cass 133 61 142 38 374

Charlevoix 28 14 46 13 101

Cheboygan 68 37 99 33 239

Chippewa 97 28 108 40 273

Clare 52 16 70 8 146

Clinton 210 53 287 21 571

Crawford 23 2 24 0 49

Delta 78 31 62 23 214

Dickinson 86 49 81 32 218

Eaton 136 53 182 52 423

Emmet 29 16 75 2 122

Genesee 2551 834 4705 74 8364

Gladwin 57 28 79 31 197

Gogebic : 170 49 148 - 48 415

Grand Trav. 76 21 44 13 154

Gratiot 40 12 41 36 129

Hillsdale 78 20 63 16 177

Houghton 95 31 77 17 220

Huron 108 46 68 0 222

Ingham 325 94 570 66 1055

Ionia 93 44 54 14 205

losca 58 23 72 55 208

Iron 60 31 103 46 240

Isabella 83 me 10 268

Jackson 236 80 202 41 559

Kalamazoo 263 91 207 52 613

Kalkaska 31 10 36 40 117

Kent 439 166 804 61 1470

Keweenaw 12 l 12 17 42

John George Benjamin Ronald Harold

Anderson Bush Fernandez Reagan Stassen Uncommitted Scattering

REP REP REP REP REP REP REP TOTAL

2 475 7 336 7 17 l 915

65 263 0 188 l 15 | 533

374 2168 11 2035 24 66 5 4683

167 1164 6 502 11 31 0 1881

203 1004 7 591 16 58 l 1860

47 525 l 382 4 22 l 987

37 265 2 166 2 6 0 478

176 1121 11 714 13 35 l 2071

444 3488 40 1755 34 94 4 5857

100 506 2 328 l 20 l 958

777 3173 57 4032 36 193 l 8269

185 847 10 818 2 49 2 1913

630 3774 16 1881 20 83 l 6405

212 794 6 983 11 28 0 2034

164 693 6 382 6 | 42 Be. 1293

149 749 6 500 13 33 0 1450

137 1054 3 616 8 22 6 1842

124 755 11 631 2 39 0 1562

415 3022 28 1737 31 145 2 5380

42 357 0 216 l 11 0 627

101 888 5 465 11 11 0 1481

101 752 15 =476 6 10 2 1360

562 3694 52 1750 24 123 5 6210

180 931 2 464 2 40 2 1621

3451 23978 146 =:12813 101 951 ‘13. 41455

76 723 3 519 12 26 2 1361

98 356 12 S11 4 25 0 1006

286 2050 12 940 11 23 l 3323

193 1170 50 737 22 51 3 2228

168 1290 9 1157 15 58 4 2701

160 1260 | 505 3 29 l 1969

213 1533 26 1113 14 39 0 2938

2608 12038 70 4442 46 274 16 19494

231 1567 9 783 14 28 5 2637

108 928 6 703 3 35 2 1785

87 440 3 319 l 20 l 871

343 1655 18 1212 14 60 2 3304

488 5177 27 2578 24 87 6 8389

1183 5162 74 2858 57 100 6 9440

50 345 4 304 4 15 | 723

2882 16222 64 6668 70 414 8 26328

15 157 l 86 2 4 0 265

49a

PRESIDENTIAL PRIMARY ELECTION—MAY 20, 1980

Edmund Lyndon

Brown LaPouche

de. Jr. Uncommitted Scattering

Counties DEM DEM DEM DEM TOTAL

Lake 35 19 63 14 131

Lapeer 82 35 117 4 238

Leelanau 77 16 49 15 157

Lenawee 195 68 138 6 407

Livingston 123 67 170 30 390

Luce 14 5 12 10 41

Mackinac 44 14 60 27 145

Macomb 1843 820 2430 389 5482

Manistee 63 21 71 25 180

Marquette 353 113 446 53 965

Mason 56 19 107 9 191

Mecosia 46 35 24 9 114

Menominee 101 40 100 56 297

Midland 277 108 745 31 1161

Missaukee 14 5 30 3 52

Monroe 458 183 475 59 1175

Montcalm 118 49 65 6 238

Montmorency 65 24 90 0 179

Muskegon 378 120 367 28 893

Newaygo 61 60 86 45 252

Oakland 1676 601 2726 539 5542

Oceana 48 28 46 12 134

Ogemow 59 19 77 38 193

Ontonagon 68 18 64 37 187

Osceola 48 14 53 10 125

Oscoda 35 19 24 l 79

Otsego 43 16 35 0 94

Ottawa 240 106 191 30 567

Presque Isle 87 15 113 12 227

Roscommon 69 29 73 12 183

Saginaw 244 134 428 97 903

St. Clair 271 121 373 46 811

St. Joseph 66 20 75 23 184

Sanilac 83 37 84 28 232

Schoolcraft | 30 10 17 18 77

Shlawassee 226 85 161 26 498

Tuscola 81 44 101 13 240

Van Buren 130 63 123 33 349

Washtenaw 283 111 344 95 833

"Wayne 7497 2908 15126 6895 32126

Wexford 100 26 171 31 328

TOTALS 23043 8948 36385 10048 78424

John George Benjamin Ronald Harold

Anderson Rush Fernandez Reagan Stassen Uncommitted Scattering

REP REP REP REP REP REP REP TOTAL

54 329 l 220 ae 21 0 628

209 2270 Il 1293 4 59 2 3848

211 1100 11 267 6 19 2 1916

352 2764 22 1747 30 60 0 4975

447 3766 31 2248 14 64 5 6825

53 216 0 130 4 7 0 410

95 534 3 346 6 29 2 1015

2957 25080 85 15353 123 537 56 = 44171

148 718 12 485 10 27 l 1401

563 3117 16 1407 25 82 4 5214

172 930 8 708 2 36 4 1860

136 401 7 558 5 10 0 1617

115 562 10 623 14 20 l 1345

1124 5969 84 2797 31 327 8 10340

63 384 l 304 4 30 0 786

668 3908 28 2602 31 122 5 7364

225 1372 18 809 23 40 2 2487

119 601 7 460 2 35 0 1224

686 4194 39 2943 36 97 4 7773

171 1159 13 804 9 43 l 2200

6464 54564 284 24970 241 1175 57 87755

138 728 5 526 6 16 l 1420

74 563 7 367 5 31 3 1050

72 305 7 322 6 8 l 721

121 727 7 469 py 35 7 1371

38 269 2 367 2 7 l 586

76 555 9 - 306 9 23 0 978

857 6560 33 4135 25 116 5 11731

82 500 2 358 4 31 l 978

126 827 6 646 5 30 0 1640

729 6214 89 3167 18 159 8 10384

646 5743 48 3496 29 179 3 10144

198 914 10 913 9 72 l 2117

0 2084 11 1692 4 238 4 4033

33 197 l 140 l 6 l 377

370 2691 32 1441 17 58 2 4611

210 1665 15 1084 14 38 2 3028

290 1495 20 1355 31 72 8 3269

2043 ~=11969 4\ 3815 33 128 7 18038

9508 73701 354 42347 381 2698 278 129267

226 1142 6 716 8 66 2 2166

48947 341998 2248 189184 1938 10265 596 595176

PRESIDENTIAL PRIMARY ELECTION — MAY 20, 1980

Hdmund

Brows

uy, a, Uncommitted

Counties DEM DEM DEM DEM TOTA!

lat

Wayne 1565 548 3437 1965 1515

TOTAL 1565 548 3497 1965 1515

2nd

Monroe 437 177 459 58 113

Washtenaw 256 95 308 93 782

Wayne 153 55 269 9 516

TOTAL 846 327 1036 190 2399

ind

Barry 42 25 §2 7 126

Calhoun 235 126 197 23 58I

Clinton 74 16 124 19 233

Eaton 128 5) 178 48 407

Hillsdale 4 2 2 0 x

lonia 0 0 0 3 3

Jackson 4 7 5 0 16

Kalamazoo 263 9| 207 52 613

Kent 0 | 0 0 |

St, Joseph | 0 0 0 |

TOYAL 751 321 765 182 1989

4th

Berrian 404 223 468 62 1247

Branch Ad 23 77 17 161

Calhoun 4 5 6 0 15

Cass 133 61 142 38 474

Hillsdale 74 18 61 16 169

Lenawee 195 68 138 6 407

St. Joseph 65 20 75 23 183

Van Buren 130 63 123 33 449

TOTAL 1139 481 1090 195 2905

Sth

Barry 14 | 8 0 23

Clinton 8 0 3 0 11

Eaton 8 0 4 4 16

lonia 93 44 54 11 202

Kent 439 165 804 61 1469

Montcalm 4 5 2 0 |

TOTAL 566 215 875 76 1732

Jona Georg Renjamin Howald Harold

Anderwon tush bermandes —_ Masson = Uncommitted

ner ner ner k ner ner ner TOTAL

823 4297 53 1733 51 340 17 7314

823 4297 53 1733 5| 340 17 7314

626 3687 28 2456 3 118 5 6951

1863 10269 0 3083 26 104 8 15383

939 8951 AR 4403 27 155 12 14820

3428 = 22907 91 9942 KA 377 25 36854

150 942 iI 623 6 0 | 1703

621 3717 15 1839 18 80 | 6281

147 1078 4 505 4 77 2 1821

557 3622 §2 1709 20 121 5 6086

6 86 0 56 | | 0 150

3 7 0 22 0 2 3 67

15 182 0 123 0 12 0 332

1183 5162 74 2858 57 100 6 9490

6 45 0 22 0 | 0 74

| 21 0 24 0 | 0 47

2689 14892 156 7771 110 425 18 =26061

777 3173 57 4032 46 193 l 8269

185 847 10 818 2 49 2 1913

9 57 | 52 2 3 0 124

212 794 6 983 | 28 0 2044

162 1204 9 1101 14 57 4 2557

352 2764 22 1747 30 60 0 4975

197 893 10 889 9 71 l 2070

290 1493 20 1355 31 72 8 3269

26 179 6 91 7 5 0 308

15 156 11 158 | 4 0 345

5 72 0 4 4 2 0 124

228 1530 9 764 14 26 2 2570

2876 = 16177 64 6646 70 413 8 26254

i 138 3 89 5 4 0 249

3161 18252 86 7786 101 454 10 29850

PRESIDENTIAL PRIMARY ELECTION--MAY 20, 1980

tdmund

Brows

y, , Uncommitted

Counties DEM DEM DEM DEM TOTAL

6th

Clinton 24 7 4| | 73

Ingham 32) 93 564 66 1044

Jackson 232 3 197 4 54)

Livingston 78 45 102 16 241

Washtenaw 27 16 6 2 81

TOTAL 682 2 940 126 1982

7th

Genesee 2551 814 4905 74 8364

Saginaw 25 16 27 18 86

Shiawassee 19 x 14 5 AN

Tuscola 2 3 13 0 18

TOTAL 2597 261 4959 97 8514

8th

Arenac 5 2 6 2 15

Bay 261 ith 263 RA 719

Huron 108 46 68 6 222

Lapeer 82 45 117 4 238

Saginaw 190 92 351 77 710

8th cont,

Sanilac 69 27 69 27 192

Tuscola 80 4| KK 13 222

TOTAL 795 454 962 207 2318

9th

Allegan 116 62 110 4 292

Benzle 4 3 0 4 1

Lake 35 19 63 14 131

Leelanau 77 16 49 15 157

Manistee 63 21 71 25 180

Mason 56 19 107 9 19]

Muskegon 378 120 367 28 893

Newaygo 61 60 86 45 252

Oceana 48 28 46 12 134

Ottawa 240 106 19] 30 567

Wexford | | 5 0 7

TOTAL 1079 455 1095 186 2815

Andenon Huoh — Sassen = Uncommitted

ner ner ner ner ner ner ner TOTAL

30 200 3 118 3 6 0 360

2585 =11830 70 4355 46 268 16 =19170

473 4995 27 2455 24 77 6 8057

261 2448 \3 1424 hy 44 4 4202

180 1700 11 m2 7 24 | 2655

3529) =—-21173 124 9084 88 419 27 »=—34444

3451-23978 14612813 101 951 1S 41455

3 377 5 185 | 10 0 611

\4 251 10 153 7 10 0 445

8 80 | 9 0 4 0 132

3506 =. 24686 162 = 13190 109 975 18 42643

7 150 0 94 2 7 0 260

438 3409 40 1709 32 90 4 5722

213 1533 26 1113 4 99 0 2938

209 2270 11 1293 4 59 2 3848

625 5253 80 2591 10 127 8 8696

0 1868 11 1476 3 219 2 3579

202 1585 \4 1045 14 AD) 2- 2896

1694 =: 16068 182 9321 79 577 18 27939

374 2168 11 2035 24 66 5 4683

6 9 0 12 0 0 0 27

54 329 | 220 3 21 0 628

211 1100 11 567 6 19 2 1916

148 718 12 485 10 27 l 1401

172 930 8 708 2 36 4 1856

680 4194 39 2943 36 97 4 7993

171 1159 13 804 9 43 l 2200

138 728 5 526 6 16 | 1420

857 6560 33 4135 25 116 5 11731

5 81 0 54 0 4 0 144

2816 = 17976 133 12489 121 445 23 34003

PRESIDENTIAL PRIMARY ELECTION—MAY 20, 1980

Jr or Uncommitted

Counties DEM DEM DEM DEM TOTAL

10th

Antrim 35 l 29 0 65

Arenac 23 12 33 10 78

Bay 6 11 2 9 28

Benzie 22 10 42 24 98

Clare 52 16 70 8 146

Clinton 104 30 119 | 254

Crawford | 0 l 0 2

Gladwin 59 28 79 31 197

Grand Trav. 76 21 44 13 154

Gratiot 40 12 4] 36 129

Ingham 4 l 6 0 11

Isabella 83 34 14] 10 268

Kalkaska 31 10 36 40 117

Mecosta 46 35 24 7) 114

Midland 277 108 745 31 1161

Missaukee 14 5 36 3 52

Montcalm 114 44 63 6 227

Ogemaw 59 19 77 38 193

Osceola 48 14 53 10 125

Roscommon 69 29 73 12 183

Saginaw 29 26 50 2 107

Shlawassee 207 77 147 21 452

Wexford 99 25 166 31 321

TOTAL 1498 568 2071 345 4482

56a

John George Benjamia Ronald Harold

Anderson Bush Fernandez Reagan Stassen Uncommitted Scattering

REP REP REP REP _ REP REP REP TOTAL

47 195 2 111 8 7 0 370

40 375 6 288 2 15 l 727

6 79 ee 46 2 4 0 137

94 497 2 316 l 20 l 931

124 755 11 631 2 39 0 1562

223 1588 10 956 19 58 0 2854

4 27 0 10 0 l 0 42

76 723 3 517 12 26 2 1361

286 2050 12 940 11 23 l 3323

193 1170 50 739 22 51 3 2228

23 208 0 87 0 6 0 324

343 1655 18 1212 14 60 2 3304

50 345 4 304 4 15 l 723

136 901 7 558 5 10 0 1617

1124 5969 84 2797 ‘| eee” 8 10340

63 384 | 304 4 30 0 786

214 1234 16 720 18 36 2 2240

74 563 7 367 5 31 3 1050

121 727 7 469 5 35 7 1371

126 827 6 646 5 30 0 1640

71 584 4 391 7 20 0 1077

356 2440 22 1288 10 48 2 4166

221 1061 4 662 8 62 2, 2022

4015 24357 278 =14361 195 954 35 44195

57a

PRESIDENTIAL PRIMARY ELECTION—MAY 20, 1980

Uncommitted Scattering

Counties DEM DEM TOTAL

11th

Alcona 31 26 41 3 101

Alger 40 10 69 31 150

Alpena 82 35 52 15 184

Antrim 33 27 56 30 146

Baraga 27 13 20 9 69

Charlevoix 28 14 46 13 101

Cheboygan 68 39 99 33 239

Chippewa 97 28 108 40 273

Crawford 22 2 23 0 47

Delta 98 31 62 23 214

Dickinson 86 49 81 32 248

Emmet 29 16 75 2 122

Gogebic 170 49 148 48 415

Houghton 95 31 77 17 220

losco 58 23 72 55 208

Iron 60 31 103 46 240

Keweenaw 12 l 12 17 42

Luce 14 5 12 10 41

Mackinac 44 14 60 27 145

Marquette 353 113 446 53 965

Menominee 101 40 100 56 297

Montmorency 65 24 90 0 179

Ontonagon 68 18 64 37 187

Oscoda 35 19 24 l 79

Otsego 43 16 35 0 94

Presque Isle 87 15 113 12 227

Schoolcraft 30 10 19 18 77

TOTAL 1876 699 2107 628 5310

12th

Macomb 946 1164 209 2716

Oakland 51 16 126 2 195

St. Clair 271 121 373 46 811

Sanilac 14 10 15 | 40

TOTAL 1282 544 1678 258 3762

58a

Benjamin Ronald =Harold

Anderson Bush Fernandez Reagan Stassen Uncommitted Scattering

REP REP _. REP REP REP REP REP TOTAL

72 475 7 336 7 17 l 915

65 263 0 188 l 15 l 533

167 1164 6 502 11 31 0 1881

156 809 5 480 8 31 l 1490

37 265 2 166 2 6 0 478

164 693 6 382 6 42 0 1293

149 749 6 500 13 33 0 1450

137 1054 3 616 8 22 2 1842

38 330 0 206 l 10 0 585

101 888 5 465 11 11 0 1481

101 752 13 476 6 10 2 1360

180 931 2 464 2 40 2 1621

98 356 12 S11 4 25 0 1006

160 1260 11 505 3 29 l 1967

108 928 6 703 3 a 2 1785

87 440 3 319 l 20 l 871

15 157 l 86 2 4 0 265

53 216 0 130 4 7 0 410

95 534 3 346 6 27 2 1015

563 3117 16 1407 25 82 4 5214

115 562 10 623 14 20 l 1345

119 601 7 460 2 35 0 1224

72 305 7 322 6 8 l 721

38 269 2 267 2 7 I 586

76 555 9 306 9 23 0 978

82 500 2 358 4 31 l 978

33 197 l 140 | 6 l 379

3081 18370 145 11264 162 629 24 33675

1643 13986 54 8238 83 295 11 24310

277 1952 6 995 | 55 2 3298

646 5743 48 3496 29 179 3 10144

0 216 0 216 l 19 2 454

2566 21897 108 12945 124 548 18 38206

59a

PRESIDENTIAL PRIMARY ELECTION—MAY 20, 1980

Edmund Lyndon

Brown LaRouche

Jr. Jr. Uncommitted

Counties DEM DEM DEM DEM TOTAL

13th

Wayne 1266 453 2017 1750 5486

TOTAL 1266 453 2017 1750 5486

14th

Macomb 487 255 552 96 1390

Wayne 872 448 1940 1092. 4352

TOTAL 1359 703 2492 1188 5742

15th

Monroe 21 6 16 l 44

Wayne 1198 397 2267 581 4443

TOTAL 1219 403 2283 582 4487

16th

Wayne 1439 59] 2793 743 5566

TOTAL 1439 591 2793 743 5566

17th

Oakland 218 75 603 220 1116

Wayne 1004 416 2403 725 4548

TOTAL 1222 49] 3006 945 5664

18th

Macomb ». 410 168 714 84 1376

Oakland 546 229 720 140 1635

TOTAL ‘956 397 1434 224 3011

19th

Livingston 45 22 68 14 149

Oakland 861 281 1277 177 2596

TOTAL 906 303 1345 19] 2745

TOTALS 23043 8948 36385 10048 78424

John George Benjamin Ronald Harold

Anderson Bush Fernandez Reagan Stassen Uncommitted Scattering

REP REP REP REP REP REP REP TOTAL

527 2955 48 1464 29 194. 9 5226

527 2955 48 1464 29 194 9 5226

475 3996 11 2612 17 81 24 7216

1638 15367 43 9065 57 445 170 26785

2113 = 19363 54: 11677 74 526. ** "lye 34061

42 221 0 146 0 4 0 413

1850 =—-:14551 49 8724 73 471 1S 25733

1892 14772 49 8870 73 475 IS 26146

2154 =16048 65 9688 87 526 26 = =28594

2154 = 16048 65 9688 87 526 26 28594

1290 9242 23 4455 35 261 6 15310 °

1577-11532 63 7270 57 567 29. = 21095

2867 20774 86 =11723 92 828 35 36405

819 7098 $20 4503 23 161 21 =12645

1717 = 14636 136 §=—. 6324 89 278 26 23206

2536 §=—.21734 156 = 10827 112 439 47 35851

186 1518 18 874 6 20 l 2623

3180 28734 119 =: 13198 106 581 23. 45941

3366 30252 137 = 14072 112 601 24 «48564

48747 341998 2248 189184 1938 10265 596 595176

6la

Appendix H

OFFICIAL BALLOT

[No 7978]

PRESIDENTIAL

PRIMARY ELECTION

Proof Ballot—Benzie County, Michigan

TUESDAY, MAY 20, 1980

erg There are 2 PARTY TICKETS on This

Ballot

1. Select the Party of Your Choice

2. Vote ONLY for the Candidates on THAT Party

Ticket

YOU CANNOT SPLIT YOUR TICKET—If YOU

Vote for Candidates on More Than | Party Ticket—

YOUR BALLOT WILL BE REJECTED

INSTRUCTIONS: Make a cross (X) in the square to the

left of not more than the number of

names for each office as may be indi-

cated under the title of that office.

For the Office of President You May Vote for the

Candidate of Your Choice ov You May Vote “Uncommit-

ted.”

If you desire to vote for a person whose name is not

printed on the ballot, write or place the name of that

person in the blank space provided and place a cross (X)

in the square to the left of the name.

Before a the booth, fold the ballot so that the

face of the ballot is not exposed and so that the

numbered corner is visible.

VOTE ONLY ONE PARTY

62a

[symbol of the

Democratic Democratic

[symbol of the

Republican Republican

Party] Party Party Party]

President of the United | President of the United

States States

Vote For Not More Than One Vote For Not More Than One

C) Edmund G. Brown, Jr.

C) Harold Stassen

C) Lyndon H.

LaRouche, Jr. O) John B. Anderson

OC) Uncommitted C) George Bush

O C) Benjamin Fernandez

QO) Ronald Reagan

C) Uncommitted

Republican

Democratic Delegates to

Delegates to County Convention

County Convention

Vote For Not More Than One

Will Be Elected

August 5, 1980

Primary Elections

OVOJOJOJOJOJOJO|O

Printed by Authority of the County Election Commission.

DO NOT SPLIT YOUR TICKET

63a

Appendix I

[logo of the Federal Election Commission]

PARTIAL TRANSCRIPT OF THE PROCEEDINGS

OF THE

FEDERAL ELECTION COMMISSION

REGULAR MEETING

THURSDAY, MAY 29, 1980

PRESENT: Max L. Friedersdorf, Chairman, presiding

John W. McGarry, Vice Chairman

Joan D. Aikens, Commissioner

Thomas E. Harris, Commissioner

Frank P. Reiche, Commissioner

Special Deputy to the Secretary of the Senate,

Harriet Robnett, representing

Edmund L. Kenshaw

Commissioner Ex Officio

Orlando B. Potter, Staff Director

(a.m. session)

William P. Loughrey, Deputy Staff Director,

representing Orlando B. Potter

(p.m. session)

Charles N. Steele, General Counsel

Marjorie W. Emmons, Secretary

to the Commission

(Executive Session) p

Lena L. Stafford, Recording Secretary

(Open Session)

PARTIAL TRANSCRIPT, OPEN MEETING OF THE FEDERAL

ELECTION COMMISSION MAy 29, 1980 A.M. SESSION

. DISCUSSION OF AGENDA DOCUMENT #80-189, “Lyndon

LaRouche Request for Reestablishment of Eligibility”

GENERAL COUNSEL CHARLES N. STEELE: I would ask

64a

Bob Bogin who has worked on this to present our

memorandum.

Bos Boain: In a telegram from Citizens for LaRouche

Committee, it was requested that the Commission consider

whether or not Lyndon LaRouche has reestablished his

eligibility based on the Michigan contest of May 20th,

1980, wherein he received 8,793 votes. In New Hampshire

and Illinois, Mr. LaRouche received less than 10% of the

vote. The Commission, based on the 10% rule of 9033,

determined that April 17th would be the date of ineligibil-

ity. In order to reestablish his date of eligibility, Mr.

LaRouche needed to receive 20% or more cf the vcte in a

subsequent primary. The statute reads if a candidate

receives 20% or more of the total number of votes cast for

candidates of the same party in the primary election that

he can reestablish his eligibility. This statute was .. . this

enactment, this provision, was a 1976 amendment to the

Primary Marching Fund Act, amending the 1974 statute.

In the legislative history it was, there were many references

to the purposes behind the 10 and 20% rule. The purpose

of the rule was to terminate payments to those candidates

who did not show serious support for his candidacy. And

in order to reestablish that seriousness to be able to

demonstrate that he was subsequently a serious candidate,

he would have to receive 20% of the vote. Senator Taft

talks often of 20% of the vote. We, the General Counsel’s

office, interpret 26 U.S. §9033(c) (4) (B) to be a statement

by Congress that 20% of the vote is those votes cast for all

in the Democratic primary or in the Republican primary

in. the party’s primary. I should give you some background

about the Michigan primary. The Michigan primary was

set by State statute. In December 1979, the Democratic

Michigan party decided not to participate in the Michigan

primary because of a conflict with the Democratic Na-

tional Committee Rules. Michigan had crossover voting.

Based on this conflict they, the Democratic party, decided

to have a caucus preceding this May 20th contest. The

party also requested that the candidates likely to appear

on the ballot May 20th withdraw. And President Carter

65a

and Senator Kennedy did so. The resulting, result, left

Mr. LaRouche, Governor Brown, and a ballot marked

uncommitted on the ballot. In a District Court case

brought by one of the State Senators in Michigan, to rule

that the Democratic Party of Michigan had to participate

in the primary, or in the alternative to have the Secretary

of State of Michigan enforce the Michigan statute which

required him to set rules and requirements about how the

vote on May 20th election was to be allocated in terms of

delegate selection, the District Court ruled that because of

the conflict between the DNC rules prohibiting crossover

voting that as applied to the Democratic party, the

Michigan statute was unconstitutional. Mr, LaRouche

received, as I said, 8,793 votes.

Mr. STEELE: These are still unofficial results, We have

not yet received the official results,

Mr. Boain; Right. The official results will be out June

2nd, we were led to believe. It is the position of the

General Counsel's office that when figuring the 20% rule,

the percentage, you take all the votes cast in the Demo-

cratic primary, and use that as the denominator, and those

votes that any candidate gets as the numerator, and

whatever that percentage is, is what he received in the

primary. This finds ample support in the legislative his-

tory, and its the interpretation the Commission has made

in terms of figuring out percentages for the 10% rule in

New Hampshire and other States. There is also a possibil-

ity that the contest in Michigan isn't even a primary under

the definition, under the Primary Matching Act of Chap-

ter 96. But we believe that just on the grounds alone that

he didn’t receive 20% of the vote, that that is sufficient

reason to, and can stand by itself alone, as a reason for

refusing or denying the reestablishment of eligibility.

Mr. STEELE; In effect, in my mind, it comes down to the

question of whether in the provision, within the 20%

provision, whether you treat votes for such lines as are

specifically put by the State on the ballot in Michigan and

treated as a place to vote, such as uncommitted or write-in

votes or someone like Governor Brown who though no

66a

longer technically a candidate for purposes of obtaining

matching funds, is nonetheless a candidate on the ballot.

So that the question is really whether you count the 20%

as 20% of the votes cast for people who under the

matching funds system are eligible. It seems to us, as Bob

has set forth, that the proper reading of the statute which

is strongly buttressed by the legislative history, is that you

are talking about 20% of the votes cast in that particular

election, that particular election in this case being the

Democratic primary. Accordingly, there is a, there are

two recommendations because the request was not only

that the Commission determine reeligibility, but that

because of that, that the audit be postponed. I am not

entirely sure even if the Commission were to take the

opposite view, that there would be any necessity for

postponing the audit. But our two recommendations are

that there is nothing that Mr, LaRouche has shown in his

telegram of May 21st that reestablishes his eligibility, and

that accordingly, as I say, I'm not sure even if you took

the opposite view, whether you would need to reschedule

the audit. But that under those circumstances, there would

certainly be no reason to reschedule the audit, and you

should proceed with the audit as scheduled. As I say, it

would seem to me that given the guidelines for the audit,

that the audit could proceed even if you were to make the

opposite determination. So if you were to reject recom-

mendation one, that would not necessarily mean that you

should reject recommendation two.

CHAIRMAN F RIEDERSDORF; Commissioner Harris.

COMMISSIONER HARRIS: Isn't this submitted late?

Mr. STEELE: I nee it is, I've never been quite sure, I

mean we got it, the telegram came in, we received it late

Thursday, At the direction of the Chairman's office, we

prepared this memorandum for this meeting. We could

not get it done before midday Friday. But I don’t know

what it means in terms of Commission rules, Is it being

submitted late when there is a specific direction to try and

get it to this agenda? It’s not so stamped. I don’t know

what, ... I'm not quite clear on that.

67a

COMMISSIONER HARRIS; It was submitted late, so it

might require a motion for a late submission, The stamp

on mine would indicate it was circulated late yesterday

afternoon ... received by the Secretary yesterday after-

noon, I think it was submitted late and might require a

motion,

Mr, STEELE; That's correct, as I say, I just didn’t

again...

COMMISSIONER HARRIS; I'm not raising a point for the

purpose of reproaching you, but for the purpose of

inquiring whether it does not require...

MR. STEELE: My concern was that it seems to me, I've

never been quite clear on the Commission's rules where

for some reason such as this certification item which is a

continuing item that the particular document upon.which

the Commission bases it's decision ... I was never clear

that the Commission rules in those circumstances required

a waiver of the late submission, I think what you're saying

is that it does, and that may well be the Commission's

interpretation, I guess I was raising the point because it

does have to mean that the Commission's rules have been

bound to not consider matters on an agenda such as this

if they come in after the date for submission of materials

as this came eighteen hours before the submission but had

it come in Friday afternoon late it would mean that the

Commission rules would prohibit taking it up today. And

it would seem to be that’s the situation not necessarily

here and certainly can waive it at any point. It would seem

to me that it puts the Commission, that the Commission,

by it’s rules is binding itself in a way that I've never been

quite sure why it wanted to do that, but I think that is

consistent with prior interpretations.

CHAIRMAN FRIEDERSDORF; I think it is important that

we consider the matter today, It is very timely because the

audit is supposed to start on, as I understand, on Monday,

the primary is on Tuesday, also the importance of whether

or not the Committee regains it's eligibility I think is very

timely. So, the Chair would entertain a motion to suspend

the rules...

Vice CHAIRMAN Mc Garry:I so move, I agree with

you, Mr. Chairman. I will, accordingly, move that we

suspend the rules for the late consideration of Agenda

Document #80-189,

CHAIRMAN F RIEDERSDORF; All those in favor of Com-

missioner McGarry’s motion will indicate by saying “‘aye”’

... “aye”... opposed. The vote indicates 5-0 in support

of suspending the rules. Commissioners McGarry, Fried-

ersdorf, Aikens, Reiche and Harris voting “‘aye,’’ Com-

missioner Tiernan absent.

CHAIRMAN FRIEDERSDORF; Ken, I don't have the tele-

gram before me, Can the Counsel tell us how long a

postponement the Committee requested on the com-

mencement of the audit?

Bos Boain: Well, I believe that it would not be appro-

priate to do an audit. They didn’t ask for any determinate

date,

CHARLES STEELE; I think the implicit request was that

the audit be postponed until after the primary. But there is

no specific. They just say that the audit scheduled for June

2nd not go forward,

CHAIRMAN FRIEDERSDORF: | think that the Counsel’s

recommendation with regard to the request for reestab-

lishing eligibility is a correct one and I intend to support

that. However, on the request for postponement of the

audit, I think it would be appropriate since the primary is

on Tuesday and we're planning to start the audit on

Monday that could conceivably interfere with the primary

process. I would support the audit starting after the

primary if the majority of Commissioners agree. Commis-

sioner Harris.

COMMISSIONER HARRIS; The request for an audit post-

ponement is only until the question of recertification has

been resolved, The last part of the last paragraph of the

telegram says further, “If, as I believe is the case, Mr.

LaRouche has requalified for matching funds eligibility, I

believe that a second audit commencing as it does in the

midst of our campaign and requiring a commitment of

significant campaign resources for its successful comple-

69a

tion, is premature. For this reason, I also request the

Commission consider postponing the second audit at least

until the question of recertification of Mr. LaRouche has

been resolved.” So presumably, if the question of recerti-

fication was resolved against the LaRouche Committee,

they have not, on the contingency, requested a postpone-

ment.

CHAIRMAN FRIEDERSDORF: If the decision was nega-

tive, they wouldn’t have any problem with the audit

starting on Monday?

COMMISSIONER HARRIS: That’s the way I read it.

CHAIRMAN FRIEDERSDORF: Commissioner Reiche.

COMMISSIONER REICHE: Mr. Chairman, I think this is

also tied in with the request which they have made for a

report of the findings of the threshold audit, because it’s

referred to at bottom of the second page of this telegram,

so I think it is linked with that as well.

CHAIRMAN FRIEDERSDORF: I think that matter may be

considered in Executive Session.

COMMISSIONER REICHE: Yes, correct. But I’m just say-

ing they make reference to it.

CHAIRMAN F RIEDERSDORF: Yes.

COMMISSIONER REICHE: And that’s why I just wanted

to make note for the record that it is linked in their mind

with their other request.

CHAIRMAN FRIEDERSDORF: Any further comment by

the Commissioners? If not . . . Commissioner Aikens.

COMMISSIONER AIKENS: May I ask just one question?

On the court case, did the Attorney General in Michigan

rule prior to the court case, Bob, do you know, that the

election was not the primary?

RoBERT BOGIN, OFFICE OF GENERAL COUNSEL: He

ruled by not acting. He agreed that the party didn’t have

to comply with Michigan law and he basically didn’t

defend. And he was sued by a State Senator against the

Secretary of State asking him to enforce them.

COMMISSIONER A IKENS: I see.

CHARLES STEELE: He made the determination that he

would not do as the Michigan statute seems to say that he

70a

should, which is to set rules for delegate, a portion of the

delegates and so forth. The District Court basically upheld

that on the basis of prior Supreme Court rulings that the

setting of delegates is an internal associational right of the

party itself and the suit was brought to mandamus him

and to command him to carry that out, that statute, and

he said that he did not think he could, and the Court

upheld that.

CHAIRMAN FRIEDERSDORF: Commissioner Reiche.

COMMISSIONER REICHE: Am I reading the Chairman

correctly in terms of the commencement of the audit along

these lines. Namely that if that commencement were

delayed until perhaps sometime toward the end of next

week after the June 3rd primaries are completed, that you

would then support the commencement of it at that stage?

CHAIRMAN FRIEDERSDORF: That’s what I said previ-

ously but Commissioner Harris read that telegram which

I don’t have a copy of here before me, but I believe that he

correctly interpreted that if the Commission rules nega-

tively on the reestablishment of eligibility, 1 » commence-

ment of the audit is not, they are not objecting to the

commencement of the audit at the time it is scheduled,

which is Monday as I understand it.

COMMISSIONER REICHE; I just didn’t know whether his

observation changed your opinion.

CHAIRMAN FRIEDERSDORF: Yes it did.

COMMISSIONER REICHE: Yes, okay. If that be the case

and if a motion would be appropriate Mr. Chairman,

CHAIRMAN F RIEDERSDORF: It would be.

COMMISSIONER REICHE:I would move that we approve

the recommendation of the Office of General Counsel and

find that Mr. LaRouche’s certification, or his eligibility

rather, for public funds has not been reestablished and

further that we direct that the audit be commenced on

Monday, June 2nd.

CHAIRMAN FRIEDERSDORF: Commissioner Harris.

COMMISSIONER HARRIS: This memorandum doesn’t go

into all of the items that I would like to be informed on. It

rests primarily on the interpretation of Section 9033 which

Tla

seems to me a doubtful matter. I would like fuller devel-

opment on the matter of the caucuses which were, in fact,

held out there by the Dernocratic Party of Michigan. As

you say, in late ’79, the Democratic Party concluded that

because of a conflict with the Democratic National Com-

mittee Rules, that instead of conducting the sort of

primary provided for in Michigan law, it would select its

delegates through a caucus. Well, if they in fact I believe

went ahead and had such a caucus or caucuses they did

select the delegates, what votes did LaRouche get there? It

seems to me the memo should set out those developments,

what happened at the caucuses, and what votes LaRouchc

got. The proposition that this May election was not a

primary within the definition in the statute seems a whole

lot clearer to me than the question of the interpretation of

9033. That is not developed in this memorandum because

of your primary reliance on your interpretation of 9033. I

would like to ask that this go over until the end of the

meeting, that in the meantime we be supplied with a

memo setting out the facts about these Michigan caucuses

and also, a copy of the Decision of the District Court in

Ferency v. Austin.

Mr. STEELE: To deal with those, I apologize for not

sending around the District Court Opinion. I had meant

to direct that it would so be done and it seemed to me that

the Commission should have it. It has large amount of

background with regard to the ... I don’t think it gives

the information that you are requesting about what the

results of the caucuses were, because that was not really

before the District Court, but I do apologize for not

getting that Opinion around. Again, we were working on

fast time schedules and so forth. One of the problems is

that again, we were working to try and get this up to the

Commission for this agenda. One of the problems with

trying to find out is again, that what we can find out is

basically unofficial through telephone calls and find out

some materials about the caucus and its results. I would

not be able to state now, and I don’t think it does state in

the District Court Opinion, what the results of the caucus

72a

were. We put at the end of the memorandum, a second, a

last paragraph there, that I think at least touches on the

issue that you raise with regard to whether or not this was

an election and we could amplify it. Again, we have had

some discussions in our Office and some differences back

and forth about it. Part of the problem is that we are not

entirely sure what happened out there and you really do

have a very unique set of circumstances here. Of course,

basically, in our reading and I think the Commission has

accepted this earlier, with regard to the 10% and 20% Rule

that the legislative history is quite clear that in doing that

that you are not contemplating caucuses. The passage of

the 1976 Amendments was not intended to use the results

in a caucus for purposes of the 10% or 20% Rule. But the

10% or the 20% Rule was specifically directed at balloting

situations where you have specific number of votes cast.

So that the question, we did not deal with the questions,

of whether or not the caucuses here were an election

because though they may be an election within the overall

meaning of the statute, it seems to us clear, and I think the

Commission dealt with that earlier in January, that the

caucuses are not to be considered. And I think the

legislative history is pretty clear on that, for purposes of

the 10% or 20% Rule. There is the other question that we

raised there of whether , this is, given the circumstances,

‘of whether this is a precedent presidential primary election

within the meaning of the statute. Again, you have a

unique set of circumstances here, and it does not seem to

be something that the District Court Opinion or the

earlier Supreme Court precedents deal with. In other

words, you have here a situation where several of the

contenders have withdrawn, and, the party has indicated

that it will not participate in the balloting as a method for

delegate selection. None of that would seem to me to say

necessarily that the State could not conduct a presidential

preference primary separate from the state. In other

words, that the Ferency case and its predecessor, Cousins

v. Wigoda in the Supreme Court seem to go to the fact

that the State cannot dictate how a party apportions its

73a

delegates but does not say that the State cannot hold a

presidential primary election, a preference election, for the

candidates and the party. And indeed, through the States

vary, there are those States which have a system whereby

the Secretary of State can put you on the ballot and you

cannot get off. So that in at least some instances there is

that situation. That, accordingly, at least in my feeling,

makes it a very difficult, a question with a lot of consider-

ations which we really didn’t have time, I thought, to

canvass fully on the question of whether or not under the

statute and under the 20% Rule, this necessarily should be

considered a primary. It seems to us that given these

circumstances where you have an election scheduled as a

delegate selection election, then the party refuses to partic-

ipate and leading candidates withdraw, you have an

opinion of the District Court indicating that as a delegate

selection primary that it cannot be used for that, at you

certainly have at least as a possible alternate basis for your

holding. that that is not a presidential preference primary

within the meaning of the statute. Again, you have a very

delicate question there I think, in the sense that you are

balancing the rights of private associations and right of

the State to conduct elections and exactly what the statute

is driving at here is not entirely clear because, of course,

you have the overall definition of election with later

history of the ’76 with the 10% and 20% Rules laid over.on

that definition so that that definition doesn’t answer all

questions. It does seem to me that it’s a possible busis that

any Commissioner could conclude that this was not an

election, given the circumstances here, that it was not an

election within the meaning of the statute.

COMMISSIONER HarRRIS:I tend to think that’s a sounder

ground for denying reestablishment of eligibility than the

one you advocate. The trouble I have with you on the

interpretation of 9033 is first, the statute specifically has

got the words “for candidates” here. Your interpretation

would simply read out of the statute the words “for

candidates.” In fact, it says “‘for candidates of the same

party.” I don’t think the colloquy involving Senators

74a

Clark and Taft is particularly persuasive because they

weren’t focusing on this issue, so that when Senator Taft

spoke of “‘votes cast,”’ he wasn’t using it in any technical

sense. That could have simply been pure chance that he

used that phraseology. The 20% test—the purpose of it

presumably is to indicate that the candidate in question

has reestablished himself as a serious contender. And for

that purpose it seems to me that his competition consists

of the other candidates that get votes. He’s running

against the other candidates. He’s not running against

“uncommitted” or “none of the above.” It seems to be

quite reasonable to say that he reestablished his eligibility

if he gets 20% of the total number of votes cast for

candidates of his party assuming that it’s a real election.

CHARLES STEELE: Well, again, I don’t think that it’s

something that is necessarily crystal clear. It seems to us

that from what we have managed to learn of Michigan

law, that the uncommitted line is put on by State law and

is treated as a candidate line, as one of the lines on the

ballot for you to go to, and that if you use instead, the

interpretation argued by Mr. LaRouche’s Committee, you

would decide that write-in’s, for instance because they

would not be candidates within the meaning of the statute,

that write-in votes would not be determined in the 20%

Rule and that basically what you have in this form of

balloting is you have the expression of a preference and

one of the preferences offered to the voters is the line that

says uncommitted. I mean it’s specifically put on the ballot

at the behest of the State law. If you go to the requirement

that it be candidates within the meaning of the statute you

limit the 20% Rule far too much because in effect you are

saying it is not the lines on the ballot, it’s only those

people who are eligible for funds. Again, technically

Governor Brown has withdrawn himself as a candidate.

He’s not a candidate for the purpose of receiving matching

funds. Essentially it comes down to the fact to the question

of whether you have to assume—is whether you have to

assume that Congress, in using the term candidate

throughout the statute was using it in the technical sense

75a

that it had defined it at. It seems to me that it is a very

persuasive case here that they were not. The ’76 legislation

came afterwards. It spoke to balloting. It clearly did not

use the caucus language which is in the overall definition

of election because again, they were quite clear that they

were talking about 20%. Your 20% Rule is not based on

caucuses. So in effect the rule you would come to is that in

this subsection they were not using the word candidate

within the technical term as it is defined in the statute, and

that happens so frequently in legal interpretations and

there are a lot of opinions that say the same word does not

necessarily mean the same thing in different portions of

the statute. Again, with regard to the question of whether

it is an election, I think that there is doubt on that question

too. As I say, we have set it forth as an alternate ground

here, that seems to us, to support the Commiseion’s

decision, the Commission’s recommendation that we

made.

CHAIRMAN FRIEDERSDORF: Commissioner Reiche.

COMMISSIONER REICHE: I agree with Commissioner

Harris that perhaps the choice of words in the statute is

unfortunate because when you start talking about 4

candidates, yes, it is possible to deduce from that that it

means candidates as defined in the statute. But I think you

‘have to look here to the underlying rationale for this

reestablishment of eligibility—namely, as Counsel has

pointed out to us, that a candidate has once again

established himself or herself as a serious candidate. You

could very well have a scenario in which you could have

uncommitted votes of 300,000 and yet you might have for

one candidate this 8,000, you might have for another, let’s

say, 20,000 and under those circumstances I would argue

that the individual who receives the 8,000 has reestablished

"his viability as a serious candidate. So that when I look to

the underlying purpose of this 20% requirement even

though, yes, I wish the wording were somewhat different

in the statute, I would think you have to come out under

these circumstances, with the conclusion that he has not

reestablished it wiiere you fall so far short of the 20%.

76a

CHAIRMAN FRIEDERSDORF: Harriet.

Ex OFFicio ROBNETT: I agree with that. I think that

that basically establishes the serious candidacy. It’s an

automatic—he’s automatically reeligible when he estab-

lishes the 20% and I think that arises really out of the

showing of the overall candidacy. I think there’s another

part of the statute where the Commission may find under

a discretionary sort of basis, presumably under some

caucus or some other arrangement, that he has reestab-

lished his eligibility here so I agree that the 20% automatic

thing is one that speaks to the primary but I think the

statute perceives the possibility that not every situation

will be a primary and therefore, it has a discretionary type

of position with the Commisison.

CHAIRMAN FRIEDERSDORF: Commissioner Harris has

raised a question of having further materials submitted

and vote on this at the end of the session. Is it Commis-

sioner Reiche’s desire to have a vote on this now or would

you want to withdraw that motion?

COMMISSIONER REICHE:I don’t ever want to preclude a

Commissioner from obtaining additional information as-

suming that we could still resolve the matter today. But I

have to say quite honestly that I don’t think that the

additional information to be introduced here is going to

change matters but I don’t want Commissioner Harris to

be foreclosed from getting the additional information,

assuming that we could do it today, because there is an

_ urgency to this matter, and if we could do it today and

then resolve the matter later, Mr. Chairman, under those

circumstances I would be willing to withdraw the motion

but I think we obviously do have to resolve it today.

CHARLES STEELE: Again, with regard to the additional

information, as I say, I apologize for not sending around

copies of the District Court’s decision because we obtained

that and we should have. I do not think that we will be

able, in the course of today, we may be able to have some

more telephonic communication that would give us a

further description of what the caucus procedure actually

utilized was. As I indicated, I don’t know precisely what

77a

information we would want to seek in that, or what we

would be able to get, but it seems to be impossible with

regard to that to be sure of getting anything today on

that.

CHAIRMAN F RIEDERSDORF: Commissioner Harris.

COMMISSIONER Harris: I don’t think we need the

figures on the caucus anyway. They are not claiming

reestablishment of eligibility on the basis of the caucus. If

that were the election rather than the primary, they are

not claiming they would be entitled to reestablishment.

COMMISSIONER REICHE: Under those circumstances, I

will withdraw the motion with the understanding that not

only would we have an opportunity to review the Opinion.

Lunch time appears to be the only time available to us.

And also, if Counsel would verbally communicate back to

us, because I can’t see time for a memorandum or

anything of that type, but if they could verbally give us

additional information such as requested by Commis-

sioner Harris. Under that understanding I withdraw the

motion.

CHAIRMAN FRIEDERSDORF: Commissioner Reiche with-

draws his motion to approve Agenda Document No. 80-

189 pertaining to the LaRouche matter requesting reestab-

lishment of eligibility. The Chair will now suspend consid-

eration of Item #3 on the agenda, concerning presidential

certifications and inform the Commissioners that this item

will be considered at the close of the final item on the

regular meeting of Thursday, May 29. It is the Chair’s

intention to have a vote on that before we adjourn today.

PARTIAL IT RANSCRIPT, OPEN MEETING OF THE FEDERAL

ELECTION COMMISSION May 29, 1980 P.M. SESSION

DISCUSSION OF AGENDA DOCUMENT #80-189, “‘Lyndon

LaRouche Request for Reestablishment of Eligibility”

CHAIRMAN FRIEDERSDORF: The regular meeting of the

Thursday, May 29, 1980 Federal Election Commission

will come to order. The next item on the agenda is the

78a

proposed general election public financing regulations,

but before we take that up, I would like to inquire of the

Commissioners if all of you that have had the opportunity

to see the material pertaining to the LaRouche request for

reestablishment of eligibility, and if so, are they prepared

to return and dispose of that matter at this time. Counsel?

MR. STEELE:I would just like . . . Bob would like to just

clarify the record and indicate that as I think that everyone

knows, because they have been distributed, there are

actually two telegrams that we received. Our memo was

drafted in response to the May 20 telegram. There is a

later telegram with some differences in the wording. Well,

anyway, Bob will address that.

Bos BoGIN: We apologize for not circulating the second

telegram. Hopefully everybody has one in front of them.

The paragraph that is a little ambiguous is the last

paragraph in that second telegram.

MR.STEELE: Does everyone know what we mean by the

second telegram? The telegram is dated 5/27 and was

received here on the morning of 5/27 and we got it

downstairs in our office yesterday morning, and so it was

a little bit slow in getting it distributed around. The easiest

identification on it is the top line of it that’s got all the

numerals and then it says, 5/27/80 and I guess it then says

804, I can’t read it but the other one is dated 5/21.

Bos Boain: There was a little ambiguity whether or not

the Commission could, should postpone the audit sched-

uled for June 2nd. The ambiguity rests still in the second

telegram in that last paragraph, which if you read it, you

can see the ambiguity but the last sentence says “‘for this

reason,” and that refers back to the first sentence talking

about commencing an audit in the midst of the campaign,

in the midst of the primary June 2d. I also request that the

Commission consider postponing the second audit at least

until the question of recertification of Mr. LaRouche has

been resolved. We don’t. . . the Office of General Counsel,

does not take any position. We feel that the Commission

can go either way whether or not that means they should

postpone it or not postpone it.

79a

Mr. STEELE: It was just at this morning’s colloquy, I

was uncertain whether Commissioner Harris did view it in

referring it had the benefit of realizing there was a second

telegram. It seems to me that the first sentence of that last

paragraph does raise the issue of the second audit comm-

encing “it does in the midst of our campaign, require

significant campaign resources for successful completion

are premature.”’ It seems to hinge, the whole request still

seems to hinge on the, if as I believe, he is requalified or at

least until the question of recertification has been resolved.

So the request still seems to hinge on that issue, but it did

seem to raise the other issue that Chairman Friedersdorf

had spoken to and I just want to make sure that the record

was clear that we had these two telegrams in-house. When

we were preparing the memorandum, we did not have the

second telegram to use as a reference.

CHAIRMAN FRIEDERSDORF:I would just like to add that

during the noon recess I was advised by the LaRouche

Committee that regardless of how we resolve the recertifi-

cation question, they are requesting the postponement of

the June 2d commencement of the second audit because of

possible interference with the primary of June 3d and I

would just state for my own ... My own view is that a

short postponement of several days post June tus would

give me no problem.

VicE CHAIRMAN MCGarry: Mr. Chairman.

CHAIRMAN FRIEDERSDORF: Commissioner McGarry.

VicE CHAIRMAN Mc Garry: I certainly support that

and I wondered at the time that that was being mentioned,

whether or not it did. I interpreted their telegam to

indicate that they would have problems no matter what, if

our audit begins on June 2d. I think it is only fair to steer

clear .. . I believe Mr. LaRouche is entered in more than

one primary and I think that we would not be at all out of

order to give some kind of a postponement ... to steer

clear of those primaries which are all on June 3d.

CHAIRMAN FRIEDERSDORF: That’s right. Commissioner

Reiche.

COMMISSIONER REICHE: He’s at the bor, but Mr.

80a

Chairman, I am wondering what the reaction of Bob

Costa is.

CHAIRMAN FRIEDERSDORF: Mr. Costa?

Boe Costa: Mr. Chairman, the audit division would

not have a problem with a postponement of a short

duration at all.

CHAIRMAN F RIEDERSDORF: Commissioner Aikens.

COMMISSIONER AIKENS: Could I ask Bob ... would

you consider the 4th a better date or the 9th?

Bos Costa:I would think the following week would be

more reasonable.

COMMISSIONER A IKENS: The following M

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.