U.S. Code » Title 26 » Subtitle Subtitle H— Financing of Presidential Election Campaigns › Chapter CHAPTER 96— PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT

26 U.S.C. § 9038

Examinations and audits; repayments

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(a) Examinations and audits

After each matching payment 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) which were used, to defray qualified campaign expenses,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 accounts which bears the same ratio to the total unexpended 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.(c) Notification

No notification shall be made by the Commission under subsection (b) with respect to a matching 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.

(Added Pub. L. 93–443, title IV, § 408(c), Oct. 15, 1974, 88 Stat. 1300; amended Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834.)Editorial NotesAmendments

1976—Subsecs. (b)(1), (2), (d). Pub. L. 94–455 struck out “or his delegate” after “Secretary”.

Statutory Notes and Related SubsidiariesEffective Date

Section applicable with respect to taxable years beginning after Dec. 31, 1974, see section 410(c)(1) of Pub. L. 93–443, set out as an Effective Date of 1974 Amendment note under section 30101 of Title 52, Voting and Elections.

Notes of Decisions
Cited in 14 cases (1 in the last 5 years), 1983–2023 · leading case: Carter/mondale Presidential Comm., Inc. v. Fed. Election Comm'n, 711 F.2d 279 (D.C. Cir. 1983).
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Carter/mondale Presidential Comm., Inc. v. Fed. Election Comm'n, 711 F.2d 279 (D.C. Cir. 1983). · cites it 6× “” The FEC’s cover letter noted that the FEC had approved the audit report and had made a determination, pursuant to 26 U.S.C. § 9038 (b), that the Committee had to repay $129,443.”
Bush-Quayle '92 Primary Comm., Inc. v. Fed. Election Comm'n, 104 F.3d 448 (D.C. Cir. 1997). · cites it 3× “26 U.S.C. § 9038 (a). If the’ Commission’s audit reveals that public funds have been spent on non-qualified expenses, the candidate is required to repay to the Treasury the portion of non-qualified campaign expenses attributable to public funds.”
Kennedy for President Comm. & Edward M. Kennedy v. Fed. Election Comm'n, 734 F.2d 1558 (D.C. Cir. 1984). · cites it 6× “As explained below, we reverse the FEC’s repayment order because it exceeds the FEC’s authority under 26 U.S.C. § 9038 . We hold that the statute requires the Commission to make a reasonable determination of the amount of matching funds used for unqualified purposes, and to…”
Paul Simon v. Fed. Election Comm'n, 53 F.3d 356 (D.C. Cir. 1995). · cites it 10× “Petitioners argue, inter alia, that the Commission was time-barred, pursuant to the Presidential Primary Matching Payment Account Act, 26 U.S.C. § 9038 (1988), from imposing this repayment obligation because the Commission did not notify petitioners of their repayment claims…”
Marion G. Robertson & Americans for Robertson, Inc. v. Fed. Election Comm'n, 45 F.3d 486 (D.C. Cir. 1995). · cites it 4× “3 26 U.S.C. § 9038 (a); 11 C.F.R. § 9038.1 (a)(1).”
Carter/mondale Presidential Comm., Inc. v. Fed. Election Comm'n, 775 F.2d 1182 (D.C. Cir. 1985). · cites it 4× “Thereafter, in respect of two other campaign committees, this court held that FEC exceeded its authority under 26 U.S.C. § 9038 (b)(2) when it required repayment of the entire amount of non-qualifying payments (rather than the portion attributable to the matching payment…”
John Glenn Presidential Comm., Inc. v. Fed. Election Comm'n, 822 F.2d 1097 (D.C. Cir. 1987). · cites it 6× “See 26 U.S.C. § 9038 (b)(2) and 11 C.F.R. § 9038.”
Larouche's Comm. for a New Bretton Woods v. Fed. Election Comm'n, 439 F.3d 733 (D.C. Cir. 2006). · cites it 2× “See 26 U.S.C. § 9038 (b)(1), (2). The FEC auditors ordered the Committee to repay the matching funds used for the mark-ups.”
Spannaus v. Fed. Election Comm'n, 641 F. Supp. 1520 (S.D.N.Y. 1986). “From July 23 to August 21, 1984 the Commission conducted a routine audit of TLC, as required by 26 U.S.C. § 9038 (a) (“the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of every candidate and his authorized committees who received…”
Fulani v. Fed. Election Comm'n, 147 F.3d 924 (D.C. Cir. 1998). “” 26 U.S.C. § 9038 (a) (1994). The FEC is instructed to determine whether matching payments to a candidate exceeded her entitlement, or if the candidate used matching funds to defray non-qualified campaign expenses, and must notify the candidate of a repayment obligation no…”
Lyndon H. Larouche Larouche Democratic Campaign '88 v. Fed. Election Comm'n, 990 F.2d 641 (D.C. Cir. 1993). “26 U.S.C. § 9038 (b)(1) (“If the Commission determines [that repayment is required], it shall notify the candidate, and the candidate shall pay_Harmoni-ously, the Commission’s regulations repeatedly provide that a limitation period begins after the FEC gives notice of its…”
Michael S. Dukakis v. Fed. Election Comm'n, 53 F.3d 361 (D.C. Cir. 1995). · cites it 7× “26 U.S.C. § 9038 (a); 11 C.F.R. § 9038.1 (a) (1995).”
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