Federal Election Commission Main Page
September 4, 1980
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1980-96
THIS LETTER WAS PICKED UP BY
J. FREEMAN ON SEPTEMBER 4, 1980
Mitchell Rogovin, Esq.
Counsel to John B. Anderson and
General Counsel for the National Unity
Campaign for John Anderson
Rogovin, Stern & Huge
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036
Dear Mr. Rogovin:
This is in response to your letter of August 11, 1980,
requesting an advisory opinion on behalf of John B. Anderson
and the National Unity Campaign for John Anderson. The
Commission understands your request to pose the following
question:
Whether John B. Anderson would be excluded
from receiving post-election public funds
by operation of the provisions of SS 9004(a)(3)
of the Presidential Election Campaign Fund
Act ("the Fund Act"), 26 U.S.C. SS SS 9001, et
seq.
Your request together with other papers submitted to the
Commission1/ set forth as pertinent the following facts and
statements regarding Mr. Anderson:
On April 24, 1980, John B. Anderson publicly announced his
intention to pursue an independent candidacy for the Presidency
for the 1980 general election. Thereafter, he established the
National Unity Campaign as his principal campaign committee to
coordinate and further his candidacy and as a nationwide campaign
organization. At the same time, Mr. Anderson stated that he would
not seek to establish the elaborate machinery of a new nationwide
1/The Commission notes that you have not formulated precisely the
question to which, you seek an answer. Your original request was
comprised of the papers filed in support of the application
for a preliminary injunction in Anderson v. Federal Election
Commission, Civil Action No. 80-1911 (D.D.C.). The Commission
deems all information provided in that suit, in particular
plaintiff's answers to interrogatories dated August 21, 1980,
to be relevant to your request.
political party to support his candidacy but would instead run
as an independent candidate appealing for support not only to
those who did not currently identify themselves as party
members but also to Democrats and Republicans dissatisfied
with the candidates or programs being offered by their own
parties. Mr. Anderson is presently certified to be on the
ballot, or has met all of the requirements for ballot access,
in more than 10 states as a candidate for President of the
United States.
The National Unity Campaign ("NUC") is an unincorporated
political committee which currently has a monthly payroll of over
$200,000 covering 259 employees and hundreds of additional volunteers.
It is headquartered in Washington, D.C., now occupying
several floors of an office building at 3255 K Street, N.W.,
Washington, D.C. 20007. The officers and principal supervisors
of the NUC are located in the Washington office, as are over
100 employees and volunteers. The NUC has State and regional
offices throughout the country in virtually every state and
many large cities. State and regional coordinators report to
the Washington headquarters of the NUC. Funds raised through
the efforts of State and regional offices are transmitted to
Washington. Among the NUC's purposes is to place Mr. Anderson's
name on the general election ballot in every State and the
District of Columbia.
The NUC has a platform which is still being formulated.
Mr. Anderson's positions and statements have been gathered on a
number of issues. Issue advisors, on the staff of the National
Unity Campaign, have refined and further developed Mr. Anderson's,
positions. In addition, Mr. Anderson has met on numerous
occasions with campaign advisors and with supporters, advisors
and experts on issues who are not directly working for the
campaign, to shape and develop his substantive campaign positions
and proposals and the platform. While the NUC has no formal or
written rules regarding the manner in which campaign workers,
advisors or others shall "input" their views into the platform,
the NUC has sought such input from many individuals across the
country.
The NUC does not presently intend to create or perpetuate
a party apparatus with permanent state and local organizations
and physical facilities, is not at this time supporting or
endorsing other political candidates, and is not asking voters
affiliated with other parties to renounce those affiliations
and join a different party. Rather, the NUC is established to
promote a particular set of political programs and views and a
particular candidate, offering the voters a choice for national
leadership which Mr. Anderson and his supporters do not believe
is currently being offered by either of the major parties.
No consideration has been given as of this date to whether
the National Unity Campaign will be terminated after November 4,
1980, and therefore there is no intention presently formed as to
this matter one way or the other. However, should Mr. Anderson
be elected it is anticipated that the National Unity Campaign
would assist after November 4 in his transition to the office of
the President in January 1981.
In addition to organizing the National Unity Campaign,
Mr. Anderson, together with the NUC and local supporters, have
established organizations in several states. One such organization
is the Anderson Coalition Party, a new political party
pursuant to Michigan Statutes Annotated SS SS 6.1685, 6.I560(2)
eligible to have its candidates for President and Vice President
on the Michigan general election ballot for November 1980. To
establish the Anderson Coalition Party as a new political party
in Michigan, supporters of John Anderson, in compliance with
M.S.A. SS 6.1685, circulated petitions on behalf of the proposed
political party, collecting more than 18,339 valid signatures.
Those signatures were filed with the Secretary of State's office
by May 5, 1980. On May 24, 1980, in compliance with M.S.A.
SS 6.1686(a), county caucuses to elect delegates to the Anderson
Coalition State Convention were held in each congressional
district. The delegates so elected met on May 31, 1980 pursuant
to M.S.A. SS 6.1686(a) in state convention where they selected
John B. Anderson as their presidential nominee. A vice-presidential
nominee and 21 electors were also nominated.
In compliance with M.S.A. SS 6.1686(a), the nominees of the
state convention were certified to the Secretary of State on
June 2, 1980. Also on June 2, 1980, the Michigan Board of
State Canvassers certified the Anderson Coalition for ballot
position as a new political party for the August 5, 1980 primary.
On August 5, the Anderson Coalition Party received
sufficient votes in the primary to achieve ballot position
in the November 1980 general election ballot for its
Presidential and Vice-Presidential nominees.2/
2/The Commission notes that the Citizens' Party and the Libertarian
Party also received sufficient votes in the August 5 Michigan
primary to qualify their Presidential candidates for the ballot in
the November general election in Michigan.
The National Unity Campaign for John Anderson funded
the petition drive to establish the Anderson Coalition as
a new political party in Michigan. The National Unity Campaign
has continued to provide funds for the Anderson Coalition's
efforts to obtain a ballot position in November for John
B. Anderson in Michigan. The Anderson Coalition has forwarded
to the National Unity Campaign for John Anderson money that
it has raised in Michigan.
Another such organization is the Independents for Anderson
Party of North Carolina, established pursuant to North Carolina
General Statute SS 163.96. Petitions for the establishment of the
Independents for Anderson Party were circulated in North Carolina
beginning in early May and the signed petitions containing 19,004
signatures were delivered to the county Boards of Election on
May 15. The verified signatures were then filed with the State
Board of Elections on June 2, and after a hearing on June 17, 1980,
the Board certified the new party. Beginning on June 18, notices
of the party convention were printed in the Ashville Citizens Times,
the Charlotte Observer, the Greensboro Record, and the Raleigh
News and Observer. Information packets concerning the convention
were sent to supporters, and throughout the week of
June 23, registration of party members was conducted at the county
Boards of Election. The Independents for Anderson Party convention
was held on June 28, with 108 delegates to the convention
representing 45 North Carolina counties and each congressional
district. John B. Anderson and James Clotfelter were nominated
as President and Vice President, respectively, and their
names were certified to the State Board by the party chairman
on June 29 and received by the Board on June 30.
After a challenge was brought to the certification of the
party and its nominees, the State Board of Elections ruled that
John B. Anderson was ineligible to be the presidential nominee
of the Independents for Anderson Party. However, on August 20,
1980, Federal District Judge Dupree of the Eastern District of
North Carolina issued a permanent injunction preventing
the State of North Carolina from printing its general election
ballot without the name of John B. Anderson as the presidential
nominee of the Independents for Anderson Party of North
Carolina.
A third such organization is the Anderson Party of Delaware,
formed pursuant to 15 Delaware Code SS SS 3001, 3301 et seq.
which require that in order to nominate a presidential candidate,
a new political party must have at least 131 registrants for that
party on or before August 16, 1980. On August 16, 1980, voters
registered as members of the Anderson Party of Delaware and
representing 34 legislative districts met in convention. The
caucuses from the legislative districts elected 34 delegates
who unanimously nominated John B. Anderson as the party's
presidential nominee. Pursuant to 15 Del. Code. SS 3303, the
party's certificate of nomination for John B. Anderson must
be filed with the Secretary of State by September 1, 1980.
In addition to states such as those described above in
which a relatively elaborate political party mechanism was
established pursuant to State law, there are a number of
other states in which Mr. Anderson and his supporters have
organized somewhat less formally to achieve the immediate
object of ballot access. For example, in Connecticut, to
obtain ballot access under state law, supporters of Mr. Anderson
circulated petitions to nominate him for President as the nominee
of the Anderson Coalition. He will appear on the ballot under
the Anderson Coalition label. However, the Anderson Coalition
did not hold any caucuses or conventions.
Similarly, in New York, petitions circulated for a
presidential candidate are required to bear a party name
and emblem. In New York, therefore, to comply with the
statute, the petitions nominating Mr. Anderson bear the
name of the Unity Coalition Party.
Another variation is the State of Washington where a
candidate may be nominated for President by 159 registered
voters meeting in convention, declaring their support for
the candidate and then nominating him. The candidate,
however, then appears on the ballot without any party
affiliation being designated since the convention structure
does not nominate the candidate as the nominee of a party but
only of those voters. R.C.W. SS SS 29.24.040; R.C.W. 29.24.030. A
convention was held to nominate John B. Anderson for President
on July 26, 1980 and it was attended by 775 registered voters.
The State of Hawaii presents yet another variation. In
Hawaii, John Anderson's supporters are seeking to qualify him
for the ballot as an independent candidate pursuant to H.R.S.
SS 11-113(b) (2) which governs ballot access for all candidates
except those of major parties. It requires that a candidate's
supporters file petitions with the candidate's name signed by
2,927 registered voters, provided that the requisite signatures
are certified by September 5. Mr. Anderson will appear on the
general election ballot as an independent. Hawaii, however,
provides no mechanism for choosing electors for independent
candidates. The only provisions governing selection of electors
is H.R.S. SS 14-21 which requires political parties to choose their
electors at a convention. An Attorney General's Opinion issued
May 23, 1980 to the Lieutenant Governor of Hawaii ruled that all
groups nominating candidates pursuant to H.R.S. SS 11-113(b)(2)
would be deemed political parties solely for purposes of choosing
electors. Consequently, the Hawaii John Anderson for President
Committee held a convention on August 14 at which four electors
and first and second alternates were selected. The names of
the electors were then certified by the Chairman and Secretary
of the convention to the Lieutenant Governor. The electors'
names will not appear on the ballot, however. John B. Anderson
will appear on the Hawaii general election ballot as an independent
and not as the candidate of the convention which chose
the electors.
* * * *
As you note in your request, no provision of the Fund Act
directly provides for public funding for independent candidates.
Rather, as the court of appeals observed in Buckley v. Valeo, 519
F.2d 821, 887 (D.C. Cir. 1975), the statute speaks only of providing
funding to candidates of "political parties" - major, minor
or new.3/ The nature and extent of a candidate's entitlement to
public funds turns largely on the performance of the candidate's
party in the preceding presidential election. The presidential
candidate of a "major party", defined as a party whose presidential
candidate received twenty-five percent or more of the popular
vote in the preceding election, is entitled to receive public funds
prior to the general election to defray all of his campaign expenses.
See 26 U.S.C. SS SS 9002(6), 9004(a)(1). The candidate of a "minor
party", defined as a party whose presidential candidate received
between five percent and twenty-five percent of the popular vote
in the preceding presidential election, is entitled to receive
public funds prior to the general election in a proportionally
lesser amount than the major party candidates depending upon the
popular vote his party's candidate received in preceding election.
See 26 U.S.C. SS SS 9002(7), 9004(a)(2)(A). The candidate of a "new
party", defined as party which is neither a major party nor a
minor party, is entitled to receive post-election public funding
in an amount proportionate to the number of popular votes he
receives but only if the candidate receives five percent or more
3/See 26 U.S.C. SS SS 9002(2), (4), (6), (7), (8), (11) (12); 9003; 9004;
9005(a); 9006(b), (c); 9007; 9012.
of the total popular vote cast for the office of President.
See 26 U.S.C. SS SS 9002(8), 9004(a)(3).
Despite its consistent reference to candidates of "political
parties", the Fund Act contains no separate definition of
the term "political party". However, section 9002.15 of
the Commission's regulations4/ defines the term "political party"
to mean:
an association, committee, or organization which
nominates or selects an individual for election
to any Federal office, including the office of
President or Vice President of the United States,
whose name appears on the general election ballot
as the candidate of such association, committee or
organization.
The issue raised by your request is, therefore, whether
the organizations supporting Mr. Anderson fall within the meaning
of a political party for the purposes of the Fund Act.
The definition of a political party adopted by the Commission
in 11 CFR 9002.15 breaks down into three essential components: (1)
an association, committee, or organization (2) which nominates or
selects an individual for election to Federal office, including
the office of President or Vice President of the United States,
(3) whose name appears on the general election ballot as the
candidate of such association, committee or organization.
With respect to the first component, the National Unity
Campaign is the principal campaign committee of Mr. Anderson
and conducts a wide range of activities involving numerous paid
staff members and volunteers in virtually every state. As
such, the National Unity Campaign clearly constitutes an
"association, committee, or organization" under 11 CFR 9002.15.
Similarly, state organizations such as the Anderson Coalition
Party, the Independents for Anderson Party of North Carolina,
the Anderson Party of Delaware, the Anderson Coalition and the
Unity Coalition Party each constitute an "association, committee,
or organization" for the purposes of 11 CFR 9002.15.
4/On June 1, 1980, the Commission adopted amendments to the
regulations under the Fund Act and transmitted these amendments
to Congress on June 13, 1980. On August 26, 1980, the 30 day
legislative review period expired. See 26 U.S.C. SS 9009(c).
The regulation does not require that a political party be
organized in a particular manner, that it refer to itself as a
"party", or that it have existed or intend to exist for a stated
period of time. The only specific activity which the regulation
requires a political party to engage in is set forth in the
second component, namely, that it nominate or select an individual
for election to any Federal office, including the office of
President or Vice President of the United States. The terms
"nominate" and "select" are not defined in the Fund Act, the
Presidential Primary Matching Payment Account Act (26 U.S.C.
SS SS 9032-9042), the Federal Election Campaign Act (2 U.S.C.
SS SS 431-435), or in the regulations promulgated thereunder. While
the two major parties, as well as several minor parties, engage
in complex nominating procedures involving primary elections
and national conventions, the Fund Act does not require that
any political party - major, minor or new - utilize such procedures.3/
Rather, the definition of the term "candidate" as set
forth in 26 U.S.C. SS 9002(2) indicates that the Fund Act intended
to accommodate the wide range of procedures prescribed by the
laws of the various states regulating ballot access:
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 Vice 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 candidate of a political
party for election to either such office
in 10 or more States.... (emphasis added)
The Commission notes that the requirements for gaining access
to the general election ballot vary considerably from state
to state. Non-major party convention nominations are recognized
in but a few states; generally the petition process is the only
method available. See Ballot Access, sponsored by Clearinghouse
on Election Administration, Federal Election Commission (August,
1973) pp. 66-75. Thus, the terms "nominate" or "select" mean,
for the purpose of 11 CFR 9002.15, complying with the procedures
and satisfying the requirements of state law to qualify a candidate
for the ballot in that state.
5/At no point in previous advisory opinions has the Commission
undertaken to specify any procedure which a political party must
follow in order to satisfy the requirement of "nominating" or
"selecting" a candidate. See Advisory Opinions 1980-3, 1980-56,
1976-95, 1975-129 (see discussion of these opinions infra).
With respect to the National Unity Campaign for John Anderson,
the Commission notes that one of its major activities and purposes
is to place Mr. Anderson's name on the general election ballot
in every State and the District of Columbia. The National Unity
Campaign has conducted successful petition drives in several states
to qualify Mr. Anderson for the ballot and is actively pursuing
ballot access for Mr. Anderson in many other states. The
Commission therefore concludes that the National Unity Campaign
has met the requirement of "nominating" or "selecting" Mr. Anderson
as a candidate for President of the United States. The Anderson
Coalition Party, in accordance with Michigan law, circulated
petitions, held county caucuses to elect delegates to its state
convention who in turn selected Mr. Anderson as their presidential
nominee, qualified itself for the August 5 primary election,
and received sufficient votes in the primary to achieve a ballot
position for Mr. Anderson in the 1980 general election. Thus,
the Anderson Coalition Party has met the requirement of "nominating"
or "selecting" Mr. Anderson as its candidate for President of
the United States. By virtue of complying with similar procedures
in the States of North Carolina and Delaware, the Independents
for Anderson Party of North Carolina and the Anderson Party
of Delaware have satisfied the requirement of "nominating" or
"selecting" Mr. Anderson as their candidate for President of
the United States. Similarly such organizations as the Anderson
Coalition and the Unity Coalition Party, by engaging in successful
petition drives, have "nominated" or "selected" Mr. Anderson
as their presidential candidate.
The next question, therefore, is whether the third component
of SS 9002.15 has been satisfied, i.e., whether Mr. Anderson's
name "appears on the general election ballot as the candidate
of such association, committee, or organization." The Commission
notes that Mr. Anderson will appear on the ballot as the candidate
of the Anderson Coalition Party in the November 1980 general
election in Michigan. In North Carolina, pursuant to the permanent
injunction issued by Federal District Court Judge Dupree of the
Eastern District of North Carolina on August 20, 1980, Mr. Anderson
will appear on the November ballot as the presidential nominee of
the Independents for Anderson Party of North Carolina.6/ In
New York and Connecticut, Mr. Anderson appears on the ballot as
the candidate of the Unity Coalition Party and the Anderson Coalition,
respectively. With respect to these states, Mr. Anderson
certainly "appears on the general election ballot as the candidate
6/Mr. Anderson's appearance on the Delaware ballot is contingent
upon the Anderson Party of Delaware certifying its nomination
of Mr. Anderson by September 1, 1980.
of" these organizations. In Advisory Opinion 1980-3, the
Commission held that the Citizens' Party would attain
political party status under the Federal Election Campaign
Act7/ upon receipt of verification from the appropriate
State election official that the name of a Citizens' Party
candidate for Federal office will appear on that State's
ballot as the candidate of the Citizens Party.8/ Therefore,
the Commission concludes that upon receipt of verification
from the appropriate State election officials that the
name of a Federal candidate, including Mr. Anderson, will
appear on those States' ballots as the candidate of the
Anderson Coalition Party, the Independents for Anderson
Party of North Carolina, the Anderson Party of Delaware,
the Anderson Coalition, the Unity Coalition Party, or
of any other organization meeting the requirements of
11 CFR 9002.15 as discussed above, then these organizations
will attain political party status under the Fund Act.
The remaining issue, then, is whether Mr. Anderson is a
"candidate" for purposes of the Fund Act. As noted above,
SS 9002(2) provides that the term "candidate" means, as relevant
herein, an individual who
7/2 U.S.C. SS 431(16) defines the term political party as "an
association, committee, or organization which nominates a
candidate for election to any Federal office whose name appears
on the election ballot as the candidate of such association,
committee, or organization." See also 11 CFR 100.15. In
adopting the definition of "political party" for purposes
of Title 26, the Commission stated:
SS 9002.15 Political Party
While the term "political party" is not
defined in Title 26, it is used throughout
that Title. To make clear that this term
has the same meaning as under Title 2
the Title 2 definition has been added
here. Thus, this definition follows 2
U.S.C. SS 431916). (emphasis added).
See Explanation and Justification of Regulations, 45 Fed. Reg.
43373 (June 27, 1980).
8/On April 11, 1980, the Commission received verification from the
Kentucky State Board of Elections that candidates of the Citizens'
Party would appear on the general election ballot in that state as
candidates of the Citizens' Party.
(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 candidate of a political party
for election to either such office in 10 or
more States.
Subsequent to its ruling regarding the Citizens' Party's status
as a political party9/, the Commission held in Advisory Opinion
1980-56 that if the Citizens' Party candidate for President of the
United States receives 5% or more of the total number of votes cast
for the Office of President in the 1980 election, he may be entitled
to payment under 26 U.S.C. SS 9006 if otherwise eligible pursuant to
Chapter 95 of Title 26. The Commission further concluded that the
appropriate payment under SS 9006 would be computed by totalling
all of the popular votes received by a new party candidate
in the 1980 presidential election, including those votes
cast for the candidate whose name appears on a state ballot
as an independent candidate, rather than as the candidate
of a political party. See also 26 U.S.C. SS 9004(a)(3). At
the time of its ruling in Advisory Opinion 1980-56, the Commission
had received verification that the presidential candidate
of the Citizens' Party was on the ballot as the candidate of the
Citizens' Party in one state.10/ Therefore, the Commission
concludes that Mr. Anderson is a "candidate" under the Fund Act
so long as he has, as you state in your request, qualified to be
on the ballot in 10 or more States.
The foregoing construction of the "10 state" requirement
of 26 U.S.C. SS 9002(2)(B) is consonant with the overall purpose
of this provision. In Buckley v. Valeo, 424 U.S. 1, 104, fn. 140,
the Supreme Court upheld the 10 state requirement, noting that:
Success in Presidential elections depends
on winning electoral votes in States, not
solely popular votes, and the requirement
is plainly not unreasonable in light of
that fact.
Thus, the 10 state requirement advances the governmental interest
in affording public financing only to those candidates who, by
9/See discussion supra regarding Advisory Opinion 1980-3.
10/See discussion supra at footnote 8.
virtue of the breadth of their support, enjoyed at least the
theoretical possibility of capturing a large number of votes
in the electoral college.
Indeed, the legislative history reflects that Congress'
concern focused primarily on how well a candidate performed
in the general election, rather than on under what label a
candidate appeared on the ballot in a given number of states.
At several points in the floor debates, members of the Senate
stated that the Fund Act would provide Federal subsidies to minor
or new party candidates who receive 5 percent or more of the
total popular vote cast for President without regard to whether
the candidate ran under one label or under several labels. The
issue of candidates who appear on state ballots under more than one
label arose on several occasions with respect to Governor George
Wallace, who appeared on various state ballots as an independent
or as the candidate of eight different parties and captured nearly
14 percent of the vote in the 1968 presidential election. As
Senator Pastore explained:
The Senator from Alabama raised the question
about the minority candidate. He mentioned
the name of Wallace, but it could be any
minority party that runs as a candidate
for presidency under two or different
party labels. In allocating whatever he
may be entitled to if he comes under the
provisions of this law, it ought to be
predicated on the total vote of the
individual candidate.
117 Cong. Rec. SS 18934 (daily ed. Nov. 18, 1971). See also 117
Cong. Rec. SS 18882-3 (daily ed. Nov. 17, 1971) (colloquy
between Senators Allen and Pastore); 120 Cong. Rec. SS 5847 (daily
ed. April 11, 1974) (remarks of Senator Kennedy).
The Commission therefore concludes that Mr. Anderson
would not be excluded from receiving post-election public
funds as a candidate of a new party pursuant to 26 U.S.C.
SS 9004(a) (3) if he receives 5 percent or more of the total
popular votes cast for President in the 1980 general election,
including votes cast for him in states where he appears on the
ballot as a candidate of a political party as well as in states
where he appears on the ballot as an independent candidate.
However, the Commission expressly conditions its opinion on
Mr. Anderson satisfying all other eligibility requirements set
forth in the Fund Act. Therefore, the Commission need not reach
the issue of whether the National Unity Campaign is, as you
suggest, the "functional equivalent of a political party" for
purposes of the Fund Act. Nor does the Commission decide whether
the National Unity Campaign or any of the other organizations
which have nominated Mr. Anderson constitute a "national
committee of a political party" pursuant to 2 U.S.C SS 431(14).11/
This response constitutes an advisory opinion concerning
application of the Presidential Election Campaign Fund Act,
or regulations prescribed by the Commission, to the specific
transaction or activity set forth in your request. See 2
U.S.C. SS 437f.
11/Whether or not an organization is the "national committee of
a political party" involves considerations wholly distinct from
the requirements for "political party" status. An organization
wishing to avail itself of those provisions of Title 2 regarding
national committees must demonstrate that it operates at the
national level by nominating candidates for Federal office
in numerous states; engaging in such activities on an on-going
basis, rather than with respect to a particular election, as
supporting voter registration and get-out-the-vote drives,
providing speakers, organizing volunteer workers, and
publicizing issues of importance to the party and its
adherents throughout the United States. See Advisory Opinions
1980-3, 1978-58, 1976-95, 1975-129, copies enclosed.
Commissioner Reiche voted to approve the issuance of this
opinion but will file a separate concurring opinion at a later
date. Vice Chairman McGarry voted against approval of this
opinion and will submit his dissenting opinion at a later date.