concurring in part and dissenting in part:
I agree with the majority that the Federal Elections Commission (“FEC” or'“Commission”) exceeded its statutory authority in its investigation of Mr. LaRouche, but I believe it did so only in its consideration of the convictions for mail fraud, conspiracy to commit mail fraud, and conspiracy to defraud the Internal Revenue Service (“IRS”) — convictions not directly and unmistakably related to the conduct of his prior campaigns.1 I do not believe that the statute requires that the FEC, in determining a candidate’s eligibility for public monies, disregard evidence in its own files that' indicates that a candidate may well intend to defraud the Commission — and the American taxpayer.
Congress passed the Presidential Primary Matching Payment Account Act, 26 U.S.C-- §§ 9031-42 (“Matching Payment Act”), as part of the Federal Election Campaign Act Amendments of 1974, in the belief that Congress had “ ‘an interest, if not a duty, , to , protect the integrity of its political processes from frivolous .or fraudulent candidacies.’ ” S.Rep.No. 689, 93d Cong., 2d Sess. 7 (1974), *1270U.S.C.C.A.N. at 5593, reprinted in FEC, Legislative History of Federal Election Campaign Act Amendments of 1974, at 103 (1977) (quoting Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1971)) (“Senate Report”); H.R.Rep. No. 1239, 93d Cong., 2d Sess. 13 (1974), reprinted in FEC, Legislative History of Federal Election Campaign Act Amendments of 197k, at 647 (1977) (same). In administering this Act, as well as other election laws, the Commission has broad administrative, policy, investigative, supervisory and oversight powers. See, e.g., 2 U.S.C. § 437c (directing Commission to “administer, seek to obtain compliance with, and formulate policy with respect to”"election laws), § 437d(a) (outlining Commission’s investigatory powers), § 438(b) (outlining Commission’s duties, including the conduct of audits and field investigations of certain political committees); see also Buckley v. Valeo, 424 U.S. 1, 109, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (Commission has “primary and substantial responsibility” for enforcing the 1974 election laws). The Matching Payment Act specifically empowers the Commission to certify the eligibility of a presidential primary candidate to receive matching funds. 26 U.S.C. § 9036(a). One of the two criteria for eligibility, as the majority notes, is the candidate’s promises to fulfill certain reporting requirements and to cooperate with the Commission in its investigations. Id. § 9033(a). The statute directs the Commission to certify a candidate only after he “establishes” his eligibility, id. § 9036(a), not after he merely attests to it. Indeed, the majority accepts the Commission’s determination that the candidate whose agreements contain impermissible qualifications has not “established” his eligibility. Majority opinion (“Maj. op.”) at 1269. I believe the Commission is entitled to make the same determination not only as to a candidate whose statutory promises are contradicted by his whispered aside that he intends to welsh on his commitments, see Maj. op. at 1269, but also a candidate with documented overt acts of welshing on his similar commitments to the Commission in four out of four prior elections.
As I have said before with regard to a related election statute, I cannot read this Act to require that the Commission, in making its certification, “deliberately blind itself’ to “materials that suggest on their face that the candidate intends to violate ... the eligibility requirements of public funding.” In re Carter-Mondale Reelection Comm., 642 F.2d 538, 550, 551 (D.C.Cir.1983) (per curiam) (Wald, J., concurring in decision to affirm) ('Carter-Mondale). To the contrary, I believe the statute gives the Commission the authority, if not the duty, to consider a candidate’s filings and conduct in past publicly-financed campaigns when certifying her eligibility to receive further public funds.
In Committee to Elect Lyndon LaRouche v. FEC, 613 F.2d 834, 845-46 (D.C.Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1019, 62 L.Ed.2d 756 (1980) (CTEL), we held that the Act’s policy favoring prompt payments required that, during the certification process, the FEC’s inquiry into a candidate’s eligibility be “cireumscribe[d] to a certain extent.” Id. at 841 (emphasis added). We refused, howevér, to proscribe any and all Commission inquiry at this point, rejecting the notion that the FEC was confined to “the quite limited taák of rubberstamping notarized statements of eligibility.” Id. Instead, we concluded that, “where [the candidate’s] submission, (or that submission together with other reports on file with the Commission) contained] patent irregularities suggesting the possibility of fraud,” the Commission was empowered “to conduct a properly circumscribed investigation_” Id. at 842 (emphasis added). Here, I believe the Commission was entitled to conclude that its own records documenting Mr. LaRouche’s long trail of broken promises to the FEC revealed the requisite “patent irregularities suggesting the possibility of fraud.”
I recognize that the CTEL court expressed, and the later Carter-Mondale court echoed, a “preference for the application of objective standards” in the Commission’s determination of a candidate’s eligibility for public funds. See Carter-Mondale, 642 F.2d at 551 (Wald, J., concurring); id. at 544 n. 8; CTEL, 613 F.2d at 844. Here, a circumscribed inquiry into Mr. LaRouche’s documented performance under the Act is consistent with that preference, as it would rely *1271almost entirely on objective and quantifiable evidence. Determining that a candidate has filed false reports or defaulted on or repudiated his promises to the Commission in four consecutive elections certainly falls within the Commission’s “conceded authority ... to engage in a counting exercise.” See Maj. op. at 1268. And to the limited extent that the Commission’s resulting conclusion as to the validity of the candidate’s assurances must involve some degree of subjective judgment, the overall inquiry would still not entail either of the dangers the CTEL court associated with open-ended subjective inquiries. First, it would not require a “lengthy investigation ],” CTEL, 613 F.2d at 844, that would contravene the Act’s policy of “prompt payment.” Second, so long as the Commission bases its determination on specific, identifiable factors in the record, it is possible to review — and to ensure — the “even-handed[ness]” with which it applies the eligibility criteria to different candidates. Id,.; see also Senate Report at 8-10, FEC Legislative History at 103-05 (expressing concern for fair treatment for minor party candidates). And here the Commission’s actions stem from its own interpretation of its responsibilities and its own concerns about the candidate’s eligibility, not from an opponent’s prodding, cf. Carter-Mondale, 642 F.2d at 543 (opposing campaign committee’s complaint “highly speculative”), so it presents little danger of partisan motivation.
In the face of the Matching Payment Act’s silence on the permissible scope of the FEC’s pre-certification inquiry, we determined that the inquiry must be “circumscribed.” CTEL, 613 F.2d at 842. The Commission has accordingly interpreted the Act and our case' law to permit it to consider a candidate’s conduct in prior publicly-funded campaigns, and to deny eligibility based on the most egregious past violations. Explanation and Justification of Title 26 Regulations, 52 Fed. Reg. 20,864, 20,868-69 (June 3, 1987). Given the deference we owe the Commission’s construction and administration of the statute, see FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981), I cannot conclude that this interpretation was “arbitrary, capricious, or otherwise not in accordance with the law.” See 26 U.S.C.§ 9041;. 5 U.S.C. § 706(2)(A); see also Common Cause v. FEC, 842 F.2d 436, 439-40 (D.C.Cir.1988) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)) (“[Wjhere ‘the statute and its history are silent or ambiguous with respect to a specific issue,’ the [Commission’s] construction, if reasonable, must ordinarily be honored.”). Nor do I believe that expeditious, nondiscriminatory inquiries into candidates’ past compliance with federal election requirements, followed by the evenhanded refusal to certify serious violators, runs afoul of the First Amendment. Cf. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (discriminatory tax exemptions based on content of publications incompatible with First Amendment). Accordingly, I would remand to the Commission for an eligibility determination that considered Commission documentation of Mr. LaRouche’s prior publicly-financed campaigns, but not his only arguably related convictions.
. The FEC claims, and LaRouche disputes, that his convictions on thirteen counts of fraud and conspiracy to defraud involved fundraising from his .1984 campaign. The Commission’s claim is constructed from "the indictment, testimony at trial, the jury instructions, and the appeal.” When the Commission concocts a theory of liability that relies on the court’s denial of the defense motion to instruct the jury on the exclusion of the fundraising practices of political committees,, it has strayed not only beyond its area of recognized expertise, but beyond the "circumscribed” inquiry into "patent irregularities” permissible during the certification process. See Committee to Elect Lyndon LaRouche v. FEC, 613 F.2d 834, 841, 842 (D.C.Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1019, 62 L.Ed.2d 756 (1980) (CTEL): We are not faced with the permissibility of the Commission’s consideration of a criminal conviction for a direct violation of federal election laws, which I consider a separate and open question.