[00:00:02] Speaker 00:
December 13-5358, Combat Veterans for a Congress Political Action Committee at L Appellants versus Federal Election Commission.

[00:00:11] Speaker 00:
Mr. Kaminar for the Appellants, Mr. Summers for the Appellate.

[00:00:14] Speaker 00:
Mr. Kaminar, good morning.

[00:00:15] Speaker 05:
Good morning, Your Honor.

[00:00:16] Speaker 05:
Paul Kaminar for the Appellants.

[00:00:18] Speaker 05:
I'd like to reserve two minutes for rebuttal.

[00:00:21] Speaker 05:
I would like to focus on two issues before the Court this morning.

[00:00:25] Speaker 05:
One, that the District Court aired by not even considering our challenge to the FEC voting procedures, which unlike any other multi-member agency in this town, regards the silence and failure to express his or her position to begin an enforcement action as casting a statutorily required, quote, affirmative vote, end quote.

[00:00:46] Speaker 05:
because we didn't raise it at the agency level and that the defective ballots were not part of the administrative record which was supplied by the FEC.

[00:00:53] Speaker 05:
Secondly, the district court also mistakenly concluded that the commissioners considered the personal liability of the treasurer for failing to file timely reports due to his willful and reckless conduct and had offered reasonable grounds for not pursuing him when, in fact, those were post hoc rationalizations made by the FEC attorneys, not the commissioners.

[00:01:14] Speaker 05:
Turning to the first issue, while it's the general rule of administrative law that reviewing courts precluded from considering matters not raised at the agency level, that general rule does not apply here for one obvious reason.

[00:01:27] Speaker 05:
We had no idea what the ballots were cast until after the enforcement action was completed and after we filed suit in the district court seeking review of that action and forced the FEC to disgorge those ballots.

[00:01:41] Speaker 05:
The FEC simply misled the parties in the lower court below by submitting a blank ballot in the administrative record along with a misleading certification by the secretary of the commission that said that the commission, quote, decided by a vote of six to zero and that all commissioners, quote, voted affirmatively for the decision.

[00:02:01] Speaker 05:
But once we got the ballots, we found that with respect to all the three late filings, there were never more than three ballots cast at the reason to believe stage.

[00:02:12] Speaker 05:
In short, there never was a sufficient four affirmative votes to begin the acts required by the statute.

[00:02:18] Speaker 03:
Weren't you on constructive notice, though?

[00:02:22] Speaker 03:
Didn't that Directive 52 set out the streamlined

[00:02:27] Speaker 05:
No, Your Honor, that Directive 52 was buried in the FEC website under administrative law constructive notices when something is put in the Federal Register.

[00:02:44] Speaker 05:
The FEC says that, oh, the rules of procedure is in the Federal Register, and this was an amendment to that, but this never appeared in the Federal Register.

[00:02:54] Speaker 05:
Plus, in any event, even if we had knowledge of what this secret policy was that was improperly promulgated under the Sunshine Act, even if we knew that, we still had no idea that they were not going to submit

[00:03:07] Speaker 05:
the six affirmative votes.

[00:03:09] Speaker 05:
So if they had done that, we probably would have been, at least they're trying to comply with the statute by actually casting the ballots.

[00:03:16] Speaker 05:
But here, total silence by the commissioners is regarded by them as casting an affirmative vote to begin an enforcement action that is just flatly contrary to the statute.

[00:03:28] Speaker 02:
So if we assume that you've preserved the issue on the merits of the affirmative vote requirement, it's your position that the statute is unambiguously clear in requiring what the briefing refers to as a tally vote, as distinct from a no objection vote, is that right?

[00:03:44] Speaker 05:
Well, Your Honor, the statute is clear that four affirmative votes are required.

[00:03:50] Speaker 05:
There's nothing ambiguous about those three words.

[00:03:52] Speaker 02:
The ambiguity that I see is that an affirmative vote could either mean a tally vote, that you've marked down your vote on a sheet, but it also can mean a vote yes as opposed to a vote no.

[00:04:04] Speaker 02:
And that construction seems to me, or that understanding of the language seems to me plausible given that it's kind of combining

[00:04:14] Speaker 02:
saying even if you had a low quorum, a majority isn't enough.

[00:04:18] Speaker 02:
What we need is four yes votes to go forward because of the bipartisan nature of this commission.

[00:04:24] Speaker 02:
So the unique wording, I guess, could mean either what you say, tally vote, or yes vote.

[00:04:31] Speaker 05:
Well, Your Honor, just to make this clear, the Directive 52 makes a distinction between a no objection vote

[00:04:39] Speaker 05:
and a tally vote.

[00:04:40] Speaker 05:
A tally vote is where they actually check a box, and that was done at the final determination stage, although that was effective in itself for other reasons.

[00:04:48] Speaker 05:
The non-objection vote is if they don't file anything.

[00:04:51] Speaker 05:
If the six commissioners don't do anything, that cannot possibly comply with the statute or affirmative vote.

[00:04:57] Speaker 02:
Well, what I'm saying is that if the agency comes up with a process that they deem to be adequate for determining who says yes and who says no,

[00:05:06] Speaker 02:
And their way of doing that is to say, we have a no objection procedure.

[00:05:10] Speaker 02:
If you don't say no within 24 hours of circulating this, that's deemed under our procedures to be a yes.

[00:05:18] Speaker 02:
And that could be fulfilling the affirmative vote requirement.

[00:05:22] Speaker 05:
Your Honor, I think that that

[00:05:25] Speaker 05:
There's too much credence on what that silence means.

[00:05:29] Speaker 05:
For affirmative votes, if you look at in our briefs in terms of what Black Law's dictionary defines as a vote, that's where you're making an expression of your views on a particular matter.

[00:05:42] Speaker 05:
Not voting at all counts as an abstention.

[00:05:44] Speaker 02:
Well, no, that's not right.

[00:05:46] Speaker 02:
If you say at a wedding, speak now or forever hold your peace, and you don't speak, you're understood under the rules of that game to have no objection to acquiesce in what's going forward.

[00:05:59] Speaker 02:
And so they've set it up as a process.

[00:06:01] Speaker 02:
This is how, on these matters, you express a yes vote.

[00:06:05] Speaker 02:
And we obviously have to give a tremendous amount of deference to the internal logistics of an agency as long as the statute permits it.

[00:06:12] Speaker 02:
And so that's my question is,

[00:06:14] Speaker 02:
What forecloses that as a potential ambiguity?

[00:06:17] Speaker 05:
Well, you're right.

[00:06:17] Speaker 05:
I think that this is under just Chevron step one.

[00:06:21] Speaker 05:
The four affirmative votes is clear in the statute.

[00:06:24] Speaker 05:
They even have that in their own regulation under the CFR that you have the four affirmative votes.

[00:06:29] Speaker 05:
It's only when they have this secret directive 52 that's buried in their website that they say, oh, by the way, we're going to say that if you don't say anything.

[00:06:39] Speaker 05:
That presumes that they even got the notice.

[00:06:42] Speaker 02:
But you're begging the question because you say, oh, they have it in the regulation.

[00:06:45] Speaker 02:
They just have the same language, affirmative vote.

[00:06:47] Speaker 02:
And my question is, how do we know that the only permissible meaning of that term is tally vote affirmative as distinct from

[00:06:59] Speaker 05:
Yes expressed through the process they set up well because with a no objection vote You don't know whether the commissioner either a got the information from from the staff Recommendation be whether they even read it and see whether they made an expression I simply

[00:07:19] Speaker 05:
We maintain that there can be no way that when the statute says you have to have four affirmative votes, that this can go out and if 24 hours ticks off the clock and we didn't hear anything, ah, you voted affirmatively for this decision.

[00:07:32] Speaker 05:
It may be something different if you want to keep the status quo, like this Court itself, when you're circulating for rehearing en banc.

[00:07:40] Speaker 05:
If there's no affirmative votes to hear the rehearing en banc,

[00:07:45] Speaker 05:
there's no majority, therefore the status quo remains.

[00:07:49] Speaker 02:
But, Alicia Kaminer, we apply time and time again a presumption of regularity that agencies can function and presumably if they believe there's a need for safeguards to determine that people have received the circulations that are made internally and that they've had a chance to address those circulations, they would put those into place.

[00:08:10] Speaker 02:
But you don't have any evidence that they haven't, do you?

[00:08:14] Speaker 02:
That there are people whose votes are being recorded as agreed where they don't in fact see the document?

[00:08:20] Speaker 05:
Your Honor, there is a presumption of regularity, but here we think we've rebutted that presumption by actually showing that there was no sufficiently four votes cast.

[00:08:31] Speaker 05:
There were some that were said that they did not object.

[00:08:35] Speaker 05:
There were some that were signed by another staffer.

[00:08:39] Speaker 05:
And there again, the director says that has to be required by their own direction, by the agency, to the staffer.

[00:08:48] Speaker 05:
And they won't give us that information to verify that.

[00:08:50] Speaker 05:
But the record doesn't show that there were the sufficient votes at the reasonable leave stage.

[00:08:57] Speaker 02:
Sufficient tally votes, but you're really, again, begging the question that I'm asking, which is do you have reason to believe that someone who did not mark a ballot

[00:09:06] Speaker 02:
didn't nonetheless see it and think, oh, I agree with that.

[00:09:11] Speaker 02:
Therefore, under FEC process, if I let it go, that records my affirmative vote.

[00:09:17] Speaker 02:
We don't have the record on that, right?

[00:09:19] Speaker 02:
Let me ask you just one more question, which is about the, you know, you mentioned that this is at the reason to believe stage and here the violation didn't actually require investigation or subpoena powers or, you know, it's pretty open and shut once you know someone's filed late.

[00:09:39] Speaker 02:
So what's the harm?

[00:09:40] Speaker 02:
Like why isn't it harmless error that's cured by the final tally vote on the merits?

[00:09:46] Speaker 05:
Right.

[00:09:47] Speaker 05:
Well, first of all, there can never be harmless error when the issue goes to the validity of the exercise of an agency's enforcement powers.

[00:09:55] Speaker 05:
It's fundamental error.

[00:09:57] Speaker 05:
Chamber of Commerce versus NLRB is instructive here, where the validity of the vote was in question because of the absence of a quorum.

[00:10:05] Speaker 05:
And there, the Court said the NLRB is a creature of statute.

[00:10:10] Speaker 05:
It possesses only that power.

[00:10:11] Speaker 05:
that has been allocated to it by Congress, and there the Court struck down the final rule.

[00:10:16] Speaker 05:
With respect to, well, you know, they eventually did get around to a final vote.

[00:10:23] Speaker 05:
I refer the Court also to Mack Trucks v. EPA in our brief.

[00:10:27] Speaker 05:
where the court rejected the government's argument that, oh, it's harmless here for not giving notice and comment at the interim final rule, because after all, we provided the notice and comment at the final rule.

[00:10:39] Speaker 05:
This court said otherwise if we allowed that, quote, agencies would have no use for the APA when promulgating any interim rules.

[00:10:46] Speaker 05:
And we would say here, yes, if this is appellate, the agency doesn't have any reason to comply with the statute that requires form and affirmative votes.

[00:10:56] Speaker 05:
Finally, the FEC relies on FEC versus Legitech from this court.

[00:11:01] Speaker 05:
And there is instructive as well on our side because there the court held that there was prejudice by the invalid votes, but that prejudice had dissipated when the FEC was reconstituted and had ratified that prior invalid action.

[00:11:21] Speaker 05:
Now, the FEC in their brief says, oh, well, the FEC could have ratified this what we claim is an invalid enforcement procedure, but the facts of the matter, they have not to this very day.

[00:11:34] Speaker 02:
Why isn't what they did at the final merit stage on the administrative fine, why isn't that ratification?

[00:11:43] Speaker 02:
What's, I guess, just in sort of common sense, concrete terms, what's the prejudice that your client suffered

[00:11:50] Speaker 02:
What was imposed on your client, even assuming that the vote was not an affirmative vote at the reason to believe stage?

[00:12:00] Speaker 05:
Where's the mark?

[00:12:02] Speaker 05:
Well, obviously, the president said we were forced to engage in an enforcement action that was a valid ab initio.

[00:12:08] Speaker 05:
Well, we also had the stigma of having been charged with violating federal FEC regulation and filing.

[00:12:17] Speaker 02:
But you didn't contest that.

[00:12:18] Speaker 02:
You did violate it.

[00:12:19] Speaker 02:
I mean, it was late.

[00:12:20] Speaker 05:
But that only begins the inquiry, Your Honor.

[00:12:22] Speaker 05:
It does not end it, because we had other defenses, such as the best efforts defense, such as that the treasurer is liable for this, even under the FEC's own regulations.

[00:12:33] Speaker 05:
And even with respect to the general counsel and their administrative review officer said to the commission, we request that you consider the personal liability of this treasurer.

[00:12:45] Speaker 05:
And yet, under these tally votes that came in,

[00:12:48] Speaker 05:
Where is their reasoning?

[00:12:49] Speaker 05:
There was no reasoning why the court, why the FEC rejected that kind of enforcement action that would take the burden off of us.

[00:12:57] Speaker 05:
The court below said, oh, the commission gave reasonable grounds for that, but there's nothing in the record of what the agency did.

[00:13:05] Speaker 05:
That's what the FEC attorneys post hoc rationalized what the agency did.

[00:13:10] Speaker 05:
And furthermore, these votes even at the final stage,

[00:13:13] Speaker 05:
again, are defective in the sense that you still need four affirmative votes, but at the final stage, the final determination stage, there were only two votes we claimed that were valid, one that they said they approved the recommendation.

[00:13:32] Speaker 05:
There were ones submitted after the ballot deadline, which by the

[00:13:37] Speaker 05:
their own secret directive 52 says it has to be submitted by the deadline, and there were three others that were signed by another staffer, and the commission's secret directive, well, semi-secret directive says,

[00:13:53] Speaker 05:
If you're going to have a staffer sign in your name, you have to give the specific instructions on what they're to do and how to vote, and that has to be kept as a record with the agency, the commissioner.

[00:14:06] Speaker 05:
We asked for that information, and the FECs refused to give us that.

[00:14:09] Speaker 05:
So even at the final determination stage, there could be a defective voting procedure there.

[00:14:15] Speaker 02:
were inclined to remand to the agency?

[00:14:18] Speaker 02:
Is there anything additional that you think could be beneficial to your claim in terms of things that would go into the administrative record?

[00:14:26] Speaker 05:
Well, Your Honor, if you remand either to the district court to consider our argument, which the court obviously should have, or if you vacate to the agency, they would just have to begin the process again.

[00:14:41] Speaker 02:
They would have to, they may even decide... What would you want to know that you'd be entitled to know that you don't have?

[00:14:49] Speaker 05:
What would I want to know?

[00:14:50] Speaker 05:
I would want them to, first of all, proceed under the statute by finding a reason to believe, and secondly, by finding why they did not

[00:15:04] Speaker 05:
find the treasurer personally liable.

[00:15:06] Speaker 05:
They were requested by their review officer, officer administrative review officer, Dana Brown, to consider this.

[00:15:15] Speaker 05:
And yet, when the final vote came down, there was nothing there.

[00:15:18] Speaker 05:
All it said, by the way, is, I approve the recommendation.

[00:15:22] Speaker 05:
But what was the recommendation by the staffer?

[00:15:24] Speaker 05:
The staffer said,

[00:15:25] Speaker 05:
We recommend that you make a finding that there was a violation here and assess the fine.

[00:15:32] Speaker 05:
But there really was no order or process by the commission.

[00:15:35] Speaker 05:
They never dropped the other shoe and said, we hereby find that you violated the law.

[00:15:40] Speaker 05:
All they said is, we don't object to you recommending that we

[00:15:44] Speaker 05:
make that statutory decision.

[00:15:48] Speaker 05:
So it seems that the Commission is basically offloading their responsibilities to their staff, and we think that under those circumstances, it demands that the whole administrative proceeding be vacated.

[00:16:04] Speaker 03:
All right.

[00:16:04] Speaker 03:
You've gone over your time.

[00:16:06] Speaker 03:
We'll give you a couple minutes.

[00:16:08] Speaker 03:
Thank you.

[00:16:08] Speaker 03:
Mr. Summers?

[00:16:16] Speaker 03:
Can I ask you a question?

[00:16:18] Speaker 03:
I don't know that the plaintiff raises this, but do you concede that he could have challenged the vote under this at the reason to believe stage under 11 CFR 111.35, which seems to have only three bases in order to challenge it, that the commission's reason to believe finding is based on a factual error, that it improperly calculated the civil money penalty or

[00:16:47] Speaker 03:
that the respondent used the best effort.

[00:16:51] Speaker 03:
I mean, I don't see where he could have made that challenge.

[00:16:53] Speaker 03:
You can see that he could have.

[00:16:55] Speaker 01:
I agree that that's not specified within the categories that you point out.

[00:17:00] Speaker 01:
I think it's likely that he could have challenged it then in the sense that it's

[00:17:08] Speaker 01:
a basic procedural objection, an objection that the agency had not followed its the relevant procedures.

[00:17:15] Speaker 01:
So that's really not the argument we're making.

[00:17:18] Speaker 03:
So an ultra-barries attack or what?

[00:17:24] Speaker 01:
Well, I guess on the merits it would be the same kind of attack they've made that the agency failed to follow what the statute and its regulation says is required in order to go forward.

[00:17:34] Speaker 01:
So we're not really arguing that

[00:17:36] Speaker 01:
I think that it would not have been proper to raise it at that time.

[00:17:40] Speaker 01:
We are arguing for a lot of the reasons we've been talking about that it would not have been a meritorious argument.

[00:17:46] Speaker 01:
And I do want to talk about the voting.

[00:17:48] Speaker 01:
I wanted to, if I could first just say that

[00:17:53] Speaker 01:
The case really is mainly about these admittedly late campaign finance reports and whether there's any legal excuse for the admitted late filing of those reports, not all the collateral matters really that the appellants have raised.

[00:18:10] Speaker 04:
But there's an organic statute that discusses what the power of the commission is.

[00:18:17] Speaker 04:
That organic statute

[00:18:20] Speaker 04:
uses the language that in, I guess it's what was 437C subparagraph C about voting requirements.

[00:18:37] Speaker 04:
Congress used the definite article, not the indefinite article, by saying, except that the affirmative vote of four members of the Commission shall be required to do certain things.

[00:18:52] Speaker 04:
Isn't the placement of the definite article, the way that that's phrased, unambiguously requiring

[00:19:03] Speaker 04:
you know, action as opposed to inaction by the by at least four commission members.

[00:19:10] Speaker 01:
Your honor, I think the relevant part of the statute, the one we're talking about here is at 52 USC 30109.

[00:19:22] Speaker 01:
a four, which governs the Commission's enforcement procedures.

[00:19:27] Speaker 01:
And I believe that the language, to the extent that the article is significant, speaks of an affirmative vote of at least four.

[00:19:35] Speaker 01:
I believe that is the relevant language.

[00:19:38] Speaker 01:
I think the language that Your Honor is pointing to is that a general statement of

[00:19:43] Speaker 01:
what the Commission's powers as a broad matter, how they are exercised, but a more specific language, I think, in what used to be Section 437-G, GA-1, I believe.

[00:19:57] Speaker 04:
It says, the affirmative vote before members shall be reported, etc., to take any action

[00:20:05] Speaker 04:
in accordance with paragraphs 6, 7, 8, or 9 of 437 D.A.

[00:20:12] Speaker 04:
So it's referring down to then what the powers of the Commission are and then when you get to D.A.

[00:20:22] Speaker 04:
and you get to D.A.

[00:20:24] Speaker 04:
9,

[00:20:25] Speaker 04:
It says to conduct investigations and hearings expeditiously, et cetera, et cetera.

[00:20:33] Speaker 04:
I don't see anything there that talks about the affirmative vote.

[00:20:39] Speaker 04:
The affirmative vote requirement, as I see it, comes from what was 437.

[00:20:44] Speaker 04:
I guess this was when it was back in Title II, as opposed to wherever it is now.

[00:20:49] Speaker 01:
That's right, Title XVII.

[00:20:52] Speaker 04:
It says the affirmative vote.

[00:20:54] Speaker 04:
If I'm wrong about that, point me to where in the statute I'm wrong about that.

[00:21:01] Speaker 01:
Your Honor, I think it may be stated the two different ways at different points in the statute.

[00:21:06] Speaker 04:
But whichever way it's stated, I would add to some of the points that have been made already about... Well, if it's stated a different point in the statute that's relevant, point that to me now.

[00:21:22] Speaker 01:
Yes, Your Honor, I believe in Section 52 USC 30109A1, if I'm not mistaken, as referred to by the portion of the statute in which Congress created the administrative crimes program.

[00:21:39] Speaker 04:
Where is that in your addendum or their addendum?

[00:21:42] Speaker 01:
Your Honor, I think I have to refer to my addendum.

[00:21:45] Speaker 02:
Is it not A2?

[00:21:46] Speaker 02:
I think it's page 44.

[00:21:48] Speaker 01:
Your Honor, I think it's A1 and A2 both.

[00:21:52] Speaker 01:
It's at page 44 of our addendum, between pages 44 and 49, we lay out Section 30109.

[00:22:02] Speaker 01:
And I think when Congress created the Administrative Fines Program, that's in Section 30109A4C, and that refers back to the earlier parts of Section A.

[00:22:14] Speaker 01:
in describing the streamlined process that the agency was to create and did create in order to handle these relatively routine late filings in a more summary and efficient way.

[00:22:26] Speaker 01:
And that was a goal and, I think, an accomplishment of the commission in creating the program.

[00:22:32] Speaker 01:
Whichever way, though, whether it's the or Anne affirmative vote,

[00:22:39] Speaker 01:
It is well established, as I think was mentioned earlier, that considerable deference is owed to the agency's interpretation of what the statute means under the Cannes Channel Act and other D.C.

[00:22:49] Speaker 01:
Circuit cases.

[00:22:50] Speaker 01:
So in this case, the text really should be interpreted in light of the purpose of the administrative fines program, and that was to streamline the enforcement proceedings relevant to relatively routine violations.

[00:23:03] Speaker 01:
In this case, we do have a directive, Director 52, a well-established agency practice that describes how it's handled and that's well understood by the commissioners who make these decisions.

[00:23:14] Speaker 01:
There is a strong presumption of agency regularity under the Mwekma case of this court and others.

[00:23:21] Speaker 01:
And in this case, it is consistent with affirmative to read it as an implied yes.

[00:23:28] Speaker 01:
It's an implied indication of yes.

[00:23:29] Speaker 04:
But isn't the definition of vote, whether you look at Webster's or Black's Law Dictionary at the time that Congress passed this, it's an expression of will.

[00:23:40] Speaker 04:
It's a formal expression of will.

[00:23:42] Speaker 04:
That's the common definition of vote.

[00:23:46] Speaker 04:
And so what the Commission has done and said, our staff is going to express its will.

[00:23:54] Speaker 04:
And if you don't say anything, then the staff's expression becomes effective.

[00:24:01] Speaker 04:
It becomes self-effectuated.

[00:24:03] Speaker 04:
And these cases weren't cited in the brief, but I searched through the US Code and through the reporters for cases construing statutes that say, shall be deemed admitted.

[00:24:20] Speaker 04:
And courts construe those kinds of provisions as basically something that forces the government actor or some actor to act quickly if they don't.

[00:24:31] Speaker 04:
then whatever action was proposed becomes self-affectuating.

[00:24:39] Speaker 04:
So whether you vote or not, whether you intend to support it or not, if you just don't act, it becomes effective.

[00:24:47] Speaker 04:
There's no formal expression of will by that decision maker.

[00:24:52] Speaker 04:
So I don't see how that's consistent with the definition of vote.

[00:24:57] Speaker 01:
Your Honor, I understand your point.

[00:24:59] Speaker 01:
I think it is consistent in this situation, in this particular circumstance, and it may not be in every circumstance.

[00:25:05] Speaker 01:
But here, where we have the program that Congress created with the goals that we have, and where it's important to remember the factual determination that's being made here is very straightforward.

[00:25:13] Speaker 01:
That's why Congress put this program in place.

[00:25:16] Speaker 01:
To find a reason to believe that the law has been violated, I mean, really, there's essentially, there is no dispute that there was reason to believe the law had been violated here.

[00:25:26] Speaker 01:
There's no dispute.

[00:25:27] Speaker 01:
The reports were filed very late.

[00:25:29] Speaker 01:
um, the fines that were imposed were correctly calculated, and at the reason to believe stage, that's really all the agency has to find where the report's late.

[00:25:38] Speaker 02:
Well, Mr. Schumacher, you're defending this reading of affirmative vote only in the context of this streamlined process, but given that that language appears more broadly in the Act,

[00:25:50] Speaker 02:
what is to limit the authority of the FEC to do – to institute no objection voting for much more important functions.

[00:25:58] Speaker 02:
I mean, here it seems like the traffic ticket function, but if we affirm your latitude to read it that way for this, why not for much more intrusive and politicized determinations?

[00:26:12] Speaker 01:
I think the limitation is exactly what you refer to, Your Honor.

[00:26:15] Speaker 01:
It's the fact that the analysis would be very different if it were being interpreted that way in a different context.

[00:26:20] Speaker 02:
Do you have any precedent that you would have latitude to interpret the same term, affirmative vote, in two different ways depending on the seriousness of the function?

[00:26:32] Speaker 01:
I don't have that precedent before me, Your Honor.

[00:26:35] Speaker 02:
It would seem kind of important to your position, because doesn't it assume that?

[00:26:39] Speaker 01:
I don't know if it assumes it, Your Honor, but in this particular circumstance, that is our position.

[00:26:45] Speaker 01:
I think that every case is different, and we're not arguing that, and I don't think we would argue, that if there was a more

[00:26:55] Speaker 01:
If there was a final determination, this is a basic preliminary determination in a routine matter.

[00:27:03] Speaker 01:
So I understand the point, but I think in this case, it is a permissible interpretation of that term based on the different potential meanings of that term.

[00:27:15] Speaker 01:
It may not be a reasonable interpretation of that term in other contexts.

[00:27:19] Speaker 01:
And indeed, in more consequential final determinations, it may well not be.

[00:27:25] Speaker 02:
Why is that?

[00:27:26] Speaker 02:
I mean, are you not confident that the no objection process actually reflects the considered judgments of the commissioners who vote through that process?

[00:27:40] Speaker 01:
I'm not sure I understand.

[00:27:41] Speaker 02:
In other words, one of the things that Petitioner was raising was the concern that

[00:27:48] Speaker 02:
You know, maybe the commissioners whose votes are recorded as yes votes on some of these matters never saw the papers.

[00:27:55] Speaker 02:
They never actually made any decision whatsoever.

[00:27:58] Speaker 02:
And I guess I want to know what your response is to that.

[00:28:04] Speaker 02:
Is that, in fact, permissible in your view?

[00:28:09] Speaker 02:
And do we have any reason to believe one way or the other that there

[00:28:14] Speaker 02:
safeguards in place, inventory processes or receipts in place to determine that they have in fact contemplated the questions before them on these affirmative votes?

[00:28:25] Speaker 01:
Your Honor, there is an assumption of the regularity of agency processes.

[00:28:30] Speaker 01:
This is a well-understood procedure.

[00:28:32] Speaker 01:
It is on the website.

[00:28:34] Speaker 01:
It's something that's been in place for years.

[00:28:36] Speaker 01:
There's many checks in addition because it's merely a preliminary determination.

[00:28:39] Speaker 01:
It's not final agency action.

[00:28:41] Speaker 01:
Nothing can be done with it.

[00:28:43] Speaker 01:
It merely allows this proceeding to go forward.

[00:28:46] Speaker 01:
The checks in this case, they've had

[00:28:49] Speaker 01:
every kind of opportunity to be heard.

[00:28:52] Speaker 01:
Not only they were able to respond after this reasonably finding, they were able to respond and did respond again prior to the final determination.

[00:29:02] Speaker 01:
And then even a third time when they requested reconsideration, which is not something provided for in the procedure, but which the commission again considered.

[00:29:11] Speaker 01:
And there was again another six to zero vote on the final

[00:29:13] Speaker 01:
on the request for reconsideration, all those elements of the procedure provide the checks on any potential problem and issue.

[00:29:22] Speaker 01:
There is no evidence of any irregularity here.

[00:29:25] Speaker 01:
It's true that because of the

[00:29:28] Speaker 01:
well understood practice, we don't have an indication proof, like a completed ballot.

[00:29:37] Speaker 01:
So I understand that concern.

[00:29:38] Speaker 01:
But because of all those other checks, because it is a preliminary determination, because the program is so well understood and is supposed to be a streamlined one, there's really no indication here that there's anything amiss.

[00:29:53] Speaker 02:
So I'm still concerned that we have this other provision, the matched provision, 30106C, which also includes a reference to an affirmative vote, and for many other more important, more momentous functions, the functions listed under paragraph 6789 and the like, and

[00:30:21] Speaker 02:
you're saying that those could be distinguished, that you could read affirmative vote differently there.

[00:30:28] Speaker 02:
What's lost by the agency in reading affirmative vote the way that the petitioners here would read it?

[00:30:34] Speaker 02:
I mean, if you could get, as a commissioner, a list of these affirmative fines and just have to initial a page, maybe it would be helpful to us to find out what the burden of that would be.

[00:30:47] Speaker 02:
How often are these imposed?

[00:30:50] Speaker 02:
thousands of them or is it hundreds, is it dozens?

[00:30:55] Speaker 02:
How hard would it be to just require an initial or even a delegated initial?

[00:31:01] Speaker 02:
by someone in the Commissioner's office.

[00:31:03] Speaker 01:
Your Honor, it may well be that that is a procedure that the Commission could function with.

[00:31:09] Speaker 01:
I think there are not thousands and thousands of these violations every year, but there are a significant number.

[00:31:16] Speaker 01:
The Commissioners have many different things they're doing.

[00:31:18] Speaker 01:
This was an effort to balance efficiency with fairness, with due process, and we think it does.

[00:31:25] Speaker 01:
the agency has not been, that's one of the issues we've raised.

[00:31:29] Speaker 01:
I mean, the agency has not been given a chance to reconsider this.

[00:31:33] Speaker 01:
It is possible, if given that chance, that it would make a different decision.

[00:31:37] Speaker 02:
Are you asking us for, like, let's say we were to remand so that you could give us your full judgment on this.

[00:31:44] Speaker 02:
It sounds like there was this

[00:31:46] Speaker 02:
I'm not sure why there was so much reluctance to giving the ballots that were requested, but we didn't have a full consideration in the commission.

[00:31:55] Speaker 02:
If we were to send it back, is that something that you think would be useful?

[00:31:59] Speaker 02:
Can you tell us a little bit about why you think that might be useful?

[00:32:02] Speaker 01:
Your Honor, I don't think it's necessary here.

[00:32:04] Speaker 01:
I think that in this case, there's been no showing of harm from this

[00:32:10] Speaker 01:
you know, arguable flaw or defect in the process.

[00:32:15] Speaker 01:
So I don't think that's necessary in this case.

[00:32:19] Speaker 01:
Of course, it may always be useful for an agency to reconsider how it's balanced these different determinations and its procedures.

[00:32:25] Speaker 01:
I would say, though, that it was an effort to streamline the process as Congress intended, an effort because of the awareness that there were safeguards in place, and it's a very simple and straightforward determination at that stage.

[00:32:39] Speaker 01:
So that determination was made.

[00:32:42] Speaker 04:
Congress has passed several laws where

[00:32:47] Speaker 04:
you know, an agency or some other body takes an action and then it becomes effective after that final agency action after a certain period of time if Congress doesn't disapprove the action.

[00:33:05] Speaker 04:
Federal sentencing guidelines work that way.

[00:33:08] Speaker 04:
There's a sentencing commission.

[00:33:09] Speaker 04:
They promulgate guidelines.

[00:33:12] Speaker 04:
They go into effect unless Congress acts to change them.

[00:33:17] Speaker 04:
Here in the District of Columbia, there's the Home Rule Act that gives the DC City Council authority to pass laws in certain areas.

[00:33:26] Speaker 04:
But even those laws where they have authority to pass, they don't go into effect until there's this congressional review period expires.

[00:33:39] Speaker 04:
In those circumstances where Congress doesn't act and the DC law goes into effect, has Congress voted?

[00:33:49] Speaker 01:
Your Honor, I think I'd have to look at all the relevant circumstances there, and I'm not sure I know enough to answer, just based on what you've said.

[00:33:57] Speaker 01:
It would depend on the particular structure of regulation that was in place, and I think it is very context-dependent.

[00:34:06] Speaker 04:
What else do you need to know to answer my question?

[00:34:09] Speaker 01:
Well, the relevant, relevant language that's being applied, all the different policy concerns that go into it, the different, the relevant precedent.

[00:34:18] Speaker 01:
I think it's a very complicated analysis.

[00:34:20] Speaker 01:
And this is a very isolated question.

[00:34:25] Speaker 04:
The D.C.

[00:34:26] Speaker 04:
Council passes a law and a review period comes and goes and Congress doesn't act one way or the other and the law becomes effective as Congress voted.

[00:34:40] Speaker 04:
Pretty simple question.

[00:34:42] Speaker 01:
It's possible that Congress would have voted if Congress had in place a recognized procedure that said if we do not act within that period, it will be deemed a vote on our behalf.

[00:34:53] Speaker 01:
Everyone in Congress knew that, and there was no additional countervailing circumstance or factor that made that

[00:35:02] Speaker 01:
a bad idea or, you know, that reduce the risk that that would cause some other harm and if, as here, it was a preliminary determination, very soon to be followed up with a more formal voting procedure on the same issue.

[00:35:19] Speaker 01:
And if all the other factors present in our case were present, then in that case, I would say that may well be a vote, yes.

[00:35:27] Speaker 01:
So I see my time is up.

[00:35:31] Speaker 01:
I did want to make a couple other points.

[00:35:32] Speaker 04:
I'd like to ask a member of Congress if they agree with that assessment.

[00:35:38] Speaker 01:
Your Honor, they might not.

[00:35:40] Speaker 01:
But again,

[00:35:41] Speaker 01:
To be similar to this situation, it would depend on there being a structure in place in which it was stated that their vote would be counted in that way.

[00:35:49] Speaker 01:
So maybe they would not agree to that.

[00:35:53] Speaker 01:
Why don't you wind it up?

[00:35:56] Speaker 01:
Just a few points quickly.

[00:35:59] Speaker 01:
The commission did consider the treasurer's liability.

[00:36:01] Speaker 01:
I think that's pretty clear from the record.

[00:36:03] Speaker 01:
There was no recommendation from the reviewing officer or the Office of General Counsel that the treasurer, the original treasurer be pursued in his personal capacity.

[00:36:13] Speaker 01:
That's just not the case.

[00:36:15] Speaker 01:
It was merely noted that that was possible.

[00:36:18] Speaker 01:
But the recommendation was always not to do that, but instead merely to impose liability on the committee.

[00:36:23] Speaker 01:
and the office of whoever was currently the treasurer in an official capacity.

[00:36:30] Speaker 01:
The Chamber of Commerce case is distinguishable as we

[00:36:33] Speaker 01:
in our brief, I believe, because in that case, it was a final rule.

[00:36:36] Speaker 01:
This is merely a preliminary non-final determination, and again, pursuant to a well-established agency procedure.

[00:36:43] Speaker 01:
And finally, the Mack Truck case, that's another very different context, the rulemaking context.

[00:36:49] Speaker 01:
This is an administrative fine.

[00:36:50] Speaker 01:
There's no lack of process here.

[00:36:53] Speaker 01:
There was a full opportunity to be heard multiple times, which appellants took full advantage of.

[00:36:58] Speaker 01:
And again, winding up,

[00:37:01] Speaker 01:
There's no reason to think that with all the alleged, all the defects that have been alleged, that there would be any different result in this case.

[00:37:09] Speaker 01:
So any error was harmless error.

[00:37:11] Speaker 01:
Remand would be futile.

[00:37:13] Speaker 01:
We ask that you affirm the district court's decision.

[00:37:15] Speaker 03:
All right.

[00:37:17] Speaker 03:
Thank you.

[00:37:17] Speaker 03:
Does Mr. Kamler have any time?

[00:37:18] Speaker 03:
Why don't you take two minutes?

[00:37:21] Speaker 05:
Thank you, Your Honor.

[00:37:23] Speaker 05:
Just to address the whole argument that they're making that this process is a streamlined process.

[00:37:31] Speaker 05:
Congress wanted to streamline it.

[00:37:32] Speaker 05:
That's why we wanted to streamline this process and streamline the way the rights of respondents here and violate the statute.

[00:37:42] Speaker 05:
This Directive 52 was promulgated in 2008.

[00:37:47] Speaker 05:
The administrative fines program was, in effect, 1999.

[00:37:51] Speaker 05:
So the agency almost had a decade of at least attempting to comply with the law by casting affirmative votes.

[00:38:01] Speaker 05:
And as Judge Wilkins rightly pointed out, you have to have an expression of what your position is.

[00:38:08] Speaker 05:
And Judge Pillard also rightly pointed out that there's no limit to this kind of agency application of your statutory duty.

[00:38:17] Speaker 05:
This directive is not in the Federal Register.

[00:38:20] Speaker 05:
It's not even in the Rules of Procedure, which I find amusing.

[00:38:25] Speaker 05:
It's basically a hide the ball.

[00:38:27] Speaker 05:
And in terms of the Treasurer's liability, we just heard counsel say, well, actually the record does show that the Commission considered it.

[00:38:35] Speaker 05:
It's not in the record.

[00:38:37] Speaker 05:
All it says is, I approve the recommendation.

[00:38:40] Speaker 05:
But the staff person actually requested the commission to consider it.

[00:38:45] Speaker 05:
And as we all know from NATO versus FEC, et cetera, you have to have a statement of reason why you're not engaging in this enforcement action.

[00:38:54] Speaker 05:
It was simply not there.

[00:38:55] Speaker 05:
Finally, the best efforts regulation, we did raise that below, and the record shows that this regulation constricts what kind of arguments we can make as to why we use our best efforts and the treasurer should be the one held liable.

[00:39:14] Speaker 05:
In conclusion, Your Honor, we ask this Court to reverse the District Court judgment, and that countenance is cleared violation of the statute, and that its failure to hold treasurers liable to countable

[00:39:25] Speaker 05:
undermines the integrity of the campaign finance reporting system.

[00:39:30] Speaker 05:
And as the chairman of the commission just recently said, quote, only where there are real consequences is there respect for the law.

[00:39:36] Speaker 05:
There aren't real consequences now.

[00:39:38] Speaker 05:
Well, the consequences was to hold the treasurer who is reckless liable for this and not the innocent committee.

[00:39:44] Speaker 05:
Thank you, Your Honor.