[00:00:02] Speaker 03:
Case number 15-5120, Laura Holmes at Elle Appellants versus Federal Election Commission.

[00:00:08] Speaker 03:
Mr. Dickerson for the appellants, Ms.

[00:00:10] Speaker 03:
Cholpak for the appellee.

[00:00:16] Speaker 02:
Dickerson.

[00:00:17] Speaker 02:
Let me apologize in advance.

[00:00:18] Speaker 02:
If I'm coughing, it's not because of anything you've done.

[00:00:21] Speaker 02:
But I have cough drops, so.

[00:00:22] Speaker 02:
I appreciate that, Josh.

[00:00:24] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:27] Speaker 03:
Congress has determined that an individual may contribute $2,700 to a candidate in a primary election, and that if that candidate survives to the general election, that that individual may contribute a total of $5,400.

[00:00:41] Speaker 03:
Our case simply asks how it can be more corrupting to give that same $5,400 at that later point.

[00:00:48] Speaker 03:
This is a question that has never been addressed by any court.

[00:00:51] Speaker 03:
And Supreme Court, just last month, in a unanimous decision, issued its ruling in Shapiro v. McManus, which disposes of this appeal and clarifies two important points.

[00:01:02] Speaker 03:
First, it can be as brief.

[00:01:03] Speaker 02:
So I was actually wondering why neither you nor your opposing counsel filed.

[00:01:09] Speaker 02:
a 28-J letter advising us about Shapiro, and I think all of us know about it, but- I was actually in ECF about to hit send when your Honor's order came through.

[00:01:17] Speaker 03:
Ah, okay.

[00:01:19] Speaker 03:
It was a moment of some celebration in the office.

[00:01:23] Speaker 03:
To clarify those two points, first, following up on unbread pack and CALMAT, the Court made it quite clear that when discussing the jurisdiction of the Courts, Congress's clear statutory language must be given effect.

[00:01:38] Speaker 03:
In justice in Shapiro, the statutory language here is, quote, unambiguous, and, quote, admits of no exception.

[00:01:45] Speaker 03:
That language is the district court immediately shall certify all questions of constitutionality of the act to the United States Court of Appeals for the circuit involved, which will hear the matter sitting on board.

[00:01:57] Speaker 03:
Justice was the case of the three-judge provision at issue in Shapiro.

[00:02:00] Speaker 03:
The mandatory shall normally creates an obligation impervious to judicial discretion, such as the case here.

[00:02:07] Speaker 03:
Second, the court explicitly addressed the FEC's claim in this case, that special review provisions need not be provided if a claim is insubstantial.

[00:02:17] Speaker 03:
But for that purpose, the court could not have been clearer.

[00:02:19] Speaker 03:
The insubstantiality at issue is not a merits determination.

[00:02:23] Speaker 03:
It simply addresses the possibility that a claim is so frivolous that, quote, the district court itself lacks jurisdiction of the complaint, for the complaint is not justiciable in the federal courts.

[00:02:33] Speaker 03:
For purposes of this, to take the phrase from the Supreme Court, constitutional insubstantiality.

[00:02:39] Speaker 03:
Certification is appropriate unless a case fails to raise a substantial claim for jurisdictional purposes.

[00:02:44] Speaker 03:
And that standard has been equated to, again quoting, essentially fictitious, wholly insubstantial, obviously frivolous and obviously without merit.

[00:02:54] Speaker 03:
And the adverbs were no mere throwaways.

[00:02:56] Speaker 03:
The limiting words wholly and obviously have cogent legal significance.

[00:03:01] Speaker 03:
If anything, Shapiro applies with more force in this context.

[00:03:05] Speaker 03:
Recall that in Shapiro, the underlying statute actually had language suggesting there would be cases where a single district court, which would decide that a three-judge court was not, in fact, necessary.

[00:03:16] Speaker 03:
No similar exceptions present here.

[00:03:22] Speaker 03:
In essence, the issue is simply that Shapiro is black-letter law.

[00:03:26] Speaker 03:
Shapiro, if anything, determines that several of the authorities relied on by the FEC are no longer good law.

[00:03:33] Speaker 03:
And since there's no question that the courts do have jurisdiction to overhear this case, and because the only forum for the hearing of such a case is this court sitting en banc,

[00:03:42] Speaker 03:
That is enough.

[00:03:44] Speaker 03:
I think there's no question that had Shapiro come down at the time the district court was considering whether to recertify the questions, that she's likely to have done so for two reasons.

[00:03:52] Speaker 03:
One, the district court I think can be trusted to realize when she lacks jurisdiction over the matter in general.

[00:03:59] Speaker 03:
And second, she had in fact certified it previously.

[00:04:03] Speaker 03:
And finally, I think it's important to note that we're here on a grant of summary judgment.

[00:04:08] Speaker 03:
Shapiro, again, was a decision about whether or not one could reach the Merit Center 12b6 standard.

[00:04:12] Speaker 03:
If that lower standard is not acceptable, if in fact there is no jurisdiction to reach 12b6, then how much more so to reach summary judgment?

[00:04:23] Speaker 03:
If Your Honours have no questions on that matter, I would address just two quick points.

[00:04:28] Speaker 03:
The first is that I think there has been some confusion as to the as-applied nature of our claim.

[00:04:34] Speaker 03:
I'd like to very briefly address that.

[00:04:36] Speaker 03:
It is as-applied in two senses.

[00:04:38] Speaker 03:
One, it only applies to an individual who is not given in the primary but wishes to give in the general election.

[00:04:45] Speaker 03:
I think there was some confusion in the record on this.

[00:04:47] Speaker 03:
If we were to prevail, the remedy would not be that there's a change in the contribution limit of the primary election standard or at any other stage of litigation.

[00:04:55] Speaker 03:
What would happen is that during the primary election, the contribution limit would remain $2,700.

[00:04:59] Speaker 03:
And once one knew who had advanced to the general election, the contribution limit would be the aggregate amount that Congress had approved between that individual and that candidate.

[00:05:09] Speaker 03:
There's been discussions of other special situations, such as the way Louisiana picks its congressman, where you will have a single election and if someone gets a majority, that person is seated.

[00:05:19] Speaker 03:
We're not suggesting the contribution limit in that single election is $5,400.

[00:05:22] Speaker 03:
What we're suggesting is that the contribution limit in that election is $2,700, precisely because you don't know if there's a runoff election.

[00:05:29] Speaker 03:
If there's a runoff election in our theory, then the contribution limit in that runoff and that runoff only would be $5,400.

[00:05:36] Speaker 03:
This is as applied because the statute defines election very broadly to include primaries, to include generals, to include runoffs and various other sorts of ways of picking candidates.

[00:05:47] Speaker 03:
And since we're not asking this court to draw a line to the word election and the contribution limit, we're merely asking for as applied relief in these particular circumstances of a contributor who is not given in the primary and wishes to give in the general.

[00:06:01] Speaker 03:
And finally, there's also been the suggestion that, in fact, the FEC's regulation which permits the taking of unspent primary funds and their spending in the general election is the real center of this case.

[00:06:14] Speaker 03:
We disagree on two points.

[00:06:15] Speaker 03:
One, we take the FEC at its word that its regulation is, in fact, a fair representation of the statute.

[00:06:22] Speaker 03:
And two, I would direct your honors to 52 USC 30114

[00:06:28] Speaker 03:
which governs when monies that are given can in fact be spent, and subparts one is for otherwise authorized expenditures in connection with the campaign for federal office of the candidate or individual.

[00:06:40] Speaker 03:
That language seems to suggest, one, because it's not limited by election as contribution limits are, that in fact money can be used in the context of the same campaign.

[00:06:49] Speaker 03:
So I think that argument is a little bit of a red herring.

[00:06:53] Speaker 03:
Your honors have no questions.

[00:06:56] Speaker 01:
I have a question.

[00:07:03] Speaker 01:
The argument that you make with respect to giving of a, you said 5,400, is that what it is now?

[00:07:11] Speaker 03:
Yes, it's been indexed inflation.

[00:07:13] Speaker 01:
Right, okay.

[00:07:17] Speaker 01:
If you give one day after the primary, you can't give 5,200.

[00:07:21] Speaker 01:
If you give it one day before, you can essentially give 5,200.

[00:07:26] Speaker 01:
And if you earmark it, then it has to be to retire expenses that occurred during the primary election.

[00:07:33] Speaker 03:
If it's given after the primary, correct.

[00:07:35] Speaker 01:
After the primary.

[00:07:35] Speaker 01:
But that lack of symmetry that you point out stems from the regulations, not the statute.

[00:07:45] Speaker 01:
And you argue it that way on pages 32 to 33 of your brief.

[00:07:50] Speaker 01:
So the question I guess I have is when we've had cases that challenge only commission regulations, they're treated not in the way that the designate and go to the in-bank court.

[00:08:03] Speaker 01:
They're treated as a regular case.

[00:08:05] Speaker 01:
the district court decides that it comes up to us, and then it's just a regular three-judge panel.

[00:08:11] Speaker 01:
So why should that portion of your argument be treated any differently than the usual mind-run case dealing with regulation?

[00:08:19] Speaker 03:
Well, I think there's two responses, Your Honor.

[00:08:21] Speaker 03:
One is that the disproportionality there doesn't affect our First Amendment claim, only our Fifth Amendment claim.

[00:08:28] Speaker 01:
I'm only talking about the Fifth Amendment.

[00:08:30] Speaker 03:
And to that point,

[00:08:34] Speaker 03:
But first, I think we do argue that it is required by the statute in the sense that the contribution limit is limited by the amount that you can get.

[00:08:45] Speaker 01:
Where do you argue that?

[00:08:46] Speaker 01:
I couldn't find it.

[00:08:48] Speaker 03:
Maybe I could bring that up on rebuttal.

[00:08:50] Speaker 03:
But the larger point is that

[00:08:54] Speaker 03:
It's not really the regulation that's harming us, because the regulation is in fact congruent with congressional intent for the reason, for the statute that I just read out.

[00:09:05] Speaker 03:
And finally, there's a suggestion in, I'd point your honor to the footnote that's been cited several times in CalMed, where one of the suggestions is, to the extent that we're worried about this procedure being misused,

[00:09:21] Speaker 03:
You know, the standard doctrines of constitutional avoidance are in play.

[00:09:25] Speaker 03:
I think if this were a case where relief was available.

[00:09:29] Speaker 01:
I'm more concerned about the jurisdiction.

[00:09:34] Speaker 01:
And I thought your response would be, well, there's pendant jurisdiction.

[00:09:39] Speaker 01:
when the district court certifies the case of the issues to the in-bank court that there be pending jurisdiction over this interrelated claim dealing with the regulations.

[00:09:53] Speaker 01:
But that argument, I didn't find that argument in your brief.

[00:09:56] Speaker 03:
And I don't think that is our argument with candor, Your Honor.

[00:10:00] Speaker 03:
I think our argument is that, as was seen in the L&C case, that the duty of the district court is to find and certify the constitutional questions.

[00:10:11] Speaker 03:
To the extent, and again, we disagree with the mayor's claim that the regulation is the cause of our injury.

[00:10:18] Speaker 03:
If that were the view on the Fifth Amendment claim,

[00:10:22] Speaker 03:
that might affect the outcome of this appeal, but it would not touch the First Amendment claim.

[00:10:30] Speaker 02:
Let's see if I understand.

[00:10:31] Speaker 02:
On the Fifth Amendment, your argument is that the statute is what causes your problem and it's unconstitutional, correct?

[00:10:39] Speaker ?:
Yes.

[00:10:39] Speaker 02:
If in fact we were looking at it and we thought it was actually the regulation that was causing your problem, and we had already accepted it for Anpan, you would simply lose because the Anpan court doesn't have jurisdiction over the regulatory question.

[00:10:55] Speaker 02:
And you would have to go back and file in the district court if you wanted to still challenge the regulation.

[00:10:59] Speaker 02:
Is that right?

[00:11:00] Speaker 03:
Yes, I think that is correct.

[00:11:02] Speaker 03:
I mean, we're all sort of dealing with new law here.

[00:11:06] Speaker 03:
But yes, I think it's correct that to the extent the regulation is the issue, that is an APA claim.

[00:11:10] Speaker 02:
So then the only question for us is, is it frivolous, as a shorthand for all the other words in Shapiro, for you to argue that it is the statute rather than the regulation that is causing the problem?

[00:11:23] Speaker 02:
That's the issue before us on this Fifth Amendment issue.

[00:11:26] Speaker 02:
Is it frivolous to argue that it is the statute rather than the regulation?

[00:11:30] Speaker 03:
I think that's correct.

[00:11:31] Speaker 03:
And again, in the sense that the statute says monies that are given may be spent throughout the campaign of the individual, not the election of the individual, the regulation is perfectly correct.

[00:11:44] Speaker 02:
Your view is that the regulation is consistent with the statute, just clarifies it.

[00:11:50] Speaker 02:
is generated by the statute.

[00:11:53] Speaker 02:
We will have to decide that question on Bonk if we take the case on Bonk.

[00:11:56] Speaker 02:
I think that's exactly right.

[00:12:00] Speaker 03:
Then I would reserve the balance.

[00:12:01] Speaker 03:
Thank you.

[00:12:14] Speaker 00:
Aaron Klopak for the Federal Election Commission.

[00:12:16] Speaker 00:
May it please the Court.

[00:12:18] Speaker 00:
The appellants asked the court below to certify whether they have a constitutional right to make $5,200 double the limit general election contributions to certain candidates in 2014.

[00:12:27] Speaker 00:
The district court properly declined to certify that question, which is wholly insubstantial because it has already clearly been decided by the Supreme Court.

[00:12:38] Speaker 00:
In Buckley... Can I just pause for a minute?

[00:12:40] Speaker 02:
Sure.

[00:12:41] Speaker 02:
Since neither of you provided us with the information about Shapiro, do you agree that the standard established for the three-judge court in Shapiro is the same as the standard for us?

[00:12:55] Speaker 02:
We agree that it's analogous and that it's... I know you used the word analogous in your letter, but what else could it be?

[00:13:03] Speaker 02:
Well, it is a question of jurisdiction of interpreting the word shell.

[00:13:06] Speaker 02:
The Supreme Court said this is really only the way you get out is if it's jurisdictionally insufficient.

[00:13:12] Speaker 02:
The only way that gets out is as opposing counsel says,

[00:13:16] Speaker 02:
essentially fictitious, holy, and substantial, obviously frivolous, and obviously without merit.

[00:13:21] Speaker 00:
And the Commission does not dispute that that standard is applicable in this context.

[00:13:25] Speaker 00:
Shapiro did deal with a different statute, Section 2284, and there are some differences, including the District Court's fact-finding role under Section 30110, which governs this case, but there is no dispute.

[00:13:37] Speaker 00:
that the standard for determining insubstantiality articulated in Shapiro is applicable here.

[00:13:43] Speaker 02:
And the district court, deciding before Shapiro, analogized it to, I think, a Ninth Circuit case or something that actually applied 12b6 rule, and that's obviously wrong, because Shapiro specially rejected that test.

[00:13:55] Speaker 00:
we agree that the 12b6 standard is wrong.

[00:13:57] Speaker 00:
But I will say, I think a number of cases before Shapiro use different articulations of what the standard is.

[00:14:05] Speaker 00:
But one consistent theme in all of those cases, even when they talk about 12b6 or sometimes talk about summary judgment, was there was agreement that a case, whatever the standard may be, a case that is settled by the Supreme Court, where a legal issue is settled by the Supreme Court, that those cases are insubstantial.

[00:14:21] Speaker 00:
And Shapiro confirms that that standard remains the standard and continues to.

[00:14:30] Speaker 00:
to illuminate what wholly insubstantial means.

[00:14:34] Speaker 00:
So in the Shapiro case, the court clarified that wholly insubstantial means lack of federal question and lack of jurisdiction.

[00:14:42] Speaker 00:
And it characterized it as a jurisdictional rather than a merits determination.

[00:14:46] Speaker 00:
But rather than redefining the phrase wholly insubstantial, what the Supreme Court in Shapiro did was embrace a series of earlier Supreme Court precedents dating back, I think, as far as 1910,

[00:14:57] Speaker 00:
all of which confirm that a legal issue that is settled by the Supreme Court is indeed wholly insubstantial.

[00:15:04] Speaker 02:
In just a few of those cases... Right, so, but it depends on what we mean by the words wholly settled by the Supreme Court.

[00:15:10] Speaker 02:
That is, if the Supreme Court had decided the case that they're arguing here, this claim about bifurcation, then of course it would be frivolous because we are bound by the Supreme Court.

[00:15:20] Speaker 02:
That would be the end of it.

[00:15:21] Speaker 02:
Their argument is that this specific issue has not been decided, and so there isn't settled law on this specific issue.

[00:15:30] Speaker 00:
Well, if the commission takes issue, it's the characterization of the statute as being artificially bifurcated, and the court does not need to accept a frivolous, factually inaccurate characterization of a statute or Supreme Court decisions, which is the only thing that the appellants in this case have

[00:15:46] Speaker 00:
as the basis for distinguishing their claims from the issues resolved in Buckley.

[00:15:52] Speaker 02:
So, does the district court properly apply, regardless of whether it characterizes this decision as a summary judgment decision or... But Buckley did not address the specific question they're raising here, which is whether it violates either the First Amendment or the Fifth Amendment to allow

[00:16:10] Speaker 02:
unopposed candidates to get the $5,200 amount and opposed candidates only half for each.

[00:16:26] Speaker 00:
Well, with respect, the Supreme Court did address that.

[00:16:28] Speaker 00:
The Supreme Court held in Buckley that the per-election limit, which is, as counsel has recognized, that is how the statute is laid out by Congress.

[00:16:40] Speaker 00:
There is no bifurcated election cycle limit.

[00:16:43] Speaker 01:
In Buckley, there were nine certified questions.

[00:16:47] Speaker 01:
with subparts that the Court of Appeals and Bank and a three-judge court simultaneously considered and decided.

[00:16:56] Speaker 01:
And those were the issues that went up to the Supreme Court in the public.

[00:17:00] Speaker 01:
And I've looked at them.

[00:17:01] Speaker 01:
There must be 30 different questions that were ripe for decision in the Supreme Court.

[00:17:07] Speaker 01:
Not a single one of them even comes close to the issue that's been litigated in this case.

[00:17:13] Speaker 01:
And the other thing I did,

[00:17:14] Speaker 01:
I went back, because along with Frank Easterbrook and Robert Bork, I was in the Solicitor General's Office.

[00:17:22] Speaker 01:
We filed a 122-page brief in Buckley, and I went back and looked at it, and this question that is before us now was never addressed, and that was 122 pages.

[00:17:33] Speaker 01:
It's a pretty thorough brief.

[00:17:34] Speaker 01:
And I don't see it being addressed.

[00:17:38] Speaker 01:
The only thing that was being addressed in Buckley was the contribution limits and whether they were constitutional, not the bifurcation that we have here.

[00:17:46] Speaker 00:
That's correct, Your Honor.

[00:17:47] Speaker 00:
And it's unsurprising that neither Buckley or any case after Buckley addressed the bifurcation issue, because there is no bifurcation issue.

[00:17:55] Speaker 00:
And I think that's what Buckley and subsequent cases, including McCutcheon, which apparently

[00:18:00] Speaker 00:
that appellants have placed a great deal of weight on, make clear there is no election cycle bifurcated limit.

[00:18:06] Speaker 00:
And while appellants have tried to suggest that the fact that the statute defines elections to include runoffs and special elections and other type of contests is not relevant, here it is, because what it demonstrates is the erroneousness

[00:18:21] Speaker 00:
the erroneous nature of this characterization of bifurcation.

[00:18:25] Speaker 00:
If the limit were bifurcated, then you would have a situation which contests that do involve runoff or special elections.

[00:18:31] Speaker 00:
In those circumstances, the limit would be divided, and the per-election limits would be lower.

[00:18:38] Speaker 00:
And you would have the asymmetry that the appellants claim to be so concerned about.

[00:18:42] Speaker 00:
This court does not have to accept a facially erroneous characterization of the statute where it's not accurate.

[00:18:50] Speaker 01:
I don't know what that means, but I've been led to believe that in states, and I don't know how many, when there's no opposition to a candidate and so a primary wouldn't be needed, that some states have in fact enacted laws that call an unopposed primary.

[00:19:18] Speaker 01:
So the candidate has no opposition.

[00:19:22] Speaker 01:
And the reason the states are doing that is so that contributors can contribute to that candidate who is unopposed in a so-called primary.

[00:19:32] Speaker 01:
Are you aware of that?

[00:19:34] Speaker 00:
I'm not aware specifically of that circumstance, but first of all, there are a number of issues with the appellant's attempt to focus on the unopposed.

[00:19:44] Speaker 01:
I think Colorado is one of the states.

[00:19:46] Speaker 00:
So first of all, there's a question about at what point during a cycle a candidate is deemed to be unopposed, right?

[00:19:53] Speaker 00:
Because a candidate could be running for election.

[00:19:57] Speaker 00:
There could have been an opponent who, because of some scandal, suddenly falls out of the race and ultimately the candidate's unopposed but wasn't necessarily unopposed throughout the entire candidacy.

[00:20:07] Speaker 00:
Even if a candidate is running completely unopposed throughout the entire process,

[00:20:13] Speaker 00:
a candidate still has an interest in gaining support and gaining election, excuse me, gaining support so that he is elected, he or she is elected by a substantial number of votes.

[00:20:24] Speaker 00:
There's many different reasons why a candidate may want to gain support in a primary regardless of the extent of opposition.

[00:20:30] Speaker 00:
And certainly even in circumstances where candidates have an opponent, you still may have wide disparities in the level of support between those two candidates, but I don't think anybody would suggest that in such circumstances the candidate

[00:20:41] Speaker 00:
who has a stronger basis of support should have a lower contribution limit.

[00:20:46] Speaker 00:
I think the Supreme Court's precedents make quite clear that it's not constitutional to establish limits like that.

[00:20:52] Speaker 00:
But I think another important point to point out is that the appellant's own circumstances in this case undermine their attempt to characterize the limit

[00:21:02] Speaker 00:
as being artificially bifurcated, they made the conscious choice in this case not to contribute to their favorite candidates and those candidates' primary elections specifically because they recognized a distinction between primary and general elections, and they made the choice

[00:21:17] Speaker 00:
that they did not want to associate with or support those candidates in their primary elections, but they did want to do so in the general.

[00:21:23] Speaker 00:
That makes clear that primary and general elections are indeed different contests, and the fact that the appellants made a choice to forego their constitutional right to make a contribution

[00:21:34] Speaker 00:
in a primary election does not entitle them constitutionally to a right to double the amount of their contributions in the general election.

[00:21:42] Speaker 02:
This sounds like a merits argument though, not a question of whether their argument is so frivolous as to deprive us of the jurisdiction.

[00:21:49] Speaker 00:
No, but I think what it gets to is that the entire basis of their argument that this is a new novel claim and not something foreclosed by Buckley is a characterization that if you merely look at the statute at how it's actually written,

[00:22:04] Speaker 00:
It completely undermines their characterization.

[00:22:08] Speaker 00:
It is not an accurate characterization.

[00:22:10] Speaker 00:
The appellants have also attempted to take Solace and McCutcheon and suggest that McCutcheon has established some new precedent, some change from Buckley, and supports this notion of there being some sort of $5,200

[00:22:24] Speaker 00:
non-corrupting limit.

[00:22:26] Speaker 00:
And McCutcheon says no such thing.

[00:22:27] Speaker 00:
The court immediately in the beginning of the opinion recognized that during the election cycle in which the appellants wanted to make their contributions, the limits were $2,600 per election, not an election cycle limit.

[00:22:42] Speaker 00:
And the court pointed out that it had already upheld those limits as being constitutionally permissible in combating the government's interest in preventing corruption in its appearance.

[00:22:56] Speaker 00:
There is just no basis for distinguishing the circumstances in this case from Buckley.

[00:23:01] Speaker 00:
And I think if you look at the cases cited in Shapiro, this case is actually a stronger case for finding that the wholly insubstantial standard is not.

[00:23:11] Speaker 00:
In Shapiro, the court embraced the ex-party Peresky case, where there had been a challenge to a Massachusetts requirement that car owners carry insurance, and the court referred to holdings regarding other states' insurance carrier requirements as demonstrating that the

[00:23:32] Speaker 00:
requirement, the constitutionality of that requirement had already been upheld and was a settled issue.

[00:23:37] Speaker 00:
In the Hannah's Distilling Company case, which was a challenge to a Maryland law taxing tangible property within the state, regardless of where the owner of the property was located, the court similarly held that that decision, that that issue was foreclosed based on prior decisions upholding the right of states

[00:23:55] Speaker 00:
to impose such taxes.

[00:23:57] Speaker 00:
In the Bailey v. Patterson case, the court found that because it was clearly established that there was no constitutional right to require segregation on common carriers, that issue was a settled issue that was not a substantial federal question that could be litigated.

[00:24:11] Speaker 00:
Here, the appellants are challenging the constitutionality of the per-election contribution limit.

[00:24:17] Speaker 00:
And as the district court correctly recognized, if you strip away

[00:24:21] Speaker 00:
their factually erroneous characterizations of the statute is being artificially bifurcated, which it clearly is not.

[00:24:29] Speaker 00:
There is nothing left except the challenge to a statute that the Supreme Court in Buckley has already upheld.

[00:24:35] Speaker 00:
I would like to take a moment to address the question that the court raised about the regulation, which the appellants clearly are challenging a regulation.

[00:24:44] Speaker 00:
The entire basis of their argument, their equal protection argument, that contributors have, excuse me, that candidates have the ability to use money that has been donated to them if they make it to a general election.

[00:24:59] Speaker 00:
They can use unspent primary money in their general election

[00:25:05] Speaker 00:
The appellants, first of all, are comparing the rights of contributors to make donations subject to the contribution limits with the rights of candidates on how they spend their contributions, which are not similarly situated parties.

[00:25:19] Speaker 00:
But more importantly, to the extent that the appellants are challenging the regulation, a regulation that governs how candidates spend their money cannot possibly cause injury to the candidates themselves.

[00:25:31] Speaker 00:
And so even if appellants were challenging the regulation, which they claim they are not, they would lack standing to bring such a challenge.

[00:25:39] Speaker 00:
So we don't believe the court even needs to address what type of jurisdiction would apply to such a challenge, because they have no standing to bring such a challenge.

[00:25:54] Speaker 00:
If there are no further questions, I'll just reiterate that the Federal Election Campaign Act's judicial review provision does not grant plaintiffs a statutory right to have the Enfant Court of Appeals revisit questions that have already clearly been settled by the Supreme Court.

[00:26:10] Speaker 00:
The district court in this case correctly recognized that the appellants are simply asserting a constitutional right to make double the limit contributions to certain candidates' general election campaigns.

[00:26:19] Speaker 00:
And the Supreme Court has already made clear that there is no such right.

[00:26:22] Speaker 00:
The decision below is correct.

[00:26:24] Speaker 01:
It is consistent with the decree.

[00:26:25] Speaker 01:
What's your short answer to the, as I understand the plaintiff's claim, is that, look, the Federal Election Commission and Congress itself has recognized that if a single contributor gives $5,400 to a candidate, there's no risk of corruption.

[00:26:43] Speaker 01:
So why should it matter whether it's split in two?

[00:26:46] Speaker 01:
with $2,700 for a primary and $2,700 for a general election.

[00:26:51] Speaker 01:
$5,400 is not corrupting.

[00:26:54] Speaker 00:
Well, there has never been a holding that $5,400 for a single election is not corrupting.

[00:27:00] Speaker 01:
The only basis that the appellants have for making that... Well, it's got to be, because if the candidate hasn't spent the first $2,700 on the primary, he's permitted to spend $5,400 from a single contributor on a general election.

[00:27:14] Speaker 00:
But the contributions apply to the amount that a particular individual can give to a candidate to win a particular election.

[00:27:22] Speaker 00:
As the appellant's own circumstances in this case demonstrate, it is not always the case that a contributor who supports a candidate to win one contest would necessarily support the candidate to win in a second contest.

[00:27:32] Speaker 00:
It may be the case that the candidate himself chooses to carry that money over.

[00:27:37] Speaker 00:
But where you can have situations, like the very case that we have before the court here,

[00:27:41] Speaker 00:
where a contributor made a conscious choice not to support a candidate in connection with one election, but then to support a candidate with another.

[00:27:51] Speaker 00:
Contributions are not just money that individuals give to other

[00:27:56] Speaker 00:
individuals who happen to be candidates to support them in the abstract.

[00:28:00] Speaker 00:
It is to support them win a particular election contest.

[00:28:03] Speaker 00:
That is how Congress designed the law, and that is how it is written.

[00:28:07] Speaker 00:
And so there is no right to give $5,400 to a candidate in the abstract to win multiple elections.

[00:28:16] Speaker 00:
That's not the way the statute is designed.

[00:28:20] Speaker 00:
If there are no further questions.

[00:28:22] Speaker 00:
Thank you, Your Honor.

[00:28:31] Speaker 03:
I'd like to start with the phrase clearly established.

[00:28:34] Speaker 03:
I think it's important to note that the only authority the FTC has for claiming that this case is so established, such an established question of law, that we're bringing a frivolous question over which the federal courts have no jurisdiction, because that's now the standard, is Buckley.

[00:28:50] Speaker 03:
Buckley, as Judge Randolph quite properly points out, simply never had this question briefed.

[00:28:55] Speaker 03:
And it was not considered and it was not mentioned.

[00:28:57] Speaker 03:
The fact that the per-election limit was upheld does not mean it was upheld as a per-election limit.

[00:29:02] Speaker 03:
That question was never presented to the court.

[00:29:05] Speaker 03:
A court can uphold under the Eighth Amendment the concept of the death penalty without foreclosing as applied challenges to the means of execution.

[00:29:12] Speaker 02:
It's the same here.

[00:29:12] Speaker 02:
I take it you would agree that

[00:29:14] Speaker 02:
being clearly established is not the only way in which an illegal argument can be frivolous.

[00:29:20] Speaker 02:
I think that's correct.

[00:29:21] Speaker 02:
I'm correct.

[00:29:22] Speaker 02:
Yes.

[00:29:23] Speaker 02:
So that you raise a crazy, I'm not saying you did, you raise a crazy argument that has never been decided because no one was crazy enough to raise the argument in the first place, it could still be frivolous.

[00:29:36] Speaker 02:
I think that's the essentially fictitious standard under Shapiro.

[00:29:39] Speaker 02:
Okay.

[00:29:39] Speaker 02:
Let me ask just a fact question.

[00:29:41] Speaker 02:
So for your plaintiffs, there was one of them where it was a three-way regional election, right?

[00:29:48] Speaker 02:
Open primary in California.

[00:29:49] Speaker 02:
Yeah.

[00:29:50] Speaker 02:
So that one's really not like what you're talking about here, right?

[00:29:54] Speaker 02:
There was opposition in that one.

[00:29:57] Speaker 02:
All parties had opposition.

[00:30:02] Speaker 03:
I think that that gets to some of the confusion in the case.

[00:30:04] Speaker 03:
Yes, that is a correct statement of fact.

[00:30:07] Speaker 02:
There were two from one party and one from the other party.

[00:30:10] Speaker 02:
That's right.

[00:30:11] Speaker 02:
So the one from the other party could have still lost, not made it into the final election.

[00:30:14] Speaker 03:
And I think the difficulty here is that the FEC desperately wants this case to be about the primary election, and it isn't about the primary election.

[00:30:21] Speaker 03:
It's about the general election, and this is why.

[00:30:23] Speaker 03:
My client didn't want to make sure that the Republican nominee in the general election was seated.

[00:30:30] Speaker 03:
But because there were these contested primaries, I was not sure who that nominee would be.

[00:30:35] Speaker 03:
On the other hand, the Democratic Party in both cases was quite clear on who the nominee would be.

[00:30:39] Speaker 02:
Well, they weren't sure that the Democrat would actually make it out of that multiparty primary.

[00:30:45] Speaker 03:
I haven't gone into all of the details, but I think the fact in that district that there was one Democrat on the ballot made it pretty likely to be sure.

[00:30:52] Speaker 02:
Well, if that's how we're going to decide this, this is going to be a very difficult set of questions for courts in these kind of cases.

[00:30:58] Speaker 02:
I think not.

[00:30:59] Speaker 02:
We have to look at the polls before and see whether the Democrat or the Republican is likely to make it out of the primary.

[00:31:05] Speaker 03:
But that's my point, Your Honor, is that because my client didn't want to give anything in the primary,

[00:31:09] Speaker 03:
It doesn't matter what's going on in the primary.

[00:31:11] Speaker 02:
But I thought your argument, at least your Fifth Amendment argument, is not fair to have the person who runs unopposed essentially be able to get twice the amount as the person who runs opposed.

[00:31:26] Speaker 03:
That's correct.

[00:31:26] Speaker 03:
But there's no metaphysical uncertainty there.

[00:31:28] Speaker 03:
Because by the time the general election comes along, you know precisely who's been nominated from the various parties.

[00:31:33] Speaker 03:
Right.

[00:31:33] Speaker 02:
But your argument about it

[00:31:35] Speaker 02:
You have a footnote in which you try to explain what essentially unopposed is, right?

[00:31:40] Speaker 02:
So this sounds a little less metaphysical and more complicated fact deciding.

[00:31:44] Speaker 03:
Well, take the example that's been raised, and I see him running out of time, but, you know, imagine there's a write-in candidate, which is one of the facts that the FTC insisted on our remand.

[00:31:53] Speaker 03:
Well, during the primary, you may not know how well that write-in candidate is going to do.

[00:31:57] Speaker 03:
I understand that.

[00:31:58] Speaker 03:
And if they were trying to say, oh, you want to get $5,400 in the primary based on some probabilistic understanding of who's going to advance to the general election, they would have some merit there.

[00:32:07] Speaker 03:
But they don't, because we're saying by the time the general election comes along, you know precisely how material that right-wing candidate was.

[00:32:13] Speaker 03:
And usually the answer is going to be not at all.

[00:32:16] Speaker 03:
So I think that trying to pretend it's a forward-looking inquiry when it's in fact a backward-looking inquiry is part of where the confusion comes out here.

[00:32:23] Speaker 03:
And I just, if I can...

[00:32:27] Speaker 03:
maybe with the court's indulgence, just very quickly add, I think McCutcheon is important.

[00:32:32] Speaker 03:
And McCutcheon is important precisely because Buckley did address the aggregate limit.

[00:32:37] Speaker 03:
And it did not address the per-election nature of contribution limits.

[00:32:41] Speaker 03:
And despite that fact, what the Supreme Court said is, and that case went up on an expedited one of these special proceedings, just under Shapiro.

[00:32:48] Speaker 03:
What the court said is, because we didn't have any briefing on this question, because we never had an actual full opportunity to consider it, it's new.

[00:32:56] Speaker 03:
And that, I think, has to be the standard here as well.

[00:32:59] Speaker 03:
Okay.

[00:32:59] Speaker 03:
Further questions?

[00:33:00] Speaker 03:
Thank you.

[00:33:01] Speaker 03:
Thank you very much.

[00:33:01] Speaker 03:
We'll take a matter under submission.