[00:00:02] Speaker 11:
Case number 16-5194, Burr-Holmes at L Appellant for the Federal Election Commission.

[00:00:08] Speaker 09:
Mr. Dickerson for the Appellant.

[00:00:26] Speaker 07:
Good morning.

[00:00:28] Speaker 07:
In 2014, Laura Holmes and Paul Jost wanted to contribute $5,200 each to two specific candidates running in the general election.

[00:00:47] Speaker 07:
Lowell Holmes and Paul Joss wanted to contribute $5,200 each to two specific candidates running in the 2014 general election.

[00:00:54] Speaker 07:
They could not do this because the Federal Election Campaign Act limits contributions made with respect to a general election to only half that amount, $2,600.

[00:01:04] Speaker 07:
And the Act does not permit money that could have been given in an earlier election to instead be given in a later election in the same way.

[00:01:12] Speaker 03:
Just the way you phrased it, I have to comment.

[00:01:15] Speaker 03:
That's not how the statute phrases it, right?

[00:01:18] Speaker 03:
It's a per-election limit, not a cycle limit, and that gets to the heart of your argument.

[00:01:26] Speaker 03:
views things, views the world differently than you do.

[00:01:30] Speaker 03:
Isn't your challenge better directed at the regulations and not at the statute?

[00:01:34] Speaker 07:
I think not for two reasons, Your Honor.

[00:01:36] Speaker 07:
The first is that the statute very clearly says the money can only be given with respect to an election, and that number is $2,600.

[00:01:45] Speaker 07:
It was at the time.

[00:01:46] Speaker 03:
But that can mean quite a few elections.

[00:01:47] Speaker 03:
Some states have very unusual processes.

[00:01:50] Speaker 03:
It could be several elections, right?

[00:01:52] Speaker 07:
Yes.

[00:01:53] Speaker 07:
And there's plenty on the record on that point.

[00:01:55] Speaker 07:
But we are challenging that number in the sense that we wanted to give $5,200 with respect to the general election.

[00:02:04] Speaker 07:
That's foreclosed by the statute on space.

[00:02:06] Speaker 07:
And that's been the consistent understanding of the statutory language since it was passed.

[00:02:10] Speaker 00:
Then how can you say that Buckley didn't understand that or didn't confront that?

[00:02:16] Speaker 07:
Well, for the same reason that the panel did not believe that Buckley confronted that, the fact that the Buckley opinion refers to the pro-election limits, it refers to them as shorthand without any reference to the way they're actually structured.

[00:02:32] Speaker 00:
Well, the statute, the opinion

[00:02:34] Speaker 00:
throughout says there are different sorts of limitations.

[00:02:39] Speaker 00:
There are per election, per year, per election cycle.

[00:02:43] Speaker 00:
I mean, the justices knew the difference between the various statutory provisions.

[00:02:49] Speaker 07:
I think they did, and that's one of the reasons we rely so heavily on the McCutcheon opinion, is that just as the aggregate limits in that case, going back to Buckley, Your Honor, I think it's important to remember that the existence of contribution limits at all are themselves a prophylactic.

[00:03:04] Speaker 07:
You know, the fact that generally the preferred way of dealing with corruption is to prosecute the people who are corrupt, and that the Court allowed

[00:03:11] Speaker 07:
limits precisely because it would be difficult to identify those circumstances.

[00:03:15] Speaker 07:
But here you have, just as in McCutcheon, an aspect of the statute that hasn't been challenged and an aspect of the statute that wasn't considered explicitly by the Supreme Court or that wasn't presented to the Supreme Court as the panel opinion notes.

[00:03:27] Speaker 01:
Can I ask you, if you'll bear with me on this, I have a series of questions.

[00:03:30] Speaker 01:
Of course, sir.

[00:03:31] Speaker 01:
I just want to figure out exactly what the implications of deciding in your favor would be.

[00:03:36] Speaker 01:
So as I understand it, you want to let a donor

[00:03:40] Speaker 01:
who wants to give $5,200 to a party nominee after they pass through the primary and are in the general, right?

[00:03:49] Speaker 07:
If and only if they've not given during that primary.

[00:03:52] Speaker 01:
I understand that's, yes, if they haven't given during the primary.

[00:03:55] Speaker 01:
What about a donor who wants to give the full $5,200 only in the primary?

[00:04:00] Speaker 01:
and announces that's what I'm going to do.

[00:04:01] Speaker 01:
I'm not going to give anything in the general.

[00:04:03] Speaker 07:
Well, it's not our case, and I'd argue this court doesn't have jurisdiction to reach that.

[00:04:06] Speaker 01:
I understand it's not our case, that's why I'm asking, but I don't have the luxury of worrying about waiting until the next case.

[00:04:13] Speaker 01:
If I decide your case in your favor, what would I have to do in the next case?

[00:04:18] Speaker 07:
In that next case, and I imagine there will be other next cases, but in that specific one, I don't think that our remedy requires this court to impose a $5,200

[00:04:29] Speaker 01:
It's your logic that I'm asking about, not the remedy.

[00:04:31] Speaker 01:
Do you agree that there would be an anti-corruption interest in limiting giving $5,200 in a primary?

[00:04:42] Speaker 07:
I don't know, but I suspect that's a much more difficult case.

[00:04:45] Speaker 01:
Well, I know.

[00:04:45] Speaker 01:
But tell me why it's difficult.

[00:04:48] Speaker 01:
In other words, give me an argument why it would be permissible for Congress to do it in that case and not this case.

[00:04:57] Speaker 07:
because in that case, if this court were to say, our logic is, in allowing someone to give $5,200 in the general election, Congress has already said you may give $5,200 to that candidate under those circumstances.

[00:05:12] Speaker 07:
To say, instead, you get to give those full $5,200 in the primary, when whether or not that candidate will advance to the general election is speculative,

[00:05:20] Speaker 07:
That is a greater degree of imposing, of second-guessing Congress's anti-corruption decision.

[00:05:26] Speaker 01:
So you agree there might be a, in your brief you several times write in a more general statement that Congress has said that $5,200 in a single check is not corrupting.

[00:05:37] Speaker 01:
You don't quite mean that then.

[00:05:39] Speaker 01:
You agree that there would be, you agree that there would be a corruption influence in

[00:05:46] Speaker 01:
or at least an acceptable corruption rationale against giving a $5,200 check in total, at least in the circumstance of the primary.

[00:05:55] Speaker 07:
In the circumstance of the primary, likely, because again, that would be Congress's determination of the proper level of a prophylaxis.

[00:06:04] Speaker 01:
Our entire point is that... So you didn't mean it when you said, several times in your brief, that a $5,200 check at one time, Congress thought that was not corrupting.

[00:06:15] Speaker 07:
We mentioned in the context of a general election.

[00:06:18] Speaker 07:
I am not making that argument with regard to a primary election for precisely that reason.

[00:06:22] Speaker 01:
What about a candidate in the general who had no primary?

[00:06:25] Speaker 01:
What do you think about that?

[00:06:27] Speaker 07:
Well, now we do have a bit of a technical problem.

[00:06:30] Speaker 01:
Not technical.

[00:06:31] Speaker 01:
This is a serious problem, because if we give you this case, we're going to get the next case.

[00:06:38] Speaker 01:
So the question is, how much of the entire structure collapses if we accept your position?

[00:06:43] Speaker 07:
Well, I think in that case, the decision to label that election a general as opposed to a primary is doing a lot of the work.

[00:06:51] Speaker 07:
Our argument isn't, again, that if you magically, talismatically call something a general election, you should be allowed to give $5,200.

[00:06:56] Speaker 07:
And the certified question isn't structured that way.

[00:07:00] Speaker 07:
Our point is that in the second election, whatever you call it under State law, and there's no reason to intrude upon that.

[00:07:05] Speaker 01:
What if there's no primary?

[00:07:07] Speaker 01:
No primary opponent, and therefore no primary at all?

[00:07:09] Speaker 07:
If there's no primary at all and the general election follows immediately the Louisiana situation, then our argument doesn't hold.

[00:07:16] Speaker 07:
There's only been one election.

[00:07:18] Speaker 07:
Congress has said in that election that anti-corruption number is $2,600 or $2,700.

[00:07:22] Speaker 01:
And you agree that would be a reasonable anti-corruption position for Congress?

[00:07:28] Speaker 01:
For purposes of this case, yes.

[00:07:29] Speaker 01:
Well, no.

[00:07:30] Speaker 01:
For purposes of the next case that you might bring, would you agree now that that would be a permissible anti-corruption rationale?

[00:07:41] Speaker 07:
We would be relying in a different case with different parties where I would have different fiduciary duties on a different argument at that point.

[00:07:48] Speaker 01:
What would the other argument be?

[00:07:50] Speaker 07:
The other argument would be there's been a failure by the government to prove the anti-corruption issue as a matter of fact.

[00:07:55] Speaker 07:
But at that point, again, this Court would have to choose between that record and deference to Congress.

[00:07:59] Speaker 01:
Well, by that point, of course, we would have already decided in your favor, and part of the process would have crumbled.

[00:08:04] Speaker 01:
And therefore, you would argue that part no longer good.

[00:08:07] Speaker 01:
This part's no longer good.

[00:08:08] Speaker 01:
So now let me ask you one more.

[00:08:10] Speaker 01:
Assume that you today want to give to somebody who you have not given to in the last cycle altogether.

[00:08:22] Speaker 01:
Congress would have allowed you to give to that person in both that person's primary and that person's general, and say we're past the primary and now general.

[00:08:35] Speaker 01:
So it's a member of Congress every two years.

[00:08:37] Speaker 01:
Can you give now $10,400?

[00:08:41] Speaker 07:
Again, I think not, because that's not what the structure of the statute anticipates.

[00:08:46] Speaker 07:
The statute does talk about elections for a particular federal office.

[00:08:49] Speaker 07:
And in the context of a House of Representatives race, I think there's a little bit of laziness in this.

[00:08:54] Speaker 07:
You're not elected to the House in that sort of... I'm trying to be a... Well, I didn't mean, Your Honor.

[00:08:58] Speaker 07:
I know.

[00:08:58] Speaker 07:
In the sense of, you know, how you're defining federal office.

[00:09:02] Speaker 07:
And federal office in this case is election from the Iowa second or whatever for the 214th Congress.

[00:09:07] Speaker 07:
I think if you're going beyond the election to the specific office, whether that's, you know, a class one Senate seat from such and such a state or, you know, such and such a district which may or may not exist in the next election, depending on how redistricting goes, to a specific Congress, to the 214th, 215th, 216th Congress,

[00:09:27] Speaker 07:
there you've got a policeable line and saying Congress didn't anticipate.

[00:09:31] Speaker 01:
We have a policeable line now.

[00:09:33] Speaker 01:
Your argument is now an administrative policing argument and I'm asking for your underlying rationale about constitutionality.

[00:09:40] Speaker 01:
I understood your argument to be Congress said it's not corrupting to give $5,200 at the end of the general if there have been previous elections and Congress has said that

[00:09:57] Speaker 01:
You could have given that, because you could have given $2,600 earlier in the primary.

[00:10:02] Speaker 01:
But Congress would have also allowed you to give an additional $2,600 two years earlier to the same person in the same seat.

[00:10:10] Speaker 01:
Imagine there hasn't been any redistricting.

[00:10:12] Speaker 01:
There isn't redistricting every two years.

[00:10:14] Speaker 01:
The person's running for the same seat again, and it's the same person.

[00:10:18] Speaker 01:
What is the anti-corruption rationale, or do you think there is no anti-corruption rationale, to preventing $10,400 this time?

[00:10:29] Speaker 07:
I don't think the number is talismanic.

[00:10:31] Speaker 07:
Again, I think that the Congress's intention and expectation of what is going to flow from the statute is what's talismanic.

[00:10:38] Speaker 01:
But Congress has an expectation in this case, right?

[00:10:40] Speaker 01:
We know that.

[00:10:42] Speaker 01:
The expectation in this case is $2,600 for the primary, $2,600 for the general, and that's it.

[00:10:48] Speaker 01:
There's nothing in the statute about transferring the money or anything.

[00:10:50] Speaker 01:
That's all in the regulations.

[00:10:52] Speaker 01:
But you're unwilling to accept, and I understand that, the statutory scheme.

[00:10:59] Speaker 01:
So why is the statutory scheme not acceptable here, but is acceptable running over to election cycles?

[00:11:11] Speaker 07:
And I understand that I'm getting pushed back on the as-applied nature of the remedy, or at least of where this is going to go eventually.

[00:11:18] Speaker 01:
There's not so much remedy that's bothering me.

[00:11:20] Speaker 01:
At least for myself, I always have to think what's next.

[00:11:24] Speaker 01:
The rule of law requires me to apply the same logic in the next case that I apply in this case.

[00:11:29] Speaker 01:
If you can give me a line based on your anti-corruption argument,

[00:11:34] Speaker 01:
then I can rule in your favor.

[00:11:35] Speaker 01:
If you can't, give me a line.

[00:11:37] Speaker 01:
I might still be able to rule in your favor, but I have to know that something else is going to happen as a result.

[00:11:42] Speaker 07:
Well, I think the line flows in some ways from the facts, which is maybe where we're having a little bit of disagreement.

[00:11:50] Speaker 07:
To the extent that what's happening here is that my clients want to fully associate, to use McCutcheon's terms, with their party's nominee.

[00:11:59] Speaker 07:
Now, that's a fact-based question.

[00:12:01] Speaker 07:
That's something that arises in the general election, and that explains why they don't want to give to every Republican and waste the resources in the primary in order to fully associate.

[00:12:10] Speaker 07:
That's an argument that is inherently tied to the election cycle.

[00:12:16] Speaker 07:
And two, to the extent that Congress anticipated and permits that non-corrupting amount of money to go to that very candidate under those circumstances, I think we're on very firm ground in a way we wouldn't be if we went outside of what Congress clearly anticipated, which is the amount of money going to that candidate, the speculative nature of a candidate finally advancing to the general election.

[00:12:36] Speaker 04:
I don't understand that difference because

[00:12:39] Speaker 04:
I take it the logical force of your argument is I'm comparing myself to somebody else who got to contribute $5,200 to this person.

[00:12:48] Speaker 04:
I should be able to contribute $5,200 to that person too.

[00:12:52] Speaker 04:
And unless there's an explanation as to why I can't for anti-corruption reasons, the First Amendment entitles me to do it.

[00:12:59] Speaker 04:
But the chief judge's question about two election cycles presents exactly the same situation because the argument would be

[00:13:05] Speaker 04:
Well, somebody else got to contribute a cumulative total of $10,400 to this person to this point.

[00:13:12] Speaker 04:
I haven't gotten to do that, so I should get to contribute the same amount.

[00:13:16] Speaker 04:
There's no anti-corruption differential.

[00:13:19] Speaker 04:
It seems like the argument, the logical import of your argument, would apply across election cycles too.

[00:13:27] Speaker 07:
that's not our position and that's not the record that was developed.

[00:13:29] Speaker 07:
I feel uncomfortable going too far down the hypothetical, but I do think for purposes of my clients, that's very clearly not what they want to do.

[00:13:37] Speaker 10:
But Mr. Dickerson, you're resting a lot on your as-applied packaging, and I think that a lot of the questions are probing the principle and how far it goes.

[00:13:49] Speaker 10:
For example, if you take seriously your

[00:13:52] Speaker 10:
statement that your clients want to fully associate with the candidate, Congress has defined what it is to fully associate with the candidate, and that is $2,600 per election.

[00:14:07] Speaker 10:
And somebody who is

[00:14:10] Speaker 10:
you know, associating in the presidential election with candidate Rubio and then in the general election with candidate Trump is exercising a different associational interest than somebody who's in the primary election with candidate Trump and in the general election with candidate Trump.

[00:14:31] Speaker 10:
There's a logic to it, and it actually honors the associational interest of the donor more so than the scheme that you are asking to be held to.

[00:14:45] Speaker 07:
Well, Your Honor, I think there is a logic to it.

[00:14:47] Speaker 07:
The problem is that logic isn't an anti-corruption logic.

[00:14:51] Speaker 07:
And part of the problem here is that we're dealing with a very old, very creaky statute that's been in judicial receivership since it was passed.

[00:14:57] Speaker 07:
And part of, you know, what's happening in the structure here is, and then this is in the record, the sort of what was Congress's intention here.

[00:15:03] Speaker 07:
Well, Congress's intention probably was to allow resources and all these other arguments.

[00:15:08] Speaker 07:
But that decision was made prior to the Buckley decision and prior to the McCutcheon decision, both of which said Congress has to act not with regard to equalizing resources, not with regard to any of these other purposes, but solely to the anti-corruption rationale.

[00:15:22] Speaker 06:
But can Congress choose one way or another?

[00:15:27] Speaker 06:
They have to go annual or something like a calendar or per election or per cycle.

[00:15:34] Speaker 06:
And do they really have to show that one's better than the other in terms of anti-corruption?

[00:15:41] Speaker 07:
Yes and no.

[00:15:43] Speaker 07:
I think that the Congress does have very substantial discretion to choose how it structures things.

[00:15:49] Speaker 07:
The problem is that if it structures things in a way that clearly anticipates a certain amount of money going to a certain candidate under certain circumstances, then we're in the prophylaxis on prophylaxis problem.

[00:16:00] Speaker 07:
We're saying what additional work is being done by the decision to structure this so you can only give that money if you, you know, are lucky enough to be a Democrat in these elections.

[00:16:09] Speaker 06:
But you have to choose one or the other, say.

[00:16:12] Speaker 06:
And most States actually choose per election rather than per cycle.

[00:16:17] Speaker 06:
And you can argue back and forth about which one's better in terms of anti-corruption.

[00:16:22] Speaker 06:
I'm not sure you can really prevail, but they still have to choose in the end one or the other.

[00:16:31] Speaker 06:
And I don't see a great reason for second guessing their choice, because they have to make a choice.

[00:16:43] Speaker 07:
I agree they have to make a choice.

[00:16:44] Speaker 06:
They have to make a choice, and it's hard to really defend one as better than the other in terms of anti-corruption.

[00:16:54] Speaker 06:
Therefore, I'm not, I guess the bottom line question I have, and I'll get to the regulations because I think that makes the case more interesting, but the bottom line question I have is, is serving the anti-corruption interest really

[00:17:08] Speaker 06:
on the question presented here of choosing one versus the other.

[00:17:15] Speaker 07:
Well, and I guess my simple answer is that it's a false choice.

[00:17:19] Speaker 07:
We're not asking this Court to impose a particular format.

[00:17:23] Speaker 07:
We're saying that once Congress does go with a format, if that format anticipates that a certain amount of money goes to a certain candidate, what additional anti-corruption work is being given by saying we can't give the check when we want to give it?

[00:17:34] Speaker 07:
That's all we're saying.

[00:17:35] Speaker 07:
We're not saying it would be better from an anti-corruption standpoint to have a per-election cycle limit.

[00:17:40] Speaker 07:
I have no idea if it would or wouldn't.

[00:17:41] Speaker 07:
That's a question of fact that no one's really litigated.

[00:17:44] Speaker 07:
But we do know that Congress anticipated exactly this amount of money going into exactly this camp.

[00:17:48] Speaker 06:
That's true in every time you have a per-election system.

[00:17:53] Speaker 07:
Yes, but it's the question, it's the linearity of time problem.

[00:17:56] Speaker 07:
As more elections develop over the course of the election cycle, the effective contribution limit set by Congress rises.

[00:18:06] Speaker 07:
That's the structure of the statute that's relevant.

[00:18:08] Speaker 06:
Maybe I'm missing something, but in every system where you have a primary and a general, which is basically every system, you're in essence saying that the states, and I think 27 of them do it per election, and the federal government would have to do it per cycle rather than per election.

[00:18:26] Speaker 07:
And again, I think not, for exactly the reason I had in the call with the Chief Judge.

[00:18:31] Speaker 07:
We're not claiming that you have the same right to give the same amount of money in a primary as you do in a general.

[00:18:36] Speaker 06:
No, I know.

[00:18:36] Speaker 06:
But you would say, at least for purposes of giving the whole amount of money for the general, in every one of those states that does the per-election, they would have to allow the full amount combined to be given just for the general.

[00:18:51] Speaker 07:
Yes.

[00:18:51] Speaker 07:
Again, if and only if nothing was given in the primary.

[00:18:54] Speaker 07:
Right.

[00:18:56] Speaker 07:
I understand that there are implications in the context of general elections.

[00:18:59] Speaker 07:
I mean, this court doesn't bind any state, but presumably other courts of appeals that do might take the reasoning seriously.

[00:19:08] Speaker 06:
Well, obviously, you want this rule to be established at the Supreme Court.

[00:19:11] Speaker 06:
And the point is there are 27 states that have laws that have chosen, again, choosing one or the other.

[00:19:19] Speaker 06:
And they've chosen per election rather than per cycle.

[00:19:23] Speaker 07:
But I'm not sure how remarkable that is.

[00:19:24] Speaker 07:
I mean, recall, Your Honor, that when McCutcheon was decided, there were also quite a number of states that had aggregate limits.

[00:19:30] Speaker 07:
This was something that simply hadn't been considered.

[00:19:32] Speaker 07:
And I think something that stems from the evolution of the law in this area over time.

[00:19:37] Speaker 07:
The aggregate limits also came out of the 1974 Act.

[00:19:39] Speaker 07:
They weren't reviewed until very recently.

[00:19:43] Speaker 07:
The question was never raised.

[00:19:44] Speaker 07:
And then, yes, there had to be a certain amount of cleanup once the Supreme Court announced that.

[00:19:48] Speaker 07:
But two points.

[00:19:49] Speaker 07:
One, that cleanup isn't necessary from a ruling of this Court, which would give my clients, you know, their as-applied relief and allow them.

[00:19:56] Speaker 07:
I think it's also important to remember we're here in a pre-enforcement context precisely because they could have done this and taken their chances with an enforcement process.

[00:20:04] Speaker 06:
So on the regulations, you're not challenging the regulations.

[00:20:08] Speaker 06:
You're relying on the regulations, as I understand it, for part of your argument to show that Congress really

[00:20:15] Speaker 06:
I'm sorry, the FEC or the government really isn't imposing a per-election limit because they allow the transfer

[00:20:22] Speaker 06:
of the primary funds to be used for the general.

[00:20:26] Speaker 06:
And my question is, do we have any facts, because I've looked, on how often that happens, how much money is involved aggregate when that happens, what the percentage of elections in which that happens?

[00:20:42] Speaker 06:
I mean, I'm at sea on how often that transfer of primary funds for use in generals to exceed the otherwise applicable limit happens.

[00:20:55] Speaker 07:
I mean, the short answer is I think there is something in the record because we had to argue about our standing and whether or not there was a possibility that similar elections would happen in the future.

[00:21:07] Speaker 07:
And we proved that to the district court's satisfaction in the first round of litigation.

[00:21:11] Speaker 07:
The reason it's not here in the certified record is that the regulations and that sort of unfairness that was built into the system, that was raised as a Fifth Amendment claim.

[00:21:20] Speaker 07:
which the panel decision said relies too heavily on the regs to give this Court en banc jurisdiction to consider the constitutionality of the statute, which is why we're only here on this question of when the statute says money given in connection with or, excuse me, with respect to a general election, is that a First Amendment violation?

[00:21:39] Speaker 07:
And in that regard, Your Honor, I mean, recall that, you know, this Court in Wagner, but also the Supreme Court in cases like Arizona Free Enterprise,

[00:21:48] Speaker 07:
versus FEC, it is not uncommon for courts to package the unfair results of a statutory scheme into a First Amendment claim, in the sense that is it unfair that if you gave to the opposing parties in these exact elections, you could be certain you'd be giving to your party's nominee?

[00:22:07] Speaker 07:
Yes.

[00:22:08] Speaker 07:
Is that a function of the regulations?

[00:22:10] Speaker 07:
Possibly.

[00:22:11] Speaker 07:
But more importantly, it's a symptom of the underlying lack of tailoring in the statute, which is, again...

[00:22:18] Speaker 06:
and tell me if this is not what you're saying, that the statute sets forth a per-election scheme, but the regulations for 40 years have allowed transfer of primary funds to use in the general, which in effect allows a single person's money of up to $5,400 to be used for the general under the regulations.

[00:22:41] Speaker 06:
And if that's true, that undermines the government's interest in doing a per-election rather than per-cycle

[00:22:48] Speaker 06:
I think that is correct in the sense that my factual question was just how often that happens.

[00:22:55] Speaker 06:
We know the regulations there that allows the transfer.

[00:22:58] Speaker 06:
Anecdotally, I suspect it happens quite a lot, but only anecdotally.

[00:23:04] Speaker 07:
Well, I suspect this Court could take judicial notice of FEC filings on that point.

[00:23:08] Speaker 07:
But again, since we're not really reliant on that... Well, what did the FEC filings show?

[00:23:11] Speaker 05:
I haven't... It is... I'll admit I'm not calling it the FEC filing.

[00:23:16] Speaker 05:
I can't blame you, Your Honor.

[00:23:17] Speaker 02:
I want to ask you about that, about the regulation.

[00:23:21] Speaker 02:
You suggested in response to Judge Cavanaugh's question that the

[00:23:28] Speaker 02:
Regulations on the transfer funds sort of automines the statutory scheme, right?

[00:23:38] Speaker 02:
Do you think maybe that the regulation is driven by Buckley's distinction between contributions and expenditures?

[00:23:47] Speaker 02:
Because once the money, once the candidate has the money and it's transferred, it's an expenditure, and therefore subject to strict scrutiny.

[00:23:56] Speaker 02:
So, I mean, I don't know whether this is right or not, but the regulation actually speaks in terms of, quote, transfers by the candidate.

[00:24:08] Speaker 02:
So it sees it as an expenditure.

[00:24:12] Speaker 07:
I think that's exactly right, Judge Hill.

[00:24:14] Speaker 02:
Okay, so how could that possibly undermine, you know, the statutory scheme?

[00:24:19] Speaker 02:
Obviously, there's a completely different standard at work here.

[00:24:23] Speaker 07:
Well, I think, I'm not sure I would use the phrase undermine the statutory scheme.

[00:24:27] Speaker 07:
I think I would say that this is evidence that there's no true anti-corruption rationale.

[00:24:31] Speaker 02:
It wasn't.

[00:24:32] Speaker 02:
It was driven by Buckley.

[00:24:34] Speaker 02:
The RTC had no choice.

[00:24:36] Speaker 02:
It had to expenditure.

[00:24:38] Speaker 02:
It had to trade it differently.

[00:24:40] Speaker 02:
It was driven by Buckley's distinction between contributions and expenditures.

[00:24:44] Speaker 02:
It's that simple, I think.

[00:24:46] Speaker 07:
Well, I think the FEC also had no choice because the statute says you can only give money in connection with a particular election.

[00:24:53] Speaker 07:
So you have this sort of, you know, statutory baseline where they had to have some regulatory scheme to prevent money from bleeding over from the contributor to the candidate's other elections.

[00:25:03] Speaker 07:
That's sort of what concerns us.

[00:25:05] Speaker 07:
Not the regulation, but the fact that that's a fair – that is a honest interpretation of the statutory language, which very clearly says you only get to give money for this particular election.

[00:25:16] Speaker 07:
To the extent the FEC allows a check to be given, that's merely evidence that the FEC also doesn't see an anti-corruption problem with the check being given.

[00:25:27] Speaker 07:
We're not trying to get into the statutory scheme or the regulatory scheme beyond that.

[00:25:30] Speaker 01:
The regulation is both inconsistent with the statute and unconstitutional, as you claimed in your attack on it as violating the Fifth Amendment.

[00:25:39] Speaker 01:
If that's true, how can we rely on those

[00:25:44] Speaker 01:
regulations for finding the statute unconstitutional, if it may be that the regulations themselves are both inconsistent with the statute and unconstitutional.

[00:25:55] Speaker 07:
Well, I think there's no need to rely on the regulations because the regulations are at this stage largely irrelevant.

[00:26:01] Speaker 01:
So you're not relying on the FEC's regulations as evidence that the government doesn't think there's an anti-corruption interest

[00:26:08] Speaker 07:
in the narrow sense that the FEC regulations permit a check of this size to be given to a candidate.

[00:26:16] Speaker 07:
It is additional evidence, just like the structure of the statute itself and just like the Supreme Court's ruling in McCutcheon, which specifically held that this amount of money is non-corrupting.

[00:26:25] Speaker 01:
How can we reach that conclusion unless we know that FEC's regulations are both consistent with the statute and constitutional?

[00:26:33] Speaker 01:
You say they're unconstitutional.

[00:26:35] Speaker 01:
We certainly can't rely on the FEC's view at all, as expressed through its regulations, and as a rationale for knocking down the statute, can we?

[00:26:44] Speaker 07:
I think for purposes of our First Amendment claim, we are agnostic on the constitutionality of the FEC's regulations.

[00:26:50] Speaker 01:
To the extent that they are... You weren't agnostic in your complaint.

[00:26:53] Speaker 01:
You told us that they were unconstitutional.

[00:26:55] Speaker 01:
You said they violated the Fifth Amendment.

[00:26:57] Speaker 01:
That's in the panel decision, right?

[00:27:00] Speaker 07:
That's correct.

[00:27:01] Speaker 07:
We lost that claim and we have abandoned it.

[00:27:03] Speaker 01:
You didn't lose that claim.

[00:27:04] Speaker 01:
You just didn't have jurisdiction to bring that claim in the Court of Appeals.

[00:27:08] Speaker 01:
You could bring it in the history court.

[00:27:09] Speaker 07:
But we have not raised it here.

[00:27:11] Speaker 09:
I have a question about how we've talked about the governmental interest.

[00:27:19] Speaker 09:
I want to understand how you articulate your client's First Amendment interest.

[00:27:23] Speaker 09:
And in Buckley, it was spoken of in terms of, first of all, right, making a contribution serves to affiliate a person with a candidate.

[00:27:31] Speaker 09:
I assume you agree with that?

[00:27:32] Speaker 09:
Yes.

[00:27:34] Speaker 09:
Okay.

[00:27:35] Speaker 09:
And you keep talking about how the statute authorizes donations to a candidate in the cumulative amount, in your view, of 5,200.

[00:27:44] Speaker 09:
But the statute defines candidates in terms of those seeking nomination.

[00:27:50] Speaker 09:
at the primary stage, or election at the general election stage.

[00:27:55] Speaker 09:
And so it seems as though Congress has envisioned those as really two very different candidates and two very different associational rights.

[00:28:03] Speaker 09:
And so the statute doesn't actually say that you have, doesn't authorize in any way affiliating with a candidate for election, in a general election, in the amount of $5,200, you have to

[00:28:17] Speaker 09:
bridge over the fact that we think of candidates for nomination is very distinct.

[00:28:21] Speaker 09:
And your clients chose not to affiliate in a perfectly legitimate exercise of their First Amendment rights with candidate for nomination.

[00:28:33] Speaker 09:
Why is it unconstitutional for Congress to take that First Amendment articulation from Buckley, the right to associate, and say it's for election because it's a candidacy for a different thing in each election?

[00:28:47] Speaker 07:
Two answers, Your Honor, and I'd like to reserve some time for rebuttal.

[00:28:52] Speaker 07:
First, the McCutcheon Court talks both of association and of speech.

[00:28:56] Speaker 07:
And in that sense, the decision not to associate during the primary and instead to associate during the general

[00:29:02] Speaker 07:
does convey a message about my client's views in terms of the behavior of the Republican Party in these races.

[00:29:12] Speaker 07:
But more importantly, I take the point, but it strikes me as a very formal argument that glides past the fact that in the real world, Congress has said you may give this check to this candidate.

[00:29:25] Speaker 07:
once they've reached the general election.

[00:29:27] Speaker 07:
And the Supreme Court didn't, in McCutcheon, seem to think that that distinction was doing an awful lot of work in the statutory scheme.

[00:29:35] Speaker 09:
So I think our answer is no.

[00:29:40] Speaker 09:
Congress to look at them as a singular candidate through both stages, and maybe there's other stages with runoffs of the election, or is Congress able, is it consistent with the First Amendment to say there's a First Amendment right to associate and speak when someone's seeking a nomination about your views on their nomination to the parties?

[00:30:00] Speaker 09:
to be the party's nominee.

[00:30:03] Speaker 09:
And there's a First Amendment right to speak and to associate when they are running for the actual office.

[00:30:09] Speaker 09:
Does your position say the Constitution forbids Congress from making that distinction?

[00:30:14] Speaker 09:
You called it formal.

[00:30:15] Speaker 09:
That seems to me actually quite relevant because there are very different elections.

[00:30:21] Speaker 07:
It may be that there's a different corruption interest in the primary versus the general elections.

[00:30:26] Speaker 07:
We don't know that because the FEC didn't carry its burden below.

[00:30:28] Speaker 09:
I'm talking about a different First Amendment interest.

[00:30:31] Speaker 07:
No, the First Amendment interest is the same.

[00:30:32] Speaker 07:
The First Amendment interest is... Well, maybe I'm not understanding your honest question, and I see my time's about to expire.

[00:30:37] Speaker 01:
you can answer the question.

[00:30:39] Speaker 09:
Is there a distinct First Amendment right to associate with someone as they seek nomination?

[00:30:46] Speaker 09:
And then another right to associate with them when they seek election for office?

[00:30:50] Speaker 09:
Because those are two very different things.

[00:30:52] Speaker 09:
You would agree there's a right at each stage, correct?

[00:30:55] Speaker 07:
Yes, but it's the same right.

[00:30:56] Speaker 07:
It's the right to fully associate however.

[00:30:59] Speaker 09:
It's the right to say that I think this person should be the spearhead of the party, the nominee of the party, the leader of the party.

[00:31:07] Speaker 09:
on this.

[00:31:09] Speaker 07:
The best I can do, Your Honor, is point you back to the Shrink Missouri case where the court said speculation isn't enough to carry the government's First Amendment burden.

[00:31:16] Speaker 09:
To the extent our client... How do you say, do you think the First Amendment compels Congress to ignore those distinctions between the two stages, or can they sort of really identify them as distinct elections, each with its own First Amendment interests?

[00:31:30] Speaker 07:
I think they can identify that

[00:31:33] Speaker 07:
To the extent that that's a distinction that Congress created, I'm not sure it insulates itself in First Amendment attack.

[00:31:38] Speaker 09:
I'm asking you whether First Amendment requires or forbids the distinction that Congress has made between the two types of elections.

[00:31:47] Speaker 07:
To the extent there's no independent anti-corruption interest that lies behind that distinction, yes.

[00:31:53] Speaker 01:
Okay, I'll let you have some time for rebuttal.

[00:31:55] Speaker 07:
Thank you.

[00:31:57] Speaker 01:
We'll hear from the FEC.

[00:32:20] Speaker 08:
Mr. Chief Judge, and may it please the Court, my name is Erin Klopak and I am here on behalf of the Federal Election Commission.

[00:32:27] Speaker 08:
Your Honors, the facts of this case are not complicated.

[00:32:30] Speaker 08:
The plaintiffs wanted to contribute to certain candidates in their general election campaigns and to affirmatively avoid contributing to those same candidates in their primary election campaigns.

[00:32:40] Speaker 08:
The Federal Election Campaign Act enabled them to make that distinction.

[00:32:44] Speaker 08:
However, because the amount the plaintiffs wanted to contribute to their preferred candidate's general election campaigns was double the limit set by Congress, they sued clearly in constitutional right to contribute more.

[00:32:58] Speaker 08:
For over 40 years, the Supreme Court's campaign finance jurisprudence has made clear that the pro-election contribution limit satisfies constitutional scrutiny.

[00:33:08] Speaker 08:
And the logic of those decisions controls the outcome of this case.

[00:33:13] Speaker 08:
Indeed, there are at least three independent reasons why the question certified to this court must be answered in the negative.

[00:33:20] Speaker 08:
First, the plaintiff's challenge depends entirely on a false premise.

[00:33:24] Speaker 08:
The individual contribution limit they challenge is not artificially bifurcated.

[00:33:31] Speaker 08:
The limit is set on a pre-election basis.

[00:33:33] Speaker 08:
It applies to a variety of elections that aren't just limited to primary and general elections, but also include runoff and special elections and party conventions and certain circumstances.

[00:33:44] Speaker 08:
And in 2014, that limit was $2,600, not $5,200.

[00:33:52] Speaker 08:
already made clear that the amount of, that the pre-election amount of the limit does not violate the First Amendment.

[00:34:01] Speaker 08:
Neither the Court nor Congress has ever held that contributions per election in amounts higher than $2,600 are non-corrupting or otherwise constitutionally required to be permitted.

[00:34:13] Speaker 08:
And third, it was plainly constitutional for Congress to structure the limit in a manner that balances the government's compelling anti-corruption interest against recognition of candidates' need to amass sufficient resources for effective advocacy in each election in which a candidate participates.

[00:34:31] Speaker 06:
So why does the FEC for 40 years allow transfer of funds from the primary election to use in the general?

[00:34:39] Speaker 06:
And anecdotally, but not in the record, it's clear that many candidates will get $2,700 for a primary that's overwhelming and they're not going to use the money really in the primary.

[00:34:54] Speaker 06:
That money then gets transferred to the general

[00:34:57] Speaker 06:
the person gives another $2,700, in effect you have $5,400 being used in the general.

[00:35:03] Speaker 06:
Why does the FEC allow that, given the scheme you just set forth?

[00:35:07] Speaker 08:
Right.

[00:35:07] Speaker 08:
So I think there's an important distinction which Judge Tatel referenced between the money that an individual gives to a candidate, the contribution, and then how the candidate in turn chooses independently to use that money.

[00:35:20] Speaker 08:
And commission regulations do give candidates a fair amount of leeway in how they choose to spend their contributions.

[00:35:28] Speaker 08:
But actually commission regulations are fairly consistent, or consistently apply the contribution limit in terms of how... I'm going to repeat my question.

[00:35:38] Speaker 06:
Sure.

[00:35:38] Speaker 06:
Why does the commission allow this?

[00:35:40] Speaker 06:
I don't think you're saying the Constitution compels the commission to allow transfers.

[00:35:45] Speaker 06:
Okay, so then what is the rationale by which the commission allows money given for a primary, for a primary that may be overwhelming or barely contested, to be used in a general, thereby in effect circumventing the $2,700 limit?

[00:36:04] Speaker 06:
Why does the commission allow that?

[00:36:06] Speaker 08:
Listen, I don't, it's not out of view that that is a state convention of the $2,700 at the limit, but I'm happy to answer, I'm happy to answer your question.

[00:36:15] Speaker 08:
So one of the concerns that the commission has to be mindful of is giving candidates the freedom to

[00:36:23] Speaker 08:
raise sufficient resources for effective advocacy.

[00:36:26] Speaker 08:
And in carrying out that interest, the commission does give candidates a fair amount of freedom in how they use their contributions.

[00:36:33] Speaker 08:
It certainly may be the case that the commission could have imposed even stricter limits on how candidates choose to use their money.

[00:36:40] Speaker 08:
The fact that the commission perhaps could have

[00:36:42] Speaker 08:
have promulgated a stricter interpretation of the contribution limits doesn't render the contribution limits themselves unconstitutional.

[00:36:53] Speaker 06:
Well, I agree with that, but here's analytically how I'm thinking about this.

[00:36:57] Speaker 06:
You've set forth nicely in your overview the structure Congress set forth per election, and you say there's an important interest in maintaining that.

[00:37:07] Speaker 06:
and I accept that on its face, but the government's actions over many decades have not been consistent with that structure.

[00:37:17] Speaker 06:
And if that's true, and I have a factual question about how true that is, but if that's true, that seems to undermine the importance of the government's interest in maintaining this per-election structure.

[00:37:29] Speaker 08:
So I think some clarification on how the regulations work may help to address your question.

[00:37:35] Speaker 08:
So the commission's regulations, they set parameters on how candidates can use money once they're contributed.

[00:37:41] Speaker 08:
And it's not the case that someone can contribute $5,200 to a candidate during the primary election, and all of that money can then be used on the primary.

[00:37:51] Speaker 08:
So that money would need to be

[00:37:54] Speaker 08:
general election money given during the primary must be used during the general election.

[00:37:59] Speaker 06:
Okay, but if you give $2,700, it's now $2,700 I guess, $2,700 in the primary and that's not used,

[00:38:09] Speaker 06:
the candidate can use that in the general, and the person can give another $2,700 for use in the general.

[00:38:15] Speaker 08:
That is correct.

[00:38:17] Speaker 08:
And that regulation applies to any candidate.

[00:38:20] Speaker 08:
So it doesn't treat candidates any differently.

[00:38:22] Speaker 08:
Any candidate is free to choose to use money that has been contributed to them during their primary election.

[00:38:28] Speaker 06:
On the risk of corruption or the importance of the interest, aren't you then getting, then the candidate getting,

[00:38:37] Speaker 06:
in effect, $5,400 from one person for use in the general.

[00:38:42] Speaker 08:
Well, no, because if the money is given to a candidate for the purposes of associating with the candidate in the primary election, which I think it's important to recognize, too, we're talking about the right to associate.

[00:38:52] Speaker 08:
And so one manner that an individual may choose to associate with a candidate is through a contribution.

[00:38:59] Speaker 08:
And a contribution made during the primary

[00:39:03] Speaker 08:
demonstrate a desire to associate with that candidate during the primary.

[00:39:07] Speaker 08:
Now, the fact, independent of that, that a candidate may then choose to use that money in a different manner doesn't raise corruption concerns about the money having been given by the individual for that other purpose.

[00:39:20] Speaker 08:
In fact, it wasn't given for that purpose.

[00:39:22] Speaker 06:
And I think... You don't think that happens in the real world?

[00:39:25] Speaker 08:
I'm sure that candidates carry money over from a primary to a general, but that what the candidate makes an independent choice to deal with the money is completely distinct from the contribution itself.

[00:39:37] Speaker 08:
And one of the reasons that

[00:39:40] Speaker 08:
the Supreme Court in Buckley recognized the sort of low level of First Amendment burdens implicated by contributions are because an individual that makes a contribution to a candidate does not have control over how the candidate uses that money.

[00:39:54] Speaker 10:
I guess the question is, maybe put another way, given the concern that large amounts of money are given with a nod and a wink and create

[00:40:02] Speaker 10:
appearance and or actual quid pro quo corruption risks, why doesn't the candidate have to refund to people who have supported him or her monies that aren't used?

[00:40:15] Speaker 08:
Well, so that's a fair question, Your Honor, and I think it's possible that the Commission could require that.

[00:40:22] Speaker 08:
But I think at this point we're talking about how Commission regulations work, and I do think it's just important to remind the Court that this case is a challenge to the statute.

[00:40:32] Speaker 08:
A panel of this Court has explicitly held at the certification stage that to the extent the plaintiffs are challenging a regulation that's not properly before the Court.

[00:40:40] Speaker 06:
They're not challenging the regulation.

[00:40:42] Speaker 06:
They're relying on the regulation.

[00:40:44] Speaker 06:
to show that the government's interest in the per-election structure is not all that pristine because of the transfer.

[00:40:53] Speaker 06:
And to Judge Pillard's point, if the commission demanded refunds of unused primary donations, I think you'd have a much

[00:41:04] Speaker 06:
You'd have a much stronger case.

[00:41:05] Speaker 06:
That's not to say you don't have a good case as is, but I'm just saying the regulation is a bit of a hole.

[00:41:11] Speaker 08:
The commission may have the authority to impose a different sort of requirement.

[00:41:17] Speaker 08:
But the question that is really the essential question raised in this case is the way that Congress has structured the limit.

[00:41:27] Speaker 08:
And we don't agree with plaintiffs that the proper inquiry is whether the structure itself serves an anti-corruption interest.

[00:41:35] Speaker 10:
What is our standard of review of this part of the structure, the timing?

[00:41:40] Speaker 10:
You know, as Judge Kavanaugh was saying, you know, some states do

[00:41:45] Speaker 10:
apply a limit to the overall set of the overall cycle, others per subsidiary election.

[00:41:55] Speaker 10:
What's our standard of review?

[00:41:56] Speaker 08:
So the Supreme Court has addressed a very similar question in a number of cases.

[00:42:01] Speaker 08:
We think talking, whether we're talking about this as characterized as a structure or timing or we really think or announce, it's really the same question about how Congress chooses to implement a contribution limit that the Supreme Court has made clear serves

[00:42:15] Speaker 08:
of compelling anti-corruption interest.

[00:42:17] Speaker 08:
And the court addressed that question in Buckley and in Nixon v. Strength, Missouri, and in Randall and made clear that at the point at which a court has determined that a contribution limit satisfies the intermediate level of

[00:42:33] Speaker 08:
drawn scrutiny, the Court has no schedule to probe the particular manner in which the limit is implemented.

[00:42:42] Speaker 08:
And certainly in Buckley, in talking about the question of an over-breath challenge about whether the amount of the limit was unconstitutional, the Court specifically referenced the way the limit was structured and said, well, the Congress might not have structured the limit to account for the actual amounts of spending on elections.

[00:43:02] Speaker 08:
It's failure to engage in such

[00:43:03] Speaker 08:
fine-tuning does not invalidate the limit because if the court is satisfied, some limit is necessary.

[00:43:09] Speaker 08:
It has no scalpel to probe whether a higher ceiling may not serve as well.

[00:43:13] Speaker 08:
In Nixon v. Shrink, Missouri, the court similarly recognized that the amount need not be fine-tuned.

[00:43:20] Speaker 08:
In Randall, the court recognized

[00:43:23] Speaker 08:
that we ordinarily defer to the legislature's judgment on these issues.

[00:43:28] Speaker 10:
Okay, so here, I'm going to take that to be your argument that there is a closely drawn analysis of the anti-corruption interest as it sustains a

[00:43:39] Speaker 10:
contribution limit.

[00:43:40] Speaker 10:
The number has the sort of stepped down, you know, additional deference, no scalpel to probe on the setting of the precise number.

[00:43:49] Speaker 10:
And I guess my question is how and why might the structure, in terms of the

[00:43:55] Speaker 10:
timing also fall into that step down extra deference, or do we have to look at closely drawn, whether that timing analysis is closely drawn?

[00:44:05] Speaker 08:
I actually think, President, both from the Supreme Court and lower courts suggest that looking at the question of timing receives even greater deference.

[00:44:12] Speaker 08:
In the Burdick v. Dekushi case, which I believe was cited by appellants, that was a case involving the lack of a provision for write-in voting in Hawaii.

[00:44:21] Speaker 08:
And the plaintiffs challenged the fact that they wanted to be able to write in their preferred candidate.

[00:44:29] Speaker 08:
And the Supreme Court in that case held that any burden on voters' freedom to associate

[00:44:34] Speaker 08:
was only borne by those who failed to associate, identify the candidates they wanted to associate with at the last minute, and the Court has given little weight to the interest a candidate or their supporters may have in making a late versus early decision of when to exercise First Amendment associational rights.

[00:44:52] Speaker 08:
And similarly, in the Salheimer case in the Ninth Circuit, that Court, which was addressing a municipal ban on when contributions can be given, I think in that case there was a

[00:45:03] Speaker 08:
one-year limit and contributions couldn't be made outside that one-year period before an election.

[00:45:09] Speaker 08:
And the court said that a timing limit is even more marginal of a burden than a limit on an amount.

[00:45:16] Speaker 10:
So is it your position that the Commission doesn't actually have to show an anti-corruption interest in the choice to go per election versus per cycle?

[00:45:28] Speaker 10:
Yes.

[00:45:29] Speaker 08:
They don't believe that a contribution limit can be sliced up and then have each independent component of it subject to that sort of First Amendment scrutiny.

[00:45:42] Speaker 06:
You would also argue, I think, that whichever is chosen serves an anti-corruption interest.

[00:45:51] Speaker 06:
In other words, if we were to say it has to serve an anti-corruption interest and not want to

[00:45:58] Speaker 06:
get sideways with the Supreme Court on that kind of thing, you would say both per election or per cycle would serve the anti-corruption interest?

[00:46:08] Speaker 08:
Absolutely.

[00:46:09] Speaker 08:
And I think one of the points that came up during my opinion councils, excuse me, there's an echo.

[00:46:19] Speaker 08:
Earlier, sorry, there seems to be an echo.

[00:46:24] Speaker 08:
is the important distinction between primary and general elections and runoff elections and special elections, that each of these contests is an independent contest.

[00:46:32] Speaker 08:
I think the experience that our country had with just the recent presidential election makes quite clear that individuals may make choices to associate or not associate with candidates during the primary phase and may make very different choices

[00:46:47] Speaker 08:
during the general election phase.

[00:46:49] Speaker 08:
I think, actually, most tellingly, the plaintiffs themselves drew that distinction in this case.

[00:46:53] Speaker 08:
The whole reason they brought this case is because they wanted to associate with certain candidates during those candidates' generals in connection with the general election and affirmatively not to associate with those candidates in connection with their primary elections.

[00:47:08] Speaker 08:
And the notion

[00:47:10] Speaker 08:
that this sort of distinction is artificial or that runoffs are exotic or extraordinary is inconsistent with plaintiffs' own experience.

[00:47:21] Speaker 08:
Just in the 2014 cycle alone that we're talking about in this case, the plaintiffs made contributions to 10 different candidates that had runoff elections.

[00:47:32] Speaker 08:
in South Carolina, they contributed to Congressman Mark Sanford, and they actually made contributions to Mr. Sanford that exceeded the $5,200 limit that they suggest is the limit that applies.

[00:47:45] Speaker 08:
And they also supported somebody, Chris McDaniel, in Mississippi.

[00:47:50] Speaker 06:
Just on the real world facts, my sense is that when a primary is effectively under control for a candidate, the candidate will often hold a fundraiser before the primary is over.

[00:48:02] Speaker 06:
everyone knowing the primary is done and try to get the max from the person who's attending that fundraiser for both the primary and the general with everyone knowing that the full amount will be used for the general.

[00:48:19] Speaker 06:
Does that not happen?

[00:48:21] Speaker 08:
Well, I don't know that there are specific facts in the record.

[00:48:24] Speaker 06:
I do know there are not specific facts in the record, which is why my question is, but my sense is that happens quite a bit.

[00:48:30] Speaker 08:
It may happen, and as I think someone pointed out earlier, a line has to be drawn at some point, and so it was a perfectly miserable time to draw the line at the timing of an election.

[00:48:45] Speaker 00:
Doesn't it also happen that Commission regulations allow, let's say, a member of the House to take funds left over from the 2014 campaign and use them in the 2016 campaign?

[00:49:00] Speaker 08:
That is true.

[00:49:03] Speaker 08:
The statute gives a fair amount of leeway to candidates in how they can use their contributions, the point that I think I made earlier, and so they can carry that money over from a primary to a general in the same cycle.

[00:49:15] Speaker 00:
So under the logic of kind of the regulations in undermining the government's anti-corruption interests,

[00:49:23] Speaker 00:
then if that logic is compelling, then doesn't that basically shoot a hole through the whole, you know, per-election system in general?

[00:49:36] Speaker 00:
Because money can even be transferred from one election cycle to another election cycle.

[00:49:42] Speaker 00:
So who's to say then that the $2,600 or $5,200

[00:49:49] Speaker 00:
That really is really anti-corrupting because you know money can bleed over from one election cycle to another one, right?

[00:50:02] Speaker 08:
contributions that they have received from one election cycle to another.

[00:50:05] Speaker 08:
They can also donate that money to another candidate.

[00:50:08] Speaker 08:
There's a lot of ways in which candidates can use money that has been contributed to them.

[00:50:13] Speaker 08:
The difference between how the contribution limits work and how commission regulations governing how candidates spend money that has already been contributed to them is that one is talking about how limits on what

[00:50:26] Speaker 08:
affects the limit, affects what individuals are permitted to do in terms of how they're associating with or supporting a candidate.

[00:50:34] Speaker 08:
And the other is talking about the regulations in terms of how candidates are running.

[00:50:42] Speaker 09:
in the last days of the primary for $5,200 under the old limits.

[00:50:51] Speaker 09:
To the extent the anti-corruption rationale is targeting the individual donation, does that individual have any capacity to either guarantee or know

[00:51:02] Speaker 09:
that its funds will not be used, that the $5,200 will not, that $2,600 will go to the general.

[00:51:07] Speaker 09:
Does it have any capacity to know or control whether that other $2,600 will be spent on actual primary expenses, including the party at the hotel the night of the primary or any recounts or post-election litigation challenges?

[00:51:21] Speaker 08:
Well, Your Honor, and to the extent that we're talking about a scenario in which a contributor is trying to extract a promise from a candidate about how that money is going to be used, I think we're getting much closer to the very corruption concerns that are the reason that we have these limits in the first place.

[00:51:36] Speaker 08:
But commission regulations do also allow money to be spent to pay off primary debt that is carried over.

[00:51:44] Speaker 01:
We heard about the standard of review with Judge Piller.

[00:51:48] Speaker 01:
Yes.

[00:51:48] Speaker 01:
He didn't address the additional argument

[00:51:51] Speaker 01:
of your opponents that this is an as-applied challenge and therefore requires a different standard of review.

[00:51:57] Speaker 01:
So two-part question.

[00:51:59] Speaker 01:
Is there a different standard of review for an as-applied challenge?

[00:52:03] Speaker 01:
And two, what's your response to the argument that this is an as-applied challenge?

[00:52:08] Speaker 08:
So yes, if they were bringing in a facial challenge, which we believe they are, then they have a burden to demonstrate that the

[00:52:20] Speaker 08:
Now that we have demonstrated that the statute serves a legitimate purpose, they have to demonstrate that it fails to have a plainly legitimate sweep.

[00:52:30] Speaker 08:
And we do think that facial analysis is more appropriate in this case, and I think that... What if it's an as-applied challenge?

[00:52:38] Speaker 01:
What's the standard?

[00:52:39] Speaker 08:
Then we're looking at whether the statute is constitutional as applied to plaintiffs.

[00:52:45] Speaker 01:
without regard to other cases?

[00:52:47] Speaker 08:
Well, no, with regard to the circumstances that plaintiffs have identified.

[00:52:53] Speaker 08:
But we think that's one of the reasons why this is properly treated as a facial challenge, because the plaintiffs really haven't identified any narrow-defining circumstances that limit this case to themselves.

[00:53:04] Speaker 08:
In their complaint, they asked for an injunction barring enforcement of the statute's supposed artificial bifurcation of the individual contribution limits.

[00:53:13] Speaker 08:
They haven't identified any particular candidates that they might want to associate with in the future.

[00:53:19] Speaker 08:
They haven't identified any states or particular races that they might be making these contributions in.

[00:53:23] Speaker 08:
So we don't even know whether the races in which they may make these contributions in the future would implicate situations involving runoff races or special elections, which is one of the reasons that we've explained why the statute makes sense to be set up in the pro-election manner that it is set up.

[00:53:43] Speaker 08:
that because they are identifying themselves and characterizing the statute, the challenge as applied, that it should be treated that way.

[00:53:54] Speaker 08:
But in Doe versus Reed, the court addressed a challenge to a state statute that applied to particular, it was a challenge to a disclosure, the Washington State's disclosure requirement for referendum petition.

[00:54:13] Speaker 08:
And because the plaintiffs were only challenging it with respect to referendum petitions, they claimed that it was as applied.

[00:54:21] Speaker 08:
But the Court recognized that because it would apply to all petitions in that category, it was properly treated as a facial challenge.

[00:54:27] Speaker 08:
We believe the same situation is presented here.

[00:54:30] Speaker 08:
The challenge that plaintiffs are bringing would invalidate the

[00:54:36] Speaker 08:
by the per-election limits in any general election contest, and that is not a limited set of circumstances.

[00:54:43] Speaker 01:
Well, they're saying it only would, their challenge only would invalidate it for contributions given the general after the primary is over.

[00:54:52] Speaker 01:
Right, but that is a broad set of circumstances that we... Sorry, it's broad, but it's not the whole thing, unless, logically, there's no way to distinguish.

[00:55:01] Speaker 01:
But if we were to hold it only to that limit, why isn't that an applied

[00:55:07] Speaker 08:
Well, I think similarly in the case that I was just talking about, the statute, the Public Records Act applied to a variety of categories of records, and the plaintiffs were only challenging it as applied to a category of records that were referendum petitions.

[00:55:20] Speaker 08:
And the Court recognized that because it would apply to all referendum petitions, the fact that it might also, that other manners in which the statute would apply were not implicated, did not render the challenge an as-applied challenge.

[00:55:32] Speaker 08:
And so we think the fact that this would apply to all

[00:55:35] Speaker 08:
general election contributions renders it sufficiently broad to be treated as a facial challenge.

[00:55:41] Speaker 04:
Can I ask what's the Commission's view of the role of Buckley in the analysis?

[00:55:45] Speaker 04:
Because the questions have elucidated that there's two forms of arguments that could be made.

[00:55:51] Speaker 04:
One is that it's a challenge to the amount, and another is that it's a challenge to what we've been calling structure or timing.

[00:55:57] Speaker 04:
And if we envision it as a structure timing claim and not as an amount claim, is your view that as to that structure timing claim that Buckley forecloses the argument, or is it that Buckley tells us the standard and then under that standard we ought to rule in your favor?

[00:56:11] Speaker 08:
I view that the logic of Buckley and Nixon vs. Shrek, Missouri and Randall V. Sawyer and even McCutcheon make clear that the

[00:56:22] Speaker 08:
that their challenge fails.

[00:56:24] Speaker 08:
The panel held that it wasn't foreclosed for purposes of certification, but we think Buckley both sets out the standard and makes clear that what they are challenging, the structure of the limit, satisfies constitutional scrutiny.

[00:56:38] Speaker 08:
I think, as I mentioned earlier, although Buckley talked about the amount, even in the context of talking about the amount, addressed the structure of the limit.

[00:56:45] Speaker 08:
And the question that Buckley asked was whether the limit

[00:56:49] Speaker 08:
function to prevent a candidate from amassing sufficient resources for effective advocacy.

[00:56:54] Speaker 08:
Plaintiffs have certainly not made any such argument in this case.

[00:56:58] Speaker 08:
In Langston v. Strength, Missouri, addressing a similar question in the context of a State law contribution limit, the Court asked whether the limit renders political association ineffective or contributions pointless.

[00:57:10] Speaker 08:
All sorts of points that plaintiffs have not even attempted to demonstrate here.

[00:57:14] Speaker 08:
They have simply said

[00:57:15] Speaker 08:
that we wanted to avoid wasting money on primary elections.

[00:57:19] Speaker 08:
And because we didn't want to associate in a primary, we should have the right to double our amount of association in the general.

[00:57:25] Speaker 08:
And there is no legal basis for finding a constitutional right to do that.

[00:57:32] Speaker 08:
I would just break away to address the McCutcheon case, which I think the opposing counsel recognized that they rely very heavily on.

[00:57:40] Speaker 08:
And it's surprising that they do so, because in our view, McCutcheon does not help them.

[00:57:44] Speaker 08:
In that case, the court said on a number of occasions that it had previously upheld the pro-election limits of serving the permissible objective of combating corruption, that that case does not involve any challenge to the pro-election limits.

[00:58:00] Speaker 08:
And it specifically said, we leave those baselines undistributed.

[00:58:03] Speaker 06:
You throw it in for election there.

[00:58:05] Speaker 06:
They were talking, they used the word contribution.

[00:58:08] Speaker 08:
I apologize, I'm just paraphrasing the decision.

[00:58:11] Speaker 08:
But they do, and the very... Well, it's an important distinction.

[00:58:15] Speaker 06:
It's not really a paraphrase, actually.

[00:58:19] Speaker 06:
They upheld the contribution limits.

[00:58:20] Speaker 06:
They didn't address one way or another.

[00:58:22] Speaker 06:
This doesn't hurt you, what I'm saying, but I just don't think they addressed one way or another, the perfection.

[00:58:26] Speaker 06:
They used some rhetoric that's actually a little loose on 5200.

[00:58:32] Speaker 06:
I don't think that hurts you, but I don't think it's fair to characterize McCutcheon as helping you either.

[00:58:37] Speaker 08:
Well, I apologize, Ernie.

[00:58:39] Speaker 08:
What I meant to say was that the Court was comparing the aggregate limits which were at issue in that case from the limits that do apply on a per-election basis, which had been addressed in Buckley.

[00:58:50] Speaker 08:
It was drawing a distinction between how the per-element

[00:58:53] Speaker 08:
per-election limits work, which is to restrict how much money an individual can give to a candidate from how the aggregate limits work, which function to restrict how many candidates an individual could associate with through contributions.

[00:59:07] Speaker 08:
And although at the line that the plaintiff's quote did refer collectively to a $5,200 limit, a number of parts of the opinion make quite clear that when the court is using that $5,200 amount, it was doing math to combine

[00:59:21] Speaker 08:
the amount one could contribute separately to a primary and general and assuming for purposes of that case that an individual had made both of those contributions so that it could demonstrate how many candidates an individual would be able to mix those two collective contributions to.

[00:59:44] Speaker 08:
If there are no further questions, we would just emphasize that the plaintiffs have made a choice in this case to associate with their, not to associate with their favorite candidates to the full extent permitted by law.

[00:59:55] Speaker 08:
They had a right to do that, but it was not a violation of their constitutional rights to permit them to do so.

[01:00:01] Speaker 08:
Thank you.

[01:00:03] Speaker 01:
I know there's no time left, but your opponent has kindly left you two minutes, which will suit you.

[01:00:09] Speaker 01:
Just so she doesn't feel bad, I would have given it to you anyway.

[01:00:12] Speaker 07:
Well, hopefully I'll have an opportunity to pay that back.

[01:00:16] Speaker 01:
I have a question for you.

[01:00:19] Speaker 01:
Of course.

[01:00:19] Speaker 01:
At the end of your argument, you said something along the lines of that the timing and pro-election decision had to be justified by an anti-corruption interest.

[01:00:30] Speaker 01:
And that's sort of the way that the arguments are pursued here.

[01:00:33] Speaker 01:
And I am wondering whether that's the only kind of rationale can fit.

[01:00:38] Speaker 01:
Now, I appreciate other kinds of rationale, equalizing the playing field, et cetera, not okay.

[01:00:44] Speaker 01:
But isn't being sensitive to other constitutional concerns a set of reasons why Congress can decide to do it per election rather than per cycle, do it timing in another way?

[01:01:00] Speaker 01:
So what I have in mind is in

[01:01:03] Speaker 01:
On Randall, the concurring opinion by Justice Thomas and Justice Scalia say that a per cycle election contribution limit would be constitutionally problematic.

[01:01:14] Speaker 01:
And they say because that would substantially advantage candidates in a general election who did not face a serious primary challenge, which they then say in practice will suppress more speech by challengers than by incumbents on the theory that incumbents don't generally face a primary challenge.

[01:01:33] Speaker 01:
So if we think about what they've done here, they mean in Congress.

[01:01:38] Speaker 01:
It seems to me there are at least equal protection and First Amendment arguments for why they did it the way they did it.

[01:01:44] Speaker 01:
Not necessarily that it compelled it, but that these are acceptable rationales.

[01:01:48] Speaker 01:
So the equal protection argument is the one we've been talking about, the one I've been talking about.

[01:01:53] Speaker 01:
It's not what you called an equalizing resources argument.

[01:01:57] Speaker 01:
It's a making sure that

[01:02:00] Speaker 01:
no primary opponent is put in a better position, something without a primary opponent is put in a better position and therefore an unfair, from an equal protection point of view, than one with.

[01:02:12] Speaker 01:
And from a First Amendment, the argument is that ensuring candidates who also run in a primary are able to raise funds adequate

[01:02:20] Speaker 01:
to compete in each phase of the election cycle.

[01:02:22] Speaker 01:
That's a First Amendment argument.

[01:02:24] Speaker 01:
So these are not what the court generally has said are inappropriate.

[01:02:27] Speaker 01:
These are constitutional concerns.

[01:02:31] Speaker 01:
Maybe they would justify going either way, cycle, not cycle, your way, Congress's way.

[01:02:38] Speaker 01:
But are these inappropriate concerns?

[01:02:43] Speaker 07:
I'm not going to say they're inappropriate, but I do think they're speculative.

[01:02:46] Speaker 07:
I think we're giving Congress an enormous benefit of the doubt to take a statute from 1974 that was structured within four corners that no longer exist.

[01:02:57] Speaker 07:
And we recall that the challenge to the contribution limits, in part in Buckley, was because there were expenditure limits on contributions.

[01:03:03] Speaker 07:
Outside speech was banned.

[01:03:05] Speaker 07:
The overall context in which Congress made this determination was a very different world.

[01:03:12] Speaker 07:
And reverse engineering legal arguments that weren't really fairly presented by the government here in order to give Congress the benefit of the doubt strikes me as more deferential than the standard.

[01:03:24] Speaker 01:
Well, you don't have to have thought anything about that.

[01:03:28] Speaker 01:
They were concerned, obviously, about the statute being upheld under the Constitution since they put a direct pipeline to this court and then to the Supreme Court.

[01:03:39] Speaker 01:
And there was no doubt that the First Amendment was going to be an important issue because that was a dispute at the time.

[01:03:45] Speaker 01:
And there was no doubt that protection with respect to challengers and opponents, et cetera, would be important.

[01:03:50] Speaker 01:
Those were the issues at the time.

[01:03:51] Speaker 01:
Now, it's true they didn't know how they were going to come out.

[01:03:54] Speaker 01:
And they certainly didn't know how it was going to come out 40 years later.

[01:03:57] Speaker 01:
But the underlying concerns that we be fair between incumbents and non, which speaks in equal protection today, or that we give a candidate the ability to compete when they've gone through a rough primary, which speaks today in a First Amendment sense, those can be rationales even if they didn't have those labels at the time, can't they?

[01:04:21] Speaker 07:
arguably, but that's not the remedy we've asked for.

[01:04:23] Speaker 01:
I would suggest by analogy... Well, it's not the remedy you asked for.

[01:04:27] Speaker 01:
Your argument was that we could only look at a corruption interest in order to uphold this, what you describe as a timing, right?

[01:04:37] Speaker 01:
And I'm asking you, is that correct?

[01:04:41] Speaker 01:
Isn't it also correct we can look at whether this may serve other constitutionally appropriate interests, one of which is

[01:04:51] Speaker 01:
being sensitive to constitutional concerns?

[01:04:54] Speaker 07:
The Supreme Court has never said yes to that.

[01:04:55] Speaker 01:
Well, no one's challenged it the way you've challenged it.

[01:04:57] Speaker 01:
That's correct.

[01:04:58] Speaker 07:
And by analogy, Your Honor, I mean, I would say that this is similar to, say, the public financing realm, where the Court has said public financing is perfectly constitutional.

[01:05:05] Speaker 07:
You can do that.

[01:05:06] Speaker 07:
That's a policy choice.

[01:05:07] Speaker 07:
But if you make that policy choice, you then have to structure this in a way that itself accords with the First Amendment.

[01:05:12] Speaker 07:
That's the Arizona Free Enterprise case.

[01:05:14] Speaker 07:
And in that sense, I don't know if that answers your question, but I feel like

[01:05:20] Speaker 07:
The REC and we agree that in some ways the card of this case is the scalpel to probe language in Buckley.

[01:05:25] Speaker 07:
The difference is that in Buckley, which is of course a facial challenge, and in Shrimp, Missouri versus Nixon and in Thalheimer and all these other cases, you know, the plaintiffs came to the court and said, we think this number is too low, make up a new one.

[01:05:38] Speaker 07:
And the courts have said, you know, we're not going to do that.

[01:05:41] Speaker 07:
You know, this is a judgment of Congresses or the less state legislatures on what the appropriate prophylaxis is.

[01:05:48] Speaker 07:
And we're not going to substitute our own judgment on what that number is.

[01:05:50] Speaker 07:
The difference here is that we're not just supplying a number we pulled out of thin air.

[01:05:55] Speaker 07:
We're supplying a number that came out of the structure.

[01:05:56] Speaker 04:
Can I just ask you one question about that number?

[01:05:58] Speaker 04:
So there's been some talk this morning about the regulation that allows a transfer of primary funds to the general election.

[01:06:05] Speaker 04:
Maybe I misunderstood your theory, but as I understood your theory, you don't care about that.

[01:06:09] Speaker 04:
You'd be making the same argument even if there were no allowance for transfer from the primary to the general, even if it were cordoned off strictly so that you could only use 2600 in the primary and only use 2600 in the general, you'd still be making the same argument, which is that, look, by the time we get to the general,

[01:06:26] Speaker 04:
Somebody has gotten the chance to spend $5,200 on this candidate.

[01:06:30] Speaker 04:
I should have that same chance.

[01:06:32] Speaker 04:
I should be allowed to spend the entire $5,200 in the general.

[01:06:35] Speaker 04:
Transfer is just not a part of your argument, as I understood it.

[01:06:38] Speaker 07:
I think that's right.

[01:06:39] Speaker 06:
And... In your reply brief, so I read your argument as... I agree with what Judge Srinivasan said in the sense that I read your argument as making the broader argument that even if there were no regulation, it's still unconstitutional.

[01:06:54] Speaker 06:
But you do say in the...

[01:06:56] Speaker 06:
plaintiffs therefore cite the FEC regulations as evidence that the Commission recognizes that donating $5,200 in a single check is not corrupting.

[01:07:05] Speaker 06:
Is that still part of your argument or not?

[01:07:07] Speaker 07:
It is still part of our argument.

[01:07:09] Speaker 07:
But again, the unfairness that's built into here goes away if we get the remedy we want.

[01:07:13] Speaker 07:
If we can give twice as much when we give nothing, twice as much in the general when we give nothing in the primary, there's no unfairness in how the various candidates are being treated.

[01:07:21] Speaker 07:
That doesn't have to be a Fifth Amendment outcome.

[01:07:22] Speaker 07:
That can be a First Amendment outcome.

[01:07:24] Speaker 00:
But doesn't that answer then Chief Judge Garland's question to you at the outset, which is that if they said, well, in 2012, there wasn't really a big challenge to this person, so we didn't give them any money.

[01:07:40] Speaker 00:
But in 2014, there was a legitimate challenge, and so we wish to fully associate with him.

[01:07:46] Speaker 00:
So in the general, we want to give 10,400 because, you know, we didn't, we elected not to associate with him during the 2012 election cycle.

[01:07:57] Speaker 00:
Plus, you know, in our favor showing that this isn't really anti-corrupting, you know, the regulations allowed 2012 money that was left over to be transferred into the 2014 fund.

[01:08:11] Speaker 00:
So there should be a violation of our First Amendment rights to prevent us from giving, you know, $10,400.

[01:08:22] Speaker 07:
And that's not our view, because again, we think that would be asking this court to provide a scalpel to probe exactly the scope of what Congress has declared non-corrupting.

[01:08:31] Speaker 07:
That's not where we are.

[01:08:32] Speaker 07:
We're in a specific election context, which could have been done as an enforcement challenge.

[01:08:35] Speaker 07:
If we were here on an appeal from a criminal prosecution, God forbid, we'd be making exactly this argument.

[01:08:41] Speaker 07:
This particular activity is a First Amendment protected activity, and the government's interest is not closely drawn.

[01:08:46] Speaker 00:
And we wouldn't be taught by these hypotheticals.

[01:08:47] Speaker 00:
Your clients could have written a check for $10,400 and made the same argument.

[01:08:52] Speaker 00:
in the complaint and we'd have that question right before us.

[01:08:57] Speaker 07:
And I think that, again, the dividing line that we, the dividing line we rely on is that Congress anticipated this check to this candidate and it didn't anticipate that check to that candidate.

[01:09:07] Speaker 07:
And so there's no need to get into the scalpel to probe area.

[01:09:10] Speaker 07:
There's no need to setting us back up.

[01:09:12] Speaker 00:
How do we know Congress didn't anticipate the $10,400 check, but they did the $5,200 check?

[01:09:20] Speaker 07:
because of the way candidate is described in the statute, it's tied to a particular election.

[01:09:26] Speaker 07:
And you had elected to a particular office, and previous elections... It doesn't say particular office.

[01:09:30] Speaker 00:
It says to federal office.

[01:09:32] Speaker 00:
It doesn't say a federal office.

[01:09:35] Speaker 00:
It just says to federal office.

[01:09:36] Speaker 00:
Federal office meaning Congress, the Senate, the President... The House or Senate.

[01:09:43] Speaker 00:
So if you're running for Congress in 2012, it's the same federal office as when you're running for the seat in 2014, the way that this is defined.

[01:09:55] Speaker 07:
And I'm not sure I agree with that as a matter of statutory interpretation, Your Honor.

[01:09:58] Speaker 00:
Well, tell me how in the statute I'm wrong.

[01:10:02] Speaker 00:
What words in the statute support your reading and not mine?

[01:10:08] Speaker 00:
It doesn't say to a federal office.

[01:10:11] Speaker 00:
It doesn't say anything about a specific federal office.

[01:10:14] Speaker 07:
In the sense that candidate is tied to election, and in the sense that this has been the lived experience of the statute for 40 plus years, I think that's a dividing line that the statute anticipates.

[01:10:23] Speaker 00:
Well, if a candidate is tied to an election, then how does your argument make any sense?

[01:10:30] Speaker 01:
Just to follow up, you said that Congress contemplated a $5,200 check.

[01:10:36] Speaker 01:
Where is that in the statute?

[01:10:38] Speaker 07:
in the fact that almost all general election candidates first pass through a primary and are permitted to take that amount of money by that point.

[01:10:46] Speaker 01:
But that's not in one check.

[01:10:48] Speaker 01:
There's nothing in the statute that would permit it in one check.

[01:10:51] Speaker 01:
It says the limitations apply separately with respect to each election.

[01:10:55] Speaker 07:
And the fact you can't give it in one check is why we have standing to challenge the statute.

[01:10:58] Speaker 01:
Okay, so then it can't be true that Congress

[01:11:02] Speaker 07:
intended or contemplated fifty two hundred dollars in one check and i apologize for the shorthand which is ironic in the context of this case no the simply that congress did anticipate fifty two hundred dollars in an election cycle going to a candidate general election that's just because this is the most of their experiences incumbents you don't run against primary challenge what about seventy eight hundred

[01:11:23] Speaker 10:
in one cycle.

[01:11:25] Speaker 10:
I mean, what about the primary candidate who has to do a runoff and then go into the general?

[01:11:29] Speaker 10:
Is it your position that your candidate, that your clients must be able to give $7,800 in the general to a person who arrives in a general after having done a primary to primary runoff?

[01:11:41] Speaker 07:
I think that would follow from our argument in a way that the primary or the previous election would not.

[01:11:47] Speaker 01:
Thank you all very much.