[00:00:13] Speaker 00:
Oh, yay, oh, yay, oh, yay.

[00:00:16] Speaker 00:
All persons having business before the Honorable the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting.

[00:00:27] Speaker 00:
God save the United States and its Honorable Court.

[00:00:29] Speaker 00:
Be seated, please.

[00:00:32] Speaker 00:
Case number 18-5227, Libertarian National Committee, Inc.

[00:00:36] Speaker 00:
Appellate versus Federal Election Commission.

[00:00:38] Speaker 00:
Mr. Gura for the Appellate, Mrs. Seeler for the Appellee.

[00:00:47] Speaker 11:
Good morning, Mr. Chief Judge, and may it please the Court, I'm Alan Gurra for the Libertarian National Committee.

[00:00:53] Speaker 11:
The District Court correctly rejected the FEC's standing claims.

[00:00:57] Speaker 11:
I'll start with a more simple and straightforward one.

[00:00:59] Speaker 11:
The FEC forbids the LNC from spending money to speak on the basis of the speech's content.

[00:01:05] Speaker 11:
As the FEC describes the Cromley Bus restricted spending accounts on page 48 of its brief,

[00:01:12] Speaker 11:
Each category of expenses serves a different purpose and frequently features a discussion of different issues and priorities."

[00:01:21] Speaker 11:
Close quote.

[00:01:21] Speaker 11:
By enforcing this content-based speech restriction, the FEC injures the LNC, not just with respect to Schaber's request, which I'll get to in a moment, but with respect to all donors.

[00:01:32] Speaker 11:
The record manifests this injury as to Ruffer, Chastain, Clenard, and Redpath, and there are obviously many more.

[00:01:40] Speaker 11:
two of the complaint, appendix page 15 and 16, and specifically paragraph 31, which had to be interpreted in the light most favorable to the LNC, challenged this specific injury.

[00:01:52] Speaker 11:
It led to the second certified question, which squarely presents this injury and no other.

[00:01:57] Speaker 11:
Now, the LNC does believe that it would have more electoral success if its rights were not violated.

[00:02:03] Speaker 11:
And while it happens to be true that the Cromwell bus scheme has a disparate impact on smaller parties,

[00:02:08] Speaker 11:
Neither of these points is relevant to the fact that the content-based speech restrictions work an injuring fact traceable to the FEC and addressable by this court, which is the injury addressed by the second certified facial challenge question.

[00:02:22] Speaker 11:
Moving on to the Schaber as applied injury and the FEC's calculator problem.

[00:02:28] Speaker 11:
I will use the FEC's math, but unlike the FEC, I will also follow the FEC's advisory opinion.

[00:02:34] Speaker 11:
Because when this lawsuit was filed, we didn't have the FEC's litigating position.

[00:02:39] Speaker 11:
We had the FEC's advisory opinion.

[00:02:42] Speaker 11:
The FEC's reply brief on its motion to dismiss fails to mention its own advisory opinion, but it will not go away.

[00:02:49] Speaker 11:
This opinion instructed Schaber's trustee and the LNC not to do the very thing that the FEC now wishes we would have done, exercise discretion as to the amount of contributions taken from the trust.

[00:03:01] Speaker 11:
The FEC concedes, as it must, that no matter what, in 2015, the LNC could not have absorbed all of Schaber's gift.

[00:03:10] Speaker 11:
Let's use the FEC's math.

[00:03:11] Speaker 11:
Table 1, page 8 of their motion, which shows that in 2015, even with a maximum building contribution, the LNC could have absorbed a little over $141,000 of a bequest that exceeds $235,000.

[00:03:26] Speaker 11:
So where was the other $94,000 supposed to go?

[00:03:31] Speaker 11:
The FEC made two suggestions.

[00:03:33] Speaker 11:
First, the General Counsel telephoned Ms.

[00:03:35] Speaker 11:
Schaber's lawyer and asked that the LNC take the entire request subject to the content-based restrictions, not because the LNC could then spend the money right away, but so that it could recover the overage sometime in 2016.

[00:03:49] Speaker 06:
Can I just ask you a question, and that is accepting your view of the math for these present purposes.

[00:03:59] Speaker 06:
Given that the money is already locked into an escrow account that's set to set up just the individual contribution amount each year, can you just explain to me how, if you were to obtain the declaratory relief

[00:04:13] Speaker 06:
or injunctive relief that you seek, that would change anything given the terms of the escrow.

[00:04:19] Speaker 06:
Does the escrow itself allow for adjustment based on

[00:04:22] Speaker 11:
The terms of the escrow itself reflect litigation.

[00:04:25] Speaker 11:
It does reserve the right to withdraw the full amount if the restriction were declared unconstitutional.

[00:04:31] Speaker 11:
And in fact, the FEC's motion at page 19 states that the court could allow, I'm quoting here, this is their language, not mine, a court could allow the LNC access to the remaining Schaber funds being held in escrow.

[00:04:43] Speaker 11:
So in that sense, they concede that it's redressable.

[00:04:46] Speaker 11:
They also concede, of course, that we're not actually allowed to take it out of the escrow, that these restrictions are in fact in place.

[00:04:52] Speaker 11:
And so they haven't exactly changed their mind.

[00:04:54] Speaker 11:
They sometimes suggest they do.

[00:04:56] Speaker 11:
But here, they suggest that that's not the case.

[00:04:58] Speaker 11:
So at the time- Sorry.

[00:05:00] Speaker 06:
Rather than what they're talking about, just to be- I want to make sure I heard you correctly.

[00:05:03] Speaker 06:
And I'm sorry, the sound isn't great in here.

[00:05:05] Speaker 06:
And that is that the way that escrow is set up, that developments of this litigation would then allow you to change the course of payments.

[00:05:12] Speaker 06:
I just want to make sure- That is correct, Your Honor.

[00:05:15] Speaker 11:
That is correct, Your Honor.

[00:05:17] Speaker 11:
At the time that this lawsuit was filed, we had this advisory opinion.

[00:05:22] Speaker 11:
The advisory opinion was very clear.

[00:05:24] Speaker 11:
The LNC can't pledge, assign, or commit the money in advance.

[00:05:28] Speaker 11:
And as your honor noted, the maximum amount and no other can come out every year until it's exhausted.

[00:05:35] Speaker 11:
So even if

[00:05:37] Speaker 11:
Today, they got up and gave us a clear waiver, unlike the sort of waiver we have in their brief.

[00:05:42] Speaker 11:
But if we had a clear waiver today and the money could come out by lunchtime, the injuries still existed at the time that the lawsuit was filed.

[00:05:48] Speaker 09:
And that brings us, of course, to the capable repetition, the innovating review problem, because even if they were to moot... I just want to, I think everybody, you're all, both sides are in agreement on this, but by the second year,

[00:06:00] Speaker 09:
had you put the money each time into the building fund, you could have absorbed all the money, right?

[00:06:05] Speaker 09:
Not that it would have displaced other money, but you could have put $120,000 or so each year plus the 30-some thousand the first year.

[00:06:14] Speaker 09:
So by the beginning of 2016, you could have taken all the money, not for the purpose you wanted it for, but you could take it all.

[00:06:22] Speaker 11:
Not exactly, Your Honor.

[00:06:24] Speaker 11:
It could not have all gone into the building fund, because the maximum contribution limit for the building fund was $100,200.

[00:06:29] Speaker 11:
They would have had to use two funds.

[00:06:32] Speaker 11:
So not just the building fund.

[00:06:34] Speaker 11:
They would have had to use the building and probably the presidential convention fund.

[00:06:40] Speaker 09:
But no, what I mean is in 2015, you could have taken the 33-9.

[00:06:49] Speaker 11:
They took 33, 400, which was limited to time, immediately.

[00:06:52] Speaker 09:
Right.

[00:06:52] Speaker 09:
And then you could have taken, I don't know, 101, 102 each year, something like that.

[00:07:02] Speaker 11:
In 2015, it could have been possible to structure it such that the money would have been paid out in 2016, but it could not be absorbed and paid in 2015 because there were not sufficient offsetting expenses.

[00:07:22] Speaker 09:
That's on the offsetting point.

[00:07:24] Speaker 09:
I'm not asking about that.

[00:07:25] Speaker 09:
Yes.

[00:07:26] Speaker 09:
You were permitted to put $101,000 something into the building fund, right?

[00:07:30] Speaker 09:
Correct.

[00:07:31] Speaker 09:
And then the second year, you could have put another $101,000 into the building fund.

[00:07:36] Speaker 09:
In 2015 and then 2016.

[00:07:39] Speaker 11:
No.

[00:07:39] Speaker 11:
In the second year, nothing could move from the escrow into the building fund.

[00:07:43] Speaker 09:
At the beginning, when you're deciding before you made the escrow decision,

[00:07:48] Speaker 09:
you could have put 33,000 in the general, and you could have put 101 something thousand.

[00:07:54] Speaker 09:
That's correct, you're right.

[00:07:55] Speaker 09:
And then the second year, you could put another 101,000 into the building fund.

[00:08:00] Speaker 11:
In the second year, that 100,000 could have been spent.

[00:08:03] Speaker 11:
But no, the state had to distribute the money.

[00:08:06] Speaker 11:
The money was there.

[00:08:08] Speaker 11:
I don't think that the LNC had the option of saying, well, we'll take some of the big quests today, and we'll take some of the big quests tomorrow.

[00:08:12] Speaker 11:
At that point, they're exercising discretion and control.

[00:08:15] Speaker 09:
No, before you had the escrow,

[00:08:16] Speaker 09:
You set up an escrow that permitted 33,000 every year.

[00:08:20] Speaker 09:
That's correct.

[00:08:21] Speaker 09:
You could have set up an escrow that set up 33,000 the first year and 101,000 the first year and then 101,000 the second year.

[00:08:31] Speaker 11:
No, Your Honor, because that was forbidden by the advisory opinion.

[00:08:33] Speaker 11:
The advisory opinion defined the contribution limit to be taken out every year.

[00:08:37] Speaker 11:
As the $25,000 adjusted for inflation, footnote two said it was $33,400.

[00:08:42] Speaker 11:
And they said, you can only take the maximum.

[00:08:45] Speaker 11:
It reflected the understanding that the amounts could not be varied.

[00:08:49] Speaker 11:
This goes back to the FEC's theory of when it is that you control money.

[00:08:53] Speaker 11:
If the party has any ability to vary the contribution amounts,

[00:08:58] Speaker 11:
then at that point the FEC conceives that you're controlling the money, therefore you've received it and you've violated the law.

[00:09:04] Speaker 11:
That's why the advisory opinion specifically states it references their old

[00:09:11] Speaker 11:
It references their previous guidance that states that, I'm quoting here, the trustees would exercise no discretion regarding the amount of the contributions.

[00:09:20] Speaker 11:
So the contribution withdrawal limit is fixed.

[00:09:23] Speaker 11:
There's no way to alter and vary the amount of contributions.

[00:09:26] Speaker 11:
And that's an advisory opinion.

[00:09:27] Speaker 11:
And your honor is correct about one thing.

[00:09:29] Speaker 11:
They could have given us any advice they wanted to.

[00:09:32] Speaker 11:
They could have written a different opinion, but they did not.

[00:09:34] Speaker 09:
So the problem is not the statute.

[00:09:36] Speaker 09:
The problem is the FEC aired as a matter of administrative law.

[00:09:41] Speaker 11:
The problem is the statute, because even if the FEC had been as generous as they wanted to be, there would still have been the problem of an injury in 2015.

[00:09:51] Speaker 11:
which is that the LNC had a request that they simply could not absorb, because the Congress has decided to restrict the FEC's ability to spend money based on the content of their speech.

[00:10:03] Speaker 11:
And that is a content-based restriction, subject to strict scrutiny, even if we say that it's a contribution limit.

[00:10:09] Speaker 11:
And I think it's an expenditure limit.

[00:10:11] Speaker 11:
The district court said it's a combination of both.

[00:10:13] Speaker 11:
You have a statute that uses the word use three times.

[00:10:17] Speaker 11:
Here's how you can use the money.

[00:10:18] Speaker 11:
And it's not a restriction on what the

[00:10:21] Speaker 11:
donor can do.

[00:10:22] Speaker 11:
It's the restriction of what the party can do with its money and they have various content.

[00:10:28] Speaker 09:
How is that distinguished from McConnell's discussion of soft money and the way money can be used under FICA?

[00:10:37] Speaker 11:
McConnell actually helps us out because McConnell stressed that the soft money ban was constitutional because

[00:10:43] Speaker 11:
It applied regardless of how the money was spent.

[00:10:46] Speaker 11:
That language appears in McConnell and I believe in the other cases as well that followed from it.

[00:10:50] Speaker 01:
And so here you have... But it could only be spent for a certain category.

[00:10:59] Speaker 11:
That's right.

[00:11:01] Speaker 11:
In McConnell, actually, the soft money ban was upheld because the limit applied no matter what the party would do with the money.

[00:11:11] Speaker 11:
Here we have the opposite situation.

[00:11:13] Speaker 11:
The limit changes based upon what the party does.

[00:11:17] Speaker 06:
So in three different ways... Isn't that the same as 11 funds?

[00:11:21] Speaker 11:
I'm sorry?

[00:11:21] Speaker 06:
Isn't that the exact same as 11 funds that were upheld in McConnell?

[00:11:25] Speaker 11:
I know, Your Honor, the Levin Funds issue is not exactly the same.

[00:11:30] Speaker 06:
I believe Levin Funds refers to the state-coordinated... I know, but it says here are the specific things that these funds can be used for, voter registration, get out the vote drive, specific things, but can't be used for other... there's pools of money that can only be used for specific things.

[00:11:45] Speaker 06:
Are those content-based discriminations that should have been subject to strict scrutiny on McConnell?

[00:11:50] Speaker 11:
Nobody raised that issue in McConnell.

[00:11:52] Speaker 06:
I'm asking you what your opinion is of Levin Funds.

[00:11:54] Speaker 11:
My opinion here is that that would be an interesting dispute.

[00:11:58] Speaker 11:
The Levin Fund.

[00:11:59] Speaker 06:
How would you distinguish that?

[00:12:02] Speaker 11:
I would say that there would be a problem with that type of restriction.

[00:12:07] Speaker 06:
Your position would take down the 11 funds if we view that as content-based discrimination on expression.

[00:12:13] Speaker 06:
It would be subject to the same analysis.

[00:12:15] Speaker 11:
I believe the 11 funds also involve coordination with state and local issues, if I'm remembering the correct provision.

[00:12:24] Speaker 11:
And so it could have been, as the district court noted,

[00:12:27] Speaker 11:
that the court would take a different view of restricting money spent on federal elections and money spent on other things.

[00:12:36] Speaker 11:
Congress has a greater role in regulating federal elections, but McConnell, though, did tell us a couple of other things.

[00:12:42] Speaker 06:
Just to be clear, as to whether or not Levin Fund restrictions are content-based, you can think of no way to distinguish those limitations from the ones here.

[00:12:51] Speaker 06:
So if one counts as content-based, the other does.

[00:12:55] Speaker 11:
You know, I can't commit to that.

[00:12:57] Speaker 11:
I suppose that it would be a very strong argument.

[00:12:59] Speaker 11:
But the problem, though, is that if you get... I can't commit to it.

[00:13:02] Speaker 06:
I don't see the difference.

[00:13:04] Speaker 11:
Okay.

[00:13:04] Speaker 11:
The difference is that if you get down to the question of whether or not the Levin funds are going to be...

[00:13:09] Speaker 11:
upheld or not, even as content-based restrictions, it's a very different type of situation because you're seeing Congress regulating things that are somewhat apart from federal elections.

[00:13:20] Speaker 11:
But McConnell did tell us, McConnell did not leave us without guidance here.

[00:13:23] Speaker 10:
McConnell told us that the difference between... Are you suggesting that a content-based restriction would be more likely to survive scrutiny if it was

[00:13:34] Speaker 10:
I don't understand your point about your effort to distinguish.

[00:13:39] Speaker 11:
Congress can say we have an interest in regulating federal elections in the interest of preventing corruption, let's say.

[00:13:46] Speaker 11:
Congress has a much lower interest in regulating other elections.

[00:13:52] Speaker 11:
But McConnell, if I might, Your Honor, point out, did give us some guidance on this issue.

[00:13:57] Speaker 11:
McConnell gave us actually two examples, two situations by which we can distinguish

[00:14:04] Speaker 11:
expenditure limits from contribution limits.

[00:14:06] Speaker 11:
First of all, it said, if the speech is burned in a way that a direct restriction would not, then you have an expenditure restriction.

[00:14:22] Speaker 11:
Here, we do have a burden on speech in a way that a direct restriction does not.

[00:14:26] Speaker 11:
McConnell also gave us an example.

[00:14:28] Speaker 07:
Sorry, I didn't catch that.

[00:14:30] Speaker 07:
Could you just run that?

[00:14:31] Speaker 11:
If the restriction burdens speech in a way that a direct restriction does not, then it would be an expenditure restriction under McConnell.

[00:14:44] Speaker 11:
That's at pages 138 and 139.

[00:14:46] Speaker 11:
Here we have limits on how to use the money.

[00:14:48] Speaker 11:
So we have here a burden

[00:14:50] Speaker 11:
on speech and that burdened speech in a way that direct restrictions don't.

[00:14:53] Speaker 08:
But in McConnell, you had limits on how to spend the money.

[00:14:58] Speaker 08:
There's no difference between spend and use.

[00:15:03] Speaker 11:
But McConnell's dollar amounts did not fluctuate.

[00:15:08] Speaker 11:
McConnell specifically held that it didn't matter how the money was used.

[00:15:12] Speaker 11:
If you're looking at how funds could be, you know, the soft money ban of 3125 before it was modified in the crowd.

[00:15:19] Speaker 08:
But the content restriction here applies to the donor.

[00:15:25] Speaker 08:
The Libertarian Party can still spend as much as it wants.

[00:15:28] Speaker 08:
It just has to spend it from other sources.

[00:15:33] Speaker 11:
The restriction is on what the party can do with the money that it's been given.

[00:15:37] Speaker 08:
So the donor can't... Right, but it doesn't limit the overall amount the party can spend.

[00:15:42] Speaker 08:
I'm sorry, Your Honor.

[00:15:44] Speaker 08:
I'm sorry.

[00:15:44] Speaker 08:
It doesn't limit the overall amount the party can spend.

[00:15:48] Speaker 08:
It just limits the party's ability to spend the money from this donor.

[00:15:52] Speaker 11:
Your Honor, I would respectfully disagree with that, and the facts here show otherwise.

[00:15:57] Speaker 11:
It does limit the total amount of money that parties can spend, because if the parties don't have sufficient offset expenses, for example... Yeah, but you don't argue that in this case.

[00:16:05] Speaker 08:
You never make that argument.

[00:16:06] Speaker 08:
It doesn't cap... You've never argued that this limits the Libertarian Party's ability to participate in the process.

[00:16:13] Speaker 11:
We did argue, and we argue I think quite strenuously, that it limits the total amount of money the party can spend, which obviously is what happened in 2015, because there was no presidential nominating convention that year.

[00:16:23] Speaker 11:
And the legal proceedings didn't total much more than $7,200.

[00:16:27] Speaker 11:
And so what you have here is a situation that says, well, you can spend more money on some things but on others.

[00:16:34] Speaker 11:
And if you don't have those offsetting expenses, the total amount of spending is going to be reduced.

[00:16:38] Speaker 11:
Now, that's not perhaps a problem in presidential years, and perhaps it's

[00:16:41] Speaker 07:
But that's not right.

[00:16:43] Speaker 07:
I mean, if I'm a small party and I'm unable to raise very much money, that's not an expenditure limitation.

[00:16:51] Speaker 07:
That's my inability to raise more money.

[00:16:53] Speaker 07:
And just because I might have something in a 401k plan or something that's somehow restricted, the existence of that restriction is not an expenditure restriction on me.

[00:17:05] Speaker 07:
You're not making that argument, are you?

[00:17:06] Speaker 11:
I am making two arguments, Your Honor.

[00:17:09] Speaker 11:
The first argument is that actually it does limit how much money you can raise because you have donors and the record establishes this.

[00:17:16] Speaker 11:
We have certified facts.

[00:17:18] Speaker 11:
The donors are withholding money.

[00:17:19] Speaker 11:
They've already maxed out and they will not give more money because they don't wish to see the money wasted on these ridiculous... Right.

[00:17:26] Speaker 07:
We understand that you're saying this money is restricted in the way that

[00:17:31] Speaker 07:
LNC can use it.

[00:17:33] Speaker 07:
But that's different from saying it's an expenditure restriction in the way the courts have traditionally looked at that.

[00:17:39] Speaker 07:
Or a limitation in terms of a cap.

[00:17:40] Speaker 07:
So you're saying it's a content-based restriction on the use of money that's in an account.

[00:17:46] Speaker 07:
But you're not saying that it otherwise restricts LNC's ability to use money from other sources on anything it wants.

[00:17:54] Speaker 11:
Well, it's true that the statute has not regulated all of the LNC's money, but it regulates 90% of what an individual might contribute.

[00:18:02] Speaker 11:
That's a severe restriction based on content of speech.

[00:18:05] Speaker 11:
And you have the Congress saying, look, you can give $339,000.

[00:18:08] Speaker 11:
But 90% of that, we're going to require you only spend it in specially approved ways.

[00:18:15] Speaker 11:
Donors look at that and say, we don't want to give more money.

[00:18:17] Speaker 11:
So the party gets less money to spend, even any way you work it.

[00:18:22] Speaker 11:
And then if you don't have those offsetting expenses, then you can't make use of those funds.

[00:18:27] Speaker 11:
But you have a statute that specifically says you may not use money unless it's for these things.

[00:18:31] Speaker 11:
That's an expenditure restriction.

[00:18:32] Speaker 11:
It's a content-based restriction.

[00:18:34] Speaker 04:
Can I just ask a framing question, which is so you've been focusing on the expenditure side of it, meaning the outlay by the party, the extent to which these provisions restrict the outlay by the party.

[00:18:46] Speaker 04:
often with contribution ceilings, the First Amendment restriction is on the donor.

[00:18:52] Speaker 04:
It's conceived of as a restriction on the donor.

[00:18:54] Speaker 04:
But it sounds to me like your argument is not talking about the donor side of it.

[00:18:57] Speaker 04:
You're only talking about the party side of it.

[00:19:00] Speaker 04:
Is that right?

[00:19:01] Speaker 11:
Not exactly, Your Honor.

[00:19:02] Speaker 11:
The lawsuit was brought on behalf of the Libertarian Party, and also it's asserting the interests of its members and donors.

[00:19:08] Speaker 11:
The party is, of course,

[00:19:11] Speaker 11:
under section 3110, one of the authorized plaintiffs, and it's here in that capacity.

[00:19:16] Speaker 11:
But it's also the donors who I believe are restricted from making donations under 3125.

[00:19:23] Speaker 11:
So yes, a donor who would give, say, an oversized contribution would be in trouble, just as much as the party would be for accepting it, just as much as the party would be for soliciting it, just as much as the party would be for expending it.

[00:19:36] Speaker 04:
But I guess I didn't read your briefs to be talking about the donor side of the equation.

[00:19:39] Speaker 04:
I read your briefs to be talking about the outlay side of the equation from the perspective of the party.

[00:19:44] Speaker 11:
Well, the party is the plaintiff here.

[00:19:46] Speaker 11:
And the party is being directly restricted.

[00:19:48] Speaker 11:
But the party suffers an injury here.

[00:19:50] Speaker 11:
It has a restriction, which has some very severe consequences if it's violated, on how it might spend its money based on speech.

[00:19:59] Speaker 11:
And so the question is, how can we justify this

[00:20:03] Speaker 11:
obvious content-based restriction.

[00:20:05] Speaker 11:
And the answer is, it's not our burden to do so.

[00:20:07] Speaker 11:
It's the FEC's burden.

[00:20:09] Speaker 08:
You still haven't answered our question that this content restriction only applies to the donor.

[00:20:20] Speaker 08:
It applies to the donor, not to the Libertarian Party.

[00:20:25] Speaker 08:
Could you just explain to me why that's wrong?

[00:20:30] Speaker 11:
Well, Your Honor, I believe that the statute does not allow donations that are in violation of the act.

[00:20:35] Speaker 08:
Donations?

[00:20:35] Speaker 08:
But I'm talking about the ability of following up on Judge Srinivasan's question on representing the Libertarian Party.

[00:20:43] Speaker 08:
And it doesn't limit the Libertarian Party's expenditures.

[00:20:48] Speaker 11:
The expenditures of the Libertarian Party are limited because they have

[00:20:54] Speaker 11:
they can't spend the money unless it's spent on the correct ways and they can't spend money they don't raise and they can't raise money because donors are dissuaded from contributing based upon these restrictions.

[00:21:06] Speaker 07:
Right, so you're saying that it can't be the end of the inquiry, that someone makes a contribution

[00:21:13] Speaker 07:
Let's say there's a fund that the government says that every party, there's a statute that says every party can have a Make America Great Again fund.

[00:21:23] Speaker 07:
And donors who want to do that can put money into that, but that can only be spent by the party to extol the theme, Make America Great Again.

[00:21:32] Speaker 07:
And your view is, well, wait a minute, that's a restriction on the party's speech, because yeah, we have that money, but we can't spend that for other purposes.

[00:21:42] Speaker 07:
That's your argument, right?

[00:21:43] Speaker 07:
Just to make it very clear in terms of content viewpoint-based, in your view there has to be some speech protection on the recipient party in that kind of context.

[00:21:57] Speaker 07:
If the fund at least makes a viewpoint restriction.

[00:22:07] Speaker 11:
Well, yes.

[00:22:07] Speaker 11:
I mean, look, let's suppose the donor gives money for the Libertarian Party and says, here's $100,000, and you can spend it on a convention.

[00:22:15] Speaker 11:
If that convention has a presidential nominating process, that money can be accepted.

[00:22:21] Speaker 11:
If that convention were to be one of the off-year conventions that they have in the off-cycle years, and there's no presidential nomination at issue, then they cannot accept the money, and they can't fund that type of thing.

[00:22:33] Speaker 07:
I think the question is, why is it content-based to say, in your view, to say you can only spend this on convention or building or litigation?

[00:22:45] Speaker 07:
If the government had a statute that said we want to involve the youth of the country in political campaign activity, they need to know more about it, and we have a lot of underemployed people, we are going to give every party

[00:22:58] Speaker 07:
funds for interns.

[00:23:01] Speaker 07:
We're going to give you money to employ interns.

[00:23:04] Speaker 07:
In some way, I mean you're a party that's the purpose of which is to speak.

[00:23:09] Speaker 07:
But does that mean that everything that the government does in terms of restricting money that can be given to a party is necessarily speech-based, a content-based restriction?

[00:23:21] Speaker 07:
It seems like that is the basis of your argument.

[00:23:24] Speaker 11:
Well, if the restriction were that the funds could only be used on something that could not be conceived of as speech.

[00:23:31] Speaker 07:
Well, but say my intern example.

[00:23:33] Speaker 07:
We're going to give you money, but you have to spend this money on the intern program.

[00:23:39] Speaker 07:
You can't spend it on an ad.

[00:23:41] Speaker 07:
You can't spend it in other political ways that you think would be more effective.

[00:23:46] Speaker 07:
You have to spend it on training these interns, giving them a desk, and giving them a stipend.

[00:23:53] Speaker 11:
Presumably, these interns would be advancing the party's message in some way.

[00:23:57] Speaker 11:
They would be, in effect, speaking or helping the party speak in some sense, right?

[00:24:02] Speaker 11:
So at that point, the intern is a different purpose than an advertising.

[00:24:06] Speaker 11:
And purpose, function or purpose, is part of the read analysis.

[00:24:10] Speaker 11:
Facial distinction is based on message.

[00:24:13] Speaker 11:
Whether they regulate the speech's subject matter, that's the easy part.

[00:24:16] Speaker 11:
But also, function or purpose.

[00:24:18] Speaker 07:
So your view is that would be content-based?

[00:24:21] Speaker 11:
Yes, I mean, you have here, look, this is the Supreme Court's instruction in Reed v. Town of Gilbert.

[00:24:28] Speaker 11:
The content-based laws that those that target speech based on its communicative content are presumably unconstitutional.

[00:24:35] Speaker 11:
But facial distinction based on message, that's the easy one.

[00:24:38] Speaker 11:
If they say you can make this message not the other one, that's the one we classically think of.

[00:24:42] Speaker 11:
But also, the speech's subject matter, function, or purpose.

[00:24:45] Speaker 11:
And a presidential nominating convention

[00:24:47] Speaker 11:
an election recount or contest.

[00:24:49] Speaker 11:
This is actually the language of the third provision in the Cromley bus aspects.

[00:24:53] Speaker 11:
They say, well, you can use the money for an election contest or recount.

[00:24:57] Speaker 11:
That seems to me to be money used in political litigation.

[00:25:01] Speaker 09:
Is your position that Reid overruled McConnell?

[00:25:04] Speaker 09:
Is that what you're arguing here?

[00:25:07] Speaker 09:
No, I don't believe that McConnell... Well, in McConnell, the court upheld borrowing the expenditure of soft money on federal election activities.

[00:25:17] Speaker 09:
That is certainly a purpose, right?

[00:25:20] Speaker 09:
That's exactly what the court did.

[00:25:23] Speaker 09:
It upheld the borrowing of expending money on, of expending soft money on federal election activity and the court said

[00:25:33] Speaker 09:
They are not expenditures.

[00:25:36] Speaker 09:
They limit the source and individual amount of donations.

[00:25:40] Speaker 09:
That they do so by prohibiting the spending of soft money does not render them expenditure limitations.

[00:25:46] Speaker 09:
They're only then contribution limitations.

[00:25:48] Speaker 09:
It's a necessary backstop to the

[00:25:53] Speaker 09:
regulation of contributions to limit the way in which the contributions are then spent and they're not considered expenditure.

[00:26:01] Speaker 09:
So I don't understand how you survive McConnell unless your position is that Reid overruled McConnell.

[00:26:09] Speaker 11:
It's not just reading McConnell.

[00:26:10] Speaker 11:
May I introduce Holmes, which this court decided.

[00:26:12] Speaker 11:
The Holmes case, where this court was called upon to give a definition of what a contribution limit is.

[00:26:18] Speaker 09:
Holmes couldn't have overruled.

[00:26:20] Speaker 09:
However much we might like to overrule the Supreme Court, we don't have that power.

[00:26:23] Speaker 09:
Oh, I understand that.

[00:26:24] Speaker 09:
So we're stuck.

[00:26:27] Speaker 09:
And McCutcheon affirmed McConnell.

[00:26:30] Speaker 09:
And public citizen.

[00:26:36] Speaker 09:
Sorry?

[00:26:37] Speaker 09:
Citizens United.

[00:26:38] Speaker 09:
I keep mixing it up with Public Citizen.

[00:26:40] Speaker 09:
Sorry to both sides on that one.

[00:26:43] Speaker 09:
Again, affirmed.

[00:26:44] Speaker 09:
So the only possibility here is that you think Reid overruled McConnell.

[00:26:49] Speaker 09:
And the Supreme Court has told us over and over again that even if we think that subsequent decisions weaken the Supreme Court opinion, we have to leave it to the Supreme Court to effectively overrule it.

[00:27:00] Speaker 09:
So I don't understand how this is different than the limitations on federal election activities in McConnell.

[00:27:09] Speaker 09:
The parties were allowed to spend money as much as they wanted on other things, but they couldn't spend these contributions on federal election activities.

[00:27:20] Speaker 11:
The soft money ban was upheld because, and the court specifically said, we don't care how the money is spent.

[00:27:28] Speaker 11:
All large contributions have the potential to create corruption or the appearance of corruption.

[00:27:33] Speaker 11:
And so we're going to simply say that we're going to uphold a ban regardless of how the money is spent.

[00:27:40] Speaker 09:
And not regardless.

[00:27:43] Speaker 09:
You could spend it on anything other than FEA.

[00:27:47] Speaker 09:
That's what, that's what, that was the only limitation.

[00:27:50] Speaker 09:
It wasn't regardless of how the money was spent.

[00:27:55] Speaker 11:
I believe does reference the fact that the contribution limit is lawful, because it applies even though it doesn't matter what you do with the money.

[00:28:05] Speaker 11:
It does matter what you do with the money, doesn't it?

[00:28:09] Speaker 09:
Am I wrong about that?

[00:28:10] Speaker 09:
I thought the point of McConnell is that it restricted spending soft money on federal election activities, not on other things.

[00:28:19] Speaker 11:
McConnell restricted contributions.

[00:28:24] Speaker 09:
And the contribution?

[00:28:25] Speaker 09:
With the contribution, you couldn't spend it on certain things, namely things defined as federal election activities.

[00:28:34] Speaker 11:
The contribution limit did not vary in McConnell based upon what you did with it.

[00:28:38] Speaker 11:
That is true.

[00:28:40] Speaker 09:
In what way does it matter that there were different contribution limits?

[00:28:46] Speaker 11:
Here's why it matters, Your Honor.

[00:28:48] Speaker 11:
because a contribution limit is a limit on the amount of money that can be given in a set time frame.

[00:28:54] Speaker 11:
That's what this court held in Holmes.

[00:28:56] Speaker 11:
What is a contribution limit?

[00:28:57] Speaker 11:
The contribution limit says you can only give so much money in a given time frame.

[00:29:01] Speaker 11:
Those are the two ingredients.

[00:29:03] Speaker 11:
Here we have a third ingredient in the mix, which is the content of the speech which is being funded.

[00:29:09] Speaker 11:
That takes it out of McConnell.

[00:29:10] Speaker 11:
It takes it out of Holmes.

[00:29:12] Speaker 11:
It takes it out of a contribution limit.

[00:29:14] Speaker 03:
McConnell didn't involve a time frame.

[00:29:17] Speaker 03:
McConnell was an outright ban.

[00:29:22] Speaker 11:
McConnell limited the amount of contribution in a given year.

[00:29:26] Speaker 11:
It's an annual contribution limit.

[00:29:27] Speaker 03:
No, the soft money ban is a ban.

[00:29:31] Speaker 03:
You can give them $1 for soft money, right?

[00:29:35] Speaker 11:
But the party limit in McConnell applied by time frame.

[00:29:38] Speaker 11:
So the challenge was to this law, to 3125, which said,

[00:29:43] Speaker 11:
Here's the new restriction, folks.

[00:29:45] Speaker 11:
This is what you can give to a political committee.

[00:29:50] Speaker 11:
And people complained and said, well, what about using it for other things?

[00:29:54] Speaker 11:
And the court said, it doesn't matter what else you use it for.

[00:29:57] Speaker 11:
We don't want more money than this amount going in a given time frame.

[00:30:01] Speaker 11:
And that law is constitutional.

[00:30:04] Speaker 11:
Now, here we have a different law.

[00:30:06] Speaker 11:
then introduces a third ingredient.

[00:30:08] Speaker 11:
Respectfully the final 43 seconds of time, if I could have more.

[00:30:11] Speaker 10:
I thought your argument critiquing the 2014 amendments

[00:30:22] Speaker 10:
was based on a failure by the FEC to show that there was an anti-corruption value in both the limits on a bequest from a donor who had not coordinated the bequest with the Libertarian Party and for allowing different limits based on these three types of activity.

[00:30:50] Speaker 10:
Did I misunderstand you?

[00:30:51] Speaker 10:
I didn't hear you advancing that point.

[00:30:54] Speaker 11:
That's right, because I hadn't gone to that point, Your Honor, and thank you so much.

[00:30:56] Speaker 11:
Yes, it's true.

[00:30:57] Speaker 11:
It doesn't actually matter whether we're talking about a contribution limit or an expenditure limit, even if we're talking about what they say we're talking about, a 1974-style pure contribution limit with no content-based restrictions.

[00:31:09] Speaker 10:
It has to be justified by an anti-corruption value, right?

[00:31:11] Speaker 11:
yet we we still have they still have the burden of showing even under closely drawn scrutiny they have the burden of showing that this imposition on speech is appropriate now unlike mcconnell and unlike all the other cases have come before we don't have a pure dollar limit we have

[00:31:26] Speaker 11:
an expenditure restriction that's based on the content on the use.

[00:31:31] Speaker 11:
And that they cannot justify.

[00:31:33] Speaker 11:
And we asked them to justify it.

[00:31:34] Speaker 11:
And they were all over the place.

[00:31:35] Speaker 11:
They said, well, Congress might have thought that it would be more corrupting.

[00:31:39] Speaker 11:
But then they also said that a larger contribution, regardless of how it's used, is going to generally be more corrupting.

[00:31:46] Speaker 11:
At the same time, a smaller unrestricted contribution might be more corrupting because parties value unrestricted contributions more.

[00:31:54] Speaker 11:
So which is it?

[00:31:54] Speaker 11:
Is it a larger contribution?

[00:31:56] Speaker 11:
less corrupting their smaller one, which way does it go?

[00:32:00] Speaker 11:
And their answer was, well, it depends.

[00:32:02] Speaker 01:
It depends upon.

[00:32:02] Speaker 01:
What about the findings of fact by the district court judge here?

[00:32:08] Speaker 01:
Isn't this court bound by them unless they're clearly erroneous?

[00:32:13] Speaker 01:
And you haven't made that up.

[00:32:14] Speaker 11:
Yes, Your Honor.

[00:32:14] Speaker 11:
And in fact, that's why I believe we're entitled to it.

[00:32:18] Speaker 11:
And let's talk about some of those findings of fact.

[00:32:20] Speaker 01:
So look at paragraph, what is it, 59 through 71.

[00:32:27] Speaker 01:
starting at the joint appendix, JA-201, all of the evidence that the district court recites

[00:32:37] Speaker 11:
Yes, this is an interesting exposition of historical incidents, Armand Hammer and the like, people who engaged in suspect activities.

[00:32:49] Speaker 11:
But the issue here is not a statute that's been targeted at Armand Hammer.

[00:32:53] Speaker 11:
The issue here is reflected in certified facts number 39 and 40.

[00:32:58] Speaker 01:
So is your point that there has to be a finding as to this particular request?

[00:33:04] Speaker 11:
No, my point is that we have to analyze the statute that's before us, not the statute that was before the court in 1976.

[00:33:10] Speaker 11:
And the statute before us today is very different.

[00:33:11] Speaker 01:
Congress's findings as to the original statute are not to be considered when Congress amends the statute in 2014.

[00:33:22] Speaker 11:
those findings are completely irrelevant.

[00:33:23] Speaker 11:
There's nothing in these facts, 59 and onwards, that talk about presidential nominating conventions, legal proceedings, and headquarters buildings.

[00:33:32] Speaker 11:
There's nothing in these findings that say a large contribution for your building is less corrupting than a smaller contribution for your ads.

[00:33:41] Speaker 11:
A large contribution for your presidential convention is less corrupting than a large contribution for your non-presidential convention.

[00:33:47] Speaker 11:
Those findings were never made.

[00:33:49] Speaker 04:
Instead, we have... What else is going on?

[00:33:51] Speaker 04:
Because it just seems like the entire statutory backdrop is that there's a balancing between a concern about corruption and an interest in making sure that parties and candidates have enough money.

[00:34:03] Speaker 04:
So any adjustment has to be a reflection of that calibration, doesn't it?

[00:34:08] Speaker 04:
What else could have been going on?

[00:34:10] Speaker 11:
Your Honor, here's what's been going on.

[00:34:14] Speaker 11:
You had a midnight mechanism where things were in a hurry and the budget had to be passed.

[00:34:21] Speaker 11:
And Congress, even though it was regulating core First Amendment protected speech, did this thing without any debate, without findings, without any study.

[00:34:30] Speaker 11:
And they basically winked a nudge.

[00:34:32] Speaker 11:
They said, well, we'd like to have more money in the system.

[00:34:34] Speaker 11:
We know that we need more money in the system.

[00:34:37] Speaker 11:
But perhaps for reasons of appearance, we don't want to just raise the limit.

[00:34:41] Speaker 11:
So we'll say you can give more money for this and more money for that.

[00:34:44] Speaker 11:
And everyone knows, as Representative Slaughter said on the floor of the House, that once you have these House accounts, they can go to anything.

[00:34:50] Speaker 11:
And that's exactly what happened.

[00:34:51] Speaker 11:
You had a situation where they raised the limits effectively by a factor of 10.

[00:34:59] Speaker 11:
The innovation here is that they say, well, if you funnel the money into these special accounts, then it's OK.

[00:35:05] Speaker 11:
And of course, we all know that then the money comes out of the general fund if the funds are offsetting.

[00:35:10] Speaker 04:
But they didn't raise them to infinity.

[00:35:11] Speaker 04:
And because they could have just raised them to infinity in these categories, and they decided not to, they raised them to 300%.

[00:35:16] Speaker 04:
And it must have been based on an understanding that that's

[00:35:20] Speaker 04:
the level at which the interest in corruption doesn't trump the interest in making sure there's adequate funding.

[00:35:25] Speaker 11:
Your Honor, I would urge the Court, actually, to defer to Congress's decision to raise... If Congress felt that the limit can no longer be 39,000, it needs to be 339,000, that's fine.

[00:35:37] Speaker 11:
Let's defer to Congress's desire to make the limit 339,000.

[00:35:39] Speaker 11:
Why these categories?

[00:35:40] Speaker 11:
Why these categories?

[00:35:42] Speaker 10:
Why did Congress identify these categories to raise the limits?

[00:35:47] Speaker 11:
Well, that's a great question.

[00:35:49] Speaker 11:
I wish Congress would have told us a little bit more about it.

[00:35:51] Speaker 11:
But the record is bereft of any kind of investigation as to why these categories are less corrupting.

[00:35:55] Speaker 11:
But let's talk about the FECs.

[00:35:57] Speaker 11:
Who benefited most from these categories?

[00:35:59] Speaker 11:
Who benefits from this, the two major parties that have multi-million dollar conventions and very large building operations.

[00:36:05] Speaker 11:
And now they're being very creative about.

[00:36:07] Speaker 01:
Well, we know, do we not at least, as you point out, there isn't much legislative history.

[00:36:12] Speaker 01:
But we do know that Congress had decided

[00:36:17] Speaker 01:
presidential conventions would no longer be funded by public money.

[00:36:22] Speaker 11:
That's right.

[00:36:23] Speaker 01:
And so there was an interest in figuring out how to get additional funds to the parties.

[00:36:30] Speaker 01:
That's right.

[00:36:31] Speaker 01:
And it doesn't detract from your point, but there is some indication that Congress thought that building funds and funding legal challenges and recounts were not

[00:36:45] Speaker 01:
so tied to the type of election activity that was of concern?

[00:36:53] Speaker 11:
The FEC told us what the concern is, actually.

[00:36:57] Speaker 11:
The FEC said that the great concern is that unrestricted contributions can be used specifically to benefit specific people.

[00:37:07] Speaker 11:
And that's why they raise a particularly acute risk of corruption or the appearance of corruption.

[00:37:12] Speaker 11:
And so here you have

[00:37:14] Speaker 11:
the exact opposite going on with these limits, because you have extra money being allowed to fund what?

[00:37:21] Speaker 11:
The outcome of individual people's elections, election recounts and contests, and presidential nominating conventions, which are of course geared towards nominating a presidential ticket.

[00:37:33] Speaker 11:
It doesn't make sense.

[00:37:34] Speaker 11:
Their explanation is, we don't want more money going to these things that can benefit particular people.

[00:37:40] Speaker 11:
Yet they say that in defending an act which does exactly that.

[00:37:43] Speaker 06:
Well, what about building fund?

[00:37:45] Speaker 06:
I mean, that's money that's not going to a candidate or candidates.

[00:37:50] Speaker 06:
It's not even going to an election or an election cycle.

[00:37:54] Speaker 06:
To the extent it benefits all candidates over all elections for the life of the building.

[00:37:59] Speaker 06:
So why isn't that category just on its face not triggering the type of corruption concerns that the rest of the scheme addresses?

[00:38:08] Speaker 11:
Because the FEC and the Congress have the burden to show us why the building fund category is less problematic.

[00:38:14] Speaker 06:
I just told you why on its face.

[00:38:16] Speaker 06:
It's got nothing to do with candidate, candidates, election, election cycle.

[00:38:22] Speaker 06:
It just doesn't have anything to do with that.

[00:38:25] Speaker 11:
That's right.

[00:38:25] Speaker 11:
So it would have been great if Congress had explained why then.

[00:38:28] Speaker 06:
What more does it need to say?

[00:38:29] Speaker 06:
What more needs to be said?

[00:38:30] Speaker 06:
Well, Congress needs to still say... I was merely responding to the FEC's offer... I was just asking you my question, which is why, as to that category on its face,

[00:38:42] Speaker 06:
And given a long history where Congress has explained what the concern is that it's trying to address through limitations, why does that one just not implicate it?

[00:38:52] Speaker 11:
Because it's completely irrational.

[00:38:53] Speaker 11:
Because you can give a zillion dollars to the building fund, and that frees up an equal amount of money in general funds that can be spent for anything you want.

[00:38:59] Speaker 11:
It's a restriction without any teeth in it for most people.

[00:39:02] Speaker 06:
And in fact, I thought the heart of your argument was that restricted and unrestricted funds are not fungible.

[00:39:09] Speaker 11:
OK.

[00:39:11] Speaker 11:
There is a fungibility issue, and that's certified fact number 38.

[00:39:15] Speaker 11:
Every contribution.

[00:39:17] Speaker 06:
Isn't your position that restricted funds and unrestricted funds are not fungible?

[00:39:21] Speaker 11:
Restricted contributions are very fungible, Your Honor.

[00:39:24] Speaker 11:
That's our position.

[00:39:24] Speaker 11:
We've always made the distinction.

[00:39:26] Speaker 11:
The FEC tries to blur the line.

[00:39:27] Speaker 06:
Restricted contributions are fungible with what?

[00:39:31] Speaker 11:
There is a line blurring, which is present throughout the FEC's argument, between funds and contributions.

[00:39:39] Speaker 11:
And these are different things.

[00:39:41] Speaker 11:
Funds, money sitting in a bank account, subject to restriction, are not fungible with funds sitting in another bank account that are unrestricted.

[00:39:50] Speaker 11:
Contributions are different.

[00:39:52] Speaker 11:
If the party knows that it can raise money to offset an upcoming expense on a building, on a convention, on a recount for somebody,

[00:40:03] Speaker 11:
then it knows that that will free up an equal amount of money in the general funds to be spent elsewhere.

[00:40:09] Speaker 06:
Certified fact... Isn't that like your standing argument, then?

[00:40:11] Speaker 06:
I'm sorry?

[00:40:12] Speaker 06:
I mean, it seems like that hurts your injury argument, right?

[00:40:14] Speaker 06:
When it comes to injury, you don't want it to be fungible.

[00:40:16] Speaker 06:
And when it comes to... And the FEC does the same thing in reverse.

[00:40:20] Speaker 06:
On this area, you want to say it's all fungible.

[00:40:23] Speaker 06:
But Congress could have thought when a donor makes a restricted donation that will only be used on buildings, that that wasn't going to create the type of

[00:40:32] Speaker 06:
corruption concerns tied to candidates or elections that the regulations have always been for.

[00:40:38] Speaker 11:
You know, that would be a rational basis analysis.

[00:40:40] Speaker 11:
Congress could have thought this.

[00:40:41] Speaker 11:
Congress might have done that.

[00:40:43] Speaker 11:
But the burden here is even under closely drawn scrutiny, it would still be a form of intermediate scrutiny.

[00:40:50] Speaker 06:
Just an argument that it is corrupting other than this?

[00:40:53] Speaker 11:
It could be very corrupting for the party to take a $100,000 plus donation, ostensibly for a building, and everybody knows that into the building fund you can squeeze all kinds of things, and that's essentially an unrestricted contribution.

[00:41:08] Speaker 06:
A building fund donation is an unrestricted contribution?

[00:41:12] Speaker 11:
Because if a party spends, and if you've seen the numbers on how much some of these parties spend on their so-called buildings, if you know you're going to have a million dollars of building expenses, and you're going to write a check for a million dollars for everything that's in your building next year, or even this year,

[00:41:27] Speaker 11:
OK, and somebody says, well, here's $100,000 check for the building fund.

[00:41:33] Speaker 11:
And it goes to the building fund.

[00:41:35] Speaker 11:
That frees up $100,000 out of the general fund that would have been spent on the building for anything the party wants, which it might appreciate a great deal, which is why the FEC says their first answer, they gave all kinds of conflicting answers.

[00:41:49] Speaker 11:
Their first answer says, generally, larger contributions are more likely to corrupt regardless of how the money is spent.

[00:41:57] Speaker 11:
Well that sounds like...

[00:41:59] Speaker 11:
This is an irrational scheme.

[00:42:01] Speaker 11:
Then they turn around and say, well, wait a minute.

[00:42:03] Speaker 11:
A smaller contribution might be more corrupting because it's unrestricted.

[00:42:07] Speaker 11:
So how do you tell the difference?

[00:42:09] Speaker 11:
Why do we have these?

[00:42:10] Speaker 06:
The kind of corruption you're talking about, the same corruption McCutcheon was talking about?

[00:42:15] Speaker 06:
The same corruption or appearance of corruption that McCutcheon was talking about?

[00:42:19] Speaker 11:
Corruption or appearance of corruption could take many forms.

[00:42:22] Speaker 06:
Is what you're talking about here, what you think there could be in the building fund the same thing that the Supreme Court discussed in McCutcheon, or is it different?

[00:42:29] Speaker 11:
might be different.

[00:42:31] Speaker 11:
I mean the Supreme Court in McCutcheon held that you couldn't have essentially a limit on the number of people that could be donated to the aggregate limit.

[00:42:44] Speaker 11:
Here you have an issue where

[00:42:46] Speaker 11:
The building fund, according to the FEC, going by their discovery sponsors and certified facts, the building fund, a larger contribution, though restricted, is larger and therefore it generally can be more corrupting in the sense that that money can be used for anything.

[00:43:02] Speaker 11:
It frees up fungible money that can be used for just about any purpose.

[00:43:06] Speaker 07:
But in your view, it didn't free up fundable money in the circumstances of the LNC.

[00:43:11] Speaker 07:
That's your standing argument.

[00:43:12] Speaker 11:
That's right.

[00:43:13] Speaker 11:
Here, though, the math did not work out for the LNC in 2015.

[00:43:16] Speaker 11:
There was no way for it to work out.

[00:43:18] Speaker 07:
Let me ask you just a clarifying question.

[00:43:20] Speaker 07:
I think it's your view, given the nature of a political campaign, that any legal restriction on any uses by a campaign of contributions that it receives is a content-based restriction.

[00:43:36] Speaker 07:
Is that your question?

[00:43:36] Speaker 11:
That's fair to say, Your Honor, because the parties are in the business of speaking and politicking.

[00:43:41] Speaker 11:
That's what they do.

[00:43:42] Speaker 11:
If you restrict how much money they get, you're going to alter their ability to express themselves, to engage in activity.

[00:43:48] Speaker 11:
The LNC doesn't have a side business of washing cars or running a restaurant or something.

[00:43:54] Speaker 11:
It's the political party.

[00:43:55] Speaker 11:
And all they do is speech.

[00:43:57] Speaker 11:
You know, you can take less money, that's going to be reducing the amount of money they can speak with.

[00:44:01] Speaker 11:
But if, Your Honor, if I may just amend my immediately previous answer, it's not just that in 2015 the math didn't work out for L&C, although that's sort of a crystallized example of it.

[00:44:12] Speaker 11:
It doesn't work out every year.

[00:44:14] Speaker 11:
We have in the record evidence of donors who have maxed out and they will not give out any more even though they can give another couple hundred thousand dollars.

[00:44:22] Speaker 11:
They won't do it because of the restrictions.

[00:44:24] Speaker 07:
There's not anything in the record is there that LNC spent unrestricted funds on any of the purposes for which the segregated accounts may be spent.

[00:44:37] Speaker 07:
There's no record evidence on that one way or the other is there.

[00:44:40] Speaker 11:
Yes, actually there is, Your Honor.

[00:44:42] Speaker 11:
We can deduce that because the LNC has never had either a presidential fund or a legal services, you know, crony bus account, but they've certainly spent money on a presidential convention and they've spent money on legal proceedings such as this one.

[00:44:55] Speaker 07:
From 2014 forward, I mean, after this law came into effect, has LNC spent money out of its unrestricted account for purposes such that

[00:45:07] Speaker 07:
if it had such that you would experience the kind of fungibility that you are ascribing to the major.

[00:45:16] Speaker 11:
Oh yes, the LNC had a presidential nominating convention in 2016, and they funded that out of their general account, even though they didn't have a presidential crony bus account, but they used, it was 200 something thousand dollars, that's in the record of what they spent on their nominating convention.

[00:45:35] Speaker 11:
But you have here a party that

[00:45:38] Speaker 11:
Because it's a smaller party, it's always going to have the fungibility issue.

[00:45:41] Speaker 11:
There's no way around that.

[00:45:43] Speaker 11:
If you have one donor, like Mr. Rufer, who wants to give you more than $100,000, you're almost immediately going to have a problem, so long as you're not in a presidential election year.

[00:45:56] Speaker 11:
Because at that point, the party doesn't have the ability to absorb that.

[00:46:01] Speaker 11:
And the FEC says, well, you could have spent the money that way.

[00:46:04] Speaker 11:
Well, that doesn't make any sense.

[00:46:05] Speaker 11:
Why should the LNC have?

[00:46:07] Speaker 11:
a presidential nominating convention this year.

[00:46:10] Speaker 11:
Why should they be filing election contests over elections where they didn't get more than a percent or two of the vote?

[00:46:15] Speaker 11:
That doesn't make any sense.

[00:46:17] Speaker 11:
But in any event, to go way back to Judge Griffith's question.

[00:46:21] Speaker 11:
Let me just ask whether any other judges have further questions.

[00:46:24] Speaker 02:
Just one, if I could.

[00:46:26] Speaker 02:
So you've told us repeatedly you're not challenging McConnell.

[00:46:31] Speaker 02:
Right, and under McConnell, the pre-amendment baseline was that your clients could permissibly be prevented from accepting any contribution more than $25,000 from any one donor.

[00:46:49] Speaker 02:
Why shouldn't we use that as the baseline for assessing whether the amendments impinge on your speech rights?

[00:46:58] Speaker 02:
Because post amendment, the only thing that's changed is you have a vastly greater ability to accept more money.

[00:47:08] Speaker 11:
I do believe the court should use McConnell.

[00:47:11] Speaker 11:
I would urge the court to follow McConnell.

[00:47:12] Speaker 11:
I simply read McConnell is supporting our argument.

[00:47:14] Speaker 11:
McConnell upheld the $25,000 restriction specifically because it did not depend upon how that money would be spent.

[00:47:23] Speaker 02:
You can still accept up to $25,000 in unrestricted funds from any given donor.

[00:47:31] Speaker 02:
And you can accept lots of other restricted funds.

[00:47:34] Speaker 02:
So you're better off in terms of your overall speech rights.

[00:47:38] Speaker 11:
The Libertarian Party is not better off, Your Honor, in the sense that it is having its speech censored by the government.

[00:47:48] Speaker 11:
The Libertarian Party objects to the idea that here's a limit.

[00:47:53] Speaker 11:
It's $339,000.

[00:47:55] Speaker 11:
That's what an individual can write a check for to the Libertarian Party, $339,000.

[00:48:00] Speaker 11:
But if that individual were to write that check, 90% of that money would be restricted in its use, mostly in ways that could not be spent.

[00:48:08] Speaker 03:
But Mr. Gurra, you had 30 minutes for argument.

[00:48:13] Speaker 03:
To the extent that we gave you one minute more, you were better off.

[00:48:18] Speaker 03:
That doesn't mean that you have a right to go on forever, right?

[00:48:24] Speaker 03:
I mean, my point is that

[00:48:27] Speaker 03:
that as Judge Katzis was saying, it seems a little ironic that you're saying that a statute that allowed you to receive more money is somehow impinged upon your First Amendment rights

[00:48:45] Speaker 03:
than the prior regime that was upheld?

[00:48:52] Speaker 03:
How are we supposed to understand that line of thinking?

[00:48:59] Speaker 11:
The line of thinking, Your Honor, is that the libertarian party, like many Americans, is offended by content-based restrictions on its political speech and would like for those restrictions to be exercised.

[00:49:07] Speaker 11:
Congress made the choice, Your Honor.

[00:49:09] Speaker 11:
Congress made the choice.

[00:49:10] Speaker 11:
We did not make the choice.

[00:49:11] Speaker 11:
Congress made the choice to raise the limit.

[00:49:14] Speaker 11:
That's fine.

[00:49:14] Speaker 11:
And the court should defer to that in crafting a remedy here.

[00:49:17] Speaker 11:
But what the Congress could not do was then put strings on how you speak with the money that you're given.

[00:49:23] Speaker 11:
If Congress thinks that more money should be in the system, that's fantastic.

[00:49:27] Speaker 11:
And, of course, the Libertarian Party's preference is that there be no limits at all.

[00:49:31] Speaker 11:
We understand that's a possible remedy.

[00:49:32] Speaker 11:
We're not really expecting that.

[00:49:33] Speaker 11:
That's not really the central focus of the argument here.

[00:49:36] Speaker 11:
But if you're going to have a limit, if Congress is going to be deferred to as to how much money can be in the system,

[00:49:41] Speaker 11:
Great, but there's no such thing as deference to a content-based restriction on speech.

[00:49:45] Speaker 11:
It has to meet strict scrutiny, and here it wouldn't even pass rational basis.

[00:49:49] Speaker 09:
Let me just ask, are there other judges with questions?

[00:49:52] Speaker 09:
Thank you.

[00:49:52] Speaker 09:
OK, well, we gave an extra 18 minutes, so count that as an advantage.

[00:49:57] Speaker 09:
We'll give you a chance to respond again anyway.

[00:49:59] Speaker 09:
Thank you so much.

[00:50:09] Speaker 05:
Thank you, Your Honor, and may it please the court, Jacob Seiler, for the Federal Election Commission.

[00:50:14] Speaker 05:
Excuse me.

[00:50:14] Speaker 05:
Since the first restrictions on contributions to national party committees were enacted more than 75 years ago, Congress has periodically refined those limits to balance the two interests the courts have told Congress to focus on.

[00:50:26] Speaker 05:
First, to ensure that they are closely drawn to prevent corruption or the appearance of corruption.

[00:50:31] Speaker 05:
And second, to ensure that the political parties have the ability to amass sufficient resources to compete in the electoral arena.

[00:50:38] Speaker 05:
Congress's latest refinement expanded the limits.

[00:50:44] Speaker 05:
excuse me, Congress's most recent amendment expanded the amount that parties could raise to finance certain categories of expenses that all parties incur while maintaining an overall cap on the amount that any individual could give to the party.

[00:50:58] Speaker 10:
How do you respond to Mr. Guru's argument that when Congress amended the act in 2014 they were saying

[00:51:05] Speaker 10:
you can give up to $340,000 approximately a year.

[00:51:10] Speaker 10:
And that does not trigger corruption concerns.

[00:51:14] Speaker 05:
Because it enacted that scheme at the same time that the funds were restricted to be used for specific categories of expenses.

[00:51:22] Speaker 05:
That's Congress accepting an overall level, but understanding that the value of those higher contributions was reduced by the fact that the expenses, the types of events and activities that could be funded with that money was limited.

[00:51:37] Speaker 05:
So it reduced the amount.

[00:51:39] Speaker 10:
And once we start speaking of limits, then there has to be some anti-corruption value

[00:51:43] Speaker 10:
in those categories, right?

[00:51:45] Speaker 05:
Yes, but as the court held in McConnell, all contributions to national party committees come with a risk of corruption.

[00:51:53] Speaker 05:
And Congress understood that and reaffirmed that by saying that even with respect to these categories of expenses, there is still a corruption risk.

[00:52:02] Speaker 05:
However, because of the other side of the balance, because Congress wanted to permit parties to have access to additional.

[00:52:09] Speaker 10:
So you're saying Congress said $340,000 does not trigger corruption, provided

[00:52:15] Speaker 10:
it's spent in this particular way, in these three categories.

[00:52:19] Speaker 05:
No, I don't think Congress's action can be read that way.

[00:52:21] Speaker 10:
How can you avoid it?

[00:52:22] Speaker 10:
That's the result of this, right?

[00:52:24] Speaker 10:
Somebody can now give up to $340,000 a year to a party, and apparently Congress has made the judgment that that doesn't trigger corruption concerns.

[00:52:34] Speaker 10:
That's on the safe side of it, provided you spend it in a certain way.

[00:52:38] Speaker 10:
Doesn't there need to be anti-corruption value in that restriction on how it's spent?

[00:52:45] Speaker 05:
So Congress is legislating against the risk of corruption here.

[00:52:49] Speaker 05:
These are prophylactic rules that are meant to reduce the risk of corruption.

[00:52:52] Speaker 05:
So it is not the case that a contribution that is below whatever limit Congress sets is necessarily non-corrupting.

[00:52:59] Speaker 05:
You could

[00:52:59] Speaker 05:
if it could be proven, a within limit contribution could be part of a bribery scheme.

[00:53:05] Speaker 05:
So within that limit, Congress has some flexibility to balance the two sides of the coin here.

[00:53:12] Speaker 05:
Congress has to make sure that the limits generally are tailored to combat corruption.

[00:53:18] Speaker 05:
But on the other side of the coin, Congress has to make sure.

[00:53:21] Speaker 10:
So what is the anti-corruption value?

[00:53:23] Speaker 10:
that Congress is going after in creating these three categories where they've raised the limit substantially.

[00:53:32] Speaker 05:
So the primary concern of Congress with respect to these three segregated accounts was to ensure that the parties had the ability to amass the resources to put these kind of events, to conduct these kind of activities.

[00:53:45] Speaker 05:
I don't think it's the case.

[00:53:46] Speaker 10:
And what does that have to do with corruption?

[00:53:48] Speaker 10:
I'm missing that.

[00:53:49] Speaker 10:
I mean, it's obvious that's what they're doing.

[00:53:51] Speaker 10:
They're trying to get more money for the major parties.

[00:53:53] Speaker 10:
There's no question about it.

[00:53:54] Speaker 10:
What does that have to do with anti-corruption about?

[00:53:56] Speaker 05:
Our argument is that the overall system, capping the overall limit, fights corruption.

[00:54:03] Speaker 05:
But within that limit, Congress can create distinctions to allow parties... Certainly they can.

[00:54:09] Speaker 05:
What are they here?

[00:54:10] Speaker 10:
What is it about these categories that doesn't raise the same corruption concerns that does with the General Fund?

[00:54:17] Speaker 10:
Well, several.

[00:54:19] Speaker 10:
And one is that these are... Because that's your burden, right?

[00:54:24] Speaker 10:
I mean, the touchstone of all Supreme Court analysis and this Court's analysis is when we're in this area, the government has a burden to show that it's pursuing some anti-corruption value.

[00:54:36] Speaker 10:
So I'm just trying to get at it.

[00:54:38] Speaker 10:
What's the anti-corruption value in this particular scheme that allows for higher contributions for these three categories and less for the general fund?

[00:54:47] Speaker 05:
Well, I think when Congress is lowering the limit and reducing the amount of money that parties can go, then I do think that that lower limit has to be tailored to corruption interests.

[00:55:00] Speaker 05:
But when Congress is expanding opportunities for parties, I think it's sufficient for them to say that although the overall amount that a person can give is limited to fight corruption interests, we're going to create distinctions to permit parties more flexibility.

[00:55:13] Speaker 05:
I don't think that an expansion of the limits necessarily has to be tied

[00:55:18] Speaker 05:
to corruption.

[00:55:19] Speaker 05:
But more to the point, there are bases to determine that these particular categories have an anti-corruption purpose.

[00:55:26] Speaker 05:
In fact, all three of these categories were regulated differently prior to BICRA, and that reflected the previous fact that they could be treated differently.

[00:55:38] Speaker 05:
Did they have higher limits?

[00:55:41] Speaker 05:
Prior to Bicro, which was reviewed in McConnell, yes, all three had different limits.

[00:55:45] Speaker 05:
As has been discussed, the presidential nominating conventions, parties had sources to fund those that were through public funds, and also they could create other committees that would be subject to separate limits.

[00:55:56] Speaker 05:
Office space spending was explicitly excluded from the definition of contribution prior to BICRA, so parties could use soft money to finance those expenses.

[00:56:07] Speaker 05:
And third, with respect to election contests and other legal proceedings, the Commission had concluded, and the Commission's determinations were cited in the legislative record by the supporters of this amendment,

[00:56:20] Speaker 05:
funds that went to go to litigation or recounts were not considered related to, for the purpose of influencing a federal election, because a recount is not an election, so they were not regulated under FECA.

[00:56:34] Speaker 05:
That all changed in BICRA when Congress eliminated soft money for federal parties.

[00:56:44] Speaker 05:
And just to build on that point for a second, there was a discussion about whether McConnell

[00:56:50] Speaker 05:
the rule in McConnell depended on how the money was used and it did with respect to state and local parties.

[00:56:56] Speaker 05:
State and local parties to this day may raise unlimited amounts of fund or rather limited by whatever law of the state for non-federal election activity but their money that is used for federal election activity is limited by federal law and then there's the Levin account which allows additional funds to be raised for mixed purposes.

[00:57:16] Speaker 05:
There's an allocation regime that

[00:57:18] Speaker 05:
that applies there.

[00:57:20] Speaker 05:
And so with that, with respect to the restrictions on state and local committees, how they raise the money, sorry, they have different accounts that have different contribution limits that depend on how the money is ultimately used by the state and local parties.

[00:57:32] Speaker 05:
That's effectively the same system that Congress adopted for these categories of expenses, but unlike with respect to the state parties, they set an overall cap on the amount that any individual donor can give, again to fight the corruption concern.

[00:57:46] Speaker 02:
Why wouldn't the recount

[00:57:49] Speaker 02:
contributions be the most potentially corrupting?

[00:57:52] Speaker 02:
Because that's a situation in which the election is right on the razor's edge.

[00:57:58] Speaker 05:
Well, first of all, that account covers more than just recounts.

[00:58:04] Speaker 05:
It also covers other legal proceedings.

[00:58:06] Speaker 02:
Oh, sure.

[00:58:07] Speaker 02:
But I mean, someone in, say, November of 2000 pouring money into recount presumably has a particular election in mind.

[00:58:18] Speaker 05:
And indeed, it could.

[00:58:19] Speaker 05:
There could be a situation, that Your Honor describes, where whatever the particular facts of the contribution raise additional corruption concerns.

[00:58:27] Speaker 05:
But again, Congress is regulating these things at the outset.

[00:58:30] Speaker 05:
And recounts are- Can I just clarify?

[00:58:32] Speaker 06:
Sorry.

[00:58:32] Speaker 06:
When you talk about these litigation funds and there's reference to recounts, which obviously happened after the election itself has occurred, are the funds you're talking about here confined to litigation that's

[00:58:46] Speaker 06:
after election day, or does it also include litigation during the election or before the election?

[00:58:54] Speaker 06:
I don't like what you're doing with voter registration rules.

[00:58:56] Speaker 06:
Keep the polls open longer.

[00:58:58] Speaker 06:
Your machines aren't reliable.

[00:59:00] Speaker 06:
Is it limited in time, or is it the full period?

[00:59:04] Speaker 05:
The Commission has not adopted an authoritative interpretation of the statutory text, but the text applies to recounts, election contests, and other legal proceedings.

[00:59:12] Speaker 06:
Right.

[00:59:13] Speaker 06:
Obviously, the interesting question is what other legal proceedings?

[00:59:17] Speaker 05:
Exactly.

[00:59:18] Speaker 05:
And the commission hasn't taken a position on that.

[00:59:20] Speaker 05:
And I think that the text could be read to apply to other legal proceedings that may straddle the line between the elections.

[00:59:28] Speaker 06:
I do think it's possible that- Important to know that, to sort of sort out, to understand the role of these funds and their connection to potential corruption in the electoral process?

[00:59:39] Speaker 06:
How can we analyze them without knowing what they apply to?

[00:59:42] Speaker 05:
Well, so it's certainly within this court's realm to construe the provision in a way that avoids constitutional questions.

[00:59:51] Speaker 05:
And so that might be an appropriate path here.

[00:59:55] Speaker 06:
I don't think in this area of law we can construe anything to avoid constitutional questions.

[00:59:59] Speaker 06:
It may change the contours of it, but there's always going to be these constitutional questions.

[01:00:03] Speaker 05:
Yes.

[01:00:04] Speaker 05:
But to the extent it matters to the anti-corruption interest

[01:00:11] Speaker 05:
the spending be after the election or before the election.

[01:00:13] Speaker 05:
But again, I don't think it necessarily needs to be to remain targeted at anti-corruption.

[01:00:19] Speaker 05:
It's hard to know, in many cases, it's hard to know in advance who's going to benefit from a donation to a recount.

[01:00:26] Speaker 05:
In many cases, it will be obvious who it is, but in other cases, it will not be as obvious who the specific candidate that is going to benefit from the contribution if it's given before the election, for example, or if it's given generally.

[01:00:38] Speaker 05:
So, like headquarters and other presidential nominating conventions, these are more of the, at least as a general matter, more of the administrative type expenses that all parties share.

[01:00:48] Speaker 05:
And to answer a question also that came up in my opponent's argument, the district court actually did make findings as to how much the LNC spends on these categories of expenses.

[01:00:59] Speaker 05:
And in fact, we know what they would have done in the absence of these accounts because they generally don't use them.

[01:01:05] Speaker 05:
Page 188 of the Joint Appendix, the District Court, it's paragraph 29, the District Court found that the LNC in 2016 spent more than $450,000 that could have been defrayed using these segregated account provisions.

[01:01:20] Speaker 05:
Which gets me to the jurisdictional arguments with respect to the LNC's as applied claims.

[01:01:27] Speaker 05:
Nothing prevented the LNC from accepting the entire amount that was bequeathed to them when it was offered in 2015.

[01:01:36] Speaker 05:
The segregated accounts were sufficient to

[01:01:39] Speaker 05:
for the LNC to accept the full amount of the money.

[01:01:43] Speaker 05:
Now the debate between the parties is whether they could have spent it in 2015 and therefore defrayed the full amount that it had then accepted.

[01:01:51] Speaker 05:
But there's no debate that in 2016 when this lawsuit was filed that it had sufficient expenses to totally defray the amount that Schaeber left it.

[01:02:00] Speaker 06:
And so by then it was locked up in escrow and they couldn't even even if they incurred the expenses they couldn't without illegal ruling

[01:02:07] Speaker 06:
they couldn't have that money released to go to those extra expenses.

[01:02:10] Speaker 06:
That's correct.

[01:02:10] Speaker 06:
It seems like injury to me.

[01:02:12] Speaker 05:
That's correct.

[01:02:12] Speaker 05:
But the LNC was the one that made the decision to put the money in ASCRO.

[01:02:16] Speaker 05:
The LNC could have instead simply accepted.

[01:02:19] Speaker 06:
Given by the statutory scheme that they're challenging.

[01:02:21] Speaker 06:
They didn't make that decision just because that's what we'd like to do today.

[01:02:25] Speaker 06:
They said the statutory scheme forced them to do it.

[01:02:28] Speaker 06:
And then by 2016, when they had more expenses, they couldn't use the funds because they had to put it in the ASCRO.

[01:02:33] Speaker 06:
This is, I'm just telling you.

[01:02:35] Speaker 05:
I understand their argument, but the statutory scheme gave them the option to do what they did if they only wanted to accept the money into their general account.

[01:02:43] Speaker 05:
They could do what they did, or they could have chosen to accept the money into the separate segregated accounts.

[01:02:49] Speaker 05:
And if it had done so, in 2015 it might have had a stronger argument for standing because it had money in accounts that it wanted to spend for

[01:02:57] Speaker 05:
spend on other expenses, but once that calendar changed to 2016 and it had a new set of expenses, nobody contests that its 2016 expenses were sufficient to fully offset.

[01:03:11] Speaker 09:
I was a little unclear before.

[01:03:14] Speaker 09:
Could they, in the original decision about the escrow, first take in the $33,000 change and put that into the general account, take in $101,000

[01:03:27] Speaker 09:
put it in the building account, and then say, and next year we want another $101,000 in our building account.

[01:03:37] Speaker 09:
And that would be the escrow.

[01:03:39] Speaker 05:
Right, so an escrow would not have been necessary in that situation, because it could have just accepted all of the money into the various accounts had it created them.

[01:03:47] Speaker 09:
I'm particularly talking about the building account, because they have a mortgage of $250-something thousand dollars.

[01:03:51] Speaker 09:
So they have an expense that they could pay off.

[01:03:55] Speaker 09:
They could pay off their entire debt,

[01:03:57] Speaker 09:
They say in their papers that they actually want to pay it off as soon as possible.

[01:04:01] Speaker 09:
So leaving aside the others, could they have had an escrow arrangement in which 33,000 comes out right away.

[01:04:09] Speaker 09:
So that's not escrowed.

[01:04:10] Speaker 09:
100-some thousand goes in the building account in 2015.

[01:04:14] Speaker 09:
And the remainder, according to the escrow agreement, comes into the building account in 2016.

[01:04:18] Speaker 05:
So I think they could have.

[01:04:20] Speaker 05:
The advisory opinion that the ONC cites to say that it

[01:04:24] Speaker 05:
it could not have done that was directed at the specific facts that the LNC presented to the court which didn't include the options your honor is suggesting.

[01:04:33] Speaker 09:
But there's nothing about the statute that would have barred them from doing that or about any FEC rules that would have barred them from doing that?

[01:04:39] Speaker 05:
None that I'm aware of, no.

[01:04:41] Speaker 05:
And so they could have they could have done what your honor suggests and that as well as the option of accepting all the money into the

[01:04:48] Speaker 05:
segregated accounts, more than just the building accounts, would have defrayed, would have eliminated all their injury by 2016.

[01:04:55] Speaker 09:
Now the district court found that the contrary... I'm actually not as interested in the injury question and the way in which you're describing it for standing.

[01:05:04] Speaker 09:
They still have a constitutional claim of an injury of not being able to spend the money the way they want to.

[01:05:10] Speaker 09:
I think the question really is how much of a restriction on whatever right they have to receipt.

[01:05:16] Speaker 09:
There's no associational right anymore.

[01:05:18] Speaker 09:
The person is dead.

[01:05:19] Speaker 09:
They agree with that.

[01:05:20] Speaker 09:
The only right is perhaps some vestigial right about accepting.

[01:05:25] Speaker 09:
No case has held that before.

[01:05:27] Speaker 09:
But if there is such a right, that right is pretty small since, spread over two years, they could have accepted the whole amount and actually used it.

[01:05:35] Speaker 09:
Is that right?

[01:05:36] Speaker 05:
It is right as a matter of fact because we know what their expenses actually were for those years and so in 2015 and 2016 they had enough expenses to actually spend all the money and they could have accepted it.

[01:05:48] Speaker 05:
If the sole issue is the right to receive then they could have received all the money right away.

[01:05:55] Speaker 05:
And in addition to that, based on what we know about their actual spending and the absence of having done that, they would have spent it.

[01:06:01] Speaker 05:
They could have defrayed their general spending with that money.

[01:06:04] Speaker 05:
And so that's both why they're not injured on our argument and more to the point, more to Your Honor's point, that's why the

[01:06:12] Speaker 05:
to the extent there is any right to receive in the absence of donor rights, it's only at most a marginal inconvenience.

[01:06:21] Speaker 04:
Do you think that right to receive part of it, if you isolate it that way and you only talk about the right to receive on the part of the party, is that subject to closely drawn scrutiny or is it even lesser than that?

[01:06:31] Speaker 05:
I think we'd argue it's possibly less than that because all of the other cases that analyze contribution limits arise in a situation where there is a living donor seeking to exercise speech and associational rights.

[01:06:48] Speaker 05:
No one contests that the LNC has speech and associational rights.

[01:06:53] Speaker 05:
The only question here is how those rights apply when the donor has passed and therefore isn't associating with the party anymore.

[01:07:00] Speaker 05:
Under those circumstances, it's certainly less of an imposition on the parties' rights to apply a contribution limit to one particular contribution from a deceased donor.

[01:07:17] Speaker 10:
Back on the deceased donor.

[01:07:19] Speaker 10:
So what is the fear of corruption in a bequest that's not coordinated?

[01:07:24] Speaker 10:
The findings of facts here was that this bequest was not coordinated.

[01:07:27] Speaker 10:
Am I right?

[01:07:28] Speaker 05:
Well, the district court also found that the LNC did solicit bequests generally, although it's not clear that it went to this particular donor.

[01:07:35] Speaker 05:
But it also, the LNC did solicit contributions from this donor.

[01:07:41] Speaker 05:
However, generally, yes, there was no

[01:07:47] Speaker 05:
specific allegation or evidence that this particular donation was part of a quid pro quo.

[01:07:52] Speaker 10:
So if one has a bequest that's not coordinated at all, use a hypothetical then, what is the corruption fear in that?

[01:08:01] Speaker 05:
Well, I think it goes to the broader appearance of corruption standard that the Supreme Court has applied.

[01:08:06] Speaker 10:
So for the living, if there's no... I'm not talking about the living.

[01:08:10] Speaker 10:
I'm talking about a bequest that's not coordinated.

[01:08:13] Speaker 10:
The person has died.

[01:08:14] Speaker 10:
The money has now been given.

[01:08:15] Speaker 10:
It's perhaps a surprise to the party.

[01:08:19] Speaker 10:
What's the anti-corruption value in limiting that?

[01:08:25] Speaker 05:
Because there are examples in the record of people who gave money and either sought recognition for that or sought to be part of a quid pro, sorry, excuse me.

[01:08:39] Speaker 05:
Either them or the estate representatives who were representing the estate afterward tried to influence the party with that money.

[01:08:46] Speaker 05:
And so there remains a risk of corruption.

[01:08:48] Speaker 05:
Even the LNC doesn't contest that there is a risk of corruption with respect

[01:08:52] Speaker 10:
to bequests and that's basically what... I'm not talking about bequest in general, I'm talking about a specific type of bequest, bequest that's not coordinated.

[01:09:01] Speaker 05:
I think the lack of coordination at the outset doesn't preclude the bequest from being part of a quid pro quo corruption scheme involving close family members or estate representatives.

[01:09:15] Speaker 05:
And it also doesn't eliminate the appearance of corruption from large bequests to the party, depending on the circumstances of a particular bequest.

[01:09:24] Speaker 05:
But since we're under intermediate scrutiny here, the general application of

[01:09:32] Speaker 05:
the contribution limits to bequests is sufficient to meet that scrutiny.

[01:09:37] Speaker 05:
It does not, the mere fact that certain particular bequests might not implicate an actual corruption interest

[01:09:48] Speaker 05:
doesn't invalidate the law.

[01:09:50] Speaker 05:
It doesn't make the law overbroad.

[01:09:52] Speaker 05:
And that's essentially what the court decided in Buckley, both in its over-breath discussion and in its discussion that even though there might be some kinds of contributions that raise somewhat less of a risk of corruption, the example in that case was contributions from immediate family members, even though those might be thought to be less potentially corrupting,

[01:10:14] Speaker 05:
they were not so uncorrupting that in the generic sense that they should be excluded from the contribution limits and that's essentially our argument here.

[01:10:24] Speaker 03:
The statutory scheme does not allow anonymous campaign contributions or contributions to parties, right?

[01:10:35] Speaker 03:
Yes.

[01:10:36] Speaker 03:
Has that ever been

[01:10:38] Speaker 03:
challenged what to what the court say about that or have they passed on that?

[01:10:43] Speaker 05:
The disclosure provisions of FECA have been upheld consistently.

[01:10:47] Speaker 05:
I think the most recent example is probably Citizens United eight to one decided that the disclosure provisions with respect to independent expenditures were sufficient, but also in McConnell the disclosure provisions were upheld.

[01:10:59] Speaker 03:
But a particular as-applied, I guess, challenge to someone who wishes to make an anonymous contribution.

[01:11:11] Speaker 03:
Has there been such a lawsuit?

[01:11:16] Speaker 05:
I believe the claim in Citizens United was an as-applied claim with respect to the disclosure.

[01:11:22] Speaker 05:
I believe so, yeah.

[01:11:23] Speaker 03:
So to the extent that

[01:11:31] Speaker 03:
There we're dealing with, well, I guess what I'm trying to get at here is Citizens United, we're dealing with an independent organization as opposed to a party.

[01:11:49] Speaker 03:
But how does that

[01:11:53] Speaker 03:
regime, or I guess what I'm getting at here, where we have contributions to a party where the court has traditionally upheld the rationale of Congress that these can be prophylactic and has fended off some as-applied challenges

[01:12:18] Speaker 03:
even where there hasn't really been evidence in the record of a danger of corruption for that specific contribution, if we were to, I guess, recognize this claim, this as-applied claim, how would that, what would that portend for the rationale of Citizens United or other cases having to do with just disclosure provisions in general?

[01:12:49] Speaker 05:
I refreshed my recollection about the history as applied challenges to disclosure provisions.

[01:12:55] Speaker 05:
And I reminded myself that the rule is that unless there is evidence of threats or reprisals directed that would result from the disclosure of the individual, that disclosure is generally constitutional, even with respect to minor parties.

[01:13:19] Speaker 05:
And so I think permitting as applied class of one challenges to an otherwise valid contribution limit would run afoul of every court that has decided an as applied challenge in this area.

[01:13:32] Speaker 05:
And I would specifically point to the Republican National Committee three-judge court case, which was affirmed by the Supreme Court, and the Louisiana Republican Party decision, which was affirmed by

[01:13:43] Speaker 05:
again, by the Supreme Court.

[01:13:45] Speaker 05:
And in both of those cases, a political party came to the court and swore declarations or provided evidence that their activity, the contributions they were going to receive, did not implicate the anti-corruption interest.

[01:14:01] Speaker 05:
And therefore, as a factual matter, it didn't raise those concerns.

[01:14:05] Speaker 05:
So they should be excluded from the general contribution limits.

[01:14:07] Speaker 05:
And both three judge courts rejected that by saying that these are prophylactic rules

[01:14:13] Speaker 05:
It's not just that your particular situation lacks, as a factual matter, a corruption concern.

[01:14:22] Speaker 05:
It's that Congress is regulating the risk of corruption, and it's a prophylactic rule to eliminate that risk or at least reduce it.

[01:14:30] Speaker 06:
Can you just tell me how the appearance of corruption is analyzed for purposes of answering these questions?

[01:14:39] Speaker 06:
Are we asking how would a reasonable person, a reasonable voter interpret the quests of raising an appearance of corruption?

[01:14:49] Speaker 05:
I think the appearance of corruption language is there to extend the prophylactic rule beyond

[01:14:58] Speaker 05:
bribery schemes or quid pro quo, actual quid pro quo corruption that can be proven.

[01:15:04] Speaker 05:
So it's meant to target the appearance of risk and yes, I think the minds of the reasonable voter and the system generally.

[01:15:13] Speaker 06:
And so what is the mind of the reasonable voters supposed to know?

[01:15:18] Speaker 06:
Are they supposed to know whether the bequestor was affiliated or unaffiliated or amounts?

[01:15:23] Speaker 06:
I just don't even know how this exercise.

[01:15:24] Speaker 06:
In cases, they just talk about the risk of large donations and say nothing more.

[01:15:29] Speaker 06:
And in trying to deal with this, I wasn't even sure how we as a court are supposed to analyze looking at bequests.

[01:15:37] Speaker 06:
Do they implicate that risk of an appearance of corruption?

[01:15:42] Speaker 05:
I think that's exactly why courts have extended a measure of deference to Congress in setting some of these rules and setting the level at which the dollar limit is set.

[01:15:53] Speaker 05:
And by permitting Congress a little more leniency with respect to contribution limits because they're prophylactic rules, once it is determined that the

[01:16:09] Speaker 05:
the contribution has the ability to be corrupt or appear corrupt, then that is sufficient for Congress to set a limit on those contributions.

[01:16:19] Speaker 05:
And I think that applies just as much to Bequest as it would to others, to other forms of contributions, as McConnell determined that all contributions to national parties can create the appearance of corruption.

[01:16:32] Speaker 03:
How far does this go?

[01:16:36] Speaker 03:
Let's suppose.

[01:16:37] Speaker 03:
that the facts were that the donor had never given any money to any party ever in his or her life.

[01:16:50] Speaker 03:
And in their will, they gave a million dollars to the Libertarian Party.

[01:16:56] Speaker 03:
And those were the facts.

[01:17:00] Speaker 05:
I think, again, that's the general application of the idea that the quests can corrupt and create the appearance of corruption, which the LNC concedes is sufficient to justify applying limits to all the quests.

[01:17:15] Speaker 07:
Is there, Mr. Styler, any as applied challenge to a contribution limit that you think could succeed?

[01:17:20] Speaker 05:
Yes.

[01:17:20] Speaker 05:
And in fact, this court held in speech now that contributions to groups that make only independent expenditures could not be limited.

[01:17:29] Speaker 05:
That was a challenge as applied to those types of group, to contributions to those types of groups.

[01:17:34] Speaker 05:
And the reason for that was, as a legal matter, the Supreme Court had held in Citizens United that independent expenditures could not corrupt as a matter of law or create the appearance of corruption.

[01:17:45] Speaker 07:
So as a categorical as applied.

[01:17:47] Speaker 05:
Yes.

[01:17:48] Speaker 05:
And the courts have always taken a categorical approach to these issues, as the court did in the Republican National Committee case.

[01:17:56] Speaker 10:
And I still don't understand why there's not a category of bequests that are not coordinated.

[01:18:02] Speaker 10:
If you have a case where there's a bequest made, no evidence of coordination, why doesn't that fall within the same categorical analysis?

[01:18:09] Speaker 05:
Because it would still require individualized proof about the relationship between the donor and the recipient.

[01:18:14] Speaker 07:
Well, and that's also not the claim that was raised in this case.

[01:18:17] Speaker 05:
Correct.

[01:18:19] Speaker 05:
The LNC has limited its claim to this particular quest, regardless of whether it is similar to other types of the quest.

[01:18:25] Speaker 05:
It's a class of one claim they're really asserting here.

[01:18:29] Speaker 05:
But in addition to that, that kind of analysis about whether the particular facts of the quest would require individualized proof as to whether or not

[01:18:38] Speaker 05:
that request was sufficiently uncoordinated, how much the individual had donated in the past and what the relationships were require a searching inquiry into that contribution which as a prophylactic rule the general contribution limits avoid.

[01:18:56] Speaker 03:
So I guess I'm confused as to what you mean by that because are you saying then that with respect to a contribution

[01:19:09] Speaker 03:
to a party, to a national party, there can be no successful as applied challenge when it's made by bequest.

[01:19:27] Speaker 05:
Regardless of the circumstances,

[01:19:30] Speaker 05:
I think that's right, if I understand your honor's question.

[01:19:34] Speaker 05:
And that's because all contributions to those parties can create the appearance of corruption, as the McConnell court held, and because under intermediate scrutiny as a prophylactic rule, these kinds of issues are not subject to individualized proof.

[01:19:56] Speaker 05:
You know, as the Supreme Court said in Citizens United again, these prophylactic rules have been upheld despite the fact that many, if not all, few, if any, contributions subject to these limits are going to be part of the quid pro quo corruption scheme.

[01:20:11] Speaker 05:
It's enough that they can

[01:20:13] Speaker 05:
be part of a corruption scheme or appear to be, that is sufficient to justify limiting those kinds of contributions.

[01:20:20] Speaker 05:
And I think that same analysis would apply to bequests.

[01:20:23] Speaker 02:
How do you handle McConnell, which facially upheld contribution limits and then expressly invited as applied challenges by the nascent party, which might have trouble under those limits?

[01:20:40] Speaker 05:
The as applied challenge contemplated in McConnell was, as your honor says,

[01:20:46] Speaker 05:
if a minor or a newly formed party were struggling to raise resources.

[01:20:50] Speaker 05:
But that's not the case here and it's not their claim.

[01:20:54] Speaker 02:
So yes, if it could be shown... A different challenge, but it just proves the point that upholding the general rule doesn't foreclose arguments about narrower subcategories or individual cases where the interests are different and your interests aren't implicated.

[01:21:12] Speaker 05:
I think that's right, but again, it's a categorical basis, or it's the same as applied challenge that the court has been suggesting since Buckley, where if the limits are set at such a level that political groups or parties can't amass sufficient resources, that that becomes a severe imposition on their ability to raise money to speak.

[01:21:34] Speaker 05:
but that's not the issue here and I don't think you can extend that kind of an analysis to a contribution limit that is otherwise valid.

[01:21:43] Speaker 02:
That's a case that's distinctive because the speech interest is higher.

[01:21:49] Speaker 02:
This is a case that may be distinctive because the government interest is lower.

[01:21:56] Speaker 05:
Perhaps, but so are the first amendment rights at issue with respect to the request because the donor is deceased and the LNC is only asserting its own speech rights.

[01:22:11] Speaker 05:
So I think that cuts both ways with respect to this case.

[01:22:16] Speaker 05:
I do want to spend a minute talking about the- We're out of time unless other judges have questions.

[01:22:24] Speaker 09:
Thank you.

[01:22:26] Speaker 09:
And I know you're out of time, but I promise you some more time, so I'll give you another two minutes, OK?

[01:22:30] Speaker 11:
Thank you very much, Your Honor.

[01:22:33] Speaker 11:
Thank you, Your Honor.

[01:22:34] Speaker 11:
The only category in speech now that's relevant was the no corruption category, speech now.

[01:22:41] Speaker 11:
said that something beats nothing.

[01:22:43] Speaker 11:
And that's a proper distinction upon which to decide the Schaber bequest.

[01:22:46] Speaker 11:
You have something here, an interest in this bequest.

[01:22:49] Speaker 11:
You have nothing in terms of a retrospective look at Mr. Schaber's life and his nonexistent relationship with his party.

[01:22:55] Speaker 11:
At least there's no quid pro quo relationship here.

[01:23:00] Speaker 11:
There's nothing more that can be done.

[01:23:03] Speaker 11:
For a person, once he or she has passed, there's nothing more that that person can do, as far as we know, from the grave to help or hurt the political party.

[01:23:14] Speaker 11:
So yes, the debt are different than the living, and I don't believe that any court or congress... Just so I'm clear, I thought you would agree to give up at least part of this argument.

[01:23:25] Speaker 09:
So this is only as applied to... That's right.

[01:23:27] Speaker 11:
It is an as-applied challenge, but setting the context here,

[01:23:30] Speaker 11:
We do see a very different universe of concerns that simply were never considered by the Congress or by other courts that have dealt with this area in the past.

[01:23:38] Speaker 11:
I think this is the first time a court has thought about this type of situation.

[01:23:42] Speaker 11:
And I don't think Congress has thought about it at all.

[01:23:46] Speaker 11:
Finally, I would only stress that, of course, however the court decides, the Schaber request issue, the injury is distinct from that brought in the facial challenge, which covers not just the Schaber dispute, but donations generally.

[01:23:59] Speaker 11:
The record does show that the speech restrictions here, and these are content-based restrictions that the FPC has yet to offer any rational explanation for, do impact the party generally and donors generally.

[01:24:12] Speaker 11:
Those content-based restrictions cannot be deferred to.

[01:24:15] Speaker 11:
They have to be subject to heightened scrutiny.

[01:24:17] Speaker 11:
And I submit that the government has failed to meet its heightened scrutiny burden.

[01:24:21] Speaker 11:
Thank you so much, Your Honors.

[01:24:22] Speaker 11:
Thank you, Mr. Girard.

[01:24:23] Speaker 09:
We'll take a matter under submission.

[01:32:42] Speaker ?:
PFFT