[00:00:00] Speaker 02: Case number 21-5081, Campaign Legal Center and Katherine Hinckley Kelley, Appellants versus Federal Election Commission et al. [00:00:09] Speaker 02: Ms. [00:00:09] Speaker 02: Malloy for the Appellants, Ms. [00:00:10] Speaker 02: Branch for the Appellees. [00:00:15] Speaker 04: Morning, Council. [00:00:17] Speaker 04: Good morning. [00:00:18] Speaker 04: Council for Appellant, you may proceed. [00:00:20] Speaker 03: Thank you. [00:00:20] Speaker 03: Good morning, Your Honors, and may it please support. [00:00:22] Speaker 03: My name is Tara Malloy for Plaintiffs' Appellants Campaign Legal Center or CLC and Ms. [00:00:28] Speaker 03: Hinckley Kelley. [00:00:29] Speaker 03: Thank you. [00:00:30] Speaker 03: The key issue on appeal is whether plaintiffs have been deprived of statutorily required information about potentially millions of dollars of contributions made by the Super PAC Correct the Record to the 2016 presidential campaign of Hillary Clinton, such that plaintiffs have suffered informational injury. [00:00:47] Speaker 03: The answer is yes. [00:00:48] Speaker 03: Neither Correct the Record nor the Clinton campaign reported a single in-kind contribution arising from this alleged coordinated spending. [00:00:55] Speaker 03: even though the Federal Election Campaign Act, or FICA, clearly requires this disclosure. [00:01:00] Speaker 03: Without this information, plaintiffs are in the dark about even how much money the Clinton campaign received and spent in the election. [00:01:09] Speaker 00: Let me ask you a question which will help me to understand how you're focusing your argument. [00:01:16] Speaker 00: You have Wertheimer on the books, and my understanding of your argument is that in Wertheimer, [00:01:26] Speaker 00: the coordinated in-kind expenses were disaggregated. [00:01:31] Speaker 00: And the only question there was whether those expenses, which were disaggregated and shown, had to be shown by another group. [00:01:41] Speaker 00: I don't remember which, but in any event, they were already disclosed and the court simply said they don't have to be disclosed again. [00:01:48] Speaker 00: Is that your argument? [00:01:49] Speaker 00: There was disaggregation already? [00:01:51] Speaker 03: That's correct. [00:01:54] Speaker 03: This court in Wertheimer found that the political parties at issue already were required to report their coordinated expenditures as so-called Section 441 A.D. [00:02:04] Speaker 03: coordinated expenditures. [00:02:06] Speaker 03: So as a matter of law, these coordinated expenditures were disclosed. [00:02:10] Speaker 00: And at this point... So you had a disaggregation between exempt and non-exempt expenditures. [00:02:15] Speaker 03: Right, between coordinated and non-coordinated expenditures. [00:02:17] Speaker 03: Exactly. [00:02:17] Speaker 03: This was already required by law from the parties at issue. [00:02:20] Speaker 03: And what the plaintiffs, the Wertheimer plaintiffs, were looking for was a reciprocal complementary report from the candidate that benefited from those coordinated expenditures. [00:02:30] Speaker 03: This was a duplication. [00:02:32] Speaker 00: I understand. [00:02:32] Speaker 00: I just want to make sure what your premise was, how you're reading Wertheimer. [00:02:37] Speaker 00: And that's what I thought you were saying. [00:02:39] Speaker 00: You were saying you can't possibly see that as relevant here. [00:02:43] Speaker 00: because there isn't any disaggregation here. [00:02:47] Speaker 00: And so it's not a matter of duplicate exposure here. [00:02:51] Speaker 00: There's no exposure is what your argument is. [00:02:53] Speaker 00: Is that right? [00:02:54] Speaker 03: Absolutely. [00:02:54] Speaker 03: And Wertheimer would only be on all fours with this case. [00:02:57] Speaker 03: But in fact, correct the record, had reported all the in-kind contributions we allege occurred. [00:03:02] Speaker 03: And then we asked, well, we want the Clinton campaign. [00:03:04] Speaker 00: Right, exactly. [00:03:05] Speaker 03: To also report the same expenditures in their own reports. [00:03:08] Speaker 00: All right, I understand your argument. [00:03:11] Speaker 03: Correct. [00:03:11] Speaker 03: And to your questions about what was or was not in Correct the Records reports, these are the reports that actually did file the 2016 election cycle. [00:03:22] Speaker 03: These are the reports that purported only to disclose the entirely independent spending by a hybrid super PAC. [00:03:28] Speaker 03: These don't really supply any of the information that plaintiffs are seeking. [00:03:31] Speaker 03: In fact, Crack the Record contends throughout this litigation that it made no coordinated expenditures within the mean of FICA, that any disbursement it made in concert, let's say, with the campaign qualified for the internet exemption, and this was the carve-out the FEC created from its coordination rules for certain types of unpaid internet communications. [00:03:53] Speaker 03: But the plaintiffs contend, and the FEC's own general counsel agreed, that there was reason to believe that Correct the Record, in fact, made millions of dollars of coordinated expenditures that were not for exempt internet communications at all. [00:04:06] Speaker 00: Well, that's the fight. [00:04:08] Speaker 03: That's one of the fights, yes. [00:04:09] Speaker 00: That's one of the fights. [00:04:10] Speaker 00: I mean, and the fact that there is a legal query here, it seems to me, of no moment, because as in Aiken's and as in Shea's, the court, obviously, there's a legal question [00:04:22] Speaker 00: that's going to be answered, but I want to make sure I'm understanding. [00:04:26] Speaker 00: You're saying that in your view, they are listing things as exempt that are not really exempt. [00:04:34] Speaker 00: Correct. [00:04:35] Speaker 00: And there are consequences for doing it that way because there are penalties that might flow if you put things in the right category. [00:04:42] Speaker 00: So it's not, you're saying their argument that all you do is shift the columns is wrong. [00:04:48] Speaker 00: because as a consequence as to whether or not you're in the exempt or non-exempt category and whether you've done it correctly. [00:04:54] Speaker 03: Absolutely, you can't just shift information from one column to another, because the information as it stands right now is incorrect. [00:05:02] Speaker 03: It is not an accurate portrayal of what plaintiffs believe, under our reading, the law occurred in terms of correct record spending. [00:05:09] Speaker 03: Correct the record, as the FEC's general counsel found, tended to report all of its expenditures as undifferentiated disbursements for general overhead. [00:05:18] Speaker 03: things like salary, rent, travel, it made no distinction between those disbursements that supported exempt internet communications and those disbursements that supported non-exempt, non-internet purposes. [00:05:33] Speaker 03: And in fact, some of these disbursements were probably needed to be allocated between exempt and non-exempt purposes. [00:05:39] Speaker 03: Then there's a whole other category of spending, spending that even intervenors don't contend were connected to the internet. [00:05:46] Speaker 03: This is things like campaign surrogate training or outreach to the conventional offline press. [00:05:51] Speaker 03: Here, as talked about the second fight, there is some question about which of these specific expenditures were coordinated within the mean of FICA with the campaign. [00:05:59] Speaker 03: That means it has to be in consultation concert at the request of suggestion of the campaign. [00:06:04] Speaker 03: There, there is a fight about which of these offline expenditures were indeed coordinated with the campaign. [00:06:11] Speaker 03: So we don't have information from corrective records current reports, but either of these possible [00:06:16] Speaker 03: sources of in-kind contributions from Correct the Record to the Clinton campaign. [00:06:21] Speaker 03: We just have reason to believe, and the FTC's general counsel agreed that there are possibly millions of dollars of contributions that went unaccounted for. [00:06:27] Speaker 01: Ms. [00:06:30] Speaker 01: Malloy, assume for the sake of argument that I take your factual premise to be correct, that Correct the Record and the Hillary for America campaign violated [00:06:47] Speaker 01: any number of campaign finance laws. [00:06:52] Speaker 01: How does that hurt your client in a way that distinguishes your client from every other voter? [00:07:03] Speaker 03: Correct. [00:07:04] Speaker 03: If I understand you correctly, you're asking whether the injury here was sufficiently individualized to confer sent. [00:07:10] Speaker 03: Correct. [00:07:11] Speaker 03: Yes. [00:07:12] Speaker 03: Right. [00:07:12] Speaker 03: And this specific issue was taken up by the Supreme Court in FECB Akins. [00:07:17] Speaker 03: There, the plaintiffs again said, we don't have disclosure about APAC's spending. [00:07:23] Speaker 03: They didn't register as a political committee. [00:07:25] Speaker 03: One of the arguments made by the FEC said that, look, as a complainant here, you are on the same level with all the other public voters. [00:07:34] Speaker 03: What makes it individualized? [00:07:35] Speaker 03: And there, the court found that the injury was still sufficiently concrete and particularized because there was information lacking. [00:07:42] Speaker 03: It wasn't an abstract concern about well-being. [00:07:44] Speaker 03: Instead, the complainants there [00:07:46] Speaker 03: had suffered information injury because they didn't have speaker-required information. [00:07:50] Speaker 03: So that was sort of asked and answered in Akins that here, the lack of information is sufficiently concrete that they complain. [00:07:56] Speaker 03: And each member of the public really has that injury. [00:08:00] Speaker 01: I'll ask Ms. [00:08:05] Speaker 01: Branch if she has a way to distinguish this case from Akins. [00:08:10] Speaker 01: Imagine that she has a way to distinguish it that convinces me that Akins does not control. [00:08:17] Speaker 01: How can give me another way that you can win? [00:08:20] Speaker 03: Another way we can win, yes. [00:08:22] Speaker 01: Another way that you can stand that is sufficiently individualized. [00:08:26] Speaker 03: That it's officially individualized because the informational deprivation is concrete. [00:08:32] Speaker 03: The Akins Court also noted, and I think this was actually the DC Circuit in the preceding decision, [00:08:38] Speaker 03: that the actual complainants here were different from the public in that they'd actually already undertaken the entire FEC enforcement process. [00:08:46] Speaker 03: They were the ones that filed the complaint. [00:08:48] Speaker 03: They were the ones that alleged disclosure violation. [00:08:51] Speaker 03: They were the ones that invoked the judicial review provision under FECA to get a review of the dismissal of the complaint. [00:08:58] Speaker 03: So they were separate from the rest of the public in the sense that they had undertaken this FEC enforcement proceeding. [00:09:06] Speaker 05: Further, [00:09:07] Speaker 05: That's not enough to create your standing. [00:09:13] Speaker 03: The test applied by this circuit is one, whether a statute requires information to be publicly disclosed on the plaintiff's reading of the statute, and two, whether the information is of use to the plaintiffs. [00:09:27] Speaker 03: That's what this test is. [00:09:29] Speaker 05: Of use to the plaintiffs has been more than what any voter might be interested in knowing. [00:09:38] Speaker 05: The cases have been where there's a mission, there's a obligation above and beyond. [00:09:46] Speaker 03: That's right. [00:09:48] Speaker 05: And they you gather information and, you know, share it as you decide. [00:09:56] Speaker 03: Right, and that was sort of the second half of the informational injury inquiry. [00:10:00] Speaker 03: It was just less disputed. [00:10:02] Speaker 03: But CLC submitted an affidavit from one of its federal reform directors articulating and enumerating all the different ways that CLC as a campaign finance and democracy organization use, say, super PAC reporting to inform the public, to inform voters of the spending and the nature of their roles in elections. [00:10:23] Speaker 03: Further, Ms. [00:10:24] Speaker 03: Hilton-Pelley submitted her own affidavit [00:10:26] Speaker 03: discussing how she uses the specific information in this case to evaluate candidates and engage in the political process. [00:10:30] Speaker 03: So absolutely, that was another prong that we showed the affidavit submitted below. [00:10:35] Speaker 00: I mean, you're relying on Aikens and Shays, and Shays is a very strong follow-up to Aikens saying essentially, I think essentially the same thing, that you suffer an injury in fact, if there's an inability to obtain information, and in AIPAC it was the list of AIPC donors, that's all. [00:10:55] Speaker 00: and campaign related contributions and expenditures that on the plaintiff's view of the law, the statute require it be made public. [00:11:04] Speaker 00: And the injury in fact, there is an injury in fact when the plaintiff fails to obtain the information which must be publicly disclosed to the statute. [00:11:13] Speaker 00: It's the information injury, it's different. [00:11:15] Speaker 00: The generalized grievance cases, my colleagues are alluding to, I think raise different issues [00:11:24] Speaker 00: than the information injury cases. [00:11:27] Speaker 00: And there is the additional problem with Wertheimer. [00:11:29] Speaker 00: Wertheimer is simply not on point because the information there was the same kind of information that's being fought over here, but it was disaggregated. [00:11:37] Speaker 00: So the information the plaintiffs wanted there was shown. [00:11:41] Speaker 00: It's not shown here. [00:11:42] Speaker 00: Wertheimer is really about, you already have it. [00:11:44] Speaker 00: We're not going to let you get it again. [00:11:46] Speaker 00: So that case to me seemed irrelevant. [00:11:48] Speaker 00: And I don't know how you get past and I'll be interested to hear the other side's arguments. [00:11:52] Speaker 00: I don't know how you get past Akins and Shays. [00:11:55] Speaker 00: They are very strong statements about informational injury supporting standing. [00:12:01] Speaker 00: You're great. [00:12:05] Speaker 00: I suspect you did. [00:12:07] Speaker 00: You had said, I don't agree. [00:12:10] Speaker 03: If there's nothing further, I can just reserve any time for rebuttal. [00:12:14] Speaker 04: All right. [00:12:16] Speaker 04: So. [00:12:22] Speaker 04: Council for Appellees. [00:12:25] Speaker 06: Good afternoon, Your Honors. [00:12:26] Speaker 06: Aria Branch on behalf of Appellees Correct the Record and Hillary for America. [00:12:32] Speaker 06: I want to start with where the discussion left off with the discussion of Wertheimer, which I do think is controlling in this case. [00:12:42] Speaker 06: The difference between this case and the Aikens case that's been referenced is that here, as in Wertheimer, the full facts are known. [00:12:51] Speaker 00: they're not counsel. [00:12:53] Speaker 00: I really want you to understand and respond to my concern. [00:12:55] Speaker 00: I spent a lot of trying to sort this out. [00:12:58] Speaker 00: The information they want, disaggregation, to be able to determine exempt versus non-exempt, and something that a group like theirs would surely be interested in, was exposed in Wertheimen. [00:13:13] Speaker 00: It is not exposed here. [00:13:14] Speaker 00: It is not merely the same information, a duplicate of the same information. [00:13:19] Speaker 00: It's a different array of information and it has consequences depending what their ratio. [00:13:24] Speaker 00: There's a big fight going on here and that was shown in the agency proceedings over what should and should not be exempt. [00:13:32] Speaker 00: It's a huge fight and that's what's motivating this litigation. [00:13:36] Speaker 00: They want the disaggregation to be able to suggest that when you disaggregate and you see what they're calling stuff that is [00:13:44] Speaker 00: is fit for the internet exemption, it's nonsense. [00:13:50] Speaker 00: And their view of the law is what we have to accept to determine, you don't dispute that, right? [00:13:55] Speaker 00: It's their view of the law. [00:13:57] Speaker 06: And the fact is- Don't dispute that at all, Your Honor. [00:13:59] Speaker 06: Okay. [00:14:00] Speaker 06: I don't dispute that at all. [00:14:01] Speaker 06: And I'd like to focus then on what exactly their view of the internet exemption is here, because I think that's really, really important. [00:14:10] Speaker 06: Council said previously that there are certain expenditures like salary, rent, and other overhead expenses that they want to be allocated between exempt and non-exempt based on whether they fall within the internet exemption or not. [00:14:25] Speaker 06: That simply is not consistent with their view of the law on the merits. [00:14:29] Speaker 06: This is a manufactured argument that they've created to create standing. [00:14:34] Speaker 06: on the merits, their argument is that no overhead expenses, whether it's for salary, rent, et cetera, would fall within the internet exemption. [00:14:45] Speaker 06: They would always be coordinated. [00:14:47] Speaker 06: Their argument, is that correct? [00:14:50] Speaker 00: I want to stay with you and raise my concerns. [00:14:55] Speaker 00: You make that argument in the brief. [00:14:57] Speaker 00: And I understand the argument you make and respectfully, I think you're overstating their position because they have a long argument on mixed expenses on categories where there may be and and I understood what they were arguing. [00:15:11] Speaker 00: I certainly never took them to say that everything in the disputed list. [00:15:16] Speaker 00: is in this category that is being fought over, this exempt category or non-exempt category. [00:15:23] Speaker 00: I don't read them that way. [00:15:24] Speaker 00: I think they give a couple of examples, that salary, for example, where it might be partially exempt, it might be exempt, it might not be exempt. [00:15:35] Speaker 00: And they said they do not mean to say that all of these disputed expenses should be characterized one way. [00:15:42] Speaker 00: That seems very clear to me in their argument. [00:15:45] Speaker 06: I'd like to point you, Your Honor, in response to that question to some of the statements they've made in their briefing, which I think directly contradict that position that they take on standing. [00:15:58] Speaker 06: In their opposition to our motion to dismiss in the district court, they said, quote, disbursements for staff salaries amounted to compensation for personal services rendered to the campaign. [00:16:10] Speaker 06: and were therefore in-kind contributions, whether or not the ultimate activity qualified as a public communication. [00:16:21] Speaker 06: The same goes for what can be a legal center. [00:16:25] Speaker 00: I'm not sure what that is showing. [00:16:28] Speaker 00: There are a couple of questions, coordinated expenses, and that's by definition. [00:16:35] Speaker 00: And then within that category, there's exempt and non-exempt with reference to the internet. [00:16:41] Speaker 00: So a coordinated expense has to be found to be a coordinated expense. [00:16:47] Speaker 00: And they're saying, yes, they're saying a lot of these things are just coordinated expenses. [00:16:51] Speaker 00: And then in addition, some are being taken as exempt when they should not have been taken as exempt. [00:16:58] Speaker 00: So I don't see their position as inconsistent. [00:17:01] Speaker 06: Respectfully, I think their argument is that none of the expenses for overhead, for salary, rent, etc. [00:17:10] Speaker 06: fall within the internet exemption. [00:17:13] Speaker 06: They say, correct the record acted in full coordination with the Hillary Clinton campaign. [00:17:20] Speaker 06: and that only expenditures related directly and exclusively for internet communications would fall within the exemption. [00:17:30] Speaker 00: That is certainly their argument with respect to the internet exemption. [00:17:33] Speaker 00: That's right. [00:17:34] Speaker 00: But I'm not sure how that's damning. [00:17:38] Speaker 06: The reason that's damning is because all of Correct the Records expenditures that are directly and exclusively related to [00:17:46] Speaker 06: unpaid internet activity is already apparent on the face of their reports. [00:17:53] Speaker 00: But you ignored the references that I'm giving you. [00:17:57] Speaker 00: I didn't give you the page numbers. [00:17:58] Speaker 00: They could fill in wherever they want. [00:18:00] Speaker 00: They're saying there are mixed expenses in the categories that we're talking. [00:18:05] Speaker 00: They make it very clear they can be mixed expenses. [00:18:08] Speaker 00: They are not saying this whole list is the same and everything in it [00:18:13] Speaker 00: should be, they're characterizing as exempt. [00:18:16] Speaker 00: That is not the way I read their brief. [00:18:19] Speaker 06: So I think respectfully, Your Honor, the mixed purpose expenses such as for video consulting and travel, communication consulting and travel, those are two examples that they give in their briefing. [00:18:31] Speaker 06: Those types of expenses are paid overhead expenses that they say would never fall within the internet exemption. [00:18:40] Speaker 06: So they would never need to be disaggregated under their view of the law, which as you said, is what controls under ACAS. [00:18:48] Speaker 06: The correct the records expenditures that would fall within the internet exemption according to their theory are already apparent on the face of the report. [00:18:58] Speaker 00: Not if you have mixed, you agree with me, not if they're really, if I'm right in reading their complaint, not if they are saying there are mixed expenses and we do not mean to characterize them all the same way. [00:19:08] Speaker 00: If that's correct, [00:19:10] Speaker 00: then my concern about your position is correct, right? [00:19:14] Speaker 00: Because that information was disaggregated in wartime. [00:19:17] Speaker 00: It's not disaggregated here. [00:19:20] Speaker 06: I think even if that were the case, as the district court's opinion points out, that ultimately wouldn't matter. [00:19:25] Speaker 06: I think the classification of a certain portion of an expenditure as an in-kind contribution is still a legal determination. [00:19:34] Speaker 00: I wanted to get to this. [00:19:36] Speaker 00: So what? [00:19:38] Speaker 00: Aiken starts with saying there's a legal determination we're making. [00:19:43] Speaker 00: This political committee is or is not a political committee. [00:19:46] Speaker 00: You got to have a legal determination in there. [00:19:48] Speaker 00: That doesn't dispose of the case. [00:19:51] Speaker 00: What's really going on in Wertheimer is the court is loose language, but the court is fundamentally saying the materials disaggregated have already been exposed. [00:20:03] Speaker 00: the plaintiffs and they just want them exposed by someone else and we're not going to indulge that. [00:20:09] Speaker 00: There's no injury. [00:20:10] Speaker 00: They already have what they want. [00:20:11] Speaker 00: You don't have disaggregation here and you can't say merely because this fight involves a legal question. [00:20:18] Speaker 00: APEC involved, the Akins involved a legal question as did Shays. [00:20:24] Speaker 06: All of the cases involve a legal question, but the difference between APAC and this case, Your Honor, is that in APAC, there were actually facts that were hidden and that weren't disclosed, right? [00:20:39] Speaker 06: There was an entity that wasn't publicly reporting. [00:20:43] Speaker 06: Here, correct the record. [00:20:47] Speaker 00: You can't characterize this as a non-political committee. [00:20:51] Speaker 00: And why does that matter? [00:20:53] Speaker 00: Well, if you view them as a political committee, we get to see who the donors are and how much they donated. [00:21:00] Speaker 00: Well, that's the information they don't have now. [00:21:03] Speaker 00: And so in this case, they're saying, if you don't disaggregate, we have no idea what your claims are honestly made with respect to exempt and non-exempt and in-kind reporting requirements. [00:21:16] Speaker 00: And those were a matter of law. [00:21:21] Speaker 06: I think that this is a convenient kind of argument that they've manufactured to create standing I think allowing allowing the appellants to turn one fact which is not knowing how much of a particular expense is coordinated into the magic fact that would always prove an informational injury. [00:21:42] Speaker 06: would mean that any plaintiff could prove an informational injury. [00:21:45] Speaker 06: Any plaintiff could come to court and say, I want to know whether $100 over particular expense was coordinated or $1,000. [00:21:57] Speaker 00: I think so, Your Honor, because in Akins... Other people can make the same complaint and so nobody can? [00:22:05] Speaker 00: That wouldn't have prevailed in Akins. [00:22:08] Speaker 00: Supreme Court wouldn't have bought that. [00:22:09] Speaker 00: We wouldn't have bought that in Shays. [00:22:12] Speaker 06: I think in those cases, it's just very different because you had an entity that was not already reporting its expenditures. [00:22:20] Speaker 06: Here, Campaign Legal Center knows the amount, the date, the recipient, and the purpose of every expenditure made by correct the record. [00:22:30] Speaker 00: The problem is the agency's law and the statute say that they have to [00:22:36] Speaker 00: they have to report coordinated in kind, and they have to expose exempt, non-exempt figures. [00:22:44] Speaker 00: The statute and the law require that. [00:22:46] Speaker 00: They have to do that. [00:22:48] Speaker 06: That's right. [00:22:48] Speaker 06: But those determinations are legal determinations, right? [00:22:53] Speaker 00: They are not factual determinations. [00:22:55] Speaker 00: It's the same thing in Aiken's. [00:22:56] Speaker 00: It's a legal determination whether you're a political committee. [00:23:00] Speaker 00: Those political committees are saying we're not a political committee, so we don't have to submit this information. [00:23:06] Speaker 00: Supreme Court said that's nonsense. [00:23:08] Speaker 00: Their view of the law is what controls, and if they're correct in the view of the law, then you're covered and you have to expose the information. [00:23:17] Speaker 06: I think the distinction here is that appellants view of the law is that the Internet exemption is extremely narrow and that the expenses that would be exempt under the Internet exemption are already clear on the face of correct records reports. [00:23:33] Speaker 06: If you go on the FEC's website, you can search [00:23:36] Speaker 06: for web hosting. [00:23:37] Speaker 06: You can search for graphic design. [00:23:40] Speaker 06: These are the types of expenditures that Campaign Legal Center says would not be coordinated. [00:23:49] Speaker 06: Everything else under their theory of this case would be coordinated. [00:23:53] Speaker 06: They say, and I quote, everything that Correct the Record does by its own admission is in full coordination with the Clinton campaign. [00:24:05] Speaker 06: Although, correct the record, claims it is relying on commission regulations, accepting certain internet activities from the definition of coordinated communications, those rules are simply irrelevant. [00:24:18] Speaker 00: If you disaggregate, you'd know the amounts of the coordinated contribution. [00:24:24] Speaker 00: Just like if you make a committee, a political committee, you would know who is contributing. [00:24:29] Speaker 06: Arguably, there's no need to disaggregate because according to their theory of the law, it's all coordinated. [00:24:35] Speaker 00: Well, yeah, no, that's where we disagree on what their argument is. [00:24:38] Speaker 00: But when they come back on rebuttal, listen to what they have to say. [00:24:46] Speaker 01: Ms. [00:24:46] Speaker 01: Branch, if I were writing an opinion finding for your side of this, finding that the plaintiff lacks standing, [00:24:59] Speaker 01: go through the analysis under case of controversy and I'd come to a paragraph where I say Akins does not control because and you've given me I think the the half sentence that would follow which is Akins does not control because they're [00:25:23] Speaker 01: there was no disclosure by an entity of its expenditures, and here there is. [00:25:29] Speaker 01: The next sentence needs to be, and that matters because, so can you fill in that blank for me? [00:25:38] Speaker 06: Sorry, Your Honor, thank you for your question. [00:25:40] Speaker 06: And that matters because the determination of [00:25:48] Speaker 06: or I'm sorry, the illegal determination is not sufficient to create an informational injury. [00:25:57] Speaker 06: And so here, all that would be [00:26:02] Speaker 06: disclosed if correct the record had to go back and amend its reports, as counsel has pointed out, would be a legal determination. [00:26:13] Speaker 06: You would be moving certain expenses from one line of correct the records reports to another line that shows or indicates that the expenditures were coordinated. [00:26:23] Speaker 06: And that type of legal determination under Worthheimer is simply not sufficient to support an informational injury. [00:26:32] Speaker 01: I understand your argument. [00:26:35] Speaker 00: The court in response to, I'm curious as to how you're reading it, because I went back and read that a lot of times. [00:26:40] Speaker 00: I think all the court in Wertheimer said is the precise information, the disaggregated information in Wertheimer, which is what we're fussing over here, has already been exposed. [00:26:54] Speaker 00: It's already been released. [00:26:56] Speaker 00: And all [00:26:57] Speaker 00: they're asking for, is it someone else released the same thing? [00:27:01] Speaker 00: And then the court goes on and states this language about, so all you'd end up with is a legal determination. [00:27:09] Speaker 00: As if that holding is weighty somehow. [00:27:13] Speaker 00: That is, if you end up with a legal determination that can't support informational injury, that really makes no sense whatsoever. [00:27:21] Speaker 00: because in Shays and Akins and all the other informational injury cases, illegal determination always is forthcoming. [00:27:30] Speaker 06: I think what the court has said is that where there's just a legal determination, that's not. [00:27:35] Speaker 00: Just a legal determination. [00:27:37] Speaker 00: Yes. [00:27:38] Speaker 06: Right. [00:27:38] Speaker 06: And that there have to be accompanying facts that would result as a result of. [00:27:44] Speaker 00: You say disaggregated information is not additional information. [00:27:47] Speaker 00: That's true. [00:27:48] Speaker 06: So I would point, Your Honor, to the Crew v. FEC case, which we've cited in our briefing and which Judge Boasberg relied on below. [00:27:56] Speaker 06: And the site for that is 799 F SUP 2nd. [00:28:01] Speaker 00: That's a district court case, right? [00:28:03] Speaker 06: It is a district court case. [00:28:05] Speaker 00: Respectfully, that's not going to carry weight with me. [00:28:08] Speaker 00: We're talking about a legal question here, and we're talking about which precedent applies. [00:28:13] Speaker 00: Sure. [00:28:13] Speaker 00: And I'm much interested in what, in all due respect, and what a district court judge says about that question. [00:28:19] Speaker 06: Understood. [00:28:20] Speaker 06: The only reason I was going to point it out is just because in that case, the court actually looks at the precise issue that I think is present here. [00:28:32] Speaker 06: which is how much of a particular expenditure should be considered a contribution and how much would not be considered a contribution. [00:28:40] Speaker 06: And that court did find that that was just a legal determination on a micro level. [00:28:47] Speaker 00: If I'm looking at Shays and Akins, that makes no sense to me because there are consequences that flow. [00:28:53] Speaker 00: And those who are interested in this information, like this group, [00:28:57] Speaker 00: There's no doubt that they have a very serious interest in this information. [00:29:00] Speaker 00: You're not contesting that. [00:29:02] Speaker 00: It's not just someone off the street. [00:29:04] Speaker 00: This is what they do. [00:29:05] Speaker 00: They're concerned about this. [00:29:07] Speaker 00: It matters a whole lot whether and how you disaggregate, because if the disaggregation shows certain numbers over the limits, then there's a question as to whether there was some illegality. [00:29:21] Speaker 06: Well, here, I think, correct the record has come to court to get the law enforced against, I'm sorry, Campaign Legal Center has come to court to get the law enforced against correct the record. [00:29:33] Speaker 06: There's no, I mean, they're a complete argument if you look at the administrative complaint that spurred this case, is that everything Correct the Record did was in coordination with the Hillary for America campaign. [00:29:46] Speaker 06: They simply want the FEC to apply the coordination rules to Correct the Record to punish it. [00:29:53] Speaker 06: And this court has said time and time again that that is not sufficient for informational injury. [00:30:00] Speaker 06: That just trying to get the bad guys is not enough. [00:30:04] Speaker 00: That's all that was going on in Akins and Shays. [00:30:08] Speaker 00: The plaintiffs there came in and said, this is information we're entitled to. [00:30:11] Speaker 00: We're going after these committees, their political committees. [00:30:15] Speaker 00: We're going after them because they have information we are entitled to under the law. [00:30:19] Speaker 00: Same thing in Shays, exactly the same thing. [00:30:22] Speaker 00: We're going after them, and we're going to use the information. [00:30:25] Speaker 00: We're going after them because they're withholding information we're entitled to have. [00:30:30] Speaker 06: I think the difference in those cases is that there was factual information that would have been revealed from the legal finding of coordination that is just simply not present here. [00:30:42] Speaker 00: Do you agree with me at all that disaggregated information, if it's disaggregated, do you agree that that is separate [00:30:51] Speaker 00: information. [00:30:54] Speaker 06: So I would not agree with that, but I think the most important piece of this is to really zero in on Campaign Legal Center's view of the law and how it applies to this case. [00:31:06] Speaker 00: Of course we view it on their view of the law. [00:31:07] Speaker 00: That's what we have to do in an information of standing case. [00:31:11] Speaker 00: Exactly, and I think that- We have to accept their view of the law. [00:31:15] Speaker 06: Right. [00:31:16] Speaker 06: And their view of the law here is one, that everything Correct the Record did was in coordination with the campaign, and two, that the internet exemption is exceedingly narrow, such that it would never exempt any of the expenses that they provide as examples. [00:31:34] Speaker 06: David Brock's salary, for instance, would never fall within the internet exemption. [00:31:39] Speaker 06: It would never not be coordinated under their theory of the law. [00:31:43] Speaker 06: It would simply move from one line [00:31:45] Speaker 00: as an operating expenditure to another line because it would show no actually it would show different information because it would be disaggregated and you know i don't the view of the law thing just makes no sense to me because in akins that's the whole fight why why i am as a committee do i have to expose that because the plaintiffs here think the view of the law is you're a political committee so the fact that we're going to give them a legal ruling in their favor and accept their view of the law so what i i just [00:32:15] Speaker 00: It's a really unfortunate piece of language in Wertheimer, but it is certainly not the controlling consideration. [00:32:21] Speaker 00: Wertheimer is about double exposure. [00:32:24] Speaker 00: Wertheimer is about the court saying they already got the information disaggregated, which is exactly what these folks are looking for, disaggregated information. [00:32:35] Speaker 00: And word timer. [00:32:37] Speaker 06: This case is on all fours with word timer because they already under their view of the law disaggregated information would change absolutely nothing here. [00:32:46] Speaker 06: Because salary doesn't need to be disaggregated. [00:32:50] Speaker 06: Expenses made for consulting and various paid activities never need to be disaggregated under their view of the law. [00:33:01] Speaker 00: It's not like the view of the law is untenable, which we don't have to decide, because the general counsel of the agency was reaching a view that was consistent with their position. [00:33:12] Speaker 00: That is, the contributions here was subject to a different picture than the one being painted by the group. [00:33:20] Speaker 00: That's exactly what the general counsel was saying. [00:33:23] Speaker 00: And then those who dissented in the agency responded by saying, no, everything is okay. [00:33:30] Speaker 00: I know that's not an issue here. [00:33:33] Speaker 00: There's a clear fight that is here. [00:33:36] Speaker 00: I don't have any view one way or the other, but I know they have a tenable view of the law. [00:33:40] Speaker 00: It's not an inappropriate view of the law, and I'm supposed to accept that to determine whether there's more information that they are entitled to because the law says they are. [00:33:51] Speaker 06: I totally understand that and I agree that's not yet at issue in this case. [00:33:58] Speaker 06: We obviously disagree with their view of the law, but I do think that it's relevant for the standing inquiry. [00:34:05] Speaker 06: And for the standing inquiry I just the types of expenditures that they have identified that would be disaggregated is simply just not the case, they wouldn't be disaggregated if there's a finding of coordination under their view of the law, they would simply be deemed coordinated. [00:34:23] Speaker 06: they would be moved to another line of the FEC report, and there would be law enforcement consequences that would follow. [00:34:30] Speaker 06: There simply just isn't additional information they would learn because frankly of their view of the internet exemption, which is exceedingly narrow and really applies to direct costs, not including overhead for salary, travel, or rent. [00:34:49] Speaker 06: Those expenditures would never be disaggregated under their view. [00:34:53] Speaker 06: So I do think this case is on all fours with Wertheimer. [00:34:57] Speaker 06: And I think, you know. [00:34:59] Speaker 00: Oh, it's not on all fours with Wertheimer if you had disaggregation. [00:35:03] Speaker 00: You're not raising the same issue. [00:35:05] Speaker 00: You can't say it's on all fours with Wertheimer. [00:35:08] Speaker 00: You can fight about what Akins means. [00:35:10] Speaker 00: It's not on all fours with Wertheimer if you had disaggregation in that case. [00:35:13] Speaker 00: You can't possibly say that. [00:35:16] Speaker 00: You had a request for more duplicate production of information. [00:35:20] Speaker 00: That's all. [00:35:22] Speaker 06: I think here, you would have that same request because part of what they want is for the Hillary for America campaign to report the coordinated expenditures that they contend would arise. [00:35:36] Speaker 06: Gotcha. [00:35:37] Speaker 06: Thank you. [00:35:38] Speaker 06: Thank you, Your Honor. [00:35:39] Speaker 06: Thank you. [00:35:40] Speaker 05: Anything further, Council? [00:35:43] Speaker 05: Council for Appellate. [00:35:46] Speaker 03: Hello, yes, I would just like for the record to reiterate that it's plaintiffs do the law that governs the standard inquiry and surely it's plaintiffs view of its own understanding of the law that should govern our merits inquiry at no point has campaign legal center or plaintiffs claim that all of. [00:36:05] Speaker 03: corrector records, internet related spending was somehow not exempt. [00:36:11] Speaker 03: You cannot read the two opposing district court decisions, all of which focused on how to tease apart overhead expenditures. [00:36:17] Speaker 05: I thought council was referring to your administrative complaint and filings. [00:36:23] Speaker 03: Also, not that I would just suggest that if. [00:36:29] Speaker 03: You wish to read a couple pages from our motion to to dismiss opposition we specifically were the ones that raise both David Brock salary and $589,000 in travel expenditures. [00:36:42] Speaker 03: and argued that they would need to be allocated between the exempt internet and non-exempt non-internet purposes that they supported. [00:36:49] Speaker 03: There's no way to read this. [00:36:51] Speaker 03: We were the ones who raised the salary in travel and other disbursements for overhead as needed to be allocated. [00:36:56] Speaker 03: And that was the reason that the district court reviewed exactly this question of how to separate what appeared to be a undifferentiated independent disbursement for overhead into its constituent parts, which might be some amount for independent spending. [00:37:10] Speaker 03: and some amount that actually constitute the in-kind contribution because that was a coordinated expenditure with the campaign. [00:37:16] Speaker 03: I don't know what we in the district court would have been doing if indeed all of Correct the Record's expenditures were not exempt. [00:37:25] Speaker 03: This was exactly both standing and the merits inquiry that both took as their starting point the assumption that a sophisticated opposition research group like Correct the Record had a very large online presence and ran a very sophisticated website [00:37:39] Speaker 03: And all of the expenses related to that operation, the online portion, were going to be exempt and therefore not considered an in-kind contribution to the campaign. [00:37:49] Speaker 01: Do you think they did anything that was not in coordination with the campaign? [00:37:56] Speaker 03: Meaning when we get beyond the legal question of the internet exemption into the area where no party contends that there was a nexus with the internet, this might include the circuit training and the [00:38:08] Speaker 03: outreach, the rapid response outreach to the press. [00:38:12] Speaker 03: Well, there it's contested. [00:38:13] Speaker 03: There was some categories. [00:38:16] Speaker 01: Not asking what they contest. [00:38:18] Speaker 01: I'm asking what you think. [00:38:20] Speaker 01: Do you think everything they did was in coordination with the campaign? [00:38:26] Speaker 03: We think there's reason to believe that some amount of their non-internet spending was coordinated with the campaign. [00:38:32] Speaker 03: As we've said, we're relying upon reputable news articles and the general statements by their leadership and representatives that they coordinate as a campaign system. [00:38:41] Speaker 01: When you say some amount, do you mean all of it or not all of it? [00:38:47] Speaker 03: Well, without a FEC investigation, we don't know. [00:38:49] Speaker 03: That is information that we don't know. [00:38:51] Speaker 03: And in fact, the general counsel found the same principle. [00:38:55] Speaker 03: They said, it's clear that there's been some coordination between correct the record, systemic coordination between correct the record [00:39:01] Speaker 03: and the Clinton campaign. [00:39:03] Speaker 03: However, even the general council in making its recommendations said, we do not know the extent to which the non exempt non internet spending was coordinated within the meeting of EECA. [00:39:12] Speaker 03: And we submitted that the general council doesn't know that we cannot be expected to know simply from the public news reporting, which was reputable, but hardly specific or complete. [00:39:22] Speaker 05: In addition to news reporting, what else did you say you had? [00:39:27] Speaker 03: We had the news reporting and then in addition [00:39:30] Speaker 03: The leadership of Correct the Record, for instance, David Brock made multiple statements to the press that they were under the thumb of the campaign, that they were allowed to coordinate because they engaged in exempt spending, and so on and so forth. [00:39:44] Speaker 03: So we relied upon both the public statements of the entity and these press releases, and again, not press releases, sorry, press reports. [00:39:52] Speaker 03: And again, at least the Office of General Counsel agreed with us that there was reason to believe at least that some amount of a non-exempt, non-internet spending was coordinated within the meaning of PICO. [00:40:04] Speaker 00: I mean, your focus really is on the exemption. [00:40:08] Speaker 00: If I'm hearing you correctly, it's neither here nor there if the other side says, well, you assume all of this was coordinated. [00:40:16] Speaker 00: If I'm hearing you correctly, you're saying, [00:40:18] Speaker 03: it was maybe it wasn't the point is not all of it was subject to the exemption and that's what we can't see correct there's two lines being created one how broadly to apply the exemption to where we're talking about uncontested non-exempt spending what in fact was coordinated within the meeting of people [00:40:41] Speaker 03: If nothing further or no further questions and. [00:40:44] Speaker 05: One of us. [00:40:45] Speaker 05: Be clear about one other. [00:40:50] Speaker 05: So. [00:40:51] Speaker 05: Here. [00:40:55] Speaker 05: You're relying on. [00:41:05] Speaker 05: Regulations. [00:41:07] Speaker 05: at 100.8A and 100.7A13. [00:41:11] Speaker 05: Is that right? [00:41:17] Speaker 05: Or 100.23. [00:41:19] Speaker 03: We are relying upon the statutory reporting requirements. [00:41:28] Speaker 05: And then those. [00:41:30] Speaker 05: That's USC 431.8A1 and 9A1. [00:41:37] Speaker 05: All right. [00:41:39] Speaker 05: And that talks about generally. [00:41:42] Speaker 05: All right. [00:41:42] Speaker 05: But then the regulations are more specific in talking about in-kind contributions and coordinated contributions. [00:42:01] Speaker 05: That's what I'm trying to throw in on here. [00:42:05] Speaker 03: Right. [00:42:06] Speaker 03: I would direct the court's attention to two statutory provisions, 152 USC 30116A7- Okay, hold on. [00:42:17] Speaker 05: Hold on. [00:42:18] Speaker 05: Okay. [00:42:19] Speaker 03: 52 USC, you know, 30116A7B little i. This defines what a coordinated expenditure is. [00:42:34] Speaker 03: It says an expenditure made in cooperation, consultation, or concert. [00:42:38] Speaker 03: And it says these are contributions to such candidates. [00:42:43] Speaker 03: So that is the provision that delineates what a coordinated expenditure is and how it's treated as a contribution. [00:42:49] Speaker 03: Then the various provisions of 52 USC 30104B state with great specificity the reporting requirements for a committee. [00:42:57] Speaker 03: And among the reporting requirements are these itemized information about date, amount, purpose, et cetera. [00:43:04] Speaker 03: So these are the two provisions of statute that apply. [00:43:08] Speaker 03: Now the internet exemption was something that was entirely a regulatory carve out. [00:43:14] Speaker 03: So those are the two kind of operating areas of law. [00:43:19] Speaker 03: And we did not challenge the internet exemption, which is a number of regulations. [00:43:26] Speaker 03: as contrary to FECA in and of itself. [00:43:29] Speaker 03: We did say as an APA challenge to the construction given to the regulations by the controlling commissioners that dismissed our complaint, but the court below found that the APA claim was basically co-extensive with our FECA claim and dismissed on that basis. [00:43:51] Speaker 05: Anything further? [00:43:54] Speaker 03: Nothing further from appellants. [00:43:55] Speaker 04: Thank you. [00:43:56] Speaker 04: We'll take the case under advisement.