[00:00:01] Speaker 05: Case number 22-5336, Campaign Legal Center and Katherine Hinckley Kelly versus Federal Election Commission appellant, Hillary for America and correct the record. [00:00:13] Speaker 05: Mr. Mueller for the appellant, Ms. [00:00:16] Speaker 05: Malloy for the appellees. [00:00:23] Speaker 04: Good morning, Mr. Mueller. [00:00:25] Speaker 00: Good morning. [00:00:26] Speaker 00: May it please the court. [00:00:28] Speaker 00: Craig Mueller, Federal Election Commission. [00:00:31] Speaker 00: This case involves a challenge to the dismissal of an administrative complaint. [00:00:35] Speaker 00: And the case raises jurisdictional and merits issues. [00:00:40] Speaker 00: On jurisdiction, this court previously found. [00:00:43] Speaker 01: Can you bring your lectern up a little bit? [00:00:45] Speaker 00: It's at its highest point. [00:00:47] Speaker 00: It's at its highest point. [00:00:49] Speaker 00: It's at its highest point? [00:00:50] Speaker 00: Yes, I'll step closer and speak louder. [00:00:53] Speaker 01: Thank you. [00:00:58] Speaker 00: On jurisdiction, [00:01:01] Speaker 00: This court previously found an informational injury sufficient to establish standing to address disclosure violation. [00:01:15] Speaker 00: With respect to the contribution limits, [00:01:21] Speaker 00: and the source restrictions that were in the district court opinion. [00:01:26] Speaker 00: There isn't standing for the court to address those. [00:01:29] Speaker 01: We certainly never said that. [00:01:31] Speaker 01: That wasn't before us initially. [00:01:32] Speaker 01: We certainly never said there was standing to challenge contribution limits and source restrictions. [00:01:39] Speaker 01: Exactly. [00:01:39] Speaker 01: So you're saying the district court conferred standing inadvertently maybe in remanding it for that to be considered as well. [00:01:48] Speaker 00: Right. [00:01:48] Speaker 00: There are disclosure violations and an informational injury that can be addressed. [00:01:53] Speaker 00: Contribution limits or source prohibitions are more in the generalized grievance category of standing that this court did not find. [00:02:02] Speaker 00: That would have been the cause area of case law. [00:02:05] Speaker 04: But all that's before us is the CLC challenge [00:02:15] Speaker 04: to the commission's determination that there's no reason to believe that Hillary for America, or correct the record, engaged in illegal coordination. [00:02:24] Speaker 04: And given that they do have an informational injury traceable to that no reason to believe deadlock, and that could be remedied by our decision. [00:02:40] Speaker 04: And why isn't it enough to just say they have standing and leave it [00:02:45] Speaker 04: you know, not delve into sort of micromanaging what happens after. [00:02:52] Speaker 01: You're not doubting the outstanding on the information on the matter that was before us first time, right? [00:02:57] Speaker 01: Correct. [00:02:57] Speaker 01: You're just saying the district court to you shockingly added that on remand to the agency they should also consider contribution limits and source restrictions which were not the source of informational standing. [00:03:12] Speaker 01: That's correct. [00:03:13] Speaker 01: You're not saying the case should be dismissed for one of standing. [00:03:16] Speaker 01: You're just saying if it goes back, it has to go back only for what it came with. [00:03:22] Speaker 00: Exactly, Your Honor. [00:03:23] Speaker 00: It needs to be remanded on that basis. [00:03:26] Speaker 00: And I think that there's authority that addresses Judge Pilar's concern is [00:03:33] Speaker 00: For example, in the Davis case, the Supreme Court case, they described how standing isn't dispensed in gross, that you need to have standing for each claim and each form of relief that you're seeking. [00:03:45] Speaker 00: And here, as it was in this court's earlier decision, the challenge to the disclosure limits and the informational injury established standing with respect to that. [00:03:59] Speaker 01: Can I push you, unless my colleagues object, which they certainly can, because they've got seniority over me, get to the substantive merits? [00:04:09] Speaker 01: I don't see much to this forfeiture of the appeals stuff, and I don't see much to the mootness. [00:04:15] Speaker 01: I am curious to hear what you have to say about the substantive merits, arbitrary and precuous. [00:04:22] Speaker 01: And it's really, in my view, formed by a former chair of Goodman's [00:04:27] Speaker 01: claim that the district court has gone way too far in embracing too many things and in confusing inputs which might be exempt as opposed to general expenditure. [00:04:43] Speaker 01: Tell us your thinking. [00:04:44] Speaker 01: I mean, that argument to me was interesting and compelling in raising concerns that [00:04:52] Speaker 01: I didn't think we reached the first time that way. [00:04:55] Speaker 01: We thought the district court was confused for different reasons, but the district court now seems to conflate the input analysis to suggest that everything's in. [00:05:05] Speaker 01: Go ahead. [00:05:06] Speaker 00: I understand. [00:05:06] Speaker 00: Yes, Your Honor. [00:05:07] Speaker 00: So on the merits, we think the district court should be reversed for three reasons. [00:05:11] Speaker 00: First, it's the deference question. [00:05:14] Speaker 00: We don't think that they were deferential to the controlling group statements of reasons in the analysis there. [00:05:20] Speaker 04: We think that the... What deference are you claiming? [00:05:23] Speaker 00: It's under the key sort test. [00:05:26] Speaker 00: We think that there's controlling weight should be given to the commission's or to the controlling group's interpretation of the controlling way, but they're not acting for the commission. [00:05:37] Speaker 04: So we don't do any kind of Chevron. [00:05:40] Speaker 00: I think the deference analysis, there's two points to it. [00:05:45] Speaker 00: One is controlling weight should be given to the controlling group's interpretation of the regulation. [00:05:51] Speaker 04: They are controlling and we review it because that's a way of making the statute functional. [00:05:55] Speaker 04: But in terms of through what lens we review it, I took you to be saying that we use a deferential lens and I'm questioning whether that is supported when they're not acting for the commission. [00:06:07] Speaker 04: The statute says only four members can act for the commission. [00:06:10] Speaker 00: Right. [00:06:10] Speaker 00: This court's precedent has set up, and in Orlowski in particular, where the court defers to the controlling group of commissioners rationale, and it's an arbitrary commission. [00:06:20] Speaker 00: It defers to reviews. [00:06:22] Speaker 00: But it's a differential review. [00:06:24] Speaker 00: It's highly deferential review. [00:06:26] Speaker 00: It's limited review, Orlowski. [00:06:28] Speaker 01: It's such a hard detail. [00:06:30] Speaker 01: We didn't buy that argument the first time around. [00:06:33] Speaker 01: Pardon? [00:06:34] Speaker 01: We didn't buy that argument the first time around. [00:06:38] Speaker 01: that the chief judge in the district board was embracing initially the approach you're talking about now. [00:06:44] Speaker 01: We shot that down. [00:06:45] Speaker 01: We said that's wrong. [00:06:46] Speaker 01: That's not what the president supports. [00:06:48] Speaker 01: And there is something here to be considered. [00:06:51] Speaker 01: So there's nothing for us to defer to now. [00:06:54] Speaker 01: We've already said, no, we don't buy it. [00:06:57] Speaker 01: But your second argument. [00:07:00] Speaker 00: I think there is a line of cases in this circuit. [00:07:04] Speaker 01: I'm telling you, only as one judge, my colleagues can come back and tell you otherwise. [00:07:11] Speaker 01: I don't know where you're going that's useful there on deference. [00:07:14] Speaker 01: We have said loud and clear that on certain piece of your argument with respect to what those two judges or two commissioners said, we're not buying it. [00:07:24] Speaker 01: Okay, so what are the other two arguments? [00:07:30] Speaker 00: So I think what happened here is that the internet exemption was not properly applied. [00:07:39] Speaker 00: And let me explain. [00:07:41] Speaker 00: Yes. [00:07:43] Speaker 00: So they carefully looked at the record and they made certain determinations about the record. [00:07:49] Speaker 00: And so they determined that they wanted to proceed carefully and they looked at the foreign statements that were in the complaint, the sworn statement that was provided in response. [00:08:01] Speaker 00: They looked at a couple of other categories and decided that they wouldn't consider those. [00:08:06] Speaker 00: For example, all of the commissioners decided that they were not going to rely on the WikiLeaks material that was, as the controlling group described, put out by a [00:08:17] Speaker 00: or an intelligence operation, and they determine the sense it was illegally obtained and of a questionable source. [00:08:26] Speaker 00: They didn't want to reward that or have that influence of process, so they determined not to apply that. [00:08:33] Speaker 00: And then they also, and this is something that [00:08:36] Speaker 00: I think comes up more in the political context than other contexts. [00:08:41] Speaker 00: They determined not to rely on press accounts, and in particular anonymous source press accounts, because they determined those to be unreliable. [00:08:51] Speaker 00: So they proceeded on the facts based on the sworn statements that were before them. [00:08:57] Speaker 00: Then they continued on and applied the internet exemption looking to prior commission precedent. [00:09:04] Speaker 00: They relied on a number of matters to do that, to find that certain types of input costs for the spending fell within the internet exemption and was not deemed to be. [00:09:17] Speaker 04: Certain types of input costs, all of them, huge number of input costs. [00:09:22] Speaker 00: Right? [00:09:22] Speaker 00: Right. [00:09:23] Speaker 00: Yeah. [00:09:23] Speaker 00: And that's what's notable about this case, is that precedent defined these categories. [00:09:29] Speaker 00: And this case was there were a lot of spending that fell into those categories. [00:09:36] Speaker 01: So I think that- Input costs were exempt internet communication, as opposed to just making the determination in the first instance whether it's actually input cost for the exempt [00:09:50] Speaker 01: And if it is, it's exempt. [00:09:52] Speaker 01: And that's what Goodman is saying. [00:09:54] Speaker 01: But if this record, I thought his pardon was, this record went way too far in questioning whether the internet exemption itself was in play. [00:10:06] Speaker 00: Right. [00:10:07] Speaker 00: It substituted its own test there. [00:10:09] Speaker 00: It decided that there should be some kind of bounded analysis there. [00:10:14] Speaker 00: And it wasn't consistent with what was in the statement of reasons. [00:10:17] Speaker 00: It wasn't an evaluation of what was in the statement of reasons. [00:10:20] Speaker 04: So the cost of producing a poll, for example, or a poll that is expensive to produce, [00:10:27] Speaker 04: Ordinarily under the FECA, that would be, if you give that to a candidate or the campaign, that would be a thing of value. [00:10:38] Speaker 00: Right. [00:10:38] Speaker 00: That could be an in-kind contribution under certain circumstances. [00:10:41] Speaker 04: That would ordinarily be. [00:10:44] Speaker 00: Yeah, if an individual was giving that to a candidate or the city. [00:10:47] Speaker 04: So your theory is that [00:10:50] Speaker 04: An expenditure for a coordinated communication that meets the content standards is simply not an expenditure for a thing of value if it's not placed for a fee on another person's website, but just posted on the internet. [00:11:06] Speaker 00: Right, the category of inputs and the category of what gets posted onto their own website, they can engage in significant spending related to those postings. [00:11:16] Speaker 04: And indeed, the board said, we're not even going to parse. [00:11:19] Speaker 04: We're not going to do what we have to do if we're claiming home office tax exemption. [00:11:23] Speaker 04: We're not going to do any of that. [00:11:24] Speaker 04: So if there's some amount of posting on unpaid internet, [00:11:30] Speaker 04: then all the inputs can basically be funneled through the unpaid internet communications exemption, and none of it be disclosed. [00:11:39] Speaker 04: I mean, that's what happened in this case, right? [00:11:42] Speaker 00: Yes, and there's good reason for that. [00:11:45] Speaker 00: When the regulation was created, [00:11:48] Speaker 00: the rationale for the regulation was to create bright line categories where people could be certain about what their conduct was doing and how it would be treated under the act. [00:11:59] Speaker 01: But you've got to figure out what constitutes an input. [00:12:05] Speaker 04: Everything on the board's view, or on the commission's view, sorry. [00:12:09] Speaker 01: And even Goodman, who's more or less on your side, is saying, you've got to do that. [00:12:14] Speaker 01: You've got to figure out what's [00:12:16] Speaker 01: An input, if it really is an input, then it is exempt. [00:12:19] Speaker 01: But you got to figure it out and you can't say, no, no, no. [00:12:23] Speaker 01: Generally, all this is excluded, which is what we rejected the first time around. [00:12:28] Speaker 00: So the statement of reasons did divide things into two categories here. [00:12:33] Speaker 00: There was what Judge Pollard described as there was office space and polling, and there were a number of items that fell into that category. [00:12:41] Speaker 00: Then there was a second category of material, which was the surrogacy program training that they did and research and contacts with reporters. [00:12:52] Speaker 00: That wasn't internet related, so they decided that that [00:12:56] Speaker 00: They did a separate analysis on that and they looked to see whether it was coordinated and they looked at a transaction by transaction determined that wasn't coordinated and they looked at [00:13:08] Speaker 00: In particular, they looked at there were substantial reimbursements for that type of material. [00:13:14] Speaker 00: So if it's reimbursed, it doesn't become a contribution. [00:13:17] Speaker 00: So they did differentiate between two categories of expenses here and made different decisions based on application of different precedent or different regulatory provisions. [00:13:29] Speaker 04: So summing up that line, how would you state the analysis that distinguishes between [00:13:35] Speaker 04: Those, the training, research, I mean, if you're paying for staff to do research and then you just post it all on your unpaid internet site, it seems like under the board's analysis of the first category that that would also be not even analyzed. [00:13:59] Speaker 00: Right, to define that, that the first category is just the posted on the internet without being on somebody else's site for a fee, that's the one category. [00:14:12] Speaker 00: The other category was expenditures that weren't for internet related communications. [00:14:17] Speaker 04: But I'm saying why under the reasoning of the first category, a more scrupulous job could be done and suck in all the things in the second category too. [00:14:27] Speaker 04: You just say, we're doing all this training, [00:14:29] Speaker 04: And we're going to come up with a result. [00:14:32] Speaker 04: And everybody that's in the training is going to do a live blog interview of themselves and their own unpaid internet site at the end of it. [00:14:42] Speaker 04: And that would then exempt all of that. [00:14:46] Speaker 00: Well, I think that there are often opportunities for creative circumvention. [00:14:50] Speaker 00: Indeed. [00:14:52] Speaker 00: But the reality in this instance was that they were dealing with the record as it was presented here. [00:14:59] Speaker 04: And research, if I want to pay a team of people 24-7 to do AAPO research for a candidate, and I don't want to have to disclose, pay them all, pay them to fly around the world, talk to people, everything they possibly could do to have very powerful research. [00:15:19] Speaker 04: And just everything that they do, they have to post. [00:15:22] Speaker 04: on the internet for free. [00:15:24] Speaker 04: Done, right? [00:15:27] Speaker 00: Well, if I understand your question, you're asking really, what is the limiting principle? [00:15:34] Speaker 00: Yes, and so I think that there are a few answers to that. [00:15:40] Speaker 00: One is that in the Buckley speech context, we're not big on limits in that we're not trying to limit what activity people can engage in. [00:15:50] Speaker 00: We're trying to draw clear categories. [00:15:53] Speaker 00: Suspending can take place in those categories. [00:15:55] Speaker 00: So that was the priority with this rule was to have bright line categories. [00:16:00] Speaker 04: No, we're not trying to limit speech. [00:16:01] Speaker 04: We're only in the disclosure realm, precisely because we don't want to limit speech. [00:16:06] Speaker 04: It's just so that the public can evaluate who's behind this, who's paying. [00:16:10] Speaker 00: And so that it's clear the person who's engaging in this conduct. [00:16:14] Speaker 00: Whether they have an obligation to disclose. [00:16:16] Speaker 00: Exactly. [00:16:17] Speaker 04: So I think that is why I'm asking you, what is the limit? [00:16:24] Speaker 00: I think the limit is in the definition, and that people accurately describing what they're doing and providing filing disclosure reports consistent with those regulations. [00:16:35] Speaker 00: So there are categories, and I think that- Can you be more concrete? [00:16:39] Speaker 01: Yeah, what's an input? [00:16:40] Speaker 01: How are you defining input cost for the exempt category? [00:16:46] Speaker 01: I mean, that's really what we're talking about here. [00:16:50] Speaker 01: And that's what we were concerned about in the first case. [00:16:52] Speaker 01: You just threw it all in and said everything was exempt. [00:16:57] Speaker 01: And then the district court then expanded it, seems to expand it. [00:17:01] Speaker 01: And we're not really getting to the crux of the question. [00:17:04] Speaker 01: What's an input cost? [00:17:06] Speaker 01: And how are you defining that? [00:17:08] Speaker 01: Input cost with respect to exempt internet communication. [00:17:12] Speaker 01: You can't say, [00:17:14] Speaker 01: Someone gets a good night's sleep and he's a staffer and something facilitates that. [00:17:18] Speaker 01: That's an input cost and he does internet work. [00:17:22] Speaker 01: That's the way it was reading initially. [00:17:24] Speaker 01: Anything that was related to something done on the internet, any chair that someone might sit at that could be moved over in front of the computer to get on the internet, if you buy that chair, that's an input cost. [00:17:40] Speaker 01: That's what we were concerned about. [00:17:41] Speaker 01: It made no sense. [00:17:42] Speaker 01: Now the district court's decision seems to sweep it all. [00:17:46] Speaker 01: And Goodman is saying, no, no, no, there's a way to do this in a clean way consistent with what we thought we were doing years ago. [00:17:54] Speaker 01: What are you saying that's different? [00:17:56] Speaker 00: Exactly, Your Honor. [00:17:57] Speaker 00: I think that what has taken place over time and what the controlling group of commissioners was doing and applying it here was looking at commission pressing, because to some degree, how this applies depends on how they've decided things in previous matters. [00:18:13] Speaker 01: So that's what the controlling group did and why... And where do they tell us how you figure out what an input cost is with respect to internet communication? [00:18:21] Speaker 00: They looked at the cost of that issue here. [00:18:24] Speaker 00: Certain others. [00:18:25] Speaker 00: They were not going to look at it. [00:18:27] Speaker 01: Let's say we're not going to look at it. [00:18:29] Speaker 01: It's all exempt. [00:18:30] Speaker 01: Well, they analyzed it, I should say. [00:18:32] Speaker 04: It really would be helpful to be more concrete. [00:18:34] Speaker 04: So like in the FEC's own rulemaking, it notes that a political committee that pays a blogger to write a message and post it within his or her blog entry is making a reportable contribution, right? [00:18:53] Speaker 04: And yet all of these inputs seem to me to be paying people and paying for supplies that people are then posting on unpaid internet. [00:19:06] Speaker 04: And so I just would like something a little bit more concrete than look at precedents, analyze the situation, look at the past practice. [00:19:16] Speaker 04: Can you bring it down for us a little bit more concretely and explain is there a line or [00:19:23] Speaker 04: is every campaign from now on just going to make sure they have the unpaid campaign central website where all the work gets laundered through and gone is the disclosure. [00:19:34] Speaker 00: Yes, your honor. [00:19:34] Speaker 00: I think to address the first part of your question, where you were describing the language that was in the explanation and justification, I'd make two quick points about that. [00:19:46] Speaker 00: That was describing political committees and line item disclosures that political committees make. [00:19:52] Speaker 00: That was predated this court's decision in speech now, where independent only expenditure organizations like [00:20:02] Speaker 00: corrective record came into being. [00:20:06] Speaker 00: And so... [00:20:08] Speaker 00: So I think it's important that that distinction is important because the disclosure regime or super PACs are entities like correct the record is a little bit different as Judge Edwards had previously described in the standing decision that their their disclosure is is aggregated and only then later if it's deemed to be a coordinated expenditure is it a [00:20:33] Speaker 00: does it end up being a line item disclosure as a contribution? [00:20:39] Speaker 00: So we're making as an in-kind contribution. [00:20:41] Speaker 00: So we're making that distinction. [00:20:43] Speaker 00: So I think it's important to address Judge Pollard's question about how do we define these input costs. [00:20:51] Speaker 00: And I think that it may be dissatisfying to hear, but there's a few ways. [00:20:58] Speaker 00: They applied the text of the regulation, and they did look at [00:21:03] Speaker 00: what was in prior instances was deemed to be an input cost. [00:21:07] Speaker 00: And they listed a number of matters and types of matters and determined that the issues here or the spending here fell into those categories. [00:21:15] Speaker 04: So the answer for the paying a blogger is that now that's considered to be an input within the internet exception. [00:21:23] Speaker 00: So no, the paying of a blogger as like a hypothetical question? [00:21:30] Speaker 04: Well, paying a staff to blog. [00:21:34] Speaker 04: Paying us, renting, I mean salaries, rent, setting up a war room to blog on a hearing, to emails, to post on social media, Twitter, all the rent, the salaries, training, lunch, hotels for conferences, all. [00:21:57] Speaker 01: None of it was disaggregated in the initial case. [00:22:00] Speaker 01: You all seem to think that it was somehow, if it's tangentially related to internet activity, it's exempt. [00:22:10] Speaker 01: That can't be right. [00:22:12] Speaker 00: But I think that the tension here is that what the commissioners in the Statement of Reasons were doing [00:22:19] Speaker 00: was looking at the particular categories of spending that existed in this case and found that it fit within commission precedent and within the text of the statute. [00:22:29] Speaker 00: And I understand that if you're looking beyond that or looking at it in a more abstract way, you may have questions about what's inside or outside. [00:22:41] Speaker 00: I think that the statement of reasons here found that it was consistent with agency practice. [00:22:48] Speaker 00: It was within the bounds that had been described. [00:22:53] Speaker 02: On another issue, you've got the private right of action proceedings. [00:22:57] Speaker 02: So how does whatever we do here affect that? [00:23:01] Speaker 00: Yes, so the district court stayed the private right of action case to hear what this court had to say. [00:23:07] Speaker 00: And I think that [00:23:10] Speaker 00: one immediate one effect that it would have if this standing decision was properly applied by the district court that would narrow or revoke the. [00:23:22] Speaker 00: jurisdiction for the private right of action case. [00:23:24] Speaker 00: If this case remained live, and if there was a proper application of standing, it would go back to the district court to analyze this. [00:23:36] Speaker 00: And in the private party case? [00:23:38] Speaker 00: Yeah. [00:23:38] Speaker 00: And in the private party case, I think that there would be a different analysis of whether jurisdiction for that case remained, depending on what came from this court. [00:23:50] Speaker 04: On standing grounds? [00:23:53] Speaker 00: And also, I think if it was just remanded to the district court for further consideration, and then depending on what the district court did, if he chose to remand it back to the agency, the private right of action case wouldn't have jurisdiction. [00:24:08] Speaker 04: How would it be remanded back to the agency? [00:24:10] Speaker 04: For what? [00:24:11] Speaker 04: The agency had, if the district court said contrary to law, there's no reason to believe, the agency ran out the 30 days that it had for [00:24:24] Speaker 04: conciliation, what role does the agency have on remand? [00:24:28] Speaker 04: It seems like isn't the question here only whether either the agency wins, reverse on the merits, or if there's any live claim it's for the private right of action to carry it forward? [00:24:41] Speaker 04: I know this is a complicated situation, so I'd appreciate your views on that. [00:24:45] Speaker 00: Sure, Your Honor. [00:24:48] Speaker 00: As a theoretical matter, I was thinking of all the potential possibilities. [00:24:55] Speaker 00: I think the, if this court were to reverse the district court, I don't see, I think there is the possibility that the private right of action jurisdiction would be like. [00:25:11] Speaker 01: Take the situation. [00:25:13] Speaker 01: Take the situation. [00:25:15] Speaker 04: I didn't call that at all. [00:25:16] Speaker 04: I'm sorry. [00:25:18] Speaker 04: If we were to reverse the district court, the private right of action, dot, dot, dot, what was your? [00:25:24] Speaker 00: Um, just the. [00:25:30] Speaker 00: The only scope of jurisdiction that the private right of action could have consistent with this court's earlier standing decision would be to address informational injuries and disclosure violations. [00:25:41] Speaker 04: Well, if that's right, and I'm not sure that that's before us, but if we were to affirm the district court, there's something that's still alive. [00:25:49] Speaker 04: And I take your point that the scope of that is [00:25:53] Speaker 04: maybe still disputed. [00:25:55] Speaker 04: But if there's a live claim, let's say for informational injury, that would not go back to the commission. [00:26:00] Speaker 04: That would go back to the district court and be tried in the private party case. [00:26:05] Speaker 04: Is that right? [00:26:05] Speaker 00: I think it goes back to the district court in this case, not in the private right of case. [00:26:14] Speaker 00: And I think there could be argument about what the impact of this decision is on the private right of action. [00:26:21] Speaker 01: Yeah. [00:26:22] Speaker 01: My understanding was you're challenging the decision of the district court in this case, not the private right of action case. [00:26:32] Speaker 01: And there's this strange issue of forfeiture, which I, whatever, the other side can explain it. [00:26:39] Speaker 01: Your argument is the remand, the district court's decision undergirding the remand is wrong. [00:26:46] Speaker 01: you state a number of reasons standing and you state on the merits the district court was wrong and you're saying well it shouldn't go back at all we should win flat out to if it goes back to the commission it should go back with a different decision on the district court and we want you to outline it meaning the court of appeals to say one the standing is not as broadly as the [00:27:10] Speaker 01: district court said. [00:27:11] Speaker 01: And two, the understanding of the merits is different. [00:27:14] Speaker 01: And now the commission should operate with that on remand. [00:27:18] Speaker 01: Nothing's going to happen with the private right of action case until this case gets done and then back again. [00:27:25] Speaker 01: You haven't lost and there's no mootness. [00:27:27] Speaker 01: You certainly have a right to appeal a decision of the district court, which orders a remand. [00:27:32] Speaker 01: If you think the district court is wrong and the other side should know, they can't do anything in the private right of action case until [00:27:40] Speaker 01: This case is done. [00:27:41] Speaker 01: And indeed, that's why Chief Judge Bosworth stayed the other case. [00:27:47] Speaker 01: I thought that's what you were arguing. [00:27:49] Speaker 00: Exactly, Your Honor. [00:27:50] Speaker 00: And so the step from this court would be to reverse and remand back to the district court for further proceedings. [00:27:58] Speaker 01: Further proceedings consisted with and taking into account- As soon as we say, [00:28:04] Speaker 01: standing, there's an issue the way it's stated by the district court, and the district court may have been a little bit elaborate in its view of the merits, and so it should reconsider and then can decide whether or not you have to remand to the agency. [00:28:18] Speaker 01: Then it goes back, and then the agency will do, presumably do, whatever the district court orders, and the separate private right of action cases has to sit and wait. [00:28:31] Speaker 00: That is correct, Your Honor. [00:28:32] Speaker 00: And then I think if it's back before the agency. [00:28:34] Speaker 01: That was my understanding of the theory. [00:28:36] Speaker 01: I just want to make sure I was understanding. [00:28:40] Speaker 00: Yes. [00:28:41] Speaker 00: And Your Honor also raised the corpature issue. [00:28:44] Speaker 00: And I don't see that as an issue because the issues that are before the court today were raised and pressed and passed upon below. [00:28:53] Speaker 00: And so I think they're properly before this court. [00:28:59] Speaker 04: So you were asking for deference and you mentioned Orlowski. [00:29:02] Speaker 04: And Orlowski was the majority of the commissioners. [00:29:05] Speaker 04: And so on my question about why there should be deference to blocking commissioners, I understand that we review the reasoning. [00:29:14] Speaker 04: But we also don't need blocking commissioners' reasoning. [00:29:18] Speaker 04: If there's no response, timely response at all, [00:29:21] Speaker 04: then that has implications as well. [00:29:23] Speaker 04: We review a case with no opinion at all for whether there's reason to believe that it should be investigated. [00:29:30] Speaker 04: So I'm just trying to understand a little bit more your theory about why there's any deference owed to the rationale that a non-majority of commissioners gives. [00:29:42] Speaker 04: I understand we review it. [00:29:43] Speaker 04: functionally, but deference? [00:29:46] Speaker 00: Yeah, and there's a line of cases, and I think DCCC and Orlowski, and there's been subsequent cases stemming from those where the commission, the court is reviewing the declining to go ahead commissioner's rationale, and it's been given deference by the courts. [00:30:13] Speaker 04: And you don't have, I mean, I had asked you several times, I'm not going to beat the dead horse, but you don't have any on the merits of reading the statute, anything to add about how concretely one should distinguish what is an input into an unpaid internet communication and what is not. [00:30:33] Speaker 00: No, other than what was described in the statement of reason and the regulation and practices that I described, yes. [00:30:46] Speaker 00: and then we'll be back for a rebuttal. [00:30:57] Speaker 03: Good morning. [00:30:59] Speaker 03: Tara Malloy for Plaintiffs of Police Campaign Legal Center or CLC and [00:31:09] Speaker 03: Plaintiffs have argued in both their motion to dismiss and their merits brief that the appeal the FEC attempts to press here is forfeit, is moot, and it has no merit. [00:31:18] Speaker 03: My understanding from the earlier questions is that your primary interest is in the merits. [00:31:23] Speaker 01: I'm just speaking for myself. [00:31:25] Speaker 01: I find no force to your arguments on forfeiture or mootness unless you're particularly happy to let you know I've prepared the case carefully and I think those arguments are bogus. [00:31:35] Speaker 01: I think there are other arguments that are important. [00:31:37] Speaker 01: that we ought to focus on, but you use your time as you prefer. [00:31:40] Speaker 04: I'm interested in the only threshold issue I'm interested in is the standing issue and whether it's for us to say anything about the scope other than just to decide the threshold issue or do we need to because the district court on FEC's view decided too broadly. [00:32:04] Speaker 04: Although too many claims, not too broadly in the merit sense, but claims that the FEC thinks are not properly before. [00:32:12] Speaker 03: I'll start with the so-called subject matter jurisdiction argument. [00:32:17] Speaker 03: The so-called what? [00:32:18] Speaker 03: Subject matter jurisdiction argument, but it is. [00:32:22] Speaker 03: Well, that's what I'm standing. [00:32:26] Speaker 03: We don't see this as a jurisdictional argument at all. [00:32:29] Speaker 03: At least it does not concern the jurisdiction of the district court to hear the actual legal claim brought by plaintiffs in this case. [00:32:36] Speaker 03: Instead, at most, it is the collateral attack on the jurisdiction of a different court to hear a different case. [00:32:41] Speaker 03: And that is the district court hearing the private action, which is a separately filed case against different parties. [00:32:47] Speaker 01: Now, let me tell you, as the one who worked on that first case, this case was not about contribution limits or source restrictions. [00:32:54] Speaker 01: That did not form the basis for the informational standing. [00:32:59] Speaker 01: Absolutely not. [00:33:00] Speaker 03: Exactly. [00:33:01] Speaker 03: Exactly. [00:33:02] Speaker 03: I would note that the only legal claim brought by the legal complaint here is that the FEC acted contrary to law in dismissing plaintiff's administrative complaint under 301-09-88. [00:33:15] Speaker 03: That is the only legal claim. [00:33:16] Speaker 03: The basis for standing that this court acknowledged was that the FEC's dismissal of the administrative complaint caused plaintiff's informational harm by depriving us of information to which we were due under FECA, a quintessential informational injury. [00:33:31] Speaker 03: The plaintiffs have never sought to enforce a contribution limit in their legal case. [00:33:36] Speaker 03: We have simply sought a ruling that the dismissal was contrary to law. [00:33:40] Speaker 03: We have never asserted standing in the legal case. [00:33:42] Speaker 01: So then you're agreeing with the concern that's been expressed. [00:33:45] Speaker 01: The district court may have overreached in suggesting that if the case goes back to the commission, the commission is required to consider contribution limits and source restrictions. [00:33:55] Speaker 01: That's not right. [00:33:57] Speaker 03: As a hypothetical, the district court did not order. [00:34:00] Speaker 01: I don't know what we're fussing about. [00:34:02] Speaker 01: If you're agreeing that there isn't standing to support those kinds of claims and we wrote an opinion that way, we don't have to say anything more than this case is still about the informational standing that brought the first action here. [00:34:15] Speaker 03: You're saying that we have confirmed our standing to bring our legal claim. [00:34:19] Speaker 03: under 3010988 on informational standing grounds. [00:34:23] Speaker 03: Exactly. [00:34:24] Speaker 01: Which do not include contribution limits and source restrictions. [00:34:27] Speaker 03: And to clarify, the district court simply remanded the case back to the FEC to conform with the decision. [00:34:35] Speaker 03: It did not order the FEC to take any action with respect to... I think we're fussing over nothing. [00:34:41] Speaker 01: I think you agree. [00:34:42] Speaker 01: I think you agree. [00:34:43] Speaker 03: I'm maybe disagreeing that the court below overreached by ordering the FTC to take action back to contribution limit violations because the court in no way made that order. [00:34:54] Speaker 03: It simply remanded the case back to the commission or the commission to conform with the reasoning of the district court. [00:35:01] Speaker 03: It explained why it believes that the controlling rationale for dismissal was contrary to law and the FTC simply had to [00:35:08] Speaker 03: re-evaluate the administrative complaint according to the reasoning of the district court. [00:35:13] Speaker 03: It did not have to find any violations whatsoever. [00:35:15] Speaker 01: You're saying it over and you're using time. [00:35:17] Speaker 01: We'd love, I would love to hear what you have to say on the merits and what the district court was going for. [00:35:22] Speaker 03: I think we may be in heated agreement that basis for standing of the legal case was not in any way tied to the contribution limit violations in the administrative complaint. [00:35:32] Speaker 03: All right, so yes, the merits. [00:35:38] Speaker 03: To step back, the FEC has been conducting its defense of the controlling commissioner's legal rationale for dismissing administrative complaint on the basis of the regulatory internet exemption. [00:35:57] Speaker 03: The wrap-up man of the district court's decision was that the statute does not have any internet exemption. [00:36:06] Speaker 03: This is truly a regulatory invention. [00:36:09] Speaker 03: The statute provides that any expenditure made in cooperation, consultation, or concert with a candidate shall be deemed a contribution subject to all the applicable disclosure requirements, as well as contribution restrictions. [00:36:25] Speaker 03: The first point of review of a commission dismissal in the 301 [00:36:32] Speaker 03: So 9-8-8 action is under Orlowski to determine whether the dismissal rested upon an impermissible interpretation of FICA or otherwise unduly compromise its purposes. [00:36:44] Speaker 03: Our position is that the capacious application of the internet exemption to exempt all categories of correct the record spending was contrary to the statute's clear text and fundamentally undermined its purposes. [00:37:00] Speaker 03: The question that you raise about whether or not these expenditures or those expenditures were inputs is purely part of the regulatory system, not part of the statutory system for regulating coordinated expenditures. [00:37:12] Speaker 03: So it would be our position that if the FEC were to put any substantial amount of coordinated spending in the category of inputs, that would be contrary to the statutory. [00:37:22] Speaker 03: Any amount of what? [00:37:23] Speaker 01: Substantial amount. [00:37:25] Speaker 04: any substantial any substantial amount of correct the records coordinated spending in this it's the it's our amplification is a little um muffled so when you speak quickly we i mean even though we're this close we actually miss your word a substantial amount of of correct the records coordinated records coordinated into the [00:37:51] Speaker 03: bucket of inputs, that that would be contrary to the statute, which has no internet exemption and has no exemption for inputs for internet communications. [00:37:59] Speaker 03: That this was never something contemplated by the statute and clearly would undermine its purposes by here, for instance. [00:38:05] Speaker 01: But you're saying there's another issue that there cannot be an internet communication exemption at all, so we don't even have to think about inputs? [00:38:12] Speaker 01: Well, then what you're saying isn't helpful to me in any event, because we're trying to figure the reason we were pushing the line of questioning with the opposition is because Goodman raises a legitimate concern is, wait a minute, you've got to figure out whether or not this is really an input before you decide whether it's within the exempt category. [00:38:34] Speaker 01: Do you find that useful or not? [00:38:36] Speaker 01: And what do you have to say about that? [00:38:37] Speaker 01: He's saying you can't just say, [00:38:42] Speaker 01: You went out to lunch and you do internet work. [00:38:44] Speaker 01: That's not an import. [00:38:46] Speaker 01: But there are other things that are. [00:38:48] Speaker 01: And we can't figure out, that's what Judge Pillett has been saying consistently. [00:38:51] Speaker 01: What? [00:38:51] Speaker 01: How do you define it? [00:38:53] Speaker 03: Right. [00:38:54] Speaker 03: The internet exemption exempts unpaid internet communications or unpaid internet activity by individuals from coordination. [00:39:02] Speaker 01: And that's permissible in your view. [00:39:05] Speaker 01: That's permissible. [00:39:06] Speaker 03: This is great, isn't it? [00:39:08] Speaker 01: You can't hear us and we can't hear you. [00:39:12] Speaker 03: The Internet exemption is permissible under the statute because its aim was to exempt unpaid activities or perhaps very de minimis costs involved with [00:39:24] Speaker 03: And thus, they wouldn't really constitute signatures under the statute. [00:39:28] Speaker 04: And the commission would say, well, it may not be statutory, but there's a First Amendment concern about people just speaking. [00:39:35] Speaker 04: And if they're not buying advertising or using other paid media, query whether the statute can require disclosures. [00:39:46] Speaker 03: That was not an argument really pressed by the controlling commissioners in this case. [00:39:51] Speaker 03: That seems to be an argument made by Mr. Goodman in his amicus brief. [00:39:56] Speaker 03: But the statute doesn't provide for any exemptions of, I'd call it a significant expenditure from regulation as a coordinated expenditure if indeed it was made in cooperation concert or consultation with a candidate. [00:40:08] Speaker 03: Now, to your point, Judge Edwards, about inputs, [00:40:12] Speaker 03: The rules in exempted internet communication, unpaid internet communication, they do not discuss inputs at all. [00:40:18] Speaker 03: All the rules, the regulations, are silent test inputs. [00:40:21] Speaker 03: Now it is true that in various other agency guidance, there has been some consideration about whether costs associated with the dissemination of a communication should be assumed in the exemption. [00:40:37] Speaker 01: If the notion of import in the prior cases is this legitimately a part of an expenditure that is exempt. [00:40:44] Speaker 01: It's just part of it. [00:40:45] Speaker 01: That was the notion. [00:40:47] Speaker 01: And you're not saying that's not a viable notion. [00:40:50] Speaker 01: It is or what? [00:40:51] Speaker 01: Do you agree it's a viable notion? [00:40:54] Speaker 03: I would only state that in FEC past guidance and precedent, [00:40:59] Speaker 03: sometimes on matters that didn't involve coordination, they considered whether an input, which was really not called an input, it was simply a direct production cost of a communication to be deemed part of the cost of communication. [00:41:13] Speaker 03: So insofar as you need a line, I think the only types of inputs, so to speak, that the commission has ever considered part of a communication are those [00:41:23] Speaker 03: Payments that are those costs that pay for the cost of the direct, right? [00:41:32] Speaker 02: Exactly. [00:41:33] Speaker 03: I want to get the line right. [00:41:35] Speaker 03: Those expenditures that directly and exclusively pay for the dissemination or production of our internet communication. [00:41:42] Speaker 04: Dissemination and production? [00:41:44] Speaker 04: Right. [00:41:45] Speaker 01: But production is, that's the fighting area. [00:41:50] Speaker 01: What does that include? [00:41:51] Speaker 01: I'm not expressing a view, I'm just saying that's what we're struggling with. [00:41:54] Speaker 03: It's actually not that difficult. [00:41:56] Speaker 02: How do we have the internet exemption not essentially swallow the purpose behind economic? [00:42:02] Speaker 03: Correct. [00:42:02] Speaker 03: And as I explained in the beginning, insofar as the internet exemption is applied broadly as the confusion fit here, it is the exception that swallows the rule and it does run contrary to [00:42:14] Speaker 03: I am saying that only in past FTC precedent has there been some coverage of direct production costs in the idea of what a communications expenditure is. [00:42:29] Speaker 03: And there's a very easy line. [00:42:31] Speaker 03: that if a payment is directly and exclusively for the dissemination and production of internet communication, then perhaps it can be assumed under that. [00:42:40] Speaker 03: None or very few of the costs or expenditures made by Correct the Record and any direct connection to internet communication [00:42:49] Speaker 03: And certainly weren't exclusively playing for engagement communication. [00:42:52] Speaker 04: I'll just note that when you say directly, how do we under can you give an example sort of concrete examples is paying a staffer to be a full time blogger. [00:43:04] Speaker 04: If I don't pay the person, they're not going to be sitting there doing the blogging. [00:43:09] Speaker 04: Is that a direct expenditure if that's their only job? [00:43:14] Speaker 03: their only job is to engage in internet communications. [00:43:17] Speaker 03: I would say that this CLC has conceded for the point of this case that if a furniture was directly connected to internet communications, that it could be exempted under the rule. [00:43:31] Speaker 03: I think there's a question about whether that comports with the statute. [00:43:34] Speaker 04: Is there, and so you're the main part of the commission's reasoning, the blocking commissioners reasoning that you take issue with is the [00:43:44] Speaker 04: Refusal to parse to a portion cost. [00:43:48] Speaker 04: Let's say somebody's 50% time on [00:43:52] Speaker 04: free internet communication, or 10%? [00:43:55] Speaker 04: Is that where the exception is? [00:43:58] Speaker 03: There's a more basic problem, which is that, as the FEC's Office of General Counsel found, most of correct-the-record spending was not actually communication-specific at all. [00:44:10] Speaker 03: Instead, most of the $9 million in expenditures, and I'm going to quote, went to payroll, salary, travel, lodging, meals, rent, fundraising, computers, equipment, rent tickets, hardware, insurance, office supplies, parking, and shipping. [00:44:21] Speaker 04: You're reading from? [00:44:22] Speaker 03: From the Office of General Counsel's report. [00:44:26] Speaker 03: J.A. [00:44:28] Speaker 03: 189. [00:44:32] Speaker 03: that these were the expenditures that the correct record made and that the controlling commissioners deemed all these categories of spending to be in some way indirectly or even just theoretically connected to individual communication and therefore exempted all of these expenditures even in so far as they were coordinated with the campaign or other purposes. [00:44:56] Speaker 03: I think one other important point is to note that the controlling commissioners did not dispute that there was some completely offline activity going on as well. [00:45:06] Speaker 03: That in addition to these internet communications and the question about what was or what was not input, Correct the Record engaged in huge amounts of spending for rapid response efforts, media outreach, training of surrogates to appear on TV, tracking of other candidates, [00:45:23] Speaker 03: opposition research that was then used in materials for the media in traditional form, not in the internet, and that all of these activities were also coordinated and represented coordinated. [00:45:34] Speaker 03: But they analyze those differently. [00:45:37] Speaker 03: Correct. [00:45:37] Speaker 03: They did not attempt to throw all those expenditures in the bucket of inputs. [00:45:42] Speaker 03: Instead, there, and this was the second finding by the district court, there the commissioners just arbitrarily and capriciously disregarded the factual record that showed that that offline spending was also coordinated with the campaign. [00:45:56] Speaker 03: And that ruling was arbitrary and capricious. [00:46:00] Speaker 03: It did not really rely upon an interpretation of statute. [00:46:03] Speaker 03: It simply was the trolling commissioners [00:46:06] Speaker 03: in our eyes, analysis of the factual record about whether there was reason to believe that those activities had been coordinated. [00:46:13] Speaker 03: To your point about what is a [00:46:19] Speaker 03: permissible exemption of what I'd call direct production costs. [00:46:23] Speaker 03: The problem was is that Correct the Record appeared to be coordinating all of its activities. [00:46:28] Speaker 03: The general counsel found systemically its activities. [00:46:31] Speaker 03: It may be the only denial we'd ever seen was that perhaps there was some measure of non-coordination with respect to the surrogate training. [00:46:39] Speaker 03: But Correct the Record never denied in its actual administrative proceedings response that it had [00:46:46] Speaker 03: coordinated all of these expenditures because their view was that if you funnel everything through unpaid Internet that that was only one of its theories. [00:46:55] Speaker 03: That was part of the problem with the control. [00:46:57] Speaker 03: It was only one of the one that was only one of it. [00:47:00] Speaker 01: Okay. [00:47:01] Speaker 03: Legal theories for why it hadn't engaged in coordinated spending. [00:47:05] Speaker 03: Uh, the controlling commissioner. [00:47:07] Speaker 03: One of the other reasons that the [00:47:09] Speaker 03: respondents gave for why their coordinated spending was not a coordinated expenditure was that they believed that all of their media outreach and all of their press relations should have fallen into the media exemption. [00:47:21] Speaker 03: So it was another legal excuse. [00:47:23] Speaker 03: It was not a dispute of the facts. [00:47:24] Speaker 03: That was so obviously wrong. [00:47:26] Speaker 03: The media exemption applies only to the media that the controlling commissioner has basically just ignored that entire legal [00:47:33] Speaker 03: defense and ignored the fact that, correct the record, had essentially tacitly or really openly admitted that it had coordinated that press outreach activity, those rapid response efforts, et cetera. [00:47:46] Speaker 01: You've already won the case on disaggregation. [00:47:49] Speaker 01: There has to be a disaggregation. [00:47:51] Speaker 01: One of the questions that's usefully raised by Goodman is, be careful what you do about the internet exemption and carefully address [00:48:01] Speaker 01: the question about what is a legitimate input. [00:48:04] Speaker 01: I mean, that's the thing we're struggling with here. [00:48:08] Speaker 03: Correct. [00:48:09] Speaker 03: And the district court found that the controlling commissioner's exemption of every single category of correct record spending as an input was contrary to law. [00:48:19] Speaker 03: It did not direct the agency to come up with any particular new rule. [00:48:25] Speaker 03: It just said that this ruling, contrary to law, [00:48:28] Speaker 04: Nor did it really hypothesize about a standard. [00:48:31] Speaker 03: It just said. [00:48:32] Speaker 03: Well, it actually even said the expert agency is directed to come up with its own standard. [00:48:38] Speaker 03: But it must be reasonable. [00:48:39] Speaker 03: It must comport with the statute. [00:48:41] Speaker 03: And it must properly analyze the evidence. [00:48:43] Speaker 03: So it wasn't so much that the district court dictated any result. [00:48:47] Speaker 03: It just said that your current analysis is contrary to law or mandated it back to the agency. [00:48:52] Speaker 03: So I don't think that it's really [00:48:57] Speaker 03: conceivable that the district court overreached because it didn't actually tell the commission how exactly it was supposed to analyze inputs for the internet exemption altogether. [00:49:07] Speaker 01: In my read, you can read the district court's opinion to be questioning the internet exemption. [00:49:12] Speaker 01: I don't think that's, that's what I was curious to hear what you had. [00:49:15] Speaker 01: And I think the district court, if that's what it did, it was a mistake. [00:49:19] Speaker 01: If proper inputs and what is an input [00:49:22] Speaker 01: Is the question we've been struggling with Lord knows how long this morning, but that's different from whether the Internet exemption is permissible. [00:49:32] Speaker 03: And just to clarify, the plaintiffs did not challenge the Internet example. [00:49:37] Speaker 01: You haven't, but we still have the district court's opinion in front of us. [00:49:40] Speaker 04: So to the extent the district court said to comply with the statutory language, the internet exemption must be meaningfully bounded. [00:49:47] Speaker 04: Otherwise committees could avoid reporting almost any coordinated expenditure merely to that what you are defending is that it needs to be meaningfully bounded. [00:49:59] Speaker 04: Otherwise it can't be squared with the statutory text, not to mention the purpose and send it back. [00:50:05] Speaker 04: Or would you advise that we give more concrete guidance [00:50:09] Speaker 03: Well, I think that the nature of the sports review is simply whether or not the district court was correct in finding the controlling commissioner's rationale for dismissal contrary to law or not. [00:50:23] Speaker 03: As I said, the district court left it to the commission to [00:50:28] Speaker 03: finally sketch out a better line between what would be an exempt input and a not exempt input. [00:50:33] Speaker 03: And I'll quote the opinion because it says, the court leaves it to the expert to commission on remand to sketch the bounds of the internet exemption and more fully analyze the facts before it. [00:50:42] Speaker 03: That exception must have real bounds, however, and the clear evidence of coordination discussed above shall inform the commission's analysis. [00:50:48] Speaker 03: So it just directed the commission to come up with a standard that comported with the statute, statute's purposes, and its own regulatory guidance. [00:51:01] Speaker 03: Another important point is that the district court found that the controlling commissioners did not comport with the FEC's own rules, rulemaking, and past decisions. [00:51:12] Speaker 03: That it attempted to defend its capacious [00:51:18] Speaker 03: expansion of the Internet exemption based upon FTC, past president, but the district court also looked at that and found that it tried to no support for the idea that the Internet exemption should assume basically every category of a super PACs spending on theory that they were theoretically inputs to that Internet communication. [00:51:46] Speaker 04: Thank you. [00:51:54] Speaker 04: Mr. Miller, you sought to retain rebuttal time. [00:51:58] Speaker 04: We ate it all up with our questions, but we'll hear from you for two minutes on rebuttal. [00:52:03] Speaker 00: Thank you, Your Honor. [00:52:04] Speaker 00: And three quick, very quick points, I think, and then any questions. [00:52:09] Speaker 00: Just a quick point on the standing discussion that was raised by the appellees here. [00:52:15] Speaker 00: And it's just that from [00:52:18] Speaker 00: standing isn't a status you obtain and then all of your claims and all of the relief that you seek flows from that. [00:52:25] Speaker 00: It's analyzed by claim and by relief sought. [00:52:28] Speaker 00: And so I think that the fact that they have informational standing doesn't allow them to bring in the other claims. [00:52:36] Speaker 04: Not providing that standing. [00:52:38] Speaker 04: They're arguing there was no reason to believe the commission is not bound by standing. [00:52:42] Speaker 04: The commission has obligations under this statute. [00:52:44] Speaker 04: I'm not sure what your [00:52:46] Speaker 04: point is, we're not going to direct the commission to limit its consideration. [00:52:50] Speaker 04: I mean, I would assume we wouldn't. [00:52:51] Speaker 04: We don't have the authority to do that. [00:52:53] Speaker 00: Right. [00:52:53] Speaker 00: I just was pointing out that the contribution limits and source limitations that were not part of. [00:52:59] Speaker 00: Yeah, but she's not fighting that. [00:53:01] Speaker 00: OK. [00:53:02] Speaker 00: And the police also raised the point about the statute itself and the statute itself, the reach of the statute itself going beyond the [00:53:17] Speaker 00: on being distinct from the regulation. [00:53:19] Speaker 00: And the debate here in this case has been about the definitions of expenditure and coordination, which are in the regulations and are part of the regulatory exemption for the internet exemption. [00:53:34] Speaker 00: So I just wanted to emphasize that the debate, the disagreement in this case, hinges on the definitions that give meaning to the statute. [00:53:44] Speaker 00: And that's where the litigation has been focused. [00:53:50] Speaker 00: And then, lastly, Apollice were arguing about the coordination status. [00:53:58] Speaker 00: And I did want to point out that the Stat statement of reasons analyzed that transaction by transaction looked at [00:54:05] Speaker 00: not whether there was some broad statement that we worked closely with the campaign, but looked at whether there was coordination based on the particular activities. [00:54:15] Speaker 00: And they found that to be a better approach because people often make statements about what they're doing, but they relied on evidence about what was actually taking place. [00:54:29] Speaker 04: Thank you. [00:54:30] Speaker 04: The case is submitted.