[00:00:00] Speaker 00: Case number 22-5277, Dan Citizen, P.A.C., Appellant, versus Federal Election Commission, and New Republican, Mr. Hancock, for the Appellant, Mr. Porchinski, for the Appellee, New Republican, P.A.C. [00:00:18] Speaker 05: Good morning, Your Honors. [00:00:19] Speaker 05: May it please the Court, Kevin Hancock, for the Appellant, and Citizens United. [00:00:25] Speaker 05: This case involves a challenge to the Federal Election Commission's dismissal of two administrative complaints alleging campaign finance violations. [00:00:33] Speaker 05: First, in the matter involving the candidacy and soft money complaint, the district court erred by determining that the FEC's dismissal was unrevealable under this court's decision in new models. [00:00:45] Speaker 05: Second, in the matter involving the coordination complaint, the district court erred by determining that the FEC's dismissal was not contrary to law. [00:00:53] Speaker 05: I'll address the soft money and the candidacy complaint first. [00:00:58] Speaker 05: The dismissal of that complaint is reviewable because the statement of reasons issued by the Federal Election Commission did not invoke prosecutorial discretion as an independent basis for the dismissal. [00:01:10] Speaker 05: Instead, the statement of reasons purported exercise of prosecutorial discretion is entirely dependent upon the statement's legal determination. [00:01:19] Speaker 05: that deciding whether someone is a candidate requires probing their subjective intent. [00:01:24] Speaker 01: How could it matter even if the blocking commissioners, the three commissioners, had invoked prosecutorial discretion because they don't act for the commission? [00:01:35] Speaker 01: I thought the commission can only act by a four-member majority. [00:01:40] Speaker 05: Well, Your Honor, in our argument in the alternative where we [00:01:46] Speaker 05: We argue that new models, that a court should follow precedent prior to new models, because it conflicts with prior precedent. [00:01:54] Speaker 05: And so in that argument, we would agree, although our argument distinguishing new models is operating under the fact that new models controls. [00:02:05] Speaker 05: We think new models is distinguishable, so it's not necessary to reach whether new models should be followed under the Sierra Club precedent. [00:02:15] Speaker 04: Let me tell you. [00:02:16] Speaker 04: how I read the order and tell me if you think this is fair. [00:02:22] Speaker 04: Not 100% clear, but they start with an extended analysis of whether there is sufficient evidence of the soft money violation. [00:02:38] Speaker 04: And then after they conclude no, [00:02:42] Speaker 04: they have, they talk about prosecutorial discretion and they address several different factors. [00:02:49] Speaker 04: The lack of evidence that they've talked about and then several more, the wide ranging, costly and invasive nature of the inquiry, the backlog of cases, the impending statute of limitations, throw everything in the mix and say prosecutorial discretion that fair [00:03:12] Speaker 04: The one thing I mean, I guess where I'm going with this, it seems to me like that would be a very typical analysis of prosecutorial discretion. [00:03:22] Speaker 04: Like you wouldn't expect it to be dramatically sealed off from the merits analysis. [00:03:30] Speaker 05: Well, I guess I have a few. [00:03:35] Speaker 05: A few cripples with your honor's description of the same reason. [00:03:38] Speaker 05: So first, I think the discussion of the evidence leading up to that last page to 90 that discusses discretion. [00:03:45] Speaker 05: Right. [00:03:45] Speaker 05: That discussion goes to whether then Governor Scott became a candidate in 2018. [00:03:51] Speaker 05: They discussed the poll that was conducted in 2018. [00:03:53] Speaker 05: Right. [00:03:54] Speaker 05: Other possible indications. [00:03:56] Speaker 05: And then at the top of that last page, JA290, the statement says, it acknowledges that there's significant evidence of Scott's potential earlier candidacy during the seven month period. [00:04:08] Speaker 05: You're on 290 now? [00:04:09] Speaker 05: That's correct, yes. [00:04:11] Speaker 05: Second sentence from the top. [00:04:13] Speaker 05: So the statement acknowledges that there's significant evidence that Scott possibly was a candidate earlier during his seven month term of chair, which occurred in 2017. [00:04:23] Speaker 05: And then the next sentence, the commission effectively says, well, we're not going to look into that because of illegal information, because it would be necessary to probe his subjective intent to determine whether during that seven month period, he in fact became a candidate. [00:04:37] Speaker 05: And because, because we believe that [00:04:41] Speaker 05: is the legal standard, that would require a long, costly, invasive investigation. [00:04:46] Speaker 04: I mean, that it bears that sentence you just read bears on the merits, but it also bears on prosecutorial discretion, which is the topic sentence for that paragraph. [00:04:58] Speaker 04: So it seems to me hard to unscramble. [00:05:01] Speaker 05: I agree that the sentence bears on both, but the critical point here is the relationship between the legal analysis and the invocation of prosecutorial discretion. [00:05:10] Speaker 05: So I would compare that with what occurred in the new models case. [00:05:14] Speaker 05: So there, the court was very clear that prosecutorial discretion was offered in that statement of reasons in addition to the legal analysis, and that the two were distinct independent grounds for dismissal. [00:05:27] Speaker 05: And so the court there explains that because there's [00:05:30] Speaker 05: no law to apply in analyzing the discretionary grounds. [00:05:36] Speaker 05: And if we analyze the legal grounds, we would risk an advisory opinion because the discretion is an independent basis for dismissal. [00:05:43] Speaker 05: That's not the case here because the relationship between the legal analysis and the discretion is dependent. [00:05:50] Speaker 05: Everything springs from the statements incorrect reading of the law that the standard is a subjective one. [00:05:56] Speaker 05: Um, and the later concerns regarding the statute of limitations and so on and so forth, uh, are all expressly dependent upon the notion that a long costly and invasive investigation would be necessary to help subject. [00:06:11] Speaker 02: Mr. Hancock in the, on page two 90, the second paragraph, I mean, that does not seem to be connected to any legal analysis. [00:06:20] Speaker 02: I mean, these are, [00:06:22] Speaker 02: Pretty much just straightforward concerns, right? [00:06:25] Speaker 02: The fact that there are a number of matters nearing the end of their statute of limitations. [00:06:30] Speaker 02: The commission's only had a quorum. [00:06:32] Speaker 02: It was without a quorum for a long time, and so therefore really has to prioritize different enforcement actions. [00:06:38] Speaker 02: I mean, why isn't this a standalone invocation? [00:06:42] Speaker 05: Because the particular language used by the commissioners indicates a dependent relationship between the proceeding paragraphs, legal analysis, and those discretionary factors. [00:06:57] Speaker 05: Sorry, the commission, in the first sentence again, references the expensive and resource-consuming investigation that it thought would be required by its misunderstanding of the legal standard, the need to promote subjective intent. [00:07:09] Speaker 05: And then all the follow-on concerns about the statute of limitations and so on and so forth, all are a result of their understanding that this long invasive cumbersome investigation would be necessary. [00:07:23] Speaker 05: To put it differently, we don't know whether the commission still would have exercised or been concerned about those prudential and discretionary factors had it correctly understood the legal standard to only require an objective analysis, objective [00:07:39] Speaker 01: I have a question about the scope of the stated discretionary factors in the in the blocking commissioners statement as to matter under review 7370. [00:07:55] Speaker 01: If you look at the controlling commissioner's conclusion, it seems to me they only invoked prosecutorial discretion with respect to the quote allegations that Scott and his campaign committee failed to timely file candidacy and organization forms. [00:08:10] Speaker 01: So just a subset of those 7370 allegations and of course also not including the matter under review 7496 allegations. [00:08:21] Speaker 01: It seems like there's a, there's a, [00:08:24] Speaker 01: split even within 7370 with respect to what's being dismissed on. [00:08:33] Speaker 01: discretionary grounds and what's not. [00:08:36] Speaker 05: I think that's correct, Your Honor. [00:08:37] Speaker 05: The statement does exercise prosecutorial discretion very specifically in three different places, including the place, Your Honor, identified only as to the candidacy claims. [00:08:48] Speaker 05: And as the district court correctly recognized, did not exercise prosecutorial discretion with regard to the 7496 complaint, the coordination claims, and thus reached the merits of that complaint. [00:09:00] Speaker 01: So if we were to [00:09:03] Speaker 01: rule even under new models, we should hold that the discretion applies only to the candidacy. [00:09:13] Speaker 05: That's correct, Your Honor. [00:09:14] Speaker 05: I think that this record determines that because the candidacy claim is a prerequisite for the soft money claim that [00:09:22] Speaker 01: That exercise of prosecutorial discretion for the candidacy claim prevented it from then going forward and reaching the merits of the... But that's a merits point with respect to the non-candidacy claims in 7370, right? [00:09:38] Speaker 01: As opposed to a threshold, no review because discretion. [00:09:42] Speaker 04: That's correct, yes. [00:09:46] Speaker 04: But don't the... [00:09:49] Speaker 04: subset of claims in 7370 that bear on the initial filings um and the subset that bear on the soft money don't they turn on the same question which is when the governor became a candidate [00:10:11] Speaker 05: to find assault money violation. [00:10:14] Speaker 05: It is necessary to determine first that the governor had become a candidate. [00:10:19] Speaker 04: So, you know, I had, I noticed the same thing Judge Piller did about you can read some of this language as invoking prosecutorial discretion for only a subset of 73 70. [00:10:35] Speaker 04: But is there any, um, [00:10:37] Speaker 04: Is there any logic that would support that, that a rational commission might think the soft money issue is just a merits one and the paperwork filing issue is prosecutorial discretion one? [00:10:56] Speaker 04: I couldn't think of one. [00:10:57] Speaker 04: I thought they all just flowed from a question when he became a candidate. [00:11:02] Speaker 05: I'm not exactly sure, Your Honor. [00:11:03] Speaker 05: And for what it's worth, we did argue below before the district court that [00:11:07] Speaker 05: that the exercise of prosecutorial discretion was just limited to the candidacy claim and did not also reach the soft money claim. [00:11:17] Speaker 05: I didn't think, did you argue that here? [00:11:20] Speaker 04: I thought your theory was mainly what you said earlier, which was discretion and marriage. [00:11:26] Speaker 05: We were more focused on how prosecutorial discretion was not exercised as to the coordination claim, the coordination complaint. [00:11:34] Speaker 05: Okay. [00:11:35] Speaker 05: At the end of the day, I'm not sure the distinction matters too much, again, because of the need to determine Governor Scott was a candidate prior to them determining that the Republican or Scott may have violated the soft money ban. [00:11:48] Speaker 01: You're talking only about 7370 because on the other one, there's some coordination claims following even when your opponents claim, I mean, when he announced. [00:12:01] Speaker 05: That's correct. [00:12:02] Speaker 05: And that's a critical reason why [00:12:04] Speaker 05: the district court erred with regard to the coronation claim, because in footnote two of the statement of reasons, the commission appears to dispose of the coronation claims on a misunderstanding of the law, under the misunderstanding that it was necessary to find a candidacy or soft money violation first before finding coronation violations. [00:12:27] Speaker 05: That is an error of law, and New Republican doesn't even claim that that is correct, nor did the district court. [00:12:33] Speaker 02: Can you say more about why that would be an error of law, assuming that the commission didn't dismiss that complaint of prosecutorial discretion? [00:12:40] Speaker 05: Of course, Your Honor. [00:12:41] Speaker 05: So the merits of the coordination complaint do not require that the commission determine that Governor Scott was a candidate in 2017, even assuming Governor Scott did not become a candidate until March 26, 2018, when he admits doing so. [00:13:01] Speaker 05: There still could be a coordination violation. [00:13:04] Speaker 05: There could have been coordination between Senator Scott and his agents after that date. [00:13:10] Speaker 05: or he could have coordinated prior to that and said, okay, when I become a candidate later on, here are my needs, here are my plans, here is the ad that I would like you to run, a request or suggestion is the legal standard under the commission's regulation. [00:13:25] Speaker 05: That could have occurred regardless of, even assuming Governor Scott became a candidate on March 26 when he admits to himself. [00:13:33] Speaker 01: The point is that there were expenditures after he became, totally became a candidate? [00:13:38] Speaker 05: I apologize, Your Honor. [00:13:39] Speaker 05: Could you? [00:13:40] Speaker 01: The point is that there were expenditures after he became a publicly announced candidate. [00:13:45] Speaker 05: That's correct. [00:13:46] Speaker 05: In May and June, the Super PAC New Republican made independent expenditures in support of his campaign. [00:13:51] Speaker 02: Isn't the prohibition on coordination, doesn't that apply only to candidates? [00:13:59] Speaker 05: So the standard is not clear. [00:14:02] Speaker 05: So Senator Scott became a candidate. [00:14:04] Speaker 05: Eventually. [00:14:05] Speaker 06: That's undisputed. [00:14:06] Speaker 05: Yes. [00:14:07] Speaker 05: I don't think it's clear whether it's required that Senator Scott had been a candidate at the time of making a request or suggestion. [00:14:16] Speaker 05: It could be sufficient that he became a candidate later on. [00:14:19] Speaker 05: The commission was presented with that question in the Senate Majority PAC advisory opinion cited in the complaint and deadlocked. [00:14:28] Speaker 02: But even assuming... So under our precedence, to find something is contrary to law has to be an impermissible reading of the statute. [00:14:38] Speaker 02: So is the, I mean, if the controlling commissioners believe there's a link between the two different complaints, is that an impermissible reading of the statute? [00:14:47] Speaker 02: Maybe you think it's not the best reading of the law, but is it an impermissible one? [00:14:53] Speaker 05: I think it's impermissible because it's undisputed that had Senator Scott coordinated with the Super PAC with regard to the independent expenditures after March 26th, when he became a candidate, that that would be a violation. [00:15:06] Speaker 02: And there's no, I don't think they don't doubt. [00:15:07] Speaker 02: I don't think anyone can test that that would be a violation. [00:15:11] Speaker 05: Correct. [00:15:11] Speaker 02: But so before March, doesn't it turn on whether he was in fact a candidate at that point? [00:15:16] Speaker 05: I don't think the commission has taken a clear stance on that question. [00:15:20] Speaker 05: But footnote two doesn't hinge upon that distinction. [00:15:23] Speaker 05: It just says categorically, because we did not find a candidacy violation or a soft money violation, we are required to dispose of these other claims. [00:15:33] Speaker 02: I think under Orlowski and some of our other cases, to show that it's contrary to law, you have to show that there was an impermissible reading. [00:15:43] Speaker 02: And it seems here there's some ambiguity on your part. [00:15:48] Speaker 05: Respectfully, Your Honor, I think after that March 26th date, there's no ambiguity. [00:15:54] Speaker 05: There's nothing in the, to state it differently, there's nothing in the [00:16:00] Speaker 05: the regulation, the applicable regulation that says that there has to have been a soft money violation prior to the coordination. [00:16:07] Speaker 05: Indeed, these were two distinct complaints filed at two separate times. [00:16:12] Speaker 05: Presumably, the only reason why they're together in the same statement of reasons is because they involve common facts. [00:16:18] Speaker 05: They could have been separated out. [00:16:21] Speaker 04: Suppose we agree with you that footnote 2 is not enough to resolve the coordination claim against you. [00:16:32] Speaker 04: What do you do with footnote 25, which seems to endorse a different and probably better rationale, which is the OGC found insufficient evidence [00:16:49] Speaker 04: to go forward at that time. [00:16:52] Speaker 04: They recommended holding it in case something turned up going forward on the other claim. [00:16:58] Speaker 04: Um, commission has just decided not to go forward on the other claim, so they only have the evidence that they have on coordination and they say they agree with O. G. C. There's not there. [00:17:13] Speaker 05: I think there are a number of problems with footnote 25. [00:17:16] Speaker 05: The first one is that it incorporates footnote 2. [00:17:19] Speaker 04: It cites the footnote 2 and references what we believe is the error of law made in... But just to identify the allegations of the second matter. [00:17:31] Speaker 05: The general counsel's report that is cited by that footnote [00:17:36] Speaker 05: doesn't support the commission's dismissal because the general counsel did not actually recommend dismissal. [00:17:42] Speaker 05: The general counsel, the district court fundamentally misunderstood what the general counsel's recommendation was. [00:17:48] Speaker 01: But I think what Judge Casas is pointing out is in the circumstances of the recommendation, which said, let's go ahead with the candidacy claims and this will follow along and maybe more things will come out. [00:18:00] Speaker 01: And if you read it that way, then the recommendation [00:18:05] Speaker 01: is no longer supported on that ground for these blocking commissioners when they've decided not to do it on the candidacy. [00:18:17] Speaker 05: Right. [00:18:17] Speaker 05: So as to the evidence discussed in the FGCR, we think it's not... The general counsel actually cites to its discussion of the evidence. [00:18:31] Speaker 05: It says, as discussed above, [00:18:33] Speaker 05: The available information shows that Scott was involved with New Republican past 2017. [00:18:40] Speaker 05: And it refers back. [00:18:42] Speaker 05: And there are pages of analysis in the general counsel's report preceding that page. [00:18:47] Speaker 05: And I believe that page is 232 in the JA. [00:18:51] Speaker 05: Discussing the relationship, the intertwined relationship between Scott and the super PAC. [00:18:58] Speaker 05: And then notes, well, we don't have direct evidence. [00:19:00] Speaker 05: We don't have evidence of Scott specifically making a request or suggestion. [00:19:04] Speaker 05: So let's see, pending this investigation, whether new evidence comes to light. [00:19:12] Speaker 05: That doesn't reasonably support the idea that there's no reason to believe or dismissal, because the general counsel could have taken that step. [00:19:20] Speaker 05: The general counsel could have said, [00:19:23] Speaker 05: We recommend, no reason to believe, we recommend the commission dismiss these claims for lack of evidence right now. [00:19:31] Speaker 01: And so the right way to go on that would be there's an error of law. [00:19:37] Speaker 01: Send it back and see how the commission would act on this. [00:19:43] Speaker 05: Yes. [00:19:44] Speaker 05: Yes. [00:19:49] Speaker 05: In addition, they cite the affidavit submitted by Ms. [00:19:52] Speaker 05: Hazelwood. [00:19:54] Speaker 05: We think the district court also erred in placing weight upon that affidavit that the affidavit cannot bear. [00:20:02] Speaker 05: So first, the statement of reasons issued by the commission doesn't actually rely upon the Hazelwood affidavit as it pertains to the coordination claims. [00:20:10] Speaker 05: It states the claim in the Hazelwood affidavit, but it doesn't credit it. [00:20:14] Speaker 05: In fact, other parts of the FGCR discredit the Hazelwood affidavit. [00:20:19] Speaker 05: And the district court erred by claiming that the affidavit flatly denies any coordination. [00:20:24] Speaker 05: That is not what that affidavit does. [00:20:26] Speaker 05: That affidavit says Ms. [00:20:28] Speaker 05: Hazelwood did not directly coordinate with Governor Scott, but [00:20:34] Speaker 05: there are many other avenues to coordination that are not covered by that statement in the affidavit. [00:20:39] Speaker 04: Well, it says neither governor Scott nor any representative or agency in committee is involved. [00:20:48] Speaker 04: And I'm sorry, your honor. [00:20:52] Speaker 04: If I'm reading at the end, there's an extraneous not clearly. [00:20:58] Speaker 04: Right. [00:20:58] Speaker 05: Right. [00:21:00] Speaker 04: That last sentence. [00:21:01] Speaker 05: In the last paragraph of the affidavit, Ms. [00:21:05] Speaker 05: Hazelwood does state that she conferred with other people contracted by the political committee, personnel, consultants and counsel, etc. [00:21:13] Speaker 05: It's not disputed that the record demonstrates that Governor Scott, when he became chair of the Super PAC, hired his former [00:21:25] Speaker 05: um, advisors and, and folks he'd worked with prior to that to work for the Super PAC. [00:21:32] Speaker 05: So folks that could have been his agent, um, in terms of knowing his plan, his future potential future plans for candidacy were working for the Super PAC. [00:21:42] Speaker 05: And Ms. [00:21:42] Speaker 05: Hazelwood, um, says, you know, I did confer with those folks. [00:21:49] Speaker 01: We'll give you a little time for rebuttal. [00:21:51] Speaker 05: Thank you. [00:22:04] Speaker 03: Morning, Your Honor. [00:22:04] Speaker 03: May it please the court, Jason Torchinsky. [00:22:10] Speaker 03: Good morning, Your Honors. [00:22:11] Speaker 03: Jason Torchinsky for New Republic. [00:22:12] Speaker 03: May it please the court. [00:22:15] Speaker 03: Controlling circuit precedent compels deferments here. [00:22:17] Speaker 03: Both new models and Commission on Hope say that dismissals, even based in part on prosecutorial discretion, are unreviewable through this path. [00:22:27] Speaker 03: And as a result, the district court should be affirmed with respect to its dismissal of the complaint challenging the commission's prosecutorial discretion. [00:22:34] Speaker 03: And then the district court was correct to conclude that 7496 on its merits was sufficiently reasonable to be accepted. [00:22:41] Speaker 03: And for that reason, this court should affirm the district court's [00:22:43] Speaker 01: It's really extraordinary and difficult for us not to have the commission here today. [00:22:48] Speaker 01: And I realize that also puts you in a difficult position. [00:22:54] Speaker 01: You talk about clear precedent requiring a dismissal where prosecutorial discretion is involved, but we also have to grapple with the Supreme Court's decision in Aiken's which held inapplicable. [00:23:08] Speaker 01: Cheney's rebuttable presumption against judicial review of exercises of non-enforcement discretion, because the statute explicitly provides to the contrary. [00:23:20] Speaker 01: And in Aiken's, as the statement of reason said, the FEC invoked prosecutorial discretion, as the Solicitor General said in arguing that case before the Supreme Court, there was an invocation of prosecutorial discretion [00:23:38] Speaker 01: there. [00:23:38] Speaker 01: And the Supreme Court in the decision addressed that prosecutorial discretion was not in the context of this unusual act where there's an equally divided commission that heckler doesn't apply. [00:23:57] Speaker 01: So we have some circuit precedent. [00:24:00] Speaker 01: And then we also have a higher court saying to the contrary, [00:24:06] Speaker 03: Your Honor, I think Akins obviously has been a debate on this court going back to the Commission on Pope cases and the new models cases. [00:24:13] Speaker 03: And I think Judge Rao in the new models one opinion really squarely addressed Akins and basically said Akins stands for the proposition that the petitioners there had standing the challenge. [00:24:24] Speaker 01: Right, but A for Sherry, they have standing because [00:24:29] Speaker 01: the claim, notwithstanding an exercise of a claim of prosecutorial discretion on the part of the commissioners, is judicially reviewable in a private party suit and therefore redressable. [00:24:43] Speaker 01: So standing there brings in the question, what's reviewable and what's not? [00:24:50] Speaker 01: When can a private party sue? [00:24:52] Speaker 01: And if that's the premise for the standing determination, it's a necessary aspect of the court's holding. [00:24:57] Speaker 03: I think the way I read that case is that the standing determination was based on essentially whether they were seeking information that they wouldn't otherwise have if they had prevailed in front of the commission. [00:25:07] Speaker 03: But on page 25 in Akins, the court talks about how the FEC may well have dismissed had there been prosecutorial discretion asserted. [00:25:16] Speaker 03: And then the line that you quoted about saying that the FEC statute was different appears on page 26. [00:25:22] Speaker 03: So there's a little bit of an internal contradiction inside Akins [00:25:26] Speaker 03: um, where it sort of indicates that there's prosecutorial discretion available to the commission, but then says, you know, the FECUS section is a little bit different, but I don't read Akins to foreclose, uh, the FEC's exercise of prosecutorial discretion and clearly this, this court... No, no, it's just saying we would have to send it back. [00:25:46] Speaker 01: because on the correct view of the law, instead of us trying to define what they would do on the correct view of the law, and that's very opposite to this case, right? [00:25:57] Speaker 01: We should send it back and see whether the commission would still have decided in the exercise of its discretion not to require the production of the information. [00:26:08] Speaker 03: Right, but if the court had agreed with the view the prosecutorial discretion was foreclosed by the FEC, why would the court have suggested that the commission had the prosecutorial discretion option even upon remand? [00:26:18] Speaker 01: No, no, it's not that prosecutorial discretion is foreclosed. [00:26:22] Speaker 01: It's what's the implications for judicial review and for the private right of action. [00:26:26] Speaker 01: And what they're saying is they're sending it back. [00:26:28] Speaker 01: And when they commission by a legally operative, [00:26:34] Speaker 01: for member or majority vote exercises prosecutorial discretion, then that is different. [00:26:41] Speaker 01: But here, there's a statement of discretion by people not even acting, can't legally act for the agency. [00:26:49] Speaker 01: It's very odd to say we would use very deep deference to their thinking when it's... Except that the way Congress has structured the FEC under FECA requires for or from the votes to take action. [00:27:03] Speaker 03: If Congress had wanted a 3-3 vote to proceed, it would have written the statute differently. [00:27:08] Speaker 03: And I think that's where I sort of disagree a little bit with your position that four of us were required to exercise prosecutorial discretion. [00:27:17] Speaker 03: That's not the way Commission on Hope or new models interpreted. [00:27:21] Speaker 01: Right, I realize that. [00:27:22] Speaker 01: And what I'm trying to understand is how the position that leaves us in. [00:27:26] Speaker 01: I mean, you know, because I've written about this, that I think that the Commission on Hope took a wrong turn that was in conflict with [00:27:34] Speaker 03: And I think you go back to the DCCC case from 1987 that then Judge Ginsburg wrote, you know, that was an interesting split because it was three to proceed, two for prosecutorial discretion, and one who abstained. [00:27:49] Speaker 03: And clearly, they didn't have the four votes. [00:27:51] Speaker 03: So even going back to around the time of Akins, this court didn't seem to take the view that four were required to exercise prosecutorial experience. [00:28:00] Speaker 01: But there, they reject, in the Ginsburg star nice decision, they reject Hector. [00:28:09] Speaker 01: They reject the notion that there is nothing to review. [00:28:12] Speaker 01: They send it back and say, we need to know. [00:28:15] Speaker 01: You know, there's no bar in DCCC, no bar on review of a deadlock. [00:28:22] Speaker 01: They respond to the FEC, which said, this decides nothing. [00:28:25] Speaker 01: And they say, well, [00:28:27] Speaker 01: Actually, the fact that they've said it's simply an exercise of prosecutorial discretion is not a bar to our review. [00:28:33] Speaker 01: So we're talking about a jurisdictional question here. [00:28:36] Speaker 01: And the issue is, it's a gate to the private right of action. [00:28:41] Speaker 01: It's not that the FEC in any way lacks discretion whether it proceeds. [00:28:47] Speaker 01: But all of this, of course, has to do with what is the nature of what a private plaintiff needs to exhaust in order to proceed with a private right of action. [00:28:57] Speaker 03: Your Honor, the private right of action sort of invocation in FICA was extremely rarely used prior to 2013. [00:29:05] Speaker 03: Over the preceding 40 years, I think one case had proceeded. [00:29:08] Speaker 03: And there had been plenty of deadlocks that had been reviewed by this court and found sufficiently reasonable to be accepted and not reversed on any kind of review of prosecutorial discretion. [00:29:19] Speaker 01: Do you have cases of 3-3 deadlocks that were reviewed that way? [00:29:22] Speaker 03: I'm really interested in that. [00:29:25] Speaker 03: DCCC was. [00:29:26] Speaker 03: 3, 2, 1. [00:29:28] Speaker 01: If each of us say we were remanded and we didn't say bless the Commission's Act. [00:29:35] Speaker 03: That's right. [00:29:37] Speaker 03: So normally, Your Honor, the commission would be here to defend itself, but what happened here was we didn't have a fourth commissioner available or a fourth commissioner who declined to vote for enforcement and there's [00:29:46] Speaker 03: A number of these cases going through with respect to whether there have been review of 3 free dismissals prior to 2013. [00:29:51] Speaker 03: I would probably need to submit a 28 a letter to the court because they don't have 3 you said 2013 2013, which was about the time that the one commissioner started the commission started declining to defend itself. [00:30:04] Speaker 03: citizens united. [00:30:06] Speaker 02: You're not arguing here that this court lacks jurisdiction over this. [00:30:11] Speaker 02: You're just suggesting that it's unreviewable. [00:30:14] Speaker 01: I misspoke. [00:30:15] Speaker 01: I actually apologize because that's an issue in the case. [00:30:17] Speaker 01: It's not about jurisdiction, but whether it's reviewable. [00:30:20] Speaker 03: That is correct. [00:30:21] Speaker 03: Yes, correct. [00:30:22] Speaker 03: Prosecutorial discretion dismissals are unreviewable. [00:30:25] Speaker 03: It's not that the court lacks jurisdiction. [00:30:27] Speaker 03: It's just that they're unreviewable, essentially under, as Judge Rao has pointed out, under almost a separation of powers [00:30:33] Speaker 03: for deference to the executive agency. [00:30:36] Speaker 01: That's what's so odd to me. [00:30:37] Speaker 01: And my friend Judge Rao has written about this. [00:30:41] Speaker 01: And I, of course, will have an opportunity also to do so. [00:30:45] Speaker 01: But it's hard to understand how it would be a separation of powers problem to honor the commission's decision to stop wherever it seeks to stop. [00:30:58] Speaker 01: and to allow a private party to pursue something with its resources. [00:31:05] Speaker 01: But that the commission chooses not to pursue. [00:31:08] Speaker 03: But the private party provision only comes after a lawsuit like this is filed and [00:31:13] Speaker 03: court determines that the commission acted contrary to law. [00:31:16] Speaker 03: And I think what new models and commission on hope stand for is the proposition that judicial discretion or prosecutorial discretion dismissals aren't contrary to law because as those courts have pointed out, there isn't an applicable standard or justiciable standard for this court to evaluate when it looks at things like the commission cited in the statement of reasons. [00:31:37] Speaker 03: And they say things like, you know, use of agency resources. [00:31:41] Speaker 03: you know, approaching deadlines in other matters, approaching deadlines in the current matter, and what the agency wants to prioritize over other things. [00:31:50] Speaker 03: And I think both Commission on Hope and new models stand for the proposition that courts aren't going to insert themselves into that executive decision. [00:31:59] Speaker 03: And you're right, Judge Pillard, it might well foreclose the ability of private plaintiffs to proceed through the step of being able to file a private lawsuit. [00:32:10] Speaker 03: But guess what? [00:32:11] Speaker 03: Congress is well aware of that. [00:32:13] Speaker 03: It's been the way that that has been adjudged for [00:32:16] Speaker 03: Since he has been adopted and Congress hasn't changed and I so interesting that you you refer to. [00:32:22] Speaker 01: This is where it would be great to have the commission here. [00:32:25] Speaker 01: Did you say there was only. [00:32:28] Speaker 01: So the private right of action was rarely used. [00:32:33] Speaker 01: before 2013. [00:32:35] Speaker 01: And so here's another theory of what the interplay between private action and commission enforcement is. [00:32:41] Speaker 01: That Congress wanted the commission to enforce. [00:32:44] Speaker 01: They wanted the commission to be the primary enforcer. [00:32:47] Speaker 01: They didn't want a lot of private action, because these are cases that are politically charged, and they want to keep them under the control of an agency. [00:32:55] Speaker 01: But they also recognized they had to make the agency [00:32:58] Speaker 01: Part isn't balanced because otherwise enforcement could be politically dominated. [00:33:04] Speaker 01: So they're trying to avoid political domination of enforcement. [00:33:07] Speaker 01: At the same time, they put a priority action in there because they want to avoid stonewall. [00:33:12] Speaker 01: But they design the private right of action in this genius way. [00:33:16] Speaker 01: It turns out not to be so genius, but rather at least where we're at today. [00:33:20] Speaker 01: Not very functional. [00:33:22] Speaker 01: But if you look at the design, it appears that what they're doing is saying, look, FEC, you get every chance. [00:33:31] Speaker 01: If you're acting according to the law and you can manage to act in a nonpartisan way, in a bipartisan way, then you are the exclusive enforcer. [00:33:42] Speaker 01: It's when you act contrary to law and or can't get your act together to do something in a bipartisan way, that's going to open the door for private rights of action. [00:33:56] Speaker 03: Your Honor, I think, I don't think Congress actually intended it to say if you can't get your act together. [00:34:01] Speaker 03: I think, look, FICA is a unique statute, right? [00:34:03] Speaker 03: Because who are the subjects of the enforcement action? [00:34:07] Speaker 03: Members of Congress, right? [00:34:08] Speaker 03: They're candidates for the Senate, they're candidates for the House, they're candidates for the presidency. [00:34:12] Speaker 01: We see a lot of just, you know, organizations that raise money. [00:34:16] Speaker 03: Yes, but all of those involve candidates for office in some way, right? [00:34:21] Speaker 03: So, you know, I think FICA is a unique statute because Congress is uniquely aware of its effects, its interpretation, how it's been sort of accepted or how it's been sort of used in practice, right? [00:34:35] Speaker 03: Because members of Congress, there's no member of Congress except perhaps an appointed senator who didn't go through the FICA process to get to where they are. [00:34:41] Speaker 02: The under enforcement is a feature not a bug. [00:34:44] Speaker 02: Correct. [00:34:46] Speaker 03: Yes. [00:34:47] Speaker 02: So my friend Judge Piller and I may disagree about the meaning of FECA, but I think we both share our frustration that the FEC is not appearing in these cases. [00:34:56] Speaker 02: It would be certainly helpful if the Commission were here. [00:34:58] Speaker 02: But can I ask you about the second complaint? [00:35:01] Speaker 02: Absolutely. [00:35:04] Speaker 02: So I am more skeptical that the second complaint is dismissed on prosecutorial discretion. [00:35:12] Speaker 02: Because the commission suggests it is dismissing the first complaint effectively on prosecutorial discretion. [00:35:20] Speaker 02: And then they provide what looks like a legal reason for dismissing the second one. [00:35:26] Speaker 02: In footnote two, they say that [00:35:28] Speaker 02: You know, if we, if we dismiss the first unprosecutorial discretion, we are required to, you know, that's a threshold legal for the second. [00:35:39] Speaker 03: I think I read that a little bit differently. [00:35:41] Speaker 03: And I also would point you to J272 and 273, which is actually the certification of the vote. [00:35:46] Speaker 03: If you look at those pages, they failed by a three to three vote to dismiss the allegation under Heckler versus Cheney that he failed to [00:35:55] Speaker 03: finally filed a statement of candidacy and he failed to file a statement of organization. [00:35:59] Speaker 03: But then when you look at sub C, sub D, sub E, sub F, and sub G there, where they're actually talking about the merits related to both the soft money complaint and the coordination complaint, which I view as different legal analysis, there's not an invocation of Hepler v. Cheney in the actual certification of the vote there. [00:36:17] Speaker 03: So I think in terms of parsing out what they dismiss on prosecutorial discretion and what they dismiss on merits, I think the trial court got it right because [00:36:27] Speaker 03: a combination of what was in the statement of reasons and what was in the certification of the vote. [00:36:33] Speaker 03: There's a lack of citation to Hecker versus Cheney in the votes on the soft money and the coordination rules. [00:36:39] Speaker 03: And I distinguish those because, you know, pretend there was a break in time, right, when Senator, well, then Governor Scott announced that he was a candidate for Senate. [00:36:49] Speaker 03: If he had been raising money for new Republican while a candidate, that would violate the soft money rules, but it wouldn't necessarily violate the coordination, right? [00:36:57] Speaker 03: It's the act of the advertisements that were aired in May and June that the appellants here are saying violated the coordination. [00:37:06] Speaker 03: And so I think there's a distinction between the soft money question and the coordination question that is critical. [00:37:12] Speaker 03: And I think the commission was struggling with that a little bit. [00:37:14] Speaker 03: And I think the trial court was struggling with that a little bit. [00:37:16] Speaker 03: But I view them as distinct allegations from each other. [00:37:19] Speaker 03: Because you could have had coordination without the soft money. [00:37:24] Speaker 03: If Senator Scott and his team had sat down with the super PAC in May and been like, hey, you run an ad on issue A, and that'll be great. [00:37:33] Speaker 03: And I really hope you do it. [00:37:34] Speaker 03: And here's what I think you should say. [00:37:36] Speaker 03: There would be no soft money allegation raising or spending there. [00:37:40] Speaker 03: It would be a coordination problem and an in-kind contribution to the campaign that would have been unlawful. [00:37:45] Speaker 02: So on those claims, if that's not an exercise of prosecutorial discretion, then is it contrary to law? [00:37:50] Speaker 03: No, because I think what the commission is saying is there was no evidence of any communication between Senator Scott's campaign and the Super PAC related to the May and June ads. [00:38:02] Speaker 03: So on a complete lack of evidence, we are going to decide on the merits that it's not worth, you know, that the commission shouldn't proceed to investigate when there's absolutely, you know, we have a sworn affidavit from the executive director and all we have from the complaints here is speculation. [00:38:17] Speaker 03: And in their words, it may have occurred. [00:38:19] Speaker 03: It might have occurred. [00:38:20] Speaker 03: It could have occurred, but they have no, they have no whistleblower. [00:38:23] Speaker 03: They have no firsthand information. [00:38:25] Speaker 03: They base some of their allegations on press statements to the press by third parties who were not involved with the campaign or with the super PAC. [00:38:34] Speaker 03: And on the basis of lack of evidence, the commission properly concluded that there was nothing, there was no basis on which to proceed. [00:38:41] Speaker 02: Is it your view that lack of evidence is an exercise of prosecutorial discretion? [00:38:47] Speaker 03: I think there's a reading where you could say lack of evidence is prosecutorial discretion, but I also think there's a fair reading to say if there's no evidence here, we shouldn't proceed because there's no evidence here. [00:38:59] Speaker 02: But then do we review that under contrary to law? [00:39:02] Speaker 03: I think there is a fair reading of the statement of reasons. [00:39:08] Speaker 03: where you could say both were dismissed on prosecutorial discretion and therefore nothing here is reviewable. [00:39:13] Speaker 03: I also think the district court wasn't incorrect to separate the two MERS and say one was dismissed on the basis of prosecutorial discretion and the other was based on essentially a merits dismissal because of lack of evidence. [00:39:24] Speaker 03: So I think you could actually read the statement of reasons either way as we said in our brief. [00:39:29] Speaker 03: I also think it was entirely reasonable for the district court to read it the way it did and separate the two matters. [00:39:35] Speaker 02: So if it was a merits determination, why is it consistent with law? [00:39:40] Speaker 02: Or why is it not contrary to law? [00:39:41] Speaker 03: It's not contrary to law because all you need as a district court reviewing that is a sufficiently reasonable basis to be accepted. [00:39:49] Speaker 03: And I think when you go through what the statement of reason says about crediting the affidavit, the lack of any evidence, [00:39:55] Speaker 03: Contrary to the affidavit, it was perfectly acceptable for, you know, pretend this is a criminal case, for a prosecutor to say, look, I've got somebody saying this must have happened. [00:40:04] Speaker 03: I've got somebody saying it didn't in a sworn affidavit. [00:40:08] Speaker 03: The party saying that it must have happened is based on speculation and comments by third parties who have no firsthand knowledge. [00:40:15] Speaker 03: And the only evidence in front of me from anyone who has firsthand knowledge is a sworn affidavit subject to penalty of perjury. [00:40:22] Speaker 03: There's not enough here for me to proceed. [00:40:24] Speaker 03: And I think that was a perfectly reasonable merits determination. [00:40:27] Speaker 03: You could also view that as an exercise of prosecutorial discretion. [00:40:30] Speaker 04: You didn't defend it that way in the red. [00:40:35] Speaker 03: I think in our brief, we acknowledge there was a way to read it that way. [00:40:38] Speaker 03: But I think the way the district court read it was entirely reasonable as well. [00:40:42] Speaker 03: So I think this court could read it either way, because either way we get to the same conclusion, which is summary judgment for a new Republican and dismissal of the [00:40:50] Speaker 04: Can I take you back to the first complaint and just assume we're going to apply? [00:40:56] Speaker 04: If we apply commission on hope and new models, do you, in order to prevail on Heckler versus Cheney, do you need to show that the exercise prosecutorial discretion is independent of legal analysis? [00:41:20] Speaker 03: I don't think that I read Commission on Hope or New Models that way. [00:41:23] Speaker 03: I think an invocation of prosecutorial discretion, regardless of how connected or disconnected it might be from any legal analysis, is sufficient to essentially require the court to acknowledge the exercise of prosecutorial discretion and not proceed. [00:41:40] Speaker 04: Even in a case where the legal considerations and the discretionary considerations are blended together? [00:41:49] Speaker 03: Yes, I think that's correct. [00:41:51] Speaker 03: Uh, based on commission on hope and Numa. [00:41:57] Speaker 01: See, I see your, your response. [00:42:03] Speaker 01: Maybe I'm asking you something you've already answered, but I'm still stumbling on the message of Akins, which seems to say if you have a blended discretionary and legal analysis, we don't assume we can disentangle, but we send it back. [00:42:24] Speaker 01: with a correction of the legal. [00:42:27] Speaker 01: And so the threshold to that is that that doesn't render it unreviewable. [00:42:35] Speaker 01: Because then you end up having law that ossifies. [00:42:40] Speaker 01: So what is the mechanism through which the mixed in legal errors get corrected? [00:42:47] Speaker 03: I think the answer is when there are merits dismissals by the commission on particular issues, those are reviewable under the Contrary to Law standard, and then the courts can set out for the FEC if they've gone beyond the bounds of the law. [00:43:03] Speaker 03: And like you had present here, you know, in 7496, where the trial court said, you know, look, this [00:43:11] Speaker 03: there was a sufficiently reasonable explanation under the law to determine that on the merits, there was no coordination. [00:43:19] Speaker 01: And I think it's... Sufficiently reasonable explanation. [00:43:22] Speaker 03: I think the district court said sufficiently reasonable to be accepted is how the district court read this court's standards for the trial court review. [00:43:30] Speaker 01: Right, and sufficiently reasonable to be accepted is from... That's from our court. [00:43:39] Speaker 03: Yeah, and I think that [00:43:41] Speaker 03: Hold on, I'll tell you exactly where, which is the inside of that. [00:43:51] Speaker 03: I think that goes to the campaign legal center case at 952 F3rd Act. [00:43:58] Speaker 03: I can find the exact page site. [00:44:00] Speaker 03: But the court quoted this court, which quotes back to DSCC, which is the U.S. [00:44:05] Speaker 03: Supreme Court case, quote, in this deferential inquiry, we asked only whether the commission's decision was, quote, sufficiently reasonable to be accepted. [00:44:12] Speaker 01: So yeah, it was DSCC where [00:44:15] Speaker 01: there was action, I think in that case it was unanimous. [00:44:19] Speaker 01: So the notion, or it was certainly a majority. [00:44:22] Speaker 01: So the notion that a standard of sufficiently reasonable to be accepted, which is a highly deferential standard, would apply to a non-majority blocking determination, to the content of it, just seems to me [00:44:39] Speaker 01: to have no rationale whatsoever. [00:44:41] Speaker 03: I've never argued that Congress makes rational decisions when they lay out these statutes. [00:44:46] Speaker 03: Where in the statute do you find that? [00:44:48] Speaker 03: Where you find it is essentially in the statute at 30109 where Congress lays out exactly what requires four votes. [00:44:58] Speaker 03: And dismissals do not require four votes. [00:45:02] Speaker 03: Only decisions to proceed require four. [00:45:04] Speaker 01: Right, but this wasn't a dismissal. [00:45:06] Speaker 01: This was a vote on a reason to believe proposal. [00:45:11] Speaker 01: The dismissal was separate, and it did happen. [00:45:14] Speaker 03: I think there's an ongoing debate. [00:45:17] Speaker 03: There is. [00:45:19] Speaker 01: But I'm just looking at the question whether there is a legal basis for the standard that you endorse, which is that we should look at the content of what the blocking commissioners say and ask whether it's sufficiently reasonable. [00:45:34] Speaker 01: to be accepted. [00:45:35] Speaker 03: I mean, I think that's been the practice at the trial court and from this court over the last 50 years of FICA. [00:45:41] Speaker 03: And I think, you know, in this case, fortunately or unfortunately, we don't have the issue of whether they actually close the file because on the same day that they voted, you know, three to three with the invocation of Heckler with respect to 7370 and dismissed 7496, they also voted five to one to close the file. [00:45:58] Speaker 03: So that issue about whether closing the file is the act that the triggers review or whether it's the other vote that does is not present in this case. [00:46:09] Speaker 01: Well, closing the file is clearly the act that triggers review because that's the time to sue runs from that, right? [00:46:17] Speaker 03: Your Honor, I think there's a... [00:46:20] Speaker 03: Part of the problem, and again, it's not present in this case, but part of the reason that some of the lawsuits are there with these 120 day lawsuits with the alleged failure to act is because the commission hasn't closed the file. [00:46:32] Speaker 03: The public and the respondents and the complainants have no knowledge as to whether the commission had any other votes on them. [00:46:39] Speaker 03: And again, not present in this case, but I think that's an issue percolating in a few other cases in front of us. [00:46:47] Speaker 03: Thank you, Your Honors. [00:46:55] Speaker 01: All right, Mr. Hancock, I think we used up your rebuttal time, but we'll give you three minutes for rebuttal. [00:47:02] Speaker 05: Thank you, Your Honors. [00:47:03] Speaker 05: Just a couple of points, and then I'm happy to be helpful in any way that I can, Your Honors. [00:47:08] Speaker 05: I may be misunderstanding, but I believe that the parties are now on the same page about reviewability not being jurisdictional. [00:47:17] Speaker 05: And so I would urge the Court, even if the Court were to see fit to affirm additional court on the reviewability issue, [00:47:25] Speaker 05: We think it would be proper for the court to still issue an opinion like it did in Orzack v. Sullivan, correcting the basis for the district court's dismissal to clearly say that it should not have been. [00:47:35] Speaker 05: Is there any practical difference? [00:47:38] Speaker 05: I think you're right on the characterization. [00:47:41] Speaker 04: Just wondering if it's correct. [00:47:42] Speaker 05: I think there's a huge practical difference in that this area of the law should be clarified, in particular because, of course, jurisdictional arguments are not waivable. [00:47:51] Speaker 05: And so they can be raised at any point in litigation. [00:47:53] Speaker 05: And the Supreme Court in the Wilkins case recently highlighted the importance. [00:47:59] Speaker 05: Thank you. [00:48:01] Speaker 05: Also, I believe the parties now on the same page, the footnote two does, in fact, refer to coordination claims. [00:48:06] Speaker 05: The district court [00:48:07] Speaker 05: uh, in a passage claims that footnotes who does not refer to those coordination claims. [00:48:12] Speaker 05: We dispute that reading. [00:48:13] Speaker 05: We think it's clear what footnote two must refer to the coordination claims when it says it's required to dismiss the other claims and cites certification that includes the vote on the coordination claims. [00:48:25] Speaker 05: Um, and as we've argued, we believed that footnote contains an error of law that forms the basis for that dismissal. [00:48:33] Speaker 01: Is there any other error of law that you see in the announcement of the coordination plan? [00:48:38] Speaker 05: Yes. [00:48:39] Speaker 05: So the weight put on the Hazelwood affidavit, the Hazelwood affidavit cannot support the weight the commission put on. [00:48:48] Speaker 05: And that was unreasonable for the commission to base the dismissal upon that affidavit. [00:48:54] Speaker 01: You asked us to reverse the district court's dismissal of the case. [00:48:58] Speaker 01: If we agreed with you that the disposition in 70 is reviewable, why wouldn't we just go on to address whether the controlling commission's decisions contradict? [00:49:12] Speaker 05: We think this court shouldn't do that because the district court went ahead and actually didn't reach that merits issue. [00:49:19] Speaker 01: Rather than point out the error and send it back. [00:49:23] Speaker 05: Correct, because presumably the district court would just come to the same conclusion. [00:49:26] Speaker 05: So I think this court could just find that that's contrary to the law. [00:49:34] Speaker 01: Thank you very much. [00:49:34] Speaker 05: Thank you, Your Honor. [00:49:37] Speaker 01: Thank you to all counsel cases submitted.