[00:00:00] Speaker 08:
case number 22-5277 and Citizens United PAC Appellant versus Federal Election Commission and New Republican PAC.

[00:00:11] Speaker 08:
Mr. Hancock for the Appellant, Ms.

[00:00:13] Speaker 08:
Ward for the Appellee, Ms.

[00:00:15] Speaker 08:
Murphy for the Intervener.

[00:00:18] Speaker 00:
Good morning, Your Honor.

[00:00:19] Speaker 00:
Good morning, Counsel.

[00:00:20] Speaker 00:
Mr. Hancock, please proceed when you're ready, please.

[00:00:22] Speaker 01:
I would respectfully like to request five minutes for rebuttal.

[00:00:26] Speaker 01:
Good morning, Your Honors, and may it please support Kevin Hancock for the Appellant and Citizens United Act.

[00:00:31] Speaker 01:
This case involves two recent divided panel rulings that call out for correction because they have granted the Federal Election Commission the power to shield its legal decisions from judicial review and to nullify the Federal Election Campaign Act's private right of action.

[00:00:46] Speaker 01:
The Supreme Court and this court have long recognized that FICA's unique judicial review provision rebuts Heckler v. Cheney's presumption of non-reviewability.

[00:00:55] Speaker 01:
Indeed, review under FICA does not implicate the FEC's prosecutorial discretion at all, since such review can never require the FEC to go forward and enforce the law.

[00:01:05] Speaker 01:
Instead, review serves the purposes of correcting legal error and potentially unlocking the act's private right of action.

[00:01:12] Speaker 01:
The crew cases, however, departed from these precedents by holding that as few as just one of the FTC's six commissioners can block review and block the private right of action simply by asserting prosecutorial discretion was a reason why they voted that a particular complaint lacks merit.

[00:01:31] Speaker 01:
For at least three independent reasons, that holding is incorrect and we respectfully ask the crew cases be overturned.

[00:01:40] Speaker 01:
Your honor, the first reason why the crew cases holding was incorrect is because of the particular point at which review was occurring at the dismissal that's at issue here.

[00:01:52] Speaker 01:
So FICA creates a complaint-driven adjudicatory process that does not resemble the decision of a lone prosecutor deciding whether or not to indict.

[00:02:03] Speaker 01:
Complaint-driven process

[00:02:05] Speaker 01:
that has along the path to potentially the FTC filing suit, two marriage checkpoints.

[00:02:12] Speaker 01:
They are called reason to believe and probable cause to believe.

[00:02:16] Speaker 01:
Those two marriage checkpoints are akin to a court deciding a motion to dismiss and a motion for summary judgment.

[00:02:22] Speaker 01:
The act states that if the commission finds reason to believe, it shall investigate, it shall make an investigation is the language.

[00:02:31] Speaker 04:
Mr. Hancock, does the commission have any ability to rely on prudential reasons at all or any different question, any enforcement discretion at all?

[00:02:46] Speaker 04:
And if so, what's its scope and who can wield it?

[00:02:51] Speaker 01:
It can, but it cannot at the merit checkpoints.

[00:02:54] Speaker 01:
So at the point at which this case was dismissed after a reason to believe deadlock,

[00:03:00] Speaker 01:
that decision review must occur on the merits and assertions of discretion, resource and priority concerns are beside the point to that merits review.

[00:03:13] Speaker 00:
And so really, so if suppose all six commissioners agree that this case is just not worth pursuing because there's just not enough on the line, it's worth $1 and it would cost a million dollars to investigate.

[00:03:25] Speaker 00:
If all six commissioners agree with that,

[00:03:27] Speaker 00:
they nonetheless have to reach a merits determination in your view?

[00:03:33] Speaker 01:
If we're already at the point where they have taken a vote on reason to believe, they can vote in favor of dismissal on prosecutorial discretion grounds before we get to the reason to believe decision point.

[00:03:44] Speaker 01:
But once they have taken the step of voluntarily taking a vote on reason to believe, there is an obligation stated by this court in DCCC and again later in common cause that they need to explain in the statement of reasons

[00:03:56] Speaker 01:
Why it is that they voted against reason to believe, which is again a merits question.

[00:04:02] Speaker 01:
Saying in a statement of reasons.

[00:04:05] Speaker 01:
Well, here's our legal analysis, but also take the statement of reasons in this case, for example, we don't think we have sufficient resources or it's not a priority to investigate here.

[00:04:16] Speaker 01:
that doesn't aid a court in deciding whether it was legally, the commission was legally required to investigate.

[00:04:22] Speaker 00:
Remember again, that language- I'm not sure I understand the timing point because if all six, let's just take a case where it's all six commissioners and they agree that it's not worth it to go forward because the case just doesn't map onto our enforcement priorities and given the amount of resources that it would take to investigate, it's just not worth the candle.

[00:04:42] Speaker 00:
So if they can do that at the outset,

[00:04:44] Speaker 00:
and that results in a dismissal, right?

[00:04:48] Speaker 00:
Correct.

[00:04:48] Speaker 00:
Yeah.

[00:04:49] Speaker 00:
So long as there's majority support.

[00:04:50] Speaker 00:
Yes.

[00:04:50] Speaker 00:
So, right.

[00:04:51] Speaker 00:
So I'm just assuming one where everybody agrees.

[00:04:53] Speaker 00:
So it's unanimous, right?

[00:04:54] Speaker 00:
If they can do that at the outset, you're saying they just, if because somebody, the procedures call for a reason to believe vote, they can't decide not to find a reason to believe for the same reason that all six say, okay, we're not the reason to believe stage, but

[00:05:10] Speaker 00:
We just don't think it's worth it to go forward in this case.

[00:05:11] Speaker 00:
So we're not going to find a reason to believe a violation has occurred because we just don't want to get to that question of whether there's a reason to believe a violation has occurred.

[00:05:18] Speaker 00:
We just don't think it's worth going forward.

[00:05:19] Speaker 00:
So we're going to dismiss.

[00:05:21] Speaker 01:
Well, the commission can do that prior to the reason to believe vote.

[00:05:24] Speaker 01:
And the commission indeed does do that often.

[00:05:26] Speaker 04:
And can it do that right after the reason to believe vote?

[00:05:29] Speaker 04:
Like the reason to believe vote says, well, on the statute and under your theory where the reason to believe vote is just focused on reason to believe as a statutory matter or maybe statutory and allegations and evidence at that point.

[00:05:43] Speaker 04:
But if the prudential reasons

[00:05:45] Speaker 04:
are excluded there could once the commission said, well, yeah, on the statute, there may be reason to believe.

[00:05:53] Speaker 04:
Can they then turn around right after that and say, but six of us think this is not worth the candle and dismiss at that point, the commission would be obligated to conduct an investigation.

[00:06:03] Speaker 01:
So no, I don't think the commission could just turn around and do that again.

[00:06:07] Speaker 04:
The shall of any time vote to dismiss based on a majority vote.

[00:06:12] Speaker 01:
based on the language of the statute.

[00:06:14] Speaker 01:
Yes.

[00:06:15] Speaker 01:
Yes.

[00:06:15] Speaker 12:
The vote to dismiss is statute expressly contemplates dismissal even at an early stage of the case before the target has been given its right to file a response.

[00:06:32] Speaker 12:
Correct.

[00:06:32] Speaker 12:
And I think that just seems very formalistic.

[00:06:35] Speaker 12:
If you assume as you did that a dismissal

[00:06:41] Speaker 12:
on discretionary grounds at the outset before any vote on reason to believe would not be unlawfully premature.

[00:06:53] Speaker 12:
But then if they package that issue with the reason to believe and they just do it in one order and they have some legal reasoning and have some discretionary reason, it just becomes unlawful because they do it in one step rather than two.

[00:07:11] Speaker 01:
Well, I think the purpose of the reason to believe vote and the probable cause to believe vote are very important under the structure of the act.

[00:07:18] Speaker 01:
So the private right of action that exists exists as a safety valve to correct for the under enforcement that would understandably occur due to the commission's bipartisan structure.

[00:07:31] Speaker 01:
And so these two merit checkpoints are in the act in the enforcement process.

[00:07:35] Speaker 01:
So there is a checkpoint at which the commission

[00:07:39] Speaker 01:
If they choose to get to that point are required to take a stand on the merits.

[00:07:43] Speaker 12:
So, so a court can determine it sure but it's not a checkpoint that disables a discretionary dismissal.

[00:07:53] Speaker 01:
That's correct because the language of the act changes at later points along the road of the enforcement process.

[00:08:00] Speaker 01:
So for example, the decision whether to file an enforcement lawsuit under 3109A6, that language there in contrast to the reason to believe language is it may, the commission may choose to file such a lawsuit.

[00:08:14] Speaker 01:
The contrast in that language between shall and may must have content, it must have meaning.

[00:08:19] Speaker 01:
And so the,

[00:08:23] Speaker 01:
The reason why D triple C and common cause said specifically the commission, the controlling commissioners are obligated to explain why they voted against no reason to believe, um, is in order to, to determine whether the commission violated its duty to go forward and investigate or not.

[00:08:39] Speaker 00:
Well, they, they declined to vote that there is a reason to believe, but they can decline to vote that there is a reason to believe for the same discretionary reasons that they could have declined to have a reason to believe up to begin with, which is to say we've now looked into it and we think,

[00:08:53] Speaker 00:
pick your prudential reason and this one just, let's just stick with the resources one.

[00:08:57] Speaker 00:
It's just not worth it.

[00:08:58] Speaker 01:
I mean, I just, I, I think there's a, there's lacking a rational connection between the facts found the choice made between voting, taking a no reasonably vote voting against reasonably, which again is saying the reasonably standard is has the complaint stated a credible claim.

[00:09:15] Speaker 01:
So by voting against reason to believe you're taking a stand and saying, I don't think

[00:09:20] Speaker 01:
the complaint has stated a credible claim here.

[00:09:22] Speaker 00:
No, they're not.

[00:09:22] Speaker 00:
What they say is, I'm not going to find that there's reason to believe a violation has occurred.

[00:09:28] Speaker 00:
I think that's the logic of the statute.

[00:09:29] Speaker 00:
You can correct me.

[00:09:30] Speaker 00:
I think the language statutes find reason to believe that a violation has occurred.

[00:09:34] Speaker 00:
And the vote is, I'm not going to make that finding.

[00:09:38] Speaker 00:
I'm not going to make a finding that there's a reason to believe a violation has occurred.

[00:09:41] Speaker 00:
Why are you not making that finding?

[00:09:43] Speaker 00:
Because I don't want to get to that finding.

[00:09:45] Speaker 00:
Because I think, like apparently, the way you're looking at it, I could have said at the very outset that I think this case is not worth the candle.

[00:09:52] Speaker 00:
I still think that.

[00:09:53] Speaker 00:
And that's what I'm saying now.

[00:09:54] Speaker 00:
And that's why I'm not going to make the finding that the reasonable violation has occurred.

[00:09:58] Speaker 00:
I'm not, I don't understand why, how, why it would be the case that you have to do that at the very outset.

[00:10:04] Speaker 00:
And you can't do that very same thing later when maybe you have a little more information, you actually have a better sense of what the claim is about.

[00:10:10] Speaker 00:
And you have a better sense of how the prudential considerations wash out in the balance.

[00:10:15] Speaker 01:
I mean, I don't think it would be unreasonable to ask the controlling commissioners to actually make a decision on the merits at the reasonable point, given that they've had ample opportunity prior to that point to do a preliminary assessment of the merits and dismiss on discretionary grounds if they see fit.

[00:10:29] Speaker 01:
And the commission actually does this.

[00:10:33] Speaker 09:
So are you suggesting that there does need to be a reason to believe legal assessment?

[00:10:38] Speaker 09:
And then you can also have a purely discretionary reason also, but you at least need to assess this from a legal standpoint first.

[00:10:46] Speaker 01:
The legal assessment is essential.

[00:10:49] Speaker 01:
Commissioners can do, can and do often add prudential and discretionary reasons to their statement of reasons.

[00:10:56] Speaker 01:
But I think for purposes of judicial review and determining whether this missile

[00:11:00] Speaker 01:
at the reasonably stage was contrary to law, that analysis has to be conducted on the merits and the prudential reasons are, they're effectively dicta at that point.

[00:11:09] Speaker 09:
Well, with respect, just quickly, with respect to the purely discretionary reasons, even under this example, if you just say, oh, it's just going to cost too much.

[00:11:19] Speaker 09:
Why can't the court also test those purely discretionary reasons?

[00:11:24] Speaker 09:
And the reason I say that is if this statute is designed to deal with political corruption,

[00:11:32] Speaker 09:
then what if one of the reasons was I don't want to pay for testing these issues with respect to Democrat candidates or Republican candidates?

[00:11:41] Speaker 09:
Do we not get to attest that from an abuse of discretion standpoint, just like we do in other contexts?

[00:11:47] Speaker 01:
You do, Your Honor.

[00:11:48] Speaker 01:
We agree with that.

[00:11:49] Speaker 01:
We think given the language of the cause of action in 3109A8,

[00:11:53] Speaker 01:
That provides for judicial review of any dismissal right unattached from whether it's a merits dismissal or any other kind of dismissal.

[00:12:01] Speaker 01:
That if that's the mean something review has to be available at any any point in the process.

[00:12:07] Speaker 01:
The question there is with the marriage checkpoints review is conducted on the basis of the merits and stick again the Commissioners need to explain the merits vote that they took.

[00:12:14] Speaker 04:
But what we review is a dismissal.

[00:12:18] Speaker 04:
So on your hypothesis, I mean, the statutory language can be read as you are reading it to say the reasonably vote is a vote about the statutory question or statutory and factual question of whether there's a reason to believe, but in order

[00:12:37] Speaker 04:
for the private right of action to arise, there has to be a dismissal, an order of dismissal, and that is typically a separate vote.

[00:12:45] Speaker 04:
It was a separate vote in this case to close the file.

[00:12:49] Speaker 04:
And that's what's being reviewed.

[00:12:51] Speaker 04:
So if the commissioners, not within the confines of the reason to believe vote, but separately say, and here are all these prudential reasons, this is worth a dollar and it's going to cost a million dollars to

[00:13:03] Speaker 04:
to litigate and a majority decides to dismiss on that ground, then we have to review the prudential reasons and the statutory reasons, no?

[00:13:17] Speaker 01:
I think that's contrary to DCCC.

[00:13:20] Speaker 01:
DCCC said that when there is a, I'll call it a deadlock dismissal, but your honor is right.

[00:13:25] Speaker 01:
It is two distinct analytical steps.

[00:13:28] Speaker 01:
There's the vote to take to find reason to believe that deadlocks three three here, and then there's a subsequent vote to dismiss which has to be supported by a majority.

[00:13:36] Speaker 01:
DCCC teaches that where a vote to dismiss is precipitated by a deadlock on the reason to believe question.

[00:13:44] Speaker 01:
the controlling commissioners need to provide a statement of reasons that explains their vote on the reason to believe vote, even though there was a subsequent dismissal that's analytically a distinct step.

[00:13:54] Speaker 04:
There were no other reasons in that case.

[00:13:56] Speaker 04:
And I'm imagining if we were to clarify along the lines of what you're saying, that the reason to believe vote is a statutory, effectively statutory question, applying a lot of fact, then

[00:14:09] Speaker 04:
Prudential considerations would not be banished because we've said countless times that the FEC has discretion, but they would belong in a separate statement and presumably one would have to roll those together and make something of it, no?

[00:14:27] Speaker 01:
Again, respectfully, Your Honor, I do think that that runs headlong into DCCC and common cause.

[00:14:33] Speaker 04:
There were no separate statements of reason there.

[00:14:36] Speaker 01:
Well, and that's because the FEC argued that none were required because they argued that a deadlock dismissal was per se prosecutorial discretion.

[00:14:44] Speaker 01:
And this this court said, even assuming that's right, even assuming you don't need to explain a deadlock dismissal because it just is prosecutorial discretion by its nature,

[00:14:55] Speaker 01:
it's still subject to review and presumably a six zero vote of the commission dismissing would be a stronger practice or action of prosecutorial discretion, but that would still be reviewable as well.

[00:15:10] Speaker 04:
Right, and that's the opinion.

[00:15:11] Speaker 04:
In DCCC we said that.

[00:15:15] Speaker 01:
Yes.

[00:15:15] Speaker 01:
Yes, your honor.

[00:15:16] Speaker 14:
So Mr Hancock, is there, um, I mean, where in D triple C does it suggest that part of the statement of reasons could not be to say that the commission is asserting prosecutorial discretion?

[00:15:28] Speaker 14:
I mean, D triple C requires reasons, but it's your view seems to be that those reasons cannot include prosecutorial discretion at all.

[00:15:38] Speaker 01:
Well, D triple C specific language and I'm paraphrasing is that the controlling commissioners

[00:15:43] Speaker 01:
must explain why they voted against the commission's reading of precedent and voting against reason to believe it's it's specific about so when I when I say the commission I mean actually the Office of General Counsel so the Office of General Counsel their recommended reasonably and the reasonably vote.

[00:16:00] Speaker 01:
commissioners, the controlling commissioners voted against the office of general counsel's recommendation and it's reading a precedent.

[00:16:07] Speaker 01:
And DCCC is specific that the vote against the office of general counsel's reading a precedent is the thing that needs to be explained.

[00:16:14] Speaker 01:
And, you know, prudential reasons just don't fit into that equation because the recommendation by OGC was one on the merits.

[00:16:21] Speaker 01:
Here's why you should find that why there's reason to believe.

[00:16:26] Speaker 14:
So the statement of reasons in your view cannot rely on prosecutorial discretion at all, that that's just simply not part of the statement of reasons.

[00:16:34] Speaker 01:
Not at the merits checkpoints.

[00:16:37] Speaker 01:
So reason to believe and probable cause to believe.

[00:16:40] Speaker 14:
How does that view square with Akins, where the Supreme Court specifically recognizes that the FEC still retains prosecutorial discretion?

[00:16:50] Speaker 01:
Well, the FEC retains significant prosecutorial discretion.

[00:16:55] Speaker 01:
So the FEC never has to go forward if it doesn't want to, even if a court is defined that its dismissal is contrary to law.

[00:17:03] Speaker 01:
Again, the reviewing court corrects any legal error.

[00:17:08] Speaker 01:
The FEC gets a chance on remand to correct error if there is error, and then potentially a private right of action could be triggered to go forward.

[00:17:16] Speaker 01:
In no case does the FEC, if the FEC says we don't,

[00:17:19] Speaker 01:
as it has here in this statement of reasons, that we don't feel like going forward because of resource and priority concerns.

[00:17:26] Speaker 01:
If a reviewing court here founds the legal reasoning and statement of reasons contrary to law, in no case would the FEC ever have to go forward despite its prudential concerns, which may not be shared by the private complainant.

[00:17:40] Speaker 00:
What happens, so if all six commissioners agree at the very outset, let's just say for argument purposes, just for now,

[00:17:47] Speaker 00:
we'll put aside this question of whether discretionary grounds like enforcement priorities can surface when you're talking about the reasonable leave stage.

[00:17:56] Speaker 00:
Let's just back it up to the beginning where even you think discretionary considerations can lead to a dismissal.

[00:18:01] Speaker 00:
So let's say at the outset, six commissioners decide uniformly that we're not going to go forward with this complaint and we're going to dismiss it because this type of violation just isn't our priority.

[00:18:15] Speaker 00:
It's via is type of violation A. We really care about type of violation B. This is a type of violation A case.

[00:18:21] Speaker 00:
Everybody agrees it's a type of violation A case.

[00:18:24] Speaker 00:
We're just not going to expend our resources on a case.

[00:18:27] Speaker 00:
We're waiting for B cases and they dismiss for that reason.

[00:18:31] Speaker 00:
And then somebody brings a challenge and says, that's I'm challenging the dismissal, which the statute allows for a petition to challenge a dismissal.

[00:18:40] Speaker 00:
And I'm challenging the dismissal as contrary to law.

[00:18:44] Speaker 00:
What do you think would happen with that challenge?

[00:18:46] Speaker 00:
Is that determination by six commissioners that I choose not to go forward and we collectively therefore choose not to go forward because this is a type A case.

[00:18:57] Speaker 00:
This is not our priority.

[00:18:58] Speaker 00:
We're prioritizing type B cases.

[00:19:00] Speaker 00:
Is that amenable to being overturned on the ground that that decision about priorities was contrary to law?

[00:19:07] Speaker 00:
Yes.

[00:19:09] Speaker 00:
Yes, I think even the commission.

[00:19:11] Speaker 00:
What's the law that that

[00:19:13] Speaker 00:
priority choice would be said to contradict?

[00:19:16] Speaker 01:
So there are long stated legal standards governing reasoned judicial decision making, which wouldn't second guess any of those prudential considerations, but do set up important guardrails that protect against arbitrary executive branch action.

[00:19:35] Speaker 01:
And to go back to the example we were provided in our brief, this would obviously be a very rare

[00:19:42] Speaker 01:
uh, situation wouldn't be likely to occur often, but like if the commission said we're dismissing case a because it was filed by Republicans, um, that would clearly be out of bounds.

[00:19:56] Speaker 01:
And so a reviewing court could review the discretionary reasons, uh, under that standard of review.

[00:20:02] Speaker 01:
Um, those, the content of that is traceable back to the statute.

[00:20:08] Speaker 01:
Um, so

[00:20:10] Speaker 01:
arbitrary or capricious AHC action can be found to be so because it's inconsistent with the statute.

[00:20:18] Speaker 01:
So one example would be DCCC's requirement that a statement of reasons need to be provided to facilitate judicial review.

[00:20:27] Speaker 01:
DCCC says, we find that that's necessary because the statute provides for judicial review in order to make that meaningful.

[00:20:35] Speaker 01:
you need to have a statement of reasons explaining what the commission actually did.

[00:20:41] Speaker 01:
Or if a dismissal were based upon, say, racial or partisan bias, we've cited Lobatz as an example of this.

[00:20:51] Speaker 01:
The court there said that would be arbitrary and capricious agency action.

[00:20:56] Speaker 01:
It would be because nothing in FECA supports dismissing a case on such grounds.

[00:21:03] Speaker 04:
What if, what if the dismissal were type a is any case dealing with coordinated expenditures, they say we just don't want to do those cases and even if six members.

[00:21:17] Speaker 04:
I mean, wouldn't it matter a lot on not just whether they've said this is our priority, and even if a majority says this is our priority, but whether that is a reasoned basis rather than, let's say, an abdication of a whole part of the statutory enforcement responsibility?

[00:21:37] Speaker 01:
Yes.

[00:21:37] Speaker 01:
I mean, I think that does risk being an abdication, such a kind of blanket express policy of not pursuing a certain type of... But if it were very well explained,

[00:21:48] Speaker 04:
one could imagine that it might not be.

[00:21:50] Speaker 04:
So it's gonna depend on context, on the nature of the explanation.

[00:21:55] Speaker 04:
I mean, I guess what I'm resisting is the idea that you can look at sort of a very short kind of magic words, assertion of discretion, whether to frustrate review or assuming review to decide the question of contrary to law.

[00:22:12] Speaker 04:
I mean, you need something more.

[00:22:15] Speaker 01:
And I think the court could demand more.

[00:22:17] Speaker 01:
if the reasons given were not sufficient.

[00:22:20] Speaker 01:
And, you know, to be clear at these points in the process outside of the merits checkpoints, I think the court can review whatever reasons the commission's put forth, what the commission puts forth.

[00:22:31] Speaker 01:
So if there's a mixture of discretionary reasons with a preliminary assessment of the merits, which so often is the case, I mean, really those two things go hand in hand as Heckler itself,

[00:22:44] Speaker 01:
recognized and as New Republican is recognized in its brief that it risks being arbitrary to dismiss a case on purely prudential grounds if there was absolutely no preliminary assessment of the merits involved because then how can you know

[00:23:02] Speaker 00:
what it is that you're- So you can't have that, you think, dismissal based on purely discretionary grounds?

[00:23:08] Speaker 01:
I mean, I don't think I would go so far as to say it's categorically impossible, but I do think that when you get to the end of the sliding scale, you do risk having it be arbitrary.

[00:23:17] Speaker 01:
Because again, how can one make the assessment that an agency doesn't have the resources necessary to tackle a particular case unless you know what's entailed in that particular case, almost by definition,

[00:23:32] Speaker 01:
a look at what the case is all about and what the merits of the case are all about is necessary in this case in the statement of reasons.

[00:23:39] Speaker 12:
There are cases that turn on disputed legal questions and there are a lot of cases that don't.

[00:23:48] Speaker 12:
The law is straightforward and they're just making an assessment

[00:23:52] Speaker 01:
whether the case is worth it.

[00:23:53] Speaker 01:
And the evaluation that the law straightforward might be something that a core reviewing court could take a look at to see if, if that is an unreasonable assessment of the case law, there would be legal questions built into that.

[00:24:05] Speaker 01:
This case presents a similar example.

[00:24:07] Speaker 01:
So the controlling commissioners in the page of their statement of reasons that say that explain their discretionary concerns, they say part of the reason they don't want to go forward and investigate and think that it would take too many resources is

[00:24:20] Speaker 01:
They claim it would involve probing Senator Scott's subjective intent to determine when exactly it is they became a candidate.

[00:24:28] Speaker 01:
But we submit that's an error of law.

[00:24:31] Speaker 01:
There's clear majority-supported commission precedent stating that the candidacy inquiry is actually objective.

[00:24:38] Speaker 01:
It could be done on the basis of the candidate's objective activities.

[00:24:42] Speaker 01:
If that were corrected and sent back down to the commission, those commissioners might

[00:24:47] Speaker 01:
rethink their assertion of discretion.

[00:24:49] Speaker 01:
Maybe the investigation wouldn't take that long under a correct assessment of the law after the court.

[00:24:55] Speaker 02:
Isn't it important that it takes four votes to dismiss based on prosecutorial discretion, but it only takes three votes to deadlock and require this statement of reasons?

[00:25:07] Speaker 02:
I ask you that because it seems to me that

[00:25:10] Speaker 02:
the case law that identifies a controlling group.

[00:25:13] Speaker 02:
That arises from the fact that in order to move forward with an enforcement, we need four votes that there's reason to believe a violation has occurred.

[00:25:25] Speaker 02:
And the three no-go commissioners in a deadlock are the controlling group because they didn't provide the fourth vote to move forward.

[00:25:37] Speaker 02:
So that's why they're the controlling group, and that's the controlling decision.

[00:25:41] Speaker 02:
If that no-go group adds, and we also

[00:25:45] Speaker 02:
rely on prosecutorial discretion.

[00:25:48] Speaker 02:
That's just the vote of three commissioners.

[00:25:50] Speaker 02:
That's not four votes to dismiss based on prosecutorial discretion, which is what is necessary.

[00:25:56] Speaker 02:
And it seems to me that a vote of no discretion by three commissioners is not controlling because it doesn't control anything.

[00:26:04] Speaker 02:
Three commissioners can vote, no prosecutorial, we're gonna rely on prosecutorial discretion.

[00:26:09] Speaker 02:
But if four vote reason to believe, it goes forward.

[00:26:13] Speaker 02:
So the three vote, no prosecutorial discretion vote has no controlling authority at all.

[00:26:19] Speaker 02:
It seems to me that that's superfluous to the reason to believe issue, which is controlling.

[00:26:27] Speaker 02:
And I think this case seems to really illustrate that because in this case, we have a certification at the dismissal stage in which three commissioners said, we're relying on prosecutorial discretion, HEPA versus Jamie.

[00:26:44] Speaker 02:
But five commissioners said, let's just close the file.

[00:26:47] Speaker 02:
So it seems on this record, it's very plain that the statement of three commissioners that were relying on prosecutorial discretion is not the position of the commission.

[00:26:58] Speaker 02:
And so after the fact, they write their statement of reasons, which they get to write because they are controlling with respect to the reason to believe finding.

[00:27:06] Speaker 02:
But if they add into that, oh, and prosecutorial discretion, that's not the position of the commission, is it?

[00:27:14] Speaker 01:
No, your honor, and I agree with your assessment, and you've stated that much better than I have.

[00:27:18] Speaker 01:
I think that is an accurate assessment, and it is an implementation of DCCC.

[00:27:25] Speaker 01:
And it reminds me of example, a more recent example of this court implementing that idea.

[00:27:30] Speaker 01:
So in the other end Citizens United PAC case ECU1, I'll call it, it was a 2023 decision.

[00:27:38] Speaker 01:
where this court held that a statement of reasons issued two months after dismissal was post hoc rationalization that could not be considered to explain the dismissal.

[00:27:51] Speaker 01:
The counsel for the FEC in that case argued, well, on the record, there's a deadlocked reasonable vote that needs to be explained, but there's also a deadlocked vote to dismiss on Heckler v. Cheney grounds.

[00:28:05] Speaker 01:
And yet,

[00:28:07] Speaker 01:
counsel for the FEC argued, well, we can just look to that vote as the explanation for why the controlling commissioners, and they were the same commissioners, of course, who voted on those both votes.

[00:28:19] Speaker 01:
We can look to that vote to explain why it is that the controlling commissioners voted against reasonable leave since we don't have a contemporaneous statement to do that work for us.

[00:28:27] Speaker 01:
And this court rejected that in that case and said specifically, no, looking to DCCC in common cause, the statement of reasons needs to explain

[00:28:37] Speaker 01:
the deadlocked reason to believe vote, and a failed heckler vote doesn't control.

[00:28:43] Speaker 02:
I'm sorry, which case was that?

[00:28:45] Speaker 01:
It's N Citizens United VFEC, it's a 2023 decision.

[00:28:49] Speaker 14:
Mr. Hancock, but why would we think that a statement of reasons from three commissioners is what we should review when they give legal reasons, but not when they give prosecutorial discretion reasons?

[00:29:04] Speaker 14:
So either DCCC allows this court to review the opinion of three commissioners or whatever the controlling commissioners are, two or three, when they discuss law, but not when they rely on prosecutorial discretion.

[00:29:21] Speaker 14:
Why would that be the case?

[00:29:23] Speaker 01:
I think again, because the prosecutorial discretion answers don't, they don't answer the legal question that's before the court on review.

[00:29:31] Speaker 01:
Again, given the statutory structure,

[00:29:34] Speaker 01:
there's the obligation of the FEC to go forward and investigate if reason to believe exists.

[00:29:39] Speaker 01:
And so the court must determine does reason to believe exist and the FEC voted no.

[00:29:44] Speaker 14:
No, but I took in your response to Judge Pan to be that when there are only three commissioners relying on a particular ground that that is not something that we should review.

[00:29:56] Speaker 14:
I mean, that would just undermine DCCC altogether.

[00:30:01] Speaker 01:
Well, I think it's distinguishable because again, the issue in DCCC was, well, we need reasons for why you voted against reasonably, why no RTB?

[00:30:14] Speaker 14:
And what's specific about how- For that, you can look to only three commissioners or fewer than four.

[00:30:20] Speaker 01:
Those are the three commissioners that prevented the commission from going forward.

[00:30:24] Speaker 01:
At that point in the process, there's two choices.

[00:30:26] Speaker 01:
There's find reasonably and go forward, or there's dismiss.

[00:30:30] Speaker 01:
And when the commission takes the dismissal off ramp for the reason that there's no RTB, no reason to believe it has taken a stand on a merits question for which it needs to explain itself to a reviewing court.

[00:30:42] Speaker 01:
So that review can be conducted to see if the FPC violated that duty that shall make an investigation duty in 3109A2.

[00:30:51] Speaker 01:
That language is very close, very similar to the language that existed in Dunlop versus Bukowski, that heckler itself

[00:30:59] Speaker 01:
put its seal of approval on as language that circumscribes an agency's ability to discriminate among what cases that shall or shall not approve.

[00:31:08] Speaker 01:
The language in that case was that I believe it's the labor secretary, if they find probable cause to believe, they shall file a civil action.

[00:31:20] Speaker 01:
And Heckler said, now that is an example of language that rebuts

[00:31:26] Speaker 01:
the HECLR presumption because there is this merits checkpoint which provides standards to apply in determining whether the dismissal was legal or not.

[00:31:37] Speaker 04:
But it seems like you're, I'm not sure why you are struggling over the nature of the reasoning because it seems like the Supreme Court has told us in HECLR and in

[00:31:56] Speaker 04:
Overton Park and in ICC versus Brotherhood of Locomotive Engineers that Congress decides if a type of determination is reviewable.

[00:32:08] Speaker 04:
And here that would be the order dismissing the complaint is reviewable.

[00:32:11] Speaker 04:
And here it's the statute says and the Supreme Court has said this type of order is subject to judicial review.

[00:32:20] Speaker 04:
And we don't, as the FEC and the Republicans have argued, we don't carve out, just as we don't carve out reasons of a different character and change the nature of the susceptibility of that order to review, it's reviewable.

[00:32:37] Speaker 04:
And if it's reviewable, then you can argue about how the reasons are structured and whether statutory reason is forced by

[00:32:46] Speaker 04:
by the reason to believe vote as a separate vote.

[00:32:49] Speaker 04:
But at the end of the day, your strongest argument is, Congress said this is a reviewable kind of action and it doesn't become unreviewable because some of the reasons seem similar to the reasons that support the categorical but rebuttable presumption of unreviewability under

[00:33:12] Speaker 01:
I agree with that your honor that that would be my second reason for why we believe the crew cases aired.

[00:33:19] Speaker 01:
Commissioner discussion commissioner reasons put forth in support of a reviewable action can't overrule congress's choice to make that action reviewable and that's an effect what the crew cases do it puts that power in the hands of three to possibly even just one.

[00:33:35] Speaker 01:
commissioner to decide when or when not Congress's provision for judicial review shall pertain.

[00:33:42] Speaker 01:
And that's a separation of powers problem.

[00:33:45] Speaker 01:
Appellees argue that there'd be separation of powers problem if the crew cases aren't overturned, if they are overturned.

[00:33:52] Speaker 01:
We believe the separation of powers problem exists right now because the ability of those commissioners to effectively change what Congress made a reviewable action does something that's categorically unreviewable.

[00:34:05] Speaker 01:
usurps congressional power to decide what actions shall or shall not be reviewable.

[00:34:10] Speaker 01:
And then by extension, it also gives those commissioners the power to effectively make law.

[00:34:15] Speaker 01:
The law that they include in those statements of reasons that also have discretionary reasons tacked on ends up being unreviewable and treated by commission precedent within the agency.

[00:34:29] Speaker 01:
And Your Honor, I apologize.

[00:34:30] Speaker 01:
I see my time has expired.

[00:34:35] Speaker 01:
I was going to change topics.

[00:34:38] Speaker 07:
One of your theories for standing is informational standing.

[00:34:41] Speaker 07:
What's the information that you've been denied?

[00:34:43] Speaker 01:
There are at least two categories of information we've been denied.

[00:34:49] Speaker 01:
So first, New Republican.

[00:34:55] Speaker 01:
If they had properly reported their relationship with Senator Scott during the time where Senator Scott controls New Republican,

[00:35:04] Speaker 01:
they would have to report the value of their in-kind contributions to the Scott campaign.

[00:35:09] Speaker 01:
And they would have to disaggregate the value of those contributions from what they have reported as a super PAC.

[00:35:15] Speaker 01:
They've reported in bulk their aggregated operating expenditures.

[00:35:20] Speaker 07:
And do you know these figures or are you trying to figure out these figures?

[00:35:25] Speaker 01:
We're trying to figure out these figures.

[00:35:26] Speaker 01:
This is information that we lack and which supports informational standing.

[00:35:33] Speaker 01:
I would direct this court's attention to what I'll call the correct the record case.

[00:35:37] Speaker 01:
So it's a CLC versus FEC case from 2022, which presents presents nearly identical facts between a super PAC called correct the record and the Hillary Clinton campaign.

[00:35:50] Speaker 07:
We were not on bonk there, right?

[00:35:52] Speaker 01:
Understood.

[00:35:53] Speaker 07:
Has Senator Scott declared for an upcoming election?

[00:35:57] Speaker 01:
Senator Scott has declared for 2030.

[00:35:58] Speaker 01:
Yes.

[00:35:59] Speaker 07:
OK, so if you win and you get some new information about Senator Scott and New Republic, what's your argument for how that would meaningfully help you in his next election six years from now?

[00:36:15] Speaker 01:
Well, so I guess I would first point out that.

[00:36:19] Speaker 01:
I'm not aware of any ruling by this court placing kind of a deadline for the usefulness of information sought by a campaign finance watchdog.

[00:36:29] Speaker 01:
So incorrect the record, Clinton was no longer a candidate at all four years after the 2016 election had expired.

[00:36:40] Speaker 01:
But the information still ends up being valuable given that

[00:36:45] Speaker 01:
Senator Scott is obviously an office holder.

[00:36:49] Speaker 01:
Information about the spending that resulted his being put in office would be important.

[00:36:54] Speaker 01:
So ECU is a multifaceted organization.

[00:36:58] Speaker 01:
It operates as a campaign finance watchdog.

[00:37:02] Speaker 01:
It tracks spending and politics.

[00:37:03] Speaker 01:
It highlights campaign finance issues for the public.

[00:37:06] Speaker 01:
It issues reports and communications to third parties.

[00:37:10] Speaker 01:
And it uses this information for resource allocation decisions.

[00:37:15] Speaker 01:
And so information about the spending that led to Senator Scott's being put in office would be valuable to them and would further their efforts to defend and implement campaign finance reform, which this court has said on many occasions is sufficient to establish informational standard.

[00:37:34] Speaker 01:
I might also point out to point to Akins itself, which of course is the seminal case in this area.

[00:37:40] Speaker 01:
Akins, the PAC, the respondent, the PAC that was at issue for which the plaintiffs were trying to get information, the alleged activity that the plaintiffs claimed supporting them being, supporting the idea that the commission should have held them as a super PAC, it took place between 1980 and 1990.

[00:38:01] Speaker 01:
And Akins held in 1998 that the plaintiffs there had informational standing based upon information that they claimed should have been reported during

[00:38:09] Speaker 01:
the previous decade.

[00:38:10] Speaker 01:
So I think if that is sufficient, then certainly we're within that here.

[00:38:14] Speaker 14:
Mr. Hancock, in Akins, there was standing for voters.

[00:38:20] Speaker 14:
So is ECU here claiming organizational standing or associational standing on behalf of voters?

[00:38:28] Speaker 14:
I didn't see that in the briefing.

[00:38:30] Speaker 01:
It is not.

[00:38:31] Speaker 14:
But the way you've described ECU, it seems that your grounds of standing would be associational or organizational.

[00:38:38] Speaker 01:
Um, it is not.

[00:38:40] Speaker 01:
Um, but this court has held on several occasions that it an organization seeking, um, information about a pack need not be a membership organization with voters or, you know, trying to obtain that information in order to, how is that reconcilable with trans union?

[00:39:01] Speaker 01:
Well, so no court has ever applied trans union in

[00:39:05] Speaker 01:
in the context of informational standing and if FICA, TransUnion itself distinguishes cases, distinguish Akins and cases involving FOIA.

[00:39:19] Speaker 01:
But then in any event, even under TransUnion, I think informational standing exists here because the informational standing was found to exist there because of the possibility that erroneous information would have been passed on to third parties by

[00:39:34] Speaker 01:
by the actors in TransUnion.

[00:39:36] Speaker 01:
And that's precisely what could occur here, right?

[00:39:39] Speaker 01:
ECU, again, as part of its programmatic activities, communicates with the public about campaign finance information.

[00:39:48] Speaker 01:
And so to the extent FEC reporting is inaccurate or late or absent, that affects the accuracy of what ECU can communicate to the public who is interested in what ECU has to say.

[00:40:05] Speaker 12:
Let me make sure.

[00:40:06] Speaker 12:
Yeah, one more.

[00:40:07] Speaker 12:
Suppose that when the controlling commissioners following a deadlock give a statement of reasons, it is unreviewable, reviewable to the extent it rests on legal reasoning, unreviewable to the extent it rests on prosecutorial discretion.

[00:40:30] Speaker 12:
I know you resist that, but just humor me.

[00:40:33] Speaker 12:
And just help me think, how would we unpack a statement like that that has strands of both?

[00:40:46] Speaker 12:
Is it, you know, I can think of, you know, maybe you say the legal error might be reviewable, but if it's clear, there's no prejudice if the prosecutorial discretion independently supports the result

[00:41:03] Speaker 12:
Maybe you analogize to something like an independent inadequate state ground doctrine, another area where you have to figure out what the order was based on.

[00:41:13] Speaker 12:
Like how should we, if you don't like locomotive engineers applied for the principle that if there's any mention of prosecutorial discretion, the whole thing is unreviewable.

[00:41:25] Speaker 12:
So what other criteria should we use if we wanna unpack it in the way that I'm suggesting?

[00:41:32] Speaker 01:
Well, I so I think in that scenario, and again, if I'm understanding your honor's question, this assumes that the discretionary reasons are unreviewable.

[00:41:41] Speaker 01:
Right.

[00:41:41] Speaker 12:
So I think giving you a chance to win on a fallback.

[00:41:45] Speaker 01:
Thank you, your honor.

[00:41:46] Speaker 01:
I think I think it can speak to this scenario against itself says, even when there's a discretionary act by an agency review still exists in order to determine whether there was an improper legal ground involved.

[00:42:00] Speaker 01:
And so

[00:42:01] Speaker 01:
You know, I think it makes sense for courts to assume or presume, absent significant indications to the contrary, that when you have a statement that has merits analysis and discretionary reasons, that there is a relationship between those two.

[00:42:19] Speaker 01:
To the extent that, again, a classic prosecutorial discretion decision is based upon a preliminary look at the merits that informs

[00:42:30] Speaker 01:
those discretionary considerations.

[00:42:32] Speaker 01:
Even New Republican in this case concedes that.

[00:42:36] Speaker 01:
And again, I think Heckler makes that point as well.

[00:42:39] Speaker 01:
And so to the extent that that's true, it would make sense for a court to review the legal analysis.

[00:42:44] Speaker 01:
And if there's legal error, to identify that legal error, to send it back to the commission.

[00:42:49] Speaker 01:
And the commission then can decide, okay, well, now under our corrected understanding of the law, we would still exercise discretion anyway,

[00:42:58] Speaker 01:
perhaps under a right understanding of the law.

[00:43:01] Speaker 01:
And given that there would be no advisory opinion problem as Akins explained.

[00:43:07] Speaker 01:
Thank you.

[00:43:08] Speaker 02:
Can I ask a question about the back end of this process?

[00:43:11] Speaker 02:
Because the way I think it's supposed to work is if there's a review for whether a decision was contrary to law, court issues a declaration and then the commission has an opportunity to conform to the declaration.

[00:43:27] Speaker 02:
And if they don't conform, then the citizen suit can proceed.

[00:43:31] Speaker 02:
If the declaration says there is reason to believe a violation occurred, and the commission then says, now we understand your legal analysis, we still want to exercise our discretion not to enforce, is there an argument to be made that the commission has not conformed?

[00:43:52] Speaker 02:
Because if there's reason to believe, they have to investigate, don't they?

[00:43:56] Speaker 01:
I think that's exactly right.

[00:43:58] Speaker 01:
And I think in the face of a district court order saying that there's reason to believe on these facts and it would be unreasonable to to find otherwise that anything other than moving forward under that under that understanding of the correct understanding of the law would be contrary to luck, especially given as your honor identified that duty to go forward and investigate.

[00:44:20] Speaker 01:
And again, I stress.

[00:44:22] Speaker 05:
Does the

[00:44:23] Speaker 05:
Does a reviewing court make the reason to believe decision or just expose legal error and then send it back for them to decide whether there's reason to believe in light of the correct understanding?

[00:44:34] Speaker 01:
It exposes legal error, but as part of the analysis under Orlowski, the second prong of Orlowski, a reviewing court could decide that the commission's determination under a correct understanding of FICA that reasonably didn't exist on a certain set of facts was unreasonable.

[00:44:54] Speaker 01:
And so then that could result in a reviewing court saying it was unreasonable to find no reason to believe on these facts, given the correct understanding of the law.

[00:45:04] Speaker 11:
But that's not the way abuse of discretion review normally works.

[00:45:09] Speaker 11:
I mean, the court would only do that if the court would find essentially no reasonable

[00:45:20] Speaker 11:
no court or no reasonable agency exercising its discretion applying the correct principles of law could come up with, they could only come up with one conclusion.

[00:45:34] Speaker 11:
And I think you can search the federal reporters and you will find very few cases where an appellate court has done that.

[00:45:45] Speaker 01:
Yes, your honor.

[00:45:46] Speaker 01:
And I don't know that it would be a common scenario.

[00:45:50] Speaker 01:
But I think there are examples of district courts which have done that.

[00:45:55] Speaker 01:
The Common Cause Georgia case that we have cited in our briefing comes to mind.

[00:46:00] Speaker 01:
Has this court done that?

[00:46:05] Speaker 01:
I apologize.

[00:46:06] Speaker 01:
I'm not sure.

[00:46:08] Speaker 01:
I can't categorically say one way or the other.

[00:46:10] Speaker 05:
Reason to believe is a very tentative, early stage decision, pre-investigation.

[00:46:19] Speaker 05:
And so it would seem a lot for a court to decide not only expose a legal error, but sort of take over the agency's job.

[00:46:31] Speaker 05:
We don't do that as a matter of agency law, virtually ever unless, as Judge Wilkins said,

[00:46:39] Speaker 05:
There's no other rational way to look at that.

[00:46:44] Speaker 05:
And that seems to be an extraordinary assumption.

[00:46:47] Speaker 05:
I think the assumption is that we expose legal error and send it back.

[00:46:50] Speaker 05:
And the statute seems to assume that because we send it back to them to do something.

[00:46:55] Speaker 05:
And if they don't act on it, then the private cause of action arises.

[00:47:00] Speaker 05:
They have the opportunity to not act.

[00:47:03] Speaker 05:
It just gives rise to a private cause of action.

[00:47:07] Speaker 01:
Correct, they have a right of first refusal to correct the error identified by the court.

[00:47:13] Speaker 05:
Right, right.

[00:47:16] Speaker 05:
And if I could follow up one other thing in response to Judge Katz's question about your fallback, you said, absent something extraordinary, the legal reasons would be reviewable under the theory that that could then inform

[00:47:38] Speaker 05:
prosecutorial decision by the commission on remand.

[00:47:44] Speaker 05:
What is, what did you reserve in your absence?

[00:47:48] Speaker 05:
I don't have your exact formulation, but you said something extraordinary or something quite unusual.

[00:47:54] Speaker 05:
What would that be?

[00:47:56] Speaker 05:
Would that be the block of three naysayers saying it's an independent grant as an independent ground?

[00:48:05] Speaker 05:
We actually claim a prosecutorial

[00:48:08] Speaker 05:
discretion reasons.

[00:48:11] Speaker 01:
I don't know that had a specific scenario in my mind.

[00:48:14] Speaker 01:
I was just trying to avoid being absolutely categorical about it.

[00:48:17] Speaker 01:
But I do think like there is.

[00:48:19] Speaker 05:
So we have to write opinions.

[00:48:22] Speaker 01:
Of course, the rules.

[00:48:25] Speaker 01:
I think new models is a good example.

[00:48:29] Speaker 01:
I think part of the era of new models was to assume or

[00:48:37] Speaker 01:
The legal analysis, the 30 some odd pages of legal analysis is so intertwined with the eventual exercise of discretion that given the relationship there.

[00:48:49] Speaker 00:
So what if you had a situation in which they just to follow up on what Judge Mollett asked, what if you have the same situation, but then the controlling commissioner say, and even if everything we've said so far about the law is wrong,

[00:49:00] Speaker 00:
it's still not going to matter because we still wouldn't go forward because as a matter of resource expenditures and enforcement priorities, we think this is not the kind of case that warrants going forward.

[00:49:11] Speaker 01:
Well, in our view, there's review of the discretionary reasons as well.

[00:49:15] Speaker 00:
Right, so I think the way it's teed up was that you have to assume that there's not understanding that you resist that assumption.

[00:49:21] Speaker 00:
But if you just will resist that assumption for a second,

[00:49:25] Speaker 00:
and engage on the theory that there are discretionary grounds that are unreviewable.

[00:49:32] Speaker 00:
And then there's also legal grounds that everybody agrees would be reviewable, but the statement is just made plain on the face of the statement of reasons.

[00:49:40] Speaker 00:
Even if everything we say about the legal grounds is just wrong.

[00:49:43] Speaker 00:
And we think this is our best view of the law, but we acknowledge that there's room for debate.

[00:49:47] Speaker 00:
It might just flatly be wrong.

[00:49:48] Speaker 00:
It wouldn't matter because we still wouldn't go forward for the following discretionary and by assumption unreviewable reasons.

[00:49:57] Speaker 01:
I hesitate because I think that would set up a potentially very easy evasion of judicial review just by using particular magic words to evade review.

[00:50:05] Speaker 04:
And so I thought your position is that it's reviewable.

[00:50:12] Speaker 04:
You're defending Orlowski under which contrary to law review includes review of discretionary grounds.

[00:50:23] Speaker 04:
So it would all, so I mean, that is resisting the hypothetical.

[00:50:27] Speaker 01:
I'm trying to get you not to resist that.

[00:50:31] Speaker 01:
That's why I wasn't, yes, Your Honor.

[00:50:34] Speaker 05:
But if we're in a world where, and this is just hypothesizing a court were to hold that claims about prosecutorial judgments and resources by three are not reviewable.

[00:50:53] Speaker 05:
full stop, absent, assuming first they say they are completely independent as Chief Judge Trinivasan proposed, and there's nothing facially illegitimate.

[00:51:02] Speaker 05:
It's not, you know, we only go after Democrats or Republicans.

[00:51:06] Speaker 05:
They are, we are overwhelmed.

[00:51:10] Speaker 05:
This one looks to us like it's moot.

[00:51:15] Speaker 05:
The entities don't exist anymore.

[00:51:20] Speaker 05:
They want us to say someone should have filed something when they didn't file it.

[00:51:23] Speaker 05:
We can't go back in time and fix it.

[00:51:26] Speaker 05:
There's nothing productive that the commission could do here in the narrowed circumstances of this case.

[00:51:38] Speaker 05:
Full stop.

[00:51:39] Speaker 05:
And so we would still vote against going forward, even if we were wrong on the law.

[00:51:46] Speaker 05:
He's just accepting for these purposes answering this question that we will not review that.

[00:51:52] Speaker 05:
We've said that.

[00:51:53] Speaker 05:
Then do you lose or then do you envision this statute as saying that, look, they gave legal reasons.

[00:52:05] Speaker 05:
We assume that those will have relevant effect on remand, on reconsideration if we point that out to them.

[00:52:16] Speaker 05:
And then we will send it back.

[00:52:18] Speaker 05:
And if they still feel the way they are, they can either all vote to dismiss or they can do nothing.

[00:52:26] Speaker 01:
The latter scenario, Your Honor.

[00:52:28] Speaker 01:
And because going back to Judge Pillard's point that Congress made dismissals reviewable actions.

[00:52:35] Speaker 01:
And if there's reviewable reasons given for taking a reviewable action, then

[00:52:41] Speaker 01:
a reviewing court needs to be able to look at those reasons.

[00:52:44] Speaker 01:
There's law to apply.

[00:52:46] Speaker 01:
Not doing so, I think again, runs into serious separation of powers concerns, especially in light of Loper-Brite, which of course held that courts shouldn't even defer to an agency's interpretation of the law, let alone let it go unreviewable and let an agency or a minority even of an agency have final say

[00:53:08] Speaker 01:
on the meeting of the wall.

[00:53:09] Speaker 05:
When I'm back to where I started, which is, did you really mean to hedge when you said absent extraordinary circumstances or something unusual in response to Judge Katz's?

[00:53:19] Speaker 01:
I suppose I misspoke, Your Honor.

[00:53:21] Speaker 05:
I know, there could be some other scenario you're thinking of.

[00:53:24] Speaker 01:
I probably got tangled up in the hypotheticals, but like in a world where the action could be rendered.

[00:53:33] Speaker 01:
So here's my confusion.

[00:53:35] Speaker 01:
Under the crew cases, basing

[00:53:38] Speaker 01:
a dismissal on prosecutorial discretion grounds, renders the action an unreviewable action.

[00:53:46] Speaker 01:
In that world, then yes, I think if the discretionary reasons are, if it's bulletproof that they are independent and they form an independent basis, then yes, then you have what the crew case has held, which is that it insulates the legal reasons from review.

[00:54:03] Speaker 01:
But if part of the hypothetical is the world which I believe

[00:54:06] Speaker 01:
we're operating in, which is where Congress has made the action of dismissal reviewable full stop, then yes, a reviewing court can review reviewable legal reasons, again, given to justify that reviewable action.

[00:54:22] Speaker 05:
Then the next argument from your friends is going to be, and I'm in the hypothetical situation here where we're not reviewing the claims about prosecutorial resources.

[00:54:36] Speaker 05:
Why isn't that an advisory opinion for us to opine upon the law when these people whose explanation we're reviewing have said, and we don't care about the law.

[00:54:50] Speaker 05:
At the end of the day, it would have no effect on our decision.

[00:54:52] Speaker 01:
I think the answer to that is Aiken's, that a court cannot know and should not presume to know

[00:55:01] Speaker 01:
whether the commission would exercise this discretion in the same way under a correct understanding of the law.

[00:55:08] Speaker 05:
Even if they say, we don't believe them.

[00:55:12] Speaker 01:
Oh, I apologize.

[00:55:13] Speaker 05:
Even if they say we come to this thing, even if we're all, it's chief judge, even if we are dead wrong on the law, we still would vote against reason to believe for

[00:55:25] Speaker 05:
discretionary reasons.

[00:55:27] Speaker 01:
I think the only way to test that and to ensure that it's not in service of just an invasion of judicial review of the legal reasons would be to send it back.

[00:55:39] Speaker 05:
I guess I would have thought you would have added that the decision would affect the right of a press of private right of action to go forward.

[00:55:45] Speaker 05:
It has still legal consequences in this case, which it doesn't normally.

[00:55:48] Speaker 00:
Absolutely.

[00:55:51] Speaker 00:
That's true.

[00:55:53] Speaker 00:
Make sure my colleagues don't have additional questions.

[00:55:59] Speaker 14:
I did want to ask you about Orlowski and give you a chance to maybe put forth your best argument from the text of FICA for why we should review for reasonableness or arbitrary and capricious review.

[00:56:12] Speaker 14:
I mean, FICA says we review for contrary to law.

[00:56:15] Speaker 14:
Throughout the US Code, there are statutes that either point to the APA standards, which include arbitrary and capricious review, or there are many statutes that use some variation of the APA formulation.

[00:56:29] Speaker 14:
But FICA is actually quite distinct in referring only to contrary to law.

[00:56:35] Speaker 14:
And so I'd like to understand your best argument from the text and structure of FECA for why Orlowski is correct, because I didn't see very much argument from the text in your brief.

[00:56:47] Speaker 01:
So I think as the split panel on Commission on Hope recognized, the contrary to law language mirrors not in accordance with law from APA 70682.

[00:57:02] Speaker 01:
And the text of APA 70682

[00:57:05] Speaker 01:
we believe makes clear, given the word otherwise in that sentence, that arbitrary, capricious, abusive discretion are merely forms of being not in accordance with law.

[00:57:16] Speaker 14:
Why should we read contrary to law and not in accordance with law to mean the same thing?

[00:57:23] Speaker 14:
It's not clear to me that historically those are in fact entirely overlapping concepts.

[00:57:31] Speaker 14:
Do you have any historical evidence for why they would be that way?

[00:57:36] Speaker 01:
Um, not that I could point to at this moment, your honor, apologize, but I think I would point to APA 559, which states that provisions of the Administrative Procedure Act that are not expressly excluded by an organic statute still come forth and apply.

[00:57:54] Speaker 01:
And so nothing in FECA precludes APA 706

[00:57:59] Speaker 01:
to A from being harmonized with the contrary to law standard, which is what Orlowski did in annunciating a standard review.

[00:58:05] Speaker 14:
And nothing in FICA then explicitly overturns an agency's prosecutorial discretion either.

[00:58:11] Speaker 14:
559 is not perhaps a very helpful provision for your view, given the strong underlying presumption of prosecutorial discretion for executive branch agencies.

[00:58:25] Speaker 01:
I think the work of rebutting APA 701A2

[00:58:29] Speaker 01:
Again, it's done by FICA's express cause of action for judicial review of dismissals.

[00:58:36] Speaker 01:
And again, the duty to go forward upon reasonably or probable cause to believe merits findings.

[00:58:43] Speaker 01:
And so given that, if there was nothing in FICA that rebutted 701A2, then yes, given APA 559, it could come forth and apply, but FICA successfully rebutts it.

[00:58:57] Speaker 01:
701A2 remains in the background, but there's nothing similar that would prevent 7062A, the arbitrary capricious abuse of discretion standard, from being applicable and again being harmonized with the contrary to law standard.

[00:59:14] Speaker 01:
I think that as

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

[00:59:17] Speaker 05:
Finish your thought, please.

[00:59:19] Speaker 01:
Your honor was interested in the textual arguments for why this is the correct understanding of contrary to law.

[00:59:26] Speaker 01:
I would also submit that 3109A8, it contains a cause of action not only to challenge the commission dismissal, but also a cause of action to challenge commission failures to act or delay.

[00:59:39] Speaker 01:
And the Supreme Court in track and this court

[00:59:44] Speaker 01:
This Court has repeatedly said that the track factors and the common cause factors are the factors courts are to apply in deciding whether FEC delay is contrary to law.

[00:59:56] Speaker 01:
And those factors explicitly rest on factual and discretionary reasons.

[01:00:02] Speaker 01:
that overlap with the type of discretionary reads that are put forth.

[01:00:05] Speaker 14:
But after 45 committee, the FEC can remedy a failure to act simply by taking a reason to believe vote.

[01:00:11] Speaker 14:
And even if it's deadlocked, that satisfies the failure to act holding.

[01:00:19] Speaker 01:
It can remedy a failure to act in the conformance period by deadlocking on reason to believe.

[01:00:25] Speaker 01:
But I think

[01:00:26] Speaker 01:
Our larger point is that there's overlap between the discretionary reasons that potentially qualify as contrary to law.

[01:00:33] Speaker 01:
So if in the failure to act context, the commission's discretionary reasons for not moving faster can be found contrary to law under FECA in a failure to act claim, it would make no sense to interpret contrary to law this exact same standard in a different way just for purposes of dismissal suits under the same provision.

[01:00:56] Speaker 01:
I would say that's the strongest textual evidence.

[01:00:58] Speaker 05:
There's been some mention of Heckler versus Cheney and non-review of agency exercises of prosecutorial discretion.

[01:01:09] Speaker 05:
Other than the two crude cases, are you aware of any case where you have a multi-member decision-making body that concerns about

[01:01:24] Speaker 05:
use of resources or other discretionary judgments have been treated as the agency's exercise of prosecutorial discretion?

[01:01:38] Speaker 05:
I am not aware of a... And HECLR precludes review of an agency's exercise of prosecutorial discretion.

[01:01:47] Speaker 01:
Is that right?

[01:01:50] Speaker 01:
That is correct, yes.

[01:01:53] Speaker 05:
When three commissioners say, well, here's what we think.

[01:01:56] Speaker 05:
Is that an agency's exercise of prosecutorial discretion?

[01:02:04] Speaker 05:
Even if we look at their reasons as part of our analysis.

[01:02:08] Speaker 01:
No, but I would, I would submit that.

[01:02:10] Speaker 01:
So there's nothing in FICA that FICA creates one dismissal and made it reviewable.

[01:02:18] Speaker 01:
And there isn't another type of dismissal that's a,

[01:02:22] Speaker 01:
prosecutorial discretion dismissal that could possibly be exercised even by a majority of the commission.

[01:02:28] Speaker 01:
But prosecutorial discretion, as the FEC's own policy statement says, is a rationale for dismissing.

[01:02:35] Speaker 01:
It's not an action in and of itself.

[01:02:38] Speaker 01:
So I don't think even four or five or six commissioners could kind of press the prosecutorial discretion action button because that doesn't exist in order to try to insulate

[01:02:48] Speaker 01:
review.

[01:02:49] Speaker 01:
It always remains just a reason that can't overturn Congress's decision to make dismissals reviewable.

[01:02:55] Speaker 06:
Thank you.

[01:02:57] Speaker 00:
Thank you, counsel.

[01:02:58] Speaker 00:
We'll give you some time for rebuttal.

[01:03:00] Speaker 00:
We'll hear from the commission next.

[01:03:08] Speaker 00:
Ms.

[01:03:08] Speaker 00:
Ward.

[01:03:10] Speaker 13:
Good morning, and may it please the court.

[01:03:12] Speaker 13:
Shayna Ward for the Federal Election Commission.

[01:03:14] Speaker 13:
Panel decisions in this case, new models, and commission on hope all relied on a well-reasoned principle of law.

[01:03:21] Speaker 13:
A commission dismissal of an administrative complaint is unreviewable if the dismissal turns in whole or in part on prosecutorial discretion.

[01:03:31] Speaker 13:
This principle reflects a thoughtful application of FICA and longstanding circuit and Supreme Court precedent.

[01:03:37] Speaker 13:
What these cases have made clear is that there are two categories of cases.

[01:03:42] Speaker 13:
First, those that are reviewable under FECA's contrary to law standard because they relied on an interpretation of the law.

[01:03:50] Speaker 13:
And second, those that are presumptively unreviewable because the agency exercised its inherent prosecutorial discretion.

[01:03:58] Speaker 13:
These cases reflect a plain reading of the contrary to law standard.

[01:04:02] Speaker 13:
FECA does not limit the commission's enforcement discretion by providing specific requirements for the exercise of that discretion.

[01:04:09] Speaker 13:
Thus, when the commission weighs practical enforcement considerations, FECA provides no law to apply.

[01:04:16] Speaker 13:
And therefore, these decisions are left within the agency's inherent decision-making.

[01:04:20] Speaker 09:
I'm a little concerned that you could always inject

[01:04:24] Speaker 09:
prosecutorial discretion on any of these decisions going forward and then lead to this type of deadlock when the statute was designed to correct any type of political corruption.

[01:04:37] Speaker 13:
What the statute provides your honor is for reviewability on contrary to law findings.

[01:04:43] Speaker 13:
So that is when the commission has made a purely legal decision that remains reviewable.

[01:04:49] Speaker 13:
However, what is within the agency's discretion as set forth in heckler are those inherent enforcement priorities that are best left within the agency's decision-making.

[01:05:01] Speaker 04:
And so can you identify any

[01:05:05] Speaker 04:
any other area of law or any other statute where an agency can transform a reviewable action into a non-reviewable action, not just an action entitled to deference, but non-reviewable, just by changing the reasons that it uses in support of that action.

[01:05:27] Speaker 13:
Well, I don't necessarily agree that it's changing the reasons and I'm not, you know, because is a unique statute and the commission is unique in that manner that it allows this limited review ability for contrary to law findings.

[01:05:42] Speaker 13:
But I don't take that as far as suggesting that there's somehow a change that's being made when commissioners are making these enforcement decisions.

[01:05:55] Speaker 13:
They can make them both at the outset when an administrative complaint comes in.

[01:05:59] Speaker 13:
That happens regularly.

[01:06:02] Speaker 13:
And that happens not only

[01:06:04] Speaker 13:
you know, by four or more commissioners or five or more commissioners, but rather six or more commissioners can decide at the outset that the case is not one recognizing its enforcement priorities, that it should not go forward.

[01:06:20] Speaker 13:
The same is to be said at the reason to believe stage.

[01:06:23] Speaker 13:
When that vote happens, commissioners can then decide that this is not one based on these inherent responsibilities that they're in charge of, that this is worth pursuing further than that.

[01:06:35] Speaker 02:
At that stage, though, doesn't it take four votes to dismiss based on prosecutorial discretion?

[01:06:42] Speaker 13:
So FECA does not contain an explicit requirement for four votes to dismiss.

[01:06:47] Speaker 02:
But there's a general provision, though, for the commission to take action.

[01:06:50] Speaker 13:
Right, that's correct, Your Honor.

[01:06:52] Speaker 13:
30109 contains a four vote requirement to initiate certain actions, to defend, to initiate an appeal.

[01:07:02] Speaker 02:
Let me ask you this way, if three commissioners want to dismiss, does the case get dismissed?

[01:07:08] Speaker 02:
what happens after that your honor is that there is a separate vote to close the file and this was no i understand that but i'm asking you a different question just in general if three commissioners want to dismiss does the case get dismissed they call for a vote for dismissal if three of them want to dismiss based on prosecutorial discretion does the case get dismissed yes your honor and and it happens based on that that second vote um what the 45 uh the three votes is enough to dismiss

[01:07:34] Speaker 13:
Not based, so I think there's a couple of different steps there.

[01:07:39] Speaker 13:
Again, the statute does not specify that a majority is required to dismiss an action.

[01:07:43] Speaker 13:
That much is clear.

[01:07:45] Speaker 13:
And so when those three votes are at a split vote dismissal on a reason to believe vote, what happens then?

[01:07:53] Speaker 02:
I'm asking you a different question, which is in general, if three commissioners just want to vote to dismiss based on prosecutorial discretion,

[01:08:02] Speaker 02:
Does the case get dismissed?

[01:08:04] Speaker 02:
Yes, you're out of this context.

[01:08:06] Speaker 13:
Sure, I understand.

[01:08:07] Speaker 13:
That's correct, Your Honor.

[01:08:08] Speaker 13:
That is sufficient in that in that way.

[01:08:10] Speaker 13:
Yes.

[01:08:11] Speaker 02:
So what's the statutory basis for that because I thought that the statute said that you need four votes to take action.

[01:08:17] Speaker 13:
Right.

[01:08:18] Speaker 13:
So the four votes to take action to initiate an action.

[01:08:21] Speaker 13:
And so this was not an action.

[01:08:23] Speaker 13:
No, your honor.

[01:08:24] Speaker 13:
And let me take a step back because I may have mistakenly agreed with that overall principle that three votes are necessary or enough to dismiss because I was going to highlight the 45 committee case, the recent case, which held that

[01:08:38] Speaker 02:
I think I'm asking you a really simple question because you're representing the FEC and I'm just asking you a question about how do things work at this commission.

[01:08:46] Speaker 02:
If three commissioners say we want to vote based on prosecutorial discretion to dismiss this case, does the case get dismissed?

[01:08:53] Speaker 02:
No, Your Honor.

[01:08:53] Speaker 13:
What happens then is there needs to be... Thank you.

[01:08:55] Speaker 02:
So your answer is no.

[01:08:56] Speaker 02:
That's correct.

[01:08:57] Speaker 02:
Okay.

[01:08:57] Speaker 02:
So then my question is, in the context of a statement of reasons, which gets to be made by a controlling

[01:09:08] Speaker 02:
no go, I call them the no-go commissioners.

[01:09:11] Speaker 02:
They don't wanna move forward.

[01:09:12] Speaker 02:
They get to make the statement of reasons because they've controlled the action.

[01:09:17] Speaker 02:
The commission can't go forward without four votes.

[01:09:19] Speaker 02:
So if three commissioners say, we don't wanna go forward, they can't go forward.

[01:09:23] Speaker 02:
So they're the controlling minority.

[01:09:25] Speaker 02:
So they get to write this statement of reasons.

[01:09:28] Speaker 02:
And within their statement of reasons, they throw in, and we rely on prosecutorial discretion.

[01:09:33] Speaker 02:
Why is that?

[01:09:35] Speaker 02:
and action of the commission because it takes four votes to dismiss based on prosecutorial discretion.

[01:09:42] Speaker 02:
These three did stop the enforcement because of the reason to believe finding but their views about prosecutorial discretion are not controlling.

[01:09:52] Speaker 02:
If they voted three votes for prosecutorial discretion let's not move forward and four people voted we have reason to believe the case would move forward.

[01:10:02] Speaker 02:
So three votes for prosecutorial discretion is not a controlling action of the commission, is it?

[01:10:08] Speaker 13:
Well, what the DCCC case held is that in this very limited scenario, those three votes, the opinions of those commissioners that voted against moving forward on the merits on enforcement,

[01:10:20] Speaker 13:
are providing the reasons and for the court to review why the commission acted as it did.

[01:10:25] Speaker 02:
I understand, but it seems to me that what's controlling about what they did is not vote for reason to believe because they cannot move forward.

[01:10:33] Speaker 02:
If three commissioners vote, we don't want to move forward.

[01:10:37] Speaker 02:
But whatever they say about prosecutorial discretion, why isn't that just superfluous?

[01:10:41] Speaker 13:
Well, it isn't superfluous like your honor because in this scenario there has to be some ability for and this is what the DTC case held for the court to understand why the commission acted as it did.

[01:10:51] Speaker 13:
And because those commissioners are providing those reasons and if it's based on those enforcement.

[01:10:56] Speaker 13:
priorities that they've set forth.

[01:10:58] Speaker 02:
But those are their reasons, the three of them.

[01:11:00] Speaker 02:
But it would have taken four commissioners to dismiss based on prosecutorial discretion, correct?

[01:11:05] Speaker 13:
No, Your Honor.

[01:11:06] Speaker 02:
And what happens- I thought you just agreed to meet with me.

[01:11:08] Speaker 02:
That's true.

[01:11:10] Speaker 13:
To clarify, what happens in a split vote dismissal, if there's a 3-3 or a 2-2, whatever the case may be, under that scenario, that has been the vote on reason to believe.

[01:11:21] Speaker 13:
That's the vote that matters for purposes of understanding if

[01:11:25] Speaker 13:
This action is reviewable.

[01:11:27] Speaker 13:
Subsequently, what happens then is a separate vote to close the file.

[01:11:31] Speaker 13:
That is the final action that ends and dismisses the case.

[01:11:35] Speaker 05:
And just send that down.

[01:11:37] Speaker 05:
Closing the file dismisses is the same as dismissing the case.

[01:11:40] Speaker 13:
That's that's in this in this scenario and that's where I want it to point to the course of opinion recently in 45 committee.

[01:11:48] Speaker 13:
The court explained and this is consistent with commission practice is that a split reason to believe vote does not result in an automatic dismissal of the complaint.

[01:11:57] Speaker 13:
rather a separate vote to close the file is needed.

[01:12:00] Speaker 13:
And the reason why is because otherwise the case would remain in kind of this purgatory stage where nothing has happened.

[01:12:07] Speaker 13:
I just want to clarify that closing the file is the same as dismissing.

[01:12:09] Speaker 13:
Yes.

[01:12:10] Speaker 02:
Yes, your honor.

[01:12:11] Speaker 02:
So in this case, though, there is a certification of dismissal.

[01:12:17] Speaker 02:
And it says that three commissioners voted in part on Hekli versus Cheney, which is prosecutorial discretion.

[01:12:25] Speaker 02:
but five commissioners voted just to close the file.

[01:12:29] Speaker 02:
So the position of the commission is not to dismiss based on prosecutorial discretion based on that certification vote, is it?

[01:12:36] Speaker 13:
The commission's dismissal in that case is, or I'm sorry, the commission is dismissing the file five to one, and that was the certification.

[01:12:45] Speaker 13:
However, the three that decided against finding reason to believe, it's their vote that matters, and I realize this is unique, but it's their vote that matters for purposes of understanding why the commission did not go forward.

[01:12:58] Speaker 02:
But so you're saying that we should assume that the whole commission voted to close based on prosecutorial discretion in the face of explicit evidence that only three of the five commissioners that voted to dismiss relied on prosecutorial discretion?

[01:13:10] Speaker 13:
No, Your Honor.

[01:13:11] Speaker 13:
I'm just saying that for purposes of this exercise, we're pointed to the three commissioners that decided against moving forward with an enforcement action to understand why they prevented enforcement from taking place.

[01:13:23] Speaker 02:
And I guess my question is,

[01:13:25] Speaker 02:
when we're looking at what they said, why aren't we just focusing on what they said about reason to believe?

[01:13:30] Speaker 02:
Because that's what was controlling.

[01:13:32] Speaker 02:
Because what they said about prosecutorial discretion, that's just three people who are not able to speak for the commission.

[01:13:39] Speaker 13:
So if I'm understanding your question correctly, you're asking why are we looking just to the statements of those three commissioners?

[01:13:46] Speaker 02:
No, I'm asked.

[01:13:47] Speaker 02:
I understand why we look to those three commissioners.

[01:13:50] Speaker 02:
It's because they prevented enforcement from happening because we need four votes to enforce.

[01:13:55] Speaker 02:
And if three of them don't want to, they're controlling.

[01:13:57] Speaker 02:
They've controlled the decision not to move forward.

[01:14:00] Speaker 02:
But I'm saying, why does it matter what they say about prosecutorial discretion?

[01:14:04] Speaker 02:
Because they're not controlling.

[01:14:05] Speaker 02:
with respect to a dismissal based on prosecutorial discretion?

[01:14:08] Speaker 13:
Well it matters again just for this limited exercise and I again realize that this is a unique scenario that's based on this court's precedent stemming from DCCC and NRC and others.

[01:14:19] Speaker 13:
For purposes of understanding reviewability we have to look to those statements and whether or not it's based on a reason to believe

[01:14:25] Speaker 13:
Or, I'm sorry, whether it's based on a legal decision a legal determination, or those inherent enforcement priorities matters determining if it's under the way that the commission's procedures currently work.

[01:14:38] Speaker 00:
If the three controlling commissioners decide not to go forward for reasons having nothing to do with core legal reasons in the way we've been talking about them, but have to do with core discretionary reasons, like they don't think enforcement priorities and resources ought to be expended in this area.

[01:14:52] Speaker 00:
That's all they wanted.

[01:14:54] Speaker 00:
That's all they're resting their decision on.

[01:14:56] Speaker 00:
Is it possible under the way the commission's procedures now operate for the three controlling commissioners to write a statement of reasons that's only about what we would call core discretionary considerations and they just don't engage in the law at all.

[01:15:09] Speaker 00:
Even if the three commissioners want to go forward, think there's a reason to believe and there's a legal violation and it ought to be investigated to the ends of the earth.

[01:15:15] Speaker 00:
If three other commissioners think, no, I'm not even focused on the law.

[01:15:19] Speaker 00:
I'm only focused on non-core legal

[01:15:23] Speaker 00:
considerations, I'm focused on core discretionary considerations.

[01:15:25] Speaker 00:
And that's the reason I don't want to go forward.

[01:15:27] Speaker 00:
Can that be what the sum and substance of the statement of reasons is?

[01:15:31] Speaker 13:
It can be.

[01:15:32] Speaker 13:
And sometimes you'll see that not just in split boat dismissals, you'll see that in a five zero or six or depending on the makeup of the commission that will, despite perhaps even what the general counsel has laid out in the general counsel brief is recommended to the commissioners that they have nonetheless, you know, so if that happens and we get a case,

[01:15:52] Speaker 00:
in which the only statement of reasons we have by the, what we call the controlling commissioners is only prosecutorial discretion, core prosecutorial discretion grounds.

[01:16:03] Speaker 00:
Then that's all we have before us as the reason that the agency didn't go forward.

[01:16:09] Speaker 13:
Yes, your honor.

[01:16:09] Speaker 13:
And I think in that scenario, the court is left without any, you know, there's nothing in FECA that sets sets forth how a court should review those enforcement.

[01:16:19] Speaker 11:
But in other contexts like,

[01:16:23] Speaker 11:
If someone files a petition asking an agency to conduct the rulemaking and the agency declines, we review that, but it's very deferential review.

[01:16:36] Speaker 11:
We basically say when the agency decided not to move forward with the rulemaking, was their explanation reasonable?

[01:16:44] Speaker 11:
Was it adequately explained?

[01:16:48] Speaker 11:
And is it not contradicted by the record?

[01:16:52] Speaker 11:
And as long as it's kind of, we treat it very deferentially, and as long as it meets those three metrics, we uphold the agency.

[01:17:04] Speaker 11:
That's the law that we apply, even, you know, in the kind of abuse of discretion realm or a decision like that.

[01:17:16] Speaker 11:
Why shouldn't we apply that same type of a law to what you would call a prosecutorial discretion decision by the commission in this context?

[01:17:32] Speaker 13:
Because, Your Honor, I think that that headbutts against heckler and the presumption of unreviewability.

[01:17:39] Speaker 11:
It's a presumption, though.

[01:17:40] Speaker 11:
But if we say that the presumption is overcome,

[01:17:46] Speaker 11:
then why isn't what I just described the way that we would review that prosecutorial, that exercise of prosecutorial discretion?

[01:18:01] Speaker 11:
Is it reasonable?

[01:18:03] Speaker 11:
Is it adequately explained?

[01:18:04] Speaker 11:
Is it not contradicted by direction?

[01:18:07] Speaker 13:
Right, and that is a very deferential level of review, and I recognize that.

[01:18:12] Speaker 13:
I think that what the Commission on Hope and New Model's cases were attempting to say is that because FECA does not set forth the requirements of how the commission can exercise these priorities, it only rests on this contrary to law finding.

[01:18:30] Speaker 13:
So even taking into account those additional factors that she mentioned, whether or not it's reasonable,

[01:18:37] Speaker 13:
that still runs counter to the presumption provided under Heckler.

[01:18:41] Speaker 00:
Don't we already know that the Heckler standard, at least the Heckler presumptions already overcome at least to some extent because part of prosecutorial discretion under Heckler, and I'm just reading from Heckler, is whether the agency is likely to succeed if it acts.

[01:18:56] Speaker 00:
And that has to take into account the likelihood that the legal theory is correct.

[01:19:02] Speaker 00:
And so an agency can exercise prosecutorial discretion by having a view of the law and deciding not to go forward based on a view of the law.

[01:19:10] Speaker 00:
But everybody agrees, I think, I don't think you dispute the proposition that if the exercise of prosecutorial discretion is based on a conclusion of law and that's set forth, that can be reviewed.

[01:19:22] Speaker 00:
as contrary to law, even though it's an exercise of prosecutorial discretion, it can be reviewed as contrary to law under this statute.

[01:19:28] Speaker 00:
Isn't that right?

[01:19:29] Speaker 13:
I think what the court has made clear is that you cannot pluck out legal decisions that are closely intertwined with these prosecutorial discretion decisions.

[01:19:36] Speaker 13:
What is review?

[01:19:37] Speaker 00:
What I'm saying is suppose you have a situation in which the agency just says, and it's all six of them, all six commissioners, they just say,

[01:19:44] Speaker 00:
I don't want to go forward in this case because my view of the law is that the theory that the general counsel has put forward is just wrong as a matter of law.

[01:19:53] Speaker 00:
And therefore I'm going to exercise my prosecutorial discretion not to go forward.

[01:19:56] Speaker 00:
I'm reading Heckler and I think that is that in any other context would be considered an exercise of prosecutorial discretion, I believe.

[01:20:03] Speaker 00:
And, but we know under this statute that that's reviewable, even though it's enveloped by

[01:20:09] Speaker 00:
language about an exercise of prosecutorial discretion, because it's predicated on a determination about the legal merits of the theory, it's reviewable as contrary to law.

[01:20:19] Speaker 13:
Right.

[01:20:20] Speaker 13:
So what I think has to happen is that it's explicit that the commission has exercised prosecutorial discretion.

[01:20:25] Speaker 13:
And second, to your point, Your Honor, that they have set forth those factors that are outlined in Heckler.

[01:20:30] Speaker 13:
I think that needs to be clear.

[01:20:32] Speaker 00:
But one of the factors that's outlined in Heckler is a conclusion about law.

[01:20:36] Speaker 00:
and we know that that's not enough to insulate it from review because it can be the exercise i'll call it an exercise of prosecutorial discretion but if it's grounded in a legal predicate and that's the only reason for the exercise of prosecutorial discretion the whole point of this statute is that that can be reviewed even though it's called prosecutorial discretion it can be reviewed as contrary to law because the reason for not going forward the prosecutorial discretion for not reason for not going forward is entirely premised on a legal error

[01:21:05] Speaker 13:
I think if there is a line to be drawn, there is one in which there's a scenario that's based entirely on the law and just the words there are prosecutorial discretion.

[01:21:15] Speaker 13:
However, I want to just hesitate a little bit there because I don't wanna go down the path of those statements that include interwoven legal analysis, litigation risk, weighing of the evidence.

[01:21:30] Speaker 13:
Those are classic prosecutorial discretion factors that are still somehow based in the law

[01:21:35] Speaker 13:
But yet that remains unreviewable as a matter of prosecutorial discretion.

[01:21:38] Speaker 00:
But I suppose the theory is, I think this legal theory that the general counsel is putting forward is erroneous.

[01:21:46] Speaker 00:
And therefore, I don't want to expend my resources on pursuing this theory.

[01:21:51] Speaker 00:
Is that reviewable as contrary to law?

[01:21:54] Speaker 13:
I don't think it is, Your Honor, because I don't think it has to be the only conclusion.

[01:22:00] Speaker 00:
Isn't it every single time a prosecutor says,

[01:22:04] Speaker 00:
This is, I disagree.

[01:22:06] Speaker 00:
Every single time the agency would say, I disagree with the general counsel's theory of the law.

[01:22:10] Speaker 00:
And therefore, as an exercise of prosecutorial discretion, we're not moving forward.

[01:22:16] Speaker 00:
That's reviewable.

[01:22:17] Speaker 00:
I think you even said that's reviewable.

[01:22:18] Speaker 13:
Correct.

[01:22:18] Speaker 00:
And then if they just tack on, therefore, I don't want to expend my resources on reviewing this.

[01:22:23] Speaker 00:
It's saying exactly the same thing.

[01:22:25] Speaker 00:
Of course saying we don't want to go forward is the same thing as saying we don't want to expend our resources on it.

[01:22:29] Speaker 00:
But you haven't added anything.

[01:22:30] Speaker 00:
but it somehow magically renders it unreviewable.

[01:22:32] Speaker 13:
What I think this court should look to in making that determination of reviewability versus unreviewability is still what is set forth in Heckler.

[01:22:40] Speaker 13:
So in those statements, when you're talking about the weighing of the evidence and all of those things, the agency resources are best suited spent on this violation or another.

[01:22:50] Speaker 13:
And so if it's outlining some of those Heckler factors, I think that that remains in the category of unreviewability.

[01:22:56] Speaker 11:
So let's suppose the controlling commissioners or let's say it's make it even easier.

[01:23:02] Speaker 11:
All six commissioners say, you know, the Supreme court found that, you know, these particular acts violate campaign finance laws, but we think that the Supreme court got it wrong.

[01:23:19] Speaker 11:
And so we're not going to expend our resources

[01:23:25] Speaker 11:
going forward with such a case.

[01:23:27] Speaker 11:
And, you know, we think that, you know, the weight of the evidence is weak, et cetera, et cetera.

[01:23:34] Speaker 11:
Non-revealable?

[01:23:36] Speaker 13:
I think these are classic decisions that are part of prosecutorial discretion, weighing those different legal reasonings as part of other factors that go into the commission's priorities.

[01:23:52] Speaker 13:
And I think I would point back to this court's precedent holding that it doesn't have to be the decision that this court would have come to.

[01:24:01] Speaker 13:
It just has to be a reasonable one.

[01:24:03] Speaker 11:
And so I think taking that- So the commissioners could say, we declined to follow the Supreme Court's interpretation of the statute because we know better.

[01:24:14] Speaker 11:
And based on that, we are exercising our

[01:24:21] Speaker 11:
and that is not contrary to law, that's not reviewable, that's hecklerly cheating.

[01:24:27] Speaker 13:
What I think that scenario poses is one of abdication.

[01:24:30] Speaker 13:
And I think that that is a separate category of cases that still remain reviewable.

[01:24:36] Speaker 13:
If the commission categorically refuses to enforce a particular

[01:24:44] Speaker 13:
you know, claim or set of claims based on an erroneous interpretation of the law, but it has to be an explicit policy to create abdication.

[01:24:54] Speaker 13:
But your hypothetical, Your Honor, I think would kind of toe that line potentially.

[01:24:59] Speaker 11:
What about the fact that it's black leather kind of settled law in the Supreme Court, our circuit, pretty much every court,

[01:25:10] Speaker 11:
that one species of abuse of discretion is if the decision maker, whether it's an agency or a law court, in making a discretionary call, it relied upon an erroneous legal consideration.

[01:25:32] Speaker 11:
But that's per se an abuse of discretion.

[01:25:35] Speaker 11:
Coons v. U.S.

[01:25:36] Speaker 11:
is a Supreme Court case.

[01:25:38] Speaker 11:
There's lots of others and from our court saying, so if one species of abuse of discretion is reviewing for whether discretion is infected with a legal error, then doesn't that mean that contrary the law has to include some form of abuse of discretion review because

[01:26:08] Speaker 11:
Use of discretion is customarily understood to include correcting legal errors.

[01:26:16] Speaker 13:
I think that is correct.

[01:26:17] Speaker 13:
I would agree with you on that, Your Honor.

[01:26:20] Speaker 13:
If the statements at issue rested on those erroneous legal grounds, the abuse of discretion standard would apply.

[01:26:28] Speaker 13:
If in your hypothetical, you're suggesting that what's not present are those factors that are set forth in Heckler, then I do think that that would be in the category of reviewability, because that would be potentially a contrary to law finding.

[01:26:44] Speaker 11:
I guess what I'm trying to get at is once the camel's nose is under the tent, so to speak, with abuse of discretion being part of what contrary to law means, then in four penny, in four pound, you review all of it.

[01:27:03] Speaker 11:
But maybe you review all of it very deferentially.

[01:27:06] Speaker 11:
Like I said, is it reasonable?

[01:27:07] Speaker 11:
Is it adequately explained?

[01:27:09] Speaker 11:
Is it not otherwise contradicted by the record?

[01:27:12] Speaker 11:
and we move on.

[01:27:14] Speaker 13:
Right.

[01:27:15] Speaker 13:
And I do think that that was the universe of reviewability previous to Commission on Hope.

[01:27:21] Speaker 13:
There was some level of reviewability.

[01:27:23] Speaker 13:
I recognize that.

[01:27:25] Speaker 13:
And so, however, as you articulated, it remained very deferential.

[01:27:29] Speaker 13:
And so the sea change, so to speak, and if there was one, was not really one of the outcome, because the outcome, I think, would still remain the same.

[01:27:40] Speaker 04:
I have a question about

[01:27:42] Speaker 04:
What, because your position seems to turn on the nature of the reasoning.

[01:27:49] Speaker 04:
And under Orlowski, I think it's all legal reasoning, but let's say there's statutory reasoning and then there's prudential reasoning.

[01:27:59] Speaker 04:
And I take you to be saying that prudential reasoning puts, sort of turns off the reviewability that the statute provides in 30109.

[01:28:11] Speaker 04:
And I understand you're following us.

[01:28:15] Speaker 04:
You're defending something that we invented.

[01:28:18] Speaker 04:
What are the reasons that amount to what people have been referring to as prosecutorial discretion?

[01:28:29] Speaker 04:
What is that category of reasons?

[01:28:31] Speaker 13:
When, and just to make sure I'm understanding your correction, there's certainly policy reasons.

[01:28:38] Speaker 13:
If I can articulate some of those, namely that the commission should be in charge of exercising and setting its own priorities.

[01:28:47] Speaker 13:
What Congress did not create was a statute such that private litigants would be setting the commission's priorities.

[01:28:54] Speaker 13:
And moreover, that the Congress did not fear inaction by the commission.

[01:29:00] Speaker 04:
In other words, creating the commission as such, creating this bipartisan nature of it, was there reasons that, I mean, it's really important under the way you're viewing the statute, it determines whether something's reviewable or not.

[01:29:13] Speaker 04:
Is it enough just to say, and in the exercise of our prosecutorial discretion, that's it, end of story, no inquiry.

[01:29:21] Speaker 13:
I don't, and I don't think that's what New Models or Commission on Hope held.

[01:29:25] Speaker 13:
What I think those cases made clear is that it wasn't just the magic words.

[01:29:29] Speaker 13:
What needed to be present was some understanding that there was prosecutorial discretion based on the factors set forth in Hackler.

[01:29:38] Speaker 04:
So those are agency priorities and the three members get to set them?

[01:29:47] Speaker 04:
I mean, what if in,

[01:29:49] Speaker 04:
the chief judges type A, type B cases, the three commissioners say we want to prioritize type A cases and not type B cases.

[01:30:00] Speaker 04:
But there was a policy statement on the books promulgated by a majority or all of the commissioners that said type B cases shall be prioritized.

[01:30:11] Speaker 04:
then presumably that has to be the assertion that in our discretion, it is our policy to de-prioritize the very type of cases that the Commission, Qua Commission, has said we prioritize.

[01:30:23] Speaker 04:
Presumably that can't be

[01:30:25] Speaker 04:
a kind of reasoning that renders the decision unreviewable.

[01:30:28] Speaker 13:
I assume you would agree with that.

[01:30:30] Speaker 13:
I think I would agree with that because perhaps that would fall into the category of potential abdication.

[01:30:36] Speaker 13:
I do recognize that abdication can't not be inferred necessarily from ineffective enforcement.

[01:30:43] Speaker 13:
It has to be an explicit policy.

[01:30:44] Speaker 13:
But if there is one, then that could be something that this court should be able to review.

[01:30:49] Speaker 00:
This scenario, if you have a situation in which

[01:30:53] Speaker 00:
Let's suppose we agree with you, just for purpose of this question, that there are core discretionary grounds that are either unreviewable or viewed with extraordinary deference.

[01:31:02] Speaker 00:
I'm not sure there's a huge practical distinction between them.

[01:31:04] Speaker 00:
Let's just suppose that it's gonna, that challenge is gonna fail.

[01:31:07] Speaker 00:
And those are set forward in the statement of reasons.

[01:31:12] Speaker 00:
And let's just say it's, can you have a statement of reasons where it's a majority of the commissioners?

[01:31:17] Speaker 13:
You can.

[01:31:17] Speaker 13:
Yes.

[01:31:18] Speaker 00:
So let's, let's say it's a majority.

[01:31:19] Speaker 13:
Let's say it's potentially the way that the statements, I'm sorry to interrupt the way that the statements usually take place is because there has been a split vote and there, you know, necessitates a statement of reasons.

[01:31:29] Speaker 13:
There could be a factual and legal analysis.

[01:31:30] Speaker 13:
There could be other documents.

[01:31:31] Speaker 00:
I'm just trying to take it outside of the situation.

[01:31:34] Speaker 00:
So let's say it's a majority or even uniformity, but these are the reasons that they're set forth.

[01:31:37] Speaker 00:
And part of it is

[01:31:39] Speaker 00:
enforcement priorities, kind of core discretionary considerations that would in a normal HECLA case would be unreviewable.

[01:31:49] Speaker 00:
And then part of it is a legal disposition that everybody, I think even you would agree, would be reviewable were it the only rationale that was set forward.

[01:31:57] Speaker 00:
And suppose that the statement of reason says, we honestly don't know if based on the discretionary considerations alone,

[01:32:07] Speaker 00:
we'd not go forward.

[01:32:09] Speaker 00:
We just don't know, but it's affecting us.

[01:32:12] Speaker 00:
We do take those into account.

[01:32:14] Speaker 00:
And then we also have these legal reasons and the legal reasons turn out to be wrong.

[01:32:19] Speaker 00:
Is that statement of reasons subject to review for contrary to law, even though it includes discretionary considerations where the commission, the commissioners who sign onto it specifically say, we don't know whether those standing alone

[01:32:35] Speaker 00:
would be enough to keep us from going forward.

[01:32:38] Speaker 13:
I think as long as they are present, that is sufficient.

[01:32:42] Speaker 13:
The one qualifier.

[01:32:43] Speaker 00:
Sufficient for what?

[01:32:45] Speaker 13:
Sufficient to preclude revealability.

[01:32:47] Speaker 00:
Even if they say, affirmatively, we actually don't know that these alone would prevent us from going forward.

[01:32:54] Speaker 00:
We don't have to worry about that because we also have these legal reasons.

[01:32:57] Speaker 13:
Right, so certainly the legal reasons would remain reviewable.

[01:33:00] Speaker 13:
And the court could separate let me let me put it this way, if there's a separate claim or count in the in the administrative complaint, the one that's based on legal reasons that could be reviewable.

[01:33:12] Speaker 13:
If I'm taking your head, it's all the same.

[01:33:14] Speaker 13:
It's all the same count.

[01:33:15] Speaker 13:
Yeah.

[01:33:16] Speaker 13:
and the heckler factors are set forth but it's unclear if they would rely on them that potentially might remove it from from from heckler if it's not clear that the commission is actually exercising prosecutorial discretion that's the kind of clarity that i'm hoping to me if that's true then it seems to me that even your position ultimately varies based on how clear it is that the by hypothesis unreviewable or renewal for extreme deference

[01:33:45] Speaker 00:
under extremely differential standard, how it clear it is that those would independently lead the controlling commissioners not to go forward.

[01:33:54] Speaker 00:
And if it's not clear that those independently wouldn't lead the controlling commissioners not to go forward, then the legal reasons can be reviewed.

[01:34:02] Speaker 13:
I don't review it as necessarily an either or, a fully independent, because I think even in the new model's case, it wasn't entirely clear that it was just this independent ground, because it relied on the pages of legal analysis.

[01:34:15] Speaker 00:
Right.

[01:34:15] Speaker 00:
And we're just trying to decide whether that's what we're going to do as a non-bank court.

[01:34:18] Speaker 00:
And I guess it sounds to me, though, that you're at least allowing the possibility that

[01:34:25] Speaker 00:
You have to take a look to see how clear is it that the core discretionary grounds that are set forth would in fact lead the controlling commissioners and we can even assume it's unanimous not to go forward.

[01:34:37] Speaker 00:
And if we don't know that that would lead them not to go forward, then we can review the legal part.

[01:34:42] Speaker 13:
But I think should be clear from the statements is that the commissioners, you know, show their work, so to speak, such that it's clear that they exercise prosecutorial discretion.

[01:34:51] Speaker 13:
If I mean, and I'm not basing that on the amount of words necessarily on how much is included, but that when your court is taking a look at the statement that it's clear under heckler that they're exercising prosecutorial discretion.

[01:35:03] Speaker 13:
And I think that's what the new models case held.

[01:35:05] Speaker 13:
And that was clear under new models and commission on hope in this case as well.

[01:35:09] Speaker 11:
I'm trying to understand your,

[01:35:13] Speaker 11:
How you think we're supposed to read heckler.

[01:35:17] Speaker 11:
Are you saying that that under heckler prosecutorial discretion is never reviewable.

[01:35:26] Speaker 13:
there is a presumption of unreviewability.

[01:35:29] Speaker 13:
That presumption is overcome if the statute outlines those enforcement criteria and that's not President Fica.

[01:35:37] Speaker 13:
So I would, my position is that that presumption still remains valid because Congress did not explicitly- So Supreme Court said the presumption in Heckler was overcome in this statute, they were wrong?

[01:35:47] Speaker 13:
I'm sorry, Your Honor.

[01:35:48] Speaker 05:
But in terms, Supreme Court said in terms, the Heckler presumption

[01:35:52] Speaker 05:
is overcome under this statute, the FICA statute.

[01:35:55] Speaker 13:
That was wrong?

[01:35:56] Speaker 13:
Amount by that.

[01:35:57] Speaker 13:
Well, I believe your point to Akins, Your Honor.

[01:36:00] Speaker 13:
And I don't read Akins as suggesting that all commission decisions are reviewable.

[01:36:06] Speaker 05:
I asked you, you just said you didn't think the presumption was overcome under this statute.

[01:36:10] Speaker 05:
And the Supreme Court said in terms, you write in Akins, that the presumption's overcome.

[01:36:16] Speaker 05:
Heckler's presumption is overcome by FICA.

[01:36:20] Speaker 13:
Correct, when decisions are contrary to law for that one limited position, whether or not.

[01:36:27] Speaker 05:
The decisions to dismiss, that's what's normally always some sort of form of prosecutorial discretion, but the decision to dismiss is reviewable.

[01:36:38] Speaker 05:
Where in Akins do they say it depends on the factors they relied on?

[01:36:42] Speaker 05:
Well, what I think Akins said- Can you turn to Akins and tell me where you're, because I just must have misread something.

[01:36:49] Speaker 13:
I agree, Your Honor, that Akins rejected the commission's argument that all commission dismissals not to undertake enforcement actions were unreviewable under Cheney because FICA explicitly stated the other.

[01:37:01] Speaker 05:
The over-explicit presumptions overcome.

[01:37:03] Speaker 13:
Correct.

[01:37:04] Speaker 05:
However, I think Akins- By the statutes.

[01:37:07] Speaker 05:
Yes, Your Honor.

[01:37:07] Speaker 05:
Not by three commissioners.

[01:37:09] Speaker 13:
what I say commissioners.

[01:37:11] Speaker 13:
Right.

[01:37:12] Speaker 13:
And I, but I think Akins went on to emphasize though, is that it depended on a legal ground of the decision.

[01:37:18] Speaker 04:
And that's where what, what's reviewable under the statute under 30109A8A is an order of the commission dismissing a complaint.

[01:37:33] Speaker 04:
That's subject to judicial review.

[01:37:35] Speaker 04:
And so what provision of the statute carves out from that some orders of the commission dismissing a complaint.

[01:37:46] Speaker 04:
If the reasons are different.

[01:37:49] Speaker 13:
That's where I think the DCCC, the court's holdings in DCCC come into play because it was the commission's position prior to that case that these statements were not required because they were unreviewable.

[01:38:02] Speaker 13:
Of course, that was rejected by this court.

[01:38:05] Speaker 13:
But what the DCCC case held is that we then look to these statements and in particular, those commissioners that voted against enforcement to determine why the commission acted as it did.

[01:38:16] Speaker 13:
So it's,

[01:38:17] Speaker 13:
it's feca but it's also the d triple c case and and this court's precedent that i i think that harmonize those those reasonings there i have a question about the premise that the reason to believe

[01:38:32] Speaker 02:
determination can include prudential factors.

[01:38:37] Speaker 02:
I believe you answered in response to a question by one of my colleagues that the reason to believe statement could rely solely on prudential factors and I I'm wondering how that squares with the statutory language which says

[01:38:50] Speaker 02:
If the commission determines by an affirmative vote of four of its members that it has reason to believe that a person has committed or is about to commit a violation of this act, then it has to do a bunch of things, including start an investigation.

[01:39:04] Speaker 02:
I'm just wondering where in the statutory provision does it allow a statement of reasons to be based solely on prudential factors?

[01:39:13] Speaker 13:
If your honor, that vote on reason to believe fails because the commission has decided not to find reason to believe based on those discretionary factors.

[01:39:22] Speaker 13:
The statute doesn't doesn't outline that and it doesn't speak to those discretionary factors.

[01:39:25] Speaker 02:
It's not finding the reason to believe that deciding not to prosecute on other things.

[01:39:30] Speaker 02:
And I believe you're finding that side said if they just want to dismiss, they can just not even reach the reason to believe stage.

[01:39:35] Speaker 02:
They can just vote to dismiss.

[01:39:37] Speaker 02:
But once you're in the land of reason to believe it, you have to make a determination that there's reason to believe that that a violation has been committed.

[01:39:48] Speaker 02:
And you think it's okay to say we're not going to make that determination instead we're going to dismiss based on prosecutorial discretion.

[01:39:54] Speaker 13:
No, Your Honor, I think that determination still has to be made.

[01:39:56] Speaker 13:
And it's made by that vote.

[01:39:58] Speaker 13:
And that vote matters for purposes of reviewability, obviously.

[01:40:02] Speaker 13:
But that vote to define not reason to believe can be based on those prudential considerations.

[01:40:08] Speaker 13:
So it's still the vote on reason to believe that's taking place.

[01:40:10] Speaker 02:
But you're agreeing that they must say something about whether there's a reason to believe a violation has been committed.

[01:40:17] Speaker 02:
You're saying they could add on things like prosecutorial discretion.

[01:40:20] Speaker 13:
There must be a vote on reason to believe.

[01:40:22] Speaker 13:
Yes, Your Honor.

[01:40:23] Speaker 00:
they don't have to talk about the law.

[01:40:26] Speaker 13:
They do not, Your Honor.

[01:40:27] Speaker 13:
There can be a vote on reason to believe, and then they can base that decision on the enforcement criteria.

[01:40:33] Speaker 02:
So that's my question, though.

[01:40:34] Speaker 02:
How's the determination that the crime has or has not been committed or the offense has or has not been committed if they don't talk about the offense?

[01:40:41] Speaker 13:
just that they have decided not to find reason to believe based on those factors.

[01:40:46] Speaker 02:
I think that it can be based on the law or- Logically, is that a reason not to find a reason to believe offense has been committed?

[01:40:52] Speaker 02:
I mean, you could decide, I don't want to enforce because of prosecutorial discretion, but is that a reason why, based on the facts in the law, offense has not been committed?

[01:41:00] Speaker 02:
Is that logically congruent?

[01:41:03] Speaker 13:
It's those commissioners' determination that they have decided not to find reason to believe based on that explanation.

[01:41:09] Speaker 02:
So they've decided not to make the determination that the statute says they're supposed to determine.

[01:41:14] Speaker 13:
At that stage, they can vote whether to find reason to believe or not.

[01:41:18] Speaker 13:
And they have proceeded to not to find reason to believe based on those additional considerations.

[01:41:25] Speaker 09:
Are there any general situations where the commission has followed that actions in terms of just allowing prosecutorial discretion to be its initial finding without getting to a legal reason to believe or not?

[01:41:40] Speaker 13:
So if I'm understanding your question, Your Honor, prosecutorial discretion does take place at other parts of an administrative complaint process?

[01:41:48] Speaker 09:
I'm talking about initially.

[01:41:48] Speaker 09:
We had a lot of questions about, would that be a finding initially?

[01:41:52] Speaker 09:
Just to say that under my prosecutorial discretion, I believe for policy reasons, we're not going to do this or that.

[01:41:57] Speaker 09:
Or because of resources, we're not going to evaluate these certain priorities.

[01:42:02] Speaker 09:
Have you all exercised that practice generally?

[01:42:07] Speaker 13:
Yes, your honor, your honor, and in fact, by a majority of commissioners commissioners on either side of the political party is have as well.

[01:42:16] Speaker 14:
This work, just ask you, I mean, after 45 committee, the Commission can.

[01:42:23] Speaker 14:
deadlock on a reason to believe vote and then not vote on dismissal and then there's nothing to review.

[01:42:30] Speaker 13:
Is that correct?

[01:42:32] Speaker 13:
What happens then is that the file essentially kind of remains open and I think that's what 45 committee was saying.

[01:42:38] Speaker 14:
So it just remains open but then there's no judicial review and there doesn't have to be a statement of reasons.

[01:42:43] Speaker 14:
Yes, except for it's just unreviewable because having taken the vote, there's no failure to act.

[01:42:50] Speaker 14:
And if there's no dismissal, you can only have judicial review of either a dismissal or failure to act.

[01:42:55] Speaker 14:
So in a case where they deadlock on the reason to believe there's no judicial review, irrespective of reasons.

[01:43:02] Speaker 13:
Except for the DCCC case, that's my one hesitation that requires those statements, but I agree with your honor's perspective on that.

[01:43:08] Speaker 14:
The statute says we can review a dismissal.

[01:43:10] Speaker 13:
That's right.

[01:43:10] Speaker 14:
So where there's only been a reason to believe vote and no vote on dismissal, there's nothing for us to review.

[01:43:15] Speaker 14:
Is that correct?

[01:43:17] Speaker 14:
So a lot of talk from ECU about the judicial kill switch that they like to say, I mean, under 45 committee, for there to be no judicial review, there simply has to be a deadlock vote and no dismissal.

[01:43:31] Speaker 13:
I think that's right under 45 committee, your honor.

[01:43:35] Speaker 13:
But I'm slightly hesitating just because I do consider the holdings in DCCC that required those statements for the court to understand why the commission acted as it did.

[01:43:48] Speaker 00:
Well, there's also 45 committee itself, which I've read.

[01:43:51] Speaker 00:
And 45 committee doesn't talk about whether there can be a subsequent failure to act.

[01:43:59] Speaker 00:
it only deals with the failure to act that was alleged.

[01:44:03] Speaker 00:
It doesn't mean that it doesn't necessarily mean it has to subject interpretation, but I don't think it treats with whether there can never ever be another subsequent failure to act challenge if the commission just doesn't do anything.

[01:44:16] Speaker 13:
There potentially could be your honor.

[01:44:19] Speaker 00:
So there could be, I mean, I just.

[01:44:21] Speaker 00:
That's not how I read that.

[01:44:25] Speaker 04:
I know we've kept you up here for a long time, but I have a question about the tools available to the commission to manage its docket.

[01:44:34] Speaker 04:
And I wonder if there's a practice, for example, of the general counsel collecting a bunch of complaints that for whatever reason that person thinks are just not, you know, not meritorious.

[01:44:49] Speaker 04:
and proposes them for vote, like, let's just dismiss these, exercise of possible discretion, meritless, frivolous, what have you.

[01:44:57] Speaker 04:
Is that a process?

[01:45:00] Speaker 04:
It seems like many legal institutions would have that kind of process.

[01:45:03] Speaker 04:
And I wonder if that's, I mean, you did say that there can be a vote to dismiss before a reason to believe vote.

[01:45:09] Speaker 04:
And I'm just asking as a practical matter.

[01:45:12] Speaker 13:
Is that batched ever?

[01:45:14] Speaker 13:
I'm not aware of it being batched, so to speak.

[01:45:16] Speaker 13:
I think there is a set of neutral criteria that the commission can consider at the front end to determine whether or not it merits moving forward to the next stage of the administrative review process.

[01:45:28] Speaker 13:
But I'm not aware of a batching, so to speak.

[01:45:31] Speaker 13:
And are those neutral criteria published in the regulations or in the guidance?

[01:45:36] Speaker 13:
I'm not aware of that.

[01:45:37] Speaker 13:
I think when a dismissal takes place at the enforcement, at the early stage provided by the enforcement priority system, that's what it's called.

[01:45:46] Speaker 13:
What the claimant receives is a response back that sets forth why the commission did vote to dismiss it at that stage.

[01:45:53] Speaker 13:
So that is available as well.

[01:45:56] Speaker 00:
Let me make sure my colleagues don't have additional questions.

[01:45:59] Speaker 00:
Thank you.

[01:46:00] Speaker 00:
Thank you, Your Honor.

[01:46:10] Speaker 00:
They're from intervenors now, Ms.

[01:46:22] Speaker 00:
Murphy.

[01:46:25] Speaker 03:
Good morning, Your Honors, and may it please the court, Erin Murphy, on behalf of the intervener.

[01:46:30] Speaker 03:
So I absolutely want to talk about the merits and some issues about the text of the statute and the DCCC case in particular.

[01:46:36] Speaker 03:
But since we are the party that raised standing here, I thought I should probably start with just spending a few minutes on standing and why we don't think that ECU has established it here.

[01:46:45] Speaker 03:
The theory, the principal theory here is the theory of informational standing.

[01:46:49] Speaker 03:
And then the problem is this case is just much closer if you think about it as a spectrum.

[01:46:52] Speaker 03:
much closer to this court's Wertheimer case than to the case dealing with coordination with Hillary Clinton's campaign in that here we have a PAC that disclosed all of its contributions and all of its expenditures.

[01:47:07] Speaker 03:
They have all of that information.

[01:47:09] Speaker 03:
That's the information that was the basis for the complaint they filed was looking at that and saying, hey, we see how much money you spent on this campaign and we see who you got money from.

[01:47:19] Speaker 03:
And the information they want

[01:47:20] Speaker 03:
is to know whether those were coordinated contributions and therefore soft money contributions on the front end.

[01:47:28] Speaker 03:
So that puts this really more in that bucket of the information they want is the information about whether information they already have, factual information they already have was correctly legally classified.

[01:47:39] Speaker 03:
And this court's precedent, this court has said, if what you just wanna know is whether someone committed a violation of the law in the way that they reported information that you already have

[01:47:48] Speaker 03:
that's not sufficient for Article 3 standing.

[01:47:51] Speaker 03:
The other concern that we have is the concern that TransUnion has now made clear that it's not enough to just say you didn't get information, there has to be a downstream effect is how TransUnion talks about it.

[01:48:02] Speaker 03:
And I'm still a little unclear as to what exactly their downstream effect theory is here.

[01:48:06] Speaker 03:
It seems to just be, if we have this information, we can tell people there was a campaign finance violation.

[01:48:11] Speaker 05:
Do co-appointments under TransUnion have to have a downstream effect?

[01:48:14] Speaker 03:
in the discussion of informational injury in TransUnion, when they talk about how it wasn't enough, that the allegation there was, we got the information, but not in the format that Congress required.

[01:48:24] Speaker 03:
And that court said, that's not enough for one, you got the information.

[01:48:28] Speaker 03:
Not my question, do FOIA plaintiffs in FOIA cases.

[01:48:30] Speaker 03:
Oh, I'm sorry, I thought you said we're in TransUnion.

[01:48:32] Speaker 05:
I apologize, that wasn't articulate enough.

[01:48:35] Speaker 05:
Do FOIA plaintiffs have to now show a downstream effect?

[01:48:38] Speaker 05:
I think that's right under TransUnion.

[01:48:39] Speaker 05:
That's how I read it.

[01:48:40] Speaker 05:
It's an Article 3 requirement, it's an Article 3 decision.

[01:48:43] Speaker 05:
That's quite a sea change in the law.

[01:48:44] Speaker 05:
I thought the court, I didn't read TransUnion.

[01:48:48] Speaker 03:
I think in any case, I think in the classic FOIA case where you're seeking factual information that you don't have, which is obviously different from the facts here and the facts in TransUnion, it's gonna be easier.

[01:49:04] Speaker 03:
In some of those cases, it's gonna be easier to talk about how it impacts your programmatic activities.

[01:49:08] Speaker 05:
So you read TransUnion as overruling.

[01:49:11] Speaker 05:
All the cases that have allowed they were all issued without legal authority.

[01:49:15] Speaker 05:
I don't pay that FOIA.

[01:49:18] Speaker 05:
is a right to have information about what your government's up to.

[01:49:22] Speaker 03:
I don't think it's it's overruling them.

[01:49:23] Speaker 03:
I think it's simply saying that you're wrongly decided.

[01:49:26] Speaker 05:
No, I don't think it's even radical free has been around a really long time.

[01:49:29] Speaker 05:
If we didn't have a legal authority, we didn't have a legal authority.

[01:49:32] Speaker 03:
I don't think it's saying all the cases are wrong.

[01:49:34] Speaker 03:
And it's not my argument that all the FOIA cases are wrong.

[01:49:36] Speaker 03:
It's that you do have to ask that question in the FOIA cases.

[01:49:39] Speaker 03:
And it may be that the answer in many FOIA cases is going to be yes.

[01:49:42] Speaker 03:
because you can demonstrate that there's a reason you need the information and something you would do with it.

[01:49:46] Speaker 03:
It's never been required before a plaintiff to say why they why they I think it's actually you've always been you know had to say something I mean the part of it is the idea that congress has created I have a statutory right to information and typically asked for it and I didn't get it.

[01:49:59] Speaker 03:
And I think the way the court has processed that differently and when they distinguished some of those cases in TransUnion is at least in that context, you're asking for information that you do not have.

[01:50:09] Speaker 05:
And that's- So then your case really turns on whether they have it or not.

[01:50:13] Speaker 05:
And what they say is we have this undifferentiated blob of information when in fact, the statute, the information that we're entitled to is a breakdown.

[01:50:25] Speaker 05:
This the problem is, though, and that's very different because we can't have that breakdown information.

[01:50:31] Speaker 05:
In this in this context is critical, it has legal consequence, it has informational value about how the electoral funding scheme is working for those who wish to.

[01:50:44] Speaker 05:
lobby about that issue, who wish to inform voters about that issue, and simply releasing the blob of information.

[01:50:51] Speaker 05:
I don't mean to be disparaging, but sort of this lump of information that lacks the statutorily required identification of what came when.

[01:50:58] Speaker 05:
They don't have what the statute requires.

[01:51:02] Speaker 03:
To the extent they're saying they have only an aggregated blob of information that's just factually wrong.

[01:51:07] Speaker 03:
You can go look yourself.

[01:51:08] Speaker 03:
I did it yesterday on the FEC's website.

[01:51:11] Speaker 03:
Every expenditure, this is what's different from the correct the record case.

[01:51:15] Speaker 03:
Because in the correct the record case, there was just an overhead, we spent $10 million.

[01:51:20] Speaker 03:
And if you go look there today, you will see it says we spent $10 million.

[01:51:23] Speaker 03:
It's not broken down because the

[01:51:26] Speaker 03:
Committee there didn't believe that it needed to provide contributions and expenditures and coordinated contributions here.

[01:51:32] Speaker 03:
They all were reported as independent expenditures.

[01:51:36] Speaker 03:
It's not a blob of information.

[01:51:38] Speaker 03:
That's why they were very careful today.

[01:51:39] Speaker 03:
The only thing that they can claim is a blob of information.

[01:51:42] Speaker 03:
is the small amount of money that's an overhead cost, which is basically not what they're complaining about because what they're saying were the coordinated contributions are the many line items that they already have that say we spent X amount of dollars on the Rick Scott campaign for this ad.

[01:51:59] Speaker 03:
They have all of those dollar amounts.

[01:52:01] Speaker 03:
They just want to know whether those dollar amounts were coordinated contributions or independent expenditures.

[01:52:07] Speaker 03:
So I do think that puts this on the wrong side of

[01:52:09] Speaker 03:
informational injury and much closer to the sports word hammer case.

[01:52:15] Speaker 14:
So I take your point that the logic of trans union, you know raises questions about informational standing here but in trans union the court seems to specifically put eight games to one side so I'm wondering how you

[01:52:28] Speaker 14:
you understand that for this court?

[01:52:31] Speaker 03:
Yeah, because Agans is your classic committee case where they're saying, we think an organization is a committee that needs to share information that's in the organization's possession, factual information.

[01:52:42] Speaker 03:
So they did not know who the contributors were, and they wanted to know who is funding this organization.

[01:52:49] Speaker 03:
And the committee's, you know, APAC's position was, we don't have to share that because we're not a committee.

[01:52:54] Speaker 03:
So in your typical case involving a committee, you know, I don't think it's going to be that hard to get past that, at least the kind of question of whether you have an informational injury at all, because that's information you do not have factual information.

[01:53:07] Speaker 03:
So the consequence of the legal holding that an entity is a committee will be that you're entitled to information that's not presently in the factual record.

[01:53:15] Speaker 03:
And that's how the court specifically distinguished Aiken's in saying what was different in TransUnion was more like this case because they had the information and were just complaining that it hadn't been given to them in the correct format.

[01:53:27] Speaker 14:
Do you think that Aiken's analysis of standing under FICA for voters applies

[01:53:37] Speaker 14:
to organizations or associations like ECU?

[01:53:40] Speaker 03:
Certainly not in the competitive injury way that they're trying to assert here.

[01:53:45] Speaker 03:
The kind of competitive injury that's been recognized, one, has always been in the context of candidates, not even voters, two, has to do with a legal environmental impediment to competition, that you've got to rule something about the way the law works that's putting you at disadvantage.

[01:54:03] Speaker 03:
So I really don't think you can take those principles and apply them in that competitive context.

[01:54:08] Speaker 03:
In the informational context, you know, I mean, we're not here to suggest that committees have no ability to show Article 3 standing for purposes of FECA's provisions, but I do think that you have to look at

[01:54:22] Speaker 03:
at the standing question in light, not just of the Supreme Court's guidance in trans union, but in light of some of their recent cases, talking about how we think about associational standing, the Alliance for Hippocratic Medicine case, all of that, that talks about, hey, we need to be a little bit careful when it comes to committees about thinking about, you know, organizational plaintiffs and making sure that we're holding them, you know, really, really holding them to the same standards that we hold other parties to.

[01:54:49] Speaker 03:
If I may turn to the merits.

[01:54:51] Speaker 03:
So there's a few things I just want to emphasize at the outset about the text here.

[01:54:56] Speaker 03:
One, there's been a lot of discussion today about reviewing the reason to believe vote, but I do think it's quite clear, important to recall that what the court is authorized to review under FECA is not reason to believe votes.

[01:55:11] Speaker 03:
It's dismissals.

[01:55:12] Speaker 03:
And so there, there may be a reason to believe vote that is the reason that there was a dismissal but there may not be, and there doesn't have to be and we know that because subsection a one of the statute explicitly contemplates that you can do that that the FTC can dismiss a complaint without ever having taken a vote on reason to believe.

[01:55:32] Speaker 03:
It says that that's the one kind of vote you can take a vote to dismiss without ever letting the party be the target of the complaint respond.

[01:55:40] Speaker 03:
So we know that you the commission does not have some freestanding obligation to make a determination about reason to believe they are free to decide to not proceed with the case.

[01:55:51] Speaker 03:
on grounds other than the conclusion that there's not reason to believe, and they've long done so.

[01:55:57] Speaker 03:
And I do think that's a critical distinction, because it just often gets a little bit conflated in the sense of, well, we have to be able to know what they think about reasons to believe.

[01:56:05] Speaker 03:
With all due respect, the court doesn't have to know that.

[01:56:08] Speaker 03:
They don't have to answer that question.

[01:56:10] Speaker 03:
And to the extent it's being suggested that DCCC requires the commission or members of the commission to tell you what they think about the merits.

[01:56:21] Speaker 03:
I don't think that's the right reading of it and if it did say that I think that

[01:56:24] Speaker 03:
I think there's a lot of reasons I'm not convinced DCCC is compatible with the statute, and I'm happy to talk about those, but certainly to the extent it compels commissioners to offer their views on the merits, I don't think that's something that this court could be requiring them to do, consistent with the text of the statute.

[01:56:41] Speaker 02:
Because I fully agree that they don't have to enforce they could just take a vote on dismissal, but if they do undertake to make a reason to believe finding doesn't that somewhat cabin what they can do in the context of a reason to believe, because that's not the statute say they have to determine.

[01:56:59] Speaker 02:
that whether there's a reason to believe that a person has committed or is about to commit a violation.

[01:57:04] Speaker 03:
The statute does not say that.

[01:57:05] Speaker 03:
The statute says they have to proceed if they determine that there is a reason to believe.

[01:57:10] Speaker 03:
If four of them determine that there's a reason to believe, it never says that they have to make a determination about whether there's a reason to believe.

[01:57:17] Speaker 02:
So if I guess my question is, if they can just dismiss for prostitutial discretion reasons, why do they even get into this reason to believe construct

[01:57:28] Speaker 02:
once they're there, it does seem that there is a statutory provision that says if you determine this, you have to proceed.

[01:57:34] Speaker 02:
But if you just want to dismiss it for possible discretion, you don't have to enter this world, right?

[01:57:41] Speaker 03:
Sure, absolutely.

[01:57:42] Speaker 03:
But I don't think the fact that you can do that at the threshold means you can never do it again.

[01:57:47] Speaker 03:
You know, as some of the questioning today has discussed, it may be that you're not quite convinced just by a pure reading of the complaint that it's not a great use of resources.

[01:57:55] Speaker 03:
You want to hear what the target of the complaint has to say in their response.

[01:57:59] Speaker 02:
You want to get some more of that, you want to do all of that, and maybe in the meantime as a... So is there ever a scenario where you could have a reason to believe determination that's based solely on prosecutorial discretion?

[01:58:08] Speaker 03:
I think you can have a commissioner vote that they are not going to determine that there was reason to believe for a reason that has nothing to do with the merits.

[01:58:19] Speaker 03:
I mean, you're being asked, are you making a determination that there's reason to believe?

[01:58:23] Speaker 03:
And I don't think there's anything wrong with a commissioner saying, I'm not going to make that determination because I don't think this is the best use of the commission's resources, whatever your kind of classic prosecutorial discretion explanation may be.

[01:58:34] Speaker 03:
I think that's entirely compatible.

[01:58:37] Speaker 03:
I suspect if this court said you can't do that in that context then the commission would probably shift to hey we're going to take dismissal votes first because otherwise you're precluding us from kind of talking about our real reasons but that to me is why it seems sort of artificial to say well you can say that as long as you're calling it a vote to dismiss but you suddenly can't say that if you know you're a majority of your colleagues call for a vote on reason to believe all of a sudden those things are off limits.

[01:59:03] Speaker 03:
So I think I think it's perfectly appropriate for

[01:59:06] Speaker 03:
commissioners including a majority of the commission to say we're not going to make a determination that there's reason to believe for reasons that are not based on the merits but are instead based on prosecutorial discretion.

[01:59:16] Speaker 11:
Doesn't that counsel towards viewing the statute that everything is reviewable but obviously everything isn't reviewable in the same way if you are reviewing whether they're

[01:59:31] Speaker 11:
exercising their discretion or making a decision based on a legal assessment, then that gets no deference.

[01:59:41] Speaker 11:
But if they are exercising their discretion based on what we would call kind of prosecutorial discretion reasons, that gets a lot of deference, but it's still reviewable.

[01:59:53] Speaker 11:
but rather than trying to figure out how to take some of the vegetables out of the soup, you just review the whole soup, you eat the whole thing, right?

[02:00:04] Speaker 03:
Yeah, I respectfully disagree.

[02:00:07] Speaker 03:
And because, yeah, this gets to the other textual point that I think got a little lost in some responses today.

[02:00:12] Speaker 03:
I heard a point where it was said that FICO authorizes this court to review dismissals full stop.

[02:00:18] Speaker 03:
That's not correct.

[02:00:19] Speaker 03:
FICO authorizes the court to review dismissals for whether they are contrary to law.

[02:00:23] Speaker 03:
And that's a phrase, you could think about this case less as a question of what is a reviewable action, because we don't dispute the act of dismissing is reviewable under FECA.

[02:00:34] Speaker 03:
But the question is, what is reviewable as contrary to law?

[02:00:38] Speaker 03:
And exercises of enforcement discretion are not contrary to law.

[02:00:42] Speaker 03:
You could think they're not reviewable under contrary to law.

[02:00:44] Speaker 03:
I'd probably just say they're not contrary to law.

[02:00:46] Speaker 03:
I mean, you're exercising your enforcement discretion.

[02:00:49] Speaker 03:
So by definition, you're not acting contrary to law.

[02:00:52] Speaker 03:
different semantic ways to put it.

[02:00:54] Speaker 10:
Can I ask how far you would take that?

[02:00:56] Speaker 10:
So I think this was effectively one of the chief judge's hypotheticals.

[02:01:00] Speaker 10:
They say, as a matter of enforcement discretion, we're not finding reason to believe.

[02:01:05] Speaker 10:
Our one and only reason is we don't think a legal violation occurred.

[02:01:09] Speaker 10:
Here's our five pages of analysis.

[02:01:11] Speaker 10:
Do you agree in that situation we would review the legal analysis?

[02:01:15] Speaker 03:
I think in that situation, there's room to review it, and here's why I would say that, because the way that you could review it, and here's how I process that, is I think there's room for a threshold analysis of whether the commission exercised prosecutor enforcement discretion.

[02:01:30] Speaker 03:
And if it's plain on the face of the decision that they say, you know, I mean, to me, the classic is kind of like we've concluded we lack jurisdiction and therefore we will not exercise it as a matter of discretion.

[02:01:41] Speaker 03:
I mean, they're using the word discretion, but it seems to me, if that's all you're saying, it's plain as day that you haven't actually exercised discretion.

[02:01:50] Speaker 03:
So I think you could leave room for, as I think of it, a threshold analysis of whether there has been an exercise of prosecutorial discretion.

[02:01:57] Speaker 10:
I'm not saying this is

[02:01:58] Speaker 10:
exactly what the decision the statement says in this case.

[02:02:01] Speaker 10:
But what if they say, this case is not worth our resources.

[02:02:05] Speaker 10:
The one and only reason is the legal claim following legal claim, subjective evidence is required.

[02:02:10] Speaker 10:
That's not worth our time.

[02:02:12] Speaker 03:
seems like the same result would follow right yeah i mean i'd be happy to talk about why i don't think that's wrong or what they said here but i i think there's a kind of this question if that's what they said yeah and this is why i think you know you quickly get into kind of degrees of and and so to my mind if you're going to have that threshold inquiry

[02:02:30] Speaker 03:
it should be a very narrow one that places the thumb on the scale of, if they say they're exercising prosecutorial discretion, by and large, we take them at their work.

[02:02:38] Speaker 03:
And we need them to have explicitly kind of like articulated the concept of prosecutorial discretion wrong.

[02:02:45] Speaker 03:
I think there's also room under there for, if you say, in my exercise of discretion, I refuse to enforce the law on a

[02:02:51] Speaker 03:
constitutionally impermissible basis.

[02:02:52] Speaker 03:
I think you could then say, I think there's room to treat that as that's not what we would think of as an exercise of discretion.

[02:02:59] Speaker 03:
What I don't think there's room for is the kind of analysis of, well, you said prosecutorial discretion, but you spent like three sentences on that and six pages on the law.

[02:03:09] Speaker 03:
So we think it had more, it mattered more to you, the law than the prosecutorial discretion.

[02:03:13] Speaker 00:
I'm not quite sure I understand why saying that it's grounded in the law makes it something other than an exercise of prosecutorial discretion.

[02:03:20] Speaker 00:
I mean, Heckler just says whether the agency is likely to succeed if it acts.

[02:03:24] Speaker 00:
So why isn't a legal analysis part of an exercise of prosecutorial discretion?

[02:03:29] Speaker 03:
I think to me, this is what I take Heckler footnote for to be getting at, is the distinction between when they say maybe this case would be different if it had been based solely on a conclusion.

[02:03:40] Speaker 03:
Obviously, there was a jurisdictional conclusion and enforcement discussion.

[02:03:42] Speaker 03:
And I take their point in the first sentence footnote for to be if all they said is we don't have jurisdiction, you know, I appreciate that you could view that as itself an exercise of discretion, which is why I think it's preserved in a footnote rather than answered outright, but they do recognize that that could be different.

[02:04:00] Speaker 03:
That could be different because even though in a sense it's it is, you know, it

[02:04:04] Speaker 03:
It is still an exercise of discretion, maybe it's different if your exercise of discretion is 100% based on the law, but I don't think that's the same thing as what hecklers talking about in the text, which is when an agency takes into account likelihood of success that is distinct from saying we've concluded.

[02:04:21] Speaker 03:
There is no violation or we have no jurisdiction.

[02:04:24] Speaker 03:
It's a completely different thing when it when an agency says look like, you know, we may think we're right, but we think we're probably going to lose we've got a bad forum, we might have a good form but we think we could get reversed by the Supreme Court and that would be really bad for our enforcement priorities or even.

[02:04:38] Speaker 03:
You know we think we've got a pretty good case here, but boy it's going to be hard to prove or we don't think we have a great case here and given the resources that all balances out wrong so I don't think the fact that you're talking about likelihood of success can have any can do anything to eliminate.

[02:04:55] Speaker 03:
the rule that you're not able to review that as an exercise of enforcement discretion.

[02:04:59] Speaker 03:
I'm only leaving room for what I view as a pretty narrow universe where the agency explicitly says the only reason we're exercising enforcement discretion is because we've concluded there is no legal violation or we have no jurisdiction.

[02:05:13] Speaker 03:
And I'm happy to say you can't even review that, but I'm also comfortable if the court wants to be leaving room for that heck of a footnote for a universe of cases.

[02:05:21] Speaker 11:
But I'm trying to understand your view of heckler and how that works here.

[02:05:28] Speaker 11:
So you're saying that The Presumption against review ability of non enforcement.

[02:05:39] Speaker 11:
Has not been rebutted or it's only rebutted if certain things are said or

[02:05:46] Speaker 11:
But I'm trying to make sure I understand legally.

[02:05:49] Speaker 11:
Sure, how you are framing this.

[02:05:52] Speaker 03:
Sure, I think there's sort of in my mind two distinct questions so so to the, you know, the aspect of heckler that says, declining to take an enforcement action at all.

[02:06:03] Speaker 03:
That's rebutted by FICA because FICA allows you to review dismissals.

[02:06:07] Speaker 03:
So we're not here arguing, setting aside any constitutional questions about that.

[02:06:11] Speaker 03:
As a statutory matter, we acknowledge that FICA says you can review dismissals.

[02:06:16] Speaker 03:
So it rebuts Heckler to that extent of saying that you can't review the dismissal or the declining to proceed, period.

[02:06:25] Speaker 03:
But heckler then articulates the reasons that you can't traditionally review enforcement discretion and it talks about the reason that you've wanted the core reason you can't do that I mean one is it's executive prerogative but when it talks about how congress could rebut it it explains the way congress would rebut that presumption that you can't review the

[02:06:44] Speaker 03:
exercise of enforcement discretion is by constraining the agency's enforcement discretion.

[02:06:50] Speaker 03:
And Congress has not done that in FICA.

[02:06:52] Speaker 03:
There is no provision of FICA that says you have to go forward with these types of actions.

[02:06:56] Speaker 03:
You have to prioritize this over that.

[02:06:58] Speaker 03:
You must spend X amount of money a year pursuing enforcement actions, nothing like that.

[02:07:04] Speaker 03:
There is nothing in this statute that constrains enforcement discretion at all.

[02:07:09] Speaker 03:
And that means there are no tools available to this court to decide

[02:07:13] Speaker 03:
that the exercise of enforcement discretion is itself contrary to law.

[02:07:16] Speaker 11:
Not even reasonable, adequately explained, not otherwise contradicted by the record.

[02:07:23] Speaker 03:
That is not part of any traditional notion of reviews of exercises of enforcement discretion.

[02:07:28] Speaker 03:
Those are, I will grant you, traditional tools for reviewing exercises of action that agencies take, but there's no tradition of reviewing an agency's decision not to act.

[02:07:37] Speaker 11:
What about that sort of review would implicate

[02:07:41] Speaker 11:
or step on separation of powers?

[02:07:45] Speaker 03:
I think it gets into the concern that traditionally, the kinds of things Heckler's talking about, resource allocation, prioritizing, enforcement priorities, are the prerogative of Article II.

[02:07:57] Speaker 03:
They are the prerogative of the executive.

[02:07:59] Speaker 11:
Making an agency articulate a reasonable explanation and adequately explaining it

[02:08:09] Speaker 11:
ensuring that what they say isn't a lie.

[02:08:12] Speaker 11:
All of that somehow intrudes on the prerogative of the executive.

[02:08:21] Speaker 03:
I think there's a real concern it does, because to what end?

[02:08:24] Speaker 03:
What is the reason courts have to force agencies to provide reasoned explanations for determinations that courts have no ability to review?

[02:08:32] Speaker 11:
So asking the executive not to lie to the public, that somehow intrudes upon the executive's prerogative.

[02:08:41] Speaker 03:
I think what you need is I mean what what the heckler is getting at is, you know, there may be lots of impermissible reasons prosecutors don't bring criminal prosecutions but we don't typically require a prosecutor to put out a statement of reasons to the public explaining it.

[02:08:55] Speaker 03:
Their decisions, you know, are subject to public scrutiny and people can call them out and point out.

[02:09:00] Speaker 03:
If they think that you're not being fair in enforcement, we have a political process, but we do not typically require agencies, prosecutors, executive branch officials to provide a statement of reasons for why they are declining to move forward with an exercise of prosecutorial discretion, and nothing in FICA requires the agency to do so.

[02:09:21] Speaker 03:
There is no nothing in FECA that says, you know, to the requirement that kind of says you've got to have all this controlling commissioner stuff.

[02:09:27] Speaker 03:
I mean, that all comes from this for its precedent.

[02:09:30] Speaker 03:
So, you know, there's, and I'd love to have a discussion about that and about the whole dynamic of the controlling commissioners and all of that.

[02:09:37] Speaker 03:
But the notion that, you know, that it's for the Article III courts to kind of call out the Article II branch and require

[02:09:45] Speaker 03:
them to provide reason explanation seems to me pretty inconsistent with.

[02:09:49] Speaker 04:
Based on I'm trying to follow your, your argument.

[02:09:53] Speaker 04:
This is based on a provision in the statute that says an order of dismissal is subject to judicial review and there's nothing in the statute that says, but

[02:10:05] Speaker 04:
were committing to agency discretion, a certain subset of dismissals.

[02:10:11] Speaker 04:
It's dismissals period.

[02:10:13] Speaker 04:
And I understand that the statute was based in part on the LMRDA, which in Dunlop, there wasn't even a private right of action there, but the Supreme Court read Congress to have overridden any heckler type presumption and say that

[02:10:35] Speaker 04:
the reasons discretion or otherwise are subject to review.

[02:10:39] Speaker 03:
I think there absolutely is something in the statute that tells you this.

[02:10:42] Speaker 03:
It is the contrary to law.

[02:10:43] Speaker 03:
It does not say you get to review them for a start.

[02:10:45] Speaker 03:
But we'd have to overrule Orlowski to get to where you want to go.

[02:10:47] Speaker 03:
I don't think you have to, because I disagree with the FEC.

[02:10:52] Speaker 03:
We take a different position on Orlowski.

[02:10:54] Speaker 03:
But I also appreciate the distinction that the FEC is drawing between applying arbitrary and capricious review when there's been a determination on the merits

[02:11:03] Speaker 03:
As opposed to when there hasn't.

[02:11:04] Speaker 03:
But, you know, I don't think it's the best reading of the statute that there's room for that kind of abuse of discretion to me contrary to law means contrary to law, but even if you thought there was means contrary to statute, it means contrary to statute contrary to constitution use of discretion means it means you interpreted the law wrong you got the law wrong not.

[02:11:22] Speaker 03:
You had all the law right, but we're going to now look at whether we think you were being particularly reasonable and how you applied it, whether we think you engaged in reason analysis.

[02:11:29] Speaker 03:
There's a statute that tells you how to do that.

[02:11:31] Speaker 03:
It's the APA Congress had the API as a model and it did not use the language regulations.

[02:11:37] Speaker 00:
I'm sorry, regulations.

[02:11:39] Speaker 03:
I have to say I haven't like 100% thought through what my position is on regulations or any difference in statutes, but I think there's certainly room for the idea that contrary to regulations could fit within contrary to law, subject to lots of other caveats about regulations and the changing state of administrative law.

[02:11:55] Speaker 00:
So an answer to Judge Filchko, I mean, you think that there could be arbitrary and capricious and abuse of discretion review that qualifies as contrary to law review, but that wouldn't

[02:12:05] Speaker 00:
necessarily take you to the step of saying that core exercises of prosecutorial discretion are also reviewable as an abuse of discretion or as arbitrary and capricious.

[02:12:13] Speaker 03:
And I can just put like just just slightly articulate that differently just to be very clear about our position.

[02:12:18] Speaker 03:
We think the better reading is you can't have either.

[02:12:21] Speaker 03:
I get that.

[02:12:22] Speaker 03:
But I think that it is possible to draw a distinction between the two and say you can, you know, I don't think Orlowski was contemplating

[02:12:30] Speaker 03:
abuse of discretion review of exercises of prosecutorial discretion.

[02:12:34] Speaker 03:
So if the court, I think you could at least draw a distinction and say, we leave and you don't really have to get to it.

[02:12:41] Speaker 03:
In this case, I know it is up before you in this case, but I think it would be coherent for the court to say, you know, we can leave for another day at a question of what scope of abuse of discretion review there is when we're reviewing a determination that's on the merits.

[02:12:52] Speaker 03:
But that does not encompass or Lawsky was never meant to encompass the kind of review we've been talking about today of reviewing

[02:12:59] Speaker 03:
the exercises of enforcement discretion separate and apart from determinations on the merits.

[02:13:04] Speaker 04:
I guess I'm not, I mean, I know a lot of the discussion has talked about prosecutorial discretion as if it is something distinct from the decision whether or not to proceed in a case.

[02:13:18] Speaker 04:
I don't see that.

[02:13:20] Speaker 04:
I think the decision whether or not to proceed with a case, if you're a criminal prosecutor, it's absolutely something that no court scrutinizes.

[02:13:28] Speaker 04:
I mean, except maybe in New York.

[02:13:34] Speaker 04:
So then the question is, what kinds of reasoning

[02:13:37] Speaker 04:
are in the reason to believe determination and what are reviewable.

[02:13:41] Speaker 04:
I mean, if the statute says that the order dismissing is reviewable, it seems like what it is saying is a prosecutorial decision

[02:13:49] Speaker 04:
not to go forward and therefore to dismiss is reviewable.

[02:13:54] Speaker 04:
End of story.

[02:13:55] Speaker 04:
And you don't, I mean, just as in the Brotherhood of Locomotive Engineers, you don't carve something reviewable out of something Congress has said is unreviewable, so too you don't carve unreviewability

[02:14:09] Speaker 04:
out of something that Congress has said is reviewable, unless Congress somewhere tells you that it's doing that carving out.

[02:14:15] Speaker 03:
I'm just not quite following.

[02:14:17] Speaker 03:
And I think where Congress told you they're carving that out is when they said contrary to law.

[02:14:21] Speaker 03:
That has to mean something.

[02:14:23] Speaker 03:
They said there was a constraint on what this court could review dismissals for.

[02:14:26] Speaker 03:
It can review them for whether they are contrary to law.

[02:14:29] Speaker 03:
And you take that phrase you look at it against the body of jurisprudence statutory law heckler the APA, it doesn't track the language of the APA, and it certainly doesn't in and of itself override the general principle that if there is no articulation by Congress of any constraint on an agency's enforcement discretion.

[02:14:47] Speaker 03:
then courts don't have any tools by which you could say that the exercise of enforcement discretion is contrary to law.

[02:14:54] Speaker 03:
So that's why I come back to, you know, I mean, it may seem like a minor distinction, but I find it easier to process it as, you know, it's fine if you want to say that a dismissal that's based on enforcement discretion

[02:15:05] Speaker 03:
is reviewable.

[02:15:07] Speaker 03:
It's a reviewable agency action.

[02:15:08] Speaker 03:
It's just that it is by definition not contrary to law because there is no legal basis by which you could say the enforcement discretion is illegal.

[02:15:17] Speaker 04:
So how does that avoid the so-called magic words problem?

[02:15:21] Speaker 04:
I mean it used to be that the FEC would explain here's why we think we shouldn't go forward, there's some statutory reasons, there's some prudential reasons, and

[02:15:30] Speaker 04:
And the courts would look at that for deferentially, for whether the sort of institutional factors are non-arbitrary and statutory, whatever.

[02:15:41] Speaker 04:
And every case is different sort of how they interact.

[02:15:44] Speaker 04:
But then after CHTO, we have this magic words, like all you need to do is say enforcement discretion.

[02:15:50] Speaker 04:
And that does not seem problematic to you, I gather.

[02:15:54] Speaker 04:
Like just a bare unexplained statement by

[02:16:00] Speaker 04:
a non majority enforcement discretion cuts off review?

[02:16:04] Speaker 03:
Well, I want to separate out two things there, because I think the question about a non majority and the reasoning is distinct.

[02:16:09] Speaker 03:
So I do want to kind of start with the proposition of assume you just have a majority so we can set aside for a moment the distinct D triple C concerns.

[02:16:17] Speaker 03:
But, you know, if you have a majority of the commission, I mean,

[02:16:19] Speaker 03:
They, they still can and do articulate and they take it they dismiss cases for legal reasoning in this very case there was a count that they the controlling commissioners said as to this count we just like agree with the general counsel on the merits were not exercising discretion.

[02:16:36] Speaker 03:
So there's nothing that's standing in the way of the commission continuing to in cases where they think there's a basis to make the legal determination making it.

[02:16:44] Speaker 03:
And they have been doing that.

[02:16:46] Speaker 03:
And I think the commission probably knows this better than I do.

[02:16:48] Speaker 03:
But my understanding is that the percentages actually haven't radically shifted since this court's crew line of cases.

[02:16:56] Speaker 03:
So I don't think the hypothetical that the agency is going to act in bad faith is- But I'm asking you a question.

[02:17:02] Speaker 04:
I mean, really the incentives are quite different.

[02:17:04] Speaker 04:
if your reasoning is going to be reviewed, or the less you say, the more powerful protection you have against judicial scrutiny.

[02:17:15] Speaker 04:
I mean, they may do all kinds of things.

[02:17:17] Speaker 04:
And I don't think the legal issue depends on the degree of total abdication or not.

[02:17:25] Speaker 04:
I really am interested in your view whether that is sort

[02:17:29] Speaker 04:
Exactly what you would anticipate and bless that a reason that just says enforcement discretion or even prosecutorial discretion, even though there's no no criminal prosecution going on.

[02:17:42] Speaker 04:
Is.

[02:17:44] Speaker 04:
just categorically, no review.

[02:17:46] Speaker 04:
Sure.

[02:17:47] Speaker 03:
And I suppose a lot of this comes as a question of, I'm sorry, I was just saying, sure.

[02:17:51] Speaker 03:
And let me respond to your question, not a yes.

[02:17:54] Speaker 03:
So I think a lot of this starts with the lens through which you come at this statute.

[02:17:58] Speaker 03:
And if you come at it by thinking, you know, boy, Congress was trying to make sure that everything the agency, the commission does gets reviewable.

[02:18:05] Speaker 03:
Like I get it.

[02:18:06] Speaker 03:
Then you start to worry

[02:18:08] Speaker 03:
hey, the commission has a way to kind of get in the way of judicial review.

[02:18:12] Speaker 03:
I don't think that's the best way to understand this statute.

[02:18:15] Speaker 03:
I think the better way to understand this statute is Congress is providing a safety valve for instances where the commission actually committed clear contrary errors of law, a narrow universe of cases where the commission did something that is objectively legally wrong.

[02:18:27] Speaker 03:
It wasn't saying, you know, we need to like ensure that we can get into the mental processes of the commission in every case and understand everything they did, because above all things were prioritizing judicial review.

[02:18:37] Speaker 03:
I think the statute would have looked quite different if that's what congress had in mind and contrary to law to me that very narrow phrase that doesn't model other forms of review is saying this this isn't you know we're not super concerned about not non-enforcement this statute is designed to make non-enforcement the default that's why there's a four member affirmative vote requirement that means even in a context

[02:19:01] Speaker 03:
When you have five commissioners, four commissioners who are still a quorum, the minority is supposed to be able to override the majority who wants to go forward with an enforcement action.

[02:19:11] Speaker 03:
Indeed, that's actually like the only thing that the four member affirmative vote requirement accomplishes in FECA is to ensure that even when you don't have six members and you would otherwise have a majority of commissioners of three who want to go forward, the one is supposed to be able to override them.

[02:19:30] Speaker 03:
That's the only time

[02:19:31] Speaker 03:
the four member majority requirement ever even matters.

[02:19:35] Speaker 03:
So, you know.

[02:19:35] Speaker 04:
But it's, I think historically it's not the case that they're saying, great, if there's no enforcement, awesome.

[02:19:41] Speaker 04:
Because, you know, they created the commission because the Department of Justice wasn't doing anything to enforce campaign finance law.

[02:19:47] Speaker 03:
Sure.

[02:19:47] Speaker 04:
But the commission wanted it to be functional and they created a priority of action when they didn't need to.

[02:19:53] Speaker 04:
There could have just been judicial review of legal issues, but they're, they're saying, you know, we don't want to be in a position of forcing the commission to do something that doesn't want to do.

[02:20:02] Speaker 04:
It could have not created and your view they wouldn't have created a priority.

[02:20:06] Speaker 03:
No, I thought that I couple responses.

[02:20:09] Speaker 03:
This is not a citizen suit with an exhaustion requirement.

[02:20:13] Speaker 03:
Congress could have created a citizen suit that simply said, you have to ask the SEC first.

[02:20:18] Speaker 03:
If they don't want to proceed, you get to proceed as long as you have Article III standing.

[02:20:22] Speaker 03:
This is about as far from that as it gets.

[02:20:25] Speaker 03:
There is only a citizen suit if the SEC does two things wrong.

[02:20:29] Speaker 03:
A court has to find that the SEC acted contrary to law.

[02:20:33] Speaker 03:
And then it has to additionally find that the FEC did not conform to a judicial greed of saying that it acted contrary to law.

[02:20:41] Speaker 03:
So I don't, I mean, to look at that and say Congress's priority was ensuring that citizens could always enforce the statute if the FEC declined to do so seems to me to be denying the reality of the statute.

[02:20:52] Speaker 03:
And that's where I'd step back and recall.

[02:20:53] Speaker 03:
I mean,

[02:20:54] Speaker 03:
This would be fair, I don't think I said that.

[02:20:56] Speaker 03:
I didn't suggest you were saying that.

[02:20:57] Speaker 03:
That may be a view I thought I heard articulated a little bit from some of my friends at the podium today.

[02:21:04] Speaker 03:
So I don't think it's really fair to think of this as a classic citizenship provision so much as a safety belt for extreme cases where the commission says, we're just not gonna do anything with a complaint or situations where the commission is not moving forward for reasons that are just,

[02:21:20] Speaker 03:
unambiguously contrary to the law.

[02:21:22] Speaker 11:
Do you agree that abuse of discretion review includes, at least as one species of when something can be an abuse of discretion, a legal error that was relied upon in exercising discretion?

[02:21:41] Speaker 03:
In the classic context, yes.

[02:21:44] Speaker 03:
I mean, I think we're talking generally about abusive discussion, even not my views about this particular statute.

[02:21:49] Speaker 03:
Yes.

[02:21:50] Speaker 11:
Yes.

[02:21:50] Speaker 11:
In other words, that contrary to law review,

[02:21:54] Speaker 11:
could include abuse of discretion, at least in that context, right?

[02:21:59] Speaker 03:
I think in traditional APA review, I mean, what the APA talks about is arbitrary capricious abuse of discretion or otherwise not in accordance with law.

[02:22:10] Speaker 03:
And we accept that in the context of reviewing agency action, the general rule is if the agency relied on reasoning that's contrary,

[02:22:19] Speaker 03:
unlawful reasoning, then that's a basis to conclude that it fits somewhere within APA basis to vacate.

[02:22:30] Speaker 03:
But we're not operating under the APA here.

[02:22:33] Speaker 03:
We're operating under a different statute that has a narrower scope of judicial review.

[02:22:36] Speaker 11:
Well, we're operating under, yeah, Congress used the words contrary to law and in trying to figure out what that means.

[02:22:42] Speaker 11:
Sure.

[02:22:43] Speaker 11:
If that has meant at least for the 50 years proceeding,

[02:22:49] Speaker 11:
The writing of this statute to mean a species of arbitrary, well, you could call it arbitrary and capricious, but you can call it abuse of discretion review and why shouldn't that move the needle?

[02:23:04] Speaker 03:
And I think I may have been, I want to be a little more precise in my answer.

[02:23:07] Speaker 03:
I mean, because there is a textual difference.

[02:23:10] Speaker 03:
The APA treats that as not in accordance with law.

[02:23:14] Speaker 03:
And that is not the language that's in this statute.

[02:23:16] Speaker 03:
This statute uses the language of contrary to law.

[02:23:19] Speaker 03:
And so, you know, to the extent the kind of not in accordance with law, abusive discretion, arbitrary and capricious conception, you know, kind of all fits into and not in accordance with law.

[02:23:29] Speaker 03:
conception under trust classic APA review.

[02:23:32] Speaker 03:
I don't think you can necessarily import all those concepts from APA review into a context where it's can't Congress used markedly different statutory text and it used in the APA.

[02:23:42] Speaker 11:
So contrary to law means something

[02:23:44] Speaker 11:
materially different than not in accordance with law.

[02:23:47] Speaker 03:
I think there's, to me, in the context of a statute like this, where we're already operating in an area that is traditionally not subject to judicial review, where you have extreme separation of powers concerns plus First Amendment concerns, I think there's lots of reasons to read contrary to law as meaning something stricter than not in accordance with law.

[02:24:05] Speaker 14:
Ms.

[02:24:05] Speaker 14:
Murphy, do you have any historical evidence for that distinction?

[02:24:08] Speaker 14:
I mean, because I take your view to be contrary to law means

[02:24:12] Speaker 14:
And you're following up on Judge Wilkins' question.

[02:24:14] Speaker 14:
Contrary to law means contrary to positive law.

[02:24:16] Speaker 14:
Constitution, statute, maybe regulations.

[02:24:19] Speaker 14:
But not in accordance with law, you suggest means something else.

[02:24:22] Speaker 14:
I mean, do you have any historical reason for believing those terms are distinct?

[02:24:28] Speaker 03:
I don't have any kind of universe of cases, statutes I can point you to that use one version of it versus the other, because a lot of time you're just operating under APA review.

[02:24:37] Speaker 03:
So I will admit I'm reasoning more from text and from context here and from the fact that I do think that the thumb ought to go on the scale of reading judicial review narrowly in a context where the Supreme Court has indicated it's questionable whether you can have judicial review at all consistent with the constitutional separation of powers.

[02:24:55] Speaker 03:
So to me, that's a good reason to say unless there were like a really clear body of law saying the phrase contrary to law does clearly encompass all these other types of review that that you should probably err on the side of not reasoning reading it to incorporate it.

[02:25:10] Speaker 03:
But I will also reiterate my point earlier that to me, this is only a debate about whether you can apply that in the context of reviewing legal merits reasoning, not whether you could ever carry it over to address enforcement discretion determinations.

[02:25:25] Speaker 00:
Let me make sure my colleagues don't have additional questions.

[02:25:28] Speaker 12:
For me, the hard case is when the dismissal order, whether it's controlling commissioners or majority, I don't think matters.

[02:25:39] Speaker 12:
when the dismissal order has legal reasoning and purely discretionary considerations jumbled together.

[02:25:52] Speaker 12:
So help me, I mean, if there is legal reasoning, that's reviewable.

[02:25:59] Speaker 12:
So why you said, you know, sort of presume, I think at one point you said, presume that the discretionary

[02:26:06] Speaker 12:
factors are independently sufficient to support the result.

[02:26:13] Speaker 12:
Why would we do that?

[02:26:14] Speaker 12:
Why wouldn't the presumptions run the other way?

[02:26:17] Speaker 12:
If they jumble it all together and don't say each category of reasoning is independently sufficient, we can review the legal piece and send it back

[02:26:30] Speaker 03:
And to me, you know, if I'm taking the hypothetical, right, you're kind of assuming the decision where it's ambiguous, as opposed to the one that's saying clearly, you know, they're clearly mistakenly kind of saying, for our legal reasons, this is our but the one where you just kind of, like, can't can't tell absolutely clearly, you know, to my mind, I think I'd go back to the basic backdrop rule being here being prosecuted tutorial discretion in whole or in part,

[02:26:56] Speaker 03:
And I think that kind of given the constitutional sensitivities in this context that it makes sense to you know you got to kind of err on one side or the other.

[02:27:04] Speaker 03:
And I think in the context of reviewing what are classically traditionally non reviewable actions, the decision not to go forward.

[02:27:13] Speaker 03:
And in the context of the statute that asks whether it's contrary to law, you know, you should be looking for something that tells you that it clearly was contrary to law in a jumbled case.

[02:27:23] Speaker 03:
You can't say it was clearly contrary to law.

[02:27:26] Speaker 03:
You can only say, you know, like maybe, but I'm not really sure it was.

[02:27:30] Speaker 03:
And so, you know, maybe the right way to process that kind of case is by saying, look, the ultimate burden is to prove to us that it was contrary to law.

[02:27:38] Speaker 03:
And if it's ambiguous, like you haven't made that showing.

[02:27:42] Speaker 03:
So the tie goes to

[02:27:43] Speaker 12:
there was nothing contrary to law here and the agency was permissibly exercising its, it's another way of thinking about it is the legal reasoning is bad.

[02:27:58] Speaker 12:
That is contrary to law.

[02:28:02] Speaker 12:
And then the remaining question is whether the discretionary considerations thrown in

[02:28:09] Speaker 12:
makes that reasoning harmless or not prejudicial?

[02:28:12] Speaker 03:
It is.

[02:28:13] Speaker 03:
I mean, but you know, I guess I come back to the point of the ultimate question for this court is, was the dismissal itself, you know, was the action of dismissal contrary to law?

[02:28:22] Speaker 03:
And I just don't think in a case where it's jumbled together that you can clearly say it was contrary to law.

[02:28:29] Speaker 03:
I think the better answer in that context is

[02:28:31] Speaker 03:
you know, they've articulated enforcement discretion and that is not contrary to law and unless and until they kind of tell us they didn't really mean enforcement discretion, they were really doing this all on the basis of law, we're not gonna assume that.

[02:28:44] Speaker 12:
And then just give me 30 seconds on unpacking this order, which to me seems jumbled.

[02:28:52] Speaker 12:
Yeah.

[02:28:53] Speaker 12:
And it's clearly articulated

[02:28:57] Speaker 12:
enforcement discretion.

[02:28:58] Speaker 12:
I don't think it's magic words, but there's at least a plausible reading of it where the exercise of enforcement discretion rests on what I take to be a contested legal issue about whether motivation is an essential element of candidacy.

[02:29:18] Speaker 03:
Sure.

[02:29:18] Speaker 03:
I think that even if you accepted that permission, there's other aspects of the determination of enforcement discretion that are distinct.

[02:29:24] Speaker 03:
Talking about the statute of limitations, the backlog,

[02:29:27] Speaker 03:
You know, to me, that's enough that you don't get to say, well, you had lots of other good enforcement discretion reasons, but we're afraid like one component of it had something to do.

[02:29:35] Speaker 03:
And I would also say, you know, it's really In that case, that at least wanted to be something where it's clearly like, hey, we've interpreted the law and said something like positive about the law that can be reviewed as opposed to

[02:29:49] Speaker 03:
There's some stray mention there that happened to discuss like the law in a way that I'm happy to explain why we don't think is remotely wrong as a matter of the merits.

[02:29:56] Speaker 03:
But that aside, you know, to pluck that out when they're talking about, we got a huge resource constraint problem.

[02:30:01] Speaker 03:
We got a backlog.

[02:30:02] Speaker 03:
We haven't had a forum for a long time.

[02:30:04] Speaker 03:
We got a statute.

[02:30:04] Speaker 11:
Thank you.

[02:30:05] Speaker 11:
But, but, but I'm trying to, when it's jumbled together like this, how

[02:30:15] Speaker 11:
How do you think that the court should perform its analysis?

[02:30:20] Speaker 11:
It should just simply see whether they used words that reflect the exercise of traditional prosecutorial discretion.

[02:30:33] Speaker 11:
And as long as they use those words, then we don't review any further.

[02:30:42] Speaker 11:
Or do we

[02:30:43] Speaker 11:
look at the substance of those words and whether those words make sense, are reasonable, not contradicted by the record, you would say, we don't do any of that.

[02:30:54] Speaker 11:
We just look to see whether the presence of those words implicating discretion is apparent.

[02:31:01] Speaker 11:
And if so, then we stop.

[02:31:03] Speaker 03:
Yeah.

[02:31:04] Speaker 03:
I mean, I think if you have the words, you know,

[02:31:07] Speaker 03:
to put a little more meat on it, just to be sure we're talking about the same thing.

[02:31:10] Speaker 03:
If you've got the words like, we don't think this is the best use of our resources, given that we have a backlog.

[02:31:15] Speaker 03:
I do not think this court has the ability to look at that and say, well, we want to know how many cases do you really have?

[02:31:20] Speaker 03:
How much resources do you really have?

[02:31:21] Speaker 03:
Is that really a fair thing to say?

[02:31:24] Speaker 03:
It's not magic words.

[02:31:25] Speaker 03:
It's not that's not magic words.

[02:31:27] Speaker 03:
That is the expressed view.

[02:31:28] Speaker 11:
Okay.

[02:31:29] Speaker 11:
They're not magic, but they're the sufficient words.

[02:31:32] Speaker 11:
They're the right words.

[02:31:33] Speaker 03:
They are.

[02:31:33] Speaker 03:
They are the right words, but they are the reasons.

[02:31:35] Speaker 03:
I mean, and the agency is operating here under a presumption of regularity that it means what it says.

[02:31:41] Speaker 03:
So it's not simply, you know, oh, we found some words, the quote we said said we can say, so we'll just drop those in.

[02:31:47] Speaker 03:
I mean, you're presuming that they're not lying when they put out a statement of reasons when they articulate these things, they mean that if they don't, they won't say that we don't.

[02:31:56] Speaker 11:
Once we find that the words are present, we don't get to review whether they're reasonable, whether the explanation makes sense, whether it's contradicted by any facts.

[02:32:11] Speaker 03:
If the words we're talking about are an articulation of an exercise of prosecutorial discretion, enforcement discretion, this court does not get to look behind that and say, did you exercise your enforcement discretion in a reasonable way?

[02:32:22] Speaker 05:
What if it were just factually, undisputably wrong?

[02:32:26] Speaker 05:
They said, we think we should not go forward for enforcement discretion reasons and enforcement discretion reasons only, two.

[02:32:35] Speaker 05:
One, we've got a backlog, and two, this is about someone who's not running for election again.

[02:32:41] Speaker 05:
And they are factually wrong.

[02:32:43] Speaker 05:
The Commission has put out on its public.

[02:32:46] Speaker 05:
It's on its website.

[02:32:47] Speaker 05:
It's letters to Congress.

[02:32:49] Speaker 05:
We have zero backlog.

[02:32:51] Speaker 05:
And it is a matter of public record that this person is running for office.

[02:32:55] Speaker 05:
Right again, it's a filing.

[02:32:57] Speaker 05:
They've announced it.

[02:32:58] Speaker 05:
They've got ads going.

[02:32:59] Speaker 03:
And no, I don't I think the backlog piece of it is an independent independent basis that is not traditionally review, even if I just think you know completely factually.

[02:33:13] Speaker 05:
Both, I gave you two and they're both completely factually wrong.

[02:33:18] Speaker 03:
That's unreviewable.

[02:33:19] Speaker 03:
The first one's not because, none of it is because the second part is not.

[02:33:23] Speaker 03:
I don't think there becomes an exception to the tools of the ability to review for cases where you're convinced from information that you have that they didn't exercise their procedural discretion.

[02:33:32] Speaker 05:
The question here is we do have an authority to review and we look at reasons and it's fine.

[02:33:38] Speaker 05:
That's your position.

[02:33:38] Speaker 05:
I just want to make clear that if it is indisputably

[02:33:43] Speaker 05:
actually wrong.

[02:33:46] Speaker 03:
That doesn't matter.

[02:33:47] Speaker 03:
I don't think it's contrary to law for the commission to say, you know, that we're exercising our prosecutorial discretion.

[02:33:53] Speaker 03:
And I just worry that once you go, that's not what I asked you.

[02:33:56] Speaker 05:
I said, is it contrary to law to say we are exercising a decision we would, we would not go forward for two reasons.

[02:34:06] Speaker 05:
It's not worth the resources for two reasons.

[02:34:10] Speaker 05:
We should conserve our resources for two reasons.

[02:34:13] Speaker 05:
One, backlog.

[02:34:15] Speaker 05:
There's no backlog.

[02:34:17] Speaker 05:
Two, candidate's not running again.

[02:34:19] Speaker 05:
Candidate is indisputably running again.

[02:34:21] Speaker 05:
And I just, you say that's not legal error.

[02:34:24] Speaker 03:
I think it's generally not reviewable.

[02:34:26] Speaker 03:
I will give you the caveat that at a certain point, I do think you run into the heckler footnote for kind of concern about abdication.

[02:34:34] Speaker 03:
And if you've got, you know,

[02:34:35] Speaker 05:
Is that an abdication, if it's just factually clearly wrong?

[02:34:38] Speaker 03:
What I was going to say is if you had the commission say that 18 times in a row, and it's clear that there's no backlog, and they're just saying it over and over and over again.

[02:34:48] Speaker 05:
OK, but each time they come up with something factually wrong, but they find something different.

[02:34:52] Speaker 05:
Factually wrong.

[02:34:53] Speaker 03:
You're kind of positing a world where they're able to say 18 factually wrong things.

[02:34:58] Speaker 05:
I don't know where you get your number 18.

[02:34:59] Speaker 05:
I don't know why it suddenly becomes it's perfectly consistent with the law.

[02:35:05] Speaker 05:
It's not contrary to law to be flatly wrong about the facts on which you're depending once, twice, I guess you'd say 17 times, but not 18.

[02:35:15] Speaker 03:
What I'm saying is in Heckler footnote four, what the court talks about is if you reach the point where an agency is abdicating its enforcement duties.

[02:35:25] Speaker 03:
And I don't think you can reach that point based on determination in one case that they said something.

[02:35:29] Speaker 03:
There's an APA case.

[02:35:30] Speaker 03:
This is not an APA statute.

[02:35:32] Speaker 05:
This is an exception to heckler.

[02:35:34] Speaker 05:
That's what I can say.

[02:35:35] Speaker 05:
This is a review.

[02:35:36] Speaker 05:
So I'm trying to understand.

[02:35:37] Speaker 05:
We have to talk about FICA now.

[02:35:39] Speaker 05:
So what FICA tells us.

[02:35:40] Speaker 03:
Sure.

[02:35:41] Speaker 03:
And FICA has said that you can review for contrary to law.

[02:35:43] Speaker 03:
And I think that you could understand contrary to law to incorporate footnote four of heckler in the sense that if you reached a point where you this is what I understand footnote four of hacker to be saying that at a certain point, if you have complete abdication certain point is.

[02:35:57] Speaker 03:
I think you'd have to be able to demonstrate a pattern that tells you that what is really going on is that the agency is just not admitting that they have adopted a complete policy.

[02:36:08] Speaker 03:
Yes, because I think otherwise, you know, you could just have the agency have made a mistake.

[02:36:12] Speaker 03:
And what I'm saying is if there's enough of a pattern that you can look at it and say, look, this is really just a cover for the agency actually having abdicated wholesale its enforcement obligations.

[02:36:23] Speaker 03:
Maybe then you start to get into that abdication dynamic.

[02:36:26] Speaker 03:
But I don't think you can get there just because the commission said one thing wrong in one case that you can demonstrate was actually incorrect about their premise for exercising enforcement discretion.

[02:36:34] Speaker 00:
Let me make sure my colleagues don't have any more questions at this point.

[02:36:37] Speaker 07:
I have one.

[02:36:38] Speaker 07:
You've mentioned constitutional sensibilities a few times, and that might include any number of concerns, presidential appointments, presidential removals, prosecutorial discretion, standing to bring third party suits,

[02:36:53] Speaker 07:
private non-delegation related to that, regulation of core political speech.

[02:36:57] Speaker 07:
I guess maybe can you think of any more reasons why the FEC is unconstitutional?

[02:37:03] Speaker 07:
And when you say constitutional sensibilities, can you just elaborate on what you mean?

[02:37:06] Speaker 03:
So I'm focused on two in principle here.

[02:37:09] Speaker 03:
I mean, certainly lots of other discussions we could have about constitutional issues and maybe this board will soon be having them about other constitutional concerns with the commission.

[02:37:17] Speaker 03:
But the two core ones for me to read.

[02:37:20] Speaker 03:
So I think you have to read kind of like the entirety of FECA against the backdrop of the First Amendment, the fact that we're talking about a statute that's explicitly authorizing an agency to operate in regulating core First Amendment activity.

[02:37:30] Speaker 03:
This court has said that before.

[02:37:32] Speaker 03:
That's been recognized by the Supreme Court.

[02:37:33] Speaker 03:
That in and of itself is a reason to be cautious in reading this statute and the scope of what this statute authorizes.

[02:37:40] Speaker 03:
And then in the context of this particular case, we're talking about at the very least unusual, if not unique, statutory provision in that it is authorizing Article III courts to review determinations by, for the sake of argument, say Article II agencies about decisions not to move forward with an enforcement action

[02:38:00] Speaker 03:
which is something that's extremely constitutionally sensitive.

[02:38:03] Speaker 03:
The Supreme Court more recently suggested they're a little unclear on whether they even think Congress can constrain that.

[02:38:10] Speaker 03:
And so in a context where you've got that sensitivity from a separation of powers perspective, I think that's another reason to be very cautious about reading how broadly

[02:38:20] Speaker 03:
you know, how broadly you would look at these provisions.

[02:38:23] Speaker 03:
And I would point you back, I mean, you know, I concede it's never like the most helpful thing in the world to be pointing to dissents, but this is the principle that Justice Leah articulated in his dissent in Aiken's when talking about, I would review even the question of who has, is a party aggrieved here with that all in mind and recalling that we should be a little cautious when dealing with such an unusual statutory provision from separation of powers perspective.

[02:38:49] Speaker 00:
Thank you, Council.

[02:38:51] Speaker 00:
Mr. Hancock will give you the five minutes that you reserved for rebuttal, and I'll ask you to keep it to five minutes.

[02:38:59] Speaker 00:
You don't have to use the full five minutes unless my colleagues have questions, in which case, of course.

[02:39:03] Speaker 01:
Thank you, Your Honor.

[02:39:04] Speaker 01:
I appreciate that.

[02:39:05] Speaker 01:
Yes, just a couple of points, and I'm happy to take any questions you may have.

[02:39:08] Speaker 01:
First, I just wanted to push back on the separation of power suggestion at the end there a little bit.

[02:39:15] Speaker 01:
If I heard correctly, congressional review of agency action is not a constitutional problem.

[02:39:22] Speaker 01:
It's a constitutional problem not to have congressional review of agency action.

[02:39:26] Speaker 01:
The FEC's enforcement process, again, is a complaint-driven process that ends in final agency action of dismissal.

[02:39:32] Speaker 01:
This is not a situation where you have an individual prosecutor who has made a decision not to indict and then there is no final agency action articulating that decision.

[02:39:40] Speaker 01:
So I think it's just the wrong framing.

[02:39:45] Speaker 01:
Review under FICA doesn't ever require the agency to go forward and do anything.

[02:39:49] Speaker 01:
If the agency feels like it has resource and priority constraints that prevent it from going forward and enforce the law, it never has to do so, but that creates the exact moment you would want a private right of action to go forward, which is why Congress created it in the first place.

[02:40:07] Speaker 01:
FICA is not a law like, say, US v Texas, where that law required DHS to go and arrest more people.

[02:40:13] Speaker 01:
This is a totally different,

[02:40:15] Speaker 01:
situation that makes Heckler a poor fit here.

[02:40:20] Speaker 01:
Second, about the statement of reasons in this case, I just want to push back a little bit on the sense on the notion that it is completely jumbled between law and discretion.

[02:40:30] Speaker 01:
So at Joint Appendix 287-289, the statement of reasons contains three pages of legal analysis explaining why the controlling commissioners were quote unquote, not persuaded by the Office of General Counsel's recommendation to find reason to believe.

[02:40:43] Speaker 01:
three pages of legal analysis before any mention of discretion ever comes up.

[02:40:48] Speaker 01:
So they do answer the no reason to believe question in this statement of reasons, and yet under the crew cases, it's insulated.

[02:40:55] Speaker 01:
As to the statement of law that exists on that last page with the discretionary considerations, the subjective objective distinction between determining whether someone's a candidate is not just a minor technicality.

[02:41:09] Speaker 01:
It's extremely important that goes to

[02:41:12] Speaker 01:
the heart of the determination of when someone crosses that threshold and then has to start reporting as a candidate, has to be subject to FICA's requirement source and limitation requirements.

[02:41:24] Speaker 01:
And if that inquiry is mixed characterized as a subjective one, it becomes incredibly harder to prove and it's going to result in more reporting violations and potentially more candidates

[02:41:39] Speaker 01:
taking in soft money, not subject to FECAs.

[02:41:41] Speaker 01:
Sorry, mischaracterized in what way?

[02:41:44] Speaker 01:
You think it's objective.

[02:41:45] Speaker 01:
Correct.

[02:41:46] Speaker 01:
Okay.

[02:41:46] Speaker 01:
And the commission does as well.

[02:41:48] Speaker 01:
At least majority supported authority from the commission.

[02:41:52] Speaker 01:
Finally, just want to push back really quick on the informational standing piece.

[02:41:57] Speaker 01:
This case is not like Wertheimer.

[02:41:59] Speaker 01:
It's distinguishable from Wertheimer for the exact reasons that the correct the record case distinguishes Wertheimer.

[02:42:05] Speaker 01:
We do not have the particular values of the in-kind contributions from New Republican to Senator Scott.

[02:42:12] Speaker 01:
And New Republican had a broader mission than just its relationship with Senator Scott.

[02:42:18] Speaker 01:
Its mission was to support a broader swath of Republican candidates.

[02:42:21] Speaker 01:
And indeed, in that same election cycle in 2018, it spent nearly $1 million on a House race in California in the 45th district.

[02:42:29] Speaker 01:
And so it's not a fait accompli that all of new Republican spending qualified as in-kind contributions to Scott.

[02:42:38] Speaker 01:
We still don't have the disaggregated breakdown of the values.

[02:42:41] Speaker 01:
And that is the new information.

[02:42:43] Speaker 01:
In addition, part of our informational standing claim is that we also don't have Scott's filings.

[02:42:49] Speaker 01:
Scott, when he crossed the candidate threshold, as we allege in mid 2017, would have had to start filing financial reports with the FEC.

[02:42:58] Speaker 01:
Those are still not filed.

[02:42:59] Speaker 01:
and would have had to file statements of candidacy and organization at that time as well.

[02:43:05] Speaker 01:
Those financial reports could reveal information that is not disclosed to this day, such as maybe additional contributors or other expenditures.

[02:43:13] Speaker 01:
And with that, your honor, unless your honors have any additional questions, we would respectfully request that your honors overturn the crew cases, reverse the district court below, and remand for review of our claims.

[02:43:27] Speaker 00:
Thank you, counsel.

[02:43:27] Speaker 00:
Thank you to all counsel.

[02:43:29] Speaker 00:
We'll take this case under submission.