good morning and may it please the court my name is michael morley and together with co counsel dan backer we represent the appellant's in this case i would like to reserve six minutes for rebuttal please this case is about the internally inconsistent incoherent restrictions on first amendment activities that govern political contributions from pacs that have received at least fifty contributions and have contributed to at least and so congress may impose a six month waiting period before they can contribute the full statutory amount of five thousand dollars per election to a candidate on the other hand the f e c argues that once a group gets that six month mark the amount it could contribute to local state and national political parties get slashed in half the supreme court tells us that fighting actual war apparent corruption is the only constitutionally valid reason why the government can limit campaign contributions at an absolute minimum under heightened what the supreme court has called they've got to do it at each provision independently of just consistency between them so that then one would have claim brought by the new pacs is that it violates equal protection to allow them to contribute only twenty seven hundred dollars per candidate whereas a pac that has the same number of contributors has made the same number of contributions meets all of the other requirements for being a multi cam to the pac but has been registered for more than six months gets to contribute twice as in the best the equal protection challenge yester the limitation of contributions on the six month honor because when when you look at the established pacs claim that when they hit the six month mark before you get it is they asking that you make an independent claim that this should be no six months limitation no limitations on a six month pick at all are you making a claim that it's inconsistent to have that kind of limitation when contributions otherwise change if it is you know this six month package considered a problem but which is both your honor we argue that the f e c has failed to provide any record evidence whatsoever as required by the supreme court's ruling in nixon v string as required by and c and c pac national conservative pac is your problem with the time of six months or is it with the concept of limitation of  waiting period for the exercise of first amendment rights would be unconstitutional if the f e c want to to defend any waiting period it would have to provide some evidence that packs with a certain number of contributors and cannot be used commonsense who'd you say we don't want people to be able to form pacs twenty four hours before election and then give millions of dollars to and because that is just so clearly just on a commonsense tied to the possibility of corruption absolutely your honor and even under our view of the law that would be absolutely prohibited the amount what would be prohibited what your honor is hypothetical where a person dumps a million dollars into a pac and then it turns around and funnels it to a candidate the amount that an individual may give to a pac is  the amount that a cop may give and all that but you missed the point of my question my point of the question is i'm trying to isolate if your concern is the six month period or any period and if any waiting period can be linked change from six months to twelve hours i'm destined only over you a view of the low no your honor because again to qualify for the for the increased limit in canada contributions you would still have to the pot would still have to have received contributions from fifty or more different people and would still have to have contributed to five or more different candidates so if you have a pac that meets those requirements that's received over fifty contributions that's contributed to more than five candidates whether it's formed six months before an election whether it's formed a week before an election and just the feds are checking their records when you want to give somebody the chance to check records i mean people can make up names they do it occasionally get prosecuted for it but it seems to me that some kind of time limitation would make sense and would it be unconstitutional what you your position is absolute is there could be no time limitation while you're honor current law provides that as you get closer to an election by pacs have to make twenty four hour and forty eight hour disclosure requirements so if you wanted to say that the pac had to have made its contributions at least enough time to make those records a development that would be that would be a different case and that w know what would you allow for that limitation but in that bit wouldn't that be a violation of free speech to the extent that it's a waiting period and absolutely would but if you did you'd have to be formed in and of time to meet those requirements i thought your argument would be that that would be unconstitutional i believe that it is your honor but if so there is into the question you think they can be no time limitation placed on somebody to limit their contributions within it within any time any timeframe before an obligation you know that it can be in the requirements that is one of our arguments your honor but you don't have to accept that in order to rule in our favor here we're dealing with a six month waiting period and to go back to your honor's earlier point adam minimum at a bare minimum the f c c can't have it both ways the f c c can't i wanted to talk about that in a minute but i'm here to that you i'd rather you finish if it suits your attack on just this six month donation period you know it's down to about not comparing it to existing pag's absolutely your honor nothing in the record suggests that the risk of corruption that a pack poses changes at the six month waiting period and specifically with regard to the drop in limits that occurs at that six month mark this though i know them as questions of will to but if you do you allow that there can be any time limit that  she on the wall can impose constitutionally on new peg to vittie within some time frame of the election i think that that would be a substantial burden on first amendment rights ron or the supreme court would be there is nine there is precedence suggests that waiting periods are unconstitutional but you don't have to go that far to rule in our own over time as in your view well the support in citizens united the supreme court tells us an intricate part of the supreme court's ruling is that it's the weeks before an election when people the general public are most likely to be interested are most likely to get involved so to say that at the very time when everybody is starting to pay attention and that the average citizen does not order say that because if  happen it is likely to happen about any sophisticated person as opposed to the election as you can get it still be effective isn't it i mean corruption undetected corrupt corruption and to take it before an election is likely to occur closer to the election isn't it it isn't that is i mean i don't that isn't a bit be taken into account that's one possibility your honor but again we're dealing with contributions that are subject to limits we're not talking about whether these pacs can form at the last minute and funnel millions of dollars to a candidate the amount that a pac is allowed even under our view the amount that a pac can give to a candidate even if this waiting period is thrown out the window is still only five thousand dollars and the amount that the pac and receive from any donor is is still limited by federal law as well so again we're dealing with the groups that under the terms under the terms of our as applied challenge have received contributions from more than fifty people so it's not just a fly by night one or two people getting together and inspiring they've contributed to five or more candidates and the record lacks any evidence to suggest that there is a risk of corruption certainly at a six month w which say after you've been in existence for six months the amount you can contribute to political parties gets slashed in half the district court itself echoing your honour's thoughts said that its new grassroots organizations  the type of instruments that lend itself to a circumvention of contribution limits and at the risk of circumvention is particularly great during the initial months of a pax creation and the f e c spends the bulk of its spree echoing your honor's point have received at least fifty contributions have contributed to five or more being scituate absolutely not your honor our argument because we're arguing that this recording part was wrong our argument is that there no evidence to think that the risk of corruption is any greater with a group that's been registered for less than six months then for a group that's been registered more than six months years absolutely no record evidence to suggest that the risk of corruption is different but even if this court disagree even if th court believed that we need to be and the first amendment lets a speech suspicious of these new groups well then that eliminates any constitutional basis we have for slashing the contribution limits on the established groups the groups that have been filing for six months the groups that have a track record of performance the groups where the f e c can vest the gate them if it wants to these are the very groups they are the opposite of what the f e c says we should be suspicious of the opposite of what the district court says we should be suspicious of there is no constitutional basis certainly no anti corruption rationale for reducing the amount that they can contribute simply because they've been around for six months and considering the tailoring of this law i would ask this court to remember that if there is a group that's been registered for six months or more but it's only received contributions from two or three people and it's only contributed to one or two candidates it gets to contribute that higher maximum amount to political parties it gets contribute that thirty three thousand dollars to national parties that ten thousand dollars just stay in local parties forever so again the very groups that were suspicious of groups that have only receive contributions from a handful of people groups that have only contributed to one or two candidates they can make the statutory maximum contribution forever and the groups that we have less reason to be suspicious of that have the wide base of support that have contributed to numerous candidates those are the very groups that have their contribution limits on political party contra shin's slashed in half and you know so that the established pads that meet the criteria they can contribute less money doing it period and the new new six month after yes your honor after a pac has been registered with the f e c for six months if it has received more than fifty contributions and it's contributed a more than five candidates once it hits that six month mark the amount you could contribute to state local and national your argument is it makes no sense at all to put a limitation on a six month tag when in fact you have doubts about six month pag but you allow them to contribute more to the political already than you do to pay as an established more than six million exactly your honor i don't minimum the f e c can't have it both ways either the new groups pose a greater established groups pose a greater risk but there is no anti corruption rationale these days is one question i asked a suspect they going to suggest that is an effort since they limit six months back on what they can give give individuals that they still allow more allow them to have involvement in the political process up in what they give to the party is in that their rationale so in other words you put the limitation on for purposes  that the f e c articulated at pages fifty five fifty six and fifty eight of their brief is that this disparity is necessary to help political party committees amass the resources and funds that they need for effective advocacy which makes no sense when the whole point of the statute is that once groups that want to give money and funds to these political parties have been registered for six months we slash the amount that they give thank you your hon try to distinguish buckley but those efforts are unsuccessful they address the exact arguments raised as far as the six month let me and it's attached twenty seven hundred dollar contribution limit furthermore there's no article three jurisdiction in this case for a number of reasons there are a number of problems with the pack could ever meet the standard and overcome an argument not at all because they can bring a class action that's that's the solution but that's their solution that's a solution so even if even if the class representatives claim lapses and becomes moo is not capable repetition with regard to that same complaining party there is always going to members of the class whose claims don't repeat the case we've cited make that point in fact the confusion over the supposed that election law exception to the movement's requirement i think in part sense to me somewhat that if there's a way to get around it is to be white to lead an individuals to month bank challenge because they've been affected use a class action i don't know that any court on the will want to encourage class actions but it any rate seems to me there's a logical argument that you let a six month committee this been affected by their rights you never going to get it right played out in six months well i think it's partly your honor i think there also a very important reason to uphold the same complaining party requirement as other in otherwise it's essentially an exercise in third party standing when that pacs rights won't be affected going forward at all and so the litigating of the merits in that kind situation would be nothing more than an advisory opinion especially when there are ways there are solutions to that issue that could be taken advantage of but have not in this case any other circus allow standing in a six month other circus had said no it's a little more lenient in the county she don't see the law that way there isn't the fifth circuit explicitly applies this exception and it did so in a case they cite that involves a similar provision but it's distinguish circuit may have a point not that we can follow the fist circuit but that does seem to me that the person who is injured should have a right to at least get a determination that has been injured notwithstanding all the other complaint comments about movements and i just strikes me that there's something about that because this specific group will never be adjudged as to that party well  it's our position that the separate quire meant the cable repetition requirement still should be upheld specially in the election law context especially when the balance in this case had another avenue in which they could have preserved the article three jurisdiction over this case which is c is proposing to us that people in this situation shouldn't try to say to us we do have standing because if the sea thinks the proper avenues for a person to situation these plans is to go by the route of a class action i just want to be sure we understand that if we see you again and you are going against it by a sanction well i understand that actually you thought that was the way they should go the only thing i would change about that your honor is that the courts think that and we think respect to make the elevated five thousand admit that the statute in part contributed to the injury well that the record evident shows that they thought of this pac seven months out and then they waited to register at the six month limit still apply of course but the the first election for which they wanted to contribute at the elevated five thousand dollar amount said of the twenty seven hundred twenty six hundred dollars then that applied was in mid june and they knew about this pact they want to start in november and so if they just file the piece of paper that day in november they could've engaged in the contributions they wanted to and instead they waited it's a situation analogous to the rosary o case that we cite in our brief agree on so so the the problem with the palin's argument on count three and the reason why there is no inconsistency is they very narrowly focus on the corruption interest in terms of what congress is thinking when it's that's the contribution limits and and not only that but they just look at the corruption risk of the recipient so with these other than with the party contribution limits we're also thinking about a different recipient it's not candidates it's political parties and so congress has been very interested in making sure the political parties have enough money  they're all in one of the two staffers with orders that won't that money and why should he in india do make that statement about the purpose of it is to be sure the parties have the money that they need that's something we should really be interested in well here is why it was legitimate for congress to be interested in that so the appellant's misrepresent that the only thing congress can think about when setting the amounts of contribution limits is the corruption of the don't the corruption potential of the donor so w congress enacts a contribution when it decides we need to limit contribution one type of contributions spring cordesman clear there has to be an anti corruption interest to justify the existence of that limit but the supreme court in buckley was equally clear that once congress has decided that some limit is necessary the courts have no scalpel to probe the precise amounts of that contribution limit and when it comes to setting that contribution limit congress is entitle to consider a number of factors one of which includes the corruption of the donor the other thing that congress is constitutionally required to consider is whether the recipients of those contributions still have the ability to amass the funds necessary for effective advocacy that's the the randall case and in buckley the supreme court made that point as well a contribution limits are too low and they restrict the amount of money flowing into the recipient mcadoo fact the first amendment speech rights of that recipient so there is a balance when setting a conflict that balance th inconsistent here doesn't it that you concerned about the six month banks but yet their contributions to the party is greater than the contribution allowed of established by the didn't that lidge inconsistent to make the raby you can justify but it seems inconsistent with here's the justification so the other is looking consistent to you it is it's not it may have face value looking consistent but here's the explanation the corruption risk of those that by the way i think it would looking at is just as to the numbers and maybe there's some justification for that but i'll let you answer that the the corruption risk with the new pacs the ana stablish tax is particular to candidate contribution so the supreme court in mccutcheon recently said that the risk of corruption is at its height when one makes a contribution to a candidate furthermore the circumvention risk that we've described in our brief for the six month pacs the danger is that you'll have people associated with one candidate like what happened with the pacs in this case and the evidence we've provided shows that you have supporters of one particular candidate that go and say ok let's set up we know we're not happy with our individual twenty six hundred dollar contribution limit let's set up a path we can label ourselves a committee and therefore circumvent that lower contribution to candidates and then we can give our preferred candidate five thousand dollars that risk does not also exist with regard to political parties so those new pacs the danger is that their single  reasonably drew a line at six months based upon two factors so one this this six month period promotes the interest of disclosure and so the longest a new pack and go without disclosing under f e c law is six months and so that period of time is the same and so the period of time ensures that there would be no act that graduates to multi county deepak status and gets that five thousand dollar limit that could give that high end amount without having disclose some information publicly to of circumventing the individual by individual contribution back to aiding a pac when that was at the same concern fall outside six months as inside six were because it's more likely that a pack that is don't watch it more likely just is what so it's more likely to have more donors it's more likely to have contributed some work at it it's it will have certainly disclosed information to the f e c because it's required to by law it will be more of a known entity the older it is and sure one year i mean the only only thing that may be true about that is it may be known by the filing none of the rest is stuff is not obvious to me it's not obvious to me at all because maybe that's exactly why it's being inform so it's not obvious to me that the rest of that rationale applies and i want to you just making that up as you go along as good as it sounds ed in the law some ways it's in the legislative history that we cited that surrounds the enactment of this you know these provisions congress wanted to reserve this five thousand dollar limit for more established bonafide groups is the language used in a police opinion that upheld the six month limit  organization then one of these fly by night groups that forms on the even election they wanted to make sure the high end ability to contribute would be reserved for those real groups you're a concept that you are going to is that somehow the political parties wash out much chance of corruption is that sort of the well the condo i know you know that probably a tough thing to say but well certainly the risk corruption is not eliminated there is a risk that justifies the limit is that it is basically that if it goes to the too there's two things controlling here in the congressional analysis to give these heightened limits to political parties so again wants to make sure they have sufficient funds to function especially after congress took away soft money by the way to make i suspect you give away more before i came to the what was that your honor i used to be chief counsel staff right at the u s senate judiciary committee and it's always interesting to me to see what courts say about legislative history if one member and i solve it is amazing to me we sit here i know sometimes that as to what we have to do members of congress don't they generally don't have any idea what a load you know much less i say history but we go about sorta acting as if it does and i'll stop it really shows up on something like this  fundamentally different and that congress debated over this law for years and years and years and it was obviously a very headline making law that was in the us although i still stand by my statement but that's not a question to you they can tell i didn't say that people didn't have press conferences about it  went well but the fact that the reason why these limits are higher and the reason why a new pac contributes to a political party at these elevated amounts is that congress legitimately was looking to make sure that political parties had enough money to function after it took away half its funding when it's a good way soft money in two thousand and two and in the congress has long favor the political parties when an acting contribution was in the supreme court has repeatedly upheld contribution limits that your consistency just feels like you're worried about corruption and you were to back you up you know in a six month pact but you're not worried about it looks like the next you will always worried about corruption of those people as getting that money together no corruptible correct for the higher limits for the six months back to political parties some value is giving to the respectability of the dony the party's correct it didn't have anything to do with the respectability of the is restricted as far as kennedy controversial right for and why is it restricted because their particular corruption interests very particular to candidates not political parties but it also a corruption interest to the pac that sale not to th don't know what do the don't need it's not an inherent it's a risk of corruption with regard to any activity that pac may engage in it's with regard to a very specific type of activity this circumvention scenario that we've submitted evans to demonstrate the american future pac and stop pac themselves presented and so to illustrate american future path know that but the point is i don't want to end that argument evasion the first restriction on the the up the chance of corruption on the people involved and this to six months back right correct and the reason for that is because the people who would be intimately tied with one particular candidate like they were in this case when there's a donation to a political party in contrast that by definition a contribution that goes to support multiple candidates and the whole point is here we want those pacs to be multi candidate and that but it's not required and all that it be most candid that the congress had a legitimate should maybe say it made sense to congress did no later well i mean taking a step back i think the standard view that applies in this case actually doesn't call for this kind of level of scrutiny as to where congress struck the balance in each instance of a contribution limits it's a no scalpel to pro buckley said you know it makes no difference whether it's one thousand or two thousand and so if you just that now for inflation today it's actually more than twenty three hundred dollars which is the amount that the appellant's are challenging in claims want claims to it's the same principle congress is entitle to treat dissimilar groups in different ways and to that point the opponents in this case have provided no evidence i don't think there are you mate is maybe i will hear from  scalpel sledgehammer whatever that's the distinction made an unconstitutional basis you can't make that distinction and there's no justification to make that so as i understand him as the argument is not helpful in the sense of going it would be perfectly fine if it was a two thousand dollars difference but not twenty three hundred that's just the number that you call what congress has set but as i understand i may be wrong their argument is by setting a different that's the constitutional violation what the same thing would have necessarily been  thirty three page opinion it rejected a facial challenge that was brought against all of the requirements for a multi candidate pac as a whole and it said that the law that the law unconstitutionally discriminated between multi candidate pacs and quote ad hoc organizations that is fundamentally different from the equal protection claim we're bringing here which is two sets of groups both of which have received contributions from fifty people both of which have contributed to five candidates the only distinction between them is one's been registered for more than six months you don't see it as an ad hoc group then absolutely not your honor because what buckley tells us is some limits on multi cam of their pacs are necessary quote to prevent individuals from  themselves committees under our as applied challenge an individual can't do that fifty people have to come together fifty people have to contribute as the statute requires they have to contribute to five or more candidates as the statute re but themselves in the same capacity as any of the pay is just a whole nation absolutely your honor that there is no constitutional basis for saying that because fifty people are organizing together and contributing to five or more candidates within six months of an election that they say that that somehow constitutes suspicious or potentially corrupt activity if i can turn to the standing argument the two points with regard to standing the first is the f e c tells us we should have brought this as a class action this court's binding precedent says we shouldn't in sandford s a n d f o r d versus r l coleman realty company an african american plaintive was discriminated against on racial ground trying to rent homes the plaintiffs sued the realty company and wanted an injunction completely prohibiting the realty company from discriminating against anyone and the argument was raised in that case well you didn't bring a class action you're not entitled to that relief this court rejected that argument it said quote it was not necessary to secure a class certification in order to secure such enlarged injunctive relief meaning relief going to all potential renters and if i can read two sentences from this court's opinion this is so because of the settled rule is that whether plaintiffs proceeds as an individual or on a class a suit basis the requested injunctive relief generally will benefit not only the claimant but all other persons subject to the practice or rule under attack since the plaintiffs could receive the same injunctive relief in their individual action as they sought by the filing of their proposed class action class certification was unnecessary in order to give the plaintiffs the injunctive relief they requested through class certification this court adopts what's called the necessity doctrine which is that under rule twenty three b two if you're seeking an injunction against illegal behavior many circuits including the fourth circuit's ruling and sanford says it's not necessary to seek class certified especially under twenty three b two there is no notice to putative class members there's no opportunity to opt out there is no need as your hon suggested to complicate the case through class action you can get the same effectively class wide relief under this court's binding precedent which it went on to cite and apply again in one thousand nine hundred eighty nine us app lexis twenty two one one nine footnote three you can get the same relief whether or not you were in a class action case with regard to this court's holdings on standing the fourth circuit has simply never addressed our argument as to whether or not there is an election exception to the general same party requirement in store v brown the us supreme court faced a one year waiting period that prevented former political party members from running as independent candidates after the waiting period expired the court still adjudicated those candidates claim even though the court said that footnote eight quote no effective relief can be provided to the candidates were voters but quote since the issues were properly presented and their effects on independent candidates will persist as california statutes or applied in future elections the court reached the merits and applying cases such as store of any state issue i want you to get through that quick if you will nations to respond about the discrepancy justification absolutely your honor so might my point is there is a binding supreme court precedent such as store such as more of the ogilvy many of which are not class action cases which the court talked of which that justice scalia and o'connor discussed and hanukah veto where the supreme court itself has adjudicated the merits and has held it was appropriate to reach the merits of election law related cases without despite the fact that the same party requirement wasn't met because the law would be applied to other people and so although the fourth circuit simply hasn't yet grappled with those cases certainly the as far as i found the argument has not been raised to the fourth circuit and so there's simply no fourth donations to the political parties while the f e c can't achieve an interest can't achieve congress's purported interest in making more funds available to political parties by cutting the amount that pacs are able to contribute at that six month period there is no way as even assuming that that were a constitutionally sufficient rationale and again citizens united mccutcheon tells us that only combating corruption is a constant i see my time's expired my finish citizens united  mccutcheon tell us that only fighting corruption is a constitutionally sufficient basis for burdening first amendment activities but even assuming that were valid rationale it is in no way furthered by slashing the amount that established pacs could contribute once they've