it please the court my name is howard hopkirk i am a senior deputy attorney general with the pennsylvania office of attorney general i represent the appellant's pennsylvania gaming officials i would like to reserve three minutes for re pennsylvania's prohibition on political contributions by individuals affiliated with the gaming industry is constitutional because st it serves the important government interest of preventing political corruption and the stuff that nobody's disputing the commonwealth says what you just said right now and and judge rainbow said everybody agrees that preventing corruption the appearance of corruption is  prevention of quid pro quo corruption now if that it is that is the district court correct about that that it's not enough for you to say we want to stop corruption but you have to have the only interest you can have that sufficient to warrant a restriction political contributions is quid pro quo corruption or the apparence of quid pro quo corruption so we're on the same page about that yes so i think the interest of the government is pretty clear and self evident and in this case and at the district court level it seems that the real question is whether it's closely drawn to achieve that interest r e what what's the relevance of the section title that this is was cast in terms of political influence more broadly that many of the cases you rely on from other states like soto were in an era when they said well we want to prevent influence but since then the supreme court's made clear that merely limiting influence isn't enough there's to be that direct quid pro quo well i think i mean st of all that's just the title it would fall under that general category of quid pro quo pro corruption falls within political influence  n workday they were decided before that but i don't think they will listen isn't mccutcheon a pretty significant case one when the supreme court comes out and says well we don't really have to decide whether buckley versus layo is right or wrong and we have to decide whether we're under strict scrutiny or not i took with the supreme court to be saying in mccutcheon was hey we got a two prong test that a buckley  that the language we use about a sufficiently so important government interest is the net is effectively the same as a compelling interest under strict scrutiny and we don't have to decide whether narrow tailoring and closely drawn are synonymous because you the mccutcheon folks you know that the government's going to fail under the closely drawn test so we don't have to decide that point and in short seem to be saying among other things that this closely drawn test is is a serious matter it's not an easy throwaway it and it and it looks an awful with aggregate limits on contributions and so there was a disconnect between the idea that you would have in an individual case some type of limit and that because you get that aggregate you could no longer if that limit ran in this i mean i think pennsylvania in this case we're lying on the experience of other states has made clear that they are prohibiting across the border this type of giving in and its whole point right there with the that's the very problem that your adversaries are trying to get down and that we're hoping that you will you will grapple with mr hopkirk the barrister she is there's not any support for the assertion that you are entitled closely drawn to meet the quid pro quo restriction that mccutcheon said it was ok meet that argument that a one dollar judge rambos example a one dollar contribution from somebody who might be have one share of a bali's casino stock that happens to have a license is somehow going to cause a quid pro quo corruption that's the kind of example she uses how how is that kind of prohibition closely drawn to me the problem i mean this is a prophylactic measure in individual cases you can see a kid in arguing it might be true that there is no qui corruption but there still can be the appearance of corruption when you have all or with one buck from one person who's living across the country in california and has one share of b stock that that's that that's the threat or the concern or it raises the specter and the appearance of impropriety i mean st of all this only applies to i mean you have to be a princip qualify for those positions where governed by the prohibition right to go beneficiary of a trust you never argued here that she's not covered by this wall now i mean she's the sole beneficiary of this trust in which has benefits from the gaming industry and i mean the public could see contributions by someone like that as and the up favoring beneficiaries of the gaming industry make the fact register of wills in philadelphia who has nothing to do with the gaming industry it's ban is not limited to the gaming control board or people with oversight over it it applies across the state all the elected offices so we're  talking about who cannot accept contributions when you're talking about the register of wills as opposed to the plaintiffs in this case again he can't give she can't make any contributions within the state that's correct and that's not closely drawn they said and your assertion that she's the sole beneficiary of this trust you know what if this the content of this trust includes what one share of stock means she may be to sole beneficiary to one share of stock but she is still covered right  i believe you're right i've been then how can he have we're having trouble understanding if the concern is the appearance of quid pro quo corruption how something that attenuated which judge rameau pointed out beneficiary and what that trust did was own or operate or have a shared interest in owning and operating and in casino an interest if you can point is this something that tells us that an interest means a controlling interest or something like that that might if any does it get you very far and another problem is judge jordan's question about a dollar and judge rimbaud's is picking up on b buckley said one of the reasons you can limit campaign contributions is people can still make symbolic contributions or you close down that ability to make symbolic contributions of support and it's hard to see how a dollar a one hundred that is people have available to them including independent expenditures the i noticed big issue issue with you on that and i judge rambo took you up on that a footnote in which you at the definitions of political committees and things like that that are subsumed within that and also are in accordance with the pennsylvania election code that those are not governing independent expenditures well that you know we read it we read it to let's look at page a thirty three in the in the appendix and footnote to any other political committee in this commonwealth or any group in support of a political committee in this commonwealth and then political committees the find as any committee club etc which receives contributions or makes expenditures then her statement is a plain reading of the statute would include independent contributions and that so house how the arc of her reasoning in correct and thirteen dollars when it talks about political committees it's within the context of charitable contributions in support of the candidate and that's how do we know that from the st paragraph of the briefing that the questioning could you've asked them for the previous ten minutes or so has delved into some of the jurisprudence on the standard in the application and the statutory analysis that would be relevant to whether you could up hold a discriminatory abridgement of rights like this one and i'm happy to provide argues to provide feedback on some of the questions that you've asked and of course to advocate our position but in the end we're not asking you to stretch the boundaries on any existing doctrine the bottom line if we see it is that there is no one forcing this provision under any standard and certainly not on this record in this history why don't you speak to these search for mr hucker this only covers principles doesn't cover and it defines a principle as anyone a principle meaning someone who's going to be impacted by the contribution ban as anyone who directly holds a beneficial interest in or the ownership of the securities of an applicant or licensee so beneficial interest would cover his heart so that's that's where that comes from she owned to benefit beneficial interest in the trust and the truck is the operative twice that carries and ownership of securities doesn't say you have to own them all the securities are of majority or control interest i think that that's mostly pure act i believe that there are opinions that go into what does constitute a controlling interest and at the moment i am not positive that one share in stock would constitute a controlling interest i know there's an opinion that covers something more than nine percent and we do discuss that in the group your honor but in all candor sitting here at this moment i am not sure if something above nine percent of the ownership would work out i might have to check on that sitting here today i don't now the language of the statu is ownership of the securities of an amp that's correct that's correct it's extremely broad the bottom line i think to what you're getting at is it has an extremely broad reach it's a wide a it covers a large range of persons associated with the gaming industry and that's why that i'm sort of like a question for you all right if we were to agree with you honor i would say should be the word affirmed the i e i do not think that you need to take a strong position on the standard of scrutiny  we were to have our position i believe and we believe that the proper standard is in fact strict scrutiny and i'm not going to come to your question if you'll if you'll bear with me for about thirty seconds i will get to the closely drawn answer of the reason but we believe it is strict scrutiny is because of the discriminatory discriminatory impact of the statute on this ready disparate class of persons and also because going to judge gordon's questions that that it does have this impact consideration of targeted alternatives and in our view in our view the commonwealth has already accomplished the targeted alternatives so i don't know that in actual application of this statute there can be a closely drawn alternative what are the targeted alternatives that you believe propose to tional that are already in place the beginning act itself all the provisions and the background and the necessity of the integrity review of the persons who get the licenses under the gamey act in fact the best place to see this your honor is if we look at the amica spree filed by penn gaming  brief as well but penn gaming does a thorough job of explaining the background applications that are required to get this license so if we accept the opening question of lead from judge gordon the opening question was well what is it that goes into this statute that that is targeting quid pro quo corruption sorry i didn't mean to sidetrack you from using just like a question i get what you're what you're driving at ok well actually i do think it's it's it dovetails with the question nicely and in some respects in some respects if i can i can play a twist on mark anthony i'm not here to very distract you i want to praise because the statute does go after what pro quo corruption go at whether whether it's i which as your own as a pointed out is not enough but also quid pro quo corruption it goes after that and it covers it thoroughly in the district court record its docket five thousand one hundred and fifty dollars dash one in the district court there's an appendix submitted by penn gaming that has well over one hundred pages of the background application that these applicants must submit on their personal integrity ten years worth of information i'm hearing technically on your campaign contributions on their financial disclosures so are closely drawn to judge my good question on closely drawn scrutiny their targeted alternatives where i think the law gets all but mixed up on closely drawn scrutiny it's presupposing that there has to be an abridgement of st amendment rights but doesn't probably alternative mean something else that the general assembly can do to accomplish the objective and they've got it here and they've done it well those closely drawn look you've said you think strict scrutiny applies here is this is this a just an on off switch or is it possible that a part of the statute if it's true that it reaches independent expenditures that that that falls outside of buckley would acquire strict scrutiny but that the rest of your challenge to the extent it involves direct contributions is under buckley and therefore is not subject to strict scrutiny i heard i heard you ask a similar question a few minutes ago and i think my instinct is to agree that the lines are not very clear between the two standards and i think it would fail equally under either for the same reasons if that's true then why wouldn't we take the same approach that the supreme court took in mccutcheon and say you know we don't have to figure out whether this is strict scrutiny or not because even under this modified immediate screwed it's a loser i think that that is a perfectly good approach to take here agree with your your characterizations disagree with tramples i think that that would be in fact the pragmatic i look i don't want to suggest to the court that you want to be writing a pragmatic decision that's certainly your prerogative and not mine but i can see the eminent sensibility in that and that's why when i began today i started with the promise that i'm not asking you to push any existing doctrine i think the decision judge that you just outlined would square on all fours with mccutcheon i do think consistent with your opening line of questions this morning that that is the key precedent before us today i think i think this court's decision that mcnabb's be also teaches us a lot because that seems to us to be a rather direct application of the same principles but that's where i would go address if you would your opponent's arguments about the sort of case through mccutcheon came later but the supreme court of new jersey was they went into a lot of detail about why a ban on all contributions is an appropriate thing the gaming industry which is known to be historically affected by corruption organized influence and  a bunch of stuff that undermines the rule of law and faith of democracy etc etc bad bad bad things associated with this particular industry and so it's ok to look at that history not just in pennsylvania broad prohibition so i put mccutcheon over there for purposes of answering your question i think up the next most important answer is the gaming act itself for the reasons we border covered this morning the heavy scope of regulation in the gaming act does in a measurably stronger job of protecting against the interests that you're articulating from soft sharing you can say you know we think this is good enough but in new jersey the legislature thought and the and the high scores of the state agreed that you didn't have to just do some things that really drew out information about the background of individual actors you could say hey this is an industry this is a business line which has been rife with problems serious corruption problems that we're just going to cut off the problem  that that given the history of the problems is not enough but a good response what's wrong with why i don't want to pick on the state of new jersey but there was a specific history of organized crime and this industry in the nine hundred and seventy s and earlier in new jersey and that precisely so let me just stop or it dear are you saying that the commonwealth of pennsylvania through its legislature can't look at the experience of its neighboring state and say that's a real problem and guess what they don't drive to the border of pennsylvania and stop with their corruption if there is corruption and there scheming industry profits to be had we should be worried about that too well they certainly didn't do that here there is nothing in the record that says they did do that they did not do that i know and i'm also not here to pick on the commonwealth because as i've made clear so much of the statute we think does achieve the aims that they are seeking to obtain but they did not do what you just positive in this record much let's just look at what actually happened bill had time with your case ok so when you say they didn't do this here the legislature in fact that's one of the arguments from the commonwealth is hate you're holding the legislature an inappropriate standard for their legislative fact finding i pick there are certain to be the legislature can pay attention to what happens right next door they can look at that they don't have to say i'm only for going to pennsylvania they can look at what happened in new jersey and they can respond to that and responding to that they could legitimately respond to it same way the new jersey legislature did as upheld by the new jersey supreme court white why can't they but maybe maybe you're not maybe i'm telling you what you've already thought but maybe i'm not so give me nd to see if i am and then then i'll move to the next point on this because what they did before the amendment before before the general assembly amended  thirteen when the word large was in there when the word large contributions that's when a stamp simply they were observing their neighbors their own supreme court the commonwealth's own supreme court shot back down while looking at the new jersey history then the general assembly picked the statue back up back up picked it up with no further record no further exercise that the st amendment requires them to do they're required to do that they have to do that that's what the supreme court says that's what this court says that with the law says without any further exercise they blue pencil the word of our job and i judge rambo takes what i think is a a club or pot shot at them but she's white saying it's not just the paper graphical correction that the constitution required them to do so without a further examination without saying hey we should look at what our neighbor did because organized crime can drive across the border just go across the water gap it's all they have to do without doing that they strike that word out and say forget it we're not just banning the large contributions we're banning everything now now i'm taking the country out of the argument is this was an effect of the law but if it had been done below it wouldn't survive mccutcheon i think that's correct but this would be a different beast if these weren't if if if if the range of people got the contributions was narrower if if there were limits rather than bands would we be having the same argument here if the pennsylvania came back and reelected a statute that fewer people more of an interest in casinos some amount of money just not large amounts of money would that be would that be permissible i'm i do think that we would be having a different argument i'm unwilling to say that i think that i would be advocating for a different bottom line on i've already told you what our vision is but if the court agrees with the other side on that the court could strike down the statute to the extent it prohibits independent expenditures and see the rest of us in it and is it is it possible then for us implicit i think it in your statement is as a concession but let me make sure that it's not inappropriate to say look a part of this statute if it reaches into pay expenditures is subject to strict scrutiny but that the rest of it would be subject to that intermediate scrutiny modifier meet scrutiny describ through the registry rules it's possible that that would be effective but it's true i mean we could we could do hypotheticals where it turns out that the cousin of the levy court commissioner is somebody who owns you know substantial interest in a gaming thing i mean you it's possible to come up with these but that doesn't that all fly in the face of the of the closely drawn demand that we're not we're not attempting to cast the net so broadly that it cuts off every conceivable problem it has to be closely drawn to meet the specific quid pro quo corruption her appearance problem i don't understand your point i'm just trying to say that the general understood do you do you disagree with your opponent's representation that there's nothing in the record here there was nothing that the legislature drew on new jersey's experience louisiana's