georgia republican party immerses securities and exchange commission lagune thank your honour's may please the court admin the corps on behalf of petitioners there is no right more basic in our democracy than the right to participate in electing our political officials the us congress has always reserved for itself the sense of first amendment task of regulating contributions to candidates for federal office i'm concerned about a more fundamental point of this branch is role which is just disability a whether it seem to mate to be pretty clear that there's not an effort here to say that the georgia republican party has standing and it's the weakest easily of the three and it's the one on which venue depends because if it seems to me if the georgia republican party does not have standing then it seems to me then use improper and we ought to either dismiss it or transfer it i think if so i'd like for you to address that and you might to want to address if we were to transfer where we ought to transfer it to mr r first i would say necessarily name names moreover the party so he managed even without regard to naming names he there's just been no what dan if occasion even have unnamed potential candidates or donors who have changed their behavior because of this rule when it comes to the georgia party could you want to but i like to point out though we brought this challenge in october of twenty sixteen this rule didn't take effect until august twentieth twenty seventeen all the briefing was complete at that point i think that's why this court in arceo and in florida and the way c p has somewhat relaxed that requirement identify and someone because at that point the rule has not even gone in effect on to any placement agent yet moreover this also applies not just to cover placement agents but to anyone who is thinking of becoming a placement agent within the next two years because the two year look back so if someone were to give five hundred dollars to the georgia republican party's candidate for governor ridge in october of twenty eighteen that person cannot work as a placement agent for  point the georgia party could have come forward with at least a single specific example of how the rule would injure it up perhaps you are but that was not what was required of the challengers to government action in florida  placement agents or whether they be candidates none of whom are before the court or who thought to bring a suit so it's just it seems but it does seem a stretch under the standing doctrine general we also have like to point out we have direct standing because this rule applies not only to contributions to candidates but also forbids anyone who is covered by the rules from soliciting for donations on behalf of the party so i need to look at a case like taxation with with representation from the d c circuit and there that i arrest change the five a one c three status of a nonprofit government argue that there is no standing here in the courts at will that's easily dismissed because clearly if there is a regulation that makes it less attractive to give to this nonprofit that's going to harm their bottom line here we have something far more severe than that we have an actual prohibition on anyone going out and even telling their friends hey the georgia republican party they're doing some great things  we think you should give them some money you cannot do that under rule twenty third without and that's a flat prohibition that's not even the timeout that we're talking about here that is a flat prohibition moreover the court and i think we also have direct standing for the fact that there for nearly twenty years and the court said well looking these affidavits it's not clear whether it's the g thirty seven rule from one thousand nine hundred five that's actually causing the potential harm here or whether it is this amendment which is the only one actually before us that's causing this harm that's not the issue here are we have a new role that is applying to new people in a new way seconded that case did not involve purely prospective harm them sorbets rule had already been in effect by the time that case was getting briefed and the proffer here if the georgia party did not have standing i think this court could still exercise pendent venue in this instance i mean the case has been from the candidate and it venue i think that in the court has been here in this case has been  court there's no jurisdictional problem with the new york with this court determining the new york party or the tennessee party's issue i think that there's on point case law interpret in a similar petition for review statute in the federal power act context  but it seems to me that there's really a real potential for gamesmanship if we allow a party for whom there is no standing to choose a venue that would otherwise clearly be improper and then we'll allow the others to travel on that after we dismiss the party for him there's no saturday i think that could be an issue but i don't think we're looking at that instance here i think we had that let's say we're concerned about that and we we'd be inclined to do something about it great i think one thing to do would be to dismiss it entirely then you're out the other is to transfer and if we were to transfer where are we going to transfer it i think one that sort of gamesmanship to be taken care of by motions to transfer venue one which the se did not file in this instance but if this court feels put together when it putting forth put forth its role and whatever whether that's adequate or not that issue is behind us that eventually record here justifying fenriz role as plainly inadequate at a not identified one instance where purely within limits for disclose contributions has led to quid pro quo corruption every instance to identify it as otherwise lawful contribution plus and there are many instances where it's only that under the table payment that's doing the work and there is no lawful contribution so it would stand to reason that it is the under the table payment that's actually doing the work here moreover there was no statutory challenge brought in blunt we think that the exchange act does not grant the sort of power to regulate political contributions congress has never deemed it appropriate for it to set contribution limits for state and local races those should be set by state and local elected officials who know the history and know the facts on the ground and not be set by a handful of lawyers sitting in d again it and that brings us to another problem with this ruling you can tell that the f c c is outside of its depth because of how it applies it will ply two candidates running for the same race in an even matters in many different types of races so when and whenever official runs for federal office they will be limited to accepting contributions of three hundred fifty dollars or less whereas their challengers couldn't take up to twenty seven hundred dollars on the same problem can occur at state and local races as well though if a covered official for example if the mayor of a city is running for state attorney general and he's a covered official as a mayor he is going to face this this limit that his challengers will not face and so the supreme court the advisor act rule or the f c c rule are you want to call it that underlays this twenty thirty roll that that didn't get challenge for right so that's not before the court at this time but i don't think that creates any addressability problem in the way if we are to win if this court rules for us you don't statutory or first moment grounds then we will have supporters who will be freed up to make contributions and to talk to their friends and ask them to make contributions now whether there might be some other harm that arise from that does not go c was not in force in this band on hiring placement agents when it came to investment visors so i mean it may be that they decide we need to cut placement agents out of the market altogether i think there are plenty of good reasons why they would not do that because as the record shows placement agents play a vital role in this investment advisor market but even if they were to do so that doesn't change the fact that this court would be redressed seeing a very real harm by ruling in favor of the parties good morning in may please the court jeff berger for the securities and exchange commission i'll be taking all of the using all of the respondents time but to the extent the court has any question about thinner as motion to dismiss maybe i can yield some time back at the end counsel for finra is sitting at the table with me petitioner challenge to rule twenty thirty as this court's question michel questions that you just it has a major standing problem and it should be dismissed for lack of standing before given that the guts of standing i do want to talk about venue because i do think james to me the easy thing is to say george your party doesn't have standing right and if it doesn't then vinnie's improperly could transfer it to the d c circuit what do you think of that i think that's an elegant solution to the problem it's one we talked about in response to this court's jurisdictional question we agree that only the ga party is properly before this court and we also agree that the georgia party lacks standing we recognize that courts when there is a venue problem can transfer  to the court that's the court where the appropriate venue to begin with i do disagree that the sixth or second circuits would be the right place to transfer the case to the venue problem is still going to exist there the d c circuit   and depending on how that got sorted out it might then affect the venue issue as to one of those other g s arkansas if we transferred it to one of them then it might get transferred again i don't want that to happen it seems to me if we're going to problems as to all the parties we don't we think the georgia party is the weakest on standing because it's it's not the only reason we're here it is the only reason we're here if it's the only reason under the statute in ten there was a mention of pendent venue your adversary said no problem with cents transferring it to d c so if we if we conclude the georgia party lacks standing that seems to me to be the appropriate thing to do and you seeing i have no problem with that either we don't have a problem with that is we talked about there's two routes dismissal or transfer and we understand the court could take either route so we understand that it's a possibility just talk about penn venue quickly i mean i'm not aware of any kind of policy just won we under the venue statute if we determine to transfer it to d c would we necessarily even have to make a standing decision as to georgia in other words is venue just improper on its face regardless of the standing issue i mean th the answer to the last part is yes i think it's a tricky question that's kind of lying in the twilight of judicial opinions about which you're supposed to solve first i mean in theory you should be solving standing first because it goes to the court's power as venue is not a power issue but on the other hand part of the whole venue statute in the way congress developed that was to give sort of the court of first filing the ability to figure this stuff out so of course i don't have a clear answer is i don't think the case law is real clear about which is done for i do think there is a compelling argument is constitutional mad they got to deal with standing first but i also understand as a judicial official see matter that it makes some sense to deal with venue first if i could just talk about standing in particular there was a lot of mention of the florida  were this is expressly rejecting a statistical probability test for standing in a court said the requirement of naming the affected members has never been dispensed with in light of statistical probabilities so that part of the n numbers there's nothing about potential federal member firms or covered associates who could be implicated by this rule particularly in light of the way the rule operates which is by a timeout mechanism timed out on the receipt of compensation that affects the firm the firm will then likely develop procedures that will affect covered associates but the rule doesn't regulate political parties itself and in that situation under lew hahn much more is needed that's a quote from lou hahn in that much more is lacking here because the georgia affidavit says a so little and i do think you know this six circuit has gone down this road before we i understand that there is a there are some factual differences with the six circuit but i think the takeaway that's under an associational theory where there has not been an affidavit filed by a member injured member of the organization i did also just want to talk about the theory of direct harm you know again this falls into that little home problem of that much the much more that's necessary when a regulation or a statute is governing a third party not for the court in standing a substantially more difficult  that's just not doesn't exist in this case and there's not enough provided and i do just want to mention the way rule twenty thirty operates again it's a time out that's triggered by contributions but it's contributions made to officials not to political parties so covered members and cover associates can give contributions to political parties and their firms will not suffer any consequence the commission has made this clear repeatedly and so the idea that the direct harm will exist is  just incorrect and i do as ken asked yes can i ask you the same addressability argument i asked here opponents i'm just interested what's the interplay between the underlying s e c rule and twenty thirty we'd like to think that's because the rule is doing its job but there have been case i believe there's been at least two others one arising from philadelphia i believe both cases settled so you're going to find litigation about them but that's not necessarily that uncommon but i do think to  get to the first part or addressability is a big issue here and while i don't want to talk too much about the tennessee parties that don't think that probably before this court and i think there's other standing problems i just want to mention that they mention a report of the covered associate name mcmanus and in their affidavit in a declaration what it says is mcmanus has been affected both by the advisors act rule and by the new federal rule twenty thirty this gets to address ability because even if this court were to get to the point of striking down rule twenty thirty even by mcmanus as an affidavit he'd still be affected by the advisors act rule which would preclude him from making contributions to officials with and with the power to award investment advisory contracts that really gets to the redress ability issue not to mention there's a further redress ability issue which gets at what the six urquhart decided in dismissing the case and standing which is there's another rule called g thirty seven that the m s r be adopted in ninety four it's kind of been the model for all of these rules  there are then remember firms who have both municipal securities components and broker dealer components some of those firms that sort of do both things have had pay to play controls in place for decades you don't see enough in these declarations to know whether for instance if this court were to strike down rule twenty thirty those other controls would still be in place as implemented by the firm this just gets that there's a lot of redress ability problems here  we haven't touched much on the merits i just want to mention one one brief point which is the idea of the f c c is outside of its depth is just and correct we're not interested in clean elections here we're interested in clean markets and if i can toot my agency's own horn or we are experts in clean markets this is what we do is with it's markets congress has understood our role and as we've been operating in this field for almost a quarter century at this point congress has had a chance to amend both the securities laws hasn't retracted that power in fact quite contrary in two thousand and ten when extended the m s r b s power to cover municipal advisors it expressly pointed out that that the commission and the s r o xth self regulatory organizations have played a role in regulating pay to play and just one last point this gets at the idea about blunt and wagner i mean blunt to wagner from a first member perspective really controlled this case i mean blunt is affirming or upholding what is more or less the same rule and it's doing so even under a higher level of scrutiny than it should ons and in the wagner case comes along and it's unanimous on d c circuit decision that's up holding and even less tailored ruled in rule twenty thirty because it's an thank you thank you for admitted that this rule very well could have its intended effect which is to depress contributions to parties like my clients and through their candidates if that i think that alone is substantial risk if you look at a case like davis p f you see with the millionaires amendment jack davis wanted to run and he wanted to sell finance if the millionaires amount functioned like he was supposed to there was a substantial risk that his opponent was going to be able to raise sixteen hundred dollars from each supporter as opposed to twenty three hundred dollars limit that would apply to mr davis and mr davis did not have to show he didn't have to go in to pose as opponents say are you going to take advantage of this you don't have to go get affidavits from his opponent supporters is enough there in a decision written by justice alito that this rule is going to function like it's supposed to and that was going to harm and that is a fourteen five years after summers there the court cited favorably the end of the case and for the position that finding that large organizations like the end of that standing because there was a high probability that at least one of the members would be mistakenly mismatched i mean the facts and the law issue in our c e o are nearly a carbon copy of those at issue in florida and the case so summers has not abrogated that decision in the circuit that remains good law and runs law that shows why we have  stablished a substantial risk of harm from this perspective rule finally they mention wagner and wagner was involved a federal involve the federal ban that was passed by congress courts for limiting core political speech like that issue in this case and they should not be given any sort of deference like a legislature might who again is most responsive to the people and has expertise in this realm finally they rely on some legislative history and they rely on some congressional inaction to say that we clearly congress wants us to have this power this is the last case where you would want to rely on congressional action because what we're dealing with is a rule that when applied to your case and will move to the last one for the day