mclay for u s senate and and bart mclay for u s senate inc i have reserved three minutes for rebuttal if i may when i stepped into this case and i read the court's opinion below and the briefs which had been filed previously trying as best as i could to get a feel for the issues that had been brought to this court i kept returning to a single issue that i think defines the matter as you know we are here in consideration of whether the lower court appropriately addressed appellants request to set aside a fine assessed by the federal election commission for some late reported donations to the campaign under the f in ministre defines program and what struck me as the corporal o seem to lose track of the principal issue that was raised below or at least what i think is the principal issue that defines the case congress empowered the c to assess administrative penalties pursuant to a schedule that was quote established and published close quote that delegated authority and the penalties schedule then in place expired as of december thirty one two thousand and thirteen in late december two thousand and thirteen congress passed enabling statute for the stated purpose of extending the authority of the f e c to assess administrative fines pursuant to a schedule of penalties again quote established and published while the f c c f e c published a reported adoption of a schedule of penalties the s in the f e c failed to establish the schedule of penalties in the first instance the court below recognized that the question of whether the f e c appropriately established the schedule was the central issue before it but never really addressed it the commission having recognised that as being the issue now it search that never was the issue and further asserts there is no separate requirement for the commission to establish the schedule of penalties only to publish it counsel what's the prejudice to you your client as to the use of the schedule when the substantive fines are exactly the same under the prior schedule and under the schedule that they follow a minute admittedly right you're out of their word no changes between the schedule which had appropriately been adopted but expired and the one which was improperly applied because it had not been adopted but the principle question is whether our client should be subject to a penalty which was not properly enacted by the commission as directed by the enabling statute by congress was there any say anything substantive difference in the new schedule and  ccompanying material from the old one that would have created some kind of a notice issue some kind of issue to you that would have made it unfair you're out of there was sorry for interrupted you know there was no substantive difference between the schedule which was appropriately backed it in the one which was applied which wasn't it so why wouldn't it be reasonable to assume that a formal comment and notice provision that is typically applicable for administrative rulemaking not really crucial in a circumstance like this well your honor that it's a little bit more of a fundamental question i believe where a were congress empowers a commission in this instance to establish and invoke penalties it is it is a very serious delegate it authority which needs to be taken seriously and in any circumstance where an individual or an entity in a capacity acting on behalf of an entity is is paralyzed or find there ought to be a legitimate basis for the entity which is assessing the penalty to assess the penalty so essentially what we have here is an agency which is go to the commission which is gonna be on its authority by imposing a penalty in a circumstance where the penalty never was appropriately adopted what do you think what do you say was required to use a adopter stablish the word in the statute the penalty schedule that wasn't there there needed to be action undertaken by the commission to establish the penalty structure not simply to publish it we don't have rulemaking and pennell the establishment by publication what do you say they to they were required to in act a adopt the schedule at a meeting where they would have voted in collegial in public to establish the schedule which with then be published and they didn't do that but if there are any recognized exceptions to that process there are exceptions to their process generally but only in the context of routine matters which are administrative matters within this be pretty routine since it didn't change anything substantive well couple of points there i can't agree that it's routine for an entity or a commission to establish penalties which are then imposed the the question of imposing penalties on an individual itself might be considered routine but the adoption of the penalties themselves that are applied cannot be considered routine as a point of fact the commission knows how to do this and how to do it properly when the circumstance arose in two thousand and five where the the enabling statute of already was set to expire the commission acted at a public meeting in collegio and voted to adopt and continue the program in the schedule they then at that point in time published what they had died and in the appropriate forum when in just a is the source of the requirement that they have a public meeting in with what they do by practice and what they did in two thousand and five when they did this previously they did it in public law if your only argument is they've done it this way before they're for the required to do it again that's you that's your position there's no statutory right i believe there is statutory authority i believe it is under the administrative procedures act i can't represent to the court that that is the case i do believe the administrative procedures  require the sunshine law act excuse me may have provided a basis for them to have to do it and i apologize for not being focused on that point but there is a requirement that it be done in open public counsel your in your rebuttal to continue if you like or you can reserve i committee before the twenty fourteen primary election commission decide that somebody has violated this this provision there's somebody in the federal election commission who decides that maybe this  happened and you present some evidence to the to a group of six and if there are four of them that say that it's wrong why then that that's when you move forward with your procedure here in i guess so that they have to prove that they didn't do what you have accused them of and they if you don't do that you pay a twelve thousand dollars fine as in this case is that right correct your honor yes and and that passes due process the reporting requirements of the act are strict liability violations and you're you're switching the burden of proof from the accuser to the accused to prove that they didn't violate instead of the f e c having to establish that they did violate the act as i as i read the pages six seven i guess this is your brief  is that right now the factual underpinning of ending of the violation is whether or not reporting was required and whether or not though the report was actually filed up properly and on time  the issue is what's in dispute here is a twelve thousand dollars fine and other principal issue in this case is the commission's authority under its new study finds regulations and under the constitution you have to put the constitution in play here too don't you yes congress authorized the administrative fines for the program in two thousand and the commission immediately issued implementing regulations that congress can't here and they have to prove that they didn't do it all you have is just what he called a reasonable reason to believe authority has been upheld on numerous occasions in the past you say the commission determines that it has a reason to believe that the respondent has violated the statu and upon notification and the respondent pays the penalty or what happens if they don't pay the penalty possible collection proceedings let me either on the basis of information in its own possession or from a minister to play it makes a preliminary or every reason to believe the term nation there's opportunity when you need to respond and in the ordinary administered in force and process the commission then makes a probable cause to but to believe determination if the commission finds probable cause to believe there is a throughout the administrative process that respondents can submit backs and also legal arguments and the case is in federal court would be to know the procedure here though is slightly different after the fines procedure and that's what happened in this case the an independent person on the commission staff were of the use the r t b e finding in reviews the challenge of  any prepares his or her recommendations to the commission and then provides that to the respondents the respondents have an opportunity to respond and the commission then makes a vote of whether or not to make a final improperly extended yes so what do you say to the argument that the schedule is not properly established because there was not a meeting collegiate of the commissioners congress  has as we authorized the fines program several times and twice i think it's history of a commission has considered the issue of extending the regulations at an open meeting and in fact has voted in open  falls within the the good cause exception as with as was discussed a moment ago there was no prejudice there was no of unfairness in the regulations asians immediately going back into effect it was important for the commission at that time to act quickly there had been a special election and then there were some reports to do in early january that otherwise the regulations had not been extended would have gone into the commission's ordinarily airiness or enforcement process there was also a special election i believe in florida coming up as well  and in committees also have monthly reports that would start being due in february thank you your honors i come back to your question as i presumed you thought that i wouldn't terms of the authority or the requirement for an open public meeting the analysis is is twofold statutorily the delegated authority is for the commission to establish and publish that in my mind is clear within the language of both the enabling statute and the statute which was passed in the end of two thousand and thirteen which extended the authority for them to then establish and publish then the question to you is why does it have to be in the open meeting in his pursuant to the fact that it's a federal agency subject to the sunshine laws sunshine act and because the commission's own internal procedures and rules require that the commission business be conducted in collegiate in public and open in an open event the exceptions would be that have been recognized that have been articulated here is an exception based on the tally voting or notational procedure which has its application though only in the context of routine matters and the establishment of penalties is not and cannot in my view be considered a routine matter and historically in two thousand and five when the commission renewed them again they renewed them during an open meeting where the minutes reflect of that it was voted upon and they identified that there were no routine matters before the commission and all don't understand how it can be the case that the enactment of the procedures or the penalties which then get applied subject to their discretion could be considered routine in any material respect but if in fact they were able to follow the tally procedure they didn't do it appropriately they did not receive back the appropriately completed ballots they weren't they weren't tallied they weren't certified under seal by the clerk so in that respect if they had an obligation or an ability to avoid the obligation to do something in open meeting in terms of establishing the penalties which they needed to do they did not comply with the tally notational voting requirement in the first instance accordingly we would argue that the that commission was without authority to assess the penalties in this instance because they had not been appropriately established and the matter should be