aren't you protected by thing by the injunction that's been entered in the texans for free enterprise overnight free enterprise injunction does not cover subsection in addition and within its promises not to defense of argued it stands on its own it is as separate interest at play it's a different part of the code and so it is not covered by their rule they pass they have not passed a rule that covers subsection b they have said nothing on their quite hear as fast as you talk thank you but i thought the injunction also had some broader language specifically referring to subsection a and you know better than i do another rules and regulations direct campaign expenditure only committee for the purpose of making direct campaign expenditures no we didn't know that actually covers subsection b that only covers subsection a if i can only count litigated in that case the article subsection b it's a separate part of the code it has a separate interest that pertain to it works separately then measures in general the idea of specifically argued in this case the reason why over ninety six doesn't cover recalls is because a specifically it's a different part of the code in subsection and because of that the free enterprise injunction does not cover we think again most tellingly is that when they passed their rule which articulate how were going to enforce the free enterprise injunction they'd ever mention subsection eight in addition they did nothing on the website saying subsection b is not covered or it is the safe harbor provision for violations of subsection b the public has no way to our clinics are very fearful and there should be confidence you can proceed in the democratic process and not be concerned that your actions might somehow put you to subject to criminal sanctions or to force entire democratic some other church out there and then they would be hauled into court you could haul them into court for contempt and you wouldn't do that i don't see why they can operate with confidence in this situation because they're aware what happened in the cookies no paso texas involving this exact same election code provision that big corporate contributions will recall elections and in that case the public court of texas ruled that just simply in corporations you know put it on the quite because the face of the law directly prohibits what they want to do they cannot acting in good faith good conference in just answer me like an argument that abortion providers would make and say well that to the i'm joined abortions but but it's still there on the books i mean that's what i you know it doesn't quite make sense to me but one difference i might see in this case is that it was recently applied against a church and that participated in that effort to stop the winning the election action only binds the people who are parties to the injunction right if you can't stop a rogue i mean even if we were to agree with you i don't think you can't stop a rogue prosecutor from refusing to abide by the injunction i would agree with that but still the question is is this a proper part of and they are proper part because they are and forces of the election to election code on its face prohibits mention the subsection b at all i mean and you should have three times i understand that you're entering judge's questions so i'm not criticizing you but you have made that point at least three times maybe four but all you need it seems to me and i'm not suggesting what we were going to do after we heard the shower running opinion but maybe but if you have an opinion from this court saying if the injunction covers what you're talking about here then and then you'd be you'd be in good shape in terms of being protected from from prosecution  injunction issued by this court in this case and joining the plead guilty of subsection b would give us the relief that we want now here he don't have standing we can't do that but we can we can certainly opine on what the meaning of the with whatever law remains on the books but the definite will be helpful but we do believe we do a standing here's another reason why we have standing in this case even under the defendant's interpretation of the free enterprise injunction in rule twenty two point five what we want to do is still contrary to the law and here's why we want to be able to free be free to corney with other political committees that contribute can't we wouldn't be able to contribute in kind of non fungible assets so for instance u vision but that there is the anti circumvention interest in regards to non fungible assets their income contributions those cannot be somehow certain you can circumvent the prohibition again would propose would solve it it's an easy rebuke and that is this the first one is let's enjoy it subsection b in its entirety that there is no legitimate interest to treat recalls differently than other measures or contributions to candidates the state has offered up no sufficient reason to enjoy is it justified recalls the separate category of election speech worthy of separate treatment listen joint its entirety it's a constant basis between friction is based upon the corporate identity of the speaker and there's no reason to treat assets to a political body that contributes to candidates so that it dition old an injunction in addition to the free enterprise injunction would cover the situation that would clean up the election code because now you are not free recalls differently and there is no basis under the law to treat recalls differently then in other measures and we believe that would would satisfy the unconstitutional problems with with subsection b so  with that that actually covered we do believe we do have standing under the face of the law prohibits what we want to do but even if you want to take their promises not to force it is being effectual even then what we want to do contradicts the law because no requirement involve that they have to form a committee to engage in this kind of speech but in this situation if they want to just participate in another effort so they're not the political committee themselves and in your committee you have to submit to various kinds conduct they want to engage in and they the defense of never question the sincerity of the plane doesn't tend to engage in a conduct they will become a de facto political committee whether or not they bother much paperwork and even defendants can see that so if we do what they want money together and spending money from their regular budgets to support recall if it's but those are not prohibited post texans for free enterprise one of the point there has been pressure so firmly here that they want to making contributions to other communities how does that fit into your analysis right that for the purposes of this analysis whether and it a contribution is in time or is money does not matter as long as it's not a political contribution that is coordinated with the candidate or office holder it's not prohibited post texans for free of anything that would potentially make that distinction able counsel the other side believes it's important on what basis  should have asked him i guess on what basis it would in kind be different arguably but it's unclear i mean because the only way really the only distinction here is if because there's some discussion about is it distinction matters all that matters whether or not the contribution is made in coordination with a candidate or office holder if it's not it's not and by the current state of this law because texas for free enterprise now is the law of the land and dot simply states that were the so what statute how it reads there cannot be restrictions on non coordinated political activities and with regards to their standing what this really comes example but the injunction is effective because it because a was what was at stake in texas for free enterprise of course intentionally mentions a but it also the case itself contemplates the broader question of whether or  not the government can restrict corporate contributions that are not coordinated with a candidate for office holder is that's why it says any other walks out of the problem that that texas for free enterprise is trying to address is that states can no longer restrict that kind of activity we're talking about now is a very general order of you know so someone half from texas ethics committee a commission or something else acts in violation of what we think is reasonable interpretation would have a pretty good chance i would think or not they have standing and for the purposes of whether or not these plaintiffs have standing against these commissioners the injunction and it's a force ability in this particular scenario does is not standing here the reason they don't have standing is because there is nothing in place there is no case for controversy the injunction is a portion of that but what this really comes down to is a voluntary association dr right and it is the commission's position consistent with texas for free enterprise consistent with that injunction and consistent with will twenty two point five which it has promulgated through the formal administrative procedure act procedures that it is not going to enforce the election code any provision of the election code in a way that restricts political contributions as long as they're not coordinated with a candidate for office holders i soon be due would have no objection to an opinion from this court which say the first plaintiff lacks standing for more of a reason that the existing injunction covers the conduct in which they wish to engage that would be that would be a holding by this court on the jurisdictional issue or the standing issue and an explanation of why there is no standing yes if i were writing the opinion for you just that that is how i know that is how i would resolve the case i think it should be resolved on jurisdiction and both sides would be happy it seems to me that would give what texans for free i'm sorry not to that's what the plaintiffs here say throughout is they want clarity on the law they want to be able to do things that they've said they want to do i want circle back to that but an opinion of that nature would say yes your proposed activity is not restricted now one way they try to discover only nine six also yes to the extent that any measures only activities are are not coordinated within a candidate or office holder and they can't be restricted really their complaints in zero nine six is that they they say they shouldn't have to form a kinds of political contributions we're talking about they still run afoul of it even under our interpretation and that's incorrect there are three key parts of the record here that it's that lay out what their intended conduct is it's their complaint it is their responses to our iraq authorities and it is their testimony and throughout each one of those they've consistently stated we want to coordinate but we don't want one sorry want to put it with other churches and potentially other committees but we don't want to coordinate with candidates or officeholders in the vatican in that they have been consistent in that and what's happened now is they say well no we actually we don't we also maybe want to coordinate with some non direct campaign expenditure committees but that appears nowhere in this summary judgment record that the district court based its decision on all we have it is their repeated insistence that they did not intend to  post texans for free enterprise that's why they don't have standing and our interpretational law is consistent with that how do we know the texas ethics board want to go after this well we know because we had the case yesterday where the test texas ethics board was purporting to inform to go after a candidate for claiming he was a psychologist so how do we know that some other board is not defend this case members write it and as your honor noted it would be imprudent to say the least for someone post texans for free enterprise to go after somebody for this sort of thing let's say i mean that's sort of the problem with defining the scope of that other injunction texans for free enterprise right now is to come back to that but that still whether the injunction applies or whether we just look at the  just the opinion itself and how it isn't now settled as i said in the law of the land is that what they intend to do you cannot be restricted in so they don't have standing as you can see ethics commission now whether the opacity a or something somewhere down the road decides to do something differently we can't say that there has to be for them to have cause ation i mean so i'm sorry standing here there has to be a cause a link between and it an actual injury or imminent injury and the defendant's actions and that just not is not present here to come a come back to this concept of voluntary association we cited in the ken lay versus abbott case but i also wanted to point the court too because i think this is consistent with the question of does the injunction apply or not  in other cases sausan versus lone star state of texas from a few years ago and it walks through the courts history of the it's application of voluntary sensation doctrine and in that case it involved an inmate who had been in solitary confinement and at the time t t c j s policy was to exclude those people from certain religious ceremonies and in response to the suit being filed the executive director of t c g time changed the policy and said just done in response to their filing complaint this was the rule promulgated the texans for free enterprise decision coming down all of that has said that that is what underlies our promise not  and the standard as to whether plaintiff design has standing in this sort of setting is whether or not it's absolutely clear that the allegedly wrongful conduct will not recur and that is abundantly clear here i would also know that it's awesome and that the court pointed out that the government is entitled to a presumption of good faith in that setting so i just i'm just is somewhat repetitious but i want to be sure hard for you at the podium that that that we understand properly you're saying that as far as you're concerned under under the injunction that was in place in texas for free enterprise and under any other more inclusive not cessation voluntary secession  announcement by the state that all of the acts in which this plaintiff alleges that it wishes to engage would would not be deemed unlawful or would not be prosecuted or are in any way  challenge by again your client the members of the ethics commission yes that is correct but i want to be clear that that is qualified by the fact that what they have alleged they will do in this record now because i expect that my friend in opposition will come up and say well if you look at our reply brief we said we may want to coordinate with the religious freedom pac well that that intent has was never expressed in the district court all right so that's just not you would say that's not before us because it was neither raised in the district court nor in their opening brief right and that's why i say it's important to keep in mind what the key parts of the record are where where they in this record say what their intent is it is in the in the complaint in their iraq atory responses and in in their testimony and i would note that when they mention that they want to coordinate with the religious freedom act what's wrong with the i mean it's a religious freedom pac i'm missing something it's not associated with a candidate or candidate packard or is it well that's that's i think that's a problem here right is that there's not a record really explaining what they are  what they do but you sound as if you know what it is sell my which is why you're qualified who write well it because it's unclear it's possible that they if they are indeed a direct campaign expenditure only committee then th that none of that matters because what matters here is what's in the record and what the district court had to rely on and threw out they said we have no intent to what matters here throughout they've said we have no intent to coordinate with candidate for office  your honour's and hopefully i can i can help cut through some of this confusion always to two central points in this case in my mind five minutes first of all with respect to the issue of this this interest and how how far how broadly can the court read the free enterprise injunction i think that that issue was is answered in our in our briefing and if the court sits down and tries to write it then you look at the free enterprise injunction in this reference to any other regulation or law  and tries to write an opinion to apply that to a statute that was never an issue in free enterprise you're going to run smack into the venom in case john doe number one versus venom and which is this circa two thousand and four where they said specifically that the scope of injunctive relief is dictated by the extent of the violation established and this court when you read the free enterprise opinion you'll see there was never any discussion of recall speech at issue of free enterprise it was all candidate related independent expenditures and so if the plaintiffs in free enterprise it's a court why don't you also enjoyed subsection b even though we don't talk about that stuff the court would have to say we don't have order the three jurisdiction well what about judge smith's idea that if we fail you don't have standing because the injunction was that broad but that's that's the point that i'm getting too because venom and prevents the you're telling us we can't do that i'm telling you that the free enterprise injunction cannot be and also concerns subsection b and and nine six nine zero six i think it was and then they say no it doesn't what i think i think they're asking the court to do right other than ian does more violence to the idea of a limited federal jurisdiction limited to the facts before in the case before and then does the fact that recognizing that there is standing because that injunction cannot be read expansively issue of voluntary sation especially in the first time in the context does not deny a plaintiff standing when there's a facial prohibition on political speech on the books to the government's mere promise that we're going to we're going to some cases involve situations where for example citizens for responsible government which we've cited in the reply to the circuit said i understand that the secretary of state is saying they're going to interpret the term persons to exclude these plaintiffs exactly the situation here but that's not consistent with the facial statute and so they're still standing because there's a chill on people's speech and davidson and also majors vs a bell also from the seventh well that was a seven circuit case and both pointed out that not only was there a facial chill because of the statute on the books and the fact that the defendants promised doesn't negate that but they also point out it's relevant that that there was no statement on the on the commission's website in those cases disavow wasn't so much a question as an observation i guess what you fifteen seconds for something you know ok i will but this is a critical point because even if you set all that aside and credit their interpretation of how they say they're going to force the law with the state just made a very critical concession he said in kind contributions are treated the same under the election code is as a direct contributions of money and that is absolutely true and that's a big problem because when you have in the context we're discussing we're not transferring anything fungible to any committee that uses other resources to contribute to candidates we're talking about engaging in activity that is deemed to be a reportable contribution of the election code but just because the state can require that to be can define it as a contribution and require to be reported for informational purposes does not mean that there's a quid pro quo threat that justifies a ban and you have to look at catholic leadership in the different interests at stake in the difference between a disclosure requirement and  and a ban which only one for because that is an outright ban and there's no caps in leadership says when there is no transfer of a fungible asset that can be circumvented to given to a candidate through a pac there is no anti circumvention interest and so while the state is right that there is no difference in the election code that's a problem on these facts and my time's up i think the court that we seem ok thank you very much