Official - Subject to Final Review 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - x 3 SHAUN MCCUTCHEON, ET AL., 4 5 : Appellants : v. No. 12-536 : 6 FEDERAL ELECTION COMMISSION : 7 - - - - - - - - - - - - - - - - - x 8 Washington, D.C. 9 Tuesday, October 8, 2013 10 The above-entitled matter came on for oral 11 12 argument before the Supreme Court of the United States 13 at 10:03 a.m. 14 APPEARANCES: 15 ERIN E. MURPHY, ESQ., Washington, D.C.; on behalf of 16 17 Appellants. BOBBY R. BURCHFIELD, ESQ., Washington, D.C., for Senator 18 Mitch McConnell, as amicus curiae, supporting 19 Appellants. 20 DONALD B. VERRILLI, JR., ESQ., Solicitor General, 21 Department of Justice, Washington, D.C.; on behalf of 22 Appellee. 23 24 25 1 Alderson Reporting Company Official - Subject to Final Review 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 ERIN E. MURPHY, ESQ. 4 PAGE On behalf of the Appellants 5 ORAL ARGUMENT OF 6 3 BOBBY R. BURCHFIELD, ESQ. 7 For Senator Mitch McConnell, as amicus 8 curiae, supporting Appellants 9 10 11 18 ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ESQ. On behalf of the Appellee 12 REBUTTAL ARGUMENT OF 13 27 ERIN E. MURPHY, ESQ. 14 On behalf of the Appellants 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company 55 Official - Subject to Final Review 1 P R O C E E D I N G S 2 (10:03 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear argument 4 first this morning in Case 12-536, McCutcheon v. The 5 Federal Election Commission. 6 Ms. Murphy. 7 ORAL ARGUMENT OF ERIN E. MURPHY 8 ON BEHALF OF THE APPELLANTS 9 10 MS. MURPHY: Mr. Chief Justice, and may it please the Court: 11 Bicker's aggregate contribution limits are 12 an impermissible attempt to equalize the relative 13 ability of individuals to participate in the political 14 process. 15 the modest base limits Congress has already imposed to 16 combat the reality or appearance of corruption, these 17 limits simply seek to prevent individuals from engaging 18 in too much First Amendment activity. By prohibiting contributions that are within These limits cannot be justified on 19 20 circumvention grounds because the concerns the 21 Government hypothesizes are already addressed by 22 Bicker's multitude of more direct anti-circumvention 23 measures. 24 JUSTICE BREYER: 25 MS. MURPHY: How is that? Because Bicker imposes numerous 3 Alderson Reporting Company Official - Subject to Final Review 1 direct circumvention measures. 2 earmarking provisions on earmarking contributions for 3 candidate. 4 coordinated expenditures with a candidate. 5 proliferation restrictions on creating multiple PACs 6 that are all designed. 7 For instance, we have We have coordination restrictions on JUSTICE BREYER: There are Now, all these were there 8 at -- but for one -- were there at the time of 9 Buckley vs. Valeo, and I guess the Court thought 10 something could happen like the following: Candidate 11 Smith, we can only give him $2600, but he has a lot of 12 supporters. And each of them, 40 of them gets a 13 brainstorm. And each of the 40 puts on the internet a 14 little sign that says, Sam Smith PAC. 15 to people like Sam Smith. This money goes Great people. 16 Now, we can give each of those 40 $5,000. 17 They aren't coordinated, they're not established by a 18 single person. 19 pretty well that that total of $5,000 times 40 will go 20 to Sam Smith. Each is independently run. Okay? And we know What does that violate? 21 MS. MURPHY: Well, there's a couple problems 22 with that hypothetical, Your Honor. 23 are base limits both on what can be given to a PAC -- 24 JUSTICE BREYER: 25 MS. MURPHY: First of all, there $5,000. -- and on what a PAC can give 4 Alderson Reporting Company Official - Subject to Final Review 1 to a candidate. 2 JUSTICE BREYER: $5,000. So we all have is 3 my $5,000 going to the PAC and there happened to be 400 4 PACs. 5 times 400, how much is that? So 5,000 times -- 4,000. 6 MS. MURPHY: I'm not too good at math. (Laughter.) 7 Five times 40, five Without doing the math, I will 8 tell you that earmarking and proliferation 9 restrictions -- 10 11 JUSTICE BREYER: No, no. There is no earmarking -- 12 MS. MURPHY: But -- but there's -- 13 JUSTICE BREYER: -- because earmarking 14 requires that you write on a check or in an accompanying 15 letter that you want the money to go to something. 16 MS. MURPHY: But actually it does not. 17 JUSTICE BREYER: 18 MS. MURPHY: It does not? Earmarking -- the FEC's 19 earmarking regulations are broader than that. 20 have a PAC that is going to contribute only to one 21 candidate, you're not -- 22 JUSTICE BREYER: No, no. If you They'll contribute 23 to several because they'll get more than one 24 contribution. 25 MS. MURPHY: And at that point, then you 5 Alderson Reporting Company Official - Subject to Final Review 1 don't have the kind of traceability you're talking about 2 because there is more money coming into the PAC than can 3 find its way to any one particular candidate. 4 JUSTICE SCALIA: I would think if you named 5 the PAC after a particular candidate as the hypothetical 6 assumes, I would be surprised if the Federal Election 7 Commission wouldn't come after you for earmarking. 8 9 MS. MURPHY: That's -- that's exactly my point. 10 JUSTICE KAGAN: Well, let's say this one, 11 Ms. Murphy. 12 each of them say that they're going to support the five 13 contest -- the five candidates in the most contested 14 Senate races. 15 Senate races, and 100 PACs say that they're going to 16 support those five candidates. 17 Let's say this one: You have 100 PACs and There are really only five very contested So a donor gives $5,000 to each of those 100 18 PACs which support those candidates, the PAC divides up 19 the money, $1,000 goes to each candidate. 20 all those PACs, $100,000 goes to each of the -- of the 21 Senate candidates in the five most contested races, 20 22 times what the individual contribution limits allow. 23 MS. MURPHY: The total, A couple of responses to that, 24 Your Honor. I mean, first of all, we're talking about 25 scenarios where there isn't coordination at all between 6 Alderson Reporting Company Official - Subject to Final Review 1 the first person who makes a contribution and the 2 candidate later on that's receiving it. 3 JUSTICE KAGAN: 4 his $100,000 donors. 5 them. 6 This candidate knows all of Rolodex. 7 There are not all that many of He can keep them all in his head in a mental MS. MURPHY: But they're not actually donors 8 to him at that point. 9 that, in your hypothetical, is contributing to multiple 10 11 They're contributing to a PAC different candidates and -- JUSTICE KAGAN: Five of the most contested 12 Senate races. 13 five candidates who if they win become the five senators 14 that are most attuned to donors. 15 giving him $100,000, each of those five senators who 16 gets in on the strength of these contributions that are 17 20 times what the individual limits allow. 18 So a person gives $100,000 to each of MS. MURPHY: And he knows who's I don't think it works to think 19 of these as direct contributions in excess of the base 20 limits because the PAC is limited itself in how much it 21 can contribute, so you would have to have -- 22 JUSTICE BREYER: All we're trying to do, 23 because it's hard to do in oral argument. 24 we're trying to do in both, I think, our cases is that 25 we looked up all the rules and the regs -- or my law 7 Alderson Reporting Company But what Official - Subject to Final Review 1 clerk did -- and -- and what she discovered, and it may 2 be wrong because I'll look at it again, is there has 3 been no significant change in the earmarking rules, in 4 any of the rules that you're talking about, but for one, 5 change since Buckley. 6 The one change, the one change is the change 7 that all contributions made by political committees 8 established by or financed or maintained or controlled 9 by a single person will count as one. So what you're 10 seeing in these hypotheticals is simply the construction 11 of precisely the same situation that existed in Buckley 12 while being careful to have not one person control the 13 4,000 PACs, which is pretty easy to do. 14 to say, is this a reality? 15 or internet. 16 names, where it certainly is a reality. 17 And if you want Turn on your television set Because we found instances, without naming MS. MURPHY: Two responses. There are 18 changes in earmarking, more than what you've suggested 19 because the restrictions that the FEC has put out in 20 regulations are -- are -- they cover more than the 21 statute itself. 22 instances of a PAC that is only going to be contributing 23 to one candidate, which is where a lot of the concern 24 comes from. 25 And specifically, they cover these JUSTICE KENNEDY: I just want to be clear 8 Alderson Reporting Company Official - Subject to Final Review 1 what your answer to Justice Kagan was, her hypothetical. 2 Is -- is part of your answer that this might -- the 3 hypothetical that she gives -- contravene earmarking? 4 Or -- 5 MS. MURPHY: That's part -- it can pose both 6 earmarking concerns and proliferation concerns if we're 7 talking about something. 8 PAC that's -- 9 And if we're talking about a JUSTICE KENNEDY: So is part of your answer 10 to her there that the hypothetical isn't real or isn't 11 going to happen or -- 12 MS. MURPHY: 13 JUSTICE KENNEDY: 14 15 the existing law? Yes, I think -- -- or can't happen under Is that your answer? MS. MURPHY: That's part of the answer. I 16 don't think it's a particularly realistic scenario under 17 existing regulations. 18 19 20 JUSTICE KENNEDY: Would the other side concede that this is true? MS. MURPHY: I -- I doubt they would concede 21 that it's true. But, you know, I think that if you look 22 at it, if you have a bunch of PACs that are getting 23 contributions from this same group of individuals, you 24 are going to run into earmarking and proliferation 25 restrictions. 9 Alderson Reporting Company Official - Subject to Final Review 1 But the other thing I would say -- 2 JUSTICE SCALIA: I can't imagine that if you 3 have a PAC which says we're going to give money to 4 Smith, that's bad, but if you have a PAC that says we're 5 going to give all the money that you contribute to us to 6 Smith and Jones, that's okay. 7 others. 8 9 Or Smith, Jones and three It seems to me that that's earmarking. MS. MURPHY: Exactly. It's an earmarking restrictions if you know that your contributions -- 10 JUSTICE KAGAN: Ms. Murphy, if you think 11 it's earmarking that have a PAC that gives money to the 12 five most -- the candidates in the five most contested 13 Senate races, I just don't think any FEC would say that 14 that's earmarking. 15 JUSTICE ALITO: Well, I may have an overly 16 suspicious mind, but I don't know. 17 rise up and all of them said exactly the same thing, 18 we're going to make contributions to the five most 19 contested Senate -- the candidates in the five most 20 contested Senate races, I would be suspicious. 21 maybe the FEC would also be suspicious that they didn't 22 just all spring up independently. 23 24 25 MS. MURPHY: right. If I saw 100 PACs And I think that's absolutely I think the FEC would be suspicious, but -- JUSTICE KENNEDY: Well, suppose -- suppose a 10 Alderson Reporting Company Official - Subject to Final Review 1 number of PACs -- I forget the number in Justice Kagan's 2 example -- said we're going to give to congressional and 3 senatorial candidates who want to cut down on 4 governmental spending. 5 four people that are like that. 6 MS. MURPHY: 7 (Laughter.) 8 MS. MURPHY: And we know there's only about 9 Well -- I mean, at that point, I think, you know, that -- that when you have a PAC that's not 10 saying to any certainty what they're going to do, then 11 you don't -- it's not clear you have something to target 12 there, because the PAC might be spending money in 13 different ways that are not operating as a conduit to -- 14 for circumvention. 15 again to why this doesn't have the kind of coordination 16 you need. 17 So, you know, I think that gets JUSTICE KAGAN: Ms. Murphy, can I give 18 another one? There are 150 House candidates with 19 completely safe seats, all right? 20 you know, 30 or 40 or something like that in their party 21 who don't have safe seats. 22 they say we're going to run a joint fundraiser. 23 anybody can contribute $2600 to each of these 24 candidates, 150 of them, right? 25 $400,000. And there are maybe, So the 150 gets together and And So that makes about 11 Alderson Reporting Company Official - Subject to Final Review 1 And then these 150 candidates with 2 completely safe seats just transfer all this money to 3 the one person who doesn't have a safe seat. 4 about $400,000. 5 election, that's about $800,000 that all goes to one 6 candidate from one donor because of the ability for 7 candidates to transfer money to each other. 8 9 10 11 12 13 Double it for a primary and a general MS. MURPHY: Kagan. So that's That is not legal, Justice The candidates do not have the ability to transfer money to each other. JUSTICE KAGAN: They only have -- A candidate can transfer a maximum of $2600 to another candidate per election. MS. MURPHY: A candidate can transfer $2,000 14 to a candidate per election. 15 contribution -- 16 17 18 JUSTICE KAGAN: And that's a I stand corrected on the basis of $600. MS. MURPHY: That's a hard contribution 19 limit on how much they can contribute. 20 think all of this also gets to another problem, which is 21 there's an overbreadth problem here. 22 you're talking about this scenario, in your scenario, 23 there's only one person who can even make a contribution 24 at that point after the first $2600 is received. 25 JUSTICE KAGAN: But -- but I Because if -- if You're exactly right. 12 Alderson Reporting Company Official - Subject to Final Review 1 You're exactly right, Ms. Murphy. 2 an $800,000 contribution to a House race, where $800,000 3 goes a long way. 4 do is they can do it for every single other candidate in 5 a contested seat. 6 seats and it becomes a conduit for a single person to 7 make an $800,000 contribution to a candidate in a 8 contested district. 9 One person could make And then what these 150 candidates can So take your 30 or 40 House contested MS. MURPHY: I think even if you accept this 10 scenario where all of these candidates are independently 11 deciding to give all their money to one candidate, you 12 can't have a law that is designed to prevent this one 13 person from circumvention by prohibiting everybody else 14 from engaging in contributions that don't -- 15 JUSTICE GINSBURG: Ms. Murphy, on the 16 "everyone else," can you give us an idea of whose 17 expression is at stake? 18 come even near the limit. 19 there any information on what percentage of all 20 contributors are able to contribute over the aggregate? 21 MS. MURPHY: I mean, most people couldn't So what percentage -- is I don't have a percentage on 22 how many are able. I mean, we aren't talking about a 23 large number of individuals. 24 about more individuals than whose First Amendment rights 25 were implicated by the provision at issue in Davis, for We certainly are talking 13 Alderson Reporting Company Official - Subject to Final Review 1 2 example. JUSTICE SCALIA: I assume that a law that 3 only -- only prohibits the speech of 2 percent of the 4 country is okay. 5 MS. MURPHY: Absolutely not. 6 JUSTICE SCALIA: 7 CHIEF JUSTICE ROBERTS: Oh, it isn't? Ms. Murphy, we 8 haven't talked yet about the effect of the aggregate 9 limits on the ability of donors to give the minimum 10 amount to as many candidates as they want. 11 of the aggregate limits is to limit someone's 12 contribution of the maximum amount to about 9 13 candidates, right? 14 15 16 MS. MURPHY: That's right. The effect If you're talking about a general -- CHIEF JUSTICE ROBERTS: Is there a way to 17 eliminate that aspect while retaining some of the 18 aggregate limits? 19 consequence of any way you have aggregate limits? 20 are there alternative ways of enforcing the aggregate 21 limitation that don't have that consequence? 22 In other words, is that a necessary MS. MURPHY: Or Well, it's certainly a 23 necessary consequence of BCRA's scheme in which there's 24 a distinct aggregate limit on contributions to 25 candidates alone. I think, though, aggregate limits in 14 Alderson Reporting Company Official - Subject to Final Review 1 general are always going to have this effect of 2 prohibiting people from giving contributions that don't 3 themselves give rise to quid pro quo corruption 4 concerns. 5 concerned about the things it's talking about, there are 6 narrower avenues to get at them. 7 joint fundraising committees, you could have -- 8 9 And that's why if the government is really JUSTICE SOTOMAYOR: okay? If the concern is I'm a little confused, I'm confused because we're talking in the 10 abstract. This decision was based on a motion to 11 dismiss. 12 happens and doesn't happen. 13 below. And there is a huge colloquy about what We don't have a record 14 MS. MURPHY: Well -- 15 JUSTICE SOTOMAYOR: I mean, I can go into 16 the news, as Justice Breyer suggested. It's very hard 17 to think that any candidate doesn't know the contributor 18 who has enough money to give not only to himself or 19 herself, but to any of his or her affiliates who are 20 supporting him or her. I mean, it's nearly common sense, hard to 21 22 dispute. 23 see charges of coordination going on that much. 24 25 So you're saying it can't happen, but I don't MS. MURPHY: I guess I'm not sure what you're talking about happening. I mean, if you're just 15 Alderson Reporting Company Official - Subject to Final Review 1 talking about knowing that some individuals are making 2 contributions to other candidates or State parties who 3 are not going to share those contributions with a 4 particular candidate, then I don't see how that -- or 5 gives rise to any corruption or circumvention concern. 6 JUSTICE BREYER: 7 actual ad. 8 picture of the candidate. 9 "Smith PAC." Here is the actual ad, the I won't name the candidate. You see a There is a sign that says That's what it says. And then it says, 10 "Make a donation to help Smith PAC support Republican," 11 if you like, or "Democratic candidates." 12 then they have an address. 13 Period. And All right. Now, it doesn't take a genius to figure out 14 what they're going to do with the money and that maybe 15 Smith will get a pretty good share of it. 16 has 400 people who figure this out, he will have 400 17 times 5,000 times one person. 18 Now, if Smith Now, you say that really couldn't happen 19 because of the designation. 20 designation rule that would stop it. 21 Sotomayor is saying: 22 because there's been no hearing, there's been no 23 evidence presented. 24 25 We haven't found a I don't know. But then Justice And I don't either, There is nothing but dismissal. MS. MURPHY: Two points, Your Honor. of all, the case was brief on cross-motion for 16 Alderson Reporting Company First Official - Subject to Final Review 1 injunctive relief. 2 to make a record and it chose to treat this as a legal 3 case, not as one in which -- 4 5 JUSTICE SCALIA: Ms. Murphy, do -- do we need a record to figure out issues of law? 6 7 So the government had an opportunity MS. MURPHY: And that's my second point. Really, this is -- 8 JUSTICE SCALIA: 9 (Laughter.) 10 JUSTICE SCALIA: No, no. I agree. I agree -- I agree that -- 11 that this campaign finance law is so intricate that I 12 can't figure it out. 13 the, you know, the lower court tell me what the law is. 14 But we don't normally require a record to decide 15 questions of law. 16 It might have been nice to have MS. MURPHY: And you shouldn't need one here 17 either because these limits are facially over- and 18 under-inclusive. 19 evidence can't -- 20 They're not closely tailored and JUSTICE SOTOMAYOR: You're taking a 21 position -- you're taking a position that the law stops 22 corruption. 23 is incapable of showing facts that the law doesn't work? And you're suggesting that the government 24 MS. MURPHY: I'm suggesting that -- 25 JUSTICE SOTOMAYOR: As it is? 17 Alderson Reporting Company Don't you Official - Subject to Final Review 1 need facts to prove that or disprove that proposition? 2 MS. MURPHY: Even if the government could 3 prove that proposition, there would still be an over- 4 and under-breadth problem. 5 6 If I may, I'd like to reserve the remainder of my time. 7 CHIEF JUSTICE ROBERTS: 8 Mr. Burchfield. 9 ORAL ARGUMENT OF BOBBY R. BURCHFIELD, 10 FOR SENATOR MITCH McCONNELL, 11 AS AMICUS CURIAE, SUPPORTING APPELLANTS 12 13 Thank you, counsel. MR. BURCHFIELD: Mr. Chief Justice, may it please the Court: 14 Senator McConnell agrees that this aggregate 15 limit does not pass exacting scrutiny. 16 McConnell believes that all restrictions of this nature 17 should be reviewed under strict scrutiny. 18 with, this is a severe restriction on political speech. 19 JUSTICE GINSBURG: Senator To begin Mr. Burchfield, I'd like 20 you to address this question about the restriction on 21 speech. 22 expression, promote democratic participation, because 23 what they require the candidate to do is, instead of 24 concentrating fundraising on the super-affluent, the 25 candidate would then have to try to raise money more It has been argued that these limits promote 18 Alderson Reporting Company Official - Subject to Final Review 1 broadly in the electorate. 2 limits you are promoting democratic participation, then 3 the little people will count some, and you won't have 4 the super-affluent as the speakers that will control the 5 elections. 6 MR. BURCHFIELD: So that by having these Your Honor, I disagree with 7 that, for this reason. First of all, this limit, the 8 aggregate limit on political parties, places like-minded 9 political parties in the position of competing against 10 each other rather than collaborating against each other. 11 All the national political parties on the Republican 12 side and the State political parties compete against 13 each other for an artificially limited pool of money 14 from each contributor. 15 The same is true on the candidate side. 16 They compete against each other for the same 17 artificially limited pool of money, even though each 18 individual contribution to the candidate or to the party 19 is limited by the base limits. 20 Commission regulations -- and Justice Breyer, I would -- 21 I would propose that you look at Section 110.1(h), which 22 specifically -- which specifically prohibits a PAC of 23 the nature you describe. 24 25 The Federal Election If a person contributes to a PAC with knowledge his contribution is going to a particular 19 Alderson Reporting Company Official - Subject to Final Review 1 candidate, that is an earmark under the -- under the 2 precedents of the Federal Election Commission. 3 JUSTICE SCALIA: Counsel, is it -- is it 4 correct that the consequence of this provision has been 5 very severe with respect to national political parties? 6 MR. BURCHFIELD: It is, Your Honor, 7 particularly in the current environment where the 8 national political parties are -- are being marginalized 9 by outside forces. 10 JUSTICE SCALIA: And -- and much of the 11 money that used to go to them now goes to PACs; isn't 12 that what has happened? 13 MR. BURCHFIELD: Exactly right, Your Honor. 14 JUSTICE SCALIA: So that this is really, you 15 know, turning the dials on -- on regulating elections. 16 Now, I ask myself, why would -- why would members of 17 Congress want to hurt their political parties? 18 answer -- I answer to myself -- 19 (Laughter.) 20 JUSTICE SCALIA: And I -- well, ordinarily, the 21 national political parties will devote their money to 22 elections in those States where the incumbent has a good 23 chance of losing. 24 who cares about political parties, I don't want money to 25 go to my opponents. So, in fact, if you're an incumbent 20 Alderson Reporting Company Official - Subject to Final Review 1 And if you -- if you turn down the amount of 2 money that the national political parties have, that's 3 that much less money that can be devoted against you if 4 you're challenged in a close race. 5 consequence of this? 6 MR. BURCHFIELD: Isn't that the Let me see you and raise 7 you one. There are separate limits here, Your Honor, 8 for candidates and for political parties. 9 this is to insulate the incumbents from competing with The effect of 10 the political parties for the dollars. 11 a cap on the candidate -- on the amount candidates can 12 raise, the incumbents realized that they're the favored 13 class among -- among candidates who are going to be 14 getting the contributions. 15 JUSTICE SCALIA: 16 JUSTICE GINSBURG: And by imposing What a surprise. Has it worked out that 17 way in practice? 18 one brief at least saying no, that -- that that's wrong. 19 In fact, it's the challengers who are aided. 20 Has it worked out? MR. BURCHFIELD: Because there was Well, Your Honor, I think 21 it is -- it is -- there's a hard cap on the number any 22 contributor can give to all candidates, and a separate 23 cap on the amount that contributor can give to all party 24 committees. 25 JUSTICE BREYER: So -- So I read in one 21 Alderson Reporting Company Official - Subject to Final Review 1 summer before BCRA, I spent several weeks reading the 2 record before the district court in that very lengthy 3 case on this. 4 senators and congressmen that a handful of people can 5 give hundreds of thousands of dollars, they know who 6 those people are, and that those people do have undue 7 influence, which means in First Amendment terms that the 8 individual who, in fact, has wonderful ideas and 9 convinces others, even by paying three cents to buy the And it was filled with testimony by 10 internet or something, hasn't a shot because it will 11 influence people, not ideas, but the money. 12 was a record on that. 13 Now, there Here there is no record showing whether this 14 aspect does or does not have the same tendency. That is 15 why I ask: 16 when the record previously showed the contrary of what's 17 been argued, and in fact at least might show that even 18 in respect to these limits? 19 MR. BURCHFIELD: How can I decide this on the basis of theory Well, Your -- Your Honor, 20 this case comes to the Court as an as-applied challenge. 21 Mr. McCutcheon does not want to go through -- does not 22 want to go through the committees you're talking about. 23 He wants to write checks directly to the candidates and 24 directly to the committees. 25 aggregate limit. He is constrained by the 22 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE GINSBURG: But he can -- he can 2 write checks to everyone that he wants to write checks 3 to. 4 It's just he can't give his special number of 1776. MR. BURCHFIELD: If -- if he wanted to give 5 a contribution to every candidate running for a Federal 6 congressional seat, congressional and Senate, he would 7 be limited to $86 or some number like that. 8 9 JUSTICE GINSBURG: In his own case, it would be something over $1,000, right? Because he identified 10 12 more candidates that he'd like to give 1776 to. 11 he could give each of them over $1,000. 12 MR. BURCHFIELD: Your Honor, he could. 13 associate and the intensity of his association by 15 But again, you're -- you're diminishing his right to 14 But applying this aggregate limit. 16 JUSTICE KAGAN: Mr. Burchfield, if you take 17 off the aggregate limits, people will be allowed, if you 18 put together the national committees and all the State 19 committees and all the candidates in the House and the 20 Senate, it comes to over $3.5 million. 21 checks totalling $3.5 million to the Republican Party 22 committees and all its candidates or to the Democratic 23 Party committees and all its committees even before I 24 start writing checks to independent PACs. 25 So I can write Now, having written a check for 3.5 or so 23 Alderson Reporting Company Official - Subject to Final Review 1 million dollars to a single party's candidates, are you 2 suggesting that that party and the members of that party 3 are not going to owe me anything, that I won't get any 4 special treatment? 5 exactly what we said in McConnell, that when we talked 6 about soft money restrictions, we understood that you 7 give $3.5 million, you get a very, very special place at 8 the table. 9 the soft money scheme of McConnell, isn't it? 10 Because I thought that that was So this is effectively to -- to reintroduce MR. BURCHFIELD: No. No, Your Honor, it is 11 absolutely not, because McConnell dealt with the 12 situations where there were -- you were not considering 13 the base limits. 14 subject to the base limits. 15 The soft money by definition was not To take your example of the joint 16 fundraising committee, the joint fundraising regulation, 17 which consumes more than three pages in the -- in the 18 Federal Code of Federal Regulations -- it's at 102.17(c) 19 -- it specifically reaffirms the base limits. 20 specifically reaffirms the anti-earmarking restriction, 21 and it says that the joint fundraising committee must 22 inform all contributors of those restrictions. 23 It So, again, it's the situation where the 24 money leaves the contributor's hands, he loses control 25 over it, and the person who receives it makes the 24 Alderson Reporting Company Official - Subject to Final Review 1 direction. 2 JUSTICE KAGAN: But the money -- the money 3 goes to a single party. 4 even worse. 5 House or the Majority Leader of the House solicits this 6 money from particular people. 7 ante up his $3.6 million. 8 Justice Kennedy said in McConnell the making of a 9 solicited gift is a quid both to the recipient of the 10 And indeed, I could make this I could say, let's say the Speaker of the So solicits somebody to And then, you know, money and to the one who solicits the payment. 11 So the Speaker, the Majority Leader, can 12 solicit $3.6 million to all the party members and you're 13 telling me there's just no special influence that goes 14 along with that? MR. BURCHFIELD: 15 Well, we know from the 16 Citizens United decision, Your Honor, that gratitude and 17 influence are not considered to be quid pro quo 18 corruption. 19 about. 20 sustain this limit, especially in light of the severe 21 restrictions on speech and association that it imposes 22 as the political parties compete against each other and 23 as they -- and as -- as the candidates have to compete 24 against each other. 25 So I think that's what you're talking That is not the sort of corruption that would Justice Alito. 25 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE ALITO: In Buckley, the Court 2 sustained -- sustained aggregate limits. 3 changed since Buckley? 4 MR. BURCHFIELD: What has Your Honor, the -- the 5 statute has changed significantly to impose base limits 6 on the parties, to impose -- on both the State and -- 7 and Federal parties. 8 proliferation of political committees. 9 It has changed to prohibit One of the concerns in Buckley was the dairy 10 industry, which contributed to hundreds of PACs 11 supporting President Nixon's re-election. 12 longer possible. 13 JUSTICE ALITO: That is no Those were all created by 14 the dairy industry or by the Nixon campaign, is that 15 correct? 16 MR. BURCHFIELD: That's not -- as I 17 understand -- as I read the lower court decision in 18 Buckley, that is correct. 19 20 In addition, you also have -- you also have a thick volume -- 21 JUSTICE SOTOMAYOR: 22 MR. BURCHFIELD: Then how is it that -- In addition, you also have 23 -- you also have a thick volume -- you have a thick 24 volume of the Code of Federal Regulations of the Federal 25 Election Commission, which did not exist at the time of 26 Alderson Reporting Company Official - Subject to Final Review 1 Buckley. 2 CHIEF JUSTICE ROBERTS: 3 MR. BURCHFIELD: 4 Thank you, counsel. CHIEF JUSTICE ROBERTS: Thank you, Your Honor. General Verrilli. 5 ORAL ARGUMENT OF DONALD B. VERRILLI, JR., 6 ON BEHALF OF THE APPELLEE 7 8 GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: 9 Aggregate limits combat corruption. Let me 10 start by explaining exactly how. 11 combat corruption both by blocking circumvention of 12 individual contribution limits and, equally 13 fundamentally, by serving as a bulwark against a 14 campaign finance system dominated by massive individual 15 contributions in which the dangers of quid pro quo 16 corruption would be obvious and inherent and the 17 corrosive appearance of corruption would be 18 overwhelming. 19 Aggregate limits Now, the Appellants in this case have tried 20 to present the case as though the issue were whether 21 there were some corrupting potential in giving 22 contribution to the nineteenth candidate after someone 23 has already contributed to -- the maximum to the 24 eighteenth. 25 But that is not what this case is about. The Appellants are not arguing that the 27 Alderson Reporting Company Official - Subject to Final Review 1 aggregate limit is drawn in the wrong place. They are 2 arguing that there can be no aggregate limit because the 3 base contribution limits do all the work. 4 that means is that you -- you're taking the lid off the 5 aggregate contribution limit and, as Justice Kagan and 6 her question earlier indicated, that means that an 7 individual can contribute every two years up to 8 $3.6 million to candidates for a party, party national 9 committees and state committees -- 10 CHIEF JUSTICE ROBERTS: And so what That's because they 11 can transfer the funds among themselves and to a 12 particular candidate. 13 those transfers perhaps a way of protecting against that 14 corruption appearance while at the same time allowing an 15 individual to contribute to however many House 16 candidates he wants to contribute to? 17 Is the possibility of prohibiting I mean, the concern is you have somebody who 18 is very interested, say, in environmental regulation, 19 and very interested in gun control. 20 the way the anti-aggregation system works, is he's got 21 to choose. 22 environmental regulation by donating to more than nine 23 people there? 24 issue? 25 The current system, Is he going to express his belief in Or is he going to choose the gun control GENERAL VERRILLI: So, Mr. Chief Justice, I 28 Alderson Reporting Company Official - Subject to Final Review 1 want to make two different points in response to that 2 question. 3 have a bearing on the circumvention problems. 4 wouldn't eliminate all circumvention risk, but would 5 have a bearing on that problem. 6 The first is that restricting transfers would It But there is a more fundamental problem 7 here. It's a problem analogous to the one that was at 8 issue with soft money in McConnell, which is the very 9 fact of delivering the $3.6 million check to the whoever 10 it is, the Speaker of the House, the Senate Majority 11 Leader, whoever it is who solicits that check, the very 12 fact of delivering that check creates the inherent 13 opportunity for quid pro quo corruption, exactly the 14 kind of risk that the Court identified in Buckley, 15 wholly apart from where that money goes after it's 16 delivered. 17 But the delivery of it -- CHIEF JUSTICE ROBERTS: What is the 18 framework -- what is the framework for analyzing -- I 19 agree with you on the aggregation, but it has this 20 consequence with respect to limiting how many candidates 21 an individual can support within the limits that 22 Congress has said don't present any danger of 23 corruption? 24 that? 25 transfers and the appearance there, but it does have So what is the framework for analyzing Give you your argument with respect to the 29 Alderson Reporting Company Official - Subject to Final Review 1 that other consequence on something we've recognized as 2 a significant right. 3 So -- GENERAL VERRILLI: Let me make a specific 4 point about that and then work into the framework. 5 specific point is this: 6 the effect of restricting the ability of a contributor 7 to make the maximum contribution to more than a certain 8 number of candidates. 9 acknowledge that. 10 The The aggregate limit would have That's true. We can't help but It's math. But that doesn't mean that that individual 11 cannot spend as much as the individual wants on 12 independent expenditures to try to advance the interest 13 of those candidates or the interests or the causes that 14 those candidates stand for. 15 example, can spend as much of his considerable fortune 16 as he wants on independent expenditure advocating the 17 election of these candidates. 18 JUSTICE SCALIA: Mr. McCutcheon, for And that does not -- that 19 does not evoke any gratitude on the part of the people? 20 I mean, if gratitude is corruption, you know, don't 21 those independent expenditures evoke gratitude? 22 is -- is not the evil of big money -- 3.2 million, an 23 individual can give that to an independent PAC and spend 24 it, right? 25 GENERAL VERRILLI: The foundation -- 30 Alderson Reporting Company And Official - Subject to Final Review 1 2 JUSTICE SCALIA: It's not that we're stopping people from spending big money on politics. 3 MR. BURCHFIELD: The foundation of this 4 Court's jurisprudence in this area is the careful line 5 between independent expenditures, which this Court has 6 held repeatedly do not create a sufficient risk of quid 7 pro quo corruption to justify their regulation, and 8 contributions which do. 9 JUSTICE SCALIA: Wait. That -- that -- 10 MR. BURCHFIELD: So we're not talk -- 11 JUSTICE SCALIA: That line eliminates some 12 of the arguments that have been made here, which are 13 arguments against big money in politics. 14 money can be in politics. 15 it to the Republican Party or the Democratic Party, but 16 you can start your own PAC. 17 not sure that that's a benefit to our political system. 18 There -- big The thing is you can't give GENERAL VERRILLI: That's perfectly good. I'm Well, I do think we have 19 limits on contributions to political parties in addition 20 to limits on contributions to candidates. 21 that does help establish the point here, which is that 22 candidates are not hermetically sealed off from each 23 other, and parties are not hermetically sealed off from 24 candidates. 25 team. And I think They -- you know, they're all on the same And we limit the amount that an -- an individual 31 Alderson Reporting Company Official - Subject to Final Review 1 can contribute to a political party as well as the 2 amount that an individual can contribute to candidates. 3 JUSTICE BREYER: That actually does very 4 much -- while I don't -- I'm looking for an answer here. 5 It's not that I have one at all. 6 the point I think that's being made now. 7 understand it, the whole reason -- it is no doubt that 8 campaign limits take an ordinary person and they say: 9 You cannot give more than such-and-such an amount. 10 It is rather basic, I mean, as I There are apparently, from the Internet, 200 11 people in the United States who would like to give 12 $117,000 or more. 13 can't support your beliefs. 14 negative. 15 We're telling them: You can't; you That is a First Amendment But that tends to be justified on the other 16 side by the First Amendment positive, because if the 17 average person thinks that what he says exercising his 18 First Amendment rights just can't have an impact through 19 public opinion upon his representative, he says: 20 is the point of the First Amendment? 21 Amendment point. 22 All right. What And that's a First So that's basic, I think. Now, once that's so, Congress has leeway. 23 And you are saying, and I have seen all over the place, 24 that that's why we don't want those 200 people to spend 25 more than 117- or 120,000 because the average person 32 Alderson Reporting Company Official - Subject to Final Review 1 thinks the election is -- after the election all the 2 actions are affected by the pocketbook and not by the 3 merits of the First Amendment arguments. 4 Okay. And now you say the person can do the 5 same thing anyway; just call it independent. And what 6 independent does, he can spend 40 million. 7 50 million. 8 messages because the parties can't control it. He can spend And all that does is sort of mix up the 9 Now, that's, I think, the question that's 10 being asked. 11 question, and I'd like to know what flows from it. 12 it true? 13 your opinion about that question? 14 And I think that that is a very serious So what? What are we supposed to do? JUSTICE KENNEDY: Is What is And I have the same 15 question. 16 gives an amount to a candidate that's limited. 17 other takes out ads, uncoordinated, just all on his own, 18 costing $500,000. 19 has more access to the candidate who's -- when the 20 candidate is successful, than the first? 21 was at the root of Justice Scalia's question and 22 Justice Breyer's. 23 24 25 You have two -- two persons. One person The Don't you think that second person GENERAL VERRILLI: I think that Let me try to answer this with an analogy, if I could, Justice Kennedy. I think the right way to think about it is 33 Alderson Reporting Company Official - Subject to Final Review 1 this: 2 doing a great job, they can take out an ad in the 3 Washington Post, spend $500,000 on that ad saying: 4 Secretary of Defense has done a great job. 5 they would have an undoubted First Amendment right to do 6 that. 7 hard to imagine a content-neutral justification for 8 prohibiting that speech. 9 10 11 12 If somebody thinks the Secretary of Defense is But if instead the person wanted to express their symbolic -- JUSTICE SCALIA: What if Boeing does it? I mean, you know -- GENERAL VERRILLI: 14 JUSTICE SCALIA: 15 GENERAL VERRILLI: 17 And -- and No one could think that there's a content -- it's 13 16 The I still think -- You think no problem? -- that would be an independent expression. but if, instead, somebody wanted to express 18 symbolically their view that the Secretary of Defense 19 has done a great job by giving the Secretary of Defense 20 a Maserati, nobody would think that there was a First 21 Amendment ground that could be -- that could be invoked. 22 JUSTICE ALITO: But we are talking here 23 about -- we're talking here about campaign 24 contributions. 25 campaign contributions and use it to buy a Maserati? Isn't it illegal for a candidate to take 34 Alderson Reporting Company Official - Subject to Final Review 1 2 GENERAL VERRILLI: point -- 3 4 We -- yes, it is, but the JUSTICE ALITO: Well, I don't see how that really gets to the point. 5 GENERAL VERRILLI: But -- it get -- I think 6 it does, if I may, Justice Alito, because I think that 7 the point is that the -- that the rule against gifts, 8 the conflict of interest rules, they exist to advance a 9 content-neutral government interest of the highest 10 importance. 11 JUSTICE ALITO: What troubles me about your 12 -- what troubles me about your argument, General 13 Verrilli, and about the district court's opinion is that 14 what I see are wild hypotheticals that are not obviously 15 plausible or -- and lack, certainly lack any empirical 16 support. 17 Now, you've -- you've chosen to use the same 18 hypothetical the district court used about the 19 $3.5 million contribution that would be -- that could be 20 given by a coordinate -- which involves all of the House 21 candidates and all of the Senate candidates in a 22 particular year getting together with all of the -- all 23 of the parties' national party committees, plus all of 24 the State party committees, and then -- and that's how 25 you get up to the $3.5 million figure; isn't that right? 35 Alderson Reporting Company Official - Subject to Final Review 1 GENERAL VERRILLI: 2 JUSTICE ALITO: Yes. Now, how -- how realistic is 3 that? How realistic is it that all of the State party 4 committees, for example, are going to get money and 5 they're all going to transfer it to one candidate? 6 49 of them, it's going to be a candidate who is not in 7 their own State. 8 of State party committees contributing to candidates 9 from another State. 10 For And there are virtually no instances And the other part of it that seems dubious 11 on its face is that all of the party -- all of the 12 candidates for the House and the Senate of a particular 13 party are going to get together and they are going to 14 transfer money to one candidate. 15 cited in your brief the example -- best examples, I take 16 it, of -- of contributions from some candidates to other 17 candidates. 18 There really -- you They are very small. GENERAL VERRILLI: Yes. Isn't that true? But I think there 19 are two -- Justice Alito, I think that, with all due 20 respect, I think the point Your Honor is making confuses 21 two different ways in which these laws combat the risk 22 of corruption. 23 The first one is that the -- the handing 24 over of the large check, and whether it's a $3.6 million 25 check for everyone or a $2.2 million check for the House 36 Alderson Reporting Company Official - Subject to Final Review 1 candidates or a $1 million check for all the State 2 committees, the very -- just as the Court found in 3 McConnell with respect to massive soft money 4 contributions and the inherent risks of -- of corruption 5 there, there's an inherent risk of corruption. 6 that's why indeed, as I said, we have limits on how much 7 we can contribute to a political party for that 8 reason -- 9 10 JUSTICE ALITO: Well, I don't understand that -- 11 12 And GENERAL VERRILLI: -- and that's apart from how it gets transferred. 13 JUSTICE ALITO: Unless the money is 14 transferred to -- you have to get it from the person who 15 wants to corrupt to the person who is going to be 16 corrupted. 17 B, I don't see where the quid pro quo argument is. 18 And unless the money can make it from A to GENERAL VERRILLI: Well, I think that the -- 19 I think that the way these joint fundraising committees 20 work is you hand over a single check to a candidate who 21 solicits it. 22 a joint fundraising committee, says give to me and give 23 to the rest of my team. 24 over the check to that candidate is a -- seems to me 25 creates a significant risk of indebtedness on the part Now, it could be any candidate who sets up And that's -- so the handing 37 Alderson Reporting Company Official - Subject to Final Review 1 of that candidate, even though a lot of the money is 2 flowing through to others. 3 In addition, the party leaders are often 4 going to be the ones who solicit those contributions, 5 and they're going to have a particular indebtedness to 6 candidates because, of course, their power, their 7 authority depends on the party retaining or -- or 8 gaining a majority in the legislature, and so they're 9 going to feel a particular sense of indebtedness, that 10 this person is helping not only them, but everybody -- 11 JUSTICE ALITO: I understand -- 12 GENERAL VERRILLI: -- in these massive 13 amounts and then -- I'm sorry, if I may just make my 14 third point, Mr. Chief Justice. 15 CHIEF JUSTICE ROBERTS: 16 GENERAL VERRILLI: Sure. And then the third point 17 I think is that every, every candidate in the party is 18 going to be affected by this, because every candidate is 19 going to get a slice of the money and every candidate is 20 going to know that this person who wrote the 21 multimillion dollar check has helped not only the 22 candidate, but the whole team, and that creates a 23 particular sense of indebtedness. 24 member of the party is likely to -- every -- every 25 officeholder in the party is likely to be leaned on by 38 Alderson Reporting Company And, of course, every Official - Subject to Final Review 1 the party leadership to deliver legislation to the 2 people who are buttering their bread. 3 JUSTICE ALITO: These -- these aggregate 4 limits might not all stand or fall together. 5 just take this example, if you can just take a minute 6 and walk me through this step by step. 7 Let -- You have somebody who wants to corrupt a 8 member of the House, and this person's strategy is to 9 make contributions to multiple House candidates with the 10 hope, the expectation, the plan that those candidates 11 are going to transfer -- transfer the money to the -- 12 the member that this person wants to corrupt. 13 Now, how is that person going to accomplish 14 that given the earmarking regulations, and -- and the 15 limits on how much one member can contribute to another? 16 GENERAL VERRILLI: So, you know, I think 17 that that -- I think it's possible, but I think if 18 somebody had that goal, that circumvention goal, but by 19 far better ways of achieving it would be giving 20 significant -- and you've taken the aggregate caps 21 off -- would be making significant contributions to 22 State parties and national parties who are free to 23 transfer money among themselves without restriction, and 24 by -- and by making contributions to PACs. 25 JUSTICE ALITO: And so -- Well, if you're -- I mean, 39 Alderson Reporting Company Official - Subject to Final Review 1 if you're not going to defend the application of the 2 aggregate limits in that situation, doesn't it follow 3 that, as applied to that situation, these are -- these 4 are unconstitutional? 5 GENERAL VERRILLI: No. No, I don't think 6 so. I think it -- I think it -- I think it -- first of 7 all, I think it could happen in that situation, but I 8 think it's more likely to happen in those -- 9 JUSTICE ALITO: Well, then just explain to 10 me how it's going to be done. 11 member A with the hope that member A is going to give it 12 to member B. 13 the contribution to A, that person wants it to go to B, 14 that's earmarked. 15 The person gives to If the person even implies, when making So how is this going to be done? GENERAL VERRILLI: I think -- well, I -- in 16 McConnell and in Colorado Republican to this Court said 17 that earmarking is not the outer limit of the 18 government's authority to regulate here. 19 the Court said that is because a lot of this can be done 20 with winks and nods and subtly. 21 don't think it's the case that earmarking would work to 22 prohibit that. 23 And the reason And so I -- and so I But I also think that the -- when we're 24 talking about aggregate limits, they're part of an 25 overall system of regulation. And I think that they 40 Alderson Reporting Company Official - Subject to Final Review 1 work to keep the -- to keep the circumvention risk in 2 check, and they work to make sure that you don't have 3 the kind of problem that you identified in McConnell. 4 JUSTICE BREYER: So what would you think? I 5 was just listening to your dialogue, and you heard -- 6 this is pretty tough, we try to construct some 7 hypotheticals, and -- and the counsel says, oh, I've got 8 this part wrong or that part wrong or the other one, and 9 they may be right. 10 And we can't do this, figuring out all these factual things in an hour, frankly. 11 And they may be right; I'm not sure. There 12 hasn't been a full hearing. It seemed to me there are 13 things to explore in respect to the circumvention. 14 is right? 15 or what? 16 question of whether being able to write a $3.6 million 17 check to a lot of people does leave the average person 18 to think, my First Amendment speech in terms of 19 influencing my representative means nothing. Who Should you change the hypothetical slightly, There are things to explore in respect to the 20 There are things to explore in terms of the 21 relationship between what is permissible; namely, spend 22 $40 million independently. 23 namely, spending more than 117,000. 24 25 And what isn't permissible; None of these have been considered. would seem relevant. They So what do you think about going 41 Alderson Reporting Company Official - Subject to Final Review 1 into these matters in a district court where the 2 evidentiary aspects of them can be explored at some 3 length? 4 GENERAL VERRILLI: Well, I think, 5 Justice Breyer, that the statute can be upheld under the 6 current state of the record. 7 Honor's point. 8 substantial record in Buckley, you had a substantial 9 record in McConnell, but that substantial record bears I understand and take Your But I do think that you had a 10 directly on the question of whether massive aggregate 11 contributions pose the inherent danger of corruption and 12 the corrosive appearance of corruption and that the case 13 can be decided on that basis. 14 JUSTICE GINSBURG: General Verrilli, the 15 Government in the proceeding below didn't suggest in 16 response to the -- to the proceedings before the 17 three-judge court that an evidentiary hearing was -- 18 both sides seem to treat this as a matter that could be 19 disposed of without an evidentiary hearing; is that 20 right? 21 22 23 GENERAL VERRILLI: That's correct, Your JUSTICE GINSBURG: There's the point that Honor. 24 the Chief made about what this does is limit 25 particularly on the national strategy. 42 Alderson Reporting Company It drives Official - Subject to Final Review 1 contributions towards the PACs and away from the 2 parties, that money -- without these limits, the money 3 would flow to the candidate, to the party organization, 4 but now, instead, it's going to the PACs. 5 response to that? 6 GENERAL VERRILLI: What is your Well, the -- we take the 7 constitutional First Amendment framework of this Court's 8 decisions as a given. 9 determined that independent expenditures do not present The Court has -- the Court has 10 a risk of quid pro quo corruption that allows their 11 regulation; that contributions -- direct contributions 12 to candidates and to parties can pose that risk -- 13 JUSTICE SCALIA: That's fine. They're 14 regulated. 15 what the question is directed at, given that that's the 16 law, isn't the consequence of -- of this particular 17 provision to sap the vitality of political parties and 18 to encourage -- what should I say -- you know, drive-by 19 PACs for each election? 20 That's the law, but the question says -- Isn't that the consequence? GENERAL VERRILLI: So I think the answer is 21 we don't know one way or another whether that's the 22 consequence, but we -- 23 JUSTICE SCALIA: 24 GENERAL VERRILLI: 25 I think we do. Well, I don't -- with all due respect, Justice Scalia, I don't think we do. 43 Alderson Reporting Company The Official - Subject to Final Review 1 parties still raise and spend very substantial amounts 2 of money, and so I don't think that -- that we know. 3 But beyond that, what -- the Congress has made a 4 determination that there is a real risk of quid pro quo 5 corruption and the appearance of quid pro quo corruption 6 here, and has regulated with respect to that risk, and 7 Congress is of course free to take this into 8 consideration. 9 JUSTICE SCALIA: You say -- you say it's 10 $3.5 million. If you assume somebody that gives the 11 maximum to every possible candidate and party he can 12 contribute to throughout the United States, 3.5 million. 13 Just to put that in perspective, how much money is spent 14 by political parties and PACs in all elections 15 throughout the country -- 16 GENERAL VERRILLI: 17 JUSTICE SCALIA: 18 GENERAL VERRILLI: 19 point, Justice Scalia. Well, I think that's -- -- in one election cycle? I think that's a good I think it helps illustrate -- 20 JUSTICE SCALIA: 21 GENERAL VERRILLI: Do you have any idea much? I do, I do. Take the 22 2010 election. 23 party spent -- parties and candidates together on each 24 side spent approximately $1.5 billion. 25 It's a non-presidential year. JUSTICE SCALIA: 1.5 billion. 44 Alderson Reporting Company Each Official - Subject to Final Review 1 GENERAL VERRILLI: 2 JUSTICE SCALIA: 3 GENERAL VERRILLI: 4 JUSTICE SCALIA: That -- that I don't have Oh, but that was a lot in the last few elections, wasn't it? 7 8 And what about PACs? specifics for, but if that were -- 5 6 Right. GENERAL VERRILLI: But -- but the parties -- but here's the problem -- 9 JUSTICE SCALIA: And -- and what about 10 newspapers that -- that spend a lot of money in 11 endorsing candidates and promoting their candidacy. 12 suppose, you know, you -- you have to put in that money, 13 too. 14 speech. I That is money that is directed to political 15 When you add all that -- add -- when you add 16 all that up, I don't think 3.5 million is a heck of a 17 lot of money -- 18 GENERAL VERRILLI: 19 JUSTICE SCALIA: 20 21 I don't think -- -- spread throughout the country. GENERAL VERRILLI: I don't think that's the 22 right way to look at it, Your Honor. 23 a party's got to get $1.5 billion together to run a 24 congressional campaign, parties and candidates together, 25 and you've got a maximum of $3.6 million, that is about 45 Alderson Reporting Company If you think that Official - Subject to Final Review 1 450 people you need to round up. 2 can fund the whole shooting match. 3 part of the problem here, is that you are going to 4 create a situation, if you take off of the aggregate 5 limits, in which there is a very real risk that -- that 6 both -- that the government will be run of, by, and for 7 those 500 people and that the public will perceive that 8 the government is being run of, by, and for those 500 9 people. 10 Less than 500 people And that I think is And that is why we have these aggregate limits and why they need to remain in place. 11 CHIEF JUSTICE ROBERTS: But the -- the 12 consequence is -- just to get back to my prior question, 13 the consequence is you are telling somebody who doesn't 14 want to give 3.4 million but wants to contribute to more 15 than nine House candidates, just up to the maximum, 16 which would be the $5,000 per the double cycle, you are 17 telling him that he can't make that contribution, 18 however modest, certainly within the limits Congress has 19 said does not present the problem of corruption, to a 20 tenth candidate. 21 I appreciate the argument you are making 22 about the 3-point-whatever million-dollar check and the 23 need for the aggregate limits to address that. 24 understand that point. 25 side? I But what do you do with the flip I mean, you can't pretend that that is pursued 46 Alderson Reporting Company Official - Subject to Final Review 1 with no First Amendment cost quite apart from the one 2 that's there. 3 on much smaller contributions that Congress said do not 4 present a problem with corruption. 5 It seems to me a very direct restriction GENERAL VERRILLI: I take that point, 6 Mr. Chief Justice. 7 earlier about the right analytical framework. 8 the right analytical framework under the First Amendment 9 is to think about this in terms of content neutrality. 10 The government's interest in preventing corruption and 11 the appearance of corruption, which is why I brought up 12 the example of the Maserati to the Secretary of Defense, 13 is an entirely content-neutral justification -- 14 But I think the right -- you asked CHIEF JUSTICE ROBERTS: I think No, but that 15 wouldn't -- doesn't normally get you very far on the 16 First Amendment. 17 the -- the Post or the New York Times can only endorse 18 nine candidates -- You could not have a rule that says 19 GENERAL VERRILLI: No -- 20 CHIEF JUSTICE ROBERTS: -- because -- I 21 mean, it's completely content neutral; you don't care 22 who the tenth is. 23 be -- 24 25 But that -- that limit would not GENERAL VERRILLI: I would think that would be a content-based justification because the -- you are 47 Alderson Reporting Company Official - Subject to Final Review 1 not -- you are not trying to prevent corruption or the 2 appearance of corruption by doing that, and there is no 3 other neutral justification that I can think of for why 4 you would impose such a rule. 5 But the point is, with respect to elected 6 officials and the giving of money to the elected 7 officials, there is this content-neutral justification 8 that just doesn't exist with respect to any other entity 9 out there in the world. And, yes, it is not free of 10 First Amendment costs and we acknowledge that, but -- 11 but that cost is mitigated in that this is not a 12 prohibition, that you can -- you can't make it at the 13 maximum, but you can make less. 14 the -- 15 And then you have all CHIEF JUSTICE ROBERTS: Is there -- is there 16 any way to prevent the concern you have about the 17 3-point-whatever-it-is million-dollar check without 18 imposing the limit on the person who wants to support 19 ten candidates rather than one? 20 GENERAL VERRILLI: Well, I suppose you could 21 try to calculate an aggregate contribution limit that is 22 different and higher than the one that is here now, but 23 the problem with that is that the Appellants are not 24 making that argument. 25 you cannot have -- the only argument they've made in They're making the argument that 48 Alderson Reporting Company Official - Subject to Final Review 1 this case is that you cannot have aggregate limits 2 because base contribution limits do all the work. 3 JUSTICE ALITO: Well, they are making -- 4 they are making the argument that there are -- that the 5 regulations that already exist about transfers from one 6 entity to another prevent a lot of what you're 7 complaining -- what you're -- what you are worried 8 about. 9 bolstered. But if they are not sufficient, they could be The aggregate limits are a very blunt way of 10 trying to get out -- get at the problem that you are -- 11 that you are worried about. 12 That's their argument. What -- are -- is that wrong? There is 13 nothing more that could be done to prevent transfers 14 from joint fundraising committees or from one member to 15 another or from State parties to candidates? 16 GENERAL VERRILLI: So, again, I apologize 17 for repeating myself, Justice Alito, but circumvention 18 is not the only problem. 19 solicitation and receipt of these very large checks is a 20 problem, a direct corruption problem, and none of the 21 alternatives that the Appellant's have identified 22 address that problem. 23 The delivery of the -- the JUSTICE ALITO: I just don't understand 24 that. You mean at the time when the person sends the 25 money to this hypothetical joint fundraising committee 49 Alderson Reporting Company Official - Subject to Final Review 1 there is a corruption problem immediately, even though 2 -- what if they just took the money and they burned it? 3 That would be a corruption problem there? 4 GENERAL VERRILLI: 5 are not going to burn it. 6 7 CHIEF JUSTICE ROBERTS: Well, all right. But -- so then -- 8 9 Well, they're not -- they GENERAL VERRILLI: the point. And -- but -- and that's They're not going to burn it. 10 JUSTICE ALITO: They need it. When does the corruption -- 11 yes. When does the corruption occur? 12 it's transferred to -- to the person who has power and 13 want -- and they want to corrupt. GENERAL VERRILLI: 14 It occurs when I -- I beg to differ, 15 Your Honor. I think what it does is create the sense of 16 indebtedness on the part of the recipient and on a part 17 of the party leadership when it's delivered, and -- and 18 that's the inherent risks of corruption in that 19 situation. It's -- it's quite parallel to McConnell. 20 21 It's why we have aggregate limits on what you can give 22 to a party because these people are not hermetically 23 sealed off from each other. 24 team. 25 success. They are all on the same They all have an interest in each other's And so party leaders in particular are going 50 Alderson Reporting Company Official - Subject to Final Review 1 to feel a sense of indebtedness, and their less 2 restrictive alternatives don't deal with that. 3 But now going -- if I could, I will try to 4 address the circumvention problem. You know, they -- 5 what they have done is come up with a whole series of 6 things that you would have to -- there is not one thing 7 that you would have to do to take care of this problem. 8 You would have to say no transfer. 9 say segregated accounts. You would have to You would have to say no 10 giving money to PACs who have indicated that they are 11 going to give money to candidates once you have already 12 given money. 13 things to deal with the risks of corruption. 14 that that is a less-restrictive means, it seems to me 15 like a significantly more restrictive means, and it's 16 going to impose First Amendment costs of its own. 17 sure the PACs are going to say: 18 can't say who we want to give money to; we have a right 19 to do that. 20 You're going to have to do five or six JUSTICE SCALIA: The idea I'm What do you mean we General Verrilli, it seems 21 to me -- it seems to me fanciful to think that the sense 22 of gratitude that an individual Senator or Congressman 23 is going to feel because of a substantial contribution 24 to the Republican National Committee or Democratic 25 National Committee is any greater than the sense of 51 Alderson Reporting Company Official - Subject to Final Review 1 gratitude that that Senator or Congressman will feel to 2 a PAC which is spending enormous amount of money in his 3 district or in his State for his election. 4 I mean, it seems to me the latter is much 5 more identifiable, and there is nothing in the law that 6 excludes that. 7 risk. 8 9 So apparently that's not too much of a GENERAL VERRILLI: Well, Justice Scalia, I'm not here to debate the question of whether the Court's 10 jurisprudence is correct with respect to the risks of 11 corruption from independent expenditures. 12 JUSTICE SCALIA: 13 GENERAL VERRILLI: It is what it is, though. But we accept it and -- 14 and the line is that there -- in this Court's 15 jurisprudence, that there is an unacceptable risk when 16 contributions are too high. 17 And if I may just say this in conclusion -- 18 JUSTICE KENNEDY: Okay. But so your answer 19 to the questions that have been put previously from -- 20 from me and Justice Breyer and Justice Scalia is that's 21 the law. 22 GENERAL VERRILLI: 23 JUSTICE KENNEDY: It's -- well -- I mean, that's -- just to 24 be fair, that's -- I'm -- I'm coming -- I'm coming off 25 the bench -- 52 Alderson Reporting Company Official - Subject to Final Review 1 GENERAL VERRILLI: 2 JUSTICE KENNEDY: 3 that your answer is: 4 Congress isn't -- -- with the understanding more discussion necessary. 5 Buckley has settled that issue; no GENERAL VERRILLI: The -- the risk -- we -- 6 we think the risk of corruption is real. 7 it's in fact profound when you are talking about the 8 kinds of contributions that can be made if you take -- 9 you take the lid off on aggregate contributions. 10 And we think If it -- if Justice Scalia's critique of the 11 situation proves correct and it is deeply disabling to 12 candidates and parties, Congress can address that by 13 changing the contribution limits. 14 JUSTICE KAGAN: And General, I suppose that 15 if this Court is having second thoughts about its 16 rulings that independent expenditures are not 17 corrupting, we could change that part of the law. 18 (Laughter.) 19 GENERAL VERRILLI: And far be it from me to 20 suggest that you don't, Your Honor. 21 (Laughter.) 22 JUSTICE BREYER: 23 But the -- the record, as far as I recall it Well, if it's interrelated. 24 from several years ago, talked about at length: 25 like to use the word "corrupting"; I like to use 53 Alderson Reporting Company I don't Official - Subject to Final Review 1 integration, "integrity of the process," that notion of 2 getting people to think that their First Amendment 3 speech makes a difference, etcetera. 4 5 Let's say "corruption." Mostly when it got to this part, the aggregate, it was about circumvention. 6 And I think you are quite right to say: But 7 there is a huge corruption aspect to this. 8 have a lot of information in the record about that, do 9 we? 10 If I just -- did I just miss it? GENERAL VERRILLI: Well, I -- well, I think with respect to McConnell, this is -- 13 JUSTICE BREYER: 14 GENERAL VERRILLI: 15 Did I miss something? 11 12 But we don't Yeah. -- it is really a very close parallel. 16 JUSTICE BREYER: It is a close parallel when 17 I think about it, maybe -- or you think about it, but if 18 you're really talking -- they don't think about it that 19 way. 20 see, of let's go into this, okay? 21 into it, go into it. 22 And so that's why I've been pushing this idea, you GENERAL VERRILLI: If they want us to go I understand that, Your 23 Honor. I would say that I think the record -- you know, 24 after all, these aggregate limits were enacted in BCRA, 25 the same statute that -- to which that legislative 54 Alderson Reporting Company Official - Subject to Final Review 1 record pertains and it really does go to the same 2 problem. 3 it's -- it's ample evidence that would justify upholding 4 these aggregate limits, and I would strongly urge the 5 Court to do so. And, therefore, I think it bears upon it and Thank you. 6 CHIEF JUSTICE ROBERTS: 7 Ms. Murphy, you have three minutes 8 9 remaining. REBUTTAL ARGUMENT OF ERIN E. MURPHY 10 11 12 13 Thank you, General. ON BEHALF OF THE APPELLANTS MS. MURPHY: Thank you, Mr. Chief Justice. Just a few quick points. First, we haven't heard of the Solicitor General 14 talk that much about circumvention today, and I think 15 that's because the circumvention argument just doesn't 16 really work. 17 multiple prophylactic measures that Bicker contains. 18 And to the extent those aren't sufficient, there are 19 much narrower, tailored ways to get at this, as the 20 questions from Justice Alito and the Chief Justice 21 pointed out. 22 It's already addressed by all of the What we're really hearing today is a 23 corruption argument. But as the questioning revealed, 24 once you accept the corruption theory that the 25 Government is putting forward here, there really isn't a 55 Alderson Reporting Company Official - Subject to Final Review 1 way to continue to draw a line between independent 2 expenditures and the $3 point million check to all of 3 these different individuals that is in small based 4 limited amounts. 5 just as much gratitude to the individual who spends 6 $3.6 million directly supporting one candidate through 7 ads on that candidate's behalf. 8 9 Because there's certainly going to be So what we really have is a system that's forcing money out of the most transparent way possible 10 to make contributions which is directly to the 11 candidates and the parties and the PACs. 12 If there's no further questions, thank you. 13 CHIEF JUSTICE ROBERTS: 14 15 16 Thank you, counsel. The case is submitted. (Whereupon, at 11:02 a.m., the case in the above-entitled matter was submitted.) 17 18 19 20 21 22 23 24 25 56 Alderson Reporting Company Official - Subject to Final Review 57 A ability 3:13 12:6 12:9 14:9 30:6 able 13:20,22 41:16 above-entitled 1:11 56:16 absolutely 10:23 14:5 24:11 abstract 15:10 accept 13:9 52:13 55:24 access 33:19 accompanying 5:14 accomplish 39:13 accounts 51:9 achieving 39:19 acknowledge 30:9 48:10 actions 33:2 activity 3:18 actual 16:6,7 ad 16:6,7 34:2,3 add 45:15,15,15 addition 26:19 26:22 31:19 38:3 address 16:12 18:20 46:23 49:22 51:4 53:12 addressed3:21 55:16 ads 33:17 56:7 advance 30:12 35:8 advocating 30:16 affiliates 15:19 aggregate 3:11 13:20 14:8,11 14:18,19,20,24 14:25 18:14 19:8 22:25 23:15,17 26:2 27:9,10 28:1,2 28:5 30:5 39:3 39:20 40:2,24 42:10 46:4,9,23 48:21 49:1,9 50:21 53:9 54:5 54:24 55:4 aggregation 29:19 ago 53:24 agree 17:8,10,10 29:19 agrees 18:14 aided21:19 AL 1:3 Alito 10:15 25:25 26:1,13 34:22 35:3,6,11 36:2 36:19 37:9,13 38:11 39:3,25 40:9 49:3,17,23 50:10 55:20 allow6:22 7:17 allowed23:17 allowing 28:14 allows 43:10 alternative 14:20 alternatives 49:21 51:2 Amendment 3:18 13:24 22:7 32:13,16,18,20 32:21 33:3 34:5 34:21 41:18 43:7 47:1,8,16 48:10 51:16 54:2 amicus 1:18 2:7 18:11 amount 14:10,12 21:1,11,23 31:25 32:2,9 33:16 52:2 amounts 38:13 44:1 56:4 ample 55:3 analogous 29:7 analogy 33:24 analytical 47:7,8 analyzing 29:18 29:23 answer9:1,2,9 9:14,15 20:18 20:18 32:4 33:23 43:20 52:18 53:3 ante 25:7 anti-aggregation 28:20 anti-circumven... 3:22 anti-earmarking 24:20 anybody 11:23 anyway 33:5 apart 29:15 37:11 47:1 apologize 49:16 apparently 32:10 52:6 appearance 3:16 27:17 28:14 29:25 42:12 44:5 47:11 48:2 APPEARANC... 1:14 Appellants 1:4 1:16,19 2:4,8 2:14 3:8 18:11 27:19,25 48:23 55:10 Appellant's 49:21 Appellee 1:22 2:11 27:6 application 40:1 applied40:3 applying 23:15 appreciate 46:21 approximately 44:24 area 31:4 argued18:21 22:17 arguing 27:25 28:2 argument 1:12 2:2,5,9,12 3:3,7 7:23 18:9 27:5 29:24 35:12 37:17 46:21 48:24,24,25 49:4,11 55:9,15 55:23 arguments 31:12 31:13 33:3 artificially 19:13 19:17 asked33:10 47:6 aspect 14:17 22:14 54:7 aspects 42:2 associate 23:14 association 23:14 25:21 assume 14:2 44:10 assumes 6:6 as-applied22:20 attempt 3:12 attuned7:14 authority 38:7 40:18 avenues 15:6 average 32:17 32:25 41:17 a.m 1:13 3:2 56:15 B B 1:20 2:10 27:5 37:17 40:12,13 back 46:12 bad 10:4 Alderson Reporting Company base 3:15 4:23 7:19 19:19 24:13,14,19 26:5 28:3 49:2 based15:10 56:3 basic 32:5,21 basis 12:17 22:15 42:13 BCRA 22:1 54:24 BCRA's 14:23 bearing 29:3,5 bears 42:9 55:2 beg 50:14 behalf 1:15,21 2:4,11,14 3:8 27:6 55:10 56:7 belief 28:21 beliefs 32:13 believes 18:16 bench 52:25 benefit 31:17 best 36:15 better39:19 beyond 44:3 Bicker3:25 55:17 Bicker's 3:11,22 big 30:22 31:2,13 31:13 billion 44:24,25 45:23 blocking 27:11 blunt 49:9 BOBBY1:17 2:6 18:9 Boeing 34:11 bolstered49:9 brainstorm 4:13 bread 39:2 Breyer3:24 4:7 4:24 5:2,10,13 5:17,22 7:22 15:16 16:6 19:20 21:25 Official - Subject to Final Review 58 32:3 41:4 42:5 18:25 19:15,18 causes 30:13 52:20 53:22 20:1 21:11 23:5 cents 22:9 54:13,16 27:22 28:12 certain 30:7 Breyer's 33:22 33:16,19,20 certainly 8:16 brief 16:25 21:18 34:24 36:5,6,14 13:23 14:22 36:15 37:20,21,24 35:15 46:18 broader5:19 38:1,17,18,19 56:4 broadly 19:1 38:22 43:3 certainty 11:10 brought 47:11 44:11 46:20 challenge 22:20 Buckley 4:9 8:5 56:6 challenged21:4 8:11 26:1,3,9 candidates 6:13 challengers 26:18 27:1 6:16,18,21 7:10 21:19 29:14 42:8 53:3 7:13 10:12,19 chance 20:23 bulwark 27:13 11:3,18,24 12:1 change 8:3,5,6,6 bunch9:22 12:7,9 13:3,10 8:6 41:14 53:17 Burchfield 1:17 14:10,13,25 changed26:3,5,7 2:6 18:8,9,12 16:2,11 21:8,11 changes 8:18 18:19 19:6 20:6 21:13,22 22:23 changing 53:13 20:13 21:6,20 23:10,19,22 charges 15:23 22:19 23:4,12 24:1 25:23 28:8 check 5:14 23:25 23:16 24:10 28:16 29:20 29:9,11,12 25:15 26:4,16 30:8,13,14,17 36:24,25,25 26:22 27:3 31:3 31:20,22,24 37:1,20,24 31:10 32:2 35:21,21 38:21 41:2,17 burn 50:5,9 36:8,12,16,17 46:22 48:17 burned50:2 37:1 38:6 39:9 56:2 buttering 39:2 39:10 43:12 checks 22:23 buy 22:9 34:25 44:23 45:11,24 23:2,2,21,24 46:15 47:18 49:19 C 48:19 49:15 Chief 3:3,9 14:7 C 2:1 3:1 51:11 53:12 14:16 18:7,12 calculate 48:21 56:11 27:2,4,7 28:10 call 33:5 candidate's 56:7 28:25 29:17 campaign 17:11 cap 21:11,21,23 38:14,15 42:24 26:14 27:14 caps 39:20 46:11 47:6,14 32:8 34:23,25 care 47:21 51:7 47:20 48:15 45:24 careful 8:12 31:4 50:6 55:6,11,20 candidacy 45:11 cares 20:24 56:13 candidate 4:3,4 case 3:4 16:25 choose 28:21,23 4:10 5:1,21 6:3 17:3 22:3,20 chose 17:2 6:5,19 7:2,3 23:8 27:19,20 chosen35:17 8:23 12:6,11,12 27:24 40:21 circumvention 12:13,14 13:4,7 42:12 49:1 3:20 4:1 11:14 13:11 15:17 56:14,15 13:13 16:5 16:4,7,8 18:23 cases 7:24 27:11 29:3,4 39:18 41:1,13 49:17 51:4 54:5 55:14,15 cited36:15 Citizens 25:16 class 21:13 clear 8:25 11:11 clerk 8:1 close 21:4 54:15 54:16 closely 17:18 Code 24:18 26:24 collaborating 19:10 colloquy 15:11 Colorado 40:16 combat 3:16 27:9 27:11 36:21 come 6:7 13:18 51:5 comes 8:24 22:20 23:20 coming 6:2 52:24 52:24 Commission 1:6 3:5 6:7 19:20 20:2 26:25 committee 24:16 24:21 37:22 49:25 51:24,25 committees 8:7 15:7 21:24 22:22,24 23:18 23:19,22,23,23 26:8 28:9,9 35:23,24 36:4,8 37:2,19 49:14 common15:21 compete 19:12 19:16 25:22,23 competing 19:9 21:9 complaining 49:7 completely 11:19 Alderson Reporting Company 12:2 47:21 concede 9:19,20 concentrating 18:24 concern 8:23 15:6 16:5 28:17 48:16 concerned15:5 concerns 3:20 9:6,6 15:4 26:9 conclusion 52:17 conduit 11:13 13:6 conflict 35:8 confused15:8,9 confuses 36:20 Congress 3:15 20:17 29:22 32:22 44:3,7 46:18 47:3 53:1 53:12 congressional 11:2 23:6,6 45:24 Congressman 51:22 52:1 congressmen 22:4 consequence 14:19,21,23 20:4 21:5 29:20 30:1 43:16,19 43:22 46:12,13 considerable 30:15 consideration 44:8 considered25:17 41:24 considering 24:12 constitutional 43:7 constrained 22:24 Official - Subject to Final Review 59 construct 41:6 construction 8:10 consumes 24:17 contains 55:17 content 34:6 47:9 47:21 content-based 47:25 content-neutral 34:7 35:9 47:13 48:7 contest 6:13 contested6:13 6:14,21 7:11 10:12,19,20 13:5,5,8 continue 56:1 contrary 22:16 contravene 9:3 contribute 5:20 5:22 7:21 10:5 11:23 12:19 13:20 28:7,15 28:16 32:1,2 37:7 39:15 44:12 46:14 contributed 26:10 27:23 contributes 19:24 contributing 7:8 7:9 8:22 36:8 contribution3:11 5:24 6:22 7:1 12:15,18,23 13:2,7 14:12 19:18,25 23:5 27:12,22 28:3,5 30:7 35:19 40:13 46:17 48:21 49:2 51:23 53:13 contributions 3:14 4:2 7:16 7:19 8:7 9:23 10:9,18 13:14 14:24 15:2 16:2 16:3 21:14 27:15 31:8,19 31:20 34:24,25 36:16 37:4 38:4 39:9,21,24 42:11 43:1,11 43:11 47:3 52:16 53:8,9 56:10 contributor 15:17 19:14 21:22,23 30:6 contributors 13:20 24:22 contributor's 24:24 control 8:12 19:4 24:24 28:19,23 33:8 controlled8:8 convinces 22:9 coordinate 35:20 coordinated4:4 4:17 coordination 4:3 6:25 11:15 15:23 correct 20:4 26:15,18 42:21 52:10 53:11 corrected12:16 corrosive 27:17 42:12 corrupt 37:15 39:7,12 50:13 corrupted37:16 corrupting 27:21 53:17,25 corruption3:16 15:3 16:5 17:22 25:18,19 27:9 27:11,16,17 28:14 29:13,23 30:20 31:7 36:22 37:4,5 42:11,12 43:10 44:5,5 46:19 47:4,10,11 48:1 48:2 49:20 50:1 50:3,10,11,18 51:13 52:11 53:6 54:4,7 55:23,24 cost 47:1 48:11 costing 33:18 costs 48:10 51:16 counsel 18:7 20:3 27:2 41:7 56:13 count 8:9 19:3 country 14:4 44:15 45:20 couple 4:21 6:23 course 38:6,23 44:7 court 1:1,12 3:10 4:9 17:13 18:13 22:2,20 26:1,17 27:8 29:14 31:5 35:18 37:2 40:16,19 42:1 42:17 43:8,8 53:15 55:5 court's 31:4 35:13 43:7 52:9 52:14 cover8:20,21 create 31:6 46:4 50:15 created26:13 creates 29:12 37:25 38:22 creating 4:5 critique 53:10 cross-motion 16:25 curiae 1:18 2:8 18:11 current 20:7 28:19 42:6 cut 11:3 cycle 44:17 46:16 16:19,20 designed4:6 13:12 determination 44:4 determined43:9 devote 20:21 devoted21:3 D dialogue 41:5 D 3:1 dials 20:15 dairy 26:9,14 differ50:14 danger29:22 difference 54:3 42:11 different 7:10 dangers 27:15 11:13 29:1 Davis 13:25 36:21 48:22 deal 51:2,13 56:3 dealt 24:11 diminishing debate 52:9 23:13 decide 17:14 direct 3:22 4:1 22:15 7:19 43:11 47:2 decided42:13 49:20 deciding 13:11 directed43:15 decision 15:10 45:13 25:16 26:17 direction 25:1 decisions 43:8 directly 22:23,24 deeply 53:11 42:10 56:6,10 defend 40:1 disabling 53:11 Defense 34:1,4 disagree 19:6 34:18,19 47:12 discovered8:1 definition 24:13 discussion 53:4 deliver39:1 dismiss 15:11 delivered29:16 dismissal 16:23 50:17 disposed42:19 delivering 29:9 disprove 18:1 29:12 dispute 15:22 delivery 29:16 distinct 14:24 49:18 district 13:8 22:2 democratic 35:13,18 42:1 16:11 18:22 52:3 19:2 23:22 divides 6:18 31:15 51:24 doing 5:7 34:2 Department 1:21 48:2 depends 38:7 dollar 38:21 describe 19:23 dollars 21:10 designation 22:5 24:1 Alderson Reporting Company Official - Subject to Final Review 60 dominated27:14 DONALD 1:20 2:10 27:5 donating 28:22 donation 16:10 donor 6:17 12:6 donors 7:4,7,14 14:9 double 12:4 46:16 doubt 9:20 32:7 draw56:1 drawn 28:1 drives 42:25 drive-by 43:18 dubious 36:10 due 36:19 43:25 D.C 1:8,15,17,21 44:17,22 52:3 elections 19:5 20:15,22 44:14 45:6 electorate 19:1 eliminate 14:17 29:4 eliminates 31:11 empirical 35:15 enacted54:24 encourage 43:18 endorse 47:17 endorsing 45:11 enforcing 14:20 engaging 3:17 13:14 enormous 52:2 entirely 47:13 entity 48:8 49:6 E environment E 1:15 2:1,3,13 20:7 3:1,1,7 55:9 environmental earlier28:6 47:7 28:18,22 earmark 20:1 equalize 3:12 earmarked equally 27:12 40:14 ERIN 1:15 2:3 earmarking 4:2 2:13 3:7 55:9 4:2 5:8,11,13 especially 25:20 5:18,19 6:7 8:3 ESQ 1:15,17,20 8:18 9:3,6,24 2:3,6,10,13 10:7,8,11,14 establish31:21 39:14 40:17,21 established4:17 easy 8:13 8:8 effect 14:8,10 ET 1:3 15:1 21:8 30:6 etcetera 54:3 effectively 24:8 everybody 13:13 eighteenth 27:24 38:10 either16:21 evidence 16:23 17:17 17:19 55:3 elected48:5,6 evidentiary 42:2 election 1:6 3:5 42:17,19 6:6 12:5,12,14 evil 30:22 19:19 20:2 evoke 30:19,21 26:25 30:17 exacting 18:15 33:1,1 43:19 exactly 6:8 10:8 10:17 12:25 13:1 20:13 24:5 27:10 29:13 example 11:2 14:1 24:15 30:15 36:4,15 39:5 47:12 examples 36:15 excess 7:19 excludes 52:6 exercising 32:17 exist 26:25 35:8 48:8 49:5 existed8:11 existing 9:14,17 expectation 39:10 expenditure 30:16 expenditures 4:4 30:12,21 31:5 43:9 52:11 53:16 56:2 explain 40:9 explaining 27:10 explore 41:13,15 41:20 explored42:2 express 28:21 34:9,17 expression 13:17 18:22 34:16 extent 55:18 far 39:19 47:15 53:19,23 favored21:12 FEC 8:19 10:13 10:21,24 FEC's 5:18 Federal 1:6 3:5 6:6 19:19 20:2 23:5 24:18,18 26:7,24,24 feel 38:9 51:1,23 52:1 figure 16:13,16 17:5,12 35:25 figuring 41:9 filled22:3 finance 17:11 27:14 financed8:8 find 6:3 fine 43:13 first 3:4,18 4:22 6:24 7:1 12:24 13:24 16:24 19:7 22:7 29:2 32:13,16,18,20 32:20 33:3,20 34:5,20 36:23 40:6 41:18 43:7 47:1,8,16 48:10 51:16 54:2 55:13 five 5:4,4 6:12,13 6:14,16,21 7:11 F 7:13,13,15 face 36:11 10:12,12,18,19 facially 17:17 51:12 fact 20:23 21:19 flip 46:24 22:8,17 29:9,12 flow43:3 53:7 flowing 38:2 facts 17:23 18:1 flows 33:11 factual 41:10 follow40:2 fair 52:24 following 4:10 fall 39:4 forces 20:9 fanciful 51:21 forcing 56:9 Alderson Reporting Company forget 11:1 fortune 30:15 forward 55:25 found 8:15 16:19 37:2 foundation 30:25 31:3 four 11:5 framework 29:18 29:18,23 30:4 43:7 47:7,8 frankly 41:10 free 39:22 44:7 48:9 full 41:12 fund 46:2 fundamental 29:6 fundamentally 27:13 fundraiser11:22 fundraising 15:7 18:24 24:16,16 24:21 37:19,22 49:14,25 funds 28:11 further56:12 G G 3:1 gaining 38:8 general 1:20 12:4 14:15 15:1 27:4,7 28:25 30:3,25 31:18 33:23 34:13,15 35:1,5,12 36:1 36:18 37:11,18 38:12,16 39:16 40:5,15 42:4,14 42:21 43:6,20 43:24 44:16,18 44:21 45:1,3,7 45:18,21 47:5 47:19,24 48:20 Official - Subject to Final Review 61 49:16 50:4,8,14 51:20 52:8,13 52:22 53:1,5,14 53:19 54:11,14 54:22 55:6,13 genius 16:13 getting 9:22 21:14 35:22 54:2 gift 25:9 gifts 35:7 GINSBURG 13:15 18:19 21:16 23:1,8 42:14,23 give 4:11,16,25 10:3,5 11:2,17 13:11,16 14:9 15:3,18 21:22 21:23 22:5 23:3 23:4,10,11 24:7 29:24 30:23 31:14 32:9,11 37:22,22 40:11 46:14 50:21 51:11,18 given4:23 35:20 39:14 43:8,15 51:12 gives 6:17 7:12 9:3 10:11 16:5 33:16 40:10 44:10 giving 7:15 15:2 27:21 34:19 39:19 48:6 51:10 go 4:19 5:15 15:15 20:11,25 22:21,22 40:13 54:20,20,21 55:1 goal 39:18,18 goes 4:14 6:19 6:20 12:5 13:3 20:11 25:3,13 29:15 going 5:3,20 6:12 6:15 8:22 9:11 9:24 10:3,5,18 11:2,10,22 15:1 15:23 16:3,14 19:25 21:13 24:3 28:21,23 36:4,5,6,13,13 37:15 38:4,5,9 38:18,19,20 39:11,13 40:1 40:10,11,14 41:25 43:4 46:3 50:5,9,25 51:3 51:11,12,16,17 51:23 56:4 good 5:5 16:15 20:22 31:16 44:18 government 3:21 15:4 17:1,22 18:2 35:9 42:15 46:6,8 55:25 governmental 11:4 government's 40:18 47:10 gratitude 25:16 30:19,20,21 51:22 52:1 56:5 great 4:15 34:2,4 34:19 greater51:25 ground 34:21 grounds 3:20 group 9:23 guess 4:9 15:24 gun 28:19,23 H hand 37:20 handful 22:4 handing 36:23 37:23 hands 24:24 happen4:10 9:11 9:13 15:12,22 16:18 40:7,8 happened5:3 20:12 happening 15:25 happens 15:12 hard 7:23 12:18 15:16,21 21:21 34:7 head 7:5 hear 3:3 heard 41:5 55:13 hearing 16:22 41:12 42:17,19 55:22 heck 45:16 held 31:6 help 16:10 30:8 31:21 helped38:21 helping 38:10 helps 44:19 hermetically 31:22,23 50:22 high 52:16 higher48:22 highest 35:9 Honor 4:22 6:24 16:24 19:6 20:6 20:13 21:7,20 22:19 23:12 24:10 25:16 26:4 27:3 36:20 42:22 45:22 50:15 53:20 54:23 Honor's 42:7 hope 39:10 40:11 hour 41:10 House 11:18 13:2,5 23:19 25:5,5 28:15 29:10 35:20 36:12,25 39:8,9 46:15 huge 15:11 54:7 hundreds 22:5 26:10 hurt 20:17 hypothesizes 3:21 hypothetical 4:22 6:5 7:9 9:1 9:3,10 35:18 41:14 49:25 hypotheticals 8:10 35:14 41:7 I idea 13:16 44:20 51:13 54:19 ideas 22:8,11 identifiable 52:5 identified23:9 29:14 41:3 49:21 illegal 34:24 illustrate 44:19 imagine 10:2 34:7 immediately 50:1 impact 32:18 impermissible 3:12 implicated13:25 implies 40:12 importance 35:10 impose 26:5,6 48:4 51:16 imposed3:15 imposes 3:25 25:21 imposing 21:10 48:18 incapable 17:23 Alderson Reporting Company incumbent 20:22 20:23 incumbents 21:9 21:12 indebtedness 37:25 38:5,9,23 50:16 51:1 independent 23:24 30:12,16 30:21,23 31:5 33:5,6 34:16 43:9 52:11 53:16 56:1 independently 4:18 10:22 13:10 41:22 indicated28:6 51:10 individual 6:22 7:17 19:18 22:8 27:12,14 28:7 28:15 29:21 30:10,11,23 31:25 32:2 51:22 56:5 individuals 3:13 3:17 9:23 13:23 13:24 16:1 56:3 industry 26:10 26:14 influence 22:7,11 25:13,17 influencing 41:19 inform 24:22 information 13:19 54:8 inherent 27:16 29:12 37:4,5 42:11 50:18 injunctive 17:1 instance 4:1 instances 8:15 8:22 36:7 insulate 21:9 integration 54:1 Official - Subject to Final Review 62 integrity 54:1 intensity 23:14 interest 30:12 35:8,9 47:10 50:24 interested28:18 28:19 interests 30:13 internet 4:13 8:15 22:10 32:10 interrelated 53:22 intricate 17:11 invoked34:21 involves 35:20 issue 13:25 27:20 28:24 29:8 53:3 issues 17:5 18:12,19 19:20 20:3,10,14,20 21:15,16,25 23:1,8,16 25:2 25:8,25 26:1,13 26:21 27:2,4,7 28:5,10,25 29:17 30:18 31:1,9,11 32:3 33:14,21,22,24 34:11,14,22 35:3,6,11 36:2 36:19 37:9,13 38:11,14,15 39:3,25 40:9 41:4 42:5,14,23 43:13,23,25 44:9,17,19,20 44:25 45:2,5,9 45:19 46:11 47:6,14,20 48:15 49:3,17 49:23 50:6,10 51:20 52:8,12 52:18,20,20,23 53:2,10,14,22 54:13,16 55:6 55:11,20,20 56:13 justification 34:7 47:13,25 48:3,7 justified3:19 32:15 justify 31:7 55:3 25:8 33:14,24 52:18,23 53:2 kind 6:1 11:15 29:14 41:3 kinds 53:8 know4:18 9:21 10:9,16 11:4,9 11:14,20 15:17 16:21 17:13 20:15 22:5 25:7 25:15 30:20 31:24 33:11 34:12 38:20 39:16 43:18,21 44:2 45:12 51:4 54:23 knowing 16:1 knowledge 19:25 knows 7:3,14 legislative 54:25 legislature 38:8 length 42:3 53:24 lengthy 22:2 less-restrictive 51:14 letter5:15 let's 6:10,11 25:4 54:4,20 lid 28:4 53:9 light 25:20 like-minded19:8 limit 12:19 13:18 14:11,24 18:15 19:7,8 22:25 23:15 25:20 28:1,2,5 30:5 31:25 40:17 42:24 47:22 48:18,21 L limitation 14:21 J lack 35:15,15 limited7:20 job34:2,4,19 large 13:23 19:13,17,19 joint 11:22 15:7 36:24 49:19 23:7 33:16 56:4 24:15,16,21 Laughter5:6 limiting 29:20 37:19,22 49:14 11:7 17:9 20:19 limits 3:11,15,17 49:25 53:18,21 3:19 4:23 6:22 Jones 10:6,6 law7:25 9:14 7:17,20 14:9,11 JR 1:20 2:10 13:12 14:2 17:5 14:18,19,25 27:5 17:11,13,15,21 17:17 18:21 jurisprudence 17:23 43:14,16 19:2,19 21:7 31:4 52:10,15 52:5,21 53:17 22:18 23:17 Justice 1:21 3:3 laws 36:21 24:13,14,19 3:9,24 4:7,24 Leader25:5,11 26:2,5 27:9,10 5:2,10,13,17 29:11 27:12 28:3 K 5:22 6:4,10 7:3 leaders 38:3 29:21 31:19,20 7:11,22 8:25 Kagan 6:10 7:3 50:25 32:8 37:6 39:4 9:1,9,13,18 7:11 9:1 10:10 leadership 39:1 39:15 40:2,24 10:2,10,15,25 11:17 12:9,11 50:17 43:2 46:5,9,18 11:1,17 12:8,11 12:16,25 23:16 leaned38:25 46:23 49:1,2,9 12:16,25 13:15 25:2 28:5 53:14 leave 41:17 50:21 53:13 14:2,6,7,16 Kagan's 11:1 leaves 24:24 54:24 55:4 15:8,15,16 16:6 keep 7:5 41:1,1 leeway 32:22 line 31:4,11 16:20 17:4,8,10 Kennedy 8:25 legal 12:8 17:2 52:14 56:1 17:20,25 18:7 9:9,13,18 10:25 legislation 39:1 listening 41:5 Alderson Reporting Company little 4:14 15:8 19:3 long 13:3 longer26:12 look 8:2 9:21 19:21 45:22 looked7:25 looking 32:4 loses 24:24 losing 20:23 lot 4:11 8:23 38:1 40:19 41:17 45:5,10,17 49:6 54:8 lower17:13 26:17 M maintained8:8 majority 25:5,11 29:10 38:8 making 16:1 25:8 36:20 39:21,24 40:12 46:21 48:24,24 49:3,4 marginalized 20:8 Maserati 34:20 34:25 47:12 massive 27:14 37:3 38:12 42:10 match 46:2 math 5:5,7 30:9 matter1:11 42:18 56:16 matters 42:1 maximum 12:12 14:12 27:23 30:7 44:11 45:25 46:15 48:13 McConnell 1:18 2:7 18:10,14,16 24:5,9,11 25:8 Official - Subject to Final Review 63 29:8 37:3 40:16 41:3 42:9 50:20 54:12 McCutcheon 1:3 3:4 22:21 30:14 mean 6:24 11:8 13:17,22 15:15 15:21,25 28:17 30:10,20 32:6 34:12 39:25 46:25 47:21 49:24 51:17 52:4,23 means 22:7 28:4 28:6 41:19 51:14,15 measures 3:23 4:1 55:17 member38:24 39:8,12,15 40:11,11,12 49:14 members 20:16 24:2 25:12 mental 7:5 merits 33:3 messages 33:8 million23:20,21 24:1,7 25:7,12 28:8 29:9 30:22 33:6,7 35:19,25 36:24,25 37:1 41:16,22 44:10 44:12 45:16,25 46:14 56:2,6 million-dollar 46:22 48:17 mind 10:16 minimum 14:9 minute 39:5 minutes 55:7 Mitch 1:18 2:7 18:10 mitigated48:11 mix 33:7 modest 3:15 46:18 money 4:14 5:15 6:2,19 10:3,5 10:11 11:12 12:2,7,10 13:11 15:18 16:14 18:25 19:13,17 20:11,21,24 21:2,3 22:11 24:6,9,13,24 25:2,2,6,10 29:8,15 30:22 31:2,13,14 36:4 36:14 37:3,13 37:16 38:1,19 39:11,23 43:2,2 44:2,13 45:10 45:12,13,17 48:6 49:25 50:2 51:10,11,12,18 52:2 56:9 morning 3:4 motion 15:10 multimillion 38:21 multiple 4:5 7:9 39:9 55:17 multitude 3:22 Murphy 1:15 2:3 2:13 3:6,7,9,25 4:21,25 5:7,12 5:16,18,25 6:8 6:11,23 7:7,18 8:17 9:5,12,15 9:20 10:8,10,23 11:6,8,17 12:8 12:13,18 13:1,9 13:15,21 14:5,7 14:14,22 15:14 15:24 16:24 17:4,6,16,24 18:2 55:7,9,11 N N 2:1,1 3:1 name 16:7 named6:4 names 8:16 naming 8:15 narrower15:6 55:19 national 19:11 20:5,8,21 21:2 23:18 28:8 35:23 39:22 42:25 51:24,25 nature 18:16 19:23 near 13:18 nearly 15:21 necessary 14:18 14:23 53:4 need11:16 17:5 17:16 18:1 46:1 46:10,23 50:9 negative 32:14 neutral 47:21 48:3 neutrality 47:9 New 47:17 news 15:16 newspapers 45:10 nice 17:12 nine 28:22 46:15 47:18 nineteenth 27:22 Nixon 26:14 Nixon's 26:11 nods 40:20 non-presidential 44:22 normally 17:14 47:15 notion 54:1 number11:1,1 13:23 21:21 23:3,7 30:8 numerous 3:25 O O 2:1 3:1 obvious 27:16 obviously 35:14 occur 50:11 occurs 50:11 October1:9 officeholder 38:25 officials 48:6,7 oh 14:6 41:7 45:5 okay 4:20 10:6 14:4 15:9 33:4 52:18 54:20 once 32:22 51:11 55:24 ones 38:4 operating 11:13 opinion 32:19 33:13 35:13 opponents 20:25 opportunity 17:1 29:13 oral 1:11 2:2,5,9 3:7 7:23 18:9 27:5 ordinarily 20:20 ordinary 32:8 organization 43:3 other's 50:24 outer40:17 outside 20:9 overall 40:25 overbreadth 12:21 overly 10:15 overwhelming 27:18 owe 24:3 P P 3:1 PAC 4:14,23,25 5:3,20 6:2,5,18 Alderson Reporting Company 7:8,20 8:22 9:8 10:3,4,11 11:9 11:12 16:9,10 19:22,24 30:23 31:16 52:2 PACs 4:5 5:4 6:11,15,18,20 8:13 9:22 10:16 11:1 20:11 23:24 26:10 39:24 43:1,4,19 44:14 45:2 51:10,17 56:11 PAGE 2:2 pages 24:17 parallel 50:20 54:15,16 part 9:2,5,9,15 30:19 36:10 37:25 40:24 41:8,8 46:3 50:16,16 53:17 54:5 participate 3:13 participation 18:22 19:2 particular6:3,5 16:4 19:25 25:6 28:12 35:22 36:12 38:5,9,23 43:16 50:25 particularly 9:16 20:7 42:25 parties 16:2 19:8 19:9,11,12 20:5 20:8,17,21,24 21:2,8,10 25:22 26:6,7 31:19,23 33:8 35:23 39:22,22 43:2 43:12,17 44:1 44:14,23 45:7 45:24 49:15 53:12 56:11 party 11:20 Official - Subject to Final Review 64 19:18 21:23 23:21,23 24:2,2 25:3,12 28:8,8 31:15,15 32:1 35:23,24 36:3,8 36:11,13 37:7 38:3,7,17,24 38:25 39:1 43:3 44:11,23 50:17 50:22,25 party's 24:1 45:23 pass 18:15 paying 22:9 payment 25:10 people 4:15,15 11:5 13:17 15:2 16:16 19:3 22:4 22:6,6,11 23:17 25:6 28:23 30:19 31:2 32:11,24 39:2 41:17 46:1,1,7 46:9 50:22 54:2 perceive 46:7 percent 14:3 percentage 13:18,19,21 perfectly 31:16 Period 16:11 permissible 41:21,22 person 4:18 7:1 7:12 8:9,12 12:3,23 13:1,6 13:13 16:17 19:24 24:25 32:8,17,25 33:4 33:15,18 34:9 37:14,15 38:10 38:20 39:12,13 40:10,12,13 41:17 48:18 49:24 50:12 persons 33:15 person's 39:8 perspective 44:13 pertains 55:1 picture 16:8 place 24:7 28:1 32:23 46:10 places 19:8 plan 39:10 plausible 35:15 please 3:10 18:13 27:8 plus 35:23 pocketbook 33:2 point 5:25 6:9 7:8 11:8 12:24 17:6 30:4,5 31:21 32:6,20,21 35:2 35:4,7 36:20 38:14,16 42:7 42:23 44:19 46:24 47:5 48:5 50:9 56:2 pointed55:21 points 16:24 29:1 55:12 political 3:13 8:7 18:18 19:8,9,11 19:12 20:5,8,17 20:21,24 21:2,8 21:10 25:22 26:8 31:17,19 32:1 37:7 43:17 44:14 45:13 politics 31:2,13 31:14 pool 19:13,17 pose 9:5 42:11 43:12 position 17:21,21 19:9 positive 32:16 possibility 28:12 possible 26:12 39:17 44:11 56:9 Post 34:3 47:17 potential 27:21 power38:6 50:12 practice 21:17 precedents 20:2 precisely 8:11 present 27:20 29:22 43:9 46:19 47:4 presented16:23 President 26:11 pretend 46:25 pretty 4:19 8:13 16:15 41:6 prevent 3:17 13:12 48:1,16 49:6,13 preventing 47:10 previously 22:16 52:19 primary 12:4 prior46:12 pro 15:3 25:17 27:15 29:13 31:7 37:17 43:10 44:4,5 problem12:20 12:21 18:4 29:5 29:6,7 34:14 41:3 45:8 46:3 46:19 47:4 48:23 49:10,18 49:20,20,22 50:1,3 51:4,7 55:2 problems 4:21 29:3 proceeding 42:15 proceedings 42:16 process 3:14 54:1 profound 53:7 prohibit 26:7 40:22 prohibiting 3:14 13:13 15:2 28:12 34:8 prohibition48:12 prohibits 14:3 19:22 proliferation 4:5 5:8 9:6,24 26:8 promote 18:21 18:22 promoting 19:2 45:11 prophylactic 55:17 propose 19:21 proposition 18:1 18:3 protecting 28:13 prove 18:1,3 proves 53:11 provision 13:25 20:4 43:17 provisions 4:2 public 32:19 46:7 pursued46:25 pushing 54:19 put 8:19 23:18 44:13 45:12 52:19 puts 4:13 putting 55:25 56:12 quick 55:12 quid 15:3 25:9,17 27:15 29:13 31:6 37:17 43:10 44:4,5 quite 47:1 50:20 54:6 quo 15:3 25:17 27:15 29:13 31:7 37:17 43:10 44:4,5 R R 1:17 2:6 3:1 18:9 race 13:2 21:4 races 6:14,15,21 7:12 10:13,20 raise 18:25 21:6 21:12 44:1 read 21:25 26:17 reading 22:1 reaffirms 24:19 24:20 real 9:10 44:4 46:5 53:6 realistic 9:16 36:2,3 reality 3:16 8:14 8:16 realized21:12 really 6:14 15:4 16:18 17:7 Q 20:14 35:4 question 18:20 36:14 54:14,18 28:6 29:2 33:9 55:1,16,22,25 33:11,13,15,21 56:8 41:16 42:10 reason 19:7 32:7 43:14,15 46:12 37:8 40:18 52:9 REBUTTAL questioning 2:12 55:9 55:23 recall 53:23 questions 17:15 receipt 49:19 52:19 55:20 received12:24 Alderson Reporting Company Official - Subject to Final Review 65 receives 24:25 receiving 7:2 recipient 25:9 50:16 recognized30:1 record 15:12 17:2,5,14 22:2 22:12,13,16 42:6,8,9,9 53:23 54:8,23 55:1 regs 7:25 regulate 40:18 regulated43:14 44:6 regulating 20:15 regulation 24:16 28:18,22 31:7 40:25 43:11 regulations 5:19 8:20 9:17 19:20 24:18 26:24 39:14 49:5 reintroduce 24:8 relationship 41:21 relative 3:12 relevant 41:25 relief 17:1 remain 46:10 remainder18:5 remaining 55:8 repeatedly 31:6 repeating 49:17 representative 32:19 41:19 Republican 16:10 19:11 23:21 31:15 40:16 51:24 require 17:14 18:23 requires 5:14 reserve 18:5 respect 20:5 22:18 29:20,24 36:20 37:3 41:13,15 43:25 44:6 48:5,8 52:10 54:12 response 29:1 42:16 43:5 responses 6:23 8:17 rest 37:23 restricting 29:2 30:6 restriction 18:18 18:20 24:20 39:23 47:2 restrictions 4:3,5 5:9 8:19 9:25 10:9 18:16 24:6 24:22 25:21 restrictive 51:2 51:15 retaining 14:17 38:7 revealed55:23 reviewed18:17 re-election 26:11 right 10:24 11:19 11:24 12:25 13:1 14:13,14 16:12 20:13 23:9,13 30:2,24 32:21 33:25 34:5 35:25 41:9 41:11,14 42:20 45:1,22 47:6,7 47:8 50:6 51:18 54:6 rights 13:24 32:18 rise 10:17 15:3 16:5 risk 29:4,14 31:6 36:21 37:5,25 41:1 43:10,12 44:4,6 46:5 52:7,15 53:5,6 risks 37:4 50:18 51:13 52:10 ROBERTS 3:3 14:7,16 18:7 27:2,4 28:10 29:17 38:15 46:11 47:14,20 48:15 50:6 55:6 56:13 Rolodex 7:6 root 33:21 round 46:1 rule 16:20 35:7 47:16 48:4 rules 7:25 8:3,4 35:8 rulings 53:16 run 4:18 9:24 11:22 45:23 46:6,8 running 23:5 43:23,25 44:9 44:17,19,20,25 45:2,5,9,19 51:20 52:8,12 52:20 Scalia's 33:21 53:10 scenario 9:16 12:22,22 13:10 scenarios 6:25 scheme 14:23 24:9 scrutiny 18:15 18:17 sealed31:22,23 50:23 seat 12:3 13:5 23:6 seats 11:19,21 12:2 13:6 second 17:6 33:18 53:15 Secretary 34:1,4 S 34:18,19 47:12 S 2:1 3:1 Section 19:21 safe 11:19,21 see 15:23 16:4,7 12:2,3 21:6 35:3,14 Sam 4:14,15,20 37:17 54:20 sap 43:17 seeing 8:10 saw10:16 seek 3:17 saying 11:10 seen 32:23 15:22 16:21 segregated51:9 21:18 32:23 Senate 6:14,15 34:3 6:21 7:12 10:13 says 4:14 10:3,4 10:19,20 23:6 16:8,9,9 24:21 23:20 29:10 32:17,19 37:22 35:21 36:12 41:7 43:14 Senator 1:17 2:7 47:16 18:10,14,15 Scalia 6:4 10:2 51:22 52:1 14:2,6 17:4,8 senatorial 11:3 17:10 20:3,10 senators 7:13,15 20:14,20 21:15 22:4 30:18 31:1,9,11 sends 49:24 34:11,14 43:13 sense 15:21 38:9 Alderson Reporting Company 38:23 50:15 51:1,21,25 separate 21:7,22 series 51:5 serious 33:10 serving 27:13 set 8:14 sets 37:21 settled53:3 severe 18:18 20:5 25:20 share 16:3,15 SHAUN 1:3 shooting 46:2 shot 22:10 show22:17 showed22:16 showing 17:23 22:13 side 9:18 19:12 19:15 32:16 44:24 46:25 sides 42:18 sign 4:14 16:8 significant 8:3 30:2 37:25 39:20,21 significantly 26:5 51:15 simply 3:17 8:10 single 4:18 8:9 13:4,6 24:1 25:3 37:20 situation 8:11 24:23 40:2,3,7 46:4 50:19 53:11 situations 24:12 six 51:12 slice 38:19 slightly 41:14 small 36:17 56:3 smaller47:3 Smith 4:11,14,15 4:20 10:4,6,6 Official - Subject to Final Review 66 16:9,10,15,15 soft 24:6,9,13 29:8 37:3 solicit 25:12 38:4 solicitation 49:19 solicited25:9 Solicitor 1:20 55:13 solicits 25:5,6,10 29:11 37:21 somebody 25:6 28:17 34:1,17 39:7,18 44:10 46:13 someone's 14:11 sorry 38:13 sort 25:19 33:7 Sotomayor 15:8 15:15 16:21 17:20,25 26:21 Speaker25:4,11 29:10 speakers 19:4 special 23:3 24:4 24:7 25:13 specific 30:3,5 specifically 8:21 19:22,22 24:19 24:20 specifics 45:4 speech 14:3 18:18,21 25:21 34:8 41:18 45:14 54:3 spend 30:11,15 30:23 32:24 33:6,6 34:3 41:21 44:1 45:10 spending 11:4,12 31:2 41:23 52:2 spends 56:5 spent 22:1 44:13 44:23,24 spread 45:19 spring 10:22 stake 13:17 stand 12:16 30:14 39:4 start 23:24 27:10 31:16 state 16:2 19:12 23:18 26:6 28:9 35:24 36:3,7,8 36:9 37:1 39:22 42:6 49:15 52:3 States 1:1,12 20:22 32:11 44:12 statute 8:21 26:5 42:5 54:25 step 39:6,6 stop 16:20 stopping 31:2 stops 17:21 strategy 39:8 42:25 strength 7:16 strict 18:17 strongly 55:4 subject 24:14 submitted56:14 56:16 substantial 42:8 42:8,9 44:1 51:23 subtly 40:20 success 50:25 successful 33:20 such-and-such 32:9 sufficient 31:6 49:8 55:18 suggest 42:15 53:20 suggested8:18 15:16 suggesting 17:22 17:24 24:2 summer22:1 super-affluent 18:24 19:4 support 6:12,16 6:18 16:10 29:21 32:13 35:16 48:18 supporters 4:12 supporting 1:18 2:8 15:20 18:11 26:11 56:6 suppose 10:25 10:25 45:12 48:20 53:14 supposed33:12 Supreme 1:1,12 sure 15:24 31:17 38:15 41:2,11 51:17 surprise 21:15 surprised6:6 suspicious 10:16 10:20,21,24 sustain 25:20 sustained26:2,2 symbolic 34:10 symbolically 34:18 system27:14 28:19,20 31:17 40:25 56:8 talk 31:10 55:14 talked14:8 24:5 53:24 talking 6:1,24 8:4 9:7,7 12:22 13:22,23 14:15 15:5,9,25 16:1 22:22 25:18 34:22,23 40:24 53:7 54:18 target 11:11 team 31:25 37:23 38:22 50:24 television 8:14 tell 5:8 17:13 telling 25:13 32:12 46:13,17 ten48:19 tendency 22:14 tends 32:15 tenth 46:20 47:22 terms 22:7 41:18 41:20 47:9 testimony 22:3 thank 18:7 27:2 27:3 55:5,6,11 56:12,13 theory 22:15 55:24 thick 26:20,23 T 26:23 T 2:1,1 thing 10:1,17 table 24:8 31:14 33:5 51:6 tailored17:18 things 15:5 41:10 55:19 41:13,15,20 take 13:5 16:13 51:6,13 23:16 24:15 think 6:4 7:18,18 32:8 34:2,24 7:24 9:12,16,21 36:15 39:5,5 10:10,13,23,24 42:6 43:6 44:7 11:8,14 12:20 44:21 46:4 47:5 13:9 14:25 51:7 53:8,9 15:17 21:20 taken39:20 25:18 31:18,20 takes 33:17 32:6,21 33:9,10 Alderson Reporting Company 33:18,20,25,25 34:6,13,14,20 35:5,6 36:18,19 36:20 37:18,19 38:17 39:16,17 39:17 40:5,6,6 40:6,7,8,15,21 40:23,25 41:4 41:18,25 42:4,7 43:20,23,25 44:2,16,18,19 45:16,18,21,22 46:2 47:6,7,9 47:24 48:3 50:15 51:21 53:6,6 54:2,6 54:11,17,17,18 54:23 55:2,14 thinks 32:17 33:1 34:1 third 38:14,16 thought 4:9 24:4 thoughts 53:15 thousands 22:5 three 10:6 22:9 24:17 55:7 three-judge 42:17 time 4:8 18:6 26:25 28:14 49:24 times 4:19 5:4,4 5:5 6:22 7:17 16:17,17 47:17 today 55:14,22 total 4:19 6:19 totalling 23:21 tough 41:6 traceability 6:1 transfer12:2,7 12:10,11,13 28:11 36:5,14 39:11,11,23 51:8 transferred Official - Subject to Final Review 67 37:12,14 50:12 transfers 28:13 29:2,25 49:5,13 transparent 56:9 treat 17:2 42:18 treatment 24:4 tried27:19 troubles 35:11 35:12 true 9:19,21 19:15 30:8 33:12 36:17 try 18:25 30:12 33:23 41:6 48:21 51:3 trying 7:22,24 48:1 49:10 Tuesday 1:9 turn 8:14 21:1 turning 20:15 two 8:17 16:24 28:7 29:1 33:15 33:15 36:19,21 United1:1,12 25:16 32:11 44:12 upheld 42:5 upholding 55:3 urge 55:4 use 34:25 35:17 53:25,25 V v 1:5 3:4 Valeo 4:9 Verrilli 1:20 2:10 27:4,5,7 28:25 30:3,25 31:18 33:23 34:13,15 35:1,5,13 36:1 36:18 37:11,18 38:12,16 39:16 40:5,15 42:4,14 42:21 43:6,20 43:24 44:16,18 44:21 45:1,3,7 45:18,21 47:5 U 47:19,24 48:20 49:16 50:4,8,14 unacceptable 51:20 52:8,13 52:15 52:22 53:1,5,19 unconstitutional 54:11,14,22 40:4 view34:18 uncoordinated violate 4:20 33:17 virtually 36:7 understand 26:17 32:7 37:9 vitality 43:17 volume 26:20,23 38:11 42:6 26:24 46:24 49:23 vs 4:9 54:22 understanding W 53:2 understood 24:6 Wait 31:9 walk 39:6 under-breadth want 5:15 8:13 18:4 8:25 11:3 14:10 under-inclusive 20:17,24 22:21 17:18 22:22 29:1 undoubted34:5 32:24 46:14 undue 22:6 50:13,13 51:18 54:20 wanted23:4 34:9 34:17 wants 22:23 23:2 28:16 30:11,16 37:15 39:7,12 40:13 46:14 48:18 Washington 1:8 1:15,17,21 34:3 wasn't 45:6 way 6:3 13:3 14:16,19 21:17 28:13,20 33:25 37:19 43:21 45:22 48:16 49:9 54:19 56:1 56:9 ways 11:13 14:20 36:21 39:19 55:19 weeks 22:1 We'll 3:3 we're 6:24 7:22 7:24 9:6,7 10:3 10:4,18 11:2,22 15:9 31:1,10 32:12 34:23 40:23 55:22 we've 30:1 wholly 29:15 wild 35:14 win 7:13 winks 40:20 wonderful 22:8 word 53:25 words 14:18 work 17:23 28:3 30:4 37:20 40:21 41:1,2 49:2 55:16 worked21:16,17 works 7:18 28:20 world 48:9 worried49:7,11 worse 25:4 wouldn't 6:7 29:4 47:15 write 5:14 22:23 23:2,2,20 41:16 writing 23:24 written23:25 wrong 8:2 21:18 28:1 41:8,8 49:12 wrote 38:20 $5,000 4:16,19 4:24 5:2,3 6:17 46:16 $500,000 33:18 34:3 $600 12:17 $800,000 12:5 13:2,2,7 $86 23:7 1 1.5 44:25 10:03 1:13 3:2 X 100 6:11,15,17 x 1:2,7 10:16 102.17(c) 24:18 Y 11:02 56:15 Yeah 54:13 110.1(h) 19:21 year 35:22 44:22 117 32:25 years 28:7 53:24 117,000 41:23 York 47:17 12 23:10 12-536 1:4 3:4 $ 120,000 32:25 $1 37:1 150 11:18,21,24 $1,000 6:19 23:9 12:1 13:3 23:11 1776 23:3,10 $1.5 44:24 45:23 18 2:8 $100,000 6:20 7:4,12,15 2 $117,000 32:12 2 14:3 $2,000 12:13 20 6:21 7:17 $2.2 36:25 200 32:10,24 $2600 4:11 11:23 2010 44:22 12:12,24 2013 1:9 $3 56:2 27 2:11 $3.5 23:20,21 3 24:7 35:19,25 3 2:4 44:10 $3.6 25:7,12 28:8 3-point-whatev... 46:22 29:9 36:24 3-point-whatev... 41:16 45:25 48:17 56:6 3.2 30:22 $40 41:22 3.4 46:14 $400,000 11:25 3.5 23:25 44:12 12:4 Alderson Reporting Company Official - Subject to Final Review 68 45:16 30 11:20 13:5 4 4,000 5:4 8:13 40 4:12,13,16,19 5:4 11:20 13:5 33:6 400 5:3,5 16:16 16:16 450 46:1 49 36:6 5 5,000 5:4 16:17 50 33:7 500 46:1,7,8 55 2:14 8 8 1:9 9 9 14:12 Alderson Reporting Company