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tv   Today in Washington  CSPAN  June 28, 2011 2:00am-6:00am EDT

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is it or isn't it? >> my position is strict scrutiny applied. the problem is well controlled and parents are already empowered, and there are great less restrictive alternatives. strict scrutiny is satisfied. >> your answer to justice alito, there is nothing the state can do? >> because the state. >> the answer is yes? >> yes. >> how can you say that? there is plenty of proof that children are going into stores and buying these games despite the voluntary rating system, despite the voluntary retailer restraint by some. there is still proof out there, and an abundance of it, that kids are buying the games. and there is proof that some parents, as well intentioned as they may or may not be have not been able to supervise that. starting from the proposition that there is a problem, it is a compelling need. why are you arguing that there
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is no solution that the state could use to address that problem? >> the existing solutions are perfectly capable of allowing this problem to be addressed, assuming it is a problem. >> but still about 20% of sales are going to kids. >> that is when they send in somebody 16 to test the system. there is no evidence that actual children are in fact disobeying their parents, bringing them into the home and playing them for years with their parents unaware of it. there is no evidence of that at all. >> could you have a law that dealers have to put the violent videogames in a particular area of the video store? and minors are not allowed in that area? >> what you are saying is you are going to have a limit on the ability of minors to buy them?
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i don't know how that differs from the current law. >> your sure to the first question of justice alito and the chief justice was yes, sir. you are saying there is nothing they can do. am i right about that, or am i not right? >> yes, strict scrutiny -- >> so i am right -- >> all the highest rated videos have to be on the top shelf out of the reach of children. can they do that? that is what they do with cigarettes? >> except that cigarettes are not speech. >> i know that cigarettes are not speech, mr. smith. cigarettes are something that we have determined are harmful to children. the question is you say the record doesn't support the idea that these videogames are harmful to children. some of us may. >> certainly the record doesn't. it is not one whit more harmful
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than watching cartoons. that is what the record shows. >> there is a study by the f.c.c. and the question is whether violence can be restricted during the hours when most children are awake just the pornography is. i don't know remember the hours. it is something like from 10:00 in the evening or so. but didn't the f.c.c. say yeah, we could do the same thing for violence that we are doing for sex, except we don't think we ought to do it, we think congress should do it? >> they sent several years to come up with a definition to figure out which violent tv shows should be put into this
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category, and they eventually punted. they said they could not do it and punted it back to congress to come up with a definition. this is a difficult task to use language to dickie v yailt the types of violence that would in some way tell people what the rules of the game are. it even if there are problems that need to be solved. you need to because children will never have $50 to go in to buy these games, parents are always home watching what to do with their video >> and the videogames that have features access, to block the placing of violent video games, which cannot be overcome by a computer savvy californian 16-
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share daschle. >> if we're going to judge the constutionality of wthe law, problem is the line between 16, 17, 18 is so finely will not be able to identify the category of game that fits into that category. california has not told us whether we need to judge -- if it is 17-year-old, it would not restrict anything because nobody will convince a jury that this is an 18 year-old game, not a 17-year-old game. >> we do it for drinking, driving. >> here you are assessing works of expression.
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i do not think that works. if that is the test, the test just as boris just, then the statute restricts nothing. >> maybe it would restrict the gratuitous torture, and if so, why is that such a terrible thing? you could discover you could limit it to that. >> then maybe is telling, your honor. subject of hundreds of millions of dollars of pelties. >> why when the first step be they follow your rules, the x things would be limited to people who are over 18? if we ever get prosecuted -- might never. >> our rules would not help you at all.
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these ratings that the state wants to -- a conflict with the packaging that is being used by parents everyday to make these judgments. it is interfering with the prospect of the information already on the packaging. >> thank you, mr. smith. >> i want to address one point raised by the ability to access these things. the law regulates the rental of these games, which is a few dollars per game. minros can access them. i want to draw the point that california's law is not an ordinance that is directed to the plot of the game. it is directed to games with essentially no plot, no artistic value. this is the nature of the third
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prong of the miller standard. it goes after the nature of the game where the child -- >> if it has a plot, it has artisan value of is that test? >> that is one factor to be consided, justice scalia. >> you are not telling us that as long as it has a plot is this ok? >> this court has held in a case that a single quotation from voltaire was not wanto make that work non of scene. >> we cannot have artistic videos involving mamiming? >> if the level of the violence causes the game to lack -- it is a balance, as it is the sexual material.
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that is why violencand sex -- >> artistic for home, a five- year-old? moral combat prohibited by the statute? >> i believe it is a candidate, but i have n been exposed to it to judge for it by myself. >> meaning a reasonable jury could find mortal combat, and iconic game, at the clerks who work for us spend half their time -- >> i don't know what she's talkingbout. >> i meant the industry should look at, should take long look at it. i do not know off the top of my head. i am willing to state that the video game postal 2 become hurt
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by this act. i'm willing to guess that these games described by this brief would be covered by the act. the video game -- >> with a video game that portrayed a vulcan being tor tured, would that be covered by the act? >> no -- >> so if the video producer says citizen anthropoid, they could sell the game to, yes, this is one of the reasons that sex and violee are so similar. these are based on physical acts we're talking about. narrowing calls and california -- narrowing the laws in
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california -- ?> is that covered a ta >> the intent of the law is to limit access of those games by minors.ers -- - -- >> thank yououououououououououou >> that was supreme court oral argument from last year. the court ruled today that california's law banning the sale of violent videogames to minors is unconstitutional and violates the first amendment.
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the majority opinion in the 7-2 vote was written by justice scalia. justices breyer and thomas dissented. now a panel of law professors on this term's major decisions, including freedom of speech. from the 4th circuit court of appeals annual unusual conference, this is two hours.
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>> i hope you will realize that we are being selective in our coverage. it is simply not possible to be combrensive. not even all the important cases will necessarily be talked about. we hope we are picking enough of them to give you a sense of what the court has been up to. i know many of you will be checking out or getting on the road. so we will conclude by noon time today. we have a very distinguished panel. i am delighted to have with us heather gurkin from yale law school. she is known for her work on election law and democratic theory. we have michael mcconnell from stanford law school. he is a former 11th circuit court judge and served in that
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capacity before he served in that capacity. neel segel is professor of political science and law at duke yuferte law school. he is a member of our family because he served as a law clerk for two justices. . having clerked for the d.c. circuit and for justice scalia at the supreme court. all of us want to change the fourth circuit for its hospitality. you cod not have been more hospitable or more gracious. we are grateful to you. let me take a few minutes as we begin our discussion to try to set the context of the roberts
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court. is completing its sixth year this week. i was thinking about the time that passed from the year that earl warren, 1953, became chief justice and the time nine years later when the warren court really came of age when felix frankfurter left the court. i was -- it was in the mid-'60s that the warren court handed down many of its landmark decisions. it is interesting to note that about thsame period of time passed between when william rehnquist became chief justice and the time in which the rehnquist court came of age, roughly around 1995. the benchmark that year was u.s. vs lopez, the first time the court struck down an act of
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congress on the grounds it had exceeded its congressional power. the rehnquist court of the '90s seem to be coming out swinging on areas like federalism, church and state, and some others. this nine year period may be coincidental, but at least me to believe -- makes me think if we are in the middle of a nine year span when the roberts court will do something we could talk about as a historical period on the court. it is a 6-year-old court. i was looking at how six-year olds behave. here is what the book says. "your six-year old is a lively creature -- dynamic, energetic, and enthusiastic, but one whose life is not without complications.
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his biggest problem may be his two-way nature. he may be beautifully -- beautiful and ugly one minute, but typical and quarrelsome the next." that is the six-year old. i do not know at that characterizes the roberts court at age 6 or not, but we will find out. during the time the robrs court has been in being, the first term i will not even mentioned because the court was not fully complete unt 2006. but by the 2006-2007 term, you begin to see more conservatism on the court, clearly from justice alito replacing justice o'connor. holding up the partial birth abortion at, the seale and legal school cases, taxpayers are not having standing to challenge a white house initiative -- those are samplings of cases that came down in that term that began to
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give one a sense of what the roberts court might be like. the next year, the 2007-2008 term, you can see what the press likes to call "theological ips -- "ideological slips." biggest winatives' was a 5-4 opinion striking down the gun lobby in d.c. in kennedy vs louisiana they dealt with the death penalty of the rape of a child. the 2008-2009 term -- commentators like to put a label on courts. people were talking about "incrementalism" or " minimalism." the court was going step-by- step.
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an example would be the new haven firefighter's case. it was decided on a 13th amendment question. another example woul be the northwest boston case involving clarence under section 2 of the voting rights act of 1965. that was the 15th amendment question. the pattern was emerging by the falling term, 2009-2010. that was the term before the present term. the conventional wisdom by that point had become what the press said was "a liberal brlock vs a conservative bloc." that is a pattern use all in cases like citizens united, be famous campaign finance case, mcdonnell bursa's the city of chicago -- mcdonald vs e
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city of chicago. let me put several generalizations on the table and we will see whether they stand or not. i invite my colleagues to agree or disagree as they see fit. first is the conservative trend in the court, the importance of alito replacing o'connor on the court. someone did a study of the 44 justices who sat on the court since 1937. the six most conservative judges -- four are still serving on the present court. that report said roberts, alito, thomas, and [unintelligible] there have been some results thative the other way one case involving detainees -- i mentioned kennedy vs. louisiana.
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i think you can argue the is more of a correlation? there used to be between a justice on the court and the appointee on the court. one is struck by the idiosyncratic behavior of justices like black men, suitor, or stevens who turned out on the court over a period of time to be different from when they were first reported. it seems to me that is sent era that is gone. people can find more predictability in the behavior of jusces in terms of what you might expect when they camto the bench. in part, i think that is the fruits of the debate going back to the reagan administration when the reagan justice department clearly had more of an agenda of the kind of people that would like to see on the supreme court. thirdly, i would assert that judicial activism is not dead. we can spend already discussing
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judicial activism, but whatever it means, we have a general see of it. the warren court was famously activist. to the extent you see activism now, it seems to be on the core's other wing. judicial activism, i would say, is still with us. if it was a term of activism or animals and, i think it may have passed. -- or at incrementalism, i think it may have passed. is it appropriate to call the court the court of the chief justice who normally leads it? the previous term chief justice roberts was in the majority,
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something like 92% of the time. that is more than any other justice inhe court. justice kennedy holds an important role on the court. kennedy is a more conservative swing votes than o'connor was before. that seems to have made a difference in eas of abortion and race. changes on the court's left, when stevens left the court, i think, in many ways, he emerged in recent years this sort of moral and tactical leader of the more liberal wing of the court. the years have certainly seasoned his ability to play that role. his departure leaves the question will someone step in and fill the void? we now have justice so meyer -- sotomayor and kagan. will they pick up the torch or
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what? the pace of oral argument has picked up. it is faster, quicker, tougher than it was 20 years or 25 years ago. it is notable that justice sotomayor and justice kagan are prepared to leap right in. justice sotomayor has been certainly. thomas has become, to me, one of the more intriguing members of the court because he ems willing to reconsider any rep -- any president, however old might be, no matter how long it has been around. we know justice scalia's role as
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well. justice alito is also emerging as an interesting member of the court this a high correlation of agreement in the voting patterns of the male members. we will be hearing about snyder vs phelps this morning. it was eight-one where justice alito was the lone dissenter. he will come to have his own voice on the court. finally, i want to live on the table the question that has been talked about i is the roberts court a pro business court? some of the cases that we will talk about this morning certainly are cases that the business community cares deeply
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about. liberal groups that have labeled the roberts court as pro business. that cry especially was heightened by citizens ninth last year -- united, perhaps mistakenly, looking like corporations were pouring money into politics. the u.s. chamber of commerce involves itself in a number of supreme court cases. they must have liked the wal-mart decision. they must have lirked the at&t case out of california where the use of standard form contracts is going to be made easier for corporations. wednesday of this week there were two cases that drug companies would have liked. the preemption case is one, and a commercial speech case being
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another. so there are some cases that clearly seem, if you take a wholesale view of the matter, seem to be pro business. but the other side of the picture has to be considering cases like employment discrimination cases where the court appears to have been favorable to employees challenging discrimination, saying the filing of an oral complaint would do. it need not be a written complaint. expanding the definition of retaliation. we will be talking this morning about preemption cases, and by no means did those fall into one category. the arizona case is clearly an example of that, and there are others. and finally a case that the chief justice wrote concluding clearly that corporations do not have a personal right of privacy in cases involving the
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freedom of information act. if you like the flavor of roberts' opinions, that is a good one to read. we have a lot to talk about this morning. we have some very good people up here who are primed to go with it. i might add we had thought about adding to our agenda this morning some discussion of the health care litigation which is now working its way through several circuits, including the fourth. as you know, to escort opinions in -- distort opinions in this circuit. we have decided to defer that and not take it up today. two years from now there may be something out of the supreme court to talk about. having left that off the table, that still gives us a lot to talk about. with those thoughts to set the stage, we are going to proceed through several major areas. i remind you we are not trying to do everything. we do hope what we have to say will be of interest to you.
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we want to start out looking at some administrative law cases and also perhaps privacy and state secret cases that came down this term. adrian would you like to pick up in that area? to pick up in that area? >> thank you very much. i want to thank the fourth circuit host to giving me the chance -for giving me the chance to participate. i think the administrative law part of the docket is always the most thrilling part of the supreme court term. maybe some of you may not initially see it that way, but i will try to win you over. to identify some administrative law principles that have emerged from the term as winners, some that have emerged as losers, and one very important one whose status is now under a bit of a with of the's start winners. the major winter was the
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chevron doctrine. it expanded its empire even further. the remorseless expansion continues. and we will look at the treasury department and the taxing statutes. it was held that chevron supplies the governing standard for review of treasury department rules. along the way, the opinion displaced an old president beloved by tax lawyers called national muffler from 1979. the chief justice wrote in very strong and striking terms of that the factors in national for work irrelevant. he said that whether the agency has been consistent or inconsistent in its interpretation is not relevant for chevron purposes. the antiquity of the regulation and whether it was enacted contemporaneously with the statute are neither here nor there. it is immaterial whether the regulation was prompted by
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litigation or not. and it is immaterial whether congress's delegation of authority was general or specific. this is a very robust version of chevron with very large muscles. i think that the chief justice's approach will have broader implications for the future. what is striking is the rationale the the chief gave for this. he said the main one was the intrinsic value of uniformity in federal standards of judicial review of agency action. he also mentioned agency expertise given the complexity of the tax laws. there is something missing here been had there is something notably absent. the political accountability rationale for chevron, which, in its original formulation, said that presidential administration would enhance the democratic character of regulation through
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the electoral connection. i think it makes perfect sense to downplay the accountability rationale for chevron if the court is interested in it increasing the uniformity of federal standas of judicial review of agency action. the reason that makes perfect sense is that lots of the court's cases and cases in the circuits involved regulations promulgated by independent administrative agency like the federal reserve and the fcc. on the accountability rationale would have a hard time covering those cases because, at least in theory, the accountability to the president of an independent agency is attenuated so the deliberate omission of the accountability rationale suggests to me that the court is very serious about tidying up
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judicial review of agency action under unitary powerful chevron framework. another conspicuous winner of the term was auer. it is deference to an agency's own regulations. to case -- two cases, the court referred to interpretations of agency regulation by the agency as strongly underscored. mostf the term's ambitious theoretical concurrences, perhaps, was issued by and justice scalia in the top american case. he said he has come to doubt whether our difference is even constitutional. for us administrative lawyers,
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this is a big deal. it is part of the ordinary tool kit of admistrative law. if it isnconstitutional, that would be big news. justice scalia said that it seems contrary to fundamental principles of separation of powers to permit t person, the agency, who promulgates a lot to interpret it as well. and he drives that rationale from an article by my friend and colleague john manning. all this puts me in quite an awkward position, hing clerked for scalia and being john's friend and colleague. i find the argument quite and convincing and i want to tell you why. i think it sweeps far too broadly. it sweeps far more broadly than the limited context of auer anyway. most agencies promulgate an interpretive rules. if the fusion of lawmaking and -- and to bring authority is constitutionally suspect, then
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the great bulk of the administrative state is suspect -- if the fusion of lawmaking and long-administrating -- law- administrating bring of 30 is constitutionally suspect, then the great bulk of the aid minister of state is suspect. the main consequence, i think, would be to encourage substitution at the margin from regulation to simple case-by- case adjudication of ambiguous statutes. the state would have every incentive to switch to that. if we are worried about uncap
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agency discretion or something like that, that outcome is plausibly worse than a rigid and more agencies pass regulations and then get our difference for them. in any event, no other justice joined his concurrence in talk america. that seems to concur auer's court.l let me mention a clear loser from this term besides national muffler, the other clear loser was the turn tenery console.- the an agency -- the tenery principle. several decisions from the term
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were very relaxed about the prospect of post-top russell mobilizations -- post-talk rationalizations. i think this converts the principal from something like the role of resumption to an ad hoc consideration or the agency has taken a deliberate position. it may come in a letter. for now, that logic is confined to the auer context -- the approach is confined to the
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auer context. would it be possible to adopt the same approach o straightforward judicial review of agency action situations? we should watch to see whether it spreads to oer domains here in this may be a real innovation in administrative law from the roberts court. finally, a crucial administration law doctrine that has been a drizzling cloud after this past term is the me doctrine that tells us when to apply chevron in the first place and has been a source of major controversies over the past 10 years in administrative law. we have had some good moments in the past term, but also some bad monts. a good moment was that mayo did take it as a working framework to see if chevron applies. on the other hand, there were
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least 3, 4, or five bad ones. the intention with the emphasis on uniformity in federal review of agency action, a major rationale for mead was to taylor deference to variety, which is to have flexible applications to legal interpretations. it emphasized the need for uniformity of judicial standards of review. i think mead starts out with a strike against it. all this broke out in the open at the oral argument in chase bank.
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mead had seemed to say that an informal procedure would not get their friends or my connected deference or was at best suspect. what agencies needed to do was informed there interpretations. several justices at the oral arguments said we cannot do both things. we can both do mead and auer deference. we had a two unanimous votes to that effect. what happens to mead in that case? there not one word about mead in the opinion. i think that is bad for mead. if people are not talking about
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you or at least sometimes not talking about you, that is mulling a good thing. a second -- that is not a good thing. a second ominous point is that ybe mead is not consistent, but we are not sure that we got it right in mead any way. i am not sure who "we" is, but if it includes justice kagan, i could signal a shift. a poll theote to position, sotomayor does not think it is a necessary to discuss mead, i think there is still in question whether it will still be the law five years
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from now. it is under a cloud. >> i just wanted to jump in very quick way. all of these types of difference and so forth may strike a lot people in the audiences thrilling. i think the technical term for this is a snooze. i think they are very impoant becaus it is argument over these questions of difference in which the very idea of separation of powers and the rule of law are worked out in the context of the administrative state. i would like to at least maybe cautioned against assuming that justice scalia's new campaign against auer differencesver just because he lost this particular term. justice scalia is a very smart
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guy and he is very persistent. i remember it when he first introduced his campaign against the use of legislative history in ordinary and statutory interpretation. it seemed bizarre and i do not think he had any other supporters at the beginning. i would not be surprised if his critique of our deference -- of er de france wil gain adherents over time. i the thing that it has a very important grain -- i do think that it has a very important grain of truth to it. when a single body does both promulgate a lot and interpret the law, the rule of law is over. the separation between law interpretation and lock promulgation is absolutely essential to the law having some independent integrity.
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would makea's view things worse because it would induce agencies to engage in more activity on a case-by-case adjudication. that may be so, but i think there are good reasons why, over the past0 years, agencies have not found case--case adjudication to be effective way of assertingower. i think a return to separation between rulemaking on one hand and adjudication on the other is something that we should applaud ending courage -- we should applaud. scully is probably not right that it is unconstitutional, but -- scalia is probably not
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right that it is unconstitutional, but that it does tread on some constitutional powers may be right. >> if you found the former generation -- reading john locke and "the social compact" and the like, i think they would have brought up the adjudication principle. also the revival of federalism and the rehnquist court. in the 1980's, he was the lonely voice in the wilderness. he and others fanned federalism back into effect as a constitutional part of the american edifice. what is the prospect we will see any resurgence of the non- delegation doctrine? it seems to have been dead and buried for such long time. i do not sense any interest in the court to revisit that issue. do you think that the sooner the issue you're talkingbout the so -- you're talking about this morning might force that? >> we have long and complex
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views on this. first, i disagree that the non delegation doctrine has original list foundations. if you look at the legislation passed in the first congress, it included five or six delegations that, today, we would think would blank check delegations to the president to do various things. in my view, the non-delegation doctrine is a late-19th century creation by lawyers anxious about the nascent the ministrative state. that experiment lasted until the 1930's and then basically collapsed. it shows no signs of revival. the non-delegation doctor leads a ghostly existence with people talking about it all the time, but it does not manage to by
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anybody. even justice scalia has written one of the most sweeping modern opinions upholding the delegation -- a case called white men -- and he says he sees no prospect -- called equipmenw hitman -- and he says he sees no prospect for it. if mike and i have a disagreement, it may be a productive one. i think the last -- the lessons of the last 50ears is that they're sensitive to changing incentives for substitution between rulemaking and adjudication. in the 1970's, when the court, in various decisions, increased the benefits of rule making, then agencies engaged in more rulemaking. i suspect that, if the court somehow got out -- got rid auer
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difference, then agencies would participate in more adjudication. >> thank you. i want to move now to the first amendment cases. it was a robust part of the docket. heather and mike respectively will take up some of the major cases. i have asked heather to think about the public finance case out of arizona. and also,eather will have something to say about snyder vs phelps, which was one of the headline grabbers of the term. once we have talked about those cases a bit, we will move on to mike and talk about some of the other important first amendment cases on the docket. heather, may i ask you to drop in and start that out? " sure. how want to thank you for inviting me. -- >> sure. i want to thank you for inviting me.
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if you were thrilled with adrian's then minister of law decisions, fasten your seat belt current the first amendment decisions are the blockbusters this term. macomish is one of those that we are waiting for. this ia case involving the challenge to arizonas public finance system. ifhis challenge succeeds, a number of state financing systems may fall with it. if the court rights broglie, financing systems across -- rightwrites broadly, finance systems across the country are
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in jeopardy. a publicly financed candidate is eligible to receive additional funds in arizona if his opposition outspends him. but the term "opposition," that is not just the candidate he is running against, but all the independent groups who are running ads on his behalf. this law was challenged on fir amendment grounds. election law is the sex, drugs, and rock-and-roll of the first amendment. the one that the district court, but lost that the ninth circuit. it does not limit any expenditures. therefore, there is only in limited burden competition for first amendment rights and they found that the statute was constitutional. a lot of the briefing in the case was devoted to one decision.
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pulled for political junkies, you will know that this is the millionaires amendment case. mccain-feingold had a positio that had limit when opponents were so financing their election. if anything, this is an easier case than davis. the millionaires amendment only allowed the publicly financed candidate to raise more money. in the arizona scheme, the publicly-financed candidates automatically gets the most funds. they have the most compelling facts. one of the candidates in the case was running against three publicly financed candidates. so every time he raised $10,000, $30,000 appeared on the other side to oppose him. in any -- in many ways, the
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two sis have been utterly unable to find common ground. that is because they begin with a different premises. one side sees substantial expressive dimension to both contributions and expenditures and the other side simply does not. it is too crude to boil down the debate to slogans like "money is speech" ormoney is money." nevertheless, for th past 10 years, the only middle ground that has been found has beeno stick buckley vs. valejo. the problem is this. no one admirers buckley. very few people think it was even close to right. so to allow the court to cobble together a majority, it has not
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helped build a common intellectual framework. in paris and macomish -- in davis and macomish, in a petitioner's summary, they begin with a great anecdote when janet napolitano was running for governor. she pulled her upon the side and she thanked him for his fund- raising efforts. he had it fundraiser that raised $750,000. she got $750,000 in response. she said, i am quite certain that i am the only democratic governor in the country tt george bush held a fund-raiser for.
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just as kagan said, it seemed like the system promotes more speech all-around. that is a core problem in campaign finance. the justices cannot agree on the basic premise of the doctrine, no balancing test, no choice about the level of scrutiny that will bring agreement. whatever the results in this case, the doctrine will remain highly unstable going forward. this is not doctrine moving toward consensus, but a death match between two competing points of view. i am tempted to quote harry potter -- neither can live more either survive. some of you remembethere are other -- there is another finance case called citizens united.
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the press has an entirely missed the significance of that case. in the arizonan briefing, it is confirmed. the press had told us that citizens united give corporations the right to speak. i will tell you that that is nonsense. corporations enjoyed robust speech rights before citizens united. indeed, they did not open the floodgates with citizensnited. they open with a few years before that receive no press attention current at most, citizens united expanded the rights of corporations to be more specific about the independent expenditure. to put it in crude terms and by way of example, before citizens united, corporations could run an ad that said senator x kicks puppies, call him and tell them not to kick puppies.
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now they can run an ad that says senator x kicks puppies. do not vote for him. that fact has been utterly ignored by the press. as you all know, when congress regulates under the first amendment, it has to have a good reason for doing so. the reason that congress has law invoked is corruption. quid pro quo corruption is when i give you money and you give me a vote. the donors are calling the tune. indeed, at times, the mere appearance of undue influence and acces was an appropriate route for regulation and that approach gave congress a great
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deal of room to regulate. citizens united seems to have cut back dramatically on that approach. it has returned us to the defendant -- the definitioof corruption. we're back to quid pro quo corruption. while the press mourns the court holding when it overruled lawson, the one campaign finance case ever in the to the equality rationale, ingratiation and access a not corruption. the broad and nebulous view of corruption endorsed by the liberals allowed congress to regulate problem without ever mentioning the word "equality." that is what was at stake in citizens united. while the press has missed this point, the courts have not been lower courts have begun to dismantle portions of the campaign finance system on these
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grounds. advocates have not missed the lessons of mukasey there. macomis -- and lessons of along either. macomish is not ignoring it. given that quid pro quo corruption is the only run for regulation, why do we need more? why arizona even needs a public finance system? publicly financed candidates, they observe, are no less susceptible to trading of four gym bags full of cash them privately funded candidates. this is why campaign finances so fine. they did have a case involving gym bags full of cashn arizona. what is the justification of public finance other than the now illicit equality rationale? the court does not need to answer that question. but how it answers that
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question, whether it's does it inmacomish or when it does it more directly in the future, it is not just public fince, but finance more generally. this may not be the case that resolved the question but it is likely to give us a hint as to which the direction will eventually take us. the second case i have is also one of the blockbuster cases of the term. it is snyder vs phelps. if there is every case to pull at theustices heart strings, it was snyder. mathews letter was killed while serving in iraq. at the funeral, a man named fred phelps and the res of this was borrow baptist church staged tickets involving a variety of despicable signs, homophobic slurs, silver in the death o american soldiers, anti-catholic attacks. was borrowed church routinely boycott the -- routinely pickets
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of the funerals of soldiers because they believe that the american college of homosexually led directly to 9/11 and the casualties of the iraq war. picking funerals of private individuals have garnered was borrow -- from midwest borrow -- garnered westborough more attention than it deserves. the district court let the compensatory decision stand. justice alito's vigorous dissent urged the justices to make an assumption -- to make an exception where private individuals are subject to personal attacks during a funeral or during other occasions that he turned intense emotional sensitivity.
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but the chief justice resisted the urge to carve out an exception can it reads like -- an exception. it reads like a dramatic first amendment case. the fact that all of this occurred at a private funeral did not make the speech any less public in nature in the view of the court. the picket was peaceful and in full accordance with existing time place, and manner restrictions. it was protected by the first amendment, not withstanding the despicable purpose. despite the straightforwardness of the opinion, there are signs that this was not the easiest of cases for the majority. while maintaining a steady the neutrality, the court notices that others may well find the message offensive end of an
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enjoyable value even in a robust marketplace. the court was very careful some of the analytic rabbit holes that it might have tumbled into had it written a broader opening. the court carefully classified the speech as mostly dealing with issues of public concern. that avoided the naughty questions involving some of the speech directed at snyder himself. for procedural reasons, the court had the luxury of ignoring the online diatribe public by westborough, which was not an option available to the fourth circuit. it requires us to tolerate the and tolerant, to maintain a free marketplace of ideas, even for those ideas that are surely wrong. lee bollinger, a law scholar, says that the first amendment is important as much because it signals our willingness to allow despicable speech as for the rights of the speakers
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themselves. in his view, it is our capacity to tolerate the wrongheaded, even the intolerant that makes us who we are. snyder very much reads in keeping with that tradition. but snyder leaves open as much as it resolved. it reads as a simple case, but it may be deceptively so. the court's assessment of the fax is that this is predominately a matter of public concern and it failed to grapple directly with the speech directed specifically at snyder himself. those things enable the court to write a clean opinion that left the side of the difficult questions about how far the first amendment is allowed to push us where we had more obviously private speech involving more of is the private arms. >> -- more obviously private harms.
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>> i want to tnk the judges of this court and professor howard for inviting me to be here. i spent a very important year of my life in this court. it is good to come home to find in that it fit. with the campaign finance cases, the question i have for heather is what refers to what you call these so-called illicit equality rationale. i remember the or zero argument in davis. justice scalia denounced this idea in his inimitable way. he said what if we find out that one candidate is more eloquent than the oth? should we require that he speak with pebbles in his mouth? [laughter] i do not think any of us are inclined to require candidate to speak with pebbles in their mouth. is egalitarian, is this idea of
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not leveling the playing field making it less dramatically unequal? the concern is intuitive. those with a lot more money get to speak a lot more and drown out everyone else. i do not think the court will anytime soon accept this rationale. but i am intereste in whether you think that is what is moving the court and what is moving a lot of campai finance legislation, and whether you think there's something to eat normally. >> may i add a separate question related to that -- something to it normatively. >> may i add a separate question related to that? i notice to the lack of deference to congressional judgment. but she did not say why the court is hesitant to defer. his reason is that, in the context of a campaign speech, the legislors who are writing the rules are players in the game and they and stand extremely well who wins and who
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loses from various regimes of campaign finance so-called rerm. the essential problem is this. incumbents are in power. it is easy for incumbents to raise money for their reelection campaign in appropriately small contritions from large groups of interested people. it is difficult for an unknown challenger to be able to raise the money coming even to be able to compete. so there is a persistent suspicion that the efforts to make it more difficult to raise money for campaigns is really a disguise, not for egalitarian concerns, whether they are right or wrong, but for incumbency protection. >> heather? >> in the equality verses corruption debate, i credit --
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david strauss argues that the corruption concern has to be about equality for the following reason. as long as we assume that you give the money to the candidate of properly, not jim? full of cash, what you do in a campaign science cases that they can only give a certain amot of money to help the candidate win. it is not lining his pockets. it would be appropriate if you could calibrate and find it a good thing to contribute. if that is the case, why would we possibly worry about giving money to help the candidate win? we have to say that if everyone has one vote, the do not all have the same amount of money. i think the quality rational does animate current even now, when legislators tried to pass campaign laws and they know that
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the quality rational is not allowed, they really fall into the trapf talking about leveling the playing field. those are the terms of signal the real motivation behind this. all of the election is ridden with its problems. the foxes are guarding the hen house. when that happens, they are not likely to do much to help the chickens. and we are the chickens. so what should courts do when they look to the regulations passed by legislators? as lonas we have the system that we do, which is a partisan system where legislators passed the law, i think the only way to look at it -- the only thing to do is to give it a hard look. no campaign finance reform ever gets passed unless it is in the interest of legislators. that is a fact. you havto hope that, vocationally, t interest of
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legislators align with the interest of the voters. that is always true. legislators have no interest in serving their constituents. they want to pick their constituents. whenever you have campaign finance legislation, you have to give i a hard look to make sure that the incumbents are not serving their own interests, to make sure that one party is not using a seemingly neutral regulation to hurt the other party. the are routine problems. for that reason, i think it is a proper for congress and legislators to receive less difference than the usually do on these questions. >> i wanted to offer a few thoughts about snyder vs phelps. it is one of the most important decisions. on the merits, i think the court got it right. i felt it was instructive for me and all of us to sometimes monitor our own emotional reactions as we read supreme court opinions. in my own case, the more angry
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and upset i got by the facts and what the church did, the more became persuaded that the court was right, that they are speech was constitutionally protected. i do not think this was it is primarily or very much at all about separating protesters from a father who wants to mourn the loss of his son in peace. i think the facts made clear that the church had every right to be where they were and in no way disturb the funeral. i think it was about suppressing a message altogether and i think the court was right to resist the repressive urge. i think snyder, like the steven's case that professor howard mentioned, illustrate a very interesting 8-1 split in this court where the first amendment cases and values collide with norms of committee, norms of decency, norms of respect for basic human dignity. sometimes the dignity of non
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humans, animals, as well. i think there is an overlapping consensus on the robber court in these kinds of first amendment cases. i do not think it makes sense any more to talk generally about what it means to be a liberal or conservative in ese kinds of first amendment cases. there's also one consistent the center. dissenter.ent witthe cente it eliminates what was going on in this case, particularly in the dynamic between the roberts and the majority opinion and the dissent.scen he has identified attention in these kinds of first amendment cases between the first amendment as the guardian of our democracy and the common-law tort as the guardian of our community. there are timeshen these two
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values clash irreconcilably. in also illuminates to the extent that these two values rely on one another. respect for the first amendment and certain norms of communities. it does not undermine or restrict them. in order for the first amendment to robustly protect speech on matters of public concern, we require a comnity that values first amendment values and is prepared to defend them,ven when a repressive verge is difficult to control. i think the chief justice understands this in the opinion he wrote. for one thing, he enacts it. it is a very disciplined opinion. while acknowledging the suffering that met you snyder's father in door, it is nonetheless very disciplined and neutral about of the speecat
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issue. it is worth focusing on the last paragraph of the opinion. the chief justice wrote the very falling -- the following very movingly -- speeches powerful, move people to action, move them to tears of both joy and sorrow, and, as it did your coming in click great pain. as a nation, we have chosen to protect even hurtful speech on public issues to ensure we do not stifle public debate. read this as a reminder to all of us that the first amendment values at stake in this case rely upon the community who is prepared to indicate them. >> i have one response between a -- about this division between public values. this is where i felt that the chief did not answerustice alito. justice alito said that we do
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not have to choose between them. we can separate them. we can talk about the speech that was directed at snyder alone. why not separate them and hold these guys liable at least for the purely private speech. i think there is an answer to that question, but roberts did not provide it. he did not say why it was necessary to figure out generally what the speech was about. i think it would have been a strong opinion had provided an answer to what i thought was a sensible lawyers point. >> i am not a first amendment specialist. before that reason, my speech protective reflexes. i am unhappy with snyder for a couple reasons. nothing either of them has to do with emotionalism or repressive verge. one reason i am unhappy is the
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issue of the dtribution of the cost of free speech. when people like lee bollinger say that this is the price we pay for the system of free speech, it is not a price that we pay, but the price that albert snyder pays or that that family pays. it was concentrated on one or a few people in cases like this. that distributive issue is a legitimate non-emotional ground for worrying about cases like cider, i believe. the second point -- cases like snyder, i believe. >> the second point is that they slightly miscast the objection. sliders position, rightly understood, is that you can speak on matters of public concn, but you d you have to hijack my son's funeral to do so? the church is saying that we
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will exploit you for publicity. and the attempt to stop that is not an attempt to stop them from speaking on matters of public concern. it is an attempt to say that you may speak on matters of public concern, but you have to do so in a place or in a time or in a way that does not hijack someone else's private concerns. i do not think that is a repressive surge or emotional trauma. i think it is a legitimate argument that should have been more squarely drafted. >> i want to, wanted to comment on this not because i disagree with the decision, but because it is deeply controversial character needs to be recognized. we engage in this fog of free speech celebration and sometimes forget, among other things, how different the united states is from other parts of the world. any other -- in any other
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western country, this case would have lead to prosecution. it would have been described as a hate speech. a dutch parliamentarian was prosecuted he was acquitted, but he was prosecuted for speech criticizing islam that was far less inflammatory than that god hates fags speech that westborough baptist church in did in this country. in canada come up -- in canada, britain, and other european countries, they would have been facing criminal liabilities. i celebrate the fact that we haveot gone down that path, but i think we need to recognize that this is really an american distinctive. but also wonder how far these
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principles of snyder will be oppressed. i think that the majority opinion in snyder depended upon does not existat i in fact. there are issues of public concern on one hand and targeted attacks on individuals on the other hand and to define this as falling in the first. with that cataloging all the examples, the principal ones that we see have to do with harassment on the basis of sex, race, sexual orientation, and so forth. speech of this sort, up offensive racist, misogynist, homophobic speech, h a deeply political character its about issues of public
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concern no less than the speech i hear is. but is forbidden under public accommodation law in a number of context. just in the last few weeks, the federal government has come down on your university under the title 9 -- down on yale university under the title action for failing to take aggrsive action against some sophomoric fraternity pranks yale took place at you i university that was offensive to female students. sutter nurses felt goes to great lengths -- slighter vs phelps -- snyder vs phelps goes at great lengths to use offensiveness
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under the legal standard of the first amendment. thats the standard being applied under harassment law. it is the standard applied at yale. it is enforced with a great deal of ruthlessness on american campuses today. how will we resolve this attention? are the ringing principles of snyder vs phelps going to crowd out the increasing efforts to protect people against offensive speech where the offensiveness is based upon the favored categories of race, sex, religion, sexual orientation, and so forth? it is interesting that none of the opinions in this case regnizes that this is -- there is this huge domain of speech
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restriction based upon offensiveness that exis in thisountry. which principal will prevail? >> i have not read the amicus briefs. did they address this point? >> i have not read them. >> that is a profoundly important point. you have set up ry nicely for me tpass the baton to you. >> just one general remark looking at not just this term, but the last several ter, is that free speech is alive and well in the supreme court. i would s that this is the most consistently and strongly free speech protective court in american history. we see the court protecting our principles of freedom of speech,
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even in the face of very powerful concerns on the other side. last term, animal cruelty, this term this horrible speech in snyder vs phelps, and as i go into some oer cases as well. i will begin with the one case in this term in which the court did not protect something that is arguably freedom of speech. that is nevada commission on ethics versus kerrigan. that is the exception not typical of the tm. this had to do with accusal rules for the nevada legislature. under these refusals, they legislate or is not allowed to vote. he is not even allowed to abdicate in favor or oppose legislation where he has a
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personal interest in the matter , in the particular facts. this was a challenge, so the facts did not really matter, but the particular facts are ones where this legislators chief campaign manager and his shoe supporter becomes a lobbyist and now is representing a party who has an interest in this litigation. the court holds in an opinion by justice scalia, joined by all but kennedy and a leto -- alito -- it holds the statute is legal under the present amendment. it is that voting and advocacy is first amendment protected and thus the nevada statute violates freedom of spee. the court said no.
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essentially it said no because voting is not speech. and the courts as the key point here -- they legislate toward's about is the commitment of s proportion share of the legislature's power to the passage or defeat of a particular proposal. so it is really not speech. but this is, when the legislature votes, and exercise of power. it is governmental authority delegated to that person by his constituents. there is a certain amount of sense to that. that may be right. but kennedy and toledo -- and alito have concurrences that are interesting and thought- provoking. it is how close the idea of voting is to expression. justice alito said that if we
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held a straw poll, nobody would the but oinary people casting a vote in a straw poll is the way the express their opinion on a matter. he says so also with legislators. i am very interested in the application of constitutional history to constitutional cases. i cannot help but note that the speech and debate clause of the united states constitution clearly applies to voting. the speech or debate clause -- did our farmers miss something that says now that voting is n speak at all? it is also interestinghat the freedom of speech, the phrase "the freedom of speech," in the pre-independence british constitution meant -- the ly thing it meant was the right of members of parliament to vote
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and advocate for particular measures in parliament. that is wt freedom of speech was all about. it is interesting that the very thing that was the core of the freedom of speech under british constitutionalism is not freedom of speech at all. and yet there is also a longstandingradition of accusal rules. -- recusal rules. it seemslmost inconceivable that they would be unconstitutional. alito and kennedy offered different ways of looking at. alito said it is speech but these are proper restrictions on speech. we would then enter into a conversation about how narrowly tailored the rules are, and so forth, and not class them as not speech. justice kennedy concurs, but he
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says this presents an important applied challenge rather than a facial challenge. he calls attention to the fact that i do think is quite troubling, the the line drawing out what matters and a legislator has an interest in are going to be very difficult. i was struck in our discussion of citizens united with justice kennedy,'s statement in the earlier case that ingratiation and access are not corruption. ingratiation seems to be exactly the interest for which this nevada legislature was recused, because it is his campaign manager who has a claim on his affections and loyalty. that is what this is about. i think kennedy is being consistent in being worried about this in both context.
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>> will you take the question? heather? >> what is interesting is the way it fits into the long- running court argument about this question, where both have expressed dimensions. the kennedy/scalia divide it goes very far back with protest votes. kennedy, the first amendment romantic, sees expressive dimensions to it. it gets the court tangled up. here i think scully it is consistent. but i do not think the rest of the court has figured it out, these controversies over disclosing people who give money to initiatives. there was a recent case involving s in the referendum, whether that was a public act that could be disclosed or sething more like a boat that had to be kept quiet. on the way to the court right
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now is the case involving prop. 8. people who give money on the same-sex marriage question in califoia were confrond by gay-rights advocates for wha they did. some of their stores have been boycotted. people have been fired on these grounds. the question is what are you doing when you are giving money to prop 8. are you a legislature because it is your vote and is a powerful moment, it is an exercise of power? or is it something more private and expressive? the court has not come down with the position. the argument keeps popping up, but they have never pin down what they think of it. >> i think a big worry about the nevada at the commission's case is that the majority is inadvertently taking sides on a classic issue of political theory. they do not even seem to realize they are doing so. let me read you two crucial
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sentences. the legislature that casts his vote is a trustee for his constituents, not the prerogative of personal power. voting by a legislator is different than voting from a citizen. a voter's franchise is a personal right. you see why a majority has to say that. if voters are trustees for someone else, they would be subject to the same logic in their vote would not count as protected speech either. but that is a classic view in political theory, articulated by john stuart mill most famously. the vote for citizens is not like a piece of private property. it is a function you exercise as a trustee for the rest of the citizen body. justice scalia assumes a way that line of argument in a way that i think would require a lot more work to sustain. >> it is a question for mike.
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as you describe well, the court says a legislative vote is not speech. the court goes on to say that the legislator at issue does not have the right to ve and so it is permissive to ban the legislator from participating in a legislative session as a valid time, place, and manner restriction. speech during a session is speech. it is not a vote. my question is maybe that is right. i do not know who else has a right to speak ding the legislative session if they are not point to be voting. but it did in the court frivolously and seamlessly move from one conclusion to the next. i wonder if it is more complicated. >> i agree. it is one short paragraph in this opinionhat addresses the advocacy side of the recusal wall. i was not satisfied with the logic of this.
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there are people who have a right to advocate on the floor without voting. for example, representatives of territories do not vote in congress, but they do have a right to speak. there also are numerous other arrangements in city councils, for example, where there is often a time when citizens have the right to speak to the council, and so forth. i am not really sure where the court comes off -- exactly what the real logic is extending the recusal provision to advocacy. i think it is troubling. >> would you like to move on to other first amendment cases? >> the key to victory for the first amendment side in the -- the key in the nevada case is the court deciding the citizen''
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speech. once you get the court to see this action as being speech, speech protection things kick in. this is even in cases where it is a matter of legitimate dispute whether what was at stake is speech. here in sorrel versus imf health, there is an interesting case. this case involves information that pharmacies get through government-mandated procedures when doctors send in procedures. the information isept so the pharmacies know what kind of drugs individual doctors are prescribing. this information can be used for health specialists to be studying issues of an old
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prescription, and for help economists to consider such things as the use of generic drugs. it can be used for a variety of purposes. but state law in several states forbid a pharmacist from selling disinformation to drug companies. the reason drug companies want this information is that they send their representatives to do what is called the killing, which is meeting with doctors -- what is called detailing, which is meeting with doctors to suggest they subscribe certain drugs. if a drug company knows what drugs a doctor is declined -- is inclined to describe, that enables them to target this marketing more effectively. i thing it is exactly what goes on on the internet when the
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internet tracks your purchases and mysteriously at start appearing on web pages that are targeted directly to you. some people on the internet think this is a good thing. i like it. it means advertising is something that is going to be of use to me. but some people do not like it. they think it is either an interference with their privacy or for some other reason objectionable. this is effectively a non- internet version of the same thing. two courts of appeals split on this. one court of appeal said this use of the doctor-specific information is no more freedom of speech -- this is just regulating a commodity.
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this information being sold is a commodity, the court said, just like turkey. regulating it is a matter of regulating a business. the supreme court took the opposite view. it took the view that it is speech because this is information and the purveying of information, even for sale, is a form of speech. it does not matter that there is a profit motive. the lot of information for sale is out of the profit motive. the new york times, for example, gives us information every day not out of the goodness of its heart but because they are in the profit-making business of selling newspapers. so also authors and bookstores. a great deal of speech is generated in the for-profit
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making purposes. the court then notes there is a discrimination in the law about which speakers and which subjects this information can be used for. it can be used by researchers foeducational and scientific purposes and public health purposes and so forth. it cannot be used by drug companies from marketing. the court said that this kind of speaker discrimination and subject matter discrimination with respect to speech is subject to tighten scrutiny. in this case, because it is commercial, the court says they do not have to decide whether it is strict scrutiny or commercial speech intermediate scrutiny. either way, the government has to establish that it has a substantial interest in the regulation and that is being
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served in an appropriately narrowly tailored way. i think this is a rather progressive free speech case. it again shows how important it is to get within that free speech b. it is interesting to compare this case with the nevada ethics case. the nevada ethics case, and a legislator voting and advocating for legislation, not speech. hear, selling da mining about a government-regulated -- information generated as a result of government regulations, that is speech. that accounts for the difference in the questions. one wonders whether there is not some tension in the propensity of the court to see what is and is not speech. to throw in one further example from last term, and the court
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found a law school relious group's insistence that those who conduct their bible studies actually believe in the bible, that is believed in their own religious views -- that was described as the majority -- by the majority as conduct rather than speech and therefore could be suppressed on the basis of a regulation that is merely reonable and not viewpoint discriminatory. defining the sort of speech, the speech-related tax, a speech or conduct is outcome determinative, and not necessarily intuitive. >> when you think about this it post-1937, there is a general assumption that courts are not meant to second-guess legislators on social and
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economic isss. are the commercial speech cases starting back in the 70's and now including sorrell -- are they narrowing that position and displacing that generalization with the notion that if you can characterize it as speech it becomes something appropriate for judicial review? is this another addition to that line of cases? >> i think it is. just as briar -- just as brier - justice bryer has an interesting descent. he said it is business and should be treated as ordinary commercial regulation. there is an earlier case involving advertising of food products in which the court did just treat the matter as one of
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economic regulation. to me, economic or not economic is not the line the court is using. i think it haso do with what rights are protected by the constitution and which are not. much of the problem with the lord mayor area -- of the law firm -- of the loughner area is that there is no general economic freedom protected. there is no general what freedom to engage in contracts that you want to. instead, what i think the court has come to say with the exception of some of the very controversial substitute due process cases is we are going to protect what is the constitution and are not going to protect the stuff that is not
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in the constitution. there is a line in sorrel that supports this. i think it is a response, and implicit response to justice breyer. and i think i can quote it. he says the constitution does not embody herbert spencer's social ethics. a famous line from the justice holmes. and he says, "but it does have a first amendment. i think it can lead the's point is that the first amendment protect speech. this is speech. >> there was another case on the docket this term, a first amendment case. is that another example of defining in and finding out?
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you had the court concerned they might open the floodgate to retaliations. it is being seen as first amendment issues. that seemed a little like an example of the nevada case, an exception to the general tack with the first amendment. they seem not to want to bring that conduct within the scope of the first amendment. >> it is conceptually one of the most interesting cases of e term. this was brought under the petition clause. there are precious few supreme court cases ever under the petition cause. this is a case in which by all rights, everyone agrees the plaintiff would have lost with the free speech clause. the question is whether the petition cause provides a separate and independent protection. this is the public employee. is the chief of police. he files various labor
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grievances and also some more political grievances against the city, and the city council fires him as a result. unr longstanding, although i think rather odd and unpersuasive, but nonetheless longstanding, supreme court doctrine, public employees cannot be fired in retaliation for their speech. but it is only protected if it is on a matter of public concern. you might ao want to think about snyder against phes. if his liver -- labor grievances are his private concern, it is no protected under the free- speech clause at all. the chief of police does not go under the free-speech clause.
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instead, he sues under the petition clause. the significant point about the petition cau is we kno historically that petitions are frequently, maybe even quintessentially, on matters of private as well as public concern. you can submit petitions on matters of public concern, but the vast majority of petitions that would he been known to the farmers of the first amendment or matters of private concern. if you had a problem with the government, you send in a petition asking for it to be dealt with. his point is that the first amendment has different protections. the free-speech clause is not the only thing there. the is the speech clause. there is protection. there is assembly. there is free exercise of the establishment related t religion. he says if you look at the purposes of the speh clause it
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may be logical to give grte protection for matters of public concern, but if you are looking at the petition cause it does not have within it and the preference or greater importance for public rather than private. if anything, it has the other way. the majority opinion written by justice kennedy essentially reduces the petition close to the speech clause, applies the same distinction to the petition cause, and says he loses. justice scalia wrote a fantastic descent -- dissent, my candidate for best of the term. heakes the majority to task for failure recognize that these are for different causes to the first amendment. each stands on its own. i said it is a idss -- dissent.
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it is actually a concurrence. he says the key distinction and the reason the chief of police should lose is that when you are petitioning the government in its sovereign capacity because applies. but when you are petitioning your employer in the capacity of being your employer, that is not a petition covered by the first amendment. so it is a distinction between public concern and private concern, but whether the employer is the recipient of the petition acting in a government capacity or employment capacity. the strikes and as a much more consistent with the histo and purpose of these clauses that i do not understand why did not attract more -- justice thomas agreed with that. i do not know why it did not attract more votes. what is this important? it is part of a trend over the
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past several years of collapse and all the various parts of the first amendment into freedom of speech. i think this was a serious mistake. last year in the christian legal society case, this religious group or referred to brought freedom of association, the modern way we used to speak of what the framers spoke of as assembly. they have a separate claim. we have a right to constitute our group with our leaders being people who agree with our beliefs. that is an essential part of freedom of association. and we can not be penalized by that -- for that by being excluded from otherwise generally available public benefits like being able to meet in classrooms at a public law school. the supreme court last year said, essentially, that it would be anomalous to give the group
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greater rights under the freedom of association than they would have an entitled to under freedom of speech. that is the entirety of the logic, that it would be anomalous. i think on the contrary it is not at all anomalous to say that the different provisions of the freedom of the first amendment are protecting different aspects of communication, and in slightly different ways. what is anomalous is for the court to bomb them altogether -- glom them all together and say we have a free-speech clause and no other cause provides additional protections. we would be able to say the same thingf press, which has been reduced to freedom of speech. association reduced to freedom of speech. the addition largely reduced to freedom of speech. this seems to me to be an unwarranted development.
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>> thank you. you see mike is right. it was a big first amendment term. time is running. we want to be sure to give ample time to federalism and the important cases this term. >> by my count, there were five pre-emption cases this past term. i am not going to try to subject to to my exegesis on each of them. instead, i will try to treat them illicitly and identify three questions that i think are woh puzzling over about these pre-emption cases. they are not perhaps the most exciting of the term, but i think several are important. the first question is why so many pre-emption cases not just this term but term after term in general. second, it is the robert court fairly described as the pro- preemption court backs if that characterization is accurate?
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-- a fairly described as a pro pre-emption court? if it is characterized that way, is there any reason to be concerned about this from a federalism perspective? >> first, why are there so many pre-emption cases? i am going to briefly summarize the subject mter of these cases. i think that will go a long way towards eliminating why we have so many of them. the chamber of commerce against ". the issue was whether an arizona law imposing licensing sanctions on employers is pre- empted byederal immigration law. at mobility against conception. the question is whether the federal arbitration act provide the to the rule of california contract law, the self discovery law, which deemed class action waivers unenforceable when
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certain criteria are met. [unintelligible] against wyatt concerned federal vaccine law and whether it prevend defect claims against vaccine manufacturers. williamson against mazda motor questioned whether safety standards preempted state tort suits against ottoman the factors. finally, a court case concerned federal drug regulations applicable to the generic drug manufacturers and whether they preempt state law tort claims alleging a failure to look -- a failure to warn. what did these tell us about why there are some of the pre- emption cases? they tell us pre-emption cases are sites of ongoing disagreement about multiple issues simultanesly. pre-emption cases foremost are cases about federalism, about federal-state relations. people care about about this.
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that often end of disagreements over the government regulation of business. in the roberts court, people care about about government regulation of business. when they care enough, then make a federal case out of it pre-emption cases also indicate conflicts over how certain social problems are best regulated -- through to an agency paradigm, a regulatory paradigm, or two judges and common-law decision making? finally, pre-emption cases often arise when states ke action with respect to hot-button issues of the day. for example, immigration reform. for all of these reasons, we have a lot of pre-emption cases. i do not think that is when to change. i want to add an additional reason or hythesis. that is because pre-emption
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cases are hard. they are very hard. why are they very hard? because the touchstone is congressional intent. congress often does the rest of us no favors as we try to figure out what congress had in mind when they wrote a law. do we look at the structure of the statute? do we look more broadly at statutory context, including history and a broader congressional purposes? do we look at all of them, or only some of them? i think the fact that pre- emption cases are difficult because pre-emption -- because congressional intent is so hard to discern is that judges will make judgment calls. those are contempble. the will and that this agreement. the court will be moved to disappear -- move to intervene and make a judgment call. how does one go about divining
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congressional intent? that is not easy to answer in the abstract and across the board. the same justices do with the question of congressional intent differently in different cases. i think two of the most important cases of the term illustrate this nicely -- waiting and conception. in writing, - whiting, the court said this arizona law which imposed sanctions on those who hire illegal immigrants, was not prohibited -- was not pre- emption of federal immigration law. in the majority opinion, chief justice rehnquist emphasized the preemption provision of the statute, specifically the
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reference to licensing and similar laws. it argued that arizona had enacted a licensing statute which fell with the scope of the savings claus in dissent, justice prior -- breyer made arguments for why congress could not have had in mind what the court aributive because the savings clause would blow up the preemption provision and undermine a statute more broadly, congress's concern about protecting unauthorized workers from race or national origin discrimination. that is a case in which you have one court arguing language structure and the other arguing statutory context. contrast that with conception. the court argued it was a law that the in class-action
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unenforceable. the california rule stood as an obstacle to the execution of the full purposes and objectives of congress. you have the same set, -- split, essentiay. you have keyed justice roberts, scalia, kennedy, and coleco in the majority. and you have the others i dissent. in this case, justice scalia does not emphasize the language of the federal arbitration act. instead, he emphasizes what he called the principal purpose, which he described as insuring enforcement of arbitration agreements. the discretion allows for a streamlined procedures pertaining to the type of dispute.
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arbitration interfered with this when it was compelled by state law. in contrast, justice breyer emphasized the plan language of the statute, and specifically he argued that what california had done fell directly within the spoke -- the scope of the act exception permitting courts to refuse to arbitrate agreements for the revocation of any contract. he was treating class arbitration waivers the way it treats the other contractual waiters found to be unconscionable you have the same justices trying to define a congressional attempt -- intent in different ways depending on the case. that suggests toe divining congressional intent is difficult. so that is why so many cases. the second question is whether it is fair to characterize
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roberts as a pro-preemption court. it is one term with only five cases. you look at the numbers, the boat is 3-2. the court found preemion in three cases and did not in two. that is as close to 50/50 as you can get with an odd number of cases. however, not every case is worth the same amount as any other case. i think white tin -- whiting is an important case. but i think concepcion is one that is important that did not stand against pre-emption. this presumption has been around for many decades and is designed as a protector of federalist values. that is federal law can reasonably read not -- if federal law can reasonably be read not to preempt state law,
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it will be read that way. i also think [unintelligible] is an important decision in which the court splits with the chief justice, scalia, kennedy, and alito on one side, made it hard to make a case of impossibility preemption. they invoke the doctrine to say that federal law immunizes drug manufacturers from state law claims because genic manufacturers cannot change the labels on their own, and might brand name manufacturers. generic manufacturers have to petition the fda. you have justice sotomayor saying we have never found it so easy to make out a case of
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preemption. the majority, she wrote, presumed the drug manufacturer was not obligated under federal law to petition to change the label if the manufacturer was chris with the label did not provide adequate warning. she would have found at the very least the manufacturer was obliged to bring such a petition to the fda. the court found otherwise and again did not mention the presumption against pre-emption. in a very significant development, a plurality of the court, in a par justice kennedy did not join, appeared to reject the presumption against pre- emption. this is a major development. it is four justices, including the chief. it is based on a novel, texture list, and original interpretation of the supremacy
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clause that arose in a law review article by caleb nelson of the university of virginia. it was left to justice sotomayor to reject the move toward a more original list understanding of the supremacy clause. i think it is an important sense in which the roberts court is a pro-preemption court. but the jury is still out. justice kennedy did not join thisart of the agreeme, but did join opinions in which a presumption against pre-emption makes no appearance. the last question i want to talk about briefly is why this matters. if this is a pro-preemption court, is there cause for concern from a federalist perspective? i think the answer is yes. i am relying on the scholarship of my colleagues at duke, ernie young. he says if you care about federalism you ought to care about preemption.
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we live in a world of very broad congressional power when it comes to the commerc clause under article 1, section 8. if you look at these cases together, there is significant congressional power. i do not see that changing soon. but pre-emption cases have been all the time. they are the ways in which federalism isorked out day to day in our system. the more preemption this -- the court finds, the less there is left for states to do. the less you give them options in the federal system -- you ought to care about the presumption decisions in this court. >> i agree with most of that, but the very end up so much. i think it is a mistake to talk about federalism with a capital f. as if every issue of divisi of power between the national government and the states is driven by a single federal laws
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and principles. you are either for the states or for the federal government. what we have is a very complicated allocation of authority to four different areas between states and federal government. there should be no consistency across each of these areas, because the constitution itself gives congress power or certain things and not so much over others. i would say, looking at the pre- emption cases, that three of them have to do with product liability, corporations to distribute products on a nationwide market, where congress has set up a comprehensive regulatory scheme to violate safety and warnings and so forth. i would have thought that cases of this sort were at the heart of the kind of power the framers did give congress -- that one of the key things about the essence of the commee clause was to
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create a common market within the united states, so the goods and services in the national market can flow freely froone state to the other rather than be balnized by different concerns. my mind, to be pro-preemption with respect to product liability, where there is a comprehensive federal regulatory scheme, makes a great deal of sense. i am much less persuaded in a case like concepcion, where it seems to me that the question of enforceability of particular contracts between employers and employees is a traditionally state function. i am not saying it is unconstitutional for congress to get into that. but there is no obvious national uniformity and no obvious need
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because of the common market concern. i would say that if we were interested in a more textured idea of federalism that there should be less of a presumption in favor of preemption there than in the others. i do not like the idea that we should treat preemption and federalism as one size fits all. i think different categories of these things are different. i would say the whiting case falls within another area of overwhelmingly federal interest. immigration is something which is a national concern. i think that case is probably rightly decided, but only because congress itself said that states may use licensing laws to achieve their own local regulatory purposes, not because of any kind of the presumption in favor of states are against
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pre-emption. >> i think i agree with much of what might says in general, although i think i disree with some of the specifics. i think you are exactly rht that it is not just about being for the states are against them. i think you need a nuanced understanding of what kinds of problems are for the federal government and what problems are for the state. i think constitutional statutory federalism overlaps in that way. i think where i disagree with the specifics is the way you characterize the fda regulations in some of these short liability cases as a comprehensive federal scheme. if it is comprehensible -- and -- is comprehensive, the federal government is regulating it and there is not much left to the states to do. i do not think that reflects reality. everyone knows the fda does not
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have the resources and personnel to monitor brand name and generic drug manufacturers. the fda relies on these manufacturers to bring it to fda attention if their levels are not up to speed. the court assum in its decision that the generic manufacturers or under a state law obligation to petition the fda to change the labels. nonetheless, the court said the federal law that gives them an obligation to bring it to the fda pre-empts state law of tort liability claims. i think my disagreement in the details is about how comprehensive the feral scheme is here. i think it is not just a presumption against pre-emption in general. it is a presumption where the states have long regulated. some of the court liability cases at issue are areas in which states have long regulated and the federal
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government has not regulated as comprehensively as some of your comments would suggest. >> we are almost out of time, but i hate to wrap things up without saying something about the walmart case. >> walmart was a gigantic class action involving 1.5 million plaintiffs. women at walmart brought a claim that said in essence that the walmart policy of giving a great deal of discretion to lower level managers and a highly decentralized system of promotion ended up hurti women. th these decisions were made in a discriminatory fashion and therefore the entire class of women ought to be able to bring a suit. i think there are two key pieces of the decision. one has to do with procedure and one with discrimination. the procedure rule is simple. for those of you back in the days of rule 23, under rule 23
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be to and, in order to bring a class action you typically bring a claim. for example, a housing desegregation plan. everyone in the class is going to be affected by the same order. the plaintiffs brought their claim under rule 23 b2 even though they were seeking individual back pay awards. this is the back pay awards did not predominate over the common claim. the court unanimously held that this was inappropriate. those back pay claims were more importantly brought under 23 b3, which allows f notice and opt out. the more important case is employment discrimination. this is where the court divided. justice scalia said for the majority there was no common claim among the plaintiffs of discrimination. but it was not enough simply to
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sayhe was a common policy of giving our level managers discretion. justice ginsburg said that was sufficient to satisfy the requirements of rule 23a, the commonality requirement. as often happens, what is really movi the justices of the court are completely different pictures of what scrimination is. justice scalidescribes a more conventional account, potential actors intentionally discrediting women. he cannot imagine that 1.5 million women are sharing the same crime. he imagines there are better and worse actors, some people who do not discriminate and others to discriminate quite a bit. justice ginsberg says the discrimination we are talking about is subconscious. this i pre-thought. it is the way we think about women in the workplace.
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it is the fact that we are less likely to see women being successful managers. that in fact any discretionary decision. justice ginsburg find it easy to imagine this constituted discrimination that would affect all women. she cites a study of orchestras. when orchestras began to use blind triads, where you could not see the gender of the person behind it, the number of women in orchestras increase dramatically. why was that? it is not as though the people before that thought they did not like women. the study suggests that what happened was that people used to think men were better musicians. so when they heard a man play thought his music was better than when they heard a woman play. when you blinded them to the gender of the person behind the screen, you increase the number of women. that is what jusce ginsber thinks is going on. i will say by way of conclusion that social science doesack
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justice ginsburg. there is a lot of evidence that we all have these pre-cognitive ases. before we think abo what we are going to do, we have these ways of clsifying people. they do not disappear in the workplace. if you think about what the court can do, you might ask this question. harcourt's well-suited to dealing with structural inequalities rather than bad actors? our courts well suited to dealing with questions of implicit motivation, pre-card to decisions that affect everyone? or is it possible that in the path to equality the courts can only lead us so far and the lawsuit may not be the right way to correct workplace inequality going forward? >> thank you. there are more cases we could have talked about, but i hope you will agree it is better to do a thorough job of the work cases rather than superficial coverage of a lot of cases. there is more to read. the opinions are there.
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i am sure if time permits after we conclude that if you have a question or two for the panelists the mike linder. we have not included a question and answer session. i apologize, but you can understand why. it has been difficult to do at all. you have been a wonderful audience. thank you for being here this rning. chief justice, i turn it back over to you. [applause] >> we are now at the conclusion of the program. i have a f things to make. the first is to some phelps and his staff. things have gone smoothly. i think we owe them a round of applause. [applause] things have gone smoothly, particularly when you consider the number of people here. people think it must be easy to do. it has involved a lot of work. we are appreciative. judge keenan and all the folks
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from west virginia, thank you for planning the great program. it has done well and been well- received. i thineverything has been great. i declare this the best caucus we have ever had. we know conclude the 77 judicial caucus for the fourth circuit. have a safe trip home. i think you. -- thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]
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>> good morning. good morning. is this is so great to be here in iowa this morning, and even better to be here in waterloo where i was born. [applause] i think it is entirely fitting that we are here today act the site that was once the waterloo women's club, so thank you for being here. my name is michele bachmann. i stand here in the midst of many friends and many family members to announce formally my candidacy for president of the united states. [cheers and applause]
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i do so, because i am is so profoundly grateful for the blessings that i have received, both from god and from this great country, and not because of the position of this office, but because i am determined that every american deserves these blessings, and that together, once again we can secure the promise of the future for america. because i want to bring of voice, your voice, to the white house, just as i brought your voice to the halls of the united states congress to secure the promise of the future, not only for our generation, but for the generations yet to come. i often say that everything i need to know, i learned in iowa. [applause]
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i learned those lessons at hawthorne elementary, at a valley park elementary, and at my home, which is a very short distance from where we're standing today. because this is where my iowa routes were firmly planted. and it is these iowa roots my faith in god that guide me today. i am is descended of generations of violence. and i know what it means to be from iowa. -- i am a descendant of generations of iowans. the values out to make iowa, and my mother called it the breadbasket of the world. and those values are the best of all of us put together, which we must recapture to secure that promise of the future. waterloo was very different five decades ago when i was here. that elementary school building was much younger then, and i have to admit, so was i. five decades ago. five decades ago when i went to
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those elementary schools, the halls were literally teeming with young people running up and down the halls, parents who had dreams for their children and for their future, a future with promise, and parents who wanted it filled with even more opportunities than they and my own parents had known. five decades ago, in america, we had less depth than we have today. we had $300 billion or less in debt. a gallon of gasoline was 31 cents, and owning a home was part of the american dream. today, that debt stands at over $14 trillion. i gallon of gas is outrageously expensive. and unfortunately, millions of too many americans know what it is to have a home that is fine for closure. and so those drains our distant for many americans. times have changed here in waterloo, but the people have
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not. the people still have the same spirit in waterloo that iowans have always come to exemplify. we work hard. we do not spend more money than what we take in, and we expect to pass on a better life to our children. but the problem is, our government keeps getting bigger, and it makes it tougher for all of us to pass on our values and our lives to our children, and it has cost jobs to go overseas. and they're spending more of our money than we want them to, and that means that we get to keep less. so do not mistake my happy memories of growing up here in waterloo, iowa as pining for the past. i recognize, it is impossible to turn the clock back and go back to a different day. instead, i want this moment to serve as a reminder of the best of who we are as a nation. and of what our values are and what it is to make america
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great, to recapture the the promise of the future. i want my candidacy for the presidency of the united states to stand for a moment when we, the people, stand once again for the independence from a government that has gotten too big and spends too much and has taken away too much of our liberties. [cheers and applause] as americans, we have always confronted challenges, and our history is one that has been marked both by struggles as well as by prosperity. my younger days, like so many americans, were difficult, especially during the years of my mother's struggles after a divorce, but we made our own way. we depended on our neighbors. we depended on ourselves. it was not the government that we depended on. because we trust in god, in our neighbors, and not in
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government. americans still have that same spirit. [cheers and applause] but government keeps trying to erase that spirit, because government thinks it knows better. government thinks it knows better how to spend our money. government thinks they know how to make a better life for us. they think they create jobs. they even think they can make as healthier. but that is not the case. we have to recapture the founders' vision of a constitutionally conservative government if we are to secure the promise for the future. i am also here because waterloo laid the roots of my own life in politics. i never thought i would be in public life. i grew up in iowa. my grandparents are buried here. i remember how sad i was the day my mother told me we were going to leave ottawa when i was in
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the sixth great, because this part of iowa was all i had ever known. i remember telling my mother that we cannot possibly move to minnesota, because we had not even bid to the state capitol in in the morning yet. [laughter] when we lived here, i grew up a democrat. my first involvement in politics was working for jimmy carter's election in 1976. but when i saw the direction that jimmy carter to our country, how big spending his liberal majority group government and weakened our standing in the world, how the decreased our liberties, i became a republican. [cheers and applause] i remember the date distinctly when i stood in the kitchen of my grandmother's home on at lafayette street here in waterloo. i listened to my dad, who was a democrat, talked to my
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grandmother, who was a republican, and they were discussing lyndon johnson's great society program. it was my republican grandmother who gave an admonition to my father. she said to him, david, it will not be you who pays for all of these programs for the great society. it will be davy and michele, my older brother and myself, and now my grandmother's prediction has come true. i firmly believe that neither my democrat father, nor my republican grandmother, would have ever condoned the spending and the debt that america is in during today. i had not planned on getting into politics. i loved law. i went to law school. then i went on and became a tax lawyer. together with my husband, we created a successful small business and jobs for people in our area. and when i saw the problems in our local school district and how academic excellence was
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being eroded by federal government interference with the local schools, i decided i needed to do more than just complain. i decided that it was one of those i know of values that has been instilled in me, which was to always leave whenever i found as better than when i found it. so i decided to seek public office to make our local school district better. i did not seek public office for power or for fortune, but simply to make life better in our community and our public schools better for our children. and now i seek the presidency, not for vanity, but because america is at a crucial moment. and i believe that we must make a bold choice if we are to secure the promise of our future. because we simply cannot kick the can of our problems down the road. because our problems, quite frankly, are today. our problems are not tomorrow. we cannot continue to rack up
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debt and put it on the backs of the next generation. we cannot afford the unconstitutional health care law that will cost us too much and delivered so little. [applause] we cannot afford four more years of failed leadership here at home and abroad. we cannot afford -- [applause] we cannot afford four more years of millions of americans who are out of work and who are not making enough in wages to support a family. we cannot afford four more years of a housing crisis where we continually watched the value of our homes be devalued in front of our eyes, and we literally see it become impossible for people to purchase a home. we cannot afford four more years
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of a foreign policy with a president who leads from behind and who does not stand up for our friends, like israel. [cheers and applause] and who too often fails to stand against our enemies. we cannot afford four more years of barack obama. [cheers and applause] as a constitutional conservative, i believe in the founding fathers' vision of a limited government, the trust in and receive the and the potential of you, the american people. i do not believe these solutions to our problems are washington- century. i believe that there with every american-centric. i believe the most basic, most powerful unit of all, is the
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family, and the family must be preserved. [applause] we have begun another campaign season, and it almost seems like the last one and only recently ended. but through the rancor of the campaign, let us always remember, there is always so much more that unites us as a nation that divides us. because our problems do not have an identity of party. they are problems that were created by both parties. i think that americans agree. our country is in peril today, and we have to act with urgency in order to save it. because americans are not interested in affiliation. they are interested in absolutions and leadership that will tell them the truth. the truth is, all of us, we, the american people, are the solution, not our government.
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because this issue is about big issues. it is not about petty wines. when all is said and done, we cannot be about big government as usual. because then america will lose, quite frankly. and in washington, u.s. of bringing a voice to the halls of congress that has been missing for a very long time. it is your voice. it is the voice of the people that i love and the people that i learned so much from as a young girl growing up here in waterloo. it is the voice of reasonable, fair minded people, who love this country, who are patriotic, who see the united states as the indispensable nation of this world. [applause] and my voice is one that is part of a much larger movement to take back our country. and i want to take that voice to the white house. it is the voice of
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constitutional conservatives who want government to do its job and not our job, and what our government to live within its means, not our means, and certainly not our children's means. i am here today in waterloo, iowa to announce -- we can win in 2012, and we will win. [cheers and applause] it may have started small, but our voice is growing louder. our voice is growing stronger, and it is made up of americans from all walks of life, like a three-legged stool. it is made up of strength conservatives, and i am one of those. it is made up of fiscal conservatives, and i am one of those. it is made up of social conservatives, and i am one of those. [applause] and it is made up of the tea party movement, and i am one of those. [cheers and applause]
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the liberals, and to be clear, i am not one of those, want you to believe that the tea party movement is just a white bring french of the republican party. but i am here to tell you, nothing -- is just a fringe of the republican party. that is not the truth. it is disaffected democrats, independents, people who have never been political, and it is made up of libertarians and republicans. we are people who simply want to get america back on the right track again. [cheers and applause] we're practical people. we know our country can work. we just want it to work again. it is a very powerful coalition that the left fears, and they should. because, make no mistake about it, barack obama will be a one-
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term president. [applause] in a february 2009, president obama was very confident that his economic policies would turn the country around within a year. he said, "a year from now, i think people are going to see that we're starting to make some progress. if i do not have this done in three years, then there is going to be a one-term proposition." well, mr. president, your policies have not worked. spending our way out of the recession has not worked. and so, mr. president, we take you at your word. [applause] waterloo holds a very special place for me, but it also holds
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a very special place for our nation. because water will still since its finest young men and women off to fight for america and to protect our freedoms that allow us to gather here together. i honor my father, who served on the u.s. air force. i honor my stepfather, who served in the u.s. army. i honor my stepbrothers, who served and retired from the united states navy. we will never forget the sacrifices of our brave men and women in our military. it is part of our past that we remember -- [cheers and applause] to secure the future of the promise of america. and is thus values that make our country unique and make us the most powerful force for good on this planet. i believe we are the indispensable nation, and that
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is the spirit that separates us from those who would give their own life for others from those who sacrificed others, like terrorists, who use little children's lives as human shields. but i think perhaps the valor of our american fighting heroes was never captured better than in the sacrifice made by the sullivan brothers from right here in waterloo. my father told my three brothers and i, when we were little children, this story of the sullivan family, who were like so many other families in the great depression. they were just fortunate to get by. and most of the family worked here in waterloo at the meatpacking plants. when a close friend of the sullivan family died at pearl harbor, the solo event five brothers and listed in the u.s. navy. but under the condition that they would be allowed to serve together. one of the brothers wrote -- we will make a team together but cannot be beat. born and raised here in waterloo, the five sullivan
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brothers have always stuck together. however, one cold morning after a long night of intense battles, a japanese torpedo struck the ship upon which they served. it killed most of the crew, and it launched the rest into the water. the oldest of the sullivan brothers was named george. george tirelessly searched the waters for his brothers, but there were not to be found. george survived the attack. but later, george perished at sea. of the 697 brave man of that ship, only 10 survived that attack. the rest gave their lives for their country. and in spite of the intense pain of losing five sons all at once, the parents of the sullivans' became an inspiration to the rest of the nation. in the midst of their grief, they spoke to millions of americans on behalf of the war
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effort. so to honor the sullivans, two ships were named for them. the motto of the last ship -- we stick together. [applause] theirs was a demonstration of the holy scripture which sat, greater love hath no man than this but that he laid down his own life for his friend. that is the kind of love we americans have for this great country. we americans stick together. we triumphed together. in the words of daniel webster, who said -- one cause, one country, one heart. that is the kind of commitment it will take us to face these great challenges that are before us, but i believe that the great people of this country are longing for a president who will listen to them and who will lead from the front and not from behind.
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[applause] i am michele bachmann. i am running for the president of the united states. together, we can do this. [applause] together, we can rein in the corruption and the waste that has become washington, and instead, we can leave behind a better future for the next generation of americans. together, we can make a better america if we stick together. together, we can bring the promise of the future. together, we can. together, we will. god bless you, and god bless the united states of america. thank you, everyone. thank you. thank you, iowa. thank you, america. together, we will do this. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]
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♪ ♪ >> well, she was an american girl raised on promises she couldn't help thinking that there was a little more to life somewhere else after all it was a great big world with lots of places to run to and if she had to die trying she had one little promise she was going to keep oh yeah all right take it easy baby
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make it last all night she was an american girl ♪ it was kind of cold that night she still owed alone on a balcony yes, she could hear the cars roll by out on 441 like waves crashing on the beach and for one desperate moment there he crept back in her memory got its so painful when something that's so close is still so far out of reach oh yeah all right take it easy baby make it last all night she was an american girl ♪
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>> let's win this thing. >> amen, let's do it this time. it is going to happen. thank you. thank you so much. hello there. thank you so much. ♪
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>> on road to the white house this week, we spoke with another presidential candidate, ron paul. this is 45 minutes. the the >> what have you learned? >> we do not have a real good system inviting new competition like we demand from other people around the world. i cannot think the democratic process is all what it is made out to be in a country.
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i learned that we are much further along in defending our constitution, all of the things i've been talking about. it is taking a long time to change people's attitudes and the approaches to government. i think they made tremendous progress. we are talking about bringing troops home and not expanding the war. i think that is delightful. we are finally seriously talking about what we are going to do about the deficit. i think the country has moved a lot in the direction of saying, maybe the constitution is not that bad. if we follow the constitution,
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however government would be much smaller. >> we have heard so often from other reviewers -- our viewers -- why is it so difficult for third parties to break through? what would they think about it today? >> the problem with someone that has an average amount of money, they are generally excluded. even though i got in -- on enough ballots, i could not win. it is a perception. the media helps keep the third- party an alternative party is out of the discussion. the two parties run all states
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that lost. bias about getting on the ballot. in some states, it is much easier than others. in some states you may only need 50 signatures whereas on others you may need 20,000. new york is a good state, because they encourage people to file as two parties. you can be democrat in liberal. fed is a little credibility to that. it helps with these alternative courses. >> are you in this race to win a nomination or send a message?
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>> i am in it to win it. when i ran originally, i thought, how can i convince a whole congressional district of the problems we face when they are less interested back in the 1970's? i was surprised i did so well. arguing the case for strictly limited government. the goal is to win the election. >> walk us through the 1960's as she graduated from college, go to medical school, and ended up in texas. >> i went medical school. i started my residency at henry ford hospital in detroit. i received a draft notice.
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i could be a doctor if i volunteered. i always kid and and say i immediately volunteered. i've got to practice medicine. became a flight surgeon. stay in longer than i had thought. my obligation was two years. with reserve duty, i stayed five years. i finished my medical training at the university of pittsburgh. my wife liked the warmer climates. we moved a medical practice to texas. >> why did you study to become a doctor? >> for many years, i wanted to
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be, but would not admit it. you do not want to fail. of wanted to make sure i could do it. i just had respect for physicians. i thought it was really wonderful that you could do something wonderful such as delivering babies. it was wonderful, along with surgery. the whole thing is, there is one other element. i am old enough to remember the second world war and korea. one of my teachers had to go over there and was killed. war has a big impact on me. i figured i would probably get drafted some day. i would much rather care for
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people and be in the medical field rather than the infantry. it was in my nature that i became anti-war. i wanted to be a physician. it was not a coincidence that i end up delivering babies. >> what is the difference between being a doctor and a politician? >> i never thought much of the transition. it occurred through an interest i developed in the 1960's. there was a fascination in trying to understand economics. the extreme opposite of -- you
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need government to do this, regulate the money -- regulate, printing money. i became totally convinced that they were on the right track. when their prediction came true, and the monetary system broke down -- i remember the day precisely, because it was dramatic and ushered in a new age. i predicted it would lead to a lot of trouble. we start talking about economics to get it off of my chest. my wife was worried. you have a wonderful medical practice. i assure her that it was -- i was going to take this position.
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she predicted that he would be very successful, because people would want to hear the truth of the matters we are dealing with. that is how i got involved. it was a way to get things off of my chest. i was not teaching economics, but it worked out. a continued to practice medicine. i was doing some teaching for the first couple of years. i came back in 1997. i had a daughter studying at the university of texas in houston. after that, i got too busy. i am basically a physician that i sent ellicott involved in politics. >> what is your argument against the fed and what do you want to
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see changed? >> i think we should get rid of it. i am a critic, because it is economic planning. most conservatives understand -- that is all conservative. the central bank is a central economic planner. they want to maintain stunt -- stable prices and employment. but prices are not stable. they are incapable of knowing the best interest rates and but the money in -- money supply should be. everything they do depend the creation of money, which creates devaluation of the currency. they create the bubbles, the recession, and the depressions. there is waste involved.
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hamilton and jefferson fought over wanting a central bank. jefferson got rid of one. jackson got rid of the other. until 1913, we live without a central bank. devaluation of currency should be considered a crime. a dollar was defined as one 20th of an ounce of gold. today it is over $1,500. the currency has been devalued 98%. people lose on that. it is the way you teach people month. the the when you destroy the currency, you transfer wealth from one class to another.
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they had to pay higher prices for gasoline, but it does not hurt them. the person now has lost their job, because of the recession. now they are getting hit with higher costs of living. it is a terrible system. there is a mystical belief that if you print money, it is going to have a volume. it works for a while. borrow money, spend beyond our means, build an empire that we cannot afford. we know that medicare, medicaid, social security -- it is a consequence of understanding the monetary system. >> the bailout of the wall
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street banks say just from the abyss of the wall street collapse. what is your argument against the bailouts saving jobs in detroit? quite as they are right, but at whose expense? they saved depression and the suffering on wall street, but they needed to go bankrupt. the countries that went broke should go into bankruptcy. these banks making money off of a derivatives, the day have been bought out by the federal reserve. wall street, some of these corporations -- they never got hurt. they were saved.
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the car companies -- the labor funds -- those that invested in the company's lost everything. because the administration's design, they were always protected. it is always at the expense of the average person. the economy keeps getting weaker. they act like they are surprised. we got into this trouble by spending too much and borrowing too much. how can we get out of it by doing exactly the same? there are negative interest rates.
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they think that is the solution. it perpetuates the problem. that is why the predictions -- some economists said what you are doing is wrong. now we are going on four years in the economy is getting weaker. we are working on trying to compete with the depression of the 1930's. >> what is your current assessment of ben bernanke? >> from their viewpoint, if you are a money manager, he manages the money like all other central bunkers would. -- bankers would.
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thwe had high inflation and rats with paul volcker. he was one that was forced to restrain. his approach was different. i try very hard -- i criticize the system more than anything. they have a more manageable system. the flaw is that they trust the system. they are not capable of doing it. only the market knows what the interest rate should be. the banks benefit in trying to save the money. the market rate of a cd should be 7%. it is 1 or 2%. they get cheated. it is a very unfair system. no matter how well attended they are, they cannot manage it.
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>> should we go back to the gold standard? >> i do not use those words. much of what i have written about, i do not think we need it. the transition should be more gradual. i am not for closing the fed down as much as allow one competition, legalizing the competition and the currencies. to allow people to use gold and silver. i think there will be a currency in place. there were flaws in the gold standard in the 19th century. we can learn from it. i was like to go to a commodity standard going forward.
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>> how many books have you written? >> it depends on how you count them. there were a lot of pamphlets that i wrote. i would say about 5. >> take 1 or two from this book that you think are essential for the u.s.. >> personal liberty. i talk about that a lot. not repealing the fourth amendment and not allowing the patriot act out of insecurity to give up on a personal privacy. we talk a lot about that. to protect the liberties, you have to keep the government a small. one of the elements is a military operation went we are currently at war, government gets bigger. people are more likely to sacrifice their liberties. i talk about the monetary issue as well.
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i recognize our life and liberty, in a natural way, not from our a government. but we have to do to preserve that is reject any personal or governmental use of force. we cannot use force because we think we know how to make you behave better. or we should teach you how to raise your children. we should never use force. individuals and governments should not use force. we recognize that people cannot hurt other people. but the government can redistribute wealth, and it is supposed to be ok. the entitlement system becomes what people believe should be freedom. they have a right to have a
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freedom. no coercion. we do not use coercion to tell other countries what to do. that is the kind of thing we would like to stop. >> you do not like labels. how would you describe yourself? >> when people would bring that up -- i am a republican. conservative. very conservative in my social beliefs. i want to preserve the basic thrust of our constitution. the founders were very libertarian. the government it does not have much authority based on the way the constitution was written. founders' belief in free trade.
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that is very libertarian. i would say constitutional with is the word i would use, -- there are things i would write differently in the constitution. but you do take an oath to obey the constitution. if you want to change an issue, it is not by ignoring it for allowing the a executive branch to do it. the department of education -- no one ever said, where do you have this authority in the constitution? you do not. i call myself a strict constitutionalist. i would like to clarify some of
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the provisions in the constitution. people have overstepped their bounds and misinterpret much of what has been written in the document. >> abortion, what is your view? >> i am pro-wife. -- life. once the fetus is there, it is alive and it is illegal and has rights. when someone abort a fetus, it is,. biologically and legally, it is a life. to deliberately take that life is an act of aggression. i do not believe it is the role of the federal government to be involved. kinds of acts of violence. you have a first and second
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degree murder, homicide. there are four or five different categories. i do not advocate a federal approach for dealing with a very tough problem. that is the uniqueness and greatness of our country. sometimes states will do it differently. when the courts do it nationally and monolithic gray and apply it to all states like roe vs. wade, i object to that. they should not be dealing with that. texas had a law. they had the right to deal with it that way. new cannot strike one law and rewrite it for the entire country. the founders would be very bewildered with how we allow our courts to legislate as they do. >> have you ever had to counsel
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a woman who was thinking about having an abortion? >> many times. when i was in practice first, the situation came up. by the time i went back to congress, culturally, things had changed. it bewildered me. one when i would tell some women they were pregnant, they asked for an abortion like he would ask for a penicillin shot. what happens is after i went back in 1984, the ultrasound became more prevalent. it is a great medical instrument that i got. it serves a purpose to show a young woman what is there in the
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first or second or even third week. many have second thoughts. washe 1960's, bernard, who doing abortions he legally -- illegally, but then he got an ultrasound and became a pro- lifer. he could hear the heartbeat in seeking development at an early age. all of the sudden, he could not to do abortions anymore. he was an atheist and then converted to christian hannity -- christianity. he was an interesting person, because he was such a strong supporter of abortion, but the ultrasound changed it. that is what was happening in my medical practice. when you show someone what is
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there, then they have second thoughts. >> is there a ron paul doctrine when it comes to foreign policy? >> i would call it an american doctrine. it was advised to us by our founders and granted to us by the constitution. we have no authority to go in and get involved in the internal affairs of a different nation. there has been nothing done since 1945 that has anything to do with defending the country. it has made our country more bankrupt. strong advice. stay out of these entangling alliances. george bush ran on a policy of no nation building.
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obama was the peace candidate. he sent a lot of trips to afghanistan. now he is wondering when to bring them back. the foreign policy that i advocate, is pro-american constitutional foreign policy. >> people want to be free and assume responsibility for themselves. the government too often can take care of them. we are in transition where people realize government is failing. even those on the receiving end realize these entitlements may not come for ever. we are in the middle of this transition. i think we are making progress.
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>> how do we jump-start the economy? >> [unintelligible] we got into this trouble by too much spending. there were distortions caused by easy credit, interest rates. you have to have the correction. liquidate the debt. eliminate bad investments. that means a hands-off attitude and get rid of it. in the 1930's and now, we are doing the same thing. if you want jobs back, get the taxes down and the spending down. every time we get into a crisis, we add more regulation. we are in this problem, because there should have been more regulation.
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there was a house and local. if you accept free-market principles and provide freedom to the people, even if we lost everything we had it today, within a year, i think we would be more wealthy again. the younger generation only sees a burden of financing these wars. the cannot get jobs. people are receiving entitlements. the freer the society, the more prosperous they are. >> you have become a cult figure in american politics in some circles. do you view yourself as that? >> i am worried about using that term. i explained very clearly what is important as ideas.
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the tea party movement has a lot to deal with in changing attitudes in washington. they are talking about troops coming home because there are enough people say they are tired of it. i challenge the concept of one form of economics and try to get people to steady free market economics. >> why did the tea party begin? what role did you play? >> and directly at played a role. we had a campaign going on in 2007. on the anniversary of the original tea party, december 16, the grass roots -- , we celebrated the boston tea party
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by having events around the country. the campaign did it spontaneously. it morphed into something much bigger after we celebrated the boston tea party. some people joined it and did not have the same views. they came together because government was to pay and a bullet of cloth with a knife? big.vernment was to ptoo [unintelligible] there was a challenge.
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people ask, how do you feel with your son in the senate. as a very good job. he may get to serve in the house of representatives. >> where did you first meet your wife? >> in high school. she was born on a leap year. i only have to buy presents every four years. she does not let me get away with that, but i pretend. first date was when she was sixth in command with who would you like -- first day it was when she was 16. >> who would you like to sit down and speak with in american history? >> there are several. i'd like to talk to these people who were smart on economics.
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i would like to talk to jefferson and cleveland. cleveland was the last of the tay constitutionalists -- two constitutionalists. i think he'd be fascinating. >> why does ron paul want to be president? >> i offer something different than what others offer and i offer something that has not been offered in a long time. freedom is more important. that is my belief and conviction. many want to be president because they know what is best for you. but i do not want to do those things.
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i would do a great job of diminishing the role of the president and getting role -- rid of the idea that the office of the president is more of a dictator. i want to defend this country. i do not want to tell you how to figure life but protected from people who may want to hurt you. no individual can run the economy. you need a free economy to understand that. my desire to be president is to set the course of this country in a different direction. that is where we are more free, more prosperous, and we were the lender. now we are the biggest borrower in the history of the world. i would like to change all of that. we have a good precedent for that goal.
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it is nothing like the ron paul movement. we need to refine and improve on what we had in the past. the gold standard can be a better gold standard. you do not always want to go back. we need to improve it. we do not have enough confidence in we believe we have to give up liberty to be safe and secure economically. that is why we are less free. >> let's turn to politics in the campaign. what is your strategy for getting the nomination. -- getting the nomination? >> my strategy is to keep doing what i have been doing. we want to get people to the
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polls and understand the laws and the wolves. -- it is very important. it is getting the votes. i hope i am the one that can provide a policy and federal and by people not only to work hard but sending money as well. >> began with mitt romney, your opponents? >> i cannot do that individually, because i've put them all in one lump. mitt romney is going to be e bachmann.n michelle bachma
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they want to promote the status quo. they are not calling for all of the troops to come home or a new monetary system. they are not calling for the repeal of all laws that the key executive-branch likes. i want significant change and a restoration of the freedom principle. although they may very one from the other, they are a variation of the status quo. my supporters are seeking too much at one time. >> what does it tell you about the republican party? >> my comments about the candidates? i think the republican party has not been really strong, because i think richard nixon said it best.
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we all believe in this stuff, the government, welfare. the parties have been very much the same over the years. republicans talk about free market. they are big regulators. big government overseas and a big regulators over at home. this last decade, republicans ran up a lot of debt. that is why the status quo attitude for republicans and democrats have to change, if we want to preserve our were liberties and have our prosperity once again. >> which support them if they
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became the republican nominee? >> it depends. i could not support and john mccain last time. i thought his public policy was so bad. -- foreign policy was so bad. if a candidate has that type of foreign policy, i cannot support them. >> would you run as a different party? >> i cannot think about that. >> how do you win a general election if you become the republican nominee and what is your message for the president, barack obama? >> the republican primary voters tended to be more likely to endorse war. i am against war. that does not mean we are not making progress. sometimes personal liberties, some of the primary voters consider it a license and people
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should not be allowed to make of their own. the independence is where i get strong support. we have a lot of independents coming into the republican party to help out in our a lot of liberal democrats are very unhappy with obama and his foreign policy. they thought he does want to be much more of a peace candidate. they are turned off. he has not been good at all on civil liberties. he was anxious to make the patriot act permanent. he is not backing off of privacy issues at all. i want to restore the fourth amendment. i do not want people to get into your computer, telephone, or any of your records. a lot of democrats are unhappy with that.
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in general, it would be a lot easier path in getting enough people converted into the republican party. the right to life and conservative social way and arguing the states' rights position, and the going interest and concerns about the spending overseas and the policy -- i think that is why we are doing so much better in the republican policies right now. >> if you were to give him a review, what would you say about his leadership? >> not changing anything. economic policy stays the same. pursuing wars. dealing with congress going to war without asking us.
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he gets a poor grade. it has been a long time since we had a president -- grover cleveland was a great president. in recent decades, we have not had anybody to shrink the size of government. a want to be the first president that made its smaller. this print is not allowed to write a lot. i want to repeal those things and shrink them. that will invite businesses back into the country. they do not want to face the same qualifications. china is more conducive for business. they loan us money. they are investing in places like afghanistan and investing
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in other things while we are fighting and killing each other and bankrupting our country. we need to change the. we need to get back to investing that money here. >> are you optimistic or concerned about the future of america? >> i am concerned on the short run and optimistic in the long run. the young generation is very concerned about what is happening and are optimistic that we have answers to it. the young people that support may understand the need to assume responsibility for themselves. the transition is what is rough. but at what is going on in greece. there is nothing to guarantee that we will not have those rights on our streets and our dollars go down and the prices go up and there is no money in
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the bank. there are still a lot of people in this country that believe they have a right that the government must take care of me. that can be very dangerous. most of the people understand the dollar will not be maintained at the reserve currency. but they are trying to issue a world currency, which is opposite of what i would like to do. >> you have run for the house, senate, president and you have learned a lot about yourself. have you learned a lot about who you are? >> i think so. but i work on is trying to make what some people think are difficult issues to understand like economic policy, make it as simplistic as possible, so people can understand it.
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making these views palatable in their best interest. if you realize what is coming, you will lose anyway if i cut welfare. i want people to see that i am working for their best interest. i tried to explain to people what is in their best interest. if they do not think a free society is in their best interests, they will choose to be slaves. the wealth is dissipating, the debt is rising, and we are on autopilot on the spending. it is another opportunity for the freedom message to get out and people to accept it. >> what does your family think about your race to the white house? >> they probably encourage me
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more than i expected or needed. they have been very encouraging. >> congressman ron paul, thanks for being with us. we appreciate it. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] -- 2011] >> c-span has twitter feeds and update and links to c-span media partners in the early primary and caucus states. this the us at c- >> in a few minutes, a forum on u.s. and india economic relations. then at 7:00, "washington journal." our guests include
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transportation secretary ray lahood. a couple of live events to tell you about this morning. the senate armed services committee will consider several military nominations, including to be the admiral and commander of special operations command. members will also consider the nomination for a marine corps general john allen to replace general david petraeus as commander of u.s. forces in afghanistan. that is at 9:30 eastern on c- span3. and massachusetts senator john kerry will look into whether or not the war powers act that applies to military action in libya. >> blackberry users, you can access our programming any time with the c-span radio app.
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it is all commercial free. you can listen to our signature interview program. download it free from blackberry tap world. world.theapp worlapp >> a brookings institution discussion on u.s.-india economic relations. panelists include u.s. treasury secretary timothy geithner. this is about one hour.
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>> a good evening. two global leaders who have stood out in their astute handling of their respective economies. we touched upon various issues which focused on the economic and financial partnership opportunities between our two countries. while many industrial speakers, government speakers, regulators, institutions air their views and debated several topics during the course of the day, this was a session that we have been waiting for, to hear our two leaders. and we are honored to welcome them in the midst of this fantastic gathering of had in washington today. and while we welcome our leaders, what we have discussed
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over the course of the day have posed several issues, and have identified challenges we have in taking this collaboration and partnership forward. we talked about the u.s.-india two-way trade which has grown exponentially since 2009. and india featuring high in the administration costs goal of doubling imports by 2015. we have seen india's ambition by doubling imports by 2014 to $500 billion. india is looking at the united states in this regard. the possibilities we listed were limitless. also when we talk about india wanting sustain economic growth in the coming years, we talked a lot about the massive
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infrastructure needs for india. we said in the five years, in the estimates a total amount of investment of $2.50 trillion. several models we have talked about, and several opportunities emerging at how the u.s. would participate in it. we saw new sectors we which -- which have come up where we can partner together. and so on and so forth. especially, india house financial services sector. there's no one else who can expand at about and give us thought and ideas to take this relationship forward in the years to come. i present to you most proudly secretary geithner and mr.
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mukherjee. and mr. mukherjee. >> let me thank you for bringing this to to get there. thank you for talking about wt is our agenda. i want to welcome the minister, and they give for making this a long trip, and we will have the chance to night over dinner and tomorrow to talk about all the great issues between our two countries. we view this alicia as having enormous potential. we are at the beginning of unlocking this potential, and we will spend our time talking about a list of the list of foreign challenges between us. as we always do, we will start by talking about the global economy, the risks and challenges ahead, and talk about
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economic to the elements in both countries. our main purpose is to look for ways to expand and strengthen the economic trade, investment relationship. from our perspective, the key thing is the outlook for reform, economic reform. that is true in the united states. fiscal reform is true in india as wl. india is reaping the benefits of the past reforms set in motion by a minister in 1990, and india is at the point where future growth will depend on success in the next wave of reforms, not just in the financial sector, but in many ways the indian economy has outgrown its financial system, and with the huge needs for capital financing and business, the success of the indian economy is going to
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depend on the success of this next wave of the next generation of financial reforms. we hope to be a significant part of that. we faced challenges in the united states as well. on the trade investment side, we thinking there are substantial opportunities to improve access for indian companies in the united states and for u.s. companies competing in india. indian technology and ideas and talent already plays a major role in the american economy, and that is only going to grow over time, and we are committed to not just running an open nondiscriminaty investment regime, welcoming indian investment, but we want to find ways to make indian companies have a greater role in our economy. we will talk about things that are important to us in the indian market, as the authorities look for ways to improve the quality of the improve the quality of the


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